OKOHARYEE & 2 OTHERS VRS OKAI I & 4 OTHERS (H1/130/20) [2022] GHACA 117 (12 May 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: - SENYO DZAMEFE, J. A, (PRESIDING) MERLEY WOOD, J. A ERIC BAAH, J. A Civil Appeal Suit No: H1/130/20 12TH May, 2022 1. NII TETTEY OKOHARYEE 2. DAVIES ARMAH ARYEE 3. PETER COMMEY 4. BOYE TAWIAH - DEFENDANTS/APPELLANTS AND 1. NII GAMU OSMANU TACKIE OKAI I 2. NAMO EEN FARMS LTD 3. AWUKU AGBESSHIE 4. AMADU BOLLE 5. ALHAJI SOMMO BOLI LANDS COMMISSION ======================================================= 1ST PLAINITFF/RESP. 2ND PLAINTIFF/RESP 3RD PLAINTIFF/RESP 1ST DEFENDANT - 4TH PLAINTIFF/RESP 5TH PLAINTIFF/RESP ======================================================= DZAMEFE, JA JUDGMENT The plaintiff/respondent hereinafter referred to as the plaintiffs issued this writ of summons against the defendant/appellant, also referred to as the defendants jointly and severally for the following claims;- a. A declaration of title to ALL THAT PIECE OR PARCEL of land situate and lying and being at Danchira in the Ga South District of Accra in the Greater Accra Region an bounded on the North West by Honi Stream measuring 10,200 feet more or less, on the North West by Manhia, Ashalaja and Afuaman lands measuring 51,7000 Page 1 of 21 feet more or less, on the East by Joma and Densu river and Kwame Amu’s land measuring 10,300 feet more or less, on the South by Benyibe Pond, Amanfro and Domeaba lands measuring 17,500 feet more or less and on the South West by Amanfro lands measuring 3,500 feet more or less and containing an approximate area of 13, 774 acres more or less. b. A declaration that there is no subsisting Judgment by any court of competent jurisdiction in Ghana which has declared title to the plaintiff’s’ land in favour of the 2nd to 5th defendants. c. A further declaration that the High court Judgment in Suit No. L/22/07 did not grant the four composite family title to the plaintiff’s land described in reliefs (a) therein. d. A further declaration that the defendants or their so-called four composite family has not been in any litigation in Court with the 2nd to 5th plaintiff and has not obtained any judgment against the said 2nd to 5th plaintiffs the land of which the 2nd to 5th plaintiffs have been in possession over decades. e. A further declaration that the Land Certificate No. GA 51333 having been obtained by fraud, mistake and/or non-compliance with law renders same void. f. Recovery of possession of any portion of the plaintiff’s land as described from the 2nd to 5th defendants their assigns and all those claiming through them or the so- called four composite family who have forcefully entered portions of plaintiff’s’ land described in reliefs (a) hereof on the basis of the void Title Certificate Page 2 of 21 No. GA513333A therein referred to as 10,396 acres being a portion of plaintiffs land. g. An order upon the 1st defendant to bring up for cancellation by the court the Land Certificate No. GA 51333. h. A further order upon the 1st defendant to cause to be expunged from the records of all its relevant divisions whose acts of illegality facilitated the purported issuance of the Land Certificate No. GA51333, in addition to any transaction or information in the records of the said division of the 1st defendant that the so-called composite family are owners of a portion of plaintiff’s land as described; when they knew or ought to have known that the representation on the basis of which the purported land certificate was issued is false. i. Damages for trespass j. Perpetual injunction restraining the 2nd to 5th Defendants their assigns, agents, representatives all those claiming through their or howsoever described from further interference with the plaintiff’s’ quiet enjoyment of their constitutionally guaranteed right to ownership of plaintiff’s’ land described in relief (a) hereof. The plaintiffs in their statement of claim averred that the 1st plaintiff is the head of the Nii Djan Bi Amu family of Danchira in the Ga South District of the Greater Accra Region and brings this action on his behalf and on behalf of the said family in respect of land described in their statement of claim, paragraph 5. 