HIGH COURT, KUMASI
Date: 24 JUNE 1975
Before: OWUSU-ADDO J
CASES REFERRED TO
(1) Huddersfield Banking Co., Ltd. v. Lister (Henry) & Son, Ltd. [1895] 2 Ch. 273; 64 L.J.Ch. 523; 72 L.T. 703; 43 W.R. 567; 39 S.J. 448; 12 R. 331, C.A.
(2) Wilding v. Sanderson [1897] 2 Ch. 534; 66 L.J.Ch. 684; 77 L.T. 57; 45 W.R. 675; 13 T.L.R. 540; 41 S.J. 675, C.A.
NATURE OF PROCEEDINGS
ACTION by the plaintiffs for an order to set aside a portion of a consent judgment entered by the High Court, Kumasi, on the ground of mistake. The facts are fully set out in the judgment.
COUNSEL
James Quashie-Idun for the plaintiffs.
Charles Hayford-Benjamin for the defendant.
JUDGMENT OF OWUSU-ADDO J.
The plaintiffs’ action is for an order to set aside a portion of the judgment in an originating summons suit entitled Ghassan Bridi v. Guardian Assurance Co, Ltd. which was entered on 6 December 1968 by the Kumasi High Court, on the ground of mistake.
As the title suggests, in that suit the present defendant, Ghassan Bridi, was the plaintiff and the present plaintiffs, Guardian Assurance Co., Ltd., were the defendants. The facts are briefly as follows: The defendant, who was an employee of Messrs. John Bitar & Co., sawmillers operating in Kumasi, was injured on his right heel in the course of his employment. It happened that his employers had in force, in relation to that injury, a policy of insurance with the plaintiff company. The defendant, by his present solicitors, took out an originating summons under Order 54A, r. 1 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), to determine the following questions:
(1) Whether or not the injury suffered by the plaintiff is covered by the provisions contained in endorsement number I of the insurance policy number KU/740047.
(2) Whether or not the plaintiff is entitled to compensation calculated on the basis of permanent incapacity now suffered by him.
(3) How much compensation the plaintiff is entitled to in terms of the said policy of insurance.”
The present plaintiffs having admitted liability to pay some compensation to the defendant in respect of his injury in terms of the policy marked exhibit A in this action, the only issue which fell for determination before the learned judge was the quantum of compensation.
In a well-written judgment tendered and marked exhibit B, the learned judge made the, following observations:
“The schedule to the policy sets out a table of benefits applicable to the specified events listed therein, and
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any of the categories of loss set out in the table. This table originally set out five categories of loss listed as A, B, C, D and E, but by virtue of an endorsement to the policy numbered as I (and herein-after referred to as the endorsement), an amended table of benefits was substituted for items B, C and D of the original table of benefits.
The endorsement sets out a long list of items of permanent disablement and the equivalent rate of compensation expressed as a percentage of the maximum sum payable, namely, 24,000.00.” These items all cover actual loss of a member …
Item E of the original table of benefits provides for temporary total disablement at a rate of compensation of 072.00 for each week of disablement not exceeding 52. There is also provision for the payment of medical and surgical expenses.”
The learned judge, having discussed fully the relevant provisions of the policy and their respective meanings, made the following finding:
“I find that the policy does not make provision for permanent disablement which is less than total in respect of the foot and that the plaintiff ‘s only entitlement is in respect of item E on the original table of benefits and that is a matter of arithmetical calculation in terms of the number of weeks of disablement not exceeding 52, together with medical and surgical expenses not exceeding 240.00.”
The last paragraph of the judgment which has sparked off the present action is in these terms:
“By consent of counsel I find that in terms of item E on the table of benefits, the plaintiff is entitled to 52 weeks temporary total disablement at the rate of 060.00 per week which comes to 3,120.00 together with proved medical expenses.”
At this stage I shall refer to the relevant paragraphs of the pleadings filed. In his statement of claim the plaintiff averred in paragraphs (3), (4), (5) and (6) as follows:
“(3) Counsel for the defendant then asked the court to calculate the amount due to the defendant on the basis of temporary total incapacity and suggested that even on the medical certificate produced by the plaintiffs themselves, the period of temporary total incapacity was 52 weeks and therefore the defendant was entitled to compensation for the said period at the agreed rate of 60.00 a week.
(4) Believing for the moment that the defendant’s counsel was right in his suggestion that the period of temporary total incapacity mentioned in the medical certificate was 52 weeks, the plaintiffs’ counsel agreed and the order was accordingly made.
(5) Before the court finally disposed of the case, however, and after the plaintiffs’ counsel had had time to go through the medical reports, he discovered that neither of the two medical reports gave the said period of temporary total incapacity as 52 weeks.
