COURT OF APPEAL, ACCRA
Date: 30 JULY 1974
SOWAH ANIN AND KINGSLEY-NYINAH JJA
CASES REFERRED TO
(1) Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547; 72 L.J.K.B. 271; 67 J.P. 397; 51 W.R. 337; 19 T.L.R. 266; 47 S.J. 316; 1 L.G.R. 639, C.A.
(2) Salaman v. Warner [1891] 1 Q.B. 734; 65 L.T. 132; 7 T.L.R. 484, C.A.
(3) Tawiah v. Brako [1973] 1 G.L.R. 48 3, C.A.
(4) State Gold Mining Corporation v. Sissala [1971] 1 G.L.R. 359. C.A.
(5) Isaac & Sons v. Salbstein [1916] 2 K. B. 139; 85 L.J.K.B. 1433; 114 L.T. 924; 32 T.L.R. 370; 60 S.J. 444, C.A.
(6) Blay v. Solomon (1947) 12 W.A.C.A. 175.
(7) Nkawie Stool v. Kwadwo (1956) 1 W.A.L.R. 241, W.A.C.A.
(8) Ababio v. Turkson (1950) 13 W.A.C.A. 35.
(9) In re Faithful; Ex parte Moore (1885) 14 Q.B.D. 627; 54 L.J.Q. B 190; 52 L.T. 376; 33 W.R. 438; 1 T.L.R. 263; 2 Morr. 52, C.A.
(10) Akainyah v. The Republic, Court of Appeal, 1 July 1968, unreported; digested in (1968) C. C. 105.
(11) Yanney v. African Veneer Mahogany Exporters Ltd. [1960] G.L.R.89,C.A.
(12) Re Dyson’s Trade Mark (1891) 65 L.T. 488.
(13) Re Antigen Laboratories Ltd. [1951] 1 All E.R. 110n; 211 L.T.J.12; 66 T.L.R. (Pt. 2) 107; 94 S.J. 855.
(14) Elder v. Elder and Watson, Ltd. 1952 S.C. 49; 1952 S.L.T. 122.
(15) In re Jermyn Street Turkish Baths Ltd. [1971] 1 W.L.R. 1042; [1971] 3 All E.R. 184, C.A.
NATURE OF PROCEEDINGS
APPEAL against an order of the High Court in its ruling (reported in [1974] 1 G.L.R. 374) in respect of an application under sections 218 and 220 of the Companies Code, 1963 (Act 179). The facts are sufficiently stated in the judgment of Anin J.A.
COUNSEL
U. V. Campbell and C. K. Zwennes for the appellants.
J. Reindorf and J. K. Agyemang for the respondents.
JUDGMENT OF ANIN J.A.
By a motion on notice—No. Misc. 123/72 of 23 October 1972—the appellants herein, Societe Industrielle du Levant S.A.L. (“Sidul” for short) and Mohamed Ashkar, through their attorney Mr. Samuel Okudjeto moved the court below under sections 218 and 220 of the Companies Code, 1963 (Act 179), for certain reliefs set out in the motion paper; prominent among the reliefs sought were: (i) an order directing the Registrar of Companies to appoint one or more competent inspectors to investigate the affairs of the Irani Brothers and Others Limited (the “company” for
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short); (ii) the removal of three resident directors of the company, namely, Messrs. Anthony Rachid Irani, Edmond Rachid Irani and Adnan El-Midani, as managing director and directors respectively; (iii) an order restraining the directors and shareholders from removing the said Mr. Samuel Okudjeto as a director of the company; and (iv) an order compelling the management to file an account showing particulars of purchases of wheat and of sales of flour and bran pellets. The appellants own 41 per cent of the total share capital of the company which is incorporated in Ghana and is engaged in flour milling and other ancillary enterprises. The respondents to the application are the company, the three aforementioned resident directors and the Registrar of Companies. The last-named respondent in fact took no part in the proceedings.
In support of the application, Mr. Okudjeto swore to two affidavits and gave evidence on oath. His affidavits were however described by the learned trial judge as containing mere hearsay allegations. On behalf of the respondents, the managing director (Mr. Anthony Rachid Irani) swore to a fifteen page affidavit to which was attached numerous explanatory documentary exhibits covering some 112 pages of the record in emphatic denial of charges contained in what he described as an insincere, frivolous and mischievous application. Learned counsel for the respondents also subjected the applicants’ attorney (Mr. Okudjeto) to a rigorous and far-ranging cross-examination.
From Mr. Okudjeto’s main affidavit, it emerges that the present litigation was sparked off by the discovery of a notebook containing particulars of flour evacuation from the company’s flour mill at Tema by two external directors, Messrs. Vasken Sakis Bakalian and Mohamed Ashkar, during a visit they paid to Ghana in April 1972. We gather from Mr. Okudjeto’s main affidavit that these two external directors compared the entries of flour evacuations in the said notebook with the company’s official records of flour evacuations and detected considerable discrepancies between the two sets of figures which were suggestive of the theft of the company’s flour totalling 51,295 bags valued at over 0560,000 by the respondent directors during the period between September 1971 and February 1972. Two categories of allegations were canvassed in support of the application; the first category being allegations of discriminatory and oppressive acts in removing the second appellant (Mohamed Ashkar) as a director of the company and attempts to prevent the representation of Sidul (the first appellant) on the board of directors. The second category consisted of allegations of conduct on the part of the respondent directors generally aimed at preventing the minority shareholders, i.e. both the applicants, from knowing how the company was being managed by concealing from them and denying them access to the books, accounts and other records of the company.
Under cross-examination, Mr. Okudjeto retracted the charge of the theft of flour which he had levelled against the resident directors after he had been confronted with the fact that the applicants were solely in charge of the flour mill operations during the greater part of the period covered by
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the said notebook. He then confessed that he was not claiming that the three respondent directors were responsible for any loss or theft of flour.
