ANGLOGOLD ASHANTI (GH) LTD PER ITS MANAGING DIRECTOR OBUASI – ASHANTI vs. CHARLES DAKORAH BAYELLAH AND 5 OTHERS [2017]DLCA4563

ANGLOGOLD ASHANTI (GH) LTD PER ITS MANAGING DIRECTOR OBUASI – ASHANTI vs. CHARLE... [2017]DLCA4563

Date	2017-06-26
Suit No.	SUIT NO. H1/31/2017
Citation No.	[2017]DLCA4563

AYEBI J.A. (PRESIDING)

TORKORNOO (MRS) J. A.

DOMAKYAAREH (MRS) J. A.

COUNSEL FOR DEFENDANT/APPELLANT -- OSAFO BUABENG

COUNSEL FOR PLAINTIFFS/RESPONDENTS -- MICHAEL NII AMUI

[2017]DLCA4563
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													<main id="main" class="content" style="min-height: 60rem" >ANGLOGOLD ASHANTI (GH)
LTD PER ITS MANAGING DIRECTOR OBUASI – ASHANTI<o:p></o:p>(DEFENDANT/ APPELLANT)<o:p></o:p>vs.<o:p></o:p>CHARLES DAKORAH BAYELLAH
AND 5 OTHERS<o:p></o:p>(PLAINTIFFS /RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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">

SUIT NO. H1/31/2017&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;DATE: 29TH JUNE, 2017<o:p></o:p>

COUNSEL
FOR PLAINTIFFS/RESPONDENTS &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;--&nbsp;&nbsp;
MICHAEL NII AMUI&nbsp;&nbsp; <o:p></o:p>

</div>TORKORNOO (MRS), J.A.<o:p></o:p>On
27th October 2014, six named persons sued the Defendant/Appellant for the
following reliefs:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that the Plaintiffs are
entitled to the redundancy and/or retirement packages declared by the Defendant
Company.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order directing the Defendant
Company to pay the Plaintiffs the entitled redundancy and/or retrenchment
packages declared by the Defendant Company.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Interest on the said amount from the
date due to the date of final payment.<o:p></o:p>On
20th October 2015, the Plaintiff/Respondent’s counsel filed an application ‘for
joinder’ in which he indicated on the motion paper that he was acting for and
on behalf of ‘the Applicants’ who wanted to be joined to the suit as 7th to
28th Plaintiffs to the suit. The title of the application did not in any manner
indicate who these applicants were.&nbsp; It
was in the supporting affidavit that one Ernest Joe Mensah, who averred that he
was one of the applicants and the deponent to the affidavit, set out the names
of the applicants of the Motion. <o:p></o:p>The
application was opposed by the Defendants who are Appellants to this appeal on
the ground that the persons named in the affidavit had not indicated how their
presence was necessary in the suit for resolution of the matters in
controversy. This is because they had merely indicated that they were former
employees of the Defendant/Appellant Company who had been affected by the
redundancy exercise which formed the basis for the suit initiated by the six
Plaintiffs. There were several employees of the Defendant who were affected by
the said redundancy exercise and so they had to indicate what their specific
interest in common were with the issues and Plaintiffs before the court.&nbsp; <o:p></o:p>The
Judge exercised his discretion in the consideration of the Motion and granted
it. He said his decision was premised on the need to ensure that, pursuant to
Order 4 Rule 5 (2) (b) of the High Court Civil Procedure Rules 2004 C I 47, all
matters in dispute in the proceedings will be effectively and completely
determined and adjudicated upon. This opinion found on the second page of the
ruling, was continued with five more pages of reasoning. In closing his ruling
on the application for joinder, the trial judge awarded costs of GH¢1,000 each
to the 22 applicants as costs for the application – amounting to GH¢22,000
against the Defendant Appellant. It is the award and quantum of this costs that
have been appealed. The grounds for appeal are<o:p></o:p>a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The award of costs of GH¢1,000.00 each
to the 22 applicants who applied to join the suit, against the Defendant was a
wrong and non-judicious exercise of jurisdiction by the learned trial judge
which has occasioned a substantial miscarriage of justice to the Defendant.<o:p></o:p>b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred in law in
proceeding to award costs of GH¢1,000.00 to each of the 22 applicants who
applied and were joined to this suit when at all material times the said 22
applicants were not yet parties to the suit, contrary to the letter and spirit
of order 74 of the High Court Civil Procedure Rules, 2004, C.I 47.<o:p></o:p>In
his submissions in support of the appeal, Appellant counsel argued that after
an order for joinder, an amended writ had to be filed before the applicants
could become parties to an action. Not being parties, the applicants could not
be awarded costs under Order 74. He submitted that ‘the language of Order 74
throughout, is replete with only instances of award of costs in favor of a
party (or) against a party to the suit.’ This made the award of costs to
persons who were not yet parties to a suit, unsupported by the rules of court. <o:p></o:p>His
second argument was that the award of costs is an exercise in judicial
discretion. Citing Sharpe v Wakefield (1891) AC 173, he quoted the principle
that ‘The award of costs involves a judicial discretion, which must be
exercised on fixed principles, that is according to rules of reason and
justice, not according to private opinion’…or ‘affected by questions of
benevolence or sympathy’. It was his submission that the trial judge awarded
the costs out of sympathy and benevolence and this was an unjustified and
improper exercise of the discretion required by Order 74. <o:p></o:p>