AMPAH vs. PRAH [1995-96] 1 GLR 201

CASES REFERRED TO

(1) Darbah v Ampah [1989-90] 1 GLR 598, CA.

(2) Darbah v Ampah [1989-90] 2 GLR 103, SC.

(3) Prah v Ampah [1992] 1 GLR 34.

(4) Ekpe v Antai (1944) 10 WACA 19.

(5) Henderson v Henderson (1843) 3 Hare 100; [1843-60] All ER Rep 378; 67 ER 313. (6) Shoe Machinery Co v Cutlan [1896] 1 Ch 667; 65 LJCh 314; 74 LT 166.

(7) Akim Akroso Stool v Akim Manso Stool [1989-90] 1 GLR 100, CA.

(8) Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch 506; [1969] 3 WLR 991; [1969] 3 All ER 897.

(9) Atiafu v Dzaka [1962] 1 GLR 280.

(10) Hunter v Stewart (1861) 31 LJCh 346; 45 ER 1148; 10 WR 176.

(11) Burdett v Hay (1863) 11 LT 259; 12 WR 61; 9 LT 429, LC.

(12) Brunsden v Humphrey (1884) 14 QBD 141; 51 LT 529; 32 WR 944, CA.

(13) Hudson v Lee (1589) 4 Co Rep 43c; 76 ER 989.

NATURE OF PROCEEDINGS

APPEAL by the appellant, a widow, to the Court of Appeal from the decision of the High Court dismissing her motion to dismiss an action brought against her by the respondent, the head of family of her deceased husband, to claim the family’s share of the intestate estate on the ground that the respondent was estopped per rem judicatam by virtue of decisions by the High Court, the Court of Appeal and the Supreme Court in her favour in an earlier litigation between the parties. The facts are sufficiently stated in the judgment of Adjabeng JA.

COUNSEL

Charles Hayibor for the defendant-appellant.

W A N Adumua-Bossman for the plaintiff-respondent.

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JUDGMENT OF ADJABENG JA.

On 7 November 1991 the plaintiff-respondent (hereinafter referred to as the plaintiff), Ebusuapanyin Kofi Prah, the head of the Adwenadze family of Ekumfi Adansimaim, took action against the defendant-appellant (hereinafter referred to as the defendant), Mrs Nancy Eddie Ampah, the administratrix of the estate of her late husband, Eddie Ampah. The plaintiff claims as follows:

“(1) A declaration that the Adwenadze family of Ekumfi Adansimaim, being the maternal family of the defendant’s husband; Edward Benjamin Kwesi Ampah (deceased) otherwise known as Eddie Ampah, who died intestate on 29 May 1967, is entitled to one-third of his estate under and by virtue of section 48 of the Marriage Ordinance, Cap 127 (1951 Rev).

(2) An order upon the defendant, as the sole or surviving administratrix of the said estate by revised grant dated 4 December 1972, to execute a vesting assent or otherwise take immediate steps to vest the said one-third share of the said estate in the plaintiff as the head of the said maternal family.”

On being served with the writ of summons, the defendant entered a conditional appearance thereto and later filed a motion seeking the dismissal of the action. The grounds upon which the defendant based her application are two. The first, is that the plaintiff’s family is estopped by the judgment given in her favour in two consolidated suits brought by the plaintiff’s family against her earlier at the High Court, Cape Coast. The appeals from this judgment to both the Court of Appeal (see Darbah v Ampah [1989-90] 1 GLR 598, CA) and the Supreme Court (see Darbah v Ampah [1989-90] 2 GLR 103, SC) were dismissed and judgment given in favour of the defendant. The other ground upon which the defendant’s motion to dismiss the plaintiff’s present action is based is that the action is statute-barred. These grounds are neatly set out in paragraphs (11), (12) and (13) of the affidavit in support of the application. These are as follows:

“(11) In the circumstances, I am advised by my solicitor and verily believe same to be true that the plaintiff herein is estopped per rem judicatam from instituting this present action.

(12) Further, I am also advised by my solicitor and verily believe same to be true that the plaintiff cannot be allowed by law to

[p.204] of [1995-96] 1 GLR 201 litigate his imaginary claim (bogus as it is) piecemeal.

(13) I am also advised by my solicitor and verily believe same to be true that the plaintiff’s action is statute-barred by virtue of the provisions of the law governing limitation of actions and that in view of the date of death of my husband, this action is thoroughly incompetent and ought to be dismissed in limine.”

The plaintiff’s answer has been set out in paragraphs (4), (5), (6) and (8) of his affidavit in opposition. The plaintiff deposed therein as follows:

“(4) As exhibit A shows, starting from the claim in suit No 22/74, reproduced at page 2 and for the rest of that judgment the issue in the former litigation (which was decided against me and also against the present plaintiff’s predecessor in office) was whether or not the whole of house No G 175/4, Inner Ring Road, Cape Coast or only one third of that property belonged to my late brother Eddie Ampah (deceased) so as to form part of his intestate estate.

(5) Exhibit A, affirming the trial High Court, Cape Coast, held that the whole, not just one-third of the property as I had claimed, belonged to the late Eddie Ampah (deceased) and formed part of his intestate estate.

(6) I am therefore advised and verily believe same that the former litigation decided an issue concerning the composition or quantum of the Eddie Ampah estate, whereas the present suit is concerned exclusively with the distribution of the estate and what proportion of the estate falls to the Adwenadze family to which late Eddie Ampah belonged.

