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Labour - Workmen’s Compensation
Act -
Jurisdiction
- Whether
In ordering Defendants to pay
Plaintiff’s medical bills the
Court of Appeal did not
appreciate the totality of the
evidence before it - Whether,
the Court of Appeal exercised
its discretion wrongly in the
award
HEADNOTES
On the 2nd of August
2016, the
Plaintiff/Respondent/Appellant,
hereafter Plaintiff, filed an
Interlocutory Appeal pursuant to
special leave granted on
28/7/2016 against the Ruling of
the Court of Appeal duly
constituted, dated 11th May
2016 which was a Ruling procured
at the instance of the
Defendants/Appellants/Respondents,
hereafter Defendants with the
following as the grounds of
appeal
The Court of Appeal erred when
it relied on paragraphs 5, 7,
10, 14, 15 and 16 of Defendants
affidavit in support to vary the
order of the single justice on
the ground only that Defendants
raised the issue of
jurisdiction. In varying the
order of the single Justice, the
Court of Appeal erred in failing
to consider adequately or at
all, Plaintiff’s affidavit in
opposition on the issue of
service of hearing notices on
Defendants and of the conduct of
Defendants prior to, and during,
the trial at the High Court.In
ordering Defendants to pay
Plaintiff’s medical bills
pending the hearing and
determination of the appeal, the
Court of Appeal did not
appreciate the totality of the
affidavit evidence before it and
of the fact that there was
nothing before the court to show
that Plaintiff had any pending
medical bills to be paid. Having
found that Plaintiff got injured
whilst working for the
Defendants, the Court of Appeal
exercised its discretion wrongly
in the award of only GH¢30,000.00
to Plaintiff in view of the
evidence that had been led
without opposition at the High
Court of Plaintiff’s condition
and circumstances.-
HELD :-
A person who has retired
cannot have his office declared
vacant as the very act of
retirement implies that he is no
longer at post. The use of the
word “and” after “shall
forthwith become vacant” and
before “a pension,
superannuation, allowance or
entitlement shall forthwith
determine and be forfeited from
the date of the conviction”
clearly inform us that the
orders contemplated under
section 298 of Act 30 are to be
made only in relation to serving
officers, which the plaintiff
unfortunately was not at the
date of his conviction. In view
of the above, our response to
the second question which arises
by implication under article 155
(1) concerning the plaintiff’s
conviction after retirement and
his entitlement to pension is
that he is not entitled to
gratuity and pension.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules 1996,
C.I. 16 Rule 15 (1)
High Court (Civil
Procedure) Rules 2004 C.I. 47
Order 7 r. 2 (1) and 5 (1)
CASES REFERRED TO IN JUDGMENT
Barclays Bank v Ghana
Cable Co. [2002-03] SCGLR 1
Vasque v Quarshie [1968]
GLR 62.
In re West Coast Dyeing
Ind. Ltd; Adams v Tandoh
[1987-88] 2 GLR 561
Okofoh Estates Ltd. v
Modern Signs Limited [1996-97]
SCGLR 224,
Barclays Bank of Ghana
Ltd. v Ghana Cables Co. Ltd
[1998-99] SCGLR 1
Companies Act, 1963 Act
179 Section 263
Lagudah v Ghana Commercial
Bank [2005-2006] SCGLR 388 and
Barclays Bank of Ghana Ltd. v
Ghana Cable Co. Ltd
Ballmoos v Mensah
[1984-86] 1 GLR 724-733 at 735
Republic v Court of
Appeal, ex-parte Sidi [1987-88|
2 GLR 170 at 181, SC
Adu (per Attorney) v G.R.A
[2013-2014] 2 SCGLR holdings 1,
2 and 3
Blunt v Blunt [1943] A.C
517 at p. 513
Dzobo v Agbeblewu & Others
[1991[ 1 GLR 294
Djokoto & Amissah v BBC
Industries Co. Ghana Ltd. & Anr.
[2011] 2 SCGLR 825 at 826
KMK & Anor v A.D.B
[2013-14] 2 SCG;R 1614 and
finally
Re Bob Kwame and Co. Ltd,
Gyingyi v Bernard & Anr.
