GODKA GROUP OF COMPANIES vs. P S INTERNATIONAL LTD [1999-2000] 1 GLR 409

CASES REFERRED TO

(1) CILEV v Black Star Line [1968] GLR 481, CA.

(2) Bonython v Australia (Commonwealth et) [1951] AC 201; 66 TLR (Pt 2) 969; 94 SJ 821, PC; affirming [1948] ALR 185; [1948] ALJ 137.

(3) Boissevam v Weil [1950] AC 327; [1950] 1 All ER 728; 66 TLR (Pt 1) 771, HL; affirming [1949] 1 KB 482; [1949] 1 All ER 146; 65 TLR 197, CA; reversing [1948] 1 All ER 893.

(4) Koninklijke Zwavelzuurfabrieken V/H Ketjen NV v DA and DD Psychoyos, Piraeus, The Metamorphosis [1953] 1 WLR 543; [1953] 1 All ER 723; sub nom Metamorphosis, The (1953) 97 SJ 230; [1953] [p.413] of [1999-2000] 1 GLR 409 (5) Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd [1998-991] GLR 1, SC.

(6) Akrong v Buleysic(2) [1965] GLR 469, SC.

(7) Barrister; Ex parte A Practice Note [1961] 1 WLR 257; [1961] 1 All ER 319; 105 SJ 111. (8) Guaranty Trust Co of New York v Hannay & Co [1918] 2 KB 623.

(9) Lazard Bros & Co v Midland Bank [1933] AC 289.

(10) Davies v Randall [1962] 1 GLR 1.

(11) Berger v New York Life Assurance Co (1927) 96 LJKB 930 (1927) 96 LJKB 930. (12) Lloyd v Guibert (1965) LR 1 QB 115.

(13) Ifezue v Mbadugha (1985) LRC (Const) 114.

NATURE OF PROCEEDINGS

APPEAL by the appellant company from the judgment of the trial court, holding the appellants liable to pay the respondent foreign company the outstanding balance on the price of the goods that the respondents had shipped to and which the appellants had taken delivery of as the consignee plus interest. The facts are sufficiently set out in the judgment of Forster JA.

COUNSEL

Djabanor for the appellants.

Dr Acheampong for the respondents.

JUDGMENT OF FORSTER JA

The plaintiff-respondents (hereinafter called the respondents) are a company incorporated under the laws of the state of Indiana in the United States of America and the defendant-appellants (hereinafter called the appellants) are a Ghanaian company.

On 13 March 1987, the respondents, per their lawful attorney sued out a writ against the appellants. Indorsed in the writ was a claim for:

“(a) the sum of US$650,733.90 being the balance of debt due and owing by the defendants to the plaintiffs in respect of two separate transactions particulars whereof are set out in extenso in the statement of claim hereto annexed; and (b) interest on the said amount at commercial bank rate from 1 January 1988 to the date of judgment.”

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The particulars of the transaction, as set out in paragraphs (3) and (4) of the plaintiffs’ statement of claim were:

“(3) (a) 38,491 pairs of olive green ladies shorts at US$1.20, totalling US $46,189.20.

(b) 25 pairs of used soccer boots at US$1 totalling US$25, making a grand total of US$46,214.20 as per exhibit PSIL (a).

(4) Assorted biscuits shipped and sold to the defendants in 1,280 cartons and valued US$15,208, as per exhibit PSIL (b).”

The respondents averred that the cost of these goods purchased by the appellants was US$823 out of which part payment of US$20,088 had been made leaving a balance of US$50,733.90.

The appellants denied the claim and averred that it was agreed between the parties that the ladies shorts be shipped to the address of the appellants, for details of distribution and sale to be discussed and that the goods were never sold to the appellants. They further averred that:

“(4) when the said ladies shorts arrived in Ghana, the European manager of the plaintiffs came to Ghana. It was agreed that the defendants should try to sell or return the goods.

(5) The plaintiffs had two local representatives who were introduced to the defendants’ (Anagbo). These representatives were informed that the goods were not selling. They accordingly sent for the plaintiff manager who came to Ghana. He would not agree to the defendants’ (Anagbo) selling at reduced price, but asked his representatives to take about a dozen away to test the market. They met no success.

(6) Accordingly the defendants (Anagbo) has the said goods (ladies green pants) in his wholesale and told the plaintiffs to come and collect same from his wholesale as it is occupying valuable space.”

