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RULING
AFREH, JSC:
This is an application for an
Order of Certiorari to quash the
decision of the Court of Appeal
delivered on or about the 20th
of December 2001 and for an
Order of Mandamus to compel the
Court of Appeal to rehear and
determine the matter before it
according to law in conformity
with Rules 31 and 32 of the
Court of Appeal Rules 1997
(C.I.19)
The order of the Court of Appeal
was to send the case back to the
High Court to deal with it from
the date the defendant in the
High Court submitted to
judgment.
The applicant Association is
made up of pioneer staff which
worked to establish the Ghana
Commercial Bank. At the
commencement of the suit before
the High Court in January 1995
it had about 770 members but as
at January 2002, when the
instant application was brought,
about 89 of them had died,
remaining 681.
In 1976 a scheme was introduced
by the bank known as the Ghana
Commercial Bank Special Pension
Scheme. The objects of the
scheme included the following:
(a) To serve and reward for long
service and devotion to duty;
(b) To provide employees with
satisfaction that they need not
have financial worries because
of age or infirmity.
The Directors of the Bank for
the time being were the Trustees
of the scheme which came into
operation on 1st October 1976.
At its meeting held on 27th
February 1987 the Board of
Trustees approved a proposal for
the revision of the pension
scheme as presented to it in a
Memo dated 13th February, 1987.
The proposal which was approved
was in these terms:
"In October 1986.....the
Government approved new pensions
for the Civil Service based on
70% of the existing salary of
the goods on retirement. The
Board of Trustees of Ghana
Commercial Bank Special Staff
Pension Scheme at a meeting held
on 17th December, 1986, agreed
that proportionate adjustments
should be effected to the Bank's
pensions based on current basic
salaries with effect from
October, 1986. It was also
agreed to recommend automatic
adjustments of pensions whenever
salaries change."
Following disputes between the
Association and the Bank over
the Bank's obligations under the
scheme the Association
(Plaintiffs) brought on action
on 23rd January 1995 in the High
Court seeking inter alia the
following reliefs:
1. A declaration that the
Plaintiffs are entitled to be
paid their pension rights in
accordance with Defendants'
Board of Directors Amendment
decisions of 27th February 1987;
2. Arrears of pension due
Plaintiffs with interest at
current bank rate with effect
from 1st July 1987;
3. Damages for breach of
contract;
4. An order for perpetual
injunction
Reliefs (3) and (4) were
abandoned at the trial.
On 22nd February 1999 the Bank
(Defendant) submitted to
judgment in respect of relief
(1). Because of the importance
of this submission the
proceedings on that day deserves
to be quoted in full.
"Plaintiffs-Represented by Mrs.
Beryl Prah.
Defendant - No Representation
Prof. Ekow Daniels for
plaintiffs - present with
E.A.Osew and Bruce Thompson.
Mr. NORVOR (Arrived) - I have
instructions from Defendant to
submit to judgment in respect of
relief (1).
On interest payment, I am
instructed to seek for a
settlement with Plaintiffs
counsel. We are yet to meet."
BY COURT:
Suit is adjourned to 1/3/99 for
court (sic) to be announced".
(Signed) Nana Gyamera-Tawiah, J)
On 30th March, 1999 the High
Court granted the application of
the plaintiff Association for an
order of account in accordance
with the submission to judgment
on 22nd February 1999, and by
consent a referee was appointed
to go into accounts and to
report to the court. On 3rd
April 1999 following the
submission to judgment in
respect of relief (1) the
plaintiff Association filed a
Judgment After Trial. It said
that Mr. Justice Nana
Gyamera-Tawiah on 22nd February
1999 having ordered that
Judgment be entered for the
Plaintiff, it was "adjudged that
the Defendant do pay to the
Plaintiffs all their pension
rights in accordance with the
Defendant's Board of Directors
Amendment decision of 27th
February 1987. Arrears of
pension are to the Plaintiffs as
from 1st July 1989. The rate of
interest exigible to be subject
to agreement".
In 2000, following the report of
the referee, one W.K. Nketia of
the High Court Registry who was
appointed to go into the
accounts of the parties, the
plaintiffs filed an application
in the High court praying for
the definitions of the terms
"current basic salary" and
"automatic adjustment of
pensions whenever salaries
change" which had appeared in
the decision of the Board of
Directions of Defendant Bank
referred to in the judgment
after trial dated 22nd February,
1999.
On 20th December, 2000 the Trial
Judge, Justice Nana Gyamera
Tawiah, J, ruled in favour of
the Plaintiffs. The Defendant
Bank appealed and the Plaintiffs
cross-appealed.
