<p class="mb-5" id="contentDlCitation" hidden>[1994]DLCA5293</p> <div class="restriction-wrapper"> <div class="container-lg"> <div class="row"> <div class="col-md-12 restricted-content"> <div class="restricted-content-img-wrapper"> <div class="lock-icon bounce-7"> <img class="" src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png" alt="Subscription based content"> </div> </div> <a href="https://www.dennislawgh.com/login" class="btn btn-primary btn-lg" style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> Login to Read Full Case </a> </div> </div> </div> </div> <main id="main" class="content" style="min-height: 60rem" ><span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">CONSTRUCTION PIONEERS<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">MODERN GHANA BUILDERS<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><span style="font-size:10.0pt;line-height:115%;font-family:"Book Antiqua","serif"">[COURT OF APPEAL]<o:p></o:p></span></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" align="center" style="text-align:center;line-height:115%; border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in; mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:10.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">[1994 - 95] 2 G B R 608– 612 C A DATE: 8 DECEMBER 1994<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">COUNSEL:<o:p></o:p></span></b></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">ENOCH KOM WITH HIM CHARLES ANYIDOHO FOR THE APPELLANTS.<o:p></o:p></span></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" style="text-align:justify;line-height:115%;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">OFOSU ASANTE, WITH HIM GEORGE THOMPSON FOR THE RESPONDENTS.<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">CORAM:<o:p></o:p></span></b></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" style="text-align:justify;line-height:115%;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">LAMPTEY JA, FORSTER JA, BENIN JA<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">FORSTER JA. <o:p></o:p></span></b></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">On 14 July 1986, Construction Pioneers commenced action by motion in the High Court to enforce an award against Modern Ghana Builders Limited. The defendants resisted the application. On 29 September 1986, the court presided over by Lutterodt J having heard counsel for the parties ordered that the case proceed to trial. A subsequent application by the plaintiffs for review of the order made on 29 September 1986 was discontinued by the plaintiffs, and the judge struck it out as withdrawn without liberty to bring a fresh action.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The trial commenced on 13 January 1987 when the court expert witness, an engineer, gave evidence and was cross-examined by counsel for the parties. Thereafter the plaintiffs applied for leave to amend the motion filed on 14 July 1986 and which initiated the action. The judge dismissed the application and the case was adjourned to 10 March 1987 at the instance of the plaintiffs for the trial to resume. On 19 March 1987 the plaintiffs, Construction Pioneers, applied to discontinue the action with liberty to bring a fresh action. That application was granted without liberty to file a fresh action.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">On 28 April 1987 Modern Ghana Builders Limited (hereinafter called the “respondents”) sued out a writ endorsed with reliefs arising from the award made on 28 August 1985. Construction Pioneers (hereinafter called the “appellants”) resisted the claim and counterclaimed for the sum of ¢900,000 with interest. The counterclaim was based on the award. Thus, in paragraph 4 of the statement of defence, the appellants pleaded that “pursuant to the said interim award the plaintiffs collected one of the machines but have refused or neglected to pay the defendants in respect of the same.” The ¢900,000 with interest counterclaimed was in respect of charges for repairs to the machine mentioned in the statement of defence.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The respondents in their reply pleaded that the appellants were estopped from re-opening any of the issues raised in the earlier action which they discontinued without liberty. One of the issues set down for trial was “whether the defendants are estopped from re-opening any of the issues argued in the High Court in suit No 2067/86.”<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">On 12 August 1991, the judge entered judgment for the respondents and dismissed the appellants’ counterclaim. It is from that judgment that the appellants now appeal to this court. Mr Kom, counsel for the appellants confined his submissions to the additional grounds of appeal. The grounds as filed were that: (1) the learned judge having heard the earlier suit which ended in discontinuance should have declined jurisdiction; (2) the trial judge erred in admitting exhibit V, a certified true copy of the whole of the earlier proceedings and not merely the writ and judgment, hence she was greatly influenced by it and arrived at the wrong decision; (3) because of her earlier decision in the matter in exhibit V the learned trial judge could not hold the balance of justice evenly between the parties, her vision was clouded by the earlier proceedings, hence her judgment cannot stand; (4) the trial judge made contradictory primary findings of fact in her judgment and it must be set aside.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">Arguing grounds 1 and 2 together, Mr Kom submitted that having presided over the aborted action brought by the appellants the judge should have declined to sit on the suit now brought by the respondents against the appellants. Though not in so many words, he implied that in the circumstances justice could not have been seen to be done. He buttressed his point by references to certain remarks of the judge. In the judgment the judge said with reference to the previous suit, as follows:<o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify;line-height:115%"><i><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">“Now when the defendants sought leave to discontinue the previous action in order that I might exercise my discretion judicially in my ruling I had to determine the issue whether from the evidence then available the remaining two machines had been replaced. I found against them. In other words I found they were unable to prove they were not in breach … and had in fact repaired the two machines and so entitled to enforce their rights under the award. These specific findings I made on the primary issues coupled with the fact that more importantly I refused them liberty to institute a fresh action means this matter is res judicata.”<o:p></o:p></span></i></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">I comprehend the references as merely going to show that the grant of leave to discontinue without liberty was not an arbitrary exercise of discretion and thereby justify her finding of res judicata. The references in their context were not therefore meant to determine the merits of the action of the parties, and it cannot be rightly submitted that the judge was influenced in her judgment by those references.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">With all due respect to learned counsel, the cases cited in support of his submission were not in the least apposite. In Quashie v Tackie [1962] 1 GLR 65 the magistrate who had tried and convicted the appellant on criminal charges arising out of a motor traffic accident subsequently tried the civil action for negligence arising from the same accident. The Court of Appeal rightly observed that the judicial officer had acted improperly and that it was not likely that justice had been done. And worse still the conviction was received in evidence and relied upon by the judicial officer in his judgment. Of similar irrelevance is the case of King v Sussex JJ ex parte McCarthy [1924] 1 KB 256. In that case the acting clerk to the justices was a member of a firm of solicitors who were acting for the claimant in a claim for damages against the applicant for injuries he had received. When the justices retired to consider their judgment in the criminal trial arising out of the accident, the clerk retired with them. Although he was not consulted by the justices, the court allowed the application, observing that: “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">In the instant case, there is not the remotest possibility that the trial judge was or could have been influenced by the proceedings in the previous suit. It had no tendency to becloud the vision of the judge, as contended by counsel. And I</main>