The appellants further averred in paragraph (7): “The wholesale was let to the plaintiffs at the rate of ¢25,000 per year.” And therefore

[p.415] of [1999-2000] 1 GLR 409 counterclaimed that the plaintiffs should remove their goods and pay rent from 31 October 1987. In paragraph (9) of the statement of defence, the appellants admitted that the consignment of biscuits arrived and were sold by the appellants (Anagbo) and they had paid to the respondents through their local representative.

After the trial, the judge entered judgment for the respondents and dismissed the counterclaim. It is from this judgment the appellants brought this appeal.

It must be observed from the outset that the action was brought against the Godka Group of Companies of which Anagbo was the managing director and it was in that capacity that any reference was made to him in the writ as “Godka Group of Companies, per the Managing Director, Godwin K Anagbo, New Town, Accra.’ This is particularly significant because the averments in the statement of defence seem to create the impression that all negotiations and subsequent developments were between Anagbo in person and the respondents, to the extent that whenever the appellants were mentioned, the name “Anagbo” immediately after appeared in bracket. In any case, it is clear that the appellants had only one identify, that of’ Godka Group of Companies and none other and that the transaction, if any, was exclusively between the respondents and the appellant-company.

Counsel for the parties duly filed their written submissions, incorporating both the original and the additional grounds subsequently filed. Djabanor, counsel for the appellants, canvassed several issues, some of which were never pleaded nor was any evidence led in support thereof. The most serious ground of all is the contention that “The judgment is against the weight of the evidence.” The import of this ground of appeal is that there was no contract between the parties so as to justify the judge’s finding that the appellants were liable for the reliefs claimed by the respondents. While the respondent claim was that they shipped the goods itemised in paragraphs (3) and (4) of their statement of claim to the appellants under a contract between them, the appellants on the other hand claimed that the parties agreed that the goods (ladies’ shorts) were to be shipped to “the address of the defendants for details of the distribution and sale to be discussed.” And later it was agreed that if the appellants failed to sell them they could return the goods. All these were as pleaded in their statement of defence.

[p.416] of [1999-2000] 1 GLR 409

The claim by the appellants that they did not receive the goods as purchasers is not borne out by the evidence. In the bill of lading, exhibit 2, “Godwin Anagbo, Godka Group of Companies” were the designated consignee. The person to be notified on the arrival of the goods was Mr Paul Penu, who was identified in this case as an agent of the respondents. The terms “consignee” and “notify address” have been legally defined in CILEV v Black Star Line [1968] GLR 480 at 485-486, CA. Amissah JA (as he then was) distinguished between the terms, when he said:

“Where the person unto whom it is stated that in this part that the goods shipped differs from the one given in the ‘notify address,’ I cannot conceive the name given in that notify address being by any stretch of the imagination described as the consignee. It is simple common sense that the consignee of the goods is the person to whom the goods are sent and not necessarily the address to be notified on the arrival of the goods at the predestined port.”

(The emphasis is mine.) Counsel’s submission therefore that “the goods were consigned to them as consignee to facilitate their clearing the goods but with Paul Penu as a notify party which is another term for owner” is a complete distortion of the meanings of the two terms as understood in mercantile law and as authoritatively construed in the Black Star Line case (supra).

The appellants were therefore, as revealed by the bill of lading, the purchasers or owners of the goods shipped under that instrument and the fact that they, and not the person named in the notify address, took delivery of the goods could be explained only on the basis that they, the appellants, were exercising their rights as owners of the goods in their capacity as consignees. It is manifestly clear that the appellants, were the importers and consignees of the goods—the olive green ladies shorts, the 25 pairs of used soccer boots and the large consignment of assorted biscuits. The goods were cleared and warehoused by the appellants.

The appellants’ case, however, was that they took delivery of the goods but never as purchasers. This assertion, however was proved false by the evidence. First, it must be noted that the bill of lading (exhibit 2) dated 4 September 1987, described the goods consigned

[p.417] of [1999-2000] 1 GLR 409 in the 20ft container No GTIU 321373-5 as 141 bales and one box and used wearing appeal (ladies’ shorts). Two invoices were issued. The first was No 71, exhibit PSIL (a) dated 2 September 1987 and marked “Container No CTIU 321373-5”, and the goods covered by the invoice were described as: “used olive green ladies shorts and used soccer boots.” The unit price was $1.20 and $1 respectively. The total price was US$46,189.20 for the shorts and $25 for the boots, making a grand total of US$46,214.20. The second invoice was No 739 and dated 15 October 1987. It was tendered as exhibit PSIL (b). The goods covered by the invoice were an obviously large consignment of assorted biscuits.

