UNIQUE GUEST HOUSE LTD. vs. JACOB KOFI BARAGBOR & 2 OTHERS [2010]DLCA6642

Date	2010-06-17
Suit No.	CIVIL APPEAL NO: H1/21/2010
Citation No.	[2010]DLCA6642

G.M. QUAYE J.A. (PRESIDING)

YAW APPAU J.A.

ADUAMA OSEI J.A.

MR. S K AMOAH FOR PLAINTIFFS/APPELLANTS

MR. PROSPER NYAHE FOR DEFENDANTS/ RESPONDENTS

[2010]DLCA6642
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													<main id="main" class="content" style="min-height: 60rem" >UNIQUE GUEST
HOUSE LTD.<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>JACOB KOFI
BARAGBOR &amp; 2 OTHERS<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL NO: H1/21/2010&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 17TH JUNE, 2010<o:p></o:p>

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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MR. PROSPER NYAHE FOR
DEFENDANTS/ RESPONDENTS <o:p></o:p>

G.M. QUAYE J.A. (PRESIDING), YAW APPAU
J.A., ADUAMA OSEI J.A.<o:p></o:p>

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</div>ADUAMA
OSEI J.A. <o:p></o:p>On
the 30th of December, 2005, the Plaintiff/Appellant caused a Writ of Summons to
be issued in the High Court, Accra, claiming against the 1st
Defendant/Respondent a declaration of title and other reliefs in respect of a
parcel of land at Bortianor in Accra. In the same Writ of Summons, the
Plaintiff/Appellant also claimed declaration of title and other reliefs in
respect of a different parcel of land against 2 other Defendants. <o:p></o:p>In
the Statement of Claim accompanying the Writ of Summons, the Plaintiff/Appellant
claimed to have acquired the land in issue in June, 1998 from the Nii Kwei Arku
IV Family, represented by Nii Akotey IV, Dzasetse and acting Mantse of
Bortianor. The Plaintiff/Appellant contended in the Statement of Claim that it
had brought its action against the Defendants because the Defendants had carved
out portions of its land for themselves and were developing the same without
its consent or authority. <o:p></o:p>Upon
being served with the Writ of Summons and Statement of Claim, the 1st
Defendant/Respondent caused a conditional appearance to be entered on his
behalf, while the 2nd Defendant entered unconditional appearance. About 12 days
after entering conditional appearance, the 1st Defendant/Respondent filed a
Motion in the High Court praying the High Court to dismiss the
Plaintiff/Appellant's Suit. Among the grounds on which the 1st
Defendant/Respondent sought the dismissal of the Plaintiff/Appellant's Suit
were that he had obtained a judgment against the Plaintiff/Appellant's grantor
in 2003 in respect of the land in issue, and that the said judgment was binding
on the Plaintiff/Appellant. The Plaintiff/Appellant was therefore estopped per
rem judicatam and its action was not maintainable and ought to be dismissed. <o:p></o:p>The
trial Court heard the 1st Defendant/Respondent’s application on 21st March,
2006, and upheld the contention that the Plaintiff/Appellant was estopped from
re-litigating the matter in issue. The Plaintiff/Appellant’s Suit was
accordingly dismissed, and this is an appeal brought by the Plaintiff/Appellant
against the decision of the trial Court. <o:p></o:p>The
Ruling of the trial Court is at page 28 of the Appeal Record and the Notice of
Appeal is at pages 29 to 30 of the Record. The grounds of appeal, as disclosed
on the Notice of Appeal, were formulated as follows: <o:p></o:p>"a.
Judge erred in law when he ruled that 1st Defendant can enter conditional
appearance and file to set aside Writ of Summons on grounds of res judicata. <o:p></o:p>"b.
Judge failed to take cognisance of fact that res judicata is a plea which must
satisfy certain requirements which can be revealed only through evidence. <o:p></o:p>"c.
More and further grounds of appeal shall be filed on receipt of record of
proceedings".<o:p></o:p>&nbsp;No further grounds of appeal were filed and
this appeal is therefore being prosecuted on 2 grounds. In this judgment, the
Plaintiff/Appellant is referred to as "the Plaintiff" and the 1st
Defendant/Respondent is referred to as "the 1st Defendant". <o:p></o:p>Before
considering the substance of the appeal, I wish to comment on the formulation
of ground (a) and for this purpose, I quote hereunder the Ruling appealed
against in its entirety: <o:p></o:p>"BY COURT: RULING: <o:p></o:p>"On
becoming aware of the suit against his grantor the plaintiff ought to have
taken steps to join or set aside t</main>