The Oslo Court of Appeal rejected, in a unanimous decision, an appeal by Jongsbru AS, vendors of a property identified by Ghana for use as an office building in Oslo, Norway.
Jongsbru’s appeal against the judgment of the Oslo District Court (High Court) in December 2021 was deemed unjustified by the Court and therefore dismissed, awarding damages and procedural costs in favor of Ghana.
Composed of three appeals judges (Pal Morten Andreessen, Erin Sogn and Rolf Aetreus), the Court of Appeal, in a judgment dated November 22, 2022, completely absolved Ghana of all liabilities, stating: “A purchase agreement to which Ghana was a party cannot be said to have been concluded between the parties “.
Costs
The Court awarded NOK 1.5 million (approximately US$150,000) payable by the appellant to Ghana as procedural costs incurred before the Court of Appeal.
It further ordered the appellant to pay Ghana one million Norwegian kroner (approximately $100,000) in compensation for procedural costs in the Supreme Court.
Facts of case
In 2023, Ghana decided to establish an embassy in Norway and Parliament approved grant funding for it, in addition to other missions around the world.
A delegation of four Ghanaian officials was appointed to travel to Norway and make the necessary practical and administrative preparations for the establishment of the embassy.
Among the preparations to be made was the acquisition of the Chancery Building, either by purchase or lease.
The Ghanaian delegation identified a number of properties, including Sigyns Gate 3 in Frogner in Oslo, properties that are the subject of litigation in the District Court of Norway.
To get legal help, Ghana turned to attorney Mikkel Vesely of the Selmer law firm.
On November 22, 2023, Ghana received an offer from Jongsbru to buy the property for NOK 100 million with a grace period of seven days.
The Chargé d’Affaires of Ghana, Regina Appiah Sam, responded to Jongsrbu’s offer in terms of accepting the offer on behalf of the government but with conditions.
It was a condition of acceptance of the offer and of the final contract that the building should be free from major defects and that the renovations had been completed and performed in a satisfactory manner. Ghana later withdrew from the deal.
Jongsbru sued the Government of Ghana in the Oslo District Court claiming total amounts of approximately NOK 78 million for breach of contract, loss of profits, interest and litigation costs.
A mediation process for dispute resolution in Oslo chaired by a panel of three judges from the District Court, Oslo, in September 2021 failed to reach a settlement as the Ghanaian team, led by the Attorney General, Godfried Yeboah Dam, failed. , did not accept the sum of about 30 million Norwegian kroner proposed by Jongsbru as acceptable for settling the dispute.
That forced the matter to proceed to the trial in which Ghana called four witnesses Ghana’s ambassador to Norway, Jennifer Lartey, Chargé d’Affairs at the time of the deal, Regina Appiah Sam, Deputy Chief of Mission in Norway, Charles Marfo, and Finance Ministry’s Legal Department Director Mangwa Ghanee.
Original judgement
The Oslo District Court on 16 December 2021 found in its judgment that binding jurisdiction rests with the Ghanaian Minister of Foreign Affairs, pursuant to Section 20 of the State Property and Contracts Act 1960.
Under Ghana law, the purchase of the property must be approved by the Board of Purchase and the request for funds must also be approved by the Minister of Finance, before the Minister of Foreign Affairs can either personally execute the property purchase agreement or delegate another competent person with power of attorney to carry out the agreement.
The court found that neither the charge d’affaires of Ghana at the time, Appiah Sam, nor the attorney for Ghana, Mikkel Vesely, had the authority to conclude the agreement on behalf of the country.
The Court said that there was therefore no valid or binding agreement between the sellers of the property and Ghana.
Appeal hearing
Jongsbru applied to the Oslo Court of Appeal, and the court heard the appeal over four days (October 25-28, 2022) taking evidence from witnesses from all sides in the case afresh.
Mr. Dam led a team from Ghana for the hearing.
The Court of Appeal noted that one of the prerequisites for the appellant’s claim was that the company had suffered an economic loss as a result of Ghana’s decision not to complete the sale.
“The appellant has not suffered any such economic loss. With regard to the proper application of the principles of offer and acceptance, Ghana could have opted out of the agreement (even if it was binding), since all the conditions necessary for the performance of the contract were not met,” the court said.
Lack of approval
With regard to Ghana’s defense of the Oslo municipal authorities’ failure to approve the building to be used for an embassy, the Court of Appeal found that on the basis of the evidence presented by Ghana regarding the appellant’s late attempts to apply for said permission and the municipality’s responses, it was clearly established that no such This permission by the relevant date for the contract to enter into force, Ghana could therefore opt out of the agreement.
“In no way would the purchase have been materialised, nor would the appellant have received the purchase price from Ghana, for a valid assertion of the claim for economic loss,” the court said.
Authorisation
The Court of Appeal further noted that the requirement of permission to use the property as a residence was vital to the purchase, and that only Jongsbru, and not Ghana, had any control over whether or not the condition was met.
Moreover, the consequences of not fulfilling the condition are specifically spelled out in the agreement.
A-G satisfied
The Prosecutor was satisfied with the outcome of the appeal and hoped that it would mark the end of the dispute.
Mr Dam explained that under Norway’s rules of civil procedure, any civil judgment issued by the Court of Appeal could be appealed to the Supreme Court, but the appeal was not properly heard.
A three-judge panel of the Supreme Court must first decide whether to allow an appeal to be heard by the High Court of Norway and expressly allow it to be heard before the court is required to consider or hear it, and then proceed to rule on it. .
If the panel does not allow the appeal to be heard, the appeal ends without any further proceedings in the Supreme Court.
He said the reasons why the Norwegian Supreme Court would hear the appeal was that a new and major legal issue had been raised in the matter and the court felt obligated to give legal clarification on the situation.
He said Norway’s Supreme Court had not heard an appeal on issues of fact or evidence in a civil case.