IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
TAMALE - A.D 2018
ABDULAI ZAKARIA - (Plaintiff /Appellant)
THE MANAGING DIRECTOR AND THE FORMAL BRANCH MANAGER - (Defendant/Respondents)
DATE: 11TH MAY, 2018
CIVIL APPEAL NO: H1/10/2017
JUDGES: V. D. OFOE J.A. (PRESIDING), AGNES M. A. DORDZIE (MRS) J.A., GERTRUDE TORKORNOO (MRS) J.A.
NO LEGAL REPRESENTATION FOR PLAINTIFF /APPELLANT
COUNSEL FOR DEFENDANTS /RESPONDENTS: FREDRICK OWUSU ASANTE
GERTRUDE TORKORNOO(MRS), J.A.
The Appellant is a customer of the Tamale main branch of the Barclays Bank (the bank) and commenced this action in the Circuit Court in Tamale. He was an employee of the Ghana Education Service (GES). The Respondents work as employees of the bank.
The matters that led to this appeal arose from a series of communications that passed between the Ghana Education Service, the bank and the Appellant. I will set out in extensor the words used in the communications because this is an action for defamation.
On 30th November 2010, the GES addressed a letter to The Bank Manager, Barclays bank,
Ghana Tamale’ in these words:
‘EMBARGO ON SALARY MR ABDULAI ZAKARIA (STAFF ID NO. 207842).
‘The teacher, who is an employee of Ghana Education Service, is not at post. We are entreating you to place a ban on his salary for November 2010 and subsequent months until further notice’.
In his Statement of Claim, it was the case of Appellant that after contacting Appellant, and with Appellant’s participation, the then manager of the Tamale Main Branch of the bank named Robert, supervised the blocking of the Appellant’s salary and paid back his salary received in January 2011 to Government chest. This reflected in a bank statement printed before the account was closed on 27th May 2011.
On June 10 2011, the Record of Appeal (ROA) shows that the GES wrote a second letter to the Manager of the bank referencing the first letter of ‘10th November 2010’ and asked that all the salaries of the Appellant from November 2010 and subsequent months should be paid back to government and advice given to GES accordingly.
According to the Appellant, the 2nd Respondent took over the position of Tamale main branch manager of the bank from the said Robert.
Almost one year, ten months after the first letter of November 2010, GES wrote another letter to the bank dated 27th September 2012 headed ‘RE-EMBARGO ON SALARY MR ABDULAI ZAKARIA – STAFF NO (207842). The letter said:
‘I would be very grateful if you could furnish me with accumulated salaries from the period we put an embargo on the above-mentioned teacher’s name from November 2010 to January 2011. Please, also furnish me with evidence of payment back to government chest’
The bank, acting by the 2nd Respondent, responded to this letter on 18th October 2012 with these words:
‘Reference to your letter dated 27th September 2012. Attached is a copy of a receipt for the payment to government chest of the November 2011 salary of the above-named customer. Kindly note that the instruction for the salary embargo received was from November 2011 and not November 2010 as indicated in your letter. Kindly acknowledge receipt on the second copy of this letter’.
The court records show a copy of a Pay-In slip of the money described as the November 2011 salary on page 54 of the ROA. It is headed ‘Bank of Ghana Cheque Paying In Slip (BOG Cheques)’. It indicates the branch as Tamale, date as 18th October 2012, an account number, and reflects a legend that a BBG Cheque number 430511 in the sum of 178.87 GHC as ‘Govt Salaries paid to Chest’ was paid in by one Martin Banlera with telephone number 0208075664.
The reaction of GES to this information was a letter dated 25th October 2012. They complained in the following words against a failure to embargo the Appellant’s salary from November 2010 to January 2011 as requested in their letter of 30th November 2010. It said:
‘Management takes exception to the way and manner the Barclays Bank Gh Ltd., Tamale handled the embargo and payment back to chest of our employee, Zakaria Abdulai (Staff ID 207820), stating that our letter was dated November 2011 and only paid back GH¢178.87 to chest which is very much regrettable. His name was deleted in February 2012 so we expected that his salaries for November 2010 to January 2012 should have been paid to government chest as per our letter…’
The case of Appellant is that, the 2nd Respondent wrote the response of 18th October 2012 without contacting him. He complained that the 2nd Respondent had claimed that he had supervised the blockage and return to government chest of the sum of GH¢178.87 from Appellant’s account, which 2nd Respondent claimed to have accrued in November 2011 and paid back in 2012.
