IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
KWADWO DANKWA & ORS - (Plaintiff)
ANGLOGOLD ASHANTI LTD - (Defendant)
DATE: 12TH APRIL, 2017
CIVIL APPEAL NO: H1/33/2013
JUDGES: AYEBI J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J. A.
COUNSEL FOR PLAINTIFFS/APPELLANTS – KWAME ASARE BEDIAKO
COUNSEL FOR DEFENDANT/RESPONDENT – KIZITO BEYUO
TORKORNOO (MRS), J.A.
This appeal has much to teach us about the importance of using the properprocedure when cases are presented in court. Order 2 Rule 2 of the High Court (Civil Procedure) Rules 2004 CI 47 directs that all actions must be commenced by Writ of Summons. It reads:
Commencement of proceedings
2. Subject to any existing enactment to the contrary, all civil proceedings shall be commenced by the filing of a writ of summons.
Order 19 rule 1 (2) also provides that every application in pending proceedings shall be made by motion. The exception to and fusion of these two modes of proceeding is created in Order 19 rule 1 (2) which provides that:
(2) Proceedings by which an application is to be made to the court or a judge of the court under any enactment shall be initiated by motion and where an enactment provides that an application shall be made by some other means, an application by motion shall be deemed to satisfy the provision of the enactment as to the making of the application.
Thus the only time court proceedings may be originated by motion is when an enactment authorizes that an application may be made to a court for a particular order pursuant to that enactment. In such cases, the motion is not presented within a pending proceeding but in originating an action.
In March 2011, four persons named Kwadwo Dankwa, Francis Adom, Kwaku Adade, and Yaw Boateng filed a motion ex parte numbered COURT CASE NO 12/150/2011 against the Respondent in this appeal. They alleged in the motion paper that they represented 253 applicants whose names were attached to the motion. In the supporting affidavit, the second applicant stated that they had the authority of the 253 persons to swear to the matters in the application. The attached list is found from a copy of the motion on pages 39 to 46 of the Record of Appeal (ROA). The motion was for ‘...extension of time within which to commence an action ...for the recovery of due salaries....from 1994 to 2001...’.
There was no reference to which section of the Limitations Act, 1972, NRCD 54 that had authorized this originating motion.
The application was heard by Justice Azumah who granted it on 28th March 2011. A copy of the order granting the leave can be found on page 21 of the ROA.
On 29th March 2011, the above named four men and 249 others (hereinafter referred to as Appellants) whose capacity as Plaintiffs were endorsed on the writ and their names attached to the writ commenced an action against the Defendant/Respondent (hereinafter referred to as Respondent) which can be found on page 3 of the ROA. The suit is numbered C3/4/11 although counsel for Respondent described the suit number as H1/33/2013 on page 1 of his submissions before this court. The Respondent entered conditional appearance by counsel and applied on 19th April 2011 to dismiss the suit on the ground that it was statute barred.
An affidavit in opposition by the Appellants exhibited the order giving leave for extension of time to commence the action. Although the documents in this record have not been arranged chronologically, the sequence of events can be determined from the records. Counsel for the Respondent ostensibly withdrew the application to strike out the writ and it was struck out as withdrawn. His appearance therefore became unconditional. Thereafter, he did not file a Statement of Defence, but went on to file a two pronged application on 24th May 2011 (the first application). The first prong of the application was to set aside the order granting the Appellants’ leave to issue the writ out of time, and the second prong was to dismiss Appellant’ suit.
In an affidavit in support of this first application found on pages 23 and 24 of the ROA, a senior legal officer of the Respondent alleged in the paragraph 10 the key ground for the application. It reads:
10. The grounds provided by the Plaintiffs in support of their application for extension of time is not a ground recognized by the Limitations Act to warrant the grant of leave to issue a writ out of the limitation period.
This first application was heard by Justice Iddrisu Mahamadu and his ruling on 6th September, 2011 can be found on pages 47 to 55 of the ROA. The learned judge was of the opinion that his court did not have power to set aside the grant of extension of time by Justice Azumah. His opinion was that if anyone was dissatisfied with Azumah J’s order, ‘The remedy lies in either an application for review of that Order, or an appeal against it. Short of fraud, which vitiates everything, (there is no) other ground on which an application could be made to a court of coordinate jurisdiction to set aside the order of the other’.
