GHANA TELECOM COMPANY LTD VS INTERNET GHANA COMPANY LTD (H1/82/2022) [2022] GHACA 168 (15 December 2022)

IN THE SUPERIOUR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA-GHANA CORAM: ADJEI, J. A BARTELS-KODWO, J. A BAFFOUR, J. A SUIT NO: H1/82/2022 DATE: 15th December, 2022 GHANA TELECOM COMPANY LTD. -- PLAINTIFF/APPELLANT VRS INTERNET GHANA COMPANY LTD.=DEFENDANT/RESPONDENT AND INTERNET GHANA COMPANY LTD. =PLAINTIFF/RESPONDENT VRS GHANA TELECOM COMPANY LTD. = DEFENDANT/APPELLANT J U D G M E N T ADJEI, J. A: The cases before us on appeal are consolidated suits filed by the respective parties. The first suit was filed by Ghana Telecommunication Co. Ltd. against Internet Ghana Limited as suit number AC No. 49/2007. The second suit was filed by Internet Ghana Limited against Ghana Telecommunication Ltd barely five years after the institution of the first suit. The second suit was registered as RPC/481/2012. The High Court, in its judgment delivered on 9th January, 2020 largely dismissed the Plaintiff’s claim in the first suit and dismissed its counterclaim in the second suit. The trial High Court granted substantially the reliefs sought by the Plaintiff in the second suit. The Plaintiff in the first suit, who was also the Defendant in the second suit, was dissatisfied with the judgment delivered by the trial High Court filed an appeal against the decisions in both cases. For the purposes of this appeal, the Plaintiff/Respondent would be described as the Appellant. The Defendant in the first suit, who was also the Plaintiff in the second suit, also filed a notice of variation in respect of the second suit to increase the amount awarded in its favour as general damages and would also be described as Respondent. The brief facts of the case, as could be gleaned from the pleadings filed and the judgment, were that the Appellant sued the Respondent to recover an amount of ¢9,168,249,654.00 cedis (GH¢916,824.96) being outstanding in respect of services the Appellant rendered to the Respondent and the interest therein from 31st December, 2006, to the date of final payment. The Appellant entered into an agreement with the Respondent on 12th November, 2002 to support the Respondent which is a registered company in Ghana to engage in the business of provision of internet to support it to provide multimedia internet services to its subscribers. The services the Appellant rendered to support the Respondent to perform its mandate included Co-location services, EL services, Operator Access services, Leasehold services, and Leased Lines services. According to the Appellant, it provided the services mentioned above on credit to the Respondent, and the aggregate of the outstanding amount is the sum endorsed on its writ of summons. The Respondent, in its statement of defence and counterclaim, stated that at the time it engaged the services of the Appellant to support it in providing internet services, the Appellant was not in the business of providing services, but after it had engaged the Appellant, it started providing retail internet services to the general public based on the same technology to compete with it. The Respondent stated that the Appellant engaged in anti-competition and unfair trade practices to kick it out of its registered business and succeeded in poaching 649 of its customers, as a result of which it lost an amount of $429,416.52 in revenue. The Respondent also counterclaimed against the Appellant for special damages in the sum of $895,061.52. The Respondent further counterclaimed against the Appellant for general damages arising from unfair trade practices of the Appellant and damages for breach of contract. The Respondent instituted the second suit against the Appellant and based on the same facts claimed, inter alia, for a declaration that the Appellant is in breach of the collaboration agreement entered between the two of them in respect of the Respondent’s internet services using the DSL technology, a declaration that the Appellant’s conduct in the internet service market constitutes anti-competitive and unfair to the Respondent who is an internet provider, a declaration that the Appellant’s conduct of refusing the Respondent’s access to its equipment in the custody of the Appellant amounts to an illegal seizure of the Respondent’s equipment, and general damages for each of the declarations sought. The Appellant also counterclaimed against the Respondent for the recovery of the sum of GH¢2,035,930.45 and damages for defamation. The trial High Court Judge, in his judgment delivered on 9th January,2020, held, inter alia, that the Appellant’s action for recovery of the sum endorsed on its writ of summons failed subject to the amount the Respondent admitted in the consent judgment entered between them by the Court of Appeal. The Court dismissed the Respondent’s counterclaim for special damages as unproven and upheld the part of the counterclaim for breach of contract and awarded GH¢2,000,000.00 for general damages and