Review – Labour - Contract -
Casual workers, - Statute
barred - Supreme Court -
Exceptional circumstances
-Article 133(1) of the 1992
Constitution - rule 54 -
Supreme Court Rules, 1996 (CI16)
- section 2 - State Proceedings
Act, 1998 (Act 555). – Whrther
or not there are exceptional
circumstances warranting a
review of the judgment of the
ordinary – Whether or not an
agent of the Government or the
Republic, could be treated
differently in respect of its
liability in contract, separate
and distinct from any private
citizen of this country,
HEADNOTES
The facts in this case are
really very simple. The
applicants numbering about 4169
together with some others were
all former workers of the
respondent company. Describing
them as casual workers, the
respondent laid the applicants
off without giving them benefits
normally given to regular
workers who were being laid off.
Feeling aggrieved by this action
by the respondent which they
deemed discriminatory, they
brought an action before the
High court. That suit had the
names of Clement Agbesi and 4
other persons and then ‘Ors’, as
plaintiffs with the respondents
as defendants. The plaintiffs
later filed a list of persons
numbering about 3839. In the
course of the proceedings, an
application was filed to amend
the writ to add 356 more people
as plaintiffs.
The application was
granted with an order that the
title of the suit be amended to
include the names of the 365
employees. Strangely this order
was not carried out. The trial
proceeded to its conclusion and
the High Court entered judgment
for the plaintiffs and the
others who were listed in the
addendum. The Court of Appeal
however purported to grant the
3839 and 356 liberty to bring a
fresh actionThe plaintiffs
issued a fresh which had
culminated in this application.
When this action was instituted
at the high court the trial
judge overruled the submissions
of the respondents herein that
the action was statute barred
Feeling aggrieved by this
decision of the Court of Appeal
the applicants appealed to the
Supreme Court
HELD
This court
has reiterated times without
number that the review
jurisdiction of this court is
not an appellate jurisdiction,
but a special one. Accordingly,
an issue of law that has been
canvassed before the bench of
five and on which the court has
made a determination cannot be
revisited in a review
application, simply because the
losing party does not agree with
the determination. This
unfortunately is in substance
what the current application
before this court is.” We
believe that the application
before us is nothing more than a
rehash of the appeal before the
ordinary bench. We find no merit
in it and proceed to reject
same.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules, 1996 (CI 16)
Interpretation Act, C.A,4 1960
Interpretation Act, Act
1960
Limitation
Act NRCD 54
Ghana Ports and Harbours Authority
Law,1986 (PNDCL 160).
Internal
Revenue Service v Chapel Hill
Ltd [2010] SCGLR 827 at 850
CASES
REFERRED TO IN JUDGMENT
Afranie II
vrs Quarcoo [1992]GLR561, at
591-592,
Mechanical
Lloyd Assembly Plant Ltd v
Nartey [1987-88]2 GLR598
Quartey v
Central Services Co Ltd
[1996-97]SCGLR 398
Glencore AG v
Volta Aluminum Company Ltd,
review Motion No J7/10/2014
dated 15th April 2014
Glencore AG
v. Volta Aluminum Company No
J4/40/2013
Gihoc Refrigeration &Household
Products (no1) v Hanna Assi(no
1) [2007-2008]1 SCGLR 1
Tamakloe v Republic 1 SCGLR29
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BAFFOE-BONNIE JSC.
COUNSEL
ALBERT ADAARE
FOR THE PLAINTIFFS/RESPONDENTS/
APPELLANTS /APPLICANTS.
KWAMI ADOBOR
FOR THE DEFENDANT /APPELLANT
/RESPONDENT
/RESPONDENT.
___________________________________________________________________
R U L I N G
___________________________________________________________________
BAFFOE-BONNIE JSC.
Rule 54 of the Supreme Court Rules,
1996 (CI 16) provides as
follows;
54. Grounds for review
The court may review a decision made
or given by it on the ground of
(a)
Exceptional circumstances which
have resulted in a miscarriage
of justice or
(b)
The
discovery of new important
matter of evidence which after
the exercise of due diligence,
was not within the applicants
knowledge or could not be
produced by the applicant at the
time when the decision was
given.
The remit of this rule has been
expounded in a number of cases.
