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Practice and procedure –
Judgment – Admissions – Issues
set down for determination and
plaintiff testifying in support
of his case – Defendant applying
for judgment on admissions in
course of hearing – Plaintiff
denying alleged admissions –
Judge terminating hearing and
entering judgment for defendant
– Court not competent to stop
plaintiff from completing
testimony – High Court (Civil
Procedure) Rules 1954 (LN 140A)
Or 32 r 6.
The plaintiff instituted an
action in the High Court for a
declaration that the defendant
had forfeited his right to farm
on the disputed land because the
defendant had laid adverse claim
to it. He therefore claimed
recovery of possession of the
land. Pleadings were filed and
hearing commenced. Before the
plaintiff closed his case, the
defendant filed an application
for the dismissal of the claim
on admissions by the plaintiff.
The defendant denied the alleged
admissions. The trial judge
upheld the application,
terminated further hearing and
gave judgment for the defendant.
The plaintiff appealed,
complaining that it was contrary
to natural justice for the court
to deny him the opportunity to
state his case in full and that
the decision had occasioned
substantial miscarriage of
justice.
Held,
there was no legal justification
for the procedure adopted by the
court in stopping the plaintiff
from completing his testimony
and then giving judgment against
him. The appeal would be allowed
and retrial ordered before
another judge.
James Ahenkorah
for the appellant.
No appearance for the
respondents.
APPEAL from the judgment of the
High Court.
ESSIEM JA.
This is an appeal against a
decision of Lamptey J in which
the learned judge dismissed the
plaintiff-appellant's claim
before the High Court. The
reliefs sought in the High Court
were as follows:
“(1) Declaration that by
adversely claiming absolute
title against the plaintiff to
all that land near Akim Adowsena
commonly known and called
Ajenjua (hereinafter referred to
as the Ajenjua land), the
defendant, his agents servants
and grantees have forfeited the
right to farm upon or otherwise
occupy the said Ajenjua land or
any portion thereof.
(2) Recovery of possession of
the said Ajenjua land occupied
by the defendant, his agents
servants or grantees.”
The parties filed their
pleadings and the following
issues were set down for
determination:
“(i) Whether the inhabitants of
Ajenjua were immigrants who
obtained plaintiff's permission
to settle on Adowsena land.
(ii) Whether the inhabitants of
Ajenjua fled and their
settlement consequently fell
into ruins.
(iii) Whether the fact that
defendant does not owe political
allegiance to the plaintiff is
fatal to plaintiff's claim.
(iv) Whether plaintiff's title
as owner of Ajenjua has been
challenged by defendant on
behalf of himself and other
descendants of the inhabitants
of Ajenjua.”
At the summons for directions
stage, the court ordered as
follows:
“In the circumstances, the
issues set forth in the summons
for directions and any other
issue which appears on the
pleadings will be those for the
trial.”
Subsequent to this, the
co-defendant applied and was
joined accordingly. Thereafter
the co-defendant filed a
statement of defence to which
the appellant filed a reply and
additional summons for
directions were filed. The
issues raised therein for
determination by the court were
nine namely:
“(1) Whether Adowsena has been
in existence from time
immemorial.
(2) Whether Adowsena was the
place Nana Frempong Manso
settled the people of Obobetwao.
(3) Whether Obobetwao lands,
including Old Oda, were bought
by Kwahim Buroni.
(4) Whether when the Kotoku
crossed the river Pra, they met
the people of Ekuase, Afosu,
Adjenua and Ntronang rather than
the people of Adowsena.
(5) Whether the plaintiff is
estopped per rem judicatam and
by conduct from making the
claim.
(6) Whether plaintiff’s
predecessor, Odikro Esiama went
into exile because he lost the
case of Kojo Opong v Attafua
and was allowed to return from
exile after slaughtering 12
sheep to pacify the paramount
stool.
(7) Whether when Odikro Esiama
returned from exile the
paramount stool agreed to
demarcate a portion of Obobetwao
land to the said Odikro Esiama
upon the express condition that
it be sold to defray his legal
costs.
(8) Whether or not the Adjenua
Odikro, the defendant, was
installed with the knowledge of
plaintiff and whether the
plaintiff took aseda.
(9) Whether or not the
plaintiff’s conduct in
instituting this action
constitutes fraud on the
co-defendant's stool.”
By the order of the High Court,
the above issues were also set
down for trial. Thus, a total of
thirteen issues had been set
down for determination by the
court. Subsequently on 4 March
1976 the plaintiff started
giving evidence before the High
Court. Hearing was adjourned to
31 March 1976.
The plaintiff continued his
evidence on 15 July 1976 and the
case was adjourned to 21 October
1976. The plaintiff continued
his evidence before the court
presided over by Lamptey J on 25
March 1977 and hearing was
adjourned to 28 March 1977.
There is no record of what
happened on that date but on 18
April 1977, the defendant and
co-defendant filed a motion on
notice for an order that the
plaintiff's claim be dismissed
and judgment entered for the
defendant and co-defendant on
the grounds contained in the
attached affidavit. This
application was supported by an
affidavit the relevant portions
of which were:
“7. That the co-defendant
pleaded that in 1913 the
Adowsena stool issued a writ of
summons claiming certain lands
including the land in dispute
and lost the suit and so the
plaintiff is estopped per
rem-judicatam by the case of
Kojo Opong v Nana Attafua
from instituting this action.
