Practice and Procedure -
Certiorari
-
Estoppel - Res judicatam - Land
– Ownership - Declaration of
title - Damages for trespass -
Recovery of possession –
Injunction - Abuse of process
HEADNOTES
The 1st Interested
Party herein sued the 2nd
and 3rd Interested
parties in a suit for
declaration of title to 2.0
acres of land situate at East La
Dadekotopon,
damages
for trespass, recovery of
possession and injunction to
restrain further trespass. After
entering appearance and without
filing a defence, the 2nd
and 3rd Interested
Parties prayed the high court
for an order to dismiss the suit
on the ground that it is an
abuse of
process. the ground for
their application was that the
issue of
ownership of the land in
dispute had been decided
HELD
We
note that Applicant was not a
party to the proceedings in
question, though affected by the
Orders. The date on which the
Applicant was served with the
ruling herein has not been
established before this court.
We are satisfied that the time
limit for filing processes may
not be invoked against the
applicant herein given the above
circumstances.
Let the proceedings of 30th
March 2020 ruling and orders
made by Amo Yartey J in suit
titled Adolph Tetteh Adjei v
Anas Aremeyaw Anas, Holy Quaye
Suit No LD/0256/2017 dismissing
the suit be brought up for
purposes of being quashed and
are hereby quashed. The
Registrar of the Land Division
of the High Court is to place
the case of Adolph Tetteh Adjei
v Anas Aremeyaw Anas, Holy Quaye
Suit No LD/0256/2017 before
another Judge for continuation
and determination of the matters
in controversy between the
parties.
STATUTES REFERRED TO IN JUDGMENT
Supreme
Court Rules, 1996 CI 16
Supreme Court (Amendment)
Rules, 1999 CI 24.
CASES REFERRED TO IN JUDGMENT
Republic
v High Court, Accra; Ex Parte
Industrialization Fund for
Developing Countries and Another
2003-2004 1SCGLR 348
Republic v Court of Appeal; Ex
Parte Tsatsu Tsikata 2005 – 2006
SCGLR
Esso Petroleum Co Ltd v
Southport Corporation 1956 AC
218
Dam v J. K. Addo and Brothers,
1962 2 GLR 200
In re Arthur, Abakah v Attah-Hagan
1972 1 GLR 442
Lutterodt v Nyarko 1999– 2000 1
GLR 29
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England (4th
Edition) Volume 26
DELIVERING THE LEADING JUDGMENT
TORKORNOO
(MRS), JSC:-
COUNSEL
EZRA ALABI BORQUAYE FOR THE
APPLICANTS.
EMMANUEL BRIGHT ATOKOH FOR THE 1ST
INTERESTED PARTY.
DAVID AMETEFE FOR THE 2ND
INTERESTED PARTY.
______________________________________________________________
TORKORNOO (MRS), JSC:-
The matters in controversy in
this application for an
Order of
Certiorari have zig-zagged
between the High Court, the
Court of Appeal and the Supreme
Court, since 2017, and
unworthily so.
BACKGROUND
On 8th March 2017,
the 1st
Interested Party herein sued the
2nd and 3rd
Interested parties in a suit
titled and numbered Adolph
Tetteh Adjei v Anas Aremeyaw
Anas, Holy Quaye Suit No
LD/0256/2017 for declaration
of title to 2.0 acres of land
situate at East La Dadekotopon,
damages for trespass, recovery
of possession and injunction to
restrain further trespass. After
entering appearance and without
filing a defence, the 2nd
and 3rd Interested
Parties prayed the high court
presided over by Justice Gyimah
for an order to dismiss the suit
on the ground that it is an
abuse of process.
According to the Ruling of
Gyimah J attached to the
application before us as Exhibit
B and dated 31st
August 2017,
the
ground for their application was
that the issue of ownership of
the land in dispute had been
decided by Justice
Ofori-Atta in 2010 in the case
of
Edward Mensah Tawiah,
and Ewormenyo Ofoli Kwashie
v The Ag Chief Registrar of
Lands and The Trustees,
East Dadekotopon Development
Trust, Suit No BL 431/2006.
That, the parties in the
dispute before Gyimah J were
privies of the parties in the
case decided by Ofori Atta J and
therefore, the dispute regarding
title to the land claimed by the
1st Interested Party
herein was a matter that is res
judicata.
