ARYETTEY AND OTHERS vs. GHANA COMMERCIAL BANK [1997-1998] 2 GLR 555

CASES REFERRED TO

(1) Matthews v Munster (1887) 20 QBD 141; 57 LJQB 49; 57 LT 922; CA.

(2) Baiden v Solomon [1963] 1 GLR 488, SC.

APPLICATION in Court of Appeal for enlargement of time within which to furnish the defendants with better and further particulars as ordered by court, brought after the parties had amicably settled suit orignallyoriginally pending before the High Court out of court. The facts are sufficiently set out in the ruling of Wood JA.

Dr Ekow Daniels for the plaintiffs.

A Norvor for the defendant.

Wood JA. There has been a slight misdescription of the parties in these proceedings and I think it is my duty to rectify the errors, however inconsequential they may be. F A Aryettey and others, were at the hearing of the substantive appeal, the plaintiff-respondents and not defendant-respondents as they have been described in the motion paper and supporting affidavit. Similarly, the Ghana Commercial Bank were the defendant-appellants, not the plaintiff -appellants. In these proceedings, however, I shall refer to them as plaintiffs and defendants respectively.

[p.559] of [1997-1998] 2 GLR 555

The plaintiffs who at the time were the executive members of the Ghana Commercial Bank Pensioners Association, instituted representative proceedings on their own behalf and on the behalf of the 764 other members of the association. They sought prima rily to recover pension they maintain they are entitled to at their retirement from the bank. The bank unfortunately resisted the claim and applied for full particulars of those others on whose behalf they sued. This simple application was however turned down by the trial judge who thought that, among other things, allowing the application would delay the trial unduly. However, on appeal, this court on 27 February 1997 reversed the decision of the court below and ordered these particulars to be furnished to the defendants within fourteen days of the order and for the case to proceed to trial, albeit before another judge, for reasons other than his mere refusal to accede to the prayer. That order was never complied with. After a period of almost nine months, one Beryl Prah and J E Carr, describing themselves as the new chairperson and secretary respectively of the association and using the name of the original plaintiffs, have come to this court by way of a motion, supported naturally by an affidavit in support, praying for an order of enlargement of time within which to comply with our order of 27 February 1997. The reasons for the application are contained particularly in paragraphs (5), (6), (7) and (10) of the affidavit accompanying the motion. I will reproduce them. They read as follows:

“(5) That instead of complying with the order, Mr Aryettey without the knowledge, approval and consent of the association and its members ignored it by filing a purported memorandum of settlement in the High Court to the detriment of the members.

(6) That we are advised by our solicitors and verily believe the same to be true that the so-called settlement and a copy of which is now produced to us and shown to be marked BF2 is not binding on us and of no effect and was entered into contrary to section 324 of the Companies Code, 1963 (Act 179).

(7) That consequently the members of the association protested against Mr Aryettey’s conduct and passed a resolution to withdraw their retainer from their previous [p.560] of [1997-1998] 2 GLR 555 counsel, a copy of which is now produced and shown to be marked as exhibit BP3.

(10) That at the last quarterly meeting of the Ghana Commercial Bank Pensioners Association held on Saturday, 20 September 1997 in Acecra, the old executive members were voted out of office and replaced by us.

(11) We have now decided to comply with the order of the Court of Appeal and therefore ask for extension of time within which to furnish to the High Court to be nominated by the Chief Justice to take over the case teo be heard on its merits.”

Not unsurprisingly, the defendants have stoutly resisted the application arguing that:

(1) At the time of signing the memorandum, Aryettey had full authority of the assoc6iation to negotiate and sign the said terms of settlement.

(2) The members approved of the said agreement and consequently collected their entitlements from the defendant bank.

(3) The plaintiffs’ solicitor approved of the said settlement and collected his fees accordingly.

(4) That the appointment of the new executive members does not nullify the acts of the previous executive members, their removal having taken place after their endorsement of the said agreement.

