TORKORNOO (MRS), J.A.

The Plaintiff Respondent (hereinafter referred to as Respondent) commenced this action by an attorney Mrs. Claris Efa Quayson. The Respondent’s case against the Defendants/Appellants was that the 1^st Appellant had obtained a credit facility of US$901,765 from First International Bank of United States of America. They had failed to honor their repayment obligations and as guarantor to the lender on the debts, the Plaintiff had been called to pay the debt of principal with interest. It had paid the said debt to First International Bank and was now seeking reimbursement from the Appellants.

Its case was that the 2^nd and 3^rd Appellants had executed unconditional guarantees to pay the 1^st

Appellant’s debts and also executed promissory notes to that effect. The Respondent claimed for:

1. The total sum of One million, Six Hundred and Twenty Two Thousand, Seven Hundred and Thirty-Two United States Dollars (US$1,622,732.00) being the outstanding amount and unpaid balance on the total credit facility plus ordinary accrued interest and post maturity interest as of December4, 2009.

2. Interest at the rate of 4.5% per annum above LIBOR on the Outstanding Sum from December 4, 2009 to date of final payment.

3. Cost incurred in this matter; and

4. Any other order (s) as this Honorable Court may deem fit.

In a 30 paragraph defence, the Appellants did not deny the fact of obtaining the loan and their failure to repay. The 2^nd and 3^rd Appellants also did not deny issuing guarantees to repay the debt. However, they set up legal defences against being called on to pay the debt as well as a counterclaim. It was their defence that the Plaintiff was not entitled to its claims because of fraud and the operation of the doctrine of frustration.

In addition to raising these doctrines as shields against the claim, the Appellants raised an objection to the forum in which the action had been commenced in paragraphs 27 of their defence. In paragraph 28, they also raised a defence against the capacity of the Plaintiff with these words.

28. The Defendants shall also contend that the Plaintiff has no capacity to institute the present suit.

Then in paragraph 29, the Defendants alleged a defence against the writ with these words.

29 The Defendants say that the writ before the court is incompetent and same cannot operate to invoke the jurisdiction of the court’.

They went on to counterclaim for:

Counter claim

a. A declaration that the contracts in issue has been frustrated and vitiated by fraud on the part of the Plaintiff and its collaborators, as well as decisions and operational difficulties which confronted by the 1^st Defendant.

b. An order of general damages against the Plaintiffs.

c. An order for the payment for breach of contract and loss of earnings.

Thereafter, the Defendants presented as part of additional issues for trial, the following questions:

a. Whether or not the Plaintiff has capacity to commence the action.

b. Whether or not the present forum is the proper and convenient forum for the suit, if at all.

c. Whether or not the Plaintiff’s action is competent.

d. Any other issues raised on the pleadings

At the end of the trial, the learned trial judge found the action competent and dismissed the defence, and the counterclaims and upheld the Respondent’s claims. She entered judgment for all the Respondent’s claims. On the issue of the forum, she held on page 5 of the judgment that ‘The honorable

Chief Justice having transferred the case from Accra to Kumasi by an order dated 10^th/05/2011, resolution of the issue as to forum convenience of this suit has become unnecessary.’

To her own question ‘Does the Plaintiff have capacity to commence the present action’, the learned trial judge traced from the documentary and oral evidence submitted; how the original creditor in the transaction – the First International Bank had assigned its right, title and interest in all sums due under its Credit Agreement with the Appellant to the Respondent. The Assignment was premised on the Respondent’s Guarantee to pay the debt of the Appellants (found on page 476 of the ROA). The Respondent’s Guarantee was endorsed on a promissory note executed by the 2^nd Appellant on behalf of the 1^st Appellant as commitment to repay the debt. Within paragraph 5 of the promissory note tendered as exhibit D, the Appellants specifically pledged to make all outstanding payments to the Respondent. The promissory notes were supported by personal guarantees of the 2^nd and 3^rd Appellants.