After an exhaustive review of the evidence and the law applicable, the learned trial judge (Hayfron-Benjamin J. in his ruling reported in [1974] 1 G.L.R. 374) dismissed the application but ordered that the applicants’ shares in the company should be purchased by the company at a valuation “in order to avoid the bickering and controversy between the shareholders.” In the course of his judgment he held, correctly in my respectful view, that the evidence required to sustain an application under section 220 (2) (a) of the Companies Code, 1963 (Act 179), was legal evidence and not mere rumour or suspicion, however, strong. Mere hearsay will not do. The applicants had not established good reason for requiring an investigation under section 220, because (a) the two external directors, who were alleged to have discovered the said notebook, neither gave evidence nor swore to any affidavit in support of the application; (b) no evidence was forthcoming from either the police or the assistant production manager (Mr. Okine) who was said to have some knowledge of the material allegations; or from the alleged compiler of the entries in the said note-book (Mr. Adu Darko) or from any other officer connected with the production of flour at the mill; and (c) none of the company’s books was tendered in evidence in support of the application. In the result, the court had been left with no legally admissible evidence as to where the notebook came from, or what it represented. Secondly, Mr. Okudjeto had in his own evidence absolved the respondent directors from personal responsibility for the alleged loss or theft of flour. No evidence of embezzlement by any director had in fact been proved; and the court could not order an investigation merely on suspicion that there may be something wrong somewhere. Thirdly, with respect to the allegation of discriminatory and oppressive acts on the part of the respondent directors in removing the second applicant from the board of directors, the learned judge held that the evidence established that at an annual general meeting held on 6 April 1972 in the presence of Mr. Okudjeto who acted as the second applicant’s proxy, a valid resolution was passed that the second applicant should be removed from the board forthwith. No representations were received from the proxy against their resolution. There was nothing wrong or improper in the manner of the removal of the second applicant as director. Class A shareholders, to which class he belonged, had at a meeting held on 14 June 1972 in the Lebanon decided to replace him with Mr. Lababidi as their representative on the board. Notice of this resolution had been duly sent to the company on 22 May 1972.
With regard to the specific charge of attempts made by respondent directors to prevent the representation of Sidul on the board, the learned judge found as a fact that the applicants were fully represented on the board throughout the period covered by the said notebook. The company was perfectly within its legal rights under section 185 of Act 179 to vote the applicants’ attorney off the board without assigning any reason therefor. The refusal of the directors to accept him as an alternate director cannot be impugned, having regard to section 188 of the Companies
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Code. The trial judge therefore held that on the totality of the evidence the charge levelled against the respondent directors that they had tried to conceal the facts concerning the running of the company’s affairs from the applicants had not been established and that the application would accordingly be dismissed.
In this appeal, the appellants have not complained about the main judgment of the court below dismissing the application. Neither was any cross-appeal filed by the respondents. This appeal was lodged on 7 September 1973, after an order granting enlargement of time within which to appeal had been obtained on 3 September 1973 from Apaloo Ag.C.J. As indicated in the notice of appeal filed, the appellants complain of only a part of the decision of the court below, namely, the order in favour of the respondents entitling them to purchase the appellants’ shares in the company. Another complaint against the costs awarded was lodged but was subsequently abandoned at the hearing and, it need no longer detain us.
Learned counsel for the respondents, Mr. Reindorf, took several preliminary objections to the competency of this appeal. Firstly, he argued that the judgment appealed against is an interlocutory decision, and that the right of appeal therefrom was extinguished fourteen days after the date thereof and could not be revived by either the court below or this court. In his submission, the operative part of the judgment of the court below reported in [1974] 1 G.L.R. 374 was the following passage at p. 388:
“My order will therefore be: I dismiss the application for orders under both section 218 and section 220 of the Companies Code, 1963. I order further that in order to avoid the bickering and controversy between the shareholders [of] the company engaged in this vital and essential industry, the company should purchase the shares of the applicants at a valuation. From any amount found due to the applicants should be deducted any amount which they might have withheld from the company from the sale of bran and the purchase of machinery and other items and commodities for the company. The company is free to go ahead and pass or otherwise consider and deal with the resolution complained of, i.e. the one which threatens to remove the applicants’ attorney from the company’s board of directors. The respondents will have their costs which I assess at 0750.00 and the company will also have its costs against the applicants which I assess at 0750.00. I formally dismiss suit No. 409/72. There will be no order as to costs in that suit.”
Mr. Reindorf submitted that both the order dismissing the appellants’ application and the consequential order directing that the company should purchase the shares of the applicants at a valuation are interlocutory and not final orders; because they did not finally settle the rights of the parties, but rather paved the way for the working out of the rights
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of the contesting parties. He cited in support of his submission the following passage from Spencer-Bower and Turner, The Doctrine of Res Judicata (1969 ed.) at p. 134, para. 166:
“There is no finality in a judicial decision which does not order the payment of any specific sum, but only of a sum to be judicially determined, assessed or, computed, at a later stage by the tribunal itself or some officer . . . or which directs a specific sum to be paid after deduction therefrom of an unspecified amount to be thereafter ascertained.”
He further drew our attention to a dichotomy in the tests applied in the decided English cases in distinguishing between final and interlocutory orders as set out in the annotation to Order 58, r. 4 contained in the pre-1965 Annual Practice (the “White Book”): see for example 1957 edition at p. 1250. The first test stated by Lord Alverstone C.J. in Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547 at pp. 548-549, C.A. is:
“Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory order.”
A different test is stated in Salaman v. Warner [1891] 1 Q.B. 734, C.A., namely, that an order is an interlocutory order unless it is made on an application of such a character that whatever order had been made thereon must finally have disposed of the matter in dispute. While the first test looks at the order made, the second pays regard to the nature of the proceedings. In Mr. Reindorf s submission, whichever test is applied to the instant judgment is immaterial, the result in this case will be the same and the orders made ought to be construed as merely interlocutory.
In reply, Mr. Campbell, learned counsel for the appellants, relied firstly on rule 29 of the Supreme Court Rules, 1962 (L. I. 218), (which apply to the Court of Appeal) which provides that:
“Whenever any doubt arises as to whether any judgment or order is final or interlocutory, the question may be determined summarily by the Court below or by the Court and any such determination by the Court below shall, notwithstanding the provisions of rule 28 be deemed to be final and binding on all parties for the purpose of determining the time within which an appeal may be brought.”