As started earlier, the goods were containerised as shown by the bill of lading. The container was numbered “OTIU 321373-5.” And the two invoices—exhibit LPSIL (a) and (b) which were issued later on 2 September and 15 October 1987 respectively, covered the goods described in the bill of lading. And what is more significant is that on each of the invoice appeared the following legend printed opposite each other. To the left “sold to” and to the right “shipped to” and between these appear “GODKA Group of Companies, P O BOX K 106, Accra, Ghana, West Africa.” Thus, it was clearly evidenced by these entries that the goods invoiced were sold and shipped to the appellants and received by them. Their disclaimer that they were not purchasers cannot therefore be true.

Another circumstance that belied the disclaimer of the appellants that they were purchasers was the fact that, although all the goods were covered by a single bill of lading and invoices with identical terms, while they admitted that in the case of the biscuits they sold them and paid the proceeds to the respondents’ local representatives, in the case of the slow moving ladies’ shorts, the appellants would insist that, in respect of those items, they were merely to keep them to be collected and sold by the respondents’ local representative. In the face of the evidence of the invoice that all the goods were shipped and sold to the appellants, their denial cannot be true.

Additionally, on 23 October 1989 the appellants sent a telex message, exhibit B, to the respondents and this was followed on 24 October 1989 by a further communication, exhibit 4, from the appellants to the respondents. The two correspondences were in identical terms. In exhibit 4 the managing director (GK Anagbo) informed the managing director PS International in respect of:

[p.418] of [1999-2000] 1 GLR 409

“Re Good supplied to Godka Group of Companies namely:

1. Second-hand clothing.

2. Biscuits.

3. Green Pants.”

Then followed the message itself:

“Please be informed that the second-hand clothing sold out. Proceeds paid to your agent Mr Apenu. We believe this account is cleared. Part of biscuits proceeds also paid to same agent. Balance of biscuits amount of US$4,500 now ready. None of the green pants sold out owing to its high price. Please advise on both biscuits cash balance now on hand and the green pants consignment.”

There is no indication by these messages that the appellants were mere warehousemen and that the goods were meant to be stocked and be sold by Mr Apenu, the agent of the respondents. The import of the message concerning the green pants was to inform the respondents that they had not been sold because the price agreed between the parties was too high. These correspondence were not even copied to the local agent of the respondents, on whose behalf the appellants claimed they were keeping them. It is quite evident, therefore, that all the goods which were delivered to the appellants were meant to be sold by them and payment made through the agent of the respondents. I find, as did the trial judge, that the appellants imported and took delivery of the goods as purchasers and not as some ware-housemen.

Mr Djabanor also submitted that Dr Acheampong lacked capacity to bring the action on behalf of the respondents as an attorney. In his view, the capacity of Dr Acheampong under a power of attorney granted him by the appellants’ company must be determined by the laws of the state of Indiana, USA, where the company is registered. In counsel’s view, the trial judge should have adverted her mind to a conflict of law situation that was involved in the resolution of the issue in this case. Counsel contended that to determine the capacity of Dr Acheampong, this court must examine the law of Indiana and apply that law by, of course, the conflict of laws concept of renvoi. Counsel argued that a corporation has no more

[p.419] of [1999-2000] 1 GLR 409 power than what the law that brings it into existence chooses to confer or vest in it.

That of course is accepted as universal. Thus the power and rights of any company incorporated in this country, must derive from the provisions of the Companies Code, 1963 (Act 179). Admittedly, in the courts of this country, and by virtue of section 54 (2) of the Court Act, 1993 (Act 459), the rules of private international law apply. Section 54(2) of Act 459 provides:

“(2) Subject to this Act and any other enactment, the rules of law and evidence (including the rules of private international law) that have before the coming into force of this Act been applicable in proceedings in Ghana shall continue to apply, without prejudice to any development of such rules which may occur.”

