|
Land -
Development of plot - Lease -
trespass - Perpetual injunction
- Recovery of possession -
Damages for trespass -
Declaration of title -
HEADNOTES
The 1st
Plaintiff is the head of the
Ebiradze Family of Anaji whilst
the 2nd and 3rd
Plaintiffs are the chairmen and
Secretary of mount Zion
residents Association and have
instituted this action for
themselves and other residents
of the area within Sectors B, C,
D and F of West Anaji Planning
Scheme. Sometime ago, the 1st
Plaintiffs predecessors caused
the areas within Sectors A, B,
C, D, F and G of West Anaji
Planning Scheme to be zoned as
residential Plots. One Mr.
Nortey was seen developing a
plot within sector ‘C’ of West
Anaji Planning Scheme. The 1st
Plaintiffs predecessor Yaa Kwesi
instituted action against Mr.
Nortey and the 2nd
Defendant in the High Court
Sekondi and lost. During the
hearing no plans were drawn but
the litigation centered on part
of Sector ‘C’.The 2nd
Defendant did not counter claim,
but pleaded that his ancestor
purchased part of Basia Aya’s
land at a public auction without
disclosing the boundaries of the
land that was acquired neither
did he produce the certificate
of purchase. The Plaintiff says
that since the 2nd
Defendant did not Counter -
Claim, neither did he give
evidence of his boundary nor a
plan drawn, the 1st
Defendant has no power to plot
any land for the 2nd
defendant and to delete any
leases.” The Plaintiff
lost this action and appealed to
the Court of Appeal which also
dismissed his appeal and
eventually to the Supreme Court
where also the Plaintiff lost.”
HELD
In the
instant case, since we have come
to the conclusion that the
issues raised in the instant
appeal, though attractive had
been raised and dismissed by
this very Supreme Court, there
is no need to pursue this case
any further. In view of the
above, the appeal herein is
dismissed as being without any
merit. The Court of Appeal
judgment of 1st
December 2011 is accordingly
affirmed.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Henderson v
Henderson (1843) 3 Hare 100,
Barrow v Bankside Agency Ltd.
[1996] 1 W.L.R. 257
NAOS Holding
v Ghana Commercial Bank [2011]
SCGLR 492
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
JONES DOTSE
JSC:
COUNSEL
JOHN MERCER
WITH HIM KAMIL MOHAMMED IDDRISU
FOR THE 1ST
PLAINTIFF/APPELLANT/ APPELLANT.
D. G.
CARSON FOR THE 2ND
DEFENDANT /RESPONDENT/RESPONDENT
----------------------------------------------------------------------------------------------------------------
JUDGMENT
----------------------------------------------------------------------------------------------------------------
JONES DOTSE
JSC:
This appeal
is an epitome of a phenomenon
that is gradually creeping into
the judicial and legal systems,
and this is the difficulty of
losing parties in previous
litigations accepting the
outcome of the decisions in
those cases thereby respecting
the age old principle that
litigation must come to an end
with the final resolution of
previous and similar disputes
albeit at the final apex court,
in this instant the Supreme
Court of Ghana.
The
Plaintiffs/Appellants/Appellants,
hereafter referred to as the
Plaintiffs lodged an appeal
against the judgment of the
Court of Appeal dated 1st
December, 2011 which confirmed
an earlier decision of the High
Court, Sekondi which was
rendered on 15th
June, 2010 in favour of the 2nd
Defendant/Respondent/Respondent
hereafter referred to as the
Defendant.
FACTS OF THE
CASE
On the 1st
February 2007, the Plaintiffs
herein instituted Suit No
E1/16/07 in the High Court,
Sekondi against the Defendants
in which they claimed for
themselves and other developers,
the following reliefs:-
a. An
Order of Perpetual Injunction
Restraining the 1st
defendant from
deleting the leases made on West
Anaja Planning Scheme Sectors
B, C, D and f.
b. An
order compelling the 2nd
Defendant to show the source of
the Plan submitted to the 1st
Defendant for plotting.
c. An
order deleting the plotting of
the plan submitted to the 1st
Defendant by the 2nd
Defendant for plotting.
d.
Substantial damages against the
2nd Defendant for
harassment and threat of death.
In order to
understand the context of this
suit and the earlier suits
before it, it is desirable to
quote in extenso some of the
averments of the plaintiffs in
their supporting statement of
claim in respect of this suit
No. E1/16/07. We will therefore
reproduce paragraphs 1, 2, 3, 4,
5, 6 and 14 of the Plaintiffs
statement of claim therein.
These state as follows:-
1.
“The 1st
Plaintiff is the head of the
Ebiradze Family of Anaji whilst
the 2nd and 3rd
Plaintiffs are the chairmen and
Secretary of mount Zion
residents Association and have
instituted this action for
themselves and other residents
of the area within Sectors B, C,
D and F of West Anaji Planning
Scheme.
2.
Sometime ago, the 1st
Plaintiffs predecessors caused
the areas within Sectors A, B,
C, D, F and G of West Anaji
Planning Scheme to be zoned as
residential Plots.
3.
One
Mr. Nortey was seen developing a
plot within sector ‘C’ of West
Anaji Planning Scheme.
4.
The 1st
Plaintiffs predecessor Yaa Kwesi
instituted action against Mr.
Nortey and the 2nd
Defendant in the High Court
Sekondi and lost.
5.
During
the hearing no plans were
drawn but the litigation
centered on part of Sector ‘C’.
6.
The 2nd
Defendant did not counter claim,
but pleaded that his ancestor
purchased part of Basia Aya’s
land at a public auction without
disclosing the boundaries of the
land that was acquired neither
did he produce the certificate
of purchase.
14. The
Plaintiff says that since the 2nd
Defendant did not Counter -
Claim, neither did he give
evidence of his boundary nor a
plan drawn, the 1st
Defendant has no power to plot
any land for the 2nd
defendant and to delete any
leases.”
The 2nd
Defendant therein vehemently
denied those averments, and also
averred as follows in paragraphs
5, 6, (a), (b), (c), (d), 7, 8,
9, 10 and 11 of the amended
Defence and counterclaim as
follows:
5.
