DAHABIEH vs. S A TARQUI & BROTHERS [2001-2002] 1 GLR 171

CASES REFERRED TO

(1) Zabrama v Segbedzi [1991] 2 GLR 221, CA.

(2) Pritchett v English and Colonial Syndicate [1899] 2 QB 428.

(3) Oman Ghana Trust Holdings Ltd v Acquah [1984-86] 1 GLR 198, CA.

[p.174] of [2001-2002] 1 GLR 171

(4) Alameddine Brothers v Paterson Zochonis and Co Ltd [1971] 2 GLR 403, CA.

(5) Bassil v Kabbara [1966] GLR 102, SC.

(6) Fan Milk Ltd v State Shipping Corporation [1971] 1 GLR 238.

(7) Miller v Attorney-General [1975] 2 GLR 31.

(8) Asare v Brobbey [1971] 2 GLR 331, CA.

APPEAL by the appellant-tenant from the judgment of the Court of Appeal allowing the appeal of the respondents-landlord from the decision of the trial High Court in favour of the appellant and granting the respondents’ counterclaim for recovery of possession. The facts are sufficiently stated in the judgment of the court delivered by Adzoe JSC.

Ayikoi Otoo for the appellant.

Stanley Amarteifio for the respondents.

Adzoe JSC. Delivered the judgment of the court. This is an appeal from the judgment of the Court of Appeal dated 29 June 2000. It was a decision which reversed the trial High Court’s judgment in favour of the plaintiff-respondent-appellant(hereinafter referred to as the appellant). The defendants-appellants-respondents will hereinafter be referred to as the respondents simpliciter.

The appellant filed and argued four grounds of appeal—two original grounds plus two additional grounds. They are that:

“(1) The judgment is wrong in law.

(2) The judgment is against the weight of evidence.

(3) The learned justices erred in granting the order of recovery of possession in the absence of evidence that the landlord had served the requisite statutory notice on the tenant which notice is a condition precedent to taking any action based on the said breach.

(4) In view of the substantial works on the premises in the nature of renovations, the learned justices ought to have suspended the order for recovery of possession in the interest of justice.”

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Grounds (1) and (3) above deserve some comment. Rule 6 (4) of the Supreme Court Rules, 1996 (CI 16) requires that “. . . where a ground of appeal is one of law the appellant shall indicate the stage of the proceedings at which it was first raised.” Ground (3) is expressed as a ground of law and the appellant ought to have indicated whether he had raised it before now, or whether he is now raising it for the first time. The significance of this requirement will be seen later in this judgment.

Similarly, when the appellant alleged in ground (1) that the judgment is wrong in law, it seems that he is in effect saying that there is an error of law in the judgment; we believe that was what he intended to say. Indeed, that ground of appeal appears to have been directed at the Court of Appeal’s holding that the appellant was estopped per rem judicatam from instituting the action because the appellant’s submission on that ground is that “the instant case was not properly within the realm of estoppel per rem judicatam and the Court of Appeal misapplied the doctrine.” In that regard too the appellant again ought to have indicated in the said ground (1) the fact that the decision as to the estoppel was what he was attacking as having rendered the judgment wrong in law. If that holding amounted to an error in law, then rule 6 (2) requires the appellant to specify it in the ground of appeal as the subject of this particular complaint—see rule 6 (2)(f) of CI 16.

We think that having regard to rule 6 of CI 16, grounds (1) and (3) set out above do not comply with the rules. Clearly the intention behind rule 6 of CI 16 is to narrow the issues on appeal and shorten the hearing; by specifying the error made by the lower court or by disclosing whether or not a point at issue had earlier on been raised, both the court and counsel for the respondent would be enabled to concentrate on the relevant parts of the evidence in the record of proceedings and not waste time on irrelevant parts of the evidence. With respect to questions of law, it is necessary that the respondent and his lawyers know well in advance what points of law are being raised so that they may prepare their case and marshal their authorities, whiles an indication that the point of law was or was not raised in the court below may help the court resolve the issue faster.

