NYAME vs. KESE ALIAS KONTO [1999]DLSC501

Date	1999-02-10
Suit No.
Citation No.	[1999]DLSC501

EDWARD WIREDU JSC

KPEGAH JSC

ADJABENG JSC

ACQUAH JSC

AKUFFO JSC

PAAPA DADSON FOR THE APPELLANT.

ASARE BEDIAKO FOR THE RESPONDENT

[1999]DLSC501
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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">NYAME<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">KESE ALIAS KONTO<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1999-2000] 1 GLR 236<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: 10
FEBRUARY 1999<o:p></o:p>

</div>COUNSEL:<o:p></o:p>PAAPA DADSON FOR THE APPELLANT.<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">

ASARE BEDIAKO FOR THE
RESPONDENT<o:p></o:p>

EDWARD WIREDU, KPEGAH,
ADJABENG, ACQUAH AND AKUFFO JJSC<o:p></o:p>

</div>JUDGMENT OF EDWARD WIREDU JSC.<o:p></o:p>This opinion is a concurring contribution to the able and erudite
opinion about to be read by my brother Acquah JSC.<o:p></o:p>The principle of res judicata is now a well established and
acceptable principle in judicial proceedings. Its objective is to prevent an
abuse of the court’s process by estopping a party to a litigation against whom
a court of competent jurisdiction has already determined the issue now being
raised by reopening the same subject matter for further litigation. The
principle can also be raised against privies of the original parties.<o:p></o:p>Since its objective is to prevent an abuse of the court’s process
there is no need to go into the exercise of hearing the whole evidence on the
matter again, otherwise its purpose would be defeated. It can legitimately be
determined on an affidavit evidence in appropriate circumstances. Where it is
necessary to go into the matter by hearing evidence, such evidence must be
restricted to that issue only as a preliminary issue. Practice and procedure
rules permit this and the plea must be specifically pleaded to entitle a party
to take advantage of it: see Order 25, rr 1, 2 and 4 of the High Court (Civil
Procedure) Rules, 1954 (LN 140A).<o:p></o:p>It is now also established as trite law that where a party to a
suit admits the existence of an arbitration, the award of which had gone
against him, the issue of estoppel per rem judicatem can be raised to estop him
from reopening the subject matter of the arbitration unless he is able to
establish the invalidity of the award, and in such a situation the validity or
otherwise of the award must be determined as a preliminary issue.<o:p></o:p>In the instant appeal, the trial chieftaincy tribunal dealt with
the issue of res judicata as a preliminary issue and in addition to the
affidavit evidence took oral evidence also to resolve that issue. This course
was legitimate. The trial tribunal after taking oral evidence from both sides,
held that the issue had been determined and that the case was one in which the
plaintiff was estopped per rem judicatem from reopening the same subject matter
again. The trial tribunal was therefore justified in dismissing the appellant’s
petition.<o:p></o:p>JUDGMENT OF
KPEGAH JSC.<o:p></o:p>I had wanted to consider the philosophical underpinings of a plea
of res judicata. But considering the manner the concept had been dealt with in
the leading and supporting judgments, any further excursion to this area by me
will be an academic exercise only, of [1999-2000] 1 GLR 236-254 which will add
nothing substantial to the quality of views already expressed. I agree that the
appeal be dismissed.<o:p></o:p>JUDGMENT OF
ACQUAH JSC.<o:p></o:p>My lords, the plea of res judicata is never a technical plea. It
is part of our received law by which a final judgment rendered by a judicial
tribunal of competent jurisdiction on the merits, is conclusive as to the
rights of the parties and their privies and as to them constitutes an absolute
bar to a subsequent action involving the same claim, demand or cause of action.
In Spencer-Bower and Turner’s book, Res Judicata (2nd ed) at p 9, para 9, the
plea is explained thus:<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">“Where a final decision has been pronounced by a ... a judicial
tribunal of competent jurisdiction over the parties to, and the subject matter
of the litigation, any party or privy to such litigation, as against any other
party or privy thereto ... is estopped in any subsequent litigation from
disputing or questioning such decision on the merits whether it be used as the
foundation of an action or relied upon as a bar to any claim.”<o:p></o:p>As to how far interlocutory judgments can give rise to a
successful plea of res judicata, one has to distinguish between judgments by
default (of appearance or defence) and summary judgment under Order 14 </main>