|
Labour – Employment -
Casual and temporary workers -
Termination of employment - End
of service benefits - Res
Judicata – Jurisdiction –
Limitation of time - Whether or
not the the decision of second
High Court judge did operate as
res judicata since he
essentially declined
jurisdiction - Whether or not a
dismissal by a court or a
competent tribunal on grounds of
want of jurisdiction is not
binding on the grounds of res
judicata
HEADNOTES
The plaintiffs, numbering about 259
worked variously as casual and
temporary employees of the
defendant, a mining company. It
is their case that even though
they worked full time, they were
paid as casual and temporary
workers. Upon the termination of
their respective employments,
they were neither paid their end
of service benefits nor were
they taken through any medical
examination as stipulated in
their conditions of service.
They made several attempts at
seeking redress through several
fora but none of their efforts
yielded fruits When all their
interventions proved futile,
they applied ex-parte to the
High Court for an order
extending the time within which
they could commence an action
since on their own reckoning,
they were clearly out of the
Six-year period stipulated under
the Limitation Act, 1972 [NRCD
54]. The High Court
granted their prayer The
defendant subsequently filed a
fresh application to set aside
the order granting the
plaintiffs leave to issue the
writ but were rejected by the
judge who declined jurisdiction
on grounds that being a court of
co-ordinate jurisdiction The
defendant repeated the
application to set aside the
order granting the extension of
time and the order dismissing
the suit before the first jugde
who reversed his earlier
reversed his earlier order
extending the time and dismissed
the suit on grounds of nullity.
Aggrieved by the decision of the
High Court, the plaintiffs
lodged an appeal at the Court of
Appeal. The Court of Appeal held
that the High Court erred in
assuming jurisdiction The
defendant demonstrated its
dissatisfaction with the
decision of the Court of Appeal
by filing the Notice of appeal
HELD
We would conclude with the apposite
dictum of Lawton LJ in Riches v
DPP [1973] 1 WLR 1019, a case
decided under the English Rules
of the Supreme Court which has
identical provisions with our
Order 11 rule 18 of C147. It was
held that a statute barred claim
could be struck out as
frivolous, vexatious and an
abuse of the courts process even
before a statement of defence is
filed For the foregoing reasons
we would allow the appeal under
that ground as well. In
conclusion therefore, the appeal
succeeds in its entirety and is
accordingly allowed
STATUTES REFERRED TO IN JUDGMENT
Limitation Act.
High Court Civil
Procedure Rules, 2004 [C. I.
47],
CASES REFERRED TO IN JUDGMENT
Speedline Stevedoring
Co Ltd; Rep v High Court, Accra;
Ex-parte Brenya (2001-2002)
SCGLR 775
Rep. v
Adama-Thompson; Ex-parte
Ahinakwa (2013-2014) SC GLR
1395,
Mosi v Bagyina [1963]
I GLR 337
Harlley v Ejura Farms
[1977] 2 GLR 179.
In re Sekyedumase
Stool; Nyame v Kesse alias Konto
[1998-99] SCGLR 476,
Riches v DPP [1973] 1
WLR 1019,
BOOKS REFERRED TO IN JUDGMENT
Black’s Law
Dictionary 8ed
Spencer Bower
ResJudicata Second Edition
DELIVERING THE LEADING JUDGMENT
AKOTO-BAMFO (MRS.),
JSC:-
COUNSEL
KIZITO BEYUO FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
KWAME ASARE BEDIAKO
FOR THE
PLAINTIFFS/APPELLANTS/RESPONDENTS.
AKOTO-BAMFO (MRS.), JSC:-
By a unanimous decision, the
Court of Appeal allowed in part
an appeal filed by the
plaintiffs/appellants/respondents
against the decision of the High
Court entered in favour of the
defendants/respondents/appellants.
The latter registered their
protest against the said
decision by filing a Notice of
Appeal consisting of these
grounds namely:
Grounds of Appeal
1)
The learned judges of the Court
of Appeal erred in law when they
reversed the decision of the
High Court (Coram R.C. Azumah J)
made on 21 March 2012 setting
aside his own earlier order on
28 March 2011 granting the
plaintiffs/appellants/respondents
(hereinafter the "plaintiffs")
leave to issue the writ herein
outside the period of
limitation.
