A:
Introduction
“Open justice. The words express a principle at the heart of
our system of justice and vital to the rule of law. The rule of law is a fine
concept but fine words butter no parsnips. How is the rule of law itself to be
policed? It is an age old question. Quis
custodiet ipsos custodes[1]—who
will guard the guards themselves? In a democracy, where power depends on the
consent of the people governed, the answer must lie in the transparency of the
legal process. Open justice lets in the light and allows the public to
scrutinise the workings of the law, for better or for worse. Jeremy Bentham
said in a well-known passage…: ‘Publicity is the very soul of justice. It is
the keenest spur to exertion and the surest of all guards against improbity. It
keeps the judge himself while trying under trial.'”[2]
Though the above statement speaks of the English system and its rule of
law, it applies with equal force to our own constitutional democracy. As such, I
could not help but adopt it as the introductory statement for this article. The
article discusses the recent Supreme Court decision in Springfield
Energy Ltd & Another v Bulk Oil Storage & Transport Co. Ltd[3]
(simply
referred to as ‘Springfield v BOST’). On 7th December, 2022,
the Supreme Court gave its unanimous judgment in the case. The reliefs granted were
read in open court[4]
as shown by the court notes of the day. But the full written decision of the
Court, also dated 7th December, 2022, but certified and issued
several weeks later, contained an additional relief that had not been granted
by the Court when it read its decision on the reliefs granted in open court,
and as borne out by the court notes. In fact, that ‘additional relief’ was not
an issue on appeal before the Supreme Court at all. How, then, did such a
relief find its way into the full and final decision of the Court?
This article also discusses the age old
problem of scrutiny and accountability of institutions – especially the courts
- that are themselves mandated to scrutinize society and keep citizens on the
straight and narrow path. The article concludes that, when the courts put their
foot wrong, and it is brought to their attention, they must have the humility
to set things right. In that wise, posterity will not judge them ill when they
eventually exit the stage. Or will they?
B:
The illusion of permanent power
A few weeks ago, the nation received an
announcement from the new General Secretary of the NDC party. It was a terse
and perfunctory notice to the effect that the NDC leadership in Parliament had
changed. We thought it was a simple exercise by the NDC to show the NPP how to
effect changes in a stale regime. Politicians and their antics, we surmised,
and moved on. I mean, why will the change in the leadership of a minority in Parliament
that is more noted for its acquiescence than opposition to majoritarian
pleasures cause the rest of us sleepless nights? But we were most wrong. We
plodded along with life, with our necks firmly stuck in Ken Ofori-Atta’s
domestic debt exchange guillotine.
Unbeknownst to us,
the minority leadership in Parliament had grown to expect – nay, believe - that
their positions had crystallized into a fiefdom over the course of 6 short years
(2017-2023). As such, they had attained a status of permanence that, perhaps, only
death, could pluck them from their lifetime leadership roles in the august
House. As it happened under our very eyes, a Mosquito and his friends came
earlier than death to do the deed. No big deal, we the so-called politically-disengaged
middle class thought. Boy, were we so wrong.
As we witnessed in the
media banter, those who had become convinced that their political office was
their birthright put up a spirited fight to defend their positions. Their
acolytes feigned anger and called the new entrants names. Some asked for
written evidence of NEC resolutions on the matter of the foul changes, and so
on and so forth. In the final analysis, reality prevailed and they descended to
the ‘ordinary bench’ of the House. They have returned to their mortal state.
They are breathing ordinary air with the rest of us.
To be fair, it is not
only legislators who may perceive their offices as existing in perpetuity. As
it happens, members of the Executive and the Judiciary also wish they will
never shed their leaves nor bid the spring adieu. They remind us of John Keats’
“Ode on a Grecian Urn,” a beautiful poem on the subject of permanence:
“Ah, happy, happy boughs! that cannot shed
Your leaves, nor ever bid the Spring adieu;
And, happy melodist, unwearied,
For ever piping songs for ever new …
For ever warm and still to be enjoy’d,
For ever panting, and forever young …”
But as sure as day follows night, our leaders’
spring will be followed by summer.
C:
Spring came early for Springfield: Springfield
v BOST
(a)Springfield
sues BOST at the High Court
Facts: Springfield
Energy Limited is a private Ghanaian company that imports petroleum products.
BOST is a wholly-owned Government business that provides bulk oil storage
services for oil companies, such as Springfield. The case, Springfield v BOST, started in November, 2015 when Springfield sued
BOST at the Commercial Division of the High Court. Springfield was claiming i) about
US$20 million as debt owed to it by BOST, ii) interest on US$20 million at 19%
a year, iii) US$3.4 million as loss of profit, iv) interest on US$3.4 million at
the bank rate, and v) costs. BOST filed its defence and denied owing
Springfield the amounts claimed and counterclaimed for excess oil Springfield
had overdrawn from BOST. Springfield and BOST (together referred to as ‘the
parties’) could not settle the case at the pre-trial settlement conference so
issues were set down for trial. The case was given to another judge (by the
rules of court) to start a hearing.
Summary judgment: Springfield applied for summary judgment and the
High Court granted it for reliefs i) US$20,226,717.75 as debt owed to it by
BOST and ii) interest on the amount at 19% a year from 13th
November, 2015. The other reliefs were to be determined after trial. BOST later
applied to set aside the summary judgment and for leave to file an amended
statement of defence in which BOST admitted owing Springfield only
US$11,104,143.29, and not the amount of US$20 million awarded as summary
judgment. BOST also stated that Springfield owed it about US$1.5 million and
other amounts to be ascertained when it received some requested information
from Springfield itself and NPA (National Petroleum Authority).
