Agbeshie and Another Vrs Amorkor and Another (J4/35/2007) [2009] GHASC 2 (11 February 2009);
IN THE SUPERIOR COURT OF JUDICATURE
THE SUPREME COURT
ACCRA, GHANA.
CORAM: WOOD (MRS),C J (PRESIDING)
BROBBEY, J.S.C
ANSAH, J.S.C
ANIN YEBOAH, J.S.C
BAFFOE-BONNIE, J.S.C
CIVIL APPEAL
NO. J4/35/2007
11TH FEBRUARY, 2009
1. MADAM MASH AGBESHIE - PLAINTIFFS/RESPONDENTS/APPELLANTS
2. MR RICHARD AGBESHIE
VRS
1. MADAM AMINA AMORKOR - DEFENDANT/APPELLANT/RESPONDENT
2. FOFO RUKYEA LARYEA - CO-DEFENDANT/APPELLANT/RESPONDENT
_______________________________________________________________
J U D G M E N T
ANSAH, JSC:-
The issues in this appeal are very narrow indeed and may briefly be stated as entered on whether the plaintiff bought the whole of the disputed house or only its frontage.
Before deciding on the merits of the appeal, the facts of the case must be stated first. They were that the plaintiff brought an action against the defendant for
- A declaration of title to the property H/No. 49E/12, Nima, Accra,
- Recovery of possession of the said H/No 49/E12, Nima , Accra.
- Account for rent collected on the said premises by the Defendant to the plaintiffs.
d Damages.
e. Ejectment against the defendant from house number 49E/12, Nima, Accra,
f. Payment of monies received as rents on the said house from 1st May 1997,
and
g. g. General damages.
The plaintiff claimed the defendant was the owner of House Number 49E/12, Nima, until it was sold to the late deceased Madam Axorlushie Zomade. By a deed between Madam Zomade and the defendant on 8th April 1997, the defendant assigned the residue of the expired term of her leasehold in the house aforementioned, to Madam Zomade for ¢13m (thirteen million cedis), and handed over title deeds on the house to her. As part of the sale agreement, the defendant was to be permitted to continue staying in the house for three years after the sale. Further, a son of Madam Zomade would also come to stay in the house. Madam Zomade indicated she was going to pull down the whole house and build stores on the land and give them to the defendant on rental basis. The son has since then been staying in the house.
On the death of Madam Zomade on 19th January 1999, letters of administration were granted to the plaintiff to administer her estate. When she asked the defendant to leave the house she said the house was never sold to the plaintiff’s mother. The defendant had also been collecting rents in the house.
The defendant denied the claims by the plaintiff and asserted she inherited the premises from her late mother Amorkor Laryea. She the defendant sold a piece of land lying in front of the house to Madam Zomade, for the erection of a block of shops. The sale transaction was reduced into writing and stamped as LVB 5097/98. In a volte face manner the defendant pleaded in paragraph 10 of her statement of defence she was still the owner of the house and denied having ever sold it to the late Madam Zomade. In fact Madam Zomade only rented a hall and a chamber in the defendant’s house numbered 49E/12 formerly known as H/No. E15/101, Nima, Accra, and that was how her son came to stay in the house. She pleaded a receipt dated 2nd August 1995 and thumbprinted by Madam Zomade, also known as Axorlushie Adjagey, witnessed the tenancy transaction.
Whether or not Madam Axorlushie Zomade bought the house in dispute, House Number 49E/12 from the defendant was made a material issue for trial.
At the trial, the Madam Zomade’s son, Mash Agbeshie, gave evidence for the plaintiff and testified he knew his late mother bought a house from the defendant evidenced by exhibit B. A subsequent agreement was that Isaac Agbeshie, a child of his mother, was to move in to stay in the house. His mother also gave the defendant three months to stay in the house, and the defendant gave title deeds to the house, which were tendered in evidence as Exhibit C, to Madam Zomade. However, the defendant did not leave the house after the three months period as agreed upon.
When Madam Zomade died and the first plaintiff took over the administration of the house, the defendant denied ever selling the house to her, Madam Zomade.
