A.M. DORDZIE JA:-

FACTS:

One Geoffrey Aduama (deceased) was one of the partners that founded Eton Complex Schools. The said Geoffrey Aduama was married to Alice Ofosua Mills the defendant/Respondent in this appeal (I will hereafter refer to her as the defendant and the Plaintiff/appellant as the plaintiff). The plaintiff is a representative of the estate of Geoffrey Aduama and represents the interest of Eton Complex Schools Ltd. in the suit.

The plaintiff’s position is that the Eton school was established in 1967 by Geoffrey Aduama, Mr. Lovi and Mr. Biney. The three formed a partnership to establish the school. Geoffrey Aduama’s contribution to the partnership was that he donated the land on which the school stands.

It is alleged by the plaintiff that the defendant as a wife to Geoffrey Aduama held his interest in the partnership in trust for him because he had to act as solicitor for the school at the same time. In 1988 a dispute arose between Aduama and the wife due to the wife’s assertion of interest in the school in her own right. The dispute ended up in a suit in the High Court in which judgment was given against the defendant on the 11^th of July 1988.

After the death of Geoffrey Aduama the defendant took out an action at the Circuit Court claiming ownership of the land on which the Eton Schools were built.

The plaintiff failed to participate in the trial at the Circuit Court although he entered appearance and filed pleadings. The defendant was declared owner of the said land in a judgment dated 21^st January 2010. The plaintiff appealed against the said judgment but did not pursue the appeal and it was struck out.

The plaintiff subsequently instituted the action culminating in this appeal in the High Court claiming the following:

A declaration that by virtue of the judgment of the High Court titled Geoffrey Aduama v Alice Ofosua Mills dated 11^th day of July 1988, Eton Complex Schools Ltd. are the bona fide owners of the land on which the schools presently stand.

An order of the court setting aside any judgment obtained by the defendant in respect of the land.

Perpetual injunction restraining defendant by herself, her assigns and agents from asserting adverse title to the Eton Complex School land.

By a judgment dated 18^th October2012 the High Court found that the plaintiff was not able to prove his case therefore his claims were dismissed.

Plaintiff brought this appeal praying this court to set aside the judgment of the court below and the cost awarded against him.

GROUNDS OF APPEAL

The plaintiff canvassed only one ground of appeal. Though he indicated other grounds would be filed, that did not happen.

The sole ground of appeal therefore, is, The trial judge failed to interpret and or appreciate the judgment of her Lordship Justice G. T. Lutterodt dated the 11^th of July 1988 upon which judgment suit No BMSC 902/2010 was founded and came to the wrong conclusion in his judgment.

Submissions for and against the Appeal

The submissions made by counsel for the appellant in support of the ground of appeal essentially are that the judgment in the case between Geoffrey Aduama and his wife Alice Ofosua Mills dated 11^th of July 1988 determined the ownership of the land in dispute, that is the land on which Eton Schools are situated. The trial judge was therefore wrong in holding that the statement in the said judgment rejecting the receipt tendered by the defendant in that suit as of no probative value was obiter dictum.

It is further submitted by counsel for the appellant that the suit instituted by the defendant in the Circuit Court which declared the defendant owner of the land was an abuse of the courts’ process.

Counsel for the defendant respondent disagrees with the above submissions and maintained that the suit in the High Court in 1988 never determined the issue of ownership of the land, the comments made by the court in the judgment tendered as exhibit D was nothing but obiter dictum. The judgment from the Circuit Court was regularly obtained and could not be an abuse of the court’s process.

ISSUES:

The issues raised in this appeal for our determination are:

Whether the judgment of the High Court dated 11^th July 1988 decided the question of ownership of the disputed land and therefore the trial judge erred in holding that the comment by the trial judge in that suit on the receipt tendered by the defendant was an obiter dictum.

Whether the trial judge erred in holding that the Circuit Court judgment obtained by the defendant was regularly obtained.

