IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
OPANIN YAW FRIMPONG - (Plaintiff/Appellant)
KOFI MENSAH AND 2 OTHERS - (Defendants/Respondent)
DATE: 23 RD JULY, 2018
SUIT NO: H1/30/2017
JUDGES: ADUAMA OSEI J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
KWABENA OWUSU MENSAH FOR PLAINTIFF/ APPELLANT
DICKSON OSEI –ASIBEY, ANDREW ACQUAY WITH HIM LED BY ASIEDU BASOAH FOR DEFENDANTS/ RESPONDENTS
The facts of the instant case as narrated by the Counsel for the Plaintiff is as follows:
The Plaintiff, Opanin YawFrimpong is suing in his capacity as the current Abusuapanin of the Aburaso Stool and is recognized by OtumfourOsei-Tutu, the Asantehene as such. According to the Plaintiff, Aburaso was founded by his ancestors; Yaw Kwakurakwa of blessed memory. Yaw Kwakurakwa created a stool for his son; NyantengKwabena (also of blessed memory) and placed the two (2) stools (of father and son) together in one room. There were certain periods in their history where the son’s stool litigated and signed documents for and on behalf of the Aburaso Stool.
In the course of time, litigation on land arose between the Aburaso Stool and the son’s stool which travelled as far as the Gold Coast Supreme Court which ruled in the favour of the Plaintiff’s predecessor, KojoAsumadu against the predecessor of the Defendants’ by name KojoAboagye II. The Plaintiff’s family belongs to the Ekuona clan but are members of the Oyoko Division of Asanteman together with the Defendants’ family. The Plaintiff’s case is that as a result of the chieftaincy dispute in the locality, the AsanteheneOtumfourOsei Tutu has nominated him to be the caretaker of the Aburaso Stool and its properties. He is to do this in conjunction with the Queen mother of Aburaso who is now deceased. The 1st and 2nd Defendants are residents of Aburaso and members of the
Oyoko family. The 3rd Defendant is the Abusuapanin of the Oyoko family of Aburaso and purports that his family owns all the lands at Aburaso.
It is the case of the Plaintiff that as the Abusuapanin of the Aburaso Stool, he is in charge of all family properties including a piece of plot located at Aburaso, precisely a place known as plot numbers 10b and 10c. The said parcel of land is located near the market and on the left side on the way to the new palace.
On or about the 15th day of October, 2015, Defendants unlawfully entered the said land and have started erecting a foundation for the purpose of building a house. Numerous attempts to restrain the Defendants from going ahead with the unlawful act have fallen on deaf ears, hence a resort to the court room for the assertion of the reliefs endorsed on the Writ of Summons and the Statement of Claims as follows:
“a declaration of title and recovery of possession of all that stretch of land located at the place referred to as a plot numbers 10b and 10c and located near the market and on the left side on way to the new palace; a declaration of title to all Aburaso lands; perpetual injunction restraining the Defendants, their assigns, privies and whatever name called from interfering with the said land and any other land at Aburaso; cost; and damages for trespassing”.
At pages 22 and 23 of the ROA, the following ensued.
Let the original issues filed 14/12/2015 and additional issues of 24/12/2015 and further additional issues of 10/03/16 be amalgamated and set down for issues for trial in this matter.
It is the prayer of counsel for Plaintiff that issue a be set down as a preliminary issue for trial.
After listening to both sides of the argument, the judge is of opinion that all issues as raised by both sides ought to be trial and conclusions from them reached”.
Dissatisfied with the Ruling of the trial High Court, the Plaintiff filed the present appeal in this Court on the sole ground that:
“The learned trial judge erred in law when he failed to set down the issue of res judicata as a preliminary issue for trial”.
In this judgment, the Plaintiff/Appellant is hereinafter referred to as the Appellant and the Defendants/Respondents are hereinafter referred to as the Respondents respectively. Also, Plot Nos. 10b and 10c, located near the market and on the left side on the way to the new palace are referred to as “the property in issue”.
A close examination of the record of appeal before this Court revealsthat, the Appellant filed an Application for Directions which is at page 8 of the records of appeal and at the hearing, Counsel for the Appellant herein prayed the Court below that the issue of res judicata be set down as a preliminary issue for trial.Counsel for the Respondents herein objected that it was not stated in the Appellant’s statement of claim and when his attention was drawn to it that it had been stated in paragraph 6 of the Appellant’s Statement of Claim, he shifted the argument to the fact that the issue of res judicata was not particularized.
