Land – Ownership - Declaration
that the property -
Recovery of possession –
Encroachment of - Perpetual
injunction - Restoration costs –
Trespass – Fraud -
Capacity - Public
interest - Mesne profits for use
– Estoppel - Whether or not the
action amount to abuse of
process of court - Whether or
not the action is vexatious and
frivolous - Whether or not
special leave to be obtained
before an appeal can be filed -
Article 2(1), Article 18 (1)
and Article 106 (2) of the 1992
Constitution - Order 4 r. 3 (3)
and Order 11 Rule 18 (1) (a) of
the High Court (Civil Procedure)
Rules, 2004 (C.I. 47) - Section
4 (2) of the Courts Act, 1993,
Act 459 - Section 10 (2) of the
Interpretation Act, 2009 (Act
782)
HEADNOTES
The plaintiff pleads in its
statement of claim that in
February, 2013 it was informed
by the 3rd defendant
that judgment had been recovered
in the High Court, Accra on 28th
July, 2011 by the 1st
defendant in respect of land
that formed part of the reserved
land of Achimota School. The
proceedings culminating in the
judgment were not brought to the
notice of the plaintiff herein
whereas that ought to have been
done by either the plaintiff
therein (1st
defendant herein), or the 3rd
defendant or even the court.
According to the plaintiff, as
the judgment injuriously
affected its interest it took
several steps to have the
judgment set aside but was
unsuccessful hence this suit
which was filed on 21st
January, 2016. The plaintiff has
impeached the judgment of 28th
July, 2011 on several grounds
and it is averred that if the
judgment is executed land that
was reserved for future
development of the school and
presently serves as an
environmental buffer will be
lost to private developers and
the averments upon which the
judgment is impeached and the
handling of subsequent
proceedings that sought to annul
the judgment present a picture
of deliberate dereliction by
some personnel of the public
institutions that have been
involved in this case.
HELD
MOJORITY OPINION
We have verified from the appeal
record and the court docket that
indeed the Plaintiffs herein who
were at all material times
visibly in possession have
contrary to the dictates of
Order 43 r. 3 (3) not been
notified.
What this also means
is that the procedure adopted
therein is irregular,
procedurally flawed, void and is
thus a nullity. Thus if Suit No.
LD/0352/2016 had been allowed to
run its full course, the
execution of the impugned
decision in Suit No. SOL.21/10
and its other variables, will
not stand the test of time, as
the execution of the Writ of
possession therein amounts to a
nullity and subject to be
declared as such.
With the analysis
made supra, the appeal by the
plaintiffs against the judgment
of the Court of Appeal, dated 2nd
November 2017 succeeds. The said
Court of Appeal judgment is
hereby set aside and or
reversed.
We accordingly direct
that the case be remitted to the
High Court, Accra for the
Suit No.LD/0352/2016 to proceed
pursuant to the Ruling of Judge
No. 4, dated, 20th
July 2016.
MOJORITY OPINION
The saving in section 34(b)
relates to past actions that
were taken by the Achimota
Council (not even the Board of
Governors) when CAP 114 was in
force and does not confer
authority for future purposes
following the repeal. If that
were so then the repeal of a
statute will have no legal
consequences whatsoever. It is
therefore abundantly clear that
the claim of plaintiff to a
special status for Achimota
School board of governors has no
legal basis. I have all the
sympathy for the noble goals
that the plaintiff seeks to
pursue through these proceedings
but the law is very clear on the
point that it has no capacity.
Let those who have the legal
competence such as the Lands
Commission and the
Attorney-General act as the law
has many rooms full of remedies
that can still avail those that
the law recognizes. Some of us
of the Christian faith believe
that at the gate to heaven you
must be recognized by Simon
Peter before you can gain
entrance. The rule there applies
with the same rigor to the
Mighty, such as Roman Emperor
Nero and the humble, such as the
Martyrs of Uganda. Capacity is a
fundamental principle of our
system of law that cannot be
whittled down under the
circumstances of this case. For
the above reasons, I hold that
the plaintiff had no capacity to
institute this action so the
whole proceedings are a nullity.
The effect of my decision on the
capacity of the plaintiff on the
whole appeal is that it fails
for want of capacity and is
hereby dismissed
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
High Court (Civil Procedure)
Rules, 2004 (C.I. 47)
Courts Act, 1993, Act 459
Education Law of 2008, Act 778
Interpretation Act, 2009 (Act
782)
Education Act 1961, Act 87
Companies Act 2019, Act 992
The Achimota School Ordinance
(CAP 114)
The Education (Southern Ghana
and Ashanti) Ordinance CAP 121,
The Education (Northern and
Upper Regions Ordinance (CAP
122).
Public Lands Ordinance, 1876
(CAP 134)
Conveyancing Act, 1881 (44 & 45
Vict. c. 41)
CASES REFERRED TO IN JUDGMENT
Wordie and Others v. Awudu
Bukari (1976) 2 GLR 317, CA
Lamptey v Hammond [1987-88] 1
GLR 322
Odai Ayiku v AG (Borketey Laweh
XIV Applicant) [2010] SCGLR
Kwasi Owusu and Anr. v Joshua
Nmai Addo and Anr. Civil Appeal
No. J4/50/2014 dated 30th
July 2015
Owusu and Others v Addo and Anr.
[2015-2016] 2 SCGLR 1479
Mosi v Bagyina [1963] 337
Djokoto & Amissah v BBB
Industrials Co. (Ghana) Ltd and
City Express Bus Services [2011]
2 SCGLR 825
Dzotepe v Hahormene [1987-88] 2
GLR 681
In Re Poku (Decd); Appiah Poku
and Others v Nsafoa Poku and
Others [2011] 1 SCGLR 162
Punjab v Mohar Singh, AIR 1955
SC 84,
Attorney-General v Lamplough,
L.R 8 EX. D223
Kowus Motors v Check Point Ghana
Ltd and Others [2009] SCGLR 230
Edusei v Diners Club Suisse S.A
[1982-83] GLR 809 CA,
Asante-Appiah v Amponsah [2009]
SCGLR 90
Republic v High Court, Accra
Ex-parte Aryeetey (Ankra-
Interested Party) [2003-2004]
SCGLR 398
The Republic v High Court, Accra
(Commercial Division)-
Respondents; Ex-parte Enviro
Solutions and 3 Others –
Applicants, Dannex Limited and 5
Others – Interested Parties
Suit No. CMJ5/20/2020 dated 29th
April 2020
Nii Kpobi Tettey Tsuru v
Attorney-General [2010] SCGLR
904,
Spokesman Publications Ltd. v
Attorney-General [1974] 1 GLR 88
at 89
London and India Docks Co. v
Thames Steam Tug and Lighterage
Co. Ltd [1909] AC
Southern Pacific Co. v Jensen
(1917) 244 US 205
Seaford Court Estates Ltd. v
Asher [1949] 2 KB 481
Magor and St. Mellon’s Rural
District Council v Newport
Corporation [1950] 2 ALL E.R.
1226
Gurtner v Circuit and Another
[1968] 2 QB 587
Sai v Tsuru III [2010] SCGLR 762
K.O. Keteku v Nick Adi-Dako,
Suit No. BDC/10/07 dated
20/10/2015
Naos Holding Inc v Ghana
Commercial Bank Ltd.[2011] 1
SCGLR 492,
Sasu v Amua Sekyi and Another
[2003-2004] 742
Henderson v Henderson (1843) 3
Hare 100
Nyame v Kese a.k.a Konto
[1999-2000] 1 GLR 236-254
Boni and Another v The Republic
[1971] 1 GLR 454
Borrow v Bankside Agency Ltd,
[1996] 1 WLR 257
Osei-Ansong & Passion
International v Ghana Airport
Company [2013-2014] 1 SCGLR 25,
Ashmore v British Coal
Corporation [1990] 2 QB 338,
[1990] 2 ALL E.R. 981
Castro v Murray (1875) 10 EX
213, Stephenson v Garret [1898]
1 Q.B. 677
Yat Tung Investment Co. Ltd v
Dao Heng Bank Ltd. [1975] AC
581.
Gregson v Channel Four
Television Corporation [2000]
All ER (D) 956, CA,
Lartey v Bannerman [1976] 2 GLR
461 CA
Yeboa v Bofour [1971] 2 GLR, 199
C.A.
Ogyeadom Obranu Kwesi Atta VI v
Ghana Telecommunications Co.
Ltd. & Anor Suit No.
CM.J8/131/2019 dated 28th
April, 2020
Northern Securities Co. v United
States 193 US 177 (1904)
Jacques v. Harrison (1883) 12
Q.B.D. 136.
Minet v. Johnson (1890) 63 L.T.
507
Ware v Regent’s Canal Co (1858)
3 De G & J 212
Morkor v Kuma [1998-99] SCGLR
620
In Re Appenteng (Decd); Republic
v High Court, Accra, Ex parte
Appenteng [2005-2006] SCGLR 18.
Ansah-Addo & Ors v. Addo & Anor
and Ansah-Addo & Ors v Asante
(Consolidated) [1972] 2 GLR 400
Minet v Johnson, Brighton and
Shoreham Building Society v
Hollindale & Ano [1965] 1 WLR
376
Mohamed v Abdelmamoud [2018]
EWCA Civ. 879.
Nai Out Tetteh v Opanyin Kwadwo
Ababio [2019] GTLR 78. SC.
Arnold v National Westminster
Bank plc [1991] 2 AC 93
Osei-Ampong v Ghana Airports Co.
Ltd. [2013-2014] 1 SCGLR 25
Virgin Atlantic Airways Limited
(Respondent) v Zodiac Seats UK
Limited [2013] UKSC 46
Conquer v Boot [1928] 2 KB 336
King v Hoare (1844) 13 M & W
494, 504
Duchess of Kingston’s Case
(1776) 20 St Tr 355
Hoysted v Federal Commissioner
of Taxation (1921) 29 CLR 537
Thoday v Thoday [1964] P 181
Peter Farrar v Leongreen Ltd
[2017] EWCA Civ. 2211
Basil v Honger 919540 4 WACA 569
Sasu v Amua-Sakyi & Anor
[2003-2004] SCGLR 742
Barrow v Bankside Agency Ltd
[1996] 1 WLR 257
Manson v. Vooght and others
[1999] BPIR 376
Bradford & Bingley Building
Society v. Seddon [1999] 1 WLR
1482
Thoday v. Thoday [1964] P. 181,
Arnold v. National Westminster
Bank Plc [1991] 2 A.C. 93
Johnson v Gore Wood & Co [2002]
2 AC 1
Standard Bank Offshore Trust Co
Ltd v National Investment Bank
Limited & 2 Ors [2017-2018] 1
SCLRG 707
Akrong and Anor v. Bulley [1965]
GLR 469.
Jones v Wrotham Park Settled
Estates [1980] A.C 74.
Republic v Fast Track High
Court, Accra; Ex parte Daniels
[2003-2004] SCGLR 364 at 370
London Transport Executive v
Betts [1958] 2 All ER 636
Magor & St Mellons Rural
District Council v Newport Corpn
[1951] 2 All ER 839
Goodrich v Paisner [1956] 2 All
ER 176
Western Bank Ltd v Schindler
[1977] Ch 1
Kowus Motors v Check Point Ghana
Ltd & Ors [2009] SCGLR 230
BOOKS REFERRED TO IN JUDGMENT
Blacks Law Dictionary, Ninth
Edition, page 923
Osborne’s Law Dictionary
The Law of Interpretation in
Ghana (Exposition and Critique)”
page 171
Dr. S. Y. Bimpong-Buta
Understanding Statutes V C R A C
Crabbe
Civil Procedure, A Practical
Approach”,” the Black Book,” S.
Kwami Tetteh
Statutory Interpretation, 3rd
ed Professor Cross’
DELIVERING THE LEADING JUDGMENT
DOTSE, JSC:-
DISSENTING OPINION
PWAMANG, JSC:-
COUNSEL
GOLDA DENYO FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
FRANK DAVIES WITH BRIGHT
OKYERE-ADJEKUM
FOR THE 1ST
DEFENDANT/ APPELLANT/RESPONDENT.
PROLOGUE
DOTSE, JSC:-
We wish to commence this
delivery by the following
quotation which we think sums up
the conduct of all major
stakeholders in this case.
Quotation attributed to Thomas a
Kempis. See Jack Fairweather’s
Book “The Volunteer the
true story of the resistance
hero who infiltrated Auschwitz”
unnumbered page before the
contents.
“Whoever loves
much, does much.
Whoever does a thing
well does much
And he does well who serves the
common community before his own
interest.” Emphasis
This is an appeal by the
Plaintiffs/ 1st
Respondents/Appellants,
hereafter, Plaintiffs against
the judgment of the Court of
Appeal dated 2nd
November 2017.
The Court of Appeal judgment
referred to supra actually
reversed the Ruling of (Judge
No. 4) sitting at the High
Court Accra, dated 20th
July 2016 wherein she dismissed
an application filed by the 1st
Defendant/Appellant/1st
Respondent, hereafter 1st
Defendant, which sought to
dismiss the suit filed therein
by the Plaintiffs against the 1st
Defendant and 2 others, therein
namely, Platinum Equities
Ltd, 2nd Defendants
therein and Lands Commission, 3rd
Defendants/2nd
Respondents/2nd
Respondents, hereafter 3rd
Defendants.
RELIEFS CLAIMED BY THE
PLAINTIFFS IN THE HIGH COURT
SUIT NO. LD/0352/2016 FILED ON
26TH JANUARY 2016
WHICH 1ST DEFENDANT
SOUGHT TO DISMISS AND FAILED IN
THE TRIAL HIGH COURT BEFORE
JUDGE NO. 4
a.
An order declaring the
Plaintiff’s title to the entire
Achimota School land, including
the 172.68 acres claimed by the
1st and 2nd
Defendants pursuant to the
judgment entered in Suit
No. SOL 21/10.
b.
An order setting aside the
judgment, and all consequential
orders, entered in Suit No. SOL
21/10 on the grounds that the
said judgment and orders were
obtained by fraud perpetrated on
the Plaintiff by the 1st
Defendant, OR, in the
alternative, a declaration that
the judgment and all orders
entered in Suit No. SOL 21/10,
are not enforceable against the
Plaintiff’s title and interest
in the Achimota School land.
c.
An order for the
recovery
of possession of parts of
the Achimota School land
encroached by the 1st
and 2nd Defendants,
their agents and/ or assigns.
d.
An order of
perpetual
injunction restraining the 1st
and 2nd Defendants
and/or their assigns and agents
from interfering with the
Plaintiff’s title, possession,
occupation and use of the land
encroached upon and/or any part
of the Achimota School land.
e.
An order for the recovery,
jointly and severally from the 1st
and 2nd Defendants,
of the assessed
restoration costs of the
destroyed parts of the conserved
greenery areas.
f.
Damages for the 1st
and 2nd Defendants’
trespass
to the Achimota School land.
g.
An order for the 3rd
Defendant to rectify the lands
register by expunging any
“plotting” and /or registration
made in respect of any interest
to any part of the Achimota
School land pursuant to the
judgment or any order made in
Suit No. SOL/21/10.
h.
Costs
BRIEF FACTS
The facts in this case are
rather chequered. Due to this
phenomenon, we will set out the
facts in sequence and in some
detail.
Writ No. SOL/21/10
On or about the 16th
day of March, 2010, the 1st
Defendant herein, therein
Plaintiff instituted and filed
Suit No. SOL/21/10 in the High
Court, Accra against the 3rd
Defendants herein, therein
Defendant claiming the following
reliefs:-
a.
“A
declaration that the property
in dispute has not been used
for the public purpose or
public
interest alleged.
b.
A declaration that the
constitutional rights of the
Plaintiff to own property either
alone or in association with
others has been violated.
c.
An order for the recovery of the
said land.
d.
Mesne profits for the use
and occupation of the said land.
e.
An order of perpetual injunction
restraining the Defendants,
their agents, hirelings,
successors, personal
representatives, workmen,
servants, assigns, whomsoever
and howsoever described, from
dealing with the said land in
anyway whatsoever.
f.
Costs and
g.
Any further reliefs arising from
the pleading.” Emphasis
In a thirteen paragraphed
statement of claim, the 1st
Defendants herein pleaded
material facts upon which they
relied to claim the above writ
of summons against only the 3rd
Defendants.
SUMMARY OF MATERIAL FACTS AND
PLEADINGS IN SUIT NO. SOL/21/10.
The 1st Defendants
made the following key
allegations in support of the
above-listed claims:-
a.
The 1st Defendant
herein, plaintiff in Suit No.
SOL/21/10 described himself
therein as the Mankralo or
Acting Chief of the Osu Division
of the Ga State and brings (Suit
No. SOL/21/10) for and on behalf
of the Osu Stool and all its
quarters, traditional families,
elders, functionaries, citizens
and stool-subjects who are the
allodial owners.”
b.
A parcel of land measuring
338.61 acres lying at “Achimota
in the City of Accra” formed
part of the parcel of land
acquired by the colonial
government in 1922”, under
Certificate of Title LS No.
43/27.
c.
The land was acquired “in 1922”
for use as “extension of college
site.”
d.
The government of “Gold Coast
and of Ghana have failed or
neglected to utilize the land
for the purpose stated.
e.
The Lands Commission (defendant
therein, and 3rd
Defendants herein) is the state
institution charged with the
management and control of public
lands.
f.
The “expropriation violates
their rights under Article 18
(1) of the Constitution to own
property either alone or in
association with others.”
g.
The Lands Commission has “either
by grant or neglect permitted
others to occupy portions of the
land for their own private
purposes which act show that the
Lands Commission has no
intention to utilize the land
for the declared “public purpose
and
h.
On the other hand the Lands
Commission have either granted
or permitted a number of third
parties to occupy and utilize
parts of the land for their own
private purpose thus creating
possibilities of adverse
possession to the detriment of
the plaintiffs.”
3RD DEFENDANTS
DEFENCE TO SUIT NO. SOL/21/10
FILED ON 3RD JUNE
2010 (THEREIN AS DEFENDANTS)
Our candid opinion with the
Defence and conduct of the case
by the Solicitors of the 3rd
Defendants at the time is
nothing but a collusion with the
interests of the 1st
Defendants herein.
The Solicitors of the 3rd
Defendants as will be disclosed
in these narratives, clearly
abdicated their watchdog roles
as constitutionally required of
them.
What is the basis for such an
accusation?
From the Defence filed, 3rd
Defendants admitted paragraphs
1, 2, 3 and 4 of the statement
of claim.
Paragraph 1 of the Statement of
Claim reads as follows:-
“(1) The Plaintiff is the
Mankralo or Acting Chief of the
Osu Division of the Ga State and
brings this action for and on
behalf of the Osu Stool and all
its quarters, traditional
families, elders functionaries,
citizens and stool-subjects who
are the allodial owners of the
tract of land more precisely
described in the schedule
below.”
How can the Defence Counsel
honestly admit these material
particulars in the pleadings as
stated supra? Is he an advocate
of the Osu Stool? The pleadings
in the Defence become more
puzzling when it was pleaded
thus in paragraph 3 “That
according to Osu customary law
practice and usage, the Mankralo
shall act as a Mantse in the
absence of a substantive Osu
Mantse more especially at the
time the writ was filed.”
In paragraph 4, the pleading in
the Defence takes an
unprecedented turn as follows:-
“That although currently Osu has
a substantive Mantse, once his
name has not been gazetted in
the National Registrar of Chiefs
the Mankralo has the requisite
capacity to institute the
instant action.”
Even though the Solicitor who
settled the pleadings for the 3rd
Defendants then denied some
factual averments in paragraphs
8, 10, 11, 12 and 13 of the
Statement of Claim, he
nonetheless virtually threw in
the towel as in a boxing match
when he pleaded in paragraph 7
of the Defence as follows:-
“The defendant in the
circumstances pleads that since
the facts are not in dispute,
the case should be set down for
legal arguments
“. Emphasis
By the above averments, the
conduct of the case by the
Defendants therein, now 3rd
Defendants appeared to us to
have been seriously compromised.
For example, the averments in
paragraph 5 of the Defence that
the Defendants are not in a
position to admit the crucial
averments in paragraphs 5, 6 and
7 of the Statement of Claim to
us is an abdication of their
constitutional mandate as
managers of all public and
vested lands.
Perhaps that explains why the
users and occupiers of the Land,
Achimota School and the
constitutionally mandated
institution to defend all suits
against the Government,
Attorney-General were all not
served but rather marginalized.
How else can one interprete the
Defence not being in a position
to deny the following averments
in the Statement of Claim
bearing their constitutional
position and knowledge of all
public lands including the
instant one. See for example the
following paragraphs of the
Statement of Claim:-
1.
“The Plaintiff states that all
the governments of the erstwhile
Gold Coast and of Ghana have
failed and or neglected to
utilize the land for the purpose
stated.”
2.
No compensation whatsoever has
been paid to the Plaintiffs for
the said acquisition.
3.
The Plaintiffs say that
expropriation without
compensation violates their
rights under
Article
18 (1) of the Constitution
to own property either alone or
in association with others”.
Emphasis
Furthermore, if you juxtapose
the averment in paragraph 12 of
the Defence in which they
absolutely denied granting any
portion of the acquired land or
permitting others to occupy same
without their permission with
their not denying those crucial
averments, then it begs the
question. They asseverated
further that, even though the
land is occupied by several
artisans, mechanics and
squatters, none of these is a
grant from them or with their
consent. How did they come to
plead those facts when they did
not inform the plaintiff herein?
If this was their position in
the pleadings in the suit, then
it is really incomprehensible
that they should have pleaded
that the case be resolved by
legal arguments and not by
evidence.
Be as it was, the suit
eventually proceeded to
conclusion on this legal
arguments trajectory and on the
28th day of July
2011, (Judge No. 1)
(as he then was) presiding over
the High Court, Accra delivered
judgment in favour of the 1st
Defendants herein, therein,
Plaintiffs as follows:-
“The factual basis upon which
Plaintiff instituted the action
was not traversed. Indeed, in
paragraph 7 of the statement of
defence, defendant conceded that
the facts are not disputed and
so defendant advocated for
determination of the dispute by
legal arguments.
Therefore, by agreement of both
lawyers for the parties the
court directed both learned
lawyers to file their respective
legal submission which they did.
Plaintiff made a case that since
1922, their subjects, families,
elders, functionaries have not
only been in possession of this
land but have been doing acts
adverse to the title the
government acquired, nonetheless
the government failed to take
action. Plaintiff stressed that
they have been in adverse
possession by farming and
putting up permanent settlement
mansions on the land. This
averment was not traversed. All
defendants said was that there
are mechanics, artisans and
squatters who are presently
occupying the land.