The plaintiff was supported in his evidence on the sale of the house to Madam Axorlushie Zomade, by the PW1 Amudzi Roger. He confirmed that following the sale Exhibit B and C, the deed of assignment and the Land Title Certificate respectively, were given to Madam Zomade by Amina Amorkor. Exhibit D was the receipt for the payment of the purchase price.
The evidence for the defendant was given by Alhassan Abu Bakari. His evidence was brief and was that he did not know anything about the house even though the defendant was his sister; he knew she had no house.
Mary Bashom gave evidence for her mother the co-defendant. She said the house belonged to Abena Rahmatu who died survived by four children, three of whom were dead leaving only the co-defendant. This witness confessed it was not true that the defendant was the owner of the disputed house. In fact judgment was given against her in Suit Number CCL 73/96 entitled Fofo Rukiya Laryea v Amina Amorkor tendered in evidence as Exhibit 2.
At the end of the trial, the judge entered judgment for the plaintiff on all the reliefs claimed and costs of ¢2million against the defendant and the co-defendant. When the matter went on appeal, the Court of Appeal reversed the judgment in favour of the defendants. The plaintiff in turn appealed to this court against the judgment of the Court of Appeal on the grounds that:
- The judgment of the Court of Appeal is against the weight of evidence.
- The judgment of the Court of Appeal with the utmost respect occasioned a substantial miscarriage of justice as the court of appeal relied on the judgment of the Circuit Court dated 9/7/2002 in Suit No. CCL 73/96 entitled Fofo Rukiya Laryea v Amina Amorkor (substituted by Mallam Hassan) which was not binding on the appellants herein, as they were not parties to that suit and that the principle res judicata was inapplicable to the appellants.
- That the judgment of the Court of Appeal occasioned a substantial miscarriage of justice as the judgment of the Circuit Court dated 9/7/2002 in Suit No. CCL 73/96 entitled Fofo Rukiya Laryea v Amina Amorkor (susbstituted by Mallam Hassan) relied on by the Court of Appeal gave only two rooms in the property, the subject matter of this appeal, to the defendant/appellant/respondent herein, and that the Court of Appeal wrongly set aside the judgment of the trial high court and gave ownership of the whole house to the respondent herein.
- Further grounds of appeal will be filed on receipt of the record of appeal.
No such further grounds have been filed.
Ground two of appeal is of a crucial importance as it talked of a previous judgment by a Circuit Court Accra, (supra), involving the house and the effect in law. I have decided to consider this ground of appeal before any other because of the effect it could have on the outcome of this appeal. The issue raised by this ground of appeal was, did that judgment create any estoppel per rem judicatam against the parties to this appeal?
The law on the subject ought to be stated here in brief. It was that:
“It is well settled under the rule of estoppel that if a court of competent jurisdiction has tried and disposed of a case the parties themselves and their privies cannot thereafter bring an action on the same claim or issue.” See Dahabie v S.A. Turqui & Bros. [2001-2002] SCGLR 498 at 507; Gariba Dintie v Luweri Kanton, unreported, SC dated and Asare v Dzeny [1976] 1 GLR 473,at 478 per Azu Crabbe CJ (Full Bench). The learned Chief Justice said explaining the doctrine that
“By the doctrine of estoppel per rem judicatam a final decision of a concrete issue between parties by any court having jurisdiction to determine that issue will forever thereafter preclude either party from raising the same issue against the other party to the decision, whether the trial is before the same court, or before any court of higher or lower jurisdiction.”
Authorities in support of the doctrine are legion but it serves a little or no purpose to cite all of them beside these.
The substance of the ground of appeal was that the decision in Fofo Rukiya Laryea v Amina Armorkor in Suit Number CCL 73/96 was not binding on the appellants herein for they were not parties to that earlier suit. In fact the second condition for a proper invocation of the doctrine was that the parties must be identical in both suits. But in this case, it was not so; the parties were different. Counsel supported hi submission by the authority in Bedu v Agbi [1972] 2 GLR.
