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Wills – Property -
Estoppel - Ownership of House –
Executors – Trustee -
Whether or not the judgment
of the Court of Appeal on the
ownership of the property is
against the weight - Whether or
not the testator in this case,
advanced the money for the
purchase of the property -
Whether or not she is estopped
by res judicata - Whether or
not the conduct of plaintiff
failing to challenge the devise
of the property in dispute to
her, amounted to estoppel by
conduct? - section 35 of the
Evidence Act, 1975 (NRCD 323).
HEADNOTES
The brief facts of the case are
that by an amended writ of
summons issued on the 13th
January 2016, the plaintiff
alleged that Edward Osei Boakye
in his last will and testament
dated 10th May 1997,
included properties which did
not belong to him. Among the
properties was House No. 29
Volta Avenue, Kumasi, which the
plaintiff contended was her own
property. The High Court, at the
end of the trial dismissed the
plaintiff claims and entered
judgment on the counterclaim for
the defendants, who are the
Executors
of Edward Osei Boakye.
The plaintiff lodged an
appeal against the decision of
the trial High Court in the
Court of Appeal, which affirmed
the decision of the High Court,
but reversed the decision
concerning the ownership of
House No. 29 Volta Avenue,
Kumasi. The Court of Appeal in
its judgment held that the said
property was the self-acquired
property of the plaintiff having
acquired same in 1970. The Court
of Appeal thus rejected the
claim by the defendants that the
property was actually acquired
by the late E. O. Boakye, but
did so in the name of the sister
for security reasons. The
defendants being aggrieved with
the decision of the Court of
Appeal mounted this appeal
praying this Court to set aside
the decision that House No. 29
Volta Avenue, Kumasi, was
acquired by the plaintiff
HELD
In this appeal, we are faced
with a situation where the trial
court and the Court of Appeal
made different determination
concerning the ownership of the
building in dispute. We are
therefore bound to determine
which of the two findings is
consistent with the evidence on
record. As we have ready
indicated we find the decision
of the trial High Court more
consistent with the evidence
adduced at the trial. We
therefore hold that the decision
of their Lordships of the Court
of Appeal was against the weight
of evidence and we shall
therefore set aside that
decision and affirm that of the
High Court which declared E. O.
Boakye owner of House No. 29
Volta Avenue Kumasi.
Accordingly we allow
the appeal and the decision of
the Court of Appeal on the
ownership of House No. 29, Volta
Avenue, Kumasi is hereby set
aside.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
Continental Plastics Engineering
Co. Ltd. V, IMC Industries-
Technik GMBH (2009) SCGLR 298
Dyer v. Dyer (1788) 2 Cox Eq.
Cas. 92
In re Koranteng (Decd); Addo v
Koranteng & Others(2005-2006)
SCGLR 1039
Ussher & Others v Darko [1977] 1
GLR 476 C.A.
In Re Asere Stool: Nikoi Olai
Amontia IV (substituted by Tafo
Amon II) v. Akotia Oworsika III
(substituted by) Laryea Ayiku
III (2005-2006 SCGLR 637
Wood v. Tamakloe (2007-2008)
SCGLR 852
Social Security Bank v. Agyarko
(1991) 2GLR 192
In Re Sekyeredumasi Affairs:
Nyame v. Kesse alias Konto
(1998- 99) SCGLR 476,
Henderson v. Henderson(1843) 3
Hare 100:
In re Yendi Skin Affairs: Andani
v. Abudulai (1981) GLR 866 CA
Greenhalgh v. Mallard (1947) 2
All ER 255
Dahabieh v. SA Turqui & Bros
(2001-2002) SCGLR 498
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
MARFUL-SAU, JSC:
COUNSEL
KWABENA BOYE ADJEKUMHENE FOR THE
PLAINTIFFS/ APPELLANTS/
RESPONDENTS.