In the case of THE REGISTERED TRUSTEES OF THE CATHOLIC CHURCH VRS.BUILDAF LTD 2 ORS(CIVIL APPEAL NO.J4/30/2014) (25TH JUNE 2015) Unreported, the Supreme Court held that in the circumstances where a party fails to particularize, such a flaw can be cured by Order 81 of C.I. 47. Also, the Supreme Court held in the case of SASU V. AMUAH-SEKYI AND ANOTHER [2003 -2004] 2SCGLR 742 that where on the facts of the case, the plea of res judicata was obvious, the Court would take notice of it since the party raising the objection would be held to have had knowledge of it and would not be surprised by it.
In the instant case, the trial Court later granted the Appellant leave to amend his Statement of Claim, so as to particularize his plea of res judicata accordingly.
The Counsel for the Appellant, in his submissions developed the theory of his case citing a myriad of legal authorities to the effect that, the plea of estoppel res judicata must be addressed by the Court first before if the need be, full trial of the case.
Counsel for the Appellant arguedon the basis of law that, the foundations of the High Court (Civil Procedure) Rules, 2004 C.I. 47 as stated in Order 1 rule 1(2) is that “these Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided,”
Counsel further argued that, where a party pleads res judicata it must be set down and gone into as it may just end the case before the court. In the case of CONCA ENGINEERING(GHANA LTD) LTD.
V. MOSES[1984-86]2 GLR 319, the court held that the plea of res judicata is part of our received law. The principle on which it is based, its subtleties and refinements have been debated in our courts times without number. It is said to be based on two policy grounds: first, that it is in the public interest that there should be an end to litigation and secondly, that nobody should be vexed twice on the same matter.
Indeed, in the case of IN RE SEKYEREDUMASE STOOL: NYAME V. KESE ALIAS KONTO[1998-99] SCGLR 476 AT PAGE 478, the Supreme Court held that “the plea of res judicata is never a technical plea. It is part of our received law by which a final judgment rendered by a judicial tribunal of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.”
Counsel for the Appellant is of the opinion that for the learned trial judge to have upheld the objection of the Respondents and ruled against the Appellant and further granted leave for theAppellant to amend his Statement of Claim to particularize the issue of res judicata is an indication that he would consider same first before if the need be, proceeding with the full trial. This can be seen in the following words as stated at page 10b of the record of appeal: “By Court; Adjourned to 17/2/2016 for counsel for Plaintiff to amend his Statement of Claim in terms of paragraph 6 and see if he can develop that paragraph here to specifically develop the issue of res judicata”. Counsel further argued that, for the trial judge to hold at the application for directions stage of the trialthat ‘all issues as raised by both sides ought to be tried and conclusions from them reached’ as indicated at page 23 of the record of appeal, after ordering the Appellant to amend his Statement of Claim to particularize the issue of res judicata seems strange. This is because the import of the order of the Court below that led to the amended statement of claim was to particularize the plea of res judicata in order to fulfill the conditions precedent to the hearing before the trial.
It is worthy of note that the Application for Directions by the Appellant herein can be found at page 8 of the record of appeal and the Further Additional Issues filed by the Respondent can also be found on page 20 of the record of appeal respectively.
In our opinion, it is evident that the Appellant has impressively espoused a litany of legal authorities to make a strong case against the Respondent in the instant appeal.
However, this Court holds a contrary view. Indeed, the law is trite that, the Application for Directions stage of proceedings is a very important tool in the adjudication process. It affords the trial Judge the opportunity to streamline the issues as presented by the parties and also to organize the issues germane to be tried. It is also an opportunity for the trial Judge to inspect the documents to be tendered at the trial.
Indeed, in the case of NII STEPHEN MALEY V. EAST DADEKOTOPON DEVELOPMENT TRUST  117G.M.J 97 C.A. The Court held inter alia that “A person who makes an averment or assertion which is denied by his opponent has the burden to establish that averment or assertion is true. And he does not discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred; failure of which the assertion is not true. See the case of MEMUNA MOUDY V. KOFI ANTWI  3 MLRG 183 CA.”
A perusal of the issues listed for determination shows that there is also an issue of challenging the capacity of the Appellant. On capacity, the law states that if a person brings an action in a capacity he does not have, the writ is a nullity and so are the proceedings and judgments founded on it. This position of the law is demonstrated in the cases ofTHE REPUBLIC V. ACCRA HIGH COURT, EX PARTE ARYEETEY [2003/2004] SCGLR 398 and YORKWA V. DUAH [1992/1993] GBR 278.It is worthy of note that capacity goes to the root of every matter and once the Appellant’s capacity is challenged by his adversary, the burden falls on him to establish same and it is no excuse to say he has a cast iron case and so he should be heard on its merits.
The trial judge in his discretion deemed that he ought to take evidence on this issue. He was right because, it seems to this Court that the Appellant had not adverted his mind to the provision of Order 32 under the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended, on Application for Directions.