‘Varied’ summary
judgment: When BOST moved its application
to set aside the summary judgment and for leave to amend its statement of
defence, Springfield opposed it. After hearing the parties, the High Court
entered what it termed as “summary judgment based on admission” for a) US$11,104,143.29
and b) interest on the said amount from 1st October, 2013 at a rate of 19% and
varied the court’s earlier order for summary judgment. It is unclear how the
High Court changed the period of payment of interest from 13th
November, 2015 to 1st October, 2013. To appreciate the full import of the High
Court’s second bite at the oily cherry in the “summary judgment based on
admission,” the High Court’s decision is set out in full as follows:
"On the face of the applicant's own affidavit,
defendant made admission of the sum in the region of $11,104,143.29. Based on
the admissions, and on the foundation of Order 14 Rule 9, I shall vary the
court's order dated 11th August, 2016 by rather entering summary judgment based
on admission of the sum of $11,104,143.29 as well as interest on the said
amount from 1st October, 2013 at the rate of 19 percent annually to date of
final payment. The sum remaining on relief (i) and the rest of the reliefs as
appeared on plaintiff's writ of summons shall be subject for trial. In
conclusion, the court’s order dated 11th August, 2016 is hereby varied."[5]
The question that
agitates one’s mind at this point is whether, having earlier entered summary
judgment (as final judgment) in favour of Springfield, the High Court had
jurisdiction to further fiddle with that judgment and change it. We will return
to this matter in due course.
(b) BOST files appeal to Court of Appeal
BOST was unhappy with the High Court’s decision so
it appealed against the new ‘summary judgment on admission’ to the Court of
Appeal. The Court of Appeal found BOST’s appeal sound in law and set aside the
High Court’s summary judgment. That meant that the parties had to go back to
the High Court for the case to be tried based on the issues that were
previously set down for trial.
Springfield was livid
and would not accept the Court of Appeal’s decision. Springfield decided to
appeal against it. In the meantime, the parties returned to the High Court
(differently constituted) for trial of the substantive case. We will return to
the outcome and effect of the High Court’s substantive judgment soon.
(c) Springfield
sprints to the Supreme Court
Springfield filed an appeal at the Supreme Court[6]
based on five grounds of appeal which were fully set out in the Supreme Court’s
judgment. In summary, the grounds on which Springfield’s appeal was contested
were:
1.
The legal basis for
the variation of the High Court’s order.
2.
Whether setting down
issues for trial after pre-trial settlement conference means the case must
necessarily go for trial.
3.
Whether BOST had a
real defence to Springfield’s case.
4.
Whether summary
judgment can be awarded only in claims for specific amounts.
5.
Whether the Court of Appeal’s judgment was
against the weight of evidence.
(d)Supreme
Court’s judgment – Read in court on 7th December, 2022 and stated in
court notes
On 7th December, 2022, the Supreme Court[7]
gave its judgment and held that, Springfield won the appeal. The copy of the
Supreme Court’s unanimous decision that first came out was the summary of the
reliefs granted by the Supreme Court and contained in the court notes of the
day. This is what the Supreme Court said in open court to the hearing of the
whole world, quoted in full:
“By Court: The decision of the court is unanimous.
The appeal against the judgment of the Court of Appeal dated 17th
July, 2019 succeeds. Summary judgment is hereby entered in favour of the 1st
Plaintiff to recover from the defendant the sum of US$11,104,143.29 with
interest on the said amount at 19% per anum(sic) from 18th November,
2015 to the date of final payment. The remaining parts of the claims of the
Plaintiff as well as the counterclaim of the Defendant are to be tried by the
High Court differently constituted. Copies of the judgment to be filed on or
before the 9th day of December, 2022. Costs of GH₵20,000 to the Appellant.”[8]
Here too, one can see the change in the period for
payment of interest from 1st October, 2013 (as stated in the High
Court’s ‘summary judgment on admission’) to 18th November, 2015.
(e) Supreme
Court’s judgment – Full written judgment certified on 26th January,
2023
Several weeks after the Supreme Court’s decision
was read in court, a certified copy of the full written judgment dated 7th
December, 2022 (but certified on 26th January, 2023) was released. The
Supreme Court captured the court’s decision in its 35-page judgment as follows:
“In conclusion, the appeal against the judgment of
the Court of Appeal dated 17th July, 2019 succeeds. Summary judgment
is hereby entered in favour of the Appellant (1st Plaintiff) to
recover from the Respondent (Defendant) the sum of US$11,104,143.29 with
interest on the said amount at 19 per cent per annum plus the additional interest pursuant to the default interest clause in
Exhibit ‘C’ the bank credit facility from 13th November, 2015 to
[the] date of final payment. The remaining part of the claims of the Appellant
(1st Plaintiff) as well as the counterclaim of the Respondent
(Defendant) are to be tried at the High Court.”[9]
(Emphasis in italics added)
D:
When the Supreme Court errs: Who supervises the supervisor?
Now, a careful reading of the Supreme Court’s
unanimous decision of 7th December, 2022 as captured in the court
notes of that day and the full written judgment released in January, 2023, reveals
a worrying development. When a court gives its final judgment or order in court
and announces that its full decision will be ready by a certain date, it is the
legitimate expectation of parties that the reliefs granted and read in open court
will be captured exactly as it was read in court in the full written judgment.
Unfortunately, that is not what happened in Springfield
v BOST.
In
Springfield v BOST, the full judgment
that was certified and released by the Supreme Court, included an additional
relief inserted as “plus the additional
interest pursuant to the default interest clause in Exhibit ‘C’ the bank credit
facility.” First of all, the High Court’s “summary judgment on admission” did
not award any such “additional interest pursuant to the default clause in Exhibit
‘C.’” Secondly, the Court of Appeal set aside the High Court’s said summary judgment
and did not make any allusion to any such award. And nowhere in the five
grounds of appeal filed at the Supreme Court did Springfield claim any such relief.
As the Supreme Court itself confirmed, Springfield did not file any additional
grounds of appeal. Further, and most tellingly, no such relief was included in
the Supreme Court’s court notes of 7th December, 2022, which
contains the exact reliefs granted and read in open court.
How, then, did the
full judgment of the Supreme Court, dated on the self-same 7th
December, 2022, come to bear the award of the mysterious “additional interest
pursuant to the default clause in Exhibit ‘C’” in favour of Springfield? Was it
the case that five (5) Justices of the Supreme Court, presided over by the
Chief Justice, no less, signed off the
judgment without notice of the glaring enhancement in the reliefs granted in
open court? Was it a palpable mistake or a deliberate insertion to give
Springfield a relief it had not asked for in its appeal? Or, was it a 21st
Century, ‘Page 28’-inspired renaissance?
It will be nigh
impossible for one to hazard an opinion as to the motivation for such a ‘mistake’
or ‘deliberate insertion,’ whichever way one chooses to look at it, depending
on their idiosyncrasies. But what is clear is that, if the Supreme Court, as the highest Court in
Ghana, can stumble in such manner, what can one expect from lower courts? For, “…
if gold rusts, what then will iron do?[10]
What, then, is the
legal effect of the mysterious and alien relief - “additional interest pursuant
to the default clause in Exhibit ‘C’” - that has found its way into the
decision of the Supreme Court? The answer is simple: It is a nullity. Such a
relief of unknown source and import cannot be enforced against a party. Any attempt
to enforce such an unlawful appendage of a relief, it is submitted, will be a
nullity.
It is interesting to
observe that, the Supreme Court has recently had occasion to deal with a
similar situation where a High Court issued two different rulings in respect of
one application. It was held that, the second and enhanced ruling written after
the High Court had read its earlier ruling in open court was a nullity. The
case is known as Republic v High Court
(General Jurisdiction Division), Accra; Ex parte Minister for the Interior
& Comptroller-General of Immigration Service (Ashok Kumar Sivaram
Interested Party),[11] (simply referred
to as “Ex parte Minister of the Interior”).
What happened in Ex parte Minister of the Interior was
that, one Sivaram (the interested party), an Indian citizen living and working
in Ghana, was deported to India by Ghana Immigration Service, acting on the
orders of the Minister of the Interior. His residence/work permit was
cancelled. His lawyer applied and got a High Court order to revoke the
deportation order. So, Sivaram returned to Ghana. But he was denied visa on
arrival at the airport and he was detained.
Sivaram’s lawyer got
a Habeas Corpus order and he was
released from detention. When he applied for residence/work permit, Immigration
Service refused his application. His lawyer then applied for an order of
mandamus at the High Court (differently constituted) to compel Immigration
Service to issue Sivaram a residence/work permit. The Court granted the order
of mandamus on 18th September, 2017 and ordered Immigration Service
to issue Sivaram’s residence/work permit within 7 days, among other orders. It
turned out that, after the High Court judge read a one and half page ruling in
open court, the judge later issued an enhanced and elaborate 22-page ruling,
also dated on the same day, and also certified by the registrar of the court.
Immigration Service
took exception to the High Court’s orders and filed an application at the
Supreme Court for certiorari to quash
the High Court’s order of mandamus. One of the grounds for the application was
that, “there was a procedural irregularity such as the issuing of two different
rulings/judgments on the same matter (one, a 22-page ruling and the other, a 1
and a half page ruling) with the same date, 18th September, 2017.” The Supreme
Court wasted no time at all. It granted the order of certiorari to quash the High Court’s ruling. I can do no better
than to reproduce the concise opinion of Benin, JSC as follows:
“It is clear that the 22-page ruling was produced
subsequent to the proceedings recorded and certified for 18th September, 2017.
It sought to expand the ruling delivered in open court that day. We would have
found nothing wrong with that if the Learned Judge had made an indication in
the proceedings that she would produce a fuller and more detailed reasoning of
the decision and orders. Whether by oversight or mistake, there was no such
indication or reservation on the record. So, the second document, a 22-page
ruling, was not procedurally and legally justified. We accordingly reject that
piece of document and, indeed, expunge it from the record and we hereby order
the Registrar of the said court not to issue it out again as an authentic
ruling of the said court.”
In applying the above-quoted
sound reasoning of the Supreme Court in Ex
parte Minister of the Interior to Springfield
v BOST, it is submitted that, since on 7th December, 2022 the
Supreme Court read out the reliefs granted in favour of Springfield without any
caveat that it will expand or enhance the reliefs in its subsequent full written
judgment, the additional relief - “additional interest pursuant to the default
clause in Exhibit ‘C’” – that surfaced in the full written judgment is a
nullity. It cannot be procedurally and legally justified. Thus, it cannot be
enforced in any court of law.
It is further
submitted that, as was done in Ex parte
Minister of the Interior, the additional alien relief called “additional
interest pursuant to the default clause in Exhibit ‘C’” must be expunged from
the record on grounds of nullity.
All things
considered, it is disconcerting that a Superior Court of Judicature, such as a
High Court, can say one thing in open court, retreat into chambers, and return
with a totally different outcome in writing as we saw in Ex parte Minister of the Interior. But such disconcertion pales into
insignificance where, as was the situation in Springfield v BOST, there were 5 Justices of the Supreme Court who
sat in open court and unanimously endorsed the decision read, and the same 5
Justices of the Supreme Court signed off the full decision written by Amadu,
JSC that introduced the alien “Exhibit C” additional relief. In the
circumstances, Springfield v BOST presents
a far worse situation than what the Supreme Court had to contend with in Ex parte Minister of the Interior.