GHc1,000,000.00 for losses arising from the unfavorable trade practices, including hoarding, poaching, and re-routing. Regarding the second suit, the High Court granted all the declarations sought by Respondent and awarded general damages in the sum of GHc10,000,000.00. The High Court further dismissed the Respondent’s relief for the unlawful seizure and detention of its equipment on account of its alleged indebtedness. The trial High Court finally dismissed the Appellant’s counterclaim for the recovery of the sum of GH¢2,035,930.45 and further held that the Respondent’s letters to the National Communication Authority and Norwegian Ambassador were not defamatory of the Appellant. The Appellant, being dissatisfied with the judgments in both suits, filed an appeal against same on 5th February, 2020. The grounds of appeal are as follows: “i. The judgment was against the weight of evidence adduces at the trial. ii. The learned High Court Judge erred in failing to award interest to Ghana Telecom on the amount $28,607.38 in the first suit after holding that Internet Ghana makes good the amount outstanding on the sum of $122,000.00 after payment of $93,392.62. iii. The learned High Court Judge erred when he held that Ghana Telecom has breached the Collaborative Agreements by virtue of Ghana Telecom’s launch and introduction of BB4U unto the retail internet service market. iv. The learned High Court Judge erred in awarding GH¢2,000,000.00 and GH¢10,000,000.00 respectively in the two suits in favour of Internet Ghana for breach of contract when both suits were in respect of the same contract. v. The learned High Court Judge erred in awarding GH¢1,000,000.00 as loss of income arising from unfavourable trade practices to Internet Ghana when there was no evidence on record to support such award. vi. The Learned High Court Judge erred in awarding GH¢1,000,000,00 as general damages for unlawful seizure and detention of equipment to Internet Ghana when there was no evidence on record to support such an award. vii. The learned High Court Judge erred in law when he awarded general damages for breach of contract and for unfair trade practice and anti-competition in respect of concurrent claims in contract and tort arising from the same facts. viii. The learned High Court Judge misconstrued the issues in the case when he treated Internet Ghana’s claim of anti-competition as one and the same as unfair competition as a basis in his holding that Internet Ghana is entitled to protection under the Protection of Unfair Competition Act, 2000 (Act 589). ix. That the learned High Court Judge erred in awarding damages against Ghana Telecom for unfair trade practices and anti-competition when there was no credible evidence on record to support unfair trade practice and anti-competition. x. That the damages awarded to Internet Ghana is excessive and unwarranted”. The Respondent upon leave granted by the trial High Court, filed a Notice of Variation of the judgment of the trial High Court. The variation is in respect of the portion of the judgment of the Court below which stated that the Respondent failed to prove the value of its loss and, furthermore, the part of the judgment where the trial Court held that the Respondent admitted that it was yet to fully pay for the services the Appellant provided. This Court has been further invited to vary the sum awarded as special damages upwards. The grounds for the variation are as follows; “1. The court below erred in holding that Internet Ghana acknowledged that it was indebted to Ghana Telecom. 2. The Court below erred when it ordered Internet Ghana to pay to Ghana Telecom the sum of $28,607,35 on the basis that Internet Ghana admitting owing Ghana Telecom. 3. The court below erred when it held that Internet Ghana had proved only the subject matter of its loss but failed to prove the value of it loss. 4. The Court below erred when it awarded Internet Ghana only nominal damages. 5. Additional grounds for the variation to be filed upon receipt of the Record of Appeal”. I discuss the ground (i) of the appeal, the omnibus ground, which is that the judgment is against the weight of the evidence on record. The omnibus ground of appeal requires an appellate court such as this Court to evaluate the entire evidence on record to correct factual errors committed by the Court below, legal matters which would assist in the resolution of factual matters in dispute, and, furthermore, evaluate the evidence which were not properly evaluated in accordance with the relevant laws on standard of proof. The case of Domena-Domena v Amoah [2015-2016] 1 SCGLR 790 settled the position on the parameters of the omnibus ground of appeal to include the resolution of legal matters, which would assist the courts to resolve factual issues. The trial High Court Judge evaluated the entire evidence on record and came to the conclusion that the Appellant failed to prove that the Respondent owed it the amount endorsed on the Appellant’s writ of summons. The