“In reaction to paragraphs 3, 4
and 5 of the statement of claim,
the plaintiff says that in suit
No. LS.25/92 entitled:
Ebusuapanyin Yaa Kwesi
as the head of Basia Aya’s
branch of the Ebiradze Family of
Anagye sued Arhin Davies, (the
present 2nd
Defendant) and Mr. Nortey
in the High Court, Sekondi.”
[It should be
noted that the reference to
Plaintiff therein should have
been [Defendants, and the
Plaintiff herein is the
successor to Ebusuapanin Yaa
[Kwesi who instituted that
case.]
6.
“By his said writ the Plaintiff
claimed for:
a.
Declaration of title to a large
part and parcel of land situate
at Anagye and bounded by the
lands of Ebiradze family of
Fijai, Nsona family of Anagye
then Noweh’s Ebiradze family of
Anagye.
b.
An
order quashing the purported
lease that has been made to
lease part of the land without
the consent and concurrence of
Plaintiff’s family.
c.
Damages for trespass
d.
An
order of perpetual injunction
restraining the Defendants,
their agents, servants, etc.
from having any dealing with the
land.
7.
The
Plaintiff lost this action and
appealed to the Court of Appeal
which also dismissed his appeal
and eventually to the Supreme
Court where also the Plaintiff
lost.”
8.
“The 2nd
Defendant contends that the
Plaintiffs are therefore
estopped by the said judgment
from claiming any part of the
said land against the 2nd
Defendant.
9.
The 2nd
Defendant says that by
paragraphs 5, 6, 11, 12, 13 and
14 of the statement of claim the
Plaintiffs are trying to re-open
the case which has been decided
against them.
10.
The 2nd
Defendant says that the 2nd
Defendant put in a plan which
was used in the case of L.T.C
Davies v Norweh made by one
Andrew Essien and certified by
him in 1927. The said case was
heard by the Supreme Court of
the Gold Coast Colony, Western
Province, Secondee held before
His Worship H.C.W Grimshaw,
Esquire on 10th day
of December 1912. This plan was
upheld by all the three Superior
Courts mentioned in paragraph 7
above.
11.
It was
this plan that was exhibited in
the Daily Graphic and has also
been submitted to the 1st
Defendant for plotting. The
original plan covers an area of
over 119 acres.
COUNTERCLAIM
“The 2nd
Defendant repeats paragraphs
1-14 and counterclaims for:
a.
Declaration of title to the land
in dispute
b.
Damages for trespass
c.
Recovery of possession
d.
Perpetual injunction against the
plaintiffs, their agents,
privies, assigns and their
workmen from interfering with
the 2nd Defendant’s
ownership and possession of the
said Land”.
From the
above pleadings in the instant
appeal and the previous suit, in
LS 25/92 intitutled
Ebusuapanyin Yaa Kwesi v Arhin
Davies and Another, what is
clear is that, the Plaintiff
herein and his predecessor both
took action against the 2nd
Defendant herein in respect of
portions of land which appear to
be similar in nature.
Whilst the
emphasis of the Plaintiff’s
action seems to be on the fact
that, the 2nd
Defendant did not disclose the
nature of the boundaries of the
Basia Aya’s land which the 2nd
Defendants predecessors
purchased at a public auction
and also did not produce any
relevant documents such as
certificate of purchase, or a
site plan, the emphasis of the 2nd
Defendants case on the other had
was that, once the Plaintiff
herein is the successor in title
to Ebusuapanyin Yaa Kwesi who
lost the action in LS 25/92
against him from the High Court
through the Court of Appeal to
this Supreme Court, the
Plaintiff is accordingly
estopped from claiming any part
of the said land against the 2nd
Defendant.
What is
actually of great moment to us
in this court is the contention
by the Defendant that all the
three Superior Courts have
upheld a 1927 plan which was
prepared by one Andrew Essien
and used in an earlier case of
LT.C. Davies v Norweh in
which certain vital declarations
against interest were made by
the Plaintiff’s predecessors in
title.
After a full
trial, in the High Court, the
learned trial Judge after
evaluation of the pleadings,
evidence and the law delivered
himself thus:
“To found
estoppels, the judgment pleaded
or relied on will determine
the person it affects. Where the
judgment is based on a judgment
in rem, the estoppels will
affect all persons in Ghana and
it will only affect parties or
their privies where the judgment
is in persona.
It is the 1st
Plaintiff’s case that he has
brought this action as
successor to their grantor
Ebusuapanyin Yaa Kwesi for and
on behalf of the 2nd
and 3rd Plaintiffs.
The said grantor had litigated
with the 2nd
Defendant Rev. Arhin Davies up
to the Supreme Court. Since
there is no contrary evidence to
this effect, I hold that the
parties to this action are same
as the case in LS 25/92.
Therefore, the principle of res
judicata will operate against
parties and their privies.
It is also
Plaintiff’s case that the 2nd
Defendant herein cannot rely on
a plan of the subject matter in
the litigation in case Number LS
25/92 and a different plan
tendered in this case as Exhibit
‘5’ to ground
estoppels.
In suit No.
LS 25/92, the subject matter
pleaded by Plaintiff was
described as follows:-
“…a large
part and parcel of land situate
at Anaji and bounded by the
lands of Ebiradze family of
Fijai, Nsona family of
Anaji then Norweh’s Ebiradze
family of Anaji.”
In the
current suit this was what the
plaintiff (sic) leaded for:-
“An order of
perpetual injunction restraining
the 1st defendant
from deleting the lease made on
West Anaji Planning Scheme
Sectors B, C, D and F.”
In his
evidence-in-chief, plaintiff
said:-
“That suit
was in respect of Sector ‘C’
plot demarcated for residential
purposes. At the Court, because
my former head of family did not
disclose the boundaries of that
plot, the suit was
dismissed.”
I wish to
state that, that suit was fully
tried and judgment delivered.
See exhibit ‘B’ and Exhibit 1”.
