ARYEE & 3 ORS VRS OKAI I &ORS (J4/15/2024) [2024] GHASC 56 (11 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA- A.D. 2024 CORAM: OWUSU (MS.) JSC (PRESIDING) LOVELACE-JOHNSON (MS.) JSC ASIEDU JSC DARKO ASARE JSC ADJEI-FRIMPONG JSC CIVIL APPEAL NO. J4/15/2024 11TH NOVEMBER, 2024 1. NII TETTEY OKO ARYEE DEFENDANTS / APPEALANTS/ 2. DAVIES ARMAH ARYEE APPELLANTS 3. PETER COMMEY 4. BOYE TAWIAH VRS 1. NII GAMU OSUMANU TACKIE OKAI I ……. 1ST PLAINTIFF/ RESPONDENT/RESPONDENT 2. NAMO EEN FARMS LTD …….. 2ND PLAINTIFF/ RESPONDENT/RESPONDENT 3. AWUKU AGBESHIE …….. 3RD PLAINTIFF/ RESPONDENT/RESPONDENT 4. AMADU BOLLE ……… 4TH PLAINTIFF 5. ALHAJI SOMMO BOLI ………. 5TH PLAINTIFF LANDS COMMISSION ………. 1ST DEFENDANT Page 1 of 23 JUDGMENT LOVELACE-JOHNSON (MS.) JSC: In this judgment, the 2nd to 4th appellants will be described as defendants and the 1st to 5th respondents as plaintiffs. On 16th January 2018, the plaintiffs in this case issued a writ at the high court for ten reliefs. See pages 1 to 13 of volume one of the record of appeal (ROA). The defendants entered appearance on 10th April 2018 and thereafter a defence was filed for them. See pages 16 to 18 of the ROA. The import and gist of the reliefs sought by the plaintiffs was that 1st plaintiff’s family held title to the land the subject matter of the writ, which title had been confirmed by many judgments of the courts, and that 2nd to 5th plaintiffs were their lessees. They contend that the defendants having only been decreed a possessory title by the Supreme Court, the land title certificate acquired by the defendants from the 1st defendant/ Commission on the basis of that judgment was fraudulently obtained. By their pleadings, the defendants stated that the ownership of the subject matter of the writ had been settled by decisions of the High Court and affirmed by the Supreme Court and that having been adjudged the owners of the land they had a right to register their title to it. Page 2 of 23 The defendants after this filed a motion seeking a dismissal of the suit on the grounds that not only was it frivolous, vexatious and an abuse of court process, it was also res judicata. The plaintiffs opposed the application. The High Court after going through the law governing the above reliefs sought, ruled that in the circumstances of the case (such as the fact that the defendants had only been given possessory title by the Supreme Court, the measurements of the land in dispute are different from that of the judgment being relied upon by the applicants), refused the application on 4th April 2019 and stated that this was a case in which it was better for pleadings to be filed and issues settled so that at the stage of the application for directions, the “grounds of objection raised could be better determined”. The court then proceeded to dismiss the application subject to the above. It is worthy of note that the defendants had already filed their defence and what was left, if necessary and within time was a reply by the plaintiffs and the hearing of the application for directions at which stage, the defendants, according to the court, could repeat their application to dismiss. In spite of this, the Defendants chose, as it was within their right to, to appeal the High Court’s ruling and it has taken about five years for the appeal to get to this apex court. The Court of Appeal agreed with the trial court that the application was indeed premature since the plaintiffs had not even been given the opportunity to file a reply to the defence and so dismissing the writ would be unfair. The Court of Appeal also pointed out that under order 11 rule 18 of the High Court(Civil Procedure) Rules, C. I. 47, the High Court has a discretion regarding the stage at which to consider applications such as was brought by the defendants. The court held that this discretion was exercised fairly from the reasons given by the trial court and dismissed the appeal. Page 3 of 23 The defendants are not persuaded by the decision of the Court of Appeal and mount the present appeal on the following grounds: 1. The judgment of the Court of Appeal is against the weight of affidavit evidence. 2. The learned judges of the Court of Appeal like the learned trial judge failed to give adequate consideration to the case of the defendants/appellants/ appellants and so occasioned a miscarriage of justice. 3. The Court of Appeal justices erred in not granting the appeal on the grounds that the trial court properly exercised its discretion in dismissing the motion to dismiss the suit on grounds of res judicata, abuse of process of court and frivolous and vexatious. 4. The Court of Appeal erred in its holding that the appellants’ application to dismiss the suit was premature. 