He declared himself persuaded by the decision in Dankwa v Fuller 3 WALR 168 where an order enlarging time for appeal from a decision of the Native Appeal Court had been granted earlier by the High Court on an exparte application. The High Court, sitting on the appeal from the Native Appeal Court had expressed the opinion that the enlargement of time granted by the High Court differently constituted, was a nullity because it was granted on an application heard ex parte.
On appeal to the Court of Appeal presided over by Van Lare Ag. CJ, the court held that ‘...the order enlarging time was a valid order of a competent court and was thus binding unless and until set aside by the judge on review or by a competent appellate court. It was not within the power of a court of co-equal jurisdiction, or of the same court differently constituted, to declare such order invalid’. Justice Mahamadu dismissed all arguments set up by the Respondent herein against Azumah J’s order as ‘misconceived and inappropriate’, andconsequently dismissed the application to strike out the writ.
On 14th September, 2011, the Respondent counsel filed another applicationrequiring the same two pronged reliefs - ...to set aside the order granting the Plaintiffs leave to issue the writ herein out of time and to dismiss the Plaintiff’s suit (the second application). It can be found on page 33 of the ROA. In the supporting affidavit, counsel said in paragraph 8 that:
8. ‘I am advised and verily believe same to be true that the leave granted by the High Court, ought not to have granted the Plaintiff’s leave to commence this action herein since there was no legal or factual basis therefor’
He repeated the contention found in paragraph 10 of the previous application in the paragraph 11 of his affidavit which is on pages 34 and 35 of the ROA that,
11. The grounds provided by the Plaintiffs in support of their application for extension of time is not a ground recognized by the Limitations Act to warrant the grant of leave to issue a writ out of the limitation period.
This second application was fixed for 7th October 2011, but was clearly unheard on that date. On 19th October 2011, an order transferring this suit to be heard by Justice R. C. Azuma was issued by the Chief Justice and this can be found on page 60 of the ROA. Thus the original Judge who extended time for this writ to be issued in originating motion numbered COURT CASE NO 12/150/2011 was brought in to determine whether his order in that action should be set aside and the Plaintiffs’ suit dismissed.
The Appellants opposed the application. In an affidavit in opposition sworn to by the 1st Plaintiff Kwadwo Dankwa and found on pages 56 and 57, he averred in paragraph 5 that
5. ‘the division of the High Court that dismissed the application is a court of competent jurisdiction and its decision or order operates as estoppel against the parties’.
He averred that the Respondent and applicant therein was estopped from bringing this ‘second’ application because the issue had been settled already and could not be changed by a court of equal jurisdiction. Counsels filed written submissions in which Appellants (then respondent) counsel submitted that the only remedy against the decision of Justice Mahamadu was an appeal and not a repeat of the application in the same court. He pointed out that the times set for review and appeal had however run out. His position was that the first application was an application for review of the order granting extension of time to issue the writ. Justice Mahamadu’s ruling dismissing same on grounds of jurisdiction had disposed of this review.
The submissions of counsel for Respondent herein and applicant therein disagreed that they were estopped by the decision of Mahamadu J from presenting the second application. His submission was that it is incorrect that the decision of Mahamadu J on 6th September 2011 settled the issues raised in the second application. It was his position that Mahamadu J had refused to consider the issues in the first application because he took the view that he lacked the jurisdiction to review or vary the decision of a court of coordinate jurisdiction. Thus the issue in controversy, which was whether Azumah J’s leave in originating motion COURT CASE NO 12/150/2011 extending time to issue the writ was in breach of the Limitations Act 1972 NRCD 54, remained unsettled.
It was his argument that estoppel per res judicata operated only as to matters whose merits have been actually and finally decided on by the courts. He went on to argue from NRCD 54 that Part 1 of the statute set out the times settled for limitations of actions and Part 2 created five conditions under which the statute bar may be extended. These, he said, were disability, acknowledgment, part payment, fraud or mistake and where material facts were not previously known.
It was his submission that the Appellants had not set up any of these conditions as the reason for their application for extension of time within which to sue, and so Azumah J’s order was in violation of statute.
He supported his position with decided cases and other arguments and submitted that since the statute had not created room for extension of time to commence an action within the circumstances articulated by the Appellants, no court could arrogate to itself the jurisdiction to grant an extension of time to commence an action which was statute barred.
Justice Azumah heard this second application, and ruled on 21st March 2012. He agreed with the Respondents and disagreed with Appellants. He held that the leave he had granted to the Appellants in COURT CASE NO 12/150/2011 to commence the action in suit number C3/4/11 was wrong and that the Appellants had lost their cause of action before he extended the time to commence their suit.
