NUUMO OKA I I VRS. NII TEIKO TSURU III (LD/0242/2023) [2023] GHAHC 585 (2 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ACCRA LAND COURT DIVISION ‘9’ HELD ON THURSDAY THE 2ND DAY OF NOVEMBER 2023 BEFORE HER LADYSHIP NABEELA NAEEMA WAHAB J. (MS.) SUIT NO. LD/0242/2023 1. NUUMO OKAI I (KORLE WULOMO) Suing for and on behalf of the Korle Stool Kwabenya, Accra - PLAINTIFFS 2. NII TEIKO TSURU III (GA MANTSE) Suing for and on behalf of the Ga Stool Nima, Accra VS 1. WIGATAP LIMITED 2. LANDS COMMISSION 3. GLOBAL MANAGEMENT CONSTRUCTION All of Accra RULING PLAINTIFFS’ CASE - DEFENDANTS The Plaintiffs, the Korle High Priest and the Ga Mantse, instituted the action by a Writ of Summons and Statement of Claim filed on 21st February 2023. SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 1 of 20 It is the case of the Plaintiffs as stated in their Statement of Claim that from the decision of the Privy Council in the case of Ashirfi vrs Golightly and from other cases, it has long been settled that under customary law, the Ga, Gbese and Korle stools, together, are recognized as the allodial owners of the large tract of land measuring approximately 28, 253, 87 acres, lying to the North of Accra which includes the Kokomlemle lands. The Plaintiffs stated that the land which is the subject of the action is a portion of the total land owned by the Ga, Gbese and Korle Stools and is approximately 0.54-acres of land, situate at Accra Central, Okaishie, Kwame Nkrumah Avenue in Accra and known as Parcel No. 8, Block 1, Section 030. The Plaintiffs also stated that they have been in possession of the subject land, by allowing some petty traders who owe allegiance to the three stools to be on the subject land. It is the case of the Plaintiffs that for some time now, the 1st Defendant has been making adverse claims to the subject land on the basis of Land Title Certificate No. GA 16431 granted to the 1st Defendant by the 2nd Defendant. The 1st Defendant has also engaged the 3rd Defendant, a construction company, which has forcefully entered the subject land and has started developing same despite their attempts to halt the on-going development on the land. The Plaintiffs stated that a search conducted from the 2nd Defendant indicates that the subject property was leased to the 1st Defendant by the Government of Ghana by a lease dated 30th November 2000. It is the case of the Plaintiffs, however, that the subject land has never been compulsorily acquired by the State and could not have been the subject of alienation from Government and or the 2nd Defendant to the 1st Defendant. By their action, the Plaintiffs seek against the Defendants: SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 2 of 20 i. ii. iii. iv. an Order directed at the 2nd Defendant to expunge the name of the 1st Defendant from the records of the Lands Commission. a declaration of title to all that piece or parcel of land measuring approximately 0.54 acre or 0.22 hectare known as Parcel No. 8, Block 1, Section 030 situate at Accra-Central, Okaishie, Kwame Nkrumah Avenue, Accra. Recovery of possession. perpetual injunction restraining the Defendants, their assigns, privies, workmen and all persons claiming through them Defendants from interfering with the Plaintiff’s peaceful enjoyment of the land described at (ii) above. v. Costs, legal fee inclusive. 2ND DEFENDANT’S DEFENCE The 2nd Defendant Lands Commission entered appearance and filed a defence to the suit on 19th May 2023 pursuant to leave of Court granted on 17th May 2023. In its defence, the 2nd Defendant stated that the subject land is State land acquired by the Government of Ghana for Ghana National Trading Corporation (GNTC) by virtue of Ghana National Trading Corporation (Vesting of Properties) Act, 1991 (PNDCL 315), and the Plaintiffs have no capacity to institute the action in respect of State Land. The 2nd Defendant added that by virtue of the acquisition of the subject land by Government, any interests the Plaintiffs may have had in the subject land became extinguished and the Plaintiffs may only be entitled to apply for compensation pursuant to section 7 of PNDCL 315 and article 20 of the 1992 Constitution if they ever had any interest whatsoever in the subject land. The 2nd Defendant also stated that upon the divesting of GNTC, the subject land was sold to the 1st Defendant by the Government of Ghana acting by the Divestiture Implementation Committee, in accordance with Divestiture of State Interests (Implementation) Law, 1993 SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 3 of 20 (PNDCL 326). It is thus the case of the 2nd Defendant that the 1st Defendant is a lessee of the Government of Ghana. The 2nd Defendant maintained that the grant of the subject land to the 1st Defendant was proper and valid and the plotting and registration of the subject land in the name of the 1st Defendant and in the records of the 2nd Defendant is proper. 