According to the Appellant, this statement led to the Appellant writing a letter found on page 63 of the Record of Appeal and dated 12th June 2013, and addressed to the Branch Manager, Barclays Bank Tamale. He said that:
‘I should be very grateful if you could kindly check the period for payments of unearned salaries back to government and proof that to my employer as contained on my bank statements you issued to me. I was accused for enjoying my salary when it was blocked on the 30/11/2010 and later deleted at the end of January 2011 and as contained on my employer latter to you as a reminder of unearned salaries in September 2012. Please manager help me to clear my name of this criminality as alleged by my employer with proof of your latter to them, indicating that the unearned salary was November 2011 as I was not on salary.
The period of payment as contained on the bank statement are 24/12/2012 and for January salary, (14/01/2011) was paid 27/05/2011. My employer now alleged it was more than two months per your letters to them. I hope you will write to them to explain the correct contents on the bank statement as the official correspondence between customers and the bank’.
According to the Appellant’s case, in his meeting with the 2nd Respondent regarding the just quoted letter, the 2nd Respondent insisted that he had evidence that he 2nd Respondent had supervised a salary embargo against Appellant in November 2011 and repayment of the accrued sum in 2012.
The Appellant says that this statement was a ‘mighty lie’ because the embargo was in November 2010 and the return of his November 2010 salary to chest was in January 2011.
Aggrieved with this position taken by the 2nd Respondent, the Appellant wrote a petition to the 1st Respondent in his capacity as Managing Director of the bank. In the petition, he called on the 1st Respondent to intervene and correct the false impression created by 2nd Respondent that the Appellant had enjoyed salary from the GES after the embargo issued on 30th November 2010 and the return of his salary to chest in January 2011.
That letter can be found on page 60 of the ROA. It is addressed to the ‘Managing Director Barclays Bank Ghana’ and headed:
‘INVESTIGATION INTO ALLEGED UNEARNED SALARIES ENJOYED IN 2011, AS CLAIMED BY YOUR BRANCH MANAGER, MOHAMMED ABDUL BASIT, TAMALE’. The letter reads:
‘With reference to the attached letter dated 12th June 2013, I wish to call for your intervention to clear out the mess created by your branch manager, in Tamale by name Mohammed Abdul-Basit.
I have been a loyal customer of your bank for many years of good standing and was told that I was enjoying my salaries in 2011, when my employer had deleted my name from government payroll, in January 2011. The bank placed an embargo on my salary and accounts on 30th November 2010, upon an instruction from my employer. Your Manager wrote letters to my employer claiming I was still on salary, so my employer reported me to the police and I was arrested. The bank statement indicated payment to government but my employer claimed, they have not received any proof of payment, I proofed to your manager but as at Wednesday, the 12th of June, 2013, he still claimed I took salaries in 2011’.
The case of the Appellant against the 1st Respondent in his pleadings is that the 1st Respondent did not act as requested and so he ‘sanctioned the false statements’ against the Appellant.
According to the Appellant, the result of the alleged falsehood in the letter of 18th 0ctober 2012 was that the GES wrote to several bodies including the Controller and Accountant General Department, the GES Head office, the Tamale District Court, CHRAJ in Tamale, the Ghana Police Force and Regional Education Office who contacted him for investigations.
The ROA on page 70 reflects that the Appellant originally commenced an action against the Respondents in the Circuit Court, Tamale. On 14th November 2014, the Circuit Court dismissed an application to strike out the writ on the ground that the action against the Respondents was proper on account of the Appellant’s claims being against the
Respondents in person. On 27th November 2014, the Circuit Court Judge again directed that the case be adjourned sine die because it was yet to get to the summons for direction stage. It is not clear what happened to that suit and why records from that suit were included in this Record of Appeal.