[1989-90] I GLR 37
Joseph v Jebeille [1963] 1
GLR 387
Ballmoos v Mensah, already
referred to supra,
Dzotepe v Hahormene III
[1984-86] 1 GLR 289 CA
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
GBADEGBE JSC:
COUNSEL.
THOMAS HUGHES FOR THE PLAINTIFF.
DR. E.I. KORAY, CHIEF STATE
ATTORNEY LED BY WILLIAM POBI,
CHIEF STATE ATTORNEY FOR THE
DEFENDANTS.
DOTSE, JSC:-
BRIEF FACTS
On the 2nd of
August 2016, the
Plaintiff/Respondent/Appellant,
hereafter Plaintiff, filed an
Interlocutory Appeal pursuant to
special leave granted on
28/7/2016 against the Ruling of
the Court of Appeal duly
constituted, dated 11th
May 2016 which was a Ruling
procured at the instance of the
Defendants/Appellants/Respondents,
hereafter Defendants with the
following as the grounds of
appeal:-
2. Part of the
Ruling Complained of
The whole Ruling varying the
order of the single Justice
dated 12th April
2016.
3. GROUNDS OF APPEAL
a. The Court of
Appeal erred when it relied on
paragraphs 5, 7, 10, 14, 15
and 16 of Defendants
affidavit in support to vary the
order of the single justice on
the ground only that Defendants
raised the issue of
jurisdiction.
b. In varying the
order of the single Justice, the
Court of Appeal erred in failing
to consider adequately or at
all, Plaintiff’s affidavit in
opposition on the issue of
service of hearing notices on
Defendants and of the conduct of
Defendants prior to, and during,
the trial at the High Court.
c. In ordering
Defendants to pay Plaintiff’s
medical bills pending the
hearing and determination of the
appeal, the Court of Appeal did
not appreciate the totality of
the affidavit evidence before it
and of the fact that there was
nothing before the court to show
that Plaintiff had any pending
medical bills to be paid.
d. Having found
that Plaintiff got injured
whilst working for the
Defendants, the Court of Appeal
exercised its discretion wrongly
in the award of only
GH¢30,000.00 to Plaintiff in
view of the evidence that had
been led without opposition at
the High Court of Plaintiff’s
condition and circumstances.
e. Additional
grounds of appeal may be filed
upon receipt of the record of
appeal.
Being an interlocutory
appeal, we will state bare and
essential facts of this case.
The Plaintiff per his writ
of summons claimed against the
Defendants jointly and severally
the following reliefs:
a.
Special damages of GH¢19,490.00
being costs incurred by him as a
result of injuries sustained due
to Defendants negligence.
b.
General damages
c.
Cost of prosthetics estimated at
$30,000.0
d.
Interest on any sums awarded in
favour of plaintiff up to date
of final payment.
e.
Costs including Solicitors fees
f.
Further or other reliefs
In support of the above,
the plaintiff averred that he
commenced work at the 3rd
Defendant’s factory as a casual
worker and his duty was to count
and write down at any given time
the number of roofing sheets
produced by the machine. A few
days after the plaintiff
commenced the above work, he was
instructed by the 2nd
Defendant to pull out from the
machine the roofing sheet which
got stuck in the machine without
any knowledge, training or
expertise in the said job.
The plaintiff alleged that
it was as a result of the
negligence of the defendants
that the machine mashed
his hands, which conduct led to
the severe amputations of all
his ten fingers. A medical
report upon his examination
established his disability at
80%, disfigurement at 20% with
post operative rehabilitation
and physiotherapy virtually not
possible.
The Defendants denied the
claims of the plaintiff and
averred that there was an
operator of the Roller machine
who normally was the leader of
a team of 6 or 7 workers who
operated the machine and that
the 2nd defendant was
not the leader of the team at
the material time as alleged by
the Plaintiff.
The defendants also denied
Plaintiff’s allegations of
negligence, and emphasized that
no one single worker was ever
given the responsibility of
counting roofing sheets and that
the Plaintiff ignored
instructions not to touch any
roofing sheet that got stuck in
the machine.
The Defendants however
claimed that they paid all the
medical bills of the Plaintiff
including his weekly wages for
sometime.
