IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
ANGLOGOLD ASHANTI (GH) LTD PER ITS MANAGING DIRECTOR OBUASI – ASHANTI - (Defendant/ Appellant)
CHARLES DAKORAH BAYELLAH AND 5 OTHERS - (Plaintiffs /Respondents)
DATE: 29TH JUNE, 2017
CIVIL APPEAL NO: H1/31/2017
JUDGES: 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
TORKORNOO (MRS), J.A.
On 27th October 2014, six named persons sued the Defendant/Appellant for the following reliefs:
1. A declaration that the Plaintiffs are entitled to the redundancy and/or retirement packages declared by the Defendant Company.
2. An order directing the Defendant Company to pay the Plaintiffs the entitled redundancy and/or retrenchment packages declared by the Defendant Company.
3. Interest on the said amount from the date due to the date of final payment.
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. 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.
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.
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
a) 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.
b) 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.
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.
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.
His third argument is that this application for joinder could not be equated with an application to amend where the Respondent is usually awarded costs because of the need to file an amendment of processes.
We disagree with the first argument and third arguments but agree with the second argument. We disagree with the first argument because a principle cannot be enunciated around parties being the only persons for or against whom costs can be awarded. No persons other than parties are involved in the payment or receipt of the costs in any proceedings conducted in any suit, and it is not surprising that Order 74 directs its edicts at parties. However, when third parties are brought into a proceeding by their own application or that of parties, the court is still at liberty to determine whether the nature of the proceeding or the conduct of the parties or those persons, require orders of costs. It is within this context that we disagree with the first submission of counsel for Appellant that to the extent that the persons who were joined to the application had not yet filed the Amended writ which would make them parties to the action, the court erred in awarding costs to them in this suit.
We also disagree with the third submission because an application for joinder, when granted, leads to the filing of amended processes, and so the argument that it cannot be equated to an application for amendment can only be an argument for argument sake. I think the only distinction between the two processes is that a person who applies for leave to amend his processes is already a party, while a person who applies to join a suit is yet to become a party. And this distinction brings no weight to resolving the issues this appeal raises. But as said earlier, we entirely agree with Appellant counsel’s submission that the order for costs was a wrong exercise of discretion and jurisdiction.
As is appreciated, every appeal is by way of rehearing of the proceeding in issue.
Rule 8(1) of CI 19 directs inter alia that
8. Notice and grounds of appeal
(1) An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal
Thus as well as considering the submissions of counsel, this allows the appellate court to conduct a rehearing of the case within the context of the grounds of appeal and fundamental issues of law in order to do substantial justice. In this appeal, and on a consideration of the facts and law, we are satisfied that the award of costs of GH¢1,000 each to the 22 persons who applied to join the action.
The rule of court regulating the award of costs is Order 74 of CI 47. I find relevant for resolving the issues raised in this appeal Sub rule (1), and portions of Sub rule (2) and Sub rule (5) of Order 74, and set out these relevant portions. All emphasis through underlining is mine.
Cost in the discretion of court
Sub rule 1.
(1) Subject to this order, the costs of and incidental to proceeding in the court shall be at the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid.
(2) In any case where the court considers fit to award costs to any party, the court may by order direct taxation of the costs of the party and payment or direct payment of the sum in lieu of taxed costs.
Assessment of costs by court
Sub rule 2.
(1) The amount of costs to be awarded shall be assessed by the court.
(3) Without prejudice to the powers and discretion of the court, an award of costs shall ordinarily be designed to:
(a) compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made: and
(b) provide reasonable remuneration for the lawyer of that party in respect of work done by the lawyer.
(4) In assessing the amount of costs to be awarded to any party, the court may have regard to:
(a) the amount of expenses, including travel expenses, reasonably incurred by that party or that party’s lawyer or both in relation to the proceedings;
(b) the amount of court fees paid by that party or that party’s lawyer in relation to the proceedings;
(c) the length and complexity of the proceedings;
(d) the conduct of the parties and their lawyers during the proceedings; and
(e) any previous order as to costs made in the proceedings.
When costs follow the event
Sub rule 5
(2) Where the court in the exercise of its discretion considers it fit to make an order as to the costs of incidental to any proceedings, the court shall, subject to this order, order the costs to follow the event, except where it appears to the court that in the circumstances of the case, some other order should be made as to the whole or any part of the costs.