However, on 26th February 2016 the Appellant again commenced this present action that we are dealing with, which as stated earlier, is an action in defamation against the
Respondents for the communication of 18th October 2012 signed by the 2nd Respondent.
He claimed for:
GH¢10,000.00 for defamation of character when the Defendants published false statements on the 18th October, 2012 to the effects that Plaintiff was on salary in November, 2011 and the salary had been embargo blocked and paid to government chest in 2012, which was false intended to defame me, as Plaintiff was investigated by several bodies and such letters in his file at Ghana Education Service, Tamale.
The Defendant to publish same to Plaintiff employer (GES, Tamale) for the correction of the defamed false statement which is in Plaintiff file.
In paragraph 27 of his statement of claim, he set out the alleged defamatory words and said: ‘The specific words used were that November 2011 salary was received by the Defendants, paid to my accounts and the first Defendant had paid such to the bank of Ghana.’ He went on to say that these statements affected his reputation as these words are now in the public. They had lowered him in the estimation of right thinking members of society because it makes them shun his company and avoid him.
The Respondents entered conditional appearance through a lawyer on 4th March 2016. They filed a Statement of Defence in which they averred that whatever their acts, those acts were done as employees of the bank. Secondly, whatever errors were found on the documentation issued with regard to the Appellant were computer-generated errors.
In his Reply, the Appellant was clear that he had not sued the Respondents in their personal capacity. He said in paragraphs 4 and 12:
The Plaintiff had not sued the Defendants in their personal capacity but as the 1st Defendant the principal and the 2nd Defendant as the agent. The 1st Defendant act on behalf of Barclays Bank.
12. The managing director act for Barclays Bank Ghana which the bank is a legal entity, that is can sue and be sued. Agency is a special relationship formed between two persons when one, the principal, employs another, the agent to enter into a contract on the principal on his/her behalf. Wherefore, an agent is a person who is employed to bring his principal into contractual relations with third parties. Professor Nyarkoh, 1988:52
He denied the occurrence of any computer errors.
On 15th June 2016, Respondent’s counsel applied for an order setting aside the Plaintiff’s writ and processes. In his affidavit in support of the motion, the 2nd Respondent said in Paragraph 8 (found on page 27 of the ROA) that ‘The Defendants only acted on instructions which came to him in the course of his duties as the branch manager’. He went on to say that the Defendants dealt with the Plaintiff’s employer GES in respect of the Plaintiff’s account, as officers of Barclays Bank. He pointed to Appellant’s own position that he did not sue them in their personal capacity but as agent and principal respectively.
It was his position that the Respondents are agents of Barclays Bank and that the 1st
Respondent is not the 2nd Respondent’s employer or principal. Whatever they did in relation to Appellant’s account was not in their personal capacity, but on behalf of Barclays Bank. As such, they could not be sued in their personal capacity.
Although the Appellant resisted the application in a 43 paragraph affidavit, the court agreed with the Respondents. On 18th October 2016, and in a ruling found on page 43 of the ROA, the court granted the application to strike out the writ against the Respondents. His reasons were that Barclays Bank is a corporate body that can sue and be sued, and that it is legal person and therefore its officials were acting in the course of their duty on behalf of the bank. He said that the best person as a Defendant is the Barclays Bank and any action should be against the bank and not the officials working under it. He consequently struck out the writ of summons and statement of claim against the Defendants and awarded cost of GH¢500.00 for each Defendant.
The Appellant appealed on the following grounds of appeal:
a. The learned trial judge erred by accepting the photo-copied motion paper and affidavit filed on the 15/6/16 to set aside the writ and processes filed by Plaintiff, for which the ruling was based and made, against the court rules.
b. The learned trial judge erred in his ruling based on the photo-copy motion paper and affidavit filed on the 15/5/16 by the Respondents and moved in court by the lawyer, for which the affidavit was not commissioned in accordance with the Circuit Courts orders and rules.
CI 47 which is the orders governing the administration of the circuit court was disregarded and disobeyed, for that matter the ruling from the below court must be set aside.