After tracing these contractual links and chain, the learned trial judge held that ‘Plaintiff has sufficiently demonstrated to this court that it has an interest in the Defendant’s debt which had been assigned to it by the FIB. Consequently, it has the legal power or capacity to commence this action against the Defendants, and the Plaintiff bank rightly did so through its lawful attorney’

In this appeal, the Appellant filed the omnibus ground of appeal as follows:

That the judgment is against the weight of evidence

Although the Appellants indicated that additional grounds of appeal would be filed on receipt of the record of appeal, and indeed filed two Additional Grounds of Appeal on 17^th June 2014, there is no record that Appellant sought and obtained leave to file the described additional grounds of appeal.

The said additional grounds of appeal are:

The honorable trial high court judge erred in law when she held that the Plaintiff had capacity to institute the present action per its lawful attorney when there was no evidence of the said attorney’s authority.

The honorable trial high court judge erred in law when she applied Ghanaian law in construing the contract between the parties when the parties have expressly contracted that their rights under the contract must be governed by the laws of the State of New York, United States of America.

In arguing the appeal, the Appellant counsel said on the said page 8 of the submissions that she would ‘with leave of the Court argue these additional grounds:’

It is important to correct the legal abnormality created by this model of referring to and taking leave to argue grounds of appeal. In the judgment of the Court of Appeal sitting in Kumasi dated 27^th January 2015 Solomon Baah v Melcom Ltd and Sunyani Municipal Assembly, Suit No H1/27/15, I had occasion to deal extensively with this situation. I said inter alia that the power to present and argue grounds of appeal in the Court of Appeal is derived from the Court of Appeal Rules 1997 CI 19. Rules 8 (1) and (2) (a) of CI 19 provide as follows:

8. Notice of Appeal

(1) Any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as ‘the notice of appeal’.

(2) The notice of appeal shall be filed in the registry of the Court below and,

a. shall set out the grounds of appeal.

From Rule 8, grounds of appeal are determined from the Notice of Appeal which shall be filed in the court below. Since the notice of appeal did not include the additional grounds of appeal, the additional grounds of appeal constituted an amendment of the Notice of Appeal, and should have only been filed and argued with leave from the Court of Appeal as provided for under Rule 8 (8) of CI 19 as amended by CI 21.

Rule 8 (8) of CI 19 directs that:

8 (8) The Appellant shall not, without the leave of the Court, argue or be heard in support of any ground of objection not mentioned in the notice of appeal, but the court may allow the Appellant to amend the grounds of appeal on the terms that the Court thinks just.

Thus even though liberty is given in rule 20 (1) of C I 19 for the arguing of additional grounds of appeal, this must always be done with leave to amend the Notice of Appeal.

In the absence of leave given to amend the notice of appeal in order to file additional grounds of appeal, this court will refuse to recognize any liberty to file and argue the said additional grounds of appeal.

I must make reference to the dictum of the Supreme Court in Volta Aluminium Company Ltd v Akuffo 2003 – 2005 1 GLR 502 where the Defendant failed to seek leave before filing additional grounds of appeal, in accordance with rule 6(6) of the Supreme Court Rules 1996 CI 16. This rule and rule 6(7) (a) of CI 16 mirror rule 8 (8) of CI 19 with these words:

6 (6) The Appellant shall not, without the leave of the Court, argue or be heard in support of a ground of appeal that is not specified as a ground of appeal in the notice of appeal.

6 (7) Despite subrules (1) to (6), the court

May grant an Appellant leave to amend the ground of appeal on the terms specified by the court ;

Additionally, Rules 6 (7) (b) and 6 (8) of CI 16 also provide

6 (7) (Despite subrules (1) to (6), the court)

(b) shall not, in deciding the appeal, confine itself to the grounds set forth by the Appellant nor shall the court be precluded from resting its decision on a ground not set forth by the Appellant.

8) Where the court intends to rest a decision on a ground not set forth by the Appellant in the notice of appeal, or on a matter not argued before it, the court shall afford the parties reasonable opportunity to be heard on that ground or matter without re-opening the whole appeal

The Supreme Court in determining whether or not to consider the arguments made per the additional grounds of appeal filed without prior leave to amend the notice of appeal held in the first part of its decision on this issue that

‘the Defendant did not seek leave of the court before filing its additional grounds of appeal and in accordance with rule 6(6) of the Supreme Court Rules 1996 (CI 16), the Defendant’s arguments based on the additional grounds should be ignored. (emphasis mine).