2)
The learned judges of the Court
of Appeal erred in law when they
held that the issue raised by
the defendant's second motion to
set aside the order of Azumah J
made on 28 March 2011 granting
the plaintiffs leave to issue
the writ herein outside the
period of limitation had already
been determined by His Lordship
Mahamadu J in the latter's
ruling declining jurisdiction
over the defendant's earlier
motion to set aside the order
made by Azumah J on 28 March
2011 granting the plaintiffs
leave to issue the writ herein
outside the period of
limitation.
3)
Other grounds of appeal to be
filed upon receipt of a copy of
the record of appeal.
Additional Ground of Appeal was
subsequently filed. It was
formulated thus;
The learned Judges of the Court
of Appeal erred when they held
that there was no sufficient
evidence on which the trial
Judge could rely upon to
conclude that the plaintiffs’
action was statute-barred.
For the ease of reference, the
parties, shall hereafter be
referred to simply as plaintiffs
and defendants.
A brief background of the events
leading to these proceedings
would be necessary for a better
appreciation of the issues
raised herein.
The plaintiffs, numbering about
259 worked variously as casual
and temporary employees of the
defendant, a mining company. It
is their case that even though
they worked full time, they were
paid as casual and temporary
workers. Upon the termination of
their respective employments,
they were neither paid their end
of service benefits nor were
they taken through any medical
examination as stipulated in
their conditions of service.
They made several attempts at
seeking redress through several
fora but none of their efforts
yielded fruits.
When all their interventions
proved futile, they applied
ex-parte to the High Court for
an order extending the time
within which they could commence
an action since on their own
reckoning, they were clearly out
of the Six-year period
stipulated under the Limitation
Act, 1972 [NRCD 54]. The motion
for the extension of the period
within which to issue the writ
was assigned Suit
No.12/150/2011. Azumah J granted
their prayer and ordered them to
issue the writ within one
calendar month of the date of
his order. In pursuance of the
said order, the plaintiffs, on
the 29th of March 2011, issued
the writ of summons with Suit
No. C3/4/2011 in which they
claimed inter alia,
damages for wrongful termination
of employment and payment of end
of service benefits.
Upon service of the writ of
summons and the accompanying
statement of claim on the
defendant, it filed a Notice of
Conditional appearance and
subsequently filed a motion to
dismiss the writ on the ground
that it was statute barred. In
the affidavit in opposition
filed in response to the motion,
the plaintiffs disclosed that
they had obtained prior leave of
the court to issue the writ out
of time, whereupon the defendant
withdrew the application. The
defendant subsequently filed a
fresh application to set aside
the order granting the
plaintiffs leave to issue the
writ and for a further order
dismissing the plaintiffs' suit
numbered C/3/4/2011. The said
application was listed before
Mahamadu J sitting at the Land,
Labour, Human Rights, Economic
(Financial) Crimes Division of
the High Court held in Kumasi.
Mahamadu J declined jurisdiction
on grounds that being a court of
co-ordinate jurisdiction, he
lacked the power to set aside or
review the orders made by Azumah
J. According to him the
defendant could either appeal
against the order or pray for a
review before the very judge who
made the order.
The defendant repeated the
application to set aside the
order granting the extension of
time and the order dismissing
the suit before Azumah J. The
plaintiffs resisted the
application contending that the
decision of Mahamadu, J operated
as res judicata and therefore
the defendant was estopped from
re-litigating the issues settled
by Mahamadu J, who presides over
a court of co-ordinate
jurisdiction. In his ruling,
Azumah J reversed his earlier
order extending the time and
dismissed the suit on grounds of
nullity.
Aggrieved by the decision of
Azumah, J, the plaintiffs lodged
an appeal at the Court of
Appeal. Their prayer to the
Court of Appeal to take a second
look at the proceedings was
partly answered. In its
consideration of the issues
raised before it, the Court of
Appeal took the view that the
application was two-pronged;
i.e.
(i)
to set aside the order extending
the time to commence the action
and
(ii)
(ii)
for an order of dismissal on
grounds that the action was
statute barred.
