July 7, 2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Halle and Sons A.S., a Norwegian exporter, sued Warm Weather Enterprise Ltd. and the Bank of Ghana-related 1st Respondent after fish worth US$1.5 million shipped on an avalised bill of exchange guaranteed by Volta Premier Rural Bank Ltd. was not paid. Despite initially indicating evidence would be taken on the 1st Respondent’s role, the High Court granted summary judgment to Halle and Sons on 15 May 2001. The Respondents filed extension-of-time motions in both the High Court and the Court of Appeal; the latter granted seven days’ extension, leading to a timely notice of appeal and, ultimately, the Court of Appeal’s setting aside of summary judgment and granting unconditional leave to defend. On Halle and Sons’ further appeal, the Supreme Court held that under C.I. 19 Rule 9 the prohibition that an application shall not be “made” after time concerns filing, not hearing; thus, applications filed within six months may be determined later. The Court also waived irregularities under Rule 63, rejected undue technicism, and affirmed the Court of Appeal’s judgment, dismissing Halle and Sons’ appeal.
JUDGMENT
ADINYIRA (MRS), JSC:-
“Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of a handmaid rather than a mistress, and the Court ought not be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what would cause injustice in the particular case”. Per Collin’s M.R. in, In re Coles & Ravenshear [1907] 1KB 1at page 4.
FACTS
The facts briefly are that, sometime in 1991, Halle and Sons A.S. the Plaintiff/Appellant (hereinafter Appellant) a Norwegian firm allegedly exported fish worth US$ 1,500,000.00 to a Ghanaian company, Warm Weather Enterprise Ltd., the 2nd Defendant /Respondent (herein after 2nd Respondent) on an avalised bill of exchange that was guaranteed by the erstwhile Volta Premier Rural Bank Ltd. In the intervening period the rural bank became financially distressed and the Bank of Ghana took over the operations of the rural bank. According to the Appellant despite the delivery of the fish the Respondents failed to settle the bill. The Appellant therefore issued a writ of summons on 15 December 1998 at the Accra High Court against the Respondents for the following reliefs:
i. Recovery of the sum of US$ 1,500,000.00 being the value of fish supplied to 2nd Respondent on an avalised bill of exchange guaranteed by Volta Premier Bank and accepted by 2nd Respondent.
ii. Interest on the sum of US$ 1,500,000.00 at the prevailing rate of interest from 1/6/91 to date of final payment.
iii. Damages for negligence against 1st Respondent for professional negligence.
iv. General Damages.
The 1st Respondent entered conditional appearance on 25 February 1999 and filed an application to set aside the service of the writ for disclosing no cause of action. The Court refused to grant the application and held that evidence had to be taken to determine the involvement of the 1st Respondent in the matter. The Appellant filed a summons for summary judgment under Order 14 rule 1 of L.I.1129. The 1st Respondent in an affidavit in opposition resisted the application on several grounds namely that its liability for the acts of the distressed rural bank was limited to payments of deposits to customers and to streamline the affairs of the said bank; and that the action was statute barred. In addition, the 1st Respondent filed a defence as well. The 2nd Respondent on i