GENERAL COLD INDUSTRY LIMITED. v. STANDARD BANK GHANA LIMITED AND OTHERS [1982-83] GLR 360

DIVISION: HIGH COURT, ACCRA

DATE: 31 JULY 1980

BEFORE: TAYLOR J.

CASES REFERRED TO

(1) Pennie v. Egala [1980] G.L.R. 234.

(2) Bonsu v. Bonsu [1971] 2 G.L.R. 242.

(3) Dakar Ltd. v. ICAP [1981] G.L.R. 453.

(4) Gurtner v. Circuit [1968] 1 All E.R. 328; [1968] 2 Q.B. 587;[1968] 2 W.L.R. 668; [1968] 2 Lloyd’s Rep. 177; 112 S.J. 73, C.A.

(5) Quao v. Squire [1978] 2 G.L.R. 270.

(6) Thoroughgood’s Case (1584) 2 Co. Rep. 9a; 76 E.R. 408.

(7) Sanders v. Anglia Building Society [1971] A.C. 1004.

(8) Republic v. Greater Accra Regional Commissioner; Exparte Naawu III [1976] 2 G.L.R. 25.

(9) J. (An Infant), Re [1960] 1 W.L.R. 253; [1960] 1 All E.R. 603; 104 S.J. 232.

(10) Rossage v. Rossage [1960] 1 W.L.R. 249; [1960] 1 All E.R. 600; 104 S.J. 231, C.A.

(11) Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All E.R. 810, H.L.

(12) Assam Railways and Trading Co., Ltd. v. Inland Revenue Commissioners [1935] A.C. 445; [1934] All E.R. Rep 646; 103 L.J.K.B. 583; 152 L.T. 26; 50 T.L.R. 540; 18 T.C. 509, H.L.

[p.364] of [1982-83] GLR 360

(13) Letang v. Cooper [1964] 2 All E.R. 929; [1965] 1 Q.B. 232; [1965] 3 W.L.R. 573; [1964] 2 Lloyd’s Rep. 339; 108 S.J. 519, C.A.

(14) Richards v. McBride (1881) 8 Q.B.D. 119; 51 L.J.M.C. 15; 45 L.T. 677; 46 J.P. 247; 30 W.R. 120, D.C.

(15) Young & Co. v. Royal Leamington Spa Corporation (1883) 8 App. Cas. 517; 52 L.J.Q.B. 713; 49 L.T. 1; 47 J.P. 660; 31 W.R. 929, H.L.

(16) Magor & St. Mellons R.D.C. v. Newport Corporation [1951] 2 All E.R. 839; [1952] A.C. 189; 115 J.P. 613, H.L. affirming [1950] 2 All E.R. 1226, C.A.

(17) Vickers, Sons and Maxim, Ltd. v. Evans [1910] A.C. 444; sub. nom. Evans v. Vickers, Sons & Maxim, Ltd. affirming [1910] 1 K.B. 554.

(18) London County Council v. Aylesbury Dairy Co., Ltd. [1898] 1 Q.B. 106; 67 L.J.Q.B. 24; 77 L.T. 440; 61 J.P. 759.

(19) Sam v. Comptroller of Customs and Excise [1971] 1 G.L.R. 289.

(20) Eastman Photographic Materials Co., Ltd. v. Comptroller-General of Patents, Designs and Trademarks [1898] A.C. 571; 67 L.J.Ch. 628; 79 L.T. 195; 47 W.R. 152; 14 T.L.R. 527; 15 R.P.C. 476, H.L.

(21) Heydon’s Case (1584) 3 Co.Rep. 79; 76 E.R. 637.

(22) Bishop v. Deakin [1936] 1 Ch. 409; [1936] 1 All E.R. 255; 105 L.J.Ch. 193; 154 L.T. 691; 100 J.P. 201; 52 T.L.R. 284; 80 S.J. 165.

(23) Pye v. Minister for Lands for New South Wales [1954] 1 W.L.R. 1410; 98 S.J. 802, P.C.

(24) Yates v. R. (1885) 14 Q.B.D. 648; 54 L.J.Q.B. 258; 52 L.T. 305; 49 J.P. 436; 33 W.R. 482; 15 Cox C.C. 686; sub. nom. R. v. Yates 1 T.L.R. 193, C.A.

(25) Whittam v. W.J. Daniel & Co., Ltd. [1962] 1 Q.B. 271; [1961] 3 W.L.R. 1123; [1961] 3 All E. R. 796, C.A.

(26) Republic v. Attorney-General; Ex parte Quaye Mensah [1979] G.L.R. 429, C.A.

NATURE OF PROCEEDINGS

ORIGINATING SUMMONS by the plaintiff-company for the proper construction of LI 1216 and AFRCD 31 wherein the Attorney-General was joined as a co-defendant.

COUNSEL

Dr. Seth Twum (with him Ben Addae) for the plaintiff.

Mrs. Quayson for the first defendant.

Patrick Djamson for the second defendant.

Mrs. Zwennes, Senior State Attorney, for the co-defendant.

[p.365] of [1982-83] GLR 360

JUDGMENT OF TAYLOR J.