But what must be observed is
that no such mechanic or artisan
or squatter has sued the
defendant. It is the Osu
Stool that claims that
the court
must intervene to safeguard
their possessory interest in the
disputed land.”
The learned trial Judge then
continued his delivery in the
following terms:-
“The Plaintiff in their
supplementary legal submissions
filed on 21st April
2011 attached a site plan of
land of approximately 172.68
acres as land they have been in
adverse possession of.
This was served on defendant.
Nevertheless, there was no
reaction.
I therefore take it that
defendant concedes that
Plaintiff and its subjects have
been in adverse possession of
the land contained therein.
I therefore conclude that
Plaintiff succeeds in the action
in part. However, since the law
has been established in the case
of
Wordie and Others v. Awudu
Bukari (1976) 2 GLR 317, CA
that where the plea of
acquiescence and laches succeed
the pleader becomes entitled to
remain in possession but title
cannot be declared in him, I
declare plaintiff as entitled to
remain in possession.
Accordingly, I enter judgment
for Plaintiff and declare that
they are entitled to remain in
possession of all that piece of
land which is approximately
172.68 acres as attached to the
supplementary legal submissions
filed on 21st April
2011. I hereby by an order of
this court restrain the
defendant, their agents,
hirelings, workmen, servants,
assigns whomsoever and howsoever
described from dealing with the
said land in any way
inconsistent with the possessory
right of Plaintiff.” Emphasis
PARTIES TO THE SUIT THEREIN
It must be noted that, the Suit
in SOL/21/10 was conducted
throughout between the 1st
Defendants herein and 3rd
Defendants.
This was irrespective of the
fact that, the 1st
Defendants themselves pleaded in
paragraph 3 of their Statement
of Claim as follows:-
“The Plaintiff says that the
land described in the Schedule
was acquired on 17th
March 1922 by the Colonial
government for “extension
of college site” under
Certificate of Title LS NO
43/27.”
Finally in the schedule to the
Statement of Claim, in
the description of the land,
Achimota is mentioned.
This meant that, at all material
times, it was not lost on the 1st
Defendants that this land has
been acquired since 1922 by the
Gold Coast Government for the
Achimota College. Why then was
the school not notified about
the pendency of the Suit or let
alone made a party?
It should be noted that,
Achimota is a national asset, Is
that the way to treat a national
asset?
ACHIMOTA SCHOOL
Achimota School, formerly Prince
of Wales College and School,
later Achimota College, now
Achimota Senior High School is a
co-educational boarding school
located at Achimota in Accra,
Ghana and nicknamed MOTOWN.
The school was founded in 1924
by Sir Frederick Gordon
Guggisberg, Dr. James Emman
Kwegyir Aggrey and Rev. Alec
Garden Fraser.
It was formally opened in 1927
by Sir Frederick Guggisberg,
then Governor of the British
Gold Coast Colony. Achimota,
modelled on the British Public
school system, was the first
mixed-gender school to be
established in the Gold Coast.
The school has educated many
African leaders, including
Kwame Nkrumah, Edward
Akufo-Addo, Jerry John Rawlings
and John Evans Atta Mills, all
of whom are former Heads of
State of Ghana, and Sir Dawda
Jawara, first head of state of
The Gambia.
Achimota School occupies over
two square miles (525 hectares)
of prime real estate in the
middle of the Achimota Forest
Reserve, in the Accra
Metropolitan Area. It is a great
co-educational boarding school
where boys and girls receive
complete and total education. It
used to be a secondary school,
teacher training college and
University all rolled into one.
But now only the secondary
school exists at this site.
It possesses a swimming pool,
extensive playing fields, a
nature reserve, a demonstration
farm, and a model village for
the school’s employees. It also
has its own hospital, museum,
library and printing press.
Close to the school’s central
campus are the Golf Club, the
Achimota School Police Station,
a staff village for non-teaching
staff called Anumle, a forest
reserve, a large farm and a 45
bed Achimota Hospital.
From the above description, it
is an undeniable fact that
Achimota School is one of
Ghana’s most foremost
educational institutions. They
have served at various times as
a Training College, a Secondary
School which it still is, and
the cradle of the University of
Ghana.
NOTICE OF PENDENCY OF JUDGMENT
IN SUIT NO SOL/21/10 TO ACHIMOTA
From the above narrative, it
bears emphasis that our search
through the entire appeal record
has revealed that, the 3rd
Defendants herein, therein 1st
Defendants, refused, failed
and or neglected to file any
process against the judgment
dated 28th July 2011
in respect of Suit No.
SOL/21/10.
However, on the 4th
of March 2013, almost one year,
seven months from the date of
judgment, one Veronica
Owusu-Konamah, described therein
as an Assistant Legal Officer of
the Lands Commission was kind
enough to author the following
letter to the Headmistress of
Achimota School as follows:-
“Dear Madam,
IN THE MATTER OF NII
AKO NORTEI V LANDS COMMISSION
This is to inform you that
pursuant to our meeting on the
19th of February
2013 we have contacted Mr.
Stanley Amarteifio, Solicitor
for Achimota Senior High School
on the above subject matter as
you directed.
We have explained to him that
the judgment obtained against
the Lands Commission in Suit No.
SOL/21/10 entitled Nii Ako
Nortei v Lands Commission
adversely affects Achimota
School lands and there is
therefore the urgent need for
the school to take steps to set
aside the judgment.
Mr. Stanley Amarteifio has
requested that we dispatch a
copy of the writ and the
judgment to you for onwards
dispatch to him for action.
Accordingly, we have attached a
copy of the writ and judgment of
the High Court.
We wish to reiterate that the
Land in respect of which
judgment has been taken forms
part of the Achimota school
lands, which was acquired under
a Certificate (sic) Title dated
1927. The Plaintiff judgment
creditor is currently taking
rapid steps to enforce the
judgment hereto attached. Most
critical of the steps is a
pending application for mandamus
to compel the Lands Commission
to plot the subject matter lands
in Plaintiff name.
We would humbly advise that you
act expeditiously to halt the
execution and to set the
judgment aside.
Yours faithfully” Emphasis
For Solicitor Secretary
Veronica Owusu-Konamah
(Assistant Legal Officer)”
DESPERATE BUT FAILED STEPS TO
VACATE THE JUDGMENT IN SUIT NO
SOL/21/10 DATED 28TH
JULY 2011
The plaintiffs herein, 3rd
Defendants, and Attorney-General
took various failed attempts at
nullifying and or vacating the
said judgment of 28/7/2011 until
the institution of the instant
suit which has culminated in
this appeal. Some of the failed
processes are:-
1.
The first failed process
embarked upon by the Plaintiff
herein after they became aware
of the judgment was to file a
Notice of claim in the following
terms filed on 17th
June 2014. It was titled as
follows:-
“BETWEEN
NII AKO NORTEY (MANKRALO OF
OSU) -
PLAINTIFF
SUING FOR AND ON BEHALF OF THE
OSU
STOOL
165 WEST LAAKOO
LA-ACCRA
VRS
LANDS
COMMISSION
- DEFENDANTS
CANTONMENTS ACCRA
AND
THE BOARD OF
GOVERNORS
- CLAIMANTS
ACHIMOTA SCHOOL
ACHIMOTA, ACCRA
NOTICE OF CLAIM ORDER 44 RULE 12
TAKE NOTICE THAT THE BOARD OF
GOVERNORS OF ACHIMOTA SCHOOL,
hereby make a claim to the
property as described below
intended to be taken in
execution by the Plaintiff
pursuant to a judgment of the
High Court Accra (Lands
Division) dated the 28 day of
July 2011.
The said property consists of:-
“All that piece or parcel of
land containing an approximate
area of 172.680 acres or 69.883
hectares more or less lying,
situate and being at Achimota in
the city of Accra in the Greater
Accra Region of the Republic of
Ghana and bounded on the North
East by GIMPA (Campus) measuring
a total distance of 5,144.4 feet
more or less on the South East
by Lessor’s land, measuring
1600.2 feet more or less on the
South West by Lessor’s land
measuring a total distance of
4,388.1 feet more or less and on
the West by Lessor’s land
measuring 1,422.5 feet more or
less on the North West by
existing road measuring a total
distance of 1,271.1 feet more or
less.”
The address for service of
Achimota School is
1.
The Board of Governors
Achimota School
Achimota
Accra
And
2.
C/o Sylvia Cudjoe (Mrs)
Amarteifio, Cudjoe and
Associates
2nd Floor, Total
House
25, Liberia Road
Accra
Dated at Accra this 17th
day of June 2014
The Registrar
High Court
(Lands Division)
Accra “
Emphasis
Pursuant to the filing of the
process wherein the Plaintiffs
were described therein as
Claimants, an application for
Interlocutory injunction was
applied for by them against the
1st Defendants
herein, their servants, agents,
workmen etc. from continuing
with their acts of trespass on
the land pending the final
determination of their claim.
On the 30th July
2014, (Judge No. 2) presiding
over an Accra High Court,
dismissed the said application.
INVITATION TO PLAINTIFFS HEREIN
TO SETTLE
Following the Ruling which was
delivered on the 30th
July 2014 by the High Court,
Accra and referred to supra, the
next events of consequence were
“WITHOUT PREJUDICE”
invitation letters from Dr.
Philip Anderson to the
Plaintiffs herein, inviting them
for an out of court settlement,
dated 7th August 2014
and 25th August 2014,
respectively.
It is perhaps of interest to set
out portions of the letter of 25th
August 2014 which speaks for
itself as follows:-
“Following the outcome of our
meeting in your office on 21st
August 2014, I have the
instructions of my clients to
respectfully respond to your
concerns as follows:-
1.
My clients confirm that they
have sought the consent of your
litigation rivals, the Osu Stool
to attempt settlement out of
Court in this matter and that
the Osu Stool shall respect the
outcome thereof.
2.
The Summary of my clients’
proposal package for settlement
is
(i)
To establish a Public Private
Partnership (PPP) with Platinum
Equities to build classroom
blocks, geography or science
block and to build apartment
units for teachers. My clients
shall commit the total sum of
GH˘1,750,000.00 towards the
aforesaid project.
(ii)
To assist in the renovation of
the Achimota School football
field.
(iii)
To commit the sum of
GH˘75,000.00 to fence your
property in order to abate
encroachment.
(iv)
The total value of my clients’
partnership contribution shall
therefore be GH˘1,825,000.00”.
What is worthy of note is that,
the Platinum Equities mentioned
therein in the letter, were the
2nd Defendants, the
Plaintiffs herein issued Suit
No. LD/ O352/16 against in the
High Court, Accra which is the
suit that has led to the instant
appeal.
Secondly, it is important to
observe that Dr. Philip Anderson
wrote those letters principally
“for and on behalf of interested
parties with the consent and
concurrence of some principal
members of the Osu Stool on the
above subject matter and on
their instructions to do so.”
We are however aware of the
legal implications in respect of
these “without prejudice”
communications. They are
published just to indicate the
engagements the plaintiffs had
with 1st and 2nd
Defendants.
From the appeal record, there
seems to be nothing of value
that emanated from these
settlement attempts.
THE FILING OF THE ATTORNEY
GENERAL’S SUIT NO: SOL/53/15
On 24th March 2015,
the Attorney-General, in his
capacity as the Principal Legal
adviser to the Government of
Ghana issued a writ of summons
against Nii Ako Nortei as 1st
Defendant and Lands Commission
as 2nd Defendants.
See pages 45-56 of the record of
appeal.
In order to appreciate the full
force and effect of the Ruling
subsequently delivered by (Judge
No. 3) on 6th July
2015, it is important to set out
in full the reliefs claimed by
the Attorney-General against the
Defendants in that suit.
“THE ATTORNEY GENERAL
ATTORNEY GENERAL’S DEPARTMENT
MINISTRIES-ACCRA
VRS
1.
NII AKO NORTEI
(MANKRALO OF OSU
ON BEHALF OF THE OSU STOOL
165 WEST LAKOO
LA-ACCRA
2.
LANDS COMMISSION
HEAD OFFICE
CANTONMENTS
ACCRA
The Plaintiff’s claim is for
a.
A declaration that the judgment
of the High Court which was
delivered by His Lordship
Anthony Oppong, on 28th
July 2011 sitting as the
presiding Judge at the High
Court (Lands Division) Accra in
the case titled Nii Ako
Nortei vrs Land Commission with
case number SOL 21/10 in
favour of the 1st
Defendant herein who was the
plaintiff therein and declared
that the 1st
Defendant herein is entitled to
remain in possession of all that
piece of land which is
approximately 172.68 acres as
attached to the supplementary
legal submissions filed on 21st
April 2011 and gave an order
restraining the 2nd
Defendant herein, their agents,
hirelings, workmen, servants,
assigns whomever and
howsoever described from dealing
with the said land in any way
inconsistent with the possessory
rights of the 1st
defendant herein is not binding
on the Plaintiff.
b.
An order of perpetual injunction
restraining defendants from
acting on the said judgment.
c.
An order to set aside the
judgment determined on 28th
July 2011, by His Lordship
Justice Anthony Oppong, sitting
as the presiding Judge at the
High Court (Lands Division)
Accra in the case titled
Nii Ako Nortei v Lands
Commission with case number SOL
21/10 in favour of the
plaintiff/respondent herein who
was the plaintiff therein and
declared that the
plaintiff/respondent herein is
entitled to remain in possession
of all that piece of land which
is approximately 172.68 acres as
attached to the supplementary
legal submission filed on 21st
April 2011 and gave an order
restraining the
defendant/respondent therein,
their agents, hirelings,
workmen, servants, assigns
whomsoever and howsoever
described from dealing with the
said land in any way
inconsistent with the possessory
rights of the
plaintiff/respondent herein and
further awarded cost of GH˘
5,000.00 against the 2nd
defendant/respondent.
d.
An order to set aside and or
expunge any registration of 1st
and 2nd defendants as
owner of the land in the Land
Registry.
e.
Declaration that the judgment of
the High Court by His Lordship
Justice Anthony Oppong, sitting
as the presiding judge at the
High Court (Lands Division)
Accra in the case titled
Nii Ako Nortei v Lands
Commission with case number SOL
21/10 in favour of the 1st
defendant herein is null and
void and of no effect.” Emphasis
Following the service on the
Defendants therein of the writ
referred to supra, the 1st
Defendant herein filed an
application praying that the
action against them be
dismissed.
Accordingly, (Judge No. 3) on
the 6th of July 2015
in a Ruling, granted the
application. Judge No. 3
delivered himself and reasoned
thus:-
“The Defendant, (Lands
Commission), having lost the
right to appeal with the
effluxion of time within the
statutory period within which he
could have filed an Appeal
against the judgment in Suit No.
SOL/21/2010, now has joined
hands with the Plaintiff to
bring a fresh writ against the 1st
Defendant/Applicant and the 2nd
Defendant under the pretext that
the 2nd Defendant did
not bring to the attention of
the Plaintiff the then Suit No.
SOL 21/2010.
This is preposterous and I term
it disingenuous on the part of
both the 2nd
Defendant and the Plaintiff
herein named. Indeed there must
be an end to litigation among
some parties over the same
subject matter.
I think it is an affront to the
rule of law, equity, justice and
good conscience for the
Plaintiff, Attorney General (AG)
to plead in its Statement of
Claim and at paragraph 12 that
in spite of the judgment of His
Lordship Justice Anthony Oppong
given on 28th July
2011 (which the Plaintiff seeks
to set it aside), the Plaintiff
still contends that the property
was litigated upon and for which
the Court gave judgment in
favour of the 1st
Defendant/Applicant is still the
property of the Government of
Ghana. I ask, how is it so?
Does it mean that the Plaintiff
or the Lands Commission does not
respect the judgment given by a
Court of competent jurisdiction
such as the High Court (Lands
Division), Accra? I say so far,
on the 30th May 2013,
the High Court (Land Division)
presided over by His Lordship
Justice Ocran, had an
opportunity to rule over an
application for mandamus by way
of Judicial Review brought by
Nii Arko Nortei to compel the
Respondent, the Lands Commission
to plot and Register the
judgment in Suit No. SOL.
21/2010 and to grant the request
and consent concurrence. The
Court, presided over by Ocran J
granted the application with
regard to the plotting of the
172.68 acres of land as
contained in the judgment dated
28th July 2011.
I only will have to ask the 2nd
Defendant to respect the orders
of the Court and also ask the
Plaintiff to endeavour to help
the parties to bring the dispute
over the land to a close.
From the above analyses of the 1st
Defendant’s application
vis-ŕ-vis the Plaintiff’s
opposition to same, I find that
the plaintiff’s present suit,
qualifies to be so described as
an abuse of the court process
which must not be entertained as
the matters in controversy here
have been determined by a court
of competent jurisdiction
between the same parties and
basically on same subject matter
and it will therefore amount to
abuse of the process of the
court to allow the 2nd
defendant hiding behind the
cloth of the Plaintiff to have
an open-ended opportunity to be
litigating and re-litigating
over and over again in respect
of the same issue which has over
the period and in previous
decisions been decided against
him.
I accordingly grant the 1st
Defendant/Applicant’s
application and hereby dismiss
the suit as an abuse of the
court’s process. “Emphasis
It was when all these attempts
to circumvent the effect of the
judgment delivered by the High
Court in Suit No. SOL/21/10
dated 28th July 2011
failed that the Plaintiffs
herein resorted to the filing of
Suit No. LD/0352/2016 on 26th
January 2016, already referred
to in extenso supra.
SUIT NO. LD/0352/2016
The 1st Defendants
again prayed the High Court, to
dismiss Suit No.LD/0352/2016
against them on the following
grounds:-
a.
That the filing of the suit
amounted to abuse of process
b.
Frivolous and vexatious
c.
Discloses no cause of action
In a well considered Ruling,
dated 20th day of
July, 2016, (Judge No. 4)
delivered herself thus:-
“The arguments of the 1st
Defendant/Applicant therein was
focused on 3 pillars” which are
the same as stated supra.
The learned Judge continued
thus:-
“The relevant portions of the
affidavit in support are as
follows:-
3.
That the Plaintiff lack the
capacity to bring this action
4.
That the suit is also frivolous,
vexatious and an abuse of
process
5.
That on 16/3/2010 per Counsel
(for 1st defendant
herein) I sued …Writ of Summons
and Statement of Claim in Suit
No. SOL 21/10 entitled Nii
Ako Nortei v Lands Commission (3rd
Defendant herein) for
the following reliefs:
The basis of the
Plaintiff/Respondent’s
opposition can be found in its
fourteen paragraph affidavit in
opposition. The essentials are
as follows:-
6.
That the Plaintiff’s statutory
right to the land was neither
asserted nor determined in Suit
No. SOL 21/10 and in Suit No.
SOL 53/15.
7.
The Plaintiff was also not a
party to Suit Number SOL 21/10
or Suit No. SOL 53/15.
8.
That although plaintiff filed a
“Notice of Claim” in Suit No.
SOL 21/10, it abandoned same
after it received advice that
the proper procedure to assert
its title to the land in dispute
and the serious allegations of
fraud against the first
defendant is by commencing the
instant action.
9.
That the land in dispute is
neither owned by the 3rd
defendant herein, who was the
defendant in Suit No. SOL 21/10
nor the Government of Ghana, who
was represented by the Attorney
General as Plaintiff in Suit No.
SOL 53/15.
10.
That the plaintiff is
incorporated by statute as a
body corporate with perpetual
succession, and is neither a
privy of the 3rd
defendant’s herein nor of the
Attorney General.
11.
The 1st defendant has
always known that the land,
which was acquired from his
stool family in the 1920s, was
duly paid for and subsequently
vested by statute in the
plaintiff who has remained in
continuous occupation and uses
same for its educational
purposes since 1930.
12.
That the 1st
defendant’s action in Suit No.
SOL. 21/10 against the 3rd
defendant herein and its
application in Suit No.
SOL.53/15, form part of
fraudulent scheme to dispossess
the plaintiff of its title to
the land in dispute.
13.
That the pleadings in the
plaintiff’s statement of claim
herein set out clearly the fraud
perpetuated by the 1st
defendant in Suit No. SOL 21/10
with the unwitting aid and
facilitation of the 3rd
defendant herein.
On the issue of
whether
the action amount to abuse of
process of court and whether is
vexatious and frivolous, the
Court noticed that per
Exhibit NAN 1(which is the Writ
of Summons, Statement of Claim)
and Exhibit NAN 3 (which is the
judgment of my brother Justice
Anthony Oppong) the
Plaintiff/Respondent herein was
not a party to the suits. The
Plaintiff respondent is the
occupier of the land acquired by
the government and administered
by the 3rd defendant
herein but vested in the
plaintiff/respondent. The
applicant should have joined the
occupier of the land to the
suit, but chose to refer to the
plaintiff as strangers. Indeed,
the presence of the plaintiff on
the land is so obvious to escape
notice. This court will refuse
to find or presume that the
plaintiff’s action, which is an
effort to protect the land on
which the school is situate,
amounts to an abuse of the
judicial process or that it is
frivolous and vexatious.”
Emphasis
APPEAL BY 1ST
DEFENDANTS TO THE COURT OF
APPEAL
Feeling aggrieved with the
decision of (Judge No. 4), the 1st
Defendants/Respondents herein,
appealed the decision to the
Court of Appeal.
On the 2nd November
2017, the Court of Appeal delivered
themselves by setting aside the
decision of the High Court, and
stated thus:-
On the issue of capacity, the
Court of Appeal stated thus:-
“It is the case of the appellant
that the
Education Act 1961, Act 87
repealed Cap 114 in section 34
when it provides that the
following enactments as
subsequently amended are hereby
repealed;
The Achimota School Ordinance
(CAP 114),
The
Education (Southern Ghana and
Ashanti) Ordinance CAP 121, The
Education (Northern and Upper
Regions Ordinance (CAP 122).
CAP 114 since its repeal in 1961
had ceased to be law in order to
confer any authority on the
Board of Governors that was
created under the law. Moreover,
another law,
Education
Law of 2008, Act 778 has
since also repealed Act 87.
Indeed at the time of the repeal
of Act 87, CAP 114 has since
long ceased to exist. Since
the Board of Governors was not
one of the Officers saved upon
the repeal of CAP 114, it cannot
now resurrect to mount a
successful action as is being
done in this case.
The learned trial Judge was
under an obligation to determine
the issue of capacity before
proceeding to hear the matter on
its merits. The case of the
plaintiff that it was not a
party in the earlier suits does
not help them. The Lands
Commission duly informed them of
the outcome of the suit and the
Attorney General unsuccessfully
took action in respect of the
same land. The Achimota
School would have enjoyed the
fruits of the litigation if they
had been successful. On the
other hand, if the school felt
that they had been given a raw
deal they had to obtain the
leave of the defendant in the
suit to use his name and then
apply to the court in the said
defendant’s name to have the
judgment set aside.