1st plaintiff averred that the 2nd -5th plaintiffs are lessees of the 1st plaintiff family who acquired interest in the title to various Page 3 of 21 portions of the land, the subject matter of the instant suit and for many years been in active undisturbed possession of same. He averred further that the 2nd, 3rd, 4th and 5th defendant are residents of Accra who collectively are falsely purporting to have title to a portion of plaintiff’s family land described below;- “The plaintiff avers that the Djan Bi Amu family is the owner in title of a large expanse of land acquired by his great grand ancestors who established the Djan Bi Amu family being the original settler of the said land ad having established a whole community and called same Danchira which expanse of land falls under the administrative municipality of GA South, in the Greater Accra Region of the Republic of Ghana and more particularly described as ALL THAT PIECE OR PARCEL of land situate lying and being in DANCHIRA in the Ga South District of Accra in the Greater Accra Region and bounded on the North West by Honi Stream measuring 10,200 feet more or less, on the North West by Manhia, Ashalaja and Afuaman lands measuring 51, 700 feet more or less, on the East by Joma and Densu river and Kwame Amu’s land measuring 10,300 feet more or less, on the South by Benyibe Pond, Amanfro and Domeaba lands measuring 17,500 feet more or less and on the South West by Amanfro lands measuring 3,500 feet more or less ad containing an approximate area of 13,774 acres more or less”. The first plaintiff claim that their family, their original ancestors were the first to settle on the said land and engaged in farming, hunting and trading activities since the 16th Century AD. He averred further that their interest in and title to the said land has been affirmed in the following cases;- “1st plaintiff avers further that its interests in and title the said land have been affirmed in the following cases;- Page 4 of 21 (a) Quarmin Ammu vrs. Henry Solomon of James Town on 18th March, 1890. (b) SUIT NO. BL/486/2007 Nii Lamptey Lamptey Vrs. 1. R. O. Lamptey 2. Nii Teiko Okai, F. K. Company (decided on 28th October, 2016) (c)CIVIL APPEAL NO. J4/59/2013 Nii Tackie Amoah VI Vrs Nii Armah Okine 7 Ors (d) SUIT NO. AL/721/2012 F. K. A Company Vrs 1. Peter Cofie 2. Paul Cofie 3. Nii Kofi Lante (e) CIVIL APPEAL NO. H1/234/2015” Nii Armarkai III, Asere Dzasetse & Acting Mantse Vrs. Nii Teiko Okai Substituted by Nii Tackie Amoah Page 5 of 21 He mentioned the size of the land, the subject matter as 13,774 acres. 1st plaintiff said by a statutory declaration dated 23rd July 1976 and stamped as 2657/76, had its interest and title to the land affirmed by the registration of same as No. 2572/1976. That the family has over the years alienated portions of the land to various persons including the 2nd to 5th plaintiffs herein and also to FKA Company Limited. (See Paragraph 10 ROA). It is the case of the 1st plaintiff that the defendants, who claim to hail from the Asere community in Accra have in recent times established a brigade which has engaged in various acts of trespass and interference with plaintiff’s interest and title the said land. These acts by the defendants caused FKA Company limited to commence a suit in the High Court, Accra entitled;- 1. FKA COMP LTD 2. NII TEIKO OKAI VRS 1. NII AYIKAI AKRAMAH 2. DODOO LOMOTEY 3. TOGU OKPU 4. EBENEZER OKRU with Suit No. Al/22/07 The 1st plaintiff said on 1st February 2010, His Lordship Tanko J (As he then was) delivered judgment in the said suit in which the defendants therein were granted recovery of possession but refused the relief for a declaration of title to the land to a so-called “Four composite family” instead of the defendants, on the established ground that they failed to describe the land positively contrary to the established principles of law. This judgment was however appealed by the plaintiffs to the Court of Appeal and also by the defendants therein to the Supreme Court. Page 6 of 21 The 1st plaintiff also alleged fraud against the “so called four composite family” and stated the particulars of fraud. The 1st plaintiff says further that the Asere stool has also joined a party to a suit before the High Court, Accra entitled FKA COMPANY LTD & ORS VRS NII TETTEY ARYEE & ORS, SUIT NO. LD/1243/16 In this case the said Asere Stool was challenging the capacity of the so called composite family regarding their claim to ownership of the land in dispute as the stool has asserted that the so-called four composite family has no interest in or title to the land which is the same as the subject matter of the instant suit. The 1st plaintiff averred also that their checks at the Lands Commission revealed they had issued Tittle Certificate to the so called Four composite family purporting to grant them title to the plaintiffs land. He states that the defendants will persist in their acts of perpetration of illegality including using the police to interfere with plaintiff’s