STATE GOLD MINING CORPORATION vs. SISSALA [1971]DLCA2167

Date	1971-03-29
Suit No.
Citation No.	[1971]DLCA2167

APALOO JA

ANIN JA

ARCHER J.A.

C. H. A. TETTEY PRINCIPAL STATE ATTORNEY FOR THE APPELLANTS.

JAMES MERCER FOR THE RESPONDENT.

[1971]DLCA2167
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													<main id="main" class="content" style="min-height: 60rem" >STATE GOLD MINING CORPORATION <o:p></o:p>vs.<o:p></o:p>&nbsp;SISSALA<o:p></o:p>&nbsp;[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 2 GLR 359<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
29 MARCH 1971.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

C. H. A. TETTEY, PRINCIPAL STATE ATTORNEY, FOR THE
APPELLANTS.<o:p></o:p>

JAMES MERCER FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APALOO, ANIN AND ARCHER JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>The
respondent was employed by the appellant corporation (hereinafter called the
corporation) as a machine driver in the latter’s mine at Prestea. On 30 June 1966,
while engaged in his work, he was involved in an accident which resulted in the
amputation of his left leg. On 13 December 1967, the respondent and the
corporation entered into an agreement professedly under the Workmen’s
Compensation Act, 1963 (Act 174), in which the latter paid to the former, the
sum of N¢1,043.97 as compensation for his injuries. On 9 January 1968, the
respondent applied to the circuit court to have that agreement cancelled. This
application was acceded to on 9 April of that year but the court then proceeded
to make an order not entirely in harmony with the cancellation of the
agreement. Barely a month after the court’s order, the respondent brought an
action in the High Court, Sekondi, against the corporation for damages at common
law for his injuries. The action was grounded on an averment that the
corporation was negligent in failing to provide a safe system of work. This was
denied in the pleadings filed on behalf of the corporation. The latter also
pleaded in the alternative that inasmuch as the respondent received
compensation in accordance with the provisions of the Workmen’s Compensation
Act, he was barred from bringing an independent action in respect of the same
injuries. The respondent joined issue with the corporation on this plea.<o:p></o:p><o:p>&nbsp;</o:p>The
corporation thought that the alternative plea, if upheld, would dispose of the
matter. It accordingly moved to have it decided as a preliminary issue under
Order 25, rr. 2 and 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954
(L.N. 140A). On 7 July 1969, rival arguments were presented to Aboagye J. by
counsel for the parties. On 21 July 1961 the court delivered a reasoned ruling
in which it held that the respondent was not barred by section 24 (4) of the
Workmen’s Compensation Act from bringing the present suit. The result of the
court’s ruling is that the damage suit will have to be determined on its
merits. The corporation say that the ruling was wrong and they seek by this
appeal to have it reversed.<o:p></o:p><o:p>&nbsp;</o:p>When the
hearing of this appeal commenced before us, Mr. Mercer, counsel for the
respondent, objected that the appeal was not properly before us. This is
because the order appealed against was interlocutory and cannot be appealed
against without special leave. For authority, he relies on the now familiar
legislation, namely, the Court Decree, 1966 (N.L.C.D. 84), para. 7, as amended
by the Courts (Amendment) Decree, 1968 (N.L.C.D. 277), para. 1 (a). It is
common ground that no special leave was obtained to bring this appeal. It has
been brought to our notice, that there is professional doubt whether or not
special leave is still required to appeal to this court against an
interlocutory order. Such doubts were set to rest by the ruling of this court
in the Bank of Ghana v. Labone Weavers Enterprises Ltd. [1971] 1 G.L.R. 251,
C.A. The instant appeal was lodged on 5 August 1969, and is accordingly
unaffected by the Constitution (Consequential and Transitional Provisions)
Decree, 1969 (N.L.C.D. 406), and article 110 of the Constitution, 1969, which
came into force on 30 September and 22 August 1969, respectively.<o:p></o:p><o:p>&nbsp;</o:p>Therefore,
if the order appealed against is an interlocutory one, then Mr. Mercer’s
objection is made out. Mr. Tettey, counsel for the corporation, concedes this
to be the position. But he resists the contention because he argued that the
order was in fact a final one and he was therefore entitled to appeal as of
right. He founded himself on the 1882 decision of the English Court of Appeal
in Shubrook v. Tufnell (1882) 9 Q.B.D. 621 and submitted that the test laid
down in that case for distinguishing an interlocutory order from a final one
was: If the order in question is reversed, would the action have to go on? He
submitted that if the order complained of is reversed, that would be an end of
the action and accordingly, that order was final. But Mr. Tettey properly, and
in the best tradition of the profession, drew our attention to the later case
o</main>