CI 47, order (20) on affidavit, rule 2 is as follows, person who may take affidavit. Affidavit shall be sworn before a Judge, Magistrate, Registrar, Commissioner for oath, any officer empowered by these Rules by any other enactment to administer oaths.
Order 20, rule 10 (2) states, where affidavit is sworn at any office of the court, the official stamp of the officer may be substituted for the signature or initial required by this rule.
The photo-copy motion paper and affidavit was not commissioned by order 20 (2) office holders.
Commissioned requires the Registrar, Judge, Magistrate or Commissioner for oath to have sign and stamp the affidavit of the Respondents to make the application valid and in obedience to the court rules.
Order 20, rule 4 (5) subject to rule 6 an affidavit shall be signed by the deponent and the jurat shall be completed and signed by the person before whom it is sworn.
Order 20, rule 4 (6) the jurat shall state the full address of the place where the affidavit was sworn, the date when it was sworn and the name and title of the person before whom it was sworn.
Order 20, rule 13 use of original or copy of affidavit. Rule 13 (1) an original affidavit may be used in any proceedings if it bears a filing stamp.
c. The learned trial judge erred by ignoring exhibit B2 of the record of proceedings which was a ruling by the same Circuit Court on the same motion by the same law firm, page 3, paragraphs 5 and 6 of the submission by the lawyer Amoaku based on law, stated that the right person to be sued is the Managing Director Barclays Bank Limited, Accra.
d. The Companies Act of 1963 Ghana, Act 179, Section 193 on Managing Director, section 193(a) the Directors may from time to time appoint one or more of their body to the office of Managing Director and to any such appointment of Section 192 of the code.
Section 216 on General savings of existing law relating to officers of the Company Code of 1963 (Act 179) the rights, duties and liabilities of officers and agents of companies shall continue to be governed by rules of the common law and equity relating to principal and agent and master and servant, paragraph 12 of the Respondents illegal affidavit denied the fact that the Managing Director Barclays Bank Ghana Limited, Accra is the principal by law, but claimed the Branch Manager, (2nd Respondent) and (1st Respondent), the Managing Director ware all agents of the Bank.
The Barclays Bank Ghana Limited handled the issue of Plaintiff salary embargo and payment back to government chest of unearned salaries, prove of their transaction appeared on the Bank Statement which was exhibited with which the Bank printed for me as a proof in May, 2011.
But in November, 2011 I was investigated again, 2nd Respondent, the Branch Manager Barclays Bank Ghana, Tamale wrote to my employer of my salary for November, 2011 was received in the Bank and he had proved. 2nd Respondent, the Branch Manager name was put on the title of the writ for him to prove to the bank and court that he had prove as per exhibits Respondents attached to the illegal and unacceptable affidavit and motion paper as his evidence.
e. My lords, Plaintiff had obeyed the rules governing the court, had filed an affidavit in opposition dated 21/6/16, to the Respondents’ motion paper and affidavit, had also exhibited the exhibits by a certificate of exhibits, the affidavit in opposition commissioned by the high court registrar with date written, it was an original affidavit and not photo-copy.
f. The learned trial judge erred in ignoring the exhibits, exhibited with the Plaintiff affidavit in opposition to the Respondents’ application to set aside Plaintiff writ and statement of claim whiles accepting Respondents’ exhibits which was attached to their application.
g. Plaintiff will further rely on the exhibits, record of proceedings, rules governing the circuit court proceedings, motion paper and affidavit of the Respondents and same of Plaintiff, and search document to prove his case.
A cursory look at these grounds of appeal show that grounds (b), (c) (d), (e), (f) and (g) sin greatly against the Court of Appeal 1997 CI 19 on what constitutes grounds of appeal. Rules 8 (4), (5) of the CI 19 direct variously in these terms:
8(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated (emphasis mine)
8(5) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the Appellant intends to rely at the hearing of the appeal without an argument or narrative and shall be numbered consecutively (emphasis mine)
8(8) The Appellant shall not, without the leave of the court, argue or be heard in support of a 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.