evidence on record shows that the parties herein entered into a consent judgment before the Court of Appeal, which disclosed the Respondent’s indebtedness to the Appellant. The Appellant who alleges that the judgment is against the weight of the evidence on record is required to demonstrate the errors complained of and, on the whole, the Appellant’s complaint of the Respondent’s indebtedness to it. However, where an Appellant fails to demonstrate an error committed by the Court below, the Court may raise it suo motu and discuss it where it is wholly unanswerable, but where it is answerable, opportunity would be given to the parties to make submissions on it. The case of Tindana (No 1) v Chief of Defence Staff & Attorney- General (No 1) [2011] 2 SCGLR 724 provides that where an issue is void and not raised by any parties, a court of law may raise it suo motu on grounds that it is wholly answerable without reference to the parties. I also did not see any error committed by the trial High Court Judge to demonstrate that the judgment is against the weight of the evidence on record, and I shall limit myself to the issue raised by the Appellant and dismiss same. The finding of fact made by the trial High Court Judge on the consent judgment cannot be impeached, and I hold that the Appellant failed to prove that the Respondent admitted owing it the amount endorsed on the writ in accordance with sections 11 (1) & (4) and 14 of the Evidence Act, 1975 (N. R. C. D. 323), which require the Appellant to prove its case by a preponderance of probabilities. The case of Adwubeng v Domfeh [1996-97] SCGLR 660 settled the legal position that in all civil cases where the burden of persuasion is on a party, that party is required to prove the existence of the fact in issue by a preponderance of the probabilities without any exception to it, and the Appellant is entitled to the sum of $ 28,607.38 being the sum contained in the consent judgment as the Respondent’s indebtedness to the Appellant. I dismiss ground (i) of the appeal as unmeritorious as the Appellant failed to adduce evidence to prove its case in accordance with the standard burden of proof required in civil matters. I discuss ground (ii) of the appeal, which is to the effect that the trial High Court Judge erred in failing to award interest to the Appellant on the amount of $28,607.38 after having held that the outstanding amount owed by the Respondent was $122,000.00 and for which it had made a part payment of $93,392.62. The amount was a subject matter of a consent judgment and all rights had been determined awaiting execution and the High Court Judge was right when he held that, that was the amount owed by the Respondent to the Appellant and should pay without awarding interest. I dismiss ground (ii) of the appeal as unmeritorious and hold that the ratio in the cases of IBM World Trade Corporation v Hansen Enterprise [2001-2002] SCGLR 93 and Ghana Ports and Harbours Authority v Nova Complex Limited [2010] SCGLR 1 which require a court of law to award interest on an amount kept by a person to the detriment of its owner as compensation is inapplicable to the facts at stake as the amount which is the subject matter of the appeal is a judgment debt in another case and by operation of law attracts post judgment interest. I discuss ground (iii), which attacks the finding by the trial High Court Judge that the Appellant breached the Collaborative Agreement it entered into with the Respondent for the launch and introduction of BB4U into the retail internet market. The Appellant did not rebut the fact that it used the same DSL technology to introduce into the retail internet market BB4U brand to compete the market with the Respondent which occasioned a serious loss to the Respondent. The evidence of Kpetigo, a witness called by the Appellant is on point regarding the unhealthy competition between the parties which was introduced by the Appellant into the retail internet market between the parties. He testified as follows: “It was a battle,(GT) has to strategize in the market place, the first strategy was to install free of charge to customers to try for three months....it extended to over a year of the free service. Second strategy, GT would take over customers that were brought in by IG.” The agreement did not expressly prevent the Appellant from competing with the Respondent in the retail internet market, but the conduct of the Appellant, who was not in the retail market when it entered into the contract with the Respondent but competed with the Respondent by introducing free services to kick it out of business. The Appellant contends that the trial High Court judge erred when he held that even though there was no express provision in the contract which prevented the Appellant from competing with the Respondent and relied on cases including Tettey Akufo v Volta Aluminum Company [2003-2004] 2 SCGLR 1158 and PS Investments v Cedecom [2012] 1 SCGLR 611. I am of the opinion that the trial High Court