It is against this decision that this appeal was made to this court. The original ground of appeal filed was that the judgment was against the weight of evidence. The Appellants indicated that they would file additional grounds of appeal, and proceeded to file two additional grounds on 27th July 2016. These grounds were:
b. The learned Judge misdirected himself to assume jurisdiction of the matter when the issue has already been disposed of by a competent court of coordinate jurisdiction?
c. That the court erred in law to assume jurisdiction and determine the merit of the matter when its jurisdiction has not been properly invoked?
I will deal with the second and third grounds of appeal because the first ground of appeal - that the judgment is against the weight of evidence - seems to have been abandoned by Appellant counsel in his submissions. It is not quite clear why Appellants’ counsel placed a question mark after the second and third grounds of appeal. Grounds of appeal are formulated in the form of the Appellant’s position of alleged errors of law by the court – where the appeal is against the court’s interpretation and application of law – and not in the form of questions for resolution. The question marks are best ignored and will be ignored. The two grounds of appeal are read as firm articulations of the Appellant’s position and not as questions.
The learned Judge misdirected himself to assume jurisdiction of the matter when the issue has already been disposed of by a competent court of coordinate jurisdiction.
In his submissions to this court, Appellant counsel reiterated his position that the issue which Azumah J ruled in his decision of 21st March 2012 had already been disposed of by Mahamadu J in September 2011. Respondent counsel however countered that Mahamadu J had only held himself out as not having jurisdiction to deal with the application that was placed before him that September 2011, and so the issue in controversy in the application remained unsettled.
The fundamental role of the appellate court is spelt out in Rule 8 (1) of the Court of Appeal Rules 1997 CI 19. It directs inter alia that:
8. Notice and grounds of appeal
(1) An appeal to the Court shall be by way of rehearing....
This gives the appellate court the duty to conduct a re-hearing of the suit within the context of the grounds of appeal. In Tuakwa v Bosom 2001 – 2002 SCGLR 61 as in Agyeiwaa v P & T Corporation 2007 – 2008 SC GLR 985 the Supreme Court clarified that it is the duty of the appellate court to analyse the entire record of appeal before arriving at its own decision on whether the trial court was right in its decision.
In rehearing the application on the premise of the second ground of appeal, I must agree and disagree with both of them. As I pointed out earlier, the applications that came to the Judges were two pronged. Each part of the applications required the resolution of a particular issue in controversy. The first prong was ‘to set aside the order granting the Plaintiffs leave to issue the writ herein out of time’. This required the determination of the issue whether the extension of time given by Azumah J in COURT CASE NO 12/150/2011 was supported by law, by the Judge presiding over suit number C3/4/11. The second prong of the application was ‘to dismiss the Plaintiff’s suit.’ This required a consideration of whether the Plaintiffs’ action in C3/4/11 should be dismissed in limine, if the order granting leave to issue the writ is set aside. Mahamadu J held that he did not have jurisdiction to set aside Azumah J’s order granting the Plaintiffs extension of time to issue the writ. Based on this preliminary position, he failed and refused to consider the second application – to dismiss the Plaintiff’s suit as unsustainable. And one cannot blame him because the Respondent’s application basically urged that the suit was to be dismissed after the order granting leave for it to be commenced was set aside. Thus it stands to reason that if the court held himself unable to set aside the order for leave, then he would not see the need to consider the sustainability of the suit. But an important consideration that approach missed is that every Judge has a duty to determine preliminary issues regarding the sustainability of the action they preside over. The spirit of the High Court (Civil Procedure) Rules 2005 CI 47 expressed in Order 1 Rule 1 (2) is for cases to be disposed off efficiently, effectively, and expeditiously and in a manner that ensures that all issues outstanding between the parties are effectively disposed off. Thus if a suit is unsustainable for any reason at all, it was a proper application for a court to consider at any time – even if the order giving leave for it to be commenced could not be reviewed by the court. It is in this regard that when the same application was placed before Azumah J in October 2011, there could be no estoppel regarding whether or not the suit should be dismissed – because that issue was not at all considered by Mahamadu J. The issue whether or not the high court presided over by Mahamadu J could set aside the order issued by Azumah J was however thoroughly examined by Mahamadu J and ruled on, and I agree with Appellant counsel that Mahamadu J’s decision rendered that issue res judicata. As both of counsels appreciate, a decision operates as res judicata only regarding the matters directly put in issue and actually considered on merit within the dispute before the court. Such a decision must constitute a final decision by that court on the matter and between the parties. The ambit of the doctrine is agreed by the counsels and does not merit a long evaluation in this appeal. Suffice it to mention a few authorities cited by counsels such as Republic (No 2) v National House of Chiefs; ex parte Akrofa Krukoko 11 (Enimil VI Interested Party) (No 2) 2010 SCGLR 134 and In re Sekyedumase Stool: Nyame v Kese alias Konto 1998 -99 SCGLR 476 where the Supreme Court reiterated these parameters of the operation of the doctrine.