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(6) The highest period of temporary total incapacity given in the medical reports was six weeks. Both
counsel in the case were therefore mistaken in accepting the said period as 52 weeks.”
In denying the plaintiffs’ claim, paragraphs (3), (6) and (7) of the defendant’s statement of defence were formulated in these words:
“(3) In further answer to the said paragraphs, the defendant says that it was the plaintiff counsel who asked the court to make the calculation on the basis that there had been total temporary disablement for the period of 52 weeks which was the maximum allowed under the policy since it was agreed that the plaintiff was suffering from a total permanent incapacity of 60 per cent.
(6) The defendant denies paragraphs (5) and (6) of the statement of claim and says further that, the consent was not obtained by fraud or under duress or under any other circumstances that could vitiate agreement between the parties.
(7) The defendant contends and will contend at the trial that being a consent judgment the order could be set aside by their joint consent and since this has not been done the defendant therefore says that the plaintiffs’ action is legally incompetent and must be dismissed.”
Only one witness gave evidence for the plaintiffs. He was Mr. Simon Sotomey, solicitor and counsel for the plaintiffs in the former suit. He told the court that after the learned judge had read his judgment, counsel for the defendant announced to the court that the period of temporary incapacity was 52 weeks. Believing that counsel was right, he consented without reference to the medical reports marked exhibits C and C1 in this suit. He however realised the mistake and before the learned judge had finished making the final order he got up and pointed out that according to the medical reports the period of temporary incapacity should be six weeks and not 52 weeks, but the learned judge replied that he had finished making the order and therefore he should advise himself as to the proper course to take. He said he wrongly advised himself by filing a motion on 9 December 1968 for a review of the offending portion of the judgment. The motion having been dismissed, this action was instituted for an order to set aside the said portion of the judgment. No evidence was given by or on behalf of the defendant.. It is quite clear from the pleadings that the issues which are called upon for determination by this court can be conveniently reduced to the following:
(1) whether or not this court is competent to adjudicate upon the issues joined between the parties,
(2) whether or not the plaintiffs’ action is competent, and
(3) whether there was any circumstance that could vitiate the consent judgment described in the plaintiffs’ writ of summons.
Turning now to the first question, learned counsel for the defendant argued that the relief being sought by the plaintiffs does not call for an institution of a fresh action. The courses open to the plaintiffs he said,
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were two-fold: firstly, they ought to have appealed against the consent judgment or secondly, they ought to have brought an application to have the judgment set aside by the presiding judge. This court, counsel urged, has no jurisdiction to set aside a judgment of a court of co-ordinate jurisdiction. In support of this no case was cited or referred to. My answer to this question can be found at p. 792 of Halsbury’s Laws of England, (3rd ed.), Vol. 22 where it is stated as follows:
“A judgment given or an order made by consent may, in a fresh action brought for the purpose, be set aside on any ground which would invalidate a compromise not contained in a judgment or order …
Unless all the parties agree, a consent order, when entered, can only be set aside by a fresh action, and an application cannot be made to the court of first instance in the original action to set aside the judgment or order, except, apparently, in the case of an interlocutory order; nor can it be done by way of appeal.”
On this issue, the learned counsel for the plaintiffs having referred to the above-quoted passage, cited and relied on the cases of Huddersfield Banking Co., Ltd. v. Henry Lister & Son, Ltd. [1895] 2 Ch. 273, C.A. and Wilding v. Sanderson [1897] 2 Ch. 534, C.A. In both cases it was decided that the court had ample jurisdiction to set aside a consent order on the same grounds as it would have power to set aside an agreement concluded by the parties. It is worthy of note that in both cases the consent judgment was set aside by a court other than the one that granted the order, both being of co-ordinate jurisdiction. In the Huddersfield Banking case, Williams J. made the following observation at p. 277:
“I believe that the law is that if a party has been induced by a mistake common to both parties to consent to a decree or order, the Court has power to relieve him, and will do so on being satisfied that the mistake existed, and that the conduct of the party himself has not deprived him of the title relief, and that relief can be given with a due regard to the just rights of others.”
Here it is plain that the plaintiff s first witness who was counsel for the plaintiffs at the time the consent judgment was given had given consent under the mistaken belief that the medical reports, exhibit C and C1, gave the defendant’s temporary period of incapacity as 52 weeks. Before the court had risen, he realised the mistake and drew the learned judge’s attention to it, but he was asked to advice himself. This fact is even admitted in paragraph (5) of the statement of defence which is in these words:
“(5) The defendant makes no admission to the averments contained in paragraph (5) of the plaintiffs’ statement of claim save that the plaintiff counsel was advised by the court to advise himself as to the proper course to take in the matter.”