In the case of Afranie II vrs
Quarcoo [1992]GLR561, at
591-592,Wuaku JSC said:
“There is only one Supreme Court. A
review court is not an appellate
court to sit in judgment over
the Supreme Court”.
Then in the case of Mechanical
Lloyd Assembly Plant Ltd v
Nartey [1987-88]2 GLR598
the Supreme Court said,
“The review jurisdiction is not
intended as a try on by a party
losing an appeal neither is it
meant to be resorted to as an
emotional re-actionto an
unfavourable judgment”
In the case of Quartey v
Central Services Co Ltd
[1996-97]SCGLR 398; this
court restated the remit of the
review jurisdiction as follows
“ A review jurisdiction is a special
jurisdiction, conferred on the
court, and the court would
exercise that special
jurisdiction in favour of an
applicant only in exceptional
circumstances. This implies that
such an application should
satisfy the court that there has
been some fundamental or basic
error which the court
inadvertently committed in the
course of considering its
judgment and which fundamental
error has resulted in gross
miscarriage of justice.”
These and a long line of cases are
often cited as authorities that
speak against the use of the
review process to overturn
decisions given by the Supreme
Court except for exceptional
circumstances that have
occasioned a miscarriage of
justice. They actually show the
daunting task an applicant faces
in trying to get a decision
given by the Ordinary bench
reviewed.
However, it must be said that
difficult as it is to get the
Supreme Court to overturn its
own decision, it is not an
impossibility, and that whenever
the Supreme Court has found
exceptional circumstances, it
has readily conceded and
reviewed its decision. In the
recent case of Glencore AG
v Volta Aluminum Company Ltd,
review Motion No J7/10/2014
dated 15th April
2014, the Supreme Court
graciously accepted an error it
had made that had occasioned a
miscarriage of justice and
readily reviewed its decision
while commending counsel for the
industry he put in his
application for review. In that
case, the ordinary bench had
struck out the appeal as
withdrawn when the court,
relying on the repealed
Interpretation Act, had come to
the conclusion that the appeal
was filed out of time, albeit by
one day. In his application for
review, the courts attention was
drawn to the fact that under the
current interpretation act,
computation of days was to start
from a day after the decision
being appealed against and not
from the day of the decision.
Calculated that way, the
applicant was within time. The
Court therefore held;
“We are satisfied that the ordinary
bench of this court made an
inadvertent fundamental error
which if not reviewed would
result in the grave if not total
miscarriage of justice.
Consequently we allow the
application and set aside any
decision of the 19th
February, 2014. We order a
relisting of the appeal numbered
No J4/40/2013 entitled
Glencore AG v. Volta Aluminum
Company for the same to
be heard and disposed of by this
court on the merits.”
Having established this legal
background let me return to the
application before us.
This is an application for review
brought pursuant to Article
133(1) of the 1992 Constitution
and rule 54 of the Supreme Court
Rules, 1996 (CI16) on the ground
that having regard to the
exceptional circumstances which
have resulted in a substantial
miscarriage of justice
occasioned by the judgment of
the Ordinary panel of the
Supreme court dated 29th
January, 2014 same should be
reviewed. The exceptional
circumstances warranting a
review of the decision of the
full bench of this court have
been given as follows.
“1. The ground on which the present
application for review is
premised is that there are
exceptional circumstances
warranting a review of the
judgment of the ordinary panel
of the Supreme Court dated 29th
January 2014. That judgment, it
is very humbly and respectfully
submitted, was given per
incuriam articles 17(1), 37(1)
and 190 the 1992 Constitution
and also section 2 of the State
Proceedings Act, 1998 (Act 555).
2.It is very humbly submitted
that the judgment of the
ordinary panel which held that
the
defendant/appellant/respondent/respondent
(hereinafter referred to as the
“respondent”), an agent of the
Government or the Republic,
could be treated differently in
respect of its liability in
contract, separate and distinct
from any private citizen of this
country, (a treatment which is
not available even to the
Government or the Republic
itself by virtue of the
constitutional and statutory
provisions in articles 17(1),
37(1) and 190 of the 1992
Constitution and also section 2
of the State Proceedings Act,
1998 (Act 555)) was with respect
given in error.