They contended that they
would have continued to pay the
Plaintiff if he had continued to
report to the office of the 3rd
Defendants. The Defendants
further contended that they had
initiated steps for the payment
of the entitlements of the
plaintiff under the Workmen’s
Compensation Act if he had
co-operated with the 3rd
Defendants. They therefore
prayed the High Court to dismiss
the Plaintiffs action.
DECISION OF THE HIGH COURT
We need to emphasise the
fact that having completed the
Pleadings, the case proceeded to
trial. In view of the conduct of
the Defendants during the
hearing of the suit at the trial
High court, we deem it expedient
to quote in extenso the
statement of the learned trial
Judge Bright Mensah J,
which actually epitomizes the
behaviour conduct and
attitudinal mind set of the
Defendants to date.
“I need to put it on (sic)
evidence that the defendants did
not offer any evidence in
rebuttal to the Plaintiff’s
evidence apart from the terse
cross-examination of the
Plaintiff by defence counsel,
Mr. Victor Walenkaki. Counsel at
a certain stage applied to the
court and was granted leave to
withdraw his representation.
In the result, the court ordered
service of several hearing
notices on the defendants.
The withdrawal of legal
representation was also brought
to the attention of the
defendants through EMS courier
services. However, they
elected to ignore them all and
did not participate in the
proceedings again even after
counsel’s withdrawal from the
case.
Ordinarily, where a court
has taken a decision without due
regard to a party who was absent
at a trial because he was
unaware of the hearing date that
decision is a nullity for lack
of jurisdiction on the part of
the court. See Barclays Bank
v Ghana Cable Co. [2002-03]
SCGLR 1 and Vasque v Quarshie
[1968] GLR 62. However,
where the party affected was
sufficiently aware of the
hearing date or was sufficiently
offered the opportunity to
appear but he refused or failed
to avail himself the court was
entitled to proceed and to
determine the case on the basis
of the evidence adduced at the
trial. See In re West Coast
Dyeing Ind. Ltd; Adams v Tandoh
[1987-88] 2 GLR 561.” Emphasis
We have verified the above
statements from the record of
appeal and are satisfied that
all the above conclusions are
factually correct. We have also
verified and analysed the legal
conclusions reached by the
learned trial Judge in respect
of issues arising where a court
has taken a decision in a matter
when a party although served has
failed to appear or attend to
the hearing notices.
Having verified all the
above and found them to be
factual and legal as well, it is
not surprising that Bright
Mensah J, the learned trial
Judge delivered judgment in
favour of the plaintiff in the
following terms:
“Conclusion:
Having considered the
evidence in its entirety, I hold
that the Plaintiff has succeeded
in establishing his case to the
satisfaction of the court.
Julius has suffered pain, acute
deformed body/hands, physical
incapacitation and loss of
amenities, etc. The permanent
disfigurement and incapacity
shall continue to haunt him and
deprive him of engaging in so
many field activities as a
school boy or young man. He
is equally permanently deprived
of doing so many things that
otherwise he would have done for
himself without relying on
someone else or with minimal
assistance. But I think the
Plaintiff’s present predicament
shall surely be a scar on the
conscience of the defendants.
I take into account, the
nature and degree of the
injuries sustained, the
persistence of the pain, the
length of time Julius has to be
on admission and the period for
which he underwent review. He
has to undergo further surgeries
but for lack of money.
Now, having regard to the
peculiar determination of this
case, the age of the boy, his
future having been seriously
jeopardized and impaired as a
result of this cruel but
preventable accident, I make the
following awards:-
General damages:
GH¢
i) pain and
suffering
- 1m
ii) loss of
amenities
- 0.4m
iii) disfigurement
and
disability
- 3m
Nominal/Special
damages:
i) transport and other
incidental expenses
-
10,000
including someone attending to
him in
Korle Bu
ii) cost of domestic
services since September
2012 to
date (upon his discharge from
hospital-
7,600
in
August 2012
iii) US$30,000 needed to
undertake myo
electrical
-
prosthesis
Judgment is therefore entered in
favour of the Plaintiff in the
total sum of GH¢4,417,600.00 and
$30,000 with costs assessed at
GH¢100,000.00. I recommend to
Julius’s uncle, Mr. Borlabi and
his lawyer that the damages
recovered shall be put in an
investment account or invested
in Treasury Bills for his
benefits.” Emphasis
On the 6th day
of November 2015, the Defendants
appealed the judgment of the
trial High Court to the court of
Appeal. They also filed an
application for stay of
execution against the judgment
of the trial High Court referred
to supra.