DANIYAL ABDUL KAREEM WITH HIM,
AMINA ALI ISSACHAR FOR THE
DEFENDANTS/RESPONDENTS/
APPELLANTS
MARFUL-SAU, JSC:
-
This appeal is taken against the
unanimous decision of the Court
of Appeal dated the 26th
of July 2018, which in part
affirmed the decision of the
trial High Court. The Court of
Appeal, however, reversed the
trial High Court’s decision on
the
ownership of House No. 29
Volta Avenue, Kumasi which was
devised in the Will of Edward
Osei Boakye (deceased testator)
to the original plaintiff in
this action a sister of the said
Edward Osei Boakye for life. In
this appeal, we intend to give
the parties the same designation
as they had at the trial High
Court, such that, the original
plaintiff and the substitute,
will be referred to as
plaintiff. It is noted that the
original plaintiff, Mary Akyaa
Boakye died during the pendency
of the action and was
substituted by her son Yaw
Boakye Addei.
The brief facts of the case are
that by an amended writ of
summons issued on the 13th
January 2016, the plaintiff
alleged that Edward Osei Boakye
in his last will and testament
dated 10th May 1997,
included properties which did
not belong to him. Among the
properties was House No. 29
Volta Avenue, Kumasi, which the
plaintiff contended was her own
property. The High Court, at the
end of the trial dismissed the
plaintiff claims and entered
judgment on the counterclaim for
the defendants, who are the
Executors of Edward Osei Boakye.
The plaintiff lodged an appeal
against the decision of the
trial High Court in the Court of
Appeal, which affirmed the
decision of the High Court, but
reversed the decision concerning
the ownership of House No. 29
Volta Avenue, Kumasi. The Court
of Appeal in its judgment held
that the said property was the
self-acquired property of the
plaintiff having acquired same
in 1970. The Court of Appeal
thus rejected the claim by the
defendants that the property was
actually acquired by the late E.
O. Boakye, but did so in the
name of the sister for security
reasons.
The defendants being aggrieved
with the decision of the Court
of Appeal mounted this appeal
praying this Court to set aside
the decision that House No. 29
Volta Avenue, Kumasi, was
acquired by the plaintiff. This
appeal therefore relates to the
ownership of House No. 29 Volta
Avenue, Kumasi. The Notice of
Appeal filed on 3rd
August 2018 by the defendants
contained two grounds of appeal,
namely:-
“1. The part of the
judgment declaring the Plaintiff
/Appellant/ Respondent as owner
of House No. 29 Volta Avenue,
Nhyiaeso Kumasi, is against the
weight of evidence before the
Court of Appeal.
2. That the Court of
Appeal erred when it held that
House No. 29, Volta Avenue,
Nhyiaeso, Kumasi, was the
property of the
plaintiff/Appellant/ Respondent.
The defendants’ case is that
House No. 29 Volta Avenue
Kumasi, the subject matter of
this appeal, was acquired by
E.O. Boakye and same devised to
the plaintiff for her life in
the last Will of the said E.O.
Boakye. According to the
defendants, E.O. Boakye acquired
the property in the name of the
plaintiff for security reasons.
The defendants posited that
plaintiff’s actions and conduct
for 9 years after the grant of
probate makes it evident that
she had no real ownership
interest in the property. They
tendered during the trial
Exhibits 2,6,10,11,12,13 and 14
as evidence of admissions made
by the plaintiff, all of which
were adverse to the interest she
sought to assert in court. The
defendants argued that for a
period of 9 years after the
grant of probate, the plaintiff
conducted herself in relation to
the estate of E. O. Boakye in
such a manner that she is
estopped from claiming ownership
to the property in dispute.
The plaintiff on the other hand
asserted that the property was
acquired by her in 1970, having
acquired the land for the
building from the Government of
Ghana. The plaintiff tendered at
the trial Exhibits E series and
N series to prove that the
property was self-acquired by
her. The fundamental issue to be
determined in this appeal,
therefore, is who owns House No.
29 Volta Avenue, Kumasi?
The main ground in the appeal,
is that
the judgment of the Court of
Appeal on the ownership of the
property is against the weight
of evidence adduced at the
trial. It is therefore pertinent
for us, as the second appellate
court, to review the record to
determine whether on the
totality of evidence, the Court
of Appeal was right in reversing
the decision of the High Court
concerning the property in
issue. It is also trite that an
appeal is a re-hearing. What
this means is that as the second
appellant court, we have the
mandate to review or re-examine
the entire record of appeal and
arrive at our own finding or
conclusion, as to whether on the
totality of evidence adduced at
the trial, the first appellate
court was right in reversing the
decision of the trial High Court
on the ownership of House No,
29, Volta Avenue, Kumasi.
