TETTEH AND OTHERS vs. ESSILFIE AND ANOTHER [2001-2002] 1 GLR 440

CASES REFERRED TO

(1) Essilfie v Tetteh [1995-96] 1 GLR 297, CA.

(2) Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329; [1952] 1 All ER 1175; [1952] 1 TLR 1115, CA.

(3) St Johnstone Football Club Ltd v Scottish Football Association (1965) SLT 17.

(4) Mensah v Ghana Football Association, High Court, Cape Coast, 4 May 1988, unreported.

(5) Lawlor v Union of Post Office Workers [1965] Ch 712, [1965] 2 WLR 579; [1965] 1 All ER 353.

(6) Baiden v Tandoh [1991] 1 GLR 98.

(7) Timber and Transport Kumasi-Krusevac Co Ltd, In re; Zastava v Bonsu [1981] GLR 256, CA.

(8) Baker v Jones [1954] 1 WLR 1005; [1954] 2 All ER 553; 98 SJ 473.

APPEAL by the defendant-appellants three executive members of the Assin Fosu Branch of the Ghana Private Road Transport Union (GPRTU) and the Central Regional Chairman of the union, to the Supreme Court from the judgment of the Court of Appeal allowing the appeal of the plaintiff-respondents, also executive members of the union, against the ruling of the High Court, Cape Coast uphold-

[p.442] of [2001-2002] 1 GLR 440 ing the preliminary objection of the appellants and striking out the writ and statement of claim of the respondents on the ground that they had failed to comply with the requirement of article 24 of th union’s Constitution that they must exhaust the local remedies under the Constitution before instituting the action. The facts are sufficiently stated in the judgment of the court delivered by Kpegah JSC.

S A X Tsegah for the appellants.

J Opoku-Agyei for the respondents.

Kpegah JSC. Delivered the judgment of the court. The instant appeal presents no complicated legal or factual issues for determination. The issues presented relate to one of law which, in our view, are well settled and, indeed, well treated by the Court of Appeal in its unanimous decision of 22 June 1995 in Essilfie v Tetteh [1995-96] 1 GLR 297, CA.

The brief antecedents of this case are that all the parties are members of the Ghana Private Road Transport Union (GPRTU) of the Trades Union Congress. The plaintiffs together with the first, second and third defendants are all members of the Assin Fosu branch of the union with the said defendants being executive members of the local branch. The fourth defendant is the regional chairman of the Central Region branch of the GPRTU. By article 24 of the constitution of the union, members are to have recourse to, in the event of a dispute, certain domestic tribunals established under the constitution before, having recourse to, with the approval of the national executive council, any external adjudicatory authority. The plaintiffs in the instant case ignored this laid down procedure in the union’s constitution and immediately issued a writ in the High Court, Cape Coast seeking the following declarations and consequential orders against the defendants:

“(a) A declaration that the defendants have breached the constitution, rules and bye-laws of the Ghana Private Road Transport Union (GPRTU) of the TUC by failing to call local meetings of the Fosu branch union for seven and a half months contrary to article 18(iv)(a).

(b) A declaration that the branch chairman has breached the said constitution, rules and bye-laws by failing to call for an audit of the union accounts since 1991 contrary to

[p.443] of [2001-2002] 1 GLR 440 article 16(iv).

(c) A declaration that the term of office of the present executive has expired since 17 April 1993.

(d) A declaration that the first defendant is not qualified to hold the office of chairman by virtue of articles 12(a) and 26 of the constitution, rules and bye-laws, he not being the holder of a professional driver’s licence.

(e) An order for fresh elections in accordance with the union’s constitution, rules and bye-laws articles 12 and 15.

(f) An order for audit of the union’s accounts in accordance with the provisions of the constitution, rules and bye-laws, article 16.

(g) Perpetual injunction restraining the defendants, their agents, servants, assigns from exercising the functions of branch executives, including the operations of the union’s accounts.”

