HOME  JUDGEMENT OF THE COURT OF APPEAL

JUDGMENT

ADDO, J.A.

This is an appeal from the decision dated 12th day of October 2001 of His Honour Judge E.E. Ampadu, Circuit Judge sitting at the Circuit Court, Odumase-Krobo.

The appellants not satisfied with the said decision, have come suppliant to this Honourable Court praying that we set aside the said decision and enter judgment for them. The Defendants/Appellants filed four grounds of appeal in their notice of Appeal namely:-

(a) The Learned Judge’s judgment was against the weight of evidence.

(b) The judgment was erroneous in law.

(c) The Learned Judge failed to appreciate and direct himself on the issues that came before him

(d) The Learned Judge wrongfully accepted certain documents classified as Exhibits which ought to be objected.

The Defendants/Appellants argued only two of the four grounds, namely grounds (a) and (c) but to this I will return later.

The Plaintiff/Respondent claimed by his writ a land situate at a place called Amlamournya at Odumase-Krobo. This land according to the Plaintiff/Respondent is bounded on one side by Narh Kwablah family land, Chief Bannah family land and Onukpatser Tetteh Awisi family land, on another side Agbatse Amanor family land and William Odjao land, on another side by the same Agbatse Amnor family land, and on another side by Chief Baah Asare Family land. The Plaintiff/Respondent also asked for an order of ejectment and damages for trespass and perpetual injunction. In his evidence in chief the Plaintiff/Respondent said the land in question is at Amlamournya, Hwekper and shares boundary on the east with the land of three people namely Narh Kwabla family land, chief Bannah land and Onukpatser Tetteh Awisi land. On the west the land shares boundary with Agbatse Amanor and William Odjao. On the South, it shares boundary with the land of Agbatse Amanor. On the North with the land of chief Barnor Ashalley.

It is the case of the Plaintiff/Respondent that he is the lawful owner of the piece of land aforementioned and described above, which is the subject-matter of the dispute that has given rise to this Appeal. The Plaintiff/Respondent says in his testimony that his ancestor by name Amponsah acquired the disputed land while he was living on the Krobo Mountain. The said ancestor farmed on the disputed land till his death and upon his death the said land devolved on his family. The Plaintiff had this to say on how he came to own the disputed land:—

"The original owner of this land was Amponsah. He acquired the land while he was on the Krobo Mountain. Upon his death, his sister by name Teye Koryoe inherited the land. After Teye Koryoe it was Tetteh Tanah who inherited it. Upon his death, Francis Tetteh Amitei took over the land. Francis Tetteh Amitei was my father. He is dead. While my father was alive, he permitted me to farm on the land because at that time he was sick. I cultivated maize, cassava and palm seedlings on the land. While I was farming on the land, one Theophilus Narh Tetteh swore the oath of the paramount chief on me. I have in my hand the judgment which was delivered in my favour at the Konor’s arbitration. I wish to tender it in evidence."

There was no objection to the tendering of the document in evidence and it was admitted and marked exhibit 'A.' The Plaintiff continued,

"It was Theophilus Narh Tetteh who swore the Konor’s oath on me. I know the children of Theophilus Narh Tetteh. The Defendants are the children of Theophilus Narh Tetteh. The Defendants trespassed onto my land and I have brought them to court for trespass"

The Defendants/Appellants, on their part, deny that the disputed land belongs to the Plaintiff/Respondent. They claim that the disputed land forms part of their family land situate at Amlamournya and that it was their great grandfather Naa Totrokinye Kpeki who acquired the disputed land in the year 1892. This is how the 1st  Defendant-Appellant, put it in his testimony before the trial Court:—

"She acquired the land in 1892 when the Krobos descended from the Krobo Mountain. Her two children inherited the land and farmed on it. Upon their death, Kwabena Kitiwa inherited it. Kwabena Kitiwa was first cousin of Totroku and Korle Shitto. Kwabena Kitiwa farmed on the land. Upon his death Theophilus Narh Tetteh inherited that land. Upon his death, Rev. S.T. Tetteh inherited that land. He is Samuel Tettey Aku Tetteh and he is the current head of family. Rev. Tetteh called all the family members to a meeting. At the meeting I was appointed caretaker of all the family land. …………..At no point in time did any family ask the Plaintiff to farm on our land"

In their statement of Defence, the Defendants/Appellants describe the land over which Rev. S.T. Tetteh is head as situate and lying at Hwekper Amlamournya or Odumnya at Odumase-Krobo area in the Manya-Krobo District bounded on the North west by Chief Baah Asare and Nyuntse Olesu family lands, on the South East by Agbatse Amanor family lands, on the North East by Onukpatse Tetteh Awisi and Chief Baah Asare family lands, on the South West by Agbatse Amanor and Adan Teye family lands.

