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Judge – Bias – Objection – Objection on appeal against competence of trial judge to sit – Objection based on pronouncement not going to merits of dispute – Whether objection valid.

Practice and procedure – Action – Discontinuance – Plaintiff in discontinued action without liberty estopped from re-litigating matter.

At the hearing of an application by CP to the High Court to enforce an award against MB, the court ordered the matter to proceed to trial. At the trial, CP sought leave to discontinue the action with liberty to bring a fresh action. The court granted leave without liberty. MB then issued a writ against CP for reliefs arising from the award. CP counterclaimed on the award. MB in its defence to the counterclaim pleaded that CP was estopped from re-opening any issue previously raised in the discontinued action. The trial judge entered judgment for MB and dismissed the counterclaim as estopped. CP appealed and argued that the trial judge ought to have declined jurisdiction over the action in view of certain pronouncements in her ruling in the discontinued action, which beclouded her vision and disabled her from holding the balance of justice. Counsel contended further that the holding on estoppel was in error.

Held: (1) In their context the trial judge’s pronouncements did not go to the merits of the dispute between the parties. There was therefore not the remotest possibility that the trial judge could have been influenced by those pronouncements. Quashie v Tackie [1962] 1 GLR 65, King v Sussex Justices [1924] 1 KB 256 distinguished.

(2) The authorities were in harmony that discontinuance of an action without liberty operated to estop re-litigation of the claim. The counterclaim was a mere repetition of the claim which CP had discontinued without liberty. Ahenkora II v Kuma [1963] 1 GLR 77 referred to.

Cases referred to:

Ahenkora II v Kuma [1963] 1 GLR 77.

King v Sussex JJ, ex parte McCarthy [1924] 1 KB 256, [1923] All ER Rep 233, 93 LJKB 129, 88 JP 3, 6 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.

Quashie v Tackie [1962] 1 GLR 65.

APPEAL against the judgment of the High Court dismissing the appellant’s counterclaim.

Enoch Kom with him Charles Anyidoho for the appellants.

Ofosu Asante, with him George Thompson for the respondents.

FORSTER JA. On 14 July 1986, Construction Pioneers commenced action by motion in the High Court to enforce an award against Modern Ghana Builders Limited. The defendants resisted the application. On 29 September 1986, the court presided over by Lutterodt J having heard counsel for the parties ordered that the case proceed to trial. A subsequent application by the plaintiffs for review of the order made on 29 September 1986 was discontinued by the plaintiffs, and the judge struck it out as withdrawn without liberty to bring a fresh action.

The trial commenced on 13 January 1987 when the court expert witness, an engineer, gave evidence and was cross-examined by counsel for the parties. Thereafter the plaintiffs applied for leave to amend the motion filed on 14 July 1986 and which initiated the action. The judge dismissed the application and the case was adjourned to 10 March 1987 at the instance of the plaintiffs for the trial to resume. On 19 March 1987 the plaintiffs, Construction Pioneers, applied to discontinue the action with liberty to bring a fresh action. That application was granted without liberty to file a fresh action.

On 28 April 1987 Modern Ghana Builders Limited (hereinafter called the “respondents”) sued out a writ endorsed with reliefs arising from the award made on 28 August 1985. Construction Pioneers (hereinafter called the “appellants”) resisted the claim and counterclaimed for the sum of ¢900,000 with interest. The counterclaim was based on the award. Thus, in paragraph 4 of the statement of defence, the appellants pleaded that “pursuant to the said interim award the plaintiffs collected one of the machines but have refused or neglected to pay the defendants in respect of the same.” The ¢900,000 with interest counterclaimed was in respect of charges for repairs to the machine mentioned in the statement of defence.

The respondents in their reply pleaded that the appellants were estopped from re-opening any of the issues raised in the earlier action which they discontinued without liberty. One of the issues set down for trial was “whether the defendants are estopped from re-opening any of the issues argued in the High Court in suit No 2067/86.”

On 12 August 1991, the judge entered judgment for the respondents and dismissed the appellants’ counterclaim. It is from that judgment that the appellants now appeal to this court. Mr Kom, counsel for the appellants confined his submissions to the additional grounds of appeal. The grounds as filed were that: (1) the learned judge having heard the earlier suit which ended in discontinuance should have declined jurisdiction; (2) the trial judge erred in admitting exhibit V, a certified true copy of the whole of the earlier proceedings and not merely the writ and judgment, hence she was greatly influenced by it and arrived at the wrong decision; (3) because of her earlier decision in the matter in exhibit V the learned trial judge could not hold the balance of justice evenly between the parties, her vision was clouded by the earlier proceedings, hence her judgment cannot stand; (4) the trial judge made contradictory primary findings of fact in her judgment and it must be set aside.

Arguing grounds 1 and 2 together, Mr Kom submitted that having presided over the aborted action brought by the appellants the judge should have declined to sit on the suit now brought by the respondents against the appellants. Though not in so many words, he implied that in the circumstances justice could not have been seen to be done. He buttressed his point by references to certain remarks of the judge. In the judgment the judge said with reference to the previous suit, as follows:

“Now when the defendants sought leave to discontinue the previous action in order that I might exercise my discretion judicially in my ruling I had to determine the issue whether from the evidence then available the remaining two machines had been replaced. I found against them. In other words I found they were unable to prove they were not in breach … and had in fact repaired the two machines and so entitled to enforce their rights under the award. These specific findings I made on the primary issues coupled with the fact that more importantly I refused them liberty to institute a fresh action means this matter is res judicata.”