1ST AND 3RD DEFENDANTS’ DEFENCE The 1st and 3rd Defendants entered appearance on 7th March 2023. Pursuant to leave of Court granted on 11th May 2023, the 1st and 3rd Respondents filed a Defence to the suit on 12th May 2023. It is their case that the Plaintiffs have no capacity to institute the action for the reason that the 1st Plaintiff has already instituted an action in the District Court in a suit entitled Korle Wulomo Okai vs Wigatap Ltd (Suit No. ACDC/ A9/ 491/ 18) in respect of the land which is the subject of the present action and obtained a Consent judgment against the 1st Defendant herein. The 1st and 3rd Defendants stated that the judgment in favour of the 1st Defendant in Suit No. ACDC/ A9/ 491/ 18 has not been set aside or appealed against and challenged the basis of the present action against them in respect of the same subject land for similar reliefs. The 1st Defendant however added that, it has applied for and obtained a stay of execution of the judgment in favour of the 1st Plaintiff in Suit No. ACDC/ A9/ 491/ 18 as it seeks to set aside the Consent judgment in favour of the 1st Plaintiff on grounds of fraud. The 1st and 3rd Defendants like the 2nd Defendant also challenged the Plaintiffs capacity to institute the action for the reason that the subject land has been compulsorily acquired by the State and the Plaintiffs have no capacity to institute an action in respect of land which is State land. SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 4 of 20 In further support of their case that the subject land is State land and the Plaintiffs have no capacity to institute an action in respect of same, the 1st and 3rd Defendants added that the “Property” which is the subject of the action “is listed as “item 3A in schedule B” in the Ghana National Trading Corporation (Vesting of Properties) Law, 1991 (PNDCL 315),” as one of the assets of the Ghana National Trading Corporation (GNTC). The 1st Defendant stated that by section 13 of PNDCL 315, the remedy prescribed for anyone aggrieved by the compulsory acquisition of the subject land by the State is for that person to apply to the State for compensation. The 1st and 3rd Defendants added that in the face of the remedy prescribed by law for aggrieved persons who allege that they have an interest in the subject land, the Plaintiffs have no basis to institute the action or file the present application. The 1st and 3rd Defendants denied that the Plaintiffs are in possession of the subject land and stated that the State has been in possession of the subject land since the incorporation of GNTC in 1961 until it sold same to the 1st Defendant in the year 2000. The 1st and 3rd Defendants added that the 1st Defendant has been in possession of the subject land since it acquired same and also the 1st Defendant stated has engaged the 3rd Defendant, a contractor who has recently pulled down the building on the subject land and began the construction of a high rise multi storey building. It is therefore the further case of the 1st and 3rd Defendants that the Plaintiffs claim is barred by the provisions of the Limitations Act, 1972 (NRCD 54). REPLY Counsel for the Plaintiffs filed application for directions on 23rd June 2023. The return date stated on the application for same to be heard was 12th July 2023. On 12th July 2023, when the application for directions filed by the Plaintiffs was to be heard, Counsel for 1st and 3rd Defendants informed the Court that he had filed additional issues that morning. So that Counsel for all Parties could be served with the additional issues filed SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 5 of 20 by