Grounds (b), ( c), (d), (e) are irredeemably argumentative and are hereby struck out. Ground (g) is not a ground of appeal but a statement of the Appellant’s intended objectives in making his arguments. It is also struck out. These grounds do not qualify as grounds of appeal.
The two remaining grounds (a) and (f) are partly problematic. Although they allege errors by the court and give particulars of the alleged error, they partly offend against Rule 8 (4) by failing to state the nature of the error. Which areas of law do the alleged errors in grounds (a) and (f) arise in? The grounds of appeal do not clearly say.
In the case of ground (a), we will have to presume that the area of law in which the error is alleged to have occurred in is the application of the rules of civil procedure on account of the words found at the end of the ground of appeal. It ends with the words ‘….for which the ruling was based and made, against the court rules’. This presumption is justified because of the content of Appellant’s submissions that address us on alleged violations of civil procedure rules.
In the case of ground (f), there is no duty in law that the error is alleged to have occurred in, and we will make no presumptions. We will work with the particulars of error described in the ground of appeal.
Ground (a) complains that the learned trial judge erred by accepting the photo-copied motion paper and affidavit filed on the 15/6/16 to set aside the writ and processes filed by Plaintiff. The ground of appeal states that the ruling was based on this photo-copied motion paper and affidavit and this violates court rules.
In his submissions, Appellant referred copiously to Order 20 of the High Court (Civil Procedure) Rules, 2004 CI 47. He pointed out that Order 20 (2) directs that an affidavit shall be sworn. This is true. He also pointed out that the Respondents’ affidavit in support of the motion to strike out his writ was not sworn. This is also true.
However, this is a most perplexing ground of appeal and the submissions made in support of the ground of appeal are equally perplexing. The Appellant opposed the application to strike out the writ that led to the decision appealed against in a 43 paragraph affidavit which can be found from pages 28 to 33 of the Record of Appeal. Nowhere in that affidavit does he complain about the motion paper and affidavit in issue. Neither does he do so in the arguments that preceded the ruling on appeal that disposed of the action.
Thus to raise this matter now is to raise a totally new complaint on appeal. It is a complaint that the trial judge did not deal with and so made no decision on. And as an appellate court, our remit is to rehear the parties on matters that had been raised with the trial court and ruled on. We are not a court of first instance in which matters that have not been dealt with in the court below can be considered.
The purview of new matters that may be raised on appeal is very narrow. In Clipper
Leasing Corporation v Attorney General, Ghana Airways in Liquidation, Civil Appeal No J4/40/2015, the Supreme Court speaking by Pwamang JSC reviewed the situation when an appellate court may admit a new case first raised on appeal. He said on page 31 of the judgment that ‘the general rule is that a party cannot, on appeal, rely on a ground in support of his claim or defence which ground was not raised at the trial court. The exception to this general rule is in respect of a substantial point of law that arises on the record of appeal.’
He cited the decision of the Supreme Court per Georgina Wood JSC (as she then was) in Attorney General v Faroe Atlantic Co Ltd 2005-2006 SCGLR 271 at 309, where she identified more exceptions as the question of jurisdiction, whether an act or contract is made illegal by statute, and whether the legal question sought to be raised is a substantial point of law and can be disposed of without the need for further evidence.
We think that this point raised by Appellant falls into the last category of raising a substantial point of law. And that point of law is whether a court can rely on a photocopied motion paper, and the matters of fact raised in an unsworn affidavit to arrive at a decision, and whether the alleged reliance on the photocopied motion paper and unsworn affidavit constitute an error such that the decision ought to be set aside on appeal.
So what is our evaluation regarding this motion paper found on page 25 of the ROA and affidavit of the Respondents? We will consider the two processes separately. First, we need to point out that the copy of the motion paper has all the proper markings of a motion paper filed in court. The suit number and name are properly set out, the name of counsel moving it and the kind of motion it is are also clearly set out. It is signed, the receipt numbers for payments done are all clear on the face of the record. So the record shows that this was a proper motion paper that was paid for and filed in the registry of the court.