In the Court of Appeal it was
discovered that there was
nothing in the record of
proceedings which indicated that
the judge formally gave judgment
when the Defendant Bank
submitted to judgment on 22nd
February 1999. It is clear that
the trial Judge failed or
omitted to record a judgment in
the Record Book. As a result of
this the Court of Appeal allowed
the appeal solely on the ground
that as the judge had not
'entered" or delivered" a
judgment there was nothing to
enforce. It in effect nullified
the judgment after trial and all
other processes or proceedings
that followed the submission to
judgment by the Defendant Bank.
The reasons for the Court of
Appeal's decision are forcefully
stated in the judgment of Benin,
JA in which Owusu-Ansah, JA.
concurred. He said:
"There was no judgment by the
High Court in respect of reliefs
1 and 2 endorsed on the writ on
22/2/99 or on any day
thereafter, according to the
record, so all the subsequent
proceedings aimed at giving
effect to that non-existing
judgment were totally
misconceived. A fortiori, there
was no judgment to enforce, let
alone one to appeal against. In
the absence of a judgment or
order to give effect to the
defendant's submission to
judgment, it remained only an
unenforceable admission on
paper. It had no legal force, at
best it could only be relied
upon in any proceedings between
these parties as an admission of
that claim thereby creating
estoppel against them. Hence the
ruling of 20/2/2000 was a
perfect "non sequitor". In my
view, therefore, this was a
classic case of mistrial. For
that reason, I will uphold the
appeal and direct that the case
be sent back to the High Court
to be heard on its merits, not
discounting the admission made
on 22/2/99."
Omari-Sasu, JA., thought the
omission to include the judgment
of 22/2/99 was "the default of
the High Court " and it should
be ordered to supply the
"missing link" to enable the
Court of Appeal to dispose of
the appeal.
Because of the view taken by the
Court of Appeal it did not even
consider whether in exercise of
its powers under Rules 31 and 32
of the Court of Appeal Rules
1997 (C.I.19) it could itself
record an appropriate judgment.
The order of the Court of Appeal
has even more serious
implications. The High Court
will have to record or note a
judgment in the record book; a
new judgment after trial has to
be prepared and filed; a new
application for the appointment
of a referee will have to be
brought and considered; it will
be necessary to hear again an
application to interprete terms
in the new judgment whose
meaning is disputed; and
finally, if necessary, a new
appeal and cross-appeal will be
filed, new statements of case
and reply submitted, and there
will be a fresh hearing of the
appeal and cross-appeal, new
judgment and orders of the Court
of Appeal.
The situation may be worse. The
time in which the order of Court
of Appeal can be carried out
will depend upon when Justice
Nana Gyamera-Tawiah will be
available to take the High Court
processes I have mentioned
above. If he cannot be available
a new judge will have to be
assigned to the case. The order
of the Court of Appeal will
cause considerable delay.
The main ground of the instant
application for an order of
certiorari is error on the face
of the record because the court
below failed to exercise its
powers under rules 31 and 32 of
C.I.19. In our view the main
issue is whether the Court of
Appeal was right in holding that
there was no judgment and that
all subsequent proceedings aimed
at enforcing the "non-existent
judgment" were misconceived and
"non-sequitor": in other words,
null and void.
The term 'judgment' has at least
two meanings. First it may be
used to refer to the formal
document in which the decision,
determination or conclusion of
the court is expressed; and
secondly the reasoning or the
exposition of the grounds for
reaching that decision,
determination or conclusion. It
is in our opinion in the latter
sense that 'Judgment' in Order
36 r.24 is used; while the
document called 'Judgment After
Trial' describes the first sense
in which the term is used.
As we understand the judgment of
the Court of Appeal, the Record
Book of the trial court must
show that a judgment was
"entered" or "delivered" by the
court or judge. Without such a
record there is no judgment; and
even the document in which,
under the rules of the High
Court, the judgment of the court
is formally expressed and which
must be entered to give effect
to the decision of the court—
the "Judgment After Trial", is
of no effect. It also seems from
the court's judgment that a
judge must "enter" judgment by
making a record or note in the
Record Book of his decision,
determination or conclusion.
In our opinion this view is not
correct. The rules do not
require a judge to enter
judgment, he is only required to
direct judgment to be entered.
This is clear from Order 36 r.24
of L.N 140A which provides:
"The Judge, or other judicial
officer shall, at or after
trial, direct judgment to be
entered as he shall think right,
and no motion for judgment shall
be necessary in order to obtain
such judgment."
