IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
OPARE YEBOAH AND 7 OTHERS - (Plaintiffs/Appellants)
BARCLAYS BANK OF GHANA LTD (Defendant/Respondet)
DATE: 8 TH OCTOBER 2018
CIVIL APPEAL NO: H1/70/2018
JUDGES: E. K. AYEBI JA (PRESIDING), DENNIS ADJEI JA, S. G. SUURBAAREH JA
MR. THOMAS WARD-BREW FOR PLAINTIFFS/APPELLANTS
MR. CHARLES HAYIBOR FOR DEFENDANT/RESPONDENT
The remote cause of this suit can be traced to the events of 14th November, 2007. The plaintiffs/appellants (hereinafter called plaintiffs) were local union executives of the Industrial and Commercial Workers Union of the staff of the defendant/respondent (hereinafter called defendant). On 14th November 2017, the plaintiffs/appellants were alleged to have declared, instigated, incited, led or supported others to embark on an illegal strike in contravention of the Labour Act, 2003 (Act 651) and the Collective Bargaining Agreement (CBA) between the defendant and its employees. For the alleged contravention, the defendant on 11th January 2008, served each of the plaintiffs notice of its intention to dismiss them. Accordingly, pursuant to Article 17 of the CBA, the defendant summarily dismissed each of the plaintiffs on 26th February, 2008.
The plaintiffs denied the charges leveled against them by the defendant. It was the case of the plaintiffs that their dismissal was a victimization for giving support and or participating in a suit against the defendant at the High Court. Therefore in Suit No. 36/2008, the plaintiffs led by their mother union, the Industrial and Commercial Workers Union (ICU) sued the defendant for:
(a) A declaration that on a true and proper interpretation of Articles 15 and 17 of the Collective Bargaining Agreement between 9th plaintiff union and the defendant bank, the letters issued to 1st to 8th plaintiffs on 11th January 2008 dated the same date, by the defendant bank purportedly under Article 17 of the CBA purportedly summarily dismissing 1st to 8th plaintiffs from their employment with defendant bank are illegal as being in contravention of the said Articles 15 and 17 of the CBA and the Labour Act, 2003 (Act 651) and are null and void and consequently an order quashing the said letters.
(b) A declaration that defendant’s action is arbitrary, capricious and a victimization of the 1st to 8th plaintiffs as trade union leaders and further that the defendant’s conduct is unconstitutional and illegal as being in contravention of Articles 23 and section 63 of the Labour Act, 2003 (Act 651).
(c) Damages for breach of provisions of the Collective Bargaining Agreement.
(d) A perpetual injunction restraining the defendant bank from carrying out any acts of victimization of the 1st to 8th plaintiffs duties and performance of their functions as such trade union leaders or as employees of defendant bank.
After a full trial, the High Court in a reasoned judgment dismissed the claims of the plaintiffs. In the concluding paragraph of the judgment, the trial judge observed as follows:
“The plaintiffs before me were pursuing their legitimate function but in my view, adopted the wrong procedure and wrong attitude. Unfortunately, their mother union which should be the mollifying factor lost its balance and as a result the tension, stress, embarrassment and worries that attended the trial. I am dismissing the claims of the plaintiffs with the reasons provided in the judgment but it should not be too much, for the sake of industrial harmony to reconsider re-engaging the plaintiffs for the negotiations to continue. For as the saying goes, experience teaches better”.
Dissatisfied with this judgment of the High Court, plaintiffs appealed to this court but lost. Their further appeal to the Supreme Court was also dismissed. The then Honourable Chief Justice who read the unanimous opinion of the court echoed the appeal made by the trial judge urging the respondent (i.e. the defendant) to keep the door of negotiations open. That judgment was in 2010 and was reported in the 2011 edition of the Supreme Court of Ghana Law Report.
However in 2013, the same plaintiffs minus their mother union launched this action which is the subject of this appeal against the defendant for reliefs not different in substance from those claimed in the 2008 suit which was dismissed by all three superior courts of judicature. They are:
(i) Declaration that the plaintiffs here were wrongly dismissed contrary to the provision of their CBA in that the Union activities of plaintiffs were duly sanctioned and authorized by the Management of the defendant bank as part of its policy of engagement with the local unions of the Bank.
(ii) Declaration that the basis of the earlier dismissals which went to court was for reinstatement only and did not include access of plaintiffs to other entitlements and benefits protected under the provisions of the CBA.
(iii) Declaration that dismissals of plaintiffs were wrongful and unfair because all the union activities plaintiffs engaged in are done lawfully in the full knowledge of Management.
(iv) Declaration that the instructions of Management embodied in their letter dated 13/11/07 which were meant to be delivered to plaintiffs before the 14/11/07 rather came to hand after the event the latter sought to present (sic). So plaintiffs were not to be blamed in any way.
(v) Declaration that plaintiffs herein are entitled to payment entitlements due to plaintiffs as stated in the following spreadsheet (spreadsheet attached).
(vi) Placing members who were above 45 years at the time of termination on 11/1/08 on voluntary retirement package which falls under Article 30 of the CBA.
(vii) Interest on all outstanding claims at the prevailing Bank rate up to the date of payment.
(viii) Damages for breach of contract of employment.
(ix) Damages for wrongful dismissal.
In the statement of claim in support of the above reliefs, plaintiffs admitted that they were dismissed by the defendant in 2008. They also admitted that they filed a suit in the High Court and sought for reinstatement. The High Court in dismissing the suit advised the parties to go back to the negotiating table. According to them, it is not every summary dismissal that deprives an employee of his earned entitlements. And on the peculiar facts or circumstance of their case, they were not dismissed for any breach of duty in terms of their contract of employment with the defendant but that they were dismissed for engaging in union activities which defendant had not only approved but sponsored. The plaintiffs stated that although defendant had the right to dismiss them, they cannot be denied their terminal and accumulated benefits, hence the suit to fight for their entitlements and damages for breach of contract. The plaintiffs also raised other issues in the statement of claim which are not in accord with the reliefs sought.
In its statement of defence, defendant denied that the relief plaintiffs sought in the earlier suit was for reinstatement. Rather the plaintiffs sought declaration that their summary dismissal was illegal, arbitrary, capricious and amounted to victimization, damages for breach of the CBA, injunction and cost. But the suit which travelled to the Supreme Court was dismissed because it was determined that the defendant lawfully dismissed the plaintiffs. Plaintiffs having been found to have been lawfully dismissed, are not entitled to any payment whatsoever from the defendant. Similarly, defendant averred that the advise by the High Court that the parties should re-open negotiation between them is not an enforceable order in law.
In denying the claims of the plaintiffs and statement of claim in support, the defendant asserted that the claims having been dismissed in the first suit, plaintiffs are estopped per rem judicatam from raising those same issues and further that by raising similar or additional issues arising from their dismissal, are engaged in piecemeal litigation and that the entire action ought to be struck out. The defendant then gave notice that the defence of estoppel per rem judicatam and engagement in piecemeal litigation be set down for preliminary legal arguments.
To this statement of defence, plaintiffs filed a reply and set out fifteen (15) issues for determination of the suit. Defendant also filed two additional issues based on the defence of estoppel per rem judicatam and piecemeal litigation and prayed the court to set them down for preliminary legal arguments pursuant to Order 33 rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The said rule states that:
“The court may order any question or issue arising in any cause or matter whether of fact or law, or partly of fact and partly of law, and raised by the pleadings to be tried before, at or after the trial of the cause or matter and may give directions as to the manner in which the question or issue shall be stated”.
For whatever reason the plaintiffs filed eleven (11) more additional issues, most of them based on the advise or suggestion of the trial judge in the earlier case that the parties should consider re-opening the negotiation which broke down. From the record of appeal, the trial judge found merit in the prayer of the defendant that the two additional issues it raised be set down for preliminary legal arguments and directed the parties to file their submissions and they did.
The trial judge in her ruling, upheld the submissions of the defendant based on two additional issues, struck out the claim of the plaintiffs and dismissed the action as a whole. It is against this ruling that the plaintiffs have filed the instant appeal.
As was in the case of the 42 paragraphs statement of claim, and a total of twenty-six (26) issues set out for determination, counsel for the plaintiffs filed sixteen (16) grounds of appeal. The said grounds of appeal are at pages 181 to 184 of the record of appeal. The argumentative and narrative nature of the said grounds of did not escape the attention and comment by counsel for the defendant. For rule 8(5) of C.I. 19 states that:
“The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively”.
Similarly, contrary to the requirement in rule 20(1) of C.I. 19 that “written submissions based on the grounds of appeal as set out in the notice of appeal” shall be filed by the appellant, the plaintiffs as the appellants herein filed a “written address”.
As regards the grounds of appeal as formulated, counsel for the defendant urged us to struck them out as the Supreme Court did in West Laurel Co. Ltd. vrs Agricultural Development Bank [2007/08] SCGLR 556 when it found that grounds (2) and (4) of the appeal violated the similar provision of the Supreme Court Rules, 1996, C.I. 16, that they were both argumentative and narrative. Counsel also relied on rule 8(6) of C.I. 19 to invite us to strike out all the grounds of appeal, except ground (12) which is to the effect that “the judgment is against the weight of evidence”. The said rule 8(6) of C.I. 19 provides that:
“No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent”.
In reply, the counsel for plaintiffs admitted non-compliance with the Rules of Court as pointed by counsel for the defendant. Counsel stated that to err is human and to forgive is divine. But on the formulation of the grounds, he argued that it is a matter of individual style and what is important is that the ground should be able to capture what the appellant saw wrong with the judgment. According to counsel for the plaintiffs, despite the wrong heading of the written submission, counsel for the defendant acknowledged it as such and responded to it adequately. He held the view that in order to do substantial justice in the matter, the court should not dwell on mere technicality. Rather than focus on form, the court should incline itself to the substance of the grounds of appeal and the address.
It is said in Abdilmasah vrs Amarh  2 GLR 414 that nobody has a vested right in procedure and modern notions of justice require that the court should do substantial justice between the parties unhampered by technical procedural rules. This is so because as stated in Halle & Sons, SA vrs Bank of Ghana & Or.  1 SCGLR 378, the rules are handmaid rather than a mistress. However, it is common knowledge that an appeal is a creature of statute. No court has inherent right to hear an appeal. Both the right to file an appeal and the power of the court to hear an appeal are creatures of statute/law – see Nye vrs Nye  GLR 76. That is why the manner or form in which an appeal is filed and argued or presented and then heard by the court are all regulated by law, in this case, the Court of Appeal Rules, 1997 (C.I. 19) as amended. It cannot be a matter of individual style.
The Rules of Court it is said in Patrick Ankomah vrs Hannah Buckman, Civil Appeal No.
J4/43/2013 delivered on 26th February 2014, are not ornamental pieces. They are meant to be observed. In other words, the rules are not triflings in the judicial process for one to manipulate at his convenience and to the hardship of the other. They are essential prerequisites in the administration of justice without which there can be no sanity in the proceedings of the courts – see Agyekum & Alhassan vrs Amadu Baba & Or. [2003/04] SCGLR 60.
Thus the Rules of Court when complied with ensure fairness in the adjudicatory process to both parties. The courts therefore frown upon any attempt to circumvent the procedure laid down in the Rules. It is for the same reason of fairness that the courts, on case by case basis, are flexible in the application of the Rules of court. In the instant appeal, despite the plea for forgiveness by counsel for the plaintiffs, no court which appreciates the purpose and importance of the rules will overlook the non-compliance with the Rules of Court complained about. This is because the non-compliance is pervasive not only in the formulation of the ground of appeal but also in the written submission on the said grounds of appeal. For example ground (3) of the appeal reads:
“That the honourable court erred when it failed to react to the unimpeachable relevant and provocative contention backed by written documentary evidence that their activities as labour union of the bank employees were authorized by the management and that they did nothing which was contrary to the provisions of the Collective Bargaining Agreement (CBA) and that their dismissal was unjustified”
One may ask what is really the gravemen of the complaint in this ground of appeal? Is it the failure of the court to hold or consider the documentary evidence that union activities of the plaintiffs were authorized by the defendant or that the union activities of the plaintiffs did not violate the CBA or that the dismissal of the plaintiffs was not justified. It is a clear case of non-compliance with basic rules of court on appeals and it is so pervasive of all the grounds, except ground (12) that, the non-compliance qualifies as a deliberate inadvertence. Based on the above observation, we unhesitatingly uphold the submission of counsel for the defendant that, in exception of ground (12), pursuant to rule 8(5) of C.I. 19, all the other grounds of appeal are struck out as they are inadmissible. The written submission headed “written address” is however amended to read “written submission” in compliance with the Rules of Court.
