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Civil
procedure – Certiorari - Order
of Prohibition - Excess of
jurisdiction – Adoption of terms
of settlement – Whether or not
the settlment had a contractual
binding effect. - Whether or
not by allowing the interested
party to overthrow that term the
trial judge in effect granted
him a dispensation to break his
own contract arbitrarily
HEADNOTES
Plaintiff/Applicant (hereinafter
called “the Plaintiff”) caused a
Writ of Summons to be issued
against the Defendant/Respondent
(hereinafter called “the
Defendant 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, Interest
on the above sum from December,
2006 till date of final
payment,Costs, including
Plaintiff’s legal costs, 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.”
HELD
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.
STATUTES
REFERRED TO IN JUDGMENT
Legal Aid and
Advice Act, 1949.
CASES
REFERRED TO IN JUDGMENT
McCallum v
Country Residences Ltd. (1965)
IWLR 657 C.A.
Asahin
Industries v. Kofifoh Boat
Building Co. Ltd. (1984-86) 1
GLR 453 C.A
Little v
Spreadbury [1910]2 KB 658.
United
Engineering Workers’ Union v
Devanayagam [1968] AC 356
Harvey v.
Croydon Union Rural Sanitary
Authority (1884) 26 Ch. D 249
C.A
Green v Rozen
and others (1955)1 WLR 741
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ATUGUBA, JSC:-
COUNSEL
CHARLES
TETTEH ESQ. WITH HIM EUGENE
ABLADE ONINKU FOR THE
APPLICANT.
K. A.
OWUSU-ANSAH FOR THE INTERESTED
PARTY.
____________________________________________________________________________________
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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