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Properties - Ownership - Setting
aside - Whether
or not the ownership of the
disputed properties described
had already been determined by a
court of competent jurisdiction
- Whether Defendants did not
even know each other and could
not have entered into any
agreement over the disputed
properties -
HEADNOTES
The genesis of this appeal is
that; the Respondent herein
instituted action in the High
Court, Sekondi as the majority
shareholder in a company by name
Cream Timber Moulding Company
Limited (hereinafter referred to
as Cream Timbers). Her claim,
initially, was against two
defendants, namely; TRANSLAS
LIMITED and her own uncle Her
case was that the said
properties belonged to Cream
Timbers of which she was the
majority shareholder She became
a majority shareholder by
succession per a judgment of the
High Court dated 26th July
2002. However, she did not know
how the 1st Defendant
came to settle on the land. She
was therefore praying the trial
court to nullify any purported
agreement entered into between
the 1st Defendant and
the 2nd Defendant
that permitted the 1st Defendant
to settle on the properties,
since she was not a party to any
such agreement. -
HELD :-
Since the Respondent’s claim was
buttressed on the point that she
had interest in the disputed
properties as majority
shareholder of Cream Timbers,
which she said owned the
properties, she is a privy to
Cream Timbers and equally bound
by the judgment the Appellant
obtained against Cream Timbers
on 29th June 2010.
She is therefore estopped per
rem judicata from re-litigating
the issue of ownership of the
disputed properties with the
Appellant in the name of Cream
Timbers. It is unfortunate that
the two lower courts glossed
over this undisputed fact as
clearly demonstrated by the
Appellant in her testimony on
record and erroneously found for
the Respondent. On this ground
alone, the appeal succeeds.
Having so concluded, we do not
think it is worthy to consider
the other grounds of appeal as
the judgment of the High Court
as affirmed by the Court of
Appeal was erroneous in law and
must be set aside without any
hesitation. The appeal is
accordingly allowed.
STATUTES REFERRED TO IN JUDGMENT
Company’s Act, 1963 [Act 179].
CASES REFERRED TO IN JUDGMENT
TUAKWA v BOSOM [2001-2002] SCGLR
61
IN RE SEKYEDUMASE STOOL; NYAME v
KESE ‘alias’ KONTO [1998-99]
SCGLR 478
CONCA ENGINEERING (GH) LTD v
MOSES [1984-86] 2 GLR 319;
SASU v AMUA-SAKYI & Anor
[2003-2004] 2 SCGLR 742
BOAKYE v APPOLLO CINEMAS &
ESTATES (GH) LTD [2007-2008]
SCGLR 458;
ASSAFUAH v ARHIN DAVIES
[2013-2014] SCGLR 1459
ATTORNEY-GENERAL v SWEATER &
SOCKS FACTORY LTD [2013-2014] 2
SCGLR 946
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
YAW APPAU, JSC:-
COUNSEL.
OpokuAmponsah for the 3rd Defendant/Appellant/Appellant.
Joseph Evans Abekah for the
Plaintiff/Respondent/Respondent.
JUDGMENT
YAW APPAU, JSC:-
The fundamental issue
raised in this appeal, which is
a second appeal by the
Appellant, having lost the first
appeal in the Court of Appeal
is; Whether or not the ownership
of the disputed properties
described as Plot Nos. D3, D4,
D6, D7, D8, D9 and D14, Apremdo
– Takoradi, had already been
determined between the two
parties by a court of competent
jurisdiction as at the time the
Respondent instituted this
action in the trial High Court
on 11th February,
2011.
The genesis of this appeal
is that; the Respondent herein
instituted action in the High
Court, Sekondi as the majority
shareholder in a company by name
Cream Timber Moulding Company
Limited (hereinafter referred to
as Cream Timbers). Her claim,
initially, was against two
defendants, namely; TRANSLAS
LIMITED and her own uncle by
name HUSSEIN ZRAIK, as 1st
and 2nd Defendants
respectively. The reliefs sought
in the claim against the
Defendants jointly and severally
were for:
1.
An order setting aside
whatever agreement existing
between the Defendants, which
agreement gave the 1st
Defendant the right to reside
and carry on business on Cream
Timbers’ premises on Plot Nos.