right to ownership of the land described herein unless compelled by the Court. The 2nd to 5th defendants entered appearance on 10th April 2018 per Counsel Nii Akwei Bruce-Thompson Esq and filed their statment of defence dated 23rd day of April 2018. In their statement of defence, they averred that the issue of ownership of Danchira Lands between the Djan Bi Amoo family and the four composite families of Danchira has been settled by the High Court and affirmed by the Supreme Court that Danchira Lands are owned by the four composite families of Sawerpramano, Juaben, Amaafo and Kubeshishi and this suit is caught not only by estoppel per res judicata but is also an abuse of the process of the court. That the Four composite families have been found owners of Danchira Lands so they have the right to register their ownership. Page 7 of 21 Counsel for the 2nd and 55th defendants on 22nd May 2018 filed a motion on notice to dismiss the suit on grounds of Res judicata, frivolous and vexatious and abuse of the process of the court. In his affidavit in support of the motion, he stated that the 1st plaintiff and its grantee FKA Co Ltd sued members and grantees of the four composite families of Danchira of which the 2nd to 5th defendants are the current heads and Dzasatse respectively. That the main issue for trial in that suit was which of the two grantors i.e., Djan Bi Amu, the plaintiff therein’s grantor or the four composite families owned Danchira. Counsel averred that the High court in this judgment delivered on 1st February 2010 found and held that Danchira is owned by the four composite families – copy attached as exhibit “A”. That the judgment aforesaid was affirmed by the Supreme Court which reiterated that Danchira Lands are owned by the four composite families – Exhibit “B”. He averred further that this judgment of the Supreme Court was affirmed in its review decision dated 25th July 2016 – Exhibit “C”. Counsel said in 2016, FKA Co Ltd, a grantee of the 1st plaintiff filed a fresh writ to set aside the earlier judgment for fraud and an application was filed to dismiss that suit on grounds of estoppel per res judicata, abuse of process and frivolous and vexatious and the High Court held that the suit was caught by estoppel per re jduicata – exhibit “E”. It is his contention that this particular suit is caught by estopel per res judicata, abuse of the process frivolous and vexatious and must be dismissed in Limine. The plaintiff/respondent in their response to the motion said they are vehemently opposed to the application as being without merit. It is the respondent’s contention that no court has pronounced or declared title to the land covering an approximate area of 13,774 acres the subject matter by this suit. Page 8 of 21 Counsel submits that the parties in Suit No. AL 22/2007 did not put before the court the issues that have been raised in the plaintiff/respondent’s suit save the counterclaim by the defendants in Suit No. AL22/2007 for a declaration of title which was dismissed by the trial court and affirmed by the Supreme Court, so the question of Estoppel per Res judicata does not arise where the plaintiffs sued in respect of 200 acres only – [page 190 ROA] It is his submission that estoppel per rem judciatam is of two kinds, namely, cause of action estoppel and issue estoppel. Where a judgment is pleaded as operating an estoppel, the court must as a preliminary point decide on the kind of estoppel in order to avoid confusion. He said the rule prevents a person from bringing an action where the cause of his claim or the issue he seeks to have determined has as between the parties, have been disposed of by a court of competent jurisdiction. Counsel referred this court to the case of Foli vrs Agya-Atta (Consolidated) [1976] 1 GLR 194. It is the contention the respondents that the plaintiffs herein have sued by a writ of summons, claiming, inter alia, a declaration of title to all that piece of land measuring an approximate area of about 13,773 acres which is distinct from the reliefs sought by the plaintiff thereto in suit number AL22/2007 entitled FKA LTD & Anor vrs Nii Ayikai Ankamah II & 4 Ors were;- 1. Declaration of title to all that piece or parcel of land described in the schedule to the statement of claim. 