Practice and procedure – Action
– Discontinuance – Circumstances
in which discontinuance of
action may constitute estoppel.
Natural justice – Judge – Bias –
Judge granting application for
discontinuance without leave to
bring fresh action – Defendant
bringing action subsequently on
same matter – Whether judge
disqualified on ground of bias
from hearing action.
In its application in the High
Court, CP sought to enforce an
arbitration award against MB. At
the hearing of the application
the judge decided to take
evidence on the award, in the
course of which CP sought leave
of the court to discontinue the
application “with liberty to
come back.” The application was
granted without liberty. In a
subsequent action by CP against
MB on the same matter the High
Court presided over by the same
judge admitted the record of
proceedings of the previous
action in evidence. On appeal,
the Court of Appeal held that CP
was estopped by the
discontinuance of the previous
action without liberty to
institute a fresh action. On
appeal to the Supreme Court
counsel for CP argued that the
trial judge having determined
the previous action was
disqualified on ground of bias
from determining the subsequent
action. Counsel argued further
that since the High Court did
not determine the first action
on the merits CP was not
estopped.
Held:
(1) It was trite learning that
evidence of a previous
conviction or acquittal was not
admissible in subsequent civil
proceedings arising from the
same facts. In the present
appeal the both proceedings were
civil, the first proceeding
creating an estoppel which was
pleaded in the second
proceeding. After the stage
which the matter had reached, it
was only proper for the High
Court to decline leave to
commence a fresh action. It was
therefore properly a case of
estoppel. Fox v Star
Newspaper Company (1898) 1
QB 636, Biei v Assah
(1953) 14 WACA 303 referred to.
(2) A successful plea of
estoppel precluded evidence on
the same issue or any other
matter which could have been
raised at the earlier proceeding
creating estoppel. Quartey v
Tackie [1962] 1 GLR 65
referred to.
Cases referred to:
Biei v Assah
(1953) 14 WACA 303.
Fox v Star Newspaper Company
Limited[1898]
1 QB 636, [1900] AC 19, 69 LJQB
117, 81 LTS 562, 48 WR 321, 16
TLR 97, 44 Sol Jo 166, HL.
R v Sussex JJ, ex parte McCarthy
[1924] 1 KB 256, [1923] All ER
Rep 233, 93 LJKB 129, 88 JP 3,
68 Sol Jo 253, 22 LGR 46, sub
nom. R v Hurst, ex parte
McCarthy 130 LT 510, 40 TLR 80,
27 Cox CC 590, DC.
Quartey v Tackie
[1962] 1 GLR 65.
APPEAL to the Supreme Court
against the decision of the
decision of the Court of Appeal.
Bartels-Kudwo
for Kom for the
appellant.
George Thompson
for the respondent.
HAYFRON-BENJAMIN JSC.
This is a second appeal wherein
Court of Appeal affirmed the
decision of the High Court
Accra.
The appellants, then applicants,
by a motion in suit No 2067/86
sought to enforce an arbitration
award against the respondents.
Upon issues joined, the learned
judge decided to take evidence
on certain parts of the award.
In the course of the hearing
before the High Court,
solicitors for the applicants on
19 March 1987 sought “leave to
discontinue their application
with liberty to come back.” On
20 March 1987 when the matter
came before the High Court,
counsel for the appellant
announced to the court that:
“We were called upon by the
court to lead evidence to
establish that at the date shown
on our application we had
fulfilled all of our obligations
under the award. We realised
that it is not possible to bring
the witnesses and so we feel we
would discontinue the matter. We
pray for leave.”
I have referred to this episode
in the suit No 2067/86 because
in the subsequent proceedings
which have resulted in the
present appeal, counsel seems to
think not only that it was
illegal for the proceedings in
suit No 2067/86 to be tendered
in evidence, but also in having
those proceedings before the
learned High Court judge and
both suits relating to the same
issues, it was improper for the
learned High Court judge to have
heard the suit which is
presently under appeal before
us. Appellants’ first complaint
before us therefore is that the
Court of Appeal erred in holding
that is was proper for Lutterodt
J to hear both suits.
Counsel for the appellants takes
issue with their Lordship in the
Court of Appeal when they say
that the proceedings and
judgement in suit No 2067/86
“had no tendency to becloud the
vision of then judge.” I agree
with their Lordships in their
finding.
Again counsel submits that the
case of Quartey v Tackie
[1962] 1 GLR 65 and the English
case of the R v Sussex JJ, ex
parte McCarthy [1924] 1 KB
256 are cases in point and
support the appellants’ ground
of appeal. Their Lordships in
the Court of Appeal here again
delivered themselves fully on
these authorities and I am in
full agreement with them. The
case of Quartey v Tackie
supra, is also distinguishable
from the present appeal. In the
Quartey case, supra there
was a criminal trial followed by
a civil trial. It is trite
learning and the law was stated
precisely by Ollenu J in holding
1 at page 66 of the report that:
“…Evidence of a previous
conviction or acquittal in a
criminal case is not admissible
in subsequent civil proceedings
arising from the same facts.”
In the present appeal the
proceedings were both civil and
the first proceedings created an
estoppel, which was pleaded in
the second
case. Estoppel therefore being a
rule of evidence it could be
admitted in evidence if the
conditions for so treating the
proceedings have been satisfied.
In a civil matter a successful
plea of estoppel precludes the
adduction of evidence on the
same issue or on any matter,
which could have been
legitimately raised at the time
of the creation of the estoppel.
I cannot therefore agree that in
a plea of estoppel before the
same judge in a related
application it “is not likely
that justice would have been
seen by the layman as having
been done.” The principle in the
Quartey case, supra is
therefore inapplicable to this
appeal; it is not on all fours
with the present appeal and it
is also irrelevant.