The Court of Appeal held that
Azumah J erred in assuming
jurisdiction since Mahamadu J
had decided that the defendant’s
remedy laid in an appeal or
review and thus was res judicata
between the parties. It further
held that since the order
granting the extension was made
in Suit No. C3/4/2011, Azumah J
“was palpably wrong to treat the
two cases as merged and apply in
suit no C3/4/2011 to strike out
the order granted under Court
Case No. 12/150/2011".
Additionally, the Court of
Appeal took the view that Azumah
J erred in dismissing the suit
on grounds that it was statute
barred in the absence of any
pleadings to that effect by the
defendant. It therefore
proceeded to reverse the
decision of Azumah J dismissing
the action and ordered the
defendant to file a statement of
defence to the action. The
defendant demonstrated its
dissatisfaction with the
decision of the Court of Appeal
by filing the Notice of appeal
on the grounds set out supra.
Grounds 1 & 2 were argued
together. In sum it was
contended on behalf of the
defendant that the decision of
Mahamadu J did not operate as
res judicata since he
essentially declined
jurisdiction on the basis that
being a Court of co-ordinate
jurisdiction, he lacked the
power to set aside the orders
made by Azumah J and could
neither review the decisions
made by him nor sit on appeal
thereon. The plaintiffs, on the
other hand, contended that the
decision by Mahamadu J was res
Judicata since the application
was fully heard and determined
by him. Additionally, the issues
raised in the first application
were similar to those raised in
the second application
considering the affidavits filed
in support of both applications.
Furthermore, it was submitted
that the defendant could not
have properly invoked the
court's review jurisdiction
since the fourteen-day period
within which the defendant was
required to apply for same had
long elapsed, the ruling of
Azumah J having been delivered
on the 28th of March 2011.
The question is; did the
decision of Mahamadu J operate
as res judicata so as to estop
the defendants from raising the
same issue subsequently before
Azumah J?
In the Eighth Edition of Black’s
Law Dictionary, Res Judicata has
been defined as a doctrine
barring the same parties from
litigating a second suit on the
same transaction or any other
claim arising from the same
transaction or series of
transactions or that could have
been raised but was not raised
in the first suit. For the
proper invocation of the
doctrine, these elements must
exist:
1)
There must be an earlier
decision on the issue;
2)
A final judgment on the
merits; and
3)
The involvement of the
same parties or parties in
privity with the original
parties.
In Speedline Stevedoring Co Ltd;
Rep v High Court,
Accra; Ex-parte Brenya
(2001-2002) SCGLR 775 and
Rep.
v Adama-Thompson; Ex-parte
Ahinakwa (2013-2014) SC GLR
1395, this Court reiterated that
for a judgment to operate as
res judicata, it must be
valid and subsisting. It must
be a final judgment delivered by
a court of competent
jurisdiction on the merits; i.e.
the issue must have been raised
and pronounced upon. Therefore,
a dismissal of a suit or an
action by a competent court or
tribunal on grounds of lack of
jurisdiction does not and cannot
operate as res judicata.
At pages 52-53 of the Second
Edition of their book
“ResJudicata”, Spencer Bower and
Turner, the learned text
writers stated; “where an
action has been dismissed on the
sole ground that the particular
court had no jurisdiction, there
is no decision of the question
in controversy, such as to estop
the plaintiff from suing again
in any court which has
jurisdiction to entertain the
suit; but such a dismissal,
while it will allow the
disappointed party to prosecute
his claim in a court having
jurisdiction, will preclude him
from reviving his claim before
the tribunal which has formerly
refused jurisdiction."
In Pinnock Bros v
Lewis or Peat Ltd (1923) IKB
690, it was held that the award
of an arbitrator dismissing a
claim on grounds that he had no
jurisdiction did not operate as
estoppel in a fresh action.
Again, in Hines v
Birkberk College 1992 Ch. 33
also reported in (1991) 4 AIL ER
450, the plaintiff, a professor,
sued for wrongful dismissal. The
Court dismissed his action on
grounds that it lacked
jurisdiction to entertain the
claim against the respondent.