2. Damages of Gh¢300,000,000.00 against the Defendants jointly ad severally for interfering with plaintiffs rights of possession of the land. Page 9 of 21 3. Perpetual injunction restraining the defendants, their agents, assigns and workmen from interfering or dealing with plaintiff’s land in any manner detrimental to plaintiff’s interest. That the defendants having entered appearance in Suit No. AL/22/2007 and filed all other process including a counterclaim for declaration of title to land, the subject matter of the suit thereto, the parties thereto went through a full trial. The counterclaim of the defendants for declaration title was dismissed by the trial court and upheld by the Supreme Court when the matter went on appeal. Counsel said the issue of declaration of title to the lands in this current suit, has not been pronounced upon by any court in Ghana and that in Suit NO. AL22/2007 only 200 acres granted the 1st plaintiff was in issue at the time, and trespass to same, occasioned the suit thereto. Counsel submits that the judgment the 2nd to 5th defendants applicants are relying on cannot give rise to any estoppel per Res judicata against the plaintiff/respondents herein as the subject matter in this suit is distinct and not the same and has not been pronounced upon by any court after considering the totality of the various judgments that the 2nd to 5th defendant/applicants seek to rely on. They pray the defendants’ application to dismiss suit be refused as misconceived to enable the court to hear this matter on its merit and determine all issues that may arise out of the suit in the interest of justice and fairness. RULING The learned trial High Court judge in his evaluation of the affidavit evidence before him stated that the reliefs indorsed in the suit before him described the land in issue as 13,744 acres, different from the acreage stated in the earlier action. Page 10 of 21 The applicant herein, in that suit counterclaimed from 13,913 acres, but lost the decision on declaration of title to that acreage as shown in the Supreme Court judgment and the other exhibits on record and only had possessory title decreed in their favour. The High Court said “On the evidence adduced it is not clear, whether Danchira land as described is exactly the 13,913 claimed by applicant is the same as 13,744 in the fresh writ”. The trial judge found that whilst it was easy to conclude that possessory title has been declared in the applicants favor over land, the subject matter of the first Suit AL/22/2007, just as the issue of fraud raised therein, it is not clear whether the issue of declaration of title to 13,744 acres of land that respondent has indorsed in the fresh suit as land which is bigger and different from the subject matter of the earlier litigation has been dealt with to finality- [page 214 ROA]. The trial High Court judge in conclusion delivered himself thus; - “Given the nature of claims indorsed in this fresh action, it will be premature to drive away the plaintiff/respondent from the judgment seat. I hold that this case which pleadings must be filed and issues settled, so that at the stage of directions, the grounds of objection raised could be better determined”. The court then dismissed the application. NOTICE OF APPEAL The applicant dissatisfied with the ruling launched this appeal on the following grounds;- a. The ruling is against the weight of the affidavit evidence. Page 11 of 21 b. The learned High Court judge erred in law in refusing to dismiss the suit in limine on grounds of res judicata, frivolous and vexatious and an abuse of the process of the court. c. Further grounds of appeal will be filed on receipt of the record. The relief sought is to set aside the decision of the High Court dated 5th April 2019 and dismiss the suit on grounds of res judiciata, frivolous and vexatious and an abuse of the process of the court. SUBMISSIONS Counsel for the appellant submits that in Suit No. AL22/2007 titled FKA Co Ltd & Anor vrs Nii Ayikai Ankramah II and Ors, the trial court per Tanko J (as he then was) on the issue “whether or not Danchira lands are owned by the four composite families namely Sawrpramano, Kubeshishii Amanfo & Juaben” found for the four composite families on the issue of ownership of Danchira Lands as between the two grantor families i.e. Djan Bi Amoo or the four composite families. The trial Judge (Tanko J) in the judgment held “I hold that the 4th and 5th defendants or any person claiming through the 1st defendant’s composite families are not liable for trespass as alleged.” Counsel said the Supreme Court affirmed this decision of the High Court in its judgment – Exhibit ‘B’. The Supreme Court delivered itself thus:- “By the claims of the 1st defendant and the other defendants in their counterclaim and per the evidence led in support of their claims, the same supports the conclusion arrived by the trial Judge that the Danchira