The Trust Bank v. G.K. Appiah and Sons Ltd. [2011] GHASC 21 (20 April 2011)

Material Facts:

The plaintiff-appellant-appellant, hereafter the appellant, instituted an action in the High Court to recover a debt from the defendants-respondents-respondents, hereafter the respondents. The respondents challenged the action on grounds that it is res judicata because an earlier action (Suit No. AB /1/03) had been instituted against them by the appellants in relation to the same debt, and judgement was given in favour of the appellants.

In response to the respondents plea of res judicata, the appellants argued that it made an application to the High Court in Suit No. AB /1/03 to discontinue the action with liberty to institute a fresh action, and the application was granted.

Issue:

Whether or not the High Court could grant the application to discontinue the action with liberty to institute a fresh action in Suit No. AB/1/03?

Holding:

The High Court did not have the power to grant the application to discontinue the action in Suit No. AB/1/03.

Ratio Decidendi:

The application by the appellants in Suit No. AB/1/03 was brought under Order 17 Rule 2, which reads:

(1) Except in the case of an interlocutory application, the plaintiff may at any time before service on the plaintiff of the defendant’s defence or after the service of it and before taking other proceeding in the action, by notice in writing wholly discontinue the action against all or any of the defendants or 76 withdraw any part of the alleged cause of action and thereupon the plaintiff shall pay the defendant’s costs of the action or if the action is not wholly discontinued, the costs occasioned by the withdrawal.

What is clear is that the appellant applied to the High Court to discontinue Suit No. AB/1/03 after judgement had already been delivered in his favour. The question is whether a plaintiff can apply to discontinue an action after judgement has been given. On this, Wood CJ, in delivering the unanimous decision of the court, said:

The discernible principle from the age old, but instructive case of Fox v. Star Newspapers & Co. [1898] 1QB 636 at 639, which we quoted with approval in the case ofRepublic v. High Court (Fast Track Division) Accra ; Ex parte 8 Electoral Commission [2005-2006] 514 at 535 , and which sets out the rational clearly, aptly applies to applications brought under the Order 17 (rule) 2 . The explanation is that: “

...after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is then to be no longer be dominus litis, and it is for the Judge to say whether the action shall be discontinued or not upon what terms.”

The court is not prepared to strain the language of Order 17 Rule 2 to allow a plaintiff to apply for discontinuance of an action after judgement has been given. Her ladyship delivered herself as follows:

Certainly, the rules of court do not permit the discontinuance of an action to after judgment has been entered. Order 17 rule 2 (1) of the High Court Procedure Rules CI 47 sets out the parameters of the exercise of this discretionary relief, which can be open to abuse and injustice if not properly scrutinized and strictly exercised in accordance with the rules of court… Plainly, the stages at which an action may be discontinued are before, during or after the hearing or trial. After judgment or execution is not included in the stages at which the relief may be applied for. Rules of court which regulate the conduct of legal proceedings must be construed strictly to give full effect to the rules. The language of order 17 rule (2) cannot be strained to include after judgment or execution. The undisputed facts support the appellate court’s view that having regard to the summary judgment, the rights of the parties have been firmly and finally determined and no action exists for discontinuance.

Principle in Case:

Although Order 1 Rule 1 Sub-Rule 2 enjoins the court to interpret and apply the rules of court to ensure speedy and effective trial, the court will not stretch the language of a rule of court if doing so will amount to abuse and injustice. The court will rather construe the rules strictly to give effect to the rules.