Thus the rules of private international law have by statute been adopted and incorporated into the laws of Ghana. But whether or not in the instant case resort must be had to any rule of private international law must depend in turn upon the identification of the proper law of the contract. That is to say, the law which the contracting parties might have decided or been deemed to have had in contemplation for the resolution of any dispute arising from their agreement. In the absence of any express intention to apply a particular legal system, the law with which the contract is most closely associated or connected, is the proper law of the contract. As stated by Lord Simonds in Bonython v Commonwealth of Australia [1951] AC 201 at 219,HL: “. . . the proper law of the contract [is] the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connexion.” In a similar vein, Denning LJ (as he then was) in Boissevain v Well [1949] 1 KB 482 at 490 emphasised the overriding consideration of substantial connection when he said, the proper law of the contract: “… depends not so much on the place where … it is to be performed, but on the place with which it has the most substantial connection.” And see also the Metamorphosis [1953] 1 WLR 543.

In the instant case, I think this court must hold that the proper law of the contract is the legal system of Ghana. The contract was between an Indiana (USA) registered company and a Ghanaian [p.420] of [1999-2000] 1 GLR 409 company, the respondents. The contract was to be performed in Ghana by the delivery of the goods to the company in Ghana. The goods were to be sold in Ghana and payment was to be effected through Ghanaian agents and in Ghana. In the absence of any expressed intention as to the proper law of the contract, it seems to me that the legal system of Ghana must govern any dispute arising from the contract, as the implied choice of law by the parties which satisfies the general rules as to the place of performance and the place with which the transaction had substantial connection.

Counsel contended that the question of the capacity of Dr Acheampong must be held to be procedural and not one of substance and therefore the laws of Indiana, the place of the incorporation of the respondents must determine that issue. He sought to demonstrate by the laws of Indiana that there was no proof that the power of attorney complied with the Indiana Powers of Attorney Act, Title 30, Art. 5, which provides that: “a valid power must be in writing, name an attorney in fact, give the attorney in fact the power to act on behalf of the principal in the presence of a Notary Public.” Counsel additionally contended that in a valid power of attorney the donee of the power of attorney (ie Lawyer Acheampong) must exhibit two documents. One is the power of attorney executed by an officer of PS International Ltd acting for the said company. The other is a certified true copy of the resolution by the board of directors of PS International empowering the said specified officer to grant a power of attorney on behalf of the company.

With all deference to counsel, I find this submission most unpersuasive. The issue raised is not one that goes to formal validity or substance and does not render the contract unenforceable. Whether or not the power was valid, is merely procedural, and which is determinable by the laws of Ghana, the lex fori. In his submission on this issue, counsel conceded that “since Lawyer Acheampong is seeking to enforce the rights of another person rather than his own, he must comply with the lex fori to endow him with capacity to bring the action on behalf of PS International Ltd.”

The law of Ghana must therefore be consulted in determining whether the capacity conferred on Dr Acheampong under the power of attorney was valid. The relevant law regulating powers of attorney is the Power of Attorney Ordinance, Cap 263 (1951 Rev). Section 2 thereof provides:

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“2. The donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal, when sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be and shall be deemed always to have been as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.”

The institution of this action by Dr Acheampong under the power of attorney granted by the respondents is clearly within the provisions of the Ordinance; the commencement of this action being a “thing” done and deemed to have been done by the donor of the power. The power of attorney is on record and duly executed, registered and stamped.

Counsel further submitted, that the power of attorney was null and void, for the reason that there was no evidence that Mr Joseph Brower who granted the power of attorney acted in conformity with section 137 (1) of the Companies Code, 1963 (Act 179). That provision states:

“137. (1) A company shall act though its members in a general meeting or its board of directors or through officers or agents, appointed by, or under authority derived from, the general members in general meeting or the board of directors.”

Counsel therefore, submitted that Dr Acheampong’s power of attorney should have been granted either through a resolution of the board of directors or members at a general meeting, and the fact that such authority was not shown rendered the capacity incompetent and the proceedings null and void.

This submission is, in my view, most unacceptable. In the first place, the power of Attorney was executed by Joseph W Brower as donor. The power of attorney in the very first paragraph reads: “KNOW ALL MEN BY THESE PRESENTS THAT, I JOSEPH N BROWER, being the VICE PRESIDENT (FINANCE) OF P S INTERNATIONAL LIMITED, specialising in International Trading, with registered place of Business at

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8910, Purdue Road, Suite 260, Indianapolis, Indiana, in the United States of America, 46268, DO HEREBY APPOINT and constitute Dr Alfred Quo-Ashong Acheampong an ATTORNEY of P S International with General Power and specifically to employ all legal processes to recover debts due and owing to P S International by: (a) Godka Group of Companies . . . “

This instrument dated 27 February 1989 was signed and sealed and witnessed and registered as No LVB 1983/89.