lands are owned by a composite of four families of Asere lineage.” Page 12 of 21 Counsel submits that judgment of the Supreme Court operates as an estoppel against the Djan Bi Amoo family. This is so because the High Court found for the four composite families and this was affirmed by the Supreme Court. Counsel submits further that the issue of ownership of Danchira lands or any portion of it between the Djan Bi Amoo family and the four composite families have thus been resolved in favour of the four composite families and this operates as an issue estoppel and the learned trial Judge in the instant suit had no discretion in the matter and was wrong in the ruling he gave. It is his contention that the main relief of the plaintiff, is seeking declaration to title to Danchira lands having been determined by Tanko Amadu, J. as an issue and confirmed by the Supreme Court, the same operates as an issue estoppel and cannot be re-litigated by the parties and or their privies. Counsel said issue estoppel operates when a court of competent jurisdiction pronounces on an issue before the court and it bars the parties and their privies from questioning in future litigation, the finding on the issue. Counsel contends further that the Djan Bi Amoo family cannot trace any interest in Danchira land for which it could maintain this action and the trial Judge should have granted the application to dismiss the suit. Counsel for the respondents in answer to the applicant’s submission submits that “the law, as I understand it, is this; if one party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then as a general rule, neither party can be allowed to fight that issue all over again.” But this again is not an inflexible rule. Counsel referred this court to the case of;- Page 13 of 21 - Botchway & Anor. vrs. Daniels & Ors. [1991] 2 GLR 202 pg. 272, Kpegah. J. Counsel contends that the trial High Court Judge did not entirely shut the door of opportunity from the appellants to raise whatever concerns they have on the issue of res judicata. The court only reasoned that the application was premature as there were discrepancies as to the size of the land claimed in the instant suit and the earlier one upon which the appellants seek to found the issue of estoppel. It is his contention that in any case, the management of court processes and proceedings are clearly within the province of the Judge. That it is not the duty of litigants to dictate to the courts as to how a case would proceed. Counsel said the trial judge in this suit indicated the reasoning behind his refusal of the application as premature. Counsel contends that there has been no final judgment between the appellant and the respondents herein or their privies with regards to the most critical fundamental issue of the ownership of the lands claimed by respondent in the instant suit and most especially declaration of title concerning the Danchira lands as the appellant seem to foist on this court. Counsel said the case the appellants seek to rely on, i.e. Suit No. A2/22/07, as declaring ownership of Danchira lands in the four composite families is being misinterpreted since both the trial court and the Supreme Court never made any declaration of title save the possessory declared is the respondents. That Tanko, J. (as he then was) never granted the defendants’ counterclaim for declaration of title for want of appropriate description and positive identification of the parcel described in the counterclaim and also failure to tender a properly oriented plan drawn to scale. He however granted the second counterclaim for recovery of possession for the plaintiff and the co-plaintiff of any portion of Danchira lands, their possession being merely trespassory and not recognized by law. Page 14 of 21 Counsel said the Supreme Court at the tail end of its judgment said “In the overall, save for the findings affirmed, we allow the appeal against the decision of the Court of Appeal. To the extent we affirm the conclusion and decisions of the trial court”. (Tanko, J.) Counsel submits that reading the decisions of the High Court and the Supreme Court, the issue as to the certainty of the owners in title of Danchira lands is still at large as such the utility of the present suit cannot be said to be vexatious and abuse of the court process. It is in pursuit of seeking a finality to this unsettled issue of declaration of title in the ownership of the Danchira lands that the present suit was instituted. It can therefore not be described as frivolous, vexatious or an abuse of the court process. Based on these