|
Practice and
Procedure - Banking - Promissory
notes – Guarantee - writ of
summons - Payment of filing fees
- Capacity to sue – existence as
a legal entity - Security for
costs - Stay proceedings - abuse
of the court process – Whether
the fresh action brought by the
Appellant in which it now
discloses its capacity amounts
to an abuse of the court process
- Whether or not the trial Judge
made a finding that there was a
valid legal reason for the
plaintiff filing the present
writ while its appeal in the
Court of Appeal was pending.
HEADNOTES
The
appellants in suit number OS
557/97 by originating summons in
the High Court claimed for a
declaration that they were the
holders in due course and
entitled to receive from
respondents the full face value
of five promissory notes issued
by Sabat Motors Limited and
guaranteed by the Respondents.
The Respondents objected to the
originating summons before the
High Court and were overruled.
However, their appeal to the
Court of Appeal was successful.
The Appellants then issued a
writ of summons for the same
relief as in the originating
summons suit No. 465/99 on
21/5/1999, the High Court ruled
that the Appellant’s endorsement
in the writ was calculated to
avoid the payment of the
appropriate filing fees. Instead
of paying the appropriate filing
fees, the appellants
discontinued suit and instead
instituted a fresh action, and
the appellants claimed the same
reliefs as in the old suit .The
defendants entered conditional
appearance and applied for an
order to strike out or stay the
action on grounds that The
appellant did not exist as a
legal entity and therefore did
not have capacity to
institute the action The
plaintiff did not pay the
appropriate filing fees. In
addition, the Respondent applied
for security for costs since the
Appellant company was not
resident in Ghana. The writ was
set aside as a nullity by the
trial judge since the plaintiff
failed to establish its
existence as a legal entity.
Following the ruling, the
Appellants filed a new writ,
claiming the same reliefs as had
been in first Suit, the
Respondent bank entered
conditional appearance and
followed that with Motion on
Notice to Strike out Suit or
Stay proceedings and Security
for Costs, the plaintiffs filed
an appeal to the Court of
Appeal, The appeal was dismissed
and a further appeal to the
Supreme Court also failed. On 24th
November 2006 the Respondent
filed supplementary affidavit in
support of motion to strike out
the Suit No. C. 582/2000 wherein
the motion had also been filed
as far back as 5th
July, 2000. The High Court Judge
heard arguments from both
Counsel and on 20th
December 2006 granted the
application and struck out the
writ. A further appeal to the
Court of Appeal also failed.
This present appeal to the
Supreme Court has been based
upon the decision of the Court
of Appeal and the Notice of
Appeal was filed on the 13th
of August 2008
HELD
After
considering the facts of this
case and the principles of law
clearly enunciated in the cases
referred to supra and others too
numerous to be referred to, we
are of the considered opinion
that to permit the instant
appeal to stand, will amount to
an abuse of the process of the
Court in that, the Courts would
be enabling and or encouraging
the appellant to challenge the
factual findings and conclusions
reached by the Judges in the
earlier proceedings. In such a
situation it would clearly be
unfair and unjust to a party in
the earlier proceedings that the
same matters would be
relitigated again. To allow such
a litigation to remain on the
table of the parties and the
court in our view would not only
be tantamount to bringing the
administration of justice into
scorn, opprobrium and ridicule
but also into serious disrepute.
We would in the circumstances
dismiss the appeal in relation
to the first issue raised in the
appeal herein.
