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RULING
WOOD G. (MRS)
There has been a slight
misdescription of the parties in these proceedings and I
think it is my duty to rectify the errors, however,
inconsequential they may be, F A Aryettey and others,
were at the hearing of the substantive appeal, the
Plaintiffs/Respondents and not Defendant/Respondents as
they have been described in the motion paper and
supporting affidavit. Similarly, the Ghana Commercial
Bank were the Defendant/ Appellants, not the
Plaintiff/Appellants. In these proceedings, however, I
shall refer to them as Appellants and Respondents
respectively. The Respondents who at the time, were the
Executive Members of the Ghana Commercial Bank
Pensioners Association instituted representative
proceedings on their own behalf and on behalf of seven
hundred and sixty-four other members of the Association.
They sought primarily to recover pension they maintain
they are entitled to at their retirement from the Bank.
The Bank unfortunately resisted the claim and applied
for full particulars of those others on whose behalf
they sued. This simple application was however turned
down by the trial judge who thought that among other
things, allowing the application would delay the trial
unduly. On appeal, this court on 27th February 1997,
however, reversed the decision of the Court below and
ordered these particulars to be furnished to the
appellants within fourteen days of the order and for the
case to proceed to trial. Albeit, before another Judge,
for reasons other than his mere refusal to accede to the
prayer. That order was never complied with. After a
period of almost nine months, one Beryl Prah and J.E.
Carr describing themselves as the new Chairperson and
Secretary respectively of the Association and using the
name of the original respondents have come to this Court
by way of a motion, supported naturally by an affidavit
(in support) praying for an order of enlargement of time
within which to comply with our order of 27th February,
1997. The reasons for the application are contained
particularly in the paragraphs 5, 6, 7 and 10 of the
affidavit accompanying the motion. I will reproduce
them. They read as follows:
“5” That instead of
complying with the order, Mr. Aryettey without the
knowledge, approval and consent of the Association and
its members ignored it by filing a purported memorandum
of settlement in the High Court to the detriment of the
members.
“6” — That we are
advised by our Solicitors and verily believe the same to
be true that the so-called settlement and a copy of
which is now produced to us and shown to be marked BP 2
is not binding on us and of no effect and was entered
into contrary to S 324 of the Companies Code 1963 (Act
179). Nevertheless, it received the approval of any
court.
“7” — That consequently
the members of the Association protested against Mr.
Aryettey's conduct and passed a resolution to withdraw
their retainer from their previous counsel, a copy of
which is now produced and shown to be marked as Ex. BP
3.
“10” — That at the last
quarterly meeting of the Ghana Commercial Bank
Pensioners Association held on Saturday, 20th September
1997 in Accra, the old Executive Members were voted out
of office and replaced by us.
“11” — We have now
decided to comply with the order of the Court of Appeal
and therefore ask for extension of time within which to
furnish to the High Court to be nominated by the Chief
Justice to take over the case to be heard on its
merits”.
Not unsurprisingly, the
Appellants have stoutly resisted the application arguing
that:—
1. At the time of
signing the memorandum, Aryettey had full authority of
the Association to negotiate and sign the said terms of
settlements.
2. The members approved
of the said agreement and consequently collected their
entitlements from the Appellant Bank.
3. The Respondents
Solicitor approved of the said settlement and collected
his fees accordingly.
4. That the appointment
of the new Executive members does not nullify the acts
of the previous executive members, their removal having
taken place after their endorsement of the said
agreement.
These basically are the
arguments advanced in opposition to the motion. It is
therefore plain that from the affidavits, before we can
decide whether or not to enlarge time as prayed, we need
to resolve certain important legal issues. Arguably the
most crucial are:
1. Whether or not the
old executive members as well as their counsel had the
authority to negotiate the said agreement.
2. Whether or not the
members endorsed the said agreement.
3. Whether or not the
said agreement offends S 324 of Act 179.
4. Whether or not
flowing from the above, there has been a valid and
effectual settlement of the dispute between the parties.
The importance of this
last issue cannot be over-empahsised. While the two new
Executive Members are saying that there has not been a
valid settlement of the matter and so they should be
given the opportunity to comply with the court's order
in order that the case might be tried on the merits, the
appellants contention is that there has been such a full
final and binding settlement of the dispute that nothing
remains to be determined and consequently this court
need not and ought not extend time. Granting the order
would, according to their argument be an idle exercise.
After having given this
matter a very careful thought I do now express my views:
In the first place, I
do not think that this Court is clothed with
jurisdiction at this stage to hear and determine the
matters raised and which form the basis of this present
application for enlargement of time.
As an appellate court,
yes, I do concede the point that in deserving cases, we
have power to enlarge the time within which we have
ordered any act to be done or any step to be taken. And,
I am not in this ruling challenging this Court's power
to extend time. What I am questioning is our authority
as an appellate court, at this stage in the history of
this case, to pronounce on the validity of the
settlement, the material fact upon which the application
for extension of time hangs. I think these matters are
the preserve of the court of first instance, the Tema
High Court.
The question is why do
I say so? The respondents did not find any fault with
our order of 27th February. Had they, I believe they
would have taken one of those steps that people who
normally are dissatisfied with Court Orders take. And
that is, to either appeal against the said order to
apply for a setting aside or a review of the said order.
Impliedly then, they were not aggrieved by the said
order. Rather they decided to go back to the court below
and comply with the said order for the case to proceed
in the normal way. It is true that they did not provide
these particulars as we have ordered and chose rather
to negotiate a settlement. Whether or not the old
executive members acted without lawful authority is of
no moment. We in this court are not entitled to decide
this question now. The truth of the matter however, is
that, the respondents as they were legitimately entitled
to do, decided to settle the matter. Indeed the fact
that we reversed the decision of the court below and
ordered them to furnish the particulars did not take
away their right to settle or compromise the action at
any stage of the proceedings. But then the fact also
that respondents did file a memorandum of settlement at
the court below, has added another dimension to the
case. And it is that which has affected this
application. It is this. At the date of the hearing of
this motion, the High Court which is the court of first
instance and the court clothed with jurisdiction to hear
and determine this case to finality has before it a
memorandum of settlement which not only spells out the
terms of settlement but has significantly also implored
the court to dismiss the action. Indeed by the paragraph
5 of the affidavit in support of the motion the new
executive members admit the pendency of the memorandum
before the Court. Never mind the fact that His Lordship
the Chief Justice has not as yet nominated the Judge who
is to deal with the case. That is a purely
administrative matter with no bearing, let alone any
significant bearing on the status of the memorandum. The
true factual and legal position is that the court is yet
to determine whether or not it should uphold the terms
of settlement and consequently dismiss the claim on that
basis.
It seems to me then
that the proper forum at which the appellate could raise
the matters they have raised by this application, the
proper forum for articulating those views expressed by
both sides of this legal divide is the court below where
the memorandum is pending and is awaiting the court's
directions. Put in other words, the forum of resolving
all the question in controversy, questions as to the
validity or otherwise of the settlement, as to whether
or not it binds the parties or not, or as to whether or
not it violates S 324 of Act 179 is not this court of
appellate jurisdiction but the court of first instance.
I am of the opinion that if we proceeded to determine
these matters, we shall be usurping the functions of the
court below.