These basically are the arguments advanced in opposition to the motion. It is therefore plain that from the affidavits, before we can decide whether or not to enlarge time as prayed, we need to resolve certain important legal issues. Arguably the most crucial are:

(1) Whether or not the old executive members as well as their counsel had the authority to negotiate the said agreement?

(2) Whether or not the members endorsed the said agree ment?

(3) Whether or not the said agreement offends section of 324 of the Companies Code, 1963 (Act 179)?

[p.561] of [1997-1998] 2 GLR 555

(4) Whether or not flowing from the above, there has been a valid and effectual settlement of the dispute between the parties?

The importance of this last issue cannot be over-empahsisedemphasised. While the two new executive members are saying that there has not been a valid settlement of the matter and so they should be given the opportunity to comply with the court’s order in order that the case might be tried on the merits, the defendants contention is that there had been such a full, final and binding settlement of the dispute that nothing remains to be determined and consequently this court need not and ought not extend time. Granting the order would, according to their argument, be an idle exercise.

After having given this matter very careful thought, I do now express my views. In the first place, I do not think that this court is clothed with jurisdiction at this stage to hear and determine the matters raised and which form the basis of this present application for enlargement of time. As an appellate court, yes, I do concede the point that in deserving cases we have power to enlarge. the time within which we have ordered any act to be done or any step to be taken. And, I am not in this ruling challenging this court’s power to extend time. What I am questioning is our authority as an appellate court, at this stage in the history of this case, to pronounce on the validity of the settlement, the material fact upon which the application for extension of time hangs. I think these matters are the preserve of the court of first instance, the High Court, Tema.

The question is, why do I say so? The plaintiffs did not find any fault with our order of 27 February. Had they, I believe they would have taken one of those steps that people who normally are dissatisfied with court orders take. And that is, to either appeal against the said order or to apply for a setting aside or a review of the said order. Impliedly then, they were not aggrieved by the said order. Rather, they decided to go back to the court below and comply with the said order for the case to proceed in the normal way. It is true that they did not provide these particulars as we have ordered and chose rather to negotiate a settlement. Whether or not the old executive members acted without lawful authority is of no moment. We in this court are not entitled to decide this question now. The truth of the matter however, is that the plaintiffs, as they were legitimately entitled to do, decided to settle

[p.562] of [1997-1998] 2 GLR 555 the matter. Indeed the fact that we reversed the decision of the court below and ordered them to furnish the particulars, did not take away their right to settle or compromise the action at any stage of the proceedings.

But then the fact also that the plaintifftsplaintiffs did file a memorandum of settlement at the court below has added another dimension to the case. And it is that which has affected this application. It is this. At the date of the hearing of this motion, the High Court which is the court of first instance and the court clothed with jurisdiction to hear and determine this case to finality has before it a memorandum of settlement which not only spells out the terms of settlement but has significantly also implored the court to dismiss the action. Indeed, by the paragraph (5) of the affidavit in support of the motion, the new executive members admit the pendency of the memorandum before the court. Never mind the fact that His Lordship, the Chief Justice has not as yet nominated the judge who is to deal with the case. That is a purely administrative matter with no bearing, let alone any significant bearing, on the status of the memorandum. The true factual and legal position is that the court is yet to determine whether or not it should uphold the terms of settlement and consequently dismiss the claim on that basis.

It seems to me then that the proper forum at which the plaintiff could raise the matters they have raised by this application, the proper forum for articulating those views expressed by both sides of this legal divide, is the court below where the memorandum is pending and is awaiting the court’s directions. Put in other words, the forum for resolving all the questions in controversy, questions as to the validity or otherwise of the settlement, as to whether or not it binds the parties or not, or as to whether or not it violates section 324 of Act 179 is not this court of appellate jurisdiction but the court of first instance. I am of the opinion that if we proceeded to determine these matters, we shall be usurping the functions of the court below.

In a representative action brought under Act 179, the court that shall have original jurisdiction to determine whether or not the proposed settlement or compromise of that claim is valid and fully and finally settles the rights of the parties is the court before which the action originated. It will be useful to reproduce the relevant section. It is section 324 (d) of Act 179. This incidentally is the

[p.563] of [1997-1998] 2 GLR 555 very law the executive members lament has been violated. It provides:

“324. Where under any section of this Code it is provided that if legal proceedings are instituted by any person he shall sue in a representative capacity on behalf of himself and other members of a class the following provision shall apply, that is to say, (a) such person may commence proceedings in such representative capacity without obtaining the consent and approval of any other member of the class represented and, subject to paragraph (b) of this section, such person shall have the sole conduct of the action and no other member of the class shall be deemed to be a party to the proceedings or in any way liable for the costs thereof;

(b) any member of the class represented may at any time prior to final judgement apply to the Court for leave to be made a party to the proceedings whether as co-plaintiff or otherwise and the Court may grant leave upon such terms regarding the conduct of the action and otherwise as it shall think fit; and if such leave is granted the applicant shall become a party to the proceedings and liable accordingly to have an order for costs made against him;

(c) any judgement given in the action shall bind and enure for the benefit of all members of the class represented, whether or not they have intervened in the proceedings in accordance with paragraph (b) of this section;

(d) no proceedings shall be dismissed, settled or compromised without the leave of the Court which may, if it shall think fit, order that notice of the proposed dismissal, settlement or compromise shall be given to all members of the class represented and any other persons.”

(The emphasis is mine.) By these provisions then, where any representative action has been instituted by any person on behalf

[p.564] of [1997-1998] 2 GLR 555 of himself and any other members of a class, as in this case, that action shall only be settled, compromised or dismissed with the leave of the court. Certainly, the court being referred to here is the court before which the action originated, in this instant case the High Court. That being so, in all class actions, where as in this case, while a suit is yet to be determined, either side files terms of settlement, the proper court that shall have jurisdiction to determine whether or not the parties shall be allowed to settle or compromise the action and whether consequently the action shall be dismissed is the court before which the matter is pending.

We in this court assumed a limited jurisdiction when we were in our appellate capacity called upon to determine whether or not the learned trial judge was right in refusing the application for further or better particulars. We became functus officio when we gave our decision of 27 February 1997 and we could only thereafter exercise only such limited powers as would make our order effectual. But certainly, matters such as these upon which the application for enlargement is founded particularly at a time when the court with original jurisdiction is at the same time, by the pendency of the memorandum seisedseized with jurisdiction, is clearly beyond our domain. Had the parties not attempted a settlement, culminating in one side filing a memorandum before the court, had the plaintiff merely failed to comply with our order, with none of these intervening circumstances that I have over and again described, and had the plaintiffs brought a simple application for enlargement of time, I think my views on this matter would have been different.

In my view then, it is only when leave to settle this action has been refused, it is only when the court has declined the invitation to dismiss this action, that this court may entertain and hear any application for enlargement of time. In any case, it does seem to me that even if we had co-ordinate jurisdiction with the High Court to determine the validity or otherwise of the said settlement, the fact that they were the first to be called upon to determine these matters will necessarily produce the same result that I have reached, namely that these questions may be tried there first before we can be called upon to decide whether to extend time to enable the respondents comply with an order; and even so, provided the losing party does not, inter alia, appeal the order. I think then that this motion is premature and I would dismiss same without going

[p.565] of [1997-1998] 2 GLR 555 into the merits. As a result, I would also grant liberty to the respondents to bring a fresh application.

I have based this ruling purely on a procedural ground. I wish, however, to touch on a small matter which has agitated my mind. It has to do with the locus standi of the new executive members. If the contention of the new executive members is that the original plaintiffs, Aryeetey and others, have ceased to represent the association and are therefore no more parties in these proceedings, if they are maintaining that they are now the proper persons now clothed with capacity, it seems to me they ought, under the appropriate rules, to take the necessary steps to have themselves made either substitute plaintiffs or otherwise, unless of course the law or the rules of court permit them, under the circumstances in which they find themselves, to intervene in these proceedings (and without leave) in the name of the original plaintiffs. In this connection they may do well to examine the clear provisions of section 324 of Act 179. By them, the original plaintiff that was clothed with capacity shall have sole conduct of the action and no other members of the class shall be deemed to be a party to the proceedings, except with leave of the court. Again, I deem it expedient to reproduce these sections:

“324 Where, under any section of this Code, it is provided that if legal proceedings are instituted by any person he shall sue in a representative capacity on behalf of himself and other members of a class the following provisions shall apply, that is to say, (a) such person may commence proceedings in such representative capacity without obtaining the consent and approval of any other members of the class represented and, subject to paragraph (b) of this section, such person shall have the sole conduct of the action and no other member of the class shall be deemed to be a party to the proceedings or in any way liable for the costs thereof.

(b) any member of the class represented may at any time prior to final judgement apply to the Court for leave to be made a party to the proceedings whether as co-plaintiff or otherwise and the Court may grant leave upon such terms regarding the

[p.566] of [1997-1998] 2 GLR 555 conduct of the action and otherwise as it shall think fit; and if such leave is granted the applicant shall become a party to the proceedings and liable accordingly to have an order for costs made against him.”

(The emphasis is mine.) It follows that in class actions brought under the Act 179, the person who shall have sole conduct of the proceedings is the person who sues in the representative capacity for himself and on the behalf of the other members of the class. No other member shall without leave of the court be deemed to be a party to the proceedings and so be entitled to make applications such as the one before us.

In the result, this application is dismissed with liberty reserved in Mrs Beryl Prah and Mr Carr to file a fresh application.

Essilfie-Bondzie JA. The plaintiff-respondent-applicants (who will hereinafter be called the plaintiffs) have applied to this court for an order of enlargement of time within which to file the particulars ordered by this court on 27 February 1997 as per exhibit B, attached by the plaintiffs to the application.

The genesis of this application is that the first plaintiff and 769 others instituted an action bearing suit No 13/95 through their solicitor, Mr Jones-Mensah in the High Court, Tema claiming for the following reliefs:

“(a) A declaration that the plaintiffs are entitled to be paid their pension rights in accordance with the defendant board of directors’ amendment decision on 27 February 1987.

(b) Arrears of pension.

(c) Damages for breach of contract.

(d) An order of perpetual injunction.”

At the hearing of the suit, counsel for the parties agreed to set down certain legal issues for determination by the judge. The legal issues were argued by counsel. At the end of the various arguments, judgement was given in favour of the plaintiffs on their claim. Dissatisfied with the judgment of the High Court presided over by K K Acquaye J, the defendant-appellant -respondents (hereinafter referred to as the defendants) appealed to us the Court of Appeal to set aside the said judgment.

[p.567] of [1997-1998] 2 GLR 555

On 27 February 1997, the Court of Appeal by a unanimous decision allowed the appeal, set aside the judgment and ordered a trinal de novo (see exhibit BP 1). The court also ordered the plaintiffs to supply to the defendants further and better particulars inter alia, the identity of the plaintiffs within fourteen days from the date of the judgement. As already indicated, a copy of the order is annexed to the application and marked as exhibit BP 1. As revealed by the affidavits filed by the parties in this case, the Court of Appeal fixed the resumed High Court, Tema hearing for 17 March 1997. However, before the 17 March 1997, the defendants invited the plaintiffs for a settlement out of court. The case was amicably settled between the plaintiffs and the defendants. The terms of settlement were agreed upon by the plaintiffs and the defendants. These were then embodied in a memorandum of settlement and filed at the High Court, Tema. A copy of the said memorandum of settlement is annexed to the motion and marked as exhibit BP 2.

In his submission before this court, Dr Ekow Daniels argued that Mr Aryettey who signed the terms of settlement as a representative of the plaintiffs did so without the approval and consent of the other members of the Ghana Commercial Banlk Pensioners Association. Learned counsel contended that the said settlement out of court is not binding and of no effect and was entered into contrary to section 324 of the Companies Code, 1963 (Act 179). He therefore asked the court for an extension of time within which to furnish the particulars ordered by the court.

Mr Norvor for the defendants, who opposed the application, submitted that at the time of the signing of the terms of settlement, Mr Aryettey had the full authority of the plaintiffs. He said that the plaintiffs having taken advantage of the terms of the out-of-court settlement and collected their entitlements, cannot be heard to say that they were not consulted. He argued that the settlement was not contrary to section 324 of the Act 179. And failure to comply with the Companies Code is not fatal and did not invalidate the out-of-court settlement.

It is significant to point out that at the resumed sitting of the High Court, Tema on 17 March 1997 (as ordered by the Court of Appeal), counsel for the plaintiffs who acted for the latter in the abortive suit appeared for the plaintiffs. This is borne out by exhibit BP5 annexed to the plaintiffs’ affidavit. This means that up to the time settlement was effected, Mr Jones -Mensah acted as [p.568] of [1997-1998] 2 GLR 555 both solicitor and counsel for the plaintiffs. A look at exhibit BP6, also attached, shows that although counsel for the plaintiffs and the defendants were not present when the terms of settlement were negotiated, Mr Jones-Mensah approved and confirmed the settlement and indeed took advantage of it by receiving payments made by the defendants in furtherance of the settlement. This benefit, it is noted, was taken without the least protest at the time of the receipt thereof on the part of the plaintiffs and their counsel. The plaintiffs’ own exhibit BP6 also shows that the plaintiffs were notified of the terms of settlement before they collected their entitlements under the said terms of settlement.

Exhibit HPG is a letter addressed to Dr Ekow Daniels by Mr Jones-Mensah, ostensibly to explain the various stages through which the case under review travelled. The letter reads, inter alia, as follows: “Thank you for your letter of 2 August 1977. I am afraid it will be professionally incompetent and indeed unethical for me to say, at this stage that the above litigation is still pending. It is not. True it is that in this suit I opposed the settlement out of court which was conducted behind my back, but also true it is the fact that all the plaintiffs were fully aware of the settlement at all material times. They accepted it, and indeed took advantage of it by receiving payments made by the bank in furtherance of the self-same settlement. This benefit, it must be noted, was taken without the least semblacesemblance of protest at the time of receipt thereof on the part of any of the plaintiffs. It is moreover true to say that Mr Aryettey was, at all material times, the accredited representative of the plaintiffs and the this at the behest of all plaintiffs. He indeed dealt with my chambers on plaintiffs’ behalf at all material times. His authority to act on their behalf and to conclude a settlement on their behalf therefore cannot be questioned by me at this point in time–—more so when all the plaintiffs themselves supported Mr Aryettey against my resistance of the self-same settlement . . .”

The said memorandum of settlement–—exhibit BP 2— as mentioned above was filed in the High Court at Tema. It reads:

“Suit No 86/96

[p.569] of [1997-1998] 2 GLR 555

F M A ARYETTEY & ORS – PLAINTIFFS v GHANA COMMERCIAL – BANK – DEFENDANT

TERMS OF SETTLEMENT

The above instituted suit is settled out of court on the following terms:

1 The defendants hereby agree to pay and the plaintiffs agree to accept payment of pension of 70 per cent of the basic salary attached to posts on which they retired as per board of directors’ resolution passed on 27 February 1997.

2 The defendants agree to pay interest on the arrears of pension and the plaintiffs agree to accept payment of arrears of pension at an interest rate of twelve per cent.

3 It is further mutually agreed that each party should bear their own costs of the litigation both at the High Court, Tema and the Court of Appeal, Accra.

4 That the suit be dismissed upon filing terms of settlement in the High Court, Tema.

DATED AT ACCRA 7TH DAY OF MARCH, 1997.

SIGNED BY THE PLAINTIFFS’ REPRESENTATIVE MR F M A ARYETTEY SIGNED BY THE DIRECTOR OF ADMINISTRATION, GCB, ACCRA”

As the documents and affidavits filed in this application indicate, following the signing of the above memorandum of settlement, Mr Jones-Mensah, the then solicitor for the plaintiffs, confirmed and accepted their terms of settlement and later entered into an agreement with the Ghana Commercial Bank Pensioners Association on 25 March 1997 and collected his fees. The said agreement which was signed by Mr Jones-Mensah and repre- sentatives of the plaintiffs has been attached to the defendants’ affidavit and marked as exhibit GCB 3 which reads:

“Suit No C 86/96

[p.570] of [1997-1998] 2 GLR 555 F M ARYETTEY & 769 ORS – PLAINTIFFS VRS v GHANA COMMERCIAL BANK – DEFENDANTS In consideration of professional legal services rendered to the seven hundred and seventy plaintiffs in the above suit at the Commission for Human Rights and Administrative Justice, the High Court and the Court of Appeal and the eventual settlement thereof:

IT IS HEREBY AGREED that the Ghana Commercial Bank Pensioners’ Association shall pay as professional legal fees to Mr Jones-Mensah as follows: a In respect of each plaintiff, the sum of Two Hundred Thousand Cedis (200,000), ie a total sum of one hundred and fifty-four million cedis (¢154,000,000) plus two million cedis (¢2,000,000) as miscellaneous expenses, making a grand total of one hundred and fifty-six million cedis (¢156,000,000). b That the plaintiffs by this agreement do hereby authorise the defendants to deduct this sum of ¢156,000,0000 at source from the plaintiffs’ entitlements as per the settlement in this case, and pay same to Mr Jones-Mensah.

DATED AT TEMA THIS 25TH DAY OF MARCH, 1997.

For Ghana Commercial Bank Pensioners’ Association represented by:

1 E K DJAIDOO – Vice President (Sgd)

2 E GORDON ARYEE – Secretary (Sgd)

3 E N DODOO – Welfare Officer (Sgd)

4 A L TAWIAH – Treasurer (Sgd) all as representatives of the above plaintiffs.

Signed by JONES-MENSAH WITNESS (Sgdl).”

(The emphasis is mine.) The combined effect of the plaintiffs’ own Exhibit BP6 (Supra) and exhibit GCB3 (supra) signed by Mxr Jones-Mensah, the solicitor for the plaintiffs, plainly establishes, as I have said, that at the time of the signing of the terms ofl settlement, MR F M A Aryettey had the full authority and consent of the plaintiffs to sign the said terms of settlement. These exhibits

[p.571] of [1997-1998] 2 GLR 555 also prove that the plaintiffs were notified of the terms of settlement and approved of them before they collected their entitlements.

It is my view that having taken advantage of the terms of settlement out of court and collected their entitlements from the defendant-bank, the plaintiffs cannot now be heard to say that the said out of court settlement offends against section 324 of Act 179. The purpose section 324 in my view is merely to ensure that there is no collusion between the person suing in a representative capacity and the defendants. In this case, the plaintiffs have not alleged and proved that their representative colluded with the defendants. To allow the plaintiffs therefore to take advantage of section 324 would be committing a fraud on the defendant, since the plaintiffs have collected their benefits under the terms of settlement.

