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Workmen’s
compensation - Employment -
Shipping – Collective insurance
policy - Injuries on board the
ship – Agreement - Protection
and Indemnity (or P & I) claim –
Negligence - Redress or
compensation – Services of writ
outside jurisdiction - estopped
per rem judicatam – Non
disclosure of cause of action -
Whether or not Defendants by an
application ask the cases to be
strike out the a Writ of Summons
even though they have not filed
any pleadings - Whether or not
High Court, or for that matter
the Ghana Courts have
jurisdiction in the matter in
view of the provisions which has
expressly stated that the said
Agreement shall be governed by
the law of Cyprus to the
exclusion of any foreign
legislation - Whether or not the
action herein is statute barred
HEADNOTES
On or about
24th September 1999,
the plaintiff, while on duty
aboard the M/V Dynamic, then
anchored in Beirut, sustained
injuries whilst dismantling a
piston in the engine room of the
ship under the supervision of a
Superintendent Engineer. The
plaintiff contends that the
first defendant failed or
neglected to provide a safe
system of employment for the
Plaintiff on board the ship. As
a result of his injuries, the
plaintiff could no longer
continue with his work on the
vessel. He was treated
initially at a hospital in
Beirut, but was later
repatriated to Ghana, where he
continued his treatment at Effia
Nkwanta Hospital. The first
defendant sent the plaintiff one
thousand US dollars to help
defray the cost of his medical
treatment. His doctor at Effia
Nkwanta, after examining him and
treating him, wrote a report
which assessed the plaintiff’s
disability as an oiler merchant
seaman at 65 per cent. When
this report was submitted to the
first defendant, it referred the
plaintiff’s claim to the second
defendant for processing as a
Protection and Indemnity (or P &
I) claim. When, after an
extended series of
correspondence between the
plaintiff and the first
defendant, the plaintiff
received no redress or
compensation for his injuries,
he caused the writ already
described to be issued. The High
reached the conclusion that he
could not strike out the
plaintiff’s writ without relying
on extrinsic evidence that had
been deposed to on behalf of the
defendants. However, he
considered that the Supreme
Court decision which precluded
him from doing so. Accordingly,
he held that the defendants’
application was premature and he
dismissed it, the defendants
appealed against this Ruling to
the Court of Appeal, which
reversed the ruling of the High
Court and upheld the appeal
HELD
There is
little doubt that the ratio
decidendi of this case covers
the facts of the case before
us. It is impossible to
interpret the endorsement on the
writ of summons in the case
before us as disclosing any
cause of action. Accordingly,
the writ is a nullity and,
likewise, the proceedings based
upon it. It is thus unnecessary
for this Court to enter into the
merits of the other arguments
rehearsed by or before the Court
of Appeal. The appeal is
therefore dismissed.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules 1954,
LN140A
Limitation
Decree, N.R.C.D. 54 of 1972.
CASES
REFERRED TO IN JUDGMENT
Okofoh
Estates v Modern Signs Ltd.
[1996-97] SCGLR 224
Republic v
High Court, Tema;Ex parte Owners
of MV Esco Spirit (Darya
Shipping SA Interested Party).
[2003-2004] SCGLR 689,
Mosi v
Bagyina [1963] 1 GLR 337, SC.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH,
JSC:
COUNSEL
EBOW QUASHIE
ESQ. FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
JOHN MERCER
ESQ. FOR THE
DEFENDANTS/APPELLANTS/RESPONDENTS
___________________________________________________________________
J U D G M E N
T
___________________________________________________________________
DR. DATE-BAH,
JSC:
On the 4th
of July 2003, the plaintiff
mariner filed a writ at the High
Court, Sekondi, endorsed with
the following claim:
“i)
Order that the Cyprus affiliate
F T PAW, settles the Plaintiff’s
claim per the Collective
Insurance Policy of
International Transport Workers
Federation (I.T.W.F.)
ii)
35%
Interest on the sum payable from
1st November 2001 to
date of payment.”
This Writ was
accompanied by a Statement of
Claim containing the facts set
out below. Since the defendants
have not filed a defence, but
have rather contested the
plaintiff’s claim as a matter of
law, this case has come to us on
the basis only of the
plaintiff’s averments. The
facts tell a sad story, but the
sadness of the story cannot
legitimately be allowed to
affect the correct legal
analysis of the case before us.
The plaintiff
mariner worked aboard the M/V
Dynamic, a Greek registered
vessel owned by the first
defendant and sailing under a
Cyprus flag. The second
defendant is the correspondent
agent of the first defendant in
Ghana and carries on the
business of marine surveyors and
the verification of information
relating to the staff welfare of
its clients.
