REPUBLIC vs. COURT OF APPEAL; EX PARTE GHANA COMMERCIAL BANK PENSIONERS ASSOCIATION [2001-2002] 1 GLR 502

CASES REFERRED TO:

(1) Holtby v Hodgson (1889) 24 QBD 103; 59 LJQB 46; 6 TLR 24, CA.

(2) Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 KB 717; [1937] 1 All ER 736; 106 LJKB 221, CA.

APPLICATION by the plaintiffs to the Supreme Court for, inter alia, an order of certiorari to quash the decision of the Court of Appeal on an interlocutory appeal by the defendant and a cross-appeal by the plaintiffs allowing the appeal of the defendant-bank and dismissing the cross-appeal of the plaintiff-association and ordering the case to be sent back to the High Court for retrial on the ground that the trial High Court judge had omitted to note or record the judgment of the court in the record book. The facts are sufficiently stated in the ruling of the court delivered by Afreh JSC.

Dr Ekow Daniels for the plaintiff-applicant.

[p.505] of [2001-2002] 1 GLR 502

A Norvor for the defendant-bank-respondent.

Afreh JSC. Delivered the ruling of the court. This is an application for an order of certiorari to quash the decision of the Court of Appeal delivered on or about 20 December 2001 and for an order of mandamus to compel the Court of Appeal to rehear and determine the matter before it according to law in conformity with rules 31 and 32 of the Court of Appeal Rules, 1997 (CI 19). The order of the Court of Appeal was to send the case back to the High Court to deal with it from the date the defendant in the High Court submitted to judgment.

The plaintiff-association is made up of pioneer staff who worked to establish the Ghana Commercial Bank. At the commencement of the suit before the High Court in January 1995 it had about 770 members but as at January 2002, when the instant application was brought, about 89 of them had died, remaining 681.

In 1976 a scheme was introduced by the bank known as the Ghana Commercial Bank Special Pension Scheme. The objects of the scheme included the following: (a) to serve and reward for long service and devotion to duty; and (b) to provide employees with satisfaction that they need not have financial worries because of age or infirmity. The directors of the bank for the time being were the trustees of the scheme which came into operation on 1 October 1976. At its meeting held on 27 February 1987 the board of trustees approved a proposal for the revision of the pension scheme as presented to it in a memo dated 13 February 1987. The proposal which was approved was in these terms:

“In October 1986 . . . the government approved new pensions for the Civil Service based on 70 per cent of the existing salary of those on retirement. The board of trustees of Ghana Commercial Bank Special Staff Pension Scheme at a meeting held on 17 December 1986, agreed that proportionate adjustments should be effected to the bank’s pensions based on current basic salaries with effect from October 1986. It was also agreed to recommend automatic adjustments of pensions whenever salaries change.”

Following disputes between the association and the bank over the bank’s obligations under the scheme the association brought an action on 23 January 1995 in the High Court seeking, inter alia, the following reliefs:

“(1) a declaration that the plaintiffs are entitled to be paid their pension rights in accordance with the defendants’ board of directors amendment decisions of 27 February 1987;

[p.506] of [2001-2002] 1 GLR 502

(2) arrears of pension due the plaintiffs with interest at current bank rate with effect from 1 July 1987;

(3) damages for breach of contract; and (4) an order for perpetual injunction.”

Reliefs (3) and (4) were abandoned at the trial.

On 22 February 1999 the bank submitted to judgment in respect of relief (1). Because of the importance of this submission the proceedings on that day deserves to be quoted in full.

“Plaintiffs-Represented by Mrs Beryl Prah.

Defendant—No Representation, Prof Ekow Daniels for plaintiffs—present with E A Osew and Bruce Thompson.

Mr Norvor (arrived)—‘I have instructions from the defendant to submit to judgment in respect of relief (1). On interest payment, I am instructed to seek for a settlement with the plaintiffs’ counsel. We are yet to meet.’ BY COURT:

Suit is adjourned to 1 March 1999 for court (sic) to be announced.

(Signed) Nana Gyamera-Tawiah J)”

On 30 March 1999 the High Court granted the application of the plaintiff-association for an order of account in accordance with the submission to judgment on 22 February 1999, and by consent a referee was appointed to go into the accounts and to report to the court. On 3 April 1999 following the submission to judgment in respect of relief (1) the plaintiff-association filed a judgment after trial. It said that Mr Justice Nana Gyamera-Tawiah on 22 February 1999 having ordered that judgment be entered for the plaintiff, it was:

“adjudged that the defendant do pay to the plaintiffs all their pension rights in accordance with the defendant’s board of directors amendment decision of 27 February 1987. Arrears of pension are to be paid to the plaintiffs as from 1 July 1989. The rate of interest exigible to be subject to agreement.”