Aside from this, it is not disputed that the plaintiffs were represented by Mr F M A Aryettey throughout the abortive trial. This fact is borne out in exhibit BP6. And up to the time of settlement, the plaintiffs intentionally and deliberately permitted the defendant-bank to believe and to act upon the belief that at all material times, Mr Aryettey was their accredited representative. Hence, under the principle of estoppel by conduct either under common law or as provided for under the Evidence Decree, 1975, (NRCD 323), s 26, the plaintiffs are estopped from saying that Mr Aryettey signed the terms of sefttlemernt without their knowledge and consent. The plaintiffs are bound by the terms of settlement—– exhibit BP 2.

Again, as I have said, the plaintiffs’ Solicitor, Mr Jones -Mensah, accepted the terms of settlement out of court and entered into an agreement on behalf of the plaintiffs with the defendant bank. He not only signed the said settlement agreement—–exhibit GCB 3—–he collected his fees under it. “The duty of counsel,” said Lord Esher MR in Mathews v Munster (1887) 20 QBD 141 at 143 “is to advice his client out of court and to act for him in court, and until his authority is withdrawn he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client.” In this case, Mr Jones-Mensah did not need the consent of the plaintiffs for a matter which ordinarily falls within the ambit of his authority as solicitor, and if an admission is made by him or states that an action has been

[p.572] of [1997-1998] 2 GLR 555 settled, the plaintiffs are precluded from saying that the matter has not been settled.

I hold that the admissions made by Mr Jones-Mensah, solicitor for the plaintiffs, in exhibits BP 6 and GCB 3 are binding on the plaintiffs. See Baiden v Solomon [1963] 1 GLR 488 SC. In clause 4 of the terms of settlement exhibit BP 2 it was agreed “that the suit be dismissed upon filing the terms of settlement in the Court, Tema.” According to Mr Jones-Mensah’s admission in exhibit BP 6, the terms of the settlement were filed with the High Court at Tema on 17 March 1997. This ended the matter. I agree with Mr Jones-Mensah when he declared in the plaintiffs’ exhibit BP 6 that “I am afraid it will be professionally incompetent and indeed unethical for me to say, at this stage, that the above litigation is still pending—–It is not.” In these circumstances, I do not think it is open to this court to re-open the case by granting the instant application for the matter to be re-litigated. There must be a finality to litigation at a point in time. I consider the application for enlargement of time incompetent and it is dismissed.

Gbadegbe J. The applicants herein pray in the motion before us for an order extending the time within which to comply with an order of this court exhibited to this application as “BP 1”, whereby following an appeal against the refusal of the trial court to order further and better particulars it was ordered as follows: “It follows we have granted the application for further and better particulars and order this particulars to be supplied within fourteen days from today.”

In the course of arguments, it was quite apparent that the basis of the extension sought is that the purported terms of settlement contained in exhibit BP 2 did not comply with section 324 (d) of the Companies Code, 1963 (Act 179) in that the leave of the trial court was not sought to effectively constitute the said terms into a valid settlement. It was therefore not surprising that the arguments canvassed for and against the application centred mainly on what the said provision means. An examination of the processes in aid of the application ought to have first been raised before the trial court on the grounds that the leave required under the enabling legislation is one for the trial court. Since this forum is not a court of first instance, it is not enabled by law to exercise original

[p.573] of [1997-1998] 2 GLR 555 jurisdiction but only appellate jurisdiction in the nature of a re- hearing on the transcripts before it. I am of the thinking that the invitation to this court contained in the body of the motion before us, if acceded to, would clearly amount to a usurpation of the powers of the trial court.

I have no doubt that such an accession would deprive the trial court of expressing its views on the point taken under section 324 (d) before the same is raised in the appellate court. In my opinion, therefore, the proper course open to the applicants is to appear before the trial court and raise the concerns which they have urged before us in order that the trial court may exercise its discretion under the said provision.

The result is that I am unable to consider the application herein on the merits, and say that the same is improperly before us and proceed to have it struck out as incompetent.

Application dismissed.

SA