It is within these parameters of consideration on merit, and finality of decision between the specific parties, that I also find that the issue of the sustainability of the action was not considered at all by Mahamadu J.
So on the second ground of appeal, my response is in two parts. The first is that Azumah J was wrong in assuming jurisdiction over the application to set aside his order of 28th March 2011 and setting aside same. This is because the earlier decision of Mahamadu J had established that once a court of coordinate jurisdiction made that order, the remedy against it is to either apply to the same court for a review of that decision or to a higher court in an appeal or for certiorari to quash same, but not for a court of coordinate jurisdiction to set it aside. That decision was final on the issue and rendered the matter res judicata.
And on a rehearing of this case, it is important for me to add that the more fundamental reason why Mahamadu J was right in refusing to purport to set aside the leave given to the Appellants in COURT CASE NO 12/150/2011 is because that case is different from the one he was presiding over. A Judge’s jurisdiction is invoked by the cause or matter assigned to the judge presiding over that court. Each cause or matter is defined by its unique suit number. And each order or decision in a cause or matter must be dealt with within the confines of that suit. There is no automatic merger of suits simply because one suit gave leave for the commencement of another, or the parties in one suit are contending over the same subject matter in another suit.
This is why the proper consideration for both judges regarding the application to set aside the order granting extension of time to commence the action in suit number C3/4/11 should have been that the order was not an order made in the case that Respondent’s application was brought in. It was made in a different case. The application to set aside Azumah J’s order of 28th March 2011 should have been filed in Court Case 12/150/2011, whereas the application to dismiss the Plaintiffs’ suit could not be filed in Court Case 12/150/2011 but in C3/4/11.
That proper attention to due process could have saved the parties and their counsels these six years of contention. It was palpably wrong to treat the two cases as merged and apply in Suit no C3/4/11 to strike out the order granted under Court case No 12/150/11.
It seems to me that without saying so, both Respondent counsel and Azumah J seemed to be operating under the misconception that the second application was for a review of Azumah J’s March 28th order. I say this because Order 42 Rule 4 of CI 47 directs that where the Judge who gave a judgment or order continues to hold office at the time an application for review is presented, and is not precluded by absence or other cause from considering the application, it is that judge and no other judge who shall hear the application. In this case, after Mahamadu J’s ruling in September 2011, Respondent counsel re-filed the same application and sought for and obtained transfer of suit C3/4/11 to Azumah J, thereby given him an opportunity to consider whether he should set aside his March 28th order made in Court Case 12/150/2011.
But that transfer to Azumah J carried no weight whatsoever in giving Azumah J jurisdiction to hear the application, because of the fundamental schism between cases that I have pointed to. Moreover, the placing of the application before Azumah J could not by any stretch of imagination convert his hearing of it to a review. The time limited for review of any order or judgment is 14 days. Where the application is for review of a final judgment and the 14 day deadline is missed, the applicant for review must first obtain leave to apply for the review within three months.
Order 42 provides
Application for review
1(1) A person who is aggrieved
a. By a judgment or order from which an appeal is allowed, but from which no appeal has been preferred; or
b. By a judgment or order from which no appeal is allowed, May upon the discovery of new and important matter or evidence which after the exercise of due diligence, was not within that person’s knowledge or could not be produced by that person at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, apply for a review of the judgment or order.
Time for making application
2 (2) Subject to subrule (3), the application shall be made within fourteen days from the date on which the judgment or order in respect of which review is sought is entered or made.
3) Where the review is sought is in respect of a final judgment, the Court may, at any time within three months after the judgment is entered, and on such terms as seem just, grant leave to apply for review.
So even if the reason for filing the second application and having it transferred to Azumah J was to give him an opportunity to review his March 28 order, that process would still be misconceived. Any application for review would have to be done within the suit in which the order was made, and it had to be presented within 14 days of the order sought to be reviewed, under Order 42 Rule 2 (2).