The issues involved in this suit are in my respectful opinion quite simple and indeed straightforward. Affidavits however have been sworn to by the defendants the effect of which is to give an impression of complexity and to tend to create some confusion. It seems to me in the circumstance that if the facts which are admittedly not in dispute are kept constantly in mind then there will be no difficulty in searching for the legal principle which ought to be brought to play in deciding this action. The plaintiffs commenced this action against the first and second defendants by originating summons. The plaintiffs who are a limited liability company are called “General Cold Industry Ltd.” The name is very important and its very words are crucial to the determination of the issue which arises in this case. It is therefore very important at the very commencement of this judgment to note that, that name is the name which, in compliance with the statutory requirements of the Companies Code, 1963 (Act 179) is registered with the Registrar of Companies.

As I have pointed out, this suit was commenced by originating summons. Apparently on 20 August 1979, the erstwhile Armed Forces Revolutionary Council, at that time exercising legislative powers in this unhappy Republic, amended legislative instrument to the schedule to the Assets and Bank Accounts Decree, 1972 (NRCD 8) by the Assets and Bank Accounts (Schedule) (Amendment) (No.15) Instrument, 1979 (LI 1216). By this amendment the name of a company “General Cold Co., Ltd.” was added to the schedule and thus the bank accounts, if any, of the said company were frozen.

The date of the Gazette notification of this instrument was 14 September 1979. And so from that date it became unlawful for any bank with which the said company had an account to permit the company to operate its accounts. Furthermore, on 10 September 1979 by the Transfer of Shares and Other Proprietary Interests (A & B Industries and Others) Decree, 1979 (AFRCD 31), all shares, debentures, securities and proprietary rights of the said company called in the Decree “General Cold Co., Ltd.” which were held in or for and on behalf of the company by any person were transferred to the State. This Decree was made retrospective with effect from 20 August 1979, but the date of its Gazette notification was 21 September 1979. When the effect of these enactments was brought to the notice of the first defendants, who are the bankers of the plaintiffs, on 23 August 1979 by the Bank of Ghana, the second defendants, they, the first defendants, thought the matter did not affect the plaintiff-company and they continued to permit it to operate its accounts. The letter from the Bank of Ghana is as follows:

[p.366] of [1982-83] GLR 360

“BEX/13/Vol.6/7.

23 August 1979.

The Executive Director,

Standard Bank Ghana Ltd.,

Head Office,

Accra.

Dear Sir,

RESTRICTION ON TRANSFER OF ASSETS

I write with reference to the Attorney-General’s letter No. S.I. 1/79 dated 23 August 1979 to inform you that the government has decided that the assets and bank accounts of the following companies should be frozen.

(1) Textiles Trico Manufacturing Co.

(2) Nsawam Foam Co., Ltd.

(3) City Commercial Co.

(4) City Auto Parts Supplies Ltd.

(5) Ghana Manufacturing Co., Ltd.

(6) Broadway Co., Ltd.

(7) Golcha Films.

(8) Ghana Mosquito Coil Factory.

(9) George Stores.

(10) El Sombrero Restaurant.

(11) General Cold Co., Ltd.

(12) West Africa Shrimping Co., Ltd.

(13) Lift Paper Bag Factory Ltd.

(14) A & B Industries.

(15) Wire & Metal Industries.

(16) Ghana Electromechanical Industries.

I shall be grateful if you will bring this to the notice of your branches accordingly. Yours faithfully,

(Sgd.) A. A. Tetteh.

Chief Examiner of Banks”

On 16 October 1979, the first defendant wrote to the second defendants as follows:

[p.367] of [1982-83] GLR 360

“Standard Bank Ghana Limited,

Our Ref: Secretary/EKAA/EMK P. O. Box 768,

Head Office, Accra.

16 October 1979.

The Chief Examiner of Banks,

Bank of Ghana,

Accra.

Dear Sir,

RESTRICTION ON TRANSFER OF ASSETS

By your letter reference BEX/13/Vol.6/7 dated 23 August 1979 you directed that the assets and bank accounts of the under-mentioned companies should be frozen:

(1) Lift Paper Bag Factory Ltd.

(2) General Cold Co., Ltd.

(3) Wire & Metal Industries.

(4) Ghana Mosquito Coil Factory.

Our Accra High Street Branch keeps accounts in the following names: (1) Lift Paper Bag Co., Ltd. (2) General Cold Industry Ltd., (3) Wire and Metal Products Ltd. (4) Ghana Mosquito Coil Factory Ltd. and we are wondering if these companies are the same ones as those listed above.

Please treat this matter as urgent as we may be exposed to legal action if we dishonour cheques drawn on the accounts in our books.

Yours faithfully,

(Sgd.) Secretary cc: The Manager,

High Street Branch.”

Ultimately on 26 November 1979 the second defendants wrote to the first defendants in these terms: [p.368] of [1982-83] GLR 360

“BEX/13/Vol.6/44

26 November 1979.

The Executive Director,

Standard Bank Ghana Ltd.,

Head Office,

Accra.

Dear Sir,

RESTRICTION ON TRANSFER OF ASSETS

Further to my letter ref. No. BEX/13/Vol.6/7 dated 23 August 1979, and with reference to yours No. EKAA/EMK dated 9 November 1979, I forward herewith, a photocopy of a letter received from the Attorney-General’s Department in connection with the following companies whose assets have been confiscated to the State:

(1) Lift Paper Bag Co., Ltd.

(2) General Cold Industries Ltd.

(3) Wire and Metal Products Ltd.

(4) Ghana Mosquito Coil Factory Ltd.