We also do not hesitate to point out that the documentation in any record of appeal are photocopies, and therefore we cannot posit a finding that with the Motion paper in issue was filed as a photocopy of an original document, as alleged by Appellant.
But more importantly than the first two points, whether the motion paper filed was even a photocopy of an original that was not brought to court or not, a photocopy is by law, a proper copy of any document. Sections 163 and 166 of the Evidence Act 1975 NRCD 323 provide that:
163. Original writings.
(1) An original of a writing is the writing itself or a copy intended to have the same effect by the person executing or issuing it.
166. Duplicate treated as original
A duplicate of a writing is admissible to the same extent as an original of that writing unless
a genuine question is raised as to the authenticity of the original or the duplicate, or
in the circumstances it would be unfair to admit the duplicate in lieu of the original
Thus, since there was no genuine question raised as to the authenticity of the motion paper that was presented to the court for hearing, and Appellant still raises no question about authenticity except to complain that the process was a photocopied document, what is found on page 25 of the ROA is evidence of a properly filed motion paper.
We also do not at all find it unfair to recognize whatever version of the motion paper that the trial judge dealt with as a proper copy of it, because to the extent that the motion paper passes for a proper motion paper, and it was signed, and not objected to before the hearing of the motion, any decision based on it should not be attacked on appeal on the mere account that the Appellant alleges that he did not see an original form of that motion paper in the lower court. We think that should the Appellant’s submission about the motion paper being a photocopied version even be true, his submissions should still be dismissed and we dismiss same.
The Appellant also complains that the affidavit was not commissioned. We have looked at it and it can be found from pages 26 to 27. It is clearly not sworn before a Commissioner for oaths, or District Magistrate, or a Registrar of the Superior court of judicature authorized in that behalf by the Chief Justice – thus not conforming to the requirements for the swearing of oaths in affidavits under the Oaths Decree 1972 NRCD 6. It also does not conform to the form of affidavits as provided for under Order 20 rule 2 of CI 47 that provides:
(2) Persons who may take affidavits
Affidavits shall be sworn before a Judge, Magistrate, Registrar, Commissioner for Oaths, any officer empowered by these Rules or by any other enactment to administer oaths.
We hold that the failure to swear the oath before a commissioner renders the affidavit invalid as an affidavit. Order 81 rule 1 directs that non-compliance with rules of civil procedure ought to be regarded as irregularities which do not render proceedings void. And though Order 81 rule 2(2) does not even allow applications to set aside proceedings for irregularity unless they are made within a reasonable time and the party applying has not taken any further steps after knowledge of the irregularity, the scope of application of Order 81 has been pronounced on by the Supreme Court.
In Republic v High Court, Accra: Ex Parte Allgate Co Ltd (Amalgamated Bank Ltd Interested Party) 2007 – 2008 SCGLR 1041, the Supreme Court gave directions on the effect of any defect in compliance with civil procedure rules within the context of Order 81 of CI 47. The court held unanimously in holding 1 that ‘Noncompliance is to be regarded as an irregularity that does not result in nullity, unless the non-compliance is also a breach of the Constitution or a statute other than the rules of court or the rules of natural justice or otherwise goes to jurisdiction’.
Thus to the extent that the failure to swear the oath in the affidavit before a person authorized under NRCD 6 constitutes a breach of statute, in addition to the rules of court, the defect in the affidavit moved it beyond an irregularity that was cured by the failure to raise an objection to the defect timeously. It rendered the document invalid as an affidavit. So our answer to the point of law raised in the first ground of appeal is that the motion paper was properly before the court, and properly relied on, but the affidavit was invalid as an affidavit and ought not to have been relied on by the Judge. Ground (a) of the appeal is therefore partly upheld. It is dismissed as pertains to the motion paper, but upheld as pertains to the affidavit.
So what happens to the decision? Should the reliefs sought by the Appellant also be upheld? The Appellant is seeking inter alia, the following reliefs:
That the ruling dated 8th October, 2016 to be set aside.
That the motion paper and affidavit filed on the 15/6/16 by the Respondents be struck out as illegal, frivolous and not in conformity to the rules of the court, as commissioning an affidavit is mandatory.
