Sumaila v Forson and Others (E1/HCKO/121/2024) [2025] GHAHC 155 (13 February 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COURT “2”) HELD AT KASOA-OFAAKOR ON THURSDAY THE 13TH DAY OF FEBRUARY, 2025 BEFORE HIS LORDSHIP JUSTICE EDWARD TWUM J. JUSTICE OF THE HIGH COURT SUIT NO. E1/HCKO/121/2024 ALHAJI ZAKARI AHMED SUMAILA … PLAINTIFF UNNUMBERED HOUSE, KASOA VRS. 1. JAMES FORSON … DEFENDANTS 2. NANA KOFI AHOR 3. ALEX AGBESI ABORGE PARTIES Plaintiff – Present 1st Defendant – Present 2nd and 3rd Defendants – Absent LEGAL REPRESENTATION Samuel Kofi Ahiabor for Plaintiff - Present Johnson Ametorwo for 1st Defendant - Absent RULING 1. This is a ruling on an application by the 1st Defendant praying this court to dismiss or set aside the writ of summons and statement of claim of the Plaintiff. Facts: 2. Per a writ of summons issued from the registry of this court on the 29 April, 2024, the Plaintiff claimed against the Defendants the following reliefs: a) Declaration of title to all that piece or parcels of land described in paragraph 4 of the Statement of Claim and detailed in the schedule. b) An order of perpetual injunction restraining the Defendants, jointly or severally, their agents, privies or relations from having anything to do with the land in dispute. c) An order for special damages of GHC30,000.00 against the 1st Defendant for the arrest, incarceration and grave inconvenience suffered by the Plaintiff’s caretaker for at least five days of his detention without food upon the instigation of the 1st Defendant. d) An order for general damages against the 1st and 2nd Defendant. e) An order for costs including lawyer's fees. Case for 1st Defendant/Applicant 3. It is the case of the Applicant that he and the 2nd Defendants were the Plaintiffs in Suit No. E1/30/12 which was adjudicated upon by His Lordship Justice Emmanuel Atsu Lodoh sitting at the High Court, Cape Coast and judgment delivered on the 23 April, 2020 in favour of the Plaintiffs against the 3rd Defendant herein who was the defendant in that suit. The Applicant says the 3rd Defendant did not appeal against the judgment of His Lordship Atsu and the time for appeal had long elapsed. 4. The Applicant says this current suit instituted by the Plaintiff herein is about the same parcel of land which the Plaintiff is fraudulently claiming ownership of after the High Court, Cape Coast had determined same in 2020. The Applicant says the Plaintiff joined the 3rd Defendant to this suit to offer him another window of opportunity relitigate this suit which constitutes an abuse of this court’s process as the matter has been adjudicated upon already by the High Court, Cape Coast. 5. It is the case of the Applicant that the 2nd Defendant herein was joined to the earlier suit by virtue of the passing on of Ebusuapanyin Kojo Yamoah who died in the course of the trial and was substituted by the 2nd Defendant. The Applicant says the land, the subject matter of the current suit, is a family property, belonging to the Twidan Royal Family of the Gomoa Fetteh Stool and the 2nd Defendant, having passed on cannot be sued and this fact has been brought to the attention of counsel for the Plaintiff. 6. The Applicant contends that it an obligatory requirement that when one is issuing a writ of summons, the residential address and occupation of the parties must be provided in compliance with Order 2 rule 3(2) of the High Court (Civil Procedure) Rules, 2004 (C. I. 47). The case of the Applicant is that per the authorities, failure of the Plaintiff to endorse his writ with the residential addresses renders the whole process a nullity and cannot be cured by an amendment under Order 81 of C. I. 47, and cited the cases of Standard Bank Offshore Trust vs. National Investment Bank & 2 Ors (Civil Appeal No. J4/63/2016 dated 21 June, 2017 (unreported)) and Naos Holding Plc vs. Ghana Commercial Bank [2011] 1 SCGLR 492 to support his submission. The Applicant therefore prays this court to dismiss or set aside the Plaintiff’s writ of summons and statement of claim. Case of the Plaintiff/Respondent 7. The Respondent opposes the application. According to an affidavit in opposition filed by the Respondent, the Applicant’s residential address is not known to the Respondent and that was why it was not stated on the writ of summons. 