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R U L I N G
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By a writ of summons
intituled Atta Ashie Nikoi Vrs.
Charles Quist in suit no.
L248/2002, the plaintiff, Atta
Ashie Nikoi sued, as head of the
Amanfu Weku family, Charles
Quist as representative of the
Quist family for declaration of
title to a piece or parcel of
land, the size of which was
433.72 acres. It stands to
reason therefore that in that
suit Amanfu Weku family
contested the title to the said
land with Quist family.
In the course of
proceedings in that case, Atta
Ashie Nikoi passed away and as a
result Christian Nortey Quaye
was substituted as head of the
Amanfu Weku family.
It so happened that the
plaintiffs in that case, the
Amanfu Weku family failed to
prosecute their case.
Consequently His Lordship E. F.
Dzakpasu J. dismissed the
plaintiffs’ case for want of
prosecution upon an application
to that effect.
In view of the fact that
defendants, the Quist family,
had a counterclaim, evidence was
adduced in proof of the
counterclaim. Whereupon,
judgment was entered in favour
of defendants, the Quist family,
for declaration of title to the
disputed land.
It is on record that plaintiff’s
prayer to set aside the said
judgment was declined by both
the trial court and the court of
appeal and now there is further
appeal to the Supreme Court
seeking to set aside the
judgment.
While the appeal at the supreme
court awaits determination,
Christian Nortey Quaye in his
capacity as head and lawful
representative of the same
Amanfu Weku family of Osu-
Amantra has once again sued two
members of the Quist family
seeking,among other reliefs,
declaration of title to the same
land, the subject matter in the
earlier suit no. L248/2002.
Per the instant motion, the
defendants, the two members of
the Quist family, who for all
intends and purposes, are
privies of the defendants in
suit no. L248/2002 have applied
under Order11 Rule 18(b) and (d)
of the High Court (Civil
Procedure) Rules, 2004 (C.I.47)
praying for the instant writ of
summons and the pleadings by the
plaintiff in this suit to be
struck out , contending that the
instant processes are vexatious,
frivolous or otherwise an abuse
of the court process.
Paragraphs 13, 15 and 16 of the
supporting affidavit appears to
contain the gravamen of the
application and I deem it
pertinent to quote them
hereunder:
“13. That I am advised by
Counsel and verily believe same
to be true that since the
parties, the facts, the subject
matter and the reliefs sought in
the instant suit are the same as
in suit no. L248/2002 presently
before the Supreme Court, the
plaintiff cannot issue the
instant writ of summons and
statement of claim as it will
result in a multiplicity of
suits;
15. That the instant suit has
already been determined by the
High Court, Accra presided over
by His Lordship, Mr. Justice
Dzakpasu and cannot be
re-litigated before the same
court;
16. That in the circumstances
and in the interest of justice I
pray that the instant suit be
dismissed as frivolous,
vexatious and an abuse of the
court’s processes”.
Order 11 Rule 18(1)
(b) and (d) of the High Court
(Civil Procedure) Rules, 2004,
(C.I.47) reads:
“18(1). The Court may at any
stage of the proceedings order
any pleading or anything to be
struck out on the grounds
that
(b) it is scandalous, frivolous
or vexatious;
or
(d) it is otherwise an abuse of
the process of the
court,
and may order the action to be
stayed or dismissed or judgment
to be entered accordingly.”
Learned lawyer for
defendants/applicants submitted
that the judgment delivered by
Dzakpasu J was a final judgment
determining the rights of the
parties in that case and parties
herein are privies to the
parties in that case; therefore
plaintiffs must be disallowed to
re-litigate the same issues in
that case by virtue of the
principle of estopel per rem
judicatam.
When the court drew his
attention to the fact that the
said judgment was obtained in
default of the participation of
the other side and so the Court
was denied, as it were, the
opportunity of actually
determining the case on merits,
learned lawyer for defendants
responded that where a judgment
is derived from evidence adduced
by a party in the absence of the
other party who has had notice
of the hearing yet fail to
participate, such a judgment can
operate as estopel per rem
judicatem against the defaulting
party as such a judgment is on
merits.
He referred the court to the
Supreme Court reported case of
IN RE MENSAH (DECD); MENSAH &
SEY v INTERCONTINENTAL BANK (GH)
LTD (2010) SCGLR 118.
In the said case the Supreme
Court pointed out the limited
application of default judgments
in grounding estopel and
particularly relied on the case
of CONCA ENGINEERING v MOSES
(1984-86) 2 G L R 319 and
concluded that: “…… a party is
stopped by res judicata
of judgment by default where
identical issues arising in the
second action has been directly
decided in the first action
between the same parties”.
This position of the law leads
me to rule that plaintiff’s
action is doomed to suffer from
the res judicata rule more so
when the judgment in the first
case directly decided the
pertinent issue of the ownership
of the land in dispute in that
case between the same parties
after evidence had been adduced
and that land is the same land
over which plaintiff has sued
for.
I am not oblivious of the
additional issues arising from
the pleadings of plaintiff in
the instant suit pertaining to
fraud. I am of firm conviction
that that does not change the
position of the law. Indeed in
the case of EX PARTE HESSE &
SCANCOM LTD (2007-2008) SCGLR
1230, holding 5 thereof, the
Supreme Court made it clear that
“(5) The res judicata rule was
not confined to the issues which
the court has been actually
asked to decide. The rule would
also cover issues or facts which
were so clearly part of the
subject matter of the litigation
and so clearly could have been
raised that it would be an abuse
of the process of the court to
allow a new proceeding to be
started………. The rule was
applicable to matters actually
dealt with in the previous
litigation as well as those
matters which properly belonged
to that litigation and could
have been brought up for
determination”.
The matters constituting the
alleged fraud now being asserted
by plaintiff were in existence
at the time suit no L248/2002
was raging on and that if
plaintiff had exercised due
diligence required of them those
matters would have been brought
to the fore for determination.
To allow plaintiff herein to
assert those matters now to
ground a cause of action smacks
of abuse of the process of the
court and I so hold.
In the case of IN RE
POKU (2011) 1 SCGLR 162, when
the plaintiffs sued the second
time against the defendant
alleging that the previous
judgment was motivated by fraud,
the Supreme Court told the
plaintiffs that since they were
either actually or
constructively cognizance of the
matters constituting the alleged
fraud but failed to avail
themselves of them at the first
trial, they could not be heard
to allege fraud as basis of
impugning the earlier judgment.
In that case the plaintiffs’
second action which was based on
the allegation of fraud was
dismissed as frivolous and
vexatious by the court of appeal
and the Supreme Court affirmed
the Court of Appeal decision.
Finding myself bound
by these decisions I cannot help
but grant the instant
application. Accordingly I
hereby strike out the pleadings
of plaintiff and dismiss the
suit as frivolous and vexatious
and an abuse of the court
process.
(SGD) ANTHONY OPPONG
JUSTICE OF
THE HIGH COURT.
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