In the case of
Continental Plastics Engineering
Co. Ltd. V, IMC Industries-
Technik GMBH (2009) SCGLR 298,
Georgina Wood CJ, delivering the
judgment of the Court stated at
pages 307 to 308 as follows:
‘’An appeal being by way of
re-hearing, the second appellate
court is bound to choose the
finding which is consistent with
the evidence on the record. In
effect, the court may affirm
either of the two findings or
make an altogether different
finding based on the record.’’
In his statement of case for the
defendants, learned counsel
contended that the Court of
Appeal erred in declaring the
plaintiff owner of the building
in dispute only because some
documents on the building,
particularly the ‘’exhibit E
series’’ were in the name of the
plaintiff. According to counsel,
the Court of Appeal failed to
critically examine the conduct
of plaintiff after the will of
E.O. Boakye was admitted to
probate, which conduct was
adverse to the very interest she
sought to assert in the instant
case. Counsel therefore
submitted that the learned
Justices of the Court of Appeal
erred in their evaluation of the
evidence on record.
What evidence was led by the
plaintiff? The plaintiff in her
pleadings stated that the
building in dispute was her
self-acquired property. In the
pleadings and in the witness
statement, the plaintiff failed
to disclose how the property was
acquired. It was only in
“exhibit N6’’ that she tried to
explain how she acquired that
property. From the record,
during the PNDC era most
properties of E. O. Boakye, the
testator herein were confiscated
to the State. The building in
dispute was among the properties
of E.O. Boakye which were
confiscated. The plaintiff,
therefore wrote the letter
“exhibit N6’’ on the 15th
May 1986, petitioning the PNDC
government to release the
property to her as the owner. At
this period, the record showed
that the late E. O. Boakye was
in self - imposed exile. The
relevant part of ‘’exhibit N6’’
which is found at page 342 of
the record reads as follows:-
‘’Sir, during the years abroad,
I obtained plot of land in
Kumasi and bought the Accra
house for residential dwellings
for the use and benefit of
myself and two sons. Since I was
away working most of the time I
had to depend on someone to
develop the Kumasi plot for me.
I did not deem it improper to
request my brother, the said E.
O. Boakye to oversee the project
for me. I remitted him as much
money as was needed, most times
such remittance was in kind in
the sense that I paid his
children’s (two of them)
educational expenses in United
States whilst he reimbursed me
by caring on my project.’’
We observed that the above fact
was not pleaded and no effort
was made by the plaintiff to
prove same. For example, the
names of the two children of the
testator were not even disclosed
during the trial and neither was
the amount spent as educational
expenses. More importantly, no
effort was made to prove the
remittance which was allegedly
made to the testator.
From the record of appeal, it
seems plaintiff based her
ownership claim on the fact that
documents on the building, such
as the allocation letter and
building permit were in her
name. However, the fact that
some documents covering the
building were in plaintiff’s
name, only raises a presumption
under
section 35 of the Evidence Act,
1975 (NRCD 323). That
section provides as follows:-
‘’The owner of the legal title
to property is presumed to be
the owner of the full beneficial
title’’
Under section 30 of the Evidence
Act, 1975, the above presumption
is a rebuttable one and is
therefore subject to section 20
of the Evidence Act, which
provides thus:-
‘’A rebuttable presumption
imposes upon the party against
whom it operates the burden of
producing evidence and the
burden of persuasion as to the
non- existence of the presumed
fact.’’
From the above provisions of the
Evidence Act, evidence may be
led in a trial to displace the
presumption created under
section 35 of the Act. And the
burden for proving the
non-existence of the
presumption, in the instant
case, was on the defendants
against whom the presumption
operated. Now, given the
documentary evidence on record
that plaintiff was the legal
owner of the property, we need
to determine whether the
defendants, on the totality of
evidence on record were able to
rebut the presumption. In other
words the defendants needed to
adduce evidence that could
displace the presumption that
plaintiff was the owner of the
building simply because the
documents on the building are in
her name.
