Tetteh And Others v. Essilfie and Another [2001-2002] 1 GLR 440
The respondent-respondent-appellants are a group of executives of the GPRTU. The plaintiff-appellant-respondents, Essilfie and Another, also members of the GPRTU, instituted an action in the High Court for a declaration that the appellants had breached various provisions of the Constitution of the GPRTU. The appellants had the action struck out on the grounds that the respondents failed to exhaust internal mechanisms for redress, as required by Article 24 of the Constitution of the GPRTU , and should have only gone to the court as a last resort. On appeal by the respondents, the Court of Appeal held that it would be against the rules of natural justice to expect the respondents to use internal mechanisms for redress when those internal mechanisms are manned by the same executives who are alleged to be in breach of the GPRTU Constitution. The appellants then appealed against this decision.
Whether Article 24 of the GPRTU Constitution, which provides that a dispute in the union shall, in the first instance, be settled at the local or branch level, is valid and should be enforced by the court?
Article 24 is prima facie valid but cannot be enforced by the courts in the present case as doing so will violate the principle of natural justice that a man shall not be a judge in his own cause.
Arguments of the Respondents (Essilfie and Another):
They justified why they did not use the internal mechanisms by saying 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 Supreme Court of Ghana, speaking through Kpegah JSC, acknowledged that Unions and Associations often have rules and regulations that are to be regarded as terms of a contract and ought to be obeyed by all persons who choose to be members of those Unions. However, these terms of contract may be unenforceable under certain circumstances. The provision in Article 24 is often held by the Courts to be invalid on the ground that "it is against public policy to make provisions ousting the jurisdiction of the courts." This position has been severally supported; in Lee v. Showmen’s Guild of Great Britain  1 All ER 1175 at 1180, CA, for instance, Lord Denning opined that
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.
Consequently, if parties, by agreement, seek to oust the jurisdiction of the courts and vest jurisdiction only in private tribunals without recourse at all to the courts, even in cases of error of law, such an agreement, which acts as an exclusionary clause, is void. If, however, an exclusion clause only directs that members of the association should refer disputes to private tribunals but does not make such referral imperative, then the exclusion clause will be valid. His lordship emphatically stated:
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.
His lordship then summed up the law on the exclusion of the court’s jurisdiction through a contract as follows:
although the courts would normally respect the wishes of parties to an agreement to submit 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.
Prima facie, there is nothing unfair about Article 24 that renders it invalid. It simply requests that internal or domestic tribunals be exhausted before there is any recourse to the courts. However, the present case is one where the respondents cannot be expected to resort to internal mechanisms because they are bringing an action against the very people in charge of the internal mechanisms. His lordship explained:
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.
Consequently, the plaintiffs are right to sidestep the internal mechanisms.