JUSTICE GILBERT MENSAH QUAYE v. KOIWAH INVESTMENT CO.LTD & OTHERS
January 30, 2019
SUPREME COURT
GHANA
CORAM
- ANSAH, JSC (PRESIDING)
- DOTSE, JSC
- BAFFOE-BONNIE, JSC
- BENIN, JSC
- PWAMANG, JSC
Areas of Law
- Civil Procedure
- Property and Real Estate Law
January 30, 2019
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court, per Marful-Sau JSC, dismissed the 1st Defendant’s further appeal from a Court of Appeal decision that had affirmed the High Court. The dispute involves Nungua Stool land gifted to Quaye Tawiah in 1958 (registered No. 2078/1960) and a separate 1958/1959 Deed of Purchase later nullified by Ollenu J in 1962 for lack of elders’ consent. The appellant argued that the same defect should invalidate the gift and that estoppel from the 1962 judgment applied. The Court severed and amended an argumentative ground under CI 16 but proceeded to the merits, holding that estoppel per rem judicata was inapplicable because identity of parties, issues, and subject matter was absent. It further held that the elders and their privies were themselves estopped and that relitigating the gift would be an abuse under Henderson v Henderson and Greenhalgh v Mallard. The Court emphasized that judgments are prospective, found the gift valid, applied nemo dat to the 1992 conveyance, and affirmed the Court of Appeal.
J U D G M E N T
MARFUL-SAU, JSC:-
This appeal is taken against the judgment of the Court of Appeal, which affirmed the decision of the High Court. In these proceedings we intend to give the parties the designation they had before the trial court. The 1st defendant who lost the contest both at the High Court and the Court of Appeal now appeals to this court on the following grounds:-
1. The Court of Appeal erred when it held that estoppel was inapplicable to the Deed of Gift because it was the Deed of Purchase which was affected by the Judgment of Ollenu J, in Suit No. 151/1960 dated 27th July, 1962 entitled Borkete Osonoware & 23 Others v. Nii Odai Ayiku IV & Quaye Tawiah, when the said judgment nullified the Deed of Purchase made to the Plaintiff/Respondent/Respondent’s father in 1958 or 1959 on the basis that the attesting witnesses whose consent and concurrence the Plaintiff/ Respondent/ Respondent relied on to prove the Deed of Gift were not the accredited elders whose consent and concurrence was necessary for a valid grant of Nungua Stool in 1958 or 1959.
2. The judgment is against the weight of evidence
From the record of appeal no additional ground was filed as indicated in the Notice of Appeal filed on the 28th November 2017. Ground (1) as formulated above clearly offends rule 6 (4) and (5) of the Rules of this court in the sense that it is argumentative and narrative in nature. Under Rule 6(5) of CI 16, any ground of appeal which is not permitted under the rule may be struck out by the court on its own motion or on application by the Respondent. However, since the ultimate objective of this court is to do justice on the merit of cases, we shall refrain from striking out that ground, but sever the offending parts and amend the said ground to read as follow: - ‘’the Court of Appeal erred when it held that estoppel was inapplicable to the Deed of Gift’’. Indeed, the severed parts of the ground are matters that could be addressed in the statement of case.
In Attorney – General v. Faroe Atlantic Co. Ltd. {2005-2006} SCGLR 271, this court had cause to strike out offending parts of two of the grounds of appeal and amended the two grounds of appeal for the Appellant. Similarly in West Laurel Co. Ltd v. Agricultural Development Bank {2007-2008} 1 SCGLR 556, the court found grounds (2) and (4) of the Appeal as argumentative and narrative and as such struck out ground (2) but waived non- compliance with the Rules in respect of ground (4). As indicate