Wiafe Vrs Twum-Baah (H1/284/2004) [2005] GHACA 27 (15 July 2005);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - 2005
CORAM - ADINYIRA [MRS] [PRESIDING] JA
PIESARE, JA
KANYOKE, JA
H1/284/2004
15TH JULY, 2005
KWAME WIAFE DANKWA … PLAINTIFF/APPELLANT
V E R S U S
OPANIN TWUM-BAAH … DEFENDANT/RESPONDENT
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J U D G M E N T
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KANYOKE, JA - The parties to this appeal hail from Akyem Maase in the Eastern Region of the Republic of Ghana. In or about late 2002 the head of family of the defendant/respondent (hereinafter referred to as the respondent) died and whilst preparations were being made to bury the deceased in the royal cemetery at Akyem Maase the plaintiff/appellant (also hereinafter called the appellant) alleging that the respondent’s family were not royals at Akyem Maase, caused a writ of summons to issue on January 15 2003 from the registry of the Circuit Court, Koforidua against the respondent claiming the following reliefs:
“(a.) Declaration that the defendant not being member of the plaintiff family is not
entitled to bury his deceased relative on the land belonging to the plaintiff.
(b) An order of perpetual injunction to restrain defendant, his agents and privies
workmen and assigns from burying their dead on or around plaintiff’s family
land or entering it in any way whatsoever.”
The appellant accompanied the writ of summons with a statement of claim and a motion for an order of interlocutory injunction to restrain the respondent from burying his corpse on the appellant’s family land. The respondent resisted the motion by filing an affidavit in opposition. On 29th February 2003 learned counsel for the respondent who had earlier on intimated to the court to oppose the motion, informed the court of the respondent’s family’s undertaking not to bury the corpse in the royal cemetery until the suit was disposed of. The motion for interim injunction was therefore left to remain in abeyance on the case docket. Before then the respondent had on the 6th May 2003 filed his statement of defence and counterclaim. Though this was filed out of time it was regularised by the court on 8th May 2003.
Learned Counsel for the appellant then filed summons for directions after filing a Reply and Defence to the counterclaim. The respondent also filed additional issues. On the 9th June 2003 the issues in the summons for Directions and the Additional issues were admitted to the pleadings and set down for trial.
Subsequently the appellant filed an amended statement of claim with the leave of the court. This prompted the respondent to also file an amended statement of defence and counterclaim. On 14th August 2003 the respondent filed a further amended statement of defence and counterclaim with the leave of the court.
In his amended statement of defence and counterclaim the respondent denied the appellant’s pleading that he (the appellant) was the head of his family. The respondent also traced the origins of his family and that of the appellant from one common ancestress called Nana Konadu. He averred that from time immemorial his family and that of the appellant had one head until in 1957 when the family split into two as a result of a dispute within the family and that some members of his family ascended the Akyem Maase Ekuona Stool as chiefs and when they died they were all buried on the Akyem Maase royal cemetery. The respondent further averred that sometime ago the Judicial Committee of the Akyem Abuakwa Traditional Council ruled, following a summons his family initiated against the appellant’s family that his (respondent’s) family were royals at Akyem Maase and therefore the appellant’s family were estopped per vem judicatam from relitigating that issue in this suit.
When the appellant was served with the amended statement of defence and counterclaim of 14th August 2003 he did not seek leave to and therefore did not amend his Reply and Defence to the counterclaim to respond to the respondent’s plea of res judicata. Instead, learned counsel for the appellant perceiving that the amended statement of defence and counterclaim contained admissions mounted a motion on notice on 1st September 2003 under Order 32 r. 6 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) now revoked, for judgment in admissions. The motion was resisted by the respondent. On 22nd September 2003 the trial Circuit Judge rejected the motion in a ruling and ordered the suit to be heard on its merits. It is that ruling of the court below that the appellant has asked us in this appeal to reverse on the following grounds of appeal:
“ (i) the ruling is against the weight of the affidavit evidence before the court.