On the 26th day
of February 2016, the High
Court, again presided over by
Bright Mensah J, delivered a
ruling on the application for
stay of execution in the
following terms:-
RULING OF HIGH COURT ON STAY OF
EXECUTION
“BY COURT: RULING
This is an application for
stay of execution of judgment of
this court delivered on
30/10/2015 pending the final
determination of an appeal filed
by the Defendant/Applicant on
6/11/2015.
I need to emphasise that I
have carefully studied the
processes filed by the parties
either in support of and against
the grant of the application. I
have equally given active
consideration to the arguments
of Counsel contained in their
written submission filed with
the court as ordered by the
court.
Now, having regard to the
peculiar facts of the case, I am
persuaded to grant the
application but upon these
terms:-
i. The
Defendant/J/Debtors shall pay
into court for the benefit of
the Plaintiff/J/Cr, half (1/2)
of the judgment debt recovered
in addition to the costs
awarded.
ii. The
Defendant/J/Applicant shall
comply with the order (i) supra,
within one (1) month from today.
iii. Upon the
receipt of the money, the
Registrar shall ensure that the
uncle of the Plaintiff, Mr.
Borlabi shall invest part of the
amount in Treasury Bills in
favour of the Plaintiff whilst
applying the rest for his
maintenance, education and
medical bills.
To that extent the
application is granted but I
must add that order (iii) supra
does not concern the
Defendant/J/Debtor so much.”
DECISION OF SINGLE JUDGE OF
COURT OF APPEAL
Dissatisfied with the
above Ruling, the Defendants
repeated the application for
Stay of Execution before the
Court of Appeal. This repeat
application was put before
Honyenuga J.A, as a single Judge
of the Court of Appeal. We quote
verbatim, the entire decision of
Honyenuga J. A, as single Judge
of the Court of Appeal dated 12th
April 2016.
“BY COURT:
Having heard both counsel in
support and against the motion,
I think that this is a proper
case in which the application
ought to be granted on terms.
Consequently, the Applicant is
ordered to pay half of the total
judgment debt including half of
the costs to the
Plaintiff/Respondent until the
final determination of the
appeal. There would be no order
as to costs.” Emphasis
The Defendants again
dissatisfied with the above
decision of the single Judge of
the Court of Appeal, applied to
the Court, duly constituted by a
panel of three Justices, Coram:
Mariama Owusu (Ms) Presiding,
Agnes Dordzie (Mrs) and Kwofie,
JJA’s for a reversal of the
decision of the single Judge.
DECISION OF COURT APPEAL DULY
CONSTITUTED
The Court of Appeal, duly
constituted, on the 11th
day of May 2016, delivered a
unanimous decision as follows:-
“We have read the motion
paper and the supporting
affidavit and the affidavit in
opposition and we think the
Justice of the case demands that
we grant the application. We say
so because per paragraphs 5, 7,
10, 14, 15 and 16 of the
supporting affidavit, the
applicants have raised the issue
of jurisdiction (sic) goes to
the very root of the case i.e.,
they were not served the hearing
notice to attend court. We
think the applicant has raised
special circumstances to warrant
a variation of the order of the
single Judge. We have also
noticed that the respondents got
injured whilst working for the
Applicants which fact is not in
dispute. In circumstances,
we find it necessary to vary the
orders of the single Judge.
The applicants have accepted to
pay the medicals (sic) bills of
the Respondent whilst the appeal
is pending. They should do that
looking at the plight of the
Respondent. We think that
justice of the case demands that
the plight of the Respondent
should be minimized whilst the
appeal is pending. In the
circumstances, the applicants
should pay GH¢30,000.00 to
the respondent pending the final
hearing and determination of the
appeal. To this extent, the
order of the Single Justice is
varied and the execution of the
High Court is stayed subject to
the payment of the GH¢30,000.00.