When the defendants were served with the writ of summons and the statement of claim, they entered a conditional appearance and proceeded to move the court to set aside the writ and statement of claim. The ground urged in support of this application was that the plaintiffs had failed to observe the procedure laid down in article 24 of the union’s constitution in the sense that they had not first exhausted the local remedies available to them under the said article 24, before proceeding to invoke the jurisdiction of the courts. The plaintiffs opposed this application and urged upon the trial court that if they had to comply with article 24 they would have had to take their complaint before certain organs, the membership of which was made up of the defendants, the very people at the centre of the controversy and against whom the action had been brought. The plaintiffs also contended that the defendants on certain occasions resorted to the courts without first submitting their complaints to the domestic tribunals as stipulated in the said article 24. The trial judge, Williams J, rejected the plaintiffs’ contentions and struck out the writ and statement of claim on the ground that the plaintiffs were “bound to follow the procedure provided in section 24 of the constitution.”

The plaintiffs, dissatisfied with this decision, appealed to the Court of Appeal which, in a unanimous judgment, allowed the appeal and directed the trial court to assume jurisdiction and

[p.444] of [2001-2002] 1 GLR 440 determine the case on the merit. It is against this decision that the defendants now appeal to this court.

Article 24 of the union’s constitution provides:

“(i) A dispute in the union, shall in the first instance, be settled at local or branch level. If the aggrieved party is not satisfied, he can appeal to the regional secretariat with a copy of the appeal to the branch.

(ii) If the party is still not satisfied with the ruling of the regional secretariat, he can appeal to the national secretariat, and after that, the national executive council, before he appeals to the executive board of the Trades Union Congress, and follow it up as laid down in the Industrial Relations Act, 1965 (Act 299).

(iii) With the exception of disputes or grievances which are referred to the national executive council or the executive board of the Trades Union Congress, all disputes or grievances should be settled within a month or the aggrieved party can appeal to the next higher stage for redress.

(iv) Under no circumstances shall a case within the union be sent to any external body for investigation or settlement without the prior approval of the national executive council. In all such situations, only cases that have exhausted the grievance procedure under this article may be considered.”

But before we proceed any further, we have to first deal with a preliminary point: have the courts of this country any power to go behind the words of article 24 and consider its validity before bringing it to bear upon the relationship between the parties and the subsequent determination of their rights accordingly?

On this issue, it is often said that the rules or regulations of a body like an association, club or union are to be regarded as terms of a contract laid down by its governing council or body to be observed by all who are members or chose to become members of the association, club or union. But like all contracts, they are subject to some, if not all, of the considerations which may make a contract unenforceable by the courts. So that if the stipulation in article 24 is valid, it would prevent a member from bringing any action in the courts without first having recourse to the domestic tribunals created in the union’s constitution or exhausting the local remedies available

[p.445] of [2001-2002] 1 GLR 440 under it and subject to the approval of the national executive council.

But such rules are often held invalid in certain circumstances on the ground that it is against public policy to make provisions ousting the jurisdiction of the courts. Lord Denning in the case of Lee v Showmen’s Guild of Great Britain [1952] 1 All ER 1175 at 1180, CA put it thus:

“Although the jurisdiction of a domestic tribunal is founded on contract, express or implied, nevertheless the parties are not free to make any contract they like. There are important limitations imposed by public policy.”

The law lord pointed out that where, for example, the parties by agreement seek to take the law out of the hands of the court and into the hands of a private tribunal without any recourse at all to the courts even in cases of error of law, such exclusionary clause is to that extent against public policy and therefore void. And Lord Kilbrandon in the Scottish case of St Johnstone Football Club Ltd v Scottish Football Association (1965) SLT 17 simply referred to such a regulation as “contrary to public policy.”

Public policy, therefore, appears to be the main ground on which the courts justify their inquiry into the validity of such preclusive or exclusionary clauses. And such a stipulation is held to be valid if it is found to be directory only and not imperative since that leaves it open to a member to have recourse to the courts in certain circumstances and in situations where the justice of the case so requires. We can, therefore, be taken to have no doubt whatsoever in our minds that it is illegitimate to make a rule or regulation so imperative or inflexible in its terms so as to oust or exclude completely the jurisdiction of the courts. The constitutional right of every citizen of this country to have easy and cheap access to the courts of the land for the purpose of vindicating his rights is so important that it cannot be exposed to such dangers. To completely restrain a man from coming to court with an action which prima facie he has a right to bring and prosecute is a very serious thing and this requires the vigilance of the courts themselves. This should be enough justification for their power to inquire into the validity of exclusionary clauses.