In the case of ANKAMAH V. CITY INVESTMENTS CO. LTD [2007 – 2008] SCGLR 1064, the Court of Appeal held among other things that the omission to set down the issues for trial vitiated the proceeding.
Generally, Order 32 of C.I. 47 provides for Application for Direction in civil trials. Specifically, Order 32 Rule 1 provides for the purpose of application for directions and Order 32 Rule 1 sub-rule 1 further provides that;
“(1) In every action to which this rule applies, an application for directions shall be made to enable the Court consider the preparations for trial, so that:
a. All matters which have not already been dealt with, may so far as possible, be dealt with; and
b. Directions may be given as to the future course of the action as appear best to secure the just, expeditious and inexpensive disposal of it.
(2) The rule applies to all actions except
(a) Actions in which directions are given under Order 11 rule 19, Order 14 rule 6 and Order 25 rule 7;
(b) Actions in which an order for the taking of an account is made under Order 29 rule 1;
(c) Actions for the infringement of a patent; and
(d) Actions or proceedings under Order 65.”
However, a careful perusal of the record shows that the instant case does not fall under any of the exceptions mentioned.
In the case of BOAKYE V. TUTUYEHENE [2007 - 2008] SCGLR 970,the Supreme Court held inter alia that the application for directions is a stocktaking process aimed at saving cost in litigation as much as possible, avoiding needless interlocutory applications and dispensing with unnecessary witnesses through proper case management by the judge.
Sub-section 5 of Order 32 of C.I. 47 further provides for the duty of the Court to consider all matters brought before it in the particular case, as in the instant case. Order 32 rule 6 also provides for particular matters for consideration by the Court. It states that “On the hearing of an application for directions the Court shall in particular consider if necessary on its own motion whether any order should be made or direction given in the exercise of any of the powers conferred under Part VIII of the Evidence Decree 1975(N.R.C.D.323), Order 16 rule 5, Order 33 rule 4(2) or Order 38 rule 2to7 or any other enactment.”
In the case of SMITH V. BLANKSON [2007 – 2008] SCGLR 385, the Supreme Court per Sophia Akuffo JSC (as she then was) emphasized the proactive role that trial judge must play in setting down issues for trial as follows:
“[T]rial judges would also be well advised to be more proactive in the pursuit of effective case management by using the applications for directions proceedings to hone into sharper definition, and with more specificity, the issues that are admitted for trial. Every time a trial judge admits to trial issues that are not central to the litigation, all he or she does is open a floodgate of needless facts and evidence….resulting in inordinate waste of the courts’ time and resources.”
Also, in the case of OMANE V. POKU  2 GLR 66, CA., the Court of Appeal held inter alia that the Court may ignore an issue that becomes irrelevant in the course of the trial and determine the case on the evidence on record. See also the case of AYISI V. ASIBEY III  GLR 695 at 698 per Apaloo JSC.
Again, in NYAMAA V. AMPONSAH  SCGLR 361, it was held among other things that the trial judge must ensure that the issues set down for determination would aid in making valid decisions on the reliefs sought.
The High Court (Civil Procedure) (Amendment) Rules, 2014 (C.I. 87) also made provision for the requirement to serve witness statements for use at trial and also,how witness statements which have already been served, are used at trial:
“3B. (1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally at the trial.
(2) The Court shall at the application for directions order a party to file and serve on the other parties any witness statement of the oral evidence which the serving the statement intends to rely on in relation to any issues of fact to be decided on at the trial.
(3) The Court may give directions at the application for directions as to the order in which a witness statement is to be served.
3E. (1) If a party has served a witness statement and that party wishes to rely at trial on the evidence of the witness who made the statement, that party shall call the witness to give oral evidence unless the Court orders otherwise or that party puts the statement in as hearsay evidence… etcetera.”
In the cases of DANSO V. ADDAI  GLR 376, CA; HEGGIE V. COMMONWEALTH HAULAGE CO. LTD  1 GLR 276, SC the Court of Appeal and the Supreme Court decided respectively that the trial ought not to have proceeded when the application for directions had not been taken.
The record of appeal in the instant case before us indicate that the case before the trial Court is ripe for hearing and in the candid opinion of this Court, it is just and fair that the trial Court goes ahead to hear the matter on its merits to determine all the issues set down for trial in order to serve the ends of justice.
Accordingly, the appeal is dismissed for the above stated reasons. Cost of GH¢3,000.00 to Respondents.
MARGARET WELBOURNE (MRS.)
[JUSTICE OF APPEAL]
I AGREE K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I ALSO AGREE SENYO DZAMEFE
[JUSTICE OF APPEAL]