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AKWEI v. AKWEI


  • New
  • 1961-04-25
  • HIGH COURT
  • GLR 212-217
  • Print

OLLENNU J.


Summary

Practice?-Vacating judgment by consent.Practice?-Review?-Whether a stranger to a judgment can apply for a review?-Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140/1954) Order 39.

Headnotes

Sometime in 1953 a house belonging to one Isaac Akwei was sold by public auction and bought by Alexandra Akwei, plaintiff herein, for G466. Almost immediately after the sale the defendant, jointly with other relations, instituted action against the plaintiff and the applicant claiming a declaration that the house is family property, that the non-payment of the rate, which led to the sale of the premises and the purchase thereof by the plaintiff, were the result of collusion and fraudulent arrangement between the applicant and his daughter, the plaintiff. The defendant and his said relations lost the suit, the court holding that at the date of its sale the house was the individual property of the applicant, Isaac Akwei by devise, and that the right, title and interest of the applicant Isaac Akwei in it having been sold, the plaintiff acquired a good title and is the owner. The judgment in the case was delivered by Acolatse, J., sitting in the Land Court on the 20th April, 1959.The defendant, uncle to the plaintiff, lived in the house before the sale. He refused to attorn tenant to the plaintiff. In 1960, the plaintiff instituted the present action claiming G100 damages for trespass, ejectment and mesne profits. The dispute between the parties was submitted to arbitration before Nii Tetteh Kpeshie II, Sempe Mantse, and his elders. Isaac Akwei, though not a party to the suit took an active part in the arbitration proceedings. The arbitration award, published on the 15th August, 1960 was submitted to the court on the 22nd September 1960. It was embodied in a consent judgment dated the 4th April, 1961 to the effect that plaintiff agrees that the defendant and the Akwei family buy in the property by refunding to her the purchase price of G466 plus G52 10s. as consideration for allowing them to buy the property back, and that upon the defendant paying the total sum of G518 10s. the property "should revert to its former status as property of the Akwei family" The money was paid.Isaac Akwei applied for a review of the consent judgment, asking that the words "should revert to its former status as property of the Akwei family" be deleted therefrom, on the ground that the property has never been family property; it was his private property before the sale, a fact which had been further settled by the judgment of Acolatse, J. on the 20th April, 1959.

Judgement

APPLICATION by Isaac Akwei, father of the plaintiff and a complete stranger to the action, for a review of a judgment given by consent of the plaintiff and defendant.

[His lordship stated the facts and continued:] The grounds for the review is that the judgment of Acolatse J. delivered on the 20th April, 1959, had declared that the applicant Isaac Akwei was the owner of the property immediately prior to the sale, and therefore the arbitrators had no jurisdiction to arbitrate on the ownership of the property after the judgment of the court, and in any event, that the applicant, not being a party to the suit herein, the arbitrators and consequently this court are not entitled to make an order in respect of the property which affects the rights of the applicant Isaac Akwei in the property.

The submission is misconceived. In the first place, if the applicant was the individual owner of the house immediately prior to its sale, then upon the sale the validity of which he maintained, the whole of his right, title and interest in it passed to plaintiff; he has no longer any interest in the said property. He is therefore estopped by reason of the said judgment of Acolatse,J. from now asserting any interest whatsoever in the house. All that remained to him after the sale, was the difference between the purchase price of 466 and the 16 0s. 2d. the amount of rates due and for which the house was sold, and this he must have collected already from the court whence the execution issued.

Again by reason of the judgment of Acolatse,J. upon which the applicant relies, the plaintiff Alexandra Akwei was the owner of the house at the date the present suit was instituted; as such owner she is entitled, in spite of that judgment, to submit the dispute to arbitration and she is in law, bound by the award of that arbitration.

If after a court of competent jurisdiction had adjudicated upon a dispute between parties, the parties voluntarily submitted the dispute in respect of the same subject-matter to arbitration, they will be estopped from claiming the fruits or benefits of the said judgment of the court, and would be bound by the award of the arbitration held subsequent to that judgment. In the case of Yardom v. Minta III a consent order was entered by the High Court in a suit between the parties on a boundary dispute. Some time after that the parties submitted a dispute between them in respect of the same boundary to arbitration held in accordance with customary law. Later they again submitted a further dispute to arbitration. [p.214] The plaintiff then sued in the High Court to enforce the second award and obtained judgment, Hall J. holding that the parties were bound by the award of the arbitration. On appeal to the Full Court, although Gardiner Smith,J. disagreed with his brother judges that the proceeding constituted a valid arbitration, he and his brother judges were unanimous that once a valid arbitration by customary law was held subsequent to the judgment of the court, the parties were bound by the award and were estopped from claiming rights under the judgment. In the course of his dissenting judgment, Gardiner Smith, J. said:

"I accept the findings of the learned trial Judge, in his careful analysis of the evidence, that there were submissions to arbitrators in 1961 or 1921. The only question which I have to consider is as to the effect of the two awards upon the judgment of 8th May, 1911, a question to which the learned Judge has not addressed himself.

