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Property –
Building - Payments by
instalment – Effect of an
affidavit sworn - Capacity to
sue - Customarily authorized to
bring the action - Letters of
Administration - Res judicata -
Action statute barred - Whether
or not the plaintiffs as
administrators of the estate of
Moses Neequaye (deceased) have
capacity to institute the
present action - Whether or not
the plaintiffs are stopped from
contesting the facts found by
the trial judge - Whether or
not the doctrine of res judicata
is applicable to this case -
Section 10(1) of the Limitation
Decree,1972 NRCD 54
HEADNOTES
The basis of
their claim is simply that their
father and predecessor in title
Moses Neequaye, was allocated
the subject matter of the suit
by the State Housing Corporation
when his own house was wrecked
by the earthquake that rocked
Accra and its environs in 1939.
Subsequent to the allocation but
before the completion of the
instalmental payments of the
building, the defendants father,
one Clifford Cudjoe, was
permitted to live in the houe on
his return from Burma Campaign
in the 2nd World
War. He lived there with
another son of Moses Neequaye.
When the installmental payment
ended, the family sought to have
the documentation on the
building done in the name of
Dina Neequaye. It was then that
they got to know that Clifford
Tagoe had earlier in 1949
attempted to have the
documentation effected in his
name through an affidavit he
swore to that effect. The
affidavit of Clifford Cudjoe,
notwithstanding, the SHC did the
documentation in the name of
Dina Neequaye and this has
remained so till today. Clifford
Cudjoe died and when the family
of Moses Neequaye wanted to take
over the property, the children
of Clifford Cudjoe, with the
active support of one Seth
Neequaye, another son of Moses
Neequaye, resisted this take
over claiming, the property
belonged to their father
Clifford Cudjoe. The family
sued Seth Neequaye who later
died and was substituted by the
current defendantAt the end of
the trial the trial judge
dismissed the plaintiffs claim
on the grounds that the
plaintiff lacked capacity to
bring the action. This was
because at the time of the
institution of the action the
plaintiffs had not applied for
L/A to administer Moses
Neequaye’s estate and that since
they were suing in a
representative capacity it was
only the head of family who
could sue The trial judge
resolved all these issues in
favour of the plaintiffs.
Feeling aggrieved, the
defendants appealed to the Court
of Appeal. The appeal failed.
The defendant has appealed to
this court.
HELD
We are not
told of when the demand for the
documents was made and refused.
Suffice it to say that the
refusal occasioned the
institution of an earlier action
in November 1981.That action was
dismissed in 1991 for want of
capacity. The current action was
instituted in February 1993
which will still be within the
limitation period of twelve
years when the adverse claim was
made. Therefore, on this ground
too, the appeal is not
sustainable. The appeal
therefore fails on all grounds
and same is dismissed
STATUTES
REFERRED TO IN JUDGMENT
the
Limitation Decree,1972 NRCD 54
CASES
REFERRED TO IN JUDGMENT
Achoro and
Another v Akanfela and Another
[1996-97]SCGLR 209
Nyame and Tarzan Transport
[1973] IGLR 8 CA 9.
In re
Sekyedumase Stol: Nyame v Kese
alias Konto [1998-99]SCGLR 476
Dahabieh v SA
Turqui &Bros [2001-2002]SCGLR498
Kwan vs
Nyieni and another 1959 GLR 59
Nsiah v. UTC
(1959) GLR 79
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BAFFOE-BONNIE, JSC: -
COUNSEL
BRIGHT AKWETEY FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT
DR. EKOW DANIELS FOR THE
DEFENDANT/APPELLANT/APPELLANT
_______________________________________________________________
J U D G M E N T
_______________________________________________________________
BAFFOE-BONNIE, JSC:-
The PL/RESP/RESP (hereinafter
referred to as plaintiff),
originally instituted this
action claiming among others:
(a)
A declaration that the original
house number 160 was allocated
to Moses Neequaye which house
was later exchanged for plot 218
renumbered F.793a/2 and 801/2
East Christianborg Osu and same
formed part of his estate.
(b)
A further declaration that the
said house i.e plot 218……was
never allocated to Clifford
Cudjoe but that he held the
house in trust for the
beneficiaries of the estate of
Moses Neequaye (deceased)
The basis of their claim is
simply that their father and
predecessor in title Moses
Neequaye, was allocated the
subject matter of the suit by
the State Housing Corporation
when his own house was wrecked
by the earthquake that rocked
Accra and its environs in 1939.
