CASE NO: A8/47/2015
IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2018
CORAM: ANSAH, JSC (PRESIDING)
ADINYIRA (MRS), JSC
AKOTO-BAMFO (MRS), JSC
12TH DECEMBER, 2018
WOODHOUSE LTD. ………. PLAINTIFF/RESPONDENT/RESPONDENT
AIRTEL GHANA LTD. ………. DEFENDANT/APPELLANT/APPELLANT
In this judgment the defendant/appellant/appellant shall be referred to as the defendant while the plaintiff/respondent/respondent shall be referred to as the plaintiff.
At the High Court the plaintiff’s claim against the defendant was for
- An order directed at defendant to pay the sum of US$2,225,600 being an amount due plaintiff as at 31st December 2012 by virtue of the agreement dated 5th January 2009.
- Interest on the sum of money from January 2009 to date of final removal of all the seven 20 Footer containers on plaintiffs land at the prevailing commercial rate.
- Damages for loss of use of plaintiffs land.
The High Court entered judgment for the respondent in the sum as endorsed on the writ of summons with interest to be calculated. The appeal to the Court of Appeal did not yield much for the appellant as the Court virtually confirmed the findings of the High Court except a slight variation in the quantum of award. The appellant has further appealed to this court on a number of grounds.
FACTS OF THE CASE.
The facts of this case as settled by the trial High Court are as follows. The parties were business partners. The plaintiff’s case was that by an agreement in writing dated the 5th day of January 2000 made between the parties herein, the plaintiff offered defendant temporary storage of ten 20ft containers belonging to the defendant. The agreement indicated that the first seven days was free and wouldn’t attract any fees. Thereafter a daily fee of $200 would be paid on each container that remained on the premises. It was also contended that the first 2 containers were removed after 6 months and another was removed after a year. The rest remained on the premises until plaintiff issued the writ claiming an accumulated amount of $2,225,600.00 being defendant’s indebtedness to him as at 31st December, 2012.
The defendant denied plaintiff’s claim and put forth several defences. The defendant said that it did not know the plaintiff company in respect of the land and that ZED NETWORK LTD, another company belonging to the MD of the plaintiff company was the one they dealt with in respect of the land. ZED held sole distributorship rights with regard to defendant’s products and so since the containers were all branded in the name of the defendants and they were empty, ZED permitted defendants to place the containers there for free. Sometime later their business relationship went cold leading to the defendant terminating the sole distributorship agreement and bringing an action in court against ZED and its MD, George Boateng. Defendant opined that this current action has been started by the plaintiff as a result of the termination of the sole distributorship rights of ZED CO LTD. All attempts then to evacuate the containers were resisted because the matter was in court.
At the trial court when the defendant submitted that they were permitted to keep the containers on the plaintiff’s premises for free, they were confronted with the document, Exhibit A, that had been executed to witness the transaction. Their initial response was that the document was not genuine and then later said the person who executed the said document on behalf of the defendant company did not have the mandate to do that. It was also their case that they could not have committed themselves to pay $200 dollars per day for each container when in reality even if the containers had remained at the Port, the highest amount of demurrage charges they would have been called upon to pay was $34 per day after an initial $2 and $7, daily payments.
Indeed he brought a witness from the shippers authority to show the various payments on containers stored at the port.
The trial judge dismissed all the defences of the defendant and based his decision on the irrevocable agreement signed by the defendants. Judgment was entered for the plaintiff on his claim. At the Court of Appeal the defendant submitted that this transaction was essentially a landlord and tenant matter and so the Commercial Court to which the matter had been referred did not have jurisdiction and should have referred the matter to the Chief Justice for her directions. Again, the irrevocable agreement upon which the trial High Court’s judgment was based, was not stamped and therefore inadmissible and should have been rejected.