What this means is that the entire appeal will be determined on the basis of ground (12) which is to the effect that the ruling of the trial court is against the weight of evidence. We are fortified in this approach because for the plaintiffs argued the grounds of appeal not seriatim but generally. We also note that the trial judge ruled on two issues as argued in a preliminary legal arguments – namely whether or not in view of the dismissal plaintiffs claim in suit No. 36/2008 by the Supreme Court, the present suit is caught by the doctrine of res judicata and whether or not plaintiffs are in this action engaged in piecemeal litigation. In that case, as advised in Obeng vrs Assemblies of God Church Ghana  SCGLR 300, the grounds of appeal must relate to the facts and the law on those issues the ruling determined.
But contrary to that advice which in fact is the practice in the appellate court, in exception of grounds (5), (7) and (16) which alluded to the misuse or misapplication of the doctrine of res judicata, grounds (4), (8), (9), (10) and (14) dwelt on the suggestion or recommendation endorsed by the Supreme Court that the defendant should keep the doors of negotiation open; while grounds (2), (6) and 15) relate to the plaintiffs new categorization of the immediate cause of their dismissal as a trade union matter as opposed to a breach of their contract of employment under the CBA.
Again as it is the practice and endorsed in the Obeng vrs Assemblies of God Church, Ghana case (supra), the written submission should not deviate from the grounds of appeal. The written submission should in essence focus on the grounds of appeal in relation to the facts and the law determined in the judgment appealed against. But that was not the case in the plaintiff’s written submission. As observed by counsel for defendant, and rightly so, the written submission was more or less a commentary and criticism of suit No. 36/2008 which was dismissed by all the superior courts of the land. Additional to that, plaintiffs relied strongly on the suggestion or recommendation that the defendant should consider re-opening negotiation with the plaintiffs to prop up a case that the earlier suit was not conclusive. They also contended strongly that their roles as employees strictly speaking, should have been divorced from their role as union leaders in the assessment of their conduct leading to their dismissal.
These new found grounds need to be dismissed immediately as most untenable. I note that the plaintiffs did not endorse their writ of summons with any relief in relation to this suggestion or recommendation that the defendant should open its doors for further negotiation with the plaintiffs. That suggestion or recommendation did not arise from the determination of any collateral issue either. That recommendation was not the decision of the three courts. It was an orbiter dictum. It was not an order of the court which carried with it a command or injunction. By trying to catapult the recommendation into a binding order of the court, the plaintiffs are trying to vary the judgment which went against them. They are estopped.
Under the CBA of the defendant’s staff, Articles 39 and 40 permit union activities. Both the staff and defendant also agreed in Article 44 to abide by the provisions of the Labour Act, 2003 (Act 651). Further in Article 45, the defendant has the right to exercise all prerogative, powers and authority and customary functions pertaining to the conduct of its business. Similarly, the plaintiffs (union) had the right to exercise its functions and conduct its business with the defendant in keeping with recognized Trade Union principles and practice.
Logically therefore, the plaintiffs were first and foremost employees of the defendant before they were elected as executives of the local union of the ICU. The evidence the courts accepted in suit No. 36/2008 is that despite the warning to the plaintiffs by the defendants not to hold the intended meeting during working hours, and on the defendant’s premises, plaintiffs ignored the warning. As their employer, defendant dismissed them. The plaintiffs clearly disobeyed the legitimate orders or warning of defendant their employer. Note the trial judge observed in Suit No. 36/2008 that the plaintiffs used the wrong approach in pursuing a genuine cause/grievance they had against the defendant. It is for this reason that plaintiffs’ dismissal was held lawful. The fact that they were union leaders placed them in no special category in their dealings with the defendant, their employer.
Thus far, I have demonstrated that the conduct of this appeal has woefully fallen short of the Rules of Court on appeals. Procedurally therefore this appeal cannot succeed.
That apart, the more over-riding reason why the appeal cannot succeed is that, it has no merit in substance at all as I demonstrate presently. To repeat, the law identified and applied by the trial court to the facts of the case is res judicata and piecemeal litigation. The plaintiffs in their pleadings and submission admitted that they brought an action for wrongful dismissal and reinstatement respectively. The action was dismissed by the trial High Court and affirmed by both the Court of Appeal and the Supreme Court. They also admitted that they did not in that action claim their entitlements due them as workers of defendant. These are the two issues which formed the basis of the judgment plaintiffs appealed against.