The direction or pronouncement
of judgment can be oral, as is
normally the case in England
where judgments are pronounced
soon after addresses of counsel
unless the judge adjourns the
case c.a.v. Although in this
country judges or courts almost
invariably record or note in the
Record Book the judgments or
orders they make, Order 36 r.24
does not say or require that
unless the direction of the
judgment is recorded or noted in
the Record Book there is no
judgment.
The judgment of the Court of
Appeal also attaches to the
pronouncement of a judgment an
effect it does not have. It
makes that pronouncement the
final judgment, which only can
be enforced. But until a
judgment directed or pronounced
by a judge is entered it is not
effective. In Holtby v. Hodgson
(1889) 24 Q.B.D 103, 107 Lord
Esher M.R. said:
"In order.....to get everything
into one form, power is given to
the judge....to direct judgment
to be entered....which is the
same thing as giving him power
to give or pronounce judgment.
Pronouncing judgment is not
entering judgment; something has
to be done which will be a
record, and so the judgment that
the judge has pronounced is the
judgment which is to be
entered."
In Millensted v. Grosvenor House
(Park Lane) Ltd [1937] 1K.B 717
Slesser L.J said at p.724:
".....there is no effective
judgment until it is drawn up
and ... up to that time the
judge is not functus
officio...."
Farewell, J also said at p.726:
"It is now settled, that until
an order made by a judge has
been perfected, by being passed
and entered, there is no final
order, and consequently the
judge may, at any time until the
order is so perfected, vary or
alter the order which he had
intended to make."
The Judgment After Trial is the
formal record of the judgment
pronounced by the judge at or
after the trial. It is the
document which contains the full
details of the judgment and must
be filed under Order 41 r.1 to
give effect to the judgment
pronounced by the judge under
order 36 r.24. Without it the
judgment pronounced by the judge
cannot be enforced. Since it is
the formal record of the
judgment of the court its
existence is a most cogent
evidence that the judge
pronounced judgment at or after
the trial. In our opinion where
Judgment After Trial has duly
been entered it must be presumed
that the judge regularly
performed his duty of
pronouncing judgment at or after
the trial (see. 37 of the
Evidence Decree, 1975 (NRCD
323).
In the case before us the
Defendant did not object to the
terms of the Judgment After
Trial filed by the Plaintiffs on
3rd April 1999. All the parties
and the trial judge acted upon
it, none of them had any doubt
that a judgment had been
directed or pronounced. The
correctness and validity of the
Judgment After Trial were not in
issue in the proceedings to
interprete certain terms arising
from it. It was therefore wrong
for Court of Appeal to declare
that there was no judgment to
interprete or enforce because
there was no note or record of
the judgment the judge directed
or pronounced when the Defendant
Bank submitted to judgment.
We are not saying judges or
courts should not or need not
record or note in the Record
Book the judgments or orders
they make. It is a salutary
practice and in case there is a
dispute over the contents of a
Judgment After Trial it may be
crucial in resolving the
conflict. But the absence of
such a record or note in the
Record Book can at worst only be
regarded as an irregularity if,
in fact, there is a Judgment
After Trial which contains or
must be deemed to contain the
judgment directed or pronounced
by the judge at or after the
trial.
In our opinion the Court of
Appeal seriously erred when it
declared that the was no
judgment and ordered the case to
be sent back to the High Court
to be dealt with from the date
the Defendant submitted to
judgment on Relief (1).
This is a case where it is
appropriate for this court to
order the judgment of the Court
of Appeal delivered on 20th
December, 2001 to be brought up
to be quashed. If the Court of
Appeal had not taken the view it
took and had regarded as a mere
irregularity the omission of the
trial judge to note or record in
the Record Book a judgment of
the Court after the Defendant
had submitted to judgment, it
could itself in exercise of its
powers under Rules 31 and 32 of
the Court of Appeal Rules 1997
(C.I.19), have recorded a
judgment the trial court could
have given. It must now be
ordered to do so and proceed to
rehear the case that had been
brought before it on appeal by
the parties.
We would grant all the reliefs
sought by the Applicant
Association in the application
dated 22nd February 2002.
MRS. J. BAMFORD-ADDO
JUSTICE OF SUPREME COURT
F.Y. KPEGAH
JUSTICE OF SUPREME COURT
E.D. ADJABENG
JUSTICE OF SUPREME COURT
W. A. ATUGUBA
JUSTICE OF SUPREME COURT
D. K. AFREH
JUSTICE OF SUPREME COURT
COUNSEL
DR. EKOW DANIELS FOR THE
APPLICANT
MR. NORVOR FOR THE RESPONDENT |