The letter is self-explanatory and I shall be grateful if you will study it carefully and bring it to the notice of your branches.

Yours faithfully,

(Sgd.) A. A. Tanor for: Chief Examiner of Banks”

In forwarding this letter to the executive director of the first defendants, the second defendants enclosed a copy of a letter addressed to the Bank of Ghana from the Acting Solicitor-General, Mr. C.H.A. Tettey, dated 21 November, 1979. The letter is as follows:

“Office of the Attorney-General,

P.O. Box M. 60,

Accra.

21 November, 1979.

My Ref. L. 33/79

Dear Sir,

RESTRICTION ON TRANSFER OF ASSETS

I wish to confirm that the assets of the following companies have been confiscated to the State: [p.369] of [1982-83] GLR 360

(1) Lift Paper-Bag Company Limited,

(2) General Cold Industries Limited,

(3) Wire and Metal Products Limited, and

(4) Ghana Mosquito Coil Factory Limited.

Please note that even though some of the companies may have been slightly misdescribed, for example, by the omission of the word “Limited,” this is simply a matter of misdescription and not mistaken identity. The Attorney-General has directed that the attention of the banks should be drawn to the penalties prescribed by Transfer of Shares and Other Proprietary Interests (A & B Industries and Others) Decree, 1979 (AFRCD 31) and that anyone who contravenes the provisions of the Decree should be prosecuted.

Yours faithfully,

(Sgd.) C.H.A. Tettey

Acting Solicitor-General cc The Chief-Examiner of Banks,

Bank of Ghana,

Accra.”

On 29 November 1979 after receiving these letters from the Bank of Ghana, the first defendants wrote to the plaintiffs’ solicitors that they would no longer permit them to operate their account because of the said letters they had received from the Bank of Ghana. In view of this the plaintiffs took out an originating summons under Order 54A, r. 2 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), contending in effect that their legal right to operate their account with the first defendants, based on their contractual relationship with the said first defendants has been infringed by the first and second defendants ostensibly on the authority of AFRCD 31 and L.I. 1216. They therefore seek the assistance of the court for the determination of the following questions:

“That upon the true construction of –

(i) The schedule to the Assets and Bank Accounts Decree, 1971 (NRCD 8) as amended by the Assets and Bank Accounts (Schedule) (Amendment) (No.15) Instrument, 1979 (L.I. 1216); and

(ii) The Transfer of Shares and Other Proprietary Interests (A & B Industries & Others) Decree, 1979

(AFRCD 31)

[p.370] of [1982-83] GLR 360 the plaintiff-company is not one of the companies or enterprises listed in the said schedule.” They also ask for the following two declarations:

“(1) A declaration that the first defendant’s refusal to permit the plaintiff to operate its banking account with the first defendant by reason of a letter they received from the Acting Solicitor-General dated 21 November 1979 and headed “Restriction on Transfer of Assets” is unjustified and amounts to a breach of contract.

(2) A declaration that any directive, instruction or order given by the second defendant to the first defendant to freeze the plaintiff’s banking account with the first defendant is without just cause and the same is null and void.”

Order 54A, r. 2 of LN 140A is as follows:

“2. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of a statute, may apply by originating summons for the determination of such question of construction, and for a declaration as to the right claimed.”

There was a feeble attempt in the course of the hearing to stultify the proceedings by contentions on behalf of the Attorney-General and the Bank of Ghana that this action should be commenced by writ and not by originating summons. Now it is clear that the facts of the case are not in dispute. It is equally clear also that all that the plaintiffs are asking for is a declaratory judgment and nothing more and this is based squarely on the true construction of the enactments they want the court to interpret. I think Order 54A, r. 2 is ideal for this purpose. As Cecilia Koranteng-Addow J. delivering her judgment in Pennie v. Egala [1980] G.L.R. 234 remarked at p. 244:

“Order 54A, r. 2 gives discretionary powers to the court to declare the legal or equitable rights of a party upon the construction of a statute. It is clear that only declaratory judgments may be given . . .” Since the prayer of the plaintiffs is ideally suited to this procedure, I think the court’s discretionary power should be exercised in their favour particularly as the procedure by writ, will only cause delay and cannot advance the course of justice. In any case, this contention was not seriously pursued. At the commencement of the action there were only the first and second defendants, but the Attorney-General representing the Republic applied to be joined as a co-defendant in view of the fact that the

[p.371] of [1982-83] GLR 360

Republic was contending that the assets of the plaintiff-company had been forfeited to the State and the Republic was therefore an interested party. Having regard to the provisions of Order 16, r. 11 of LN 140A and my judgments in Bonsu v. Bonsu [1971] 2 G.L.R. 242 and Dakar Ltd. v. ICAP [1981] G.L.R. 453 as well as the views of Lord Denning M.R. in Gurtner v. Circuit [1968] 1 All E.R. 328 at p. 332, C.A., I granted the application and the Attorney-General was by the order of this court dated 21 April 1980 made a co-defendant in the suit.