Counsel for 1st and 3rd Defendants, the matter was thus Court adjourned to 25th July 2023 for the hearing of the application for directions. Before the application for directions could be heard on 25th July 2023, Counsel for Plaintiffs filed an application seeking leave of Court to file a Reply out of time. In the absence of an opposition and pursuant to the Rules of Court, the Court granted Counsel for Plaintiffs leave to file a Reply out of time. The matter was thus adjourned to 31st July 2023 for the hearing of the application for directions. In the Reply filed by Counsel for Plaintiffs on 25th July 2023, the Plaintiffs admitted the claim by the 1st and 3rd Defendants that they had instituted an action in the District Court entitled Korle Wulomo Okai vs Wigatap Ltd (Suit No. ACDC/ A9/ 491/ 18) in respect of land which is the same as that in respect of which the present action has been instituted. The Plaintiffs admitted that Consent Judgment had been entered against the 1st Defendant on that case and same had not been set aside. The Plaintiffs stated that further development of the subject land by the 1st and 3rd Defendants was contrary to the judgment in which they had been declared owners of the subject land. DIRECTIONS OF THE COURT Although the business to be conducted on the 31st of July 2023 had been for the hearing of the application for directions filed by Counsel for Plaintiff on 23rd June 2023, in view of the admissions made by Counsel for Plaintiff in the Reply filed on 25th July 2023, the Court did not hear the application for directions on 31st July 2023. Pursuant to Order 11 Rule 12 (3) of the High Court (Civil Procedure) Rules, 2004 (C. I. 47), the Court directed Counsel for both Parties to file any other particulars in respect of the SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 6 of 20 claim that the Plaintiffs already have judgment against the 1st and 3rd Defendants in respect of the land which is the subject of the action. The Court further directed that in view of the papers filed so far and pursuant to Order 11 Rule 18(1)(b) and (d) of C. I. 47: “Counsel for all parties should file written submissions to address the issue of whether or not the present action should be dismissed on grounds that it is frivolous, vexatious and an abuse of the process of the Court.” PARTICULARS OF DOCUMENTS FILED Counsel for the Plaintiffs filed the following documents: 1. Exhibit NK – Court Notes adopting the consent judgment. 2. Exhibit NK 1 – Terms of Agreement at Court connected ADR 3. Exhibit NK 2 – Formal Decree 4. Exhibit NK 3 Series – Writ of Possession and letters 5. Exhibit NK 4 – Ruling on stay of execution 6. Exhibit NK 5 – Final Ruling on stay of execution, to set aside service of writ of summons, judgment, formal decree and writ of possession dated 8th June 2023. 7. Exhibit NK 6 – Notice of Appeal filed by Counsel for 1st and 3rd Defendant against the Ruling of the District Court dated 8th June 2023. Counsel for 1st and 3rd Defendants filed a composite plan dated 18th October 2023 prepared by a surveyor and stated to be a composite plan of the land of the 1st Defendant per the 1st Defendant’s land title certificate and per the site plan attached to the 1st Defendant’s deed of lease. SUMMARY OF WRITTEN SUBMISSIONS FILED SUBMISSIONS BY PLAINTIFFS COUNSEL: In his submissions filed on 25th September 2023, Counsel for Plaintiffs stated that the Plaintiffs instituted the instant action because the 1st Defendant had engaged the 3rd SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 7 of 20 Defendant to develop the subject land, regardless of the Consent Judgment in Suit No. ACDC/A9/491/18, in which the ownership of the subject land had been determined in favour of the Plaintiffs. Counsel for Plaintiff admitted that the remedy prescribed by law in these circumstances is not for the Plaintiffs to institute the instant action. Counsel thus submitted that the suit should be dismissed for the reason that the principle of res judicata applied and the Plaintiffs were estopped from instituting the instant action. 