D3, D4, D6, D7, D8, D9 and D14,
Apremdo Industrial Area,
Takoradi as illegal and invalid;
2.
An order of perpetual
injunction restraining the 1st
Defendant, whether by itself ,
its agents, assigns, privies,
servants etc. and the like
howsoever from entering the said
plots of land either to reside
or to carry on business thereon;
and
3.
Damages for trespass.
Her case in brief was that
the said properties belonged to
Cream Timbers of which she was
the majority shareholder with
60% shares while the 2nd
Defendant was the minority
shareholder with 40% shares. She
became a majority shareholder by
succession per a judgment of the
High Court dated 26th
July 2002. However, she did not
know how the 1st
Defendant came to settle on the
land. She was therefore praying
the trial court to nullify any
purported agreement entered into
between the 1st
Defendant and the 2nd
Defendant that permitted the 1st
Defendant to settle on the
properties, since she was not a
party to any such agreement. She
also prayed for an order to
restrain the 1st
Defendant from entering and
doing business on the said
properties and damages for
trespass. The Appellant herein,
from whom the 1st
Defendant rented the property in
dispute, successfully applied to
join the action as the 3rd
Defendant.
From the totality of the
evidence on record and
particularly the unchallenged
case put across by the
defendants, the 1st
and 2nd Defendants
did not even know each other so
they could not have entered into
any agreement over the disputed
properties. In fact, the
Respondent did not establish in
any way that there existed any
agreement between the 1st
and 2nd Defendants
which the trial court had to
nullify as she prayed. The 1st
relief sought by the Respondent
in her claim was therefore dead
from birth. However, aside of
the 1st relief, the
Respondent prayed for two other
reliefs. These were: (i)
an injunction to restrain the 1st
Defendant and her agents, etc.
from entering the premises in
dispute; and (ii) damages
for trespass, as quoted above.
It is trite law that where
a plaintiff claims an injunction
in addition to damages for
trespass, title is automatically
put in issue because such a
claim postulates that the
plaintiff is either the owner of
the property in dispute, or was
in exclusive possession of same
prior to the trespass complained
of. In the instant case, the
contention of the Respondent
(then plaintiff) was that, the
disputed properties belonged to
Cream Timbers, a company in
which she held majority shares.
She therefore took the action to
assert Cream Timbers’ interest
in or ownership of the disputed
properties.
The defence put up by the
defendants in its totality also
disclosed that Cream Timbers, on
whose shoulders the Respondent
mounted the action, lost its
interest in the subject
properties since 2003 when it
assigned same to a company by
name Dalebrook Limited.
Dalebrook also lost its interest
in the said properties to the
Appellant as purchaser when the
properties were attached by a
court order and sold at public
auction ordered by the High
Court on 11th October
2008. Though Cream Timbers tried
to set aside the public auction
in an action mounted immediately
after the sale to Appellant, it
did not succeed in its bid. The
action in question was titled:
1. Cream Timbers Moulding
Company Ltd; 2. Hussein Zraik v
1. Joris Wartemberg; 2.
Millicent Appah. The suit
number was E1/27/09 and the
reliefs sought in that action
were:
i.
Order to set aside the
auction sale of 11th
October 2008;
ii.
Perpetual Injunction
restraining the defendants,
their agents, assigns, etc. from
taking any rights arising from
the said auction sale;
iii.
Perpetual Injunction
restraining the defendants, etc.
from doing any acts inconsistent
with plaintiffs’ rights as
lessees of the plots in issue;
and
iv.
General damages for
trespass.
The judgment of the High
Court in that case was dated 29th
June 2010, which the Appellant
tendered in evidence during the
trial. The claim by the
Appellant therefore that she was
the new owner of the disputed
properties per the judgment in
question so the Respondent was
estopped per rem judicata from
re-litigating the issue,
constituted adverse title claim
to the subject properties. The
question of ownership to the
disputed properties between the
Appellant and Cream Timbers
therefore emerged indisputably
and both the trial court and
later the Court of Appeal were
under an obligation to address
it, which they failed to do.