The defendants from the record
do not challenge the
authenticity of the documents
covering the building, but
contended that the building was
acquired by the testator in the
name of plaintiff for security
reasons. The defendants further
stated that plaintiff was
holding the property in trust
for the testator and for that
matter the defendants. The
defendants in a sense were
relying on the doctrine of
resulting trust which implies a
situation where property is
conveyed to one person but the
purchase price is paid by
another thus creating a
resulting trust in favour of the
person who paid the purchase
price, unless a gift was
intended by the person who paid
for the property. This principle
of law was stated in the case of
Dyer
v. Dyer (1788) 2 Cox Eq. Cas. 92,
where Eyre CB said:
‘’The clear result of all the
cases, without a single
exception is that the
trust
of a legal estate, whether taken
in the names of the purchasers
and others jointly or in the
names of others without that of
the purchaser, whether in one or
several; whether jointly or
successive - results to the man
who advances the purchase money…
It is the established doctrine
of a court of equity that this
resulting trust may be rebutted
by circumstances in evidence.’’
This principle was applied with
approval in the case of
In re
Koranteng (Decd); Addo v
Koranteng & Others(2005-2006)
SCGLR 1039, where
this Court speaking through Date
–Bah, JSC delivered thus at page
1054:
“In essence, a resulting trust
in this context, is a legal
presumption made by the law to
the effect that where a person
has bought a property in the
name of another, that other
would be deemed to hold the
property in trust for the true
purchaser. It is a trust implied
by equity in favour of the true
purchaser or his estate, if he
has died. The trust is regarded
as arising from the unexpressed
or implied intention of the true
purchaser…. Thus, for a
resulting trust to be
established, there had to be
proof that the purchase money
for the property was advanced by
the beneficiary of the resulting
trust’’.
See
Ussher & Others v Darko [1977] 1
GLR 476 C.A.
Now, from the above authorities
it is clear that evidence by an
alleged trustee showing his name
on the title documents will be
immaterial if the party claiming
to have created the resulting
trust is able to prove that he
advanced the money for the
purchase of the property and
that he had no intention to gift
the property. So, applying the
decision in the above cases to
the instant case, “Exhibit E
series” which are documents
covering the property in
dispute, House No. 29 Volta
Avenue, Kumasi, would have been
immaterial if the defendants
were able to prove that the
testator, E. O. Boakye advanced
the money for the property and
that he had no intention to gift
the property. Even before a
determination is made on
whether
or not the testator in this
case, advanced the money for the
purchase of the property in
the first place, the act of the
testator, devising the property
in his Will and giving a life
interest in the property to
plaintiff’s mother, shows that
he clearly had no intention
whatsoever to gift the property
absolutely to the plaintiff.
From the record, therefore, the
important question to be
answered now is, did the
testator advance the money for
the purchase of the property?
Again, the record of proceedings
clearly shows that save
averments in the pleadings and
the testimony that the testator
advanced the money for the
property and the evidence that
the testator exercised acts of
possession over the property
during his lifetime, the
defendants did not provide any
positive evidence to the effect
that the testator advanced the
money for the acquisition of the
property.
The defendants, however, claimed
after probate was granted to the
Will of E. O. Boakye, that the
plaintiff for almost 9 years
exhibited several conducts which
indicated that she did not own
the building in dispute, as same
was acquired by the testator.
The defendants thus pleaded
estoppel
against plaintiff in view of her
conduct in relation to the Will
of E. O. Boakye. The defendants
buttressed their claim of
estoppel by tendering into
evidence the following
exhibits:-
“Exhibit 1”
is the probate granted by the
High Court Accra on the 20th
of November 2006 with its Will
attached. There is ample
evidence on record showing that
plaintiff was present when the
Will was read, hence became
aware of the devise to her of
House No. 29 Volta Avenue,
Kumasi.
“Exhibit 2”
is a letter signed by
plaintiff’s mother for and on
behalf of the head of family to
the Executors complaining about
the lawyer for the estate
engaged by the Executors.
“Exhibit 6”
is a letter signed by plaintiff
describing herself as sister,
beneficiary and customary
successor and exerting pressure
on the Executors to issue
vesting assents to
beneficiaries, she being one of
the beneficiaries.
“Exhibit 7”
is the Vesting Assent issued to
plaintiff after her persistent
demand that Vesting Assents be
issued to beneficiaries as
demanded in Exhibit 6.
“Exhibit 9”
is a publication of notice to
creditors and debtors in the
Daily Graphic issued by the
Lawyers of Executors of E. O
.Boakye to which no such claim
was received by plaintiff.
“Exhibit 14”
is a writ of summons issued on
the 7th of July 2008,
by plaintiff against the
Executors claiming an amount of
US$470,000.00, which she
allegedly advanced to the
testator for the construction of
a shopping mall and a cold
store. Of importance is
paragraph 3 of the statement of
claim accompanying the writ of
summons at page 248 of the
record, where the plaintiff
pleaded thus: “Plaintiff
is the uterine sister of the
late Edward Osei Boakye and also
one of the beneficiaries of his
last will.’’
The above, point to different
instances plaintiff acted in
relation to the Will of the
testator. Throughout the almost
9 year period, after probate was
granted and before this action
was instituted, there is no
evidence that the plaintiff made
any assertion or took any
positive step publicly, to claim
ownership of the property in
dispute. The conduct of
plaintiff therefore suggested
that the property owned by the
testator and the life interest
devised to plaintiff in the Will
was proper. Indeed, it is
important to note that plaintiff
did not even challenge the
process leading to the grant of
probate. It was only after the 5th
of April 2007 when vesting
Assent was granted that
plaintiff sought to challenge
the validity of the Will.
From the evidence on record two
issues of estoppel call for
determination in this appeal.
Plaintiff’s earlier suit
tendered in evidence as
‘’Exhibit 14’’ raises an issue
of
whether or not she is estopped
by res judicata? The second
issue is
whether or not the conduct of
plaintiff failing to challenge
the devise of the property in
dispute to her, amounted to
estoppel by conduct?
We shall at this point address
first the issue of estoppel by
conduct. This happens where a
person puts up a behavior or
makes a statement knowing very
well that the other party will
act upon it; or if a person is
made to believe the existence of
a factual situation by another
person, then that person who so
conducted himself, will be
estopped from denying his
behavior or statement or the
consequences of his behavior.
This principle has been codified
by section 26 of the Evidence
Act, 1975 (NRCD 323) as follows:
“except as otherwise provided by
law, including a rule of equity,
when a party has by his own
statement, act or omission,
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest in any
proceedings between that party
or his successors in interest
and such relying person or his
successor in interest.’’
We are of the opinion that since
section 26 of the Evidence Act,
creates a conclusive
presumption, where the basic
facts which give rise to the
presumption are established in
an action, it cannot be
controverted by an aggrieved
party.
In this case, the defendants
pleaded estoppel in paragraphs
10, 11, 12 and 14 of their
statement of defence.
From the record the plaintiff
whose conduct gave rise to the
estoppel failed to adduce any
credible evidence to explain the
admissions, conduct and
statements despite the notice
given by the defendants in their
pleading that they will rely on
the doctrine of estoppel.
In the case of
In Re
Asere Stool: Nikoi Olai Amontia
IV (substituted by Tafo Amon II)
v. Akotia Oworsika III
(substituted by) Laryea Ayiku
III (2005-2006 SCGLR 637,
at page 651, this Court
speaking through Dr. Twum JSC
held thus:
“In our view, this type of proof
is a salutary rule of evidence
based on common sense and
expediency. Where the adversary
of a party has admitted a fact
advantageous to cause of that
party, what better evidence does
the party need to establish that
fact than by relying on his own
admission. This is really an
example of estoppel by conduct.
It is a rule whereby a party is
precluded from denying the
existence of some state of facts
which he had formerly
asserted.’’
Again, in the case of
Wood
v. Tamakloe (2007-2008) SCGLR
852, this Court applied
the doctrine of estoppel by
preventing a defendant who had
previously acknowledged the
plaintiff to be owner of a
disputed property to reverse her
position by claiming ownership.
Sophia Akuffo JSC (as she then
was) delivered as follows:
‘’If the disputed property were
in truth owned by the defendant,
then having knowingly and
without coercion made a
declaration against her
proprietary interest in the said
house, she, the defendant could
not be heard to be saying later
on that the house was hers.’’
Based on the principle enshrined
in the above cases, we are of
the considered opinion that the
Court of Appeal erred in holding
that the principle of estoppel
was predicated on fairness and
justice and for that matter
would not apply same to the
instant case. The Court of
Appeal in reversing the decision
of the High Court on the
ownership of the building in
dispute, relied on the case of
Social
Security Bank v. Agyarko (1991)
2GLR 192, from which
they quoted thus:-
“The principle of estoppel by
conduct was applicable only in
those circumstances where it was
just to invoke it, namely in
those circumstances in which it
will be unjust, inequitable or
unconscionable to permit a party
against whom a plea of estoppel
by conduct was raised to go back
on his word or conduct.
Consequently, in invoking a plea
of estoppel by conduct, one had
to have regard to the
circumstances surrounding the
particular conduct which was the
subject of the plea. Invariably,
each case had to be decided on
its own peculiar facts.’’
We are of the opinion that the
learned Justices of the Court of
Appeal with respect misapplied
the dicta above. Indeed, the
dicta supports the case of the
defendants in the sense that on
the totality of the evidence on
record, it will be unjust and
inequitable, in view of the
admissions and conduct
demonstrated by the plaintiff,
to allow her to retract her
admissions. The conclusion
reached by the Court of Appeal
on House No. 29 Volta Avenue,
Kumasi, therefore, was contrary
to the plaintiff’s own written
declarations and her overall
conduct as disclosed by the
record of proceedings. For
example, there is evidence on
record, that plaintiff herself,
asserted that she was a
beneficiary under the will of
E.O. Boakye. The learned
Justices of the Court of Appeal
erred on this issue as the court
did not in any way demonstrate
why the decision of the trial
High Court was unjust.
On the issue of estoppel by
conduct we think evidence on
record supports the decision of
the trial High Court and the
learned trial Judge was right in
dismissing plaintiff’s claim to
the building in dispute. Indeed,
the trial Judge was right in the
evaluation of the evidence when
she made the finding below:
‘’I am particularly fortified in
this finding because the
plaintiff was a very vociferous
writer. If she was in anyway
shortchanged by the provisions
of the will, when it was read
on 19th October 2006,
as is borne out by Exhibit 5,
she most definitely would not
have waited until 8th
June 2015 when this writ was
issued, to take steps to recover
her self-acquired property,
whether by writ or letter.’’
As we have already stated on the
7th of July 2008
plaintiff caused a writ of
summons to be issued against the
defendants claiming an amount of
US$ 470,000, being money she
allegedly paid to E. O. Boakye
for the construction of a
shopping mall and a cold store.
At this point the Will had been
read and probate taken and
Plaintiff was thus aware of the
devise of House No. 29 Volta
Avenue to her. This was the only
property that was devised to her
under the Will of E. O. Boakye.
The reasonable thing one would
have expected plaintiff’s mother
to do was to challenge the
building devised to her if
indeed the building was her
self-acquired property. The
failure of plaintiff to include
her ownership claim over the
property in dispute is what
leads us to the issue of res
judicata.
In In
Re Sekyeredumasi Affairs: Nyame
v. Kesse alias Konto (1998- 99)
SCGLR 476, this Court
speaking through Acquah, JSC (as
he then was) stated at page 478
to 479 as follows:
‘’The plea of res judicata
really encompasses three types
of estoppel: cause of action
estoppel, issue estoppel in the
strict sense, and issue estoppel
in the wider sense. In summary,
cause of action estoppel should
properly be confined to cases
where the cause of action and
the parties (or their privies)
are the same in both current and
previous proceedings. In
contrast, issue estoppel arises
where such a defence is not
available because the causes of
action are not the same in both
proceedings. Instead, it
operates where issues, whether
factual or legal, have either
already been determined in
previous proceedings between the
parties (issue estoppel in the
strict sense) or where issues
should have been litigated in
previous proceedings but owing
to’’ negligence, inadvertence,
or even accidents’’ they were
not brought before the
court(issue estoppel in the
wider sense), otherwise known as
the principle in
Henderson
v. Henderson(1843) 3 Hare 100:
see also In re Yendi Skin
Affairs: Andani v. Abudulai
(1981) GLR 866 CA. The
rationale underlying this last
estoppel is to encourage parties
to bring forward their whole
case so as to avoid a succession
of related actions.’’
Issue estoppel in the wider
sense is also referred to as the
doctrine of abuse of process
commonly referred to as the rule
in Henderson v. Henderson
(supra) whose essence was
set out in the case of Barrow v.
Bankside Agency Ltd. (1996) 1WLR
257 at 260 as follows:
“The rule in Henderson v.
Henderson (1843) Hare 100 is
very well known. It requires
parties, when a matter becomes a
subject of litigation between
them in a court of competent
jurisdiction, to bring their
whole case before the court so
that all aspects of it may be
finally decided (subject, of
course to any appeal) once and
for all. In the absence of
special circumstances, the
parties cannot return to the
court to advance arguments,
claims or defences which they
could have put forward for
decision on the first occasion
but failed to raise. The rule is
not based on the doctrine of res
judicata in a narrow sense, or
even on any strict doctrine of
issue or cause of action
estoppel. 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 when one will
do. That is the abuse at which
the rule is directed.’’
On the above principle of law
the case of
Greenhalgh v. Mallard (1947) 2
All ER 255, is very
instructive and throws more
light on the estoppel issues
raised in this case. At page 257
of the report the court observed
that res judicata:
‘’Is not confined to the issues
which the court is actually
asked to decide, but that it
covers issues or facts which are
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
in.’’
The courts in Ghana have applied
the above principle of law in
several cases, such as
Dahabieh v. SA Turqui & Bros
(2001-2002) SCGLR 498,
where this Court stated at page
507 of the report that:
‘’It is well settled under the
rule of estoppel that if a court
of competent jurisdiction has
tried and disposed of a case,
the parties themselves and their
privies cannot, thereafter,
bring an action on the same
claim or issue. The rule covers
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
the determination but were not
raised.’’
The effect of the above
principle of law as espoused in
the cases cited above is that
when a party has the opportunity
to litigate he must bring his
full case before the court. Any
attempt to do piecemeal
litigation should not be
condoned as doing so only
amounts to an abuse of the court
process.
On the above authorities
therefore plaintiff was
therefore estopped by res
judicata to raise the issue
relating to House No. 29 Volta
Avenue, Kumasi again in another
suit when she had the
opportunity to do so when she
sued the Executors to recover an
amount of US$ 470,000.
In this appeal, we are faced
with a situation where the trial
court and the Court of Appeal
made different determination
concerning the ownership of the
building in dispute. We are
therefore bound to determine
which of the two findings is
consistent with the evidence on
record. As we have ready
indicated we find the decision
of the trial High Court more
consistent with the evidence
adduced at the trial. We
therefore hold that the decision
of their Lordships of the Court
of Appeal was against the weight
of evidence and we shall
therefore set aside that
decision and affirm that of the
High Court which declared E. O.
Boakye owner of House No. 29
Volta Avenue Kumasi.
Accordingly we allow the appeal
and the decision of the Court of
Appeal on the ownership of House
No. 29, Volta Avenue, Kumasi is
hereby set aside.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(CHIEF
JUSTICE)
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME
COURT)
M. OWUSU (MS.)
(JUSTICE OF THE SUPREME
COURT)
I.O. TANKO AMADU
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
KWABENA BOYE ADJEKUMHENE FOR THE
PLAINTIFFS/ APPELLANTS/
RESPONDENTS.
DANIYAL ABDUL KAREEM WITH HIM,
AMINA ALI ISSACHAR FOR THE
DEFENDANTS/RESPONDENTS/
APPELLANTS. |
