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Practice and Procedure - Res
judicata - Land - Ownership
- Whether
preliminary points of law need
not necessarily be tried before
the action goes to trial
HEADNOTES
In relation to the subject
matter of the action herein the
identity of the disputed land
must either be the same or have
a juridical identity with the
area covered by the previous
judgment; both areas must be
relational The problem with
which we are confronted in this
appeal is not lightened by the
failure of both parties who
instead of describing the
respective areas claimed by them
in the writ of summons and or
their pleadings curiously
attached site plans to their
pleadings. -
HELD :-
Any preliminary
issue that falls to be tried in
the course of an action should
always be one in which great
care is taken to ensure that the
issue presented for decision is
well defined and that the facts
on which it has to be considered
are clearly ascertainable.” The
resort to order 33 to make
orders for separate trial of
issues is thus a case management
technique which when not well
employed might end up delaying
the action as the instant one
clearly appears to have done.
In our view, these reasons are
sufficient to allow the appeal
for the case to be remitted to
the trial court for a re-trial
in accordance with law.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules, CI 47. order 33 rule 5
CASES REFERRED TO IN JUDGMENT
Radstock Co-op Industrial
Society Ltd v Norton- Radstock
UD [1968] 2 All ER 59.
Apenteng & Ors v Bank of West
Africa Ltd & Ors [1961] GLR 196
Tilling v Whiteman [1979] 1 All
ER 737
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
GBADEGBE JSC:-
COUNSEL.
AYIKOI OTOO FOR THE
PLAINTIFF/APPELLANT.
S. R. BREMPONG FOR THE
RESPONDENT/RESPONDENT.
JUDGMENT
GBADEGBE JSC:-
We have given careful
thought and consideration to the
appeal herein and come to the
view that the decision of the
trial court to try the question
of res judicata as a preliminary
point of law was wrong for the
reasons which follow shortly. In
the first place, at the time of
the order being made, there was
no certainty regarding the area
in respect of which the plea of
res judicata, if upheld by the
court was to apply. In our
opinion before a court of law
can cause the issue of res
judicata to be determined before
a full scale trial, the identity
of the area to which it relates
in relation to the previous
judgment on which the point is
planked must be clear. In
relation to the subject matter
of the action herein the
identity of the disputed land
must either be the same or have
a juridical identity with the
area covered by the previous
judgment; both areas must be
relational, so to say. See:
Radstock Co-op Industrial
Society Ltd v Norton- Radstock
UD [1968] 2 All ER 59. The
problem with which we are
confronted in this appeal is not
lightened by the failure of both
parties who instead of
describing the respective areas
claimed by them in the writ of
summons and or their pleadings
curiously attached site plans to
their pleadings. In the
circumstances, notwithstanding a
clear admission by the plaintiff
of the issue of a previous case
between them in the Circuit
Court in which the ownership of
part of the disputed area was
decided, one of the essential
conditions necessary to sustain
the plea of res judicata was
absent rendering it improbable
for a trial of that issue alone
likely to result in a decision
that would substantially dispose
of the matter as contemplated by
order 33 rule 5 of the High
Court (Civil Procedure) Rules,
CI 47. We are of the opinion
from a fair reading of the said
rule that when an order for the
trial of a preliminary point of
law does not achieve the
purposes of sub-rule 5 then the
decision directing the trial of
the issue is unjustified. The
rule provides:
“Where it appears to the
Court that the decision of any
question or issue arising in any
cause or matter and tried
separately from the main cause
or matter substantially disposes
of the cause or matter or
renders trial of the main cause
or matter unnecessary, it may
dismiss the cause or matter or
make such other order or give
such other order or give such
judgment as may be just.”
See: Apenteng & Ors v Bank
of West Africa Ltd & Ors [1961]
GLR 196
We think that when a trial
judge is faced with an
application under Order 33 of
the rules of the High Court, he
must read the entire provisions
of the Order as if it were a
single document in order to
discern the purpose for which
such provisions were made and
direct his mind to whether the
order sought is likely to
advance the course of the action
towards an earlier disposal
within the intendment of the
rules and only make the order
when satisfied from the
pleadings and the application
before him that indeed, making
an accession to the prayer of
the applicant would result in
a substantial disposal of the
matter or render the
determination of the other
issues in the matter
unnecessary. This explains why
in the rule authorizing the
exercise of that discretion
contained in Order 33 rule 3, it
is provided as follows:
‘‘ The Court may order any
question or issue arising in any
cause or matter whether of fact
or partly of fact and partly of
law, and raised by the pleadings
to be tried before, at or after
the trial of the cause or matter
and may give directions
accordingly.”
Contrary to what must have
weighed upon the mind of the
learned trial judge, preliminary
points of law need not
necessarily be tried before the
action goes to trial but may in
the words of rule 3 of the Order
be tried “before, at or after
the trial of the cause or
matter.” We think that courts
should give careful
consideration to such
applications before deciding
which of the three options open
to them they are to decide on.
The decision as to which
particular order to make is
dependent on the circumstances
of the case. Where such a point
cannot be conveniently tried
before the trial of the main
action then the preferable
approach is to enable the said
point of law or fact or both to
proceed to trial so that after
receiving all the evidence in
the matter, the court may
determine the point. The issue
of res judicata need not be
determined separately but may
subject to the particular
circumstances of the case be
determined “ at the trial of the
main cause or matter.’’
In the case before us,
having regard to the uncertainty
over the subject matter and the
fact that at the time, a merit
consideration of the action
had already begun , the
learned trial judge erred when
he purported to have put an end
to the full scale trial in order
to determine the issue of res
judicata. In our view, the court
should have taken the factors
hereinbefore alluded to into
account and allowed the trial to
proceed in order that the issue
of res judicata might be
determined “at the trial”.
Adopting that course of
proceeding would have saved the
time and expense which have been
expended to date in the action
herein and actually have
benefited the parties as by the
time evidence closed in the
matter the learned trial judge
would have been in a position
to find the facts on which the
issue of res judicata was based.
Reference in this regard is made
to the observations of
Wilberforce LJ in the case of
Tilling v Whiteman [1979] 1 All
ER 737 in the course of which he
made the following observation
at page 738-739:
“I with others of your
Lordships have protested against
the practice of allowing
preliminary points to be taken,
since this course frequently
adds to the difficulties of
courts of appeal and tends to
increase the cost and time of
legal proceedings.”
Before bringing this
matter to rest, we wish to echo
the words of Sachs LJ at page 70
in the Radstock case (supra)
wherein he observed as follows:
“ Any preliminary issue
that falls to be tried in the
course of an action should
always be one in which great
care is taken to ensure that the
issue presented for decision is
well defined and that the facts
on which it has to be considered
are clearly ascertainable.”
The resort to order 33 to
make orders for separate trial
of issues is thus a case
management technique which when
not well employed might end up
delaying the action as the
instant one clearly appears to
have done.
In our view, these
reasons are sufficient to allow
the appeal for the case to be
remitted to the trial court for
a re-trial in accordance with
law.
SGD.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
SGD. V. J. M.
DOTSE
(JUSTICE OF THE SUPREME
COURT)
SGD. ANIN
YEBOAH
(JUSTICE OF THE SUPREME COURT)
SGD. A. A.
BENIN
(JUSTICE OF THE SUPREME COURT)
SGD. G.
PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
AYIKOI OTOO FOR THE
PLAINTIFF/APPELLANT.
S. R. BREMPONG FOR THE
RESPONDENT/RESPONDENT. |