This means
that, the Courts must not on the
flimsiest of reasons re-open any
matter that has been finally put
to rest in a judicial
proceedings to which there has
been no appeal or to which there
can be no appeal such as the
decision by the Supreme Court in
the earlier proceedings. This
issue also fails and appeal is
dismissed
STATUTES
REFERRED TO IN JUDGMENT
Limitation
Decree, 1972 (NRCD 54
CASES
REFERRED TO IN JUDGMENT
Sasu vrs
Amua-Sekyi and Anr [2003-2004]
742
Henderson vrs
Henderson (1843) 3 Hare 100
Barrow vrs
Bankside Agency Ltd. [1996] 1
WLR 257
Naos Holding
Inc vrs GCB [2005-2006] SCGLR
407
Secretary of
State for Trade and Industry v
Bairstow [2003] EWCA Civ. 321
Golightly v
Ashrifi [1961] GLR 28
Kariyavoulas
and another v Osei [1982-83] GLR
670
Stephenson
vrs Garnet [1898] 1 QB 677
Reichel vrs
Magrath [1889] 14 AC 665
Macdougall
vrs Knight [1890] 25 QBD 1
Phosphate
Sewage Co. Ltd. vrs Molleson
[1879] 4 App Cas. 801
Hunter vrs
Chief Constable of West Midlands
[1982] AC 529 or 1981] 3 A.E.R.
727 H.L
BOOKS
REFERRED TO IN JUDGMENT
Black’s Law
Dictionary
DELIVERING
THE LEADING JUDGMENT
DOTSE, JSC:
COUNSEL
WILLIAM ADDO
FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
KIZITO BEYUO
FOR THE
DEFENDANT/RESPONDENT/RESPONDENT.
_______________________________________________________________________
J U D G M E N
T
_______________________________________________________________________
DOTSE, JSC:
The facts
leading to this case show a
classic example of how time that
is lost, can never be regained.
We cannot but agree more with
George Washington, in his letter
to James Anderson, December 21st
1797, when he wrote thus:-
“The man who does not
estimate time as money will
forever miscalculate.”
In view of
the many suits that had been
previously filed by the
Appellants in this case, we deem
it expedient to set out in some
detail the facts that have given
rise to the instant appeal. In
doing so, we consider it
important to set out in a
historical context the
antecedents of all the previous
suits and relate their
relationship to the instant
appeal.
The
plaintiffs/appellants/appellants
(hereinafter referred to as the
Appellants) in suit number OS
557/97 by originating summons in
the High Court claimed for a
declaration that they were the
holders in due course and
entitled to receive from the
defendants/respondents/respondents
(hereinafter referred to as the
Respondent) the full face value
of five promissory notes issued
by Sabat Motors Limited and
guaranteed by the Respondents.
The Respondents objected to the
originating summons before the
High Court and were overruled.
However, their appeal to the
Court of Appeal was successful.
The Appellants then issued a
writ of summons for the same
relief as in the originating
summons suit No. 465/99 on
21/5/1999. Gbadegbe J (as he
then was) who presided over the
case at the High Court ruled
that the Appellant’s endorsement
in the writ was calculated to
avoid the payment of the
appropriate filing fees. Instead
of paying the appropriate filing
fees, the appellants
discontinued suit No. 465/99,
and instead instituted a fresh
action, suit No. 656/99. In suit
No. C 656/99 the appellants
claimed the same reliefs as in
the suit No. 465/99.
The
defendants entered conditional
appearance and applied for an
order to strike out or stay the
action on grounds that:
a. The appellant did not
exist as a legal entity and
therefore did not
have capacity to institute
the action
b. The plaintiff did not
pay the appropriate filing fees.
In addition,
the Respondent applied for
security for costs since the
Appellant company was not
resident in Ghana. The writ was
set aside as a nullity by the
trial judge, Agnes Dordzie J,
(as she then was),
since the
plaintiff failed to establish
its existence as a legal entity.
Following the
ruling of Agnes Dordzie J (as
she then was) on 17th
April, 2000, the Appellants
filed a new writ (Suit No. C
582/2000) on 15th
June, 2000, claiming the same
reliefs as had been in Suit No.
C 656/99.
On 5th
July 2000 the Respondent bank
entered conditional appearance
and followed that with
Motion on Notice to Strike out
Suit or Stay proceedings and
Security for Costs
which was filed on 23rd
October 2000. Ten days after the
filing of the writ, which was on
25th June, 2000,
the
plaintiffs filed an appeal to
the Court of Appeal in
respect of the ruling of Justice
Dordzie in suit No. C 656/99.