3 The ordinary panel of this
court, it is very humbly
submitted, committed a
fundamental error of law
apparent on the face of the
record and the judgment was
given inadvertently and is
fundamentally wrong and
occasioned a substantial
miscarriage of justice to the
applicants and same ought to be
reviewed.
4.By the judgment, the State or
Government or Republic is
permitted to make a law
truncating or abating its
liability in contract or the
liability in contract of its
agents within a shorter period
(in this case, one year or
twelve months) not available to
all persons or private citizens
for acts committed in breach of
contract; insulating the
Government or its agent the
respondent, from liability in
contract after one year from the
date of accrual of the cause of
action in flagrant violation of
articles 17(1), 37(1) and 190 of
the 1992 Constitution.
5.Section 92(1) of the Ghana
Ports and Harbours Authority
Act, 1986 (PNDCL 160) is in
contravention of and
inconsistent with Articles
17(1), 37(1) and 190 of the 1992
constitution.
6. It is very humbly and
respectfully submitted that it
was the failure or omission of
the ordinary panel of this court
to consider and determine the
issue of the unconstitutionality
of section 92 of PNDCL 160, an
issue which was raised in the
Court of Appeal and also before
the ordinary panel of this court
that occasioned the judgment for
which the review is presently
sought.
7.Section 92(1) of the Ghana
Ports and Harbours Authority
Act, 1986 (PNDCL 160) is
inconsistent with the letter and
spirit of articles 17(1), 37(1)
and 190 of the 1992 Constitution
and must be struck down as void
to the extent of its
inconsistency with these
constitutional provisions
pursuant to article 1(2) of the
1992 Constitutions.”
Reading through the 10 paragraph
affidavit in support of the
application and the 28 page
statement of case, the case for
the applicant is simple;
that the respondent being at
best a body corporate must be
equated to any individual or for
that matter any other body
corporate as far as contractual
relations are concerned. So
since the limitation period for
bringing any action in contract
against individuals or other
body corporates or even the
government is 6 years, any law
like the GPHA law that seeks to
limit the contractual
obligations of the GPHA to
actions brought within 12
months, is unconstitutional and
so the reliance on same by the
ordinary bench was an error of
law that had occasioned a
miscarriage of justice.
BACKGROUND OF THE CASE
The facts in this case are
really very simple. The
applicants numbering about 4169
together with some others were
all former workers of the
respondent company. Describing
them as casual workers, the
respondent laid the applicants
off without giving them benefits
normally given to regular
workers who were being laid off.
Feeling aggrieved by this action
by the respondent which they
deemed discriminatory, they
brought an action before the
High court. That suit had the
names of Clement Agbesi and 4
other persons and then ‘Ors’, as
plaintiffs with the respondents
as defendants. The writ was
accompanied by an addendum filed
on the same day which stated
that a full and comprehensive
detailed list will be supplied
to the court subsequently. The
plaintiffs later filed a list of
persons numbering about 3839. In
the course of the proceedings,
an application was filed to
amend the writ to add 356 more
people as plaintiffs. The
application was granted with an
order that the title of the suit
be amended to include the names
of the 365 employees. Strangely
this order was not carried out.
The trial proceeded to its
conclusion and the High Court
entered judgment for the
plaintiffs and the others who
were listed in the addendum.
At the Appeal Court the court
found that the list of 3839 not
having been filed together with
the writ, and the suit of the
title not having been amended to
include the 359 names for which
leave had been granted, it was
only Clement Agbesi and the 4
other persons named in the writ
who were entitled to judgment.
The Court of Appeal however
purported to grant the 3839 and
356 liberty to bring a fresh
action. The court said
“In the interest of justice, the
3839 and 356 must be returned to
the positions they held or
occupied prior to the
commencement of the action with
liberty to institute fresh
action against the other for
whatever reliefs they may deem
proper”.
The plaintiffs issued a fresh
which had culminated in this
application.