In Zabrama v Segbedzi [1991] 2 GLR 221, CA the Court of Appeal held that a ground of appeal alleging misdirection by the trial judge

[p.176] of [2001-2002] 1 GLR 171 without specifying how he misdirected himself rendered the ground of appeal inadmissible. Reading the judgment of the court, Kpegah JA (as he then was) referred to rule 8(4) of the Court of Appeal Rules, 1962 (LI 218) which provided that: “No ground which is vague or general in terms. . . shall be permitted,. . .” and said at 226:

“The implication of these rules is that an appellant, after specifying the part of the judgment or order complained of, must state what he alleged ought to have been found by the trial judge, or what error he had made in point of law. I do not think it meets the requirements of these rules to simply allege ‘misdirection’ on the part of the trial judge. The requirement is that the grounds stated in the notice of appeal must clearly and concisely indicate in what manner the trial judge misdirected himself either on the law or on the facts. To state in a notice of appeal that ‘the trial judge misdirected himself and gave an erroneous decision’ without specifying how he misdirected himself is against the rules and renders such a ground of appeal inadmissible. The rationale is that a person who is brought to an appellate forum to maintain or defend a verdict or decision which he has got in his favour shall understand on what ground it is impugned.”

The same rule applies in this court, and we think the Court of Appeal was correct. In the circumstances, we hereby dismiss ground (1) of the appeal. But the only fault with ground (3) is that it has failed to state whether or not the issue of non-compliance was raised before the trial court, and we feel that this omission is not so fundamental as to infect ground (3); we will accept ground (3) for argument.

In order to properly appreciate the issues raised for determination in this appeal, one must look at the history of the whole litigation Nasib Dahabieh and the Turqui brothers were aliens resident in Ghana in 1966. They all did business and lived in Accra. Nasib traded under the name and style of “Technical Trading Company.” The Turqui brothers ran a partnership firm known as SA Turqui and Brothers. The latter owned a house at Adabraka known as No 1 Turqui House which still lies along the Kojo Thompson Road. In June 1966 Nasib Dahabieh, the appellant herein, rented the said premises from the respondents herein for his business. It was a monthly rent, but the appellant was let in initially for five years. He renovated the premises

[p.177] of [2001-2002] 1 GLR 171 at considerable cost to suit his convenience, and without any objection from the respondents. After the appellant had been in possession for eight years, the respondents, in 1974, wrote and demanded the surrender of the premises within six months alleging that they needed the place for use in their own business. The appellant could not meet this demand and eventually the respondents took an action against Technical Trading Co in 1975, claiming recovery of the premises. That action was suit No 104/75. The respondents managed to obtain judgment in default of appearance and went into execution. In the course of the execution the appellant’s goods worth about ¢400,000 got damaged because they were not properly handled or stored.

The appellant was aggrieved. He sued the respondents at the High Court and challenged the validity of the default judgment in suit No 104/75. The reliefs he claimed against the respondents were as follows:

“(a) a declaration that the judgment obtained by the defendants in suit No 104/75 is null and void and is vitiated by fraud;

(b) an order setting aside the judgment in the said suit No 104/75 and all subsequent processes; and (c) damages.”

This was suit No 152/76 entitled Nasib Dahabieh v SA Turqui and Brothers. On 7 July 1982 Anterkyi J upheld all the appellant’s claims, holding that the default judgment in suit No 104/75 was a nullity and set it aside; he also set aside the order of possession which was decreed in favour of the respondents and proceeded to award the appellant what he described as “exemplary damages” of ¢100,000. He also awarded the appellant costs, remarking with grave disapproval that the respondents, by their “unlawful conduct of overreaching the court to grant the respective motions. . . have ruined the business of the first plaintiff from the time of the execution in February 1976 to date—a duration of more than six years.”

He then observed:

“I take into consideration the renovations he [Nasib] had made to the premises, and the accretion to them by flooring them terrazzo, and the dismantling by the defendants of the equipment of the store he had made at his own expense. As he has made no claim

[p.178] of [2001-2002] 1 GLR 171 for such expenses he is entitled to bring a separate action.”

The respondents herein appealed to the Court of Appeal but the appeal was dismissed on 21 April 1988. And apparently armed with Anterkyi J’s advice, the appellant mounted a fresh action against the respondents on 10 August 1988 in suit No 1907/88. Before pleadings could close, the appellant instituted another action on 21 March 1989 as suit No 453/89.

In suit No 1907/88, the appellant claimed general and special damages for the detention or conversion or both of the appellant’s stock in trade and furniture as a result of the wrongful execution of the writ of possession in the 1975 suit No 104/75 which Anterkyi J had declared a nullity in suit No 152/76. And in suit No 453/89 the appellant’s claim was for the ¢100,000 damages that Anterkyi J awarded against the respondents plus interest thereon.

On their part, the respondents denied all of the appellant’s claims and in suit No1907/88 counterclaimed for recovery of possession of the premises and damages for trespass. The two cases were consolidated and tried by Sapong JA (as he then was) who sat as an additional High Court judge. The learned judge dismissed the respondents’ counterclaim but gave judgment for the appellant on all his claims. The respondents appealed to the Court of Appeal which reversed the High Court. The Court of Appeal decision is reproduced hereunder as follows:

“In the result the appeal is allowed. The judgment of the trial court in respect of the Dahabieh claims against Turqui is set aside and judgment given in favour of Turqui. In respect of the counterclaim the judgment of the court below which dismissed it is hereby set aside and judgment given in favour of Turqui on his counterclaim. An order for recovery of possession of the premises is made in favour of the appellants.”

It is against this decision that the appellant has come before us. Grounds (1) and (2) were argued together to the effect that the Court of Appeal was wrong in holding that the appellant was estopped per rem judicatam from suing the respondents. We have dismissed ground (1) by looking at the evidence on the record and concluding, that the Court of Appeal was right in its decision on the issue of estoppel, and that it is impossible to allow the appellant’s appeal against that

[p.179] of [2001-2002] 1 GLR 171 decision. It is common knowledge that if a court of competent jurisdiction has tried and disposed of a case, the parties themselves and their privies cannot thereafter bring an action on the same claim or issue. This embargo covers matters actually dealt with in the previous litigation as well as those matters which properly belonged to that litigation and could have been brought up for determination but were not raised. In the 1976 suit No 152/76, the court awarded the appellant “exemplary damages” because, according to the learned judge, the respondents had “by their conduct ruined the business” of the appellant by issuing a void writ of possession in the course of which the appellant’s “items of furniture and equipment of the store, among other things, were thrown out and exposed to the elements.” The Court of Appeal upheld the award of this “exemplary damages”, describing it as “reasonable.” It was never suggested during that litigation that the respondents did detain or convert the appellant’s stock-in trade and furniture and the order of Anterkyi J merely empowered the appellant to “bring a separate action” to claim the expenses for “the renovations he had made to the premises, and the accretion to them by flooring them terrazzo, and the dismantling by the defendants of the equipment of the store he had made at his own expense.” Thus any claim which did not fall within Anterkyi J’s order must be caught by the rule of estoppel.

It is our opinion that the appellant’s claim for “damages for the detention or conversion or both of the plaintiff’s stock-in trade and furniture as a result of wrongful execution of a writ of possession” in respect of the void judgment in suit No 104/75 falls within the ambit of the rule of estoppel and that the appeal upon that ground must fail.

As already indicated above, one of the claims made by the appellant against the respondents in the High Court was for ¢100,000 damages awarded against the respondents by Anterkyi J in suit No 152/76. It is clear, however, that that amount had long been paid before the appellant commenced the present action. The appellant himself admitted this in his statement of claim when he pleaded in paragraphs (8) and (9) as follows:

“(8) The defendants through their solicitor tendered the sum of ¢100,000 without payment of interest from the date of the judgment debt as from 7 June 1982 together with the costs awarded by the Court of Appeal.

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(9) The plaintiff states that the sum of ¢100,000 paid in 1988 in satisfaction of a judgment debt since 1982 does not amount to the said debt.”

The evidence shows that after the judgment in June 1982, the respondents appealed to the Court of Appeal and it was when the appeal was dismissed in April 1988 that the respondents tendered payment. The appellant refused to accept the money and the respondents were compelled to pay it into court.

Accordingly, the respondents in their statement of defence pleaded as follows in their paragraph (2): “Paragraphs (2), (3),(4), (5), (6), (7) and (8) are admitted and the defendants say that the plaintiff rejected the amount tendered and it has since been paid into court.” The trial judge made the following finding: “The defendants say they paid into court on 6 April 1989 ¢115,000 being the judgment debt and costs. This is evidenced by exhibit 1.” He then concluded thus: “Therefore in awarding damages, I will take into consideration the amount paid into court. I do award the plaintiff ¢12 million as general damages, and ¢1 million as costs.”

This judgment of the trial judge does not suggest that he was upholding the appellant’s claim for the ¢100,000. But it cannot also be said that the claim was dismissed. The respondents’ complaint in the Court of Appeal against such a judgment was that it was not a clear judgment. It was the contention of the respondents that the trial judge ought to have made a definite and unambiguous pronouncement dismissing that claim on grounds of estoppel. They told the Court of Appeal:

“This court is invited to dismiss the claim [in suit No 453/89] on the ground that Dahabieh is estopped . . . it is submitted that Dahabieh cannot reopen the matter and pursue his claim for interest.”

