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Practice and Procedure - High
Court (Civil Procedure) Rules,
2004 (C.I. 47) Order 11 Rule 18
(1 ) -
Limitation Act, 1972, (NRCD54)
- Whether
respondent breached implied
warranty of fitness, replacement
value of affected trucks -
whether the appellant’s action
is an abuse of court process -
Whether pleadings in the
previous case are materially
different and easily
distinguishable from the issues
and cause of action raised in
the present case.
HEADNOTES
The Plaintiff/ Appellant/
Appellant (Appellant), a
limited liability company,
incorporated under the laws of
Ghana, primarily engaged in the
processing and production of
aluminum products and also
engaged in haulage, was a
defendant in an earlier, before
the High Court (Commercial
Division), Accra; whilst the
Defendant/ Respondent/
Respondent (Respondent) Silver
Star Auto Ltd, a limited
liability company, incorporated
under the laws of Ghana, engaged
in the sale and servicing of
Mercedes-Benz vehicles and spare
parts, was the plaintiff in the
said suit. The claim in the
earlier suit was for an
outstanding balance of money,
owed by the appellant, in
respect of workshop services
rendered by the respondent on
Benz trucks, it sold to the
appellant. The appellant filed a
defence and counterclaim. The
dispute was settled at the
pre-trial settlement stage and a
consent judgment was duly
entered. After eight years the
Plaintiff/ Appellant/ Appellant
(Appellant)
issued a writ of summons with a
statement of claim in relation
to 25 units of Mercedes Benz
Actros trucks claiming general
damages from the respondent for
breach of implied warranty of
fitness, replacement value of
affected trucks and costs. The
respondent filed a statement of
defence to the action and then
brought an application
under Order 11 rule 18(1) (b)
(d) of the High Court (Civil
Procedure) Rules 2004, (C.I.
47), on grounds inter alia that
the action was an abuse of
process, as the matters raised
in the appellant’s statement of
claim were raised as a defence
in the earlier suit. The
respondent also raised an
additional issue that the
appellant’s action was caught by
the Limitation Act, 1972,
(NRCD54).-
HELD -
In conclusion, we hold that the
High Court in the first suit
determined the matters between
the parties at the pre-trial
conference and the appellant
having succumbed to the consent
judgment, it would be an abuse
of the process of the court to
allow the appellant to
relitigate in respect of the
same matter.
The appellant has not
raised any special or vitiating
circumstances to warrant the
present action and accordingly
we affirm the decision of both
the trial and appellate courts
that the present action is an
abuse of process.
From the foregoing, the
appeal fails and is thereby
dismissed. The judgment of the
Court of Appeal is affirmed.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil
Procedure) Rules 2004, (C.I.
47), Order 11 rule 18(1) (b) (d)
Limitation Act, 1972,
(NRCD54).
CASES REFERRED TO IN JUDGMENT
Henderson v. Henderson
[(1843) Hare 100]
Naos Holdings Inc. v.
Ghana Commercial Bank Ltd.
[2011] 1 SCGLR 492
Johnson v Gore Wood & Co
[2002] AC 1 at 31
Sasu v. Amua -Sakyi
[2003-2004] SCGLR 742:
BOOK REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ADINYIRA (MRS), JSC:-
COUNSEL.
HAROLD ATUGUBA FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
K. FREDUA-AGYEMAN DANSO FOR THE
DEFENDANT/ RESPONDENT/
RESPONDENT.
ADINYIRA (MRS), JSC:-
FACTS OF THE CASE
The
Plaintiff/Appellant/Appellant
(Appellant), Eastern Alloys
Company, a limited liability
company, incorporated under the
laws of Ghana, primarily engaged
in the processing and production
of aluminum products and also
engaged in haulage, was a
defendant in an earlier suit
numbered RPC/268/07, before the
High Court (Commercial
Division), Accra; whilst the
Defendant/Respondent/Respondent
(Respondent) Silver Star Auto
Ltd, a limited liability
company, incorporated under the
laws of Ghana, engaged in the
sale and servicing of
Mercedes-Benz vehicles and spare
parts, was the plaintiff in the
said suit.
The claim in the earlier
suit was for an outstanding
balance of money, owed by the
appellant, in respect of
workshop services rendered by
the respondent on Benz trucks,
it sold to the appellant. The
appellant filed a defence and
counterclaim. The dispute was
settled at the pre-trial
settlement stage and a consent
judgment was duly entered on 30
January 2008.
On 17 April 2014, the
appellant issued a writ of
summons with a statement of
claim in relation to 25 units of
Mercedes Benz Actros trucks
claiming general damages from
the respondent for breach of
implied warranty of fitness,
replacement value of affected
trucks and costs.
The respondent filed a
statement of defence to the
action and then brought an
application under Order 11
rule 18(1) (b) (d) of the High
Court (Civil Procedure) Rules
2004, (C.I. 47), on grounds
inter alia that the action was
an abuse of process, as the
matters raised in the
appellant’s statement of claim
were raised as a defence in the
earlier suit. The respondent
also raised an additional issue
that the appellant’s action was
caught by the Limitation Act,
1972, (NRCD54).
