Who will guard the guards themselves? – An appraisal of Springfield v BOST

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 GH20,000 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.

 

  1. 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

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