From the said
judgment, it is quite apparent
that the learned trial Judge
correctly appreciated the facts
of the case and applied the law
correctly. This is because, we
have in this judgment
established that the plaintiff’s
predecessor, Ebusuapanyin Yaa
Kwesi indeed litigated with the
2nd Defendant herein
and was a three time loser in
the High Court, Court of Appeal
and the Supreme Court.
What is also
germane to this appeal is that
the subject matter of this suit
and the previous suit appear to
be similar.
Are the
parcels of land indeed the same
or are different in nature?
Here again,
we are of the view that the
learned trial Judge correctly
made the analysis of the facts
and then came to the right
conclusions. For example, it is
clear from the record that the
Plaintiff’s predecessor in LS
25/92 failed to disclose the
boundaries of the land he
claimed and therefore lost the
action, notwithstanding the fact
that the 2nd
Defendant herein did not
counterclaim.
What indeed
is of great moment to us is the
lack of clarity or exactitude in
the nature of the description of
the land the subject matter of
the instant suit.
We have
indeed recognised the fact that,
in cases of this nature, the
most desirable thing to have
done was to have given
instructions for the preparation
of a composite plan for the area
in dispute. What this would
entail is that the area in
dispute in the previous suits
would have been plotted
alongside the area in dispute in
the instant suit.
The plotting
of the land in the instant suit
would then be used to
superimpose the area of land in
the previous suits and the
composite will then be used to
determine whether the areas
overlap.
We were
anxious about giving the above
scenario serious considerations,
but this soon evaporated into
thin air after an appraisal of
the same thoughts by Lartey JSC
in the judgment of the Supreme
Court in suit No. CA J4/10/04
dated 16th March 2005
intitutled Ebusuapanyin Yaa
Kwesi v Arhin Davies and Another
i.e LS 25/92 already
referred to supra.
Having lost
the action in the High Court as
was referred to supra, the
Plaintiff appealed to the Court
of Appeal which by a unanimous
decision delivered on 1st
December 2011 dismissed the said
appeal,
Still
undaunted, the plaintiffs
launched yet another appeal
against the said judgment to
this court which has resulted
into this judgment.
The following
are the grounds of appeal which
the plaintiff filed to this
court.
GROUNDS OF
APPEAL
i.
Exhibit 5 was produced
independently by the 2nd
defendant and therefore a
self-serving document; and the
Court of Appeal fell into the
same error as the Trial Court in
relying on this document for its
judgment.
ii.
The
evidence on record does not
support the holding that Exhibit
3 and Exhibit 5 are the same.
iii.
The
contents of exhibit 4 are
contrary to the case of the 2nd
defendant/
respondent/respondent. The Court
of Appeal failed to appreciate
the submissions made in respect
of Ground 3 (i) as contained in
the notice of appeal before it
and therefore failed to consider
this ground of appeal.
iv.
The 2nd
defendant/respondent/respondent
failed to lead evidence as
required by law in prove of his
counter claim, in particular, as
regards identity and/or
boundaries of the land the
subject matter of the counter
claim; and the Court of Appeal
ought to have upheld the appeal.
v.
The
defence of estoppels will not
avail the 2nd
defendant/ respondent/respondent
in the circumstances of this
case.
vi.
The 1st
defendant/respondent/respondent
failed to defend the action and
judgment should have been
entered against it in favour of
the plaintiff/
appellant/appellant.
From the
above grounds of appeal, it is
clear that the thrust of the
plaintiff’s complaint against
the judgments of the Court of
Appeal and by implication that
of the trial High Court all
hinge around the lack of clarity
of the boundaries of the land,
the identity and location of the
land and also the fact that,
having counterclaimed in the
instant suit, the 2nd
Defendant failed to prove his
counterclaim or the boundaries
of the land.
In addressing
these grounds of appeal, the
Court of Appeal in their
judgment delivered themselves
thus:-
“The 1st
Plaintiff/Appellant” who is the
plaintiff herein, “admitted
under cross examination that he
sued out a writ claiming a
declaration of title
among others to the land in
dispute but the action was
dismissed by the Courts. This
clearly shows that the
Plaintiff/Appellant has no
interest in the land he
purported to lease to third
parties which have been
registered by the 1st
Defendant/Respondent. It is
proper therefore for the 1st
Defendant to delete those leases
from the records. The argument
proffered in support of this
ground of appeal is
unsupportable and it is
dismissed.”
We in this
court find ourselves in total
agreement with the said findings
and conclusion and are not
prepared to disturb them.
On the other
grounds of appeal which have a
direct bearing on the identity
and plan of the land which was
used by the 2nd
Defendant to do his plotting and
lease to third parties, this is
how the Court of Appeal rendered
its opinion on the matter.
“It is true
that the plan which was admitted
by the trial court in the
case of L.T. C. Davies v
Norweh in 1927 is the same
as Exhibit 3 in he instant suit
and has neither compass bearings
nor grid references. In times
past when surveying had not
advanced to present levels such
plans were admissible especially
when drawn to scale as is the
case in Exhibit 3. With the
present scientific developments
in the art of surveying accurate
and geographic
specifications such as compass
bearings and grid lines are
required to make the
boundaries drawn on such plans
more scientifically verifiable.
Even without plans boundaries
were marked by such physical
features as trees, hills,
rivers, lakes and rocks etc. In
the absence of compass bearings
and grid lines boundaries could
also be determined by such
physical features. It was common
to have the boundaries of plans
bearings and grid lines to be
determined by such physical
features. In the light of this
the evidence of DW2 Alexander
Kwamina Sakey from pages 122 to
142 of the record of proceedings
is of vital importance. This
witness testified that they went
unto the land with Exhibit 3 and
the 2nd Defendant
pointed out his boundaries and
physical features like a cotton
tree, Ntankorfu village and a
pond. DW2 continued that pillars
were fixed and a Geographical
and Positioning System which
could give geographical
co-ordinates like grid values
and bearings was used to
determine the scientific
features of the
boundaries as shown by the 2nd
Defendant/Respondent on the
ground which also tallied with
the plan contained in Exhibit 3.