did not introduce into the written agreement parole evidence to contradict their written agreement, but it is premised on unfair trade, hoarding, and poaching practices if the agreement is read as a whole. It is unfair and unconscionable for the Appellant to enter into an agreement to deal in retail internet business for a fee, and immediately after the parties had entered into it, the Appellant used the same technology to compete with it and at a point in time made it free to subscribers who were accessing it from the Respondent in the retail market, with the aim of collapsing the business of the Respondent. I am of the considered opinion that the purpose of the business was to keep the Respondent in the retail internet business and not to kick it out. I shall interpret the contract purposefully, taking into account the words used according to their ordinary meaning as well as the context within which the words are used, the subject-matter, the scope, the purpose, and the background, and I hold that the Appellant breached the purpose for which it entered into the agreement with the Respondent. I affirm the position by the trial High Court Judge that the Appellant breached the collaboration agreement by the use of DSL technology and dismiss ground (iii) of the appeal as devoid of merits. The case of the Church of the Holy Trinity v United States, 143 U. S 457 12 S Ct. 511; 36, the Supreme Court of the United States construed an Act of Parliament by using the soft plain meaning rule (purposively ) and held thus: “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” I am satisfied that even though the parties did not expressly state that the Appellant shall not unlawfully compete with the Respondent to kick it out of business, it is within the letter of the agreement that the Appellant would not compete with the Respondent in the retail internet market. Even though the aspect of the competition was not stated in the contract and cannot be said to be within the contract nor within the spirit nor within the intention of the parties, it is within the letter. I have examined grounds (iv), (v), (vi), (vii), and (ix) of the appeal, and I am of the considered opinion that the damages of one million cedis (GH¢1,000,000.00) awarded against the Appellant for unlawful seizure and detention of the Respondent’s equipment was made in order to compensate the Respondent for the loss and use of same and not to confer windfall on the Respondent, and an appellate court such as this Court cannot disturb same on legal grounds, and I affirm same. The equipment are still in the custody of the Appellant and according to the Respondent, they have outlived their usefulness by the fact that they are presently of no technical and economic value and have become irrelevant to it. The trial High Court Judge further awarded an amount of two million Ghana cedis (GH¢2,000,000.00) as general damages to the Respondent on its counterclaim for breach of contract. I have already affirmed the breach of contract by the Appellant against the Respondent and I am of the considered opinion that general damages in the sum of GH¢2,000,000.00 awarded in favour of the Appellant is fair and accords with the principles governing the award of general damages to compensate the injured party and not to confer windfall on it. The trial High Court Judge further awarded GH¢1,000,000.00 for the loss of income arising from unfavorable trade practices and affirmed same as having been made in accordance with the principles governing the award of general damages. The trial High Court awarded general damages in the sum of GH¢10,000,000.00. On the Respondent’s counterclaim, the High Court awarded GH¢2,000,000.00 for damages for the breach of the collaboration agreement, which is different from reliefs (ii), (iii), and (v) endorsed on the Respondent’s writ of summons. The relief (ii) is in respect of the Appellant’s conduct in the retail internet service market, which the trial Court found to be anti-competitive and unfair to the Respondent, which nearly collapsed its business by losing some of its customers and subscribers to the Appellant. The relief (iii) is to the effect that the Appellant abused its dominant position in the contract to make the market conditions unfavorable to the Respondent, as a result of which it incurred losses from the retail internet service market. The relief (v) is in respect of how the declarations made under reliefs (ii) and (iii) adversely affected the business of the Respondent in the retail internet service market in Ghana. The trial High Court awarded general damages under relief (v), which addresses the anti- competitive conduct, unfair trade practices, and abuse of dominant position, and unethical conduct of the Appellant in the internet service market in Ghana which adversely affected the business of the Respondent which is completely different from the general damages of GH¢2,000,000.00 awarded for breach of contract. The general damages were awarded under