Gyimah J also found from the
affidavits and arguments of
Counsels that though the
judgment of Ofori Atta J had
been appealed against and
compromised in Terms of
Settlement and a Consent
Judgment that the Court of
Appeal had adopted as the
Appellate judgment in Edward
Mensah Tawiah , Ewormenyo
Ofoli Kwashie v The Ag Chief
Registrar of Lands and The
Trustees, East Dadekotopon
Development Trust, that
Consent Judgment had been
declared to be void on account
of fraud by a ruling given by
Justice Abada in
Daniel
Ofoli Ewormienyo v. Edward Nsiah
Akuetteh and numbered BMISC
720/2015.
According to Gyimah J in his
ruling, it had been pointed out
to him that the decision of
Abada J in suit number BMISC
720/2015 was an
interlocutory decision in a
different matter than what was
before Gyimah J. Still, in
Gyimah J’s opinion, ‘a
careful reading of the decision
(by Abada J) revealed
that the said decision
effectively determined the
rights between the parties’
(in this Suit No LD/0256/2017
before Gyimah J).
Gyimah J went on to say that
Abada J had held in his 2015
interlocutory decision in
BMISC 720/2015 that Edward
Nsiah Akuetteh, who was the
defendant in that suit before
Abada J, and the person
substituted for Ewormenyo Ofoli
Quarshie at the Court of Appeal
when Edward Mensah Tawiah ,
Ewormenyo Ofoli Kwashie v The
Ag Chief Registrar of Lands and
The Trustees, East Dadekotopon
Development Trust, Suit No BL
431/2006 went on appeal,
was not the rightful person
to have succeeded Ewormenyo
Ofoli Quarshie. And as such any
compromises Edward Nsiah
Akuetteh made in the Court of
Appeal in could not be binding
on the family of Ewormenyo Ofoli
Quarshie. It was also the
holding of Abada J in his
interlocutory decision in
BMISC 720/2015 that since
the Consent Judgment in the
Court of Appeal was based on
this substitution, it was a
fraud that was played on the
Court of Appeal and the said
Consent Judgment cannot stand.
In describing this position to
be a final judgment from Abada
J’s ruling on an application for
interlocutory injunction, it was
the view of Gyimah J that by
reason of Abada J’s ruling,
Ofori Atta J’s judgment of 2010
still held valid and operated as
estoppel against the parties in
Edward Mensah Tawiah ,
Ewormenyo Ofoli Kwashie v The Ag
Chief Registrar of Lands and The
Trustees, East Dadekotopon
Development Trust, and their
privies. He was satisfied that
the 1st, 2nd
and 3rd interested
parties herein were privies of
the parties in the case of
Edward Mensah Tawiah,
Ewormenyo Ofoli Kwashie v The Ag
Chief Registrar of Lands and The
Trustees, East Dadekotopon
Development Trust. Gyimah J
therefore found the doctrine of
estoppel per rem judicatam
operative regarding the claims
of the 1st Interested
Party against the 2nd
and 3rd Interested
Parties and dismissed this suit
on 31st August 2017.
The 1st Interested
Party appealed against this
Gyimah J decision. In its
judgment dated November 29th
2018, the Court of Appeal
reversed the decision of Gyimah
J as erroneous in law. The Court
of Appeal found and held that
the Ofori Atta J judgment had
been set aside on appeal in 2015
and therefore had no force of
law to bind anyone. Second,
Ofori Atta J’s orders directing
the cancellation of the title
deeds of the East Dadekotopon
Development Trust had never
been executed because the Court
of Appeal had stayed execution
of its orders. Further, in place
of the Ofori Atta J. judgment,
the parties to that suit had
reached a compromise agreement
on appeal, that the Court of
Appeal entered as a Consent
judgment regarding their claims
on 27th April 2015.
Thus as between the parties in
Edward Mensah Tawiah,
Ewormenyo Ofoli Kwashie v The Ag
Chief Registrar of Lands and The
Trustees, East Dadekotopon
Development Trust, Suit No BL
431/2006 and their privies,
the final judgment on the
matters settled by Ofori Atta J
was the Consent Judgment entered
by the Court of Appeal on 27th
April 2015.
Regarding the Abada J ruling
that purported to determine the
rights of the parties in
Daniel Ofoli Ewormienyo v.
Edward Nsiah Akuetteh and
numbered BMISC 720/2015, and
stretch to the parties in
Edward Mensah Tawiah,
Ewormenyo Ofoli Kwashie v The Ag
Chief Registrar of Lands and The
Trustees, East Dadekotopon
Development Trust, Suit No BL
431/2006, the Court of
Appeal found it totally flawed
in law on three premises. To
quote from the judgment of the
Court of Appeal on page 17
‘In that one judgment alone,
he (Abada J) flouted three
fundamental rules of law;
firstly he purported to set
aside a judgment allegedly on
grounds of fraud when that was
not a relief asked for by the
plaintiff. Secondly he purported
to set aside the judgment of the
Court of Appeal which was in
breach of the principle of stare
decisis and thirdly he granted
declaratory reliefs without
going through a full hearing
which was against the principle
that declaratory reliefs can
only be granted after a full
trial or full legal argument.
Even though the said judgment
has not been formally set aside,
it is a void judgment that to
all intents and purposes, can be
set aside at the instance of any
legitimate party… From the
analysis above, the decision of
Abada J has no legal legs to
stand on much less to carry some
other weight’
The Court of Appeal reversed the
Gyimah J ruling dismissing the 1st
Interested Party’s suit, and
remitted the suit back to the
High Court for trial of the
claims. The suit was placed
before Amo Yartey J for trial.
The 2nd Interested
party then filed his Statement
of Defence and counterclaimed
for:
a)
A declaration that the Trust
Deed of 10th April
2002 and Consent Judgment dated
12th July 2001 Suit
No L 353/97 title Nii Kpobi
Tetteh Tsuru 111 v Ato Quarshi &
Ors together with the Terms of
Settlement dated 11th
July 2001 which knowingly took
over Ataa Tawiah Tsinaiatse land
without knowledge and/or
consent, were void, vitiated by
and tainted with fraud
b)
An order setting aside and or
cancelling the said judgment(s)
or orders or terms of
settlement, title documents,
deeds, certificates and
judgments, rulings, or orders
founded or affected thereby
c)
Any other orders just and fair
Thus issues seem joined between
the Interested Parties herein
for the High Court to determine
whether the 1st
Interested party is entitled to
his declaration of title in 2.0
acres of land and consequential
reliefs of damages and
injunction, or the 2nd
Interested party can sustain an
action against the 1st
Interested Party for
counterclaims that attack a 2001
Terms of Settlement and judgment
in the case of Nii Kpobi
Tetteh Tsuru 111 v Ato Quarshie
& Others Suit No L 353/97,
and a 2002 Trust Deed and all
title deeds, certificates and
judgments, rulings, or orders
founded on the said judgment and
Trust Deed.
After the remission of this suit
between the Interested Parties
herein to the High court for
trial, Abada J entered a final
judgment in Daniel Ofoli
Ewormienyo v. Edward Nsiah
Akuetteh and numbered BMISC
720/2015. This was on 21st
May 2019 and is hereinafter
referred to as the 2019 Abada J
judgment.
In this 2019 judgment, Abada J
went on an odyssey to link the
suit before him that is on
family succession and capacity
to deal with family lands as
seen from the reliefs set out
earlier in this ruling, to the
earlier case of Edward Mensah
Tawiah, Ewormenyo Ofoli
Kwashie v The Ag Chief Registrar
of Lands and The Trustees, East
Dadekotopon Development Trust,
Suit No BL 431/2006,
adjudged by Ofori Atta J in
2010. After meandering through
various matters, Abada J ended
by granting the three distinct
reliefs claimed by the
Plaintiffs before him and costs.
These reliefs were:
a.
A declaration that the plaintiff
in his capacity as the first son
of the deceased Ewormienyo Ofoli
Kwashie i.e. head of the Nuumo
Ofoli Kwashie Family is the
rightful next of kin, heir or
successor to Ewormienyo Ofoli
Kwashie
b.
A declaration that the defendant
is and cannot be the next of
kin, heir or successor to the
deceased, Ewormienyor Ofoli
Kwashie and does not have the
mandate to deal with the Nuumo
Ofoli Kwashie Family lands in
any manner or form whatsoever
c.
