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Land - Stool land – Farmlands -
Ownership – Recovery of
possession – Injunction -
Estoppel per rem judicatam –
Whether or not judgement is
against the weight of evidence –
Whether or not the plot in
dispute forms part of the land
described in the Wenchi judgment
HEADNOTES
The appellant herein Nana Obiri
Boahen maintains he obtained
judgment from the High Court
Wenchi in the case numbered
E1/4/06 titled Nana Obiri Boahen
v Elder Kyere & Others dated
11/3/2011. The subject matter of
that suit consists of three
separate pieces of farmlands
situated at Dominase on Abesim
Stool
land, Asufufu/Adomako on the
Sunyani Stool land and Dominase
on Abesim land. Appellant claims
he is the
owner of these
farmlands. In the execution
of the said judgment, the
appellant entered and pulled
down buildings on the plot of
land that is the subject matter
of this dispute, erected
pillars, demarcated it into
building plots which he had let
out to developers who are busily
developing same. These
developers are the 2nd
3rd and 4th
defendants in this suit at the
trial court. The Respondent
herein who claims ownership of
the subject land sued the
appellant in the High Court
Sunyani The High Court found as
a fact that the pieces of land
for which the 1st
defendant/appellant obtained
judgment in suit No. E1/4/06 in
the High Court, Wenchi, are
differently located from the
plot of land forming the subject
matter of the present suit, and
plot No. 27 Block A Sector 4
South New Town does not form
part of the properties affected
by the said judgment. The High
Court, Sunyani, further found
that the plaintiff/Respondent
had successfully proved its
title to the land it claims in
the suit and therefore gave
judgment to the
plaintiff/Respondent granting
all its reliefs in the writ of
summons. The appellant aggrieved
appealed to the Court of Appeal.
The Court of Appeal affirmed the
findings and judgment of the
High Court and dismissed the
appeal.
The appellant dissatisfied
further appealed to this court
praying that this court reverses
the judgment of the Court of
Appeal and all the consequential
orders.
HELD
The evidence on record on proof
of the respondent’s claim of
title to the disputed land is
very convincing and the two
lower courts did not mince words
in their findings on that. The
appellant’s evidence on the
other hand, which is exhibit 2,
points to one fact, which is
that the pieces of land he is
laying claim to are different
from the subject matter of this
suit. His plea of estoppel per
res judicata is defeated on the
same fact that, the subject
matter of the Wenchi judgment on
which the plea is based is
different from the subject
matter of the present suit.
As earlier stated this court
will not interfere with
concurrent decisions of the two
lower courts unless it is
established clearly that there
had been an error in the
findings of the lower court that
had resulted in miscarriage of
justice
The findings of the courts below
and the conclusions reached are
perfectly supported by the
evidence on record. We have no
reason to disturb same. The
appeal has no merit it is hereby
dismissed in its entirety.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules, 1996 C. I.
16
Evidence Act, 1975 NRCD 323
CASES REFERRED TO IN JUDGMENT
Benjamin Quarcoopome Sackey v
Issaka Musah, Suit NO J4/25/2014
delivered 21st
October, 2015
Nana Otual Antwi Boasiako v Nana
Adjei Panin, Suit N0 Adjei Panin
Suit N0: J4/33/2012 judgment
delivered on 26/11/2014,
Achoro and another v Akanfela
and another [1996-97] SCGLR 209
Gregory v Tandoh VI & Hanson
[2010] SCGLR 971
Obeng v Assemblies of God
Church, Ghana [2010] SCGLR 300
Koglex Limited (No 2) v Field
[2000] SCGLR 175
Conca Engineering (Ghana) Ltd.
vrs Moses [1984/86) 2 GLR 319
In Re Ashalley Botwe Lands
[2003/04] SCGLR 420
Cobblah v Okraku [1961] GLR 679;
In Re Mensah; Mensah & Sey v
Intercontinental Bank [2010]
SCGLR 118
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DORDZIE (MRS.) JSC:-
COUNSEL
KWAME AWUAH TWUMASI FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
FOSTER ASANTE FOR THE 1ST
DEFENDANT/APPELLANT/APPELLANT.
DORDZIE (MRS.) JSC:-
Facts
The appellant herein Nana Obiri
Boahen maintains he obtained
judgment from the High Court
Wenchi in the case numbered
E1/4/06 titled Nana Obiri Boahen
v Elder Kyere & Others dated
11/3/2011. The subject matter of
that suit consists of three
separate pieces of farmlands
situated at Dominase on Abesim
Stool land, Asufufu/Adomako on
the Sunyani Stool land and
Dominase on Abesim land.
Appellant claims he is the owner
of these farmlands. In the
execution of the said judgment,
the appellant entered and pulled
down buildings on the plot of
land that is the subject matter
of this dispute, erected
pillars, demarcated it into
building plots which he had let
out to developers who are busily
developing same. These
developers are the 2nd
3rd and 4th
defendants in this suit at the
trial court. The Respondent
herein who claims ownership of
the subject land sued the
appellant in the High Court
Sunyani claiming the following:
a)
“A declaration that
plaintiff is the bona fide owner
of the Plot No. 27, Block ‘A’
Sector 4, South New Town,
Sunyani which share boundary in
the North-West, North,
North-East with a road and
South-East with a road and a
lane, South, South-West with
road, West with road junction.
b)
Recovery of possession
of the land described in
paragraph (a) Supra.
c)
General damages for
trespass
d)
An order of the court to
compel defendants to demolish
any structure or buildings
defendants have unlawfully
erected on said plot.
e)
An order of
injunction to restrain
defendants, their agents,
assigns, workmen, labourers etc.
from dealing with plot No. 27
Block ‘A’ Sector 4, South New
Town, Sunyani in any manner
whatsoever.”
The High Court found as a fact
that the pieces of land for
which the 1st
defendant/appellant obtained
judgment in suit No. E1/4/06 in
the High Court, Wenchi, are
differently located from the
plot of land forming the subject
matter of the present suit, and
plot No. 27 Block A Sector 4
South New Town does not form
part of the properties affected
by the said judgment. The High
Court, Sunyani, further found
that the plaintiff/Respondent
had successfully proved its
title to the land it claims in
the suit and therefore gave
judgment to the
plaintiff/Respondent granting
all its reliefs in the writ of
summons.
The appellant aggrieved appealed
to the Court of Appeal. The
Court of Appeal affirmed the
findings and judgment of the
High Court and dismissed the
appeal.
The appellant dissatisfied
further appealed to this court
praying that this court reverses
the judgment of the Court of
Appeal and all the consequential
orders.
Grounds of Appeal
The appellant filed as many as
10 grounds of appeal and 2
additional grounds, these are:
a)
“The judgment delivered
by the Court on 28th
day June, 2017 was against the
weight of evidence adduced in
court by the parties during the
trial of the case at the lower
court.
b)
The learned judges were
wrong when they refused the 1st
defendant/appellant/appellant’s
appeal.
c)
The 2nd
witness for the plaintiff
admitted under cross-examination
that, the very land which the
plaintiff was laying claim to,
belongs to Madam Yaa Twenewaa.
To that extent, the learned
judges were wrong when they
failed to place probative value
on the evidence of the
plaintiff’s second witness.
d)
The failure of the
learned judges to consider
critically, the legal effect of
Exhibit “C9” on the plaintiff’s
case resulted in substantial
miscarriage of justice.
e)
The failure of the
learned judges to consider
critically the legal effect of
Exhibit “F” – which was tendered
by the plaintiff’s counsel
through the 1st
defendant resulted in
substantial miscarriage of
justice.
f)
The learned judges were
wrong when they failed or
refused to consider critically
the issue of estoppel raised by
the 1st defendant in
both his statement of defence,
cross-examination and
examination in chief.
g)
The learned judges erred
in law when they failed to
consider adequately the legal
effect of the TERMS OF
SETTLEMENT entered into between
the lands commission and the 1st
defendant.
h)
Having regard to the
judgment of the High Court,
Wenchi and subsequent processes
served on the agents of the
plaintiff in Suit N0: E1/4/06
titled: Nana Obiri Boahen v
Elder Kyereh and Others, the
plaintiff/respondent/respondent
was estopped from initiating the
present action/suit.
i)
The refusal for the
appointment of expert opinion by
the Court was wrong which said
refusal has resulted in
substantial miscarriage of
justice in the light of judgment
in Suit No: E1/4/06 titled Nana
Obiri Boahen v Elder Kyereh and
Others.
j)
Additional grounds of
appeal shall be filed upon the
receipt of the record of
proceedings.”
Additional Grounds of Appeal
a)
The Court of Appeal
judges were wrong when they held
that the issue of incompleteness
of Records of Proceedings was
inconsequential, and that
position has resulted in
substantial miscarriage of
justice to the 1st
Defendant/Appellant/Appellant.
b)
Both the Court of Appeal
and the High Court were bound by
the Supreme Court decision in
Benjamin
Quarcoopome Sackey v Issaka
Musah, Suit NO J4/25/2014
delivered 21st
October, 2015 and others
decided authorities, including
Nana
Otual Antwi Boasiako v Nana
Adjei Panin, Suit N0 Adjei Panin
Suit N0: J4/33/2012 judgment
delivered on 26/11/2014,
Supreme Court in respect of
surveying of disputed lands.
Such failure resulted in
substantial miscarriage of
justice to the 1st
defendant/Appellant/Appellant.
c)
The grant of award of
damages in favour of the
Plaintiff/Respondent/Respondent
by the High Court which was
affirmed by the Court of Appeal
was wrongful in law and same
also not maintainable in law.
We observed that the original
grounds of appeal basically are
the same grounds canvassed in
the first appellate court
particularly grounds (a) (c)
(d), (e), (f), (g), (h) and (i).
Ground (c) was struck out by the
Court of Appeal as narrative and
argumentative, however the
appellant has repeated the said
ground verbatim; this is not
prudent on the part of the
appellant. We cannot entertain
the said ground for the same
reasons. Ground (c) of the
grounds of appeal is hereby
struck out. Additional grounds
(b) and (c) sin against Rule 6
(2) (f) and 6 (4) of the
Supreme
Court Rules, 1996 C. I. 16,
Additional ground (b) is
narrative and argumentative. The
additional ground (c) failed to
particularize the errors of law
alleged, these additional
grounds are equally struck out.
Grounds (f), (g), (i) and
additional ground (a) we would
describe as very frivolous and
vexatious. The reasons for
saying so are demonstrated
below:
Ground (f) for example reads:
“The learned judges were wrong
when they failed or refused to
consider critically the issue of
estoppel raised by the 1st
defendant in both his statement
of defence, cross-examination
and examination in chief.”
The court of appeal devoted the
greater part of its judgment to
critical consideration of the
issue of
estoppel per rem judicatam
raised by the appellant as his
defence to the suit. This runs
through pages 478 to 489 of the
record. In concluding the
critical exposition of the law
on this doctrine and its
application to the appellant’s
defence the learned jurists of
the court of appeal commented on
the same complaint the appellant
raised against the trial judge,
that, he failed to consider the
doctrine of estoppel raised in
his defence at the trial. The
Court of Appeal per Ayebi JA
remarked as follows, “I have
already referred to the basis of
the judgment of the trial judge.
The complaint that he failed to
critically consider the
appellant’s plea of estoppel per
rem judicatam is without
foundation. He considered the
plea on the basis of the
subject-matter.”
A quote from the judgment of the
Court of Appeal on page 488 of
the record demonstrates the
frivolity of grounds (g) and
(i):
“We must also dismiss ground
(i) of the appeal because as I
have determined, the kind of
opinion the appellant expected
the court expert to place before
the court has been provided by
PW1. Again since it is our
determination that the disputed
plot is not affected by the
Wenchi High Court judgment, the
compromise reached with the
appellant by the Lands
Commission in the Terms of
Settlement filed, is irrelevant
to the respondent’s claim.”
In respect of additional ground
(a) the Court of Appeal rightly
reprimanded the appellant on his
complaints about the record of
proceedings. After he as the
appellant and a legal
practitioner had accepted the
records as complete when he was
served with Form 6; he cannot be
heard complaining about the
record of proceedings. The court
further said the matters he was
raising were not of substance
and would not affect the merits
of the appeal, (see page 471 of
the record).
The appellant has every right to
appeal against a judgment he is
dissatisfied with, however
litigation is expensive, other
parties are involved, the court,
its officers and time are
involved, therefore it is
expected that an appeal to the
highest court of the land is
approached with some seriousness
and not with so much frivolity.
It appears some of these grounds
brought before us were filed
without any careful reading of
the judgment being appealed
against. It is more of a concern
when the appellant herein is a
senior lawyer, and an officer of
this court. Repeating these
grounds of appeal to this level
is a deliberate attempt to
simply protract litigation
unnecessarily. We frown on such
conduct.
a)
The grounds worth
considering in this appeal are
original grounds (a) (b) (d) and
(e). Grounds (d) and (e) can be
sub-sumed under the omnibus
ground (a). Essentially,
therefore, the ground worth
considering in this appeal is
the omnibus ground (a) which
says- “The judgment delivered by
the Court on 28th day
June, 2017
was
against the weight of evidence
adduced in court by the
parties during the trial of the
case at the lower court.”
The determination of ground (a)
determines ground (b) which says
the Court of Appeal was wrong in
dismissing the appellant’s
appeal.
The decisions of the two lower
courts are concurrent;
therefore, we would be cautious
in our approach in considering
these grounds making sure we do
not interfere with the
concurrent findings of the lower
courts unjustifiably. It has
been well established by many
decided cases of this court that
the second appellate court would
only interfere with concurrent
findings of the lower courts
where it is clear from the
record, that such findings are
not supported by the evidence or
that the findings are perverse.
In the case of
Achoro and another v Akanfela
and another [1996-97] SCGLR 209
at page 214
this court per Acquah JSC held
as follows: “Now in an
appeal against findings of facts
to a second appellate court like
this court, where the lower
appellate court had concurred in
the findings of the trial court,
especially in a dispute, the
subject matter of which is
peculiarly within the bosom of
the two lower courts or
tribunals, this court will not
interfere with the concurrent
findings of the lower courts
unless it established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, is
apparent in the way in which the
lower tribunal dealt with the
facts. It must be established,
e.g., that the lower courts had
clearly erred in the face of a
crucial documentary evidence, or
that a principle of evidence had
not properly been applied”
See also the cases of
Gregory v Tandoh VI & Hanson
[2010] SCGLR 971; Obeng v
Assemblies of God Church, Ghana
[2010] SCGLR 300
The appellant in his submission
in support of ground (a) made
reference to cases of this court
underlying the above stated
principle of law and argued that
the judgments of the two lower
courts are perverse, wrong and
not borne by the record. The
appellant, to succeed in this
appeal, ought to demonstrate
that indeed the judgments of the
two lower courts are perverse;
whether he had been able to
successfully discharge that
responsibility is the main issue
of determination before us.
Our primary duty therefore is to
examine the record to be
satisfied that the findings of
the lower courts are supported
by the evidence on record. For
as rightly stated per Acquah JSC
in
Koglex Limited (No 2) v Field
[2000] SCGLR 175
at page 185, “The very fact
that the first appellate court
had confirmed the judgment of
the trial court does not relieve
the second appellate court of
its duty to satisfy itself that
the first appellate court’s
judgment is, like the trial
court’s, also justified by the
evidence on record.”
An appropriate review of the
record would involve considering
the total evidence laid before
the trial court by the parties;
we would therefore briefly
summarize the case of each party
at the trial.
Respondent’s case:
By the averments in
plaintiff/respondent’s amended
statement of claim, the disputed
land numbered Plot No 27 Block
A, South New Town, Sector 4
Sunyani, was originally acquired
by a company known as Little
Saints Educational Complex from
Lands Commission; (Land
Commission manages lands for the
Sunyani Stool). A lease
dated 8/07/98 was executed
between the parties. The lease,
which is registered, was for a
period of 50 years. The
purpose of the acquisition by
Little Saints Educational
Complex was to set up a school.
It therefore started developing
the land. In 2007, Little Saints
Educational Complex decided to
assign the unexpired term of the
lease to the plaintiff. A
deed of assignment dated 6/02/07
was executed between Little
Saints Educational Complex and
Golden Age Company, the
respondent herein.
The respondent company was
represented in the suit by its
managing director Eric Kwasi
Yeboa; he gave evidence on
behalf of the company. In proof
of the company’s title to the
land, he tendered the lease of
its grantor, which is the root
of title, as exhibit A. The deed
of assignment to the company he
tendered as exhibit B. The
respondent gave description of
its land as situate in South New
Town Sunyani, it is 5.6 acres in
size and it is bounded on all
sides by roads. It is plotted
and numbered as Plot No 27 Block
A South New Town Sector 4
Sunyani. The plot is zoned
purposely for schools. According
to the witness, upon acquiring
the land the company went into
possession and took the
necessary steps to obtain the
required approval and permit to
build. It therefore made
payments to the requisite
government institutions such as
the Lands Commission, the Stool
Lands Secretariat and the
District Assembly for the
purpose. The respondent acquired
the necessary approval and
permit to build, and was able to
build two big hostels for
students. The witness tendered
in evidence receipts of the said
payments. They are in evidence
as the Exhibit C series. It is
the respondent’s case that
whiles it was in possession, the
appellant, in 2013 engaged a
surveyor, entered the land and
demarcated it into residential
plots. Respondent’s
representative said he reported
the matter to the police, at the
police station, the appellant
served him with an entry of
judgment; claiming he had
obtained a judgment which
declared him (the appellant) the
owner of the disputed plot of
land. However, when he studied
the entry of judgment the
appellant served on him it
showed that the judgment he
obtained was in respect of lands
at Abesim Dominase, Asufufu and
Adomako. These plots of land are
quite a distance from his land.
The appellant’s judgment
therefore does not affect
respondent’s land. The witness
further stated that despite
this, the appellant and his
grantees have continued with
their acts of trespass on plot
No 27. To support respondent’s
evidence that the properties are
different and are far away from
each other, A Town Planning
officer gave evidence as PW1. He
tendered the planning scheme of
South New Town, Sector 4 Sunyani
where the disputed land is
situate as Exhibit D. He
identified the disputed land on
the scheme and confirmed that
the respondent company applied
to the Town Planning Department
to develop the land and no other
person had applied to develop
the said land. He further
tendered the master plan of
Sunyani as Exhibit. E and
demonstrated where the various
plots, that is the plots the
appellant claims he obtained
judgment on; and the disputed
plot fall in the master plan of
Sunyani. Confirming that the
plot in dispute does not fall
within the area appellant’s
judgment cover.
Appellant’s case
The appellant contended the case
alone in the High Court. The
rest of the defendants in the
trial court, the 2nd,
3rd, and 4th
defendants did not participate
in the trial though they filed a
statement of defence. At the
close of his evidence at the
trial, the appellant announced
to the court that the rest of
the defendants were his agents
and therefore his evidence
covered them. The trial court
did not accept that prayer
therefore disallowed it.
The appellant’s case essentially
is that he bought a large track
of farmland in 1995 from a
family whose name he did not
disclose but said the said
family heads are Opanin Boye and
Opanin Kofi Alex of Sunyani. The
large track of land he acquired
included the disputed land.
It is worth noting that in his
pleadings and evidence, the
appellant only described the
land he is claiming as his to be
a vast track of farmland that
includes the disputed land. He
did not produce any evidence of
the transaction he had with the
family in respect of the large
track of land he claimed he
acquired apart from the mere
assertion that he acquired the
land. The stance the appellant
took is that, the judgment he
obtained from the Wenchi High
Court is his evidence of
ownership and he tendered the
judgment as exhibit 2.
The appellant’s defence to the
action is that by virtue of the
judgment he obtained from the
Wenchi High Court, the
respondent is estopped per res
judicata from instituting this
action.
The crucial issue joined between
the parties therefore was
whether
the plot in dispute forms part
of the land described in the
Wenchi judgment.
The judgment from Wenchi court
describes the land the appellant
claimed in that suit as follows-
(1)
All that piece and parcel
of farmland lying situate and
being at Dominase on Abesim
Stool land and which said farm
land shares common boundary with
the farmland of Opanin Kwadwo
Asante, Opanin Kwesi Yeboah,
Opanin Kuden Sarbi, Nii Opanin
Damoah, Papa Abdulai and Opanin
Abuu
(2)
All that piece and parcel
of farmland lying and situate
and being at Asufufu/Adomako on
the Sunyani Stool land sharing
common boundary with the
building plot of Akil, a dried
up stream and a cottage.
(3)
Farmland lying situate
and being at Dominase on Abesim
land which said farmland shares
common boundary with the
farmland of Opanin Kojo Baah and
Nana Obeng.
Analysis of the evidence
Exhibit A the lease between the
Lands Commission and Little
Saints Educational Complex was
registered with the Deeds
Registry Sunyani in 1998. The
site plan attached to this
document clearly shows the
location and the dimension of
the plot in dispute. Exhibit B,
which is the deed of assignment
to the respondent bears the
Lands Registry’s stamping number
and has a site plan that gives
the same location as the site
plan attached to the mother
document.
Exhibits D and E settled the
issue of the location of the
disputed plot and the location
of the farmlands in the Wenchi
judgment. We have carefully
studied these two documents and
have come to the following
conclusions:
The location of the disputed
plot is clearly demarcated in
exhibit D (the planning scheme
of South New Town) and zoned as
educational area.
Exhibit E the master plan of
Sunyani Township clears every
doubt regarding the location of
the disputed plot vis–a-vis the
area exhibit 2, the judgment
from Wenchi High Court covers.
The master plan exhibit D gives
a clear picture of the locations
of Abesim Dominase, Asufufu and
Adomako. From the master plan,
Dominase Abesim is very far from
South New Town where the
disputed land is located, so is
the area described as Asufufu.
The Northen part of the area
described as Adomako may be said
to be close to South New Town,
however an existing major road
demarcates these two areas; PW1
said this road is a ring road.
The plot in dispute is embedded
almost in the middle of the area
described as South New Town and
is not close to the demarcating
major road. It is therefore very
unreasonable to argue that the
disputed area falls within the
area described as Adomako.
Similarly, it does not in any
way fall within the areas
described as Asufufu and
Dominase Abesim.
The judgment, exhibit 2, which
is the only evidence the
appellant clings to, to come
this far in litigation in this
suit does not cover the disputed
plot. The findings of the trial
court which was quoted by the
first appellate court
demonstrates that exhibit 2 is
not of much probity value. (See
page 467-468 of the record)
The Court of Appeal in its
judgment emphasized that the
trial court effectively dealt
with the issue of estoppel and
said at page 467-468 of its
judgment (referring to the
judgment of the trial court)
that-
“From pages 14 to 16 of the
judgment …. the trial judge
determined issue (c), that is
whether the reliefs the 1st
defendant sought in the Wenchi
High Court affects the plot in
dispute, he acknowledged the
fact that a valid judgment which
settled all the issues between
the parties debars any of the
parties from re-litigating the
same matter in future action; he
observed that the plaintiff
fiercely contested the claim of
1st defendant that
the disputed plot is situated at
Adomako/Asufufu and is affected
by the judgment of the Wenchi
High Court; that the judgment
shows that on 15th
December, 2011, the trial judge
de-suited 27 other defendants
and ordered hearing notice to be
served on the Lands Commission;
the judgment to all intents and
purpose is a default judgment
because the defendants did not
attend the trial; he referred
specifically to the case of
Conca Engineering (Ghana) Ltd.
vrs Moses [1984/86) 2
GLR 319, which advocated
that the validity of default
judgments to operate as res
judicata or estoppel should be
limited and
In
Re Ashalley Botwe Lands
[2003/04] SCGLR 420,
which deprecated the
practice of making orders
against beneficiaries who were
not parties to an action and the
fact that the 1st
defendant picked and choose what
to present to the court of the
Wenchi High Court proceedings
thereby disabling him from
knowing everything about that
trial. Finally, he observed that
there is nothing in the Wenchi
judgment, which shows that
Asufufu/Adomako has another name
called New Town South, Sunyani.”
The court of Appeal went further
to quote the conclusion the
trial court came to thus-
“I attach great weight to the
evidence of PW1 who is the
statutory officer responsible
for planning of Sunyani. In
their records, the
Asufufu/Adomako the first
defendant referred to is not
known to their office. He
tendered in evidence the
landscape of Sunyani Township.
They are the statutory body in
charge of planning the town. The
1st defendant cannot
say he knows the geographical
dimensions better than him.
Looking at the numerous
unanswered questions, I do not
think the judgment of the
learned judge Wenchi affects the
disputed land.”
This is a demonstration that
both courts below made good
expositions of the law on the
doctrine of estoppel per res
judicata and concluded that the
doctrine is inapplicable in the
circumstances of this suit.
From the analysis above the
location of the disputed plot
and the fact that the said plot
does not form part of the areas
the Wenchi High Court judgment
cover, puts to rest the question
whether the doctrine of estoppel
per res judicata is applicable
in this case or not. We do
affirm the decisions of the two
lower courts, that doctrine in
not applicable in the
circumstances of this case.
The land the subject matter of
the present suit is not
identical with the land in
exhibit 2. The issues for
determination in the present
case differ from the issues
decided in exhibit 2; above all,
that the parties are not the
same, throws the defendant’s
plea of estoppel overboard. (See
the cases of
Cobblah v Okraku [1961] GLR 679;
In Re Mensah; Mensah & Sey v
Intercontinental Bank [2010]
SCGLR 118)
Proof of title to the disputed
land
The respondent whose prayer in
the suit is declaration of title
successfully proved its root of
title through exhibits A and B.
The Exhibit C series is a proof
that the respondent had been put
in effective possession by the
various institutions responsible
for doing so, the Lands
Commission, the Assembly and the
Town and Country Planning
Department, Sunyani. As against
this is the appellant’s mere
assertion that he owns large
tracks of land which includes
the land in dispute. His trump
card is the default judgment
exhibit 2. It is worth noting
that the trial court in its
judgment pages 356 & 357 of the
record lamented that the
appellant did not place before
the court the total proceedings
of the judgment he was relying
on to plead estopped per res
judicata. Parties i.e. 27
defendants in that suit were
de-suited by the High Court in
Wenchi. The lands Commission was
the only defendant called upon
to defend the suit and yet
judgment was entered against the
27 defendants who were
de-suited.
The Court of Appeal in its
judgment (page 487 of the
record) commented on the
unconvincing nature of
appellant’s evidence on the
identity of the farmlands he
claimed he obtained judgment on.
This is what the court said: “It
is recalled that at the trial,
appellant confessed that he did
not know the acreage of his
land. He also struggled to admit
that he had no documents on his
land. As I noted earlier, he was
not able to cause the judgment
in his favour to be plotted by
the lands Commission. In these
circumstances, it is not
surprising that the appellant
was not able to show to the
court, the location and extent
of his land on the plans
tendered by PW1.”
Proof in a civil matter is on
the preponderance of
probabilities.
Section 12 (2) of the
Evidence
Act, 1975 NRCD 323
defines
proof by a preponderance of the
probabilities as follows:
(2) “Preponderance of the
probabilities” means that degree
of certainty of belief in the
mind of the tribunal of fact or
the Court by which it is
convinced that the existence of
a fact is more probable than its
non-existence.
The evidence on record on proof
of the respondent’s claim of
title to the disputed land is
very convincing and the two
lower courts did not mince words
in their findings on that. The
appellant’s evidence on the
other hand, which is exhibit 2,
points to one fact, which is
that the pieces of land he is
laying claim to are different
from the subject matter of this
suit. His plea of estoppel per
res judicata is defeated on the
same fact that, the subject
matter of the Wenchi judgment on
which the plea is based is
different from the subject
matter of the present suit.
As earlier stated this court
will not interfere with
concurrent decisions of the two
lower courts unless it is
established clearly that there
had been an error in the
findings of the lower court that
had resulted in miscarriage of
justice
The findings of the courts below
and the conclusions reached are
perfectly supported by the
evidence on record. We have no
reason to disturb same. The
appeal has no merit it is hereby
dismissed in its entirety.
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P.
BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
S. K.
MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
N. A.
AMEGATCHER
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
KWAME AWUAH TWUMASI FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
FOSTER ASANTE FOR THE 1ST
DEFENDANT/APPELLANT/APPELLANT |