In the Gariba Dintie case cited above a not too dissimilar point was made and this court said of and concerning the submission that the doctrine of estoppel does not operate against only the actual parties involved in the previous suit, as the appellants seem to indicate; it goes beyond that to include their privies, which term include anyone who has a legal interest of privity in any action, matter, or property by blood, in representation, such as an executor or an administrator of an intestate person; etc.
In the present appeal, the respondent submitted that the plaintiffs claimed interest in the same property in the Circuit Court action so they are privies to her and are therefore bound by the decision of the Circuit Court. I agree with the submissions by the respondent more than with that of the appellant on this ground of appeal. The second ground of appeal is accordingly dismissed.
The third ground of appeal is equally of much importance as it touched on what the Circuit Court decided. I think this should provide little or no difficulty as the judgment of the Circuit Court was in evidence, as Exhibit 2. I wish to quote chunks from it. The trial Circuit Court Judge said in his judgment:
“After reviewing the evidence on record, I find that the property in dispute was acquired by plaintiff’s mother and not defendant’s mother. Amokor Meri Laryea being the eldest of the daughters of plaintiff’s mother solicited the help of the Islamic Research and Reformation Centre to share the rooms in accordance with Islamic law. I find that as a result of the distribution, plaintiff was allocated rooms 5 and 6 and defendant’s mother was allocated rooms 3 and 4. The late Tsotso Fati Laryea was allocated rooms 1 and 2 and Amarkai Zenabu Layea deceased was allocated rooms 7 and 8. I find that both the late Amorkor Laryea and the plaintiff herein, Fofo Rukaiya Laryea, thumb-printed Exhibit ‘A’ which documented the distribution made by Islamic Research and Reformation Centre.”
Thereafter the judge made the following declarations and order:
“I declare that Rooms 5 and 6 in House E.49/12, Nima, Accra are the property of the plaintiff Fofo Rukaiya Laryea. I therefore order plaintiff to render account of all rents collected from tenants who have occupied rooms 5 and 6 from 1993 to date of this judgment.”
These were the material findings and holdings by the trial Circuit Court, a court with competent jurisdiction, whose judgment has not as yet been set aside either on appeal or review and which binds the parties thereto and all their privies, or those tracing their title through them.
From the pleadings, the defendant said she inherited the house in dispute from her late mother Amorkor Laryea and sold it to the plaintiff’s mother the late deceased Madam Axorlushie Zomade.
At the trial at the Circuit Court, the plaintiff therein, the co-defendant appellant respondent herein, Fofo Rukaya Laryea, said her mother Abena Rahamatu built House Number E49/12 and on her death the rooms were shared for her children who included the plaintiff and Madam Amorkor Meri Laryea the elder sister of the plaintiff and the mother of the defendant therein. Madam Amina Amorkor is the first defendant in this suit on appeal, and Fofo Rukiya Laryea, the co-defendant/appellant/respondent. The plaintiffs (respondents/appellants) are the successors in title of Madam Axorlushie Zomade to whom the house was sold by Amina Amorkor. To clinch the point Fofo Rukyea Laryea is the appellant herein, and Amina Amorkor , the defendant in the High Court action. They were parties in the action in the Circuit Court. It was clear then that the parties are the same or at least privies (by consanguinity) to the original parties to the suit at the Circuit Court and are bound by the results in that suit. The doctrine of estoppel per rem judicatam applies to them. Ground two of appeal is misconceived and is dismissed accordingly.
Ground three of appeal brings into sharp focus the decision of the Circuit Court and how it distributed the rooms in the house. I have given the details already and plainly the judgment did not give the whole house to any of the parties to the suit. To be more precise, only two rooms were given to the respondent, and it would be wrong for the High Court and the Court of Appeal to have sought to decree title to the whole house to the respondent. It must be observed from a reading of the judgment as a whole that the Court of Appeal did not seem to have done that. In the High Court action the plaintiff claimed title to the house and succeeded. That judgment was against the weight of the evidence and the Court of Appeal rightly allowed the appeal against the judgment of the High Court. The Circuit Court declared title to two rooms to each of the four daughters of their deceased mother. When the mother of the defendant tried to claim title to the whole house she failed.