The predicament the court found itself in was that without the additional grounds of appeal, there would hardly be anything left of the submissions presented for the appeal. The court therefore went on to say ‘However, since by rule 6 (7) of CI 16 the court was not obliged in deciding the appeal to confine itself to the grounds set forth by the Appellant; nor was the court precluded from resting its decision on a ground not set forth by the Appellant, in the interest of justice account would be taken of such additional grounds of appeal which would be helpful in the rehearing of the instant case by way of appeal. In any case, since the Plaintiffs were given notice of the additional grounds and they in fact addressed them in their statement of case, there would be no injustice in resting any decision on any of the additional grounds’.

The ratio of this decision was not to give a carte blanche for the filing and arguing of additional grounds of appeal without first obtaining leave to amend a notice of appeal as directed by both CI 19 and CI 16. The ratio of the decision regarding this manner of presenting additional grounds was that such additional grounds filed without leave to amend ‘should be ignored’. The premise on which the arguments submitted were entertained in that particular case was not in their context of being made pursuant to ‘additional grounds of appeal’, but under the liberty given to the court under rule 6 (7) to consider grounds which were not even set forth by the Appellant, so long as all parties had had the opportunity to speak to the said grounds or matters. It is my firm belief that this practice of filing additional grounds of appeal without first obtaining leave to amend the notice of appeal constitutes a breach of statute, and offends against the rules of natural justice in that the other side is not given the opportunity to be heard on their inclusion as grounds of appeal. Clearly this was not the intention of the law makers when they expanded rule 20 (1) to include the liberty to present submissions on any additional grounds of appeal that may be filed.

I will now deal with the sole ground of appeal and will consider all the submissions presented within the ambit of this ground of appeal. I do this because the arguments concern capacity – an aspect of any case that speaks to the fundamental issue of whether the jurisdiction of the court could even be invoked. I also do this because the Respondents have had the opportunity to address the court on these arguments presented by the Appellant. I also do this as a function of the rehearing required of an appellate court. An appeal is always by way of rehearing. Rule 8 (1) of Court of Appeal Rules CI 19 1997 provides:

8. Notice and grounds of Appeal

(1) An appeal to the Court shall be by way of re-hearing and shall be brought by a notice of appeal.

It is this function of rehearing which gave impetus to the Supreme Court to consider the arguments submitted under the ‘additional grounds of appeal’ filed without leave of court in the Valco v. Akuffo case cited supra. As stated by Date-Bah JSC on page 511, ‘I would take account of such of the additional grounds of appeal as I find helpful in the re-hearing of the case, by way of appeal’.

It is a settled principle of law that issues of capacity are fundamental for without capacity, a party cannot invoke the jurisdiction of a court. In the trial high court, the Appellant did raise a challenge to the Respondent’s capacity to commence the action in paragraph 28 of the Statement of Defence.

So on a rehearing of this suit, did the honorable trial court err regarding the capacity of the Plaintiff/Respondent such that the judgment is against the weight of evidence?

In his submissions before this court, Appellant counsel pointed to the dictum of the Supreme Court in Sarkodie 1 v Boateng 11 1982-83 GLR 715 on the question of proof of capacity in these words on page 724 ‘it is elementary that a Plaintiff or Petitioner whose capacity is put in issue must establish it by cogent evidence. But it is no answer for a party against whom a serious issue of locus standi is raised to plead that he should be given a hearing on the merits because he has a cast-iron case against his opponent’

He also cited Yartey & Another v Construction and Furniture (West Africa) Ltd. & Others 1972 1 GLR 86 where the Supreme court pointed that once the Plaintiffs had set up a case of authority to sue conferred by the whole community, they were bound to prove it strictly.

He argued that once a party’s capacity is put in issue, it is the duty of the party who asserts that capacity to adduce sufficient evidence to show that indeed he has that capacity.

As engaging as Appellant counsel’s arguments sound, a minimal perusal of the record of appeal as a function of rehearing shows that the judgment is not against the weight of evidence where the issue of capacity of the Respondent is concerned.

Section 14 of the Evidence Act NRCD 323 provides:

Section 14—Allocation of Burden of Persuasion

Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.