Indeed, the trial High Court did not give any consideration to the appellant’s claim for the ¢100,000 with interest thereon. When the Court of Appeal was confronted with the matter, it held, rightly in my view, that that claim also was caught in the web of the estoppel principle, and accordingly dismissed it. This is what the learned lords, per Essilfie-Bondzie JA, with the others concurring, said:

“As already pointed out Anterkyi J did not award interest in suit

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No 152/76 and the Court of Appeal did not consider it relevant when it affirmed Anterkyi J’s decision in 1988. I do not think Dahabieh could reopen the matter and pursue his claim for interest subsequently in suit No 453/89. It is my judgment that Dahabieh’s claims for damages and interest in suit No 453/89 are also res judicata.”

It is true that a party may sue upon a judgment. But it is not a common process. It should be allowed only in special cases where it does not undermine and stultify the law’s concern for litigation to be brought to th an end. As we learn from Halsbury’s Laws of England (4 ed), Vol 26, para 568, even though an action will lie on a judgment which finally establishes a debt, if the judgment can be enforced by some other means, then it becomes an abuse of process to bring an action upon it. A declaratory judgment, for instance, may confer a right upon which a fresh action may be mounted; but where a judgment establishes a debt, the normal process for enforcement is by way of execution unless, perhaps, the circumstances justify a fresh action to give effect to the judgment. In the English case of Pritchet v English and Colonial Syndicate [1899] 2 QB 428, CA where the English Court of Appeal held that a garnishor could maintain an action on a garnishee order in very peculiar circumstances, Lindley MR noted at 435 that: “. . . although an action may lie, still if a person who has obtained a garnishee order brings an action upon it without any necessity he will run the risk of having it stayed as an abuse of the process of the Court, and probably have to pay the costs. It is obvious that, if the amount to be paid can be obtained by execution, but instead of that he incurs the expense of an action, that is an abuse of the process of the Court.”

In the instant case, the appellant cannot even be said to be enforcing a judgment when the judgment debt had already been fully satisfied. He was actually re-litigating the issue of damages to the properties damaged in the course of the void execution of the order of recovery of possession. We are of the view that the Court of Appeal rightly dismissed that claim, and the appeal against the dismissal must also fail.

Counsel for the appellant has argued further that the Court of Appeal was wrong in allowing the respondents’ counterclaim for recovery

[p.182] of [2001-2002] 1 GLR 171 of possession when no evidence was led to show that the respondents as landlord, had complied with the provisions of section 29 (1) of the Conveyancing Decree, 1973 (NRCD 175).

The said counterclaim was against the appellant and a company called Tetra Ghana Ltd. It was the case of the respondents that the appellant, being their tenant, had sublet the premises to Tetra Ghana Ltd without the knowledge and consent of the respondents. The appellant denied having ever sublet or otherwise parted with possession to the company as alleged, and that in the alternative, any restriction on subletting business premises was unreasonable. Tetra Ghana Ltd also denied that the premises were sublet to them, and the appellant contended that he had just changed the name of his business from Technical Trading Co to Tetra Ghana Ltd, and that there was no question of a subletting. However, these denials were proved to be false when the appellant, under cross-examination, admitted that he was only the majority shareholder in Tetra Ghana Ltd, implying that Technical Trading Co and Tetra Ghana Ltd were two separate entities; and this further meant that the appellant had parted with possession to another company as claimed by the respondents. Besides, it was established that the appellant was, as at the time he let in Tetra Ghana Ltd, only a statutory tenant holding a monthly tenancy in his personal capacity as Dahabieh, trading under the name of Technical Trading Co. We agree with the Court of Appeal that in the circumstances of this case the appellant was bound to comply with section 22(1) of the Rent Act, 1963 (Act 220). The section provides: “No person, in the case of a monthly or shorter tenancy of any premises, shall sub-let such premises without the written consent of his landlord.”

It cannot be denied that the appellant breached this provision, entitling the respondents to recover possession under section 17(1)(b) of Act 220. The Court of Appeal therefore could properly grant the respondents’ counterclaim for recovery of possession in the absence of any legal obstacle preventing it from doing so. The appellant did not raise any legal objection to the respondents’ claim before or during the trial in his pleadings or in his evidence. When the High Court dismissed the counterclaim and the respondents appealed, the appellant again did not raise any preliminary objection to the counterclaim. But in this court the appellant is now saying that the counterclaim should not have been allowed by the Court of Appeal because the respondents

[p.183] of [2001-2002] 1 GLR 171 did not show that they had complied with section 29(1) of NRCD 175. Counsel for the appellant has submitted that “In the absence of evidence of compliance [with the said section 29(1) of NRCD 175], the Court of Appeal ought to have refused Turqui’s counterclaim.” He says that compliance with section 29(1) of NRCD 175 is a condition precedent to any action for recovery of possession.