8. It is the contention of the Respondent that he is not affected by the judgment obtained by the Applicant in Suit No. E1/30/12 which was mentioned by the Applicant in paragraph 12 of his affidavit in support. The Respondent contends further that contrary to the object of the rules of court expressed in Order 1 rule 1(2) and Order 4 rule 3 of C. I. 47, the Applicant avoided joining the Respondent or the Respondent’s grantor in suit number E1/30/12. 9. The Respondent says the land under dispute is not a family land belonging to the Twidan family of Gomoah Fetteh. It is the case of the Respondent that there is a registered proof that the land in dispute belongs to the Odupong Ofaakor Stool, leased to Dr. and Mrs. Gaisie and presently assigned by the said lessees to the Respondent. The Respondent exhibited a copy of the Assignment as Exhibit “2”. 10. In his written submission, the Respondent stated that he was not a party to the suit determined by the High Court, Cape Coast and stated that per the state of our laws, a person who claims ownership of any subject-matter already adjudicated upon between other persons of which he or she was not a party, such a person is expected to commence a fresh suit against both the successful party and the defeated party, and cited the cases of Hammond vs. Lamptey [1987-88] 1 GLR 327; Hydraform Estates Ltd. vs. Moi Ashong [2012] 49 GMJ 144 at 160-161 per Acquaye JA, CA; Ayiku IV v. Attorney-General [2010] 29 MLRG 99, SC; Nissa Development Co. Ltd. v. Tema Municipal Assembly & Anor. [2012] 36 MLRG 75, CA, per Kanyoke JA to support his assertions. 11. The Respondent says his action cannot constitute an abuse of the court process as was held in the case of Naos Holding Inc. v. Ghana Commercial Bank (supra), and prays for the instant application to be dismissed. The Law and this Application 12. From the submissions of both parties, two legal issues arise for determination by this court. These are whether or not the judgment obtained by the 1st and 2nd Defendants herein in the High Court, Cape Coast against the 3rd Defendant can act as a bar (res judicata) against the Plaintiff herein from instituting this action against the Defendants herein (who were the parties to the High Court, Cape Coast suit) and whether or not the writ of summons issued by the Plaintiff without the residential addresses of the parties rendered the writ null and void and to that extent it should be dismissed or set aside. 13. Now this court will proceed to deal first with the issue of whether or not the judgment obtained by the 1st and 2nd Defendants herein in suit number E1/30/12 in the High Court, Cape Coast against the 3rd Defendant can act as a bar (estoppel per rem judicatam) against the Plaintiff herein from instituting this action in respect of the same subject matter against the Defendants herein (who were the only parties in suit number E1/30/12). 14. Under the English common law doctrine of estoppel per rem judicatam, 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. There are plethora of authorities on the doctrine of estoppel per rem judicatem and a few are worth considering. 15. In the case of In Re Asere Stool, Nikoi Olai Amontia IV [Substituted by Tafo Amon II] vs. Akotia Oworsika III [Substituted by Laryea Ayiku III [2005-2006] SCGLR 637 His Lorship Dr. Twum JSC said of estoppel per rem judicatam at page 651 of the report as follows: ‚In Thoday v Thoday [1964] 1 ALL ER 341 at 352, Diplock L. J. said estoppel per rem judicatam is a generic term which in modern law includes two species. The first species, which is called ‘cause of action estoppel’ is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment was given on it, it is said to be merged in the judgment, the Latin phrase being transit in rem judicatam. If it was determined to exist, the unsuccessful plaintiff can no longer assert that it does, he is estopped per rem judicatam…His Lordship, Diplock L. J, identified the second species as ‘issue estoppel’, which he said was an extension of the same rule of public policy. This will arise where a party may be held to be estopped from raising particular issues, if those issues are precisely the same as the issues which have been previously raised and have been the subject of adjudication‛. 16. In Agyiliha & Anor. vs. Tayee [1975] 1 GLR 433, the Court of Appeal held that: ‚The principles of the common law rules of evidence which give the doctrine of defence of estoppel its force is that a party is debarred from denying facts on which a previous judgment on the same cause of action and between the same parties or their privies were based. The rule, it is said, is intended to ensure that there should be an end to litigation and that nobody should be sued twice in same cause; so that where a final judgment has been given in an action a court will not permit the same parties to open the subject-matter of litigation in respect of matters decided in the previous action either in respect of the cause of action or issues determined‛. 