As to whether that extension order in Court Case 12/150/2011 was properly made is a matter I am not at all willing to consider, because that originating motion does not constitute part of C3/4/11, which is the suit on appeal before us. The appeal before us is to determine whether Azumah J was right in considering the application to set aside his 28th March 2011 order after Mahamadu J had refused to consider that application, and our answer is that Azumah J was wrong in assuming jurisdiction to hear this first part of the application because first, it was an order made in a different case, and second, that same application had been considered and ruled on as being a matter over which the court presiding over C3/4/11 did not have jurisdiction.
The jurisdictional issue was res judicata, and since jurisdiction constitutes part of the merits of any matter, no other judge could look at the application. In Dzotepe v Harhomene 111 1987 -88 2GLR 681 Taylor JSC reiterated the wide frame of the rule on page 694 in these words ‘whatever the merits of the case, the plea of res judicata raised by (a) judgment constituted estoppel which should disable a court from examining other collateral matters’.
This is a restatement of the rule in Henderson v Henderson 1843 67 ER 313 where Wigram VC said inter alia ‘The plea of res judicata applies, except in special cases, not only to points 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’.
The first ground of appeal is allowed in part. We reverse the ruling purporting to set aside the order granted in Court Case No 12/150/11. That ruling is misconceived.
This leaves the second part of the application which invited Azumah J to dismiss the Appellant’s suit and to which he acceded. And to that, I say that Azumah J was not wrong in assuming jurisdiction over it. This is because Mahamadu J had not allowed himself to consider the application to dismiss the writ in suit C3/4/11 after he found himself to be lacking jurisdiction to set aside Azumah J’s order in Court Case 12/150/11. That left the issue of the propriety of the suit raised by the motions, undetermined on merit by a competent court of coordinate jurisdiction. The second ground of appeal is dismissed in part.
The third ground of appeal was that the court erred in law in assuming jurisdiction to determine the merit of the application when its jurisdiction had not been properly invoked. The Appellant counsel’s arguments in support of this ground of appeal were essentially a reiteration of the position that the court’s jurisdiction to consider the October application could only be invoked through review or appeal against the earlier decisions.
But as already stated, the court did not err in assuming jurisdiction and considering the application to dismiss the Plaintiffs’ suit. The jurisdiction to consider any application, such as the application to dismiss the Plaintiffs’ suit, is conferred by Order 19 rule 1 which provides that:
Applications to be made by motion
1(1) Every application in pending proceedings shall be made by motion
To the extent that the application to dismiss the suit constituted an application in pending proceedings which Mahamadu J had failed or refused to pronounce on, it could be repeated before the court for proper consideration. It is in this regard that the third ground of appeal must be dismissed.
Having upheld the second ground of appeal in part and dismissed the third ground of appeal, we must now determine as a function of rehearing whether or not the ruling dismissing the Plaintiffs’ suit should also be reversed or affirmed.
The arguments presented to the court in support of the dismissal of the suit are found in paragraphs 9 to 11 of the affidavit in support of the application found on page 35 of the ROA. It reads:
9. I am advised and verily believe same to be true that the Plaintiffs concede that their claims are statute barred by the Limitations Act, 1972 (NRCD 54) hence the application for leave to issue the writ out of time.
10.I am advised and verily believe same to be true that under the Limitations Act, this court can only grant leave for a proposed Plaintiff to issue a writ out of time only under the circumstances stated in the Act.
11. The grounds provided by the Plaintiffs in support of their application for extension of time is not a ground recognized by the Limitations Act to warrant the grant of leave to issue a writ out of the limitation period.
What these averments argue is that the court should look at the evidence of the Appellant’s admission that their cause of action accrued in 2001 and had run out time, and dismiss the suit. The court should also consider the reasons given by the Appellants for seeking extension of time to sue, which reasons can be found in their affidavit in support of the originating motion numbered Court Case No 12/150/11 and find that those reasons do not fit into any of the circumstances outlined in Part 2 of NRCD 54, to merit allowing the suit to stand.
These arguments give me great cause to worry. I have looked at the affidavit in support of the Motion for Extension of time to sue that the Respondent counsel attached to his application in support of his position. It set out the reasons that the Appellants gave the court in Court Case No 12/150/11 for seeking extension of time within which to sue after 2001.The affidavit is found on page 37 of the ROA and paragraphs 4, 5 and 6 state follows:
4. That the company has been doing that to cheat the workers and deprive them of their due salaries and allowances in exploitation to serve their interest to the disadvantage of the employees.