In the instant case, the Appellant in paragraph 28 of its statement of claim challenged the capacity of the Respondent. Indeed, he gave no particulars of the exact nature of the incapacity of the Respondent, save as to say:

28. The Defendants shall also contend that the Plaintiff has no capacity to institute the present suit.

Thus, the burden of persuasion that shifted on the Respondent with this averment was to prove by cogent evidence that it had capacity to initiate the litigation, and the cause of action lay with it. The task of the learned trial judge was also to determine whether or not the Plaintiff/Respondent presented evidence of this capacity.

This is the burden the Respondent discharged with exhibits A to D and exhibit D especially, as recognized by the learned trial judge on page 8 of her judgment. That finding and holding is in no way against the weight of evidence because it identified the privity of contract between the parties to this suit and the subject matter of the suit, and the consideration exchanged by them which was the foundation of the action. This court must necessarily affirm her findings on the capacity of the Respondent to commence the instant suit against the Appellants.

It will be noticed from the flesh of Appellants counsel’s arguments on appeal that it side stepped the actual issue on capacity the Appellant litigated in the trial court and introduced a matter that had never been part of the issues the court settled in the court below. He urged that the ‘trial judge erred in law when she held that the Plaintiff had capacity to institute the present action per its lawful attorney when there was no evidence of the said attorney’s authority’.

This is an unfortunate misrepresentation. Since the litigation in no way addressed the capacity of the attorney, the learned trial judge never held that the Plaintiff had capacity to institute the present action per its attorney. She also made no findings regarding the said attorney. Indeed, she did not even consider the issue of the validity of the attorney’s power or capacity in the exhaustive 43 page judgment.

Appellant counsel also said in the Reply filed on 7^th July 2015 that ‘Having elected to sue by an attorney however, the attorney must prove when it is challenged that the suit it brings purportedly on the Plaintiff’s behalf is validly brought’. This is again an unfortunate argument raised on appeal because nowhere in the suit was the attorney challenged regarding her capacity as an attorney of fact.

Again, it was the argument of Appellant counsel on page 12 of his submissions that ‘capacity (of the attorney) endorsed on the face of the writ of summons ought to have been proved by the Plaintiff before the suit could proceed.’ Regarding the fact that the attorney who commenced the suit never testified in the trial, he argued that it was immaterial that the different person who testified on behalf of the Plaintiff had a different power of attorney issued by the Plaintiff, to testify.

As a function of rehearing therefore, I will consider whether the learned trial judge erred in law when she failed to suo motu to order the Respondent’s attorney of fact to present her power of attorney in order to settle whether she had capacity to commence the action in the name of the Plaintiff.

My answer is a firm no and I have several reasons for saying so. It is an established principle of law, applied by the learned trial judge to resolve what the actual debt of the Appellants was, that unless and until challenged on averments or issues joined on any particular pleading, a party does not carry a burden to prove any matter in a case. Once a party makes an averment in a pleading and it stands unchallenged, the said averment is deemed to be admitted. This is the direction given in cases cited by the judge such as Fori v Ayirebi 1966 GLR 627, Re Ashaley Botwe Lands; Adjetey Abosu & Ors v Kotey & Ors 2003-2004 1 SCGLR 420 and Takoradi Flour Mills v Samir Faris 2005-2006 SCGLR 882 at 890, to mention a few.

Again, the decisions cited by Appellant counsel regarding a need to prove capacity were founded on ‘a challenge to a party’s capacity’. The ratio of the cases cited - Sarkodie 1 v Boateng 11 Yartey & Another v Construction and Furniture (West Africa) Ltd & Others (cited supra) show the principle to be that when capacity is put in issue, then the person against whom the lack of capacity is alleged carries a burden to prove that capacity.

With such a position of law, the learned trial judge was not wrong in her ‘non-consideration’ of the capacity or otherwise of the Plaintiff’s attorney who commenced the action, since that capacity was never put in issue in the suit.

