 |
 |
 |
The Commercial Case Law Index is a collection of judgments from African countries on topics relating to commercial legal practice. The collection aims to provide a snapshot of commercial legal practice in a country, rather than present solely traditionally "reportable" cases. The index currently covers 400 judgments from Uganda, Tanzania, Nigeria, Ghana and South Africa.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-matter expert postgraduate students from the University of Cape Town.
Koduah v General Legal Council (Ruling) (J8/54/2017) [2017] GHASC 35 (27 April 2017); 
CL Index Jurisdiction International law Human Rights Special Leave to Appeal Appeals and reviews Civil ProcedureThe application was lodged as a response by the applicants (General Legal Council) to a decision of the Court of Appeal setting aside orders granted to them allowing for the suspension of the respondent from legal practice. The applicants sought leave to appeal against this decision.
In response, the court began its adjudication from the position that a special leave application is not concerned with substantive issues but rather with whether it satisfies the case law principles that there must either be (a) a prima facie error on the face of the record, or (b) a general legal principle arising for the first time, and or (c) that the Supreme Court decision on the appeal would be advantageous to the public.
The court assessed the grounds propounded by the applicants which in essence included allegations of fundamental errors that go to jurisdiction and which a determination by the Supreme Court would be advantageous to the public. The court reasoned that these issues were so important that a decision on them would have a public good. It therefore decided to allow the application.
Ecobank Ghana Limited v Aluminium Enterprise Ltd (Ruling) (J7/5/2015) [2017] GHASC 40 (23 March 2017); CL Index Review of Judgment Appeals and reviews Civil ProcedureThis case concerned the reversal of a judgment handed down in this court by a single judge in terms of article 134(b) of the 1992 Constitution. Furthermore, the order handed down was non-executable and that the court erred in ordering the suspension of a non-executable order. Article 134 (b) prescribes what a three-judge panel may do after hearing an application brought by a party who is aggrieved with the decision of a single judge. The court considered whether a three-judge panel should apply the conditions applicable by an appeal or a review or a combination of the two. It was found that an application of this nature couldn’t be treated as an appeal since the full record of appeal will not have been placed before the court. It was therefore found that it should be treated as a special review, considering all factors and merits of the case. Therefore, all rules on review should largely apply. The court found that where there is no executable order from the decision of the court below, this court cannot make an order to stay execution. The court found that the decision by the single judge did not disclose what factors were taken into consideration to enable him to conclude that it was fair to grant the application. Thus, the record did not disclose any special circumstances. Application granted.
Dadazie II v Arthur and Others (J4/20/2016) [2017] GHASC 4 (26 January 2017); CL Index Second Appeal Appeals and reviews Civil Procedure Res Judicata Principles Civil ProcedureThe case concerned the parameters for determination when faced with a second appeal, as well as the elements to establish a plea of res judicata.
It was found that there are 4 instances when concurrent findings can be interfered with namely: 1) where the findings of the trial court are unsupported by evidence on record or where reasons in support of the finding are unsatisfactory, 2) where a principle of evidence has been improperly applied, 3) where the findings are based on a wrong proposition of law, and 4) where the finding is inconsistent with crucial documentary evidence on record.
In the second appeal it was argued that the matter was res judicata. Thus, that the matter has already been determined between the same parties before a competent court. The essential elements to establish for a plea of res judicata are: 1) there has been an earlier decision on the issue, 2) there has been a final judgment on the merits and 3) the same parties in both suits. The court found that the matter was not res judicata as although premised on similar facts with the same parties, the merits of the action differ. Furthermore, the court found that the decision of the lower court was perverse and unsupported by the evidence.
Appeal succeeds.
Wedzi v Hotel Majorie 'Y' Ltd (J4/45/2013) [2017] GHASC 42 (08 December 2017); CL Index Grounds of Appeal Appeals and reviews Civil ProcedureThe respondent sought to introduce a new ground of appeal before the Supreme Court and the appellate court without doing so before the trial court.
The court considered whether the new ground of appeal relating to the regularity of the sale of shares belonging to the respondent’s deceased father could be raised as part of the respondent’s case.
The court held that a party is not permitted to raise on appeal an issue that they failed to raise during the trial.
Upon examining the rules regulating appeals, the court stated that r 8(8) does not override r 8(7) and that the court has discretion to whether to allow the introduction of a new ground or not. The Supreme Court stated that in the interests of justice and permission from the Constitution, it would give a ruling on the new ground. The court was of the view that the trial court had already made a ruling regarding the regularity of the sale of shares and that this ruling covered the the new ground that was being introduced.
As a result, the appeal had no merit and was dismissed.