(3) The costs of and occasioned by any amendment made without leave in the originating process or any pleading shall be borne be the party making the amendment, unless the court otherwise orders.
(4) the costs of and occasioned by any application to extend the time fixed by these rules, or any direction or order made under it for serving or filing any document or doing any other act shall be borne by the party making the application, unless the court otherwise orders.
(5) If a party on whom a notice to admit facts is served under order 23 refuses or neglects to admit the facts within seven days after the service on the party of the notice, or such longer time as may be allowed by the court, the costs of proving the facts shall be paid by the party, unless the court otherwise orders.
(6) If a party on whom a list of documents is served under order 21, or on whom a notice to admit documents is served under order 23 gives notice of non-admission of any of the documents in accordance with order 23, the cost of providing that document shall be paid by the party, unless the court otherwise orders.
An examination of these rules within Order 74 shows the following principles and philosophy behind the award of costs. The court carries the sole discretion of determining whether or not costs in any cause should be awarded. Sub rule (2) deals with the purpose of the award of costs so that the court can be guided in assessment of the quantum of costs to be paid. A review shows that costs are meant to compensate for actual court expenses incurred and the fees paid to a lawyer. But guidelines are added in the matter of fees and that is found in sub-rule 2 (4). The court is to consider the length and complexity of the matter and industry that was needed to resolve the issues in the application. Sub rule 2 (4) further provides for the court to award costs on the basis of the conduct of a party during the application. But what I see as particularly significant is for the award of costs to be reasonable and justifiable within the circumstances of the case on hand.
In Juxon-Smith v. KLM [2005-2006] SCGLR 438, the Supreme Court emphasized the need for the process of awarding costs to be conducted within the ambit of ‘reasonableness’ and in relation to the proceedings. Its holding (6) regarding the operation of Order 74 Rule 2 (4) (a), (b), and (c ) found in the head notes states that ‘the factors that might be taken into account in assessing costs were (a) the amount of expenses including travel expenses, reasonably incurred by that party or that party’s lawyer or both in relation to the proceedings; (b) the amount of court fees paid by that party or that party’s lawyer in relation to the proceedings; and (c ) the length and complexity of the proceeding. (emphasis mine)
So where in that case, the Appellant had paid high filing fees arising from his inappropriate assessment of his own case, the court upheld the decision of the Court of Appeal in not finding such costs appropriate.
Sub rule 5 throws more light on the party the rules of court expects to carry the burden of costs. This includes the party who initiates amendment without leave of court, a party who prays for extension of time, a party who fails to prove facts within 7 days after notice to do so, thereby compelling a further process, and a party whose refusal to admit documents forces the provision of those documents by the other party.
A simple evaluation of this litany which is in total sync with reasonableness and fairness, is that where costs follow an event during the proceedings, it should be the party who has occasioned the costs of the event who should pay the costs. And this clarification is what is most salient to the matter on appeal.
The applicants and persons affected by this appeal were the people who initiated the proceeding in issue. They were the ones who intruded into the action and disrupted its efficient and expeditious settlement. Indeed, it would seem that their counsel always knew that other parties should and would be added to the action after its commencement. He designated on the Writ and Statement of Claim that the Plaintiffs were ‘WORKERS OF ANGLOGOLD ASHANTI (GHANA) LIMITED, and the six gentlemen named as Plaintiffs. At the end of the name of the sixth Plaintiff, he placed the words ‘And Others’. It is not clear if learned counsel did not appreciate that unless persons are properly identified as parties to a suit, the designation ‘WORKERS OF ANGLOGOLD ASHANTI (GHANA) LIMITED’ and ‘and others’ had no import or weight in legal proceedings.
Thereafter, he filed an application on 26th January 2015 to amend the title of the case by adding the names of the 7th to 28th persons whose joinder sparked this appeal as the people he was referring to as ‘WORKERS OF ANGLOGOLD ASHANTI (GHANA) LIMITED’. We presume that that application was abandoned or rightly resisted and dismissed since parties cannot join an action by the amendment of title. The record of appeal bears no indication of what happened to that 26th January 2015 motion.
Unfortunately, he repeated this attempt to introduce these 22 persons as parties with another application ‘for an order amending the title of the writ of summons’ dated 15th April 2015. The supporting affidavit listed their names and indicated that they were the persons referred to as ‘WORKERS OF ANGLOGOLD ASHANTI (GHANA) LIMITED ‘. The application was rightly opposed and after adjournments and arguments, counsel for the Plaintiff/Respondents withdrew the motion.