An order of perpetual injunction
to restrain the defendant from
fraudulently misrepresenting and
holding himself out as being the
next of kin to the deceased
Ewormienyo Ofoli kwashie and
dealing with any or all of the
Nuumo Ofoli Kwashie Family Lands
in any manner or form whatsoever
d.
Costs
e.
Any further Orders that this
Honorable Court shall deem fair
and just
For the further Orders sought in
relief (e) Abada J said on page
27 of his judgment that:
‘As regards relief (e) I
shall repeat the trial courts
orders in Suit No BL 431 2006 as
follows
‘It is hereby ordered that the 1st
defendant issue a Land Title
Certificate in the joint names
of the plaintiffs in respect of
the above land. Covering the
808.644 acres fully described in
Cadastral Registration Map No
X2926 indexed as No 05145/97 and
published as No. 199 in the
Weekly Spectator of 12th
April, 2003 within 30 days from
today.
It is further declared that the
2nd Defendants are
not entitled to make grants of
any of the plaintiffs said land
It is ordered that plaintiffs
doth recover any part of the
land contained in cadastral
registration map no X2926
granted by the 2nd
defendant without the consent
and concurrence of the
plaintiffs’.
It is not clear who the 1st
defendant that Abada J was
ordering to issue a Land Title
Certificate was, or who the 2nd
defendant that the plaintiff was
supposed to be recovering land
from, was. In the suit before
him, there was only one
plaintiff and only one
defendant.
What is clear is that there was
no relief sought from Abada J
concerning the Consent Judgment
arrived at in Edward Mensah
Tawiah , Ewormenyo Ofoli
Kwashie v The Ag Chief Registrar
of Lands and The Trustees, East
Dadekotopon Development Trust
in the Court of Appeal. Neither
was there any relief sought from
Abada J regarding the subject
matter he described in ‘relief
e’. Nor were the Applicant
herein, the East Dadekotopon
Development Trust, and
the Registrar of Lands, parties
in the suit before Abada J.
Thus in arriving at a relief ‘e’
lifted from the judgment of
Ofori Atta J in Edward Mensah
Tawiah , Ewormenyo Ofoli
Kwashie v The Ag Chief Registrar
of Lands and The Trustees, East
Dadekotopon Development Trust
Suit No BL 431/2006; Abada J
had granted the parties before
him an unsolicited relief lifted
from a suit that was not tried
by him, that had already been
reversed by a court above him.
With this state of affairs, the
Applicants before us, whose land
Abada J had purported to grant
rights to in this ‘relief e’,
albeit without jurisdiction, and
without hearing them, brought
the Abada J 2019 judgment to the
Supreme Court for an order of
Certiorari to quash same. In
what has been described as a ‘terse
ruling’ on 19th
November 2019, the Supreme Court
had no difficulty quashing Abada
J’s 2019 ‘relief e’ with these
words:
‘On the substantive
application to issue a writ of
Certiorari to quash the judgment
of the High Court (Probate
Division) Accra dated 21st
May 2019, Suit No BMISC/720/15
presided over by Abada J, we
agree with the Applicants that
the learned trial judge had no
jurisdiction to grant the
reliefs he purported to grant on
page 27 of the judgment, to wit
relief (e) in which the learned
trial Judge proceeded to make
orders granting title of 808.644
acres of land to the Plaintiffs
therein. Accordingly, the said
orders are hereby brought up to
be quashed by certiorari and
same are accordingly quashed’
Faced with history such as
recounted above, one would have
imagined that the Interested
Parties before us would focus on
ensuring that the issues in
controversy in their case that
had been side stepped by the
short lived Gyimah ruling, and
cast back down to the high court
for trial would be properly
tried and determined, devoid of
the diet of presenting the 1st
Interested Party’s claims to be
res judicatam through the Ofori
Atta judgment that had been
reversed by the Consent Judgment
in the Court of Appeal, and the
Abada J judgment and order that
had been quashed by the Supreme
Court.