The print out from the
Geographical Positioning System
was plotted and sent to Survey
Department which also approved
it. The evidence of DW1, a
Principal Surveying Technician,
Daniel Okyere Asiedu is
significant. This witness
pointed out similarities in
Exhibits 3 and 5 and
concluded that “with these
features or boundaries Exhibit 5
is same as Exhibit 3.” He also
testified that the slight
difference of 0.773 of an acre
between the two exhibits is
tolerable or insignificant.”
The Court of
Appeal then expatiated on the
evidence led by DWI and DW2 both
of whom are experts in their
fields on exhibits 3 and 5 and
drew the necessary conclusions
on the failure of the plaintiff
to call expert evidence to
disprove what the DWI and DW2
had testified upon, prompting
the learned trial Judge to state
at page 143 of the record that
Counsel for the plaintiff can
make the necessary application
to also call expert survey
evidence if he found that
crucial to his case.
Based upon
the above findings and analysis,
the Court of Appeal then stated
categorically that Exhibit 5 is
not a self serving document
produced by the 2nd
Defendant but
“A
scientifically improved Exhibit
3 which has already been
accepted up to the Supreme
Court. There is also the
evidence of DWI that Exhibit 3
is the same as Exhibit 5.”
It should
indeed be noted that, in the
absence of verifiable scientific
Survey Plans, overt acts of
physical features like Anthills,
cemeteries, old settlements,
sacred groves, streams, rivers
and other features have always
been accepted and used to
indicate boundary features
between two adjoining lands.
On the
submissions by learned Counsel
for the Plaintiff that the
failure of the 2nd
Defendant to call boundary
owners in support of the
identity of the land is fatal to
their case, the Court of Appeal
delivered a lethal decision to
the following effect:-
“The
boundaries of the land the
parties are litigating over is
well known to the parties and
does not need boundary owners to
establish.” Emphasis
We have
earlier on stated that the
Supreme Court, in the previous
suit No. CA J4/10/04 dated 16th
March 2005 in the suit
intitutled Ebusuapanyin Yaa
Kwesi-Plaintiff/ Appellant v
Arhin Davies & Anr.-
Defendants/Respondent
delivered an incisive decision
which to us has removed all
doubts about the identity and
location of the land in dispute
as well as establish the lack of
candour on the part of the 1st
plaintiff and his team of legal
advisers.
This is what
Lartey JSC, speaking on behalf
of the Court said in that
judgment.
“It was also
part of the contention of the
plaintiff that the first
defendant, while tracing his
root of title from Basia Aya,
failed to show the identity,
the extent and position of the
land. It is difficult to
comprehend the force of this
argument coming as it were from
the plaintiff because when the
motion for appointment of a
surveyor was filed by counsel
for the defendants, it was the
same plaintiff who by his
affidavit of 4th
March 1994 opposed same on the
ground that the
issue in controversy did not
call for the making of a plan.
If the making of a plan was not
necessary in the trial, why
should he turn round to accuse
his opponents of failure to
identify the land in dispute or
show the extent and position of
it? By unwittingly resisting
the said application the
plaintiff failed to acknowledge
its effect to his own detriment.
He failed to realize that as the
plaintiff claiming in a land
litigation it was he who bore
the primary responsibility
or the burden of producing
evidence on the issue of a
surveyor’s plan to strengthen
his case. If this had
been done the entire
land he claims to own to the
exclusion of the defendants
would have been clear on the
evidence. I do not appreciate
the legal or moral basis for the
plaintiff’s attack against the
defendants on the issue of the
extent of the disputed land.”
Emphasis supplied.
From the
above quote from the judgment,
it is clear that the Supreme
Court actually considered the
issue of the non-preparation of
composite plans by the parties
in the previous suit and came to
the conclusion above.
In order to
respect the decision of the
panel that decided the above
case and considering the fact
that it was based on sound
deductive logic and reasoning,
we are unable to depart from it.
The above
constitute the main reason why
we decided to jettison the
Plaintiff’s request for a plan
and the complaint of over
reliance on exhibits 3 and 5
which to him are self serving
documents. Even though the said
arguments appeared attractive on
the surface they soon fizzled
out into insignificance when put
under close scrutiny.
What should
be noted by both litigants and
learned counsel is that, a
greater need of attention is
required of them when dealing
with land cases. This is because
land has become an asset of huge
economic benefit that a
lackaisidical approach which is
what we have seen as the rule
rather than the exception has
the recipe of denying whole
communities and generations yet
unborn of their birth right.
We have
observed that in the instant
case where the pleadings have
disclosed the plea of Res
Judicata as having been
established, there ought to have
been an assessment as to whether
that decision applied to the
parties and the subject matter
or not.
What is
worthy of note from the
pleadings and the evidence is
that there is consensus about
the application of the judgments
to the parties. The really vexed
issue is the subject matter,
i.e. whether the previous suits
apply to the subject matter of
the land in dispute in the
instant case.
Having
perused the judgments in the
previous suits, especially those
from the High Court, through to
the Supreme Court in suit No. LS
25/92, there is little doubt
that the parties are really
adidem on the identity of the
subject matter of the land as
well as it’s location.
If the
plaintiff had been vigilant from
the beginning and candid he
could have established his
claims in respect of the cases
with more particularity and
exactitude from the onset of the
legal battle. But it appears
that, the plaintiff changed the
character of his case with the
changing fortunes of his case in
the law courts.
There is a
public policy that litigation
must come to an end and that is
why there is a limit as to how
far one can go on the litigation
ladder. For now, the Supreme
Court is the highest court of
the land and having been there
where the very issues being
raised here had been argued and
dealt with, it will be the
highest breach of this age old
public policy that there must be
an end to litigation to allow
the plaintiff to profit from his
conduct.
