OFEI KWAKU MANTE vs. MIKE SIMILAO, S. K. BOTCHWAY AND KOTEI BOTCHWAY [2017]DLSC2565

Date	2017-05-11
Suit No.	CIVIL APPEAL NO. J4/10/2016
Citation No.	[2017]DLSC2565

DOTSE JSC PRESIDING

YEBOAH JSC

GBADEGBE JSC

BENIN JSC

PWAMANG JSC

AYIKOI OTOO FOR THE PLAINTIFF/APPELLANT.

S. R. BREMPONG FOR THE RESPONDENT/RESPONDENT.

[2017]DLSC2565
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													<main id="main" class="content" style="min-height: 60rem" >OFEI KWAKU MANTE<o:p></o:p>vs.<o:p></o:p>MIKE SIMILAO, S. K. BOTCHWAY AND
KOTEI BOTCHWAY<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO. J4/10/2016&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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
DATE: 11TH MAY, 2017<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>AYIKOI OTOO FOR THE PLAINTIFF/APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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S. R. BREMPONG FOR THE RESPONDENT/RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p>DOTSE, JSC PRESIDINGYEBOAH, JSC GBADEGBE, JSC BENIN, JSC<o:p></o:p>&nbsp;AND PWAMANG, JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>GBADEGBE
JSC:-<o:p></o:p>We have given careful thought and
consideration to the appeal herein and come to the view that the decision of
the trial court to try the question of res judicata as a preliminary point of
law was wrong for the reasons which follow shortly. In the first place, at the
time of the order being made, there was no certainty regarding the area in
respect of which the plea of res judicata, if upheld by the court was to apply.
In our opinion before a court of law can cause the issue of res judicata to be
determined before a full scale trial, the identity of the area to which it
relates in relation to the previous judgment on which the point is planked must
be clear. In relation to the subject matter of the action herein the identity
of the disputed land must either be the same or have a juridical identity with
the area covered by the previous judgment; both areas must be relational, so to
say. See: Radstock Co-op Industrial Society Ltd v Norton- Radstock UD [1968] 2
All ER 59. The problem with which we are confronted in this appeal is not
lightened by the failure of both parties who instead of describing the
respective areas claimed by them in the writ of summons and or their pleadings
curiously attached site plans to their pleadings. In the circumstances,
notwithstanding a clear admission by the plaintiff of the issue of a previous
case between them in the Circuit Court in which the ownership of part of the
disputed area was decided, one of the essential conditions necessary&nbsp; to sustain the plea of res judicata was
absent rendering it improbable for a trial of that issue alone likely to result
in a decision that would substantially dispose of the matter as contemplated by
order 33 rule 5 of the High Court (Civil Procedure) Rules, CI 47. We are of the
opinion from a fair reading of the said rule that when an order for the trial
of a preliminary point of law does not achieve the purposes of sub-rule 5 then
the decision directing the trial of the issue is unjustified. The rule
provides:<o:p></o:p>“Where it appears to the Court that
the decision of any question or issue arising in any cause or matter and tried
separately from the main cause or matter substantially disposes of the cause or
matter or renders trial of the main cause or matter unnecessary, it may dismiss
the cause or matter or make such other order or give such other order or give
such judgment as may be just.”<o:p></o:p>See:
Apenteng &amp; Ors v Bank of West Africa Ltd &amp; Ors [1961] GLR 196<o:p></o:p>We
think that when a trial judge is faced with an application under Order 33 of
the rules of the High Court, he must read the entire provisions of the
Order&nbsp; as&nbsp;
if it were a single document in order to discern the purpose for which
such provisions were made and direct his mind to whether the order sought is
likely to advance the course of the action towards an earlier disposal within
the intendment of the rules and only make the order when satisfied from the
pleadings and the application before him that indeed, making an accession to
the prayer of the applicant would&nbsp; result
in&nbsp;&nbsp; a substantial disposal of the matter
or render the determination of the other issues in the matter unnecessary. This
explains why in the rule authorizing the exercise of that discretion contained
in Order 33 rule 3, it is provided as follows:<o:p></o:p>‘‘ The Court may order any question or
issue arising in any cause or matter whether of fact or partly of fact and
partly of law, and raised by the pleadings to be tried before, at or after the
trial of the cause or matter and may give directions accordingly.”<o:p></o:p>Contrary
to what must have weighed upon the mind of the learned trial judge, preliminary
points of law need not necessarily be tried before the action goes to trial but
may in the words of rule 3 of the Order be tried “before, at or after the trial
of the cause or matter.” We think that courts should give careful consideration
to such applications before deciding which of the three options open to them
they are to decide on. The decision as to which particular order to make is
dependent on the circumstances of the case. Where such a point cannot be
conveniently tried before the trial of the main action then the preferable
approach is to enable the said point of law or fact or both to proceed to trial
so that after receiving all the evidence in the matter, the court may determine
the point. The issue of res judicata need not be determined separately but may
subject to the particular circumstances of the case be determined “ at the
trial of the main cause or matter.’’<o:p></o:p>&nbsp;In the case before us, having regard to the
uncertainty over the subject matter&nbsp; and
the fact that at the time, a&nbsp; merit
consideration of the action&nbsp; had&nbsp; already begun , the&nbsp; learned trial judge erred when he purported
to have&nbsp; put an end to the full scale
trial in order to determine the issue of res judicata. In our view, the court
should have </main>