1ST AND 3RD DEFENDANTS COUNSEL: In his submissions filed on 19th October 2023, Counsel for 1st and 3rd Defendants also submitted that the action should be dismissed for the reason that the suit was an abuse of the process of the Court and also on grounds of res judicata. TERMS OF SETTLEMENT FILED On 23RD OCTOBER 2023 On 23rd October 2023, the Court adjourned the matter to 2nd November 2023 for a Ruling on whether or not the action is an appropriate case to be struck out pursuant to Order 18 (1)(b) and (d) of C. I. 47. Counsel for the 1st and 3rd Defendants informed the Court that the Parties had filed Terms of Settlement in the case that morning. ISSUES RAISED FOR DETERMINATION 1. Whether or not the suit should be dismissed pursuant to Order 11 Rule 18(1) (b) and (d) of C. I. 47 2. Whether the Consent judgment filed in this suit may be adopted by the Court. APPLICABLE LAW, ANALYSIS AND OPINION ISSUE 1: Whether or not the suit should be dismissed pursuant to Order 11 Rule 18(1) (b) and (d) of C. I. 47 SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 8 of 20 Order 11 Rule 18 (1) of the High Court (Civil Procedure) Rules, 2004 (C. I. 47) provides as follows: The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that: (a) it discloses no reasonable cause of action or defence; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass, or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly. (Emphasis added) In Dankwa & 3 Ors v Anglogold Ashanti Ltd [2019-2020] 1 SCLRG 641 (Adaare), the Supreme Court, speaking through Akoto Bamfo JSC explained that: “Under Order 11 rule 18, therefore, the court may order an action to be dismissed on grounds that the action is frivolous, vexatious or an abuse of the process of the court…The application may be made under the above cited rule or the inherent jurisdiction of the court or both. …Either procedure enables the court to pronounce finally, albeit, summarily upon the claim.” WHEN AN ORDER MAY BE MADE PURSUANT TO ORDER 11 RULE 18(1) OF C. I. 47 The Rules of Court provide that the Court may at any stage of the proceedings order that an action be dismissed for any of the reasons stated in Order 11 Rule 18 (1) of C. I. 47. In Gbenartey & Glie vs Netas Properties & Investments and others [2015-2016] 1 SCGLR 605, the Supreme Court however considered that an action may not be dismissed pursuant to Order 11 Rule 18 of C. I. 47 after directions have been taken and issues for determination set down in the case. In the instant case the Court set down the issue for determination at a stage when application for directions had been filed, but same had not been heard. SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 9 of 20 WHAT MAY BE CONSIDERED It is generally accepted on the authorities that other than in applications made pursuant to Order 11 rule 18(1)(a) of C. I. 47, affidavit evidence is admissible in applications made pursuant to any of the other provisions in Order 11 Rule 18 (1) of C. I. 47. In this regard, in Okofoh Estate vs Modern Signs [1995-96] GLR 310, the Supreme Court explained that where an application is filed to strike out pleadings and dismiss the action to prevent abuse of its procedure by frivolous or vexatious proceedings by summary means, “the pleadings, affidavits and extrinsic evidence” may be taken into account. Thus, in determining whether or not to strike out the instant action, this Court will consider the pleadings, the written submissions and the attached exhibits filed by Counsel for the parties pursuant to Order 11 Rule 12 (3) of C. I. 47. ABUSE OF PROCESS OF THE COURT CONCEPT OF ABUSE OF PROCESS OF COURT: In the case of Kwaku Afranie v. Golden Age Company, Eric Kwasi Yeboah [Unreported; Civil Appeal No H1/40/2020; 1 April 2021; CA], Tanko Amadu JSC presiding held dismissing the Appellant’s action inter alia as follows: “It is recognized that abuse of process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponents, and efficient administration of justice. This may arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue.” (Emphasis added) ABUSE OF PROCESS OF COURT STATED IN ORDER 11 RULE 18(1)(d) OF C. I. 47 In explaining the procedural rule on abuse of process stated in Order 11 Rule 18(1)(d) of C. I. 47, in the case of Eastern Alloys Company Ltd v Silverstar Auto Ltd [2017-2020] 1 SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 10 of 20 SCGLR 611 at page 615, the Supreme Court explained per Sophia Adinyira JSC that “the procedural rule stated in Order 11, r 