NII KPOBI TETTEY TSURU III v. THEOPHILUS SOWAH ANNANG & OTHERS
2013
COURT OF APPEAL
GHANA
CORAM
- KUSI-APPIAH, J.A. (PRESIDING)
- ADUAMA OSEI, J.A.
- LOVELACE-JOHNSON (MS.), J.A
Areas of Law
- Civil Procedure
- Evidence Law
2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The plaintiff’s appeal was dismissed by the Court of Appeal which affirmed the High Court’s decision dismissing the suit. The plaintiff had alleged that prior judgments regarding the ownership of Ogbojo lands were obtained by fraud and lacked fair trial. The Court of Appeal found no substantial evidence to support claims of fraud and concluded procedural errors were merely irregularities that did not warrant nullifying the proceedings. Key legal principles include the burden of proof for fraud and the distinction between procedural irregularities and nullities.
KUSI-APPIAH, J.A.:
The plaintiff/appellant (hereinafter referred to as the plaintiff) has had to travel down to the High Court through the Court of Appeal from the Supreme Court.
I believe that his ascent to this court, the second time, was much influenced by what Her Ladyship Justice Barbara Ward Acquah (Mrs.) said or directed in her opinion in the High Court, Accra on 2nd May, 2012 at page 200 of the record;
“1. The plaintiff is estopped from setting up a claim of fraud having failed to raise same before the High Court and Supreme Court and
2. The plaintiff’s claim in the instant suit are matters already raised before the High Court and the Supreme Court and in respect of which judgment was given and therefore res judicata.”
It was against this decision that the appeal was lodged in this court on grounds formulated as follows:-
“a. No particulars/full details of facts constituting estoppel were pleaded by defendants/respondents.
b. Specific allegations of facts plaintiff/appellant is estopped from proving were not given/pleaded by defendants/respondents.
c. There was serious procedural error in that estoppel and fraud are triable issues.
d. The ruling is wrong.
e. Further grounds to be filed upon receipt of the Record of Appeal.”
Before I go on to discuss these grounds of appeal, let me give a brief background information to this case.
Sometime in 1994, the plaintiff sued Nii Ago Sai substituted by Joseph Nii Torgbor Obodai II and two others in the High Court, Accra for declaration of title to all Ogbojo lands and perpetual injunction restraining Nii Ago Sai substituted by Joseph Nii Torgbor Obodai II as defendant from disposing off Ogbojo lands or any parts thereof without the approval or concurrence of the plaintiff. The basis of the plaintiff’s claim against the defendant and two others is that Ogbojo village is one of the villages under La Stool and thus Ogbojo lands are part of the La Stool Lands.
The plaintiff averred in the pleadings that the defendant’s right were severely limited to grants of La Rural Lands to subjects of the stool for subsistence farming and construction of dwelling houses only. Grants of La Rural Lands for other purposes without the concurrence and approval of the plaintiff constituted acts inconsistent with the allodial title rights of the plaintiff.
It was the case of the defendants that the disputed lands belonged to the Anorhor and Dzirase composite families who founded and settled at Ogbojo village. The def