In a representative
action brought under the Companies Code, Act 179, the
court that shall have original jurisdiction to determine
whether or not they proposed settlement or compromise of
that claim is valid and fully and finally settles the
rights of the parties is the court before which the
action originated. It will be useful to reproduce the
relevant section. It is the S 324 SS (d). This
incidentally is the very law the executive members
lament has been violated. It provides:
“Where under any
section of this code, it is provided that if legal
proceedings are instituted by any person, he shall sue
in a representative capacity on behalf of himself and
other members of a class. The following provision shall
apply, that is to say:
(a) such person may
commence proceedings in such representative capacity
without obtaining the consent and approval of any other
member of the class represented and, subject to
paragraph (b) of this section, such person shall have
the sole conduct of the action and no other member of
the class shall be deemed to be a party to the
proceedings or in any way liable for the costs thereof;
(b) any member of the
class represented may at any time prior to final
judgement apply to the Court for leave to be made a
party to the proceedings whether as co-plaintiff or
otherwise and the Court may grant leave upon such terms
regarding the conduct of the action and otherwise as it
shall think fit; and if such leave is granted the
applicant shall become a party to the proceedings and
liable accordingly to have an order for costs made
against him;
(c) any judgement given
in the action shall bind and ensure for the benefit of
all members of the class represented, whether or not
they have intervened in the proceedings in accordance
with paragraph (b) of this section;
(d) no proceedings
shall be dismissed, settled or compromised without the
leave of the Court which may, if it shall think fit,
order that notice of the proposed dismissal, settlement
or compromise shall be given to all members of the class
represented and any other persons”.
By these provisions
then, where any representative action has been
instituted by any person on behalf of himself and any
other members of a class, as in this case, that action
shall only be settled, compromised or dismissed with the
leave of the Court.
Certainly, the Court
being referred to here is the court before which the
action originated, in this instant case the High Court.
That being so, in all class actions, where as in this
case, while a suit is yet to be determined, either side
files terms of settlement, the proper Court that shall
have jurisdiction to determine whether or not the
parties shall be allowed to settle or compromise the
action and whether consequently the action shall be
dismissed is the Court before which the matter is
pending. We in this Court assumed a limited jurisdiction
when we were in our appellate capacity called upon to
determine whether or not the learned trial Judge was
right in refusing the application for further or better
particulars. We became fonctus officio when we gave our
decision of 27th February 1997 and we could only
thereafter exercise only such limited powers as would
make our order effectual. But certainly matters such as
these upon which the application for enlargement is
founded, particularly at a time when the Court with
original jurisdiction is at the same time, by the
pendency of the memorandum seized with jurisdiction, is
clearly beyond our domain. Had the parties not attempted
a settlement, culminating in one side filing a
memorandum before the Court, had the respondents merely
failed to comply with our order, with none of these
intervening circumstances that I have ever and again
described, and the respondents have brought a simple
application for enlargement of time, I think my views on
this matter would have been different.
In my view then, it is
only when leave to settle this action has been refused,
it is only when the court has declined the invitation to
dismiss this action, that this Court may entertain and
hear any application for enlargement had co-ordinate
jurisdiction with the High Court to determine the
validity or otherwise of the said settlement, the fact
that they were the first to be called upon to determine
these matters will necessarily produce the same result
that I have reached, namely that these questions may be
tried there first before we can be called upon to decide
whether to extend time to enable the respondents comply
with an order. And even so, provided the losing party
does not appeal the order and does not succeed in
obtaining an order proceedings. I think then, that this
motion is premature and I would dismiss same without
going into the merits. As a result, I would also grant
liberty to the respondents to bring a fresh application.
I have based this
ruling purely on a procedural ground. I wish, however,
to touch on a small matter which has agitated my mind.
It has to do with the locus standi of the new executive
members. If their contention is that the original
plaintiffs, Aryettey and others have ceased to represent
the Association and are therefore no more parties in
these proceedings, if they are maintaining that they are
now the proper persons now clothed with capacity, it
seems to me they ought, under the appropriate rules, to
take the necessary steps to have themselves made either
substitute plaintiffs or otherwise, unless of course the
law or the, rules of court permit them, under the
circumstances in which they find themselves to intervene
in these proceedings (and without leave) in the name of
the original plaintiffs. In this connection they may do
well to examine the clear provisions os Sec. 324 of Act
179, By them, the original plaintiffs that was clothed
with capacity shall have sole conduct of the action and
no other members of the class shall be deemed to be a
party to the proceedings, except with leave of the
court. Again, I deem it expedient to reproduce these
sections:
324 (a) where under any
section of this code, it is provided that if legal
proceedings are instituted by any person he shall sue in
a representative capacity on behalf of himself and other
members of a class, the following provisions shall
apply, that is to say:
(a) such person may
commence proceedings in such representative capacity
without obtaining the consent and approval of any other
member of the class represented and subject to paragraph
(b) of this Section, such person shall have the sole
conduct of the action and no other member of the class
shall be deemed to be a party to the proceedings or in
any way liable for the costs thereof.