different headings, and the issue of awarding the same form of damages under different headings does not arise to disadvantage the Appellant. I dismiss grounds (iv), (v), (vi), and (vii) of the appeal as unmeritorious. I address ground (viii) of the appeal, which asserts that the trial High Court Judge misconstrued the facts of the case and treated the legal issues involved under the Protection of Unfair Competition Act, 2000 (Act 589). The trial High Court Judge applied common law principles involving unfair competition, unfair trade practices and abuse of dominant position not under Act 589. The trial High Court Judge knew that the case in point cannot be considered under sections 1 to 6 of Act 589, which deal with limited aspects of unfair termination, including causing confusion with respect to another’s enterprise or activities, damaging another person’s goodwill or reputation, misleading the public, discrediting another person’s enterprise or its activities, unfair competition in respect of secret information, and unfair termination in respect of national and international obligations. The only provision in Act 589 which the trial High Court Judge could have relied upon is section 7 on the general provisions. Section 7 of the Protection Against Unfair Competition Act, 2000 (Act 589). It provides thus; “In addition to the acts and practices referred to in sections 1 to 6 an act or a practice in the course of industrial or commercial activities that is contrary to honest practices constitutes an act of unfair competition.” The trial High Court Judge did not discuss dishonest practices exhibited by the Appellant, which could have clothed him with capacity to invoke Section 7 of Act 589. The ground (viii) of the appeal, which alleges that the trial High Court protected the Respondent under Act 589, is without any legal basis, and same is dismissed as unmeritorious. I am satisfied that the damages awarded by the trial High Court were made in accordance with the law and respectable decisions of the Superior Court and cannot be said to be excessive and not warranted by the law. The Respondent could not prove with specifics the claim for special damages particularized by it and were awarded in the form of general damages. The award of general damages to compensate the Respondent was made in accordance with the ratio in the case of Royal Dutch Airlines (KLM) v Farmex Ltd [1989-90] 2GLR 623. I dismiss the appeal in its entirety as unmeritorious. I now discuss the legal effect of the Notice of Variation filed by the Respondent. The Respondent decided to file a Notice of Variation for this Court to vary part of the decision by the trial High Court it considered it to be wrong. Rule 15 of the Court of Appeal Rules, 1997 (C. I. 19) provides that it shall not be necessary for a party to file a cross-appeal where that person contends that part of the decision should be varied. The Rule 15 of C. I.19 which is on Notice of Variation provides thus: “It is not necessary for the respondent to give notice by way of cross appeal, but if a Respondent intends on the hearing of the appeal to contend that the decision of the Court below should be varied, the respondent shall give, within one month after service of the notice of appeal, written notice in Form 7 set out in Part One of the Schedule of that intention to every party who may be affected by the contention.” A person who is dissatisfied with a decision of a court may file an appeal, a cross appeal, or a variation where the other party has filed an appeal, and any one of the three above may be filed depending on the circumstances of the case. In any of the above procedures, time is of essence, as appeal is a creature by statute, and where the enactment creating the jurisdiction does not provide for extension of time, the Court shall not be seised with jurisdiction to grant same. Ang Hean Leng and Parvinder Kaur Cheema in their peer reviewed article published in Legal Herald of July 2017 with the caption “Is a Cross-Appeal Not an Appeal? discussed the effect of Variation in Malaysian law under the Rules of Court of Appeal 1994, rule 5(1) which is similar to Rule 15 of C. I. 19 but it equated notice of variation to cross appeal. It provides as follows: “When the High Court makes a decision, any party dissatisfied with the order may file a notice of appeal. If both parties are dissatisfied with the order, they are equally entitled to file an appeal. However, oncean?? appeals filed and served, the other party named as respondent in the appeal may not need to file a separate appeal because of a rule which provides that: “It shall not be necessary for a respondent to give notice of appeal, but if a respondent intends, upon the hearing of the appeal, to contend that the decision of the High Court should be varied, he may, at any time after entry of appeal and not more than ten days after the service on him of the record of appeal, give notice of cross-appeal specifying the grounds thereof, to the appellant and, any other party who may be affected by such notice, and shall file within the like period a copy of such notice, accompanied by copies thereof for the use of each of the judges of the Court.’ Instead, he files a notice of cross-appeal and asks for the decision to be varied. The notice is the substitute for the appeal he would have filed.” The English position is the same as the position in Ghana and does not make the filing of a cross-appeal mandatory by a respondent who has been served with a notice of appeal and would like the judgment to be varied. Under such circumstances, the respondent may file a Notice of Variation as a substitute for a cross appeal, unless the part of the judgment complained of by the respondent is on a point which does not affect the original appellant. The Order LVIII of the English Rules of the Supreme Court 1883 which is in pari materia with Rule 15 of C. I. 19 provides thus; “It shall not be under any circumstance, be necessary for a respondent to give notice of motion by way of cross appeal but if a respondent intend, upon the hearing of the appeal, to contend that the decision of the Court below should be varied, he shall within the time specified in the next Rule, or such time as may be prescribed by special order, give notice of such intention to any party who may be affected by such contention. The omission to give such notice shall not diminish the powers conferred by this Act upon the Court of Appeal, but may, in the discretion of the Court, be ground for an adjournment of the appeal, or for a special order as to costs.” In the case of Ghana, there is no extension of time in interlocutory appeals in civil matters under all the rules. However, a person may seek for extension of time in final appeals within the time specified in the respective rules of Court. Rule 9 of the Court of Appeal Rules, 1997 (C. I. 19) is on point. The Rules of Court did not provide for extension of time to file notice of variation under Rule 15 and being analogous to appeal and cross appeal, the Court shall be bereft of granting extension of time to a respondent who fails to file same within one month after service of the notice of appeal. The respondent failed to file its notice of variation within one month after the service of the notice of appeal on it, and it took over three months before it sought leave to file same before the trial High Court. The High Court granted extension of time to file notice of variation of the judgment barely six months after the time within which to file same had lapsed and was granted without jurisdiction. I therefore set aside the Notice of Variation, which is a substitute for an appeal or cross appeal, as the case may be, as void as the High Court exercised jurisdiction, which has not been given to both the Court of Appeal and the High Court. The English position permits extension of time, and an appeal being a creature of statute, it may be exercised, unlike Ghana, where there is no provision to enlarge the time of filing same. The case of Tindana (No 2) v Chief of Defence Staff & Attorney- General (No 2) [2011] 2 SCGLR 732 settled the validity of an appeal filed out of time and the duty of an appellate court to raise same suo motu. The holding 3 of the judgment provides as follows: “The issue of whether or not the appeal was filed outside the statutory period was one which went to jurisdiction. A jurisdictional issue must be addressed by any court entertaining any proceedings. In the instant case, the issue of jurisdiction could not have been waived by the Court of Appeal when the appeal was filed outside the three months without any valid extension of time to give life to the appeal. The condition precedent of the exercise of the right to appeal within a specified time frame could not be waived by any court. Indeed, the power conferred on the courts to extend time in circumstances that they deemed fit, was a recognition that beyond the statutory indulgence that has been expressly authorised by statute, any appeal filed outside the initial period of three months and in the period allowed for extension of time, would be incompetent and that issue could be raised at the hearing of the appeal by the respondent. In that event, the order extending time would be set aside.” On the strength of the above decision, I set aside the notice of variation filed with the leave of the High Court, which is not sanctioned by law, as void. I dismiss the notice of appeal as unmeritorious and the notice of variation as void. The judgment of the High Court delivered on 9th January, 2020, is affirmed. (sgd.) DENNIS DOMINIC ADJEI JUSTICE OF THE COURT OF APPEAL BARTELS-KODWO, J. A I agree JANAPARE BARTELS KODWO JUSTICE OF THE COURT OF APPEAL (sgd.) BAFFOUR, J. A I also agree ERIC KYEI BAFFOUR JUSTICE OF THE COURT OF APPEAL (sgd.) COUNSEL • ELINAS KOSI ESHUN WITH EMMA-JANE DANIELS FOR APPELLANT IN BOTH SIDES. • JOEL ANNOR AFARI WITH JEMIMA DEI & SEYRAM NUTSUKPUI FOR RESPONDENT IN BOTH SUITS 18