The grounds
of appeal in that appeal were:
1. The ruling is against
the weight of evidence available
before the
Court
2. The learned trial
Judge erred in holding that the
Appellant does
not exist as a legal person and
3. The learned Judge
erred in holding that the writ
herein is void.
The appeal
was dismissed and a further
appeal to the Supreme Court also
failed.
Judgment of
the Supreme Court in the appeal
was given on 14th
December 2005. On 5th
February 2006 the Appellant
filed Notice of Intention to
Proceed in respect of suit No. C
582/2000 seeking as it were to
revive that old case filed on 15th
June, 2000.
On
24th November 2006
the Respondent filed
supplementary affidavit in
support of motion to strike out
the Suit No. C. 582/2000 wherein
the motion had also been filed
as far back as 5th
July, 2000. The High Court Judge
heard arguments from both
Counsel and on 20th
December 2006 granted the
application and struck out the
writ. A further appeal to the
Court of Appeal also failed.
This present appeal to the
Supreme Court has been based
upon the decision of the Court
of Appeal and the Notice of
Appeal was filed on the 13th
of August 2008 on the
following grounds:
GROUNDS OF
APPEAL
1.
The learned Judges of the Court
of Appeal erred in law when they
held that bringing
a fresh
action in which the
plaintiff/appellant/appellant
fully disclosed it’s capacity
amounted to an
abuse of
the court process
and on the basis of
that, dismissed its appeal.
2.
The learned Judges of the Court
of Appeal erred when they failed
to consider the ground
of appeal that “having
found that there was a valid
legal reason for the plaintiff
filing the present writ when its
appeal to the Court of Appeal in
this matter was still pending,
the learned trial Judge of the
High Court erred in holding that
the filing of the writ in the
circumstances amounted to an
abuse of the process of the
court” on the basis that
it was a comment passed by the
learned trial Judge in his
ruling and not an order of the
court which could be appealed.
From the
grounds of appeal the following
issues can be identified as
standing out clear for
determination to dispose of the
appeal. These are:
a.
Whether
the fresh action brought by the
Appellant in which it now
discloses its capacity amounts
to an abuse of the court
process.
b.
Whether
or not the trial Judge made a
finding that there was a valid
legal reason for the plaintiff
filing the present writ while
its appeal in the Court of
Appeal was pending.
ISSUE ONE
Whether the
fresh action brought by the
Appellant in which it now
discloses its capacity amounts
to an abuse of the court
process.
In discussing
this issue of the abuse of the
Court process, it is important
to understand what the principle
of abuse of the Court process is
all about. In the Supreme Court
case of
Sasu vrs Amua-Sekyi and
Anr [2003-2004] 742,
Prof. Date-Bah JSC, in his
concurring opinion stated of the
principle of abuse of process as
follows:-
“In addition to the cause of
action and issue estoppels…there
is the related
doctrine of abuse of process,
commonly referred to as the rule
in
Henderson vrs Henderson (1843) 3
Hare 100… whose essence
was set out by the
English Court of Appeal in
Barrow
vrs Bankside Agency Ltd. [1996]
1 WLR 257 at 260 as
follows:
“The rule in Henderson vrs
Henderson requires the parties,
when a matter
becomes the subject of
litigation between them in a
Court of competent
jurisdiction, to bring their
whole case before the Court so
that all aspects of it may be
finally decided, (subject of
course, to any appeal) once and
for all. In the absence of
special circumstances, the
parties cannot return to the
Court to advance arguments,
claims or defences which they
could have put forward for
decision on the first occasion
but failed to raise. The
rule is not based on the
doctrine of res judicata in a
narrow sense, or even on any
strict doctrine of issue or
cause of action estoppels. It is
a rule of public policy based on
the desirability, in the general
interest as well as that of the
parties themselves, that
litigation should not drag on
forever and that a defendant
should not be oppressed by
successive suits when one
would do”
The above
statement of the principle of
abuse of process clearly then
underscores the essence of
preventing those who want to
make the litigation arena i.e.
the law courts a career from
embarking upon such a process as
it is contrary to public policy
and leads to loss of valuable
time and resources.
This view was
further buttressed by the
Supreme Court in its decision
delivered on the 14th
of December, 2005 reported as
Naos Holding Inc vrs GCB
[2005-2006] SCGLR 407
with respect to the previous
proceedings in this case. It was
noted in the judgment as
follows:-
“…once its legal status was
challenged and its corporate
capacity was placed in issue, it
was incumbent upon the appellant
to produce more
cogent evidence of its existence
(such as its registered address
or a copy of its certificate of
incorporation) to satisfy the
court that it has the requisite
legal capacity to sue.”
Since it
failed to do so, the Court was
justified in arriving at the
conclusion that the Appellant
did not exist. Furthermore,
having dismally failed to
satisfy the court with regard to
such a fundamental issue as
capacity
to sue, it would have been
pointless for the trial court to
order the matter to proceed to
trial. Having failed to take the
opportunity to prove its
capacity during the hearing of
the motion, the Appellant did
not merit any further ‘sporting
chance’, nor was the court
obliged to act suo motu to grant
the Appellant leave to amend the
writ to include its residential
address.
The
Black’s
Law Dictionary on ‘abuse of
process’ states:
“There is said to be an abuse
of process when an adversary
through the malicious and
unfounded use of some regular
legal proceeding obtains some
advantage over his opponent”.
If the
appellant succeeds in this
appeal they would have obtained
an advantage through the
machinery of our courts that
should not enure to them.
The
Appellants have also argued that
there is only an abuse of Court
process where the later
proceeding would be unfair to
the other party or work an
injustice on him and have
premised this part of their
argument on the case of
Secretary of State for Trade and
Industry v Bairstow
[2003] EWCA Civ. 321 Court
of Appeal (Civil Division). It
must however be noted that, that
condition would only be
applicable where the parties to
the later civil proceedings were
not parties to or privies of
those who were parties to the
earlier proceedings.
The
Appellants further argued that
by virtue of providing their
address in this instant suit
they are litigating in a
different capacity. They have
relied on the cases of
Golightly v Ashrifi [1961] GLR
28 and Kariyavoulas and
another v Osei [1982-83] GLR 670
in support of this view.
The facts in
the two cases just referred to
are well known that it is
pointless to restate them in
this judgment.
Suffice it to
be that the Courts in the said
cases made the necessary but
important distinctions as
follows:
It is very
apparent therefore that in the
cases of Golightly v
Ashrifi and Kariyavoulas
and another v Osei
already referred to supra,
the different capacities in
which the parties litigated were
distinct and cannot be compared
to the instant appeal where the
parties litigated in the
previous proceeding as NAOS
Holding only that they provided
no cogent proof of their
existence either in Ghana or in
Panama and are now re-litigating
under the same name. The only
difference being that they have
now provided proof of their
existence in Panama by way of
providing an address. This is
clearly an abuse of process.
This
principle of abuse of process
had been formulated years ago by
the English Courts as was
evident in the statement of the
principle in Date-Bah JSC’s
opinion which had been accepted
and applied by the Courts in
Ghana. Some of the English cases
that readily come to mind are
the following:
1. Stephenson vrs Garnet
[1898] 1 QB 677
2. Reichel vrs Magrath
[1889] 14 AC 665
3. Macdougall vrs Knight
[1890] 25 QBD 1
4. Phosphate Sewage Co.
Ltd. vrs Molleson [1879] 4 App
Cas. 801
at 814
5. Hunter vrs Chief
Constable of West Midlands
[1982] AC 529 or
[1981] 3 A.E.R. 727 H.L
6. Secretary of State
for Trade and Industry vrs
Bairstow [2003]
EWCA Civ 321 Court of Appeal
[Civil Division]
In all the
above cases, the principle of
abuse of process that is
discernible has been postulated
on the fact that the matters in
controversy have been determined
by a Court of competent
jurisdiction between the same
parties and basically on the
same subject matter and that it
would therefore be an abuse of
the process of the Court to
allow a suitor to have an open
ended opportunity to be
litigating and religating over
and over again in respect of the
same issue which has over the
period and in previous decisions
been decided against him.
In the
circumstances of this case, it
is evident that the Supreme
Court in its decision of the
appeal that was brought before
it firmly decided against the
appellant on the 14th
of December, 2005. To permit the
appellants to succeed in their
present endeavour is to allow
them to launch a collateral
attack on the decision of the
Supreme Court given on the said
date.
After
considering the facts of this
case and the principles of law
clearly enunciated in the cases
referred to supra and others too
numerous to be referred to, we
are of the considered opinion
that to permit the instant
appeal to stand, will amount to
an abuse of the process of the
Court in that, the Courts would
be enabling and or encouraging
the appellant to challenge the
factual findings and conclusions
reached by the Judges in the
earlier proceedings.
In such a
situation it would clearly be
unfair and unjust to a party in
the earlier proceedings that the
same matters would be
relitigated again. To allow such
a litigation to remain on the
table of the parties and the
court in our view would not only
be tantamount to bringing the
administration of justice into
scorn, opprobrium and ridicule
but also into serious disrepute.
We would in
the circumstances dismiss the
appeal in relation to the first
issue
raised in the appeal herein.
But before we do so, it is
deemed appropriate to refer once
again to the decision of the
Supreme Court in the case of
Sasu vrs Amua-Sekyi and Anr
[2003-2004] SCGLR 742
already referred to supra as
well as the opinion of Bamford
Addo JSC as follows:
The Supreme
Court held as follows:
“In any case the appellant
had contravened the rule that
litigation must end by filing
multiplicity of actions which
had delayed the case from
reaching finality despite
findings of estoppels by the
Court against him. Thus in his
counterclaim before Apaloo J,
the appellant should have
brought forth his full case and
the rule in Henderson vrs
Henderson would not permit
him to present his case
piecemeal by bringing a
subsequent case seeking to set
aside the Court of Appeal’s
judgment for fraud.
Consequently, the appellant’s
conduct in bringing a fresh
action amounted to abuse of
judicial process.”
Per Bamford
Addo JSC as she then was in the
same case:
“Although he
was not allowed by the Court to
proceed, he was able to continue
this conduct which should be
deprecated and discouraged since
public policy demands that
litigation be brought to a
speedy end in the interest of
justice”
This ground
of appeal therefore fails.
ISSUE TWO
Whether or
not the trial judge made a
finding that there was a valid
legal reason for the plaintiff
filing the present writ while
its appeal in the Court of
Appeal was pending.
The relevant
part of the Court of Appeal
judgment complained of is as
follows:
“It appeared
to me that the plaintiff gambled
by pursuing the same issue on
appeal and in fresh action at
the High Court. I believe the
plaintiff instituted the fresh
action in order to beat the
six-year bar to actions founded
on simple contracts under
section 4 of the
Limitation Decree, 1972 (NRCD 54).
I say so because after the
verdict of the Supreme Court on
14th December 2005
the plaintiff quickly filed a
notice to proceed on 8th
February 2006.”
It would
appear based on the facts and
the law that the Court of Appeal
was right when it noted that, on
reading the entire ruling of the
court below, one would not fail
to realize that the above quoted
portion of the court’s ruling
was a mere surmise by the court
which did not in any way
contribute to the basis of its
ruling. The supposed finding
thus cannot be a legitimate
basis for a ground of appeal.
This point is
further elucidated very clearly
and concisely in the words of
Sophia Akuffo JSC in the earlier
proceedings in the Supreme
Court, Naos vrs GCB
[2005-2006] SCGLR where
she stated as follows:
“Once its legal status and
its corporate capacity was
placed in issue, it was
incumbent upon the
plaintiff to produce more cogent
evidence of its existence
(such as its registered address
or a copy of its certificate of
incorporation) to satisfy
the Court that it had the
requisite legal capacity
to sue, and having
failed to do so, the trial Court
was justified in arriving at the
conclusion that the plaintiff
did not exist”.