The High Court upheld the
objection and struck out the
suit on 29 May 2015 and this
ruling was affirmed by the Court
of Appeal in their judgment
dated 14 July 2016. Their
Lordships at the Court of
Appeal were of the view that:
“the main issue of contention is
a question of fact whether or
not as at the time of the
earlier judgment the cause of
action which is the alleged
defects in the gear boxes of
trucks had accrued. If it had
but the appellant failed to
raise the issue in its
counterclaim but waited until
2014 to institute action, then
the contention that it
constitutes piece meal
litigation and abuse of process
may be maintainable.”
This is an appeal filed on
14 July 2016 against the
judgment of the Court of Appeal,
Accra.
GROUNDS OF APPEAL
The Appellant has raised
four grounds of appeal before
this Honourable Court to wit;
1 That the judgment is
against the weight of the
pleadings and the affidavit
evidence adduced.
2 That the learned
justices of the Court of Appeal
erred in holding that the case
of the Appellant constitutes
piecemeal litigation and abuse
of the process of court
3 The learned justices of
the Court of Appeal erred when
they held that “Once the
respondent pleaded res judicata
the appellant was duty bound to
produce all the evidence it had
to support its contention that
the cause of action was
maintainable. It failed to do
this”, which error occasioned a
grave miscarriage of justice to
the Appellant.
4 The learned justices of
the Court of Appeal misdirected
themselves in coming to the
conclusion that; “The main issue
of contention is a question of
fact whether or not as at the
time of the earlier judgment the
recent cause of action which is
the alleged defect in the gear
boxes of the trucks had
accrued”, which misdirection
resulted in an erroneous
application of the doctrine of
estoppel per rem judicata,
specifically cause of action
estoppel.
On the facts and
submissions by the parties, the
issue that stands out for
consideration is whether the
appellant’s action is an abuse
of court process if at the time
of the settlement of the earlier
suit the present cause of action
had accrued. This issue formed
the basis of three of the
grounds of appeal. We intend to
deal with this issue as its
resolution may dispose of the
entire appeal.
The law relating to abuse of
process
Under Order 11 Rule
18(1) of the High Court (Civil
Procedure) Rules, 2004 (C.I. 47),
a court may strike out the
pleadings of a party in any of
the circumstances set out below:
“Striking out
pleadings
18. (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
vexatious; 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.”
[Emphasis supplied]
The procedural rule (d)
above is grounded in the broader
doctrine of abuse of process,
commonly referred to as the
rule in Henderson v. Henderson
[(1843) Hare 100]
which
“…requires the parties,
when a matter becomes the
subject of litigation between
them in a court of competent
jurisdiction, to bring their
whole case before the court so
that all aspects of its might be
finally decided (subject, of
course, to any appeal) once and
for all. In the absence of
special circumstances, the
parties cannot return to the
court to advance arguments,
claims or defences which they
could have put forward for
decision on the first occasion
but failed to raise. This
doctrine is not based on the
doctrine of resjudicata in a
narrow sense or even on a strict
doctrine of issue or cause of
action estoppel. It is a rule of
public policy based on the
desirability, in the general
interest of as well as that of
the parties themselves, that
litigation should not drag on
for ever and that a defendant
should not be oppressed by
successive suits when one would
do. That is the abuse at which
the rule is directed.”
Submissions by Parties
Counsel for the appellant
submits the issues and cause of
action raised by the pleadings
in the previous case are
materially different and easily
distinguishable from the issues
and cause of action raised in
the present case. He argues that
the respondent did not make any
allegation in respect of the
defect in the gear box, to
warrant a defence to the said
allegation by the appellant and
that the existence or
non-existence of the appellant’s
case was not determined by the
High Court in the first suit.
Counsel submits further that
both the High Court and Court of
Appeal erred as per Order 12
rule1(1) of C.I. 47, a party is
permitted to either elect to
bring a counterclaim in respect
of any claim or to institute a
fresh action to enforce a claim
against a party.
He submits further that
the present case hinges on the
fact that there were breakages
in the gear box arm of the
tractor heads six months after
the trailers were mounted on the
trucks and used; which was an
incident that happened after the
first action had been settled.
Finally, Counsel submits that
the Court of Appeal ought to
have determined whether the
existence or non-existence of
the appellant’s cause of action
was determined by the court in
the earlier action.
Counsel for the respondent
submits that the defects and
alleged gearbox problems had
been diagnosed and
correspondences between the
parties on the defects were
carried out as far back as 2006
before the earlier suit between
the parties in September, 2007.
Counsel submits the appellant
had the opportunity at the time
of filing its statement of
defence to bring up these
matters which it did but
abandoned them when they settled
the matter and agreed to add the
judgment debt of GH¢21, 068. 75
to the cost of new trucks it
would purchase from the
respondent. The respondent
claimed the appellant filed the
present suit in order to
circumvent the consent judgment.