When this action was instituted
at the high court the trial
judge overruled the submissions
of the respondents herein that
the action was statute barred
and ruled that the action was
not statute barred because under
section 2 of the limitation
Decree NRCD 54 the period of
limitation is 12 years. At the
appellate court, the decision
was overturned in the following
terms;
“Counsel for the
plaintiffs/respondents however
argues that as this action is
based on Judgment in the Agbesi
case, the period of limitation
starts running from the date
when the judgment became
enforceable and the period of
limitation is as provided for by
section 5(2) of the Limitation
Decree 54 of 1972 which is 12
years……..
This wrongful exposition of the
law unfortunately informed the
trial judge in his judgment. The
period of limitation is not set
by judgments but by statute. The
plaintiffs herein were held not
to be parties in the Agbesi
case. How could that case give
any relief or time limit to the
plaintiffs to commence their
case?”
Their Lordships were fully
convinced that the action of the
applicants herein was not
subject to the limitations
imposed by the Limitation Act of
1972 but rather the limitations
imposed by section 92 of PNDC
Law 160 which provides as
follows
“A civil action against the
authority or an employee for an
act done in pursuance or
execution or purported pursuance
or execution of an enactment,
duty or authority shall abate
unless it is commenced within 12
months after the act, neglect or
default complained of, or where
the injury or damage continues,
within twelve months after it
ceases”
The court came to the conclusion
that the action was statute
barred and therefore not
maintainable.
Feeling aggrieved by this
decision of the Court of Appeal
the applicants appealed to the
Supreme Court on the grounds,
which for purposes of emphasis I
will reproduce in full.
“1.The learned justices of the
Court of Appeal erred when they
held that the plaintiffs’ action
was statute barred”
“2.The learned justices of the
Court of Appeal erred when they
held that the plaintiffs’ action
was statute barred upon the
application of section 92(1) of
the Ghana Ports and Harbours
Authority Law,1986 (PNDCL 160).”
“3.The learned Justices of Court
of Appeal erred in not making a
reference to the Supreme Court
under article 130(2) of the 1992
Republican Constitution of Ghana
on the question of the
constitutionality or otherwise
of section 92(1) of the Ghana
Ports and Harbours Authority
Law, 1986 (PNDCL 160) which was
raised by the appellants Counsel
in the proceedings before the
Court of Appeal for
determination by the Supreme
Court before applying the said
provision to the appellants
case.”
“4.The learned Justices of the
Court of Appeal therefore erred
in applying a provision that is
unconstitutional to the
appellants’ case.”
“5.The Learned Justices of the
Court of Appeal erred in
applying section 92(1) ofGhana
Ports and Harbours Authority
Law,1986 (PNDCL 160) when the
defendants/appellants/respondents
itself pleaded the Limitation
Decree ACT (NRCD 54) which was
the Act plaintiffs
/respondents/appellants admitted
was the applicable statute.”
“6.The learned Justices of the
Court of Appeal erred in setting
aside the judgment of the high
court on a technicality while
ignoring the issue of doing
substantial justice in the
matter.”
“7. Further and additional
grounds of appeal will be filed
upon receipt of the record of
appeal.”
The applicant filed and argued
two additional grounds as
follows
A “The learned justices of the
Court of Appeal erred when they
failed to apply the modern
purposive approach to their
interpretation of section 92(1)
of the GPHA Act,1986 (PNDCL 160)
resulting with respect, in a
wrong interpretation being
placed on the said provision by
their Lordships in the Court of
Appeal”
B “The learned Justices of the
Court of Appeal erred when they
held that the maxim
generaliaspecialibus non
derogant applied in the present
case and therefore section 92(1)
of the GPHA ACT is applicable”
The summary of counsel’s
submissions before the Ordinary
Bench were that
1 The plaintiffs’ action is
seeking to compel the defendant
to perform the part of the
bargain which was contained in
the contract of employment, i.e.
the collective bargaining
agreement. The reliefs against
the against the defendants being
equitable reliefs, under section
6(1) of the Limitation Act 1972,
the law relating to limitations
of actions cannot be invoked
against the plaintiffs.
2.The plaintiffs’ action being
one brought to enforce their
constitutional rights, the
defendant cannot rely on an
inferior legislation such as
PNDCL 160 which seeks to set a
limitation period of twelve
months only in actions brought
against the defendant. This
according to counsel would
offend the provisions of Article
17 of the constitution that
frowns on anything
discriminatory, since all
actions founded on contracts
against all other persons have a
limitation period of six years.