Clearly
therefore, as can be seen no
valid compelling or reasonable
basis has been established as
constituting the basis for the
institution of a fresh action
by the appellant against the
respondents grounded on same
facts and circumstances. Indeed
the appellants did not proffer
any such valid reason why they
chose to have commenced a fresh
suit whilst an appeal filed by
them was pending before an
appellate court of competent
jurisdiction.
Where
therefore judgment has been
delivered by a Court of
competent jurisdiction and or an
appeal has been properly filed
and is pending in an appellate
Court of competent jurisdiction
and the appellant or the parties
therein decide to file or
institute a fresh suit against
the same party or parties based
on the same facts, it will call
in aid the invocation of the
principles of abuse of process
to nullify the said fresh suit,
especially if no valid reason
has been given as in the instant
case for such a conduct. This
Court must deprecate and frown
upon the conduct of the
appellant in its bid to use the
judicial process to perpetually
keep aflame in our law Courts,
matters whose flames had already
been put out by previous
litigations to finality.
This means
that, the Courts must not on the
flimsiest of reasons re-open any
matter that has been finally put
to rest in a judicial
proceedings to which there has
been no appeal or to which there
can be no appeal such as the
decision by the Supreme Court in
the earlier proceedings. This
issue also fails and appeal is
dismissed.
Conclusion
Concluding
her opinion in the case of
NAOS Holdings Inc. vrs Ghana
Commercial Bank, already
referred to supra, Sophia Akuffo
JSC stated as follows:-
“In conclusion, the Court of
Appeal committed no error in
upholding the High Court’s
ruling. The writ was void for
failure to state the residence
of the plaintiff in the action
and, in any event, there was
such serious doubt as to the
corporate status of the
appellant that the court was
justified in its
conclusion that the appellant
did not exist at all”.
Under these
circumstances, we are of the
considered opinion that the
instant appeal must suffer the
same fate as its predecessor
appeal before this very court.
It definitely
appears to us that time has
indeed caught up with the
appellant, and conscious of the
effect of the doctrine of
limitation in respect of the
timelines that have been
established under the Limitation
Act 1972 NRCD 54, the appellant
clearly chose to buy more time
with the institution of the
current proccedings.
In arriving
at our decision that this appeal
fails in its entirety and should
be dismissed, we have been
guided by our resolve as a final
appellate court to strive
i.
to administer justice;
ii uphold the rule of
law;
iii. resolve and
adjudicate cases expeditiously
and justly and; finally
iv. to preserve public
confidence and trust in the
administration of justice.
In the
premises, the appeal herein
fails and is accordingly
dismissed. The result is that,
the High Court decision in suit
No. C. 582/2000 dated 20/12/2006
that the said suit is an abuse
of process and therefore struck
out is upheld together with the
Court of Appeal decision of 29th
May, 2008 which affirmed same.
This case
definitely epitomizes the lack
of appropriate legislation to
enable the courts to enforce the
timelines that have been stated
in the rules of procedure at the
various levels of Court. It is
surprising that this simple
matter which the High Court
decided in 2006 as an abuse of
process has taken almost four
(4) years to come to finality.
Perhaps the time is ripe to take
a second look at the rules of
procedure at the appellate
Courts, to wit the Court of
Appeal and the Supreme Court
with a view to making it
possible for the Courts to
expeditiously dispose of such
cases.
The appeal
stands dismissed.
J. V. M.
DOTSE
JUSTICE OF
THE SUPREME COURT
S. A. BROBBEY
JUSTICE OF
THE SUPREME COURT
ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
P. BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
V.
AKOTO-BAMFO (MRS)
JUSTICE OF
THE SUPREME COURT
COUNSEL:
WILLIAM ADDO
FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
KIZITO BEYUO
FOR THE
DEFENDANT/RESPONDENT/RESPONDENT.
|
