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Land –
Declaration of title - Land
Title Certificate - Damages for
trespass - Trespass - Whether
or not the two parcels of the
stretch of land described as La,
Abafum Quarter Lands is same and
contiguous - Whether or not
Declaration that on the legal
authorities enshrined in the
said two judgments, 1st
defendants said Deed of Gift
dated 28TH March,
1945, Registered as N0211/1945
and the consequential Land Title
Certificate N0 GA 1078 are both
null and void having been
procured by fraud and
misrepresentation.
HEADNOTES
One Okwei Noi
Mensah who on the record is the
plaintiff’s predecessor in the
title was sued by one Stephen
Laryea the first defendant’s
predecessor-in-title in respect
of a parcel of land at La,
Abafum Quarter. The action was
commenced in 1961 and the claim
was for declaration of title to
the said land, damages for
trespass etc. The trial High
Court judge Mrs. Justice Annie
Jiagge on 23rd of
March 1962 entered judgment
against Okwei Noi Mensah and
awarded damages of 50 pounds for
trespass in favour of Stephen
Laryea. Okwei Noi Mensah who
lost the case did not lodge any
appeal against the judgment and
later died. In 1997, however the
plaintiff herein commenced an
action at the High Court, Accra
which has culminated in the
instant proceedings by way of an
appeal before this court. The
basis for this action is that,
Justice Annie Jiagge had relied
on two authorities in her
judgment which were subsequently
overruled by the Supreme Court
in the case of: NII ADOTEI
ADOAKU V. J.K NYAMALOR in Civil
Appeal N014/62 delivered on
13/03/1963. It is therefore the
contention of the plaintiff that
in view of the decision in the
above case overruling Justice
Jiagge’s judgment, the said
judgment (which was not even
appealed against) has no legal
effect whatsoever and further
the deed of gift registered in
the Lands Registry and the Land
Title Certificate which were all
obtained after the judgment are
null and void. The plaintiff
also pleaded fraud, which would
be later addressed in this
judgment. The defendant, as
expected, resisted the
plaintiff’s claim and pleaded
inter alia, that as the
plaintiff’s predecessor-in-title
did not appeal against the
judgment of Justice Jiagge, he
(the plaintiff) is estopped per
rem judicatam from relitigating
the ownership of the land in
dispute. A counterclaim was also
filed with a relief for trespass
against the plaintiff. The
plaintiff appealed to the Court
of Appeal on several grounds but
the appeal was dismissed.
HELD
I think that
the above reasons are sufficient
to dispose of the appeal herein
in favour of the defendants, the
result of which is that the
instant appeal fails and the
decision of the Court of Appeal
is affirmed.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Wallingford v
Mutual Society (1880) 5 App C
697;
Lawrence v.
Lord Norreys (1890) 15 App. 221.
Lawrence v
Norreys (1890), 15 App Cas.210;
[1886-1890] All E.R. Rep.858,
Davy Bros.
Ltd v Garrett (1878), 7 Ch. 218
Akuffo-Addo v
Quashie-Idun [1968] GLR 667
Gordon v
Ganda [1955] 2 All ER 762
Hutt v Morell
(1849) 3 Exch 240, 154 ER 832.
Appeah v
Asamoah [2003-2004] SCGLR 226
Collier v
Walters (1873) LR 17 Eq 252.
Brutuw v
Aferiba [1984-86}1 G.L.R 25;
Cole v
Langford [1896] 2QB 36
Akuffo Addo v
Quashie Idun [1968] G.L.R. 667
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
YEBOAH, JSC:
COUNSEL
BEN QUORNOOH,
ALLIANCE LEGAL FOR THE
PLAINTIFF/ APPELLANT/ APPELLANT.
KIZITO BEYUO,
BEYUO JUMU & CO. FOR THE
DEFENDANTS/ RESPONDENTS/
RESPONDENTS
___________________________________________________________________
J U D G M E N T
ญญญญญญญญญญญญญญญญญญญญญ___________________________________________________________________
YEBOAH, JSC:
The
plaintiff/appellant/appellant
(who shall be referred to as the
plaintiff) commenced an action
against the
defendant/respondent/respondent
(who shall be referred to as the
defendant) in respect of a piece
or parcel of the land at La
forming part of the La, Abafum
Quarter Lands claiming the
following reliefs:
1. Declaration that
the land in dispute in the two
(2) judgments of
I. judgment in suit N0L132/1961
(High Court- presided over by
Mrs. Justice Annie Jiagge) and
ii. judgment in Civil Appeal
N014/1962 (Supreme Court –
presided over by Korsah (CJ),
Crabbe (JSC) touch and concern
two parcels of the same
contiguous stretch of land
described as La, Abafum Quarter
Lands.