Learned counsel takes another
issue with the learned High
Court judge for holding in
exhibit C that:
“I would grant them leave to
discontinue but no liberty to
bring fresh action…”
Counsel contends that since the
learned High Court judge did not
give reasons for her decision
nor was there a decision on the
merits there could be no
estoppel. Counsel had not
adverted his mind to the fact
that the matter was virtually
part heard when counsel
announced to the court on 20
March 1987 that:
“We realise that is not possible
to bring the witnesses and so we
feel we would discontinue the
matter…”
Counsel has also studiously
avoided any references to the
English case of Fox v Star
Newspaper Company Limited
(1898) 1 QB 636 and the dictum
of Chitty LJ on the true
intendment of the rule. Said
Foster-Sutton P in Biei v
Assah (1953) 14 WACA 303 at
304-5 citing Chitty LJ in the
report:
“The provisions of the rule are
substantially the same as those
contained in the English Order
26, rule 1. The construction to
be placed on that rule was
decided by the judgment of the
Court of Appeal in the case of
Fox v Newspaper Company
Limited which was
subsequently upheld by the House
of Lords, where it was held
that, when the plaintiff has to
obtain leave, it is only by the
discretion of the judge that he
can discontinue with the right
of bringing another action.
Chitty, LJ in his judgment in
the Court of Appeal in that
case, when discussing the
English Order 26, rule 1, said:
‘The principle of the rule is
plain. It is that after the
proceedings have reached a
certain stage the plaintiff, who
has brought his adversary into
court, shall not be able to
escape by a side door and avoid
the contest. He is then no
longer dominus litis, and
it is for the judge to say
whether the action shall be
discontinued or not and upon
what terms. I think it would be
a great error to construe the
rule by reference to the old
meaning of the term
‘discontinue’ or any mere
technical sense of words. The
substance of the provisions is
that, after a stage of the
action has been reached at which
the adversaries are meeting face
to face, it shall only be in the
discretion of the judge whether
the plaintiff shall be allowed
to withdraw from the action so
as to retain the right of
bringing another action for the
same subject-matter.’ ”
In the present appeal “after a
stage of the action has been
reached at which the adversaries
are meeting face to face” it was
only proper that no leave should
be granted to commence a fresh
action. It was properly a case
of estoppel.
Counsel for the appellant
referred in his statement of
case to a passage in the
judgment of the High Court and
submits quite erroneously that
the learned High Court judge
made no “specific findings on
primary issues”. Counsel further
submits that on this ground the
learned judge should have
declined jurisdiction to embark
in the hearing of the second
suit. He submits that the Court
of Appeal was wrong in
dismissing a similar submission
made to their Lordships.
I think counsel has confused the
issues presented by this appeal.
In my respectful opinion the
Court of Appeal correctly
assessed the implications of
that passage and concluded that:
“[I comprehend] the reference as
going to show that the grant of
leave to discontinue and without
liberty was not an arbitrary
exercise of discretion and
thereby justify her finding of
res judicata meant to determine
the merit of the action of the
parties, and it cannot be
rightly submitted that, the
judge was influenced in her
judgment by these reference.”
The appellants are wrong when
they complain that the Court of
Appeal erred in holding that the
appellants were estopped per rem
judicatam. A reference to the
English case of Fox v Star
Newspaper Company Limited
supra will satisfy that the
matter was res judicata. Indeed
an examination of the record
shows quite clearly that
appellants were aware that the
first proceedings constituted
res judicata. Estoppel was
pleaded by the respondents in
their reply and made an issue in
their summons for directions.
When the proceedings and the
ruling were tendered the
appellants raised no objection
and did not cross-examine. The
record shows the evidence of Mr
Thomas Tettey Ayettey (PW 4) as
follows:
“I am a circuit court registrar.
I live in Accra. I represent the
Deputy Chief Registrar, High
Court, Accra. He was subpoenaed
to testify with the court docket
in respect of suit No 206/87
(sic). I tender the exhibits and
the certified true copy of the
proceedings. I have the
documents in court.
Counsel for defendant: No
objection.
Court: Exhibit U and V.
Cross-examination: None.”
The proceeding under attack is
exhibit V. In my respectful
opinion the learned High Court
judge having been presented with
evidence in proof of estoppel
was bound to apply the proper
tests and come to a conclusion
if it was so. In the event she
rightly concluded that the
estoppel had been proved.
The appellants’ two other
grounds which counsel chose to
argue together, being the ground
that the Court of Appeal had
failed to consider the
appellants’ defence and that in
any case the judgment was
against the weight of the
evidence, do not merit any
consideration. In any case their
Lordships in the Court of Appeal
gave very serious consideration
to the arguments in support of
the two grounds. Their Lordships
came to the conclusion that the
two issues whether there was
estoppel per rem judicatam by
reason of the appellants’
discontinuance of the earlier
suit and whether were was
estoppel by reason of the
respondents having by their own
reticence waived their right
under the contract in relation
to tendering half the repair
costs after due date must be
concluded in favour of the
respondents. The learned High
Court judge having previously
made similar findings, there
were thus concurrent findings of
the two courts in favour of the
respondents and not until it
could be demonstrated that these
findings were perverse, it is an
almost inflexible rule of
practice that this court will
not interfere with those
findings.
This appeal was a specious
amalgam of speculations in law.
It was not right that any of the
arguments should be advanced in
this court. The grounds of
appeal were clearly a confusion
of thoughts on the law. There
was no merit in the appeal,
which is accordingly dismissed.
AMUA-SEKYI JSC.
I agree.
AIKINS JSC.
I agree.
AMPIAH JSC.
I agree.
ADJABENG JSC.
I also agree.
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner |
