AKUMANI VRS AGBONUSHI (H1/145/2023) [2023] GHACA 164 (14 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE COURT OF APPEAL ACCRA:AD 2023 P. BRIGHT MENSAH JA (PRESIDING) CORAM: JEROME NOBLE NKRUMAH JA AFIA SERWAH ASARE-BOTWE (MRS.) JA SUIT NO. H1/145/2023 DATE: 14TH DECEMBER, 2023 KWASI AKUMANI …………. PLAINTIFF/APPELLANT VRS. TORDIA AGBONUSHI ……….. DEFENDANT /RESPONDENT AFIA SERWAH ASARE-BOTWE (MRS.) JA CONCURRING OPINION I have had the privileged opportunity of reading the lead opinion of my learned brother, Justice Jerome Noble-Nkrumah JA. I agree entirely with his reasoning and conclusion that the Ruling of the court below ought to be set aside and a full trial on the merits of the case be undertaken. I wish however, to make a brief contribution to the discourse. The background and facts leading to this appeal have been well set-out in the lead opinion of my learned brother. I do not intend to rehash them in this concurring Judgment. For ease of reference, the Grounds of Appeal are reproduced below; GROUNDS OF APPEAL 1. The Learned Trial Judge erroneously erred by finding that the Plaintiff/Appellant’s case is caught by estoppel rem judicatam and in consequence of the said erroneous finding, did also erroneously erred by dismissing the Plaintiff/Appellant's Suit. 2. The Learned Trial Judge failed to avert or adequately avert her mind to the judicial reliefs the Plaintiff/ Applicant was seeking before the Honourable Court and she in consequence thereof erroneously did dismiss his suit. 3. The Learned Trial Judge failed to appreciate the incidence and existence of Usufruct at Customary Law as valid interest that members of communities and families hold, defend and alienate and, in so doing, she erroneously held as she did that “If the disputed lands belong to the Dakpui family no individual family member can claim ownership over same". 4. The Learned Trial Judge erroneously misapplied the elements that establish estoppel rem judicatam and in consequence thereof she erroneously concluded that, the Plaintiff/Appellant's action was caught by estoppel rem judicatam and based thereon, erroneously dismissed Plaintiff/Appellant's suit. An assessment of the grounds of appeal and the processes filed in the Court below in the light of the Ruling complained against would show that there are two main issues to be determined; a) On whether or not the decision of the Court in upholding estoppel per rem judicatam was proper in the circumstances; b) Whether there was a genuine question to be tried in the light of the pleadings filed at the time and the matter of entitlement and protection of the Plaintiff’s claim to a usufructuary title or rights. Both matters are two sides of the same coin, and having been extensively discussed by my learned brother, there will be no call to go into any great detail. ON ESTOPPEL PER REM JUDICATAM AND THIS CASE There are several decisions that I will rely on to determine whether or not the doctrine of res judicata will be applicable in this case. It was held in the case of POKU v. FRIMPONG [1972] 1 GLR 230 that estoppel deriving from a judgment is of two kinds, namely, cause of action estoppel and issue estoppel. Where a plea of estoppel per rem judicatam is pleaded it is necessary for a trial judge, in order to avoid confusion, to decide first the nature of the estoppel raised. The estoppel pleaded in the instant case was cause of action estoppel. Where a party relies on such estoppel, the onus of establishing the identity of the subject-matter of the previous suit with that of the second suit lies on him. The onus is discharged by first producing in evidence the record of the pleadings and judgment in the earlier suit. If by comparing the earlier pleadings and judgment with the pleadings before the trial court, he satisfies the trial court of the possibility of the two causes of action being identical, he will then proceed to give positive evidence of identity. • See also: KARIYAVOLOUS v. OSEI [1982-83] 1 GLR 658 @ Holding 1. In the case of IN RE KWABENG STOOL; KARIKARI v. ABABIO [2001-2002] SCGLR 515, it was held that if an action is brought and the merits of the questions are determined between the parties, and a final judgment is obtained by either, the parties are precluded, and cannot canvas the same question again in another action. In the case of MRS. AGNES AHADZI & PIONEER MALL LTD. v. BOYE SOWAH, NII NORTEY ADJEIFIO & NUMO ADJEI KWANKO II (Suit No. J4/33/2018 dated 21/3/2019) (reported on the online portal dennislawgh as [2018] DLSC 6208, the Court, speaking through His Lordship Pwamang JSC stated at pages 6-7 of the online Judgment; So the three conditions for invoking issue estoppel are that; 1. The same issue must have been decided in the earlier case; 2. The