Subsequent to the allocation but
before the completion of the
instalmental payments of the
building, the defendants father,
one Clifford Cudjoe, was
permitted to live in the houe on
his return from Burma Campaign
in the 2nd World
War. He lived there with
another son of Moses Neequaye.
When the installmental payment
ended, the family sought to have
the documentation on the
building done in the name of
Dina Neequaye. It was then that
they got to know that Clifford
Tagoe had earlier in 1949
attempted to have the
documentation effected in his
name through an affidavit he
swore to that effect.
The affidavit of Clifford
Cudjoe, notwithstanding, the SHC
did the documentation in the
name of Dina Neequaye and this
has remained so till today.
Clifford Cudjoe died and when
the family of Moses Neequaye
wanted to take over the
property, the children of
Clifford Cudjoe, with the active
support of one Seth Neequaye,
another son of Moses Neequaye,
resisted this take over
claiming, the property belonged
to their father Clifford
Cudjoe. The family sued Seth
Neequaye who later died and was
substituted by the current
defendant.
At the end of the trial the
trial judge dismissed the
plaintiffs claim on the grounds
that the plaintiff lacked
capacity to bring the action.
This was because at the time of
the institution of the action
the plaintiffs had not applied
for L/A to administer Moses
Neequaye’s estate and that since
they were suing in a
representative capacity it was
only the head of family who
could sue. On the basis of the
evidence on record he also
dismissed the defendant’s
counterclaim.
Dismissing the defendant’s
counterclaim the trial judge
held;
“On
the evidence as a whole I find
that preponderance
probability(sic) would be in
favour of the plaintiff in
respect of the following:-
i.
That the original house number
160 was allocated to Moses
Neequaye, that it was later
exchanged for plot 218…….”
Neither the plaintiff nor the
defendant appealed against this
judgment.
The plaintiff who had secured an
L/A in respect of the estate of
Moses Neequaye, even before the
suit was actually dismissed for
want of capacity, instituted the
current action claiming
virtually the same reliefs as
those in the earlier action.
The defendant raised 3 main
issues in her statement of
defence.
1.
That since by their own showing
the property passed on to Dina
Neequaye on the death of Moses
Neequaye the plaintiff should
have applied for L/A to
administer the estate of Dina
Neequaye and not that of Moses
Neequaye. And so they still
lacked capacity to institute the
action in respect of the
property.
2.
That by their failure to appeal
against the decision of Justice
Yakubu Armah with regard to lack
of capacity the plaintiffs are
estopped from relitigating on
the property.
3.
The action was statute barred.
The issues set down for trial at
the High Court were as follows
1.
Whether or not the plaintiffs as
administrators of the estate of
Moses Neequaye(deceased) have
capacity to institute the
present action.
2.
Whether or not the plaintiffs
are stopped from contesting the
facts found by the trial judge
in suit No. 175/81
3.
whether or not the action is
statute barred
4.
Whether or not the doctrine of
res judicata is applicable to
this case
The trial judge resolved all
these issues in favour of the
plaintiffs. Feeling aggrieved,
the defendants appealed to the
Court of Appeal. The appeal
failed. The defendant has
appealed to this court
and, the difference in wording
notwithstanding, I find that the
issues before us for resolution
are essentially the same as
those ruled upon by the learned
judges of the High Court and the
Court of Appeal.
Since an appeal is by way of
rehearing , I propose to deal
with the present appeal as if
this court were a court of first
instance and make the necessary
orders as were available to the
trial High Court. I will however
remind myself of the
admonishment of Acquah JSC(as
he then was) in the case
of Achoro
and Another v Akanfela and
Another [1996-97]SCGLR 209
where he said,
“ In an appeal against findings
of fact to a second appellate
court like the Supreme Court,
where the lower court had
concurred in the findings of the
trial court, especially in a
dispute, the subject matter of
which was peculiarly within the
bosom of the two lower courts or
tribunals, this court would not
interfere with the concurrent
findings of the two lower courts
unless it was established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, was
apparent in the way in which the
lower courts had dealt with the
facts.”
See also the case of
Nyame and Tarzan Transport
[1973] IGLR 8 CA 9.