(ii) The Judge misdirected himself by introducing facts not deposed to in the
affidavit into his ruling.
(iii) The Judge erred by equating the status of a chief to that of a royal in his ruling.
(iv) The Judge erred by re-writing and or reading into the mind of defendant what
he (the Judge) thought the defendant wanted to say in paragraph 4 of
defendant’s amended statement of defence and counterclaim filed on August 14
2003.
(v) The Judge misdirected himself by refusing to follow legal precedents of the
superior courts.
(vi) The Judge misdirected himself by failing and or refusing to look at the entire
case presented by the application.”
In my opinion grounds (i), (ii), (iii) and (iv) of the grounds of appeal are merely subsidiary or collateral. I will therefore proceed to deal with these grounds of appeal before I go on to deal with the kernel of this appeal. Grounds (i), (ii), (iii) of the notice of appeal can conveniently be dealt with together under the common and general heading.
“The ruling is against the weight of the affidavit evidence.”
I do not hesitate to say that this ground of appeal is factually flawed and I will soon show this. In his statement of case filed on the 25-11-2004, learned counsel for the appellant contended that the trial court’s ruling is against the weight of the evidence brought before it because the conclusions arrived at were not based on the facts available in the affidavit and or submissions made before the court. For example the interpretation the trial judge gave to paragraph 4 of the amended statement of defence and counterclaim is absurd and not in line with any rules of interpretation. The response of learned counsel for the respondent is that Order 32 r. 6 of L.N. 140A was a procedure for judgment based on the pleadings. The court must examine the pleadings and decide whether to exercise the discretion in favour of the applicant. The court can even take into consideration judicial notice of certain facts where applicable before determining the application. It is therefore wrong to limit the determination of the application under Order 32 r. 6 to the affidavit evidence only.
It is regrettable that learned counsel for the appellant did not proceed to demonstrate in his statement of case which part of the ruling of the Circuit Judge was not based on the facts available in which affidavit or affidavits.
In the case of Elizabeth Matteer Vrs. Ambah Mansah, Full court, Cape Coast, 22/9/19 Smyly C.J. speaking on this general ground of appeal, “The judgment is against the weight of the evidence” said at p. 11: “Judgment is against the weight of the evidence is altogether too loose and vague as it stands.”
Legal Practitioners who therefore seek to upset decisions of trial courts on appeal on this loose and vague ground of appeal must note that there is a presumption that decisions of the courts below are right and that presumption must be displaced by the appellant if he can satisfactorily make out that the court or the judge below was wrong. The appellant must be able to positively demonstrate that the decision appealed from is not supported by the evidence available on the record of proceedings or that the court or the judge below committed errors of law or failed to observe apparent inconsistencies or material probabilities in the evidence before him. See dictum of Lord Esher M.R. in the case of Colonial Securities Trust Co. Ltd Vrs. Massey and Ors. [1896]1 Q.B.D. 38. A Court of Appeal will not therefore upset findings of fact made by the court below unless the appellant is able to satisfactorily make out a case that the evidence on the record does not support the findings or the conclusions made or reached by the court or the judge below or that the court or the judge failed to observe material inconsistencies or probabilities in the evidence put before him. But where the findings or conclusions were based on undisputed facts and documents, as in the instant case the appellate court was in decidedly the same position as the lower court and could examine those facts and materials to see whether the lower court’s findings and or conclusions were justified in terms of the relevant legal decisions and principles. See Barclays Bank Ghana Ltd. Vrs. Sakori [1996-97] S.C. GLR 639, S.C. at p. 641.
In the instant case the trial Circuit Court had only documents put before him to examine and make his findings or draw his conclusions. These were the pleadings of the parties and the affidavits in support of and in opposition to the Motion for Judgment. He looked at and examined all these documents and drew his conclusions as follows at page 46 of the Record of Proceedings:
“The defendants have not admitted that the land is not their land anywhere in their pleadings and particularly in paragraph 4 of the statement of defence filed on 14/08/03. Order 32 r. 6 . is a discretion which a judge must exercise very discretely. The judge must be very sure by evidence that the other party has admitted the fact which is the bone of contention and therefore there is nothing to be tried. The trial will only be a waste of time.
In this case there has been no admission at all of the triable issues. That paragraph 4 does not admit that they are not royals, it does not admit that the land is the family property of the plaintiffs.” (My emphasis).
In the instant case the respondent averred in the amended statement of defence and counterclaim some members of his family who were not only buried in the royal family when they died but who in their lifetime became chiefs at Akyem Maase. I therefore agree with learned counsel for the respondent that the mention of chiefs was geared at supportive of their claim that the respondent’s family were royals at Akyem Maase. It is also incorrect that the trial judge equated the status of a chief to a royal in his ruling. All that he did was to deal with the meaning of the word “royal” in the traditional sense but that was not the basis of his ruling as these passages in the ruling indicate:
He continued at page 48 as follows:
“In this case, as I have already explained there are serious questions of law to answer and the subject-matter is in issue.”
On the issue of whether or not the respondent family are royals at Akyem Maase. The learned trial judge added at p. 49 of the record of proceedings:
“……..Finally if it is the (sic) a royal that matter was decided by a competent traditional council. That is why counsel for respondent argued that applicants are estopped from raising that issue in a Circuit Court. (My emphasis).
I am unable to see in this judgment or ruling facts which have been imported into the ruling but which facts were not available on the affidavits put before the court. And in any case learned counsel for the appellant has not demonstrated or pointed out the alleged facts in the ruling of the court below which the trial judge introduced into his ruling but which facts were not available in the affidavits. Learned counsel for the appellant has not even pinpointed in his statement of case the affidavit or affidavits he is talking about. Learned counsel for the appellant has not been able to satisfactorily convince me that the trial judge was wrong in his ruling. He has not been able to displace the presumption that the conclusions of the judge are not supported by the evidence available in the pleadings or affidavits put before the judge. Order 32 r 6 of L.N. 140A is a procedure that enables a party to obtain judgment on admissions on the pleadings. I find no merit on grounds (i) (ii) and (iii) of the grounds of appeal and I dismiss the appeal on these grounds.
Now as I remarked earlier on the kernel of this appeal is the issue of whether or not the respondent’s family are royals at Akyem Maasi. It is true that the trial Circuit Judge attempted to and did interprete the word “royal.” I concede that it was premature to attempt a definition of that word at that stage of the proceedings. What the trial judge was expected to do was to examine the pleadings as they stood and decide whether the respondent had made admissions on his pleadings that his family are not royals. But the record of proceedings indicates as I have already shown that the judge below despite the
slip in his interpretation of the word “royal” examined the pleadings and came to the conclusion that (1) there are no admissions in the respondent’s pleading, (2) that paragraph 4 of the statement of defence and counterclaim did not admit paragraph 3 of the statement of claim, (3) that the pleadings raised points of law for argument; (4) that the whole subject matter of the suit is in issue because the pleadings raised other issues for trial and therefore evidence has to be called on those other issues and (5) therefore that it was inconvenient to accept the motion for judgment. Learned Counsel for the appellant has not satisfactorily convince me that those conclusions made by the trial judge are wrong or that he failed to observe material inconsistencies or probabilities in the pleadings before arriving at those conclusions. In arriving at his conclusion to reject the motion the trial judge exercised his discretion in the matter. The stand taken by learned counsel for the appellant on the decision of the court below to reject the motion for judgment clearly shows counsel’s lack of appreciation of the procedure under order 32 r 6 of L.N. 140A. The court or the judge has an absolute discretion under order 32 r. 6 of L.N. 140A. In the case of Mellor Vrs. Sidebottom [1895] 5. ch. D. 342., C.A. Jessel M.R. said at p. 344 of the report that “The judge has a discretion as to whether the case involved questions which cannot conveniently be disposed of on a motion of this kind.”
