IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA A.D. 2008
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CORAM: MRS. WOOD, C.J. (PRESIDING)

BROBBEY, J.S.C.
ANINAKWA, J.S.C.
MRS. ADINYIRA, J.S.C.
ASIAMAH, J.S.C.

CIVIL APPEAL
NO. J4/33/2004

25TH JULY, 2008

CHARITY AGYEIWAH PLTF/RESP/APPELLANT

C/O AGYEMAN & ASSOCIATES
ACCRA

VRS

E.M.S., P&T CORPORATI ON DEFT/ APPLT/ RESPONDENT

RULING

MRS. WOOD, C.J.

By this appeal, the plaintiff respondent appellant (appellant) questions the unanimous
decision of the Court of Appeal on four main grounds. Aside from the well- known and
oft- used general ground: “The judgement is against the weight of evidence”, the two
other grounds of appeal, which in any event are all embodied in the omnibus ground are
the following:

“The Court of Appeal misdirected itself by failing to consider the evidence of the
defendant’s own witness (Maggie DW1) which evidence supported fully the
plaintiff’s case.”

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The Court of Appeal erred when it held, in the teeth of all the evidence adduced at the
trial that the appellant did not post any travellers cheques by EMS but rather posted a
document as DW1 wrote “document” on the green tag which was put on the EMS
envelope.”

It is the fourth ground of appeal however, which raises important legal issues. It reads:

“The Court of Appeal misdirected itself in law in coming to the conclusion that
the trial court had no jurisdiction to declare section 43 (1) of the Post and
Telecommunication Decree, 1975 (NRCD 311) void as being inconsistent with
the provisions of article 18 (2) of the 1992 Constitution.”

The facts culminating in this instant appeal are not complex. The parties entered into a
contract of carriage of a postal parcel. By it, the respondent corporation, agreed to deliver
the appellant’s parcel allegedly containing travellers’ cheques to the value of ten
thousand pounds (₤10,000) to her principals in the United Kingdom. Although the parcel
got to respondents agent in the UK, it was never delivered as agreed under the terms of
that simple contract, for it eventually got lost. The appellants successfully sued to recover
of the full value of the lost cheques, when the respondents failed to make good the loss.
The decision was overturned on appeal on the principal grounds that firstly, by
interpreting article 18(2) of the 1992 Constitution, the trial judge exceeded his
jurisdiction by straying into the domain of the Supreme Court, and secondly that in any
event the principal finding that she did purchase travellers cheques and further that
indeed she had those cheques in the parcel was against the weight of evidence.

The well established rule of law is that an appeal is by way of rehearing, and an appellate
court is therefore entitled to look at the entire evidence and come to the proper
conclusions on both the facts and the law. Consequently, I will like to deal with the issue
arising from the factual findings first, which issue in any event present the least
difficulties. The importance of correcting errors, if any, on the issue of whether or not the
appellant posted ₤10,000 worth of travellers’ cheques cannot be underestimated. It forms
the plank on which the appellant’s case is founded and a finding against her on this
critical issue therefore must, without more, resolve the entire action in the respondent’s
favour.

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On this issue, the appellate court unequivocally concluded as follows: “Infact from the
cross examination above stated it is quite clear that the respondent did not buy any
travellers cheques and she did not post any travellers cheques by EMS but rather posted a
document as DWI wrote on the green tag which was put on the EMS envelope.”

With the greatest respect, these findings, which are plainly central to the defence that the
appellant did not purchase any travellers cheques is clearly not borne out by the evidence.
Contrarily, as plainly evident from the record, the reverse represents the correct finding.
The evidence of the appellant’s principal witness, PW1, which was not discredited under
cross examination, is as follows:

“At the EMS, Sister Maggie welcomed me and asked me to wait as she was
serving two persons. When the two persons left, I went in and handed over the
postal packet to her. She opened the envelope and took the paper on which the
serial nos. of the TC’s have been written. She told me the parcel was very heavy
and that she was contemplating splitting it into two. After weighing the parcel she
said it was not heavy after all but that it was not properly arranged that was why it
looked bulky. What she meant was that the travellers’ cheques had not been
properly arranged. She took out the travellers cheques from the original envelope
and put it in an EMS envelope. She wrapped the Travellers Cheques with the
paper in which were written the serial nos. of the travellers’ cheques. She finally
wrapped it with carbon paper. She sealed the envelope with glue and put the
parcel in a bigger envelope and sealed it with clips.”

In view of the respondents emphatic suggestion to the PW1 that “no such travellers
cheques were taken to Maggie”, the evidence of Maggie, who gave evidence at the trial
as DW1, is crucial. Her evidence is the decider, so to speak, to this strange tale of two
clearly divergent claims. Given her clear and unambiguous evidence in chief on the issue
in favour of the appellants, it becomes extremely difficult to understand what led the
appellate court to find against her. She deposed as follows:

“In the course of serving customers it came to the turn of a customer who said he
is the man who has been sent. I collected and checked the contents which were
travellers’ cheques. The value of the cheques was 10,000 pounds. After checking
the TC’s I put them in an EMS envelope and sealed it. On top of the green
envelope I wrote document below the label I wrote 10000. We have standing

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 instructions not to declare travellers cheques as contents but to treat them as
documents.”

