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ATUGUBA,
JSC:-
The applicant moves this court
for:
“(i) an order of Certiorari
to quash the decision of His
Lordship Justice L.L. Mensah
(hereinafter called “the Judge”)
sitting at the High Court (Fast
Track Court 1) which was made on
2nd April, 2014,
(ii) an order of
Prohibition restraining the said
Judge from proceeding to take
evidence and determine the
substantive suit in respect of
case entitled DEBORA
ATAKORA v. BILLY CUDJO SUIT NO.
AC 128/2012 as having
been made in excess of his
jurisdiction,
(iii) an order directing
the said Judge to adopt the
terms of settlement signed by
the parties and their solicitors
and filed on 25th
March, 2014 by the parties in
the said suit, and
(iv) any further or other
Order(s) as this Court may deem
fit.
- - - - - - -
- - grounds for the application
are as follows:
(i)
That the judge acted without
jurisdiction when he set aside
the terms of settlement validly
executed by the parties and
their counsel.
(ii)
That the judge acted in excess
of jurisdiction when he ordered
that the suit be heard on its
merits despite the compromise
reached by the parties.”
The facts of this case are as
stated in paragraph 1 of the
applicant’s supporting statement
of case dated 24/4/2014 as
follows:
“--------the
Plaintiff/Applicant (hereinafter
called “the Plaintiff”) caused a
Writ of Summons to be issued
against the Defendant/Respondent
(hereinafter called “the
Defendant) for the following
reliefs:
i.
A refund of the sum of USD
28,000.00 or its equivalent in
Ghana cedis being monies spent
on carrying out works on the
defendant’s house,
ii.
Interest on the above sum from
December, 2006 till date of
final payment,
iii.
Costs, including Plaintiff’s
legal costs, and
iv.
An order of injunction
restraining the Defendant from
removing the Plaintiff from the
premises until final
determination of the suit.
-------------- when the suit
came up for hearing the parties
together with Counsel agreed,
pursuant to the admonishment of
the Judge, to settle the matter
out of court. The parties to
the suit together with Counsel
subsequently voluntarily
compromised the action, executed
the terms of settlement and
filed the same at the Registry
of the Court below. On 2nd
April, 2014 just before Counsel
for the Plaintiff was to move
the Court below for the adoption
of the terms as a Consent
Judgment the Defendant announced
to the Court below that on
second thought he would like to
resile from the compromise and
have the case heard on its
merits.
-------------- in the face of
teething objection by Counsel
for the Plaintiff to the
purported resilience by the
defendant on the grounds that
the terms of settlement was a
binding contract between the
parties therein; and further
that the Interested party could
not by that means set aside the
terms, the Judge dismissed
Counsel’s objection, adjourned
the matter to 14th
April, 2014 for hearing and
awarded costs to the Plaintiff.”
Terms of settlement simpliciter
and consent judgment
When parties settle an action
whether in or out of court
simpliciter, the cause of action
involved in such settlement is
gone and is replaced by such
settlement. Upon breach of the
settlement the innocent party’s
remedy is not to reopen the
litigation so settled but to
bring an action to enforce the
settlement, it being an
enforceable contract between the
parties involved.
Where however the terms of
settlement by consent of the
parties are entered by the court
a consent judgment then it
becomes, like any other judgment
an executable judgment of the
court if it contains executable
orders.
This legal position has been
lucidly stated by the great Lord
Denning M.R in McCallum v
Country Residences Ltd.
(1965) IWLR 657 C.A. The
headnote thereof is as follows;
“A legally aided plaintiff
brought an action in August,
1963, in respect of work done
for the defendants. They denied
the claim and counterclaimed
alleging negligence in the work
done. On June 5, 1964, the
defendants’ solicitors initiated
a correspondence “without
prejudice” with a view to
compromise by payment of a
stated sum and costs to date.
Negotiations continued by
letters between the parties
solicitors until, on September
28, the plaintiff’s solicitors
accepted an offer of £900 on
condition that the defendants
paid the plaintiff’s costs to
date, and proposed taking out a
summons “that terms of
settlement had been reached” in
order to obtain the necessary
order as to costs required for a
legally aided client. A
summons was duly taken out
asking that all proceedings in
the action be stayed save for
the purpose of carrying into
effect the terms that the
defendants should pay the
plaintiff £900 within seven
days and also his party and
party costs, to be taxed on a
common fund basis, pursuant to
Schedule 3 to the Legal Aid and
Advice Act, 1949.
When the summons came before the
official referee, the
defendants’ representative, a
solicitor’s clerk, indicated
that he was not happy about the
position as to the costs,
but he did not expressly object
to the making of the order asked
for. The official referee read
the letters, found that there
was a concluded agreement to
settle for £900 and costs, and
made the order asked for in the
“Tomlin” form.
On appeal by t he defendants:-
Held,
allowing the appeal (Danckwerts
L.J. dissenting), that as the
defendants had not consented to
the making of a Tomlin order,
there was no jurisdiction to
make it, for where an action
had been compromised by a
settlement on terms, the
compromise gave rise to a new
cause of action and its terms
could be enforced only by
starting new proceedings.
Unless the defendants consent
to the making of a Tomlin order,
a plaintiff is not entitled to
obtain the equivalent of
judgment on the compromise by
means of a Tomlin order.”
At 660 Denning M.R expatiated on
the legal distinction between a
compromised action simpliciter
and a consent judgment as
follows:
“When an action is
compromised by an agreement
to pay a sum in satisfaction,
it gives rise to a new cause of
action. This arises since
the writ in the first action,
and must be the subject of a new
action. The plaintiff,
in order to get judgment, has
to sue on the compromise.
That is the only course which
the plaintiff can take in
order to enforce the settlement,
unless of course he can go
further and get the defendant to
consent to an order of the court.
In the absence of a
consent to the order, as
distinct from a consent to the
agreement, I do not think
the court has jurisdiction to
make an order. I think that is
borne out by the decision to
which Winn L.J. referred –
Green v. Rozen. Of course,
if there could have been found a
consent to the order being made,
it would have been a different
matter. But there was none.”
Authority of Counsel
It is settled law, that but for
limited exceptions, when counsel
is instructed by his client to
settle an action and he does so,
his authority so to do cannot
afterwards be arbitrarily
withdrawn by the client. This
legal position can be distilled
from numerous authorities. In
Asahin Industries v. Kofifoh
Boat Building Co. Ltd.
(1984-86) 1 GLR 453 C.A at 457
Francois JSC delivering the
ruling of the court said thus:
“The last ground for rejecting
the settlement is in effect a
criticism of the applicants own
counsel for ineptitude. But
there is good sense and good
reason for the rule that you
take your counsel as you find
him. At law, where a client
induces by his conduct, his
solicitor to believe that he is
authorized to make a compromise
on his behalf, he is bound by it:
see Little v Spreadbury
[1910]2 KB 658. Also
illustrative of the principle is
the passage from the dissenting
joint judgment of Lord Guest and
Lord Devlin in United
Engineering Workers’ Union v
Devanayagam [1968] AC 356 at
390, where their lordships
stated:
“A court of law has no doubt
the formal power of refusing to
make an order in accordance with
a settlement reached by the
parties, but it is a power which
is exercised only in exceptional
cases, as, for example, when
one of the parties is under the
protection of the court.
Otherwise the court does not
inquire whether the proposed
settlement achieved a just
result; it assumes that it
does. It assumes also that
counsel has authority to make a
settlement on behalf of his
client; if he has not, it is a
matter that they must settle
between themselves.”(e.s)
Again in Harvey v. Croydon
Union Rural Sanitary Authority
(1884) 26 Ch. D 249 C.A the
headnote states as follows:
“Consent
Order –Facts not mentioned to
Court – Withdrawal of Consent.
An action was brought against a
local board to restrain them
from pulling down certain houses
of the Plaintiff’s, and for
damages. On a motion for an
injunction coming on, the
Defendants’ counsel, by the
authority of his clients,
consented to an order for a
perpetual injunction, with
costs, and an inquiry as to
damages, and such order was
taken by consent without opening
the case to the Court. Before
the order had been passed, the
Defendants formally withdrew
their consent, and the
Registrar thereupon declined to
pass the order without the
direction of the Court. The
Plaintiff moved that he might be
directed to proceed to perfect
the order. The Defendants
alleged that their instructions
to consent had been given under
a misapprehension, but did
not enter into any evidence in
support of that allegation :-
Held
by Pearson, J., that up
to the time of a consent order
being passed, any party can
withdraw his consent, except
where he consents to a decree of
the Court after the case has
been before the Judge, and that
the application must be refused:
Held
on appeal, that where counsel
by the authority of their
clients consent to an order, the
clients cannot arbitrarily
withdraw such consent, and that
the Registrar must be directed
to proceed to perfect the order,
without prejudice to any
application which the Defendant
might make to the Court below to
be relieved from their consent,
on the ground of mistake or
surprise or for other sufficient
reason.”(e.s)
It is quite clear therefore that
in this case the trial judge
erred in thinking that the
interested party could, after
the entry into and execution by
all the parties and their
counsel of the terms of
settlement which included a term
that those terms of settlement
shall be adopted by the court as
a consent judgment, resile from
the same arbitrarily.
Conclusion
From all the foregoing it is
clear that the decision of the
trial judge to proceed with this
case on its merits is clearly a
grave jurisdictional error.
This is because a court has
jurisdiction over causes and
matters litigated before it.
However, as aforesaid when a
cause or matter is settled by
the parties there is no longer a
subsisting causa or
res litigiosa before the
court for determination on the
merits. By way of emphasis I
would refer to Green v Rozen
and others (1955)1 WLR
741 which was approved by the
Court of Appeal in McCallum
v. Country Residences Ltd.
supra. The headnote of Green
v Rozen, as far as relevant
is as follows:
“An action claiming the
return of moneys lent was
settled before trial, there
being written on the front of
the brief of counsel for the
plaintiff “By consent, all
proceedings stayed on terms
indorsed on briefs, Liberty to
apply and on the back the agreed
terms signed by counsel on
either side whereby the
defendant was to pay to the
plaintiff a certain sum of
money by installments and the
costs of the action, the “whole
debt and costs” to become “due
and payable at once” on any
installment being in arrear.
When the action was called on
for hearing the court was
informed of the settlement and
what the terms of the settlement
were, but no order was made by
the court. Subsequently an
order for taxation was made by a
master. The defendant failed to
pay one of the installments and
the plaintiff applied to the
court for judgment for the
balance due under the terms of
the settlement, an order for the
costs as taxed and the costs of
the application:-
Held,
that judgment could not be
given, for the court had made no
order and the original cause
of action had been superseded by
the new agreement between the
parties comprised in the terms
of settlement, and the court had
no further jurisdiction in the
matter; if the terms of the
new agreement were not complied
with the remedy of the
injured party was not by
application to the court but by
action upon the new agreement.”
The parties’ terms of settlement
are binding upon them because
they are contractual. That
being so we find it difficult to
see how when one of the terms of
such settlement is that they be
made a consent judgment, such a
term should not also have
contractual binding effect. By
allowing the interested party to
overthrow that term the trial
judge in effect granted him a
dispensation to break his own
contract arbitrarily. A court
has no such jurisdiction.
Even if the trial judge were to
be right in refusing to enter
the terms of settlement as a
consent judgment, he would still
be wrong to proceed with the
case on its merits because in
view of the principles herein
stated, the terms of settlement
alone were sufficient to divest
the court of its jurisdiction to
proceed further on a trial of
the case on its merits.
It was for these reasons that we
quashed the decision of the
trial judge to continue the
trial of this case on its merits
and ordered him to enter the
aforementioned terms of
settlement as a consent
judgment.
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
CHARLES TETTEH ESQ. WITH HIM
EUGENE ABLADE ONINKU FOR THE
APPLICANT.
K. A. OWUSU-ANSAH FOR THE
INTERESTED PARTY.
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