RES JUDICATA
I am a little bit intrigued
that even at this late stage,
and in spite of the decision of
trial judge and the learned
Justices of the Court of Appeal,
the defendant insists that
Justice Yakubu Armah’s decision
on capacity and his reasons for
so finding operates as
res
judicata. The fact is, from
the legion of authorities on res
judicata, by no stretch of
imagination can we say that
Justice Armah’s judgment
operates as res judicata, That
judgment did not touch on the
merits of the case at all. If
anything it is the findings that
the learned judge made in
dismissing the defendant’s
counterclaim that could operate
as res judicata, because those
findings touched on the facts of
the case and the defendants did
not appeal against the findings
of fact made by Justice Yakubu
Armah leading to the dismissal
of their counterclaim.
The plea of res judicata is a
well established part of our law
and it is usually expressed to
be based on a final judgment. In
the case of
In
re Sekyedumase Stol: Nyame v
Kese alias Konto [1998-99]SCGLR
476 at pg 478,
Acquah JSC as he then was,
delivering the judgment of this
court said:
“My lords, the plea of res
judicata is never a technical
plea. It is part of our received
law by which a final judgment
rendered by a judicial tribunal
of competent jurisdiction on the
merits is conclusive as to the
rights of the parties and their
privies and , as to them
constitutes an absolute bar to a
subsequent action involving the
same claim, demand or cause of
action”
In the case of
Dahabieh
v SA Turqui &Bros
[2001-2002]SCGLR498
,this court reiterated the
above cited position of the law
in the following terms,
“ it is well-settled under the
rule of estoppel that if a court
of competent jurisdiction has
tried and disposed of a case the
parties themselves and their
privies cannot, thereafter,
bring an action on the same
claim or issue. The rule applies
to issues actually dealt with in
the previous litigation as well
as those matters which properly
belonged to that litigation and
could have been brought up for
determination but were not
raised.”
Yakubu Armah’s decision that
the plaintiff lacked capacity to
institute the action was borne
out of the fact that since the
property in dispute had become
family property on the death of
Moses Neequaye, the head of
family was the only person
customarily authorized to bring
the action. Citing the case
of
Kwan vs Nyieni and another 1959
GLR 59 at page 72/73,
he said,
“It should be mentioned here
that at the death of Moses
Neequaye the house or whatever
interest he had in the house in
dispute would vest in the
family. The customary law as I
understand it has been clearly
explained by the court of appeal
in Kwan vs Nyieni and another as
follows;
‘ as a general rule the head of
family is the proper person to
institute suits for the recovery
of family land;……’.
In the instant case the
plaintiff in cross examination
admitted that one Akwetey Palm
was head of Moses Neequaye’s
family and the said Akwetey Palm
was alive when the action was
taken. It is therefore clear
that the said Akwettey Palm
would have been the proper
person to have taken this
action.”
Later on he concluded as
follows;
“I have come to the conclusion
that the plaintiff has failed to
establish that she had been
authorized by the family to take
this action in a representative
capacity or the accredited
successor of her late father
Moses Neequaye. It means she
lacked capacity when she took
the action. I would dismiss the
plaintiff/s claim for want of
capacity.”
These statements represent the
true state of customary law.
However, if the plaintiff later
overcame this legal hurdle and
secures the necessary
authorization, either from the
Head of family (power of
Attorney)or the court (i.e L.A
to administer a deceased
person’s estate), such a person
could return to court, and the
earlier holding cannot operate
as res judicata. It is my view
that having secured the
necessary
Letters of Administration to
administer the estate of Moses
Neequaye, the plaintiff was
vested with the requisite
capacity now to relitigate.
I will therefore not disturb the
trial judge and the learned
justices of appeal’s holding on
this issue.
CAPACITY
Equally intriguing is the
defendant’s insistence that the
plaintiffs lack capacity to
institute this action. The
defendant/appellant insists that
the plaintiff lacks capacity
because, by their own showing,
granted that the property was
acquired by Moses Neequaye, the
property had passed on to Diana
Neequaye and therefore on the
death of Diana the property
vested in her estate and not
that of Moses. So securing L.A.
in respect of the estate of
Moses will not confer on them
capacity to bring an action in
respect of the property which
now forms part of the estate of
Diana. This is how she put it
in her statement of defence;
If
the plaintiffs’ allegation in
paragraph 8 of the statement of
claim is to be accepted, it
would follow that the said house
had passed and vested in the
estate of Dina Dei Neequaye.
The plaintiffs have not applied
for L/A to administer the estate
of Diana Neequaye who died
before 1981 the date of the
first action in suit no1745/81,
hence they lack capacity to sue.