5. On the facts of the case, the Court of Appeal erred in affirming the decision of the trial court. The relief sought from this court is a setting aside of the Court of Appeal judgment and in its stead, judgment given in favour of the defendants. Before we proceed to evaluate and determine the above grounds of appeal, it is important to stress that, the learned trial judge did not dismiss the application in question as lacking merit. He dismissed it, in the exercise of his discretion, as being premature and stated that the appropriate time for bringing it would be after the application for directions stage. Page 4 of 23 Grounds 3, 4 and 5 in effect criticise the Court of Appeal’s affirmation of the trial court’s exercise of discretion. This is what the trial court said in conclusion at page 215 of the ROA after evaluating the affidavit evidence before him during which evaluation he raised an issue about the size of the land in dispute, pondered whether the issue of declaration of title to the land has been dealt with to finality and discussed the various ways of establishing res judicata, “Given the nature of claims endorsed in this fresh action, it will be premature to drive away Plaintiffs/Respondents from the judgment seat. I hold that this is a case in which pleadings must be filed and issues settled at the stage of Direction, the grounds of objection raised could be better determined” Counsel for the defendants states in his statement of case that the Supreme Court had affirmed that four families owned Danchira lands so the trial “judge had no discretion in the matter and was wrong in the ruling he gave and the Court of Appeal erred in not setting aside the ruling” Both Order 11 rule 18 and Order 33 rule 3 of The High Court (Civil Procedure) Rules 2004 C.I. 47 give the trial court power to exercise a discretion in respect of applications brought under them. Of course such a discretion is always to be exercised judicially. The title of the application in question as follows: “MOTION ON NOTICE TO DISMISS THE SUIT ON GROUNDS OF RES JUDICATA, FRIVOLOUS AND VEXATIOUS AND AN ABUSE OF THE PROCESS OF THE COURT” Page 5 of 23 Rule 18 (1) of Order 11 states in part as follows: The Court MAY at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that (a) (b) it is scandalous, frivolous or vexatious, or (c) (d) it is otherwise an abuse of the process of the Court Order 33 rule 3 entitled Time of trial of questions or issues states as follows: “The Court may order any question or issue arising in any cause or matter whether of fact or law, 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 as to the manner in which the question or issues shall be stated”. Without a doubt then, the trial court had the power to exercise a discretion regarding the application to dismiss. One would have thought this was sufficient justification for the trial court’s order deferring the hearing of the application but from the three grounds of appeal earlier referred to, the defendants hold a contrary view. Being the appellants in this matter, the defendants have the duty of proving that the exercise of discretion by the trial court, (affirmed by the Court of Appeal) in preferring to hear the application later was wrong. The authorities have established several grounds for setting aside the exercise of discretion by a trial court. It is however to be borne in Page 6 of 23 mind that no two cases are alike and that an appellate court should be slow to interfere with the exercise of discretion by a trial court. Usually, where the trial court applies wrong principles, inadequate material, is arbitrary or capricious, or the particular exercise of discretion would work manifest injustice, these will amount to some of the exceptional circumstances which will justify an interference of the exercise of discretion by an appellate court. See the cases of Kyenkyenhene v Adu [2003-2004] SCGLR 142 Sappor v Wigatap [2007-2008] SCGLR 676 See also Ballmoos v Mensah [1984-86] 1 GLR 724 where it is stated that an appeal against the exercise of discretion by a court is NOT one from the discretion of the trial court to the discretion of the appellate tribunal. What are the submissions of Counsel for defendants on this exercise of discretion? Most of Counsel for the defendants submissions relate to the merit in their application to dismiss the writ. Regarding the trial court’s exercise of discretion that the application be moved at the application for directions stage, Counsel makes the point that since the time for filing of a reply was far past, the absence of a reply or the possibility of one being filed was not sufficient reason to say the application was premature as stated by the Court of Appeal in its judgment. Counsel contends that the trial judge had all the necessary material before him to determine the application and so “His Lordship cannot by any stretch of imagination be said to