The Plaintiff/Respondent herein relies on estoppel per rem judictam to found his case. His case at the Court below is that he had litigated twice over the disputed land with the forebears of the Defendants and had judgment in his favour and therefore the Defendants who are bound by the said Judgments are estopped from relitigating over the disputed land with him.

The trial Judge after reviewing the law regarding Estoppel per rem judicatam and applying it to the evidence before him came to the conclusion that there is sufficient evidence on record to support the claim of the plaintiff and that the Plaintiff/Respondent is the lawful owner of the disputed land situate at Amlamournya. The Trial Judge held further that there is no evidence to support the counter-claim of the Defendants/Appellants and dismissed it accordingly.

Dissatisfied with the decision of the Court below, the Defendants/Appellants have thus appealed to this honourable Court to set aside the said decision. The first ground of appeal is that the Judgment is against the weight of evidence.

Arguing ground (a) of the grounds of appeal the Appellants submit that the Respondent has failed to discharge the onus of establishing that the description of the land referred to by the Plaintiff/Respondent is the same as the Appellant’s land. It is, however, apparent on the record as borne out by exhibits ‘A’ and ‘B’ that the Plaintiff/Respondent litigated over the same land with Theophilus Tetteh and Rev. S.T.A. Tetteh who are the forebears of the Appellants. At page 41 of the record the Defendants/Appellants admit that the disputed land is the same as the one that had been litigated over previously. At line 13 of page 41, Counsel for Plaintiff/Respondent asked the 1st Defendant/1st Appellant this:—"Theophilus Narh Tetteh was your father?”

The answer was "He was my uncle”

Question; "He was involved in an arbitration between him and the Plaintiff in 1975?

Answer:   "It is true"

Then at page 40 line 36 still under cross-examination 1st Defendant/1st Appellant was asked thus: "Exhibit 1 was sworn to by Rev. Aku Tetteh the present Head of Family?"

Answer:      "It is correct"

Question:    "Who was Theophilus Narh Tetteh?"

Answer:      "Rev. Tetteh succeeded Theophilus Narh Tetteh."

Question:    "Theophilus Narh Tetteh who litigated with the Plaintiff?"

Answer:      "It is correct"

Then at page 41 line 41 1st Defendant/1st Appellant was asked thus:- "I put it to you that that land in dispute is the same land you said belongs to Rev. Tetteh?"

Answer:     "It is my family land"

Question:   "Are you saying that the plan attached to Exhibit 1 is the land in dispute?"

Answer:      "It is the land in dispute"

In the light of the foregoing the Appellants' first ground of appeal falls to the ground and therefore fails. The evidence on record does not support the Appellant's ground (a). In arguing ground (c) the Appellants submit that the Trial Judge failed to appreciate the issues. They submit that the subject-matter in the case before the trial court was not the same as in Exhibit 'A' and 'B'. But the evidence on record belies this submission. For the 1st Defendant/1st Appellant, Jonathan Kofi Tetteh had admitted in the Court below as shown earlier on above that his uncle Theophilus Narh Tetteh had litigated over the same land with the Plaintiff/Respondent in 1975 in an arbitration, and on record, the arbitration that was held in 1975, and the award that was given has been admitted in evidence without objection by the same Appellants and marked Exhibit 'A'. There is therefore no substance in this ground of appeal also and it fails just like ground 'a'.