As counsel rightly pointed out, Dr Acheampong from the writ and the statement of claim was clearly acting in a dual capacity. Counsel then submitted that, that duality of capacity rendered the whole proceedings null and void. The donee had first, been engaged in his legal professional capacity by the Ghanaian agent of the respondents, Paul Penu. It was after he as solicitor, had failed to sort out the indebtedness of the appellants that Mr Brower came to Ghana and in his capacity as a vice president of the respondents granted the power of attorney to the solicitor. He issued the writ on 13 March 1989 on behalf of his respondents as “their, lawful attorney.” In the statement of claim, he repeated this same capacity as appeared in the title of the case and as solicitor for the respondents. In his evidence at the trial, he so identified his capacity as the donee of the power. Throughout the cross-examination of the donee his capacity was never challenged. All that were inquired of him were: Who gave him the power of attorney?; Whether he knew that Joseph N Brower came to Ghana and whether he had retired from the company? Counsel for the appellants sought to rely on Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd [1998-99] SC GLR 1 and Akrong v Bulley [1965] GLR 469.

I do not think that these cases are relevant to the issue here. In Akrong (supra), the plaintiff was suing under the Fatal Accidents Acts, 1846-64 (9 & 10 Vict, c 93 and 27 & 28 Vict, c 95) in respect of the death of her son through the negligent driving of the defendant’s vehicle. First, when she issued the writ as “successor and next of kin”, she had not taken letters of administration. She was therefore granted leave to amend her capacity to “personal representative, successor and next-of-kin.” On appeal ultimately to the Supreme Court, it was held that as “successor and next of kin” she lacked

[p.423] of [1999-2000] 1 GLR 409 capacity since she had not taken out letters of administration. It was further held that the fact that she subsequently took out letters of administration did not cure her lack of capacity by reason that at that stage the action was statute-barred. In the instant case, Dr Acheampong issued the writ of summons in his capacity as the donee of the power of attorney. And unlike in Akrong (supra), the appellants in this case never challenged nor disputed the capacity of the donee of the power; nor was the action barred by statute.

In any case, I find it a strange proposition that a person who is a professional lawyer or solicitor cannot institute action in his personal capacity or as a donee of a power of attorney. I know of no legal impediment, except that, of course, he must appear at the trial without his professional habit: see Barrister; Ex Parte A (Practice Note) [1961] 1 WLR 257.

It is clear from the written submissions of counsel that in attacking the capacity of Dr Acheampong, much reliance was placed on foreign law, ie the laws of the Indiana state of the United States of America. But neither in the pleading, nor in the course of the trial was this issue of foreign law raised. However, since a point of law may be raised for the first time on appeal, I do, as a matter of caution address that issue in this opinion.

It is a basic rule of private international law that the courts do not take judicial notice of the laws of a foreign country. These are all questions of fact and must the be proved at trial by evidence. In Guaranty Trust Co of New York v Hannay & Co [1918] 2 KB 623 at 667, CA Scrutton LJ remarked: “Foreign law is a question of fact to an English [a Ghanaian] Court; the judgment of a foreign judge is not binding on an English Court, but is the opinion of an expert on the fact to be treated with respect, but not necessarily conclusive.”

And see also Lizard Bros v Midland Bank [1933] AC 289. At no distant date in this country foreign law was in issue in Davies v Randall [19621 1 GLR 1, where the law of Sierra Leone was urged on the court. Charles J observed at 3:

“The law of Sierra Leone is foreign law which has to be proved as a question of fact and the plaintiff has failed to adduce any evidence to prove that the marriage according to Fante cus-

[p.424] of [1999-2000] 1 GLR 409 tomary law between a native of Sierra Leone and a native of the Gold Coast (now Ghana) at the relevant data was valid.”

For having failed to prove the law of Sierra Leone which could have validated the marriage, the court applied the law of Ghana in the eyes of which that union had no legitimacy.

It has also been held that merely presenting the judge with the text of foreign law, as was done in this case, and leaving him to draw his own conclusion, does not satisfy the requirement of proof by evidence. In Berger v New York Life Assurance Co (1927) 96 LJKB 930, the defendant claimed that the contract between the parties had been annulled by Russian law. The plaintiff called an expert in Russian law. The defendant, however, offered no expert evidence to controvert that fact. Scrutton LJ in his judgment for the plaintiff, having stated that the issue was a question of fact, then, continued:

“Now this being the uncontradicted evidence of a Russian Lawyer and the Russian Department of Justice, as to what the law is in Russia today, the defendants, without calling any evidence asks us to say the lawyer and department are mistaken … Such a result would appear to go far beyond the law and practice relating to the proof of foreign law. It is not sufficient to prove a foreign statute or code by a translation, and then leave the court to place its own construction on it. The code must be interpreted by an expert in the foreign law in the first instance.”

Therefore, all the submissions on the relevancy of foreign laws and decisions without evidence, are entirely misconceived. Mr Djabanor, with all due respect, does not qualify even to testify as to the laws of Indiana. In Cheshire and North’s Private International Laws (12th ed), at pp 109-110, it is stated: “The general principle has been that no, person is a competent witness unless he is a praticing lawyer in the particular legal system in question, or unless he occupies a position or follows a calling in which he must necessarily acquire a practical working knowledge of the foreign law”

In the result, even were the laws of Indiana relevant as the proper law of the contract, the appellants led no evidence in proof of that fact.

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Foreign law being a question of fact, it must be proved by judicial evidence and in the absence of such proof, it is presumed that the law is the same as that of the forum trying the case. Thus in Lloyd v Guibert (1865) LR I QB 115, Wiles J. said:

“. . . a party, who relies upon a right or an exemption by foreign law, is bound to bring such law properly before the Court, and to establish it in proof. Otherwise the Court, not being entitled to notice such law without judicial proof, must proceed according to the law of England.”

(The emphasis is mine.) In Ghana, the position is covered by section 40 of the Evidence Decree, 1975 (NRCD 323) which provides that: “The law of a foreign state is presumed to be the same as the law of Ghana.” Thus, even where relevant, upon failure to prove the foreign law, the law of Ghana is presumed to govern that particular issue. That presumption was not rebutted by such proof. Consequently, the power of attorney granted to Dr Acheampong having been found valid and regular in accordance with the law Ghana, he was legally competent to bring the action.

Counsel also urged the court to declare the judgment null and void on the grounds that it was delivered on 17 May 1995, one year after the conclusion of the trial and contrary to the provisions of Order 63, r 2A of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as amended by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107). Evidence in the case closed on 25 March 1994, and counsel was right that judgment was delivered one year thereafter on 17 May 1995. LI 1107 provides for “Time Limit for delivery of judgments”, in Order 63, r 2 as amended by the instrument. Under Order 63, r 2A(3), the court is required “to deliver judgment as soon as possible after the close of case before it, and in any event not later than six weeks after the close of any such case.” Counsel drew our attention to a similar limitation period for delivery of judgments in the Nigerian Constitution. He pressed us to follow or be persuaded by the view of the Nigerian Supreme Court in the case of Ifezue v Mbadugha (1985) LRC (Const) 114. Neither the facts nor the relevant constitutional provision was made available to this court, except that, according to counsel, the Supreme Court of Nigeria declared the judgment of the lower court

[p.426] of [1999-2000] 1 GLR 409 a nullity because the judgment was delivered outside the prescribed period. Counsel further referred to a commentary on that case by Mr Bimpong-Buta, Director of the Ghana School of Law, in (1983-86) 15 RGL 221. The commentator suggested that the courts of this country ought to construe Order 63, r 2A of LN 140A as amended, as a mandatory provision, so that where it is not complied with, the courts must declare the judgment in question a nullity.

I am not in the least persuaded by counsel. In Nigeria, the period of limitation is a constitutional provision and, therefore, probably couched in mandatory terms. There is nothing in the character of LI 1107 that even remotedly implies nullification of a judgment that is delivered outside the prescribed period. It seems to me that the provisions of the instrument are purely administrative. In terms of Order 63, r 2A(6) of LN 140A as inserted by LI 1107, where a judgment is not delivered within six weeks, a party may notify the Chief Justice and request that a date be fixed for delivery of the judgment. And under Order 63, r 2A(7) of LN 140A as inserted by LI 1107, the Chief Justice may fix a date for the delivery of the judgment and the court has a duty to comply with the directive accordingly. The rules do not provide that a judgment delivered outside the six weeks period shall be declared null and void.

I think that, while not disputing the force of the Nigerian authority in its own judicial environment, that judgment has not the least persuasive authority in our courts, where no such mandatory character is expressed or implied under Order 63, r 2A of LN 140A as inserted by LI 1107 nor under the Constitution of Ghana. And indeed, litigation as it is at the present is already expensive enough. To construe the local rule in conformity with counsel’s submission and declare null and void a whole judgment obtained after years of litigation would be most unjust and unfair to the parties, who have no control over the delivery of judgments by the courts. The parties would thereby be punished for the indolence and neglect of judicial officers but the real culprits pay no price. I think, short of a mandatory provision, the disciplinary power of the Chief Justice over offending judges is reasonably deterring enough to keep the judges on their toes. I do not therefore accept the invitation of counsel that the judgment ought be declared a nullity.

In his further submission, counsel questioned the finding of the trial judge that the amount of US$50,733.90 was owing and unpaid

[p.427] of [1999-2000] 1 GLR 409 to the respondents and for entering judgment for that sum accordingly. The state of account as revealed by exhibit A was:

“Used clothing US 9,399.80 Green Pants 46,214.80 Biscuits 15,208.40 70,823.00 Total payments 20,088.00 Balance to date 50,733.90

It was this outstanding balance of US$50,733.90 that was claimed by the respondents per their endorsement on the writ. In their statement of defence filed on 18 September 1989, the appellants disputed the amount of US$50,733 as the correct balance. They averred that even assuming that figure was correct, that outstanding balance was US$41,344.20. And as regards the green shorts, they claimed that they were never sold to them, the appellants.

In his evidence at the trial, Godwin Anagbo, the managing director said: “I have bought used clothing and biscuits from the plaintiffs. I have not purchased any olive green ladies shorts from the plaintiffs.” He tendered exhibits 3 and 4 which were messages sent by him to the respondents on 23 and 24 October 1989, respectively. In the telex messages: “RE GOODS SUPPLIED TO GODKA GROUP OF COMPANIES,” the appellants’ list was made up of: (1) second-hand clothing; (2) biscuits; and (3) green pants. In respect of the secondhand clothing, the appellants confirmed they had been sold out. In the case of the biscuits, it was said that part had been sold and proceeds paid to Apenu, the local agent of the respondents and that they also had in their hand an amount of US$4,500. In the case of the green pants, they informed the respondents that none had been sold due to its high price and requested for advice.

Again, in exhibit C dated 9 February 1989, the solicitors for the appellants reacted to a letter of demand from Dr Acheampong, solicitor for the respondents. The relevant contents of exhibit C confirmed that: “According to my instructions the consignment of the used clothing has already been paid for. At present my clients say that there is a balance in your clients’ favour in respect of used clothing and biscuits of US$4,520.20”. The letter also stated that the green pants were not moving so the respondents should come for

[p.428] of [1999-2000] 1 GLR 409 them since they (the pants) are occupying valuable space at the wholesale store. Nowhere in exhibit C did the appellants deny or challenge the claim by the solicitor for the respondents that in respect of the used clothing, green pants and biscuits there was a balance of US$50,733.90 owing and due to be paid, except to say that the green pants were not moving and had not been sold.

Having earlier held that the green pants, like the other goods, were imported by the appellants to be sold by them, I am firmly of the opinion that the trial judge did not err in entering judgment for the respondents in the sum of US$437,000, having taken into consideration moneys found to have already been paid by the appellants.

With regard to the counterclaim by the appellants for the payment of ¢25,000 per year from 31 October 1987, I find it as a mere afterthought and a sham. In none of the correspondence exchanged between the parties was this question of rents, arising obviously from the warehousing of the goods by the appellants, raised. And quite remarkably, at no time when litigation was in contemplation or threatened and the solicitors were exchanging letters (see exhibit C) did the appellant’s solicitors refer to or reminded the respondents of any payment of rent for warehousing the goods. The counterclaim was in my view, a mere afterthought. It was rightly dismissed by the judge.

For the reasons given, I would dismiss the appeal and confirm the judgment of the High Court in its entirety.

JUDGMENT OF WOOD JA.

I agree.

JUDGMENT OF BENIN JA.

I also agree.

DECISION

Appeal dismissed.

LSNA

Endnotes

1 (Popup – Footnote) sic same in original. 2 (Popup – Footnote) sic same in original.