judicial decision in the earlier case must have been final; and 3. The parties in the current case must be the same parties in the earlier case or their privies; It was further held in the case of SIISI v. BOATENG AND ANOTHER (J4/27/2011)[2014] GHASC 164 (7 MAY 2014) (available on ghalii.org) inter alia that: “It must never be forgotten that the principle of estoppel per rem judicatam has never been stated in absolute terms, for its formulation has often been made subject to the requirements of justice. And every rule, statutory or at common law has an object to be attained thereby, which should never be lost sight of.” There is no question that once parties submit to a customary arbitration, such as what occurred at the Customary Arbitration Court of the Battor Traditional Council in this case (in Suit No. BTA 2/2018 entitled KWAOVI AGBONUTSI & OTHERS v. FRANCIS AKUMANI (TORGBO DAKPUI), the uncontested decision may found a plea of res judicata in similar circumstances as any other court of law.1 In general, I hold the view that the Judge in the Court below fully appreciated the principles governing estoppel per rem judicatam. It is in the application of the principles to the case at hand that I think there was a slight misapprehension. What was to be determined, I think, in that case and even in this appeal, is the exact import of that Arbitral Award of the Battor Traditional which has in turn been confirmed by a Ruling of the High Court, Sogakope in Suit No. E1/24/2021 entitled KWAKU DZOGBELA & OTHERS v. KWAWUVI AGBONUTSI & TORDIA AGBONUTSI dated the 23rd of August, 20212 I hold a similar view as my learned brother that the matter of the ownership of Dakpui family land was part of the ancillary issues determined at the customary arbitration. I am also of the view, that from the uncontested matters before the Court below, the Gavie and the Dakpui families were not strangers to each other. The Dakpui family is a subset, for want of a better description, from the pleadings and the record before the Court, of the Gavie family. That aspect of the case as was being put forward before the Court was important and ought to be well comprehended in order to properly appreciate the claim of the Plaintiff/Appellant because it was his case, that as a member of the family and a usufruct in possession, he could not be deprived of the land he held. 1 Please see section 30 of the Chieftaincy Act, 2008 (Act 759) 2 Please see pages 44 to 65 of the ROA The law is well settled that though a derivative of the Allodial Title, the usufructuary interest cannot be arbitrarily or capriciously be divested by the Allodial Title holder.3 It must be well understood that in the preliminary stages of the trial and the matter in issue not being the entitlement to the allodial title, but the usufructuary interest claimed by the Plaintiff, it was incumbent upon the Court below to enquire into the matters claimed by taking evidence because the issues dealt with at the customary arbitration which resulted in the confirmed Arbitral Award were not the same as what the Plaintiff was claiming per the reliefs endorsed (whether rightly or wrongly) in the writ. It is for this reason that the appeal must, in my view, succeed. CONCLUSION AND OBSERVATION: I have noted with concern the extraordinary use of the language with which lawyer for the Plaintiff/Appellant wrote his submissions. The English Language is the vehicle of official communication in our law and as such, where the language used is a deviation from what is right, it gives cause for worry. The submission filed was replete with statements like “the Learned Trial Judge did fail to advert or adequately advert her mind…” when he obviously meant to use the word “avert”; 3 Please see section 5 of the Land Act, 2020 (Act 1036), OHIMEN v. ADJEI [1957] 2 WALR 275, MANSU v. ABBOYE & ANOR. [1982-83] GLR 1313, BOATENG (NO. 2) v. MANU (NO.2)& ANOR [2007-2008] 2 SCGLR 1117 and TOGBE LUGU AWADALI IV v. TOGBE GBADAWU (SC) Suit No. J4/50/2018 dated 24th January, 2018 (Available www.ghalii.org as [2018] GHASC 1 (https://ghalii.org/akn/gh/judgment/ghasc/2018/1/eng@2018-01-24 ) “the issue …was and or is foisted on the Judgment of the Customary Arbitration Court…”; and “In fact, it was a travesty of justice for the Learned Trial Judge to have erroneously truncate [sic] the Plaintiff/Appellant’s case which was foisted on his usufructuary interest by finding that his case was caught by estoppel rem judicatam…” The meaning the latter statements are intended to convey remain a mystery to me. Counsel is kindly advised to use simple and comprehensible language to communicate rather than resorting to the use of words which may look and sound impressive but do not convey the intended or even any meaning. 7