(7) Now that the composition or quantum of the Eddie Ampah estate has been justicially determined on the merits by exhibits A, there arises the different issue of how it is to be distributed among the next of-kin, which is what the present suit is all about.”

The trial court ruled in favour of the plaintiff: see Prah v Ampah [1992] 1 GLR 34 and dismissed the defendant’s motion.

Dissatisfied with the ruling, the appellant appealed to this court. Only the additional grounds (1), (2) and (3) of the grounds of appeal were argued in this court. These are as follows:

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“(1) The learned judge erred in law when he ruled that the judgments of the High Court, the Court of

Appeal and the Supreme Court did not operate as estoppel per rem judicatam.

(2) The learned judge erred when he ruled that the instant suit is different from the previous suits in the sense that the first judgments dealt with the issue of whether or not the property was joint or family property and the instant suit is about distribution of the estate of the deceased.

(3) The learned judge erred when he held that the respondent herein could not have sought a share in the estate of the deceased as an alternative relief in the previous suits which culminated in the decision of the Supreme Court.”

Counsel for the defendant in this court put up three arguments which he had also put up in the trial court. He argued first, generally, that the issue sought in the present action had already been decided in the previous litigation and so cannot be relitigated. Then, secondly, he argued that the law would not allow the plaintiff to litigate piecemeal. And, thirdly, counsel argued that the relief being sought now should have been sought in the earlier litigation as an alternative relief. Counsel relied on the West African Court of Appeal decision in Ekpe v Antai (1944) 10 WACA 19 at 21-22 and two English cases on which it was based. These are: Henderson v Henderson (1843) Hare 100 at 114-115 and Shoe Machinery Co v Cutlan [1896] 1 Ch 667.

Counsel for the plaintiff rejects these arguments. He thinks that the defendant’s application is misconceived. He is of the view that the matters in issue are quite different from those in the previous litigation which went in favour of the defendant. Counsel argued that in the previous litigation, the claim was based on a deed (exhibits C-E), whereas in the present suit, the claim is for the distribution of the deceased’s estate, based on section 48 of the Marriage Ordinance, Cap 127 (1951 Rev). Counsel submitted, therefore, that the principle of res judicata, and the rule against piecemeal litigation were inapplicable. Also, the claim for the distribution of the deceased intestate’s estate could not have been canvassed as an alternative claim in the previous litigation as the causes of action in the two suits were different and could not therefore be joined together in the suit. Counsel relied on the cases of Akim Akroso Stool v Akim Manso Stool

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1 GLR 100, CA, holding (4); Shoe Machinery Co v Cutlan (supra); Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3.) [1970] Ch 506 and Atiafu v Dzaka [1962] 1 GLR 280.

Having read the record in this case, including the ruling of the trial court, and after considering the submissions made in this court, I have no hesitation at all in saying that the ruling or decision of the trial court is unassailable. I think that the trial judge admirably and satisfactorily dealt with the issues raised in the application. Not only did the learned judge come to the right conclusion on the issues raised, but he also supported his decision with relevant authorities albeit the authorities are mostly old English cases. Thus the learned trial judge supported his decision that the defence of res judicata could not be sustained where the two grounds of relief alleged in the two actions were different with the English case of Hunter v Stewart (1861) 31 LJCh 346. As the trial judge rightly held at 39:”… where the issues or the causes of action or both raised in the two suits are entirely dissimilar, estoppel will not be appropriate.” See Burdett v Hay (1863) 11 LT 259, LC and also Brunsden v Humphrey (1884) 14 QBD 141, CA.

The same principle applies in the case of piecemeal litigation. As explained by the learned trial judge, where there are distinct and separate causes of action, a plaintiff cannot be prevented from litigating piecemeal in respect of the different causes of action. It is only where there is only one cause of action open to a party but with different reliefs that, if the party opts for say relief A and a judicial decision is given on that relief, he cannot go and claim relief B in respect of the same cause of action even though he could have claimed both reliefs in the earlier proceedings: see Hudson v Lee (1589) 4 Co Rep 43c, referred to by the trial judge, where it was held that a plea of res judicata would succeed where the appellant had recovered damages in an action for trespass brought for the same assault, battery and wounding.

The trial judge concluded his judgment at 41-42 as follows:

“In the instant proceedings, the first litigation concerned the ownership of a house; whereas the plaintiff’s predecessor-in-title was claiming it was a family property or joint property, the defendant claimed it was the deceased’s self-acquired property, which view was upheld by the court. The position therefore was that following the court’s decision that house formed part of the

[p.207] of [1995-96] 1 GLR 201 intestate estate to be enjoyed by whoever was entitled thereto. By the present claim the plaintiff is claiming on behalf of the family, their share in the deceased’s estate including this house. The causes of action as well as the issues are not the same and the plaintiff is not claiming in the same right. Again since title was in issue in the first action, the plaintiff herein could not have asked for distribution for that would clearly have been contradictory of the claim before the court. Normally a deceased’s estate is realised or called in before distribution is effected. And the two acts are not the same.”

I agree entirely with the above conclusion of the trial judge and I see no need to add anything thereto. I must however emphasise that the case of Ekpe v Antai (supra) and the English cases discussed therein would not apply to the facts of this case as the causes of action and the issues in the two actions in question are not the same. In the circumstances, I think that the appeal must fail and the decision of the trial court affirmed.

DECISION

Appeal dismissed

DRKS