On 23rd December
2019, barely a month after the
Supreme Court decision quashing
the 2019 Abada J judgment on the
alleged grant of ‘relief e’,
counsel for 2nd
Interested party filed an
application before Amo Yartey J
to dismiss the action of the 1st
Interested party herein for ‘estoppel
per rem judicatam the judgments
(1) Edward Mensah Tawiah ,
Ewormenyo Ofoli Kwashie v The
Ag Chief Registrar of Lands and
The Trustees, East Dadekotopon
Development Trust, dated 7th
December 2019 (sic) per Ofori
Atta J (2) Daniel Ofoli
Ewormienyo v. Edward Nsiah
Akuetteh and numbered BMISC
720/2015 dated 21st
May 2019 per ANTHONY ABADA J And
for abuse of process’
In his supporting affidavit, the
Applicant (2nd
Interested party herein) stated
in paragraphs 17 and 18 that it
was against the Consent Judgment
entered on appeal against the
Ofori Atta judgment that the
suit before Justice Abada
culminating in the 21st
May 2019 had been initiated.
This averment certainly has no
truth, by a simple perusal of
the claims that the plaintiffs
in Daniel Ofoli Ewormienyo v.
Edward Nsiah Akuetteh and
numbered BMISC 720/2015 took
to court – which I have quoted
earlier.
He continued that the 2019
judgment of Abada J specifically
found fraud as admitted orally
and on oath by the defendant
before him, for which reason the
Consent Judgment in the Court of
Appeal was set aside for fraud
by Abada J. This also cannot be
tenable, since the jurisdiction
given to Abada J to determine
the matters in issue between
Daniel Ofoli Ewormienyo v.
Edward Nsiah Akuetteh and
numbered BMISC 720/2015 did
not include determination of
whether or not the Consent
judgment should be set aside,
for fraud or any other reason.
Indeed, Abada J did not pretend
to make any orders regarding the
Consent Judgment that was
entered in the Court of Appeal
dated 27th April
2015. On page 26 of his
judgment, after discussing all
sorts of issues regarding
interlocutory injunctions on the
previous page, he said ‘If
this is the position of the law
and the Defendant having
admitted openly in the well of
court that his action was wrong
and fraudulent then any
subsequent decision, order or
judgment premised on that
falsehood be it the consent
judgment fraudulently procured
from the court of Appeal or the
Supreme Court are all null and
void and are accordingly set
aside’
These words cannot be found to
be directed at any particular
person or proceedings and can at
best be ignored. It is no wonder
then that the Supreme Court
ignored the body of the judgment
including those words, and gave
the ‘terse’ order quashing the
‘relief e’ that was crafted as
part of Abada J’s final orders.
The 2nd Interested
Party in applying to the High
Court for recognition of Abada’s
2019 judgment as binding
precedent against the parties in
Adolph Tetteh Adjei v Anas
Aremeyaw Anas, Holy Quaye Suit
No LD/0256/2017 said in
paragraph 22 of the affidavit in
support of the application that,
from the Supreme Court decision
of 19th November
2019, the Judgment of Justice
Abada finding fraud against the
Court of Appeal Consent Judgment
was affirmed by the Supreme
Court’s silence on the words of
Abada J on page 26, leaving it
as an undisturbed holding, and
that the Supreme Court’s
quashing order was related to ‘only
one inconsequential relief (e)’.
In paragraph 23, the 2nd
Interested Party also said that
the Supreme Court has brought
finality to the status of the
2010 judgment of Justice Ofori
Atta, the 2015 Consent Judgment
of the Court of Appeal, and the
2019 judgment of Justice Abada,
because by failing to quash
Abada J’s judgment fully, Abada
J’s judgment had the effect of
setting aside the Consent
Judgment entered on appeal
against the Ofori Atta Judgment,
and reviving the validity of the
Ofori Atta judgment in the high
court.
We must immediately say that
this is extremely strange
reasoning, given the ambit of
the case that Abada J was
supposed to be considering, the
parties in the suit before him,
the specific reliefs he granted,
and his vague comments on page
26 quoted earlier, as well as
the quashing of the ‘relief e’,
which was the only element in
the judgment that specifically
attempted to repeat the orders
in the Ofori Atta judgment of
2010.
