ASARE VRS. OPARE (E1/96/2011) [2023] GHAHC 678 (5 December 2023)

IN THE HIGH COURT OF JUSTICE SITTING AT KOFORIDUA ON WEDNESDAY THE 5TH DAY OF DECEMBER, 2023 BEFORE HIS LORDSHIP JUSTICE SENYO AMEDAHE SUIT NO: E1/96/2011 MRS. MILLICENT MIREKU ASARE VRS KWASI OPARE: SUBSTITUTED BY YAW OPARE ___________________________________________________________________________ ____________ JUDGMENT The Plaintiff issued a Writ of Summon against the defendant on 12-05-2011 seeking for a: 1. Declaration of title and recovery of possession of all that piece or parcel of land situated and being at Koforidua and bounded on the North by the property of Mr. Akuamoah, on the East by the property of Edmund Asare, on the West by a motor road and on the South by a road. 2. Damages for trespass. 3. Perpetual Injunction restraining the Defendant his agents, servant and assigns from interfering with the property in dispute. The plaintiff said that the land in in dispute is part of a larger tract of land belonging to the Frankaase Family of Mampong Akuapem which was bought for her by her husband Rev. Edmund Asare from the family at a price of GH¢2,300.00 (Two thousand three hundred Ghana cedis). The transaction was evidenced by a Deed of Conveyance. She took possession of the land soon after she purchased it and built on it. Later the Defendant laid claim to the land and tried to take it away from her. She reported the matter to the family, but the defendant continued with his acts of trespass to the land and so she had to bring the matter to court. The Plaintiff says the Defendant is an ordinary member of the Frankaase family and has no capacity or authority to challenge the sale of the land to her by the Head of their family with the consent and concurrence of the principal members of the family. The family explained to him that the land was originally acquired by two brothers, Kwame Annobah and Kwasi Opare. When they died, the family shared the large tract of land among their children, but they reserved a small parcel of the land which contained an old cottage for the family. It is this small parcel of land which is in dispute in this case. The Plaintiff says it was the head of family Abusuapayin Kwame Sakyi who instructed Nana Aboa Basahyia and one Kofi Opare to sell the property in his name. It was Abusuapayin Kwame Sakyi who issued her with a Receipt and later gave her an indenture of conveyance which was stamped and registered at the Lands Commission, Koforidua as NQ 262/ 2008. The Frankaase family sold the land and used the proceeds to rehabilitate their old family house at Mampong – Akuapem. The original Defendant was Kwesi Opare. He died and was substituted by Emmanuel Asare who also died in the course of the case and was substituted by Yaw Opare. According to the substituted Defendant, the disputed land formed part of a larger tract of land acquired by his great grandfather the late Opanain Kwame Anobaah. After his death he was succeeded by his eldest son Kwesi Kroh who was also succeeded by Opanyin Yaw Opare the grandfather of the current substituted Defendant. During the reign of Opanin Yaw Opare, the family decided in the year 1978 and shared the large tract of land among the four sons of Opanin Kwame Anobaah the original owner of the tract of land. According to him the family however decided to preserve the area of the land which had Opanin Kwame Anobaah’s cottage on it so they could preserve his memory. The substituted Defendant told the Court that some on his uncles including Basahyia and Kofi Opare sold the portion of his great grandfather’s land given to them. After that they sold the land in dispute which was preserved for the family. This sale was resisted by Kwesi Opare who took the matter to Court. The substituted Defendant said he was later told by Kwasi Opare that when he took the matter to Court the Magistrate at the time ordered that the Plaintiff’s vendor should refund the purchase price of the land to the Plaintiff, but they failed to do so. The Court later recalled the case and ordered that the land should be given to the Plaintiff. The substituted Defendant also told the Court that Kwasi Opare also told him that the second judgment was quashed and his understanding is that so far as the second judgment was quashed, it ends the matter so the Plaintiff should not be allowed to bring the same matter to Court, but she should go and claim her money as was directed by the Court. The writ of summons in this case was filed on the 10th of May, 2011 and the application for directions taken on 10th July, 2012 where the following issues were set down to be heard: 1. Whether or not the family sold the land to the Plaintiff. 2. Whether or not the two vendors sold the land to the Plaintiff. 3. Whether or not the family compromised the judgment given by the District Court B Koforidua. From the proceedings before this court there seem to be the likelihood that this case might have been dealt with at the District Court before. If this case brought by the Plaintiff to this Court involves the same subject matter, and Defendants, and has been determined by a court of competent jurisdiction before, then, this court is estopped under the principle of Res judicata from re-hearing it. I shall therefore determine if this case is caught by estoppel Res judicata. The principle of estoppel per rem judicata is defined and explained in the reported case of CONCA ENGINEERING (GHANA) LTD VRS MOSES [1984-86] 2 GLR 319 in which the Court held that, “The plea of res judicata was based on two policy grounds, first, that it was in the public interest that there should be an end to litigation and secondly, that nobody should be vexed twice on the same matter. In view of the repetitive and sometimes harassing nature of litigation in Ghana, a rule of law that sought to avoid that, was one of abiding value. Estoppel per rem judicata is of two kinds, namely, cause of action estoppel and issue estoppel. Ordinarily, the plea of res judicata or estoppel by record was available only after the issue had been determined in a contested action in which both parties had been heard". The decision in RE SEKYEDUMASE STOOL AFFAIRS; NYAME VRS KESSE ALIAS KONTO (1989) SCGLR 476 listed the requirements to be present for a judgment to be considered conclusive and final as follows: 1. Be proven to be in existence 2. Show the identity of the parties 3. Show the relevant date of the proceedings, more particularly the date of the judgment. It should be final. 