2. Declaration that the Supreme
Court’s unanimous judgments
entered on the 13th
March 1963 in Civil Appeal suit
N014/1962 reversed, overruled
and superseded the High Court
Judgment by Mrs. Annie Jiagge
dated 23rd March 1962
in suit N0L132/1961.
3. Declaration that on the
legal authorities enshrined in
the said two judgments, 1st
defendants said Deed of Gift
dated 28TH March,
1945, Registered as N0211/1945
and the consequential Land Title
Certificate N0 GA 1078 are both
null and void having been
procured by fraud and
misrepresentation.
4. An order directing the Chief
Executive, Land Title Registry
to cancel the said Land Title
Certificate N0 GA 1078
immediately as null and void and
of no legal effect whatsoever.
5. Declaration of title of the
land in dispute in the
plaintiff’s family as bona fide
owners in possession.
Additionally, the plaintiff
sought the ancillary reliefs of
recovery of possession,
perpetual injunction and
damages. The facts on which the
case turned, which were found by
the two lower courts not to be
in controversy may be briefly
stated as follows. One Okwei Noi
Mensah who on the record is the
plaintiff’s predecessor in the
title was sued by one Stephen
Laryea the first defendant’s
predecessor-in-title in respect
of a parcel of land at La,
Abafum Quarter. The action was
commenced in 1961 and the claim
was for declaration of title to
the said land, damages for
trespass etc. The trial High
Court judge Mrs. Justice Annie
Jiagge on 23rd of
March 1962 entered judgment
against Okwei Noi Mensah and
awarded damages of 50 pounds for
trespass in favour of Stephen
Laryea.
Okwei Noi Mensah who lost the
case did not lodge any appeal
against the judgment and later
died. In 1997, however the
plaintiff herein commenced an
action at the High Court, Accra
which has culminated in the
instant proceedings by way of an
appeal before this court. The
basis for this action is that,
Justice Annie Jiagge had relied
on two authorities in her
judgment which were subsequently
overruled by the Supreme Court
in the case of: NII ADOTEI
ADOAKU V. J.K NYAMALOR
in Civil Appeal N014/62
delivered on 13/03/1963. It is
therefore the contention of the
plaintiff that in view of the
decision in the above case
overruling Justice Jiagge’s
judgment, the said judgment
(which was not even appealed
against) has no legal effect
whatsoever and further the deed
of gift registered in the Lands
Registry and the Land Title
Certificate which were all
obtained after the judgment are
null and void. The plaintiff
also pleaded fraud, which would
be later addressed in this
judgment.
The defendant, as expected,
resisted the plaintiff’s claim
and pleaded inter alia, that as
the plaintiff’s
predecessor-in-title did not
appeal against the judgment of
Justice Jiagge, he (the
plaintiff) is estopped per rem
judicatam from relitigating the
ownership of the land in
dispute. A counterclaim was also
filed with a relief for trespass
against the plaintiff.
Although the case as filed
raised for the determination of
the trial court a relatively
simple and straight forward case
several issues were
unfortunately set out by the
parties at the hearing of the
application for directions.
Included in the issues in
respect of which directions were
sought were two preliminary
points of law that the court
accepted to be heard. The said
points of law if heard would
have substantially disposed of
the action but it appears from
the record that no further
directions as to the mode of
trial were given by the
presiding judge. Subsequently,
however an order was made for
the parties to file their
respective written submissions
on the preliminary points of
law. On 20/02/2001, however, the
plaintiff in spite of the
pending order of the court to
have the action determined by
legal arguments mounted the
witnesses’ box and opened his
case and called three witnesses
thereafter, before his case was
closed. As it is, the defendants
also testified in support of
their case and called one
witness. The record of appeal
before us is silent as to how a
case which was to be determined
by legal arguments and in
respect of which submissions
were filed pursuant to an order
of the Court was allowed to
proceed to a full scale trial.