Be that as it may, when Amo
Yartey J considered this
application and these averments,
he also said on page 11 of his
ruling on the application before
him concerning the proceedings
in the Supreme Court quashing
the Abada J judgment of May
2019:
‘It is emphatic and clear
that the Supreme Court only
quashed orders made in relief
(e) of page 27 of Justice
Abada’s judgment and not the
entire Judgment or any one part
thereof. Thus aside holding (e),
the rest of the Judgment of
Justice Abada was not disturbed
by the Supreme Court. As counsel
for the Applicant rightly put it
this by correlation means that
the Consent judgment entered by
the court of appeal on the 27th
April 2015 is no longer valid as
it has been set aside in Justice
Abada’s judgment of 21st
May 2019. The Supreme Court did
not disturb that holding. It is
my considered view that the
valid judgment as between the
grantors of the parties is that
of Justice Ofori Atta J which
was delivered on the 7th
December 2010 in favor of the
then Plaintiffs that was
restored. The issue as to who
owns Opintin lands in the case
of Adolph Tetteh Adjei v Anas
Aremeyaw & Holy Quaye is res
judicata per the judgment of
Ofori Atta J which involved
their respective grantors.’
Amo Yartey J went on to hold
that since the Land Title
Certificate of the Trust through
which the 1st
Interested Party traces his
title to has been found to be a
product of fraud and declared
null and void by Ofori Atta J,
the issue of ownership of the
land claimed by 1st
Interested party is also res
judicata and the Trust and their
privies are estopped from
reopening the same matter again.
He found his way clear to
summarily dismissing the action
sent to him to try on the
principle of estoppel per res
judicatam.
APPEAL
We note 2nd
Interested Party’s counsel’s
submissions that an appeal has
been filed in the Court of
Appeal against this same ruling
brought to us to quash and
written submissions have been
placed before the Court of
Appeal
Notwithstanding this appeal, it
is important to appreciate the
critical difference between the
supervisory jurisdiction of the
Supreme Court that allows the
court to quash decisions made
without jurisdiction or through
grevious errors of law apparent
on the face of the record, and
the appellate jurisdiction that
allows a reversal, variation or
affirmation of a decision. In
the grant of an order for
Certiorari, the order cures
faulty foundations on which a
judicial decision cannot be
built, by removing the unseemly
decision from the corpus of
decisions in the jurisdiction.
Such faulty foundations include
when a court acts without
jurisdiction, including the
violation of rules of natural
justice, or in excess of its
jurisdiction by purporting to
determine matters not included
in those before it, or a court
grounds a decision on an error
of law that is so incurably bad
that the decision itself is a
nullity. As held by the Supreme
Court speaking through Barmford
Addo JSC in
Republic v High Court, Accra; Ex
Parte Industrialization Fund for
Developing Countries and Another
2003-2004 1SCGLR 348 at
354, ‘When the high court, a
Superior Court, is acting within
its jurisdiction, its erroneous
decision is normally corrected
on appeal whether the error is
one of fact or law.
Certiorari, however,
is a discretionary remedy, which
would issue to correct a clear
error of law on the face of the
ruling of the court; or an error
which amounts to lack of
jurisdiction in the court so as
to make the decision a nullity’
Cases that are properly tested
in the appellate process are
decisions in which the court had
a proper basis for arriving at
the decision, and the court does
so within the firm walls of the
law of procedure and the
substantive law of the matters
in issue. The only complaint
against such decisions is that
part or all of the decision may
be wrong, given the proper
interpretation or application of
law, and evaluation of fact. The
exercise on appeal determines
whether the decision is correct
in fact and law. The exercise
done in the Supreme Court when
it exercises supervisory
jurisdiction with orders of
certiorari determines whether
the decision is valid at all,
given the lack of jurisdiction,
and fundamental error of law
that is apparent on the record.
CONSIDERATION
In the present case, since the
‘judgments’ and ‘holdings’ on
which Amo Yartey J arrived at a
finding of
estoppel
per res judicatam were
themselves non existent, there
is no value in allowing the
decision of Amo Yartey J to be
evaluated for correctness in the
Court of Appeal. We have no
difficulty in granting the order
of certiorari to quash the
decision of Amo Yartey J given
on 30th March 2020.
The grevious error committed in
the 30th March 2020
decision stared stark on the
face of the application placed
before the Judge through the
words ‘estoppel per rem
judicatem the judgments (1)
Edward Mensah Tawiah ,
Ewormenyo Ofoli Kwashie v The Ag
Chief Registrar of Lands and The
Trustees, East Dadekotopon
Development Trust, dated 7th
December 2019 (sic) per Ofori
Atta J (2) Daniel Ofoli
Ewormienyo v. Edward Nsiah
Akuetteh and numbered BMISC
720/2015 dated 21st
May 2019 per ANTHONY ABADA J
And for abuse of process’
On the very face of the
application, the two judgments
cited as grounding estoppel per
rem judicatem were judgments
that the court knew or ought to
have known were non-existent.
