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Land - Value of land - Failure
or refusal to carry out the
order – Abuse of the court’s
process - Whether or not
there was a pre-existing right
of a plaintiff against a
defendant
HEADNOTES
The plaintiff
commenced this action more than
three years after the order in
the previous suit was made. In
the present action it is the
contention of the plaintiff that
the value of the land in the
area in dispute had not been the
same after the delivery of the
judgment as the defendant had
failed or refused to carry out
the order the amount of ¢2,000
per acre as rent was meaningless
as at the time the writ
culminating in this appeal was
issued. It was further pleaded
in the statement of claim that
the extra land of the plaintiff
was not covered by the agreement
and had not been formally
granted to the defendants’
compensation which should be
commensurate to the present
value of land around New
Ashongman, Accra where the land
in dispute is situate.
HELD
The
discretion vested in the trial
court could only be overturned
if it is shown that the Lower
Court failed to exercise the
discretion fairly or proceeded
on wrong principles of law. The
appellant failed to convince
this court that there was unfair
exercise of judicial discretion
in making the award for
compensation. We deem it fit not
to disturb the award which was
endorsed by the Court of Appeal.
We find no merit in the appeal
and we dismiss same.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Amoako
atta IV .v. Nuamah [1963]
IGLR 432
Re Chinery;
Ex parte Chinery [1884] 12 QBD
342
Re Ridell, Ex
parte Earl of Strathmore [1888]
20 QBD 512
Achoro v. Akanfela [1996-97]
SCGLR 209,
Koglex Ltd № 2 v. Field [2000]
SCGLR 175,
Adu v. Ahamah [2007 – 2008]
SCGLR 143
Kish v.
Taylor [1911] I KB 624
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ANIN YEBOAH, JSC:
COUNSEL
W.A.N.ADUMUA-BOSSMAN FOR THE
DEFENDANTS/APPELLANTS/APPELLANTS.
K. FREMPONG
BOADU FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS
.
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
ANIN YEBOAH, JSC:
The facts of this appeal appear
not to be in controversy. The
plaintiff/Respondent (who shall
hereafter be referred to as the
plaintiff) commenced an action
against the defendant/appellants
(who shall be referred to as the
defendant) in this appeal at the
Fast Track High Court, Accra.
The action was brought in a
representative capacity by the
plaintiff suing as the head and
lawful representative of Ayaa
Kwabla family.
It appeared that in a previous
suit titled: suit № 1/2001:
IDDDRISU AMAA TETTEY V. WINFRED
OTUATO ARYEH & OR, the trial
judge, His Lordship Mr. Justice
Victor Ofoe had on 22/08/2002
determined a land suit in favour
of the plaintiff herein and made
far-reaching consequential
orders in favour of the
plaintiff against the
defendants.
For a fuller record, the order
which the learned judge made
that resulted in the
commencement of this case on
appeal before us is as follows:
“The understanding I will put on
Exhibit “c” is that defendants’
site plan showing an area of
336.26 acres has plaintiff’s
land of about 200 acres. On
each acre of 200 acres the
parties agree that the
defendants are to pay ¢2000.
Defendants have occupied further
plots of the plaintiff the
parties describe these as
residential plot. A
superimposition of the
defendants site plan and that of
the plaintiff’s and a survey of
defendants’ site plan in Exhibit
1 of area 336.26 acres on the
ground should be able to carve
out the 200 acres the subject
matter of Exhibit C. This
survey work should also be able
to carve out the average on
which the residential plots are
for the appropriate compensation
to be paid by the defendants to
the plaintiff. I will order
that completion of the survey
work by a surveyor agreed upon
by the parties the defendants
pays the balance if any on the
200 acres or more after
deduction of the ¢5 million
already paid by the defendants”
We have quoted ad longum, the
order made by the learned trial
judge which the defendants
herein did not find it necessary
or refused to carry out. The
plaintiff commenced this action
more than three years after the
order in the previous suit was
made. In the present action it
is the contention of the
plaintiff that the value of the
land in the area in dispute had
not been the same after the
delivery of the judgment as the
defendant had failed or refused
to carry out the order the
amount of ¢2,000 per acre as
rent was meaningless as at the
time the writ culminating in
this appeal was issued. It was
further pleaded in the statement
of claim that the extra land of
the plaintiff was not covered by
the agreement and had not been
formally granted to the
defendants’ compensation which
should be commensurate to the
present value of land around New
Ashongman, Accra where the land
in dispute is situate.
