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MARFUL-SAU, JSC:-
This appeal is taken against the
judgment of the Court of Appeal,
which affirmed the decision of
the High Court. In these
proceedings we intend to give
the parties the designation they
had before the trial court. The
1st defendant who lost the
contest both at the High Court
and the Court of Appeal now
appeals to this court on the
following grounds:-
1.
The Court of Appeal erred when
it held that estoppel was
inapplicable to the Deed of Gift
because it was the Deed of
Purchase which was affected by
the Judgment of Ollenu J, in
Suit No. 151/1960 dated 27th
July, 1962 entitled Borkete
Osonoware & 23 Others v. Nii
Odai Ayiku IV & Quaye Tawiah,
when the said judgment nullified
the Deed of Purchase made to the
Plaintiff/Respondent/Respondent’s
father in 1958 or 1959 on the
basis that the attesting
witnesses whose consent and
concurrence the Plaintiff/
Respondent/ Respondent relied on
to prove the Deed of Gift were
not the accredited elders whose
consent and concurrence was
necessary for a valid grant of
Nungua Stool in 1958 or 1959.
2.
The judgment is against the
weight of evidence
From the record of appeal no
additional ground was filed as
indicated in the Notice of
Appeal filed on the 28th
November 2017. Ground (1) as
formulated above clearly offends
rule 6 (4) and (5) of the Rules
of this court in the sense that
it is argumentative and
narrative in nature. Under Rule
6(5) of CI 16, any ground of
appeal which is not permitted
under the rule may be struck out
by the court on its own motion
or on application by the
Respondent. However, since the
ultimate objective of this court
is to do justice on the merit of
cases, we shall refrain from
striking out that ground, but
sever the offending parts and
amend the said ground to read as
follow: - ‘’the Court of
Appeal erred when it held
that estoppel was inapplicable
to the Deed of Gift’’.
Indeed, the severed parts of the
ground are matters that could be
addressed in the statement of
case.
In Attorney – General v.
Faroe Atlantic Co. Ltd.
{2005-2006} SCGLR 271, this
court had cause to strike out
offending parts of two of the
grounds of appeal and amended
the two grounds of appeal for
the Appellant. Similarly in
West Laurel Co. Ltd v.
Agricultural Development Bank
{2007-2008} 1 SCGLR 556, the
court found grounds (2) and (4)
of the Appeal as argumentative
and narrative and as such struck
out ground (2) but waived non-
compliance with the Rules in
respect of ground (4). As
indicated we in intend to follow
the practice in this court as
demonstrated in the cases cited
above and amend ground (1) of
the Appeal, as stated above. We
would like to sound a caution
that by amending the offending
ground instead of striking it
out, this Court is not
encouraging non-compliance of
its rules. This Court shall in
all appropriate cases insist on
the strict adherence of the
rules that regulate its
proceedings. I now address
ground (1) as amended by the
court.
The fundamental complaint of the
1st Defendant against
the judgments of both the High
Court and Court of Appeal is
that the court erred in holding
that estoppel was inapplicable
to the Deed of Gift because the
Deed of Gift was not affected by
the judgment of Ollenu J. There
is no dispute on the record that
in Suit No. 151/ 1960 entitled
Borkete Osonoware & 23 Others v.
Nii Odai Ayiku IV & Quaye
Tawiah, a parcel of land which
was conveyed to Quaye Tawiah by
a Deed of Purchase was declared
a nullity, by Ollenu J, in a
judgment dated 27th
July 1962. The main reason for
which the Deed of Purchase was
nullified was that the
accredited elders whose consent
and concurrence were necessary,
by custom, for a valid
conveyance of Nungua land were
not obtained before the grant.
The 1st Defendant’s
argument is that since the same
unaccredited elders signed the
Deed of Gift, the judgment of
Ollenu J, ought to apply to
nullify the Deed of Gift from
Nii Odai Ayiku IV to Quaye
Tawiah.
The appeal before us therefore,
raises a fundamental issue to be
resolved, which is, whether or
not the judgment of Ollenu J,
could operate as estoppel
against the Deed of Gift, which
was tendered at the trial as
Exhibit A. Learned Counsel for
the 1st Defendant has
argued that estoppel should
operate because Ollenu J, found
and held that the Deed of
Purchase to Quaye Tawiah was
invalid because the accredited
elders did not consent. This
issue found by Ollenu J,
according to Counsel for 1st
Defendant, was equally
applicable to the Deed of Gift,
on grounds that the accredited
elders did not consent to the
gift to Quaye Tawiah. However,
what counsel for 1st
Defendant fails to appreciate is
that for estoppel to operate
apart from the issues in the two
cases being the same, the
parties or their privies must be
the same and finally the subject
matter of the two suits must
also be the same. The trial
court and the first appellate
court rightly applied the law on
estoppel per rem judicata which
is trite learning. The two
courts below relying on cases
such as Poku v Frimpong
{1972} GLR 230; In Re
Sekyedumase Stool, Nyame v Kese
alias Konto {1998-1999} SCGLR
476 and Dahabieh v SA
Turqui & Bros {2001-2002} SCGLR
498, held rightly that
Ollenu J’s judgment could not
operate as estoppel against the
Deed of Gift, because the three
requirements as above stated
were absent. We find and hold
that the two lower courts did
not err in so holding that
estoppel was inapplicable
against the Deed of Gift.
In these proceedings evidence on
record supports a finding that,
the grantors of 1st
Defendant, who claim to be the
accredited persons, by custom to
convey Nungua lands and their
privies, rather are the ones
caught by cause of action and
issue estoppel. There is ample
evidence from the 1st
Defendant and his witnesses that
at the time the elders went to
court to get the Deed of
Purchase nullified, they knew of
the existence of the Deed of
Gift, however, they initiated a
cause of action against the Deed
of Purchase without attacking
the validity of the Deed of
Gift. The elders who went to
court, their privies and all
claiming under them, including
the Defendants are estopped from
now raising the issue of the
validity of the Deed of Gift.