18(1)(d) above, is grounded in the broader doctrine of abuse of process, commonly referred to as the rule in Henderson v Henderson (1843) Hare, 100…” In discussing the issue of abuse of the Court process, in NAOS Holding Inc vs. Ghana Commercial Bank Ltd [2011] 1 SCGLR 492, the Supreme Court speaking through His Lordship Dotse JSC referred to the earlier decision of the Supreme Court in the case of Sasu vrs Amua-Sekyi and Another [2003-2004] 742, and quoted with approval the concurring opinion of Prof. Date-Bah JSC, who stated the principle of abuse of process as follows:— "In addition to the cause of action and issue estoppels…there is the related doctrine of abuse of process, commonly referred to as the rule in Henderson vrs Henderson (1843) 3 Hare 100… whose essence was set out by the English Court of Appeal in Barrow vrs Bankside Agency Ltd. [1996] 1 WLR 257 at 260 as follows: "The rule in Henderson vrs Henderson requires the parties, when a matter becomes the 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 estoppels. 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 would do." (Emphasis added) See also the explanation of the Supreme Court given the unanimous judgment in Ebenezer Darkwa and another vs Adonteng Community Bank Limited [Unreported; Civil Appeal No. J4/56/2021; 15th June 2022; SC] per Honyenuga JSC, on abuse of judicial process and the principle in Henderson v Henderson. In the present case, the Court notes as correctly pointed out by both Counsel for 1st and 3rd Defendants and Counsel for Plaintiffs in their written submissions that, the 2nd Plaintiff is SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 11 of 20 more or less a nominal Defendant for it has only been sued to expunge the name of the 1st Defendant from its records. The 3rd Defendant who the Plaintiffs admit claims no title to the subject land, has only been sued as a contractor engaged by the 1st Defendant to develop the land. The main Parties in the present case are thus essentially the same as the Parties in the case instituted in the District Court in Suit No. ACDC/A9/ 491/18 as shown in the documents filed by Counsel for Plaintiff and marked Exhibit NK, Exhibit NK1 to Exhibit NK 6. The Court further notes from a copy of the Writ of Summons and Statement of Claim filed in Suit No. ACDC/A9/491/18, marked as Exhibit 6 and attached to the affidavit in opposition filed in this suit by the 1st and 3rd Defendants on 22nd March 2023 that, the subject matter of the action before this Court and in Suit No. ACDC/A9/491/18 is the same parcel of land and the reliefs sought in the present action are also the same as that sought by the Plaintiff herein as Plaintiff in Suit No. ACDC/A9/491/18. From the Notes of the District Court adopting the consent judgment in Suit No. ACDC/A9/ 491/18, Exhibit NK and the Terms of Agreement reached at the court connected ADR in Suit No. ACDC/A9/491/18 – Exhibit NK1, the Ruling on the stay of execution – Exhibit NK4 , this Court also finds that the Plaintiffs and the 1st Defendant herein who were Parties in Suit No. ACDC/A9/491/18, reached an agreement which was adopted by the Court as Consent Judgment in Suit No. ACDC/A9/ 491/18. It is the submission by both Counsel for Plaintiffs and Counsel for 1st and 3rd Defendants that for all of the above-stated reasons, the present action should be dismissed as the Plaintiffs are estopped by the principle of res judicata from pursuing the present action. In Naos Holdings Inc v Ghana Commercial Bank Ltd [2011] 1 SCGLR 492, (supra) the Supreme Court explained the factors that have to be established for a successful plea of res judicata thus: “When addressing an issue of res judicata, a court will usually look at three (3) factors. First, the court will consider whether there was previous litigation in which identical claims were raised, or SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 12 of 20 in which identical claims could have been raised. The second factor to be considered is that the parties must be the same parties and their privies as those who litigated the original action. The third fact is that the original action must have received final judgment on the merits. In Kwadwo Dankwa & 3 Ors v. Anglogold Ashanti Ltd [Unreported; Civil Appeal No J4/22/2018; 14 