There is no order as to cost.”
Emphasis
This is the Ruling in
respect of which the grounds of
appeal referred to supra in the
opening pages of this judgment
relate.
STATEMENTS OF CASE OF THE
PARTIES
We have critically perused
the statements of case filed for
and on behalf of the Plaintiff
and the Defendants respectively.
After apprising ourselves
of the Ruling of the Court of
Appeal, as duly constituted, the
grounds of appeal in respect of
the said Ruling and the
statements of case filed by
learned counsel for the
Plaintiff, Mr. Tony Lithur and
for the Defendants, Frank
Asamoah of Minkah Premo and Co.,
we are satisfied that the issues
for determination in this appeal
are the following:-
1. Whether the
Defendants herein per their
affidavit evidence before the
full bench of the Court of
Appeal raised any genuine and
arguable points of law in their
grounds of appeal referable to
the record of appeal to merit a
reversal or variation of the
orders of the Single Judge.
2. Whether or not
in ordering the Defendants to
pay the Plaintiffs medical bills
totaling GH¢30,000.00, the full
bench of the Court of Appeal
exercised their discretion
rightly having regard to the
evidence on record.
PRELIMINARY LEGAL POINT
Learned Counsel for the
Defendants, Frank Asamoah raised
a preliminary legal point
premised on Rule 15 (1) of the
Supreme Court Rules 1996, C.I.
16.
The crux of this objection
is that, by the provisions of
the said Rule, the Plaintiff as
an Appellant, is required to
file a statement of case
based on his grounds of appeal,
within three weeks of being
notified that the record of
appeal is ready.
We have observed that, the
Plaintiff has filed what he has
titled “written submissions”
instead of “statement of
case”.
Whilst conceding that
learned counsel for the
Defendants is right in his
observation, his claim that non
compliance with this procedural
rule should result in the appeal
being struck out is without any
basis.
This is because even
though strict compliance with
the rules of procedure is
desirable, the duty of the court
is to ensure that substantial
justice is done to all parties.
In this respect, strict and
mechanical application of the
rules of procedure will amount
to complying to form and not
substance. In the premises where
the Plaintiff has filed a
process which albeit has been
wrongly titled, the contents
therein have satisfied the
statutory requirements of Rule
15 (1) of C. I. 16. Since the
value of what has been filed is
still the same as what is
required of the plaintiff, we
will dismiss this preliminary
objection and proceed to deal
with the appeal on its merits.
See case of Okofoh Estates
Ltd. v Modern Signs Limited
[1996-97] SCGLR 224, holding
1, at page 230.
ISSUE 1
WHETHER THE DEFENDANTS HEREIN
PER THEIR AFFIDAVIT EVIDENCE
BEFORE THE FULL BENCH OF THE
COURT OF APPEAL RAISED ANY
GENUINE AND ARGUABLE POINTS OF
LAW IN THEIR GROUNDS OF APPEAL
REFERABLE TO THE RECORD OF
APPEAL TO MERIT A REVERSAL OR
VARIATION OF THE ORDERS OF THE
SINGLE JUDGE
The resolution of the
above issue will definitely
encompass the determination of
grounds (a) and (b) of the
grounds of appeal referred to
supra.
In order to put the
matters in contention in this
interlocutory appeal beyond per
adventure, it is deemed
necessary to set out the
following paragraphs of the
Defendants affidavit in support
of their application for a
reversal of the decision of the
single Judge of the Court of
Appeal as follows:-
5. “That we deny
that we were negligent and or
caused the injuries to Plaintiff
and if we were offered the
opportunity we would have
established this fact.
Unfortunately we were denied our
right to a hearing when we had
no notice of the trial”.
7. That the said
judgment was obtained after
evidence had been led by
Plaintiff in the absence of
appellants who were not present
at the trial because they did
not have notice of the trial.
Emphasis
It is also worthy of note
that, the notice of appeal which
the defendants referred to in
paragraph 6 of their affidavit
in support reference exhibit
B5P5 as the anchor of their case
also been primarily premised on
their being denied the
opportunity to be heard.