When jurisdiction was
subsequently conferred on the
court and the plaintiff issued a
new writ for the same cause of
action, it was held that the
plaintiff was not estopped from
commencing the new action.
In the instant case before us,
when the application went before
Mahamadu J, he essentially
declined jurisdiction on grounds
that being a court of
co-ordinate jurisdiction, he was
not vested with authority to
determine the application. The
application, as a result, was
not determined on the merits. It
is therefore obvious that the
decision cannot operate as res
judicata, the principle being
that a dismissal by a court or a
competent tribunal on grounds of
want of jurisdiction is not
binding on the grounds of res
judicata. Having regard to the
fact that Mahamadu J only
dismissed the application for
want of jurisdiction; the
decision did not operate to
estop the defendant from filing
the application before Azumah J
who rightly, in our view assumed
jurisdiction.
We are of the view that the
decision of Mahamadu J in
declining jurisdiction on
account that he did not give or
deliver the decision complained
of, was in error since it was
evident from the processes filed
that it was not the court's
review jurisdiction which was
invoked. The defendant’s case
simply was that Azumah J made a
void order in that he had no
power to grant an extension of
time within which to issue a
writ in circumstances where the
plaintiffs were clearly out of
time and could not bring
themselves under any of the
exceptions set out in the
Limitation Act. In other words,
Azumah J's order was a nullity.
Where a court acts without
jurisdiction, that exercise is
clearly a nullity. An order made
without jurisdiction is a void
order and it does not
necessarily require the same
judge to set it aside. A judge
of co-ordinate jurisdiction in
the exercise of his inherent
power can equally set it aside
if same is brought to his
attention. In the celebrated
case of Mosi v Bagyina
[1963] I GLR 337, it was firmly
established that where an order
was made without jurisdiction,
the same court, not necessarily
the same judge who made the void
order, has an inherent right to
vacate the said void order. At
page 342 of the report cited
supra, Akuffo-Addo JSC (as he
then was), stated as follows: -
“The law, as I have always
understood it, is that where a
court or a judge gives a
judgment or makes an order which
it has no jurisdiction to give
or make or which is irregular
because it is not warranted by
any enactment or rule of
procedure, such a judgment or an
order is void, and the court has
an inherent jurisdiction, either
suo motu or on the application
of the party affected, to set
aside the judgment or the order.
The law does not limit the
exercise of this inherent
jurisdiction, as it does in the
case of a review, to the judge
who actually gave the judgment
or made the order. The
jurisdiction is vested in the
court qua court, and may be
exercised, but not necessarily,
by the judge who gave the
judgment or made the order."
Mahamadu J, ought to have set
aside the void order of Azumah,
J under the court's inherent
jurisdiction. We are therefore
of the view that the orders made
by Azumah J on the 28th of March
2011 were valid since the
dismissal by Mahamadu J was on
grounds of want of jurisdiction.
The decision was not binding on
Azumah J so as to operate as res
judicata. For these reasons we
hold that Azumah J did rightly
set aside the void orders made
by him.
The Court of Appeal additionally
reversed the ruling of Azumah J
on grounds that the application
was made in Suit No. 12/150/2011
and not in Suit No. 3/4/2011. We
have come to the realization
that assigning different numbers
to actions arising out of the
same transactions definitely
contributed to the difficulties
encountered by the Court of
Appeal in evaluating the
evidence before it. The motion
ex-parte for an order extending
the time for the issuance of the
writ was filed as Suit No.
12/150/2011. The purpose for
which the ex parte application
was made was to enable the
plaintiff issue the writ of
summons for damages for breach
of contract of employment well
after the statutory period of
limitation as provided for under
the Limitation Act. When
therefore the writ was
subsequently issued, it ought to
have either been given the same
suit number or, where a
different suit number was
assigned, there should have been
a merger with the other process;
same having risen out of the
same transaction. It was however
assigned a different Suit No.
C3/4/2011 and treated
differently and separately from
the process which gave "birth"
to it as it were. Applications
filed in the same suit should be
assigned the same suit numbers
or be merged therewith so as to
ensure proper case management.
Additionally, having regard to
the fact that the writ could
only be issued after the
Limitation period by virtue of
the order of the Court, the
title of the writ ought to have
been reflective of the order.