(The emphasis is mine.) In his submission, rule 29 disposes of the first objection raised. The point whether the decision appealed from was final or interlocutory was argued in the court below when the appellants’ application for enlargement of time was being heard. Mr. Agyemang, present junior counsel for the respondents, who also appeared for his clients in the court below during the hearing of the motion for enlargement of time, opposed the application, inter alia, on the ground that the ruling of Hayfron-Benjamin J. (as he then was) dated 30 March 1973 was
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interlocutory; and paragraph (3) of an affidavit in opposition sworn to by his client Adnan El-Midani on 24 August 1973 also contained a similar objection that the said ruling of 30 March 1973 was interlocutory, and that the court below was incompetent to extend the statutory period of fourteen days fixed for appealing therefrom. For the appellants, Mr. Campbell retorted that the motion for enlargement of time was in order and the court below was competent to entertain it since Hayfron-Benjamin J.’s order for the sale of his clients’ shares was final and not interlocutory; and he relied on Tawiah v. Brako [1973] 1 G.L.R. 483, C.A. In granting the motion, Apaloo Ag.C.J. (as he then was) adverted to this specific issue of the legal nature of the order made by the learned trial judge for the sale of the appellants’ shares and had no difficulty in ruling that it was a final order. If I may quote him:
“As to whether the order proposed to be appealed against was interlocutory or final Mr. Agyemang’s argument was extremely terse and it has not been made clear to me why this order was anything but final. It is possible this question may be debated again and it should suffice for me to say that, as at present advised, that order seems to me to be final.”
Having regard to the emphasized passage in rule 29 of L. I. 218 (supra), and to the fact that Apaloo Ag.C.J. resolved the doubt existing between the parties as to whether the said order was final or interlocutory in favour of the appellants and held categorically that it was a final order, his determination of this issue is, by virtue of rule 29 of L.I. 218, final and binding on both parties for the purpose of determining the time within which the instant appeal may be brought. Under the relevant rule 10 of L.I. 218, as substituted by the Court of Appeal (Amendment) Rules, 1969 (L.I. 618), the normal time laid down for the lodging of an appeal from a final decision is three months (see rule 10 (1)); but the court below or this court may, for good cause shown by the applicant for extra time, enlarge time, provided the relative application is brought within a further period of three months after expiration of the normal period of three months in the case of a final decision (see rule 10 (4)). In other words, rule 10 (4) as substituted by L.I. 618 enabled the appellants’ application for enlargement of time to be brought within six months from the date of the ruling of Hayfron-Benjamin J. (as he then was) that is, before 30 September 1973. As a matter of fact, their application for enlargement of time was filed in the court below on 31 July 1973, and was therefore brought well within the stipulated time limit. The first ground of objection raised to the competency of this appeal is as unsubstantiated as it is based on false premises. For one thing, the ruling appealed against is final, and not interlocutory; and for another, since it is a final decision, the right of appeal therefrom was not extinguished fourteen days after the date thereof, as was otherwise erroneously canvassed by the respondents. In my view, rule 29 of L. I. 218, read in conjuction with Apaloo Ag.C.J.’s said ruling sufficiently disposes of the respondents’ first ground of objection.
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However, since Mr. Reindorf addressed us at length on the legal nature and the test to be applied for distinguishing between final and interlocutory orders, I propose to state briefly my views on those matters. I agree that decided English cases are not consistent and they are not always easy to reconcile.
But as was pointed out by this court in its decision in State Gold Mining Corporation v. Sissala [1971] 1 G.L.R. 359, C.A. where the authorities were reviewed, the better test is the first one which was first laid down by Lord Alverstone C.J. in Bozson v. Altrincham Urban District Council (supra), and was expressly approved and adopted by the English Court of Appeal in Isaacs & Sons v. Salbstein [1916] 2 K.B. 139, per Swinfen Eady L.J. at p. 147, C.A. as follows:
“We have to look to the order from which the appeal was brought . . . Bozson v. Altrincham Urban District Council puts the matter on the true foundation that what must be looked at is the order under appeal.”
The Annual Practice in its annotation on Order 58, r. 4 states that this first test of Lord Alverstone C.J. is “generally preferred”: see “The White Book” (1957 ed.) at p. 1250. And in Ghana our superior courts have shown a consistent preference for this first test of Lord Alverstone C.J., namely: does the judgment or order, as made, finally dispose of the rights of the parties? If it does it is final; if it does not, it is interlocutory. Our courts have preferred to look at the order made and to decide whether the order finally disposes of the parties’ rights, rather than to adopt the unreliable test laid down in Salaman v. Warner (supra) which looks at the nature of the proceedings and answers the question, was the order made upon an application such that a decision in favour of either party would determine the main dispute? Reference may be made to the following reported cases, among others, where Lord Alverstone’s test was applied by our highest courts, namely, Blay v. Solomon (1947) 12 W.A.C.A. 175; Nkawie Stool v. Kwadwo (1956) 1 W.A.L.R. 241, W.A.C.A.; State Gold Mining Corporation v. Sissala (supra) and Tawiah v. Brako (supra).
Applying this first test, and looking at the order made in this case, I am satisfied that the order for the sale of the appellants’ shares was final, even though rule 29 of L.I. 218 makes it unnecessary for this court to decide the issue. The ruling of Hayfron-Benjamin J. (as he then was) finally disposed of the rights of the parties in this matter. The mere fact that the appellants’ shares were by the terms of the ruling to be valued, and the proceeds paid to the appellants after deductions had been made for any company funds withheld by them on the sale of bran and purchase of machinery does not detract from the finality of the order made as far as the rights of the parties are concerned. As was held in Ababio v. Turkson (1950) 13 W.A.C.A. 35, a final judgment does not mean the last judgment, but the judgment determining rights finally, such as a preliminary judgment establishing the liability to account and directing accounts to be taken. If I were deciding the issue afresh, my conclusion would be that it is a final order. Brett M. R.’s test in In re Faithful; Ex parte Moore (1885) 14 Q.B.D. 627 at p. 634, C.A. is here relevant:
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“If the Court ordered the result of the inquiries to be reported to itself before the judgment was given, it would not be a final judgment. But, if the Court orders something to be done according to the answer to the inquiries, without any further reference to itself, the judgment is final . . . “
In this matter, no further reference to the court below was contemplated by the express terms of the ruling appealed against. These remarks of mine, I hasten to emphasize, are mere obiter dicta, in view of the conclusion I have reached above on rule 29 of L.I. 218; they are made out of deference to learned counsel for their full and interesting arguments canvassed under the first ground of objection.