In proof of this, they
couched their first three
grounds of appeal thus:-
1. “The learned
Judge erred when he proceeded to
give judgment in spite of the
fact that, 1st , 2nd
and 3rd Defendants
did not have notice of the
hearing dates since they were
not served with hearing notices.
2. The learned
Judge erred when he held that 1st,
2nd and 3rd
defendants had been served
but refused to attend the trial
in that Defendants were not
served and or had notice of the
hearing date.
3. The learned Judge
erred when he proceeded to give
judgment against 1st,
2nd and 3rd
Defendant without giving them
any opportunity.
It is to be noted that,
when applications for stay of
execution are being considered
with reference to stated grounds
of appeal, the court must of
necessity do some due diligence
by reference to the record of
appeal to verify the
authenticity of the said
grounds. It must be noted
however that, we are by no means
suggesting that such a court
must turn such an application
into an appellate court. We are
however of the strong view that,
one way of preventing parties
from making frivolous,
mischievous, unmeritorious,
deceitful and baseless
applications to the courts is
for all courts to take some time
to verify facts on the record of
appeal.
For example, we are of the
respectful opinion that the
statement by the learned trial
Judge in the judgment in the
following terms was not made
without any basis.
This is how he described
the Defendants therein:-
“In the instant case,
the defendants were sufficiently
aware of the hearing dates
because they were variously
served with hearing notices by
EMS Courier service. It
shall therefore not lie in their
mouth to complain of being
unaware of whatever proceedings
that did take place in their
absence.” Emphasis
Further to the above, the
Plaintiff swore to a detailed
affidavit in opposition to the
application for a reversal of
the decision of the single judge
in which he catalogued the
chronology of events during the
entire proceedings. Reference
pages 248 through to 256 of the
record.
We have verified all the
above statements and found them
to be true and in accord with
the decisions of the trial
Judge.
The Plaintiff deposed in
paragraph 16 of his affidavit in
opposition as follows:-
“Anyhow, I state that the
fact that Applicants became
aware that judgment in this suit
was delivered on 28th
October 2015 and filed a notice
of appeal and an application for
stay of execution at the trial
High Court when, in fact, till
date no Entry of Judgment has
been filed by me or served on
them is evidence of the fact
that they had notice of every
single proceedings in court but
deliberately failed to attend
upon the court. My Counsel
wrote to Ghana Post Company
Limited to enquire about the
trial Court’s hearing notices
which were ordered to be served
on Applicants. The response from
Ghana Post is attached hereto
and marked as “Exhibit J15”.
Emphasis
We have also perused this
exhibit “J15” from Ghana Post
and found that it is a letter
authored by Bernard Yaw
Atta-Sonno, General Manager of
EMS/Parcels and Speedlink of
Ghana Post and is to the
following effect:-
“Following the request for
information on proof of delivery
of court processes at B5 Plus
Company Limited, Kpong-Tema, we
wish to confirm the following:-
1. The Court
Process (Hearing Notices) were
delivered at the designated
address provided, that is B5
Plus Company Limited Kpone
Barrier, Tema.
2. The Court
processes were delivered and
signed by Alex Amoako, at the
office of B5 Plus Company
Limited Kpone Barrier, Tema.
3. The mode of
deliveries was through EMS
dispatch rider.
4. Attached is the
proof of delivery of the said
processes.”
We have indeed checked all
these deliveries and are
satisfied that the Defendants
have really been served and were
aware of all court proceedings
but for reasons best known to
them chose at the material time
to be absent.
It is the above processes
and procedures that the full
bench of the Court of Appeal
should have taken into
consideration.
It is important to deal
briefly with the submissions of
learned counsel for the
Defendants on the service of
court processes and the
reference to Order 7 r. 2 (1)
and 5 (1) of the High Court
(Civil Procedure) Rules 2004
C.I. 47 which deals with
personal service and service on
corporate entities.
It is quite clear that the
general position of the rules of
procedure referred to supra is
that a court has no jurisdiction
to proceed against a party who
has not been served, and this
principle has been thoroughly
dealt with in the locus
classicus case of Barclays
Bank of Ghana Ltd. v Ghana
Cables Co. Ltd [1998-99] SCGLR 1.
A writ has to be personally
served on all defendants, unless
otherwise provided by the Rules.
