STATE GOLD MINING CORPORATION v. SISSALA [1971] 1 GLR 359

DIVISION: IN THE COURT OF APPEAL

DATE: 29 MARCH 1971

BEFORE: APALOO, ANIN AND ARCHER JJ.A.

CASES REFERRED TO

(1) Bank of Ghana v. Labone Weavers Enterprises Ltd. [1971] 1 G.L.R. 251, C.A.

(2) Shubrook v. Tufnell (1882) 9 Q.B.D. 621, C.A.

(3) Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547, C.A.

(4) Salaman v. Warner [1891] 1 Q.B. 734, C.A.

(5) Isaacs & Sons v. Salbstein [1916] 2 K.B. 139, C.A.

(6) Kpanyinli v. Western Nzima State Council (1957) 3 W.A.L.R. 190.

(7) Woyome v. Agbomasu (1957) 3 W.A.L.R. 270.

(8) Nkawie Stool v. Kwadwo (1956) 1 W.A.L.R. 241, W.A.C.A.

(9) Ababio v. Turkson (1950) 13 W.A.C.A. 35.

NATURE OF PROCEEDINGS

APPEAL from a ruling of Aboagye J. in the High Court, Sekondi, on 21 July 1969, unreported; digested in (1969) C.C. 145, in which it was held that the respondent was not barred by section 24 (4) of Act 179 from bringing an action for damages against the appellants.

COUNSEL

C. H. A. Tettey, Principal State Attorney, for the appellants.

James Mercer for the respondent.

JUDGMENT OF APALOO J.A.

The respondent was employed by the appellant corporation (hereinafter called the corporation) as a machine driver in the latter’s mine at Prestea. On 30 June 1966, while engaged in his work, he was involved in an accident which resulted in the amputation of his left leg. On 13 December 1967, the respondent and the corporation entered into an agreement professedly under the Workmen’s Compensation Act, 1963 (Act 174), in which the latter paid to the former, the sum of N¢1,043.97 [p.361] of [1971] 1 GLR 359 as compensation for his injuries. On 9 January 1968, the respondent applied to the circuit court to have that agreement cancelled. This application was acceded to on 9 April of that year but the court then proceeded to make an order not entirely in harmony with the cancellation of the agreement. Barely a month after the court’s order, the respondent brought an action in the High Court, Sekondi, against the corporation for damages at common law for his injuries. The action was grounded on an averment that the corporation was negligent in failing to provide a safe system of work. This was denied in the pleadings filed on behalf of the corporation. The latter also pleaded in the alternative that inasmuch as the respondent received compensation in accordance with the provisions of the Workmen’s Compensation Act, he was barred from bringing an independent action in respect of the same injuries. The respondent joined issue with the corporation on this plea.

The corporation thought that the alternative plea, if upheld, would dispose of the matter. It accordingly moved to have it decided as a preliminary issue under Order 25, rr. 2 and 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). On 7 July 1969, rival arguments were presented to Aboagye J. by counsel for the parties. On 21 July 1961 the court delivered a reasoned ruling in which it held that the respondent was not barred by section 24 (4) of the Workmen’s Compensation Act from bringing the present suit. The result of the court’s ruling is that the damage suit will have to be determined on its merits. The corporation say that the ruling was wrong and they seek by this appeal to have it reversed. When the hearing of this appeal commenced before us, Mr. Mercer, counsel for the respondent, objected that the appeal was not properly before us. This is because the order appealed against was interlocutory and cannot be appealed against without special leave. For authority, he relies on the now familiar legislation, namely, the Court Decree, 1966 (N.L.C.D. 84), para. 7, as amended by the Courts (Amendment) Decree, 1968 (N.L.C.D. 277), para. 1 (a). It is common ground that no special leave was obtained to bring this appeal. It has been brought to our notice, that there is professional doubt whether or not special leave is still required to appeal to this court against an interlocutory order. Such doubts were set to rest by the ruling of this court in the Bank of Ghana v. Labone Weavers Enterprises Ltd. [1971] 1 G.L.R. 251, C.A. The instant appeal was lodged on 5 August 1969, and is accordingly unaffected by the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), and article 110 of the Constitution, 1969, which came into force on 30 September and 22 August 1969, respectively. Therefore, if the order appealed against is an interlocutory one, then Mr. Mercer’s objection is made out. Mr. Tettey, counsel for the corporation, concedes this to be the position. But he resists the contention because he argued that the order was in fact a final one and he was therefore entitled to appeal as of right. He founded himself on the 1882 decision of the English Court of Appeal in Shubrook v. Tufnell (1882) 9 Q.B.D. 621 and submitted that the test laid down in that case for distinguishing an [p.362] of [1971] 1 GLR 359 interlocutory order from a final one was: If the order in question is reversed, would the action have to go on? He submitted that if the order complained of is reversed, that would be an end of the action and accordingly, that order was final. But Mr. Tettey properly, and in the best tradition of the profession, drew our attention to the later case of Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547, C.A. where a different test was laid down. There, Lord Alverstone C.J. said at p. 548:

“It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”

I think Mr. Tettey was right when he said the decisions and the tests laid down for distinguishing interlocutory from final orders are not all in accord. This is due, in part, to legislative inertia, for section 68 (2) of the English Supreme Court of Judicature (Consolidation) Act, 1925 (15 &16 Geo. 5, c. 49), provides that: “Any doubt which may arise as to what orders or judgments are final, and what are interlocutory, shall be determined by the Court of Appeal.” However, it did not lay down any criteria by which this is to be done. Equally, no guidance for determining this was provided by rule 29 of our Supreme Court Rules, 1962 (L.I. 218), which deals with this matter. This accounts for the somewhat multiplicity of tests laid down by different judges. For instance, in Salaman v. Warner [1891] 1 Q.B. 734, C.A. the test laid down for distinguishing a final from an interlocutory order as stated in the headnote at p. 734 was: “A ‘final order’ is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation.” In the later case of Isaacs & Sons v. Salbstein [1916] 2 K.B.139, the English Court of Appeal refused to follow the Salaman test but approved the test laid down by Lord Alverstone C.J. in the Bozson case.

The divergence of views in England on this matter is reflected in two High Court judgments delivered in this country in 1957 within a month of each other. In Kpanyinli v. Western Nzima State Council (1957) 3 W.A.L.R. 190, Acolatse J. held that a ruling on a submission of res judicata was interlocutory because it did not determine the main dispute between the parties. This is the Bozson test (supra). Precisely a month afterwards Ollennu J. (as he then was) in Woyome v. Agbomasu (1957) 3 W.A.L.R. 270, reached an entirely opposite conclusion. He held that a ruling on a submission of res judicata was a final and not an interlocutory order, because, as he put it at p. 272: “A decision on a plea of res judicata is not a decision merely on a matter in the cause, it is a decision on the cause itself.”

This seems to be the Salaman test (supra). But the test which seems to have had the endorsement of the West African Court of Appeal is the Bozson case which Acolatse J. apparently applied. In Nkawie Stool v. Kwadwo (1956) 1 W.A.L.R. 241, W.A.C.A., it was held that an order which dismisses the plaintiff’s action but without prejudice to his right

[p.363] of [1971] 1 GLR 359 to bring another action does not finally dispose of the rights of the parties and is therefore an interlocutory and not a final order. In that case, as no special leave was obtained, the appeal was struck out. The footnote at page 743 of Volume 22 of Halsbury’s Laws of England (3rd ed.), suggests that as many as four tests were laid down for ascertaining the finality of judgments or orders but it would seem that two of these are mere variants of the Salaman and the Bozson cases. But it is the latter that seems to have the weight of authority and is perhaps the easier to apply. That is the test that commended itself to the West African Court of Appeal and which it applied in the case of Ababio v. Turkson (1950) 13 W.A.C.A. 35 and in Nkawie Stool v. Kwadwo (supra).

I will accordingly apply that test to the ruling in question. That ruling, as I said, merely decides that the respondent is not barred from bringing this action. Whether the respondent was entitled to damages against the corporation for negligence or whether the latter was free from liability from such a claim, is yet to be decided and is indeed now pending for determination. It is therefore manifest that the order appealed against did not finally dispose of the rights of the parties. I, therefore, hold that it is interlocutory and as special leave to appeal was not obtained in accordance with paragraph 1 (a) of N.L.C.D. 277, the appeal is not properly before us. I would therefore strike it out with costs.

JUDGMENT OF ANIN J.A.

I agree.

JUDGMENT OF ARCHER J.A.

I also agree.

DECISION

Appeal dismissed.

T. G. K.