CONSTRUCTION PIONEERS v. MODERN GHANA BUILDERS

On 14 July 1986, Construction Pioneers commenced action by motion in the High Court to enforce an award against Modern Ghana Builders Limited. The defendants resisted the application. On 29 September 1986, the court presided over by Lutterodt J having heard counsel for the parties ordered that the case proceed to trial. A subsequent application by the plaintiffs for review of the order made on 29 September 1986 was discontinued by the plaintiffs, and the judge struck it out as withdrawn without liberty to bring a fresh action.

The trial commenced on 13 January 1987 when the court expert witness, an engineer, gave evidence and was cross-examined by counsel for the parties. Thereafter the plaintiffs applied for leave to amend the motion filed on 14 July 1986 and which initiated the action. The judge dismissed the application and the case was adjourned to 10 March 1987 at the instance of the plaintiffs for the trial to resume. On 19 March 1987 the plaintiffs, Construction Pioneers, applied to discontinue the action with liberty to bring a fresh action. That application was granted without liberty to file a fresh action.

On 28 April 1987 Modern Ghana Builders Limited (hereinafter called the “respondents”) sued out a writ endorsed with reliefs arising from the award made on 28 August 1985. Construction Pioneers (hereinafter called the “appellants”) resisted the claim and counterclaimed for the sum of $900,000 with interest. The counterclaim was based on the award. Thus, in paragraph 4 of the statement of defence, the appellants pleaded that “pursuant to the said interim award the plaintiffs collected one of the machines but have refused or neglected to pay the defendants in respect of the same.” The $900,000 with interest counterclaimed was in respect of charges for repairs to the machine mentioned in the statement of defence.

The respondents in their reply pleaded that the appellants were estopped from re-opening any of the issues raised in the earlier action which they discontinued without liberty. One of the issues set down for trial was “whether the defendants are estopped from re-opening any of the issues argued in the High Court in suit No 246/87.”

On 12 August 1991, the judge entered judgment for the respondents and dismissed the appellants’ counterclaim. It is from that judgment that the appellants now appeal to this court. Mr Kom, counsel for the appellants confined his submissions to the additional grounds of appeal. The grounds as