He was commenting on r. 11 of Order XL of the English Rules of procedure which is the equivalent of our order 32 r. 6 of L.N. 140A. See also dicta of Mellish L.J. in Gilbert Vrs. Smith [1876] 2 ch. D. 686, C.A. And in the case of Adjavon & Ors. Vrs. Ghana Industrial Holding Corporation [1980] GLR 135, CA the Court of Appeal held at p. 136 that:
“The remedy under order 32 r. 6 is discretionary…….[w] here a court finds that a case cannot be conveniently tried on such a motion it can exercise its discretion against such a cause and its ruling may not be reversed an appeal.”
And In Re Wright, Kirke Vrs. North [1895] 2 ch. D. 747, the court held at p. 750 that:
“An order on admissions is not a matter of right but is in the discretion of the court.”
It is therefore trite learning that the procedure under Order 32 r. 6 of the High Court (Civil Procedure Rules, 1954 (L.N. 140A) now order 23 r. 6 of C.I. 47 confers on the court or the judge absolute discretion to decide whether or not in any particular case a motion for judgment on admissions should be accepted or rejected and the course he takes may not be reversed on appeal. Where a court or a judge has a discretion there cannot be properly binding precedents. This is because decisions taken on the basis of the exercise of a discretion are only of persuasive value and significance only. I have always known the principle of law to be that when a court or a judge exercises a discretion in any cause or matter an Appellate Court will not interfer or will be slow in interfering with the exercise of that discretion unless the appellant is able to satisfy the Appellate Court that the court or judge below exercised its or his discretion on a wrong principle or that the exercise of that discretion has created a manifest in justice between the parties. See Yeboah and Another Vrs. Bofour [1971] 2 G.L.R. 199, C.A Learned Counsel for the appellant has not shown in this appeal that the judge below violated these principles in exercising his discretion in the matter. I therefore find the submission of learned counsel for the appellant that the trial Circuit Judge refused or failed to follow legal precedents of the superior courts completely misplaced and I reject it. It is not even correct that the trial judge did not follow Adjavon & Ors. Vrs. GIHOC (Supra) and Armah Vrs. Addoquaye (supra). At p. 48 of the Record of Proceedings the trial judge expressly referred to and reviewed those cases and concluded as follows:
“In this case, as I have already explained there are serious questions of law to answer and the subject-matter is in issue.
The rule would therefore not apply. In Armah Vrs. Addoquaye the rule was held to be applicable because the defendant admitted the root of title which was in issue.”
The trial judge’s exposition of the law on this is both flawless and unassailable I entirely agree with the judge below that as far as the pleadings of the respondent are concerned, the case of Armah Vrs. Addoquaye (supra) is totally, inapplicable. By way of re-hearing I have myself perused very carefully and scrutinized the pleadings of the respondent and I emphatically endorse the conclusion of the trial Circuit Judge that there
are not clear, and unequivocal admissions in those pleadings. It is also factually incorrect that the respondent did not specifically plead to paragraph 3 of the amended statement of claim. He did in paragraph 4 of the amended statement of defence and counterclaim thus:
“4. Defendant will say that the Royal family of Akyem Maase descended from the said Konadu and therefore paragraph 3 of the amended statement of claim is admitted save that the defendant’s family are not Royals of Akyem Maase.”
It is interesting to observe that it is on the basis of this same paragraph 4 of the amended statement of defence and counterclaim that prompted learned counsel for the appellant to file the motion for judgment on admissions. So to submit now as learned counsel for the appellant has done that the respondent did not specifically plead to paragraph 3 of the amended statement of claim is in my view a contradiction both in thought and fact. I reject that submission as lacking any merit.