4. Show the relevance of the judgment to the issues in the subsequent trial. I shall determine the existence of the first ingredient in the NYAME VRS KESSE ALIAS KONTO (supra) case or otherwise which is “Be proven to be in existence”. In other words, the existence of the two cases. On 16th of April 2009 Rev. Edmund Asare and Mrs. Millicent Mireku Asare issued a writ of summons against Nana Aboah Babahia and Kofi Opare at the District Court in Koforidua in suit Number A1/08/09. On the 12th of May 2011, Mrs. Millicent Mireku Asare issued a writ at the High Court, Koforidua against Kwasi Opare in suit Number E1/96/2011. On the identity of the parties in the two cases. In the first suit that writ was issued by Mrs. Millicent Mireku Asare who is the plaintiff in the current case together with Rev. Edmund Asare, her husband. Mrs. Millicent Mireku Asare is therefore identified in both suits as the Plaintiff. The Defendants in the first suit, are Nana Aboah Basahia IV and Kofi Opare and in the current case, the Defendant before he was substituted after his death was Kwasi Opare. The two defendants are not the same people. In the first suit the Plaintiff sued because they had sold the disputed land to them on 1st February, 2007 but had refused to give her vacant possession so he was asking the Defendant to grant her vacant possession. However, in the current case the Plaintiff is asking that the original defendant who is different from the Defendants in the first suit to also grant her vacant possession, because he has trespassed onto she the Plaintiff’s land. The difference in the two cases is the reason for the order of possession being sort for by the Plaintiff in the two Courts. In the first suit the Plaintiff claimed that she had purchased land from Nana Aboah Basahyia and IV and Kofi Opare but they refused to grant her possession of the land she purchased. In the second issue in which she sued the Kwasi Opare she is seeking an Order of Possession the reason was that after she had bought the land, when she was ready to develop it and go onto it, the Defendant, Kwasi Opare had trespassed onto the land by placing cement blocks on it and claiming it as his. The two sets of defendants were therefore sued for different reasons, though it could be over the same piece of land. In this case the plaintiff was asking for possession over the piece of land being plot number 1, Section 15 A Block L situate at Two Streams in Koforidua. Showing the relevant date of the proceedings, more particularly the date of the judgment. On the 31st of July, 2009 the then Magistrate of the District Court recorded the Court’s proceedings as follows, “Plaintiffs present 1st Defendant absent 2nd Defendant Present 3rd Defendant present. By Court: JUDGMENT IS ENTERED against the 1st and 2nd Defendants for failure to return the land to Plaintiff. 1st and 2nd Defendants are to refund the amount of GH¢2, 300 to Plaintiffs. In addition, 1st and 2nd defendants are to pay interest of 30% per annum from the years 2007, 2008 and 2009, that is three years. Cost of GH¢300.00 against the defendants”. The above is the final judgment in the first case. It must be noted that in that judgment the Plaintiff and her husband were not given the land she was claiming, rather she was to be paid GH¢ 2, 300 by the Aboah Basahyia IV and Kofi Opare and cost of GH¢300. This was the final judgment of the Court and it was binding on the parties. In the current case one of the Plaintiffs is also in the first case, and she is Millicent Mirekua. She is seeking: 1. An Order for the declaration of title and recovery of possession of all that piece of land situate and being at Koforidua bounded on the North by the property of Mr. Akuamoah, the East by the property of Edmond Asare on the West by a motor road and on the South by a road. 2. Damages for trespass 3. Perpetual injunction restraining the Defendant his agents, servants and assigns for interfering with the property in dispute. What is the relevance of the judgment to the issues in the subsequent trial? The subject matter in both cases are the same, which is Sector number 15 A, Block L, Plot No. 1, Koforidua in the Juabeng Traditional Area. This description is found in the amended writ of summons filed by the Plaintiff on 1st April 2021. The land the Plaintiff and her husband were claiming at the District Court is also described in their writ filed in that Court on 16th April 2009. It is described as Plot No. 1 Sector 15 A Block L situated at Two streams. The same descriptions of the two Claims. The implication will be that if title to the land was not declared in favour of the Plaintiff but she was rather to be paid the some of the land when it was sold to her, it means that after the judgment of that court entered on 31st July, 2009 the Plaintiff and her husband could not lay claim to the disputed land because an order was made directed at the then Defendants to refund to her the entire price of the land. Consequently, the court expected her to execute the orders in the judgment of that case and not to issue a writ in another court over the same property. The Plaintiff after the judgment of the 31st July, 2009 could not be in possession of the land for which the court ordered that its cost be refunded to her. Once she was and could not be in possession of the disputed land she could not have sued asking for the grant of possession and damages for trespass. From the above discussions especially concerning the judgment of the District Court delivered on the 31st of July 2009, the Plaintiff is estopped from issuing this writ against the Defendant or any other person because he lost possession of the land in that judgment. The Plaintiff has litigated over this same land with the family of the Defendant and has a judgment in her favour and should execute it against the Defendants and not ply an alternative route one which is not opened to her. All reliefs of the Plaintiff are disallowed. By counsel for the Defendant, I believe we are entitled to cost and we ask for GH¢30, 000. By Lawyer for the Plaintiff: We will offer GH¢5,000 as cost. By Court: I have taken into consideration the submissions of both lawyers on the issue of cost in this matter. I am of the opinion of that the Defendant having incurred some legal expenses is entitled to cost to help off-set some of his expenses. I award cost of GH¢10,000 for the Defendant against the Plaintiff. (SGD) JUSTICE SENYO AMEDAHE JUSTICE OF THE HIGH COURT Counsel: Gabriel Odame Adufu for the Plaintiff present. Frank Nkansah with Nana Yaw Gyasi holding the brief for D. C. Hammond for the Defendants present Parties: Plaintiff present. Defendants absent. 7