In any event, since no issue has
been raised by the parties
before us concerning what is
obviously a procedural lapse
nothing of consequence flows
therefrom. I also think that
the said lapse in procedure has
not resulted in any miscarriage
of justice as the parties were
afforded equally opportunity to
present their cases before
judgment in the matter.
One other procedural
irregularity that may be noted
in the proceedings concerns the
plea of fraud that was raised by
the plaintiff in his statement
of claim which was pleaded thus:
‘’ 7. The Plaintiff further
state that upon the above deed
of gift and Justice Mrs. Annie
Jiagge’s judgment, the
defendants procured and had Land
Title Certificate N0 GA 1078
issued to them on 20th
September, 1988. That the said
Land Title Certificate was
procured by fraud and
misrepresentation.
PARTICULARS OF FRAUD
That the 1st
defendant knew or ought to have
known that Mrs. Annie Jiagge’s
judgment entered on 23rd
March 1962 in suit N0L 132/1961
had been overruled and reversed
by the Supreme Court judgment
dated 13th March 1963
in Civil Appeal N0 14/62( i.e.
Nyamalor’s case)
In the particulars above, it was
not averred that there was
misrepresentation of facts that
from the defendant made
dishonestly by word or conduct
with knowledge that same was
false and intended for the
plaintiff to rely on it to his
detriment. Indeed, a careful
perusal of the particulars above
does not in the least conform
with any standard known to rules
of procedure relating to
pleading fraud in a statement of
claim. It must be pointed out
that fraud qua fraud is such a
serious allegation in legal
proceedings that it should not
be pleaded when counsel could
not from available instructions
form a strong opinion in favour
of it. In Odger’s Principles of
Pleading and Practice, 18th
Edition at page 202, the learned
authors stated the positions as
follows:
‘’Where fraud is intended to be
charged, it must be distinctly
charged, and its details
specified. General allegations,
however strong, are insufficient
to amount to an averment of
fraud of which any court ought
to take notice. (Wallingford v
Mutual Society (1880) 5 App C as
at p. 697; Lawrence v. Lord
Norreys (1890) 15 App. (as at p.
221). Counsel must
insist on being fully
instructed before placing a plea
of fraud on the record.
[Emphasis mine]
In this case, it was not pleaded
that the defendant made any
misrepresentation to the
plaintiff or the officers of the
Land Registry and the Land Title
Registry by suppressing any
facts with the intention of
making them rely on those facts
to their detriment. A
representation must be a matter
of fact. If there is a
misrepresentation of a matter of
law as to the legal consequences
of admitted facts, in the
absence of actual fraud no court
will grant any relief based on
fraud. Indeed, in the case of
LAWRENCE v NORREYS
(1890), 15 App Cas.210;
[1886-1890] All E.R. Rep.858,
the Court said that in the
absence of such averments, the
court may dismiss the action.
Similarly, in the case of
DAVY BROS., LTD v
GARRETT (1878), 7 Ch.
218 Thesiger LJ said as follows:
“Plaintiffs say that fraud is
intended to be alleged yet the
statement of claim contains no
charge of fraud. In the common
law courts no rule was more
clearly settled than that fraud
must be distinctly proved, and
that it was not allowable to
leave fraud to be inferred from
the facts. It is said that a
different rule prevailed in the
Court of Chancery. I think this
cannot be correct. It may not be
necessary to use the word
“fraud’-indeed in one of the
most ordinary cases it is not
necessary. An allegation that
the defendant made to the
plaintiff representations on
which he intended the plaintiff
to act, which representations
were untrue, is sufficient. The
word “fraud” is not used but two
words are used pointing to the
state of mind of the
defendant,-that he intended the
representations to be acted
upon, and that he knew them to
be untrue. It appears to me that
a plaintiff is bound to show
distinctly that means to allege
fraud.”
See also the case of
AKUFFO-ADDO V QUASHIE-IDUN
[1968] GLR 667, at p. 668.
How counsel expected the court
to make a finding of fraud
against the defendants on the
pleadings referred to looks
quite incomprehensible to me
and the more I read the record
of appeal the more certain I was
in my mind that on the state of
the pleadings that it was
inapplicable to the
circumstances of the case. After
receiving evidence from both
sides the learned trial judge
dismissed the claim of the
plaintiff and stated that the
plaintiff was estopped per rem
judicatam by the judgment of
Annie Jiagge J (as she then
was). The plaintiff appealed to
the Court of Appeal on several
grounds but the appeal was
dismissed.