Learned Counsel for the appellant also referred to paragraphs 9 and 10 of the amended statement of claim and submitted that the pleading of the respondent to these averments in his paragraphs 21, 22 and 23 of the amended statement of defence and counterclaim is contradictory and therefore that these contradictory averments further go to confirm respondent’s admissions. I do not see any such contradictions in paragraphs 21, 22 and 23 of the statement of defence and counterclaim especially when the appellant had himself admitted in his amended statement of claim filed on 12-6-03 in paragraph 6 thereof that:
“6. Plaintiff avers that Maase was founded and first settled by Nana Okofo Aniampam.”
This averment corroborates the respondent’s pleading that Akyem Maase was first founded and settled on by Nana Okofo Aniampam (See paragraph 1 of the amended statement of defence and counterclaim of 14/8/03). The respondent also pleaded that Nana Aniampam settled on that land with his sister called Nana Konadu and that his family and the family of the appellant descended from this common ancestress – Nana Konadu. (See also paragraphs 2 and 3 of the same statement of defence and counterclaim). So if the respondent pleaded on paragraph 21 and 22 that Nana Konadu did not return to where she came from to settle at Akyem Maase I do not see any contradiction in that pleading. In any case that pleading is not an admission that the respondent family are not royals at Akyem Maase. In the case of Hughes Vrs. London & Edinburgh and Glasgow Assurance Co. [1891] T.L.R. 81, C.A. the Court said:
“The court will not allow final judgment to be signed upon admissions in a pleading or affidavit unless the admissions are clear and unequivocal.” (My emphasis).
See also Adjavon & Ors. Vrs. GIHOC (supra). A careful perusal of paragraph 4 of the amended statement of defence and counterclaim shows that the alleged admission by the respondent in that paragraph that his family are not royals at Akyem Maase is not clear and unequivocal. That paragraph 4 is shrouded in doubt and ambiguity. It is a rule of interpretation that a statute or a document must not be read disjointly or in parts but that it must be construed or interpreted as a whole in order to discover and give effect to the intention of the drafter or maker of that statute or document. Thus in the case of Wigsell Vrs. Corporation School for the Blind [1880] 43 L.T. 218 Huddleston B. said:
“In construing covenants, the fulfillment of the evident intention and meaning of the parties to them must be looked at, not confining oneself within the narrow limits of a literal interpretation, but taking more liberal and extended view, and contemplating at once the whole scope and object of the deed in which they are contained.”
Similarly in Manu Vrs. Emeruwa [1971] 1 GLR 442 where words used in part of a written document made it difficult to determine whether the transaction was a pledge or mortgage, Abban J. (as he then was) in construing the document said:
“In cases of this kind, all the terms of the document must be looked at and whatever may be the phraseology adopted or used in some particular part of the document, if on the consideration of the whole document there are grounds appearing on the face of the document affording proof of the real intention of the parties, then that intention ought to prevail against the obvious and ordinary meaning of those words.”
See also Boateng Vrs. Volta Aluminum Co. Ltd. Court of Appeal, 26 June 1986, digested in [1984-86] GLRD 85, CA. and Jodrell Vrs. Seale [1890] 44 ch. 590 at p. 605.
In the instant case it is the second part of paragraph 4 of the amended statement of defence and counterclaim beginning with the word “save” that has created the problem here and that is the bone of contention in this appeal. In my view this part of paragraph 4 should not be read in isolation or disjointly . The whole of the amended statement of defence and counterclaim must be read as a whole in order to determine the real intention of the respondent and when this is done and that is what I have done here by way of a re-hearing it is clear and obvious to me that the real intention of the respondent in that paragraph 4 is to deny that his family are not royals at Akyem Maase. If paragraphs 1, 2, 3, 4, 18(a) and 38 of the amended statement of defence and counterclaim in particular which have pleaded estoppel per rem judicatam on the issue of whether or not respondent’s family are royals, are read together then it is very clear to me that paragraph 4 or to be more specific the second part of that paragraph 4 is not admitting that respondent’s family are not royals at Akyem Maase . To construe that second part of paragraph 4 to mean an admission of that issue will be absurd as it will make the plea of estoppel per rem judicatam nonsense and meaningless as well as contradictory. And quite interestingly and significantly too the appellant did not seek leave to amend and consequently did not amend his Reply and Defence to the counterclaim to specifically plead to that plea of estoppel per rem judicatam in paragraphs 18(a) and 38 of the amended statement of defence and counterclaim of 14/8/03.