The plaintiffs having faulted the trial judge that the ruling is against the weight of evidence, it was the duty of counsel for the plaintiffs to demonstrate where the trial court had failed to consider the case of the plaintiffs and thus denying them justice – see Kakraba vrs Kwesi Bo  2 SCGLR 824. It is observed from the submission for the plaintiffs that despite the facts disclosed on the pleadings and the applicable law applied in the ruling, counsel side stepped them and rather set out his own issues based on trade unionism and an orbiter dictum of the trial court. In the premises, the plaintiffs’ counsel failed to urge on us which law or practice in trade unionism or in the CBA, defendant violated when it dismissed the plaintiffs for engaging in or leading an illegal strike. Further, plaintiffs’ counsel failed to quote which part of the CBA obliged the defendant to pay all the entitlements due to a worker who has been summarily dismissed as if they were workers who retired voluntarily or at age 60.
Now the doctrine of estoppel per rem judicatam also known as estoppel by record as pleaded by the defendant is trite. It is of two kinds, cause of action estoppel and issue estoppel. In this suit it is cause of action estoppel which is at the fore. But on perusal of reliefs endorsed on the writ of summons in Suit No. 36/2008 and the present suit, issue estoppel is also called into question. In a cause of action estoppel, the parties and cause of action in both the previous and current suit must be the same or identical. In this matter, the cause of action and the parties, except for the absence of the 9th plaintiff in the previous suit are the same. Upon scrutiny, the doctrine is applicable in this suit because the judgment was delivered by three courts of competent jurisdiction with finality by the Supreme Court, the highest court in our judicial hierarchy.
There are a plethora of decided cases which expoused the doctrine and the rationale for it.
In In Re Mensah (d’ced); Mensah & Sey vrs Intercontinental Bank (Gh) Ltd.  SCGLR 118, at holding (1): the court stated:
“Under the rule of estoppel per rem judicatam, where a final decision had been pronounced by a judicial tribunal of competent jurisdiction, over the parties to and the subject-matter of the litigation, any party or privy to such litigation, as against any other party or party thereto, would be estopped in any subsequent litigation from disputing or questioning such decision on the merits whether it had been used as the foundation of an action in which both parties had been heard”.
The court continued that the rule does also applies to judgments obtained by default of either party or even in interlocutory matters provided identical issue(s) arising in the second action was or were decided directly in the first action between the same parties.
On the rationale for the rule in particular, I found the dictum of Shaw LJ in Hoystead vrs Commissioner of Taxation  AC 155 cited with approval by Kingdon CJ in the West African Court of Appeal case Chief Winoko Ekpe vrs Head Chief Esin Antai (aka Ekpe vrs Antai)  10 WACA 19 very apt. It states:
“In the opinion of their Lordships it is settled first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started with a view to obtaining another judgment upon a different assumption of fact. Secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of the fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except where legal ingenuity is exhausted. It is a principle of law that this cannot be permitted and there is abundant authority reiterating that principle. Thirdly, the same principle – namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also, a defendant is bound by the judgment although it may be true enough that the subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs”.
The learned judge then cited the dictum of Wigram V.C. in Henderson vrs Henderson  3 Hare 114 and continued as follows:
“I believe I state the rule of the court correctly when I say that where a given matter becomes the subject of litigation in and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of the matter which might have been brought forward as part of the subject of contest, but which was not brought forward, only because they have from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies except in special cases, not only to the point upon which the court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence, might have brought forward at the time. This authority has been frequently referred to and followed and is settled law”.
In the previous suit, the plaintiffs sought a declaration that their summary dismissal by the defendant was in contravention of the provisions of their CBA and the Labour Act, 2003 (Act 651) and is therefore null and void. They also asked the court to declare that their dismissal was in contravention of Article 23 of the 1992 Constitution and section 63 of the Labour Act and is therefore unconstitutional and illegal. They also asked for consequential relief of damages for breach of the CBA. In substance, what those reliefs asked for is a declaration that the dismissal of the plaintiffs by the defendant was unlawful. But the trial court and the appellate court held otherwise and dismissed the action of the plaintiffs. In the current suit, it is the same reliefs differently worded, which plaintiffs endorsed on the writ of summons. The trial judge in the current suit, we hold, correctly applied the rule on estoppel and dismissed the suit.
It is also evident in the current suit in reliefs (e) especially and (f) that plaintiffs are engaged in piecemeal litigation. Piecemeal litigation which the doctrine of estoppel per rem judicatam recognizes and frowns upon from the judicial dicta is an abuse of the judicial process as well. As stated by the plaintiffs, they brought the current suit to claim purposely their entitlements as staff of the defendant because they did not claim it in the previous suit. Since the claim of the plaintiffs in the previous was for a declaration that their dismissal was wrongful, the relief for their entitlements was available and known to them at the time they filed the previous suit.