Before this court, three grounds
of appeal have been filed
seeking the reversal of the
judgment in favour of the
plaintiff.
The grounds of appeal filed are
as follows:
(i)
The judgment was grossly against
the weight of evidence
(ii)
The Court of Appeal erred in
law when it simply relied on,
affirmed and/or gave a blank
endorsement to the judgment of
the trial court when the
respondent failed to tender and/
or exhibit before the court the
writ of summons, pleadings,
record of proceedings along with
the judgment of the 1961 suit to
enable it study , scrutinize,
discuss, compare and consider
them (the court process) with
the 1997 suit to determine their
similarities or otherwise so as
to arrive at a decision whether
or not the respondents have
satisfied all the ingredients
of the doctrine of estoppels per
rem judicatam.
(iii)
The court of appeal erred in law
and occasioned serious
miscarriage of justice against
the appellant when in its
judgment it failed to consider
and give indications in the form
of reasons whether or not the
respondents have established all
the ingredient and/ or
constituent elements to sustain
a successful plea of estoppels
per rem judicatam.
In considering the first ground
of appeal it does appear from
the pleadings that the case was
not determined on contentious
facts. Learned counsel for the
appellant appeared to have based
his submissions on the fact that
the evidence led before the
trial court, which was affirmed
by the Court of Appeal was
grossly inadequate thereby
occasioning a miscarriage of
justice. He complained further
that beyond tendering the
judgment of Justice Annie Jiagge
in evidence, no effort was made
to tender the record of
proceedings to enable the court
ascertain the exact area in
dispute and the matters in
respect of which the decision
was made such as to enable the
court determine what was in
issue in the 1977 case. I think
that in so stating the matter,
learned counsel went outside
the scope of the decided cases
on the point. The correct
position discernible from the
collection of cases on the point
is that the judgment itself must
be looked at and where there
have been pleadings these should
also be examined being part of
the record Where, however as in
this case there has been from
the judgment an unambiguous
determination in favour of one
of the parties-the respondents
herein, the court need not look
at the pleadings for the purpose
of attributing a different
meaning to it. See: GORDON v
GANDA [1955] 2 All ER 762.In the
instant case, the appellant took
out the writ of summons herein
and averred that in the previous
case in 1962, there was a
determination in favour of the
respondents against their
predecessors in title in respect
of the same subject matter and
accordingly at the end of the
pleadings there was no burden on
the respondents to prove what
was in issue and as such the
mere production of the verdict
was sufficient to enable the
court determine whether the
plea of estopel by judgment was
established. I observe that
having planked their case on the
very existence of that prior
determination, it sounds ill in
the plaintiff’s mouth
subsequently in the absence of a
retraction of the very words
contained in their pleadings to
turn round to say that the
respondents must fail on the
plea of estoppel arising out of
the previous suit that they
acknowledged and which must have
informed their decision in the
light of the subsequent judgment
to mount the instant action. I
think that when a party to a
cause pleads certain facts on
which reliance is placed by a
court of law to come to a
particular view on the matters
before it, the party who pleaded
to those facts cannot afterwards
be enabled to make any assertion
to the contrary .That party is
precluded from making any
assertion to the contrary of
that which is contained in
pleadings filed on his behalf in
the same cause. The court is
entitled to act on it without
reference to whether it is the
truth or not and therefore the
plea of estoppel ought in the
circumstances of this case to be
allowed. See: HUTT v
MORELL (1849) 3
Exch 240, 154 ER
832.