Thirdly, Order 4 rule 1 (2) of the High Court (Civil Procedure) Rules, 2004, CI 47 provides Right to take proceedings

4 (1) (2) A body corporate shall not begin or carry on proceedings except by a lawyer, unless permitted to do so by an express provision of any enactment

This rule requires that companies litigate by a lawyer. This requirement of CI 47 was satisfied by the Respondent acting through its attorney who was a lawyer and whose address was identified as a firm of lawyers. Apart from this, the authority of a lawyer to act on behalf of a litigating party is always presumed, as stated in Esson v Oppong 1992 2 GLR 36.

Since the Appellant did not attack the capacity of the attorney to represent the Respondent as an attorney of fact in commencing the action, the learned trial judge was also not wrong in accepting the validity of the capacity of the Plaintiff’s attorney.

Fourthly, an action commenced by a person holding a power of attorney would, as a matter of principle, be presumed to be regular. As held in Kofi Sunkersette Obu v A Strauss and Company Limited by their Attorney 1947 12 WACA 277, the time to inspect a Power of Attorney is pre trial. The court said:

“It is desirable that an attorney, suing as such, should produce his principal’s authority if it is in writing. Under the Rules of the Supreme Court in England such an instrument or a copy attested would be filed in court and duly verified at the time the action was instituted and be open to inspection. In the circumstances of this case, however, since Simons’ statement on oath that he held the Respondent’s Power of Attorney remained unchallenged throughout the proceedings in the court below, this point taken for the first time on appeal, cannot be sustained”.

Any demand to enquire into the primary source of that authority must be raised as part of the trial, because that source of authority is a question of fact requiring the presentation of evidence. Waiting till an appeal is too late.

In Godka Group of Companies v PS International Ltd 2001 – 2002 SCGLR 918 where a foreign company acting by an attorney successfully obtained judgment in the high court, which was affirmed by the court of appeal, a questioning of the capacity of the attorney to act on behalf of the company because the power of attorney he held was allegedly not granted by the board of directors was met with an extremely cold shoulder at the Supreme Court. In that case, the record shows that the power of attorney was actually placed before the court. The Supreme court made it clear at page 932 of the report that ‘a company may enter into a contract with no more formality than is required in the case of an individual; …Under section 142 (2) (of the Companies Code 1963 Act 179) if the company has held out someone as its agent, it is stopped from denying the appointment; and it could be assumed that a de jure or de facto officer of the company has the usual powers and duties of that sort of officer’.

In the instant case, although the power of attorney of Efa-Quayson was not tendered, the fundamental principles of company law vis a vis a company and those it holds out as its agents applies squarely here. The principle is that beyond its organs of authority, ostensible authority by any one acting on behalf of a company is presumed effective, valid and binding on the company unless the company did not actually authorize that action or failed to ratify the action post the action. This is the import of Sections 137 to 142 of the Companies Code Act 1963, Act 179. Section 140 reads:

Section 140—Acts of Officers or Agents

(1) Except as provided in section 139 of this Code, the acts of any officer or agent of a company shall not be deemed to be acts of the company, unless,

(a) the company, acting through its members in general meeting, board of directors, or managing director, shall have expressly or impliedly authorised such officer or agent to act in the matter; or

(b) the company, acting as aforesaid, shall have represented the officer or agent as having its authority to act in the matter, in which event the company shall be civilly liable to any person who has entered into the transaction in reliance on such representation, unless such person had actual knowledge that the officer or agent had no authority or unless, having regard to his position with, or relationship to, the company, he ought to have known of such absence of authority.

(2) The authority of an officer or agent of the company may be conferred prior to action by him or by subsequent ratification; and knowledge of action by such officer or agent and acquiescence therein by all the members for the time being entitled to attend general meetings of the company or by the directors for the time being or by the managing director for the time being, shall be equivalent to ratification by the members in general meeting, board of directors, or Managing Director.

As quoted by the Supreme Court in Godka (cited supra) from Hely-Hutchinson v Brayhead Ltd. 1968 1 QB 549 at 583 ‘Ostensible or apparent authority is the authority of an agent as it appears to others’.

This posture of law is necessary for the smooth operation of commercial relations because it is trite knowledge that a company acts by human agents. Thus whenever a party presents itself as an agent of a company, and the company by any act impliedly authorizes that act, the validity of the acts of the agent is presumed and held binding on the company unless the presumption is overturned by refusal to ratify this act or proper challenge. This is the presumption affirmed in the Godka case cited supra.