It would be recalled that in Gurtner v. Circuit (supra) at p.332, C.A. Lord Denning M.R. indicated the consideration that ought to influence the court in granting joinders. He said:

“. . . when two parties are in dispute in an action at law and the determination of that dispute will directly affect a third person in his legal rights or in his pocket in that he will be bound to foot the bill, then the Court in its discretion may allow him to be added as a party on such terms as it thinks fit.” Since the Republic claims that all the assets of the plaintiffs are forfeited to it, I allowed it to be joined. Subsequently, the Bank of Ghana applied to be struck out of the action on the ground as stated by their counsel that their role in the whole affair was a conduit pipe, passing on to the first defendants, without any comments, the decision of the government conveyed to the bank by the Attorney-General’s Office. Counsel appearing for the Bank of Ghana also pleaded non est factum. I refused the application because it was resisted by the first defendants and the Attorney-General. In resisting the application, the first defendants argued that the Bank of Ghana has, by virtue of the Banking Act, 1970 (Act 337), supervisory and superintending authority over their operations and that they were obliged to obey instructions or directions from the Bank of Ghana. They indicated that they acted in the matter on the instructions of the Bank of Ghana and were in the circumstance entitled to be indemnified, if it was held that they had acted wrongly. The representative of the Attorney-General, Mrs. Zwennes, also stressed the statutory supervisory powers which the Bank of Ghana had over the first defendants, the Standard Bank (Ghana) Ltd. I confess I did not in any way whatsoever appreciate or grasp the relevance of the plea of non est factum which counsel saw fit to urge upon this court on behalf of the Bank of Ghana. In Quao v. Squire [1978] 2 G.L.R. 270, I endeavoured to canvass the true legal ambit of the plea of non est factum. I recall tracing the course of the non est factum plea from its historical origin in the medieval common law through its sixteenth century exposition by Lord Coke [p.372] of [1982-83] GLR 360 in Thoroughgood’s Case (1584) 2 Co. Rep. 9a., to its modern formulation in the House of Lords in Saunders v. Anglia Building Society [1971] A.C. 1004. In my view, that plea would seem to be far-fetched in these proceedings.

Be that as it may, the uncontroverted facts which I have set down in this judgment are in my opinion the only relevant facts which need to be considered in deciding this case. However, as I have already pointed out elaborate affidavits were sworn to on behalf of the defendants and the Attorney-General and the arguments of the defendants, particularly the co-defendant, the Attorney-General, were founded on the implications of the facts contained in these affidavits. Since the whole foundation of the argument of the Attorney-General’s representative in these proceedings would seem to rest on these matters sworn to in the affidavits, it seems to me that I have a duty to consider them.

Two affidavits stand out as the foundation of the argument advanced on behalf of the Attorney-General. That argument is that I must for “General Cold Co., Ltd.” appearing in L.I. 1216 and AFRCD 31 substitute “General Cold Industry Ltd.” I therefore set down these affidavits hereunder. The first one was sworn to on 25 June 1980 by a Mr. Moses Kotey Djabatey who described himself as the law clerk in the Attorney-General’s Department and it reads:

“I, Moses Kotey Djabatey of the Attorney-General’s Department make oath and say as follows:

(1) I am the law clerk in the Attorney-General’s Department and have the authority of the

Attorney-General to swear to this affidavit on his behalf.

(2) That on 21 April 1980, the application by the Attorney-General to be joined as a defendant in the above suit was granted by the court.

(3) That on 6 May 1980 all documents filed in respect of the said above suit were served on the

Attorney-General by the plaintiff.

(4) That on 6 May 1980, the Attorney-General entered an appearance to the originating summons filed in the said above suit by the plaintiff.

(5) That I am informed and verily believe that the commencement of this action by an originating summons by the plaintiff is not the proper course for an action of this nature for the reason that the main point at issue is not one of construction of a statute nor is it one of pure law but rather fact. The action should therefore be commenced by a writ of summons.

[p.373] of [1982-83] GLR 360

(6) I am informed and verily believe that a search of the register of companies kept at the Registrar-General’s Department, Accra, has revealed that the following five companies, namely—

(a) Lift Paper Bag Company Limited;

(b) General Cold Industry Limited;

(c) Wire and Metal Products Limited;

(d) Ghana Mosquito Coil Factory Limited; and

(e) A & B Industries Limited are the only companies with such names registered with the

Registrar-General.

I am further informed and verily believe that the following five companies:

(a) Lift Paper Bag Factory Limited;

(b) General Cold Company Limited;

(c) Wire and Metal Industries Limited;

(d) Ghana Mosquito Coil Factory; and

(e) A & B Industries Limited; which appear in the Transfer of Shares and Other Proprietary Interests (A & B Industries and Others) Decree, 1979 (AFRCD 31) and Assets and Bank Accounts (Schedule) (Amendment) (No.15) Instrument, 1979 (LI 1216), have never been registered with the Registrar-General.

(8) Furthermore, that I am informed and verily believe that section 15 (2) of the Companies Code, 1963 (Act 179), expressly prohibits the registrar from registering any company which has a name “which in the opinion of the registrar is misleading or undesirable. “Once the registrar had registered the said five companies referred to in paragraph (6) above, he was prohibited from registering new companies under the names which appear in the said AFRCD 31, since those names are significantly similar to the already registered companies as to be misleading and undesirable.

(9) That I am informed and verily believe that the said AfRCD 31 could not have been directed against non-existent companies. If the Decree is given such an interpretation the result would be one of absurdity or impossibility and the courts have construed statutes to avoid absurdity and to give them validity rather than invalidity.

[p.374] of [1982-83] GLR 360

(10) That I am informed and verily believe that there has been a misdescription in the names of the five companies specified in the said AFRCD 31 which is such however that the true companies intended are apparent and it is impossible to be intended of any other companies although the right names of the companies have not been precisely followed.