17. In Dahabieh vs. S. A. Turqui & Bros. [2001-2002] SCGLR 489, the Supreme Court held per His Lordship Adzoe JSC at page 507 that: ‚It is well settled under the rule of estoppel that if a court of competent jurisdiction has tried and disposed off 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‛. 18. Again, in the case of Agbeshie & Anor. v. Amorkor & Anor [2009] SCGLR 594, the Supreme Court explained the operation of the doctrine in the following terms: “The doctrine of estoppel does not operate against only the actual parties involved in the previous suit;….it goes beyond that to include their privies, which term include anyone who has a legal interest of privity in any action, matter, or property by blood, in representation, such as an executor or an administrator of an intestate person, etc.” 19. Finally, the Supreme Court, per His Lordship Ansah JSC in the case of Gariba Dintie v. Kanton IV [2008] 2 GMJ 168, SC at pages 178-179 has held that “A party who relies on an earlier judgment as estoppel per rem judicatam must, if he is to succeed, establish; (a) that there has already been a judicial decision by a court of competent jurisdiction; (b) that the decision is final; (c) that the same question as that sought to be in issue by the plea in respect of which the estoppel is claimed was decided in the earlier proceedings; (d) that the case was between the same parties or their privies as the parties between whom the question is now sought to be put in issue. For a judgment to operate as estoppel, it must be clear, unambiguous, and should determine finally the issues between the parties.‛ 20. From the authorities cited so far, particularly the Gariba Dintie v. Kanton IV case (supra), the only question left to answer and which the Applicant was expected to prove to succeed in this application is was suit number E1/30/12 between the same parties as in the instant suit? The answer is no. The Plaintiff herein was not a party to suit number E1/30/12 at the High Court, Cape Coast, and from the evidence on record, Plaintiff in the present suit was not privy to suit number E1/30/12. 21. However, in the circumstances of the substantive suit, the position of the law is that a party who is adversely or injuriously affected by the judgment of a court in which the person was not party to the proceedings can adopt one of two ways to have the judgment set aside as was set down by the Court of Appeal in the case of Lamptey v. Hammond [1987-88] 1 GLR 327, where the Court held that: ‚There are two well-established modes whereby a person who is a stranger to a judgment which injuriously or adversely affects him can have that judgment set aside. He can obtain the leave of the defendant in the suit to use his name and then apply to the court in the said defendant’s name to have the judgment set aside. Alternatively, in case for some reason he cannot use the name of the defendant, he can take out a summons in his own name, but in that case the summons should be served on both the plaintiff and the defendant asking for leave of the court to set aside the judgment and to be allowed "to defend the action on such terms of indemnifying the defendant" as the judge may consider just….. It seems to me that the person who can apply to set aside the judgment under Order 36, r. 18 of L. N. 140A is the defendant or any other third person who is adversely or injuriously affected by the judgment, provided he adopts one of the two modes outlined earlier on in this judgment, so as to acquire locus standi. Only those who have or can acquire locus standi can bring the application; and the provisions do not give a locus standi to a person who has none. The next requirement of the rule is that the application should be brought within ‚fourteen days after the trial.‛ 22. It seems to this court that from the decision of Lamptey v. Hammond supra, the Plaintiff should have come with a motion on notice to the Defendants herein with supporting affidavit outlining the reasons why he thinks this court should set aside the judgment in suit number E1/30/12 and grant him leave to defend the suit on terms. (See the case of Ayiku IV v. Attorney-General supra) In this application, this court has taken note that the Plaintiff did not obtain the leave of the defendant in suit number E1/30/12 to use his name and then apply to the court in the said defendant’s name to have the judgment set aside, nor did the Plaintiff sought the leave of this court to set the judgment delivered in suit number E1/30/12 aside to enable him defendant the suit on terms. Per the writ of summons issued by the Plaintiff on the 29 April, 2024, Plaintiff failed to follow the procedures as outlined by the Court of Appeal in the case of Lamptey v. Hammond supra, which means that the judgment of the High Court, Cape Coast delivered on 23 April, 2020 still holds valid as it has not been appealed against nor set aside. 23. It is trite that decisions of court of competent jurisdiction remain valid until vacated or set aside. In the Supreme Court case of Republic v. Michael Conduah; ex parte Supi George Asmah. (Civil Appeal No. J4/28/2012 dated 15th August, 2013) (unreported), His Lordship Akamba, JSC (as he then was) who read the lead judgment stated the position of the law on orders and judgments given by a court of competent jurisdiction as follows: ‚It is trite indeed to observe that an order of a court of competent jurisdiction is considered right until it is set aside or vacated. So long therefore that the order of interim injunction issued out of a court of competent jurisdiction, such as the High Court has not been vacated, the same is binding until set aside‛. His Lordship continued: “…it is important to stress that a judicial decision takes effect upon its delivery. Generally speaking, such a decision does not lose its effect because of an appeal filed against it. The only means of suspending its execution is by an application for an order to suspend its execution‛. 24. In the instant suit and as indicated earlier, the judgment in suit number E1/30/12 has not been vacated nor set aside and therefore it still holds valid. What the Plaintiff should have done, since he claimed the judgment injuriously affected his rights, was to follow proper procedure to seek leave of this court to have the said judgment set aside to enable him defend the suit on terms of indemnifying the 1st and 2nd Defendants in particular who were successful in suit number E1/30/12. 25. It is also trite that courts of law must follow the law. In the Supreme Court case of Agyemang (substituted by) Banahene & Others v. Anane [2003-2004] 1 SCGLR 241 SC., Her Ladyship, Georgina Wood, CJ (as she then was) admonished the courts to follow the law in the following terms: ‚Courts of law must follow the law. As a rule, courts are not expected to endorse concessions, compromises or agreements by parties which are contrary to, inconsistent with or not warranted by any rule of law or procedure. Thus, in any proceedings, where the step taken by a party or parties violates any constitutional or statutory provision or is not sanctioned by any substantive rule of law or procedure, the court has a duty to reject it, notwithstanding the fact it was based on the mutual agreement of the parties.‛ 26. Again, in the Supreme Court case of The Republic v. High Court (Financial Division), Accra; ex parte Tweneboah Koduah [2015] 81 G. M. J. 191 at 212, SC, His Lordship Akamba, JSC (as he then was) expressed the apex Court’s disdain on litigants flouting the rules of court in the following terms: ‚There is an emerging tendency in practice today to consider that the rules of procedure indeed do no matter so long as an application is placed before the court. Yet the rules of procedure are as integral as the substantive law to the success of the trial process.‛ 27. In the respectful view of this court, the Plaintiff failed to follow the laid down procedures to have the judgment of the High Court, Cape Coast in suit number E1/30/12 set aside and obtain the requisite locus standi to prosecute the current suit. In the circumstances, this court declares the writ of summons issued in the registry of this court on the 29 April, 2024 null and void as same was instituted contrary to established legal rules and procedures, and on that basis, same is set aside. This leaves the second issue of the absence of residential addresses on the writ of summons issued by the Plaintiff moot. 28. Cost of GHC3,000.00 against the Plaintiff in favour of the Defendants. (SGD) EDWARD TWUM J. (JUSTICE OF THE HIGH COURT) 11