It comes as no surprise that appellant’s counsel did not subject her to a single question
under cross-examination. On account of this corroboration by an opponent’s witness, the
court was bound to find for the appellant on this issue. The respondent justifies the
court’s approach on the grounds that there are such many contradictions and
inconsistencies in the evidence of the PWI and DW1, it falls into the exceptions outlined
in Barclays Bank Ghana Ltd. v Sakari [1996-1997] SCGLR639 at 652, namely that the
rule that where the evidence of an opponent corroborates the evidence of the opposite
party, and that opponent’s remain uncorroborated, the court is bound to accept the
evidence of the corroborated, does not apply in the face of “compelling reasons”.

This argument that the Sakari case (supra) is applicable to the particular facts of this case
is indeed threadbare. The inconsistencies in this case are so minor they are
inconsequential and do not detract from the basic admission by the respondent’s own that
the appellant indeed posted travellers cheques. The lament that the seller was not brought
as a witness is of no moment. The witnesses that ought to be called depends on the nature
of the defence, the line of cross-examination etc. The law will not permit evidence to be
led on unrelated issues or issues not germane to the relief sought, neither or the issues in
controversy. It will be a poor case management technique to require parties to go through
the motions of calling one witness after the other, even where unwarranted.

This being a civil action, the degree of proof required is proof on the balance of
probabilities, and not proof beyond reasonable doubt.

ADDITIONAL GROUND 1

DID THE APPELLATE COURT HAVE JURISDICTION TO DECLARE SECTION 43

(1) OF NRC DECREE 311 VOID AS BEING INCONSISTENT WITH THE
PROVISONS OR ARTICLE 19 (2) OF THE 1992 CONSTITUTION.

Articles 1(2) and 2(1) of the 1992 Constitution provides:

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1(2) “This Constitution shall be the supreme law of Ghana and any other law found to be
inconsistent with any provision of this Constitution shall, to the extent of the
inconsistency, be void.

2(1) A person who alleges that-

(a) an enactment or anything contained in or done, under the authority of that or any
other enactment; or

(b) any act of omission of any person;

is inconsistent with, or is in contravention of a provision of this constitution, may bring
an action in the Supreme Court for a declaration to that effect.”

130. (1) Subject to the jurisdiction of the High Court in the enforcement of the
Fundamental Human Rights and Freedoms are provided in article 33 of this constitution,
the Supreme Court shall have exclusive original jurisdiction in-

(a) all matters relating to the enforcement or interpretation of this constitution; and

(b) all matters arising as to whether an enactment was made in excess of the powers
conferred on Parliament or on any other authority or person by law or under this
constitution.

(2) where an issue that relates to a matter or question referred to in clause (1) of this
article arises in any proceedings in a court other than the Supreme Court, that court shall
stay proceedings and refer the question, of law involved to the Supreme Court for
determination; and the court in which the question arose shall dispose of the case in
accordance with the decision of the Supreme court.”

At the trial court, the trial judge delivered himself as follows: “I shall venture for the
moment into the rather very complex terrain of constitutional law by Article 1 (2) of the
fourth Republican constitution. I shall venture to say that the said section of 43 (1) of the
provision is inconsistent with Article 18 (2) of chapter five of the constitution”.

Their Lordships in the Court of Appeal ruled that the learned trial judge had no
jurisdiction to deal with the constitutional issue in the manner in which he did. They
reasoned, rightly in our view, that it is only the Supreme Court that has exclusive
jurisdiction to deal with such constitutional issues. Even though their Lordships were in

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error by describing the exercise undertaken by the trial judge as an interpretation of the
constitutional provision, whereas in fact the exercise related to the constitutionality of a
statutory provisions, their Lordships were absolutely right in their conclusion that the trial
judge lacked jurisdiction. Indeed, Article 1 (2) clearly vests exclusive jurisdiction of
matters relating to interpretation, enforcement e.t.c in the Supreme Court and the trial
judge committed what we may call judicial suicide by venturing into territory which on
his on showing was a complex area, and in respect of which he had no jurisdiction.

In spite of this glaring error on the part of the trial judge, the appellate court committed a
further error by falling into the same error, virtually, as the trial judge. True, there was no
attempt on their part to repeat the unconstitutional act perpetrated by the trial judge, i.e.,
usurp the jurisdiction of the Supreme Court, but they failed to refer the matter to the
Supreme Court as they were constitutionally mandated to do under Article 130 (2) of the
1992 Constitution, since it appears from their reasoning that they were convinced the
issue is indeed pertinent to this case.