Ingenious as this argument may
sound it really does not contain
much to write home about. The
plaintiff brought this action as
administrator of the estate of
Moses Neequaye whose estate she
claims, the subject matter of
this litigation forms part of.
She is not seeking to administer
the estate of Dina Neequaye.
She has all along insisted that
the property was acquired by
Moses Neequaye and that it was
they the children who authorized
their sister Dinah to have the
documentation prepared in her
name. Dina therefore holds the
property only in trust for the
other children. These facts are
not disputed by the children of
Dinah. And they couldn’t be
controverted by the defendant
either. Because after all they
are consistent with the earlier
findings of Yakubu Armah J in
the earlier suit from which the
defendant did not appeal.
Therefore if any body could
challenge the capacity of the
plaintiff to institute an action
in respect of this property it
is the children of Dinah and not
the defendant. The defendant
has no LOCUS STANDI to challenge
the plaintiffs’ claim of the
property for the estate of Moses
Neequaye as against that of
Dinah Neequaye.
STATUTE BARRED
The appellant has referred
copiously to the English Real
Property Limitation Act of 1883
and said whatever interest Moses
Neequaye had in the property was
extinguished when the
administrators failed to bring
an action within twenty tears of
the death of Moses Neequaye.
Counsel relies on the dictum of
Korsah CJ in the case of
Nsiah v.
UTC (1959) GLR 79
at pg 85 where he said,
‘With regard to the last issue
viz., whether or not the claim
is barred by statute, I am in
full agreement with the views
expressed by the judge as
follows:-
“By section 6 of the real
property limitation act 1883
where an administrator claims,
the time runs from the time of
the deceased death and the same
limitation applies to the
plaintiff who has sued in
respect of the estate of the
deceased intestate…”.’
The appellant had forcefully
canvassed this argument at both
the trial court and the Court of
Appeal to no avail. Despite the
reasons given for the dismissal
of this argument by the two
courts below he feels
dissatisfied and has come before
us. Clearly, from his argument
it is the appellant who has
failed to appreciate the import
of the said section and the
decision of the court in Nsiah
v. UTC.
The section does not mean that
accrual of cause of action in
computing when limitation period
starts. It does not mean that
time starts running immediately
a person dies, even if in his
lifetime the deceased person’s
title or interest in the
property was not questioned!
What it means is that if in the
lifetime of a person his
interest in a property is
challenged, or he deals with the
property in a manner detrimental
to or inconsistent with his
interest in the property, then
any person claiming through him
has to come to court within
twenty years of his death. That
in essence was the import of the
decision of this court in the
Nsiah v. UTC case.
As the facts of this case show
and as the two lower courts
rightly found, in the lifetime
of Moses Neequaye there was no
adverse claim by the father of
the defendant to the property in
dispute. On the death of Moses,
the plaintiffs found that
Clifford Cudjoe, the appellant’s
father, had tried to gain access
to the house through fraudulent
means, but this was scuttled
when the property was documented
in the name of Dina Dei Neequaye
on the insistence of her
sibblings. Thereafter Clifford
caved in, accepted his fate and
only continued living in the
house as licensee of the
respondents. Therefore, the only
time an adverse claim was made
in respect of the property was
after the death of Dina Neequaye
in 1980 when, on the instigation
of Seth Neequaye, the defendants
and her sibblings started to
claim that the property belonged
to Clifford Cudjoe.
Section
10(1) of the Limitation
Decree,1972 NRCD 54
which had then come into
effect in 1972 provides that,
No action shall be brought to
recover any land after the
expiration of twelve years from
the date on which the right of
action accrued to the person
bringing it or if it first
accrued to some person through
whom he claims.
We are not told of when the
demand for the documents was
made and refused. Suffice it to
say that the refusal occasioned
the institution of an earlier
action in November 1981.That
action was dismissed in 1991 for
want of capacity. The current
action was instituted in
February 1993 which will still
be within the limitation period
of twelve years when the adverse
claim was made. Therefore, on
this ground too, the appeal is
not sustainable.
The appeal therefore fails on
all grounds and same is
dismissed
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
S. A. B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
S. O. A ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
R. C. OWUSU (MS)
JUSTICE OF THE SUPREME COURT
B. T. ARYEETEY
JUSTICE OF THE SUPREME COURT
COUNSEL:
BRIGHT AKWETEY FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT
DR. EKOW DANIELS FOR THE
DEFENDANT/APPELLANT/APPELLANT |