The Ofori Atta J decision in the
case of Edward Mensah Tawiah
, Ewormenyo Ofoli Kwashie
v The Ag Chief Registrar of
Lands and The Trustees, East
Dadekotopon Development Trust
had been compromised
in Terms of Settlement entered
as a Consent Judgment in the
Court of Appeal. The only
relevant decision in that case
that may be cited therefore is
the Court of Appeal judgment.
In the same way, the subject
matter of Abada J’s decision of
2019, had no relation to the
Interested Parties herein who
were the parties before Amo
Yartey J. The only part of Abada
J’s decision of May 2019 in
Daniel Ofoli Ewormienyo v.
Edward Nsiah Akuetteh and
numbered BMISC 720/2015,
that applied to the interests
and title of the Trust, who the
2nd Interested Party
insisted were the head grantors
of the 1st Interested
Party’s land, had been quashed
by the Supreme Court. The High
Court therefore had no reason to
even entertain the application
on the very face of it. Therein
lies the fundamental and
grevious error on the face of
the decision.
It is no wonder then that to
justify a consideration of the
application, Amo Yartey J
ignored the fact that the
Supreme Court‘s order quashing
Abada J’s purported relief (e)
removed any linkage between
Abada J’s judgment and the Ofori
Atta J judgment of 2010. After
ignoring the import of the
quashed positive orders, the
trial Judge purported to reach
into the rest of Abada J’s
decision to find a holding that
the Court of Appeal Consent
Judgment had been set aside on
page 26, when the relevant
statement on page 26 was crafted
in obscure terms directed at no
party and no proceeding. It was
not a holding flowing from the
claims and issues presented to
the Judge to try. From this
‘derived meaning’, the trial
Judge then found a revival of
the Ofori-Atta J’s judgment,
before he could apply this Ofori
Atta judgment as binding
precedent to the claims before
him. The entire exercise
constituted a ‘fundamental,
substantial, material, grave and
serious error such as rendered
the decision a nullity.’ See
the Supreme Court’s decision in
Republic v Court of Appeal; Ex
Parte Tsatsu Tsikata 2005 – 2006
SCGLR where the court said
that the supervisory
jurisdiction of the Supreme
Court ought to exercised in
those manifestly plain and
obvious cases, ‘where there
are patent errors of law on the
face of the record, which errors
either go to jurisdiction or
are so plain as to make the
impugned decision a complete
nullity.’(emphasis mine)
Since this application is being
vigorously contested by the 2nd
Interested Party, the party’s
whose invitation to err was
acceded to by Amo Yartey J, we
will end by setting out other
factors that we find to be
manifestly evident that the 2nd
Interested Party seems to be
missing in his submissions
before us.
The jurisdiction given to any
court to determine a suit is
conferred by the pleadings and
claims of the parties. As stated
ad nauseam from cases such as
Esso
Petroleum Co Ltd v Southport
Corporation 1956 AC 218,
quoted with approval by Ghana’s
Supreme Court per Adumua Bossman
JSC in
Dam v J. K. Addo and Brothers,
1962 2 GLR 200 at 204,
the function of pleadings is to
give fair notice of the case
which has to be met so that the
opposing party may direct his
evidence to the issue disclosed
by them. When the pleadings
center on a particular subject
matter and legal position, the
court is bound to consider the
case submitted by the parties
and determine whether or not
they are entitled to the reliefs
sought by reason of the case
made to the court. The
acceptance of a case that is
different from the case that a
party put forward in their
pleadings is ‘unjustifiable
and fundamentally wrong’ and
must always be struck down.
How much more then, can a judge
be construed as having reached a
binding decision, when the
discussion he introduces into
his judgment concerns matters
outside of the case submitted to
him for trial, and the parties
before him? The total lack of
jurisdiction of Abada J
regarding all issues concerning
the Consent Judgment entered
into at the Court of Appeal was
evident in his deft side
stepping of any declarations
concerning that Consent
Judgment. His statements at the
head of page 26 of his judgment
were left conveniently vague,
and the ‘relief e’ he
adopted from Ofori Atta J’s
Judgment and purported to grant
to the parties before him was
without any basis, and rightly
quashed by the Supreme Court on
19th November 2019.