Counsel therefore submitted that
it is the limitation period
applicable to all actions
brought by the citizenry without
discrimination that ought to be
applicable and that is the
Limitation Decree Act 1972 NRCD
54. Under NRCD 54 the limitation
period is six years and so if
the cause of action accrued in
September 2002, in May 2008,
when the action was instituted,
same was not statute barred.
3 Granting that section 92(1) of
the GPHA Act is applicable,
(which is denied), a purposive
construction of same would
reveal that the 12 months
limitation period within which
to bring an action against the
Authority is not applicable to
all actions or for that matter
actions bothering on enforcement
of simple contract of employment
such as was brought by the
plaintiffs, but referable to
maritime actions as the twelve
months limitations period is in
accord with international
maritime legislation. Counsel
therefore concluded thus;
“…the provision is not intended
to apply to all actions against
the Authority. If it had so been
intended, it would have been
framed in a language such as “no
civil action shall be
brought…….The use of the
indefinite article “a” together
with the restrictions to an act
done in pursuance or execution
or ……..duty or authority shows
that the purpose of section
92[1] was not to provide all
pervasive provision in respect
of limitation of suits against
the Authority”
All these grounds of appeal were
argued extensively by counsel
for the applicant before the
Ordinary Bench.
After reviewing submissions by
counsel on the various grounds,
the Ordinary Bench concluded as
follows.
“Having come to this conclusion,
I do not find it necessary to
consider the other arguments of
counsel for the Appellants on
the applicability of section92
of the GPHA Act of 1986. In the
circumstances in as much as the
writ of summons in this case was
issued in May 2008, well over
the 12 months limitation period
under section 92 the appellants’
action was statute barred. The
court of Appeal therefore did
not fall into any error when it
so decided”.
In this application before us
the gravamen of counsel’s
submission is the
unconstitutionality of section
92(1) of the GPHA act as
interpreted by the ordinary
bench and for that matter its
non-applicability to the
applicants’ action. It is
counsel’s submission that, the
ordinary bench failed to advert
its mind to the fact that as
interpreted, the GPHA act is in
contravention of and
inconsistent with articles
17(1), 37(1) and 190 of the 1992
Constitution and that the
failure of the Ordinary bench to
consider and determine its
constitutionality and strike
same down as such, had
occasioned a miscarriage of
justice which should be the
basis for a review by this
panel.
We believe that counsel has
misconstrued the scope and remit
of the review jurisdiction. As
the case law review at the
beginning of this ruling
portray, the review process is
neither another avenue to take a
second bite at the proverbial
cherry, nor is it another forum
of appeal. It is only a forum to
redress exceptional errors like
applying a wrong law or a law
whose existence was not brought
to the attention of the ordinary
bench, and which would have
affected the decision of the
ordinary bench. Infact the limit
to which the review jurisdiction
can be utilized is exemplified
by these quotations by our
esteemed brother, Dr Date-Bah in
the case of Gihoc
Refrigeration &Household
Products (no1) v Hanna Assi(no
1) [2007-2008]1 SCGLR 1
“Even if the unanimous judgment
of the Supreme Court on the
appeal in this case were wrong,
it would not necessarily mean
that the Supreme Court would be
entitled to correct that error.
This is an inherent incident of
the finality of the judgments of
the final court of appeal of the
land. The brutal truth is that
an error of law by the final
court of the land cannot
ordinarily be remedied by
itself, subject to the
exceptions discussed below. In
other words, there is no right
of appeal against a judgment of
the Supreme court, even if it is
erroneous.”
And Atuguba JSC in the case of
Tamakloe v
Republic 1 SCGLR29;
“The review jurisdiction of the
supreme court was not an
appellate jurisdiction, but a
special one. Accordingly, an
issue of law that had been
argued before the ordinary bench
of the Supreme Court and
determined by that court, could
not be revisited in a review
application, such as in the
instant case, simply because the
losing party had not agreed with
the determination. Even if the
decision of the ordinary bench
on appeal from the judgment of
the court of appeal, were wrong,
it would not necessarily mean
that the Supreme Court would be
entitled to correct that error.