On or about
24th September 1999,
the plaintiff, while on duty
aboard the M/V Dynamic, then
anchored in Beirut, sustained
injuries whilst dismantling a
piston in the engine room of the
ship under the supervision of a
Superintendent Engineer. The
plaintiff contends that the
first defendant failed or
neglected to provide a safe
system of employment for the
Plaintiff on board the ship. As
a result of his injuries, the
plaintiff could no longer
continue with his work on the
vessel. He was treated
initially at a hospital in
Beirut, but was later
repatriated to Ghana, where he
continued his treatment at Effia
Nkwanta Hospital. The first
defendant sent the plaintiff one
thousand US dollars to help
defray the cost of his medical
treatment. His doctor at Effia
Nkwanta, after examining him and
treating him, wrote a report
which assessed the plaintiff’s
disability as an oiler merchant
seaman at 65 per cent. When
this report was submitted to the
first defendant, it referred the
plaintiff’s claim to the second
defendant for processing as a
Protection and Indemnity (or P &
I) claim. When, after an
extended series of
correspondence between the
plaintiff and the first
defendant, the plaintiff
received no redress or
compensation for his injuries,
he caused the writ already
described to be issued.
After the
issue of the writ, the plaintiff
applied for leave, under Order
11, rule 1(g) and 4 of the High
Court (Civil Procedure) Rules
1954, LN140A to serve the writ
on the first defendant outside
the jurisdiction. His Lordship
Dotse J., as he then was,
granted the leave on 28th
July 2003, for the writ to be
served on the first defendant in
Greece. The defendants entered
a conditional appearance and
then applied to strike out the
plaintiff’s action under order
12 rule 24 and order 25 rules
2,3 and 4. The defendants’
argument was that the plaintiff
was estopped per rem judicatam
from relitigating this matter
since the plaintiff had
instituted a similar action at
the High Court, Sekondi, which
had been dismissed. The
defendants maintained also that
the writ of summons in the
present case and the order
authorising its service were
irregular, incurably bad in law
and therefore null and void. In
a ruling dated 16th
February 2004, Dotse J
identified the issues for
determination before him as
follows:
“1….whether or not under the
principle of law established in
the case of Okofoh Estates v
Modern Signs Ltd. [1996-97]
SCGLR 224 at p. 225 the instant
application by the Defendants to
strike out the Writ of Summons
even though they have not filed
any pleadings can be sustained.
2.
Whether or not this High Court,
or for that matter the Ghana
Courts have jurisdiction in the
matter in view of the provisions
of Exhibit B, which is the
“SEAMANS EMPLOYMENT AGREEMENT”
which has expressly stated that
the said Agreement shall be
governed by the law of Cyprus to
the exclusion of any foreign
legislation.
3.
Whether or not the action herein
is statute barred having regard
to the Limitation Decree,
N.R.C.D. 54 of 1972.
4.
Whether or not the Plaintiff’s
action herein is affected by
estoppel per rem judicatam by
virtue of the Ruling of the
Court delivered on 2/6/03 in
Suit No. CS. 175/02.
5.
Whether or not the reliance by
the Plaintiff on Insurance
effectively puts (sic) and or
ousts the jurisdiction of the
court in view of the fact that
negligence ought to be
determined before Insurance
compensation can be pursued
against the Insurance company.”
Dotse J
reached the conclusion that he
could not strike out the
plaintiff’s writ without relying
on extrinsic evidence that had
been deposed to on behalf of the
defendants. However, he
considered that the Supreme
Court decision of Okofoh Estates
v Modern Signs Ltd.(supra)
precluded him from doing so.
Accordingly, he held that the
defendants’ application was
premature and he dismissed it.
The
defendants appealed against this
Ruling to the Court of Appeal,
which reversed the ruling of the
High Court and upheld the
appeal. It is not necessary to
enter into the full merits of
the judgment of the Court of
Appeal, since in this Court we
are inclined to rely on a
different point altogether to
determine this appeal.
When the
matter came before this court,
we noticed that no cause of
action was endorsed on the Writ
of Summons and that, by a
binding precedent of this Court,
this meant that the writ was a
nullity. Since this point had
not been argued in the courts
below, we invited counsel for
the parties, when they appeared
before us on 6th May
2009, to submit fresh written
submissions on this issue before
20th May 2009. Fresh
submissions were indeed filed by
counsel and their arguments have
been taken into account in
reaching this Court’s decision.