Secondly, to
permit the plaintiff to subtly
mount another challenge to a
validly subsisting Supreme Court
judgment will be an insult and
abuse of the judicial and legal
process. Indeed, it appears that
the latter is a recent
phenomenon which has crept into
the legal system whereby
unsuccessful litigants are
advised by their legal advisers
to cleverly mount fresh suits
commencing from the trial courts
and seek to outwit the binding
nature of the previous decisions
against them. See cases like
Henderson v Henderson (1843) 3
Hare 100, Barrow v
Bankside Agency Ltd. [1996] 1
W.L.R. 257, at 260 where it
was reiterated that:
“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
forever and that a defendant
should not be oppressed by
successive suits. See also
NAOS Holding v Ghana Commercial
Bank [2011] SCGLR 492
In the
instant case, since we have come
to the conclusion that the
issues raised in the instant
appeal, though attractive had
been raised and dismissed by
this very Supreme Court, there
is no need to pursue this case
any further.
In view of
the above, the appeal herein is
dismissed as being without any
merit. The Court of Appeal
judgment of 1st
December 2011 is accordingly
affirmed.
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) S. O. A. ADINYIRA
(MRS)
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
JOHN MERCER
WITH HIM KAMIL MOHAMMED IDDRISU
FOR THE 1ST
PLAINTIFF/APPELLANT/ APPELLANT.
D. G.
CARSON FOR THE 2ND
DEFENDANT /RESPONDENT/RESPONDENT
----------------------------------------------------------------------------------------------------------------
JUDGMENT
----------------------------------------------------------------------------------------------------------------
JONES DOTSE
JSC:
This appeal
is an epitome of a phenomenon
that is gradually creeping into
the judicial and legal systems,
and this is the difficulty of
losing parties in previous
litigations accepting the
outcome of the decisions in
those cases thereby respecting
the age old principle that
litigation must come to an end
with the final resolution of
previous and similar disputes
albeit at the final apex court,
in this instant the Supreme
Court of Ghana.
The
Plaintiffs/Appellants/Appellants,
hereafter referred to as the
Plaintiffs lodged an appeal
against the judgment of the
Court of Appeal dated 1st
December, 2011 which confirmed
an earlier decision of the High
Court, Sekondi which was
rendered on 15th
June, 2010 in favour of the 2nd
Defendant/Respondent/Respondent
hereafter referred to as the
Defendant.
FACTS OF THE
CASE
On the 1st
February 2007, the Plaintiffs
herein instituted Suit No
E1/16/07 in the High Court,
Sekondi against the Defendants
in which they claimed for
themselves and other developers,
the following reliefs:-
a. An
Order of Perpetual Injunction
Restraining the 1st
defendant from
deleting the leases made on West
Anaja Planning Scheme Sectors
B, C, D and f.
b. An
order compelling the 2nd
Defendant to show the source of
the Plan submitted to the 1st
Defendant for plotting.
c. An
order deleting the plotting of
the plan submitted to the 1st
Defendant by the 2nd
Defendant for plotting.
d.
Substantial damages against the
2nd Defendant for
harassment and threat of death.
In order to
understand the context of this
suit and the earlier suits
before it, it is desirable to
quote in extenso some of the
averments of the plaintiffs in
their supporting statement of
claim in respect of this suit
No. E1/16/07. We will therefore
reproduce paragraphs 1, 2, 3, 4,
5, 6 and 14 of the Plaintiffs
statement of claim therein.
These state as follows:-
12.
“The 1st
Plaintiff is the head of the
Ebiradze Family of Anaji whilst
the 2nd and 3rd
Plaintiffs are the chairmen and
Secretary of mount Zion
residents Association and have
instituted this action for
themselves and other residents
of the area within Sectors B, C,
D and F of West Anaji Planning
Scheme.
13.
Sometime ago, the 1st
Plaintiffs predecessors caused
the areas within Sectors A, B,
C, D, F and G of West Anaji
Planning Scheme to be zoned as
residential Plots.
14.
One
Mr. Nortey was seen developing a
plot within sector ‘C’ of West
Anaji Planning Scheme.
15.
The 1st
Plaintiffs predecessor Yaa Kwesi
instituted action against Mr.
Nortey and the 2nd
Defendant in the High Court
Sekondi and lost.
16.
During
the hearing no plans were
drawn but the litigation
centered on part of Sector ‘C’.
17.
The 2nd
Defendant did not counter claim,
but pleaded that his ancestor
purchased part of Basia Aya’s
land at a public auction without
disclosing the boundaries of the
land that was acquired neither
did he produce the certificate
of purchase.
14. The
Plaintiff says that since the 2nd
Defendant did not Counter -
Claim, neither did he give
evidence of his boundary nor a
plan drawn, the 1st
Defendant has no power to plot
any land for the 2nd
defendant and to delete any
leases.”
The 2nd
Defendant therein vehemently
denied those averments, and also
averred as follows in paragraphs
5, 6, (a), (b), (c), (d), 7, 8,
9, 10 and 11 of the amended
Defence and counterclaim as
follows:
5.
“In reaction to paragraphs 3, 4
and 5 of the statement of claim,
the plaintiff says that in suit
No. LS.25/92 entitled:
Ebusuapanyin Yaa Kwesi
as the head of Basia Aya’s
branch of the Ebiradze Family of
Anagye sued Arhin Davies, (the
present 2nd
Defendant) and Mr. Nortey
in the High Court, Sekondi.”
[It should be
noted that the reference to
Plaintiff therein should have
been [Defendants, and the
Plaintiff herein is the
successor to Ebusuapanin Yaa
[Kwesi who instituted that
case.]
6.
“By his said writ the Plaintiff
claimed for:
e.
Declaration of title to a large
part and parcel of land situate
at Anagye and bounded by the
lands of Ebiradze family of
Fijai, Nsona family of Anagye
then Noweh’s Ebiradze family of
Anagye.
f.
An
order quashing the purported
lease that has been made to
lease part of the land without
the consent and concurrence of
Plaintiff’s family.
g.
Damages for trespass
h.
An
order of perpetual injunction
restraining the Defendants,
their agents, servants, etc.
from having any dealing with the
land.
18.
The
Plaintiff lost this action and
appealed to the Court of Appeal
which also dismissed his appeal
and eventually to the Supreme
Court where also the Plaintiff
lost.”
19.
“The 2nd
Defendant contends that the
Plaintiffs are therefore
estopped by the said judgment
from claiming any part of the
said land against the 2nd
Defendant.
20.
The 2nd
Defendant says that by
paragraphs 5, 6, 11, 12, 13 and
14 of the statement of claim the
Plaintiffs are trying to re-open
the case which has been decided
against them.
21.
The 2nd
Defendant says that the 2nd
Defendant put in a plan which
was used in the case of L.T.C
Davies v Norweh made by one
Andrew Essien and certified by
him in 1927. The said case was
heard by the Supreme Court of
the Gold Coast Colony, Western
Province, Secondee held before
His Worship H.C.W Grimshaw,
Esquire on 10th day
of December 1912. This plan was
upheld by all the three Superior
Courts mentioned in paragraph 7
above.
22.
It was
this plan that was exhibited in
the Daily Graphic and has also
been submitted to the 1st
Defendant for plotting. The
original plan covers an area of
over 119 acres.
COUNTERCLAIM
“The 2nd
Defendant repeats paragraphs
1-14 and counterclaims for:
e.
Declaration of title to the land
in dispute
f.
Damages for trespass
g.
Recovery of possession
h.
Perpetual injunction against the
plaintiffs, their agents,
privies, assigns and their
workmen from interfering with
the 2nd Defendant’s
ownership and possession of the
said Land”.
From the
above pleadings in the instant
appeal and the previous suit, in
LS 25/92 intitutled
Ebusuapanyin Yaa Kwesi v Arhin
Davies and Another, what is
clear is that, the Plaintiff
herein and his predecessor both
took action against the 2nd
Defendant herein in respect of
portions of land which appear to
be similar in nature.
Whilst the
emphasis of the Plaintiff’s
action seems to be on the fact
that, the 2nd
Defendant did not disclose the
nature of the boundaries of the
Basia Aya’s land which the 2nd
Defendants predecessors
purchased at a public auction
and also did not produce any
relevant documents such as
certificate of purchase, or a
site plan, the emphasis of the 2nd
Defendants case on the other had
was that, once the Plaintiff
herein is the successor in title
to Ebusuapanyin Yaa Kwesi who
lost the action in LS 25/92
against him from the High Court
through the Court of Appeal to
this Supreme Court, the
Plaintiff is accordingly
estopped from claiming any part
of the said land against the 2nd
Defendant.
What is
actually of great moment to us
in this court is the contention
by the Defendant that all the
three Superior Courts have
upheld a 1927 plan which was
prepared by one Andrew Essien
and used in an earlier case of
LT.C. Davies v Norweh in
which certain vital declarations
against interest were made by
the Plaintiff’s predecessors in
title.
After a full
trial, in the High Court, the
learned trial Judge after
evaluation of the pleadings,
evidence and the law delivered
himself thus:
“To found
estoppels, the judgment pleaded
or relied on will determine
the person it affects. Where the
judgment is based on a judgment
in rem, the estoppels will
affect all persons in Ghana and
it will only affect parties or
their privies where the judgment
is in persona.
It is the 1st
Plaintiff’s case that he has
brought this action as
successor to their grantor
Ebusuapanyin Yaa Kwesi for and
on behalf of the 2nd
and 3rd Plaintiffs.
The said grantor had litigated
with the 2nd
Defendant Rev. Arhin Davies up
to the Supreme Court. Since
there is no contrary evidence to
this effect, I hold that the
parties to this action are same
as the case in LS 25/92.
Therefore, the principle of res
judicata will operate against
parties and their privies.
It is also
Plaintiff’s case that the 2nd
Defendant herein cannot rely on
a plan of the subject matter in
the litigation in case Number LS
25/92 and a different plan
tendered in this case as Exhibit
‘5’ to ground
estoppels.
In suit No.
LS 25/92, the subject matter
pleaded by Plaintiff was
described as follows:-
“…a large
part and parcel of land situate
at Anaji and bounded by the
lands of Ebiradze family of
Fijai, Nsona family of
Anaji then Norweh’s Ebiradze
family of Anaji.”
In the
current suit this was what the
plaintiff (sic) leaded for:-
“An order of
perpetual injunction restraining
the 1st defendant
from deleting the lease made on
West Anaji Planning Scheme
Sectors B, C, D and F.”
In his
evidence-in-chief, plaintiff
said:-
“That suit
was in respect of Sector ‘C’
plot demarcated for residential
purposes. At the Court, because
my former head of family did not
disclose the boundaries of that
plot, the suit was
dismissed.”
I wish to
state that, that suit was fully
tried and judgment delivered.
See exhibit ‘B’ and Exhibit 1”.
From the said
judgment, it is quite apparent
that the learned trial Judge
correctly appreciated the facts
of the case and applied the law
correctly. This is because, we
have in this judgment
established that the plaintiff’s
predecessor, Ebusuapanyin Yaa
Kwesi indeed litigated with the
2nd Defendant herein
and was a three time loser in
the High Court, Court of Appeal
and the Supreme Court.
What is also
germane to this appeal is that
the subject matter of this suit
and the previous suit appear to
be similar.
Are the
parcels of land indeed the same
or are different in nature?
Here again,
we are of the view that the
learned trial Judge correctly
made the analysis of the facts
and then came to the right
conclusions. For example, it is
clear from the record that the
Plaintiff’s predecessor in LS
25/92 failed to disclose the
boundaries of the land he
claimed and therefore lost the
action, notwithstanding the fact
that the 2nd
Defendant herein did not
counterclaim.
What indeed
is of great moment to us is the
lack of clarity or exactitude in
the nature of the description of
the land the subject matter of
the instant suit.
We have
indeed recognised the fact that,
in cases of this nature, the
most desirable thing to have
done was to have given
instructions for the preparation
of a composite plan for the area
in dispute. What this would
entail is that the area in
dispute in the previous suits
would have been plotted
alongside the area in dispute in
the instant suit.