The Article 130 (2) states:

“Where an issue that relates to a matter or question referred to in clause (1) of this
article arises in any proceedings in a court other than the Supreme Court, that
court shall stay proceedings and refer the question, of law involved to the
Supreme Court for determination; and the court in which the question arose shall
dispose of the case in accordance with the decision of the Supreme court.”

They judged the trial judge’s usurpation in these terms “since the learned trial judge
exceeded his jurisdiction by interpreting the 1992 constitution which was the jurisdiction
of the Supreme Court, this caused miscarriage of justice by the order of the high court
that the Appellant is liable to the Respondent”.

The law clearly is that in any action, where an Appellate Court discovers that a trial court
has usurped the Supreme Court’s jurisdiction in matters relating to the exercise of its
original or exclusive jurisdiction, the appellate court’s function does not merely end at a
declaration of nullity. The court has a constitutional duty to refer the relevant matter to
the Supreme Court for determination, as mandated under Article 130 (2), where the

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Appellate court thinks that the issue under consideration is indeed germane to the
pending action.

Be that as this may, we must state that our critique of the Appellate court is based on the
fact that it appears they felt that the constitutional issue was central to the claim. We
must confess that was our first impression too, hence our invitation to counsel to present
arguments on the issue of whether or not section 43(1) and (2) of the now repealed Posts
and Telecommunications Decree, 1974 was inconsistent with Articles 17 and 18 of the
provisions if the 1992 Constitution.

But a careful study of the pleadings and the issues raised in this action, points to the
contrary. We realise that the question of whether or not section 43(1) and (2) of (NRCD
311) is in excess of Articles 17 and 18 of the 1992 Constitution is really irrelevant to this
action. We will now advance reasons why we think we do not have to deal with the
constitutionality question.

The contract was concluded on 1/12/92. The people of Ghana approved the constitution
to come into force on 7 th day of January, 1993, with the article 107 clearly forbidding
retroactivity.

In the absence of any express or implied term of the contract, the laws relevant to the
determination of this case is only such laws that were in operation at the date of the
contract, not laws at the date of the accrual of the action. At the date of the contract, the
only law in force was the Posts and Telecommunications Law NRCD 311. It is this
prevailing law at the date of contract which should govern the outcome of this action.

The section 43(1) and (2) of NRCD 311 provides as follows:-

43. (1) “Unless otherwise provided in regulations made under this Decree the
Corporation shall not incur any liability:-

(a) by reason of the loss, misdelivery or delay, or damage to any postal article in course
of transmission by post; or

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 (c) by reason of the interception, detention or disposal of any postal article in
accordance of the provisions of this Decree.

(2) Unless otherwise provided in regulations made under this Decree, the corporation
shall not incur any liability by reason of the wrong payment of a postal or Money Order.”

These statutory provisions exempt the EMS from liability by reason of loss, misdelivery,
or any of the stated grounds. it is trite learning that pleadings are meant for parties to
know before hand the issues in controversy between the parties to enable them prepare
their case adequately to meet the case on hand. By the paragraph 11, respondent’s answer
to the appellant’s claim that they were liable was in these terms:

“In further answer to paragraph 11, defendants s NRCD 311 (S.43) say that they
are not liable under their statute of incorporation for any misdelivery or loss of
postal item”

The appellant merely joined issue with the defence without raising any other specific
defence or defences which could take her out of the statutory exemptions. The well
established principles starting with Dam v Addo [1962] 2GLR200, forbids a court suo
moto from substituting or putting up a case which the party himself or herself has not put
up. (See also Bisi v Tabiri alias Asare [1984-86]2 GLR282, CA.)

Again, the general rule is that, statutory exemption clauses which are clearly expressed
and not ambiguous or inconsistent with any other law of the land, such as the
telecommunications law, NRCD 311, is strictly enforceable and clearly binding on the
parties, unless of course, a contrary intention is proved by evidence.

Furthermore, the evidential burden of proving the unenforceability or inapplicability of

an exemption clause rests on the person alleging same, more often than not, the victim of
the misdelivery.

In this action therefore, the burden of proving that she is not subject to the statutory
exemption, is on her, not the respondent corporation.

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The evidence did not prove the parties contracted out of the statutory exemption as
provided under s. 43 1 and 2 and for that reason the appellant is bound by these clear
exemptions as stated.

We have no option but to hold that the appellant is not entitled to her claim We dismiss
the appeal.

G.T. WOOD (MRS)

CHIEF JUSTICE

S.A. BROBBEY
JUSTICE OF THE SUPREME COURT

R.T. ANINAKWA
JUSTICE OF THE SUPREME COURT

S.O.A. ADINYIRA (MRS)

JUSTICE OF THE SUPREME COURT

S.K.ASIAMAH
JUSTICE OF THE SUPREME COURT

COUNSEL:

Stephen Agyeman for the Plaintiff/Respondent/Appellant.

D.K. Brefo for the Defendant/Appellant/Respondent.

gso*