Similarly, the mode of
service of a writ or court
process on a body corporate such
as the 3rd Defendants
may be effected on the Chairman,
the head of the corporate
entity, Managing Director,
Secretary, Treasurer or such
other Senior Officer. Reference
order 7 r. 5 of C. I. 47.
In this case, the
Defendants were duly served,
engaged Solicitors who acted and
prosecuted the suit on their
behalf. Later, the Counsel for
the Defendants withdrew and
notified the Defendants
accordingly.
We have also noted the
reference and reliance by
learned counsel for the
Defendant on Section 263 of the
Companies Act, 1963 Act 179
which makes express provisions
on how service is to be effected
on a limited liability company.
From the record of
proceedings in this case, the
modus operandi of the Defendants
and their Lawyers have been to
treat with scorn and contempt
processes served on them.
A typical example is the
proceedings of 17th
February 2015 which is on page
276 which speaks for itself.
Again there is ample proof
that, the 1st, 2nd
and 3rd Defendants
have been either served through
their Lawyers when they acted
through them, or personally by
the E.M.S Service as ordered by
the court. Reference pages 277
to 301.
It is also instructive to
observe that hearing notices
have all been served on the
Defendants personally as
required under Order 7 r. 2 (1)
and 5 (1) of C. I. 47.
We have also verified the
dates of all the hearing notices
and other court processes and
confirmed that those were the
relevant and material dates that
hearing of the cases was
conducted (reference pages 209 –
224, just to mention some of the
notices).
Under these
circumstances, we are of the
view that cases like Lagudah
v Ghana Commercial Bank
[2005-2006] SCGLR 388 and
Barclays Bank of Ghana Ltd. v
Ghana Cable Co. Ltd, already
referred to supra does not
apply.
We are therefore of the
view that, if a party
voluntarily and deliberately
fails and or refuses to attend
upon a court of competent
jurisdiction, (such as the High
Court which determined this
case) to prosecute a claim
against him, he cannot complain
that he was not given a fair
hearing or that there was a
breach of natural justice.
The Defendants must be
respected for making such a
choice, but they must not be
allowed to get away with it.
From the decision of the
full bench of the Court of
Appeal, it is thus clear that if
the record had been thoroughly
perused, they would have
realized that no issue of
jurisdiction arises and none can
thus be raised. Similarly, there
being ample proof that the
Defendant treated the court
processes with disdain and
scorn, leading even to the
withdrawal of their previous
Solicitors, Mawuvenu Esq.
respectively, with notices to
them, but they did not bother to
prosecute and or defend the
action.
On the basis of the above
analysis, grounds (a) and (b) of
the appeal succeeds. In that
respect, we conclude this aspect
of the matter (on a caveat of
without prejudice) by stating
that, there being no verifiable
grounds of appeal to be argued
on appeal by the Defendants in
respect of their spurious claims
of breach of the rules of
natural justice, there was thus
no basis for the reversal of the
decision of the single Judge.
ISSUE 2
WHETHER OR NOT IN ORDERING THE
DEFENDANTS TO PAY THE PLAINTIFF
MEDICAL BILLS TOTALING
GH¢30,000.00, THE FULL BENCH OF
THE COURT OF APPEAL EXERCISED
THEIR DISCRETION RIGHTLY HAVING
REGARD TO THE EVIDENCE ON RECORD
This will be based upon
grounds (c) and (d) supra of the
notice of appeal.
We have once again perused
the statements of case of
learned counsel for the parties
in respect of the determination
of the above issue. The
determination of this issue
actually admits of no
controversy whatsoever. This is
because, the full bench itself
stated as follows:-
“We have also noticed
that the respondent got injured
whilst working for the
Applicants which fact is not in
dispute.”
The Court also recognised
the need for the medicals of the
Plaintiff herein to be paid as
well as to minimize his plight.
We have itemized the injuries
sustained by the Plaintiff and
the learned trial Judge made
copious references to the
evidence of PW1, Prof. Laing, a
renowned Plastic Surgeon who
treated Plaintiff, whilst he was
on admission at Korle Bu.
The evidence of the
Plaintiff as well as PW1 on the
injuries and disability and
permanent incapacity of the
Plaintiff are really chilling
and pathetic.