The Trial Judge in my view discussed the relevant law regarding estoppel per rem judicatam admirably well and exhaustively also. At page 53 of the record he cites appropriately in my view Spencer-Bowen and Turner on Res Judicata(2nd Edition). Spencer-Bowen and Turner which is a locus classicus on Res Judicata, explains it at page 9 paragraph 9 thus:—

"Where a final decision has been pronounced by a Judicial tribunal of competent jurisdiction over the parties and the subject-matter of the litigation, any party or privy to such litigation as against any other party or privy thereto is estopped in any subsequent litigation from disputing or questioning such decision on the merits whether it is used as the foundation of an action or relied upon as a bar to any claim"

Indeed Ababio vrs Kanga (1932) 1 WACA 253 pronounced the law on Res Judicata in the same vein. At page 254 of the report the Court held thus:—

"Estoppel per rem judicatam is the rule that a final decision of a Court of competent jurisdiction once pronounced between parties cannot be contracted by anyone of such parties as against any other of such parties in any subsequent litigation between them respecting the same subject-matter. The word ‘parties’ must be taken as including privies."

The Trial Judge correctly laid down the law regarding the constituent elements which any party setting up Res Judicata by way of Estoppel must establish to succeed as follows:—

(i) That the particular judicial decision relied upon was, in fact, pronounced by a judicial tribunal.

(ii) That the judicial tribunal pronouncing the decision had competent jurisdiction in that behalf.

(iii) That the judicial decision was final.

(iv) That the judicial decision was or involved a determination of the same question as that sought to be controverted in the litigation in which Estoppel is raised.

(v) That the parties in the previous suit were the same as parties in the action in which Estoppel has been raised. (see Assampong vrs Amuaku 1932 WACA 192 at 196 and Robertson vrs Reindorf (1971) 2 G.L.R. 289 at 307) .

I must add that our Supreme Court has had the occasion to also pronounce on the law regarding Estoppel per Rem Judicatam. In the Supreme Court case of Otu X and others vrs Owuodzi and others (1987-88) 1 G.L.R. 196-205, the Court held in holding (2) that a party pleading Estoppel Per Rem Judicatam assumed the burden of establishing that the matter had already been adjudicated upon and that the parties and the subject-matter were the same in the instant case as in the previous suit. There is ample evidence on record to show that both the parties and the subject-matter are the same in the instant case as in the previous suits. The evidence on record shows that the subject matter of the two previous suits were the ownership of a piece of land situate and lying at Amlamournya. The focal point of the instant action also revolves around the ownership of the land situate and lying at Amlamournya. I therefore hold that the Trial Judge was right in his finding of fact, that the subject-matter of the two previous proceedings is identical with the instant action and that Exhibits 'A' and 'B' are therefore binding on all the parties and their privies.

There is overwhelming evidence on record to show that the Defendants in the present case, i.e. Jonathan Kofi Tetteh and Emmanuel Tetteh are blood relations to both Theophilus Narh Tetteh and Rev. Samuel Tetteh Aku Tetteh who were parties to the two previous suits (Exhibits 'A' and 'B'). The Trial Judge was therefore right in coming to the conclusion that the Defendants/Appellants are Estopped from relitigating the ownership of the disputed land situate and lying at Amlamournya. The Trial Judge came to the right conclusion when he held that the lawful owner of the disputed land situate at Amlamournya is the Plaintiff/ Respondent. I must say that I cannot in any way impeach the decision of the Trial Judge. In my view, he applied the law correctly to the findings of fact rightly made from the evidence adduced before the trial Court. The Appellants filed 4 grounds of appeal but argued only two. The two grounds argued failed to sway us in disturbing the decision of the Court below.

In the Appeal Court case of Conga Engineering (Gh) Limited vrs Moses (1984-86) 2 G.L.R. 319-334, the Court composed of Apaloo C.J., Mensah-Boison and Abban J.J.A., held that the plea of res judicata was based on two pplicysic grounds, first, that it was in the public interest that there should be an end to litigation and secondly that nobody should be vexed twice on the same matter. The Court held further that in view of the repetitive and sometimes harassing nature of litigation in Ghana a rule of law which sought to avoid that was one of abiding value. The Trial Judge therefore came to the right conclusion that the appellants are estopped from relitigating the ownership of the disputed land which their forebears had litigated over with the Respondent and lost.

I find no merit in the appeal lodged by the Appellants and would dismiss it and affirm the decision of the Court below.

E.A. ADDO

JUSTICE OF APPEAL

FARKYE, J.A.

I agree.

S.T. FARKYE

JUSTICE OF APPEAL

ANINAKWA, J.A.

I also agree

R. T. ANINAKWA

JUSTICE OF APPEAL

COUNSEL

Narte-Olaga for Appellants

Mills for Respondents