I comprehend the references as merely going to show that the grant of leave to discontinue without liberty was not an arbitrary exercise of discretion and thereby justify her finding of res judicata. The references in their context were not therefore meant to determine the merits of the action of the parties, and it cannot be rightly submitted that the judge was influenced in her judgment by those references.

With all due respect to learned counsel, the cases cited in support of his submission were not in the least apposite. In Quashie v Tackie [1962] 1 GLR 65 the magistrate who had tried and convicted the appellant on criminal charges arising out of a motor traffic accident subsequently tried the civil action for negligence arising from the same accident. The Court of Appeal rightly observed that the judicial officer had acted improperly and that it was not likely that justice had been done. And worse still the conviction was received in evidence and relied upon by the judicial officer in his judgment. Of similar irrelevance is the case of King v Sussex JJ ex parte McCarthy [1924] 1 KB 256. In that case the acting clerk to the justices was a member of a firm of solicitors who were acting for the claimant in a claim for damages against the applicant for injuries he had received. When the justices retired to consider their judgment in the criminal trial arising out of the accident, the clerk retired with them. Although he was not consulted by the justices, the court allowed the application, observing that: “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

In the instant case, there is not the remotest possibility that the trial judge was or could have been influenced by the proceedings in the previous suit. It had no tendency to becloud the vision of the judge, as contended by counsel. And I find no merit in the submission.

Mr Kom submitted also that the judge erred in finding that the appellants’ previous action having been discontinued without liberty, they were estopped from litigating that action in their

counterclaim. I do not find the contention, to say the least, plausible. The authorities speak with harmony that in circumstances as are indeed evident here, discontinuance without liberty operates to estop re-litigation of the earlier claim. In Ahenkora II v Kuma [1963] 1 GLR 77, the plaintiffs, after the defendants had disputed liability, discontinued the action without liberty. In a subsequent suit they claimed, inter alia, the reliefs in the previous action they had discontinued. On the point whether the plaintiffs were estopped, Apaloo J said:

“In my opinion, in these circumstances, they [the defendants] are entitled to say that they ought not bis vexare … I hold therefore that by reason of the unconditional withdrawal of the former suit without liberty, and the fact that the res litiga in the previous action is the same as the one in the instant suit, both plaintiffs are estopped from maintaining an action in respect of the first limb of the writ.”

In the instant case the counterclaim of the appellants was just a repetition of their claim which they had discontinued in the previous action without liberty. In the previous action, the appellants sought to enforce the arbitration award. All the reliefs emanated from that award. In the subsequent suit by the respondents, the reliefs claimed were based on or arose from, the terms of the arbitration award. In their statement of defence and counterclaim, the appellants averred in paragraph 7 that “by their solicitor’s letter dated 4 March 1986 the defendants gave plaintiffs notice that one of the remaining machines was ready to be collected upon payment of the sum of ¢900,000.”

That letter was exhibited as MGB 3. It was therein made clear that the demand notice was “in accordance with the arbitration award.” In their counterclaim in the latter suit, the appellants, having repeated paragraph 7 of their statement of claim, with reference to their solicitor’s letter mentioned supra, claimed the sum of ¢900,000, which by the solicitor’s letter arose out of the arbitration award. The res litiga was therefore the same in both suits. Having litigated in the previous suit to enforce the arbitration award which they withdrew without liberty, the counterclaim in the fresh action, in whatever language couched, cannot avoid that time-honoured doctrine of res judicata which is founded on the public policy that no person shall be twice vexed for the same cause. The judge rightly held that the appellants were estopped per rem judicatam.

Mr Kom next argued that the trial judge made contradictory primary findings in her judgment. Those two findings were the judge’s reaction to two issues of estoppel raised separately by both parties. The respondents had pleaded and submitted that the previous action instituted by the appellants and later discontinued by them without liberty, operated as res judicata and thereby estopped them in respect of their counterclaim. The judge found on the authorities that the discontinuance without leave to bring a fresh action operated as res judicata. She therefore upheld the respondents’ contention that the appellants could not re-litigate the same issues in the counterclaim. That was the conclusion of the first objection on grounds of res judicata.

The next issue was the appellants’ contention that the respondents, having failed to take steps to enforce their rights under the contract by tendering the half cost of the repairs after 31 August 1984 as ordered by the arbitration, they must be deemed to have been estopped from now insisting on their strict rights under the award. The appellants were therefore saying that by their reticence the respondents had waived their rights. The trial judge considered the merits of appellants’ submission and held that there was no waiver. Having disposed of the two issues, the judge then observed as follows:

“I have made these findings on the assumption that I am in error and that a plea of res judicata would not apply to this instant case, and all the issues may be reopened and re-litigated. However, I am inclined to think this plea is not maintainable in this instant case and I would thus hold that the defendants are in breach of the award.”

The concluding sentence in the above extract makes it quite clear that what the judge was considering was the plea of estoppel raised by the appellants to stop the respondents, on grounds of waiver by their failure to take steps to enforce their rights under the award by tendering half of the cost of repairs. A critical study of the judgment therefore does not evince any contradiction as canvassed by counsel for the appellants. The first estoppel raised by the respondents against the counterclaim of the appellants was upheld. The second estoppel now raised by the appellants against the respondents’ claim on grounds of waiver was rejected, and the appellants were thus found in breach of the award. There were no contradictions and the fact that that portion of the judgment could have been better composed is irrelevant.

Both on the evidence and the law, as applied by the trial judge, her findings cannot be faulted. For these reasons I would dismiss the appeal and affirm the judgment of the High Court.