The plotting
of the land in the instant suit
would then be used to
superimpose the area of land in
the previous suits and the
composite will then be used to
determine whether the areas
overlap.
We were
anxious about giving the above
scenario serious considerations,
but this soon evaporated into
thin air after an appraisal of
the same thoughts by Lartey JSC
in the judgment of the Supreme
Court in suit No. CA J4/10/04
dated 16th March 2005
intitutled Ebusuapanyin Yaa
Kwesi v Arhin Davies and Another
i.e LS 25/92 already
referred to supra.
Having lost
the action in the High Court as
was referred to supra, the
Plaintiff appealed to the Court
of Appeal which by a unanimous
decision delivered on 1st
December 2011 dismissed the said
appeal,
Still
undaunted, the plaintiffs
launched yet another appeal
against the said judgment to
this court which has resulted
into this judgment.
The following
are the grounds of appeal which
the plaintiff filed to this
court.
GROUNDS OF
APPEAL
vii.
Exhibit 5 was produced
independently by the 2nd
defendant and therefore a
self-serving document; and the
Court of Appeal fell into the
same error as the Trial Court in
relying on this document for its
judgment.
viii.
The
evidence on record does not
support the holding that Exhibit
3 and Exhibit 5 are the same.
ix.
The
contents of exhibit 4 are
contrary to the case of the 2nd
defendant/
respondent/respondent. The Court
of Appeal failed to appreciate
the submissions made in respect
of Ground 3 (i) as contained in
the notice of appeal before it
and therefore failed to consider
this ground of appeal.
x.
The 2nd
defendant/respondent/respondent
failed to lead evidence as
required by law in prove of his
counter claim, in particular, as
regards identity and/or
boundaries of the land the
subject matter of the counter
claim; and the Court of Appeal
ought to have upheld the appeal.
xi.
The
defence of estoppels will not
avail the 2nd
defendant/ respondent/respondent
in the circumstances of this
case.
xii.
The 1st
defendant/respondent/respondent
failed to defend the action and
judgment should have been
entered against it in favour of
the plaintiff/
appellant/appellant.
From the
above grounds of appeal, it is
clear that the thrust of the
plaintiff’s complaint against
the judgments of the Court of
Appeal and by implication that
of the trial High Court all
hinge around the lack of clarity
of the boundaries of the land,
the identity and location of the
land and also the fact that,
having counterclaimed in the
instant suit, the 2nd
Defendant failed to prove his
counterclaim or the boundaries
of the land.
In addressing
these grounds of appeal, the
Court of Appeal in their
judgment delivered themselves
thus:-
“The 1st
Plaintiff/Appellant” who is the
plaintiff herein, “admitted
under cross examination that he
sued out a writ claiming a
declaration of title
among others to the land in
dispute but the action was
dismissed by the Courts. This
clearly shows that the
Plaintiff/Appellant has no
interest in the land he
purported to lease to third
parties which have been
registered by the 1st
Defendant/Respondent. It is
proper therefore for the 1st
Defendant to delete those leases
from the records. The argument
proffered in support of this
ground of appeal is
unsupportable and it is
dismissed.”
We in this
court find ourselves in total
agreement with the said findings
and conclusion and are not
prepared to disturb them.
On the other
grounds of appeal which have a
direct bearing on the identity
and plan of the land which was
used by the 2nd
Defendant to do his plotting and
lease to third parties, this is
how the Court of Appeal rendered
its opinion on the matter.
“It is true
that the plan which was admitted
by the trial court in the
case of L.T. C. Davies v
Norweh in 1927 is the same
as Exhibit 3 in he instant suit
and has neither compass bearings
nor grid references. In times
past when surveying had not
advanced to present levels such
plans were admissible especially
when drawn to scale as is the
case in Exhibit 3. With the
present scientific developments
in the art of surveying accurate
and geographic
specifications such as compass
bearings and grid lines are
required to make the
boundaries drawn on such plans
more scientifically verifiable.
Even without plans boundaries
were marked by such physical
features as trees, hills,
rivers, lakes and rocks etc. In
the absence of compass bearings
and grid lines boundaries could
also be determined by such
physical features. It was common
to have the boundaries of plans
bearings and grid lines to be
determined by such physical
features. In the light of this
the evidence of DW2 Alexander
Kwamina Sakey from pages 122 to
142 of the record of proceedings
is of vital importance. This
witness testified that they went
unto the land with Exhibit 3 and
the 2nd Defendant
pointed out his boundaries and
physical features like a cotton
tree, Ntankorfu village and a
pond. DW2 continued that pillars
were fixed and a Geographical
and Positioning System which
could give geographical
co-ordinates like grid values
and bearings was used to
determine the scientific
features of the
boundaries as shown by the 2nd
Defendant/Respondent on the
ground which also tallied with
the plan contained in Exhibit 3.
The print out from the
Geographical Positioning System
was plotted and sent to Survey
Department which also approved
it. The evidence of DW1, a
Principal Surveying Technician,
Daniel Okyere Asiedu is
significant. This witness
pointed out similarities in
Exhibits 3 and 5 and
concluded that “with these
features or boundaries Exhibit 5
is same as Exhibit 3.” He also
testified that the slight
difference of 0.773 of an acre
between the two exhibits is
tolerable or insignificant.”
The Court of
Appeal then expatiated on the
evidence led by DWI and DW2 both
of whom are experts in their
fields on exhibits 3 and 5 and
drew the necessary conclusions
on the failure of the plaintiff
to call expert evidence to
disprove what the DWI and DW2
had testified upon, prompting
the learned trial Judge to state
at page 143 of the record that
Counsel for the plaintiff can
make the necessary application
to also call expert survey
evidence if he found that
crucial to his case.
Based upon
the above findings and analysis,
the Court of Appeal then stated
categorically that Exhibit 5 is
not a self serving document
produced by the 2nd
Defendant but
“A
scientifically improved Exhibit
3 which has already been
accepted up to the Supreme
Court. There is also the
evidence of DWI that Exhibit 3
is the same as Exhibit 5.”