It must be noted that the ROA shows that the decision is dated 18th October 2016 and not
8th October 2016. And we must say that notwithstanding the striking down of the affidavit, we do not at all agree that the decision of the learned trial judge should be set aside.
Every appeal is a rehearing. This is the direction of Rule 8 (1) of CI 19. As a function of rehearing, we are enjoined to review the whole record and come to our own conclusions on the import of the evidence and the law as applied to it. In the conduct of this function, we agree with the learned trial judge on his decision to strike out the writ and statement of claim directed at the Respondents. These are our reasons.
The purpose of an affidavit is to present matters of fact to the court in support of an application. In the present case, there are no matters of fact that are relevant in the determination of the application that the court dealt with.
The case of the parties was amply presented in the pleadings and the Appellant’s affidavit which remains part of the record. The Appellant’s Statement of Claim set out the cause of action. The cause of action clarified that the Appellant’s complaints arose from communications made with officers of the bank regarding an embargo against the withdrawal of his salary and the return to government chest of same. With the clarity of the cause of action given in the pleadings, the trial court could determine whether or not to strike out the writ because no cause of action had been disclosed against the Respondents. The rules of court provide in Order 11 rule 18:
18. Striking out pleadings
(1) The court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that
a. it discloses no reasonable cause of action or defence; or
b. it is scandalous, frivolous or vexations; or
c. it may prejudice, embarrass, or delay the fair trial of the action; or
d. it is otherwise an abuse of the process of the court
and may order the action to be stayed or dismissed or judgment to be entered accordingly.
It is trite knowledge that an action is sustainable only if the Plaintiff has a cause of action against the Defendants. In the present suit, the Appellant himself avers in paragraphs 4 and 12 of his Reply that he ‘had not sued the Defendants in their personal capacity’. If this is so, then he had no business indorsing a writ with a claim against them. A writ presents a claim against the Defendant indicated on it. The action must demand that the Defendant pays or does what is indorsed on the writ as the claim. And if the Respondents are not alleged to be liable in their personal capacity for what is indorsed on the writ, then the claim was directed at the wrong Defendant.
Appellant also alleged in Paragraph 4 of his Reply that he sued the 1st Defendant as the principal of the bank and the 2nd Defendant as the agent. He recognized that the bank is a legal entity, that can sue and be sued, and yet he was under the misapprehension that in the role of an agent of the bank, the Managing Director could be sued for the acts of the bank and its employees.
This is a totally erroneous comprehension of the law of agency as applies under company law and reverses the direction of law. In the law of agency simpliciter, the law provides that agents may bind or bring benefits to their principals under the authority of their appointment. It is the principals who remain liable to answer to the third parties that the agents deal with, and not the agents
One of the foundational doctrines of company law is the recognition of the legal personality of a company as distinct from its shareholders and directors. Defined as the principle in Salomon v Salomon [1895-1899] All ER Rep 33 Lord Macnaghten articulated the principle as follows ‘the company is at law a different person altogether from the subscribers to the memorandum; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are manager, and same hands receive the profits, the company is not in law the agent of the subscribers or a trustee for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act’.
Section 24 of the Companies Act 1963 Act 179 titled ‘Capacity of Companies’ mainstreams this principle into statute by providing that subject to its Regulations, a company shall ‘have all the powers of a natural person of full capacity’.
When it comes to how companies act in their capacity as natural persons, Section 139 (1) of Act 179 directs as follows: ‘an act of the members in general meeting, the board of directors, or a managing director while carrying on in the usual way the business of the company shall be treated as the act of the company itself; and accordingly the company shall be criminally and civilly liable for that act to the same extent as if it were a natural person’. (emphasis mine)
The Supreme Court through Her Ladyship Akuffo JSC (as she then was) affirmed this principle of distinction from and liability in companies for the acts of their agents in the case of Morkor v Kuma (East Coast Fisheries Case) [1999-2000] 1 GLR 69-75 in the following words ‘save as otherwise restricted by its Regulations, a company, after its registration, has all the powers of a natural person of full capacity to pursue its authorized business. In this capacity, a company is a corporate being, which, within the bounds of the Companies Act 1963 [Act 179] and the Regulations of the company may do everything that a natural person might do. In its own name, it can sue and be sued and it can owe and be owed legal liabilities. A company is, thus, a legal entity with a capacity separate, independent and distinct from the persons constituting it or employed by it. From the time the House of Lords clarified this cardinal principle more than a century ago in the celebrated case of Salomon v Salomon & Co., it has, subject to certain exceptions, remained the same in all common law countries and is the foundation on which our Companies Act 1963 is grounded.’
