IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KOFORIDUA - A.D 2017
EDWARD ABANG MARLEY - (Plaintiff/Appellant)
EBO JUNIOR, MAWU DZAKE, TEACHER ADZRAKU ALHAJI AND MADAM AMERLEY - (Defendants/Respondents)
DATE: 12TH JULY, 2017
SUIT NO: CI/32/2015
JUDGES: ADJEI J.A, SOWAH J.A, MENSAH J.A
WISDOM ANTONIO ESQ. FOR THE PLAINTIFF/APPELLANT
SETH WIAFE DANKWA ESQ. FOR THE DEFENDNAT/RESPONDENT
This interlocutory appeal was filed against the ruling of the High Court Koforidua, delivered on 8th July, 2016 which struck out the plaintiff’s suit as constituting an abuse of the process of the Court on the ground that there was an identical suit pending in the same High Court.
The Plaintiff/Appellant who will be referred to in this appeal as the Plaintiff, dissatisfied with the ruling of the trial High Court delivered on 8th July,2016 filed an appeal against same to this Court.
The Plaintiff filed five grounds of appeal which are as follows:
“a. That the trial High Court judge erred in law which occasioned a miscarriage of justice to the Plaintiff/Appellant when she held that the correct procedure the Plaintiff/Appellant should have adopted in this suit was to seek a renewal of an expired writ of summons failed in suit no. C1/81/2013 and not discontinuance of the said Suit No. C1/81/2013 before filing Suit No. C1/32/2015.
b. That the trial High Court Judge erred in law which occasioned a miscarriage of justice to the Plaintiff/Appellant when she filed to appreciate the position of the law that the Defendants/Respondents if mindful should have properly objected to the filing of Suit No. C1/32/2015 by way of an application before filing their defences and it is not proper to raise an objection to the suit in their Witness Statements after the matter has proceeded to Case Management Conference stage.
c. That the trial High Court Judge erred in law which occasioned a miscarriage of justice to the Plaintiff/Appellant when she held that Suit No. C1/81/2013 which was discontinued against 5 Defendants/Respondents was pending against them.
d. That the trial High Court Judge erred in law which occasioned a miscarriage of justice to the Plaintiff/Appellant when she failed or refused to appreciate the fact that it was the 6th Defendant/Respondent who applied on his own volition to join Suit No. C1/32/2015 as the 6th Defendant/Respondent.
e. That the trial High Court Judge erred in law which occasioned a miscarriage of justice to the Plaintiff/Appellant when she failed to appreciate the position of the law that an application to set aside any proceeding for any irregularity shall not be allowed unless it is made within the reasonable time and the party applying has not taken any fresh step after the knowledge of the irregularity”.
We shall address ground (c) of the appeal as it will dispose off the entire appeal. The basis for the trial High Court judge’s ruling was grounded on the fact that there was a suit pending in the High Court involving the same subject matter, the plaintiff and the 6th defendant herein and thus it constituted an abuse of the process of the Court for the Plaintiff to institute the suit which has culminated in this appeal. The trial High Court Judge was of the opinion that once a matter involving the same subject matter and the same parties or where one of the defendants in the first suit is also a party in the second suit, the second suit should be dismissed for constituting an abuse of the process of the Court. To buttress the Judge’s position we shall refer to page 127 of the record of appeal where she held thus:
“However, in view of my earlier finding that if the two suits are allowed to run side by side, the outcome of one might render the outcome of the other absurd, that public policy demands that litigation should not drag and the plaintiff’s actions amount to an abuse of the Court process, the application of Order 81 rule 2 (2) will lead to an absurdity in this suit, an intention obviously not intended by the framers of the rules”.
From the above holding by the judge, it is not strange that she dismissed the second suit as constituting an abuse of the process of the court.
However, the statement by the trial High Court Judge regarding the institution of two or more suits by the same parties with the same subject does not make the subsequent suits an abuse of the process of the Court so as to clothe the court with jurisdiction to strike out the subsequent suits without giving the Plaintiff the opportunity to choose which of the suits he would like to proceed with, and which one to be struck out by the Court.
The law generally is that where a Plaintiff sues a Defendant on a subject matter and sues the defendant again on the same subject matter, the second proceeding is prima facie vexatious but does not constitute an abuse of the process of the court. Where the two suits are in different courts such as a High Court and a Circuit Court, both suits may go on concurrently unless the defendant applies to one of the Courts to stay proceedings pending the determination of the other and it is granted. Where no application is made to one of the courts to stay its proceedings or where the application made for that purpose is refused, the two cases may be heard and the victorious party in the suit in which judgment would be rendered first, may use that judgment as an estoppel, provided the party pleaded the existence of that suit in the other pleadings or the party applies for an amendment to introduce the existence of that suit and the judgment rendered therein.