As noted in the
preceding paragraph, in Ex parte Minister
of the Interior where the second impugned ruling was given by the High
Court, the Minister of the Interior’s remedy was to invoke the supervisory
jurisdiction of the Supreme Court to set things right. Now that it is the
Supreme Court itself that has committed the egregious error in Springfield v BOST, who will supervise
the supervisor?
E: Other
matters arising out of Springfield v BOST
Apart from the nullity occasioned by ‘double
judgment’ in Springfield v BOST as
discussed above, there are a number
of other issues of legal importance that arise out of the case. In this
section, I raise a number of such issues for discussion.
- No case is pending before the High Court
It will be recalled that in the Supreme Court’s
court notes of 7th December, 2022, the Court made the order that “the
remaining parts of the claims of the Plaintiff as well as the counterclaim of
the Defendant are to be tried by the High Court differently constituted.”
Again, in the full unanimous judgment of the Supreme Court of even date, the
Court wrote that “the remaining part of the claims of the Appellant (1st
Plaintiff) as well as the counterclaim of the Respondent (Defendant) are to be
tried at the High Court.” The combined effect of these orders gave a positive indication
that there were substantive issues still pending before the High Court for
trial.
However,
research has proven that, that is far from the truth. In fact, the High Court[12] had long held a trial into
Springfield’s outstanding claims for loss of profit and costs, as well as
BOST’s claim for overdrawn stocks and costs as far back as 29th
June, 2020 in Suit No. CM/0086/2015 titled Springfield
Energy Limited v BOST. In fact, as was stated in the comprehensive and
erudite judgment of Angelina Mensah-Homiah, JA, (sitting as an additional High
Court Judge) Fidelity Bank that was initially joined in the case as 2nd
plaintiff had been struck out after BOST paid the amount of US$11,104,143.29 to
Springfield in satisfaction of the “summary judgment on admission” given in
August, 2016.
The
judgment delivered by the High Court on 29th June, 2020 at the end
of the full trial made the following awards:
“…the Plaintiff’s claim for loss of profit fails.
Instead, I award an amount of US$200,000 as nominal general damages in favour
of the Plaintiff for the financial detriment suffered as a result of the
delayed payment for the lost products. The Plaintiff is liable to pay to the
Defendant the sum of US$829,073.57 representing unpaid storage and rack fees …
together with interest at the United States Federal Reserve Dollar lending
rate… The interest runs till date of final payment.”
In simple mathematical terms, by the substantive
judgment of the High Court as quoted above, Springfield rather owes BOST over US$629,073.57 (that is, US$829,073.57 -
US$200,000) plus interest till date of final payment!
So,
now that it is established that the High Court gave final judgment on the
merits of the case between Springfield and BOST as far back as 29th
June, 2020, (almost 3 years ago) and thus, became functus officio, the Supreme Court could not legitimately order
that the same resolved issues must be tried before the High Court once again. As such, the Supreme Court’s judgment dated 7th
December, 2022 referring certain claims to be tried at the High Court is brutum fulmen.[13]
Again, once the High
Court had given “summary judgment on admission” for US$11,104,143.29 in favour
of Springfield and BOST had made full payment to Springfield, the Supreme Court
had no jurisdiction to enter judgment again for the same amount of US$11,104,143.29
in favour of Springfield as it sought to do in its judgment dated 7th
December, 2022. Such a judgment can only lead to unjust enrichment of
Springfield to the detriment of BOST.
2.
Failure to properly
consider the principles for grant of summary judgment
Another important point to note is the Supreme
Court’s failure to apply the principles for granting summary judgment. It will
be recalled that when Springfield filed its appeal at the Supreme Court, the following
matters that arose before the High Court were put on record: First, BOST had
made an admission that it owed Springfield US$11,104,143.29 and not US$20,226,717.75
as claimed by Springfield. Secondly, BOST also maintained that Springfield owed
it US$1,576,701.93 in unpaid invoices in respect of throughput fees. Thirdly, BOST
indicated that its debt to Springfield “will be further whittled downwards
after the receipt of the information requested from plaintiff and the NPA.”
In the light of these
weighty issues, BOST could not be said to have admitted liability for the full
amount of US$11,104,143.29. Thus, BOST’s amended statement of defence raised
triable issues. In the circumstances, it is submitted that, the better approach
for the High Court was to deal with Springfield’s application for summary
judgment under Order 14 rules 5 (1) and 6 of C.I. 47 and order the case to be
tried summarily or deal with the
application for summary judgment as if it was an application for directions
under Order 32. In either of those events, the High Court could have received
evidence from BOST on the alleged information ‘from plaintiff and the NPA’ before
entering judgment in favour of Springfield. Looking at the state of BOST’s
amended statement of defence, it is respectfully submitted that, the High Court
should not have entered ‘summary judgment on admission’ the way it did.[14]
The Supreme Court also
entered summary judgment in favour of
Springfield based on its recent decision in Windworth Holdings (Pty) Ltd v
Dupaul Wood Treatment (Ghana) Ltd,[15] without satisfying itself whether, on the
facts of Springfield v BOST, summary
judgment was the appropriate remedy. In the Windworth
Holdings (Pty) Ltd case, the Supreme
Court, speaking through Gbadegbe, JSC held that, it was unacceptable that the
defendant who accepted absolute liability for the amount in respect of which
the writ was issued, and offered to pay the indebtedness in instalments but
failed so to do, could be said, either in conscience or principle, to have a
defence to the action. In the circumstances, the trial judge exercised her
discretion correctly in entering summary judgment against the defendant and the
Court of Appeal also rightly upheld the judgment entered by the trial High
Court.