The Court of Appeal did not find any merit in the ground of appeal that suggested that the trial Commercial Court did not have jurisdiction to hear the matter. The Court said,
“Counsel dedicated ten pages of his written submissions on this issue and a further 4 pages of his reply to it. As a result of this counsel for the Respondent also went on at length in response. As interesting as the arguments of counsel may sound, they lack merit and should not take much of this courts time and effort in disposing of it.”After a brief analysis the Court concluded,
“In deciding the issue of jurisdiction I have not found it necessary to determine the question of whether the present action is in the nature of a landlord tenancy matter or a commercial matter properly so called. I am satisfied that whatever the nature of the case before the trial commercial court, even though it may have been more conveniently dealt with in another division of the High Court, the said trial court had jurisdiction to hear it, This ground of appeal lacks merit and so fails”.
The Court of Appeal treated the other grounds of appeal under the omnibus ground “Judgment is against the weight of evidence” and proceeded, as required by Rule 8(1) of the Court of Appeal rules 1997, C.I. 19, to review the whole evidence and pronounce on whether the conclusions of the trial judge are borne out by the evidence.
As indicated earlier, the whole of the case for the defence collapsed when the trial judge decided that the exhibit A, which was the irrevocable agreement was accepted as the foundation of the contract between the parties. When that document was admitted into evidence over the protestations of the defendant, the trial High Court judge had sealed the fate of the defendant. So before the Court of Appeal, the appellant argued vehemently for the exclusion of the said exhibit. The Court of Appeal subjected the document to relevancy and admissibility test by reviewing Part IV of the Evidence Act with special emphasis on Section 51(2), and Sections 32 (1), (2), (3) and (6) of the Stamp Duty Act 2005, Act 689.
Section 32(6) of the Stamp Duty Act 2005, Act 689 provides as follows,
“Except as expressly provided in this section, an instrument (a) executed in Ghana: or (b) executed outside Ghana but relating to property situate or to any matter or thing done or to be done in Ghana- shall except in criminal proceedings, not be given in evidence unless it is stamped in accordance with the law in force at the time when it was first executed.”
The Court of Appeal was of the opinion, and rightly so in our view, that, Sub section (6) covered documents such as exhibit A which was tendered by the plaintiff and which actually formed the basis of the trial judge’s judgment. That document was not stamped at the time it was admitted and remains unstamped till today. Relying on the case of Lizori Ltd v. Boye & School of Domestic Science & Catering [2013-2014] 2 SCGLR 889, the Court of Appeal ruled that exhibit A was inadmissible and same ought to have been thrown away, saying
“It is clear from all this that Exhihibit A in this case, being unstamped ought not to have been admitted into evidence by the trial court even if no objection was raised by the defendant. It is hereby excluded.”
This is what was said of an unstamped document in the Lizori Ltd case,
“The provisions in section 32 of Act 6989 are clear. Either the document has been stamped and appropriate duty paid in accordance with the law in force at the time it was executed or it should not be admitted in evidence. There is no discretion to admit it in the first place and ask any party to pay the duty and penalty after judgment.”
The exclusion of exhibit A notwithstanding, the Court of Appeal was of the view that there was sufficient evidence from other sources to justify the trial judge’s finding that there was an agreement to store the containers on the plaintiffs premises at a fee of 200 dollars a day per container. Save for a slight twitch in the quantum of money awarded, the court of appeal virtually confirmed the reasoning and conclusions of the trial high court judge. Being dissatisfied, the defendant has appealed to us on the following grounds.
GROUNDS OF APPEAL
- Having rightly excluded from the evidence the irrevocable undertaking, Exhibit “A” purportedly executed between the parties herein, the learned justices of the Court of Appeal erred in their finding that the parties herein entered into an agreement for the storage of the containers at US$200 per each container per day.
- The learned justices of the Court of Appeal erred in awarding the plaintiff rent of US$200 per each container per day from 13th January ,2009 to 31st December, 2012 notwithstanding abundant evidence on record that plaintiff earlier on refused to allow the defendant to remove the said containers.
- The learned justice of the Court of Appeal erred in holding that the trial court had jurisdiction to hear and determine the matter.
- Judgment is against the weight of evidence.