At the trial court, the issues joined between the parties, which issues were set down for trial were:

a) Whether the defendant has propriety interest in the land on which Eton Complex Schools stand.

b) Whether in view of the judgment of the High Court dated 11^th July 1988, the defendant’s writ of summons in suit N0 CIB/74/2004 in the Circuit Court for declaration of title to the land on which Eton Complex Schools stand is an abuse of the process of the court and therefore the judgment obtained there from should not be set aside.

c) Whether plaintiff has capacity to bring this present action.

The trial judge in his judgment identified the question of whether the Circuit Court judgment obtained by the defendant was an abuse of the court process as the main issue that should be decided by the court.

His findings on this issue led to the complaint in this appeal that he misinterpreted the decision of the High Court in 1988, in the suit between the defendant and her late husband Geoffrey Aduama.

The 1988 judgment was exhibited at the trial as exhibit D. What the court was called upon to decide in the suit initiated by Geoffrey Aduama (deceased) against Alice Ofosua Mills the defendant respondent herein was whether Alice Ofosua Mills was representing or a trustee of Geoffrey Aduama in the partnership that established the Eton Complex schools; or she was a partner in her own right. The court found that Geoffrey Aduama was the fourth partner who owned the school and not the defendant. In considering the evidence produced by the parties in that case the judge commented on the probative value of a receipt tendered by the defendant and said the said receipt did not help her case in any way.

In the judgment the subject matter of this appeal the trial judge made the following findings:

That the question of the ownership of the land on which Eton Complex Schools stand was never a relief or an issue before the court in 1988; as such the court made no determination on the ownership of the said land.

The comment the court made on the probative value of a receipt tendered by the defendant in that trial was obiter dictum.

The 1988 judgment could not have established res judicata over the subject matter of the Eton Complex School land.

Osborn’s Concise Law Dictionary defines obiter dictum as “(a saying by the way) An observation by a judge on a legal question suggested by a case before him, but not arising in such a manner as to require a decision.”

In other words obiter is an observation made on legal questions that are not necessary to the decision in the particular case. Thus S.A. Brobbey JSC described obiter dicta in his book Practice and Procedure

In The Trial Court & Tribunals of Ghana at page 384-385 as “Obiter dicta are considerations or pronouncements on matters found inessential to the conclusion of the court over issues at stake.”

For a better understanding, I would state the meaning of ‘ratio decidendi which is the opposite of obiter dictum. It is “The legal reason or ground for a judicial decision. It is the ratio decidendi of a case which will be binding on later courts under the system of judicial precedent.” see Osborn’s Concise Law Dictionary.

The Court of Appeal made the definition of what constitutes the ratio decidendi in a case clearer in the case of BANK OF GHANA v. LABONE WEAVERS ENTERPRISES LTD. [1971] 1 GLR 251-260 when it held that:

“The ratio decidendi is the only binding part of a case, and the ratio decidendi is a rule of law which a judge considered necessary for his decision, whether a case is fully argued or not.”

From these definitions it cannot be said by any stretch of imagination that the comments on the probative value of a receipt tendered by the defendant in the 1988 case between her and the husband was an essential legal point made by the judge that led to her decision that the plaintiff in that case, that is Geoffrey Aduama was the fourth partner in the partnership that established the Eton Complex Schools. That comment did not form part of the ratio decidendi in that judgment. It was obiter and the trial judge rightly held so. It is very clear on the face of exhibit D, the 1988 judgment that the court never decided a question of ownership of the disputed land. The trial judge therefore did not err in any way in our view.

