OBOSU AND ANOTHER vs. MUSA AND ANOTHER [1987]DLHC2048

Date	1987-04-13
Suit No.
Citation No.	[1987]DLHC2048

KPEGAH J.

EWUSIE-WILSON FOR THE PLAINTIFFS.

DE-GRAFT AIDOO FOR THE DEFENDANTS.

[1987]DLHC2048
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">OBOSU AND ANOTHER<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">MUSA AND ANOTHER<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1992] 1 GLR 333<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 13 APRIL
1987<o:p></o:p>

</div>COUNSEL:<o:p></o:p>EWUSIE-WILSON FOR THE PLAINTIFFS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DE-GRAFT AIDOO FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGMENT OF KPEGAH J.<o:p></o:p>I will preface this my ruling with a statement of Eve J. in the
case of Cohen v. Rothfield [1919] 1 K.B. 410 at 416, C.A. as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“To restrain a man from proceeding with an action which prima
facie he has a right to bring and prosecute is, as was pointed out by Fletcher
Moulton L.J. in In re Connolly Brothers ([1911]1 Ch. 731 at 746), a very
serious thing, but it is not disputed that there is jurisdiction to make the
order, the basis of the jurisdiction being that it is a jurisdiction in
personam and has nothing to do with any conflict between the tribunals.”<o:p></o:p>I will supplement the above statement of the law with another one,
this time, from Jessel MR. in the case of McHenry v. Lewis (1883) 22 Ch.D. 397
at 400, C.A. The Master of the Rolls was dilating on the jurisdiction to put a
plaintiff to his election where he has instituted two suits within the same
jurisdiction against the same defendant for the same remedies. He said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“In this country, where the two actions are by the same man in
Courts governed by the same procedure, and where the judgments are followed by
the same remedies, it is prima facie vexatious to bring two actions where one
will do. And, indeed, this has been recognised, I believe, for ages by the
practice of the old Court of Chancery, which always put a Plaintiff to his election
by an order of course if he was suing for the same cause of action both at Law
and in Equity. The same principle applies it appears to me, wherever the
judgment can be enforced. . . Therefore, it appears to me that in all those
cases there is prima facie vexation.”<o:p></o:p>It will be seen that in both cases, their lordships were
considering a situation where the same plaintiff instituted a concurrent action
against the same defendant for the same remedies within the same jurisdiction.<o:p></o:p>The brief facts of the instant case are as follows: The plaintiffs
issued a writ of summons against the defendants claiming a declaration of title
to a piece or parcel of land known and called “Tweikukrom” situate at Ajumako
Assin in the Ajumako Traditional Area. They also claimed the ancillary reliefs
of recovery of possession and an order of perpetual injunction. In their
statement of claim, the plaintiffs pleaded estoppel per rem judicatam, relying
on a judgment in a previous suit affecting the same land entitled Jonah Abraham
Annobil v. Nana Obosu. In that suit, the first plaintiff in the instant case
was the first defendant and the second defendant in the present suit was
substituted for the first plaintiff in the previous suit after the latter’s
death. The second plaintiff and the first defendant were not parties to the
previous suit. I take it, however, that they are privies since this was not
controverted by the defendants. The plaintiffs also pleaded certain
arbitrations in addition to the judgment. The present plaintiffs did not
counterclaim in the old suit. The claim of the defendants in that suit for
declaration of title, recovery of possession, perpetual injunction, etc. was
dismissed. Despite this, the defendants continued to work on the land on the
ground that the plaintiffs never counterclaimed in the previous suit in the
High Court and therefore had no title to the land either. The plaintiffs
brought the instant suit against the defendants for declaration of title,
recovery of possession and an order of perpetual injunction as a way of
remedying their failure to counterclaim in the previous suit.<o:p></o:p>When judgment went against the defendants in that suit, they
appealed to the Court of Appeal against the dismissal of their claim. The
plaintiffs did not cross-appeal. There is an admission by the plaintiffs in
paragraph (5) of their statement of claim that the judgment they are pleading
as res judicata was delivered on 11 May 1985. The current action was commenced
on 23 October 1985. It is safe to conclude, therefore, that the appeal was
filed, considering the time allowed for appeals under the rules, before the
present writ was sealed on 23 October 1985.<o:p></o:p>The defendants denied the claim of the plaintiffs related to the
same land and said they were not claiming “the land in dispute” in this suit.
One of the essential elements for a plea of res judicata is therefore lacking
or is being denied. The defendants then averred that the judgment cannot be so
pleaded against them. Pleadings had closed and issues settled since 1985. The case
appeared on my cause list on 24 March 1987 and I had wanted to fix it for
definite hearing when learned counsel for the defendants, Mr. de-Graft Aid</main>