CP CONSTRUCTION PIONEERS vs. MODERN GHANA BUILDERS LTD [1995]DLSC5294

Date	1995-11-14
Suit No.	[1994 - 95] 2 G B R 613– 619 SC
Citation No.	[1995]DLSC5294

AMUA-SEKYI JSC

AIKINS JSC

HAYFRON-BENJAMIN JSC

AMPIAH JSC

ADJABENG JSC

BARTELS-KUDWO FOR KOM FOR THE APPELLANT.

GEORGE THOMPSON FOR THE RESPONDENT.

[1995]DLSC5294
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													<main id="main" class="content" style="min-height: 60rem" >CP CONSTRUCTION PIONEERS<o:p></o:p>vs.<o:p></o:p>MODERN GHANA BUILDERS
LTD<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1994 - 95] 2 G B R 613– 619&nbsp; SC&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; DATE: 14 NOVEMBER 1995<o:p></o:p>

GEORGE
THOMPSON 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 1.0pt 0in">

AMUA-SEKYI
JSC, AIKINS JSC, HAYFRON-BENJAMIN JSC, AMPIAH JSC, ADJABENG JSC<o:p></o:p>

</div>HAYFRON-BENJAMIN JSC. <o:p></o:p>This
is a second appeal wherein Court of Appeal affirmed the decision of the High
Court Accra.<o:p></o:p>The
appellants, then applicants, by a motion in suit No 2067/86 sought to enforce
an arbitration award against the respondents. Upon issues joined, the learned
judge decided to take evidence on certain parts of the award. In the course of
the hearing before the High Court, solicitors for the applicants on 19 March
1987 sought “leave to discontinue their application with liberty to come back.”
On 20 March 1987 when the matter came before the High Court, counsel for the
appellant announced to the court that:<o:p></o:p>“We were called upon by the court to
lead evidence to establish that at the date shown on our application we had
fulfilled all of our obligations under the award. We realised that it is not
possible to bring the witnesses and so we feel we would discontinue the matter.
We pray for leave.”<o:p></o:p>I
have referred to this episode in the suit No 2067/86 because in the subsequent
proceedings which have resulted in the present appeal, counsel seems to think
not only that it was illegal for the proceedings in suit No 2067/86 to be
tendered in evidence, but also in having those proceedings before the learned
High Court judge and both suits relating to the same issues, it was improper
for the learned High Court judge to have heard the suit which is presently
under appeal before us. Appellants’ first complaint before us therefore is that
the Court of Appeal erred in holding that is was proper for Lutterodt J to hear
both suits.<o:p></o:p>Counsel
for the appellants takes issue with their Lordship in the Court of Appeal when
they say that the proceedings and judgement in suit No 2067/86 “had no tendency
to becloud the vision of then judge.” I agree with their Lordships in their
finding.<o:p></o:p>Again
counsel submits that the case of Quartey v Tackie [1962] 1 GLR 65 and the
English case of the R v Sussex JJ, ex parte McCarthy [1924] 1 KB 256 are cases
in point and support the appellants’ ground of appeal. Their Lordships in the
Court of Appeal here again delivered themselves fully on these authorities and
I am in full agreement with them. The case of Quartey v Tackie supra, is also
distinguishable from the present appeal. In the Quartey case, supra there was a
criminal trial followed by a civil trial. It is trite learning and the law was
stated precisely by Ollenu J in holding 1 at page 66 of the report that:<o:p></o:p>“…Evidence of a previous conviction or
acquittal in a criminal case is not admissible in subsequent civil proceedings
arising from the same facts.”<o:p></o:p>In
the present appeal the proceedings were both civil and the first proceedings
created an estoppel, which was pleaded in the second case. Estoppel therefore
being a rule of evidence it could be admitted in evidence if the conditions for
so treating the proceedings have been satisfied.<o:p></o:p>In
a civil matter a successful plea of estoppel precludes the adduction of evidence
on the same issue or on any matter, which could have been legitimately raised
at the time of the creation of the estoppel. I cannot therefore agree that in a
plea of estoppel before the same judge in a related application it “is not
likely that justice would have been seen by the layman as having been done.”
The principle in the Quartey case, supra is therefore inapplicable to this
appeal; it is not on all fours with the present appeal and it is also
irrelevant.<o:p></o:p>Learned
counsel takes another issue with the learned High Court judge for holding in
exhibit C that:<o:p></o:p>“I would grant them leave to
discontinue but no liberty to bring fresh action…”<o:p></o:p>Counsel
contends that since the learned High Court judge did not give reasons for her
decision nor was there a decision on the merits there could be no estoppel.
Counsel had not adverted his mind to the fact that the matter was virtually
part heard when counsel announced to the court on 20 March 1987 that:<o:p></o:p>“We realise that is not possible to
bring the witnesses and so we feel we would discontinue the matter…”<o:p></o:p>Counsel
has also studiously avoided any references to the English case of Fox v Star
Newspaper Company Limited (1898) 1 QB 636 and the dictum of Chitty LJ on the
true intendment of the rule. Said Foster-Sutton P in Biei v Assah (1953) 14
WACA 303 at 304-5 citing Chitty LJ in the report:<o:p></o:p>“The provisions of the rule are
substantially the same as those contained in the English Order 26, rule 1. The
construction to be placed on that rule was decided by the judgment of the Court
of Appeal in the case of Fox v Newspaper Company Limited which was subsequently
upheld by the House of Lords, where it was held that, when the plaintiff has to
obtain leave, it is only by the discretion of the judge that he can discontinue
with the right of bringing another action. Chitty, LJ in his judgment in the
Court of Appeal in that case, when discussing the English Order 26, rule 1,
said:<o:p></o:p>‘The principle of the rule is plain.
It is that after the p</main>