We have taken pains to
study the entire record and we
state our findings as follows:
i.
The appellant was aware of the
defects in the gear boxes of the
trucks as there were series of
correspondence between the
parties on these defects before
the first suit was initiated in
September 2007.
ii.
The appellant in its statement
of defence and counterclaim
filed on 25 October 2007 in the
earlier suit averred inter alia
that it had suffered loss and
damage by reason of the failure
of the respondent to furnish and
fit required features on the 25
trucks.
iii.
The appellant averred further
that the required fixtures were
fitted on the trucks between
January and March 2006.
iv.
The appellant complained that
between November 2005 and March
2006 when the fitting of the
required fixtures were
completed, the trucks could not
be put to work.
v.
The appellant pleaded it had
suffered special damages,
interest on bank loan over the
same period as a result of that.
vi.
The appellant counterclaimed for
special damages as well as
general damages.
vii.
The respondent in its reply to
the statement of defence and
counterclaim averred that the
counterclaim was an afterthought
contrived to delay the payment
of its workshop bill of GH¢21,
068. 75
viii.
The suit was settled at the
pretrial stage and judgment
entered in favour of the
respondent against the appellant
in the sum of GH¢21, 068. 75
From the above, it is not
difficult for us to conclude
that all the defects relating to
the trucks were known to the
appellant at the time it filed
its pleadings in the earlier
suit. Looking at the terms of
settlement of 30 January, 2008,
it seems to us that the
appellant abandoned its
counterclaim.
It is trite for us to say
that this judgment entered into
at the pretrial stage is of the
same binding effect as if it was
a judgment after a full trial.
Accordingly in the absence of
special or vitiating
circumstances the appellant
cannot file a fresh suit against
the respondent to resurrect the
counterclaim. To allow or permit
the present action to stand
would be an abuse of process, a
practice that the Court clearly
abhors.
The rule in Henderson
v. Henderson, supra, adopted
and applied by the courts in
Ghana requires the parties, when
a matter becomes the subject of
litigation between them in a
court of competent jurisdiction,
to put forward any arguments,
claims or defences which they
could have put forward for
decision on the first occasion
so that all aspects of the
dispute might be finally decided
once and for all as it is a rule
of public interest that there
should be finality in litigation
and also in the interest of the
parties themselves against
piecemeal litigation. The
dangers of piecemeal litigation
apart from being vexatious may
result in a party’s cause of
action being caught by the
statute of limitation as was
raised by the respondent against
the appellant’s action.
In our opinion, this is an
appropriate case in which to
apply the rule in Henderson
v. Henderson on abuse of
process and Order 11 Rule
18(1) (b) and (d). See
Naos Holdings Inc. v. Ghana
Commercial Bank Ltd. [2011] 1
SCGLR 492 where this rule in
Henderson v. Henderson
was applied and Dotse JSC said
at page 503 as follows:
“Where, therefore, a
judgment has been delivered by a
court of competent jurisdiction
and the plaintiff-appellant or
the parties decide to file or
institute a fresh suit against
the same party or parties based
on the same facts, the Supreme
Court would invoke the
principles of abuse of process
to nullify the said fresh suit,
especially if no valid reason
has been given, as in the
instant case.”
The appellant’s reasoning
that a cause of action estoppel
does not prevent a party from
asserting a cause of action
simply because the cause of
action had accrued at the time
of an earlier action is
misconceived as the underlying
principle in a cause of action
estoppel and issue estoppel is
based on the rule of public
interest that there should be an
end to litigation. This
underlying public interest
applies in the doctrine of abuse
of process. This was aptly put
by Lord Bingham of Cornhill in
Johnson v Gore Wood & Co
[2002] AC 1 at 31 and
cited with approval by Dr
Data-Bah JSC in Sasu v. Amua
-Sakyi [2003-2004] SCGLR 742:
“But
Henderson v. Henderson abuse of
process, as now understood,
although separate and distinct
from cause of action estoppel
and issue estoppel, has much in
common with them. The underlying
public interest is the same:
that there should be finality in
litigation and that a party
should not be twice vexed in the
same matter.”
In conclusion, we hold
that the High Court in the first
suit determined the matters
between the parties at the
pre-trial conference and the
appellant having succumbed to
the consent judgment, it would
be an abuse of the process of
the court to allow the appellant
to relitigate in respect of the
same matter.
The appellant has not
raised any special or vitiating
circumstances to warrant the
present action and accordingly
we affirm the decision of both
the trial and appellate courts
that the present action is an
abuse of process.
From the foregoing, the
appeal fails and is thereby
dismissed. The judgment of the
Court of Appeal is affirmed.
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
S. A. B. AKUFFO
(MS)
(CHIEF JUSTICE)
J. ANSAH
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
HAROLD ATUGUBA FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
K. FREDUA-AGYEMAN DANSO FOR THE
DEFENDANT/ RESPONDENT/
RESPONDENT.
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