Gbadegbe, JSC’s opinion in the
Windworth Holdings (Pty) Ltd case above is a correct statement of the law.
But Springfield v BOST is
distinguishable from that case because there, BOST as defendant did not accept ‘absolute
liability.’ Therefore, it was the High Court’s duty to hold a trial for BOST to
prove its defence, and not to enter judgment against BOST whiles it was
contesting the amount of its indebtedness to Springfield. In the face of BOST’s allegation that its
indebtedness to Springfield was less than US$11,104,143.29, it is surprising
that the High Court was happy to accept BOST’s admission of some indebtedness but
ignored its allegation that Springfield also owed it certain sums in throughput
fees. This makes the High Court’s grant of ‘summary judgment on admission’ for
US$11,104,143.29 and its subsequent affirmation by the Supreme Court
problematic.
3.
Failure to
consider the defence of set-off
Another legal point worth discussing is the High
Court and Supreme Court’s failure to consider the defence of set-off raised by
BOST’s amended statement of defence. The reasons for this submission are
simple. It is for cases such as Springfield
v BOST that the law recognizes a defence known as “set off.” The common law
defence of set-off has been incorporated into our High Court Rules as follows: ”Where
a claim by a defendant to a sum of money (whether of an ascertained amount or
not) is relied upon as a defence to the whole or part of a claim made by the
plaintiff, it may be included in the defence and set-off against the
plaintiff's claim, whether or not it is
also added as a counterclaim.”[16]
(Italics emphasis added)
Therefore, once BOST
(as defendant) pleaded matters in its amended statement of defence that raised
the defence of set-off, the High Court was in duty bound to consider that
defence before arriving at the amount to be entered by way of summary judgment
or judgment on admissions in favour of Springfield.
As the Rule
beautifully puts it, BOST’s claim against Springfield was to be “included in
the defence and set-off against the plaintiff's claim, whether or not it is
also added as a counterclaim.” Though
BOST included the fact that Springfield owed BOST in its amended statement of
defence, the High Court woefully failed to set BOST’s debt off Springfield’s
claim. Thankfully, the Court of Appeal set aside the High Court’s decision and
saved the day. But regrettably, the Supreme Court sought to re-instate the High
Court decision that flouted the provisions on the defence of set-off under the
Rules.
At any rate, the
Supreme Court’s suggestion that whatever amount the new information will bring
out for BOST’s benefit can be contested by way of its pending counterclaim at
the High Court is, with utmost respect, patronizing, at best. At worst, it is a
wrong proposition in law in the light of Order 11 rule 17 of C.I. 47. It is
submitted that, to the extent that the defence of set-off was raised by BOST’s
pleadings but was not considered by the Supreme Court, the Supreme Court’s decision
in Springfield v BOST was given per incuriam. Even so, the Supreme
Court’s judgment is already brutum fulmen.
It may well be argued
that, BOST did not specifically plead the defence of set-off in its amended
statement of defence and, therefore, the High Court was not obliged to consider
it. But it is clear that, the essence of BOST’s amended statement of defence
was to raise the defence of set-off. Therefore, the High Court and the Supreme
Court were both bound to consider it. Unfortunately, they both failed to do so.
A litany of cases support this legal position. For instance, in Attorney-General v Sweaters & Socks Ltd,[17]
it was held that, where a plea has not explicitly been set out, but the
defendant’s statement of defence points unequivocally or substantially to the
plea, the court is bound to consider it, as if it had been specifically pleaded
by the defendant. It can hardly be argued under such circumstances that an
opponent has been taken by surprise or prejudiced.
Thus, even fraud, the
vitiator of all things, where not pleaded but there is evidence on record to
prove it, a court of equity and conscience will not close its eyes to it.[18] The
same goes for the defence of set-off.
4.
“Summary
judgment on admissions” – a curious concept
One glaring pronouncement the High Court made in
its judgment was that, it was “entering summary judgment based on admission”
for Springfield. Under the Rules, ‘summary judgment’ and ‘judgment on
admissions’ are two separate and distinct legal concepts. They operate on
different principles, though some aspects of their antecedents are similar.
Indeed, the only point of similarity between the two is that, both summary
judgment and judgment on admissions are final judgments. Apart from that, they
are different in all other respects.
For example, summary
judgment is treated under the famous Order 14 of C.I. 47 whiles judgment on
admissions is covered under Order 23 of C.I. 47. Secondly, the grounds on which a party can
apply for summary judgment and the grounds for applying for judgment on
admissions are different. The grounds for applying for summary judgment are: i)
where the defendant has no defence to the plaintiff’s claim or part of the
claim, or ii) where the defendant has no defence to the plaintiff’s claim or
part of a claim but has a defence as to the amount of damages claimed by the
plaintiff.[19]
On the other hand, before
a plaintiff can apply for judgment on admissions, the defendant must have admitted
facts: (a) in an affidavit (as BOST did); (b) during discovery; (c) during examination under oath in court or
affirmation in or out of court.[20]
It is trite knowledge that, the fact that one party makes an admission does not
mean that the other party is automatically entitled to judgment based on the
admission so made. The court has a duty to review the evidence placed before it
and come to its own conclusion before entering judgment.
A classic example of
a case in which the judge ignored a defendant’s admission and subsequent
submission to judgment is African
Automobile Limited v Ministry of Information & Attorney-General.[21]
In that case, the defendant (Attorney-General) did not file any statement of
defence to contest the plaintiff’s claim. The defendant also failed to appear
in court to cross-examine both the plaintiff’s witness and the court expert
witness who was called at the behest of the plaintiff. The defendant submitted
to judgment in the amount of about GH¢14 million, and the plaintiff obliged. In
fact, the plaintiff’s original claim was for about GH¢81 million. So one would
have thought that accepting GH¢14 million was a mark of benevolence on the part
of the plaintiff. But the trial High Court judge thought otherwise.
The judge refused to
enter judgment for the plaintiff based just on the defendant’s admission of
indebtedness of GH¢14 million. The judge analyzed the evidence given in detail
and in the end, gave judgment for the plaintiff for only GH¢1, 563.64 with
interest. The plaintiff’s appeal to the Court of Appeal was dismissed. The
Court of Appeal noted that, where any admissions are made, the trial judge, despite
the admission, still has the sole duty in deciding whether any party is
entitled to judgment on the admitted sum.
In summary, a court
can only enter summary judgment against a defendant where the defendant has no
defence, as earlier discussed. And a judge can only enter judgment on
admissions where a defendant has admitted the plaintiff’s claim or part of it,
and the trial court has satisfied itself that judgment must be given based on
the admission. Consequently, a court cannot enter a judgment that is at once
summary judgment and judgment on admissions as the High Court did in Springfield v BOST. It is submitted
that, the “summary judgment based on admission” the High Court entered in
favour of Springfield is an alien contrivance that is unknown to the High Court
rules on civil procedure.
At any rate, under
the Rules, an application for judgment on admissions must be brought by motion
on notice with a supporting affidavit.[22] From
the facts of the case, Springfield never filed any such application for
judgment on admissions. It was BOST’s application to set aside the summary
judgment and for leave to file an amended statement of defence that served as
the basis on which the High Court ‘varied’ its initial summary judgment to “summary
judgment based on admission.” In the premises, the procedure that led to the
impugned “summary judgment based on admission” itself was wrong.
Where such alien
processes (such as the “summary judgment based on admission”) have surfaced in
court, the Superior Courts have wasted no time in declaring them a nullity.
Take, for instance, the case of Iddrisu v
Amartey.[23]
In that case, the defendant filed a process titled “Further defence to reply
and counterclaim.” The Supreme Court held that such a process is unknown to the
Rules and accordingly struck it out.
Indeed, the Supreme
Court takes no prisoners in such situations even where the ‘offender’ is not a
party in a court of law. So, in Pobee, Tufuhene Elect of Apam v Yoyoo,[24] an appeal involving a chieftaincy matter, the
Supreme Court held that, the “motion for disjoinder” filed before the Judicial
Committee of Gomoa Akyempim Traditional Council was not sanctioned by the Rules
of the Superior Courts and one could not comprehend how it crept into the
practice before Judicial Committees such as to have been used by the
Judicial Committee of Gomoa Akyempim Traditional Council in the manner that had
unfolded in the proceedings before them. On that account, the Supreme Court
allowed the appeal that had been filed challenging the decision of the National
House of Chiefs.
In the recent case of
Ecobank Ghana Limited v Golden Web Ltd &
3 Others,[25]
a document filed and titled “1st Defendant’s Reply to Defence to
Counterclaim” was held to be alien and unknown to the Rules. It was struck out
by the High Court. Similarly, in Yvonne
Quintin-Cofie v Kiddie Kollege International School & Another,[26] the High Court struck out a process
titled “Affidavit in Reply” that was filed on behalf of the defendants after
the plaintiff had filed an affidavit in opposition to the defendants’
application for stay of execution pending appeal. The Court ruled that the “Affidavit
in Reply” filed in response to the affidavit in opposition was not sanctioned
by the Rules and, therefore, struck it out.
It is in the light of
the above decisions that one finds it most strange that the Supreme Court could
turn a blind eye to such a glaring misstep as “summary judgment based on
admission” in Springfield v BOST.
Indeed, the Supreme Court steered clear of that landmine and dodged using the
words “summary judgment based on admission” in its judgment. The Supreme Court simply
entered “summary judgment” in favour of Springfield. But in the light of the
distinction between summary judgment (Order 14) and judgment on admissions
(Order 23) as demonstrated above, the appropriate judgment that should have
been entered for Springfield (based on BOST’s admission of part of Springfield’s
claim), if any, was judgment on admissions and not summary judgment. Therefore,
the Supreme Court also fell into an egregious error when it entered summary
judgment, instead of judgment on admissions, for Springfield. So, as the Supreme
Court was running away from the monster called “summary judgment based on
admission,” it caught its trouser leg on the barbed wire of “summary judgment,”
making its 100-metre sprint an exercise in futility. More so in futility
because, as it has emerged, final judgment on the merits in Springfield v BOST
was given in June, 2020. The Supreme Court’s impugned summary judgment now
remains of academic value only.
5.
Interest at 19%
on the US dollar – Ghana, the richest bankrupt?
From the judgment, the High Court initially awarded
Springfield about US$20 million judgment debt by way of summary judgment
against BOST. This amount was later reduced to about US$11 million when BOST
challenged the summary judgment. From the judgment, the 19% was alleged to be
the interest rate on some loan Springfield had taken from Fidelity Bank. BOST
protested Springfield’s use of the 19% interest rate to calculate the interest
accrued since BOST was not a party to any such loan agreement and could not be
bound by any such interest rate. The High Court[27]
rejected the 19% interest rate used by Springfield and rather adopted the United
States Federal Reserve lending rate of interest.
From the judgment, the
19% interest rate was Springfield’s own creation and it was not based on any
agreement Springfield had with BOST. The 19% interest stated in Exhibit C and
all the various letters written by Springfield and attached to the application
for summary judgment were self-serving, at best.[28] It
is regrettable that the Supreme Court sought to give judgment for US$11,104,143.29
plus interest at 19% a year, thereby giving its blessing to such a palpable
illegality. For good measure, the Supreme Court added its own relief known as “plus
the additional interest pursuant to the default interest clause in Exhibit ‘C’
the bank credit facility.” Ghana must certainly be the richest bankrupt nation
in the world.
What is the rate of interest payable on a US dollar
debt incurred in Ghana? In National Investment
Bank Ltd v Silver Peak Limited,[29]
the Supreme Court held that, the rate of interest payable on a US dollar debt
is the United States Federal Reserve lending rate. It is also common knowledge
that in Ghana, the commercial banks’ rate of lending on the US dollar is
averagely around 12%-13%. So, if the debt-ridden, DDE-bound, IMF-pupil called
Ghana can be saddled with a 19% interest rate on US dollar debt “to date of
final payment” to a private company, then the DDE[30]
participants should expect repayment on their bonds to begin in 2057, not 2027.
F:
Conclusion
On 7th December, 2022, the Supreme Court
gave judgment in favour of Springfield in Springfield
v BOST for certain reliefs. But it has emerged that the High Court had
earlier given judgments (the “summary judgment on admission” in 2016 and the
judgment after trial in 2020) in respect of the same reliefs which the Supreme
Court sought to re-confer, as it were, on Springfield. In the final analysis,
the Supreme Court’s judgment also sought to give some reliefs to Springfield
that the latter was not entitled to receive. Before arriving at their judgments,
there were several missteps in the processes and procedures adopted by the High
Court and the Supreme Court. Unfortunately, the Supreme Court failed to address
those issues, including giving judgment for an amount that had already been
claimed and paid, and so on.
The last time
Ghanaians thought their moneys were leaking through the courts, they birthed a
Citizen Vigilante and a Sole Commissioner. Thus, we should not be surprised to
see Justice Yaw Appau and my senior learned friend, Dometi Kofi Sokpor, Esq. being
called to national duty once again via their Sole Commission. Before then, if our Citizen Vigilante is not
too tired from his post- Special Prosecutor exploits, he may give us a second
dose of Amidu
(No. 1) v Attorney-General, Waterville Holdings (BVI) Ltd & Woyome (No. 1).[31]
When
lower courts err in their decisions, the Supreme Court is always at hand to set
things right as was the situation in cases such as Ex parte Minister of the Interior, Amidu (No. 1) v Attorney-General, Waterville
Holdings (BVI) Ltd & Woyome (No. 1), African Automobile Limited v
Attorney-General[32]
and many others. But when it
is the Supreme Court itself that goes wrong in its orders and judgments, who
will guard the guards themselves?
THE END.
FOOTNOTES
[1]
The expression, ‘Quis custodiet ipsos custodes’ - translated
into English as ‘Who will guard the guards themselves’ - was used by the Roman poet, Juvenal, to
question the integrity of guards posted to ensure his wife's fidelity.
The expression is generally used to describe a situation in which a person or
body having power to supervise or scrutinise the actions of others, is not
itself or themselves subject to supervision or scrutiny. Source: https://www.iclr.co.uk/knowledge/glossary/quis-custodiet-ipsos-custodes/
(Accessed on 9th February, 2023)
[2]
Dictum of Toulson, LJ in R (Guardian
News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420; [2013] QB 618
[3] Civil Appeal No.
J4/33/2022 judgment dated 7th December, 2022, SC (unreported)
[4] In
practice, most
likely to have been read by the Presiding Justice
[5]
The High Court was constituted by Asiedu, J (as he then was)
[6]
This is the case under discussion in this article. The full citation is Springfield
Energy Ltd & Another v Bulk Oil Storage & Transport Co. Ltd Civil Appeal No.
J4/33/2022 judgment dated 7th December, 2022, SC
[7] The Supreme Court panel that handled the case comprised of Anin Yeboah, CJ (Presiding), Gabriel Pwamang, Prof. N. A Kotey, Tanko Amadu and Prof. Henrietta Mensa-Bonsu, JJSC
[8]
The short, one and half page decision given in court was likely to have been
read by the presiding Justice, Anin Yeboah, CJ
[9] The
unanimous opinion of the Supreme Court was written by Tanko Amadu, JSC
[10] From “The Prologue to the Canterbury Tales” by Geoffrey Chaucer, English poet (1343 – 1400) Source: https://quotepark.com/quotes/1169880-geoffrey-chaucer-if-gold-rusts-what-then-can-iron-do/ (Accessed on 9th February, 2023)
[11] Civil
Motion No. J5/ 10/ 2018 ruling dated 8th March, 2018, SC (unreported) (Coram: Ansah,
JSC (Presiding), Gbadegbe, Benin, Appau,
Pwamang, JJSC) See: the dictum of Benin, JSC, who wrote the unanimous opinion
of the Court
[12]
Coram: Angelina Mensah-Homiah, JA (sitting as an additional High Court Judge)
[13] An
ineffectual legal judgment
[14] See: Daniel Gibson Danso v Intecell
Investment Ltd. & 3 Others Civil
Motion No. J4/32/2020 ruling dated 11th November, 2020, SC; Ballast Nedam Ghana BV v Horizon Marine
Construction Ltd [2010] SCGLR 435; Sanunu v
Salifu [2009] SCGLR 586; Cecil
Ocran v Rachel Lamptey & 2 Others Suit No. AC 270/2010 ruling dated
19th July, 2010, HC (Coram: Asiedu, J. (as he then was)) In Oyoko Contractors v Starcom Broadcasting Services [2003-2005] 1 GLR
445, SC, the Supreme Court allowed the appeal and held that, since the
allegation of fraud in the defendant’s counterclaim raised triable issues, the
High Court did not have jurisdiction to grant the application for summary
judgment; Sadhuwani v Al-Hassan
[1999-2000] 1 GLR 19 at 25, CA
[15] Civil Appeal No. J4/66/2018 dated 23rd
January, 2019, SC
[16] Order
11 rule 17 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47)
[17] [2013-2014] 2 SCGLR 946. See also: Ebenezer Kwaku & 2 Others v Mankralo
Tetteh Otibu IV Civil Appeal No. J4/53/2021 judgment dated 7th July,
2021, SC, by Appau, JSC; Dr. Edward
Acquah & Others v Edward Kwasi Santeng Civil Appeal No.