It is after these applications, that Respondent counsel changed gear into this application for joinder. And even in this application, as rightly pointed out by Appellants who were Respondents to that application, the applicants failed to set out what their actual claims were, save to say that they were made redundant in the same exercise which led to the suit by the original Plaintiffs and wanted the packages claimed by the Plaintiffs. But a glance at the claims of the current Plaintiffs reveal a failure to state what the packages claimed are, though the third claim is for interest. Thus our humble view is that the present Appellant’s opposition to the application for joinder was not frivolous or vexatious. Beyond this, and as a function of rehearing, we also see that this application for joinder had another irregularity which could have landed it in the same ditch as the January and April 2015 motions that suffered still birth.
As stated earlier, the names of the applicants were not endorsed on the motion paper as the persons who had initiated the Motion. However, it is trite learning that only parties to an action may make applications to a court in that suit. If a person outside the suit – for whatever reason - finds it necessary to bring an application in a suit, they must be properly identified as applicants in the title of the case. Respondent counsel failed to do this on the Motion paper which led to the costs on appeal. Though affidavits are for the purpose of swearing to the veracity of facts, it is within the affidavit that Respondent counsel set out the names of the persons purporting to move the court to join them to the suit as Plaintiff. Fortunately, Order 81 also provides for the regularization of a misstep in procedure which is not challenged timeously, and so the current comment is not to spark any impotent controversy, but to underscore the evaluation that the opposition to the application for joinder which the persons affected by this appeal were awarded costs for, was totally warranted, and not at all vexatious or misguided.
What it means for a court to properly exercise discretion is established in law. In the seminal case of Sharpe v Wakefield cited by Appellant counsel and referred to supra, the House of Lords went on to add on page 179 of the report that the exercise of discretion is not to be ‘arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of the office ought to confine himself. ”
In TDC & Musah v. Atta Baffuor [2005-2006] SCGLR 121, and from pages 144 to 146, the Supreme Court quoted with approval from Lord Greene MR’s decision in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation  1 KB 223 which identified elements of what it means to exercise discretion judicially. This include a person entrusted with a discretion directing himself properly in law, calling his own attention to the matters which he is bound to consider, and excluding from his consideration matters which are irrelevant to what he has to consider. The court, speaking through Atuguba JSC, on a detailed consideration of the various dicta in Roberts v Hopwood 1925 All ER Rep 24, HL, summarized this landscape on page 142 to mean that discretion must be exercised bona fide, reasonably, and responsibly, having regard to the purpose for which the powers are expressly or by necessary implication given.
In applying these legal principles to the facts of this case, it is easy to see that the trial judge should have appreciated that the rules on costs directed that costs awarded must be reasonable and justifiable within the facts of every case. It is the person who caused expenses and delays through an application who should bear the costs of an application, and not the one who was at the receiving end of expenses and delays and improper issuing of court processes. The court was also bound to have considered that if any opposition, delay or costs were occasioned in the many efforts by the applicants to join the action as parties, the cause for that opposition, delay or costs lay with the applicants, and not the Appellant herein. Failure to appreciate and consider these factors in the award of the costs appealed against made the order unreasonable and unjust
In Acquah v. Oman Ghana Trust Holdings Ltd [1984-86] 1 GLR 157, the court awarded costs of GH¢36,000 in a landlord and tenant suit which was heard over a four day period. The Court of Appeal examined this quantum within the context of reasonableness – considering the type of case and the fact that it did not involve any complex issues of law or any time consuming research. The court held that the costs were so manifestly excessive that they could only be a most arbitrary exercise of judicial discretion and ought to be set aside. It is in the same vein that the trial judge in the case on appeal should have appreciated that ordering the Defendant Appellant to pay GH¢22,000 as costs for applicants who had one lawyer and relied on the one process filed by that lawyer was manifestly excessive, even if the award of costs in itself was reasonable and justifiable, which we do not believe to be so.
It is in the light of the above factors that the appeal is upheld. The order of costs is wholly set aside.
GERTRUDE TORKORNOO (MRS.)
(JUSTICE OF APPEAL)
AYEBI I AGREE E. K. AYEBI
(JUSTICE OF APPEAL)
DOMAKYAAREH I ALSO AGREE A. M. DOMAKYAAREH (MRS.)
(JUSTICE OF APPEAL)