- The appeal having been allowed in part, the costs of Gh₵5,000 awarded to the plaintiff by the Court of Appeal was unjustified and unwarranted by law.
Additional grounds of appeal will be filed on receipt of record. No additional grounds have been filed before us.
Even though the ground C was argued last, we are of the view that the matter of whether or not the High Court had jurisdiction should be tackled first. In his submission before us Counsel cited the case of Tsikata v Attorney General [2001-2002]SCGLR 1, and quoted profusely the statement of Kpegah JSC that “Another essential attribute or feature of the division of a court is that the creation of a division derogates from the courts general jurisdiction and limits it to a specific subject area. For example, probate matters cannot be filed in a criminal Division of the High Court vice versa.” On his part Adzoe JSC said as follows “Establishing a division of a court involves the question of jurisdiction. The jurisdiction of a court is the authority which the court has to hear and determine matters litigated before it. It has two matters- the element of subject matter and venue. Subject matter jurisdiction relates to the type and nature of actions and matters that the court can take cognizance of, eg murder or land cases or chieftaincy dispute.”
Even though counsel concedes that the majority decision was overturned in a subsequent review application, counsel submits that the principles of law discussed by both Kpegah and Adzoe JJSC, are valid and remain good law. Anticipating that he would be confronted with the fact that he did not raise this objection at the time of the trial, counsel has referred us to the case of Essex County Council v Essex Incorporated Congregational Church Union  2 WLR 802 @808 where Lord Reid said “but the appellants say that the respondents cannot be allowed to maintain this point now because they consented to the matter being dealt with by the tribunal….In my judgment, it is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction or can estop the consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction.”
In effect, since the Commercial Court lacked jurisdiction to sit on a matter which was a landlord/tenant issue, no proper jurisdiction was conferred by the defendant’s failure to raise the issue at the time. Concluding he submitted, “My lords, it is submitted that the learned trial judge after perusing the pleadings of the parties and the issues set down by the pre-trial judge, ought to have held the view that this instant matter in substance was a land matter involving Landlord-Tenant or Licensor-Licensee, over payment of rent for storage of containers on plaintiff’s land. In that instance, the matter was not one of those causes or matters which could be determined by the Commercial Division of the High Court. The matter ought to have been referred to the Chief Justice for transfer to the High Court, Land Division”
When this argument was presented at the Court of Appeal it was rejected and same has been rehashed before us. We do not think that this ground of appeal need to engage our attention too much. The Constitution of Ghana 1992 provides in Article 140(1) as follows “The High Court shall subject to the provisions of this Constitution have jurisdiction in all matters and in particular, in civil and criminal matters and such original and appellate and other jurisdiction as may be conferred on it by the Constitution or any other law. Section 15(1) of the Courts Act 1993, Act459 on the other hand provides that “In accordance with Article 140 of the Constitution, the High Court has, subject to the constitution
- Any original jurisdiction in all matters
- Any other jurisdiction conferred by the Constitution, this Act or any other enactment
Section 14(3) of the Courts Act, 1993 Act 459, which confers power to create divisions of the High Court on the Chief Justice provides as follows;
“There shall be in the High Court such divisions consisting of such number of Justices respectively as the Chief Justice may determine”
A subsidiary legislation like CI 47 cannot purport to limit the jurisdiction given to the High Court by the 1992 constitution or the courts act. Clearly then, the power of the Chief Justice to create divisions of the high court such as commercial or land division cannot remove from the power the constitution confers on the said court ie jurisdiction on all matters as stated in Article 140 (1) of the 1992 constitution. We are therefore agreeable to the holding of the Court of Appeal that there is no merit in this ground of appeal and so same is dismissed.
The defendant argued grounds (a) and (e) together. Ground a reads, “Having rightly excluded from the evidence the irrevocable undertaking Exhibit A purportedly executed between the parties herein, the learned Justices of the Court of Appeal erred in their findings that the parties entered into an agreement for the storage of the containers at $200 per each container per day.” Ground E reads, “judgment is against the weight of evidence.”