J4/36/2019 judgment dated 25th November, 2020, SC ; Sasu v Amua-Sekyi [2003-2004] SCGLR 742, dictum of Date-Bah, JSC at
771; Amuzu v Oklikah [1998-1999] SCGLR 141 at 174; Asamoah
v Setordzie [1987-1988] 1
GLR 67, SC; Atta v Adu [1987-1988] 1 GLR 233, SC; Samasinghe v SbaitI
[1977] 2 GLR 442; Order 11 rule 8 (1) of C.I. 47 on the need to plead certain
matters such as performance, release, any limitation provision, fraud or
illegality. But as was held in the above cited cases, failure to plead is not
crucial. Courts of justice must always
strive to strike a proper balance between substantive justice and procedural
law
[18]
Same for negligence; see: Banahene v
Shell Ghana Limited [2017-2018] 2 SCGLR 338 at 371, by Benin, JSC on
failure to plead negligence not being fatal. For fraud, see additionally: Amuzu v Oklikah [1998-1999] SCGLR 141 at 183 thus: “In this case,
fraud has not distinctly been pleaded as the practice requires. But … it can be
said that where there is clear but unpleaded evidence of fraud, like any other
evidence not objected to, the court cannot ignore the same…;” Edward Nasser & Co. Ltd. v McVroom &
Another [1996-1997] SCGLR 468; Apeah
& Another v Asamoah [2003-2004] 1 SCGLR 226
[19]
See: Order 14 rule 1 of C.I. 47
[20]
See: Order 23 rule 6 (1) & (2) of C.I. 47. Again, where
a party fails to respond to a ‘notice to admit,’ such a default will be taken to
constitute an admission of the particular fact or facts which he was requested
to admit and he will face the sanction of a judgment on admissions. For an
in-depth overview of the principles on judgment on admissions, see: Ecobank Nigeria PLC v Hiss Hands Housing
Agency & Access Bank Ghana Ltd Civil Appeal No. J4/49/2016 judgment
dated 6th December, 2017, SC (dictum of Gbadegbe, JSC)
[21] Suit
No. H1/250/2010 judgment dated 14th April, 2010, CA (dictum of Ofoe,
JA). The High Court judge who saved Ghana a whopping GH¢14 million was Gertrude
Torkornoo, J (now a Justice of the Supreme Court). African Automobile Limited
filed a further appeal to the Supreme Court. The appeal was dismissed in African Automobile Limited v Attorney-General Civil Appeal No. J4/23/2012 judgment dated 6th June,
2012, SC. The case of African Automobile Limited v
Ministry of Information & Attorney-General appeared to have been a dress-rehearsal for
the subsequent case that led to Amidu
(No. 1) v Attorney-General, Waterville Holdings (BVI) Ltd & Woyome (No. 1)
[2013-2014] 1 SCGLR 112 (popularly known as the “Woyome Case”) and allied cases
[22]
See: Orders 19 and 20 of C.I. 47
[23] [2009]
SCGLR 670
[24] [2013-2014] 1 SCGLR 208
[25] [2019]
JELR 65218, HC
[26]
Suit No. IL/122/2019 ruling dated 6th May, 2022, HC (Coram: Frank
Aboadwe-Rockson, J.)
[27] By its judgment of 29th June, 2020 given by Angelina Mensah-Homiah, JA. In most cases where plaintiffs have made claims for debts due and owing based principally on their letters to the defendants, the Courts have described such letters as “one-sided,” and have mostly shot down such claims. Typical examples are: Tamakloe & Partners Unlimited v GIHOC Distilleries Co. Limited Civil Appeal No. J4/70/2018 judgment dated 3rd July, 2019, SC; dictum of Amegatcher, JSC (who, according to Wikipedia, https://en.wikipedia.org/wiki/Nene_Amegatcher (accessed on 12th February, 2023) turned 70 years old on 3rd February, 2023. We wish Justice Amegatcher a happy retirement pursuant to article 145 (2) (a) of the 1992 Constitution); Addo Atuah & Co. v Euroget de Invest, SA Suit No. RPC/141/2014 judgment dated 23rd December, 2015, HC, (Coram: Asiedu, J. (as he then was)). It is in the light of these decisions that it is surprising that in Springfield v BOST, the Supreme Court was more than excited to give judgment in favour of Springfield based on its ‘one-sided’ letters, and in the teeth of vehement opposition by BOST
[29] [2003-2004]
2 SCGLR 1008
[30]
It refers to the domestic debt exchange programme introduced by the Ministry of
Finance recently whereby the Government was proposing to defer payment of
interest and principal on Government bonds till 2017 and beyond.
[31] [2013-2014] 1 SCGLR 112
[32] Civil Appeal
No. J4/23/2012 judgment dated 6th June, 2012, SC