Alternatively, in case for some
reason he cannot use the name of
the defendant he can take out a
summons in his own name, but in
that case, the summons should be
served on both the plaintiff and
the defendant asking of the
court to set aside the judgment
and be allowed to defend the
action on such terms of
indemnifying the defendant as
the Judge may consider just. See
the case of
Lamptey v Hammond [1987-88] 1
GLR 322 and the case In the
Nungua Chieftaincy Affairs; Odai
Ayiku v AG (Borketey Laweh XIV
Applicant) [2010] SCGLR.
This is not the
procedure adopted by the
Achimota School which is
currently under the Ministry of
Education under Act 778 of 2008
which has in Section 3 (1)
repealed the Education Act, of
1961 (Act 87).
In our view the objection raised
by the defendant regarding the
capacity
of the plaintiff to bring this
action is valid and ought to
have been decided before
considering the merits of the
case. It will be an exercise in
futility to allow the trial to
proceed when the
plaintiff/respondent lacks the
requisite capacity to sue. Any
such trial in the light of
Bulley vrs Akrong shall be
declared a nullity.
As it is, there have been
various suits in respect of this
same land in which various
courts of competent jurisdiction
have decided against the
plaintiff/respondent. These
judgments and court rulings
still stand tall against the
plaintiff, the Lands Commission,
and the Attorney-General who did
not appeal against the decision.
They are bound by these
judgments. The Writ of
Summons can therefore rightly be
described as an abuse of the
court process and should not be
entertained by the court.”
Emphasis
APPEAL TO THE SUPREME COURT
Feeling aggrieved by the Court
of Appeal decision, the
Plaintiffs on 14th
November 2017 appealed to this
court with the following as the
grounds of appeal:-
Grounds of Appeal
a.
“That the Court of Appeal
committed a jurisdictional error
when it determined that the
Appellant has no capacity to
maintain this suit in an
application made under
Order 11
Rule 18 (1) (a) of the High
Court (Civil Procedure) Rules,
2004 (C.I. 47). Or in the
alternatives,
That the Court of Appeal’s
finding that the Appellant has
no capacity to maintain this
suit is neither supported by the
evidence on record nor the law
on the effect of a repealed
legislation on completed and
closed matters.
b.
That the Court of Appeal’s
finding that the Appellant was
aware of Suit No. SOL. 21/10 but
neither filed an “appeal” nor
took “any step” to have the
judgment set aside” is
perverse as same is contradicted
by the evidence on record and
the instant action.
c.
That the Court of Appeal fell
into grave error in holding that
the Appellant is a privy of the
Lands Commission and the
Attorney General and is thus
bound by the judgment and orders
in Suit No. SOL. 21/10
(titled: Nii Ako Nortei II v
Lands Commission) and Suit No.
SOL 53/15 (titled:
Attorney-General v Nii Arko
Nortei and Lands Commission).
d.
That the Court of Appeal erred
in holding that the rule in
Lamptey v Hammond [1987-88] 1
GLR 327,
relating to the remedy for a
non-party affected by a judgment
(and applied in In Re
Nungua Chieftaincy Affairs; Odai
Ayiku IV v Attorney-General
(Borketey Laweh XIV Applicant)
[2010] SCGLR 413),
precludes the Appellant from
issuing the Writ of Summons and
Statement of Claim herein to
challenge the judgment and
orders procured by fraud.
Reliefs sought from the Court of
Appeal
a.
To set aside the Court of
Appeal’s decision nullifying the
Applicant’s action at the trial
court, and
b.
Restore the trial Court’s ruling
dated 20th July 2016,
which dismissed the 1st
Defendant/Appellant/Respondent’s
motion to strike out writ of
summons and statement of claim
and to dismiss suit filed on 30th
June 2016.”
PRELIMINARY POINT OF LAW ON THE
APPEAL
In their Statement of case filed
on 1st April 2019,
learned counsel for the 1st
Defendants herein, Bright
Okyere-Adjekum raised a
preliminary legal objection in
the following terms:-
“My Lords, our contention is
that, the Appeal is
fundamentally flawed. The Ruling
which has snowballed into this
Appeal was an interlocutory
decision. My Lord by
Section 4
(2) of the Courts Act, 1993, Act
459, this Appeal could not
have been filed as of right. The
Appellant ought to have obtained
the special leave of this court.
That decision we contend, was
not a judgment within the
meaning of Section 4 (1) (a) for
same to have proceeded to this
court as of right. My Lords, we
rely on the analysis of this
Court in
Kwasi Owusu and Anr. v
Joshua Nmai Addo and Anr. Civil
Appeal No. J4/50/2014 dated 30th
July 2015.”
The above case is now reported
as
Owusu and Others v Addo and Anr.
[2015-2016] 2 SCGLR 1479.
Expatiating further on the above
preliminary objection, learned
counsel for the 1st
Defendants submitted that “
the fatality in not obtaining
the special leave of this court,
the present Appeal is left with
no legs to stand and ought to be
dismissed, ex debito justitiae
as the invocation of the Appeal
processes is flawed at birth”.
Counsel then relied on the locus
classicus case of
Mosi v Bagyina [1963] 337
to articulate his
submissions further.
RESPONSE BY THE PLAINTIFFS
Learned counsel for the
Plaintiffs Ace-Anan Ankomah in
his Reply filed on behalf of the
Plaintiffs on 8th May
2019 argued that the Plaintiff
did not require special leave of
this court to file the instant
appeal to the court. The crux of
the legal arguments of learned
counsel can be summed up thus:
“Since the Supreme Court derives
its jurisdiction from the
constitution, article 131
thereof, there is no such
requirement for
special
leave to be obtained before an
appeal can be filed in
situations such as this one,
where the matter originates from
the High Court.”
Learned Counsel for the
Plaintiffs then sought to
distinguish the Owusu v Addo
case referred to supra in the
following terms:-
“My Lords, we humbly submit that
Kwasi Owusu can be distinguished
from the present appeal as the
jurisdiction of this Honourable
Court is not being invoked in an
appeal against the dismissal of
a repeat application for stay of
execution as was the case in
Kwasi Owusu. This appeal is
based on an appeal of a decision
of one High Court in the
exercise of its original
jurisdiction and therefore the
Appellant was not required to
seek this Honourable Court’s
leave before it could file the
appeal.”
In order to ascertain whether
the contention by learned
counsel for the Plaintiff that
the Owusu v Addo
case is distinguishable, it is
important to set out the
essential facts of this
Owusu v Addo case in
some detail.
FACTS IN OWUSU V ADDO
On 5th September
2012, the High Court , Accra
delivered judgment in respect of
a parcel of land situate at
Achiaman near Pokuase and
declared Addo as the victorious
party; whilst restraining Owusu
and his people from having
anything to do with the land.
Being dissatisfied with the
decision, Owusu lodged an appeal
to the Court of Appeal.
They applied for stay of
execution of the said judgment
to the High Court which
dismissed same, and a subsequent
repeat application to the Court
of Appeal was similarly
dismissed. Owusu then appealed
the Court of Appeal Ruling and
questioned the correctness of
the said Ruling to the Supreme
Court.
In dismissing this application
to the Supreme Court, the Court
speaking with unanimity through
Wood C. J. held as follows:-
“The right to appeal to this
court in respect of an order of
the Court of Appeal,
dismissing a repeat application
for stay of execution, is not an
automatic right but one
carefully circumscribed by
article 131 (2) of the 1992
Constitution and Section 4 (2)
of the Courts Act, 1993 (Act
459). Thus an appellant
would have no direct access to
the Supreme Court without first
satisfying the leave
requirement.
Djokoto & Amissah v BBB
Industrials Co. (Ghana) Ltd and
City Express Bus Services [2011]
2 SCGLR 825 criticised.
Emphasis
Having apprized ourselves of the
relevant facts and the decision
in the case of Owusu v Addo,
supra, we are of the firm view
that the said case is indeed
distinguishable from the instant
appeal.
In the first place, the appeal
herein was lodged against the
substantive decision of the
Court of Appeal, not in an
interlocutory matter. This point
alone is enough to deliver a
lethal blow to this preliminary
legal objection.
Secondly, whilst the instant
case is a substantive appeal
flowing from the Court of
Appeal’s decision in respect of
which an appeal as of right had
accrued to the Plaintiffs
herein, it was not so in the
Owusu v Addo case as
the facts show.
Our view of the matter is that,
from the antecedents of the
facts of this case which had
been detailed above, it is clear
that the facts herein are no
where similar to the facts of
the Owusu v Addo
case. We will therefore dismiss
the said objection and hold that
the appeal is proper and proceed
to deal with the substantive
grounds of appeal on their
merits.
CAPACITY
Once the capacity of the
Plaintiffs herein has been
challenged, it is crucial that
the said issue be dealt with
first.
HAVE THE PLAINTIFFS CAPACITY IN
THIS CASE?
There is no doubt that the
Plaintiffs averred in paragraph
1 of the Statement of Claim as
follows:-
“The Plaintiff is a body
incorporated pursuant to Section
5 of the Achimota School
Ordinance No 7 of 1948 (CAP 114)
as the governing body of
Achimota School, which school
was established pursuant to
section 3 of CAP 114.
The Court of Appeal as has
already been referred to, did
not accept the said averments
referred to supra. Instead, the
Court of Appeal held inter alia
as follows:-
“CAP 114, since it’s repeal in
1961 had ceased to be law in
order to confer any authority on
the Board of Governors that was
created under the law. Moreover,
another Law, Education Law of
2008, Act 778 has since also
repealed Act 87, CAP 114 has
since long ceased to exist.
Since the Board of Governors was
not one of the officers saved
upon the repeal of CAP 114, it
cannot now resurrect to mount a
successful action as is being
done in this case.”
What this court has to decide in
this suit herein is very simple
and straightforward. The
plaintiffs have averred thus
“That Section 3 of CAP 114 now
repealed, which concerns matters
affecting Achimota School
provided as follows:-
“The Secondary Department of the
Prince of Wales College and
School shall be established as
an independent and autonomous
institutions and shall be styled
“Achimota School”.
They further contended that,
Section 4 therein of the said
repealed CAP 114 which
established a Council as an
entity named “Achimota School
Council,
“Which shall have control of and
superintendence over, the
general policy and property of
the School and in all
cases provided for by this
ordinance may act in such manner
as it deems best to promote the
best interests of the school.”
The Plaintiffs also in support
of the above, detailed extensive
historical antecedents of the
Governing body of Achimota
School as provided therein under
sections 2, 7 and 29 of the said
CAP 114.
The plaintiffs then contended
rightly in our view that under
those legislations, Achimota
School lands were vested in the
Board of Governors of the school
which had capacity to be sued
and to sue on behalf of the
school over all the school’s
properties including the
school’s land.
Continuing with their further
analysis of the historical
antecedents of the Plaintiffs,
they contended that, CAP 114 was
subsequently repealed by the
Education Act, 1961 (Act 87).
This Act, did not continue in
existence the boards established
under the repealed CAP 114 but
contained provisions in Sections
15 and 16 therein which
empowered the Minister of
Education to establish and
dissolve boards of governors for
recognised institutions. By the
provisions contained in the said
Sections 15 and 16 of Act 87, it
should be noted that Boards of
Governors of second cycle
institutions including the
Plaintiffs have not been
dissolved and where their terms
have lapsed, new Boards have
always been put in place under
Act 87. Under these
circumstances, can it be legally
sustained that, the capacity of
the Plaintiffs who are the Board
of Governors, acquired under CAP
114 was completely lost and
obliterated by the repeal of
same by subsequent legislations?
What about the rights and
proprietary interests that had
accrued to them under CAP 114?
Could these matters not have
been dealt with appropriately in
Suit No. LD/0352/2016 if it had
been heard on the merits?
This phenomenon has become so
general and pronounced that it
is our view that judicial notice
ought to be taken of this
practice
WHAT IS JUDICIAL NOTICE
“This is a court’s acceptance,
for purposes of convenience and
without requiring a party’s
proof of a well known and
indisputable fact, and the
court’s power to accept such a
fact.” Reference
Blacks
Law Dictionary, Ninth Edition,
page 923.
Judicial notice can therefore be
taken of the management of all
public second cycle schools in
Ghana by Boards of Governors for
the past 50 years or so, period.
We ask ourselves, does the
plaintiff school have a body
known as Board of Governors by
which the institution known as
Achimota School is governed and
managed?
The answer is a big yes, and we
dare say that, as the final
appellate court of this country,
“we must think outside our
box” and render decisions
that make sense and capable of
resonating with the ordinary and
common people. We must also
render decisions based on what
is generally practiced in the
country.
It is in this light that we
will proceed to discuss the
effect of the repeal of CAP 114
and Act 87 which had also been
further repealed by the
Education Act, 2008 (Act 778).
Learned Counsel for the
Plaintiffs, Ace Ankomah in his
detailed and incisive statement
of case, referred this court to
Article
106 (2) of the Constitution
which stipulates that all Bills
other than those excepted
therein, must have “explanatory
memorandum. This
article 106 (2) of the
Constitution provides as
follows:-
“No Bill, other than such a Bill
as is referred to in paragraph
(a) of article 108 of this
Constitution, shall be
introduced in Parliament unless
(a)
it is accompanied by an
explanatory memorandum setting
out in detail the policy and
principles of the Bill, the
defects of the existing law, the
remedies proposed to deal with
those defects and the necessity
for its introduction.” Emphasis
We have verified the exceptions
created therein and can confirm
that, the Bill therein
introduced, which repealed Act
87, that is Act 778 is not one
of those exceptions and
therefore must by necessity have
an explanatory memorandum.
What is contained in this
Explanatory Memorandum to Act
778 when it was introduced in
Parliament as a Bill?
It states in part as follows:-
“The Education Act 1961 (Act 87)
marked a turning point in the
educational system of the
country. It has remained
unchanged since its passage even
though education has undergone
many changes- changes which are
not covered by its provisions.
It has served its due purpose.
This Bill thus seeks to
incorporate the lessons learned
from the over fifty years of
state control and management of
educational reforms.” Emphasis
The memorandum further states
thus:-
“The Bill thus seeks to embody
the aspirations of the people of
Ghana for a national system of
education which provides
knowledge, skills and social
values required to build a
united country capable of
competing globally in a world
increasingly driven by, and
dependent on, science and
technology for the generation of
knowledge and skills.” Emphasis
The final quote from this
memorandum of relevance states
as follows:-
“Thus schools owned by the
community would through their
boards of governors be given as
much autonomy as possible to
raise additional resources in
cash and kind to supplement the
state provisions.”
Emphasis
Learned Counsel for the
Plaintiffs made reference to
Section
10 (2) of the Interpretation
Act, 2009 (Act 782) and its
effect on the use of an aid to
construction of statutes such as
the Explanatory memorandum”
referred to supra.
In order to put matters in
proper perspective, let us quote
in extenso this section 10 (2)
of Act 792 as follows:-
“A court may, where it
considers the language of an
enactment to be ambiguous or
obscure, take cognizance of
a.
the legislative antecedents of
the enactment;
b.
the explanatory memorandum as
required by article 106 of the
Constitution and the arrangement
of sections which accompanied
the Bill;
c.
pre-parliamentary materials
relating to the enactments
d.
a text-book, or any other work
of reference, a report or a
memorandum published by
authority in reference
to the enactment, and the papers
laid before Parliament in
references to the enactment;
e.
the parliamentary debates prior
to the passing of the Bill in
Parliament” emphasis
Based on the above provisions in
the Interpretation Act, Act 792
learned counsel for the
Plaintiff invited this court to
seriously consider the
“explanatory memorandum” as an
aid to the construction of the
said Act 778.
The problem which this issue of
capacity of the Plaintiffs has
raised is this:-
What then is the effect of a
repeal of legislation such as
Act 778 repealing Act 87?
SUBMISSIONS BY 1ST
DEFENDANTS ON ISSUE OF CAPACITY
Learned Counsel for the 1st
Defendants, Bright
Okyere-Adjekum anchors his
objection to the Plaintiffs
capacity on the plaintiffs own
averments in paragraph 1 of
their statement of claim filed
on 26th January 2016
in which the plaintiffs
described themselves as a body
incorporated pursuant to section
5 of the Achimota School
ordinance No. 7 of 1948 (CAP
114) as the governing body of
the school. This has already
been referred to in extenso
elsewhere in this delivery.
Based on the above averments and
the fact that CAP 114 had been
repealed by Act 87 which had
also been repealed by Act 778,
learned Counsel for the 1st
Defendants, submitted that, once
there has been no saving clause
or provision in either of the
two Acts referred to above, it
must be deemed that the law in
CAP 114, which provided the
plaintiffs with the capacity
they purport to carry themselves
with has been obliterated from
the statute books completely as
if it has never been enacted,
save for past transactions which
should be deemed as having been
closed.
In this respect, learned counsel
referred to the oft quoted
reference to
Dr. S. Y.
Bimpong-Buta’s classical
work on “The
Law of Interpretation in Ghana
(Exposition and Critique)”
page 171 where the learned
author stated as follows:-
“The general common law rule is:
where an Act is repealed or
expires, lapses or otherwise
ceases to have effect, it is
regarded, in the absence of a
contrary provision, as having
never existed except as to past
and closed matters or
transactions.”
Emphasis
Counsel then referred to the
following decided cases
Punjab v Mohar Singh, AIR 1955
SC 84, Attorney-General v
Lamplough, L.R 8 EX. D223 and
Kowus Motors v Check Point Ghana
Ltd and Others [2009] SCGLR 230
to buttress his contentions.
Based on the above, learned
counsel submitted that, once Act
87 came into force and by
operation of law CAP 114 ceased
to exist, the Minister for
Education could not have
resurrected the Plaintiff Board
under a repealed legislation.
According to learned counsel,
the plaintiff school Board had
become extinct by operation of
law and contended that it would
have been a fruitless venture to
attempt to do so “venture
fructu efficitur”.
Learned counsel for the 1st
Defendants then referred
extensively to Section 32 of Act
87 and its definition of key
words like “assisted
institutions,” “board of
governors”, “public” and “public
higher institution” and
juxtaposed same with the fact
that the entire Act 87 had been
repealed by Act 778 which has
done away entirely with the
concept of Board of Governors.
From the above references,
learned Counsel concluded that
the Plaintiff school is a public
institution and that the term,
Board of Governors of the school
is a creation that is unknown to
the laws of Ghana. He concluded
thus that, the said body lacks
capacity to have mounted the
suit herein. Counsel therefore
contended that the land in
dispute is a public land which
has by operation of the
Constitution 1992 been vested in
the President for which the
Lands Commission is mandated to
protect, reference article 257
to 258 of the Constitution.
After extensively referring to
the relevant constitutional
provisions therein, learned
counsel made the following
submissions.
That the institution of Suit No.
SOL.2/2010 by the 1st
Defendants herein against 3rd
Defendants was proper.
We will deal appropriately with
this issue whether under the
circumstances, the 3rd
Defendants, (Lands Commission)
under broad daylight, and
bearing in mind all the
constitutional provisions
therein contained, can be deemed
to have protected public lands
entrusted to them under the
Constitution.
The actual intention of the
above submissions was revealed
when learned counsel expectedly
submitted thus:-
“My Lords, the Appellant argues
that the memorandum to the
Education Act, 2008 (Act 778)
makes its (sic) clear that
Act 778 intended the
continuation in existence of
existing Board of Governors. My
Lords that cannot be the intent
of the drafters of the Act as
they would have expressly stated
so particularly when as in this
case the Act which preceded Act
778, the Education Act, 1961
(Act 87) had also over
fifty-eight years ago repealed
the body referred to as Board of
Governors.”
Learned Counsel then referred to
the following cases and
concluded that the capacity of
the plaintiffs is non existent
and this issue must be decided
against them and the appeal
herein dismissed.
See
Edusei v Diners Club Suisse
S.A [1982-83] GLR 809 CA, at
814-815 per Francois J.A (as he
then was), Asante-Appiah v
Amponsah [2009] SCGLR 90 at 95
and Republic v High Court, Accra
Ex-parte Aryeetey (Ankra-
Interested Party) [2003-2004]
SCGLR 398.
The nature and facts of the
instant appeal actually render
the above decided cases
irrelevant.
In a concurring opinion
delivered by Dotse JSC in
unreported
Suit No.
CMJ5/20/2020 dated 29th
April 2020 intitutled
The
Republic v High Court, Accra
(Commercial Division)-
Respondents; Ex-parte Enviro
Solutions and 3 Others –
Applicants, Dannex Limited and 5
Others – Interested Parties,
where a similar situation arose
in respect of a repealed statute
with a savings provision, Dotse
JSC, after reviewing relevant
legislation in the
Interpretation Act, 2009 (Act
792), the
Companies Act 2019, Act 992,
cases like
Nii
Kpobi Tettey Tsuru v
Attorney-General [2010] SCGLR
904, Spokesman Publications Ltd.
v Attorney-General [1974] 1 GLR
88 at 89, Dr. S. Y.
Bimpong-Buta’s classical work “The
Law of Interpretation in Ghana”,
page 171 and the Invaluable Book
of VCRAC Crabbe,
“Understanding Statutes”
pages 140-141, concluded and
held in his concurring opinion
in the case referred to supra as
follows:-
“It must also be emphasized
clearly that, from the
principles of interpretation of
statutes dealt with supra in
respected legal texts, statutes
as well as case law, it is
apparent that, a repealed
statute does not lose all of its
effect and operating provisions
simply because a new statute had
been enacted. General
principles of interpretation as
well as the effects of relevant
provisions in the Interpretation
Act must all be considered and
read together to give a
wholistic application and
meaning to the situation.
When this is done, it becomes
evident that the High Court had
jurisdiction to hear the
application for the confirmation
albeit under a repealed
enactment.” Emphasis
IS THERE A CASUS OMISSUS?
We have referred to the
Explanatory Memorandum to Act
778 when the Bill for the
passage of the Act was
introduced into Parliament. We
have also made reference to
article 106 (2) of the
Constitution which stipulates
that such memorandum can be used
as an aid to the construction of
statutes. This has since been
incorporated in the
Interpretation Act, 2009, Act
792, Section 10 (2) thereof
supra.
VCRAC Crabbe,
in his invaluable book “Understanding
Statutes” pages 59-60
wrote concerning how statutes
are to be constructed by
reference to Sir Roundell
Palmer’s debate in Parliament
contained in 2009, Hansard Parl.
Deb (3rd Series) 685.
“Nothing is better settled
than that a statute is to be
expounded, not according to the
letter, but according to the
meaning and spirit of it. What
is within the true meaning and
sprit of the statute is as much
law as what is within the very
letter of it,
and that which is not within the
meaning and spirit, though it
seems to be within the letter,
is not the law, and is not the
statute. That effect should be
given to the object, spirit, and
meaning of a statute is a
rule of legal construction, but
the object, spirit and meaning
must be collected from the words
used in the statute. It must be
such an intention as the
legislature has used fit words
to express.” Emphasis
In this instance, considering
the “explanatory memorandum” it
does bear sufficient emphasis
that the clear intentions
exhibited therein had not been
captured adequately by the words
used in Act 778.
As can be seen from this
explanatory memorandum, Boards
of Governors were to be
established for community
schools. How come that, no
provision had been made for the
public schools like the
Plaintiff school to have Boards
of Governors, contrary to
existing practice?
In this country, judicial notice
can again be taken of the fact
that, all second cycle public
institutions such as Achimota
School, Mfantsipim School,
Wesley Girls, Adisadel, Mawuli
School, Ola Girls, Ho just to
mention a few, have for all
these several years, been
managed by their Boards of
Governors. These Boards are
composed of persons of repute,
intellect and experience who
manage these schools for and on
behalf of the Minister for
Education. General and practical
knowledge can be taken into
consideration for this court to
take judicial notice of this
phenomenon of Board of Governors
managing public second cycle
institutions in Ghana.
IS THERE AN OMISSION IN ACT 778?
Dealing with this subject of
“casus omissus”, Crabbe JSC in
his book Understanding
Statutes wrote at page 61 as
follows:-
“An Act of Parliament maybe
badly drafted. That may result
in an omission of certain
matters in the Act, or even of a
word or words. It may be the
fault of the Parliamentary
counsel who drafted the Bill for
the Act, or the result of an
amendment in Parliament, but
whatever the source of the
omission, effect must be given
to the Act. In those
circumstances, the intention of
the legislature, however obvious
it may be, must, no doubt, in
the construction of statutes, be
defeated where the language it
has chosen compels to that
result, but only where it
compels to it.” See the case of
London
and India Docks Co. v Thames
Steam Tug and Lighterage Co. Ltd
[1909] AC at p. 23. The
rationale for such an occurrence
is that, in cases where a
material and relevant
particular is not provided for
in express terms there is a
“casus omissus”.
Expatiating further on this
principle of “casus omissus”,
the learned author at page 61
writes thus:-
“The courts will refuse to
apply the statute where the
words do not compel the courts
to supply the omission. This is
in consonance with the basic
principle that the function of
the court is to interprete the
law and not to legislate:
“Emphasis
This basically is the attitude
of the English courts. What then
are the functions of the Court?
There are varying views, and
different approaches are used by
English Judges and American
Judges.
In England, the rule is that,
“Judges do not make the law,
they only interprete it”.
However, it is greatly
acknowledged that, Oliver
Wendell Holmes, that great
American Judge in a dissenting
opinion recognised without
hesitation that “Judges do
and must legislate, but they do
so interstitially, they are
confined from molar to molecular
motions.” See
Southern
Pacific Co. v Jensen (1917) 244
US 205 at p. 221.
Lord Denning stoked great
controversy in the debate
between him and Lord Simmonds in
the case of
Seaford Court Estates Ltd. v
Asher [1949] 2 KB 481
at p. 499
where Denning L.J, stated as
follows:-
“Whenever a statute comes up for
consideration it must be
remembered that it is not within
human powers to foresee the
manifold set of faults which may
arise, and even if it were, it
is not possible to provide for
them in terms free from all
ambiguity …A Judge, believing
himself to be fettered by the
supposed rule that he must look
to the language and nothing
else, laments that the draftsmen
have not provided for this or
that, or have been guilty of
some or other ambiguity. It
would certainly save the Judges
trouble if Acts of Parliament
were drafted with divine
prescience and perfect clarity.
In the absence of it, when a
defect appears a Judge cannot
simply fold his hands and blame
the draftsman. He must set to
work on the constructive task of
finding the intention of
Parliament, and he must do
this not only from the language
of the statute, but also from
a consideration of the social
conditions which gave rise to
it, and of the mischief which it
was passed to remedy, and then
he must supplement the written
word so as to give “force and
life” to the intention of the
legislature.
That was clearly laid down by
the resolution of the Judges in
Heydon’s case, and it is
the safest guide today… Put into
homely metaphor it is this: A
Judge should ask himself the
question: If the makers of the
Act had themselves come across
this ruck in the texture of it,
how would they have strengthened
it out? He must then do as
they would have done. A Judge
must not alter the material of
which it is woven, but he can
and should iron out the creases.”Emphasis
Lord Denning was condemned by
the majority in the House of
Lords even though the decision
in the Seafood case was upheld.
When he next had the opportunity
in the case of
Magor and St. Mellon’s Rural
District Council v Newport
Corporation [1950] 2 ALL E.R.
1226 at p.
1236 he reiterated his
views once again as follows:-
We do not sit here to pull the
language of Parliament and of
Ministers to pieces and make
nonsense of it. That is an easy
thing to do, and it is a thing
which lawyers are often prone.
We sit here to find out the
intention of Parliament and
Ministers and carry it out, and
we do this by filling in the
gaps and making sense of the
enactment than opening it up to
destructive analysis.”
Emphasis
This approach was roundly
condemned by the House of Lords.
However, the Renton Report
(1975) Cmnd 6053, para 19.2,
commenting on the opinion of
Lord Denning reported and
recommended as follows:-
“We see no reason why the courts
should not respond in the way
indicated by Lord Denning.
The courts should approach
legislation determined, above
all to give effect to the
intention of Parliament. We
see promising signs that the
consideration is uppermost in
the minds of the members of the
highest tribunal in the
Country.” Emphasis
See page 51 of Understanding
Statutes.
What is the relevance of the
above quotations to the instant
case?
We have to put the antecedents
of the instant appeal into
perspective. Beginning from
where it all started, Suit
No. SOL.21/2010 where the
Plaintiffs herein were not made
a party, nor served and brought
into the picture until the
judgment was entered against the
Defendants therein in respect of
land upon which their school
which they manage has been taken
over. Thus, when we consider the
social conditions under which
Act 778 was passed, the
prevailing notorious material
facts that, in Ghana at all
material times, it is Boards of
Governors who manage second
cycle schools such as Achimota
School, the only reasonable,
logical and justifiable
conclusion is to fill the casus
omissus therein in the statute
by holding that the reference
therein to the Board of
Governors must be construed to
mean a body corporate that
stands in between the schools
and the Minister.
We cannot expect the draftsman
to provide Boards of Governors
for community schools and leave
out public schools like the
plaintiffs.
In this respect, we have no
hesitation whatsoever to hold
and rule that, the Plaintiffs
have the requisite capacity to
mount this action to defend
Achimota School Lands. The
judicial process must not be
allowed to enable the hands of
the managers of the Plaintiffs
lands be taken over by persons
who have no title to them
whatsoever. As indicated much
earlier in this delivery, the
rights acquired by the
Plaintiffs in CAP 114 cannot be
taken away retrospectively as is
contended by the 1st
Defendants.
See Section 34 (1) (c) of the
Interpretation Act, 2009, Act
792 which provides that,
“Where an enactment repeals or
revokes an enactment, the repeal
or revocation shall not, except
as in this section otherwise
provided,
(b)
affect a right, a privilege, an
obligation or a liability
acquired, accrued or incurred
under the enactment that is
repealed or revoked.” Emphasis
FILL IN THE GAP
It is in respect of the above
principle that we will fill in
the gap which has been created,
and the statute construed
accordingly.
That is to say boldly that, the
Board of Governors of Achimota
School that is the plaintiffs
herein, exist and have been put
in place to protect the property
of the school. The Plaintiffs
thus have capacity to have
mounted the instant action. The
Court of Appeal decision on this
ground of appeal is thus
reversed and set aside.
We will next argue grounds (b)
and (d) of the appeal together.
WHETHER THE PLAINTIFF IS A
STRANGER TO THE SUIT NO.
SOL/21/2010 AND THE SCOPE OF THE
RULE IN LAMPTEY V HAMMOND
[1987-88] 1 GLR 327
What is on record as the date
when the plaintiffs herein were
duly notified about the
proceedings in Suit No.
SOL.21/2010?
There is no indication in the
entire appeal record that Judge
No. I who handled Suit No.
SOL.21/2010 ever used the
procedural powers at his
disposal to order the joinder of
the plaintiffs to the suit
therein.
There is similarly no indication
that the 1st
Defendant, and the 3rd
Defendant herein, therein
Plaintiff and Defendants in Suit
No. SOL.21/2010 also conceived
of the idea of joinder of the
plaintiffs herein to the said
Suit No. SOL.21/2010. This is
irrespective of the fact that
all the pleadings in the said
suit, referred to elsewhere in
this judgment supra, had given
clear irrevocable indications
that the Plaintiffs herein were
in possession and would thus be
adversely affected by any
decision arrived at in the said
suit.
In our opinion, any of the
parties could have applied to
have made the plaintiff herein a
Defendant to that suit i.e. Suit
No. SOL.21/2010 bearing in mind
the state of the pleadings.
The court could also have suo
motu ordered the Plaintiff
herein to be joined to the Suit
No. SOL.21/2010 bearing in mind
the state of the pleadings
therein contained and also in
satisfaction of the rule in
Denning M.R’s decision in
Gurtner v Circuit and Another
[1968] 2 QB 587
at 595 where he
stated thus:
“When two parties are in dispute
in an action at law and the
determination of the dispute
will directly affect a third
person in his legal rights
or in his pocket, in that he
will be bound to foot the bill,
then the court in its
discretion may allow him to be
added as a party on such terms
as it thinks fit. By so
doing, the court achieves the
object of the rule. It
enables all matters in dispute
to be effectually and completely
determined and adjudicated upon
between all those directly
concerned in the outcome.”
Emphasis
See Order
4 r. 3 (3) of the High Court
(Civil Procedure) Rules 2004, C.
I. 47.
The above principle has been
applied by our courts in several
cases such as
Sai
v Tsuru III [2010] SCGLR 762
where the Supreme Court endorsed
the test whether the joinder
will ensure that all matters in
dispute are completely
determined. The courts generally
have jurisdiction to join a
person whose presence is
necessary for the determination
of the issues in the dispute.
See Sam v Attorney-General
[2000] SCGLR 102.
Considering the state of the
pleadings from both the
plaintiff and defendant in Suit
No. SOL/21/2010, the court
should have exercised its
discretion to join the
plaintiffs herein if the parties
therein were not interested in
applying for a joinder. This
would have made all issues in
dispute to be determined once
and for all.
It is an undeniable fact that,
judgment was delivered by Judge
No. I in Suit No. SOL.21/2010 on
28th July 2011.
The Defendant therein did not
file any appeal. However, as
stated supra, the defendants
therein, through an Assistant
Legal Officer on the 4th
of March 2013 officially
notified the Plaintiffs herein
about the judgment that had been
obtained against them. Thus, it
was not until after one year,
seven months, that the
Plaintiffs herein were
officially notified.
The reason behind this is not
far to understand. This is
because, at that time, the
appeal process is no longer
statutorily available to the
Defendant therein or to the
Plaintiffs herein who could have
instigated the Defendants
therein to file an appeal.
Secondly, the plaintiffs herein
also engaged Solicitor who took
faulty steps like the filing of
the Notice of Claim which ended
in a disaster. Thereafter the
plaintiffs herein waited till
the 26th day of
January 2016 to file the instant
suit which has culminated in the
instant appeal.
What was the Plaintiff doing all
this time, one would ask?
In between the first judgment,
dated 28th July 2011
and the filing of the writ on 26th
January 2016, there were these
failed steps already referred to
supra:-
1.
Letter dated 4th
March 2013 informing plaintiffs
of the judgment dated 28th
July 2011.
2.
Notice of claim filed by
Plaintiffs on 17th
June 2014.
3.
30th July 2014,
Ruling by Judge No. 2 on an
application for Interlocutory
injunction pursuant to the
Notice of Claim which was
dismissed.
4.
Letters dated 7th
August 2014 and 25th
August 2014 respectively from
Lawyer Dr. Philip Anderson
purporting to be acting for 2nd
Defendants herein Platinum
Equities Ltd and with the
consent of the 1st
Defendants, herein inviting the
Plaintiffs to an out of court
settlement.
5.
On 24th March 2015
the 3rd Defendants
herein filed Writ No. SOL/53/15
already referred to supra
against the 1st
Defendants and 3rd
Defendants herein.
6.
On 6th July 2015
Judge No. 3 delivered a Ruling
pursuant to an application at
the behest of the 1st
Defendants herein in Suit No.
SOL.53/15, which dismissed the
said Writ in its entirety.
7.
It was after the above failed
attempts that, the plaintiffs
herein re-strategised and filed
Writ No. LD/0352/2016 on 26th
January 2016 which has led to
the present appeal.
In his erudite statement of
case, learned counsel for the
plaintiffs Ace-Ankomah submitted
in part as follows:-
“The investigations also showed
that, after procuring the
judgment through falsehood, the
1st Respondents”
(that is 1st
Defendant)” later perpetrated
fraud on that court to obtain an
order for repossession to enter
the school’s land. The
investigations showed that the 1st
Respondent succeeded in his
false and fraudulent claims in
Suit No. SOL/21/2010 because of
the role played, knowingly or
otherwise, by the 3rd
defendant/respondent.”
Emphasis
The particulars of this fraud
have been provided in paragraph
20, 19.1 – 19.3 of the Statement
of Claim filed by the plaintiffs
as follows:-
“Particulars of
Fraud
19.1 The 1st
Defendant knew, or ought to
have known, that the Achimota
school land, including the
172.68 acres claimed was vested
in the plaintiff by statute in
1948 for its intended use as a
school, and yet pleaded in
Suit No. 21/10 that the land
acquired by the colonial
government had not been used for
its intended purpose.
19.2 The 1st
Defendant knew that the 172.68
acres it purportedly claimed and
purportedly granted to the 2nd
Defendant formed part of the
conserved greenery areas of the
Achimota School land and not
occupied by any of its subjects
and yet pleaded in Suit No.
SOL/21/2010 that its subjects
have been in adverse possession
of same for over eighty (80)
years.
19.3 That the 1st
Defendant knew, or ought to have
known, that the 172.68 acres was
part of the land vested in and
owned by the plaintiff and
have been in the undisturbed
possession, occupation and use
by the Achimota School, and yet
issued his writ of summons and
statement of claim in Suit No.
SOL/21/2010 against the 3rd
defendants and without notice to
the plaintiff.” Emphasis
These particulars of fraud raise
very fundamental legal issues
such as whether having acquired
the lands in dispute
specifically for the Plaintiff
school under the Public Lands
Ordinance 1876, CAP 134, the
Lands Commission as
administrators of public lands
have any interest in the said
lands. The plaintiffs as the
beneficial users and owners were
those to be held responsible.
These were issues which could
have been raised in Suit No.
LD/0352/2016 but was truncated.
Another issue worth noting is
that, this time round, the 3rd
defendants herein, therein
Defendants, filed a Defence and
Counterclaim in Suit No.
LD/0352/2016 in the following
terms:-
1.
In further reply to the said
paragraphs, 3rd
Defendant states that the
subject parcel of land forms an
integral part of two larger
tracts of land acquired and
paid for by the State under the
Public
Lands Ordinance, 1876 (CAP 134)
as amended and in respect of
which two Certificates of Title
issued to the State have been
registered at the Deed Registry
as 869/1921 and No. 220/1927.
10. In further reply to
paragraph 13, 3rd
Defendant states that the only
reference by the 1st
Defendant to the said 172.68
acres was made on 21stApril
2011 when 1st
Defendant filed a supplementary
Legal Argument together with an
attached site plan indicating a
land size of 172.68 acres.
Counterclaim Against the 1st
Defendant
3rd Defendant repeats
the paragraphs above and
counterclaim as follows:
14. The 3rd Defendant
says that the 1st
Defendant knows that the Osu
Stool is not the pre-acquisition
owner of the 172.68 acres and
its Stool subjects were not in
possession of the 172.68 acres
yet made a fraudulent claim that
the Stool and Stool subjects had
long since been in adverse
possession of the land.
15. The 3rd Defendant
says that the 1st
Defendant knowing that it (1st
Defendant) had been denied
the relief of recovery of
possession in the judgment of 28th
July 2011, fraudulently procured
a writ of possession to recover
possession of the 172. 68 acres
it claimed to have been in
adverse possession of.
Particulars of Fraud
14A. The 1st
Defendant knew that compensation
for the Achimota School lands
was paid to the Oku We Family
and Owoo Family and not the Osu
Stool; and that the 172.68 acres
was virgin land (conserved
greenery area) yet it
deliberately misrepresented to
the court that the Stool and
Stool subjects had cultivated
the land and put up permanent
settlement and residence there.
15A. The 1st
Defendant knew that it had been
denied the order for recovery of
possession of the 172.68 acres
and yet subsequently filed an
application in the name of the
suit without notice to 3rd
Defendant, for an order for
recovery of possession of the
entire 172.68 acres against an
alleged trespasser who 1st
Defendant claimed had encroached
on only a portion of the 172.68
acres.
Wherefore the 3rd
Defendant counterclaims against
the 1st Defendant as
follows:-
a.
An order setting aside the
judgment, and all consequential
orders, entered in Suit No. SOL
21/2010 on the ground that
the said judgment and orders
were obtained by fraud
perpetrated on the Court by the
1st Defendant, or in
the alternative, an order
setting aside the Writ of
Possession granted to the 1st
Defendant on 24th
April, 2014 and any steps taken
on the strength of the said Writ
of Possession.
From all the above issues stated
supra, can it lawfully be
justified that the Plaintiff is
a stranger to Suit No.
SOL/21/2010? We think that in
all fairness, the Plaintiff
herein is a stranger for these
variety of reasoning and legal
deductions.
Learned Counsel for the 1st
Defendant herein, Bright Okyere
Adjekum in his response to these
grounds of appeal anchored his
submissions on the case of
Lamptey v Hammond [1987-88] 1
GLR 327 which was the
shield the Court of Appeal used
to render their decision without
examining the genesis of the
suit in general and the contents
of the reliefs claimed by the
Plaintiffs herein and the state
of the pleadings generally in
this Suit No. LD/0352/2016.
Even though Lamptey v
Hammond supra, might be
said to be some authority by
which a stranger who is
adversely affected by a judgment
of a court may have it set aside
by certain procedures, its
application to the facts of this
case is in doubt and clearly
inapplicable.
Learned counsel for the parties
also reiterated the two leg
principle of the rule in
Lamptey v Hammond supra
which permits a stranger to have
judgment which injuriously or
adversely affects him to move to
set it aside.
What are these principles?
1.
That the party needed to obtain
the leave of the defendant in
the suit to use his name and
then apply to the court in that
defendant’s name to have the
judgment set aside.
2.
If the party is unable to use
the name of the Defendant, then
he can take out a summons in his
own name but the summons should
be served on both the Plaintiff
and the defendant asking leave
of the court to set aside the
judgment and to be allowed to
defend the action on such terms
as indemnifying the defendant as
the judge might consider fit.
The facts in this case are
completely different from the
position envisaged in the
Lamptey v Hammond supra.
In the first place, it had
already been set out elsewhere
in this rendition that, the 3rd
Defendants had colluded with the
1st Defendant in the
conduct of Suit No. SOL.21/2010.
This found expression in the
wishy washy Defence filed by the
3rd Defendants herein
in the suit therein.
Their position in the general
conduct of the suit, in failing
to appeal against the said
judgment and refusing to notify
the plaintiffs herein timeously
to afford them a chance or an
opportunity to nullify the said
proceedings speaks volumes.
Secondly, from the pleadings
i.e. Defence filed by 3rd
defendants herein as well as the
counterclaim referred to supra,
it makes the collusion story
more plausible and probable. How
then can the plaintiff be
required to obtain the leave of
the Defendant to use their name
to correct the mess they had
deliberately committed?
Thirdly, it ought to have dawned
on our Junior brothers in the
Court of Appeal that, judging
from the reliefs endorsed by the
Plaintiffs herein in the instant
suit, which contains a relief of
fraud with the particulars
thereof given, there is
absolutely no need for the
plaintiffs to have saddled
themselves with the rule in
Lamptey v Hammond
supra.
An allegation of fraud if proven
will vitiate everything and it
is the acts of the parties
therein in Suit No. SOL.21/2010
that has given rise to this
fraud.
See case like
Dzotepe v Hahormene [1987-88] 2
GLR 681 which
reiterated the principle of law
that fraud vitiates everything.
Basing ourselves on this courts
decision in the case of
In
Re Poku (Decd); Appiah Poku and
Others v Nsafoa Poku and Others
[2011] 1 SCGLR 162
where the court unanimously
stated the principle thus:-
“The well established principle
of law was that fraud would
unveil everything and that a
judgment obtained by fraud could
be impeached by fresh action.
However, that general rule was
not a right conferred by the
common law free from all
encumbrances or obligations. One
such encumbrance, which was
relevant to the facts of the
instant case, was the necessity
to exercise diligence at the
first instance. Thus it was
clearly established that if a
party was actually or
constructively cognizant of
fraudulent matters in the first
action but failed to avail
himself of them at that time, he
could not thereafter seek to
impeach the judgment of the
court on those grounds.”
Emphasis
It bears emphasis that, the
plaintiff herein was absolutely
not aware of the pendency of
Suit No. SOL.21/2010 in court,
much more about the proceedings
and the subsequent delivery of
judgment. Indeed the time lapse
that expired before they were
notified justifies their
subsequent institution of the
Suit No. LD/0352/2016 in
which fraud had for the first
time been raised against the
perpetrators of that fraud.
Under these circumstances we
have no hesitation in allowing
grounds (b) and (d) thereof of
the grounds of appeal. As a
corollary, we hold and rule that
the plaintiff herein was a
stranger to Suit No. SOL.21/2010
and that a carefully designed
scheme was put in place to
prevent them from being aware of
the pendency and delivery of
judgment timeously. This was
done to prevent them from taking
any steps to nullify the said
judgment.
Secondly, the reliance of the
Court of Appeal on the rule in
Lamptey v Hammond
supra and its subsequent
application in In Re
Nungua Chieftaincy Affairs; Odai
Ayiku IV v Attorney-General
(Borketey Laweh XIV –Applicant)
2010 SCGLR 413 does not
apply under the special
circumstances of this case as
set out in this delivery
especially when fraud is alleged
and could have been proven.