So on to the first ground of appeal that the judgment of the Court of Appeal was against the weight of evidence. The import of this ground of appeal was that having regard to the evidence, oral and documentary, adduced at the trial, judgment should not have been given to the other party as was done in the case but rather in favour of the appellant.
The trial judge expressed herself as finding the case for the plaintiff before her more plausible than that of the defendant, for they proved their case by documentary evidence in their exhibits B, C, D and E which cumulatively showed that the sale of the house to Madam Zomade really took place. To her, the defendant’s case of only a sale of only the frontage of the house was not convincing. The criticism against her judgment was when she said “In any case the issues and parties in exhibit 2 are not the same”. As I have tried to explain above, even if the original parties did not appear in both the Circuit and High Court trials their privies were there and bound by the judgment of the Circuit Court.
The Court of Appeal disagreed with the judgment of the High Court. It said the documents relied upon had serious defects in them so much that they could not support the plaintiffs’ case.
In the first place, according to the judgment of the Circuit Court a court of competent jurisdiction, when the house was distributed Amina Amorkor the grantor of Madam Zomade, had two rooms as her share. But the High Court decreed title to the whole house to the plaintiff, which was to say she decreed more than what the grantor had for her share in the house to the plaintiff. That was against the weight of the evidence on record.
The principle of law was that where a trial court took the demeanour of the witnesses before her/him, as well as the substance and quality of their oral and documentary testimonies, before giving judgment, then, an appellate court has no power to disturb or interfere or reverse the judgment of the trial court; see Ntiri & another v Essien & Another [2001-2002] SCGLR 451, where this court held that:
“It is the trial court which determines matters of credibility of a witness; these include the demeanour of the witnesses, the substance of his testimony, the existence or non-existence of any fact testified to by the witness”.
But then it is also recognised an appellate court may reverse findings of facts made by a trial court based on established facts in which case the appellate court was in the same position as the trial court and could draw its own inferences from those established facts; see Koglex Ltd (No. 2) v Field [2000] SCGLR 175. An appellate Court would justifiably interfere with a finding of fact by a trial court where the finding is inconsistent with crucial evidence oral or documentary, on record.
In the present appeal, the trial court had no difficulty in accepting the documentary evidence in exhibits B, C, D, but the Court of Appeal saw chinks in them saying
they were defective. I agree with those criticisms and affirm that the trial court put undue weight on these documents. The Court of Appeal was justified in interfering with the findings of facts by the trial judge and also reversing its judgment.
I have already dismissed ground two of appeal.
The Court of Appeal took great pains to stress that Madam Amina Amorkor could only grant or pass any interest to not more than the two rooms she had in the house to Madam Zomade. Therefore if the defendant purported to assign title to the whole house to Madam Zomade, she lacked capacity to do so, at least on the nemo dat quod non habet principle. Madam Zomade and her successors in title, the respondents, took nothing in law and ought not to have succeeded in the High Court. The Court of Appeal came to the right conclusion and their judgment was amply and reasonably supported by the evidence on record.
If the High Court judge had properly considered the judgment of the Circuit Court, a court of competent jurisdiction, and the principles governing the doctrine of res judicata, it would not have rejected it the judgment in Exhibit 2 and concluded erroneously the judgment did not bind the parties before her for they were not the same; even if they were not they were privies to the parties and were equally bound by the judgment in Exhibit 2. The essence of the judgment by the Court of Appeal was to apply that judgment and in my opinion the court was right in its judgment.
Accordingly, I state that the plaintiffs deceased mother Madam Axorlushie Zomade bought or was entitled to two rooms in the house namely rooms 3 and 4. He was entitled to title to these rooms and not the whole house. Subject to this clarification I, affirm the judgment of the Court of Appeal and dismiss the appeal.
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
I agree
G. T. WOOD (MRS)
(CHIEF JUSTICE)
I agree
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
I agree
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
I agree
P. BAFFOE- BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
GARBRIEL PWAMANG FOR THE CO-DEFENDANT/APPELLANT/RESPONDENT
KWABLA SENANU FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS
