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JUDGMENT
T. K. ADZOE, J.S.C.:
This is an appeal from the
judgment of the Court of Appeal
dated 29/6/ 2000. It was a
decision which reversed the
trial High Court's judgment in
favour of the
plaintiff/respondent/appellant
whom we shall hereafter refer to
simply as the appellant. The
defendants/appellants/respondents
will similarly be referred to as
the respondents simpliciter.
The appellant filed and argued
four grounds of appeal — two
original grounds plus two
additional grounds. They are
that:
(1) The judgment is wrong in
law;
(2) The judgment is against the
weight of evidence;
(3) The learned justices erred
in granting the order of
recovery of possession in the
absence of evidence that the
landlord had served the
requisite statutory notice on
the tenant which notice is a
condition precedent to taking
any action based on the said
breach;
(4) In view of the substantial
works on the premises in the
nature of renovations, the
learned justices ought to have
suspended the order for recovery
of possession in the interest of
justice.
The grounds (1) and (3) above
deserve some comment. Rule 6 (4)
of the Supreme Court Rules,
1996, C.I. 16 requires that "
where a ground of appeal is one
of law the appellant shall
indicate the stage of the
proceedings at which it was
first raised". Ground (3) is
expressed as a ground of law and
the appellant ought to have
indicated whether he had raised
it before now, or whether he is
now raising it for the first
time. The significance of this
requirement will be seen later
in this judgment.
Similarly, when the appellant
alleged in ground (1) that the
judgment is wrong in law it
seems that he is in effect
saying that there is an error of
law in the judgment; we believe
that was what he intended to
say. Indeed that ground of
appeal appears to have been
directed at the Court of
Appeal's holding that the
appellant was estopped per rem
judicatam from instituting the
action because the appellant's
submission on that ground is
that " the instant case was not
properly within the realm of
estoppel per rem judicatam and
the Court of Appeal misapplied
the doctrine". In that regard
too the appellant again ought to
have indicated in the said
ground (1) the fact that the
decision as to the estoppel was
what he was attacking as having
rendered the judgment wrong in
law. If that holding amounted to
an error in law, then rule 6 (2)
requires the appellant to
specify it in the ground of
appeal as the subject of this
particular complaint — [see rule
6 (2)(f) of C.I. 16].
We think that having regard to
Rule 6, grounds (1) and (3) set
out above do not comply with the
Rules. Clearly the intention
behind rule 6 is to narrow the
issues on appeal and shorten the
hearing; by specifying the error
made by the lower court or by
disclosing whether or not a
point at issue had earlier on
been raised, both the court and
counsel for the respondent would
be enabled to concentrate on the
relevant parts of the evidence
in the record of proceedings and
not waste time on irrelevant
parts of the evidence. With
respect to questions of law, it
is necessary that the respondent
and his lawyers know well in
advance what points of law are
being raised so that they may
prepare their case and marshal
their authorities, whiles an
indication that the point of law
was or was not raised in the
court below may help the court
resolve the issue faster.
In Zabrama v. Segbedzi 2 GLR
221, the Court of Appeal held
that a ground of appeal alleging
misdirection by the trial judge
without specifying how he
misdirected himself rendered the
ground of appeal admissible.
Reading the judgment of the
court Kpegah, J.A., as he then
was, referred to the rule which
provided that "No ground which
is vague or general in terms ...
shall be permitted", and said at
page 226 "The implication of
these rules is that an
appellant, after specifying the
part of the judgment or order
complained of, must state what
he alleged ought to have been
found by the trial judge, or
what error he had made in point
of law. I do not think it meets
the requirements of these rules
to simply allege "misdirection"
on the part of the trial judge.
The requirement is that the
grounds stated in the notice of
appeal must clearly and
concisely indicate in what
manner the trial judge
misdirected himself either on
the law or on the facts. To
state in a notice of appeal that
"the trial judge misdirected
himself and gave an erroneous
decision" without specifying how
he misdirected himself is
against the rules and renders
such a ground of appeal
inadmissible. The rationale is
that a person who is brought to
an appellate forum to maintain
or defend a verdict or decision
which he has got in his favour
shall understand on what ground
it is impugned". The same rule
applies in this court, and we
think the Court of Appeal was
correct. In the circumstances we
hereby dismiss ground (1) of the
appeal. But the only fault with
ground (3) is that it has failed
to state whether or not the
issue of non-compliance was
raised before the trial court,
and we feel that this omission
is not so fundamental as to
infect ground (3); we will
accept ground (3) for argument.
In order to properly appreciate
the issues raised for
determination in this appeal,
one must took at the history of
the whole litigation. Nasib
Dahabieh and the Turqui brothers
were aliens resident in Ghana in
1966. They all did business and
lived in Accra. Nasib traded
under the name and style of
"Technical Trading Company". The
Turqui brothers ran a
partnership firm known as
S.A.Turqui and Brothers. The
latter owned a house at Adabraka
known as No.1 Turqui House which
still lies along the Kojo
Thompson Road. In June, 1966,
Nasib Dahabieh, the appellant
herein rented the said premises
from the respondents herein for
his business. It was a monthly
rent, but the appellant was let
in initially for five years. He
renovated the premises at
considerable cost to suit his
convenience, and without any
objection from the respondents.
After the appellant had been in
possession for eight years, the
respondents, in 1974, wrote and
demanded the surrender of the
premises within six months
alleging that they needed the
place for use in their own
business. The appellant could
not meet this demand and
eventually the respondents took
an action against Technical
Trading Company in 1975,
claiming recovery of the
premises. That action was suit
No.104/75. The respondents
managed to obtain judgment in
default of appearance and went
into execution. In the course of
the execution, the appellant's
goods worth about ¢400,000.00
got damaged because they were
not properly handled or stored.
The appellant was aggrieved. He
sued the respondents at the High
Court and challenged the
validity of the default judgment
in suit No. 104/75. The reliefs
he claimed against the
respondents were as follows:
(a) a declaration that the
judgment obtained by the
defendants in suit No. 104/75 is
null and void and is vitiated by
fraud;
(b) an order setting aside the
judgment in the said suit
No.104/75 and all subsequent
processes, and
(e) damages.
This was suit No 152/76 entitled
Nasib Nahabieh and Anor. vrs.
S.A.Turqui and Brothers. On
7/782 Anterkyi, J. upheld all
the appellant's claims, holding
that the default judgment in
suit No 104/75 was a nullity and
set it aside; he also set aside
the order of possession which
was decreed in favour of the
appellant and proceeded to award
the appellant what he described
as "exemplary damages" of
¢100,000 cedis. He also awarded
the appellant costs, remarking
with grave disapproval, that the
respondents, by their "unlawful
conduct of overreaching the
court to grant the respective
motions ... have ruined the
business of the first plaintiff
from the time of the execution
in February 1976 to date — a
duration of more than six
years". He then observed;
"I take into consideration the
renovations he [Nasib] had made
to the premises, and the
accretion to them by flooring
them terrazzo, and the
dismantling by the defendants of
the equipments of the store he
had made at his own expense. As
he has made no claim for such
expenses he is entitled to bring
a separate action".
The respondents herein appealed
to the Court of Appeal but the
appeal was dismissed on 21/4/88.
And apparently armed with
Anterkyi, J's advice, the
appellant mounted a fresh action
against the respondents on
10/8/88 in suit No. 1907/88.
Before pleadings could close,
the appellant instituted another
action on 21/3/89 as suit No
453/89.
In suit No 1907/88 the appellant
claimed general and special
damages for the detention and/or
conversion of the appellant's
stock in trade and furniture as
a result of the wrongful
execution of the writ of
possession in the 1975 suit
No.104/75 which Anterkyi J. had
declared a nullity in suit
No.152/76. And in suit No.453/89
the appellant's claim was for
the ¢100,000.00 damages that
Anterkyi, J. awarded against the
respondents plus interest
thereon.