(b) Any member of the
class represented, may at any time, prior to final
judgement, apply to the court for leave to be made a
party to the proceedings whether as co-plaintiff or
otherwise and the Court may grant leave upon such terms
regarding the conduct of the action and otherwise as it
shall think fit, and if such leave is granted, the
applicant shall become a party to the proceedings and
liable accordingly to have an order for costs made
against him”.
It follows that in
class actions brought under the Companies Code, Act 179,
the person who shall have sole conduct of the
proceedings is the person who sues in the representative
capacity for himself and on the behalf of the other
members of the class. No other member shall without
leave of the Court be deemed to be a party to the
proceedings and so be entitled to make applications such
as the one before us.
In the result, this
section is dismissed with liberty reserved in Mrs Beryl
Prah and Mr. Carr to file a fresh application.
G. T. WOOD MRS
JUSTICE OF APPEAL
ESSILFIE-BONDZIE J.A.
The
Plaintiff/Respondents/Applicants (who will hereinafter
be called the Plaintiffs) have applied to this Court for
an order of enlargement of time within which to file the
particulars ordered by this Court on 27th February, 1997
as per Exhibit B, plaintiffs attached to the
application.
The genesis of this
application is that the 1st Plaintiff and 769 others
instituted an action bearing Suit No 13/95 through their
Solicitors, Mr. Jones-Mensah in the High Court at Tema
claiming for the following reliefs:
a. A declaration that
the plaintiffs are entitled to be paid their pension
rights in accordance with the Defendants’ Board of
Directors Amendment decision on 27th February, 1987.
b. Arrears of pension.
c. Damages for breach
of contract.
d. An order of
perpetual injunction
At the hearing of the
suit, counsel for the parties agreed to set down certain
legal issues for determination by the Judge. The legal
issues were argued by Counsel. At the end of the various
arguments, judgement was given in favour of the
plaintiffs on their claim. Dissatisfied with the
judgement of the High Court presided over by Mr. Justice
K K Acquaye the respondents (who will hereinafter be
referred to as the Despondent) appealed to us the Court
of Appeal to set aside the said judgement.
On the 27th of February
1997, the Court of Appeal by a unanimous decision,
allowed the appeal, set aside the judgement and ordered
a trial De Novo. (See Exhibit BP 1). The Court also
ordered the plaintiffs to supply to the defendant
further and better particulars inter alia, the identity
of the plaintiffs within 14 days from the date of the
judgement. As already indicated a copy of the Order is
annexed to the application and marked as Exhibit BP 1.
As revealed by the
affidavits filed by the parties in this case, the Court
of Appeal fixed the resumed Tema High Court hearing for
the 17th March, 1997. However, before the 17th March,
1997, the defendants invited the plaintiffs for a
settlement out of Court. The case was amicably settled
between the plaintiffs and the Defendants. The terms of
settlement were agreed upon by the Plaintiffs and the
Defendants. These were then embodied in a memorandum of
settlement and filed at the High Court at Tema. A copy
of the said memorandum of settlement is annexed to the
motion and marked as Exhibit BP 2.
In his submission
before this Court, Dr. Ekow Daniels argued that Mr.
Aryettey who signed the terms of settlement as a
representative of the Plaintiffs did so without the
approval and consent of the other members of the Ghana
Commercial Bank Pensioners Association. Learned Counsel
contended that the said settlement out of Court is not
binding and of no effect and was entered into contrary
to Section 324 of the Companies Code 1963 (Act 179). He
therefore asked the Court for an extension of time
within which to furnish the particulars ordered by the
Court.
Mr. Norvor for the
Defendants who opposed the application submitted that at
the time of the signing of the terms of settlements, Mr.
Aryettey had the full authority of the Plaintiffs. He
said that the Plaintiffs having taken advantage of the
terms out of court settlement and collected their
entitlements cannot be heard to say that they were not
consulted. He argued that the settlement was not
contrary to Section 324 of the Companies Code 1963 (Act
179). And failure to comply with the Companies Code is
not fatal and did not invalidate the out of Court
settlement.
It is significant to
point out that at the resumed sitting of the Tema High
Court on the 17th March 1997 (as ordered by the Court of
Appeal) Counsel for the Plaintiffs who acted for the
latter in the abortive suit appeared for the
Plaintiffs. This is born out by Exhibit BP 5 annexed to
the Plaintiffs’ affidavit. This means that up to the
time settlement was effected, Mr Jones-Mensah acted as
both Solicitor and Counsel for the Plaintiffs. A look at
Exhibit BP 6 also attached shows that although Counsel
for the Plaintiffs and the Defendants were not present
when the terms of settlement were negotiated Mr Jones-Mensah
approved and confirmed the settlement and indeed took
advantage of it by receiving payments made by the
Defendants in furtherance of the settlement. This
benefits it is noted, was taken without the least
protest at the time of the receipt thereof on the part
of the Plaintiffs and their Counsel. The Plaintiffs’ own
Exhibit BP 6 also shows that the Plaintiffs were
notified of the terms of settlement before they
collected their entitlements under the said terms of
settlement.
Exhibit BP 6 is a
letter addressed to Dr. Ekow Daniels by Mr Jones-Mensah
ostensibly to explain the various stages through which
the case under review had travelled. The letter reads
inter alia as follows:
“Thank you for your
letter of 2nd August 1997.
I am afraid it will be
professionally incompetent and indeed unethical for me
to say, at this stage that the above litigation is still
pending. It is not.
True it is that in this
suit, I opposed the settlement out of Court which was
conducted behind my back but also true it is the fact
that all Plaintiffs were fully aware of the settlement
at all material times. They accepted it, and indeed took
advantage of it by receiving payments made by the Bank
in furtherance of the self-same settlement.
This benefit, it must
be noted, was taken without the least semblance of
protest at the time of receipt thereof on the part of
any of the plaintiffs. It is moreover true to say that
Mr. Aryettey was, at all material times the accredited
representative of the Plaintiffs and this at the behest
of all Plaintiffs. He indeed dealt with my Chambers on
Plaintiffs' behalf at all material times. His authority
to act on their behalf and to conclude a settlement on
their behalf therefore cannot be questioned by me at
this point in time more so when all Plaintiffs
themselves supported Mr Aryettey against my resistance
of the self-same settlement.......……….”.
The said memorandum of
settlement — Exhibit BP 2 — as mentioned above was filed
in the High Court at Tema. It reads:
.
“Suit No 86/96
F.M.A. ARYETTEY &
ORS
: PLAINTIFFS
VRS
GHANA COMMERCIAL
BANK :
DEFENDANT
___________________________________________________________________________________________
TERMS OF SETTLEMENT
The above instituted
suit is settled out of Court on the following terms:
1. The Defendants
hereby agree to pay and the Plaintiffs agree to accept
payment of pension of 70% of the basic salary attached
to posts on which they retired as per Board of
Directors’ resolution passed on 27th February 1997.
2. The Defendants agree
to pay interest on the arrears of pension and the
Plaintiffs agree to accept payment of arrears of pension
at an interest rate of 12½%.
3. It is further
mutually agreed that each party should bear their own
costs of the litigation both at the High Court, Tema and
the Court of Appeal, Accra.
4. That the suit be
dismissed upon filing the terms of settlement in the
High Court, Tema.
DATED AT ACCRA 7TH DAY
OF MARCH, 1997.
SIGNED BY THE
PLAINTIFFS’
REPRESENTATIVE
MR F.M.A. ARYETTEY
SIGNED BY THE DIRECTOR
OF
ADMINISTRATION, GCB,
ACCRA”
As the documents and
affidavits filed in this application indicate, following
the signing of the above memorandum of settlement, Mr
Jones-Mensah the then Solicitor for the Plaintiffs
confirmed and accepted the terms of settlement and later
entered into an agreement with the Ghana Commercial Bank
Pensioners’ Association on the 25th March 1997 and
collected his fees. The said agreement which was signed
by Mr Jones-Mensah and representatives of the Plaintiffs
has been attached to the Defendants’ affidavit and
marked as Exhibit GCB 3.
Exhibit GCB 3 reads:
“Suit No C 86/96
F M ARYETTEY & 769
ORS
PLAINTIFFS
VRS
GHANA COMMERCIAL
BANK
DEFENDANTS
In consideration of
professional legal services rendered to the Seven
Hundred and Seventy Plaintiffs in the above suit at the
Commission for Human Rights and Administrative Justice,
the High Court and the Court of Appeal and the eventual
settlement thereof:— (The emphasis is mine).
IT IS HEREBY AGREED that
the Ghana Commercial Bank Pensioners’ Association shall
pay as professional legal fees to Mr Jones-Mensah as
follows:
a. In respect of each
Plaintiff, the sum of Two Hundred Thousand Cedis
(¢200,000.00) i.e. a total sum of One Hundred and
Fifty-four million cedis (¢154,000,000.00) plus Two
million cedis (¢2,000,000.00) as miscellaneous expenses,
making a grand total of one hundred and fifty-six
million cedis (¢156,000,000.00).
b. That the Plaintiffs
by this agreement do hereby authorise the Defendants to
deduct this sum of ¢156,000,000.00 at source from the
Plaintiffs' entitlements as per the Settlement in this
case, and pay some to Mr. Jones-Mensah.
DATED AT TEMA THIS 25TH
DAY OF MARCH, 1997.
For Ghana Commercial
Bank Pensioners’ Associate represented by:
1. E. K.
DJAIDOO — Vice President
(Sgd)
2. E. GORDON
ARYEE — Secretary (Sgd)
3. E. N.
DODOO — Welfare Officer
(Sgd)
4. A. L.
TAWIAH — Treasurer (Sgd)
all as representatives
of the above Plaintiffs.
Signed by JONES-MENSAH
WITNESS (SGD).
The combined effect of
the Plaintiffs’ own Exhibit BP 6 (Supra) and Exhibit GCB
3 (Supra) signed by Mr Jones-Mensah the Solicitor for
the Plaintiffs plainly establishes, as I have said that
at the time of the signing of the terms of settlement,
MR F.M.A. ARYETTEY had the full authority and consent of
the Plaintiffs to sign the said terms of settlement.
These Exhibits also prove that the Plaintiffs were
notified of the terms of settlement and approved of them
before they collected their entitlements.
It is my view that
having taken advantage of the terms of settlement out of
Court and collected their entitlements, from the
Defendant/Bank, the Plaintiffs cannot now be heard to
say that the said out of Court settlement offends
against Section 324 of the Companies Code 1963 (Act
179). The purpose Section 324 in my view is merely to
ensure that there is no collusion between the person
suing in a representative capacity and the Defendants.
In this case the Plaintiffs have not alleged and proved
that their representative colluded with the Defendants.
To allow the plaintiffs
therefore to take advantage of Section 324 would be
committing a fraud on the Defendant, since the
plaintiffs have collected their benefits under the terms
of settlement.
Aside from this, it is
not disputed that the Plaintiffs were represented by Mr
F.M.A. Aryettey throughout the abortive trial. This fact
is born out in Exhibit BP 6. And up to the time of
settlement, the Plaintiffs intentionally and
deliberately permitted the Defendant/Bank to believe and
to act upon the belief that at all material times, Mr
Aryettey was their accredited representative. So that
under the principle of estoppel by conduct either under
the common law or as provided for under the Evidence
Decree, 1975, NRCD 323. Section 26, the plaintiffs are
estopped from saying that Mr. Aryettey signed the terms
of settlement without their knowledge and consent. The
Plaintiffs are bound by the terms of settlement —
Exhibit BP 2.
