AGYEKUM vs. ASAKUM ENGINEERING AND CONSTRUCTION LTD. [1991]DLSC1965

Date	1991-03-11
Suit No.
Citation No.	[1991]DLSC1965

ADADE AG JSC

C.J JSC

FRANCOIS JSC

AMUA-SEKYI JSC

AIKINS J.S.C.

ADJABENG J.A.

A. L. DJABANOR (WITH HIM KORNOR) FOR THE APPLICANT.

W. A. N. ADUMUA-BOSSMAN FOR THE RESPONDENTS.

[1991]DLSC1965
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AGYEKUM<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ASAKUM ENGINEERING AND CONSTRUCTION LTD.<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1992] 2 GLR 635<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 11 MARCH
1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>A. L. DJABANOR (WITH HIM KORNOR) FOR THE APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

W. A. N. ADUMUA-BOSSMAN FOR THE RESPONDENTS. <o:p></o:p>

ADADE AG. C.J, FRANCOIS, AMUA-SEKYI, AIKINS J.S.C. AND ADJABENG
J.A. <o:p></o:p>

</div>JUDGMENT OF ADADE AG. C.J.<o:p></o:p>On 17 July 1990 this court gave judgment in the above appeal. The
defendant who lost on a majority of 3-2, has now applied to the court asking
that the decision (obviously that of the majority) be reviewed in his favour.
The application is opposed by the plaintiff company.<o:p></o:p>Apart from the material which was before the court, and on the
basis of which the appeal was determined, the parties have filed a large number
of other documents and deposed to other facts in affidavits in support of their
several positions. The parties adopted the same strategy when the case was
before the Court of Appeal where a quantity of fresh evidence was introduced by
way of additional documents and allegations in affidavits from the two sides.
This state of affairs has not helped in a proper determination of the appeal,
and constitutes a serious indictment on the procedure by which a final judgment
was obtained in the court of first instance. Judgment was given on the
pleadings, instead of after a full-dress hearing. It would seem that except in
the clearest of cases, courts should desist from giving final judgments by the
short route, if they are not to deny themselves the opportunity of basing their
judgments on “all the evidence.”<o:p></o:p>Since Pomaa v. Fosuhene [1987-88] 1 G.L.R. 244, S.C, when this
court decided to restate and preserve its inherent powers to review its own
decisions in appropriate cases, we have not found it necessary to overturn any
decision given by us. We have, time and again, indicated that we have not
preserved that power merely to create opportunities for parties to invite a
second judgment in every appeal. The cases we have dealt with so far have been
principally, cases where the judgments appealed from were the result of
pleadings, a full hearing, addresses by counsel, etc. The Fosuhene case (supra)
and a few others were original applications before this court, and do not
compare with substantive appeals from courts below. In those original applications,
the initial decisions were made by us, and were based on facts in affidavits
put before us by the parties. There had been no question of any of the parties
being denied a proper opportunity to make his case. The same applies to
substantive appeals coming to us from below. In this case, however, judging
from the spate of documents and new evidence being thrown in at every stage, it
is clear to all that we are handling a peculiar and exceptional situation.<o:p></o:p>For example, in the course of arguing against this application,
Mr. Adumua Bossman, for the respondent-company, maintains that the valuation of
the company’s assets and shares, ordered by the High Court in November 1985,
had indeed been done, even at the time we were hearing the appeal in June 1990.
Unfortunately, this is not what the record revealed to us. On the contrary, it
showed that it had not been done, and this was put to a certain conduct on the
part of the plaintiff-company.<o:p></o:p>Secondly, it turns out that even though the plaintiff-company sued
the defendant as “shareholder and general manager of the plaintiff-company”
their counsel persists in maintaining that the defendant does not own any
shares in the company. How the company came to sue him as “shareholder” is a
mystery, and requires some explanation.<o:p></o:p>Thirdly, these persons purporting to represent the
plaintiff-company would seem to concede that if indeed they too have formed a
company in competition with the plaintiff-company, then they have no better
moral authority to represent the company than the defendant has. In argument,
counsel for the plaintiff-company denies that such a rival company has been
formed. He says that the allegation is unfounded. Is this not a matter which
can be resolved only on evidence, particularly as the defendant-appellant has
filed some documents which would appear to point in a different direction?<o:p></o:p>The claim by the plaintiff-company is based on their allegation
that they are the owners of the properties in question. Paragraph (7) of the
defendant’s statement of defence pointedly denies that the plaintiffs are the
owners. It says:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(7) The defendant does not owe the plaintiffs any sum whatsoever
and neither are the machines those of the plaintiffs until the Government
through immigration authority has paid all creditors of the plaintiffs and
released its options on the machines.”<o:p></o:p>