For example, there is this
piece of statement in the
Judgment of the trial Court to
the following effect:-
“There is also that
unchallenged evidence that as a
result of the accident the
Plaintiff lost all his 10
fingers. He cannot comb his
hair, cannot brush his teeth,
cannot bath well, cannot wash
his things, cannot do most
things as ordinarily any normal
person could do. He cannot write
properly neither can he also
iron his clothes.”
Accordingly, he said
further, his uncle has to employ
somebody at a fee of GH¢200.00
per month for that person to
assist him or do them for him.
His pathetic story not denied or
challenged by the defendants is
that his mother died, when he
was yet a toddler. His father
also died through shock the next
day upon hearing of the gruesome
injury he added.”
The above are similar to
what is described in ordinary
Ghanaian parlance as “two
troubles one God.”
Can it be said that ,
based upon the above facts, and
what the full bench itself
recognised as the need to
minimise the plight of the
Plaintiff pending the appeal,
the award for the payment of
GH¢30,000.00 to the Plaintiff
was the best exercise of
discretion in the matter?
Warning ourselves of the
principles upon which the
exercise of a discretion by a
lower court can be interfered
with such as was stated in the
case of Ballmoos v Mensah
[1984-86] 1 GLR 724-733 at 735,
where it was held that
“The Court of Appeal would not
interfere with the exercise of
the trial court’s discretion
save in exceptional
circumstances.”
Emphasis
See also cases of
Republic v Court of Appeal,
ex-parte Sidi [1987-88| 2 GLR
170 at 181, SC, per Francois
JSC. We have also apprised
ourselves of cases like the
following relied upon by learned
counsel for the Defendants:-
1. Adu (per Attorney) v
G.R.A [2013-2014] 2 SCGLR
holdings 1, 2 and 3
2. Blunt v Blunt [1943]
A.C 517 at p. 513
3. Dzobo v Agbeblewu &
Others [1991[ 1 GLR 294
4. Djokoto & Amissah v
BBC Industries Co. Ghana Ltd. &
Anr. [2011] 2 SCGLR 825 at 826
5. KMK & Anor v A.D.B
[2013-14] 2 SCG;R 1614 and
finally
6. Re Bob Kwame and Co.
Ltd, Gyingyi v Bernard & Anr.
[1989-90] I GLR 37
Based upon a review of all
the above cases, we are of the
considered opinion that, the
full bench of the Court of
Appeal did not exercise its
discretion in the matter
judicially. For example, based
on the admitted facts of this
case, it is clear that the
amount of GH¢30,000.00 as
medical bills is not based on
the record, but also seriously
insignificant that it is
tantamount to a drop in the
ocean. This in our opinion
amounts to exceptional
circumstances warranting an
interference with the exercise
of discretion by the said court.
Grounds (c) and (d) of the
notice of appeal therefore
succeed.
In the circumstances, it
is our view that the Court of
Appeal did not exercise their
discretion properly.
However, in setting aside
that decision and allowing this
appeal, we will be guided and
also bear in mind the principles
of law enumerated in the
respected authorities already
referred to supra and the
following:-
1. Joseph v
Jebeille [1963] 1 GLR 387
2.
Ballmoos v Mensah, already
referred to supra, and
3. Dzotepe v
Hahormene III [1984-86] 1 GLR
289 CA
In this respect, taking
all the surrounding
circumstances into
consideration, we allow the
appeal, set aside the decision
of the Court of Appeal duly
constituted, and dated
11/05/2016 and instead restore
the decision of the single Judge
of the Court of Appeal, dated
12/04/2016 in it’s entirety
The remainder of the
judgment debt is stayed for
three months from the date of
this judgment unless within that
period, the Defendants fulfill
all the conditions of appeal and
ensure that, the appeal record
is transmitted to the Court of
Appeal, failing which the order
for stay lapses.
See Dzotepe v Hahormene,
and Adu v G.R.A, supra.
The appeal therefore
succeeds.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
SEFAKOR ADZO AKPABLA FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
FRANK ASAMOAH WITH HIM MAAME
BAIMIE ADU-AMOAH FOR THE
DEFENDANTS/ APPELLANTS/
RESPONDENTS.
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