The Appellant graphically
demonstrated her adverse claim
of title to the disputed
properties without any challenge
from the Respondent when she
appeared before the trial court
and on appeal to the Court of
Appeal, but the two lower courts
decided to express muteness on
this crucial issue. In fact,
this was the preliminary issue
the trial court should have
resolved before delving into the
propriety of the actions of the
2nd Defendant as the
Managing Director of Cream
Timbers; whether elected or
self-imposed which, in our view,
was secondary. The two lower
courts, however, raised the
secondary issue suo motu and
determined the matter before
them on that basis, albeit
erroneously and contrary to the
Company’s Act, 1963 [Act 179].
Appeal to the Supreme Court
The prayer of the
Appellant in this appeal is for
this Court to set aside the
judgment of the Court of Appeal
that affirmed the judgment of
the trial High Court. The
Appellant repeated almost all
the grounds of appeal canvassed
in the Court of Appeal. The most
fundamental amongst them, as
stated supra in the first
paragraph of this judgment, is
the question as to whether or
not the issue regarding the
ownership of the disputed
properties, as between Cream
Timbers and the Appellant, is
res judicata, same having been
put to rest by a judgment of the
High Court, Sekondi per Batu, J.
as at the time the Respondent
instituted her action over the
same properties. If this Court’s
answer to the above question
turns out to be in the
affirmative, then there would be
no need to waste time on the
other grounds of appeal as that
finding alone settles the appeal
in favour of the Appellant. This
is because; the law debars the
same parties from litigating a
second lawsuit on the same
matter or claim, or any other
claim arising from the same
transaction. This is the
principle known in law as
Estoppel per rem judicatam
or Res Judicata in short,
as canvassed by the Appellant in
her statement of case.
However, if this Court
finds that the issue with regard
to the ownership of the
properties had never been
determined by a court of
competent jurisdiction as at the
time Respondent instituted her
action, which means the res
judicata principle does not
apply, then the fundamental
issue that would arise for
determination would be; whether
or not both the trial High Court
and the Court of Appeal erred
when they nullified the
transactions entered into
between Cream Timbers on the one
part and Dalebrook Ltd on the
other part, on the ground that
the 2nd Defendant who
acted for and on behalf of Cream
Timbers as Managing Director,
had no authority to do so.
An appeal is said to be by
way of re-hearing. As was
settled by this Court in the
case of TUAKWA v BOSOM
[2001-2002] SCGLR 61 and a
host of other authorities; it is
the duty of an appellate court,
in determining an appeal before
it, to analyse the entire record
of appeal, take into account the
testimonies and all documentary
evidence adduced at the trial,
before arriving at its decision
as to whether or not, on a
preponderance of probabilities,
the conclusions of the trial
judge are reasonably or amply
supported by the evidence. This
requirement that an appellate
court must evaluate the evidence
on record as if the case is
being heard afresh before
concluding on the correctness or
otherwise of the judgment of the
trial court is not lessened
where the appellate court
exercising that authority is a
second appellate court like
ours.
The principle of Res Judicata
As the Appellant rightly
contended in her statement of
case filed on 27th
June 2017, the principle of res
judicata is based on the public
policy that there must be an end
to litigation, which is
expressed in the latim maxim;
‘interest reipublicae ut sit
finis litium’. In the words of
Acquah, JSC (as he then was) in
the case of IN RE SEKYEDUMASE
STOOL; NYAME v KESE ‘alias’
KONTO [1998-99] SCGLR 478:
“The plea of Res Judicata can be
invoked in respect of any final
judgment delivered on the merits
by a judicial tribunal of a
competent jurisdiction. Such a
judgment is conclusive as to the
rights of the parties and their
privies and as to them,
constitutes an absolute bar to a
subsequent action involving the
same claim, demand or cause of
action”. See also the cases of
CONCA ENGINEERING (GH) LTD v
MOSES [1984-86] 2 GLR 319; SASU
v AMUA-SAKYI & Anor [2003-2004]
2 SCGLR 742 and BOAKYE v APPOLLO
CINEMAS & ESTATES (GH) LTD
[2007-2008] SCGLR 458; ASSAFUAH
v ARHIN DAVIES [2013-2014] SCGLR
1459 and ATTORNEY-GENERAL v
SWEATER & SOCKS FACTORY LTD
[2013-2014] 2 SCGLR 946 at PP
951-952.