In my opinion having regard to
the unequivocal nature of the
reliefs claimed in the action
herein and paragraphs 5-17 of
the statement of claim filed on
behalf of the plaintiff in the
court below there has been a
clear admission made by him
that the decision delivered in
1963 was in respect of the same
subject matter and between the
same parties and it being so
both the trial Court and indeed
the Court of Appeal were bound
to have given effect to it
without waiting to inquire
whether the said pleading is
true or not. I think that the
circumstances of this case
particularly the fact that the
question whether or not the
previous judgment was in respect
of the same subject matter and
the parties was not in
contention renders the case of
APPEAH v ASAMOAH
[2003-2004] SCGLR
226 not
applicable to the instant
case. In the circumstances, in
the absence of an order in their
favour by a court of competent
jurisdiction made in the same
action to withdraw the said
pleadings the appellants must
not be allowed to reopen the
facts; for those pleadings were
not made only for the purpose of
that action but for every
purpose. This is the effect of
the statement that a party to an
action is estopped by a previous
judgment from seeking to reopen
the matter. This is in keeping
with the fundamental doctrine f
all Courts that there must be an
end to litigation. When such a
plea is made, it is to the
effect that the whole legal
rights and obligations of the
parties have been concluded by
the previous judgment that may
have involved the determination
of questions of law and findings
of fact then in contention
between them. See:
COLLIER v WALTERS (1873) LR 17
Eq 252. For the above
reasons, the ground of appeal
that sought to impeach the
judgment on the effect of the
admitted evidence fails.
In seeking to be relieved from
the effect of the previous
judgment the appellants relied
on fraud. But in the action,
they also sought to rely on
certain other facts not
amounting to fraud contrary to
the settled judicial opinion
that a party who seeks to set
aside a judgment on the ground
of fraud must plead fraud and no
other facts. See: (1)
BRUTUW v AFERIBA
[1984-86}1 G.L.R 25; (2)
COLE v LANGFORD [1896]
2QB 36. Delivering his
judgment in the Brutuw case
(supra), Francois JA (as he then
was) at page 38 made the
following pronouncement:
“An important observation must
be made here. In a suit charging
fraud there is clear impropriety
for a plaintiff to reopen his
entire case. Jonesco v Beard
[1930] AC 298 at 300-301, HL is
authority for the principle that
where a judgment is attacked for
fraud, fraud only must be in
issue It is not a rehearing of
the whole case…………………”
It appears from the comments
earlier on made in this judgment
that the pleadings not having
evinced a case of fraud in line
with the requirements as to the
content of pleadings, the Court
ought to have had the pleadings
struck out but unfortunately the
action was allowed to proceed to
a trial with the result that the
appellants were not able to lead
any evidence to substantiate the
said incompetent pleading. In
the case of AKUFFO ADDO v
QUASHIE IDUN [1968]
G.L.R. 667[Full Bench], Amissah
JA (as he then was) made the
following important observation
that appears to be of much value
to us in these proceedings:
“Even in the most ordinary of
cases an allegation of fraud is
a very serious matter. It is not
lightly made. The Courts look
with disfavour on a party who
makes it and is unable to
substantiate it, visiting his
action sometimes with heavy
penalties.”
A careful reading of the
matters relating to the land
title certificate No GA 1078
that were averred as raising a
case of fraud reveals that they
relate to the attribute that a
party who obtains a judgment
against another that is not
appealed has in the eyes of the
law and as such do not come
within the designation of facts
such as to be a legitimate
ground for a claim in fraud
against the holder of the
subsisting judgment. On
principle therefore all the
urgings made to this court in
that behalf are wholly without
merit and I propose not to spend
any further time on it beyond
saying that the claim relating
thereto is a misconception as
to the real effect and nature of
the judgment delivered in
1962.Since that judgment was not
on appeal in the Supreme Court
case determined in Civil Appeal
No 14/1962 even if the effect
of the decision in the appeal
was to overrule it, it cannot
operate to nullify it as was
contended on behalf of the
plaintiff before us. The correct
legal position that runs through
all the cases on the point is
that which appears in holding 3
of the head note in the case of
CHANIN & SONS v EPOPE
PRINTING PRESS as
follows:
“An erroneous judgment is only
voidable and even though an
appeal may be pending execution
lies on it as a matter of course
unless a stay is granted by the
Court. An erroneous judgment
creates estoppel between the
parties to it and when it is
reversed, it cannot be treated
as though it never existed.”
I think that the above
reasons are sufficient to
dispose of the appeal herein in
favour of the defendants, the
result of which is that the
instant appeal fails and the
decision of the Court of Appeal
is affirmed.
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
S. A
BROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
R. C. OWUSU
(MS)
JUSTICE OF THE SUPREME COURT
N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
COUNSEL:
BEN QUORNOOH,
ALLIANCE LEGAL FOR THE
PLAINTIFF/ APPELLANT/ APPELLANT.
KIZITO BEYUO,
BEYUO JUMU & CO. FOR THE
DEFENDANTS/ RESPONDENTS/
RESPONDENTS
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