On their part, the respondents
denied all of the appellant's
claims and in suit No. 1907/88
counterclaimed for recovery of
possession of the premises, and
damages for trespass. The two
cases were consolidated and
tried by J.D. Sapong J.A sitting
as an additional High Court
Judge. The Learned Judge
dismissed the respondents'
counterclaim but gave judgment
for the appellant on all his
claims. The respondents appealed
to the Court of Appeal which
reversed the High Court. The
Court of Appeal decision is
reproduced hereunder as follows:
"In the result the appeal is
allowed. The judgment of the
trial court in respect of the
Dahabieh claims against Turqui
is set aside and judgment given
in favour of Turqui. In respect
of the counterclaim the judgment
of the court below which
dismissed it is hereby set aside
and judgment given in favour of
Turqui on his counterclaim. An
order for recovery of possession
of the premises is made in
favour of the Appellants".
It is against this decision that
the appellant has come before
us. Grounds 1 and 2 were argued
together to the effect that the
Court of Appeal was wrong in
holding that the appellant was
estopped per rem judicatam from
suing the respondents. We have
dismissed ground (1) but looking
at the evidence on record, that
the Court of Appeal was right in
its decision on the issue of
estoppel, and that it is
impossible to allow the
appellant's appeal against that
decision. It is common knowledge
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. This embargo 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
determination but were not
raised. In the 1976 suit the
court awarded the appellant
"exemplary damages" because,
according to the learned Judge,
the respondents had "by their
conduct ruined the business" of
the appellant by issuing a void
writ of possession in the course
of which the appellant's "items
of furniture and equipments of
the store, among other things,
were thrown out and exposed to
the elements." The Court of
Appeal upheld the award of this
"exemplary damages", describing
it as "reasonable". It was never
suggested during that litigation
that the respondents did detain
or convert the appellant's
stock-in trade and furniture and
the order of Anterkyi, J. merely
empowered the appellant to
"bring a separate action" to
claim the expenses for "the
renovations he had made to the
premises, and the accretion to
them by flooring them terrazzo,
and the dismantling by the
defendants of the equipments of
the store he had made at his own
expense". Thus any claim which
did not fall within Anterkyi's
order must be caught by the rule
of estoppel.
It is our opinion that the
appellant's claim for "damages
for the detention and/
conversion of the plaintiff's
stock-in trade and furniture as
a result of wrongful execution
of a writ of possession" in
respect of the void judgment in
suit No. 104/75 falls within the
ambit of the rule of estoppel
and that the appeal upon that
ground must fail.
As already indicated above, one
of the claims made by the
appellant against the
respondents in the High Court
was for ¢100, 000.00 awarded
against the respondents by
Anterkyi, J in suit No. 152/76.
It is clear, however, that
amount had long been paid before
the appellant commenced the
present action. The appellant
himself admitted this in his
statement of claim when he
pleaded in paragraphs 8 and 9 as
follows:
(8) The defendants through their
solicitor tendered the sum of
¢100,000.00 without payment of
interest from the date of the
judgment debt as from the 7th of
June 1982 together with the
costs awarded by the Court of
Appeal
(9) The plaintiff states that
the sum of ¢100,000.00 in 1988
paid in satisfaction of a
judgment debt since 1982 does
not amount to the said debt.
The evidence shows that after
the judgment in June 1982, the
respondents appealed to the
Court of Appeal and it was when
the appeal was dismissed in
April 1988 that the respondents
tendered payment. The appellant
refused to accept the money and
the respondents were compelled
to pay it into court.
Accordingly, the respondents in
their statement of defence
pleaded as follows in their
paragraph 2:
(2) Paragraphs 2, 3, 4, 5, 6, 7,
and 8 are admitted and the
defendants say that the
plaintiff rejected the amount
tendered and it has since been
paid into court.
The trial judge made the
following finding:
The defendants say they paid
into court on 6/4/89 ¢115,000.00
being the judgment debt and
costs. This is evidenced by
Exhibit "1".