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As borne out by the evidence, the plaintiffs’ first witness did set to work to have the consent order put right by filing a motion for review which failed on the ground that the mistake could not be rectified by means of a motion, hence this action. I am fully satisfied that the clear result of the authorities and the law is such that notwithstanding the consent judgment having been given and completed, this court has ample jurisdiction to set it aside upon any ground which would entitle it to set aside an agreement entered into between the parties on the ground of mistake.
The next question therefore is whether the plaintiffs’ action is competent. On this issue, the argument advanced by the learned counsel for the defendant against the grant of the relief being sought by the plaintiffs is that the plaintiffs were guilty of delay as they acted too late in impeaching the consent judgment five and a half months after it had been entered. He urged further that counsel for the plaintiffs misinformed himself as to the correct procedure to be followed in a situation like this, for, he ought to have applied for leave to appeal against the consent judgment or moved the court for a variation order. His recourse to the institution of a fresh action is therefore incompetent.
Firstly, it must be pointed out that the plaintiffs did act promptly to impeach the consent judgment by filing a motion for review when they detected that the judgment had been given under a mistake of fact which did not exist. This first attempt to impeach the judgment failed on the ground already mentioned in this judgment. It has not been disclosed here when the plaintiffs’ motion was dismissed, but their writ of summons is dated 26 May 1969 that is, four and a half months after the consent judgment had been given. From the facts given the plaintiffs’ conduct cannot be described as indolent nor are they guilty of any acts that ought to stop them from bringing this action. Of course if the judgment had been acted upon and the interests of third parties had intervened and so on, difficulties might arise, but nothing of that kind has occurred here.
In truth and in fact, before the consent judgment was given, both parties were under the mistaken belief that the defendant had been temporarily incapacitated for a total period of 52 weeks whereas both medical reports on his condition specifically mentioned six weeks as being the probable period of temporary incapacity. I shall now refer to the relevant portions of the reports. The third paragraph of exhibit C reads as follows:
“Probable period of total disability immediately after the accident is about six weeks. Physical examination carried out on 31 May revealed a well-healed scar over the right heel which is tender on palpation. Flexion and extension of the right foot also precipitate pains at the site of the lesion. Although pains at the site of the lesion are not likely to go away completely due to the scar, there is no doubt that the intensity of the pains will diminish considerably over a period of say six to nine months.”
In exhibit C1 the relevant portion is in these terms, “The wound took six weeks to heal and Mr. Bridi was confined to bed for four weeks and could
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not walk at all for four weeks.”
In the Huddersfield case Lopes L.J. said this at p. 283:
“The law seems to be that a consent order may be set aside for the same reasons as those on which an agreement may be set aside. It appears to me that when once a common mistake is established you can set aside an agreement.”
In the same case Vaughan Williams J. made this pertinent observation at p. 275, “it seems to me that the law would be in a very lamentable condition if an order and arrangement based upon such a mistake could not be put right by the Court.” Referring to the proposition of law quoted from Halsbury’s Laws of England and the cases cited, I find no difficulty in concluding that the plaintiffs’ action is proper and competent and it would be inequitable to hold otherwise. This disposes of the second issue.
Regarding the last issue there is no dispute that the figure of 03,120.00 arrived at in the consent judgment was calculated upon 52 weeks of temporary total disablement at the rate of 060.00 per week. It is also not in dispute that this figure was agreed upon by counsel for the parties, but the facts upon which the consent was given never existed; the judgment therefore does not itself constitute or represent an agreement, but stands as a judgment of the court made in pursuance of a supposed agreement or consent which both parties believed to exist but which did not in fact exist.
It seems to me however to be immaterial how the parties came to make the mistake. What I believe is, that both parties thought the medical reports, exhibits C and C1 gave the defendant’s total period of temporary incapacity as 52 weeks. There was therefore a mistake of fact and of a material fact which was common to both parties. Learned counsel for the defendant did not argue that such a mistake did not exist; he merely urged that the mistake notwithstanding, the plaintiffs’ action was incompetent for other reasons. As regards the meaning and interpretation placed on these medical reports by learned counsel for the defendant, although I have not heard any evidence from them, still I cannot think that they intended to take compensation based on any other period than that which was disclosed in the medical reports.
Consequently, I find that there was no true consent to that portion of the consent judgment on the ground of mistake. Once I have arrived at the conclusion that there was a mistake, that is sufficient to entitle me to set aside the consent judgment. Taking that view, I hold that the plaintiffs are entitled to their relief and the consent judgment is hereby set aside. The defendant is only entitled to compensation for a period of six weeks temporary total disablement at the rate of 60.00 per week, being 360.00.
DECISION
Consent judgment set aside.
L. F. A.