have judicially exercised his discretion on the facts of this case and the Court of Appeal was therefore wrong in not granting the appeal”. Page 7 of 23 It may very well be that the trial court indeed had before him, all the material Counsel considered relevant for the determination of the application but the learned trial judge raised certain issues agitating his mind and decided, as was within his discretion so to do, to hear the application at a shortly, later stage. Is this sufficient reason for this court to interfere with the exercise of discretion by the trial court which exercise was confirmed by the Court of Appeal? As stated earlier, whether or not a discretion has been exercised judicially depends on the circumstances of each case, bearing in mind guidelines laid down by the courts. We are of the considered opinion that the decision of the court to hear the application at the next stage of proceedings ie at the application for directions stage, even if he had all the necessary material before him as has been alleged, is not one of those exceptional circumstances which warrant our interference with the trial court’s exercise of discretion. More importantly, we are satisfied that no manifest injustice was caused the defendants because they were not deprived of the opportunity to move their application. A little patience would have enabled them to do so soon after the ruling and have a decision on it. A last point on these three grounds of appeal is the submission by Counsel for the plaintiffs that a second appellate court should, in line with the authorities, be loath to interfere with concurrent findings of two lower courts. That position is correct but is inapplicable here. The ruling of the trial court was by and large not based on any findings of fact it made. The appeal is clearly on the exercise of discretion by the trial court not to take the defendants application to dismiss the writ until the application for direction stage. Page 8 of 23 We find no merit in these three grounds of appeal and accordingly dismiss them. The second ground of appeal states that both the Court of Appeal and trial court failed to give adequate consideration to the case of the defendants. This second ground dovetails with the first that the judgment is against the weight of the affidavit evidence. What was the case of the defendants? It was their case that the matter before the court was res judicata because the issues therein had already been determined by the court, including this apex court. Further that the writ was frivolous and vexatious and an abuse of court process. It is reasonable to infer that what the defendants are saying is that the trial court did not consider all the affidavit evidence they put forward to prove the above stated. Pages 9 to 17 of volume one of the ROA show an extensive discussion of the reliefs sought from the trial court by the defendants. It is definitely incorrect that the case of the defendants was not given inadequate consideration. It was. It is the decision taken by the court which disabled it from definitely granting it or refusing it at that stage of the proceedings which does not sit well with the defendants. As stated earlier, the core issue here is the trial court’s exercise of discretion. We are satisfied that the trial court did consider the propriety of taking the defendants application at that stage and for stated reason refused to do so and this refusal was rightly affirmed as a legitimate exercise of discretion by the Court of Appeal. As stated by the Court of Appeal at page 91 of volume two of the proceedings, “it is incumbent upon the trial court to make sure all the facts are properly set out and all features required for the invocation of the doctrine clearly established before it dismisses out(sic) the matter” Page 9 of 23 This ground of appeal as well as the first one are also dismissed as lacking merit. In conclusion, we find no merit in the present appeal whose pursuit has rather led to an increase in the lifespan of the present litigation when it could have had a shorter lifespan had it been moved at the application for directions stage as directed by the court. The suit is to be sent back to the high court to take its normal course. (SGD.) A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) (SGD.) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT) CONCURRING OPINION ASIEDU, JSC: Page 10 of 23 [1] INTRODUCTION: My lords, this is an appeal by the Defendants/Appellants/Appellants (hereinafter referred to as Appellants) from the judgment of the Court of Appeal dated the 11th May, 2019 affirming the Judgment of the trial High Court which dismissed the Appellants’ motion to dismiss an action commenced against the Appellants by the Plaintiffs/Respondents/Respondents (hereinafter referred to as the Respondents). [2] FACTS: The Respondents, by a writ and statement of claim issued on the 16th January, 2018, claimed, among others, against the Lands Commission, as 1st Defendant, and the Appellants jointly and severally as follows: a. “A declaration of title to ALL THAT PIECE OR PARCEL of land situate and lying and being at Danchira in the Ga South District of Accra in the Greater Accra Region and bounded on the North West by Honi Stream measuring 10,200 feet more or less, on the North West by Manhia, Ashalaja and Afuaman lands measuring 51,700 feet more or less, on the East by Joma and Densu river and Kwame Amu’s land measuring 10,300 feet more or less and containing an approximate area of 13, 774 acres more or less. b. A declaration that there is no subsisting Judgment by any Court of competent jurisdiction in Ghana which has declared title to the Plaintiff’s land in favour of 2nd to 5th Defendants [Appellants herein]. Page 11 of 23 c. A further declaration that the High Court Judgment in Suit No. L/22/07 did not grant the four composite family title to the Plaintiffs (sic) land described in reliefs (a) herein. d. A further declaration that the Defendants or their so-called four composite family have not been in any litigation in Court with the 2nd to 5th Plaintiff and have not obtained any Judgment against the said 2nd to 5th Plaintiffs the land of which the 2nd to 5th Plaintiffs [Respondents herein] have been in possession over decades. e. A further declaration that the Land Certificate No. GA. 51333 having been obtained by fraud, mistake and/or non-compliance with law renders same void….” The 1st Plaintiff (1st Respondent herein) is the head of family of the Nii Djan Bi Amoo family of Danchira. 2nd to 5th Plaintiffs (2nd to 5th Respondents herein) are lessees of the Nii Djan Bi Amoo Family and therefore claim their respective interests in the disputed land through the said family. The 1st Defendant, Lands Commission, is the statutory body entrusted with the duty to, among others, manage public lands and other lands vested in the President of Ghana. 2nd to 5th Defendants [Appellants herein] claim through the four composite families of Danchira. The Respondents, in their statement of claim, pleaded several judgments which, according to the Respondents, declared title to the disputed land in the Djan Bi Amoo family. Respondents also referred to a statutory declaration dated the 23rd July, 1976 stamped as No. 2657/76 affirming the Djan Bi Amoo family’s title to the land, and having Page 12 of 23 registration number 2572/1976.The Appellants, in their statement of defence, cited judgments which, according to Appellants, declared title to the disputed land in the four composite families of Danchira. After service of the writ on Appellants, Defendants therein, the Appellants filed a notice of entry of appearance and a statement of defence on the 10th April, 2018 and the 25th April, 2018 respectively. The Appellants subsequently brought an application by motion on notice to dismiss Respondents’ suit. According to Appellants, the issue of ownership of Danchira lands between the Djan Bi Amoo family and the four composite families had been settled by the High Court and affirmed by the Supreme Court that Danchira lands are owned by the four composite families of Amanfo, Juaben, Kubeshishi and Sawerpramano. The grounds of the application, therefore, were that the Respondents’ suit was caught by estoppel per rem judicatam, that the suit was frivolous and vexatious, and constituted an abuse of the process of court. The said application by Appellants was opposed by the Respondents. After hearing the parties, the trial High Court dismissed the application by Appellants to dismiss Respondents’ suit. The learned trial Court Judge ruled that having regard to the nature of the reliefs indorsed on the Respondents’ writ of summons and statement of claim, it would be premature to summarily dispose of the suit. The learned trial Judge reasoned that the High Court judgment affirmed by the Supreme Court declared that the four composite families had possessory title to 13,913 acres of Danchira lands. However, in the suit culminating in the instant appeal, the Respondents claimed title to 13,744 acres of Danchira lands. The learned trial judge observed that from the evidence adduced, it was not clear whether the description of Danchira lands was exactly 13, 913 acres as claimed by the Appellants in the earlier suit, or 13, 744 acres as subsequently claimed by the Respondents, and whether these descriptions referred to the same parcel of land. Page 13 of 23 Accordingly, the learned trial Court Judge ruled that the Appellants’ objection could be given a thorough consideration after all pleadings are filed so that the issues raised thereby can be settled at the Directions stage for determination. Dissatisfied with the ruling of the trial Court, the Appellants appealed to the Court of Appeal. The Court of Appeal delivered its judgment on the 11th May, 2022 and affirmed the ruling of the trial High Court. [3]. NOTICE OF APPEAL: Aggrieved by the judgment of the Court of Appeal, the Appellants have further appealed to this Court on the grounds that: 1. The judgment of the Court of Appeal is against the weight of affidavit evidence. 