SAM vs. NOAH [1988]DLCA804

Date	1988-07-28
Suit No.
Citation No.	[1988]DLCA804

ABBAN J.S.C.

OSEI-HWERE JA

LAMPTEY J.A

R. I. QUANSAH (WITH HIM BAIDEN) FOR THE APPELLANT.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1988]DLCA804
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >SAM<o:p></o:p>&nbsp;vs. <o:p></o:p>NOAH <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 213<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">

DATE 28
JULY 1988<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

R. I. QUANSAH (WITH HIM BAIDEN) FOR THE APPELLANT.
<o:p></o:p>

NO APPEARANCE BY OR FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ABBAN J.S.C., OSEI-HWERE AND LAMPTEY
JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LAMPTEY J.A.<o:p></o:p>Lamptey
J.A. delivered the first judgment at the invitation of Abban J.S.C. On 5
December 1978 one Kweku Sam as plaintiff took action against Opanin Noah in the
District Court, Grade I, Agona Swedru. He won that action. The defendant
appealed to the High Court, Cape Coast on two grounds of appeal. The High
Court, Cape Coast heard the appeal on the merits. The learned judge of the High
Court reversed the decision of the lower court. In his judgment the learned
judge of the High Court held that the action prosecuted by the plaintiff was
not an action for damages for trespass as was decided by the lower court. The
judge held that the action brought by the plaintiff was one for a declaration
of title to land. In the view of the learned judge of the High Court the
plaintiff failed to prove his claim and was therefore not entitled to judgment.
Accordingly, he dismissed the action of the plaintiff and entered judgment for
the defendant, Opanin Noah. The plaintiff, Kweku Sam, did not appeal against
the judgment of the High Court, Cape Coast. I will in due course deal with the
judgment of the High Court, Cape Coast. While the above appeal filed by the
defendant was pending before the High Court, Cape Coast the plaintiff commenced
another action against the self-same Opanin Noah as first defendant and two
others in respect of the same land in the same district court at Agona Swedru
on 30 March 1981. The plaintiff by his writ of summons claimed “¢2,000 being
damages for unlawful entry by the defendant herein for unlawfully entering into
the plaintiff’s land at a place called Bundo in the vicinity of Obaakwa and
driving the plaintiff’s labourers from the land . . . “ The trial district
court heard the case on the merits and entered judgment for the plaintiff. The
defendant was aggrieved by the said judgment and appealed to the High Court,
Cape Coast. That court reversed the decision of the district court and entered
judgment for the first defendant against the plaintiff. The plaintiff felt
aggrieved by the decision of the High Court, Cape Coast and appealed to this
court. This judgment is the subject matter of the present appeal before this
court.<o:p></o:p><o:p>&nbsp;</o:p>Before us
one ground of appeal argued with considerable force was that the learned judge
of the High Court erred in law “when he held that the plaintiff was estopped by
an existing judgment of the High Court, Cape Coast from commencing the action
herein.” Counsel for the plaintiff submitted that the action commenced by the
plaintiff on 5 December 1978 was an action for damages for trespass against the
first defendant. He contended that the action against the first defendant, the
subject matter of the present appeal, was one for a declaration of title to the
land in dispute. He submitted that the judgment dismissing the plaintiff‘s action
in trespass cannot operate as an estoppel per rem judicatam against him in an
action seeking a declaration of title to the land in dispute. He invited this
court to set aside the judgment on this ground. The respondent was not present
at the hearing of this appeal. He was also not represented by counsel.<o:p></o:p><o:p>&nbsp;</o:p>In
considering the submissions of counsel for the plaintiff, I found the Privy
Council case of Adjei III v. Adjedu II [1961] G.L.R. 178, P.C. very helpful. In
that case Lord Keith of Avonholm stated at 180-181, P.C. 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">“As
considerable argument was developed by counsel for the appellant on the
doctrine of res judicata their Lordships would only say that where a judgment
has been given in a dispute between two parties on a question of ownership, the
party in whose favour the judgment was given is entitled to stand on his judgment.
Estoppel operates against the party who has lost if he seeks to dispute the rem
judicatam. The Okadjakrom stool has no judgment here on which it can stand in
the matter of ownership and no question of estoppel against the Atonkor stool
can accordingly arise.”<o:p></o:p><o:p>&nbsp;</o:p>During
the trial in the district court, two judgments were tendered in evidence. These
were exhibits A and B. The judgment given in favour of the plaintiff was accepted
and marked exhibit A. The judgment reversing the judgment contained in exhibit
A was accepted and marked exhibit B. Does this judgment, exhibit B, in law
estop the plaintiff from commencing the action now on appeal before us? The
answer given by the learned judge of the High Court was stated in the following
language:<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">