NII KOMMEY II AND OTHERS VRS. TETTEH AND OTHERS [2024] GHAHC 441 (14 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, CRIMINAL COURT 4, HELD IN ACCRA ON TUESDAY, THE 17TH DAY OF SEPTEMBER, 2024, BEFORE HER LADYSHIP JUSTICE COMFORT KWASIWOR TASIAME, JUSTICE OF THE HIGH COURT. ____________________________________________________________ SUIT NO.: L 353/2001 1. NII OGBAMEY-FIO KOMMEY (SUBST. BY NII KOMMEY II) 2. JORDAN NII ASHITEY KOMMEY - PLAINTIFFS 3. HENRY ASHONG ASHITEY 4. KOMMEY TETTEH VRS. 1. BENJAMIN OKO TETTEH (SUBST. BY ISHMAEL ADDO 2. NII ASHITEY TETTEH - DEFENDANTS 3. NII TETTEH OKPEY FAMILY & CO. LTD. SUIT NO.: SOL 56/2010 NII AMARKAI III - PLAINTIFF VRS. 1. NII OGBAMEY-FIO KOMMEY (SUBST. BY NII KOMMEY II) 1 | P age 2. JORDAN NII ASHITEY KOMMEY 3. HENRY ASHONG ASHITEY 4. KOMMEY TETTEH - DEFENDANTS 5. BENJAMIN OKO TETTEH (SUBST. BY ISHMAEL ADDO) 6. NII ASHITEY TETTEH 7. NII TETTEH OKPEY FAMILY & CO. LTD. _____________________________________________________________ PARTIES: 1ST SUIT NO.: L 353/2001 1ST AND 2ND DEFENDANTS -PRESENT OTHERS -ABSENT 2ND SUIT NO.: SOL 56/10 5TH AND 6TH DEFENDANTS- PRESENT OTHERS- ABSENT RULING Counsel for and on behalf of the Defendants in the 1st suit and the 5th, 6th and 7th Defendants in the 2nd suit are the Applicants praying the court to dismiss this suit on the basis that the matter had already been determined by the Supreme Court and needs not be re-litigated (Res Judicata) and for any other orders that the court may deem fit. Applicant attached an affidavit in support of the Application. Kindly permit me to quote the relevant portions of the affidavit in support. Paragraph 5. That on the 12th July, 2023, the Supreme Court made a final determination and adjudication on the ownership of the entire Amamorley lands in favour of the NII Tettey Okpe Family in Civil Appeal No. J4/59/2021. 6. That the parties in the consolidated 2 | P age suits were aware of the case and sat idly by while the matter was prosecuted all the way to the Supreme Court. 7. That … the subject matter in this case having been decided upon by the highest court in the land brings finality to any litigation on the same subject matter and raises the defence of Acquiescence, laches and Estoppel per Res Judicata which together renders the continuation of litigation in this consolidated matter otiose. 8. … The Supreme Court having decided this matter, this … court has become bereft of jurisdiction since the Judgement of the Supreme Court has overtaken these proceedings. 10. … where a person stays idle when a matter that concerns him is being litigated, and takes no steps to join that matter, final determination of that matter by a court of competent jurisdiction will estopped him from re-litigating that matter. Respondents filed affidavit in opposition to the Application to dismiss the suit. According to Plaintiff/Respondent, NII Amarkai III in his affidavit in opposition, Plaintiff/Respondents are not the same persons who have the same interest as the Plaintiffs in both consolidated cases before the Court. In the submissions filed by Learned counsel for the Applicants, he is relying on the first element of proof of Res Judicata, that is there is a final decision delivered on the merits of the case by competent higher Court Jurisdiction; that is the Supreme Court. Learned Counsel for the Respondents submitted as follows that; 1. For Res Judicata to be applicable, the parties in the suit leading to the judgement being used as estoppel should be the same parties as the current litigation or privies to the parties thereto. 2. Also, the subject matter should be the same. There must be incontrovertible evidence that the subject matter of the current litigation is the same as in the previous litigation. There must not be any doubt in the description or identity of the subject-matter. And thirdly, the party seeking to rely on estoppel per rem judicata must plead estoppel per rem judicatam. 3 | P age He submitted further that, all the criteria stated are essential, and must all be present. That the absence of any of the criteria should render estoppel per rem judicatam inapplicable. The legal luminaries are of the view that the plea of res judicata as has been explained in Spencer-Bower and Turner’s book, res judicata (2nd edition) paragraph 9 of page 9 as follows: “The rule of estoppel by res judicata … is a rule of evidence and may thus be stated: where a final decision has been pronounced by a … judicial tribunal of competent jurisdiction over the parties to, and the subject matter of, the litigation, any party or privy to such litigation, as against any other party or privy thereto … is estopped in any subsequent litigation from disputing or questioning such decision on the merits whether it be used as the foundation of an action or relied upon as a bar to any claim.” The plea of res judicata is a well-established part of our law and it is usually expressed to be based on a final judgment. In the case of In re Sekyedumase Stool: Nyame v Kese alias Konto [1998-99]SCGLR 476 at pg 478, Acquah JSC as he then was, delivering the judgment said: “My lords, 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” The doctrine or principle of estoppel is founded on the maxim, ” it concerns the State that lawsuits be not protracted”. Also, “no man ought to be twice vexed, if it be found to the court that it be for one and the same cause” If an action is brought, and the merits of the question are determined between the parties, and a final judgement is obtained by either, 4 | P age the parties are precluded, and cannot canvass the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial which would have led to a different judgement.” See the case of In Re Kwabeng Stool; Karikari V. Ababio II [2001-2002] SCGLR 515 at page 530. Please see also the case of Dahabieh v SA Turqui & Bros [2001-2002] SCGLR 498 By the explanations as in the cases above, it means that for a party to succeed on the doctrine of Res Judicata, 1. There should have been a final decision delivered on the merits of the case by competent tribunal/jurisdiction. 