The record has it that subsequent to the 1988 judgment the defendant instituted an action in the Circuit Court against Registered Trustees of Love Community Chapel claiming declaration of title to the land the subject matter of this appeal; perpetual injunction against the defendant and damages for trespass. One Obiri Yeboah who claimed to be the son of Geoffrey Aduama and the Executor of his will applied and joined the suit. He claimed a portion of the land Love Community Chapel entered was part of a larger track of land which contained the Eton cluster of schools and belonged to Geoffrey Aduama (deceased). He maintained he leased a portion of the land to Love Community Chapel. Mark Obiri Yeboah who was described as a co-defendant in that suit counterclaimed for the following reliefs:

Declaration of title to all that piece of land situate at Bubuashie North Kaneshie Extention, Accra bounded on the North by the Asere Stool land for distance of 71ft more or less, on the South by Asere Stool land for distance of 370ft more or less, on the East by proposed road for a distance of 440ft more or less. On the West by Asere Stool land for a distance of 380ft more or less containing an approximate area of 1,876 acres more or less.

Recovery of possession

Damages for trespass

Perpetual injunction.

The co-defendant though he filed his pleadings failed to appear in court to defend the action and prosecute his counter claim.

Order 36 Rule 2 of the High Court (Civil Procedure) Rules, 2004 C. I. 47 sets out the procedure to follow where an action is called for trial and the defendant fails to appear. Order 36 Rule 1 (2) reads: “(2) Where an action is called for trial and a party fails to attend, the trial Judge may

(a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim;

(b) where the defendant attends and the plaintiff fails to attend, dismiss the action and allow the defendant to prove the counterclaim, if any; or

(c) make such other order as is just”

Order 36 Rule 2 further gives a party who fails to appear, the opportunity to set aside judgment given in his absence within 14 days after the trial. The Rule reads:

“2. (1) A Judge may set aside or vary, on such terms as are just, a judgment obtained against a party who fails to attend at the trial.

(2) An application under this rule shall be made within fourteen days after the trial”

From Exhibit E the judgment of the Circuit Court, the case was called for trial on the 29^th of December 2008 the defendant filed a notice of withdrawal; the co-defendant did not appear to defend the suit against him or to prosecute his counter-claim.

As the rules require the court gave the plaintiff, (that is the defendant herein) a hearing, she proved her title to the land. Counsel for the co-defendant was in court and cross-examined the plaintiff. In the judgment the court considered the case of the co-defendant as contained in his pleadings. Judgment was given the plaintiff, declaring title in the land in favour of the plaintiff. The co-defendant’s counter-claim was dismissed.

The plaintiff in this suit admitted during cross-examination that his principal Mark Obiri Yeboah applied to set aside the judgment of the Circuit Court but did not succeed. He also admitted that he applied both to the trial court and the court of appeal to stay execution of the said judgment but failed.

He again admitted that an appeal filed against the judgment of the Circuit Court was struck out.

It follows that the judgment of the Circuit Court Exhibit E remains a valid judgment in which the ownership of the subject matter of this suit had been determined. The plaintiff’s attorney has admitted in his evidence in cross-examination (page 117) of the record that it is because he failed to stay execution of Exhibit E, the Circuit Court judgment and also failed to set aside the said judgment that is why he instituted this action against the defendant and the Registrar of the Circuit Court. This is an admission of a clear abuse of the court process.

By section 42 of the Courts Act (1993) Act 459 appeals from the Circuit Court lie with the Court of Appeal not the High Court.

Section 42 of the Courts Act reads: “A person aggrieved by a decision or order of a Circuit Court may, subject to the provisions of this Act and rules of court, appeal to the Court of Appeal.”

The plaintiff appellant herein having failed to prosecute the appeal he lodged against the judgment of the Circuit Court and the said appeal having been struck out cannot turn to the High Court with a fresh action seeking the High Court to set aside the judgment he could not set aside on appeal at the proper forum which is the Court of Appeal.

In fact, in my view, so long as the judgment of the Circuit Court remains a valid judgment on the issue of title to the land on which the Eton Complex Schools stand the High Court has no jurisdiction to entertain any of the reliefs the plaintiff sought in this suit. The reliance on the 1988 judgment to plead res judicata in a circumvent way is a cunning way the appellant herein abused the court’s process.

The appeal has no merit; the action to the High Court in itself is a gross abuse of the court process. We find it expedient to dismiss the appeal with punitive cost.

The appeal is accordingly dismissed.