The plea of res judicata is a fundamental defence and if it is raised and proved it has the effect of prohibiting a court from enquiring any further a matter or issue already adjudicated upon between the parties or their privies by a previous court or tribunal of competent jurisdiction. Thus in the case of Ababio Vrs. Kanga [1932] 1 W.A.C.A. 253 at p. 254 the court explained this principle in these words:
“Estoppel per rem judicatam is the rule that a final decision of a court of competent jurisdiction once pronounced between parties cannot be contradicted by any one of such parties as against any other of such parties in any subsequent litigation between them respecting the same subject-matter. The word parties must be taken as including privies.”
In the instant case the appellant is a defendant to the counterclaim and ought therefore to have specifically pleaded to the plea of estoppel per rem judicatam raised by the respondent’s pleading but he did not do that. The Reply and Defence to the counterclaim contains only the general traverse that:
“1. Save and in so far as the same consists of admissions plaintiff joins issue with
defendant upon their defence.”
This averment is no answer to the specific plea of estoppel raised in paragraphs 18(a) and 38 of the amended statement of defence and counterclaim of 14/08/03. Order 19 r. 14 of L.N. 140A provided that:
“Every allegation of fact in any pleading not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the opposite party shall be taken to be admitted, except as against an infant, lunatic or person of unsound mind so found by inquisition.”
And Rule 18 of the same order expressly states that a defendant must not deny a specific plea generally whilst Rule 20 of same order also states that denial in pleadings must not be evasive. See Armah Vrs. Addoquaye (supra) and Atiga Vrs. Vanderpuiye [1969] C.C. 57, C.A. There is no evidence on the record of proceedings that the appellant is a lunatic or an infant or a person of unsound mind found by inquisition. Therefore the appellant not having specifically denied paragraphs 18(a) and 38 of the amended statement of defence and counterclaim which pleaded estoppel per rem judicatam, is deemed to have admitted that a competent Judicial Tribunal had already pronounced that the respondent’s family are royals at Akyem Maase and therefore that issue can no longer be litigated in this case. The motion for judgment on the ground that the respondent had admitted in his pleadings that his family are not royals at Akyem Maase was consequently a non-starter and should have been summarily dismissed on this ground.
In any case I agree that the respondents pleadings did not only raise points of law for argument, namely the plea of estoppel per rem judicatam and the representative capacity of the appellant to initiate the action in the first place but that the pleadings also raised other issues for determination by evidence and therefore put the whole subject-matter is issue. The trial Circuit Judge had a discretion to accept or reject the motion and be exercised that discretion in favour of the respondent. That course he took may not be reversed in this appeal. I find no cause to reverse the ruling of the court below. I find no merit also in ground (v) and (vi) of the grounds of appeal and I dismiss the appeal on these grounds too. In conclusion it is my considered opinion that the appeal lacks merit and it is accordingly hereby dismissed in favour of the respondent. The Registrar of this court is to transmit the case docket back to the Circuit Court Koforidua for the hearing of the suit to proceed on its merits.
S.E. KANYOKE
JUSTICE OF APPEAL
I agree. S.O.A. ADINYIRA [MRS]
JUSTICE OF APPEAL
I also agree. E.K. PIESARE
JUSTICE OF APPEAL
COUNSEL - KWAKU ANSAH FOR APPELLANT.
F.G. DONKOR FOR RESPONDENT.
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