(11) That I am informed and verily believe that by virtue of AFRCD 31 the said five companies referred to in paragraph (6) are no longer privately owned and their assets have been confiscated to the state.

(12) That I am informed and verily believe that the Acting Solicitor-General in issuing the advisory legal opinion contained in his letter of 21 November 1979 was acting on the instructions of the Attorney-General the Chief Legal Adviser to the Government of Ghana. The second defendant—the Bank of Ghana as a corporate entity fully owned by the Government of Ghana was in duty bound to follow any such directive issued by the Attorney-General through the Acting Solicitor-General.

(13) That I am informed and verily believe that the directive, instruction or order given by the second defendant to the first defendant to freeze the plaintiff-company’s banking accounts with the first defendant was with just cause and legally binding by virtue of the said AFRCD 31.

(14) That I am informed and verily believe that upon the true construction of the said AFRCD 31 and the said LI 1216 the said five companies referred to in paragraph (6) are the companies listed in the schedule to the said AFRCD 31.

(15) Wherefore I swear to this affidavit.

(Sgd.) M.K. Djabatey

DEPONENT.

Sworn in Accra this 25 day of June 1980.”

In the course of the argument I threw hints at counsel that in my view Order 38 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), may present considerable difficulty when I come to consider the argument founded on the affidavit. The argument nevertheless proceeded on the assumption that Order 38 is not relevant. I am afraid in view of the authorities I cannot accept that assumption. Order 38, r.3 is as follows:

[p.375] of [1982-83] GLR 360

“3. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. Provided that on interlocutory proceedings or with leave under Order 30, Rule 2, or Order 37, Rule 1, an affidavit may contain statements of information and belief, with the sources and grounds thereof.” In this case the proviso does not apply. In Republic v. Greater Accra Regional Commissioner; Ex parte Naawu III [1976] 2 G.L.R. 25 at pp. 31-32, I had occasion to consider an affidavit containing hearsay matters. I drew attention to the English High Court case of In re J. (An Infant) [1960] 1 W.L.R. 253 where Cross J. had expunged such hearsay material from the proceedings, and I discussed briefly the English Court of Appeal case of Rossage v. Rossage [1960] 1 W.L.R. 249, C.A. in which Hodson L.J. with whose decision Omerod and Wilner L.JJ. concurred, held that such hearsay matters were inadmissible contrary to what would seem to be the decision of Barnard J. at first instance in the High Court. I specifically recalled calling counsel’s attention to Rossage v. Rossage (supra). In the Republic v. Greater Accra Regional Commissioner; Ex parte Naawu III (supra), paragraph (4) of the affidavit in opposition therein contained hearsay matter and after discussing the English case I have referred to herein I recall saying at p. 32:

“These English decisions were founded on the English Supreme Court Rules, the relevant rule being the same as our Order 38, r.3 above. In my view our corresponding rule is subject to the same interpretation. If this is the case then clearly since by our rules of court, hearsay matqer should not be included in an affidavit, paragraph (4) of the affidavit in opposition becomes unnecessary and should be ignored.” Applying the reasoning for rejecting the affidavits in these decided cases, it is clear that the relevant paragraphs of Mr. Djabatey, the law clerk’s affidavit, all contain nothing but hearsay matters. Consider paragraphs (5), (6), (7), (8), (9), (10), (11), (12), (13), and (14). In all these paragraphs the deponent avers that he was informed. The matter is not within his own knowledge. Even if the proviso were applicable he would be obliged to disclose his sources. These sources were never disclosed. I fear these hearsay matters must be expunged from the record and the case decided without them.

The second affidavit sworn to and filed on behalf of the Attorney-General is from one Squadron Leader Frank Darko Kumi and it states:

[p.376] of [1982-83] GLR 360

“I, Squadron Leader Frank Darko Kumi of the Ghana Armed Forces make oath and say as follows:

(1) That I am a member of the special tribunal and was responsible for forwarding reports on the investigation of companies and industries to the erstwhile Armed Forces Revolutionary Council and have the authority of the Attorney-General to swear to this affidavit.

(2) That the five companies, namely, Ghana Mosquito Coil Factory, General Cold Company Limited, Lift Paper Bag Factory Limited, Wire and Metal Industries and A & B Industries as specified in the Transfer of Shares and Other Proprietary Interests (A & B Industries and Others) Decree, 1979 (AFRCD 31) which were confiscated to the State by the said AFRCD 31 as a result of inquiries held by the erstwhile Armed Forces Revolutionary Council are in fact the same companies as:

(a) Lift Paper Bag Company Limited;

(b) General Cold Industry Limited;

(c) Wire and Metal Products Limited;

(d) Ghana Mosquito Coil Factory Limited; and

(e) A & B Industries Limited.

(f) Registered with the Registrar-General.

(3) That I am informed and verily believe that a search of the Registrar-General’s Department, Accra revealed that there are no other companies with names similar to those used in the said AFRCD 31.

(4) That the said five companies referred to in paragraph (2) above were not in fact conducting their business lawfully as stated in paragraph (4) respectively of the affidavits of Victor Kwasi Mensah, Raoph Mends Odro, Joseph Eaddool, Emmanuel Kwabena Dufu and Michel Beyloune since the said companies were investigated by the erstwhile Armed Forces Revolutionary Council and found to have indulged in currency trafficking, tax evasion, under-invoicing and over-invoicing.