GROUND C
WHETHER OR NOT THE PLAINTIFF
HEREIN IS A PRIVY OF THE LANDS
COMMISSION AND ATTORNEY-GENERAL
AND SHOULD BE BOUND BY THE
JUDGMENTS AND ORDERS IN SUIT NO.
SOL.21/2010
This brings us to the last
ground of appeal. We have
already quoted in extenso the
relevant portions of the Court
of Appeal judgment touching the
various grounds of appeal
In respect of this ground, it is
necessary to put in context for
the purposes of emphasis and
clarity how the Court of Appeal
concluded this matter of the
Plaintiffs being privy to the
previous impugned decisions of
the High Courts referred to
supra in Suit No. SOL.21/10 and
its related cases and also of
the instant suit as an abuse of
process.
This is what the appellate court
Judges summed it up all:-
“We also find that the subject
matter of this appeal has been
litigated upon in various courts
and decisions delivered are
still effective and operate as
res judicata against the
plaintiff. We also find that the
entire suit is an abuse of
the court process and should be
brought to an end.” Emphasis
It appears to us that the
appellate court did not consider
the circumstances under which
the judgment in Suit No.
SOL.21/2020 in particular was
obtained.
Learned counsel for the
plaintiffs, Ace Ankomah referred
to the unreported case of
K.O. Keteku v Nick Adi-Dako,
Suit No. BDC/10/07 dated
20/10/2015 where the
court defined abuse of process
as follows:-
“According to
Osborne’s
Law Dictionary, abuse of
process is defined as “ a
frivolous or vexatious action as
example setting up a case which
already had been decided on by a
competent court.”
Black’s Law dictionary also
defines abuse of process as
follows:-
“There is said to be an abuse
of process when an adversary
through the malicious and
unfounded use of some regular
legal proceedings obtains some
advantage over his opponent”.
Emphasis
Learned counsel then referred to
this courts decisions
in
Naos Holding Inc v Ghana
Commercial Bank Ltd.[2011] 1
SCGLR 492, and Sasu v Amua Sekyi
and Another [2003-2004] 742
in which the locus classicus on
this principle of abuse of
process was relied upon and this
is the case of
Henderson v Henderson (1843) 3
Hare 100.
Learned counsel also referred to
the statement of the principle
and that of res judicata in the
following cases,
Nyame v Kese a.k.a Konto
[1999-2000] 1 GLR 236-254
where Edward Wiredu JSC at
page 240 of the report stated
thus:-
“The principle of res judicata
is now a well established and
acceptable principle in judicial
proceedings. Its objective is
to prevent an abuse of the
court’s process by estopping a
party to a litigation against
whom a court of competent
jurisdiction has already
determined the issue now being
raised by reopening the same
subject matter
for further litigation. The
principle can also be raised
against privies of the original
parties. Emphasis
See also
Boni and Another v The
Republic [1971] 1 GLR 454,
where the court stated the
conditions that must exist for
the plea of res judicata to
succeed as the following:-
“The civil law doctrine of res
judicata can be relied upon when
the following conditions exist.
(1) there must be the same
parties, (2) suing in the same
capacity, and (3) the issue
before the court must be the
same as that alleged to have
been the subject matter of
adjudication in previous
proceedings.”
Emphasis
Based on the above submissions,
learned counsel submitted that
the Plaintiff herein is not a
privy of the 3rd
defendant or of the
Attorney-General.
ARGUMENTS BY LEARNED COUNSEL FOR
THE 1ST DEFENDANT
Learned counsel for the 1st
defendant, Bright Okyere-Adjekum
anchored his submissions on this
ground of appeal by reiterating
the fact that, the plaintiff,
3rd defendant and the
Attorney-General formed a
wonderful tag team in this
running litigation.
Based on the above observations,
learned counsel concluded that,
the Suit was rightly dismissed
by the Court of Appeal because
it was not only frivolous and
abuse of process but a classical
case of abuse of process and
frivolity.
Learned counsel referred to
cases like the following to
buttress his point.
1.
Naos Holding Inc v Ghana
Commercial Bank Ltd. supra
2.
Sasu v Amua Sekyi and Another
[2003-2004] 742 supra
3.
Henderson v Henderson, Supra
4.
Borrow v Bankside Agency Ltd,
[1996] 1 WLR 257
at 260
where the rule was re-stated for
purposes of clarity as follows:-
“The rule in Henderson v
Henderson… requires the
parties, when a matter becomes
the subject of litigation
between them in a court of
competent jurisdiction, to
bring their whole case before
the court so that all aspects of
it may be finally decided
(subject of course, to any
appeal) once and for all. In
the absence of special
circumstances, the parties
cannot return to the court to
advance arguments, claims or
defences which they could have
put forward for decision on the
first occasion but failed to
raise.
The rule is not based on the
doctrine of res judicata in a
narrow sense, or even on any
strict doctrine of issue or case
of action estoppel. It is a
rule of public policy based on
the desirability, in the general
as well as that of the parties
themselves that litigation
should not drag on forever and
that a defendant should not be
oppressed by successive suits
when one would do.” The above
statement of the principle of
abuse of process clearly then
underscores the essence of
preventing those who want to
make the litigation arena, i.e.
the law courts, a career from
embarking upon such a process as
it is contrary to public policy
and leads to loss of valuable
time and resources.” Emphasis
Learned counsel then referred to
the following cases where the
application of the above
principle was made manifest in
those decisions. These are
Osei-Ansong & Passion
International v Ghana Airport
Company [2013-2014] 1 SCGLR 25,
Ashmore v British Coal
Corporation [1990] 2 QB 338,
[1990] 2 ALL E.R. 981, Castro v
Murray (1875) 10 EX 213,
Stephenson v Garret [1898] 1
Q.B. 677, Yat Tung Investment
Co. Ltd v Dao Heng Bank Ltd.
[1975] AC 581.
Based on the above decisions,
learned counsel urged the court
to dismiss the appeal since it
is nothing but a classical abuse
of process and frivolity, and
that this court should not allow
the Plaintiff to make the court
an arena for it to pursue its
career of unbridled litigation.
ANALYSIS BY THIS COURT
It beats our imagination that
the findings of fact, so
eloquently made by the learned
trial Judge No. 4 in her Ruling
in Suit No. LD/0352/2016 has not
been given any serious attention
by the appellate court, despite
the fact that it contains
serious factual findings which
are germane to the issues raised
herein in this appeal. This is
what she found:-
“On the issue of whether the
action amounts to abuse of
process of court and whether is
vexatious and frivolous, the
court noticed that per Exhibit
NAN 1 (which is the Writ of
Summons, Statement of claim) and
Exhibit NAN3 (Which is the
judgment of my brother Justice
Anthony Oppong) the
Plaintiff/Respondent is the
occupier of the land acquired by
the government and administered
by the 3rd defendant
herein but vested in the
Plaintiff/Respondent. The
applicant should have joined the
occupier of the land in the
suit, but chose to refer to the
plaintiff as strangers.
Indeed, the presence of the
plaintiff on the land is so
obvious to escape notice. This
court will refuse to find or
presume that the plaintiff’s
action, which is an effort to
protect the land on which the
school is situate amounts to an
abuse of the judicial process or
that it is frivolous and
vexatious” Emphasis
We have already stated elsewhere
in this delivery that, the 1st
and 3rd Defendants
through acts of inadvertence or
collusion, failed, refused and
or neglected to bring Suit No.
SOL.21/2020 to the notice of the
Plaintiffs. To make matters
worse they refused to bring to
their attention the judgment of
28th July 2011 until
after the expiration of the
appeal period.
From our analysis flowing from
the above, it is quite apparent
that the parties in Suit No.
SOL.21/10 and Suit No. SOL/53/15
which were against the 3rd
Defendants in the former case,
and at the instance of the
Attorney-General in the latter
suit respectively cannot under
the circumstances of this case
be said to operate as res
judicata and or abuse of the
courts process by the plaintiffs
herein.
REASONS
In the first place, the parties
in Suit No.SOL.21/2010 were the
1st and the 3rd
Defendants herein, (therein
Plaintiff and Defendant), we
have already set out already in
extenso the antecedents of the
said suit where the 3rd
Defendants herein conducted the
case without any reference to
the Plaintiffs herein.
Secondly, it flows naturally
from the above that not being
the same parties, the Plaintiffs
could not have sued therein in
the same capacity, because they
were not parties in any of those
two previous suits.
Thirdly, since the plaintiffs
were neither parties nor
privies, to any of the above
suits, the issue of same subject
matter having already been
decided in those suits cannot
hold against them.
It stands to reason therefore
that, in ascertaining whether
the plaintiffs herein have been
caught by the operation of these
twin principles of abuse of
process and res judicata as
propounded in the cases referred
to supra by the 1st
Defendants herein, these
principles cannot operate
against the Plaintiffs because
they were systematically and
skillfully kept out of coverage
area during the proceedings in
those cases and beyond.
It must therefore be clearly
noted that, for these principles
to operate against a party, it
must be established without any
shadow of doubt that the party
against whom the principle is
invoked must have actively
engaged in the previous suits or
used persons who fronted for
them, the subject matter must be
the same and the capacity in
which they were sued or sued be
the same.
In the instant case however, the
1st Defendants
themselves chose their own
Defendants who as matters turned
out contested the suit against
them with kid gloves. Not having
satisfied the key ingredients
necessary for the establishment
of the principle of res judicata
and abuse of process, we have an
easy task, in upholding ground C
of the grounds of appeal and
hold and rule emphatically that
the Plaintiffs herein are not
privy of the 3rd
defendants and the
Attorney-General and are
therefore not bound by the
judgment and Orders/Rulings in
Suit No. SOL.21/2010 of 28th
July 2011 and Suit No. SOL/53/15
dated 6th July 2015
respectively.
CLOSING STATEMENTS
Our examination of the appeal
record herein has revealed two
key procedural irregularities
that we feel constrained to
comment on and sound a note of
caution to trial Judges not to
fall prey to such invitations
during the trial of cases before
them.
AMENDMENT OF PLEADINGS WITHOUT
LEAVE
The learned trial Judge No. 1,
who delivered judgment in Suit
No. SOL.21/2010 on 28th
July 2011 stated in part as
follows:-
“The Plaintiff in their
supplementary legal submissions
filed on 21st April
2011 attached a site plan of
land approximately 172.68 acres
as land they have been in
adverse possession of.
This was served on defendant.
Nevertheless, there was no
reaction. I therefore take it
that, defendants concedes that
plaintiff and its subjects have
been in adverse possession of
the land contained therein.”
Emphasis
What this means is that, after
legal arguments in the case,
(because that was the modus
operandi proposed by learned
Counsel for the Defendants)
and whilst the parties were
awaiting the delivery of
judgment, the Plaintiffs
introduced new evidence by their
supplementary submissions. It is
quite disingenuous to describe
the said process as a
supplementary legal submissions.
The said process is nothing more
than an amendment of the
plaintiffs endorsement and or
statement of claim.
In the first place, it must be
noted that, the 1st
defendants did not describe any
land in respect of which they
wanted an order for the recovery
of land which they claimed in
their endorsement in Suit No.
SOL.21/2010.
However, it was in paragraph 13,
of the Statement of Claim that
the 1st Defendants
herein, after recounting their
reliefs endorsed on the Writ of
Summons, attached a schedule of
land with descriptions therein,
containing an approximate area
of 338.61 acres or 137.03
hectares of land situate and
being at Achimota.
Thus it was the introduction of
the site plan, covering land
approximately 172.68 acres
during the supplementary legal
submissions that plaintiffs
effectively amended their writ
of summons by describing the
land which later formed the
basis of the judgment.
Order 16 r. 5 (1) of the High
Court (Civil Procedure) Rules
2004, (CI 47) provides thus:-
“Subject to order 4 rules 5 and
6 and to the following
provisions of this rule, the
court may at any stage of the
proceedings upon an application
by the plaintiff or any other
party grant leave to
(a)
the plaintiff to amend the
plaintiff’s writ, or
(b)
any party to amend the party’s
pleading on such terms as to
costs or otherwise as may be
just and in such manner as it
may direct.” Emphasis
Order 16 r 11 of the same C. I.
47 provides that, an application
for leave to amend a writ or
pleading shall be made on
NOTICE to all the other
parties in the action, and the
application shall specify
precisely the nature of the
amendment intended.
We notice however that, the 1st
defendants herein did not comply
with this time tested provisions
but nevertheless, the court
proceeded and went ahead to
grant the judgment based on a
process which was illegally
introduced into the case.
Writing in the authoritative
book on “Civil
Procedure, A Practical
Approach”,” the Black Book,”
S. Kwami Tetteh, on page 445
delivered himself thus:-
“Beyond the permitted
amendments, amendment of a
pleading or writ of summons may
be made only upon an application
that may be made at any stage of
the proceeding, such application
maybe granted upon terms as to
costs or otherwise as may be
just. The court has ample
discretion to grant leave in the
following circumstances even
after the expiry of the relevant
limitation period if it is just
to do so, to correct the name of
a party in order to rectify a
genuine mistake over the
identity of the intended
plaintiff or defendant, to
change the plaintiff’s capacity
to a new capacity that the
plaintiffs may have possessed or
acquired since the commencement
of the action, to introduce
fresh cause of action even after
the limitation period provided
that the new cause of action
arises substantially from facts
upon which a relief was
originally claimed in the writ.
An action initiated in the
name of an infant maybe amended
to introduce the next friend.”
Emphasis
See
Gregson v Channel Four
Television Corporation [2000]
All ER (D) 956, CA, Lartey v
Bannerman [1976] 2 GLR 461 CA
and Yeboa v Bofour [1971] 2 GLR,
199 C.A.
From the above, it bears
emphasis that, the 1st
Defendants could have succeeded
in their application for
amendment if they had properly
applied to amend their pleadings
as it is indeed required under
the rules of procedure referred
to supra. Not having done that,
the procedure adopted therein is
thus flawed as being grossly
procedurally irregular and thus
amounts to a nullity and could
have rendered the said judgment
void.
GRANT OF WRIT OF POSSESSION
WITHOUT NOTICE
Secondly, the same Judge No. 1,
on the 5th of
December 2012 after judgment had
been delivered in Suit No.
SOL.21/10 on 28th
July 2011, granted an
application for writ of
possession without serving the
Plaintiffs herein who were in
actual possession of the land
contrary to Rules of Court. See
Order 43 rules 3 (1) (2) and (3)
and also (13) of CI 47.
The combined effect of these
rules of court is that, leave
of the court for the writ of
possession shall not be granted
unless the court is satisfied
that all persons in actual
possession have received the
notice of the proceedings to
enable them apply for any relief
to which the person may be
entitled. See Order 43 r. 3 (3)
which provides thus:-
“The leave shall not be
granted unless it is shown
that every person in actual
possession of the whole or any
part of the immovable property
has received such notice of the
proceedings as appears to the
court sufficient to enable the
person apply to the court for
any relief to which the person
may be entitled.” Emphasis
The rationale behind the said
rule is not far to understand.
This is because, as happened in
this case, where the plaintiffs
who occupy the land in dispute
and operate a second cycle
institution which no doubt is a
national asset were neither
parties nor joined to the case,
were nonetheless unaware of the
proceedings and could only have
been informed about the pendency
if this rule had been complied
with.
S. Kwami Tetteh, writing on page
995 of his authoritative book on
Civil Procedure already referred
to supra on this subject, states
as follows:-
“A judgment order for possession
of immovable property may be
enforced by a writ of
possession, with the leave of
court except in a mortgage
action.”
Continuing further the learned
author writes:-
“However, leave would not be
granted unless it is established
that any person in possession of
the property has been notified
of the proceedings in order to
apply for relief.”
Emphasis
We have verified from the appeal
record and the court docket that
indeed the Plaintiffs herein who
were at all material times
visibly in possession have
contrary to the dictates of
Order 43 r. 3 (3) not been
notified.
What this also means is that the
procedure adopted therein is
irregular, procedurally flawed,
void and is thus a nullity. Thus
if Suit No. LD/0352/2016 had
been allowed to run its full
course, the execution of the
impugned decision in Suit No.
SOL.21/10 and its other
variables, will not stand the
test of time, as the execution
of the Writ of possession
therein amounts to a nullity and
subject to be declared as such.
CONCLUSION
With the analysis made supra,
the appeal by the plaintiffs
against the judgment of the
Court of Appeal, dated 2nd
November 2017 succeeds. The said
Court of Appeal judgment is
hereby set aside and or
reversed.
We accordingly direct that the
case be remitted to the High
Court, Accra for the Suit
No.LD/0352/2016 to proceed
pursuant to the Ruling of Judge
No. 4, dated, 20th
July 2016.
EPILOGUE
We commend (Judge No.4) for the
indepth analysis and erudite
ruling she delivered in this
case at the trial High Court. In
this respect, we reiterate our
quote at the commencement of the
judgment that, “he does well
who serves the common community
before his own interest.”
She has indeed done service to
her community.
Similarly, we re-emphasise the
fact that, “whoever does a
thing well, does much” but
the same cannot be said of those
who do otherwise.
Whilst thus commending the
Plaintiffs for their tenacity of
purpose, dogged determination
and perseverance, inspite of the
many setbacks and frustrations
suffered along the litigation
path, we condemn in no uncertain
terms the Solicitor who settled
the pleadings of the 1st
defendants and signed same on
page 33 of the appeal record in
Suit No. SOL.21/2010 without
indication of his name.
In this respect, we are of the
view that the plaintiffs must be
encouraged to petition first the
Lands Commission to investigate
the circumstances surrounding
the conduct of the case in Suit
No. SOL.21/2010.
This is with a view to ensure
that such an occurrence does not
happen again. Secondly,
depending upon the outcome of
such an enquiry, the Plaintiffs
may petition for appropriate
disciplinary sanctions.
We have found the suppression of
vital evidence by officials of
the 3rd Defendants
herein not only in this case but
also in unreported case,
Suit No.
CM.J8/131/2019 dated 28th
April, 2020, entitled
Ogyeadom Obranu Kwesi Atta VI v
Ghana Telecommunications Co.
Ltd. & Anor.,
where we had to deal with issues
of suppression of vital and
material evidence by officials
of the 3rd Defendants
which if available would have
put the evidence before the
court for adjudication.
In the instant case for
instance, if one compares the
defence filed by the 3rd
Defendants herein in Suit No.
SOL.21/2020 reference pages 32
to 33 of the appeal record, and
the Defence that was filed by
the same entity with the same
set of facts in Suit No.
LD/0352/2016 reference pages
213-215 of the appeal record,
the point being made here
becomes manifest.
This therefore calls for the
commendation of Carlis Appiah
Brako, Lawyer who settled the
pleadings in Suit No.
LD/0352/2016 for and on behalf
of the 3rd Defendants
and stated the facts correctly.
Let us end with this food for
thought.
“Falling down is
an accident,
Staying down is a
choice
Arise and never stay
down”
LEGEND
1.
Judge No.
1
- His Lordship Anthony
Oppong
2.
Judge No.
2
- His Lordship Herbert
Ocran
3.
Judge No.
3
- His Lordship Ato
Mills Graves
4.
Judge No.
4
- Her Ladyship
Elizabeth Ankumah
5.
Court of Appeal
(coram)
- Gyaesayor Presiding
JA
Dzamefe JA
Welbourne (Mrs) JA
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS)
(JUSTICE OF THE SUPREME COURT)
M. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
DISSENTING OPINION
PWAMANG, JSC:-
A lot has been said about the
greatness of the plaintiff in
the majority opinion delivered
by my most honourable and highly
respected brother, Dotse, JSC. I
had the opportunity to read it
in draft and I must say it is
well written and comprehensive
but on this occasion I am unable
to agree with some of the views
expressed in the judgment. I
will preface my dissenting
statement with a quotation from
the speech of Justice Holmes,
when he delivered the opinion of
the 5-4 minority in the United
States Supreme Court case of
Northern Securities Co. v United
States 193 US 177 (1904).
He said as follows at
page 400 of the report;
“Great cases, like hard cases,
make bad law. For great cases
are called great, not by reason
of their real importance in
shaping the law of the future,
but because of some accident of
immediate overwhelming interest
which appeals to the feelings
and distorts the judgment.”
The plaintiff pleads in its
statement of claim that in
February, 2013 it was informed
by the 3rd defendant
that judgment had been recovered
in the High Court, Accra on 28th
July, 2011 by the 1st
defendant in respect of land
that formed part of the reserved
land of Achimota School. The
proceedings culminating in the
judgment were not brought to the
notice of the plaintiff herein
whereas that ought to have been
done by either the plaintiff
therein (1st
defendant herein), or the 3rd
defendant or even the court.
According to the plaintiff, as
the judgment injuriously
affected its interest it took
several steps to have the
judgment set aside but was
unsuccessful hence this suit
which was filed on 21st
January, 2016. The plaintiff has
impeached the judgment of 28th
July, 2011 on several grounds
and it is averred that if the
judgment is executed land that
was reserved for future
development of the school and
presently serves as an
environmental buffer will be
lost to private developers.
I must state at the outset that
the
averments upon which the
judgment is impeached and the
handling of subsequent
proceedings that sought to annul
the judgment present a picture
of deliberate dereliction by
some personnel of the public
institutions that have been
involved in this case. But
the plaintiff has been met with
a defence that is pitched on
fundamental principles of law
the consideration of which can
easily be influenced by the
pressure on the court induced by
the circumstances of the case.
When the 1st
defendant was served with the
writ of summons herein, he filed
a motion for a summary dismissal
of the case on the grounds that
the matters plaintiff was
seeking to litigate had already
been canvassed in the earlier
attempts to set aside the
judgment of 28th
July, 2011 and pronounced upon
by courts of competent
jurisdiction so it is abuse of
process to seek to relitigate
them. He also challenged the
capacity of the plaintiff which
he said is not a juristic
person. The trial court
dismissed the motion but on an
appeal the Court of Appeal
upheld the arguments of law
canvassed by of the 1st
defendant and summarily
dismissed that suit. The
plaintiff has appealed against
the judgment of the Court of
Appeal and has contended that
their Lordships of Appeal erred
in their judgment. The appeal
raises for our consideration
three principal legal
principles, namely; the locus
standing of a non-party to bring
an action to set aside a
judgment that affects her, the
application of the doctrine of
res judicata, and the capacity
to embark on proceedings in
court.
There are no contentious facts
in this appeal and the
background of the case has been
set out in extenso in the
judgment for the majority so I
will only relate in brief the
facts relevant for an
understanding of my statement.
In 1948 the colonial government
by the Achimota School
Ordinance, 1948 (CAP 114)
established Achimota School, as
an independent educational
institution. The ordinance
provided for a governing council
to control the affairs of the
school and gave it authority to
sue and be sued in matters
concerning the school. The
ordinance vested certain public
lands that had been compulsorily
acquired in the governing
council of Achimota School.
These lands can be classified
into two categories; the land
the school effectively occupies
and had structures built on it
including staff and workers
accommodation, a hospital and a
club house, and then the land
acquired for future expansion of
the school. In 1961 CAP 114 was
repelled by the Education
Act, Act 87 . Act 87 has
since been replaced by the
Education Act, 2008, Act 778.
That is the subsisting
legislation on education in
Ghana and governs matters
relating to public basic and
second cycle schools of which
Achimota School is one.
This case is about the reserved
land which provides a green
cover in the environs of the
school. In 2010 the 1st
defendant/appellant/respondent
(1st defendant)
brought an action in the Land
Division of the High Court,
Accra against the Lands
Commission claiming that he
represented the original owners
from whom the land was acquired
by the colonial government. He
contended that the land had not
been used for the purpose for
which it was acquired and that
the original owners had taken
adverse possession of the land
for several years back without
any challenge by the Lands
Commission. He therefore prayed
the court to grant a perpetual
injunction against the Lands
Commission and their privies and
to order that he recovers
possession of the land. In their
statement of defence the Lands
Commission admitted some of the
averments of the plaintiff but
effectively denied others. That
notwithstanding, the lawyer of
Lands Commission stated in his
defence that the case could be
determined by legal argument and
this is the mode of trial that
was adopted by the judge. Upon
hearing the arguments the High
Court presided over by Anthony
Oppong J (as he then was), held
that since the 1st
defendant was in adverse
possession for about eighty
years, he was entitled to his
reliefs. In the judgment (to be
referred to as the Anthony
Oppong J’s judgment) the judge
granted the perpetual injunction
and an order for possession.
On becoming aware of the
judgment the school did not act
immediately until 1st
defendant attempted to execute a
writ of possession then the
plaintiff filed a notice of
claim on 17th June,
2014 pursuant to Or 44 R12 of
the High Court (Civil
Procedure) Rules, 2004 (C.I.47).
The plaintiff followed it up
with a motion for interlocutory
injunction against the 1st
defendant pending the
determination of their claim.
This application was heard and
dismissed by S. H. Ocran J on 30th
July, 2014. After the dismissal
of the application for
interlocutory injunction the
plaintiff made no effort to
ensure that the steps required
under Or 44 R 12 for the
prosecution of the claim were
taken. In its affidavit in
opposition to the motion to
dismiss this case in the High
Court deposed to by Ruth
Essilfie-Ntreh (Mrs) of
Bentsi-Enchill, Letsa & Ankomah,
it is stated as follows at
paragraph 8;
“That though the plaintiff filed
a “NOTICE OF CLAIM” in Suit No.
SOL/21/10, it abandoned same
after it received advice that
the proper procedure to assert
its title to the land in dispute
and the serious allegations of
fraud against the 1st
defendant is by commencing the
instant action.”
Before commencing the instant
action one and half years later,
the Attorney-General issued a
writ of summons against the 1st
defendant and the lands
Commission praying for
declaration that the first
judgment was not binding on her,
a declaration that the said
judgment is null, void and of no
effect and an order setting
aside the judgment as having
been obtained by fraud. In her
statement of claim the
Attorney-General contended that
the land in dispute is the
property of the Government of
Ghana that was given to Achimota
School. She stated that by
Article 88 of the Constitution,
1992, the first case ought to
have been brought against her
and not the Lands Commission.
The 1st defendant after entering
appearance moved the High Court
pursuant to Or 11 R 18(1)(d) of
C.I.47 to dismiss the case. The
1st defendant deposed
that the Lands Commission by the
provisions of the Constitution
and the Lands Commission Act is
a proper party to be sued in
relation to government lands and
Attorney-General is not the only
person that may be sued. He said
the matters that were raised by
the Attorney-General ought to
have been raised in the first
case and since the Lands
Commission has lawyers, those
matters cannot be raised at this
late time. The Attorney-General
in an affidavit in opposition
maintained that she alone could
be sued and that if the Lands
Commission is considered an
agent of the Attorney-General
then where a principal is
disclosed, you do not sue the
agent.
In his ruling dated 6th
April, 2015 George Atto
Mills-Graves, J held that the
Lands Commission was a competent
defendant to the action and the
Attorney-General is bound by the
first judgment. He then held
that the suit was an abuse of
the process of the court as the
Attorney-General was seeking to
relitigate a matter that has
previously been determined on
the merits by a court of
competent jurisdiction. He
relied on the case of NAOS
Holding Inc v Ghana Commercial
Bank [2011] 1 SCGLR 489. The
Attorney-General did not appeal
against this ruling.
Thereafter, on 2nd
November, 2015 the Lands
Commission filed a motion in the
original suit praying the judge
who delivered that judgment to
set aside the judgment under his
inherent jurisdiction arguing
that the judgment is null and
void. The judge on 10th
June, 2016 dismissed the
application on the ground that
the defendant did not raise any
matter that denied the court
jurisdiction as would have
rendered the judgment void.
It was after all these efforts
failed that the plaintiff caused
to be issued the writ of summons
herein against the defendants
praying for a declaration of
title to the land covered by the
Anthony Oppong J judgment, an
order setting aside the said
judgment on the ground that it
was obtained by fraud. It also
claimed for recovery of
possession and injunction. The
main contention of the plaintiff
is that the land in respect of
which the first judgment was
given is vested in the plaintiff
by virtue of section 29 of
CAP 114 so the judgment
recovered against the Lands
Commission is not binding on it.
As to particulars of fraud in
obtaining the judgment the
plaintiff has pleaded that 1st
defendant ought to have known
that the land was acquired for
Achimota School yet he claimed
in the suit that the land had
not been used for the purpose of
its acquisition. It also averred
that the 1st
defendant was not in possession
of the land at the time he
claimed so in his statement of
claim.
I intend to consider all the
grounds of the appeal under the
three main legal grounds I set
out supra but I will defer
discussion of the question of
the capacity of the plaintiff
and tackle the other two
grounds. But before that let me
quickly dismiss the preliminary
objection by the 1st
defendant in which he claims
that this appeal ought to have
brought upon leave. The decision
appealed against dismissed the
whole action so the appeal is as
of right.
In their judgment the Court of
Appeal stated that as the
plaintiff is a stranger to the
first case, it could only seek
to set aside that judgment if it
adopted one of the two modes
stated in the Court of Appeal
case of Lamptey v Hammond
[1987-88] 1 GLR 327. They
held that the plaintiff did not
comply with either mode so it
was not entitled to a hearing
on the merits. This has led the
plaintiff to state as follows in
ground IV of its grounds of
appeal;
“That the Court of Appeal erred
in holding that the rule in
Lamptey v Hammond [1987-88] 1
GLR 327, relating to the remedy
for a non-party affected by a
judgment…precludes the
appellant(sic) issuing the writ
of summons and statement of
claim herein to challenge the
judgment and orders procured by
fraud.”
In its statement of case the
plaintiff submits that it has
complied with the second mode
stated in Lamptey v Hammond but
the 1st defendant
maintains that it has not.
Though it is now common place in
our jurisprudence to cite the
procedure as the rule in Lamptey
v Hammond, the procedure in
question was first applied in
our jurisdiction in the case of
Gbago v. Owusu [1972] 2
G.L.R. 252. It is a High
Court decision by Abban J (as he
then was) who incidentally
authored the opinion in Lamptey
v Hammond at the time he was on
the Court of Appeal bench. It
is therefore appropriate to
begin the discussion of this
ground with the first decision.
The facts of the case are as
follows. The applicant was an
Ivorian national resident in
Ghana and was sued by the
plaintiff over a piece of land.
He caused his lawyer to enter
appearance for him but before he
could take any further step in
the case he was compelled to
leave the country on account of
the Aliens Compliance Order of
1969. Subsequently, the
plaintiff got to know that
before leaving, the applicant
sold the land to the defendant
so she got him substituted for
the original defendant.
Processes in the case were
served on the new defendant by
substituted service but he did
not enter appearance so
plaintiff applied and was
granted judgment in default of
appearance for title, damages
and possession. When the
applicant was informed of the
judgment he returned to the
country and filed a motion to
have the default judgment set
aside. Upon service of the
motion on the plaintiff his
Counsel raised a preliminary
objection to the application on
the ground that he was a
stranger in the case.
At page 253 of his short ruling,
Abban J said as follows;
“The applicant's main ground is
that it was he who sold the land
in dispute to the defendant, and
that as a vendor he was bound to
defend the title of the
defendant; and the judgment, if
allowed to stand, would
eventually affect him
adversely. Counsel for the
plaintiff has raised a
preliminary objection to the
application. The basis of his
said objection is that the
applicant was not a party to the
judgment and cannot therefore
apply to have it set aside.
I think the applicant cannot be
said to be a party to the
judgment in question.
Admittedly, he was the original
defendant. But the defendant
was regularly and properly
substituted in his place, after
it had become clear that the
applicant had sold his interest
in the land and left the country
for good. The applicant admits
that he completely disposed of
whatever interest he (the
applicant) had in the land to
the defendant before leaving
Ghana in pursuance of the said
Aliens Compliance Order.
To my mind, at the time judgment
was entered, the applicant had
no interest whatsoever in the
land in dispute, and I do not
see how his interest is
adversely affected. He is a
stranger to the judgment and he
has not and cannot acquire a
locus standi in this matter.
It is well established that
there are only two methods
whereby a stranger to a judgment
who is adversely or injuriously
affected can set it aside. That
is, he can obtain the
defendant's leave to use the
defendant's name and then apply
in the defendant's said name to
have the judgment set aside. Or
where he cannot use the name of
the defendant, he can take out a
summons in his own name to be
served on both the plaintiff and
the defendant, asking to have
the judgment set aside and for
him to intervene. See
Jacques v. Harrison (1883) 12
Q.B.D. 136.”
It is important to note that the
application was to set aside
judgment in default of
appearance which the rules of
court permitted. Therefore, the
question that confronted the
court was not the jurisdiction
to set aside the default
judgment, but it was whether a
non-party has locus standing to
make the application. This
distinction is important because
in some of the cases that this
procedure has come up the two
issues are mixed together.
Further, the court took into
account the fact that the
applicant had divested his
interest in the land and
therefore had no interest to
protect in the case. This fact
weakened the locus standing of
the applicant.
In Lamptey v Hammond the
court dealt with an application
to set aside a judgment obtained
by default of the defendant to
attend the trial. Pleadings in
the case closed, summons for
direction was taken and hearing
notice served on the defendant.
The court proceeded with the
trial in the absence of the
defendant pursuant to Order 36 R
16 of the High Court (Civil
Procedure) Rules, 1954 (LN
140A). The case concerned a
family house that had been sold
to defray the personal debt of
an administratrix of the estate
of the original owner. The
plaintiff as head of the family
sued the purchaser to recover
the house and judgment was given
in his favour after the
defendant failed to attend the
trial. The defendant died after
the judgment. Two years later,
the applicant who claimed to
have bought the house from the
defendant while the case was
pending obtained the consent of
the successor of the defendant
to apply to set aside the
default judgment and to defend
the case. At the hearing of the
application the plaintiff’s
lawyer challenged the procedure
by which the applicant, a
stranger, sought to have the
judgment set aside relying on
Jacques v Harrison (supra).
The High Court held that the
applicant by obtaining the
consent of the successor of the
defendant made an effort to
bring himself within the first
mode in Jacques v Harrison so in
order to avoid a failure of
justice he would mould the order
so as to grant standing to the
applicant. He then proceeded to
set aside the default judgment.
As authority he quoted the
English Court of Appeal case of
Minet
v. Johnson (1890) 63 L.T. 507.
The plaintiff appealed to the
Court of Appeal.
Abban JA, (with Wuaku and Ampiah
JJA concurring), repeated what
he said in Gbago V Owusu
concerning the two alternative
modes by which a stranger who is
injuriously or adversely
affected by a judgment may
acquire standing to apply to set
it aside.
At page 508 of the report Abban
JA after refering Or 38 R 18
(dealing with setting aside
judgment in default of defendant
at the trial) said as follows;
“It seems to me that the person
who can apply to set aside the
judgment under Order 36, r. 18
of L.N. 140A is the defendant or
any other third person who is
adversely or injuriously
affected by the judgment,
provided he adopts one of the
two modes outlined earlier on in
this judgment, so as to acquire
locus standi. Only those who
have or can acquire locus standi
can bring the application; and
the provisions do not give a
locus standi to a person who has
none.”
The Court of Appeal
distinguished Jacques v
Harrison and Minet v
Johnson by saying that in
those cases, there was a
defendant in existence from whom
the applicant could obtain
permission or who could be
served with the application of
the stranger but in the case at
bar the defendant had died and
there had been no substitution.
They accordingly held that the
applicant did not properly
acquire locus standing to apply
to set aside the default
judgment. But the Court of
Appeal allowed the appeal on the
main ground that the applicant
did not have any defence on the
merits as the sale of family
property to satisfy the personal
debt of an administratrix was
void and conferred no title in
the purchaser. The court said no
useful purpose would be served
by setting the judgment aside.
My Lords, here too it is
important to observe that
Lamptey V Hammond was also a
case of an application to set
aside a default judgment
permitted by the rules of court
and the issue was the locus
standing of a non-party to so
apply. That notwithstanding,
Abban JA, as he did in Gbago v
Owusu, in stating the rule did
not qualify it as applying only
in applications to set aside
default judgment. It is
therefore necessary to trace the
rule to its origins in English
law from where it was adopted
to ascertain whether it applies
to final judgments as well or it
is only applicable to default
judgments. The case that Justice
Abban relied on is Jacques v
Harrison and, in fact, it is
that case that first laid down
the rule for the English courts
too.
I will set out at length the
facts as contained in the law
report. The action was brought
by the plaintiff against the
defendant for the recovery of
land for forfeiture by breach of
covenants in a building lease
which had been granted to the
defendant. The lease had been
deposited by the defendant with
a housing society, who advanced
a large sum of money on the
security of the lease. At the
time the defendant was sued he
had no interest in the matter so
he allowed judgment to go
against him by default. A writ
of possession was issue under
which the plaintiff took
possession. The society, who
were the equitable mortgagees of
the lease, went into liquidation
before the plaintiff's action
was brought, and the official
liquidator got know of the case
when the plaintiff took
possession. The liquidator
caused proceedings to be taken
in the Chancery Division to set
aside the forfeiture, on the
ground that no proper notice
under the
Conveyancing Act, 1881 (44 & 45
Vict. c. 41), s. 14, had
been given by the plaintiff
before the action was brought.
Bacon, V-C., before whom the
matter came, considered that the
judgment ought to be set aside,
as the want of notice as
required by the Conveyancing Act
was a defence to the action.
However, under the Judicature
Act, the case was not cognizable
in the Chancery Division so he
directed that the application
for that purpose should be made
to the Queen's Bench Division.
An application by summons was
accordingly made to Field, J.,
at chambers, for an order to set
aside the judgment; but such
summons was taken out by the
official liquidator in his own
name without making the
defendant a party to it, and
therefore Field, J., dismissed
the application as it was made
by a stranger to the action. The
Queen's Bench Division reversed
this decision, and set aside the
judgment on the ground that they
had power to do so under Order
27, rule 15(1), as that rule
gave the official liquidator a
locus standi. The
plaintiff appealed.
Order 27 r 15(1) provided as
follows;
“Any judgment by default,
whether under this order or
under any other of these rules,
may be set aside by the Court or
a judge upon such terms as to
costs or otherwise as such Court
or judge may think fit.”
Bowen LJ who delivered the
opinion of the court said as
follows at pages 167-168;
“There are, so far as we can
see, only two modes open by
which a stranger to an action,
who is injuriously affected
through any judgment suffered
by a defendant by default,
can set that judgment aside;
(emphasis supplied) and these
two modes are amply sufficient
to protect any such stranger in
all cases in all his rights. He
may, in the first place, obtain
the defendant's leave to use the
defendant's name, if the
defendant has not already bound
himself to allow such use of his
name to be made; and he may
thereupon, in the defendant's
name, apply to have the judgment
set aside on such terms as the
judge may think reasonable or
just. Or he may, if he is not
entitled without further
proceedings to use the
defendant's name, take out a
summons in his own name at
chambers to be served on both
the defendant and plaintiff,
asking leave to have the
judgment set aside, and to be at
liberty either to defend the
action for the defendant on such
terms of indemnifying the
defendant as the judge may
consider right, or, at all
events, to be at liberty to
intervene in the action in the
manner pointed out by the
Judicature Act, 1873, s. 24,
subs. 5.”
As to whether Order 27 rule
15(1) gave standing to a
stranger to the case he said as
follows at page 169-170;
“The Divisional Court decided in
his favour, reversing the
judgment of Field, J., on the
ground that Order XXVII., r. 15,
gave the respondent a locus
standi. Strictly speaking we
should have been disposed to
think that this decision was
incorrect as a matter of
practice and a misconception of
the effect of the rule, which
was not designed to give a locus
standi to persons who had none,
but to enable judgments by
default to be set aside on terms
by those who had or who could
acquire a locus standi.”
So, the English Court of Appeal
was explicit in stating that the
procedure it laid down by which
a stranger could acquire
standing applied only
specifically for setting aside
judgment suffered by the
defendant’s default.
Locus standing or simply
standing, is one of the core
principles on which the common
law operates. The jurisdiction
of the court at common law is
only to be invoked by persons
who have interest in the subject
matter in respect of which they
seek relief. This is so because
the courts do not try
hypothetical cases but only
actual controversies or
disputes. The policy
consideration is to make maximum
use of the resources of the
court by dealing only with life
issues. See
Ware v
Regent’s Canal Co (1858) 3 De G
& J 212. The requirement
of standing goes for the
plaintiff as well as the
defendant. A defendant must be
shown to be an actual and true
antagonist to a claim hence the
power of a court to discharge a
person who has been made a
defendant who would not be
directly affected by the outcome
of the case. See
Morkor
v Kuma [1998-99] SCGLR 620.
Locus standing is hardly an
issue in private law cases since
the interest of a party is
usually evident from a right to
property or personal legal
status that is in contention.
Consequently, it is my view that
we tend to give too much
importance to the issue of
standing in cases like the one
at bar where the claim of
ownership to the land in issue
is clear from the pleadings. In
some jurisdictions such as the
United States of America it is a
big issue in public law cases
but in Ghana we have virtually
done away with requirement for
locus standing in constitutional
and judicial review cases. See
Article 2(1) of the
Constitution, 1992 and
In Re
Appenteng (Decd); Republic v
High Court, Accra, Ex parte
Appenteng [2005-2006] SCGLR 18.
At times locus standing is
confused with capacity but they
are of different juridical
backgrounds though the
underlying policy reasons are
the same. Capacity relates to
the legal personality of a party
to proceedings and becomes an
issue when a party is proceeding
not for her personal benefit but
under a stated legal or
representative capacity. In such
situations the law insists that
the person must prove that
capacity.
The omission by Justice Abban in
the two judgments to state that
the rule is only applicable to
default judgments has led to
attempts to invoke it in cases
where a stranger seeks to set
aside a final judgments given on
the merits after a trial such as
we are confronted with in this
case. But it does not appear to
me that Justice Abban ever
understood himself as laying
down for our jurisdiction a
general rule applicable in cases
of final judgment. My opinion is
informed by the fact that in
both cases the Judge made it a
point to add the other part of
the original statement of the
rule which states that the
purpose of setting aside the
judgment was to enable the
applicant to defend the action,
either in the name of the
defendant on terms of
indemnifying the defendant, or
in her own name. If it was
contemplated that the rule was
to cover final judgment obtained
after a trial on the merits,
what defence would the original
defendant be entitled to assert
after a trial on the merits as
in the instant case? In
Ansah-Addo & Ors v. Addo & Anor
AND Ansah-Addo & Ors v Asante
(Consolidated) [1972] 2 GLR 400
at page 406 Apaloo, JA
said as follows;
“With great respect to the
learned judge, I think he
disposed of the serious issue of
estoppel per rem judicatam in
too cavalier a manner. The
judgment of 1959, was a judgment
inter parties and the elementary
rule which governs the
applicability of that plea, is
that it estops the parties to
the proceeding in which it is
given and their privies.”
Secondly, because the cases on
the rule say the stranger may
take out a summons in the
stranger’s own name and serve
the plaintiff as well as the
defendant, this has been
considered to be referring to a
writ of summons. The plaintiff
in its statement of case submits
that it took out a summons,
referring to the writ of
summons, and served the
plaintiff and the defendant. But
the summons mentioned in the
authorities is application by
summons as opposed to
application by motion. In the
judgment, especially in Lamptey
v Hammond, Justice Abban made
mention of “application” more
than once and that cannot mean
application by writ of summons.
For example, at page 334 Abban
JA adopted the following passage
from Bowen L J’s judgment in
Jacques v Harrison;
‘Bower L.J. at 168 of the report
said:
"But it is of the essence of the
intervention of the third
person, if he adopts the latter
course, that the defendant
should be made a party to the
application. This is not a
mere form, but an essential
requirement of justice . . .
Until the applicant has made the
defendant a party to the
application by service upon him
of the summons, the applicant
remains a mere stranger to the
action." (emphasis supplied).
No practice or procedure for an
application to be made by writ
of summons ever existed in
England when the rule was laid
down in Jacques v Harrison or in
Ghana when Gbago v Owusu and
Lamptey v Hammond were decided.
The procedure that existed was
that applications were to be
made either by motion or by
summons as was provided for in
the High Court (Civil Procedure)
Rules, 1954 (LN 140A).
From the law report the case of
Jacques v Harrison went before
Field J on application by
summons and that procedure was
approved by the Court of Appeal
with the only addition that the
application ought to have been
served on the defendant. In
England the procedure has been
applied only in cases of default
judgments. See
Minet
v Johnson, Brighton and Shoreham
Building Society v Hollindale &
Ano [1965] 1 WLR 376 and Mohamed
v Abdelmamoud [2018] EWCA Civ.
879.There is no wonder
that in all the cases in our
jurisdiction I have come across
that an attempt was made to
apply the rule in proceedings
commenced by writ of summons
seeking to set aside final
judgments obtained on the
merits, the courts concluded
that the rule had not been
complied with. The basic reason
is that the rule was never for
application in cases of final
judgment in the first place.
In sum, in my understanding, the
rule in Lamptey v Hammond
applies only in an application
whereby a stranger who is
adversely affected by a default
judgment seeks to have it set
aside. It does not apply where a
final judgment has been
recovered on the merits. The
English Civil Procedure Rules,
1998 now contain a statutory
provision that accords locus
standing to a non-party to apply
to set aside a judgment so a
stranger no longer has to appeal
to Jacques v Harrison
(same as Lamptey v Hammond) to
gain standing. Order 40.9 is as
follows;
“A person who is not a party but
who is directly affected by a
judgment may apply to have it
set aside or varied.”
This rule was applied in the
recent case of Mohamed v
Abdelmamoud (supra) where a
non-party sought to set aside a
default judgment. Meanwhile,
twenty-two years on we are still
relying on a decisions deriving
their authority from 19th
Century England. The substance
of the doctrine of locus
standing is to accord hearing to
only those who are directly
affected by the subject matter
of a dispute so at the next
occasion our rules should make a
provision for it.
See the case of
Nai
Out Tetteh v Opanyin Kwadwo
Ababio [2019] GTLR 78. SC.
In any proceedings by a stranger
to set aside a final judgment,
as we have in this case, before
addressing the locus standing of
the applicant, the court ought
to ask itself under what
jurisdiction it is called upon
to set aside the final judgment.
Jurisdiction to set aside a
final judgment is clearly
provided for by statute and long
standing principles of the
common law. Final judgment of a
court may be set aside by way of
an appeal, certiorari, or fresh
action alleging voidness, fraud
or collusion. See Punjabi
Brothers v Namih [1962] 2GLR 48,
Arnold
v National Westminster Bank plc
[1991] 2 AC 93 and Osei-Ampong v
Ghana Airports Co. Ltd.
[2013-2014] 1 SCGLR 25
In this case the plaintiff by
its relief (b) is seeking to set
aside the first judgment on
grounds of fraud and it is
entitled to have that claim
investigated on the standard for
proving fraud. The decided cases
are to the effect that a final
judgment obtained by fraud may
be set aside through a fresh
action. It therefore
appears to me that plaintiff
cannot be faulted on the
procedure it adopted in this
case. For the above reasons, I
allow the appeal on Ground IV.
I will next consider the
question of res judicata covered
under ground III of the grounds
of appeal which is;
“The Court of Appeal fell into
grave error in holding that the
appellant is a privy of the
Lands Commission and the
Attorney-General and is bound by
the judgment and orders in Suit
No SOL 21/10 (titled; Nii Ako
Nortey II v Lands Commission)
and Suit No. SOL 53/15 (titled;
Attorney-General v Nii Arko
Nortei and Lands Commission).”
This ground impeaches the
following holding of the Court
of Appeal at page 12 of their
judgment; “We also find that
the subject matter of this
appeal has been litigated upon
in various courts and decisions
delivered are still effective
and operate as res judicata
against the plaintiff. We also
find that the entire suit is an
abuse of the court process and
should be brought to an end.”
The doctrine of estoppel per res
judicata is a generic term that
covers different juridical
situations and has a narrow and
wide meaning. In the narrow
sense it entails two concepts,
cause of action estoppel and
issue estoppel. In the wider
sense the doctrine is referred
to as the rule in Henderson v
Henderson. Various common
law jurisdictions have their
peculiar formulations of the
estoppels that are comprised in
the doctrine of res judicata but
they are all in agreement on the
twin policy rationale for the
doctrine; it is in the public
interest that there must be an
end to litigation and a party to
proceedings should not be twice
vexed where one action would do.
In Nyame v Kese Alias Konto
[1999-2000] 1 GLR 236 at
page 241 Acquaah JSC (as he then
was) said as follows;
“The plea of res judicata really
encompasses three types of
estoppel: cause of action
estoppel, issue estoppel in the
strict sense, and issue estoppel
in the wider sense. In summary,
cause of action estoppel should
properly be confined to cases
where the cause of action and
the parties (or their privies)
are the same in both current and
previous proceedings. In
contrast, issue estoppel arises
where such a defence is not
available because the causes of
action are not the same in both
proceedings. Instead, it
operates where issues, whether
factual or legal, have either
already been determined in
previous proceedings between the
parties (issue estoppel in the
strict sense) or where issues
should have been litigated in
previous proceedings but, owing
to "negligence, inadvertence, or
even accident", they were not
brought before the court (issue
estoppel in the wider sense)
otherwise known as the principle
in Henderson v Henderson (1843)
3 Hare 100. See also Andani v
Abudulai [1981] GLR 866, CA.”
A reformulation of the doctrine
of res judicata in English law
is found in the case of
Virgin
Atlantic Airways Limited
(Respondent) v Zodiac Seats UK
Limited [2013] UKSC 46
where Lord Sumption at paragraph
17 of the judgment of the House
of Lords explained as follows;
“Res judicata is a portmanteau
term which is used to describe a
number of different legal
principles with different
juridical origins. As with other
such expressions, the label
tends to distract attention from
the contents of the bottle. The
first principle is that once a
cause of action has been held to
exist or not to exist, that
outcome may not be challenged by
either party in subsequent
proceedings. This is “cause of
action estoppel”. It is properly
described as a form of estoppel
precluding a party from
challenging the same cause of
action in subsequent
proceedings. Secondly, there is
the principle, which is not
easily described as a species of
estoppel, that where the
claimant succeeded in the first
action and does not challenge
the outcome, he may not bring a
second action on the same cause
of action, for example to
recover further damages: see
Conquer v
Boot [1928] 2 KB 336. Third,
there is the doctrine of merger,
which treats a cause of action
as extinguished once judgment
has been given upon it, and the
claimant’s sole right as being a
right upon the judgment.
Although this produces the same
effect as the second principle,
it is in reality a substantive
rule about the legal effect of
an English judgment, which is
regarded as “of a higher nature”
and therefore as superseding the
underlying cause of action: see
King v
Hoare (1844) 13 M & W 494, 504
(Parke B)…… Fourth, there is
the principle that even where
the cause of action is not the
same in the later action as it
was in the earlier one, some
issue which is necessarily
common to both was decided on
the earlier occasion and is
binding on the parties:
Duchess of Kingston’s Case
(1776) 20 St Tr 355. “Issue
estoppel”
was the expression devised to
describe this principle by
Higgins J in
Hoysted v
Federal Commissioner of Taxation
(1921) 29 CLR 537, 561 and
adopted by Diplock LJ in
Thoday v
Thoday [1964] P 181,
197-198. Fifth, there is the
principle first formulated by
Wigram V-C in Henderson v
Henderson (1843) 3 Hare 100,
115, which precludes a party
from raising in subsequent
proceedings matters which were
not, but could and should have
been raised in the earlier ones.
Finally, there is the more
general procedural rule against
abusive proceedings, which may
be regarded as the policy
underlying all of the above
principles with the possible
exception of the doctrine of
merger.”
The distinction among the
different forms of res judicata
is critical to a deeper
understanding of the operation
of the doctrine and the
exceptions to the general
principles. Cause of action and
issue estoppels cover what was
actually decided upon in the
previous proceedings and do not
prevent a party in subsequent
proceedings between the same
parties or their privies from
raising a cause of action or an
issue that was not decided. So
though two parties may have in
previous proceedings litigated
on a subject matter which is
involved in subsequent
litigation between them, the
cause of action in the
subsequent litigation may be
different. That would mean that
the new cause of action was not
decided upon because it did not
come up at all. This may also be
the case in respect of an issue
relevant to the earlier
proceedings but it was not
decided in those proceedings
because it was not raised. Going
by the strict tenets of cause of
action and issue estoppels, the
cause of action or issue which
was not decided in the earlier
proceedings can be litigated
upon in the subsequent
proceedings.
The case of
Peter
Farrar v Leongreen Ltd [2017]
EWCA Civ. 2211
illustrates the point very well.
The appellant was a tenant who
overstayed the length of his
tenancy but continued to stay on
the rented premises as a
trespasser. The landlord brought
proceedings against him but only
for recovery of possession. He
got judgment and it took
sometime before he was finally
able to evict the appellant.
After the eviction the landlord
filed a new case against the
appellant and claimed for mesne
profits for the period he
overstayed on the premises as a
trespasser. The appellant in his
defence contended that the first
judgment acted as res judicata
against the landlord to prevent
him from suing him for mesne
profits and that he ought to
have claimed the mesne profits
in the first action. He lost in
the court of first instance and
was given leave to appeal to the
Court of Appeal but only in
respect of his grounds of appeal
based on cause of action and
issue estoppels. Sales L.J who
delivered the judgment of the
Court of Appeal said as follows
at paragraph 15;
“In the first action, the
respondent's claim was limited
to a claim for possession, which
only involved the respondent in
having to show that it had a
good cause of action as at the
date of the order for possession
made in its favour by HHJ Dight.
It did not maintain any claim in
relation to any cause of action
regarding the previous period of
trespass by the appellant. It is
clear, in relation to the first
principle, or cause of action
estoppel, that it can only arise
where the cause of action in the
later proceedings is identical
to that in the earlier
proceedings: see Arnold v
National Westminster Bank plc
[1991] 2 AC 93, 105D per Lord
Keith of Kinkel, cited by Lord
Sumption in Virgin Atlantic at
[20]. Therefore, the appellant
could not say that the
determination of the first
action gave rise to any cause of
action estoppel in this narrow
sense.”
In both Arnold’s and
Virgin Atlantic cases, the
House of Lords allowed issues
that had been determined in
previous proceedings to be
relitigated as exceptions to the
principle of issue estoppel.
A second important distinction
is that cause of action estoppel
is jurisdictional and when it is
held to be applicable the effect
is to deny the second court
jurisdiction to enquire into the
claim. In
Basil v Honger 919540 4 WACA
569 at 572
Coussey JA said as follows;
“the plea of res judicata
prohibits the court from
enquiring into the matter
already adjudicated upon. It
outs the jurisdiction of the
court”. That is true only of
cause of action estoppel and, to
some extent, issue estoppel. Res
judicata in the wider sense used
in Henderson v Henderson
is completely different in its
effect. Unfortunately, at times
we generalize the legal
incidence of a plea of res
judicata without paying
attention to these very
significant differences.
In order to appreciate the legal
incidence of a plea of the rule
in Henderson v Henderson
it will be helpful for us to
take a close look at the case
itself. The facts of the case
were that the defendant sued the
plaintiff in Newfoundland
(Canada) for accounts in respect
of a family partnership business
which was operating both in that
colony and in England. After
service of the action the
plaintiff left Newfoundland to
England and a lawyer entered
appearance for her and
represented her in their
absence. The plaintiff claimed
that the lawyer did not have
instructions to represent her.
The defendant submitted his
version of the accounts to the
Newfoundland court but no
accounts were submitted on
behalf of the plaintiff and the
court gave judgment and ordered
the plaintiff to pay certain
sums to the defendant. The
defendant came to England and
commenced proceedings to recover
the monies ordered to be paid by
plaintiff. The plaintiff then
brought a fresh action against
the defendant in England for
accounts to be taken in respect
of the partnership business and
pleaded her version of the
accounts between them. She
stated that the service of the
Newfoundland court processes on
them was irregular and that an
amendment to defendant’s
accounts was not filed properly.
The defendant moved the court to
dismiss the plaintiff’ action as
the matter had been finally
determined by the court in
Newfoundland. Vice-Chancellor,
Sir James Wigram at page 114
said as follows;
“In trying this question I
believe I state the rule of the
Court correctly when I say that,
where a given matter becomes the
subject of Litigation in, and of
adjudication by, a Court of
competent jurisdiction, the
Court requires the parties to
that litigation to bring forward
their whole case, and will not
(except under special
circumstances) permit the same
parties to open the same subject
of litigation in respect of
matter which might have been
brought forward as part of the
subject in contest, but which
was not brought forward, only
because they have, from
negligence, inadvertence, or
even accident, omitted part of
their case. The plea of res
judicata applies, except in
special cases, not only to
points upon which the Court was
actually required by the parties
to form an opinion and pronounce
a judgment, but to every point
which properly belonged to the
subject of litigation, and which
the parties, exercising
reasonable diligence, might have
brought forward at the time.
….It is plain that litigation
would be interminable if such a
rule did not prevail. Now,
undoubtedly the whole of the
case made by this bill might
have been adjudicated upon in
the suit in Newfoundland, for it
was of the very substance of the
case there, and prima facie,
therefore, the whole is settled.
The question then is whether the
special circumstances appearing
upon the face of this bill are
sufficient to take the ease out
of the operation of the general
rule. Now, what are those
circumstances?”
The Vice-Chancellor then
considered the grounds the
plaintiff urged on the court
that should take the case out of
the general rule. He formed the
view that the errors of law the
plaintiff pointed out from the
judgment of the Newfoundland
court properly are grounds for
an appeal to the Privy Council
which had appellate jurisdiction
in respect of decisions from the
colonies and noted that the
plaintiff stated that she
intended appealing to the Privy
Council. He therefore dismissed
the plaintiff’s action.
This speech of V-C Wigram has
since it was pronounced been
quoted in several judgments in
common law countries and, in
most instances, it is presented
as if it is an absolute rule of
law admitting of no exceptions.
Meanwhile, V-C Wigram was very
clear that the wider sense in
which the doctrine of estoppel
per res judicata applies is not
an absolute rule even where the
subsequent proceedings involves
the same parties and the same
issues as the previous
litigation. He excepted special
circumstances and dismissed the
action before him partly on the
ground that the plaintiff had an
alternative relief in an appeal.
The 1st defendant in his
statement of case has placed
considerable reliance on the
case of Naos Holding Inc v
Ghana Commercial Bank Ltd [2011]
1 SCGLR 492 in which
reference was made to the
following statement of Dateh-Bah
JSC in
Sasu v Amua-Sakyi & Anor
[2003-2004] SCGLR 742,
at page…..;
“In addition to the cause of
action and issue
estoppels….there is the related
doctrine of abuse of process,
commonly referred to as the rule
in Henderson v Henderson….whose
essence was set out by the
English Court of Appeal in
Barrow v
Bankside Agency Ltd [1996] 1 WLR
257 at 260 as follows;
"The rule in Henderson v.
Henderson (1843) 3 Hare 100 is
very well known. It requires the
parties, when a matter becomes
the subject of litigation
between them in a court of
competent jurisdiction, to bring
their whole case before the
court so that all aspects of it
may be finally decided (subject,
of course, to any appeal) once
and for all. In the absence of
special circumstances, the
parties cannot return to the
court to advance arguments,
claims or defences which they
could have put forward for
decision on the first occasion
but failed to raise. The rule is
not based on the doctrine of res
judicata in a narrow sense, nor
even on any strict doctrine of
issue or cause of action
estoppel. It is a rule of public
policy based on the
desirability, in the general
interest as well as that of the
parties themselves, that
litigation should not drag on
for ever and that a defendant
should not be oppressed by
successive suits when one would
do.”
The above statement of the
principle of abuse of process
clearly then underscores the
essence of preventing those who
want to make the litigation
arena i.e. the law courts a
career from embarking upon such
a process as it is contrary to
public policy and leads to loss
of valuable time and resources”
But as was said of the rule in
Henderson v Henderson in the
case of
Manson v. Vooght and others
[1999] BPIR 376
by May L.J. at page 387:
"In my view, the use in this
context of the phrase 'res
judicata' is perhaps unhelpful,
and this not only because it is
Latin. We are not concerned with
cases where a court has decided
the matter; but rather cases
where the court has not decided
the matter, but where in a
(usually late) succeeding action
someone wants to bring a claim
which should have been brought,
if at all, in earlier concluded
proceedings. If in all the
circumstances the bringing of
the claim in the succeeding
action is an abuse, the court
will strike it out unless there
are special circumstances. To
find that there are special
circumstances may, for practical
purposes, be the same thing as
deciding that there is no abuse,
as Sir Thomas Bingham M.R. came
close to holding on the facts in
Barrow. The bringing of a claim
which could have been brought in
earlier proceedings may not be
an abuse. It may in particular
cases be sensible to advance
cases separately. It depends on
all the circumstances of each
case. Once the court's
consideration is directed
clearly towards the question of
abuse, it will be seen that the
passage from Sir James Wigram
V.-C.'s judgment in Henderson is
a full modern statement of the
law so long as it is not picked
over semantically as if it were
a tax statute.” Unfortunately,
we have in this country tended
to treat the statement of Wigram
as the text of a statute.”
What Dateh-Bah, JSC must be
understood to imply by his
statement quoted above is that
where the subsequent proceedings
cannot be said to be oppressive,
then it is not in the public
interest to dismiss them. Where
as in this case, it is clear in
respect of the first case that
it was the 1st
defendant who failed to join the
plaintiff as a defendant, then
he cannot complain of oppressive
proceedings. Whilst in cause of
action and issue estoppel, res
judicata operates with all its
force, the same is not the case
with the rule in Henderson v
Henderson. In
Bradford & Bingley Building
Society v. Seddon [1999] 1 WLR
1482, Auld L.J. said
at page 1490:
"In my judgment, it is important
to distinguish clearly between
res judicata and abuse of
process not qualifying as res
judicata, a distinction delayed
by the blurring of the two in
the courts' subsequent
application of the above dictum
[of Sir James Wigram V.-C. in
Henderson v. Henderson]. The
former, in its cause of action
estoppel form, is an absolute
bar to relitigation, and in its
issue estoppel form also, save
in 'special cases' or 'special
circumstances': see
Thoday v.
Thoday [1964] P. 181, 197-198
per Diplock L.J. and Arnold v.
National Westminster Bank Plc
[1991] 2 A.C. 93. The
latter, which may arise where
there is no cause of action or
issue estoppel, is not subject
to the same test, the task of
the court being to draw the
balance between the competing
claims of one party to put his
case before the court and of the
other not to be unjustly hounded
given the earlier history of the
matter . . .”
In the House of Lords case of
Johnson v
Gore Wood & Co [2002] 2 AC 1,
the appeal arose out of an
application to strike out
proceedings on the ground that
the plaintiff’s claim should
have been made in an earlier
action on the same
subject-matter brought by a
company under his control. It
was argued by the defendant that
the plaintiff should have
brought his personal action at
the time his company sued
relying on Henderson v
Henderson.
Millet L.J in his opinion
cautioned about the application
of the rule as follows;
“Particular care, however, needs
to be taken where the plaintiff
in the second action is not the
same as the plaintiff in the
first, but his privy. Such
situations are many and various,
and it would be unwise to lay
down any general rule. The
principle is, no doubt, capable
in theory of applying to a
privy; but it is likely in
practice to be easier for him to
rebut the charge that his
proceedings are oppressive or
constitute an abuse of process
than it would be for the
original plaintiff to do so.”
Therefore, where a defendant
prays a court to summarily
dismiss a plaintiff’s action on
ground of res judicata and abuse
of process by reference to
Henderson v Henderson, the court
has to enquire whether the issue
the plaintiff is seeking to
litigate was specifically
decided in the earlier
proceedings involving the same
parties or their privies. If it
was specifically decided, then
the court may not allow the
plaintiff to re-open it, except
in special circumstances. But if
the question that arises in the
second proceedings was not
specifically decided and the
defendant relies on abuse of
process, then the burden is on
the defendant to prove that the
second proceedings are
oppressive. If the plaintiff in
that situation was not party to
the earlier litigation but is
only a privy, then evidence that
shows that the question raised
in the second proceedings
relates to the said privy but
was not raised by the party in
the earlier proceedings, then it
will be a denial of the right to
hearing before a court for such
a plaintiff to driven away from
the judgment seat. The court
ought not to consider only the
subject matter of the two cases
as most are wont to do. It may
be the same piece of land but if
a matter that would have been a
legal defence available to the
plaintiff if she had been a
party in the earlier litigation,
then though the subject matter
would be the same, the issue or
cause of action being raised in
the second proceedings deserves
to be investigated, unless it
amounts to clear abuse of the
process of the court on some
other grounds.
In the affidavit in support of
the 1st defendant’s
motion praying for the dismissal
of plaintiff’s action as being
an abuse of process he deposed
as follows at paragraph 19;
“That I am advised and I verily
belief same to be true that all
the matters being canvassed by
the plaintiff have been
repeatedly raised and decided
upon.”
The Court of Appeal too said as
follows in their judgment at
page 12 thereof;
“As it is there have been
various suits in respect of this
same land in which various
courts of competent jurisdiction
have decided against the
plaintiff, the Lands Commission,
and the Attorney-General who did
not appeal against the decision.
They are bound by these
judgments. The writ of summons
can therefore rightly be
described as an abuse of the
court process and should not
have been entertained by the
court…..We also find that the
subject matter of this appeal
has been litigated upon in
various courts and decisions
delivered are still effective
and operate as res judicata
against the plaintiff. We also
find that the entire suit is an
abuse of the court process and
should be brought to an end.”
When we closely analyse the
deposition in the 1st
defendant’s and quoted passage
from the judgment of the Court
of Appeal against the backdrop
of the extensive explanation and
distinction of the different
incidents of res judicata above,
we find that they were alluding
to issue estoppel as between 1st
defendant and the plaintiff in
respect of the first case. They
allege the issue estoppel on the
basis that the plaintiff is a
privy of the Lands Commission
who was defendant in the first
case. Then cause of action
estoppel may arise in respect of
the suit by the Attorney-General
against 1st defendant
in the sense that the cause of
action being raised for trial in
the present case is the same as
that sued upon by the
Attorney-General who it is
claimed is a privy of the
plaintiff herein. Furthermore,
the Court of Appeal talks of
abuse of process generally
without referring specifically
to the rule in Henderson v
Henderson but in this appeal
it has been relied upon directly
by the 1st defendant.
If for the purpose of our
discussion we assume that the
plaintiff is a privy of the
Lands Commission then in order
to determine if a case of issue
estoppel would hold against the
plaintiff on account of the
first case, we have to find out
what issues were enquired into
and decided in that first case.
The issue that was inquired into
was the claim of adverse
possession by the 1st
defendant and it was decided
that 1st defendant
had been in adverse possession
of the land as against the Lands
Commission who did not take any
steps to assert its title so the
1st defendant was
entitled to remain in
possession. So an injunction was
granted against Lands
Commission. Next we shall
consider what claim has the
plaintiff made in this present
case? The main case of the
plaintiff can be found in
paragraph 19.3 of its statement
of claim to the effect that the
land in dispute is vested in
Achimota School and that
Achimota School as at 2011 was
in effective possession of the
land. Clearly, these issues were
not enquired into and decided
upon in the earlier case. So if
we apply the definition of issue
estoppel to these facts, there
is clearly no issue estoppel
against the plaintiff.