8. That the plaintiff admitted
in his reply to co-defendant's
defence that his predecessor
instituted an action against
Nana Attafua I, co-defendant's
predecessor in respect of lands
at Adowsena Ntronang, Abodom
Hweakwa and Yayaso, but denies
that he was estopped by the said
decision.
10. That Kwadwo Opong in the
aforementioned case sued as the
representative of the Adausena
stool which Nana Attafua
defended as the Omanhene and
representative of the Akim
Kotoku Paramount stool.
15. That since the plaintiff has
stated that the present claim
covered the same piece of land
involved in the case of Kojo
Opong v Attafua the
plaintiff is estopped per rem
judicatam and by his own
admission from litigating the
title and ownership of the land
in dispute.”
In an affidavit in opposition
Nana Ntiamoah Kofi III deposed
in part:
“3. That in answer to paragraph
14 of the said affidavit, I
admit that in 1913 my
predecessor Kojo Oppong
instituted an action in the
Supreme Court, Accra, against
Attafua as alleged by the
co-defendant but I have already
given evidence and was under
cross-examination saying that
the case was not heard and no
judgment was given in it because
the dispute was at one stage
referred to a native tribunal at
Akim Kotoku for hearing and
determination but my
predecessor, as the plaintiff,
refused to appear before that
tribunal on the ground that the
Omanhene being a party to that
suit it would be contrary to
natural justice for that
tribunal to hear the case.
4. That it is not correct that
Kojo Pong ever admitted that he
lost the case against Attafua as
contended by the co-defendant or
at all and so I still maintain
that no such judgment as alleged
was given.
8. That I am further advised by
counsel and I verily believe
that, in any event, such a
statement if admissible has only
the status of a prior
inconsistent statement and as
such is no proof of what it
asserts.
9. That I am further advised by
counsel and I verily believe
that once I have raised an
estoppel against the
co-defendant in my reply there
is a plea of estoppel against
estoppel and so this case cannot
be disposed of at this stage of
trial.
10. That in all the circumstance
I am advised by counsel and I
verily believe that the
defendant and co-defendant are
not entitled to judgment in this
suit and that their motion is
misconceived.”
It is significant to note that
this application was brought
before the court before the
plaintiff had closed his case
although as the court found the
plaintiff himself had finished
giving evidence. Counsel for the
applicant claimed to rely on
Order 32 r 6 in asking for
judgment. That order, which was
quoted by the trial court, is as
follows:
“6. Any party may at any stage
of a cause or matter, where
admissions of facts have been
made, either on the pleadings,
or otherwise, apply to the Court
or a Judge for such judgment or
order as upon such admissions he
may be entitled to, without
waiting for the determination of
any other question between the
parties; and the Court or a
Judge may upon such application
make such order, or give such
judgment as the court or a Judge
may think just.”
The applicant supported his
application with an affidavit to
which the respondent also filed
an affidavit in opposition. On
30 May 1977, the following notes
were made in the record book:
“Oduro for defendant and
co-defendant. Ahenkorah for
plaintiff; says defendant and
co-defendant have filed motion
for judgment on the evidence of
admission by plaintiff. Objects
that this motion cannot be taken
at this stage. Since plaintiff
has not closed his case,
defendant cannot ask for
judgment at this stage. Submit
that motion is premature at this
stage. Counsel for defendant
replies:
Defendant's application is
founded on Order 32 r 6. Reads
same to the court. This permits
such an application. Counsels
agree on adjournment.
By court: Adjourned to 31 May
1977.”
The record of proceedings before
us does not disclose what
happened on the adjourned date
i.e. 31 May 1977. There is no
record of what happened to the
matter which was adjourned to 31
May 1977. The record however
contains other applications by
both sides. Finally the High
Court, on 25 June 1984, gave a
ruling on the defendant's
application for judgment, on the
evidence of admissions and the
plaintiff's action was
dismissed. The plaintiff has
appealed to this court against
the dismissal of the action. The
plaintiff-appellant filed in all
ten grounds of appeal against
the judgment of the court below.
However before us counsel argued
grounds 1 and 2 and abandoned
the other grounds. The grounds
argued were that:
“1 The decision of the High
Court was bad and contrary to
the rules of natural justice in
that the trial judge stopped the
plaintiff's case prematurely
without giving him the
opportunity to state his case in
full, thereby occasioning a
substantial miscarriage of
justice.
2 The motion for judgment was
wholly misconceived and highly
irregular since in support of
it, counsel for the co-defendant
summed up the whole evidence so
far led by the plaintiff.”
We are satisfied that there is
no legal justification for the
course adopted by the court
below in stopping the evidence
of the plaintiff and giving
judgment against the plaintiff.
We allow the appeal and order a
retrial before another judge.
AMUAH JA.
I agree.
LUTTERODT JA.
I also agree.
Appeal allowed. Case remitted
for retrial before another High
Court judge.
S Kwami Tetteh, Legal
Practitioner |