In 2000, following the report of the referee, one WK Nketia of the High Court registry who was appointed to go into the accounts of the parties, the plaintiffs filed an application in the High court praying for the definitions of the terms “current basic salary” and “automatic adjustment of pensions whenever salaries change” which had appeared in the decision of the board of directors of defendant-bank referred to

[p.507] of [2001-2002] 1 GLR 502 in the judgment after trial dated 22 February 1999. On 20 December 2000 the trial judge, Nana Gyamera Tawiah J ruled in favour of the plaintiffs. The defendant-bank appealed and the plaintiffs cross-appealed.

In the Court of Appeal it was discovered that there was nothing in the record of proceedings which indicated that the judge formally gave judgment when the defendant-bank submitted to judgment on 22 February 1999. It is clear that the trial judge failed or omitted to record a judgment in the record book. As a result of this the Court of Appeal allowed the appeal solely on the ground that as the judge had not ‘entered” or delivered” a judgment, there was nothing to enforce. It in effect nullified the judgment after trial and all other processes or proceedings that followed the submission to judgment by the defendant-bank.

The reasons for the Court of Appeal’s decision are forcefully stated in the judgment of Benin JA in which Owusu-Ansah JA concurred. He said:

“There was no judgment by the High Court in respect of reliefs (1) and (2) endorsed on the writ on 22 February 1999 on any day thereafter, according to the record, so all the subsequent proceedings aimed at giving effect to that non-existing judgment were totally misconceived. A fortiori, there was no judgment to enforce, let alone one to appeal against. In the absence of a judgment or order to give effect to the defendant’s submission to judgment, it remained only an unenforceable admission on paper. It had no legal force, at best it could only be relied upon in any proceedings between these parties as an admission of that claim, thereby creating estoppel against them. Hence the ruling of 20 February 2000 was a perfect ‘non sequitor’. In my view, therefore, this was a classic case of a mistrial. For that reason, I will uphold the appeal and direct that the case be sent back to the High Court to be heard on its merits, not discounting the admission made on 22 February 1999.”

Omari-Sasu JA thought the omission to include the judgment of 22 February 1999 was “the default of the High Court” and it should be ordered to supply the “missing link” to enable the Court of Appeal to dispose of the appeal.

Because of the view taken by the Court of Appeal, it did not even consider whether in exercise of its powers under rules 31 and 32 of the Court of Appeal Rules 1997 (CI 19) it could itself record an

[p.508] of [2001-2002] 1 GLR 502 appropriate judgment. The order of the Court of Appeal has even more serious implications. The High Court will have to record or note a judgment in the record book; a new judgment after trial has to be prepared and filed; a new application for the appointment of a referee will have to be brought and considered; it will be necessary to hear again an application to interpret terms in the new judgment whose meaning is disputed; and finally, if necessary, a new appeal and cross-appeal will be filed, new statements of case and reply submitted, and there will be a fresh hearing of the appeal and cross-appeal, new judgment and orders of the Court of Appeal. The situation may be worse. The time in which the order of the Court of Appeal can be carried out will depend upon when Gyamera-Tawiah J will be available to take the High Court processes I have mentioned above. If he cannot be available, a new judge will have to be assigned to the case. The order of the Court of Appeal will cause considerable delay.

The main ground of the instant application for an order of certiorari is error on the face of the record because the court below failed to exercise its powers under rules 31 and 32 of CI 19. In our view the main issue is whether the Court of Appeal was right in holding that there was no judgment and that all subsequent proceedings aimed at enforcing the “non-existent judgment” were misconceived and “non-sequitor,”: in other words, null and void.

The term ‘judgment’ has at least two meanings. First, it may be used to refer to the formal document in which the decision, determination or conclusion of the court is expressed; and secondly the reasoning or the exposition of the grounds for reaching that decision, determination or conclusion. It is in our opinion in the latter sense that “Judgment” in Order 36 r 24 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) is used; while the document called “judgment after trial” describes the first sense in which the term is used.