5. The employees have all these years resented petitions and petitions to right this wrong without success even the Regional Minister intervened in 2001.
6. That it was ordered that the employees be duly paid what they deserved but the company has given dead ears to these.
Now on a careful reading of these averments, as a function of rehearing – I have asked myself these questions – who ordered and when was it ordered that the employees be paid what they claimed to deserve? Do these statements constitute enough evidence for a court to conclude that the rights of all 253 Plaintiffs/Appellants accrued by 2001 and extension could not have been supported under any of the provisions of Part 11 of NRCD 54?
My questions were compounded by two situations – one is on content and the other on procedure. The content comes from the pleadings in the Statement of Claim found on page 4 of the ROA. Paragraph 14 particularly caught my eye. It reads:
14. The Plaintiffs and other former employees have since 1998 agitated or claimed for the reliefs in this action but they have not been heeded to even though the court ordered the defendants to pay the workers their due claim but the Plaintiffs have not been paid anything wherefore they claim....
Again, the question is - which court ordered? When was this court action? Who were the parties? Like any pleading, these averments only state a claim whilelacking the evidence required for a court to arrive at the conclusion that all of the rights of 253 people have been totally extinguished.
Now to the procedural query, justice derives life from the law. And a court must be careful in shutting the doors of justice without a careful perusal of and application of the law to facts. Order 11 rule 8(1) of CI 47 provides that where a case cannot be sustained by reason of limitation of the cause of action, or other legally technical point, that defence must be articulated in a pleading. It reads:
Matters to be specifically pleaded:
8(1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality
a. Which the party alleges makes any claim or defence of the opposite party not maintainable;
Clearly, the Rules of Court do not provide for a court to dismiss a suit ongrounds of being barred by NRCD 54 without the case first being made in pleadings. The person alleging the operation of the Limitations Act should raise that defence in their pleading. The burden then is shifted to the person alleging a cause of action to prove that their suit is sustainable. This is the proper application of the rules of court. The Supreme Court was very clear about thisposition in Republic vrs High court, Accra, Ex-parte Aryeetey Ankrah (Interested party) 2003-2004 SCGLR 398. In holding 3, it said inter alia:
“It is not permissible for a Defendant, who has entered a conditional appearance, to move the court to have the writ set aside because he has a legal defence, even if unimpeachable, to the action; such an application is not also available to a Defendant, who seeks to rely on a plea of res judicata, such as the interested party wrongly sought to do, since this plea, to be successful, must satisfy certain requirements which can only be revealed through evidence. A Defendant, who enters a conditional appearance, therefore, has no right to set the writ aside because he has got defence to the action”.
We thus hold that Azumah J was wrong in considering an application to dismiss a suit on grounds of law without first seeing the grounds in a pleading.
Extension of time to commence an action is not what lends credence to an expired cause of action, because such extension could be defective. So notwithstanding any leave to commence an action, the action may not be sustained if the pleadings actually establish that the action is statute barred. But by the same token, this summary model of dismissing a suit based on evidence of admission of the extinguishing of a cause of action is not supported by the Rules of Court. When it is the case of a defendant that an action cannot besustained because of the Limitations Act, CI 47 directs that it ‘shall’ be brought to the attention of the other party and the court through their own pleadings.
There were 253 Plaintiffs in C3/4/11. That is a large number of people to be thrown out as having lost whatever rights they claim without any proper averments in a pleading regarding their peculiar status. In this wise, we hold that not only was Azumah J wrong in purporting to reverse his order in Court Case 12/150/2011 giving extension of time to commence an action, he was also wrong in summarily dismissing the Appellants’ action because of the purported admission of a statute bar in the earlier originating motion. The ruling of Azumah J dismissing the Appellants’ suit is reversed. The appeal is allowed.
Respondents are ordered to file their defence indicating whatever legal defence they have – as expected by Order 11 rule 8 (1). Cost of Two Thousand Ghana cedis (GH¢2,000.00) in favour of the Plaintiffs/Appellants.
GERTRUDE TORKORNOO (MRS.)
(JUSTICE OF APPEAL)
(JUSTICE OF APPEAL)
A. M. DOMAKYAAREH (MRS.)
(JUSTICE OF APPEAL)