2. Such a judgement is conclusive as to the rights of the parties and their privies. 3. That judgement should constitute an absolute bar to subsequent action involving the same claim, demand or cause of action. Learned counsel for the Applicant exhibited the Supreme Court Judgement delivered on 12th July, 2023. This judgement is an appeal from the judgment of the High Court to Court of Appeal and further appeal to the Supreme Court. The High Court judgement was delivered on 31st May, 2017 and the Court of Appeal judgement was also delivered on 21st May, 2020. The Plaintiffs before the trial court in the Supreme Court Judgement were Nii Ahinquaso Baddoo, Nii Kwaku Fosu II, Albert Badu and Ofori Badu and the Defendants are Nii Okpe II, Numo Narteh, Samuel Laryea, Ishmael Addo, James Tetteh and Joseph Lartey. Plaintiffs statement of claim were as follows; 1. Declaration of title to all that piece or parcel of land situate, lying and being at Ablekuma in the Greater Accra Region of the Republic of Ghana and bounded on the North East by Asofa and Ofankor land measuring Seventeen Thousand One Hundred and Fifty feet more or less on the North West by the River Nsaki measuring 5 | P age Twenty Six Thousand Four Hundred and Fifty feet more or less on the South East by Suotuom and Anyaa Lands measuring Thirty Two Thousand, Nine Hundred feet more or less on the South West by Gbawe and Joma Lands measuring Seventeen Thousand, Seven Hundred and Thirty Feet more or less covering an area of approximately 14.37Sq Miles or 9201.48Sq Feet. 2. Declaration that the unlawful criminal and illegal activities of land guards terror groups that commit acts of trespass and enforcement must be declared null and void. 3. Declaration that all the areas of trespass and encroachment that the defendant herein and their accomplices have invaded come within the area of ownership and control of the plaintiff herein and their royal family and this constitutes acts of trespass and must be pulled down as illegal structures. 4. Declaration that the defendants herein are not members or do not form part of the patrilineal royal family of the plaintiff herein and accordingly are not entitled to be trespassing on their lands and be third parties or worse still to be purporting, using or hiding under the authority and name of the late Nii Robert Badoo, the past head of their family to be executing deed of indentures to give their lands away to others. 5. An order cancelling and nullifying any such acts of trespass and illegal accusations of plaintiff’s land. 6. An order permitting plaintiffs to destroy and bulldoze all such unauthorized structures put up on plaintiff’s land without their knowledge, consent and permission. 7. An order for ejectment and recovery of possession. 8. An order for demolition all unauthorized structures, excavation, buildings on plaintiff’s land. 9. An order to the Lands Commission and or the Lands Title Registration, compelling the registration of any portion of the piece or parcel of land belonging to the 6 | P age plaintiff’s herein that has been trespassed and encroached upon without the express written authority or consent or permission of plaintiff herein. 10. General damages for trespass, unlawful entry, unlawful grant of plaintiff’s land 11. An order of perpetual injunction (mandatory and prohibitory) restraining the defendants herein, their agents, assigns, workmen, privies, servants, caretakers and all people claiming through them from entering and dealing in any manner with plaintiff’s land. 12. Interest at the prevailing bank rate up to the date of payment. The suit before this court was filed in the year 2000 and consolidated in 2010. Per the amended statement of claim filed before this court on the 21st November, 2023, the Plaintiffs claims the following; 1. A declaration that the Asere Stool is the allodial owner of Amomoley lands, including the price or parcel of land described in the statement of claim. 2. An order of declaration that the 3rd to 5th Defendants are trespassers on Asere Stool land situate at Amomoley. 3. An order of perpetual injunction restraining the 1st and 2nd Defendants from alienating Asere stool situate at Amomoley or anywhere else without the consent of the plaintiff or a substantive Mantse of Asere. It is therefore clear that, the parties in the Supreme Court case are different, the issues are also different. That being the case, I am of the view that the Applicant’s application is misconceived, same is hereby dismissed. (SGD) COMFORT KWASIWOR TASIAME (JUSTICE OF THE HIGH COURT) COUNSEL: PHILIPPINE AMA ADASE HOLDING BRIEF FOR JACOB ACQUAH SAMPSON FOR PLAINTIFFS IN 1ST SUIT AND 1ST, 2ND, 3RD & 4TH DEFENDANTS IN 2ND SUIT 7 | P age JOYCE DOGBE HOLDING BRIEF FOR GEORGE ESHUN FOR PLAINTIFFS IN 2ND SUIT CHRISTOPHER KING WITH PHILEMON PIERSON PRAH AND JASON DZITRIE FOR DEFENDANTS IN 1ST SUIT AND 5TH, 6TH & 7TH DEFENDANTS IN 2ND SUIT 8 | P age