The rule on piecemeal litigation is borne out of the dictum of Wigram V.C. I have quoted in Henderson vrs Henderson (supra). And the general rule is that each party in an action before the court must produce all the relevant and material evidence in support of his cause of action. The court will not permit a party to produce his evidence and for that matter his claim, piecemeal in a series of actions. Litigation must have an end for which reason the defendant should not be vexed twice or more – see Karikari vrs Wiafe [1982/83] 2 GLR 864. There are exceptions to the rule however.
In Taylor vrs Lawrence  2 All ER 353, CA, Lord Woolf CJ stated the principle and the exceptions to it. In holding (1) at page 358, he observed that:
“The rule in Ladd vrs Marshall is an example of a fundamental principle of our common law – that the outcome of litigation should be final. Where an issue has been determined by a decision of the court that decision should definitively determine the issue as between those who were party to the litigation. Furthermore, parties who are involved in litigation are expected to put before the court all the issues relevant to that litigation. If they do not, they will not normally be permitted to have a second bite at the cherry – (see Henderson vrs Henderson  3 Hare 100; [1843-60] All ER Report 378). The reasons for the general approach is vigorously proclaimed by Lord Wilberforce and Lord Simons of Glaisdale in the Ampthill Peerage Case  2 All ER 411,  A.C. 547. Both statements deserve the most careful attention. However for reasons of economy we will cite only Lord Wilberforce who presided, but we give reference to Lord Simon’s speech  2 All ER 411 at 423 to 424 …
Lord Wilberforce said:
English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limit be placed on the right of citizens to open or reopen disputes. The principle which we find in the (Legitimacy Declaration Act, 1858) is the same principle as that which requires judgments in courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognizes, be imperfect, that law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows and we all know, that sometimes fresh material may be found, which perhaps may lead to a different result, but in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth.
That may be, these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insist on finality. For a policy of closure to be compatible with justice, it must be added with safe guards. So the law allows appeal; so the law exceptionally allows appeals out of time; so the law exceptionally allows judgments to be attacked on the ground of fraud; so limitation periods may, exceptionally be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved”.
Flowing from the above statement, the current action of the plaintiffs which is founded on their dismissal in 2008, is not justified under any of the exceptions listed above. The current action claiming entitlements arising from the same cause of action as in the previous suit is at best an afterthought. But as I have demonstrated, the claim for entitlements is not even tenable under any law let alone the CBA. In Ampah vrs Prah [1995/96] 1 GLR 201, this court demonstrated an instance in which a party can litigate piecemeal, or gamble. It is that where there were distinct and separate causes of action, a plaintiff could not be prevented from litigating piecemeal in respect of the different causes of action. But where there is only one cause of action open to a party with different reliefs (as in the instant case) that, if the party opted for only one relief and a judicial decision was given on that relief, the party could not go and claim another relief in respect of the same cause of action even though he could have claimed both reliefs in the earlier proceedings. This is the bane of plaintiff’s claim for entitlement of benefits in this current action vis-à-vis the reliefs claimed in the previous action.
Over and above, the plaintiff first and foremost claimed the same major reliefs they claimed in the previous suit in this current suit. This repetition of the same reliefs clearly renders the plaintiffs’ action an abuse of the court process. And as stated in Naos Holding Inc. vrs Ghana Commercial Bank  1 SCGLR 492 per Dotse JSC:
“This court must deprecate and frown upon the conduct of the plaintiff company in its bid to use the judicial process to perpetually keep aflame in our law courts, matters whose flames had already been put out by previous litigation to finality. This means that the court must not, on the flimsiest of reasons, reopen any matter that has been finally put to rest in a judicial proceeding to which there has been no appeal or to which there can be no appeal such as the decision by the Supreme Court in the earlier proceedings”.
After the Supreme Court decision in the earlier suit based on the same cause of action between the same parties, what else does the plaintiffs want by returning to the High Court? This current action is not only caught by the doctrine of estoppel per rem judicatam but also an abuse of the court process. Accordingly, we affirm the ruling of the trial High Court and dismiss the appeal.
E. K. AYEBI
(JUSTICE OF APPEAL)
DENNIS ADJEI I agree DENNIS ADJEI
(JUSTICE OF APPEAL)
S. G. SUURBAAREH I also agree S. G.SUURBAAREH
(JUSTICE OF APPEAL)