Indeed, the plaintiffs were
enjoined by the High Court Civil
Procedure Rules to demonstrate
that they had filed or commenced
the action pursuant to leave
granted by the court. The
heading should therefore have
indicated this fact. If the
procedure rules had been
complied with, the time lost
between the filing of the
conditional appearance, the
motion to dismiss and the
subsequent withdrawal of the
processes could have been saved,
thus avoiding delays in the
justice delivery system. The
distinction made on the basis of
the two suit numbers was
artificial and did not exist in
reality. Azumah J, in our view
rightly assumed jurisdiction to
have set aside the void orders
made by him. The appeal
therefore succeeds on this
ground also.
In reversing Azumah J's
decision, the Court of Appeal
held that Azumah J was wrong in
dismissing the plaintiffs' suit
on grounds that it was statute
barred without the defence of
limitation being first raised by
the defendant in a statement of
defence. In its submissions on
the issue, the defendant argued
that the Court of Appeal erred
in so holding since under Order
11, rule 18 of the High Court
Civil Procedure Rules, 2004 [C.
I. 47], the High Court is vested
with power, both under the Rules
of Court and its inherent
jurisdiction, to dismiss
summarily actions which are
scandalous and vexations or
otherwise an abuse of the
Courts’ processes. It was
further contended that in so far
as the plaintiffs voluntarily
and under oath confessed that
their action was caught by the
Limitation Act, as per the
averments filed in support of
the motion and the pleadings, it
would be a waste of the Court's
time to go through a full trial.
The defendant drew a distinction
between an allegation of
limitation being made by a
defendant upon service of a
statement of claim and a
confession by the plaintiffs
that their action was statute
barred and urged that in the
latter case, the defendants are
permitted under the court's
inherent jurisdiction, to apply
for a dismissal without the
filing of a statement of
defence.
The plaintiffs submitted in
answer that even though they
applied for extension of time,
nowhere in the processes filed
by them was there a confession
that their action was statute
barred and that an application
for extension of time was not
conclusive of the fact that the
action was caught by the statute
of limitation.
Order 11 Rule 18 of
[C. I. 47] provides:
1)
The court may at any stage of the
proceedings, order any pleading
or anything in any pleading to
be struck out on grounds that
(and for the purposes of this
case)
a)
it is scandalous, frivolous or
vexatious; and
b)
it is otherwise an abuse of the
process of the court."
Under Order 11rule 18 therefore,
the court may order an action to
be dismissed on grounds that the
action is frivolous, vexatious
or an abuse of the processes of
the court.
Even though the application
could be made at any stage of
the proceedings, where the
statement of claim is the
subject of the attack, it must
be made promptly and without the
filing of a statement of
defence. The application may be
made under the above cited rule
or the inherent jurisdiction of
the court or both. Harlley
v Ejura Farms [1977] 2
GLR 179. Either procedure
enables the court to pronounce
finally, albeit summarily upon
the claim. Affidavit evidence is
admissible in an application
brought under the inherent
Jurisdiction of the court
whereas an application under
Order 11 r 18(1)(a) of CI 47
must be solely on the pleading
under attack.
In the matter under
consideration, the plaintiffs,
in their application for leave
filed on the 24th of May 2011,
deposed to the fact that they
worked for the defendant company
between the years 1994 to 2001.
Their cause of action therefore
was lost after six years of the
date set out. Their feeble
attempt at denying that they
confessed that their action was
statute barred consequently
cannot be taken seriously. There
was sufficient evidence per
paragraphs 2, 3 and 7 of the
affidavits accompanying the
application to support their
admission that the action was
statute barred. Furthermore, it
is clear from the statement of
claim that they were employed
between the years 1994 & 2001,
whereas the suit was commenced
in 2011 (almost a decade after
the termination). More
importantly, it was obvious from
the reasons assigned for the
delay that they could not bring
themselves under any of the
exceptions under the Act.
It is significant that the
plaintiffs applied for an order
extending the time within which
to issue the writ. They took
that route because they knew
they were clearly out of time.