So, the acts of the managing director and other persons who speak for the company are recognized as acts of the companies they serve, not their own acts. This is because companies have separate legal identities from their shareholders and directors who are mere agents of the company. It is the company who is the principal and remains liable to answer to the third parties that the agents and officers deal with. The managing director is not the principal who answers for the company and other employees of the company. It is vice versa.
And this brings us to the principle of vicarious liability in employment law. This principle also places liability for acts done in the course of employment on the employer. Act 179 provides for the operation of this principle in Section 140 (3) with these words;
‘Nothing in this section shall derogate from the vicarious liability of a company for the acts of its employees while acting within the scope of their employment’.
This position is also reflected in Section 216 of the Companies Act, 1963 (Act 179) in the following words
‘The rights, duties and liabilities of officers and agents of companies shall continue to be governed by the rules of the common law and equity relating to principal and agent and master and servant except in so far as those rules are inconsistent with the express provisions of this Act’.
Thus the 2nd Respondent, as an employee acting in the course of his work for the bank cannot be sued to answer for acts executed in the name of the bank as part of his work. Neither can the Managing Director be sued for ignoring the alleged wrongful acts of the employees of the bank.
On the back of these cardinal and trite principles of law, it is easy to appreciate how the court, arrived at his decision to strike out this writ. He was expected to do so after reading the pleadings which set out the cause of action. It does not matter that he did not have the benefit of Respondent’s affidavit. Just the motion and Appellant’s affidavit were enough.
In his submissions in support of this appeal, Appellant urges that in the previous circuit court action, the Respondent had admitted that the proper person to be sued for the complaint he was making was the Managing Director of the bank and so the trial court should have been swayed by the position.
Unfortunately, these submissions continue to reflect a complete misapprehension of the judicial process. First, the courts are not swayed by the arguments of counsel. The courts are directed by what the law states and its proper application. Thus there is no value in quoting the arguments of counsel for Respondents made before the previous circuit court about the Managing Director representing the bank, if it does not represent a proper statement of the law. So, like the learned trial judge, we will not kowtow to this submission.
On a rehearing and from an evaluation of the record of appeal, we find that there is nothing in the pleadings that show that the 1st Respondent undertook any acts complained of except an alleged nonchalance about investigating the Appellant’s complaint. The purported cause of action in this suit is in defamation. The managing director is not alleged to have co-authored the alleged defamatory words or even to have even copied in the communication.
The alleged failure to be directed by the Appellant in his revelation of the alleged debacle cannot give rise to any liability against the managing director for whatever outcomes are alleged to have arisen from the acts of the employee. The managing director is himself an employee of the bank, just like the 2nd Respondent. The learned trial judge was totally right in recognizing that no action could be brought against the managing director. He was also right in finding that no action could be brought against the 2nd Respondent because he authored the communications complained of in the course of his employment.
Although Ground (a) of the appeal as pertains to the Respondent’s affidavit is upheld, the decision of the court is affirmed.
Ground (f) complains that the learned trial judge erred in ignoring the exhibits with the Appellant’s affidavit in opposition whiles accepting Respondents’ exhibits which was attached to their application.
We have looked at the ruling. The learned trial judge clearly indicated that he had considered the motion paper and affidavits of both sides of the dispute and heard their submissions. Thus his decision was premised on the documentation from both sides. This ground of appeal is not supported at all by the record and must be dismissed. The appeal is dismissed. The decision is affirmed. Cost of Two Thousand Ghana Cedis (GH¢2,000.00) in favour of the Defendants/Respondents.