2. The learned judges of the Court of Appeal, like the learned trial judge, failed to give adequate consideration to the case of the Defendants/Appellants/Appellants and so occasioned a miscarriage of justice. 3. The Court of Appeal justices erred in not granting the appeal on the grounds that the trial Court properly exercised its discretion in dismissing the motion to dismiss the suit on grounds of res judicata, abuse of process of Court and frivolous and vexatious. 4. The Court of Appeal erred in its holding that the appellant’s application to dismiss the suit was premature (sic). Page 14 of 23 5. On the facts of the case, the Court of Appeal erred in affirming the decision of the trial Court.” As required by Rule 15 of the Supreme Court Rules, 1996 (C.I 16) (as amended), Counsel for Appellants filed their statement of case on the 22nd November, 2023, and Counsel for Respondents filed their statement of case in answer on the 19th December, 2023. Counsel for Appellants filed a reply to Respondents’ statement of case in answer on the 3rd January, 2024. [4]. ARGUMENT OF APPELLANTS: It has been argued by Counsel for Appellants that the issue of the ownership of the disputed land has been judicially settled in favour of Appellants’ four composite families against Respondents’ Djan Bi Amoo family. That in the face of these judgments evidencing that the issue of the ownership of the disputed land, Danchira lands, had been settled, the Courts below ought to have upheld the Appellants’ contention that the subsequent action commenced by the Respondents herein constituted an abuse of the process of court and ought to have been dismissed on the affidavit evidence. Accordingly, the Court of Appeal erred in affirming the High Court’s decision refusing to grant Appellants’ application on the grounds of estoppel per rem judicatam, and abuse of the process of court. As a result, Counsel prays this Court to reverse the judgment of the Court of Appeal. [5]. ARGUMENT OF RESPONDENTS: It has been submitted by Counsel for the Respondents that, the ground of appeal that the judgment of the Court of Appeal is against the weight of evidence on record, is Page 15 of 23 misconceived. Counsel argues that the ruling of the trial High Court which was affirmed by the Court of Appeal, was not based on the strength or otherwise of the affidavit evidence. The trial High Court’s ruling was to the effect that Appellants’ application was premature. That the Court of Appeal affirmed the trial High Court’s exercise of discretion to take Appellants’ objection after all pleadings had been filed, and the main issue raised by the objection be set down for trial at the Application for Directions stage. Counsel, therefore, submits that the instant appeal does not meet the test of instances where an appellate court such as this Honourable Court would properly interfere with the exercise of discretion by a trial or first appellate Court. Counsel, therefore, prays that the instant appeal be dismissed. [6]. DETERMINATION OF THE GROUNDS OF APPEAL: Grounds 1, 2, 4 and 5 of the appeal would be resolved together as they appear to relate to the same issue as to whether the Court of Appeal is justified in affirming the ruling of the trial High Court on the facts and evidence. It is not in doubt from the evidence on record that, in Suit No. AL22/2007 at the High Court which was affirmed by the Supreme Court in Civil Appeal No. J4/1/2016, the Defendants therein counterclaimed for declaration of title in the four composite families to 13, 913 acres of Danchira lands. In the subsequent suit which culminated in the instant appeal, the Plaintiffs (Respondents herein) claimed title to 13,774 acres of Danchira lands. It is also noteworthy that the Respondents’ claim in relief (c) of their statement of claim for a “further declaration that the High Court Judgment in Suit No. AL/22/07 did not grant the four composite family title to the Plaintiffs (sic) land described in reliefs (sic) (a) herein.” These pieces of evidence portend an uncertainty with the identity of the subject matter in Suit No. AL22/2007 and the suit resulting in this appeal. Page 16 of 23 It is the position of the law that judgment relied upon by a party in a land matter must be shown to cover the subject matter of the relevant proceedings. Consequently, a party cannot successfully invoke the principle of estoppel