It is true section 29(1) of NRCD 175 sets a condition precedent, but whether lack of evidence regarding compliance with the requirement of notice ought to have constrained the Court of Appeal to dismiss the counterclaim is debatable in the circumstances of this case. Indeed, section 29 of NRCD 175 only sets out the process by which the right of re-entry or forfeiture shall become enforceable. The lessee must be given adequate notice and time to remedy the breach or make reasonable compensation or both. In our opinion, those provisions are procedural only, and whether or not they have been complied with in any given case is a question of fact rather than law to be determined on the evidence. The point must be raised at the earliest opportunity. In a suit tried before the High Court the issue of non-compliance should have been raised on the pleadings or at any rate, at least, before the trial court. As we have already pointed out in this judgment, the appellant did not raise this issue of non-compliance before the High Court or in the Court of Appeal. He is raising it for the first time in this appeal, and the question is whether it can avail him.

Our courts have resolved the matter in several decisions. Take, for example, the case of Oman Ghana Trust Holdings Ltd v Acquah [1984-86] 1 GLR 198, CA. In that case, just as in the present one before us, an appeal from the judgment of the High Court which denied the respondent’s claim for recovery of possession of his house was allowed by the Court of Appeal. Because of the hardship and inconvenience he had suffered for five years by being kept out of possession, he was declared entitled to immediate possession, and got the possession a day after the order. The tenants appealed against the judgment of the Court of Appeal to the Supreme Court and applied for a stay of execution. In support of that application, the applicants contended that since they were statutory tenants and yet the respondent failed to give them notice to quit before applying for the order of possession, and also failed to give notice to the rent officer of his intention to apply for possession as required by the Rent Regulations, 1964 (LI 369) the order granting

[p.184] of [2001-2002] 1 GLR 171 possession to the respondent was incompetent. The Court of Appeal, in dismissing the application, held, as stated in the headnote, in holding (1) as follows:

“Whether [the respondent] gave the applicants notice before commmencing action or if he gave the rent officer the information required by regulation 18 of the Rent Regulations … were factual questions determinable on the evidence. No issue was made of those points in the court below and it was only a matter for speculation whether those statutory requirements were met. Had the applicants who now sought to make an issue of them done so in the court below, the judge would have pronounced upon them in his determination of the factual questions. It would come as a surprise to the respondent if a decision adverse to him were reached in the Court of Appeal on those factual issues on which he was not required to make an explanation in the trial court. It was therefore too late to raise those issues.”

See also the case of Alameddine Brothers v Paterson Zochonis and Co Ltd [1971] 2 GLR 403, CA.

The statutory authority behind these decisions appears to be Order 19 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) which we must not gloss over. It deals with pleading generally. Rules 15 and 16 of Order 19 of LN 140A are relevant here. They provide as follows:

“(15) Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or the defendant (as the case may be); and, subject thereto an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.

(16) The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or Statute of Frauds.”

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Under, and by virtue of these rules, non-compliance with the requirement of notice by NRCD 175 ought to have been specifically pleaded by the appellant if he had intended to rely on it; or at least he ought to have pleaded such facts as would indicate an intention to rely on it. It is wrong for the appellant now to invite argument on that issue when the respondents were not given the opportunity to meet that defence at the trial: see Bassil v Kabbara [1966] GLR 102, SC; Fan Milk Ltd v State Shipping Corporation [1971] 1 GLR 238 and Miller v Attorney-General [1975] 2 GLR 31.

Two exceptions have been noted in respect of the application of the rules. They are:

(a) Where the matter complained of amounts to an illegality per se: see Bassil v Kabbara (supra).

(b) Where there is no element of surprise: see Asare v Brobbey [1971] 2 GLR 331, CA.

The appellant’s counsel has contended that the non-compliance is a matter of law which the trial court, suo motu, was bound to address even though it was not specifically pleaded. But the law is settled that where the issue raised amounts to an illegality per se, none of the parties can invoke the aid of the court, and the court itself must take cognisance of the illegality. But if the default does not create an illegality and may only render the process unenforceable in law, a party adversely affected by it may elect to waive it. In the instant appeal, the non-compliance complained of does not belong to the category of cases creating an illegality and the appellant, not having any objection to the counterclaim at the trial, must be deemed to have consciously waived his right to object. The cases cited by counsel for the appellant have no application in this case.

Finally, the appellant’s last contention is that the Court of Appeal ought to have suspended the order for recovery of possession. That argument was not seriously pressed apparently as there is not much merit in it, and it could as well have been abandoned.

As a result, the appeal must fail on all grounds and it is accordingly dismissed.

Appeal dismissed.

DRKS