The next ground argued by Mr. Reindorf in support of his objection in limine to the competency of this appeal was that the enlargement of time order made by Apaloo Ag.C.J. on 3 September 1973 was invalid, since this matter was not pending before him, and since he had not seen the full record of proceedings at the time he made his said order. If I understood him correctly in his argument in support of this ground, he contended that the power conferred on the court below in rule 10 (1) of L.I. 218 to enlarge time could be exercised, not by Apaloo Ag.C.J. sitting in the High Court, but by the trial judge, Hayfron-Benjamin J. (as he then was) who had on 19 June 1973 granted the appellants’ application for special leave to apply for a review of his ruling under Order 39 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and had heard a follow-up summons for review on 25 and 26 June 1973, and had still not delivered his ruling thereon by the end of the then current legal year, that is, by 31 July 1973. As the review proceedings were pending before Hayfron- Benjamin J. (as he then was), Apaloo Ag.C.J. had no jurisdiction to entertain the enlargement application Mr. Reindorf maintained. He even doubted the competency of Apaloo Ag.C.J. to sit in the High Court, since under section 9 of the Courts Act, 1971 (Act 372), only the Chief Justice could by order transfer any case from one judge to another, and since there was nothing on the record to show that this had been done.
In my judgment, the objection raised to the competency of Apaloo Ag.C.J. to entertain the enlargement application cannot stand up to any close scrutiny. As Mr. Campbell rightly pointed out, Apaloo Ag.C.J. heard the enlargement application in his then capacity as acting Chief Justice. In fact the learned Justice of Appeal styled himself as “Acting Chief Justice” in his ruling of 3 September 1973. It is common knowledge that he is the most senior Justice of Appeal; and that he acted as the Chief Justice during the temporary absence of the substantive holder of the post from Ghana during the legal vacation of 1973. It is a rule of evidence that the courts will take judicial notice of the signatures of judges of the superior courts to any judicial or official document: see Halsbury’s Laws of England (3rd ed.), Vol. 15, pp. 341-342, para. 617. Furthermore, the fact that a person acted in an official capacity raises a rebuttable presumption of due appointment to that office, although the appointment is
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required to be by deed, and is directly in issue in the proceedings: see Halsbury’s Laws of England (supra) at p. 348, para. 628 and cases cited in the notes thereunder. Acting in a public office is evidence of due appointment in accordance with the maxim, omnia praesumuntur rite esse acta.
In the second place, section 12 (2) of the Interpretation Act, 1960 (C.A. 4), provides that:
“A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his stead, either, as the case may require, as respects the functions of the office generally or the functions in regard to which he is appointed.”
In his capacity as acting Chief Justice, Apaloo J.A. was, in my considered view, entitled as of right to sit in the High Court; since the reference to “Chief Justice” in the membership of the High Court in section 13 (1) of the Courts Act, 1971 (Act 372), includes by necessary implication and interpretation an acting Chief Justice.
In the third place, the power to enlarge time for appeal is vested by rule 10 (1) of L.I. 218 as substituted by L.I. 618, in either the court below or this court. It is not vested in a particular judge; and it is certainly not the monopoly of a trial judge. Had it been the legislature’s intention to confer the power to enlarge time exclusively on the trial judge, that would surely have been provided for, as was done for example, in Order 39, r. 1 of L.N. 140A of 1954. As a general rule, jurisdiction attaches to the court and not to a particular judge: see this court’s decision in Akainyah v. The Republic, 1 July 1968, unreported; digested in (1968) C.C. 105.
In the fourth place, Hayfron-Benjamin J. (as he then was) had by his ruling dated 30 March 1973 concluded the matters raised in the motion paper entitled Miscellaneous No. 123/72. That suit was no longer part-heard before him. The separate and later application for enlargement of time within which to appeal could, in my view, be entertained by the court below presided over by any judge of the Superior Court of Judicature. There was obviously some urgency about that application as was mentioned in the affidavit in support; and Apaloo Ag.C.J. sitting as a vacation judge, was in my respectful view perfectly right in dealing with it expeditiously. Neither party saw fit at the time to object to his taking the motion during the vacation. It still becomes the respondents to be complaining now about the expeditious manner in which the motion was disposed of.
Finally, the criticism made that Apaloo Ag.C.J. ought not to have granted the application in view of the absence of the full proceedings, is devoid of any substance or merit. Enough material for the application had been stated in the affidavits of both parties. An important reason for having pleadings is to define and narrow down the issues for trial; here the affidavits contained the relevant material for the particular application, and for the guidance of the learned judge, even if he commented adversely on both parties’ want of diligence in failing to produce more background information. This gentle judicial reproof cannot in my view afford the
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respondents either comfort or legal ammunition for the demolition of an appeal duly lodged after the grant of enlargement of time by the court below.
The last ground of objection filed and argued was to the effect that on 7 September 1973, when the notice of appeal was filed, the application for review of Hayfron-Benjamin J.’s ruling of 30 March 1973 had not yet been disposed of but was still pending; consequently, the appeal “was not properly filed and is not properly before this court.” It was contended that appeal and review proceedings cannot be taken simultaneously together. Hayfron-Benjamin J. (as he then was) had on 25 June 1973 reserved his ruling indefinately on the application for review of his order for the sale of the appellants’ shares. According to the official minute on the record, his ruling was to be given “on a date to be notified to the parties.” Incidentally, learned counsel for both parties informed us at the hearing of this appeal that neither they nor their clients had received any hearing notice of the reserved ruling since then. My attention was later drawn to the fact that Hayfron-Benjamin J. did, on 23 November 1973, give his ruling on the review application which is reported in [1974] 1 G.L.R. 389. It is indisputable that the appellants filed their motion for enlargement of time on 31 July 1973; that argument of the application was heard by Apaloo Ag.C.J. sitting as a vacation judge in the court below on 9, 15, and 29 August 1973; that his ruling was pronounced on 3 September 1973; that a notice of withdrawal and abandonment of the subsisting motion for review was filed on the same day pursuant to an order of the court below dated 3 September 1973 and that the notice of appeal herein was filed on 7 September 1973 pursuant to the grant of enlargement of time by Apaloo Ag.C.J on 3 September 1973.
In his ruling on 3 September 1973, Apaloo Ag.C.J. held that counsel for the respondents (Mr. Agyemang) was right in contending that appeal proceedings cannot be taken contemporaneously with a pending application for review and that such a course would run counter to the spirit and letter of Order 39 of L.N. 140A of 1954. But, as the learned judge rightly pointed out, the applicants had anticipated the objection and met it in advance by offering to withdraw and abandon the review proceedings. As was stated in paragraph (11) of Mr. Campbell’s affidavit of 31 July 1973 in support of the application, he was authorised to seek an order extending time within which to appeal “conditioned on the withdrawal and discontinuance of the summons for review if the court so orders.” Apaloo Ag.C.J. duly adverted his mind to the conditional nature of the application before him in his ruling and granted the motion on the express condition that the applicants do abandon and withdraw their pending application for review within three days. The appellants promptly withdrew and abandoned their pending review application the same day and filed their pursuant notice of appeal four days later. In the novel situation created by Hayfron-Benjamin J.’s indefinite adjournment of his ruling in the review application beyond the then current legal year, and due to the fact mentioned by Apaloo Ag.C.J. that the earliest date for the delivery of the reserved
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ruling would be 8 October 1973 being the first working day of the new legal year by which date the permitted maximum time limit of six months for the application of enlargement of time to appeal would have expired, the appellants had perforce to preserve their right of appeal intact by foregoing their concurrent right to a review. Time was of the essence of their appeal; and it was conceivable that the review application might be decided against them after the automatic expiry of the time limited for appeal on 30 September 1973. In the event, justice was not denied to the aggrieved appellants, nor indeed to the respondents who have no inherent statutory right to block the appeal of the aggrieved party, owners of 41 per cent shares of a company whose assets are valued at some six million cedis.
Quite apart from the modern practice of the courts of striving to do substantial justice between parties and litigants wherever possible or at any rate in the absence of mandatory statutory rules to the contrary, there is the direct authority of the former Court of Appeal (coram Korsah C.J., van Lare and Granville Sharp JJ.A.) in the case of Yanney v. African Veneer Mahogany Exporters Ltd. [1960] G.L.R. 89, C.A. which I adopt, with respect, for the proposition that the filing of notice of appeal renders the court below functus officio and terminates the trial judge’s power of review under Order 39, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). While it is the case under Order 39, r. 1 that review may be entertained where no appeal has been lodged in cases where appeal is allowed, the converse is not true. The appellate court’s jurisdiction to entertain an appeal is not ousted by the pendency of a review in the court below. Yanney’s case (supra) has demonstrated that once an appeal is lodged, the judge of the court below is incompetent to exercise his power of review in the same suit.
Furthermore Order 26 of L.N. 140A of 1954 which provides for the discontinuance of substantive actions before the receipt of the defendant’s defence is inapplicable “to an originating notice of motion [and] it would seem to any case in which there cannot be a defence”: see the annotation on the comparable English rule in the Annual Practice (1957 ed.), at p. 430 and the case of Re Dyson’s Trade Mark (1891) 65 L.T. 488 mentioned therein. I am not aware of any statutory rule of the High Court which stipulates that leave shall be first obtained before a motion, as opposed to an action, can be withdrawn or abandoned. As a matter of etiquette it is of course desirable for an applicant to inform the judge seised of a motion of his discontinuance of the same especially where a ruling has been reserved thereon after the hearing of argument. If this is done, the judge will be spared the bother of writing a ruling. But, obviously there are bound to be hard cases in practice, such as the present one, where quick remedial action will be called for, if, for example, a vested right of appeal is to be saved from lapsing by effluxion of time or on account of the prolonged absence from Ghana or indisposition of the learned judge seised of the application for review. In those cases I personally would see nothing improper or wrong in an applicant withdrawing or abandoning his pending review application and falling back on his alternative remedy of appeal. In that
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eventuality, the moment he files his notice of appeal, the trial judge’s power of review is ousted, under the rule in Yanney’s case (supra). The respondent is at liberty to make a separate application for his costs: see Re Dyson’s Trade Mark (supra), Accordingly, I would hold that on 7 September 1973 when the notice of appeal herein was filed in the court below, the learned trial judge became functus officio vis-a-vis the review application which had been pending before him. I would even hold that when the appellants filed their notice of withdrawal and abandonment of their motion for review four days earlier on 3 September 1973, the review application ceased to be pending before Hayfron-Benjamin J. (as he then was). It had been effectively withdrawn and abandoned. In the premises, I find no merit in the third ground of objection also, and I would dismiss it accordingly.
Other criticisms were levelled by Mr. Reindorf at the manner in which Apaloo Ag.C.J. exercised his discretion in granting the enlargement order, and these were set out in a fourth ground of objection filed. But as these criticisms go to the merit of the ruling and not to the ouster of jurisdiction, they are unmeritorious as objections in limine. I would accordingly dismiss all objections raised to the competency of this appeal and proceed to consider the appeal on its merits.
The only ground of appeal canvassed before us by Mr. Campbell for the appellants was that the learned trial judge, having dismissed the application for the reliefs claimed, erred in law in making the further order that the appellants’ shares in the company be purchased by the company. Three particulars of error were relied upon, namely:
(i) That the learned judge failed to appreciate that an order under section 218 of the Companies Code for the purchase of an applicant’s shares by a respondent is made in favour of the successful applicant as consequential relief to him and not by way of penalising him for bringing an unsuccessful application;
(ii) That he failed to consider and give effect to the clear words of section 218 (2) of the said Code which stated specifically that consequential relief follows only where the applicant’s grounds are found established;
(iii) That he failed to appreciate that the respondents not having themselves filed any application under section 218 of the Code no order could be made in their favour by way of relief, namely, that the appellants do sell their shares to the said respondents.