The law can then be stated as follows: although the courts would normally respect the wishes of parties to an agreement to submit

[p.446] of [2001-2002] 1 GLR 440 their disputes to an arbitration, the courts always have the power to inquire into the validity of such exclusionary clauses to determine if they relate to the ordinary conditions of the contract only, or can be classified as being against public policy to make the enforcement of such a clause illegitimate. This includes the submission that it is not all constraints on the rights of a party to an agreement to have recourse to the law courts that are invalid; this will depend on the nature and ambit of such constraints and each case must therefore be determined on its peculiar facts and circumstances.

The law was succinctly put in the case of Mensah v Ghana Football Association, High Court, Cape Coast, 4 May 1988, unreported. This is what the court said:

“The last point . . . to consider is the assertion that a club of its members cannot bring the Ghana Football Association to court in view of the provisions in the Ghana Football Association constitution and bye-laws. It has been held in several cases that the courts would respect the wishes of parties to an agreement to submit to arbitration related to ordinary conditions of the contract; but whenever there was an allegation of the breach of the rules of natural justice, a misinterpretation of the bye-laws or rules, like in the instant case, or misapplication of law, no preclusive or ouster clause in any agreement could operate to oust the jurisdiction of the courts to entertain the matter. The reason is that where the principles of natural justice are breached, there is no forum superior to the courts where redress can be sought; and also there is no forum superior to the courts for the interpretation of laws.”

Having decided that the courts can inquire into the validity of preclusive clauses, the court’s attention must be directed to the particular circumstances of the instant case to assist in the determination of whether it is a proper case to hold the parties to their bargain and enforce the stipulation in article 24 of the union’s constitution or not.

In the case of Lawlor v Union of Post Office Workers [1965] 1 All ER 353 at 363 (which was referred to in the judgment of the Court of Appeal), Ungoed-Thomas J made the following pertinent remark on preclusive clauses in trade union rules:

“Trade union rules clearly cannot oust the jurisdiction of the

[p.447] of [2001-2002] 1 GLR 440 courts. Contracts, including a contract constituted by trade union rules, may provide that recourse to domestic tribunals shall be exhausted before there is recourse to the courts, and that courts may recognise and give effect to that contract; but that does not oust its jurisdiction.”

In other words, a stipulation like that in the rules or bye-laws of a union can only have the effect of suspending the jurisdiction of the courts. It could be said that prima facie there is nothing unfair in article 24 of the union’s constitution—certainly nothing so unfair as to be considered against public policy. But the peculiar circumstances of the instant case will make any insistence on compliance by the plaintiffs unfair and also render the resultant adjudicatory process lacking in integrity. This is because, admittedly, the domestic tribunal with original jurisdiction in the matter is the local branch which is composed of the defendants.

And to first seek the local remedies as required by article 24 will amount to breaching the rules of natural justice that a person is not allowed to be a judge in his own cause. There are two Ghanaian proverbs which should adequately discourage the plaintiffs from engaging their adversaries on their turf: “The chicken”, they say, “is always found guilty in the court of hawks”; and that “the corn can never receive justice in the court of hens.” These two proverbs adequately illustrate the long held view of our elders that it is unacceptable for a man to be a judge in his own cause. The other domestic tribunals, namely the regional secretariat, the national secretariat, the national executive council and the executive board of the TUC established under article 24 have only appellate jurisdiction. This does not entitle them to assume original jurisdiction in the matter.

Again in the case Mensah v Ghana Football Association (supra) the court said:

“I will now come back to whether it was proper for the appeals committee to assume original jurisdiction over the matter. To be legal, where an appellate tribunal which has no original jurisdiction in the matter but only appellate jurisdiction finds the decision appealed from null and void, can it properly assume original jurisdiction and take evidence from the parties and decide the matter as if it were a forum of first instance? The answer must be a firm no! . . . It must here be said that the

[p.448] of [2001-2002] 1 GLR 440 appeals committee has no original jurisdiction in disciplinary matters or any other justiciable matter within the bye-laws. I am aware of the practice of calling further evidence on appeal I am however unaware of any procedure within this jurisdiction which permits an appellate tribunal which has only an appellate jurisdiction to assume original jurisdiction and decide the case because it finds the decision appealed from to be a nullity. The duties of an appellate court or tribunal in our jurisdiction are very clear. An appellate court’s primary duties are to hear and determine any questions of law arising; to act where wrong conclusions have been drawn from proven facts: see Asante v Bogyabi [1966] GLR 232. And having done so, to affirm or reverse the decision appealed from, or to remit the case. I do not think these functions include an assumption of original jurisdiction, especially where there is none in the appellate tribunal, to hear the case de novo. Even where the appellate tribunal can be said to have concurrent jurisdiction in the matter, the practice in our courts has been to remit the case for trial de novo, where the decision is a nullity, rather than for the appellate court to invoke its original jurisdiction in the matter. I am therefore of the view that the appeals committee erred when it decided to assume jurisdiction and hear the case on its merit as a tribunal of first instance.”

See also the case of Baiden v Tandoh [1991] 1 GLR 98.

As to the contention of the plaintiffs that the defendants were estopped from insisting on compliance with article 24 because they themselves have resorted to the courts in certain cases, without complying with article 24 of the union’s constitution, we think the principle laid down in the case of Timber and Transport Kumasi-Krusevac Co Ltd, In re; Zastava v Bonsu [1981] GLR 256, CA justifies this submission. The principle was stated in the headnote in holding (2) as follows:

“The well-established principle was that where one party has manifested a clear intention to be no longer bound by the terms of his contract or where he has openly repudiated it, the innocent party might treat the contract as at an end and might seek such remedies as were open to him. Where the breach was fundamental, the innocent party might accept the breach and treat it as absolving him from his own obligations under the contract; the question whether a breach was fundamental

[p.449] of [2001-2002] 1 GLR 440 was for the courts to determine. In the circumstance of this case, if the averments contained in the petitioner’s affidavit were established, they would indicate that by 1978 the respondents had clearly shown by conduct that they did not regard the 1971 contract as binding and in that case the petitioners would be justified in treating the agreement as at an end.”

Another point in favour of the plaintiffs is related to the issues involved for determination in the case. The main issue, we think, is one of interpretation of certain provisions of the constitution of the union; there is no forum better suited for this task than the courts. As was pointed out by Lynskey J in Baker v Jones [1954] 2 All ER 553 at 559:

“The interpretation of the rules is a question of law which the courts will examine. In my view, therefore, the provisions in the B.A.W.L.A. rules, making the central council the sole interpreter of the rules and their decision in all cases final, is contrary to public policy and void.”

A point which occurred to us but was not raised by the parties is the implications of the stipulation in article 24(iv) that even aftei satisfying the requirements relating to domestic tribunals, an aggrieved member still needs the prior approval of the national executive council before resorting to any external adjudicatory authority. Article 24(iv) states:

“Under no circumstances shall a case within the union be sent to any external body for investigation or settlement without the prior approval of the national executive council. In all such situations, only cases that have exhausted the grievance procedure under this article may be considered.”

The effect of the above provision is to give the national executive council power, even after a member has exhausted all local remedies, to still veto an aggrieved member’s efforts to reach the courts with his case. We do not, however, find it necessary to express any opinion whether such a tedious and cumbersome procedure should be held to be oppressive enough to be against public policy in view of the individual’s right to have easy and cheap access to the courts.

On the whole, we are satisfied with the way the Court of Appeal

[p.450] of [2001-2002] 1 GLR 440 treated the legal issues involved in this case. The decision of the Court of Appeal cannot be faulted. We will therefore dismiss the appeal and it is hereby dismissed.

Appeal dismissed.

DRKS