arguments, counsel prayed the instant appeal be dismissed. The doctrine of estoppel is founded on the principle that litigation should not be protracted, early disposal of cases is a matter of concern to the State hence the maxim “interest reipublicae ut sit finis litum” which means – it concerns the State that law suits are not protracted. See:- Togbe Gobo Darke XII (Chief of Tsito Awudome) vs. Togbe Ayim Mordey VI (Chief of Peki Avertile) [2019] DLSC 7844 per Dordzie, JSC Estoppel per rem judicatam is of two kinds, namely cause of action estoppel and issue estoppel. Where a judgment is pleaded as operating as an estoppel, the court must as a preliminary point decide on the kind of estoppel in order to avoid confusion. - Poku vs. Frimpong [1972] 1 GLR 230, at 234 (CA). It has been held that the rule prevents a person from bringing an action where the cause of his claim or the issue he seeks to have determined has, as between the parties, been disposed off by a competent court. Such action is described as “res judicata” i.e. that the Page 15 of 21 matter has already been decided. – Trial Courts and Tribunal of Ghana, Justice Brobbey pg. 296 Generally, for the doctrine to operate, these conditions must be present:- i. ii. iii. iv. v. The subject matter of the second suit must be same as the first suit. The parties and privies must be same The case must be judged by a court of competent jurisdiction And must give it finality i.e. there must be a final judgment Must be pleaded In all cases, the subject matter relied on in the earlier suit must be identical with the subject matter of the suit in dispute – Cobblah vs. Okraku [1961] GLR 679. Where a claim in an earlier action is different from the claim in the second suit, the first action cannot give rise to an estoppel. See Republic vs. Commission of Local Government, Ex parte Nii Amer II [1975] 2 GLR 122 It is pertinent to note that a judgment on a writ in trespass founded on possession cannot bar a subsequent court suit claiming title or ownership – Sam v. Noah [1987/8] 2 GLR 213 CA It is trite law that a judgment given in respect of a larger area operates as estoppel in a subsequent issue involving a portion of the larger whole but not the other way round. This is so because where a judgment has been given over a specific area of land, it is only in respect of a claim within that area the judgment will operate as estoppel per rem judicata. It cannot be invoked to operate as estoppel in respect of a claim outside that area. See:- i. Robertson vs. Reindorf [1971] 2 GLR 289 Page 16 of 21 ii. Okoe vs. Horhomeno III [1987/8] 1 GLR 434 SC From the twin principle of abuse of process and res judicata principles to operate against a party, it must be established without any shadow of doubt that the party against whom the principle is invoked must have actively engaged in the previous suits or used persons who fronted for them; the subject matter must be the same and the capacity in which they were sued or sue be the same. See - Board of Governors, Achimota School vs. Nii Ako Nortei II etc [2020] DLSC 8802 per Dotse, JSC By the rules of civil procedure, res judicata has to be pleaded and proved. For the proper invocation of the doctrine, these elements must exist. As said earlier in this judgment there must be an earlier decision on the issue, a final judgment on the merits and the involvement of the same parties or parties in privity with the original parties. A person pleading estoppel as a defence cannot enter conditional appearance and apply to set the writ aside on the ground that the plaintiff has not got a cause of action. The defendant in such a case may enter appearance alone or file a statement of defence and move the court under Order II R 18(1) (b) and (d) that the writ is either frivolous or vexatious, or that it constitutes an abuse of the process of the court or both, or he may invoke the inherent jurisdiction of the court to strike out the plaintiffs pleadings. The defendant also may apply at the application for directions stage to set the case down for legal arguments or may go for a full trial and tender the whole proceedings of the earlier suit in evidence. The approach to adopt may depend on the nature of the pleadings. Order II r. 18 states: Striking out pleadings: 18(1) Page 17 of 21 1. The court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that a. It discloses no reasonable cause of action or defence, or b. It is scandalous, frivolous or vexatious or c. It may prejudice, embarrass, or delay the fair trial of the action, or d. It is otherwise an abuse of the process of the court, and may order the action to be stayed or dismissed or judgment to be entered accordingly. 2. No evidence whatsoever shall be admissible on an application under sub rule (1) (a) In the instant appeal, the trial High Court Judge in his ruling said the relief indorsed in the fresh suit before him by the respondents herein, described the land in issue as 13,744 acres while the applicant herein in his counterclaim, in the earlier suit, claimed for 13,913 acres. – pg. 212 ROA. The trial Judge continued that on the evidence adduced, it is not clear, whether Danchira lands as described is exactly 13,913 acres as claimed by the applicant is the same as 13,744 acres in the fresh suit before him. He said it is not clear whether the issue of declaration of title to 13,744 acres of land that the respondent has indorsed in the fresh suit as land which is bigger and different from the subject matter of the earlier litigation has been dealt with, to finality – [pg. 214 ROA] The trial Judge said that the question of how to establish res judicata does not suggest that as a rule there must always be a trial, in which the judgment should be tendered because there are cases in which the facts clearly point to those features. However, there are also cases in which adduction of evidence would be the most appropriate way to determine those features. Yet in some cases, it may be that when pleadings are closed Page 18 of 21 and at the stage of Application for Direction, these features could be better ascertained even based on legal arguments as provided for in Order 33 r 3 (3) of C. I. 47. The trial judge went on to deliver himself thus:- “Given the nature of the claims indorsed in this fresh action, it will be premature to drive away the plaintiff/respondent from the judgment seat. I hold that this is a case in which pleadings must be filed and issues settled, so that at the stage of Direction, the grounds of objection could be better determined.” Application was dismissed. In the instant appeal, the appellant entered appearance at the High Court and then filed a motion for the case to be dismissed based on the principle of res judicata. Order II r 18 on striking out pleadings states in rule (1) state;- “that the court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds as stated earlier. The wording“may at any stage of the proceedings” gives the trial court some discretion as to the stage at which to invoke the principle. It could be at the close of pleadings, application for directions or even after close of trial.” It is incumbent upon the trial court to make sure all the facts are properly set out and all the features required for the invocation of the doctrine clearly established before it dismisses out the matter. In the instant case, the applicant applied for the case to be dismissed on grounds of res judicata just after he filed his statement of defence and tendered those judgments to that effect. The plaintiff therein was not even given the chance to reply to the defence filed to respond to what the defendant alleges before the motion for his writ to be dismissed. To this, the trial High Court Judge said will be unfair to the plaintiff. The Judge said it will Page 19 of 21 be premature at that stage to invoke the doctrine of res judicata to dismiss the plaintiff’s case. The court said the size of the land, the subject matter in the two suits differ. We agree with the trial High Court Judge that it will be unfair to dismiss the plaintiff’s case at that stage since it is premature as he said. Order II r 18 gives the court the discretion to decide when to invoke the doctrine. It says “at any stage”. Therefore, if the court decides to do so at a later stage, so as to be sure of all the facts and issues, before it does not amount to an error. The court even has the power to set down the issue as a preliminary legal issue to be determined by legal arguments or go full trial. We do not see any error on the side of the trial Judge. He exercised his discretion fairly by giving his reasons why he thinks it was premature to grant the application at that state of the trial. We do not see any merit in this appeal. The trial High Court Judge never erred in his ruling on the application. The appeal is therefore dismissed. We hereby order that the case be returned to the High Court for continuation. SGD SENYO DZAMEFE (JUSTICE OF APPEAL) SGD MERLEY WOOD (JUSTICE OF APPEAL) SGD ERIC BAAH (JUSTICE OF APPEAL) Page 20 of 21 COUNSEL NII ACQUAYE BRUCE THOMPSON WITH EBENEZER AIKU FOR DEFENDANT/APPELLANT GORDON KOMLA ATSYOR FOR PLAINTFF/RESPONDENTS Page 21 of 21