If they were within the
statutory period of six years,
they would undoubtedly not have
applied for the leave. If the
plaintiffs unequivocally and on
oath admitted that they were out
of time, is there any need for
any further evidence on the
issue? Where a party makes an
admission of a certain state of
facts, the defendant is relieved
from his/her duty to provide
evidence on the admitted facts.
In the face of the admission
made by the plaintiff, it would
be a waste of the Courts’ time
to insist that the defendant
files a statement of defence to
plead the same fact. Under its
inherent jurisdiction, the court
has a duty to terminate claims
which are not sustainable. In
the case of In re Sekyedumase
Stool; Nyame v Kesse
alias Konto [1998-99] SCGLR
476, the Supreme Court held, per
Wiredu JSC (as he then was) that
an application might be made
under the rules to strike out a
statement of claim on grounds of
estoppel. The learned justice
opined: “The principle of
res judicata is now a
well-established and acceptable
principle in judicial
proceedings. Its objective is to
prevent an abuse of the court's
process by estopping a party to
a litigation against whom a
court of competent jurisdiction
has already determined the issue
now being raised, by reopening
the same subject-matter for
further litigation.....Since its
objective is to prevent an abuse
of the court process, there is
no need to go into the exercise
of hearing the whole evidence on
the matter again, otherwise its
purpose would be defeated. It
can legitimately be determined
on affidavit evidence in
appropriate circumstances”.
In the light of the admissions,
the Court of Appeal's
determination that the
confession be ignored and the
matter set down for hearing
after the filing of a statement
of defence cannot be the correct
procedure. One of the objectives
of the enactment of the Rules of
court is to ensure the delivery
of justice with minimum dispatch
as set out under Order 1 rule
1(2) of C.I. 47 which provides:
"These Rules shall be
interpreted and applied so as to
achieve speedy and effective
Justice, avoid delays and
unnecessary expense and ensure
that as far possible, all
matters in dispute between
parties may be completely,
effectively and finally
determined and multiplicity of
proceedings concerning any of
such matters avoided."
In the matter under
consideration, the affidavit
filed in support of the motion
for extension of time was
emphatic per the averments in
the supporting affidavit that
their action was statute barred.
The Court rightly, we firmly
hold, relied on the admissions.
There was therefore no need for
the defendant to plead the
Limitation Act for it to be set
down for trial.
We would conclude with the
apposite dictum of Lawton LJ in
Riches v DPP [1973] 1 WLR 1019,
a case decided under the English
Rules of the Supreme Court which
has identical provisions with
our Order 11 rule 18 of C147. It
was held that a statute barred
claim could be struck out as
frivolous, vexatious and an
abuse of the courts process even
before a statement of defence is
filed. He delivered himself
thus: "One of the
uncontested sets of facts which
arises from time to time is when
on the statement of claim it is
clear that the cause of action
is statute-barred and the
defendant tells the court that
he proposes to plead the statute
and, on the uncontested facts,
there is no reason to think that
the plaintiff can bring himself
within the exceptions set out in
the Limitation Act 1939. In
those circumstances it is
pointless for the case to go on
so that the defendant can
deliver a defense. The delivery
of the defence occupies time and
wastes money; and even more
useless and time-consuming from
the point of view of the proper
administration of justice is
that there should then have to
be a summons for directions, and
an order for an issue to be
tried, and for that issue to be
tried before the inevitable
result is attained"
For the foregoing reasons we
would allow the appeal under
that ground as well.
In conclusion therefore, the
appeal succeeds in its entirety
and is accordingly allowed.
V. AKOTO-BAMFO (MRS.)
(JUSTICE OF THE SUPREME COURT)
BENIN, JSC:-
I agree with the
conclusion and reasoning of my
sister Akoto-Bamfo, JSC.
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the
conclusion and reasoning of my
sister Akoto-Bamfo, JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the
conclusion and reasoning of my
sister Akoto-Bamfo, JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
KOTEY, JSC:-
I agree with the
conclusion and reasoning of my
sister Akoto-Bamfo, JSC.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
KIZITO BEYUO FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
KWAME ASARE BEDIAKO
FOR THE
PLAINTIFFS/APPELLANTS/RESPONDENTS. |