As has been earlier remarked, the appellants have not appealed against that part of Hayfron-Benjamin J.’s judgment dismissing their application; they are only aggrieved by the consequential order made by him ordering the sale of their 41 per cent shares to the company. The jurisdiction of the court under section 218 (1) of the Companies Code, 1963 (Act 179), to provide a remedy against oppression in cases where either the powers of the directors are being exercised in disregard to the proper interests of the members, shareholders, or debentureholders of the company, or some act of the company has been done or is threatened, or a resolution has
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either been passed or is prepared which unfairly discriminates against, or is otherwise unfairly prejudicial to, any member or debentureholder is not here being called into question. The appeal raises rather the important question whether a court when exercising jurisdiction under section 218 (1) is competent to make any of the orders contained in section 218 (2) if it comes to the conclusion on the evidence, as in this case, that the complaints contained in the application have not been made out and it accordingly dismisses the application. Can the court make the orders spelled out in section 218 (2), notwithstanding the fact that it has dismissed the application made under section 218 (1)? The appellants contend that the court lacks the competence to make such orders once it is satisfied that the application has not been made out; and that consequently the order for the sale of their shares made by the learned trial judge in this case is a nullity since he had dismissed their application. In Mr. Campbell’s submission, the court’s power to make the said orders under section 218 (2) of Act 179 is premised on its finding that the complaint is made out, and not otherwise. The said section 218 (2) enacts that:
“If on such application the Court is of opinion that either of such grounds is established, the Court may, with a view to bringing to an end or remedying the matters complained of, make such order as it thinks fit: and, without prejudice to the generality of the foregoing may by order,
(a) direct or prohibit any act or cancel or vary any transaction or resolution; or
(b) regulate the conduct of the company’s affairs in future; or
(c) provide for the purchase of the shares or debentures of any members or debentureholders of the company by other members or debentureholders of the company or by the company itself and in the case of purchase of shares by the company without regard to the limitations imposed by sections 59 to 63, other than subsections (4) and (5) of section 59 of this Code.”
Giving the emphasized words in section 218 (2) above their ordinary and natural meaning, I construe them to mean that the court can only make an order falling under the section 218 (2) of the Code, if, and only if, it is satisfied that the application has been made out. The order or orders it makes, if the application is in its judgment has been made out, is or are directed towards the ending or remedying of the matters complained of in the application. Once the application is dismissed as not established, there are no longer complaints pending before the court which can be terminated or remedied. It follows therefore that if it be held that the respondents did not make an “application” under section 218 (1) of the Companies Code, 1963 (Act 179), then the learned trial judge was incompetent to make the order complained of by the appellants, since their own application had been earlier dismissed. In the absence of a counter application from the respondents, the moment he dismissed the only application before him, the learned judge had no jurisdiction to make the order under section 218 (2) (c) for the sale of the appellants’ shares. In my view, section 218 (2) (c) does not stand in isolation from the rest of section 218 (2).
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Section 218 (2) (c) is in fact controlled by the conditional clause emphasized above in which section 218
(2) begins, namely: “If on such application the Court is of opinion that either of such grounds is established . . . “
The question therefore must be posed: Did the respondents make an application” of their own or did their main affidavit in reply to the appellants’ application sworn to by Anthony Rachid Irani “on the joint behalf’ of the company and the two other respondent directors amount to a counter application for the purpose of section 218 (1) and (2) of the Code? The learned trial judge was of the view that the respondents had made complaints of their own in the said affidavit of Anthony Rachid Irani. It would be here recalled that the respondents did not give oral evidence in reply to the appellants’ affidavits and the testimony of Mr. Okudjeto. As was naturally to be expected, learned counsel for the respondents agreed with the learned trial judge that their client’s affidavit constituted an application for the purpose of section 218 (1) and (2). Mr. Campbell, learned counsel for the appellants, held the opposite view. Who is right? An examination of the respondents’ affidavits is clearly called for in order to resolve this important question.
The respondents’ main affidavit filed on 1 December 1972, contained, as has already been observed 39 paragraphs covering fifteen pages of the record and supported by copious documentary exhibits occupying another 112 pages. The first part of this main affidavit attacks Mr. Okudjeto’s affidavit on a number of legal grounds, e.g. that it is full of hearsay allegations and therefore inadmissible; that it is incompetent because it is prosecuted by a director of the company acting in a professional capacity against the company, contrary to stated sections of the Companies Code; that it is frivolous and an abuse of court process since a substantive writ No. 409/1972 had been filed embodying substantially the same reliefs against almost the same persons; and that it discloses no prima facie evidence (see paragraphs (2) to (5)). Then follows a comprehensive narrative outlining the structure and shareholding of the company and the particulars of the board (paragraphs (6) to (8)). Paragraph (9) denies Mr. Okudjeto’s allegations generally and concludes that “the true position is as hereunder follows.” The course of dealing between the parties from the inception of the company to date is then recounted from paragraphs (10) to (25) inclusive. Therein we are told about the early absolute control of the management wielded by the Bakalian brothers, who alone bought the company’s machinery and wheat; sold its flour in Ghana and bran abroad; recruited its skilled personnel and dictated the company’s policy in all technical matters. Paragraph (12) contains allegations about the conclusion reached by Adnan El-Midani during a visit to Ghana in June 1971 that the two Bakalian brothers had defrauded the company and other shareholders on a massive scale by fantastic over-invoicing of machinery, etc.; systematic under-declaration of proceeds of sale of the company’s products abroad; consistent over-pricing of wheat bought abroad; and methodical diversion of flour from the factory for sale on their own account.
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Here I would comment that the allegations made in this paragraph (12), which were quoted in extenso and relied upon by the learned trial judge are mere hearsay: they are not facts within the personal knowledge of the deponent (A. R. Irani), but findings said to have been made by his co-director, Adnan El-Midani. Being hearsay averments in Irani’s affidavit, these allegations cannot form the basis of any judicial order or judgment since it is the duty of courts to arrive at their decisions upon legal evidence only: see Phipson on Evidence (10th ed.) at p. 855, para. 2053. Estimates of the losses sustained by the company as a result of the alleged predatory activities of the Bakalian brothers were made in this paragraph (12); viz. “£270,000 loss because of over-invoicing; $170,000 loss as a result of sale of bran abroad, and $240,000 declared by them but not yet surrendered to Ghana in respect of which a suit is now pending in Beirut between the company and the appellant.” In other words those complaints were before different tribunals, and consequently do not fall to be considered by the court under section 218.