It should
indeed be noted that, in the
absence of verifiable scientific
Survey Plans, overt acts of
physical features like Anthills,
cemeteries, old settlements,
sacred groves, streams, rivers
and other features have always
been accepted and used to
indicate boundary features
between two adjoining lands.
On the
submissions by learned Counsel
for the Plaintiff that the
failure of the 2nd
Defendant to call boundary
owners in support of the
identity of the land is fatal to
their case, the Court of Appeal
delivered a lethal decision to
the following effect:-
“The
boundaries of the land the
parties are litigating over is
well known to the parties and
does not need boundary owners to
establish.” Emphasis
We have
earlier on stated that the
Supreme Court, in the previous
suit No. CA J4/10/04 dated 16th
March 2005 in the suit
intitutled Ebusuapanyin Yaa
Kwesi-Plaintiff/ Appellant v
Arhin Davies & Anr.-
Defendants/Respondent
delivered an incisive decision
which to us has removed all
doubts about the identity and
location of the land in dispute
as well as establish the lack of
candour on the part of the 1st
plaintiff and his team of legal
advisers.
This is what
Lartey JSC, speaking on behalf
of the Court said in that
judgment.
“It was also
part of the contention of the
plaintiff that the first
defendant, while tracing his
root of title from Basia Aya,
failed to show the identity,
the extent and position of the
land. It is difficult to
comprehend the force of this
argument coming as it were from
the plaintiff because when the
motion for appointment of a
surveyor was filed by counsel
for the defendants, it was the
same plaintiff who by his
affidavit of 4th
March 1994 opposed same on the
ground that the
issue in controversy did not
call for the making of a plan.
If the making of a plan was not
necessary in the trial, why
should he turn round to accuse
his opponents of failure to
identify the land in dispute or
show the extent and position of
it? By unwittingly resisting
the said application the
plaintiff failed to acknowledge
its effect to his own detriment.
He failed to realize that as the
plaintiff claiming in a land
litigation it was he who bore
the primary responsibility
or the burden of producing
evidence on the issue of a
surveyor’s plan to strengthen
his case. If this had
been done the entire
land he claims to own to the
exclusion of the defendants
would have been clear on the
evidence. I do not appreciate
the legal or moral basis for the
plaintiff’s attack against the
defendants on the issue of the
extent of the disputed land.”
Emphasis supplied.
From the
above quote from the judgment,
it is clear that the Supreme
Court actually considered the
issue of the non-preparation of
composite plans by the parties
in the previous suit and came to
the conclusion above.
In order to
respect the decision of the
panel that decided the above
case and considering the fact
that it was based on sound
deductive logic and reasoning,
we are unable to depart from it.
The above
constitute the main reason why
we decided to jettison the
Plaintiff’s request for a plan
and the complaint of over
reliance on exhibits 3 and 5
which to him are self serving
documents. Even though the said
arguments appeared attractive on
the surface they soon fizzled
out into insignificance when put
under close scrutiny.
What should
be noted by both litigants and
learned counsel is that, a
greater need of attention is
required of them when dealing
with land cases. This is because
land has become an asset of huge
economic benefit that a
lackaisidical approach which is
what we have seen as the rule
rather than the exception has
the recipe of denying whole
communities and generations yet
unborn of their birth right.
We have
observed that in the instant
case where the pleadings have
disclosed the plea of Res
Judicata as having been
established, there ought to have
been an assessment as to whether
that decision applied to the
parties and the subject matter
or not.
What is
worthy of note from the
pleadings and the evidence is
that there is consensus about
the application of the judgments
to the parties. The really vexed
issue is the subject matter,
i.e. whether the previous suits
apply to the subject matter of
the land in dispute in the
instant case.
Having
perused the judgments in the
previous suits, especially those
from the High Court, through to
the Supreme Court in suit No. LS
25/92, there is little doubt
that the parties are really
adidem on the identity of the
subject matter of the land as
well as it’s location.
If the
plaintiff had been vigilant from
the beginning and candid he
could have established his
claims in respect of the cases
with more particularity and
exactitude from the onset of the
legal battle. But it appears
that, the plaintiff changed the
character of his case with the
changing fortunes of his case in
the law courts.
There is a
public policy that litigation
must come to an end and that is
why there is a limit as to how
far one can go on the litigation
ladder. For now, the Supreme
Court is the highest court of
the land and having been there
where the very issues being
raised here had been argued and
dealt with, it will be the
highest breach of this age old
public policy that there must be
an end to litigation to allow
the plaintiff to profit from his
conduct.
Secondly, to
permit the plaintiff to subtly
mount another challenge to a
validly subsisting Supreme Court
judgment will be an insult and
abuse of the judicial and legal
process. Indeed, it appears that
the latter is a recent
phenomenon which has crept into
the legal system whereby
unsuccessful litigants are
advised by their legal advisers
to cleverly mount fresh suits
commencing from the trial courts
and seek to outwit the binding
nature of the previous decisions
against them. See cases like
Henderson v Henderson (1843) 3
Hare 100, Barrow v
Bankside Agency Ltd. [1996] 1
W.L.R. 257, at 260 where it
was reiterated that:
“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
forever and that a defendant
should not be oppressed by
successive suits. See also
NAOS Holding v Ghana Commercial
Bank [2011] SCGLR 492
In the
instant case, since we have come
to the conclusion that the
issues raised in the instant
appeal, though attractive had
been raised and dismissed by
this very Supreme Court, there
is no need to pursue this case
any further.
In view of
the above, the appeal herein is
dismissed as being without any
merit. The Court of Appeal
judgment of 1st
December 2011 is accordingly
affirmed.
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) S. O. A. ADINYIRA
(MRS)
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) J. B. AKAMBA
JUSTICE
OF THE SUPREME COURT
COUNSEL
JOHN MERCER
WITH HIM KAMIL MOHAMMED IDDRISU
FOR THE 1ST
PLAINTIFF/APPELLANT/ APPELLANT.
D. G.
CARSON FOR THE 2ND
DEFENDANT
/RESPONDENT/RESPONDENT.
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