He then concluded thus:
Therefore in awarding damages, I
will take into consideration the
amount paid into court. I do
award the plaintiff ¢l2 million
as general damages, and one
million cedis as costs.
This judgment of the trial judge
does not suggest that he was
upholding the appellant's claim
for the ¢100,000.00. But it
cannot also be said that the
claim was dismissed. The
respondents' complaint in the
Court of Appeal against such a
judgment was that it was not a
clear judgment. It was the
contention of the respondents
that the trial judge ought to
have made a definite and
unambiguous pronouncement
dismissing that claim on grounds
of estoppel. They told the Court
of Appeal:
"This court is invited to
dismiss the claim [in Suit No
453/89] on the ground that
Dahabieh is estopped…….. it is
submitted that Dahabieh cannot
reopen the matter and pursue his
claim for interest."
Indeed the trial High Court did
not give any consideration to
the appellant's claim for the
¢100, 000.00 with interest
thereon. When the Court of
Appeal was confronted with the
matter, it held, rightly in my
view, that that claim also was
caught in the web of the
estoppel principle, and
accordingly dismissed it. This
is what the Learned Lords, per
Essilfie-Bondzie, J.A, with the
others concurring, said:
"As already pointed out Anterkyi
did not award interest in suit
No. 152/76 and the Court of
Appeal did not consider it
relevant when it affirmed
Anterkyi's decision in 1988. I
do not think Dahabieh could
reopen the matter and pursue his
claim for interest subsequently
in suit No.453/89. It is my
judgment that Dahabieh's claims
for damages and interest in suit
No.453/89 are also res
judicata."
It is true that a party may sue
upon a judgment. But it is not a
common process. It should be
allowed only in special cases
where it does not undermine and
stultify the law's concern for
litigation to be brought to an
end. As we learn from Halsbury's
Laws of England, even though an
action will lie on a judgment
which finally establishes a
debt, if the judgment can be
enforced by some other means,
then it becomes an abuse of
process to bring an action upon
it (see, Halsbury's Laws of
England, 4th Ed. Vol.26, par.
568). A declaratory judgment,
for instance, may confer a right
upon which a fresh action may be
mounted; but where a judgment
establishes a debt the normal
process for enforcement is by
way of execution unless,
perhaps, the circumstances
justify a fresh action to give
effect to the judgment. In the
English case of PRITCHETT v
ENGLISH AND COLONIAL SYNDICATE
[1899] 2 QB 428 where the
English Court of Appeal held
that a garnishor could maintain
an action on a garnishee order
in very peculiar circumstances,
Lindley M.R. noted that even
though an action may lie, "still
if a person who has obtained a
garnishee order brings an action
upon it without any necessity he
will run the risk of having it
stayed as an abuse of the
process of the court and
probably have to pay the costs.
It is obvious that, if the
amount to be paid can be
obtained by execution, but
instead of that he incurs the
expense of an action, that is an
abuse of the process of the
court"
In the instant case the
appellant cannot even be said to
be enforcing a judgment when the
judgment debt had already been
fully satisfied. He was actually
re-litigating the issue of
damages to the properties
damaged in the course of the
void execution of the order of
recovery of possession. We are
of the view that the Court of
Appeal rightly dismissed that
claim, and the appeal against
the dismissal must also fail.
Counsel for the appellant has
argued further that the Court of
Appeal was wrong in allowing the
respondents' counterclaim for
recovery of possession when no
evidence was led to show that
the respondents as landlord had
complied with the provisions of
section 29 (1) of the
Conveyancing Decree, (NRCD 175).
The said counterclaim was
against the appellant and a
company called Tetra Ghana Ltd.