Indeed on the plaintiff’s side
of the case very few issues
emerged for determination.
Notable amongst them were:
whether or not ever since
29/09/1993 the defendants have
paid the ¢2000.00 amount as rent
to the plaintiff, whether in the
present circumstances the agreed
ground rent of ¢2000 per acre as
amount rent ought to be
received, and lastly whether it
is not lawful for defendants to
pay compensation for the extra
land taken by the defendants at
the current value in the
neighborhood.
If the defendants had complied
with the orders made by the
learned trial judge in the
earlier suit it would have been
obvious that the matter would
have rested there. The judgment
declared what was to be given to
the plaintiff by the defendants.
Looking at the orders made, it
was up to the plaintiff who was
adjudged to recover from the
defendants the land and ground
rent to have resorted to any
known process of execution
provided by the Rules of Court.
In our opinion, the judgment
merely declared the existing
liability between the parties.
In the case of AMOAKO ATTA IV
.V. NUAMAH [1963] IGLR 432,
the Supreme Court relying on the
cases in RE CHINERY; EXPARTE
CHINERY [1884] 12 QBD 342 and RE
RIDELL, EX PARTE EARL OF
STRATHMORE [1888] 20 QBD 512
said of a judgment as follows;
“A judgment must ascertain or
establish a previously existing
liability of a defendant to a
plaintiff or it must determine
in favour of a plaintiff or of a
defendant the question whether
there was a pre-existing right
of a plaintiff against a
defendant”
For purposes of this opinion we
adopt the above statement as
regards what a judgment must
establish or ascertain. The
learned trial judge who by
chance was the same trial judge
in the first suit said in his
judgment as follows:
“From the judgment in the
earlier suit, I believe I
determined the issue of the 200
acres and its payment at ¢2000
per acre. Thus there was a
judgment clothing the plaintiff
with authority to go into
execution. It is my view that,
the judgment is still
outstanding for him to enforce.
I do not see my way clear
granting an upward review of
ground rent which the parties
agreed upon at ¢2,000 and
accepted by the court in the
earlier judgment. Why should a
judgment creditor fail for
unknown reason to go into
execution and after almost 4
years go back to court for an
upward review of the judgment
debt? I think I will refuse the
plaintiff claim (a) asking for
an upward review of ground rent
for the 200 acres”
The resort to the trial court
for another judgment to enforce
a subsisting judgment to us is
inappropriate. It was up to the
plaintiff in the earlier suit to
have enforced it against the
defendant. In cases in which a
court of competent jurisdiction
decrees an act to be done
forthwith and there is clear
non-compliance by a party
directed to do the act, the
courts jurisdiction is usually
invoked to ensure compliance by
known judicial processes. It
was therefore an abuse of the
court’s process for learned
counsel the plaintiff to have
endorsed the writ in this case
for relief (a) to seek an upward
review of rent almost four years
after the order in favour of the
plaintiff was made.
It has not been pointed out to
us that a stay of execution was
granted by any court of
competent jurisdiction. We find
the remark by the trial judge
condemning the step to enforce
the order by a fresh writ
appropriate.
We find from the record of
proceedings before us that no
effort in procedure was made to
have the relief (a) endorsed or
the writ of summons to be struck
out as an abuse of the court’s
process. If parties elect to
enforce an order from a court of
competent jurisdiction by
resorting to a fresh action as
in this case before us,
litigation would never end. It
is a principle of law that: it
is for the common good that
there should be an end to
litigation – Interest rei
publical ut sit finis litum?