Counsel for Appellant has argued that ‘without establishing the capacity of the person who commenced that action, who in the instant case is one Claris Efa-Quayson as the Lawful Attorney, the action itself is a nullity and ought to be dismissed in limine’. That submission is totally misconceived.

Efa-Quayson acted as the agent of the Plaintiff in instituting the action in Ghana. It is trite knowledge that an agent stands in the shoe of a principal and nothing more. Thus what cannot be applicable to a principal cannot be forced on to an agent. Since there is no law that compels a party to testify in their own suit for the claims to be upheld, it stands to reason that there is no law that compelled Claris Efa Quayson to testify in this action in the role she played as the Plaintiff’s attorney who issued the writ on its behalf.

In the present case, the suit was commenced on the ostensible authorization of the attorney’s actions. As part of participating in the action it had authorized to be commenced on its behalf in February 2010, the company sent a representative to testify in its stead per another power issued in June 2010. This action showed to all intents and purposes that Claris Efa-Quayson was not on a frolic of her own in commencing the action. As long as no queries were raised regarding this power of attorney held by Claris Efa-Quayson, the learned trial judge in this suit did not fail in her legal duties by not demanding to see the power of attorney as a prerequisite. And the failure to tender this power of attorney of Claris Efa-Quayson did not render the action void.

The circumstances of the present suit are clearly distinguishable from the situation if Asante-Appiah v Amponsah alias Mansah 2009 SC GLR 90 at 95 cited by Appellant counsel. In that suit, the Plaintiff’s attorney actually tendered a power of attorney which was found to be invalid. The validity of the power of attorney of Claris Efa-Quayson in the present suit did not come up at all because she did not testify, and her authority was required by law to be presumed as properly conferred, unless it was challenged. Her capacity was not challenged to necessitate her testifying.

A final point of note on this issue of the capacity of Claris Efa- Quayson in presenting herself as a lawful attorney of the Respondent is that if a party is silent on any matter or has custody of any documents or evidence that the other party finds relevant for the resolution of matters in issue, the rules of court give ample room for the vulnerable party to obtain access to the said matter or evidence. Orders 21 to 23 of CI 47 provide for discoveries, orders for production and inspection of documentation, provision of further and better particulars, Interrogatories, etc

Thus if the Appellants had any concerns regarding the capacity of the commencing attorney, apart from its paragraph 28 challenging the capacity of the Respondent, the rules of court gave them ample room to compel the Respondent to produce such evidence. It would seem that the Appellant, apart from failing to raise issue with the capacity of the attorney in the pleadings, did not also find any need to query and establish the authorization of the attorney through these pre-trial processes.

When it came to the trial, and the Respondent did not present its case via its attorney who commenced the action, the Appellant did not find a need to compel a calling of the attorney for the purpose of querying and establishing the validity of the attorney’s capacity. It quietly allowed the Respondent to close their case. A perusal of the addresses shows that the Appellants did not address the court on the absence of sight of the Power of Attorney at the end of the suit. Thus throughout this dispute, the Appellant never raised via pleadings, pre-trial processes, calling of witnesses, or addresses, the issue of the attorney’s capacity or establishment of same. Since the text of the power of attorney is a matter of fact, the moment of enquiry is gone.

The arguments on the judgment being against the weight of evidence on account of the Respondent’s failure to prove the capacity of Claris Effah-Quayson to commence this action on behalf of the Plaintiff are dismissed as unsupported by the pleadings, testimonies, exhibits, arguments and law.

Under the guise of raising a fundamental matter of capacity to empower witnesses once an action has been commenced by an attorney, Appellant counsel raised in his Reply, an attack against the Respondent’s representative who was given a Power of Attorney by the Respondent to ‘To testify as a representative of Ex-Im Bank at the trial of Ex-Im Bank v Bibiani Logging & Lumber Company Ltd. in Accra, Ghana’.

