ARYEE v. BLANKSON [1972] 2 GLR 247
HIGH COURT ACCRA
Date: 24 JULY 1972
BEFORE: ABBAN J.
CASES REFERRED TO
(1) G. B. Ollivant v. Korsah (1941) 7 W.A.C.A. 188.
(2) Appiah v. Akers Trading Co. [1972] 1 G.L.R. 28.
(3) Lloyde v. West Midlands Gas Board [1971] 1 W.L.R. 749; [1971] 2 All E.R.1240, C.A.
(4) Wilkinson v. Edusei [1963] 1 G.L.R. 393, S.C.
NATURE OF PROCEEDINGS
APPLICATION by the defendant to have an action dismissed on the pleadings on the ground that the plaintiff was estopped from relitigating the matter. The facts are adequately set out in the ruling.
COUNSEL
W. A. N. Bossman for the defendant-applicant.
S. F. Goodhead for the plaintiff-respondent.
JUDGMENT OF ABBAN J.
The defendant in this action applied under Order 25, rr. 2 and 4 of the Supreme [High] Court (Civil
Procedure) Rules, 1954 (L.N. 140A), and under paragraph 85 (2) of the Courts Decree, 1966 (N.L.C.D. 84), for an order dismissing the suit on the ground that “the plaintiff has no right of action and his claim herein is vexatious and cannot be reasonably supported.”
Notice of application was given as far back as 13 February 1971. At that time the N.L.C.D 84 was in
existence. But the said Decree 84 has now been repealed by the Courts Act 1971 (Act 372). I will
therefore take it that this application proceeded under Order 25, rr. 2 and 4 only.
The plaintiff’s claim is for a declaration of title and perpetual injunction in respect of a piece of land
situate and lying at a place known as Opete Kpakpo, located at the north-western side of Abossey Okai, Accra. The amended statement of claim filed on 18 May 1971, alleged as follows:
“(2) During his lifetime one Robert Anyai Yaotey (deceased) was a member of the said Onamansuro family and acquired the land described in the schedule infra as his self-acquired property.
(2a) The said Robert Anyai Yaotey (deceased) was a subject of the Akumajey stool. [p.249] of [1972] 2 GLR 247 (3) The acquisition of the land by Robert Anyai Yaotey (deceased) is evidenced by a document registered in the Ghana Deeds Registry as No.1061/1945 and dated 24th December, 1945, and executed in favour of the said Robert Anyai Yaotey (deceased). (4) The said Robert Anyai Yaotey died intestate in Accra on 18th day of January, 1961 and the land the subject-matter of dispute became family property. (5) During his lifetime the said Robert Anyai Yaotey exercised open acts of ownership on the said land without let or hindrance from any quarter whatsoever. (6) The defendant is asserting adverse title to the said land by collecting rents from the tenant on the land.” In his statement of defence, the defendant dispute the title of the plaintiff and denied practically all the
averments contained in those paragraphs of the statement of claim to which I have just referred. The
defendant further contended that he is the owner in possession. Paragraphs (3) to (6) of his statement of defence filed on 13 June 1966, stated as follows: “(3) The defendant denies paragraph (2) of the statement of claim and will put the plaintiff to strict proof of the allegation. (4) In answer to paragraphs (4), (5) and (6) of the plaintiff’s statement of claim defendant avers that the plaintiff had at no time been in possession of the land, the subject-matter of this claim, and that the defendant has not trespassed on any land belonging to the plaintiff. (5) In answer to paragraph (3) of the statement of claim, the defendant says that he is the owner of a larger track of land described in a deed of conveyance dated 7 March 1961 and made between the Stool of Akumajey and to the defendant’s vendors and registered in the Ghana Deeds Registry as No. 1559/1961. (6) The defendant says plaintiff is not in any way entitled to any of the reliefs sought.” In arguing the present motion, learned counsel for the defendant tendered certain judgments and contended, inter alia, that the plaintiff is estopped by those judgments from claiming title to the land. One of those judgments is entitled Nii Ayikai II, Akumajey Mantse v. Nii Abossey Okai II and it is dated 27 September 1945. Apparently, this judgment dealt with a large track of land and declared the stool of Akumajey to be the owner of that land. The judgment in question was confirmed by the Judicial Committee of the Privy Council on 24 July 1950. Another judgment tendered by the learned counsel for the defendant is in connection with a suit entitled Emmanuel Mensah Blankson v. R..A. Tagoe, Court of Appeal 16 June 1969, unreported; [p.250] of [1972] 2 GLR 247 digested in (1969) C.C. 125. Learned counsel for the defendant submitted that in view of these judgments the plaintiff cannot hope to succeed and the action should be dismissed the pleadings as it is not necessary to hear evidence.