February 2019; SC] the Supreme Court held per Akoto-Bamfo (Mrs), JSC that: "…Res Judicata has been defined as a doctrine barring the same parties from litigating a second suit on the same transaction or any other claim arising from the same transaction or series of transactions or that could have been raised but was not raised in the first suit. For the proper invocation of the doctrine, these elements must exist: 1) There must be an earlier decision on the issue; 2) A final judgment on the merits; and 3) The involvement of the same parties or parties in privity with the original parties." (Emphasis added) This Court thus considers that from the above cited authorities, for a successful plea of res judicata, a judgment obtained on the merits is required and the principle of res judicata is inapplicable in this case in which the judgment previously obtained is a consent judgment. APPLICATION OF THE CONCEPT OF ABUSE OF PROCESS IS NOT THE SAME AS THE APPLICATION OF THE PRINCIPLE OF RES JUDICATEM The Court however notes from the authorities on the matter, that, the application of the concept of abuse of process is not the same as the application of the principle of res judicata. Thus, in NAOS Holding Inc vs. Ghana Commercial Bank Ltd (supra), in Sasu vrs Amua- Sekyi and Another (supra) and in the case of Osei-Ansong & Passion International School v Ghana Airports Co. Ltd. [2013-2014] 1 SCGLR 25, the apex court explained and held that the rule in Henderson v Henderson was 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 was a rule of public policy based on the desirability, in the general interest as well as that of the parties SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 13 of 20 themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do. In the recent case of Daniel Ofori vs. Ecobank Ghana Limited & 2 Ors [Unreported; Civil Motion No J7/13/2020; 24 March, 2021; SC], Her Ladyship Torkornoo (Mrs.) JSC referred to the cases of Eastern Alloys Company Ltd vs Silverstar Auto Ltd [2017-2020] 1 SCGLR 611, Sasu vs Amua Sekyi (supra), and to NAOS Holdings Inc vs Ghana Commercial Bank Ltd (supra), stated the Rule in Henderson v Henderson 1843 Hare 100 and explained that: “…In both cases, the court was clear that the court was not applying the principle of res judicatem, which requires the subject matter of litigation to have been pronounced on by a court of competent jurisdiction as between the parties and their privies.” Thus, in Eastern Alloys Company Ltd v Silverstar Auto Ltd [2017-2020] 1 SCGLR 611, the Supreme Court applied the rule in Henderson vrs Henderson or abuse of process of Court to prevent re-litigation of a cause of action that had already been determined by a consent judgment. In holding 1 at page 612 of the report it is stated that the Supreme Court considered that “…the consent judgment entered into at the pretrial stage had the same binding effect as if it was a judgment after a full trial.” Relying on the above cited authorities, this Court is therefore of the opinion that whilst the instant action may be an appropriate one to be struck out as an abuse of process of Court, the principle of res judicata may not be applicable. PROCESSES THAT ARE SCANDALOUS, FRIVOLOUS OR VEXATIOUS A review of the authorities on the matter by this Court shows that the provisions on Order 11 Rule 18 (1) (b) and (d) are generally applied together. Thus, where the Courts have found that an action is an appropriate case to be struck out as an abuse of the process of the Court pursuant to Order 11 Rule 18(1)(d) of C. I. 47, the Courts have also found that it is appropriate for the same action to be struck out as frivolous and vexatious pursuant to Order 11 Rule 18 (1) (b) of C. I. 47. SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 14 of 20 In Eastern Alloys Company Ltd vs Silverstar Auto Ltd (supra), at page 614 the Supreme Court held that if the appellant “… failed to raise the issue in its counterclaim but waited until 2014 to institute the action, then the contention that it constitutes piece meal litigation and abuse of process may be maintainable.” The Court added that: “in the absence of special or vitiating circumstances the appellant cannot file a fresh suit against the respondent to resurrect the counterclaim…. In our opinion this is an appropriate case in which to apply the rule in Henderson v Henderson on abuse of process and Order 11, r 18 (1) (b) and (d) of C. I. 47.” (Emphasis added) From the above cited authority, it is noted that piece meal litigation as has happened in the present case, may lead to a conclusion that the action is vexatious, and in such a case, the Court is entitled to dismiss the action also on grounds that it is an abuse of process. APPROPRIATE CASES TO STRIKE OUT From the above analysis, this Court is of the considered opinion that the present action in which the matter in dispute has already been determined by a Consent Judgment, is an appropriate one to strike out as an abuse of Court process, pursuant to Order 11 Rule 18 (1) (b) and (d) of C. I. 47 for as stated by Her Ladyship Torkornoo (Mrs.) JSC (as she then was), in the case of Daniel Ofori vs. Ecobank Ghana Limited & 2 Ors (supra), the Rule in Henderson v Henderson is applicable to ensure that parties in a case “do not employ multiplicity of court processes to re-flog issues and causes of actions after a decision that determines the issue or terminates the cause of action has been handed out.” (Emphasis added) ISSUE 2: Whether the Consent judgment filed in this suit on 23rd October 2023 may be adopted by the Court. SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 15 of 20 Whilst the procedure under Order 11 rule 18 of C. I. 47 enables the court to pronounce finally, albeit, summarily upon the claim or enables a Court to strike out an entire suit, the Court notes that Counsel for both Parties filed new Terms of Settlement before a Ruling could be delivered by this Court on whether or not the action should be struck out as an abuse of process of court. The Court also notes that the new Terms of Settlement were filed after Counsel for the Plaintiff and Counsel for the 1st and 3rd Defendants had filed submissions in Court agreeing that the instant action should be struck out as an abuse of Court process or on the grounds that the Plaintiffs are estopped by the principle of res judicata from pursuing the action. This Court is thus called upon to determine whether or not the new Terms of Settlement may be adopted although the Court as well as Counsel for Plaintiff and Counsel for 1st and 3rd Defendants agree that the instant action is frivolous, vexatious and an abuse of the process of Court. By the Terms of Settlement filed in this case, the Plaintiffs and the 1st Defendant have agreed inter alia: o that the Plaintiffs will discontinue the present suit without liberty to re-apply, o that the Plaintiffs will not institute or prosecute any action or proceeding in any court, tribunal or other forum in respect of the subject matter or this suit against any of the Defendants herein. o that by executing these Terms of Settlement, the Plaintiffs and the 1st Defendant agree to compromise the judgment obtained by the Plaintiffs in Suit No. ACDC/A9/491/18 by setting aside the Terms of Settlement adopted as the Consent judgement in that suit. The Court is of the considered opinion that in view of the fact that the New Terms of Settlement were filed before the Court could deliver a Ruling on whether or not the instant action should be struck out pursuant to the applicable Rules of Court, and in view of the SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 16 of 20 fact that by the Terms of Settlement filed in this Court on 23rd October 2023, the Parties agree that the Consent Judgment in Suit No. ACDC/A9/491/18 (which would be the real basis for dismissing the present action on grounds that same amounts to an abuse of the process of the Court) should be set aside, under the circumstances, the basis for holding that the present action is an abuse of Court process is removed. JURISDICTION TO SET ASIDE TERMS OF SETTLEMENT PREVIOUSLY FILED AND ADOPTED AS CONSENT JUDGMENT IN SUIT NO. ACDC/A9/491/18 In filing the new Terms of Settlement in this Court on 23rd October 2023, the Parties essentially seek this Court to set aside the Terms of Settlement previously filed in Suit No. ACDC/A9/491/18 and entered as consent judgment. The first matter to be considered in this regard is whether or not this Court has jurisdiction to do this. In Republic v. High Court (Commercial Division) Accra; Ex