If we take the allegation of
cause of action estoppel on
account of the case by the
Attorney-General, the basic
point there is that that case
was not decided on the merits so
the cause of action cannot be
said to be merged in the ruling
of Ato Mills Greaves J.
Since issue estoppel and cause
of action estoppel are not
applicable against the plaintiff
we next consider the rule in
Henderson v Henderson to see if
plaintiff’s action amounts to
abuse of process or estoppel in
the wider sense. The authorities
say the burden is on the 1st
defendant to show that the
action is abuse of process and
what are the proven
circumstances of this case? The
grounds of claim raised by the
plaintiff in this third case
were not brought up by the Lands
Commission in the first case for
reasons that the plaintiff
cannot be blamed. The 1st
defendant on the other hand
shares some blame for the late
raising of these matters for at
the time he sued in 2011 he was
well aware that Achimota School
has interest in the land but he
failed to join them to the suit.
If he had joined them at that
time all these issues would have
been decided upon in one action
so he cannot now complain that
he being subjected to oppressive
proceedings by plaintiff as far
as the first case is concerned.
The record confirms that it was
more than a year after the first
judgment that the plaintiff was
made aware of it and they tried
to set it aside. The plaintiff
too committed some procedural
blunders in its attempts to
avoid the judgment such as
failing to prosecute its notice
of claim. A notice of claim is
in the nature of interpleader
proceedings and it automatically
stays execution of the judgment
so the application for
interlocutory injunction that
the plaintiff filed pursuant to
its notice of claim was totally
unnecessary.
Whether the case of the
plaintiff that the land in
dispute is vested in Achimota
School and not the state can be
sustained or not is a different
matter but in my opinion, it
certainly is not caught by res
judicata or abuse of process on
account of the first judgment.
The plaintiff’s claim never came
up and was not extensively
investigated and enquired into
in the first case for a decision
to be given on it. I will not
express any views on the
Attorney-General’s suit as she
has not appealed against the
ruling of Mills-Graves, J.
I wish to emphasise the point
that res judicata and abuse of
process are not absolute
concepts because it is common
these days in our country,
particularly in relation to land
in the big cities, for a
plaintiff to sue an allodial
owner of land alone without
joining her grantees and lessees
who are in conspicuous
occupation of the land. She
would recover judgment against
the allodial owner, who in some
instances would deliberately put
up a feeble fight if any at all,
and with such judgment the
plaintiff seek to bind the
grantees and lessees trumpeting
the fact that they are
technically privies of the
allodial owner so are estoppel
per res judicata. If the grantee
in possession seeks to assert
her interest in the portion of
the land in her possession she
is met with a motion to dismiss
on ground of abuse of process.
It would be unfortunate for a
court, without considering the
exceptions to the plea of res
judicata explained above, to
uphold such contention whereas
defences based on adverse
possession such as limitation
and acquiescence that may avail
the grantee or lessee were not
raised, enquired into and
decided upon in the earlier
proceedings. Even if in the
first suit the title of the
plaintiff therein was properly
proved, the person in possession
is still entitled to a hearing
of her possessory interest in
the portion of the land under
her occupation. In such cases,
it is the party who deliberately
failed to join the person in
open occupation who is guilty
of abuse of process and not the
victim of injustice who is
knocking on the door of the
court to be accorded a hearing.
The above case did not involve
the same parties and there was
no cause of action estoppel or
issue estoppel. In this case, as
far as the first case is
concerned, the 1st
defendant cannot seriously
contend that he is being
oppressed by the plaintiff’s
suit. For the above reasons I
uphold Ground III of the appeal.
I now turn to a consideration of
the challenge to the capacity of
the plaintiff. I start the
discussion of this issue by
quoting further from the speech
of Justice Holmes that I
commenced my opinion with. We
left off where he bemoaned how
immediate interests and demands
of a case can distort analysis
by judges. At page 401 of the
report Holmes, J continued;
“These immediate interests
exercise a kind of hydraulic
pressure which makes what
previously was clear seem
doubtful, and before which even
well settled principles of law
will bend. What we have to do in
this case is to find the meaning
of some not very difficult
words. We must try, I have
tried, to do it with the same
freedom of natural and
spontaneous interpretation that
one would be sure of if the same
question arose upon an
indictment for a similar act
which excited no public
attention, and was of importance
only to a prisoner before the
court. Furthermore, while at
times judges need for their work
the training of economists or
statesmen, and must act in view
of their foresight of
consequences, yet when their
task is to interpret and apply
the words of a statute, their
function is merely academic to
begin with -- to read English
intelligently -- and a
consideration of consequences
comes into play, if at all, only
when the meaning of the words
used is open to reasonable
doubt.”
The capacity that the plaintiff
asserts in this case is based on
statute so our function is a
simple one of reading and
interpreting the statute to
ascertain if the legislature
intended to confer on the
plaintiff the capacity to sue
and be sued. Simple as this
exercise is the consequences are
considerable because the law is
well-settled that without
capacity a person or entity
cannot have access to a court of
law. I have, like Holms, J did,
approached this issue as I would
have done if the plaintiff were
a regular public school which
has asserted capacity under the
statutes in question here. In
the case of
Standard Bank Offshore Trust Co
Ltd v National Investment Bank
Limited & 2 Ors [2017-2018] 1
SCLRG (Adaare) 707 the
defendant challenged the
capacity of the plaintiff for
the first time in a final appeal
in the Supreme Court and argued
that from the evidence on the
record the plaintiff at the time
it filed the writ of summons had
no capacity to bring the action
so the whole proceedings were
void. The defendant therefore
prayed the Supreme Court to
nullify the all the proceedings
in the High Court and the Court
of Appeal. By unanimous decision
the court acceded to the prayer
of the defendant. Benin, JSC who
authored the opinion of the
court stated the law as follows
at page 726 of the Report;
“A person’s capacity to sue,
whether under a statute or rule
of practice, must be found to be
present and valid before the
issuance of the writ of summons,
else the writ will be declared a
nullity. In the case of a
company, it’s authority to bring
a lawsuit is one of capacity and
not standing. Capacity to sue is
a very critical component of any
civil litigation without which
the plaintiff cannot maintain
any claim. The issue of capacity
to sue has been the subject of
several writings, commentaries
and court decisions, such that
every practitioner of the law
should consider it before
preparing a case for court. In
an article titled ‘IN LOCUS
STANDI-A COMMENTARY ON THE LAW
OF STANDING IN CANADA (TORONTO:
CARSWELL, 1986)’, Prof. Thomas
Cromwell, who later became a
judge of the Supreme Court of
Canada, wrote at page 3 that:
“Capacity has been defined as
the power to acquire and
exercise legal rights. In the
context of the capacity of
parties to sue and be sued, to
say that a party lacks such
capacity is to acknowledge the
existence of some procedural bar
to that party’s participation in
the proceedings-one that is
personal to a party…..and
imposed by law for one or more
of various reasons of policy
usually quite divorced from the
substantive merits……It concerns
the right to initiate or defend
legal proceedings generally.”
(Emphasis supplied) This passage
was quoted with approval in the
Canadian case of PROVINCE OF NEW
BRUNSWICK v. MORGENTALER, 2009,
NBCA 26 at 43. That the legal
authority to act is that which
gives a party capacity was also
affirmed in the case of DALLAS
FORT WORTH INTERNATIONAL AIRPORT
v. COX, 261 SW 3d 378 (Court of
Appeals of Texas at Dallas,
2008), per Justice Ritchter who
said “…..a party has capacity
when it has legal authority to
act, regardless of whether it
has a justiciable interest in
the controversy.” It must be
emphasized that the capacity to
sue must be present before the
writ is issued; such authority
must appear in the endorsement
and/or statement of claim
accompanying the writ; it cannot
be acquired whilst the case is
pending; and an amendment cannot
be sought to introduce it for
the first time. A writ that does
not meet the requirement of
capacity is null and void.
Nullity may be raised at any
time in the course of the
proceedings, even on a second or
third appeal. The charge of
tardiness that was raised by the
respondent against the appellant
is thus a red herring and does
not hold water.”
The 1st defendant contends that
the plaintiff has no statutory
foundation as the subsisting
legislation on education, Act
778, has no provision for the
establishment of boards of
governors in public second cycle
educational institutions of
which Achimota School is one.
The plaintiff concedes this but
submits as follows in paragraph
37 of its statement of case;
“37. Although Act 788 does not
contain any provision on
established boards or boards yet
to be established by recognized
institutions, the Memorandum
dated 30th October, 2008 that
introduced the Education Bill in
2008 makes it clear that Act 788
intended the continuation of
existing Boards of Governors.
The Memorandum recounts the
progress in school management
from the days of the local
councils to the era of the
District Assemblies, and also
notes the role of religious
bodies in the establish[ing]
religious educational units
which […] grew into parallel
system of educational management
of basix schools
38. The Memorandum further
acknowledges that the principles
which underpin the Bill derive
from fifty years, […] of State
control, management and
administration of all schools
[…] and notes that “schools
owned by the community would,
through their boards of
governors be given as much
autonomy as possible[…]”.
The plaintiff is unable to point
to any statement in the
Memorandum that accompanied the
Education Bill, 2008 signed by
then Minister, Prof Dominic
Fobih dated 30th
October, 2008, that mentioned
boards of governors for existing
public second cycle schools such
as Achimota. The community
schools mentioned are provided
for under section 29 of Act 877
as follows;
29. Regulations
The Minister may, by legislative
instrument, in consultation with
the appropriate body, make
Regulations in respect of
(a) the role, composition and
any other functions of the
inspectorate set up under
section 7;
(b) development and assessment
of the curriculum for
educational institutions;
(c) the role of parent-teacher
organisations in the education
system;
(d) the ownership of schools by
a community;…….(emphasis
supplied).
It is such community schools
that the Memorandum to Act 877
says regulations may be made for
them to gradually become
autonomous with boards of
governors taking charge of their
management. We are not told
whether those regulations have
been made or not but what is
clear here is that the plaintiff
is not making its case as a
community school and relying on
such regulations. Therefore,
the reference has nothing to do
with boards of governors in
public second cycles schools. In
its desperate need to find a
statutory basis for its claim to
juristic personality the
plaintiff went to the extent of
quoting a passage from a
Memorandum to a bill on
education that it claims was
drafted in 2015 but which has
not been passed into law. The
quotation is not even from the
intended bill but from a
Memorandum and it submits that
whenever that bill shall be
passed into law the Memorandum
will state that boards of
governors may be established by
the Regional Co-Ordinating
Councils. I must confess that I
find it difficult to accept this
as a legal argument. Capacity to
sue by law is required to exist
at the commencement of the suit
and cannot be gained along the
line in the progress of the
case. See the case of
Akrong
and Anor v. Bulley [1965] GLR
469.
Not withstanding the absence of
any provision in Act 877, the
plaintiff springs from the
Memorandums to argue that in the
interpretation of Act 877, the
court should have recourse to
the Memorandum in order to
discover the intention of the
legislature in Act 877 as far as
boards of governors of public
schools is concerned. The
question I ask is which
Memorandum? The 2008 one which
makes no mention at all of
boards of governors of second
cycle public schools or the 2015
one which has no existence and
is of no effect whatsoever? The
plaintiff has referred us to
Section 10 of the Interpretation
Act, 2009 (Act 792). It is as
follows;
Aids to interpretation or
construction
10. (2) A Court may, where it
considers the language of an
enactment to be ambiguous or
obscure, take cognisance of
(a) the legislative antecedents
of the enactment;
(b) the explanatory memorandum
as required by article 106 of
the Constitution and the
arrangement of sections which
accompanied the Bill;
(c) pre-parliamentary materials
relating to the enactment;
(d) a text-book, or any other
work of reference, a report or a
memorandum published by
authority in reference to the
enactment, and the papers laid
before Parliament in reference
to the enactment;
(e) the parliamentary debates
prior to the passing of the Bill
in Parliament.
The section says that ‘where
a court considers the language
of an enactment to be ambiguous
or obscure’, then it may
take cognizance of the
Memorandum. Clearly, the section
can only be called in aid where
a specific provision of an
enactment is being construed and
its language is ambiguous or
unclear. The plaintiff has not
pointed to any provision in Act
778 on the establishment of
board of governors that needs to
be interpreted and that is
ambiguous or obscure. There is
talk of a situation of casus
omisus, otherwise referred
to as casus improvisus,
occurring here but in the
interpretation of statutes and
deeds such a situation is said
to arise only where the words
used in an enactment appear
incomplete thereby rendering the
provision meaningless or if the
words are given their natural
meaning an absurdity will be the
result. It is then said that a
gap was left in the wording by a
drafter’s mistake such that it
is only by filing that gap that
the provision will have meaning
and purpose or the absurdity
will be avoided. See
Jones
v Wrotham Park Settled Estates
[1980] A.C 74.
In
Professor Cross’ book;
Statutory Interpretation, 3rd
ed., at page 103 he states
as follows;
“In omitting or inserting words
the judge is not really engaged
in a hypothetical reconstruction
of the intentions of the drafter
or the legislature, but is
simply
making as much sense as he
can of the text of the statutory
provision read in its
appropriate context and within
the limits of the judicial
role.”(emphasis supplied).
In this case there is no
statutory text that is to be
read and a gap filed so to talk
of casus omissus is to
travel outside the limits of the
judicial role and legislate. Act
877 as it presently exists is
meaningful and clear without a
provision for juristic status to
boards of governors.
It is apparent that in Act 877
parliament adopted a particular
approach to educational policy
which though it incorporated
some elements of the policy of
Act 87, effected changes in some
areas. Even if a look is taken
of the Memorandum to Act 877, it
is clear that there is a shift
in policy away from having
boards of governors as the
structure to control second
cycle schools in the country in
preference for the District
Assemblies to be in charge. For
it is stated in that Memorandum
as follows;
“The education service will be a
decentralized Service. Provision
is made for the establishment of
regional and district education
directorates; clauses 21 and 22.
At the district level, the
District Assembly will be
responsible for its area of
authority…throughout the basic,
second cycle and functional
literacy education levels
including non-formal education
is available to meet the needs
of the population of its area.
For this purpose, the District
Assembly will appoint a district
education oversight committee
but it will remain the
responsibility of the District
Assembly to;
(a)
Build, equip and maintain
public basic schools in the
district;
(b)
Establish the public schools
required for the district,
leaving the oversight committee
among other functions to
oversee;
(i)
The conditions of school
buildings and the infrastructure
requirements of the schools, and
the environmental cleanliness of
the schools, lands and any other
facilities of the schools….”
The Memorandum states that;
“Clause 23 provides that a
private educational institution
should be incorporated as a
legal entity and would among
other things……”
What this means is simply that
any boards of governors that
have been set up in any school
will be an administrative
structures for assisting the
school management without any
statutory foundation. An
administrative structure to
assist in the administration of
a school cannot claim juristic
status under an Act of
Parliament that makes no
reference to them not to talk of
according them rights to sue and
be sued. It therefore seems to
me that the policy choice in Act
877 was to have the District
Assembly manage the basic and
second cycle educational
institutions in its district
hence the elaborate provisions
on boards of governors in Act 87
were left out. Whether the
choice is a better policy or not
is not for the court to decide.
In the case of
Republic v Fast Track High
Court, Accra; Ex parte Daniels
[2003-2004] SCGLR 364 at 370
Kludze JSC said as follows;
".. Even in the area of
statutory interpretation, we
cannot amend a piece of
legislation because we dislike
its terms or because we suppose
that the lawgiver was mistaken
or unwise. Our responsibility is
greater when we interpret the
Constitution. We cannot and must
not substitute our wisdom for
the collective wisdom of the
framers of the Constitution."
Where the intention of the
legislature has been made plain
through the words used in the
enactment it is contrary to the
principles of interpretation to
seek to amend it to fit the
exigencies of a particular party
no matter how majestic that
party may be. When Lord Denning
talked of gap filing in the case
of Seaford Court Estates Ltd.
v Asher [1949] 2 KB 481 at p.
499 he qualified his
statement by adding that;
“A Judge must not alter the
material of which it is woven,
but he can and should iron out
the creases.” In this
case the plaintiff is asking us
to alter the material of the
statute and that a court has no
authority to do.
As Judges are servants of
statute so it is presumptuous
for a court where a statute is
clear to go ahead of parliament
and say that they were wrong and
should have provided for a
particular thing in the Act.
Even Lord Denning, the paragon
of substantial justice, observed
those limits. In the case of
London
Transport Executive v Betts
[1958] 2 All ER 636 he
sat in the House of Lords in a
case where the Ratings and
Valuations (Appointment) Act,
1928 had to be interpreted
to determined whether the
appellant in the case was
entitled to an exemption of tax
under the statute. Denning, L.J
was the sole dissenter and he
stated as follows at 655;
“Just take the steps in the
reasoning. It goes like this:
The word ‘maintenance’ included
painting in the shop. That shows
that it goes beyond the ordinary
maintenance (as I have described
it) and includes repairs. Hence
it is wide enough to include
overhauling and
reconditioning-and even
reassembling into different
vehicles. But when it is pointed
out that, if that meaning is
adopted, it will lead to an
absurdity in the statute-that
leaves a gap which parliament
cannot have intended-then it is
said you must fill in the gap by
writing into the statute words
which are not there and by
altering other words. At that
point in the argument you come
face to face, not with a
particular precedent on this
act, but with a fundamental
principle on all acts, which
is-the judges have no right to
fill in gaps which they suppose
to exist in an act of
parliament, but must leave it to
parliament itself to do so. See
Magor &
St Mellons Rural District
Council v Newport Corpn [1951] 2
All ER 839). No court is
entitled to substitute its words
for the words of the act. See
Goodrich
v Paisner [1956] 2 All ER 176.”
This is a case where neither Act
877 nor its Memorandum give the
slightest hint of an omission.
The bigger question is; how is
the dreamed up gap to be filled?
It is the prerogative of the
legislature to determine the
rights, duties and limitations
of legal entities its creates.
Some the legislature accords
them rights to sue and be sued,
some it only accords the status
of corporate entity and
perpetual succession without
adding a right to sue and be
sued. Which of these are we
expected by the plaintiff to
decree for it on the basis of
Act 877, not forgetting that the
Act applies to all public
educational institutions
throughout the country? In the
case of
Western Bank Ltd v Schindler
[1977] Ch 1 it was held
that where the insertion would
be too long, then the court is
exceeding the boundary of
construction into the realm of
doing the work of the
legislature.
When the legislature decided to
accord Achimota School the
status of a juristic person it
did so in plain words. CAP
114 provided as follows;
4(1) There shall be established
a Council to be styled “The
Achimota School Council” which
shall have entire control of and
superintendence over the general
policy and property of the
School and in all cases
unprovided for by this Ordinance
may act in such manner as it
deems best to promote the best
interest of the School.
5(1) The Council shall be a
body corperate having perpetual
succession and a common seal.
(2) The Council may sue
and be sued and may acquire,
purchase, and hold any moveable
and immoveable property…”
But the boards authorized to be
established under Act 87 were
not accorded the status of being
able to sue and be sued. It
provided as follows;
15 Establishment of Boards of
Governors
(1) Subject to the
provisions of subsection (4) of
this section the Minister shall
for every assisted institution
by notice in the Gazzette
establish a board of governors
to act in accordance with a
constitution and rules approved
by him.
(2) A board of governors
so established for an assisted
institution shall be a body
corporate with perpetual
succession and a common seal and
shall have power to hold and
manage land for the purposes for
which it is established…..
The status of Achimota School
has changed since the passage of
Act 87. Section 3 of CAP 114
stated that;
The Secondary Department of the
Prince of Wales College and
School shall be established as
an independent and autonomous
institution and shall be styled
“Achimota School”.
It was this independent and
autonomous status that
constituted the foundation for
the other provisions in the
Ordinance whereby land could be
vested in the school. By Act 87
the legislature dissolved this
special status of the school and
added it to the public school
system and that was the legal
effect of the repeal of CAP 114.
From that point on Achimota
School ceased to be an
independent and autonomous
institution and its Council lost
its juristic capacity.
Notwithstanding the repeal the
plaintiff submits that it still
in law has the status of being
capable of suing and being sued.
Section 34 of Act 792
states that;
Effect of repeal
“34. (1) Where an enactment
repeals or revokes an enactment,
the repeal or revocation shall
not, except as in this section
otherwise provided,
(a) revive an enactment or
a thing not in force or existing
at the time at which the repeal
or revocation takes effect;”
This provision was given effect
to by this court in the case of
Kowus
Motors v Check Point Ghana Ltd &
Ors [2009] SCGLR 230.
The court held that the
repeal of the first repealing
enactment did not resurrect the
juristic status of the
plaintiff.
The plaintiff’s argument under
section 34(1)(b) of Act 792,
that the Board of Governors of
Achimota School still has its
status under CAP 114 is a
strange proposition of law that
runs contrary to the plain
language of the provision and
the decision of this court in
the Kowus Case and cannot
be countenanced.
Section 34(1)(b) says; Where an
enactment repeals or revokes an
enactment, the repeal or
revocation shall not, except as
in this section otherwise
provided,
(b) affect the previous
operation of the enactment
that is repealed or revoked, or
anything duly done or suffered
under the enactment;
The saving in section 34(b)
relates to past actions that
were taken by the Achimota
Council (not even the Board of
Governors) when CAP 114 was in
force and does not confer
authority for future purposes
following the repeal. If that
were so then the repeal of a
statute will have no legal
consequences whatsoever.
It is therefore abundantly clear
that the claim of plaintiff to a
special status for Achimota
School board of governors has no
legal basis. I have all the
sympathy for the noble goals
that the plaintiff seeks to
pursue through these proceedings
but the law is very clear on the
point that it has no capacity.
Let those who have the legal
competence such as the Lands
Commission and the
Attorney-General act as the law
has many rooms full of remedies
that can still avail those that
the law recognizes. Some of us
of the Christian faith believe
that at the gate to heaven you
must be recognized by Simon
Peter before you can gain
entrance. The rule there applies
with the same rigor to the
Mighty, such as Roman Emperor
Nero and the humble, such as the
Martyrs of Uganda. Capacity is a
fundamental principle of our
system of law that cannot be
whittled down under the
circumstances of this case.
For the above reasons, I hold
that the plaintiff had no
capacity to institute this
action so the whole proceedings
are a nullity. The effect of my
decision on the capacity of the
plaintiff on the whole appeal is
that it fails for want of
capacity and is hereby
dismissed.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
GOLDA DENYO FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
FRANK DAVIES WITH BRIGHT
OKYERE-ADJEKUM
FOR THE 1ST
DEFENDANT/ APPELLANT/
RESPONDENT.
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