The application was opposed by learned counsel for the plaintiff. Counsel for the plaintiff did not
challenge the validity of these judgments. But his main contention was that the plaintiff’s predecessor, Robert Anyai Yaotey (deceased), who originally acquired the plot of land in dispute, was a subject of the stool of Akumajey and which stool was the winning party in the first judgment tendered; and that that judgment was given in respect of a piece of land of which the disputed plot forms part. Learned counsel for the plaintiff therefore submitted that since the plot was granted to the plaintiff’s said predecessor as a subject of the Akumajey stool, vide the deed of conveyance dated 24 December 1945, the judgments referred to cannot adversely affect the plaintiff in one way or the other.
The only point in this application is whether I should dismiss the plaintiff’s claim on the pleadings or
whether it is necessary that the case should be heard on its merits. It must be emphasized that in
applications of this nature the court, in coming to a decision one way or the other, ought to confine or limit itself to matters which have been disclosed in the pleadings. I think both counsel did appreciate this point. I have therefore examined the pleadings very closely.
The argument of learned counsel for the defendant implied that the plaintiff is either estopped per rem judicatam or by conduct or by acquiescence and laches from bringing the present action. However, no estoppel of any kind was pleaded in the statement of defence. In fact none of the judgments referred to supra and being relied upon in this application was ever pleaded. It will, therefore, not be competent for me to make any findings as to estoppel and then to dismiss the action on that ground. See G. B. Ollivant Ltd. v. Korsah (1941) 7 W.A.C.A.188. In the course of its judgment the West African Court of Appeal at p. 194 said: “It is a cardinal rule that if a party relies upon estoppel he must plead it. Although there were no pleadings in this case, there were openings by counsel and they take the place of pleadings. Counsel for the respondents, in his opening, did not mention estoppel and though in his final address he quoted cases of estoppel, this was
not, in our opinion, sufficient to create a plea which required to be answered, and it was not competent to the learned trial Judge to find that the claimant was estopped by conduct from preferring his claim.” In the case of Appiah v. Akers Trading Co. [1972] 1 G.L.R. 28 at p. 34 it was held, inter alia, that, “A party is bound by his pleadings and cannot at the trial set up a case different from that which he had pleaded.”, See also the recent case of Lloyde v. West Midlands Gas
[p.251] of [1972] 2 GLR 247 Board [1971] 2 All E.R. 1240, C.A. In that case, the Court of Appeal in England allowed the appeal, and ordered a new trial, mainly, because the allegations of defective installation and maintenance on which the court below based its findings as to negligence, had not been pleaded by the plaintiff, but had only been introduce d at the end of the trial. This is exactly what has happened in the present applicationbefore me. The judgments were not pleaded by the defendant. They were introduced when learned counsel for the defendant was arguing the motion.
In any case, it will be recalled that the issues set out in the summons for directions and adopted for trial do not include any issue of estoppel. The issues were:
“(1) Whether or not the land in dispute is the property of Robert Anyai Yaotey (deceased).
(2) Whether or not the plaintiff is entitled to his claims.”
It is therefore clear that the court is expected to decide the case having in mind those two issues.
Consequently, I find it difficult to reconcile the submissions of learned counsel for the defendant with the statement of defence and with the issues as they stand. For, as I have said, his argument has raised matters which are not only inconsistent with the pleadings, but also contrary to the issues agreed upon by the parties; and if I accept his argument, it will be tantamount to deciding the case on a point which has never been a triable issue on the pleadings. In Wilkinson v. Edusei [1963] 1 G.L.R. 393 at p. 396 the former Supreme Court said: “The respondent did not plead deceit or misrepresentation; therefore evidence should not have been admitted by the court on those matters; and where by oversight such evidence slipped in, the court should have ignored it completely in the consideration of its decision: see Wallingford v. Mutual Society ((1880.) 5 App.Cas. 685 at p. 697, H.L.) and Philipps v. Philipps ((1878) 4 Q.B.D. 127 at p. 133. C.A.). The learned judge therefore erred in admitting evidence of such matters, and further erred in acting upon them when fraud and deceit were not in issue before her. ”In the circumstances, I have come to the conclusion that it will be better to hear evidence and then decide the case on the issues which the parties themselves have agreed upon. Of course, the defendant can apply for leave to amend his defence and then plead estoppel of any kind if he is so advised. But as matters now stand, I am of the view that the application is misconceived. Accordingly, it will be dismissed with costs fixed at ¢55.00, inclusive of a fee to counsel.
DECISION
Application dismissed.
S. E. K.
