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JUDGMENT:
The Plaintiff by his Writ of
Summons and statement of claim
issued on 26th March,
2008 claimed the following:
1.
Declaration of title to all that
piece of land situate; lying and
being at
Osu Anumansah, Accra
and more particularly described
in a schedule
contained in the statement of
claim.
2. Recovery
of Possession
3. Damages
for trespass
4. Perpetual
Injucntion restraining the
Defendant, her personal
representatives,
agents, assigns, privies,
workmen, servants and
however described, from
interfering, dealing with or
having anything
to do
in any manner whatsoever with
the land, the subject matter of
the suit.
When the Defendant was served
she entered appearance by
Counsel and denied the
Plaintiffs claim. She
counter-claimed as follows:
1.
Declaration of title to all
those herediaments identified as
House No. F5/1,
Anumansah Osu, Accra or F/1 Osu
Anumansah, Osu.
2. Perpetual
Injunction Restraining the
Plaintiff, his servants, agents,
assigns and any
other privies from laying
adverse claim.
3. Exemplary
Costs.
In the Defendants statement of
Defence, she described herself
as the head of her family and
pleaded that she has litigated
with certain persons who are
either members or supporters of
the Plaintiffs family over the
piece of land which is the
subject matter of this suit and
won at the Circuit Court and
that this present action is an
abuse of the legal process.
In the Plaintiffs reply to the
Defendants Defence and
counterclaim, the Plaintiff
averred that
The family is not estopped by
conduct or per rem judicata and
also that nether the said
Amassey Commey, Enoch Okpoti
Odai and Ashietey Commey, is the
head of the Nii Odai Kwao family
and for that matter any
counterclaim for declaration of
title mounted on their behalf in
the said suit is not binding on
the Nii Odai Kwao family.
The issues set down for hearing
included issue VII which is as
follows:
Whether or not the Nii Odai Kwao
family is estopped by conduct or
per rem judicata from
challenging the title of the
Defendant family’s in the land.
Issue VII was agreed to be
resolved first and evidence was
led on it. Since it was the
Defendant who alleged that the
issue of ownership to the land
had been determined by a court
of competent jurisdiction, she
was asked to open her case on
this and she did. In proof of
her case, she tendered Exhibits
‘1’, which is a Judgement of the
Circuit Court, Accra dated 2nd
July 1996, Exhibit ‘2’, being
Judgement of the Court of Appeal
dated 12th March 2004
and Exhibit ‘3’ being Judgement
of the Supreme Court dated 11th
March 2008.
Exhibit ’1’ corroborates the
Defendants evidence that in the
Circuit Court Nii Noi Oklah who
was the head of the Plaintiffs
family at that time gave
evidence on behalf of the
Defendants in that suit, to the
effect that the land was for
Odoi Kwao family.
The Circuit Court found that the
land was for the Lartey Kojo but
not for Odoi Kwao. The Court of
Appeal affirmed the Circuit
Court Judgement and the Appeal
to the Supreme Court was struck
out for non compliance.
When the Plaintiff gave evidence
in this suit, he admitted that
the Defendants in the Circuit
Court case were members of his
family.
The fact that the action in the
Circuit Court was not against
the head of the Plaintiffs
family, the Odai Kwao family,
will not prevent the said
Judgement from binding the Odai
Kwao family, since the head of
the family knew of the case and
actively participated in it.
In the case of Amefinu Vrs
Odametey and Others (1972) 2GLR
135, the Court of Appeal held
that “knowledge of the relevant
litigation was necessary to
invoke the principle of
estoppel”.
In this case, the Plaintiffs own
evidence is hat the then head of
family knew of the Circuit Court
case, which touched on the
ownership of the land as between
the Plaintiffs family and the
Defendant. That the then head of
family gave evidence for the
Defendants in that suit and
claimed the land for his family,
being the same Odai Kwao family.
In the case of Dzidzienyo Vrs
Tsaka and Others (2007-08) SCGLR
531, it was held that “it is
well settled under the rule of
estoppel 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. The rule 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 instant case,
title to the disputed properties
had been determined against the
Plaintiff-Appellant in the
previous action taken by her
against her own sister, the
mother of the
Defendants-Respondents, and
which resulted in a judgment
affirmed by the Court of Appeal
in 1970. The Plaintiff was
therefore estopped per rem
judicatam from taking the
instant action against the
Defendants-Respondents, the
privies to her sister, for the
remedies of account of rents and
mesne profits in respect of the
same properties”.
I therefore hold that the
Plaintiff and members of his
family are bound by the
Judgments in Exhibits ‘1’ and
‘2’ and are therefore estopped
from relitigating the issue
pertaining to ownership of the
land in dispute.
The Plaintiffs action is
dismissed and Judgment is
entered for the Defendant on her
counter-claim.
The Defendant is awarded cost of
GH¢2,000.00
Counsel: Mr.
Frank Davies for the Plaintiff
Mr. Sammy Agbodo for
the Defendant
(SGD.) MR. JUSTICE S.H. OCRAN
Justice of the High
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