Paragraph (13) discloses that action has been instituted—suit No. 434/1972—in the court below in connection with the said discoveries. Paragraph (14) states that the answer of the Bakalian brothers to queries raised by the company on Adnan El-Midani’s discoveries were still awaited. Paragraph (15) states that the company have changed their modus operandi with respect to purchase of wheat and sale of bran because of the alleged discoveries. Notwithstanding these management changes, the rights of the appellants qua directors and shareholders had not been tampered with (paragraph (16)). The present application is then attributed to a vindictive campaign on the appellants’ part to ruin the company because of their pique and fury at losing their huge and easy profit (paragraph (17)). Three counter manoeuvres of the Bakalian brothers are then described in paragraphs (18) to (20); the first being withdrawal of their personal guarantees with the Standard Bank to secure overdraft facilities for the company’s working capital; the second being their wilful refusal to repatriate to Ghana the said sum of $240,000 being the company’s external savings in respect of the sale of bran abroad; and the third being the instant application which is condemned as having been brought in bad faith in order to cripple the company. Paragraph (21) repeats the assurance that no member or director of the company is preventing the appellants from participating in the running of the company in Ghana, and that Vasken Bakalian had resigned as director of his own free will. Paragraph (22) denies that the proposed removal of Mr. Okudjeto can be a ground for an order under sections 218 and 220 of the Code. None of the applicant directors had ever been refused access to the company’s books (paragraph (23)). Mr. Okudjeto had apparently been interfering with the board and the managing director in their day-to-day running of the company, and his behaviour is claimed to be inimical to the company’s interests (paragraph (24)). Mr. Mohamed Ashkar had been removed from the board regularly and in accordance with the company s regulations, and had been replaced by Mr. Lababidi, a member of the class A shareholders (paragraph (25)).
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Paragraph (26) opens significantly thus: “Upon the facts hereinabove set out, I am advised that the charge contained in . . . Mr. Okudjeto’s affidavit can only be described as wild, irresponsible and scandalous.”
His affidavit is claimed to disclose no evidence in support of an application under sections 218 and 220. Pausing here for a moment, it would appear from the opening sentence of this paragraph that the preceding paragraphs (1) to (25) of the respondents’ affidavit were intended by them to be a comprehensive reply to the allegations contained in the appellants’ main affidavit. The question whether they were also intended to be a counter-application by the respondents is categorically answered by an all-revealing sentence in the very next paragraph, viz. paragraph (27):
“Their own misdeeds are not the subject-matter of this application, and the respondents herein are fully prepared for an investigation of the said misdeeds in the suits at present pending instituted by the company against the first applicant and Vasken Bakalian in Accra and Beirut.”
It is quite clear from this quotation that the respondents’ affidavit was not intended as a counter-application to invoke the court’s powers under sections 218 and 220 on behalf of the respondents. The latter preferred to thrash out their complaints against the appellants for their alleged misdeeds in substantive suits already commenced against them simultaneously in Accra and Beirut. The foregoing paragraphs and exhibits relied thereon constituted only a forceful and compendious reply to the appellants’ motion. They were a shield of defence and neither a sword of attack nor an application under section 218.
The remaining paragraphs of their said affidavit save paragraph (37) as well as Adnan El-Midani’s affidavit of 19 January 1973 deny distinct charges made by Mr. Okudjeto in his affidavits in support of the application, and for the most part they cover ground previously touched upon. The penultimate paragraph (37) however, contains a proposal predicated upon a condition couched in provocative language thus:
“If the applicants do not wish to remain members of the company unless the other members allow them to bleed the company white and rob the other members of their legitimate expectations from the company, then the respondents herein are prepared to buy from the applicants their minority shareholding in the company. I attach hereto marked Ml—M3 letters from the applicants herein suggesting a sale of their shares to other members of the company.”
Reading as I do, this paragraph (37) together with, and in the context of, the rest of the said affidavit, I am of the view that it does not constitute an “application” for the purpose of sections 218 and 220; neither does it confer jurisdiction on the court to expropriate the appellants of their minority shareholding in the company. Viewed even in the most favourable light for the respondents, it is in my opinion only a suggestion or proposal for the purchase of the appellants’ shares, if they do not wish to remain
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members. Nowhere in their present affidavits did the appellants state that they did not wish to remain members.
With respect, the learned judge erred in construing exhibits M1 to M3 as constituting an offer by the appellants to sell their shares in the company. The three exhibits, dated 20 March 1972, 8 May 1972, and 24 August 1972, respectively, and addressed to Mr. Simpson of Pannel Fitzpatrick & Co., amount only to an attempt at an amicable settlement and do not amount to an unconditional offer of sale of shares. In exhibit M1, P.S. Bakalian stated that they would be obliged if the auditors:
“could assess the fair selling price to enable us have our real stake in this company, since given the latest developments of divergence of opinions in the management and our being minority shareholders, we would prefer at this stage [to] dispose of our shares if possible instead of going to court and procedure [sic] to enforce our points of view in the management of the flour mill which is our speciality since many years.”
The words emphasized above by me clearly show the tentative nature of the suggestion made by the writer. In any event this conditional offer was written in order to avoid litigation. In view of the guarded words used and the qualifications contained therein, I hold that it did not constitute an offer capable of being accepted by the company.
The second letter exhibit M2 of 8 May 1972 contained the following offer:
“As matters are standing now, I have no more the right to scrutinise the proper running of the company and I would therefore by yours obliged if you would offer my shares of the company for sale according to the regulations and laws of the company.”
At the hearing of this appeal, we were informed from the Bar that under the company’s regulations an offer, if made, lapses after 60 days. The evidence does not show that the proposed offer was taken up. Obviously, if it had been accepted by the company, the court below would not have been bothered with it almost a year later. The third letter exhibit M3 of 24 August 1972 leaves the matter still unresolved. It stated as follows:
“As we are all aware, now that there has been a big divergence of opinion in the management of our company and as previously we had written you that you should evaluate the actual worth of the company and at the same time the fair selling price of the shares; and since now that we are considered a minority (this applies also to Mr. Ashkar) and the managers at the board are not considering our point of view might be it will be easier for us to sell our shares instead of complicating the existence of every one concerned by going to court.”
Here again, I hold that the writer, being concerned about the lack of rapport between his side and the management, was prepared, as at that date, to offer his shares for sale if this course could possibly avert litigation
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can it be said that litigation having subsequently sprung up between the parties, the writer should still be held to his tentative and conciliatory offer made 61 days before the filing of the motion? My answer is No! In my considered view, his proposal to the auditor was not intended as an unconditional or firm offer of sale of the shares to the company in any event. It was merely an invitation to treat to the auditor made in the agony of the moment. He was merely making an inquiry that might have led to the sale of the shares, if happily peace could be restored to the board room and litigation averted. Be that as it may, I have already held that the learned judge lacked the power under section 218 (2) to make the order for the sale of the appellants’ share since the only application before him had been dismissed as not having been made out.
Furthermore, the company herein is not competent to institute an application under section 218 (1) of the Code, since only a member or debentureholder of the company or, in cases falling under section 225, the Registrar, is exclusively empowered to prefer such an application; and since a company cannot be a member of itself, though it can be a member of another company. Paragraph (1) of A. R. Irani’s affidavit, as has already been observed, stated that the deponent had the authority of the company and his two co-directors to swear to the affidavit on their joint behalf. Even if I am wrong in my earlier analysis and Irani’s affidavit could be held to constitute an “application” in view of the fact that the company was a party to it, it could not in my view come under the ambit of section 218 since a non-member is incompetent to bring or join in an application falling under that section of the Code.
Again throughout the affidavits of A. R. Irani the allegations made related to the directors qua directors and not qua members or debentureholders of the company. Section 210 (1) of the English Companies Act, 1948 (11 & 12 Geo. 6, c. 38), is in pari materia though not co-extensive with our local section 218 (1). Our local law is wider in scope since (a) it is not necessary as it is in the English Act to show that the oppression or abuse of power is such as to make it equitable to wind up the company; (b) section 218 of Act 179 supplements “oppression” by conduct of affairs of the company or the exercise of the powers of directors in disregard of a member’s or debentureholder’s proper interests as member, shareholder or debentureholder of the company; (c) section 218 (1) (b) enables the court’s powers to be invoked in cases of unfair discrimination or prejudice to a member or debentureholder inherent in, or threatened by, some act of the company or a resolution; (d) in Ghana it is unnecessary to set out the relief sought in the application itself, as is otherwise the case in England under the rule in Re Antigen Laboratories, Ltd. [1951] 1 All E.R. 110n; and (e) in Ghana the remedy provided by the section is available to a debentureholder and not only to a member as is the case in England.
Nevertheless, as has been held in Elder v. Elder and Watson, Ltd. 1952 S.C. 49 at pp. 57-58, the section was intended to meet the case of the oppression of the members of the company in their character as such and not in their character of director or secretary or manager. Thus, where in a
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family company, the petitioning shareholders had been removed from office as directors and from employment as secretary and factory manager but there was no allegation that the business was mismanaged or that any sale of their shares by the petitioners had been refused, it was held in Elder’s case (supra) that no case for relief had been stated. Applying the ratio in Elder’s case to the facts disclosed in the respondents’ affidavits, it will be realised that the allegations made and matters raised affected the respondents qua directors and not as members or shareholders or debentureholders. A. R. Irani swore to the affidavits in his capacity as managing director and on the joint behalf of his co-directors and the company, and not in his capacity as a member. In Elder’s case, Lord Keith observed at p. 58 that:
“It is only a member who can invoke the section [apart from the Board of Trade], and, in my opinion, this means a member in his capacity as member, and further, in my opinion, his only relevant ground of complaint is oppression of his rights as a member, because of the manner in which the affairs of the company are being conducted. An employee who has been treated oppressively has no remedy under this section and a member who is an employee can, in my opinion, have no recourse to this section merely because of treatment he has suffered as an employee. The same holds, in my opinion, of a member who is a director or holds other office in the company and whose only complaint is of deprivation of such office by whatever manner achieved.”
Reference may also be made to In re Jermyn Street Turkish Baths Ltd. [1971] 3 All E.R. 184, C.A. for what conduct amounts to “oppression.”
As I have already emphasized, section 218 (2) only comes into operation if the court is satisfied that an application falling squarely within the ambit of section 218 (1) has been made out, and not otherwise. The learned trial judge unfortunately omitted to consider this aspect of the matter and in particular the limit of his powers to make orders under section 218 (2); and wrongly exercised his power after dismissing the only application before him. In so doing, he acted ultra vires. The order he made for the sale of the appellants’ shares to the company cannot therefore stand, it being incompetent and having been made without jurisdiction, having regard to the non-fulfilment of the condition precedent contained in section 218 (2).
Furthermore, it cannot be gainsaid that the order for the compulsory sale of the appellants’ shares made by the learned judge after he had dismissed their application, and indeed the only application before him, had the unfortunate result of penalising the appellants for having instituted an unsuccessful application under section 218 (1). It is inconceivable that the legislature ever intended such a punitive or inequitable consequence to flow from the dismissal of an application under section 218. That section, in my opinion, was not intended as an engine of oppression or a trap to strike terror into, and spell doom for, the unsuspecting and unsuccessful applicant.
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As an aid to construction and in order to discover the rationale and scope of section 218, we are empowered by section 19 (1) of the Interpretation Act, 1960 (C.A. 4), to refer to the lucid commentary of Professor Gower on his proposals for our Companies Code, 1963 (Act 179), in his Final Report of the Commission of Enquiry into the Working and Administration of the present Company Law of Ghana. We glean therefrom at pp. 161-162 that:
“[Section 218 (1) (a)] also covers the situation where there has been a disregard of the proper interests of members or debentureholders . . . it is not necessary, as it is under the English Act, to show that the oppression or abuse of power is such as to make it equitable to wind up the company. On the other hand, as in the English Act, application under paragraph (a) of subsection (1) is only intended to provide a remedy when there is a course of oppression or abuse and not where some isolated act of misfeasance has occurred in the past. In the latter event the member’s remedy is under section 210 or 217.
[Section 218 (1) (b)] is intended to provide a remedy in the type of case where some transaction or resolution is sought to be enjoined on the ground that it is a ‘fraud on the minority’ . . . The test of invalidity should be discrimination … or other unfairness and not the nebulous and misleading test of whether those who voted did so ‘bona fide in the interests of the company as a whole’ . . .
The Court, if satisfied that a case is made out, [under section 218 (1)] may make such order as it thinks fit . . .
The illustrations in subsection (2) [of section 218] of the type of order which may be made are not intended to be all embracing, as the final words, ‘without prejudice to the generality …’ make clear.”
(The emphasis is mine.)
On another view of the matter, I hold that it offends against the audi alteram partem rule of natural justice for the unsuccessful applicants under section 218 to be expropriated of their entire shareholding without, as in this case, having been notified of, or served with, any counter “application” they have to meet and reply to after a fair hearing.
For the above reasons, I would allow this appeal; dismiss the original application of the appellants; set aside the said order made by the learned trial judge for the sale of the appellants’ shares in the company together with the other consequential orders made, save the order as to costs. The appellants would be entitled to their costs in this court assessed at only 500.
JUDGMENT OF SOWAH J.A.
I agree.
JUDGMENT OF KINGSLEY-NYINAH J.A.
I also agree.
DECISION
Appeal allowed.
Order accordingly.