Parte The Trust Bank Ltd (Amponsah Photo Lab Ltd. & Three Others (Interested Parties) [2009] SCGLR 164, the Supreme Court relied on the case of Emeris v. Woodward [1889]46 Ch D 185 and held as reported in holding 1 of the report thus: "Notwithstanding that a consent judgment had been given and completed, a trial High Court had ample jurisdiction to set it aside upon any grounds which would entitle it to set aside an agreement entered between the parties…” (Emphasis added) The decision in Republic v. High Court (Commercial Division) Accra; Ex Parte The Trust Bank Ltd (Amponsah Photo Lab Ltd. & Three Others (Interested Parties) (supra) was affirmed in the case of SIC Insurance Co. Ltd vrs. Ivory Finance Company Ltd & 4 Ors [2018-2019] 1 GLR 563. Relying on the above-cited authority, this Court therefore considers that it has jurisdiction to set aside the Consent Judgment entered in Suit No. ACDC/A9/491/18, in the case entitled Korle Wulomo Okai (Suing for himself and on behalf of the Ga Gbese and Korle Stools) vrs Wigatap SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 17 of 20 Limited on any of the grounds which would entitle this Court to set aside an agreement entered between parties. The learned authors of Halsbury’s Laws of England, (3rd ed.) Vol. 22 explain that: “… Unless all the parties agree, a consent order, when entered, can only be set aside by a fresh action, and an application cannot be made to the court of first instance in the original action to set aside the judgment or order…”. (Emphasis added) From the above explanation, the Court is of the opinion that all the Parties to a Consent order can agree to set aside their own agreement and that is also sufficient ground for the Court to set aside an agreement entered between the parties. The Court therefore has jurisdiction to set aside the Consent judgment entered in Suit No. ACDC/A9/491/18 upon agreement by the Parties to it. CONCLUSION For all of the above stated reasons, the Terms of Settlement filed in the case entitled Korle Wulomo Okai (Suing for himself and on behalf of the Ga, Gbese and Korle Stools) vrs Wigatap Limited (Suit No. ACDC/A9/491/18) which was adopted by the District Court and entered as Consent Judgment is set aside. The Terms of Settlement filed in this action will be adopted as Consent Judgment of the Court. [SGD] NABEELA NAEEMA WAHAB (MS) J. (JUSTICE OF THE HIGH COURT) SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 18 of 20 COUNSEL 1. SAMMY LARYEA HOLDING BRIEF OF SIMON ANIMLEY FOR THE PLAINTIFFS - PRESENT 2. ANITA NYAMEKYE FOR THE 2ND DEFENDANT – PRESENT 3. J. OPOKU ADJEI WITH MERCY CLOTTEY FOR THE 1ST & 3RD DEFENDANTS - PRESENT CASES REFERRED TO: 1. Dankwa & 3 Ors v Anglogold Ashanti Ltd [2019-2020] 1 SCLRG 641 (Adaare) 2. Gbenartey & Glie vs Netas Properties & Investments and others [2015-2016] 1 3. 4. SCGLR 605 Okofoh Estate vs Modern Signs [1995-96] GLR 310 Kwaku Afranie v. Golden Age Company, Eric Kwasi Yeboah [Unreported; Civil Appeal No H1/40/2020; 1 April 2021; CA] 5. Eastern Alloys Company Ltd v Silverstar Auto Ltd [2017-2020] 1 SCGLR 611 at page 615 6. 7. 8. 9. NAOS Holding Inc vs. Ghana Commercial Bank Ltd [2011] 1 SCGLR 492 Sasu vrs Amua-Sekyi and Another [2003-2004] 742 Henderson vrs Henderson (1843) 3 Hare 100 Barrow vrs Bankside Agency Ltd. [1996] 1 WLR 257 at 260 SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 19 of 20 10. Ebenezer Darkwa and another vs Adonteng Community Bank Limited [Unreported; Civil Appeal No. J4/56/2021; 15th June 2022;SC] 11. Kwadwo Dankwa & 3 Ors v. Anglogold Ashanti Ltd [Unreported; Civil Appeal No J4/22/2018; 14 February 2019; SC] 12. Osei-Ansong & Passion International School v Ghana Airports Co. Ltd. [2013-2014] 1 SCGLR 25 13. Daniel Ofori vs. Ecobank Ghana Limited & 2 Ors [Unreported; Civil Motion No J7/13/2020; 24 March, 2021; SC] 14. Eastern Alloys Company Ltd v Silverstar Auto Ltd [2017-2020] 1 SCGLR 611 15. Republic v. High Court (Commercial Division) Accra; Ex Parte The Trust Bank Ltd (Amponsah Photo Lab Ltd. & Three Others (Interested Parties) [2009] SCGLR 164 16. Emeris v. Woodward [1889]46 Ch D 185 17. SIC Insurance Co. Ltd vrs. Ivory Finance Company Ltd & 4 Ors [2018-2019] 1 GLR SUIT NO: LD/0242/2023 – Nuumo Okai I & Anor vrs Wigatap Limited & 2Ors Page 20 of 20