(5) That John or Jean Assi who is a director of General Cold Industry Limited, Lift Paper Bag Company Limited, Ghana Mosquito Coil Factory Limited, Wire and Metal Products Limited and A & B Industries Limited was investigated by the erstwhile Armed Forces Revolutionary Council in relation to his directorships in the companies and found to have indulged in currency trafficking, tax evasion., under-invoicing and

[p.377] of [1982-83] GLR 360 over-invoicing. Certified true copies of the directors of General Cold Industry Limited, Lift Paper Bag Company Limited, Ghana Mosquito Coil Factory Limited, Wire and Metal Products Limited and A & B Industries Limited are attached and marked F, G, H, I and J.”

(6) Wherefore I swear to this affidavit.

(Sgd.) F. Darko Kumi

DEPONENT.”

This affidavit is interesting. Apart from paragraph (3) which contains direct hearsay matter and which must therefore in accordance with the principle I have already canvassed in this judgment, to be expunged, the affidavit sets out four matters. The deponent states boldly that:

(1) The General Cold Company Ltd. is the same as the General Cold Industry Ltd.

(2) The company was confiscated to the State as a result of inquiries held by the erstwhile Armed Forces Revolutionary Council.

(3) The company was not conducting its business lawfully since the company was investigated by the

Armed Forces Revolutionary Council and it was found that it had indulged in currency trafficking, tax evasion, under-invoicing and over-invoicing.

(4) John or Jean Assi who is a director of the company was investigated by the erstwhile Armed Forces Revolutionary Council in relation to his directorship and he was found to have indulged in currency trafficking, tax evasion, under-invoicing and over-invoicing.”

On statement (1), I am unable to understand the purpose for which Squadron Leader Frank Darko Kumi was encouraged to swear to an affidavit and offer his opinion that the “General Cold Company Limited” is the same as the “General Cold Industry Ltd.” Whether it is or it is not, is the precise question which this court is called upon to determine and to succumb to the proposition that any person or authority other than the court has power in these proceedings to answer this question is a really dangerous course. It is certainly not conducive to the development of a healthy legal system. This power of the court to construe statutes is not shared by any other agency in any constitutional democracy in the common law world. Lord Wilberforce in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All E.R. 810 at p. 828, H.L. examined this power of the court and observed: [p.378] of [1982-83] GLR 360

“This power which has been devolved on the judges from the earliest times is an essential part of the constitutional process by which subjects are brought under the rule of law . . . and it would be a degradation of that process if the courts were to be merely a reflecting mirror of what some other interpretation agency might say.”

And having canvassed the legal and constitutional considerations which animate the judges in their task of interpretation he concluded at p. 828:

“It is sound enough to ascertain, if that can be done, the objectives of any particular measure, and the background of the enactment; but to take the opinion, whether of a Minister or an official or a committee, as to the intended meaning in particular applications of a clause or a phrase, would be a stunting of the law and not a healthy development.

All the other statements mentioned investigations by the Armed Forces Revolutionary Council. The results of these investigations and the reports, if any, which were prepared to evidence the investigations were not made available to this court. If however they had been made available, I will still be obliged to consider their significance in these proceedings. What is the purpose for which my attention was drawn to these investigations? If it is to enable me to understand the back-ground and surrounding circumstances in order to enable me to construe the statute, then in principle there is no objection to these reports being made available to this court although in these proceedings they were conspicuously absent. Even then, I think as an aid to interpretation the said reports will only be relevant, if there is an ambiguity and the reports are accepted not for the purpose of proving the intention of the legislature, but for purpose of providing the necessary background. This view is clearly brought out in Assam Railways and Trading Co., Ltd. v. Inland Revenue Commissioners [1935] A.C. 445 at p. 458, where Lord Wright in the Privy Council said:

“It is clear that the language of a Minister of the Crown in proposing in Parliament a measure which eventually becomes law is inadmissible and the Report of Commissioners is even more removed from value as evidence of intention . . .”

The Assam Railway case (supra) was quoted with approval by Lord Denning M.R. when delivering his judgment in the English Court of Appeal in Letang v. Cooper [1964] 2 All E.R. 929, C.A. In Black-Clawson v. Papierwerke (supra) the law lords were agreed that reports can be looked at to discover the mischief which the

[p.379] of [1982-83] GLR 360

Act was intended to meet. However, Lord Reid and Lord Wilberforce (with Viscount Dilhorne and Lord Simon of Glaisdale dissenting) held that it was not permissible to look at such reports for a direct statement of what the enactment means. In the present case, the reports were not made available to me and so I do not feel called upon to decide the issue on which the House of Lords disagreed, as to whether it will be proper to look at such reports as evidence of intention particularly in cases where there is no ambiguity in the enactment. I will leave this issue for the appropriate occasion in the appropriate court. In any event, I am unable to see what the allegations of unlawful practices have with the case in hand. There is no preamble to these enactments to show that unlawful practices had anything to do with the enactments. In fairness to the parties therefore I am unable to presume misconduct in the absence of admissible evidence. This is especially so when lawful or unlawful conduct can have no relevance to the plain meaning of legislation. Besides, these allegations of unlawful practices seem to be hearsay and on the basis of the principle I have already canvassed when considering Order 38, r.3 of LN 140A, I think I ought not to consider them.