In the A –G v Sweater &
Socks case (supra), this Court
stressed that even where a party
fails to specifically plead the
defence of estoppel per rem
judicatam, same is not fatal to
the party’s case because the
need for substantial justice
must not be sacrificed on the
altar of technicality of rule
procedure. The Court held;
“Thus, where the plea has not
explicitly been set out, but the
defendant’s statement of case
points unequivocally or
substantially to the plea, the
court is bound to consider it as
if same has been specifically
raised by the defendant”.
In the instant case before
us, the Appellant did not only
explicitly set out the plea in
her pleadings in the trial
court; she led unchallenged
evidence to prove or establish
it. She also raised it as a
ground of appeal in her notice
of appeal to the Court of Appeal
when the trial court failed to
consider the plea. The Court of
Appeal also ignored it
completely. The evidence on
record, however, suggests
without any doubt whatsoever
that the properties described by
the Respondent in her Writ of
Summons as belonging to Cream
Timbers for which she sued the
Appellant and the others, have
once been litigated over between
Cream Timbers (i.e. the Company
she represents) and the
Appellant herein. The Appellant
demonstrated this in her
evidence (both oral and
documentary) beyond all doubts.
This determination was in the
case of: Cream Timbers & Another
v Joris Wartemberg and Millicent
Appah (i.e. the Appellant)
referred to supra, which the
Appellant brought to the
attention of the trial court as
the record shows. Cream Timbers
lost in the action but did not
appeal against that judgment.
The effect of that judgment was
that the disputed properties
belonged to the Appellant. The
present case on appeal before us
is therefore a revival of the
old case fought between Cream
Timbers and the Appellant in
suit No E1/27/2010 with regard
to Appellant’s ownership of the
subject-property but robed in
different clothing. The action
was carved as if the Respondent
was attacking her uncle the 2nd
Defendant for his acts as a
director of Cream Timbers when
in fact and indeed, it was
intended to re-litigate the
ownership of the disputed
properties as between Cream
Timbers and the Appellant, which
is a closed chapter. The law
does not permit her to do that
as the case is caught by the
estoppel principle.
If the Respondent has any
claim at all with regard to how
Cream Timbers was managed by the
2nd Defendant, that
may be against Cream Timbers qua
Company and probably the 2nd
Defendant as a Director. It
cannot be against the Appellant
whose ownership of the disputed
properties is grounded in law
and cannot be reversed at this
stage until fraud in the
acquisition of same has been
proved or established since
fraud vitiates everything.
Undoubtedly, fraud was not an
issue at all in this case. The
trial court and particularly the
Court of Appeal should not have
been hoodwinked by this
disguise. They both strayed from
the real issue at stake before
them and that was; whether or
not the issue with regard to the
ownership of the
subject-properties as between
the parties herein had been
given a final judicial blessing
as at the time Respondent
initiated her action against the
Appellant and the two others.
Since the Respondent’s
claim was buttressed on the
point that she had interest in
the disputed properties as
majority shareholder of Cream
Timbers, which she said owned
the properties, she is a privy
to Cream Timbers and equally
bound by the judgment the
Appellant obtained against Cream
Timbers on 29th June
2010. She is therefore estopped
per rem judicata from
re-litigating the issue of
ownership of the disputed
properties with the Appellant in
the name of Cream Timbers. It is
unfortunate that the two lower
courts glossed over this
undisputed fact as clearly
demonstrated by the Appellant in
her testimony on record and
erroneously found for the
Respondent. On this ground
alone, the appeal succeeds.
Having so concluded, we do
not think it is worthy to
consider the other grounds of
appeal as the judgment of the
High Court as affirmed by the
Court of Appeal was erroneous in
law and must be set aside
without any hesitation. The
appeal is accordingly allowed.
SGD YAW
APPAU
(JUSTICE OF THE
SUPREME COURT)
SGD ANIN
YEBOAH
(JUSTICE OF THE
SUPREME COURT)
SGD PAUL
BAFFOE-BONNIE
(JUSTICE OF THE
SUPREME COURT)
SGD N. S.
GBADEGBE
(JUSTICE OF THE
SUPREME COURT)
SGD VIDA AKOTO-BAMFO
(MRS.)
(JUSTICE OF THE
SUPREME COURT)
COUNSEL
Opoku Amponsah for the 3rd
Defendant/Appellant/Appellant.
Joseph Evans Abekah for the
Plaintiff/Respondent/Respondent. |