It was the case of the
respondents that the appellant
being their tenant had sublet
the premises to Tetra Ghana Ltd.
without the knowledge and
consent of the respondents. The
appellant denied having ever
sublet or otherwise parted with
possession to the company as
alleged, and that in the
alternative, any restriction on
subletting business premises was
unreasonable. Tetra Ghana Ltd.
also denied that the premises
were sublet to them, and the
appellant contended that he had
just changed the name of his
business from Technical Trading
Company to Tetra Ghana Ltd., and
that there was no question of a
subletting. However, these
denials were proved to be false
when the appellant, under
cross-examination, admitted that
he was only the majority
shareholder in Tetra Ghana Ltd,
implying that Technical Trading
Company and Tatra Ghana Ltd.
were two separate entities; and
this further meant that the
appellant had parted with
possession to another company as
claimed by the respondents.
Besides, it was established that
the appellant was, as at the
time he let in Tatra Ghana Ltd.,
only a statutory tenant holding
a monthly tenancy in his
personal capacity as Dahabieh,
trading under the name of
Technical Trading Company. We
agree with the Court of Appeal
that in the circumstances of
this case the appellant was
bound to comply with section
22(1) of the Rent Act, 1963, Act
220. The section provides:
No person, in any case of a
monthly or shorter tenancy of
any premises, shall sublet such
premises without the written
consent of his landlord.
It cannot be denied that the
appellant breached this
provision, entitling the
respondents to recover
possession under section 17(1)
(b) of the Rent Act, Act 220 of
1963. The Court of Appeal
therefore could properly grant
the respondents' counterclaim
for recovery of possession in
the absence of any legal
obstacle preventing it from
doing so. The appellant did not
raise any legal objection to the
respondents' claim before or
during the trial, in his
pleadings or in his evidence.
When the High Court dismissed
the counterclaim and the
respondents appealed, the
appellant again did not raise
any preliminary objection to the
counterclaim. But in this court
the appellant is now saying that
the counterclaim should not have
been allowed by the Court of
Appeal because the respondents
did not show that they had
complied with section 29(1) of
the Conveyancing Decree, 1973
(NRCD175). Counsel for the
appellant has submitted that "in
the absence of evidence of
compliance [with the said
section 129(1)], the Court of
Appeal ought to have refused
Turqui's counterclaim". He says
that compliance with section
29(1) is a condition precedent
to any action for recovery of
possession. It is true section
29(1) sets a condition
precedent, but whether lack of
evidence regarding compliance
with the requirement of notice
ought to have constrained the
Court of Appeal to dismiss the
counterclaim is debatable in the
circumstances of this case.
Indeed Section 29 only sets out
the process by which the right
of re-entry or forfeiture shall
become enforceable. The lessee
must be given adequate notice
and time to remedy the breach or
make reasonable compensation or
both. In our opinion those
provisions are procedural only,
and whether or not they have
been complied with in any given
case is a question of fact
rather than law to be determined
on the evidence. The point must
be raised at the earliest
opportunity. In a suit tried
before the High Court the issue
of non-compliance should have
been raised on the pleadings or
at any rate, at least, before
the trial court. As we have
already pointed out in this
judgment, the appellant did not
raise this issue of
non-compliance before the High
Court or in the Court of Appeal.
He is raising it for the first
time in this appeal, and the
question is whether it can avail
him.
Our courts have resolved the
matter in several decisions.
Take, for example, the case of
Oman Ghana Trust Holding Ltd. v
Acquah [1984-86] 1 GLR 198. It
was decided by the Court of
Appeal in 1984. In that case
just as in the present one
before us an appeal from the
judgment of the High Court which
denied the respondent's claim
for recovery of possession of
his house was allowed by the
Court of Appeal. Because of the
hardship and inconvenience he
had suffered for five years by
being kept out of possession he
was declared entitled to
immediate possession, and got
the possession a day after the
order. The tenants appealed
against the judgment of the
Court of Appeal to the Supreme
Court and applied for a stay of
execution. In support of that
application the applicants
contended that since they were
statutory tenants and yet the
respondent failed to give them
notice to quit before applying
for the order of possession, and
also failed to give notice to
the rent officer of his
intention to apply for
possession as required by the
Rent Regulations, the order
granting possession to the
respondent was incompetent. The
Court of Appeal, in dismissing
the application, held as
follows:
"Whether the respondent gave the
applicants notice before
commencing action or if he gave
the rent officer the information
required by regulation 18 of the
Rent Regulations ..... were
factual questions determinable
on the evidence. No issue was
made of those points in the
court below and it was only a
matter of speculation whether
those statutory requirements
were met. Had the applicants who
now sought to make an issue of
them done so in the court below,
the judge would have pronounced
upon them in his determination
of the factual questions. It
would come as a surprise to the
respondent if a decision adverse
to him were reached in the Court
of Appeal on those factual
issues on which he was not
required to make in the trial
court. It was therefore too late
to raise those issues."