per rem judicatam if the subject matter of the earlier suit and the parties were not the same as those of the present suit. See AHADZI & ANOR v SOWAH & 2 ORS [2019-2020] 1 SCLRG 79. In the case of IN RE SEKYEDUMASE STOOL; NYAME v KESSE ALIAS KONTO [1998-99] SCGLR 476 at 490, this Court, speaking through Wiredu JSC (as he then was) stated as follows: “The principle of res judicata is now a well-established and acceptable principle in judicial proceedings. Its objective is to prevent an abuse of the court’s process by estopping a party to a litigation against whom a court of competent jurisdiction has already determined the issue now being raised, by reopening the same subject-matter for further litigation. Since its objective is to prevent an abuse of the court’s process, there is no need to go into the exercise of hearing the whole evidence on the matter again, otherwise its purpose would be defeated. It could legitimately be determined on affidavit evidence in appropriate circumstances”. (Emphasis) Although the Appellants herein did not enter conditional appearance at the trial court, the ruling of this Court in the REPUBLIC v HIGH COURT, ACCRA, EX PARTE ARYEETEY (ANKRAH INTERESTED PARTY) [2003-2004] 398 is noteworthy. It was held at page 408 per Kpegah JSC as follows: “It is not permissible for a defendant, who has entered a conditional appearance, to move the court to have the writ set aside because he has a legal defence, even if Page 17 of 23 unimpeachable, to the action; certainly, such an application is not available to a defendant who seeks to rely on a plea of res judicata since this plea, to be successful, must satisfy certain requirements which can only be revealed through evidence….” (Emphasis). In some cases, a point of law raised in a party’s pleadings may be so manifestly clear, as when there is an admission by the other party, that it would be undesirable and contrary to the overriding objectives of the High Court (Civil Procedure) Rules, 2004 (C.I 47) as stated in Order 1 rule 1(2), for the trial Court to direct that the issue raised by the pleadings be tried before a determination is made on an application to dismiss the suit as frivolous, vexatious or otherwise constituting an abuse of the process of the court: DANKWA & 3 OTHERS v ANGLOGOLD ASHANTI LTD [2019-2020] 1 SCLRG 641. Order 1 Rule 1(2) of C.I 47 provides as follows: “(2) 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.” From the facts and evidence on record, it is clear that the identity of the subject matter of the earlier and subsequent suits was still in contention at the time the Appellants brought the application to dismiss the Respondents’ suit on the grounds of res judicata, and that Respondents’ suit was frivolous, vexatious and constituted an abuse of the process of court. As a result, it is my humble view that the Court of Appeal was justified in affirming the trial High Court’s decision to defer, so to speak, the Appellants’ objection to the Page 18 of 23 Directions stage for consideration. Thus, the objection was appropriately suited for determination at a stage where the learned trial Judge would be satisfied on the evidence as to the identity of the subject matter. Grounds 1, 2 and 5 of the appeal are, therefore, dismissed. I would now turn to Ground 3 of the appeal, that the Court of Appeal erred in not allowing the appeal on the basis that the trial Court properly exercised its discretion in dismissing the Appellants’ motion to dismiss the Respondents’ suit. Order 33 Rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) provides: “Time of trial of questions or issues 3. The Court may order any question or issue arising in any cause or matter whether of fact or law, 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 as to the manner in which the question or issue shall be stated.” (Emphasis). In the case of ALFA MUSAH v FRANCIS APPEAGYEI [2019-2020] 1 SCLRG 606 at 613- 614, the Supreme Court, speaking through Anin-Yeboah JSC (as he then was), commented on Order 33 Rule 3 as follows: “The above would have sufficed to be reasons for our decision in this appeal but there is a procedural point which trial courts usually ignore in determination of cases of this nature in which the issue of capacity, statute of limitation, estoppel per rem judicata are raised….Even though the rule above [Rule 3 of Order 33] Page 19 of 23 imposes a discretion on trial courts, it should be invoked in appropriate cases to fulfil the main objective of the drafters of the rules, which pursuant to Order 1 rule 2 of CI 47, is to achieve an expeditious and less expensive mode of adjudicating causes or matters before the Circuit Court and the High Court.” (Emphasis). In the case of OFEI MANTE (Substituted by REV ALEX ARYEE QUAYE) v MIKE SIMILAO & 3 OTHERS [2017-2018] 2 SCLRG 431 at 436, this Court observed that resort to Order 33 is a case management technique which when not well employed might end up delaying the action. The tenor of the above judicial pronouncements is that, the invocation by a trial Judge of Order 33 rule 3, is a matter of discretion save that in the exercise of that discretion, a trial Judge must be guided by the overriding objective of C.I 47 as embodied in Order 1 Rule 1(2) thereof. [7]. NEED FOR EVIDENCE: It must be pointed out that unless the defence of estoppel per rem judicatam is admitted by the Plaintiffs/Respondent, there is the need for evidence to be adduced in proof of the defence on the balance of probabilities. Hence, Order 33 rule 3 envisages a mini-trial in which the contending parties would be given the opportunity to give evidence, tender the judgments which they rely upon to establish and or disprove or contest the defence of estoppel raised by the Defendants/Appellants. It implies therefore that; the Respondents’ suit cannot be dismissed merely on the affidavit evidence filed by the parties. There is the need to give evidence on the matter and for the parties afforded the opportunity to cross examine the witnesses. The defence of estoppel per rem judicatam involves a mix question of facts and law. The existence of a judgment, allegedly, which Page 20 of 23 had pronounced on the subject matter of the suit is an issue of fact, and, unless admitted by the Plaintiffs/Respondents, ought to be proved in a trial at which viva voce evidence is given by the parties. In such instances, affidavit evidence is not suitable to effectively dispose of the dispute. That is why the trial court is given the discretion, under Order 33 of CI.47, to set down or order any question of fact or partly of fact and partly of law and raised by the pleadings to be set down for trial. Hence, the procedure adopted by the Appellants in calling for the dismissal of the suit on the basis of the motion and affidavit filed by them is ineffective to dispose of the matter. Rather, the Appellant should have applied to the court for the issue of estoppel per rem judicatam to be set down and tried by viva voce evidence separately and out of turn. This would have afforded them the opportunity to deal effectively with the matter. The trial judge was therefore right in refusing the application. [8]. EXERCISE OF DISCRETION BY THE TRIAL COURT: The Court of Appeal held that the trial High Court had properly exercised its discretion under the Rules of Court, and thereby affirmed the ruling of the trial High Court. It is settled, as a general principle, that an appellate court must be slow to interfere with the exercise of discretion by a trial court. This principle extends to a second appellate court as this Honourable Court in the exercise of its appellate jurisdiction over a first appellate court. In the case of BALLMOOS v MENSAH [1984-86] 1 GLR 724 at 725, the Court of Appeal expressed the principle in the following terms: Page 21 of 23 “The Court of Appeal would not interfere with the exercise of the trial court's discretion save in exceptional circumstances. An appeal against the exercise of the court’s discretion might succeed on the ground that the discretion was exercised on wrong or inadequate materials if it could be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account; but the appeal was not from the discretion of the court to the discretion of the appellate tribunal.” Similarly, in SAPPOR v WIGATAP [2007] SCGLR 676, the Supreme Court held that: “An appellate court would only interfere with the exercise of a court’s discretion where the court below applied wrong principles or the conclusions reached would work manifest injustice or that the discretion was exercised on wrong inadequate material. Arbitrary, capricious and uninformed conclusions stand in danger of being reversed on appeal.” It is my respectful view that the Appellants herein have not sufficiently made out a case, in the light of the principle enunciated in the above cases, to warrant an interference by this Honourable Court with the exercise of discretion by the courts below. This ground of appeal is, therefore, dismissed. [7]. CONCLUSION: From the totality of the facts and the evidence on record herein, it is my respectful view that the Court of Appeal did not err in affirming the ruling of the trial High Court. As a Page 22 of 23 result, this appeal fails in its entirety, and is accordingly dismissed. The case is hereby remitted back to the trial High Court for continuation. (SGD.) S. K. A. ASIEDU (JUSTICE OF THE SUPREME COURT) COUNSEL NII AKWEI BRUCE-THOMPSON ESQ. FOR THE DEFENDANTS/APPELLANTS/ APPELLANTS WITH EBENEZER TEI AYIKU. EMMANUEL BRIGHT ATOKOH ESQ. FOR THE PLAINTIFFS/RESPONDENTS/ RESPONDENTS WITH JUSTICE TSAKPOE AND RENNI ASHIE BOYE. Page 23 of 23