Again, as I have said,
the Plaintiffs’ Solicitor Mr Jones-Mensah, accepted the
terms of settlement out of Court and entered into an
agreement on behalf of the Plaintiffs with the Defendant
Bank. He not only signed the said settlement agreement —
Exhibit GCB 3 — he collected his fees under it. “The
duty of Counsel” said Lord Esher MR in MATHEWS Vrs
MUNSTER (1887), 20 QBD “is to advice his client out of
Court and to act for him in Court and until his
authority is withdrawn he has, with regard to all
matters that properly relate to the conduct of the case,
unlimited power to do that which is best for his
client”. In this case Mr Jones-Mensah did not need the
consent of the Plaintiffs for a matter which ordinarily
falls within the ambit of his authority as Solicitor,
and if an admission is made by him or states that an
action has been settled, the Plaintiffs are precluded
from saying that the matter has not been settled.
I hold that the
admissions made by Mr Jones-Mensah, Solicitor for the
Plaintiffs in Exhibits BP 6 and GCB 3 are binding on the
Plaintiffs. See BAIDEN Vrs SOLOMON (1963) GLR 488. In
clause 4 of the terms of settlement — Exhibit BP 2 — it
was agreed “that the suit be dismissed upon filing the
terms of settlement in the Court, Tema. According to Mr
Jones-Mensah’s admission in Exhibit BP 6, the terms of
the settlement were filed with the High Court at Tema on
the 17th March 1997. This ended the matter. I agree with
Mr. Jones-Mensah when he declared in the Plaintiffs’
Exhibit BP.6 that “I am afraid it will be professionally
incompetent and indeed unethical for me to say, at this
stage, that the above litigation is still pending. — It
is not”. In these circumstances I do not think it is
open to this Court to re-open the case by granting the
instant application for the matter to be re-litigated.
There must be a finality to litigation at a point in
time. I consider the application for enlargement of time
incompetent and it is dismissed.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
GBADEGBE J
The applicants herein
pray in the motion before us for an order extending the
time within which to comply with an order of this Court
exhibited to this application as “BP 1”, whereby
following an appeal against the refusal of the trial
Court to order further and better particulars it was
ordered as follows:
“It follows we have
granted the application for further and better
particulars and order this particulars to be supplied
within 14 days from today”.
In the course of
arguments, it was quite apparent that the basis of the
extension sought is that a purported terms of settlement
contained in Ex “BP 2” did not comply with section 324
(d) of Act 179 of the Companies Code in that the leave
of the trial Court was not sought to effectively
constitute the said terms into a valid settlement. It
was therefore not surprising that the arguments
canvassed for and against the application centered
mainly on what the said provision means. An examination
of the processes in aid of the application ought to have
first been raised before the trial Court on the grounds
that the leave required under the enabling legislation
is one for the trial Court. Since this forum is not a
Court of first instance, it is not enabled by law to
exercise original jurisdiction but only appellate
jurisdiction in the nature of the re-hearing on the
transcripts before it.
I am of the thinking
that the invitation to this Court contained in the body
of the motion before us if acceded to would clearly
amount to a usurpation of the powers of the trial Court.
I have no doubt that
such an accession would deprive the trial Court of
expressing its views on the point taken under Section
324 (d) before the same is raised in the Appellate
Court. In my opinion, therefore, the proper course open
to the applicants is to appeal before the trial Court
and raise the concerns which they have urged before us
in order that the trial Court may exercise its
discretion under the said provision. The result is that,
I am unable to consider the application herein on the
merits, and say that the same is improperly before us
and proceed to have it struck out as incompetent.
N.S. GBADEGBE
JUSTICE OF THE HIGH
COURT
12/2/98
COUNSEL
1 Dr. Ekow Daniels for
the Plaintiff/Appellants
2.
Mr. Anthony Norvor for the Defendant/Respondents |