On the other hand, where both suits are in the same Court such as in the High Court it is immaterial whether both suits are before the same judge or not. A party may apply to the Court(s) to put the Plaintiff to an election after which the Court(s) will stay the subsequent suits to abide by the one chosen by the Plaintiff to be heard or the parties may agree that the other suit be dismissed.
The principle of having two or more suits filed by one plaintiff against the same defendant in the same court being the High Court or the Circuit Court whether before the same judge or not is referred to as lis alibi pendens. In the case of McHenry v Lewis (1882) 22ChD 397 at 398 the Court of Appeal at the headnotes discussed lis alibi pendens thus:
“When a Plaintiff sues a defendant for the same matter in two courts in this country, such a proceeding is prima facie vexatious and the court will generally, as of course, put the plaintiff to his election and stay one of the suit…”.
The phrase “two courts in this country” is referred to one court such as the High Court and it does not matter whether the High Court is presided over by the same Judge or by two different judges, or in one region or two different regions provided they are in the same country such as Ghana and the reliefs sought in both cases are the same or identical. The legal effect of lis alibi pendens was discussed by the Supreme court in the case of New Patriotic Party and Peoples Convention Party(Applicants); Tehn-Addy v Electoral Commission [1996-97] SCGLR 216 at page 217-218 thus:
“by this principle, the suit must be between two parties in one court in respect of a given matter and one of the parties goes to another court within the same jurisdiction seeking the same relief. In such a situation, either party may be put to his election as to the forum in which he would like to pursue his claim. In which case the other suit may be dismissed or stayed pending the outcome of the other”.
The above case refers to the second scenario where a plaintiff sues a defendant in one court such as the High Court and the defendant in the case also sues the plaintiff in the first suit in the High Court, any of the parties may bring an action for the parties to choose one of the cases to be heard and the one to be stayed to abide by the outcome of the chosen suit or the one to be dismissed. In that case where the parties do not agree on which one to be heard and the one to be stayed or dismissed, the Court may choose one of the cases for the parties in order to avoid vexatious suits.
In the case of In re Paramount Stool of Bamiankor; Effiah IV another v Taiba II & others SCGLR 37 headnote 7 at page 41 the Supreme Court explained the lis alibi pendeus principle thus:
“In a situation where a Plaintiff had sued a defendant in the same court or forum over the same cause of action, the practice and procedure had been to put the party suing to his election to which forum to pursue his remedy and if for any one reason or the other, that was not feasible, to order a stay of proceedings in either suit; it was not to strike out one suit completely without putting the party to his election”.
The trial High Court Judge suo motu raised the issue of two suits over the same cause of action at the case management stage ithout giving the plaintiff the opportunity to decide on which of the suits to choose and the one to be stayed or dismissed and this action was made contrary to law and procedure. The practice has been that a person seeking to benefit from the lis alibi pensens must bring an application to inform the court about the pendency of two suits over the same cause of action before two courts but within one level of the court such as the High Court or Circuit Courts and to ask the court to put the plaintiff to his election. Where one of the cases is in the High Court and the other one in the Circuit Court, the party must pray one of the Courts to stay proceedings in the suit before the…. On the other hand, where both suits were filed by different parties, in one level of court, one of the parties may apply to both courts for the suit to be consolidated after which the Chief justice may determine which court to hear the suit if they were before two different judges. In the latter scenario, it is normally advisable for one of the parties to apply for consideration. The suits are before Different judges in the same court, it may be consolidated upon an application by one the parties and subsequently assigned to one of the judges to hear by the Chief Justice. The parties must be given a hearing on the matter and thereafter given the chance to choose one to be heard. The courts do not have jurisdiction to strike out one of the cases without giving the party who filed it the opportunity to choose the one to proceed with and the one to stay proceedings or to be dismissed.
The trial High Court judge adopted a wrong procedure by not giving the plaintiff a hearing on the matter and the opportunity to decide on which one of the cases to be heard and the one to be stayed or dismissed. The power to stay the other suit or to dismiss it is the choice of the person who filed the suit and not the court. The appeal succeeds on ground (c) of the appeal. The other grounds are not material as lis alibi pendens may be raised at anytime and therefore not time bound. We strike out the other grounds of appeal as being irrelevant . We hereby restore the Plaintiff’s suit which was struck out by the trial High Court Judge on 8th July, 2016 as constituting an abuse of the process of the court to the cause list.