With the affidavits sworn on behalf of the Attorney-General disposed of, I am now left to consider the application on its merits. On the face of it L.I. 1216 and AFRCD 31 do not concern the plaintiffs’ company which was registered as “General Cold Industry Ltd.” That company is not mentioned at all in these two enactments. The submission of Counsel for the Attorney-General as I understand it is that I must substitute for “Company” the word “Industry” and then the enactment will cover the plaintiffs. If I put this kind of construction on the words, I would be supposing that the legislature has made a mistake. Counsel, however, retorted that it was not the mistake of the legislature but that of the draftsman. Accepting that it is the mistake not of the legislature but of the draftsman, what is the legal consequence? Grove J. in Richards v. McBride (1881) 8 Q.B.D. 119 at pp. 122-123 faced with this kind of presumption that the legislature or the draftsman may have made a mistake said:

“. . . No one could put such a construction on the words unless by supposing they were a mistake. But we cannot assume a mistake in an Act of Parliament. If we did so, we should render many Acts uncertain, by putting different constructions on them according to our individual conjectures. The draftsman of this Act may have made a mistake. If so, the remedy is for the legislature to amend it. But we must construe Acts of Parliament as they are, without regard to consequences, except in those cases where the words used are so ambiguous that they may be

[p.380] of [1982-83] GLR 360 construed in two senses, and even then we must not regard what happened in Parliament, but look to what is within the four corners of the Act . . .”

This question of mistake is a very serious matter and I cannot understand how it ought to operate to damnify the citizen. The legislature with all the State apparatus at its disposal is alleged to have made a mistake or its draftsman has made a mistake. What prevents it from correcting its own errors? The law is that if the legislature has made a mistake where there is no ambiguity in the expression used, the remedy is in an amending Act. The legislature ought to know that that is the law and I must keep that in mind when construing these enactments. As Lord Blackburn said in the Privy Council in Young & Co. v. Royal Leamington Spa Corporation (1883) 8 App. Cas. 517 at p. 526: “we ought in general, in construing an Act of Parliament, to assume that the legislature knows the existing state of the law.” The proposition that if there is in effect a mistake then legally the remedy lies in an amending Act finds support in the famous view of Lord Simonds in Magor & St. Mellons R.D.C. v. Newport Corporation

[1951] 2 All E.R. 839 at p. 841, H.L. It would be recalled in that case that Lord Denning at the Court of Appeal in [1950] 2 All E.R. 1226 at p. 1236 had said of the duty of the court interpreting statutes: “We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.” Lord Simonds criticised this dictum very vehemently and ended up by observing, “If a gap is disclosed the remedy lies in an amending Act.”

What Lord Simonds was driving at is that it was not competent to read words into an Act of Parliament without reason, and the reason must itself be found in the Act itself. This view is consistent with authority and in Vickers, Sons & Maxim Ltd. v. Evans [1910] A.C. 444 at p. 445, the Lord Chancellor, Lord Loreburn expressed the same sentiments when he warned,”… we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.” I have not been shown any reason contained in L.I. 1216 or AFRCD 31 why I must substitute for “Company” the word “Industry.” If I did so, I will not be heeding the warning given by Lord Loreburn over 70 years ago. I will be legislating and not interpreting.

I think I must not also lose sight of the fact that this is a penal legislation. It seeks to confiscate the assets of citizens. I will not subscribe to the view that it must be construed strictly because I think [p.381] of [1982-83] GLR 360 the modern tendency is to construe all legislation amply and beneficially for the purpose of giving effect to the intention of the legislature as is revealed in the enactment. Nevertheless, I think, for penal legislation, there is a rule of long standing which was succinctly expressed by Wright J. in London County Council v. Aylesbury Dairy Company Ltd. [1898] 1 Q.B. 106 at p. 109. He there said: “I have certainly always understood the rule to be that where there is an enactment which may entail penal consequences, you ought not to do violence to its language in order to bring people within it, but ought rather to take care that no one is brought within it who is not brought within it in express language.” In her submission, however, Mrs Zwennes appearing for the Attorney-General indicated that in Sam v. Comptroller of Customs and Excise [1971] 1 G.L.R. 289, a decision of the High Court delivered by me, I had conceded that it is legitimate to alter the language of statutes so to avoid absurdity and she said that Ghana Cold Company Ltd. is a non-existing company and presumably to avoid the absurdity of freezing and confiscating the assets of a non-existing company, I should alter “Company” to “Industry” so that the legislation can cover an existing company.

I think a close reading of Sam v. Comptroller of Customs and Excise (supra) does reveal that I was at pains to demonstrate that the intention of the legislature must be discovered from the enactment itself. It is only if that intention is discovered in the enactment itself, but the words give rise to absurdity or repugnancy or something opposed to good sense, that the words may be altered to give effect to the legislative intention so discovered. The exercise postulate a position where there is ambiguity and where the legislative intent is indeed discoverable by reading the enactment. If there is in point of fact no ambiguity then no question of construction arises and the interpreter merely construes the words in their ordinary meaning following the rule enunciated almost 400 years ago by the Barons of the Exchequer in Heydon’s Case (1584) 3 Co. Rep. 79.

In this case it is clear and unambiguous that the assets of “General Cold Company Ltd.” have been frozen and subsequently forfeited to the State. I do not know whether in the office of the Registrar of Companies there are companies with a combination of names resembling that of this company. For the purpose of argument suppose there are companies like these:

(1) General Cold Enterprises Ltd.