As we understand the judgment of the Court of Appeal, the record book of the trial court must show that a judgment was “entered” or “delivered” by the court or judge. Without such a record there is no judgment; and even the document in which, under the rules of the High Court, the judgment of the court is formally expressed and which must be entered to give effect to the decision of the court — the “judgment after trial”, is of no effect. It also seems from the court’s judgment that a judge must “enter” judgment by making a record or note in the record book of his decision, determination or conclusion.

[p.509] of [2001-2002] 1 GLR 502 In our opinion this view is not correct. The rules do not require a judge to enter judgment, he is only required to direct judgment to be entered. This is clear from Order 36, r 24 of LN 140A which provides: “The judge, or other judicial officer shall, at or after trial, direct judgment to be entered as he shall think right, and no motion for judgment shall be necessary in order to obtain such judgment.”

The direction or pronouncement of judgment can be oral, as is normally the case in England where judgments are pronounced soon after addresses of counsel unless the judge adjourns the case curia advisare vult. Although in this country judges or courts almost invariably record or note in the record book the judgments or orders they make, Order 36, r 24, of LN140A does not say or require that unless the direction of the judgment is recorded or-noted in the record book there is no judgment.

The judgment of the Court of Appeal also attaches to the pronouncement of a judgment an effect it does not have. It makes that pronouncement the final judgment, which only can be enforced. But until a judgment directed or pronounced by a judge is entered it is not effective. In Holtby v Hodgson (1889) 24 QBD 103 107 CA Lord Esher MR said:

“In order, . . . to get everything into one form, power is given to the judge at nisi prui’s to do what he could not have done before, to direct judgment to be entered according to the verdict, which is the same thing as giving him power to give or pronounce judgment. Pronouncing judgment is not entering judgment; something has to be done which will be a record, and so the judgment that the judge has pronounced is the judgment which is to be entered.”

In Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 KB 717 Slesser LJ said: “. . . there is no effective judgment until it is drawn up and . . . up to that time the judge is not functus officio . . .”

Farwell, J also said at 726:

“It is now settled, that until an order made by a judge has been perfected, by being passed and entered, there is no final order, and consequently the judge may, at any time until the order is so perfected, vary or alter the order which he had intended to make.”

The judgment after trial is the formal record of the judgment pronounced by the judge at or after the trial. It is the document which

[p.510] of [2001-2002] 1 GLR 502 contains the full details of the judgment and must be filed under Order 41, r 1 of LN140A to give effect to the judgment pronounced by the judge under Order 36, r 24 of LN 140A. Without it, the judgment pronounced by the judge cannot be enforced. Since it is the formal record of the judgment of the court its existence is a most cogent evidence that the judge pronounced judgment at or after the trial. In our opinion, where judgment after trial has duly been entered it must be presumed that the judge regularly performed his duty of pronouncing judgment at or after the trial (see section 37 of the Evidence Decree, 1975 (NRCD 323).

In the case before us the defendant did not object to the terms of the judgment after trial filed by the plaintiffs on 3 April 1999. All the parties and the trial judge acted upon it, none of them had any doubt that a judgment had been directed or pronounced. The correctness and validity of the judgment after trial were not in issue in the proceedings to interpret certain terms arising from it. It was therefore wrong for the Court of Appeal to declare that there was no judgment to interpret or enforce because there was no note or record of the judgment the judge directed or pronounced when the defendant-bank submitted to judgment.

We are not saying that judges or courts should not or need not record or note in the record book the judgments or orders they make. It is a salutary practice and in case there is a dispute over the contents of a judgment after trial it, may be crucial in resolving the conflict. But the absence of such a record or note in the record book can at worst only be regarded as an irregularity if, in fact, there is a judgment after trial which contains or must be deemed to contain the judgment directed or pronounced by the judge at or after the trial.

In our opinion the Court of Appeal seriously erred when it declared that there was no judgment and ordered the case to be sent back to the High Court to be dealt with from the date the defendant submitted to judgment on relief (1). This is a case where it is appropriate for this court to order the judgment of the Court of Appeal delivered on 20 December, 2001 to be brought up to be quashed.

If the Court of Appeal had not taken the view it took and had regarded as a mere irregularity the omission of the trial judge to note or record in the record book a judgment of the court after the defendant had submitted to judgment, it could itself, in exercise of its powers under rules 31 and 32 of the CI 19), have recorded a judgment the trial court could have given. It must now be ordered to do so and proceed

[p.511] of [2001-2002] 1 GLR 502 to rehear the case that had been brought before it on appeal by the parties.

We would grant all the reliefs sought by the applicant-association in the application dated 22 February 2002.

Application for Certiorari and mandamus granted.

JNNO