That was an inherent incident of
the finality of the judgment of
the supreme court as the final
appellate court”
The issue of unconstitutionality
of section 92(1) of the GPHA Act
was raised before the Court of
Appeal and same was a ground of
appeal before the Ordinary Bench
of the Supreme Court.
For emphasis let me quote 3 grounds
of Appeal before the Supreme
Court
“2.The learned justices of the court
of appeal erred when they held
that the plaintiffs action was
statute barred upon the
application of section 92(1) of
the Ghana Ports and Harbours
Authority Law(sic),1986 (PNDCL
160).”
“3.The learned Justices of Court of
Appeal erred in not making a
reference to the Supreme court
under article 130(2) of the 1992
Republican Constitution of Ghana
on the question of the
constitutionality or otherwise
of section 92(1) of the Ghana
Ports and Harbours Authority
Law, 1986 (PNDCL 160) which was
raised by the appellants’
Counsel in the proceedings
before the Court of Appeal for
determination by the Supreme
Court before applying the said
provision to the appellants
case.”
“4.The learned
Justices of the Court of Appeal
therefore erred in applying a
provision that is
unconstitutional to the
appellants’ case.”
Counsel in his submissions before
the ordinary Bench referred
extensively to the constitution
and authorities to show that,
section 92 (1) is
unconstitutional and therefore
the limitation therein contained
should not be used to decide
this case. He has virtually
repeated the same submission
before the review panel. The
only difference between the two
submissions was that whiles that
before the ordinary bench
discussed the constitutionality
and also the need to do a
purposive interpretation of
Section 92(1) of the GPHA act,
the one before the review panel
was devoted solely to
questioning the
constitutionality of Section
92(1) of the act which, counsel
feels, is discriminatory and
therefore infringes the 1992
Constitution. Contrary to
counsel’s submission that the
ordinary bench failed to make a
determination on the
constitutionality of Section
92(1), impliedly they did. The
submission on the
unconstitutionality of the
section argument did not find
favour with the Ordinary Bench.
Even though the Court did not
specifically rule on the
constitutionality or otherwise
of the said section vis a vis
the mentioned articles in the
constitution, impliedly, this
argument was rejected. This is
because the court came to the
conclusion that Section 92 (1)
was the applicable law in
determining the period of
limitation in relation to the
Respondent authority. This
remains the finding of the court
until same is overturned even
though it is obvious that
applicant disagrees with the
court. Unfortunately,
unpalatable as the outcome of
this judgment may be to the
applicant, it is not open to him
by way of review to have the
decision overturned.
I will conclude this ruling by
borrowing the words of our
esteemed brother Dr Date-Bah in
the case of Internal
Revenue Service v Chapel Hill
Ltd [2010] SCGLR 827 at 850
especially 852-853
where the learned judge said:
“I do not consider that this case
deserves any lengthy treatment.
I think that the applicant
represents a classic case of a
losing party seeking to re-argue
its appeal under the garb of a
review application. It is
important that this court should
set its face against such
endeavour in order to protect
the integrity of the review
process.
This court has reiterated times
without number that the review
jurisdiction of this court is
not an appellate jurisdiction,
but a special one. Accordingly,
an issue of law that has been
canvassed before the bench of
five and on which the court has
made a determination cannot be
revisited in a review
application, simply because the
losing party does not agree with
the determination. This
unfortunately is in substance
what the current application
before this court
is.”
We believe that the application
before us is nothing more than a
rehash of the appeal before the
ordinary bench. We find no merit
in it and proceed to reject
same.
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE
SUPREME
COURT
(SGD)
G. T. WOOD (MRS)
CHIEF JUSTICE
(SGD) J. ANSAH
JUSTICE OF THE SUPREME
COURT
(SGD)
R. C. OWUSU ( MS)
JUSTICE OF THE SUPREME
COURT
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) ANIN
YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) N.
S. GBADEGBE
JUSTICE OF THE
SUPREME COURT
COUNSEL
ALBERT ADAARE
FOR THE PLAINTIFFS/RESPONDENTS/
APPELLANTS /APPLICANTS.
KWAMI ADOBOR
FOR THE DEFENDANT /APPELLANT
/RESPONDENT
/RESPONDENT. |