(2) General Cold Industries Ltd.

(3) General Cold Traders Ltd.

(4) General Cold Industry Ltd.

[p.382] of [1982-83] GLR 360

By what canon of logic or principle of construction am I constrained to substitute the fourth company and not the first, second or third. I confess it is an impossible task and I do not think it is a legitimate exercise of the function of interpretation to engage in this hazardous exercise. The exercise will turn me into a legislator.

A list of authorities were cited in this case. Mrs. Zwennes cited for instance the dictum of Lord Halsbury in Eastman Photographic Materials Co., Ltd. v. Comptroller-General of Patents, Designs and Trademarks [1898] A.C. 571 at p. 575, P.C. where he seemed to indicate that reports of commissions are a useful and accurate source of information regarding the evil or defect which an enactment is designed to meet and therefore recourse to the report for such purpose is not objectionable.

I have already considered the legal position of reports of commissions and Lord Halsbury’s dictum does not contradict the principle herein considered. She also cited Bishop v. Deakin [1936] 1 Ch. 409; Pye v. Minister for Lands for New South Wales [1954] 1 W.L.R. 1410 at p. 1423; Yates v. R. (1885) 14 Q.B.D 648 at p. 655; and Whittam v. W.J. Daniel & Co., Ltd. [1962] 1 Q.B. 271 and the decision of Charles Crabbe J.A. in the case of Republic v. Attorney-General; Ex parte Quaye Mensah [1979] G.L.R. 429, C.A. The Deakin case (supra) is a decision of Clawson J. and it did not in any way impugn the recognised legal position which I have canvassed in this judgment that a departure from the language of an enactment can be sanctioned in cases where there is a good reason for doing so, which is apparent from the four corners of the enactment. The decision of Charles Crabbe J.A. (as he then was) in the Quaye Mensah case (supra) would seem to militate against any alteration of an enactment in order to cover a person not within its terms and scope by the clear wording of the enactment. That case does not support the contention of the third defendant. All the other cases do not in any way cast doubt on the principle of interpretation which I have been at pains in discussing in this judgment.

In the circumstances I hold that upon their true construction the plaintiff-company is not one of the companies listed in the schedules to L.I. 1216 and AFRCD 31. I also declare that the first defendant’s refusal to permit the plaintiff-company to operate its banking account with the first defendants is unjustified and amounts to a breach of contract.

The second declaration has given me much anxiety. A close reading of the correspondence which passed between the first defendant and the second defendant does show that the Bank of Ghana merely passed on information which the third defendant, the Attorney-General, conveyed to them. As Mr. Djamson unsuccessfully maintained when he applied to be struck out, it seems the Bank of [p.383] of [1982-83] GLR 360

Ghana scrupulously refrained from giving any instructions, directives or orders and merely passed on the Attorney-General’s Office letters like a post office.

The Bank of Ghana acted more or less like “a conduit pipe” to borrow Mr. Djamson’s expression and it is only now that I am beginning to understand the rather untidy defence of non est factum which the Bank of Ghana attempted to put forward. Its comments on the letters, if any, would seem to be merely advisory.

In any case, the circumstance shows that the Bank of Ghana never at any stage of the correspondence with the first defendant direct or give instructions or order that the account of the plaintiffs, the General Cold Industry Ltd. should be frozen. In the result, I am unable to make any declaration against the Bank of Ghana since the affidavits and the arguments disclose no directive, instruction or order given by the second defendant, the Bank of Ghana, to the first defendant. There will therefore be no declaration in respect of the second declaration sought against the Bank of Ghana.

There is therefore judgment for the plaintiffs against the first and third defendants, that they are not one of the companies listed in the schedules to L.I. 1216 and AFRCD 31. There will also be a declaration in their favour that the refusal of the first defendant, the Standard Bank (Ghana) Ltd., to permit the plaintiffs to operate their account is unjustified and amounts to a breach of contract. The affidavit evidence however is insufficient to enable me to make a declaration that the second defendant gave any directive, instruction or order to the first defendant without just cause. As no declaration is made on this it means that the second defendant succeeds against the plaintiffs and judgment is accordingly given for the second defendant against the plaintiffs.

I must say that Mrs. Zwennes for the Attorney-General and Dr. Seth Twum for the plaintiff-company argued this case with commendable learning. Mrs. Zwennes in particular faced with an apparently difficult legal situation was undaunted in exploiting all permissible legal arguments that could persuade the court to adopt her view of the matter. Her effort is a brilliant example of what advocacy should be and it is a healthy contribution to a proper advancement of the rule of law. For this reason it is with considerable regret that I find myself unable to accept her view. As I have already pointed out, judgment is given for the plaintiff-company against the first and second defendants and judgment is given in favour of the second defendant, the Bank of Ghana, against the plaintiff-company in terms already indicated in this judgment.

Costs are hereby awarded as follows: To the plaintiff-company against the first defendant ¢750; and against the third defendant ¢500. By consent, the second defendant, the Bank of Ghana will have their costs against the plaintiff-company fixed at ¢500.

[p.384] of [1982-83] GLR 360

Judgment accordingly.

DECISION

Judgment for plaintiffs against first and second defendants.

Judgment in favour of second defendant against plaintiffs.

E. P. -T.