There is evidence at page 185 to
187 of the record of appeal that
both the Deed of Gift and the
Deed of Purchase were in
existence before Ollenu J’s
judgment, but as indicated, the
elders choose to litigate over
the Deed of Purchase only. It
will therefore be an abuse of
the court process if the 1st
Defendant is allowed to
re-litigate on the validity of
the Deed of Gift as he sought to
do in this action.
It is trite learning that
related to the principle of
cause of action and issue
estoppel is the doctrine of
abuse of process, commonly
referred to as the rule in
Henderson v. Henderson {1843}
Hare 100, whose essence was
set out in the case of Barrow
v. Bankside Agency Ltd. {1996}
1WLR 257 at 260 as follows:
‘’The rule in Henderson v.
Henderson {1843} Hare 100 is
very well known. It requires the
parties, when a matter becomes a
subject of litigation between
them in a court of competent
jurisdiction, to bring their
whole case before the court so
that all aspects of it may be
finally decided (subject, of
course to any appeal) once and
for all. In the absence of
special circumstances, the
parties cannot return to the
court to advance arguments,
claims or defences which they
could have put forward for
decision on the first occasion
but failed to raise. The rule is
not based on the doctrine of res
judicata in a narrow sense, or
even on any strict doctrine of
issue or cause of action
estoppel. It is a rule of public
policy based on the
desirability, in the general
interest as well as that of the
parties themselves, that
litigation should not drag on
forever and that a defendant
should not be oppressed by
successive suits when one will
do. That is the abuse at which
the rule is directed.’’
On the above principle of law
the case of Greenhalgh v.
Mallard {1947} 2 All ER 255,
is very instructive and throws
more light on the estoppel
issues raised in this case. At
page 257 of the report the court
observed that res
judicata:
‘’ is not confined to the issues
which the court is actually
asked to decide, but that it
covers issues or facts which are
so clearly part of the subject
matter of the litigation and so
clearly could have been raised
that it would be an abuse of the
process of the court to allow a
new proceeding to be started
in.’’
This principle of law has been
applied by this court in several
cases, such as Brown v. Ntiri
(Williams Claimant) {2005-2006}
SCGLR 247, and Dahabieh v
SA Turqui & Bros{2001-2002}
SCGLR 498, where the court
stated at page 507 of the report
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.’’
The above principle of law
clearly points to the fact that
1st Defendant is
estopped from re-litigating the
validity of the Deed of Gift as
that claim belonged to the first
action that went before Ollenu
J. On this legal point alone the
1st Defendant ought
to lose this appeal.
Now, beside the issue of
estoppel as discussed in this
judgment, the general principle
of law is that judgments are
prospective in nature and not
retrospective. For this reason,
it will be wrong to apply Ollenu
J’s judgment to the Deed of
Gift, as counsel for the 1st
Defendant is urging this court
to do. In other words, counsel
for the 1st
Defendant’s argument would have
been sound in law, if the
litigation over the Deed of
Gift, took place after the
judgment entered by Ollenu,J.
thus vesting him a cause of
action in issue estoppel.
The argument put up by counsel
for the 1st Defendant
in the circumstances of this
case, does not find favour with
us because the Deed of Gift
existed before the judgment of
Ollenu J. We therefore reject
that argument and by that,
ground (1) of this appeal is
dismissed.
The next ground is that the
judgment entered by the Court of
Appeal is against the weight of
evidence. It is trite that such
a ground of appeal enables the
appellate court such as this
court to review the evidence on
record to ascertain whether the
court below erred principally in
evaluating the evidence adduced
by the parties at the trial, or
that the court below wrongfully
applied a law. In our evaluation
of the evidence on record, we
find that before the land, the
subject matter of dispute was
conveyed to the 1st
Defendant and for that matter
the other Defendants, the Nungua
Stool had already gifted that
parcel of land to Quaye Tawiah
in 1958. The 1st
Defendant by his own
counterclaim and evidence admits
of the Deed of Gift to Quaye
Tawiah. It is this Deed of Gift
that he seeks to nullify in
these proceedings, for reasons
earlier on indicated in this
judgment.
There is no doubt that the Deed
of Gift was registered at the
Land Registry as No. 2078/ 1960.
This Deed of Gift has not been
nullified by any court and as
such it is still valid. What it
means is that from 1958 when the
gift was made, the Nungua Stool
ceased to be the owner of the
land, the subject of the Deed of
Gift. The Stool therefore could
not convey that same land to the
1st Defendant in
1992. The principle of nemo dat
quod non habet clearly applies
here. In Sarkodie v. FKA Co
Ltd {2009} SCGLR 65, this court
held as follows:-
‘’ an effective customary
conveyance of land would divest
the grantor of any further
right, title or interest in the
land; the same land could
therefore not be conveyed or
granted to a subsequent
grantee.’’
On this evidence alone we do not
see how the 1st
Defendant can even allege that
the judgment of the Court of
Appeal is against the weight of
evidence. That ground is
baseless in law and we do not
intend to spend any further time
on it, same is therefore
dismissed.
In conclusion, we are of the
opinion that the entire appeal
is without merit and same is
accordingly dismissed. The
judgment of the Court of Appeal
is hereby affirmed.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
GBADEGBE, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
KOTEY, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
WILLIAM A. ADDO FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
WILFRED BABA AVIO FOR THE
DEFENDANT/APPELLANT/APPELLANT.
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