He argued that the evidence before the court in exhibit A – the power of attorney held by Mr. Sorie, was that the Respondent authorized a company Global Recovery Group LLC to ‘hire legal counsel and initiate litigation against the Obligors in the name of Ex-Im Bank’. They ask on page 7 of their Reply ‘whether the Plaintiff can legitimately empower another person after it has ceded the conduct of the suit to its lawful attorney to conduct on its behalf.’ They also say on page 8 of the Reply that ‘The argument made … is that having appointed Claris Efa-Quayson to institute and conduct the suit for and (sic) its behalf, the Plaintiff could not validly be taking steps in the proceedings such as appointing others to act in the matter without revoking the power of attorney it gave to Claris Efa-Quayson’.

Now this manner of proceeding is totally unacceptable and cannot in any manner be countenanced. The arguments against the capacity of the Respondent’s main witness to represent the Respondent when the action had been commenced by Efa-Quayson do not emanate from the pleadings or trial or judgment, and they do not emanate from the proper ground of appeal or even from the additional grounds of appeal which were filed and argued without prior leave of court. They were thrown into the records after the Respondent had responded to the submissions filed on this appeal. They sin entirely against rule 8(9) of CI 19 which reads:

8(9) Despite subrules (4) to (8), the Court in deciding the appeal shall not be confined to the grounds set out by the Appellant but the court shall not rest its decision on a ground not set out by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.

Such a practice should be roundly condemned and not honored with evaluation. Clearly, Appellant counsel is fishing all over the place under the guise of addressing the court on the important legal question of capacity to sue and testify. Exhibit A makes it clear that the duty of GRG was to hire counsel and initiate litigation. It did not say that GRG was to directly issue the writ as an attorney of Ex-Im bank. The litigation was to be initiated in the name of Ex-Im bank. (emphasis mine). Since the litigation was to be in the name of Ex-Im bank, and indeed, it was commenced in the name of Ex-Im Bank, how could there arise any question regarding who may authorize the witnesses and representatives of Ex-im bank after the action had commenced? A party who cedes the issue of a writ to an attorney does not lose the right to participate in any manner in the trial.

This tepid argument around a serious question such as the capacity to authorize testimony in an action that has been completed cannot be entertained by a court of equity and I dismiss same.

As part of the additional grounds of appeal which were filed without leave, the Appellant counsel argued that the learned trial judge applied Ghana Law in resolving the dispute between the parties – particularly the Sale of Goods Act Act 13. It was his complaint that since the parties agreed that the contract was to be governed by the law of New York State, the judge erred in applying the provisions of the Sale of Goods Act in resolving the issues of acceptance and rejection of the equipment in issue.

What is difficult about this argument is that it seems oblivious of Section 40 of the Evidence Act which reads:

Section 40—Foreign Law

The law of a foreign state is presumed to be the same as the law of Ghana.

It is therefore unacceptable that Counsel for Appellant should complain about Ghana law being applied to the tenets of this transaction. This is especially where the transaction was conducted in Ghana and the alleged rejection of the goods was supposed to have occurred in Ghana. If counsel was confident that the law of New York regarding sale of goods was different from the law of Ghana, it was their duty to present that law for the resolution of the case. Having failed to do so, an appeal is not a proper forum to allude to matters of fact, because the terms of foreign law is a matter of fact to be proved.

Is the judgment against the weight of evidence? Counsel for Appellant in her submissions on appeal submitted that the record at page 337 of the ROA showed that Appellant listed the defects they found on the equipment and sent it to NFS and USEXI through exhibits G, 14-18, 20-21. After that USEXI said they would not come for the machines but replace the defective parts which were sent and received. She argued that the reporting of defective parts constituted rejection. However, with the promise of the replacement ‘the Defendants agreed to accept the goods subject to the provision of replacement parts for the equipment that was defective and failure to so supply the parts constituted a breach of the agreement to accept the goods...’

Clearly, this argument fails to appreciate what the concepts of ‘acceptance’ and ‘rejection’ cover in the law on sale of goods. One cannot reject goods and turn round to accept them subject to a new condition of contract (such as a demand for repair of defective parts) and then return to a position of rejection if this new condition of contract is not complied with.

Beyond the above arguments, Counsel for Appellant found no complaint against the reasoning of the learned trial judge. The appeal is dismissed. Cost of Five Thousand Ghana cedis (GH¢5,000.000) in favour of Plaintiff/Respondent.