The firm legal position is that
consent judgments are binding as
contracts, and not even
appealable. In order to be free
of them, fresh action must be
taken by the parties to the
consent judgment to vacate them
for critical reasons that would
invalidate a compromise not
contained in the judgment or
order. See
Halsbury’s Laws of England (4th
Edition) Volume 26; also
Azu Crabbe JSC speaking for the
Court of Appeal in
In re
Arthur, Abakah v Attah-Hagan
1972 1 GLR at page 442,
and the high court decision of
Dordzie J as she then was, in
Lutterodt v Nyarko 1999– 2000 1
GLR 29
Thus, under no stretch of
imagination can a Judge give an
unsolicited order setting aside
a consent judgment entered into
by parties who are not in the
suit before him, and without an
action that passes stringent
conditions being fully tried
before him. With this
background, Abada J’s comments
regarding consent judgments ‘procured
from the court of Appeal or the
Supreme Court ‘ found on
page 26 of his judgment cannot
even be entertained as lying in
the realm of judicial decisions,
much more found an order of res
judicatam.
The trial judge allowed himself
to entertain an application
premised on the reversed Ofori
Atta judgment in Edward
Mensah Tawiah, Ewormenyo
Ofoli Kwashie v The Ag Chief
Registrar of Lands and The
Trustees, East Dadekotopon
Development Trust, and the
quashed Abada J decision in
Daniel Ofoli Ewormienyo v.
Edward Nsiah Akuetteh and
numbered BMISC 720/2015, -
as it pertained to La lands
described in the ‘relief e’ that
Abada J granted. This is
the error that rendered his
decision a nullity.
In conclusion, we must state
clearly the following positions
for the direction of the parties
involved in these cases.
1. Following the judgment
entered by the Court of Appeal
in Edward Mensah Tawiah,
Ewormenyo Ofoli Kwashie v The
Ag Chief Registrar of Lands and
The Trustees, East Dadekotopon
Development Trust, the Ofori
Atta 2010 judgment ceased to
have force of law. It was
reversed in its entirety.
Following the quashing of the
‘relief e’ in Abada J’s 2019
judgment in Daniel Ofoli
Ewormienyo v. Edward Nsiah
Akuetteh and numbered BMISC
720/2015, the remainder
of that judgment related only to
the first four reliefs that were
the subject matter of the claims
before the court. These two
judgments cannot therefore
provide a foundation for a
finding of estoppel per res
judicatam in favor of the
Interested Parties before us in
this suit titled Adolph
Tetteh Adjei v Anas Aremeyaw
Anas, Holy Quaye Suit No
LD/0256/2017.
The 2nd Interested
Party Counsel has raised the
preliminary point of law that
this application is incompetent,
having been filed 92 days after
the ruling and orders sought to
be quashed and contrary to Rule
62 of the
Supreme Court 1996 CI 16 as
amended by Supreme Court
(Amendment) Rules, 1999 CI 24.
We note that Applicant was not a
party to the proceedings in
question, though affected by the
Orders. The date on which the
Applicant was served with the
ruling herein has not been
established before this court.
We are satisfied that the time
limit for filing processes may
not be invoked against the
applicant herein given the above
circumstances.
Let the proceedings of 30th
March 2020 ruling and orders
made by Amo Yartey J in suit
titled Adolph Tetteh
Adjei v Anas Aremeyaw Anas, Holy
Quaye Suit No LD/0256/2017
dismissing the suit be brought
up for purposes of being quashed
and are hereby quashed.
The Registrar of the Land
Division of the High Court is to
place the case of Adolph
Tetteh Adjei v Anas Aremeyaw
Anas, Holy Quaye Suit No
LD/0256/2017 before another
Judge for continuation and
determination of the matters in
controversy between the parties.
G. TORKORNOO (MRS)
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
PROF. H. J. A. N.
MENSA-BONSU (MRS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
EZRA ALABI BORQUAYE FOR THE
APPLICANTS.
EMMANUEL BRIGHT ATOKOH FOR THE 1ST
INTERESTED PARTY.
DAVID AMETEFE FOR THE 2ND
INTERESTED PARTY. |