Counsel were also given an
opportunity to address us orally
on this point.
The
supplementary submissions filed
by the appellant were woefully
inadequate in addressing the
issue identified by this Court.
The submissions aimed at
establishing that the Appellant
has a cause of action. That
cause of action was claimed to
be based on workmen’s
compensation arising from
injuries sustained by the
plaintiff while working on a
ship that is covered by a
collective insurance policy
taken out by the first defendant
to cover its employees. This
contention, however, does not
address the right issue, which
is: is the Writ of Summons
endorsed with a cause of
action? There was no attempt by
the appellant to respond to this
issue. The only halting step in
this direction was his
indication that there was
pending before the High Court a
motion on notice for leave to
amend the Writ. The appellant
appended to his supplementary
submission a photocopy of a
motion filed on 5th
January 2007. No further
information was provided as to
the fate of this motion.
Counsel for the
defendants/respondents denied
orally before this Court that
there was any matter pending
before the High Court. In any
case, even if there were such
pendency, it would not be a
sufficient answer to the flaw in
the writ, as it continues to
stand. Finally, the
plaintiff/appellant asserted
that Republic v High Court,
Tema;Ex parte Owners of MV Esco
Spirit (Darya Shipping SA
Interested Party). [2003-2004]
SCGLR 689, which will be
discussed shortly, is
inapplicable to this case as its
facts are clearly
distinguishable from the instant
case. The submission did not
elaborate on how the two cases
were distinguishable.
The
respondents, in contrast,
addressed the issue raised suo
motu by the Supreme Court. They
argued that the appellant’s writ
of summons does not disclose a
cause of action and was thus a
nullity. This is an issue that
is settled by a binding
precedent from this Court. That
case is Republic v High Court,
Tema;Ex parte Owners of MV Esco
Spirit (Darya Shipping SA
Interested Party). [2003-2004]
SCGLR 689. In that case, the
plaintiffs issued a writ of
summons endorsed with only a
claim for an order to furnish
sufficient security for an award
in arbitration proceedings which
were pending between the parties
in London. The Supreme Court
unanimously held that, since the
writ had not been endorsed with
any substantive claim or cause
of action, it was a nullity and
no valid orders could be based
on it. Dr. Twum JSC, delivering
the judgment of the Court,
explained (at p. 697) that:
“In our view,
the writ was not indorsed in
accordance with the mandatory
provisions of the High Court
(Civil Procedure) Rules, 1954.
It was therefore a nullity upon
which no valid orders could be
based: see Mosi v Bagyina
[1963] 1 GLR 337, SC. “
His Lordship
further expatiated on the
Court’s position as follows (at
pp.694-5):
“Our High
Court (Civil Procedure) Rules,
1954 (LN 140A), provide a number
of mandatory provisions on how
writs of summons should be
indorsed. We consider that the
following are relevant for our
decision:
Order 2 r 1
requires that every action in
the High Court shall be
commenced by a writ of summons
which shall be indorsed (our
emphasis) with a statement of
the nature of the claim made or
of the relief or remedy required
in the action.
Order 2 r 3
requires that the writ of
summons for the commencement of
an action shall (our emphasis)
except in the cases in which any
different form is hereinafter
provided, be in one of the Forms
Nos. 1 and 2 in Appendix A Part
1 with such variation as
circumstances may require.
...
These Forms
are, of course, part of the
rules and they are mandatory,
not permissive. A careful study
of them clearly shows that the
indorsement on a writ of summons
must indicate the general nature
of the cause of action against
the defendant. The Forms
referred to in Order 2,rr 3 and
6 and Order 3, r2 are designed
to enable the defendant to know,
at least, in very general terms,
the substantive action being
brought against them.”
There is
little doubt that the ratio
decidendi of this case covers
the facts of the case before
us. It is impossible to
interpret the endorsement on the
writ of summons in the case
before us as disclosing any
cause of action. Accordingly,
the writ is a nullity and,
likewise, the proceedings based
upon it. It is thus unnecessary
for this Court to enter into the
merits of the other arguments
rehearsed by or before the Court
of Appeal. The appeal is
therefore dismissed.
DR.
DATE-BAH
JUSTICE OF
THE SUPREME COURT
S. A. B.
AKUFFO (MS)
JUSTICE OF
THE SUPREME COURT
J.
ANSAH
JUSTICE OF
THE SUPREME COURT
ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
P. BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
COUNSEL:
EBOW QUASHIE
ESQ. FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
JOHN MERCER
ESQ. FOR THE
DEFENDANTS/APPELLANTS/RESPONDENTS
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