See also the case of Alameddine
Brothers v Paterson Zochonis and
Co Ltd (1979) 2 GLR 403.
The statutory authority behind
these decisions appears to be
Order 19 of the High Court Rules
which we must not gloss over. It
deals with pleadings generally.
Rules 15 and 16 are relevant
here. They provide as follows:
"(15) Any condition precedent,
the performance or occurrence of
which is intended to be
contested, shall be distinctly
specified in his pleadings by
the plaintiff or the defendant
(as the case may be); and,
subject thereto an averment of
the performance or occurrence of
all conditions precedent
necessary for the case of the
plaintiff or defendant shall be
implied in his pleadings.
(16) The defendant or plaintiff
(as the case may be) must raise
by his pleading all matters
which show the action or
counterclaim not to be
maintainable, or that the
transaction is either void or
voidable in point of law, and
all such grounds of defence or
reply, as the case may be, as if
not raised would be likely to
take the opposite party by
surprise, or would raise issues
of fact not arising out of the
preceding pleadings, as, for
instance, fraud, Statute of
Limitations, release, payment,
performance, facts showing
illegality either by statute or
common law, or Statute of
Frauds."
Under, and by virtue of these
rules, non-compliance with the
requirement of notice by the
Conveyancing Decree ought to
have been specifically pleaded
by the appellant if he had
intended to rely on it; or at
least he ought to have pleaded
such facts as would indicate an
intention to rely on it. It is
wrong for the appellant now to
invite argument on that issue
when the respondents were not
given the opportunity to meet
that defence at the trial. (see
Basil v Kabbara 1966 G.L.R. 102
; Fan Milk v State Fishing
Corporation (1971) 1 G.L.R. 238;
Miller v Attorney General (1975)
2 G.L.R. 31.
Two exceptions have to be noted
in respect of the application of
the rules.
(a) where the matter complained
of amounts to an illegality per
se; see Basil v Kabbara (above).
(b) where there is no element of
surprise; see Asare v Brobbey
(1971) 2 GLR 331.
The appellant's counsel has
contended that the
non-compliance is a matter of
law which the trial court suo
motu, was bound to address even
though it was not specifically
pleaded. But the law is settled
that where the issue raised
amounts to an illegality per se,
none of the parties can invoke
the aid of the court, and the
court itself must take
cognizance of the illegality.
But if the default does not
create an illegality and may
only render the process
unenforceable in law, a party
adversely affected by it may
elect to waive it. In the
instant appeal the
non-compliance complained of
does not belong to the category
of cases creating an illegality
and the appellant, not having
any objection to the
counterclaim at the trial, must
be deemed to have consciously
waived his right to object. The
cases cited by counsel for the
appellant have no application in
this case.
Finally the appellant's last
contention is that the Court of
Appeal ought to have suspended
the order for recovery of
possession. That argument was
not seriously pressed apparently
as there is not much merit in
it, and it could as well have
been abandoned.
As a result the appeal must fail
on all grounds and it is
accordingly dismissed.
J. A. BAMFORD-ADDO (MRS)
JUSTICE OF THE SUPREME COURT
A. K. B. AMPIAH
JUSTICE OF THE SUPREME COURT
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
E. D. K. ADJABENG
JUSTICE OF THE SUPREME COURT
T. K. ADZOE
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Amarkai Amateifio for the
Applicant.
Mr. Kizito Beyuo for the
Respondent. |