In this appeal, counsel for the
defendant filed only one ground
of appeal to seek the reversal
of the judgment of the Court of
Appeal, that, the judgment is
against the weight of evidence
on record. We found that no
attempt was made to show that
the judgment was against the
weight of evidence even though
the onus was squarely on the
defendant.
In his written submission before
us, learned counsel, with due
respect to him, could not
convince us that the evidence
led on behalf of his client was
such that it could have tilted
the scales in his favour. It was
also not pointed out that the
evidence from the plaintiff did
not match up to the standard
required in law. In KOJO V.
BONSIE [1953] 14 WACA
242-243, FOSTER – SUTTON P
said;
“The presumption is that the
decision of the trial court on
the facts was right, and in
order to succeed, the appellant
must displace that presumption”
We have considered the evidence
led in this case by both parties
and it appeared to us that there
was sufficient evidence from the
judgment of the first suit to
clearly support the claim of the
plaintiff. Both courts find
against the defendant on the
facts and we have not been
convinced in the least to
disturb this findings in favour
of the appellant. See:
ACHORO V. AKANFELA [1996-97]
SCGLR 209, KOGLEX LTD № 2 V.
FIELD [2000]
SCGLR 175, ADU V. AHAMAH
[2007 – 2008] SCGLR 143 which
support the above principle that
as final appellate court, we
should be slow in disturbing the
concurrent findings of facts
unless genuine grounds for doing
so exists.
In our respectful view, the
learned trial judge who dealt
with the case at the High Court
ought to have struck out relief
(a) when the learned trial judge
himself found same to be an
abuse of the court’s process. It
is a principle of law that the
court must invoke its inherent
jurisdiction to save itself from
abuses. This case offers a
glaring example in so far as
relief (a) is concerned. We also
observed that the plaintiff
after waiting for about four (4)
years and asking for an upward
review of rent was seeking to
take advantage of his own wrong,
something the law has always
frowned upon, as was made clear
by Fletcher – Moulton L. J in
KISH V. TAYLOR [1911] I KB
624 as follows;
“A man may not take advantage of
his own wrong. He may not plead
in his own interest a self
–created necessity”
We think that both the learned
trial judge and the Court of
Appeal were right when they
rejected the upward review of
the ground rent, which was as a
result of plaintiff’s own
inability to enforce the order
made in his favour.
On the claim for compensation,
it was obvious that this claim
was borne out by the available
evidence on record. At the Court
of Appeal, the learned judges
based the award on the available
evidence before the trial
court. The Court of Appeal
stated in its judgment as
follows;
“Based on the above evidence and
the fact that the Defendants
testified that they were
businessmen and have spent a lot
improving the land with
facilities, the trial court
awarded ¢50,000,000.00 per acre
as compensation for the
plaintiff.
From the evidence on record, I
have no good cause to disturb
the award made by the trial
judge…”
It is the duty of the party who
complains against an award as
excessive to demonstrate to the
appellate court that the trial
court proceeded on wrong
principles of law or did not
take into consideration the
circumstances of the case. The
discretion vested in the trial
court could only be overturned
if it is shown that the Lower
Court failed to exercise the
discretion fairly or proceeded
on wrong principles of law. The
appellant failed to convince
this court that there was unfair
exercise of judicial discretion
in making the award for
compensation. We deem it fit not
to disturb the award which was
endorsed by the Court of Appeal.
We find no merit in the appeal
and we dismiss same.
ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
S. A. BROBBEY
JUSTICE OF
THE SUPREME COURT
J. ANSAH
JUSTICE OF
THE SUPREME COURT
J. V. M. DOTSE
JUSTICE OF
THE SUPREME COURT
P. BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
COUNSEL:
W.A.N.ADUMUA-BOSSMAN FOR THE
DEFENDANTS/APPELLANTS/APPELLANTS.
K. FREMPONG
BOADU FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS.
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