"In the first place, the judgment of 8th May, 1911, not having been reversed, appealed from, or set aside, it is clear that it still stands of full force and effect. The question is whether the appellant has, by his acts, prevented himself from availing himself of it. I agree that it was competent for the appellant, if he wished, to alter the position created by the judgment of 1911, by a subsequent submission to arbitration, according to native custom, and that the award in such an arbitration would be effective, if it were proved to be final and binding."

Howes, J., said:

"This judgment by consent is a contract of record, which contract is technically of the highest nature of all contracts. Even so, regarded in the light of a contract, a judgment does no more than give, to one party, rights of the strongest possible character against the other party. Having obtained a judgment, there is no power in anyone to compel the successful party to avail himself of the benefits or fruits of his judgment. The effect of a judgment, in a case relating to land (as the present case is), is to transfer, from one party to the other, certain rights over that land. Having acquired such rights, I am unable to see why the successful party cannot afterwards, by agreement or otherwise, deal with them in any manner he pleases . . . I am unable to find any authority or principle of law which will prevent parties from entering into a new agreement to vary the terms of such contract. Whilst such new agreement will not set aside the judgment, if subsequently thereto, the successful party attempted to enforce his judgment, in my opinion, the doctrine of estoppel in pais would come in, and in equity no Court would give effect to the judgment, the terms of which the successful party has voluntarily and by his conduct varied; as he would be perfectly entitled to do in the case of any other contract".

and Smyly C.J. said:

"It is obvious that, where the mutual rights of two parties have been adjudicated on by a Court of Law, it is not open to one of the parties to go to a Court of co-ordinate jurisdiction and re-open the whole matter, unless on the allegation of fraud etc.; but I know of no law which would prevent the parties, by mutual consent, or as the result of arbitration, substituting some other and possibly some more satisfactory arrangement for that contained in the judgment; for instance if 'A' obtained a declaration of title to land against 'B', I know of no law which would prevent 'A' subsequently selling the land to 'B'. Even under the Arbitration Act, it is stated in Russel on Arbitration and Awards, 11th Edition, page 5 that

'There is no doubt that the parties to a judgment may refer to arbitration the question whether the judgment has been properly obtained, whether it is void, or even whether it is erroneous, and an award might be made that such judgment should be released or satisfied". [p.215]

The illustration given by Smyly, C.J. is exactly on all fours with the present case. The effect of the arbitration award in this case is that Alexandra Akwei, the plaintiff, has sold the right, title and interest she acquired in the property at the auction sale to Richard Akwei. This she is perfectly entitled to do. Although the arbitrators used the word redeem, it is quite clear on the face of the award that their decision which the parties understood and accepted is that the Akwei family should buy in the property from Alexandra Akwei. For if it were redemption that the arbitrators meant, they would simply have said that the person who collected the balance of the purchase price from the court should refund the amount he collected to the plaintiff, then add to it the amount of the rates paid to the municipal council as the judgment debt and costs. On the contrary, their award is that members of the Akwei family "should make contribution to pay forthwith the full costs of the auction sale of the house which is 466 to redeem the house". The plain simple meaning of this passage is that whoever was the owner of the property, immediately prior to the sale, and who, therefore must have collected from the court the balance of the purchase price as he is in law attributed to do after the rates due and expenses of the execution had been paid to the court, should keep that amount and not account to any one for it; but that the plaintiff should transfer the whole of the right, title and interest she acquires under the certificate of purchase to those members of the Akwei family who wish to buy it, for a consideration of G518 10s., the said amount to be raised by contributions from among the members of the family. At the date of the arbitration as already pointed out, the property was vested solely in Alexandra according to the judgment of Acolatse, J. and she could do whatever she liked with it. Alexandra claimed damages for trespass, mesne profits and injunction against Richard Akwei for refusing to turn tenant to her after the said judgment, Richard Akwei contending, in spite of that judgment, that he was entitled to possession and occupation as of right. Alexandra and Richard voluntarily submitted their said dispute to arbitration. They both accepted the award of the arbitration. Alexandra went further and got the court to make a consent order in terms of the award. What locus standi has Isaac Akwei in such a matter; Isaac who, upon his own showing, has lost to Alexandra the whole of the right, title and interest he ever possessed in the house? How can he interfere in the matter? If he does not want to be one of the members of the family to own the property upon the award he is perfectly entitled to do so by refusing to contribute towards raising the purchase price of G516 10s. due to be paid to Alexandra in terms of the award and the consent order of the court; in which event the house will become the sole property of those members of the family who contribute to pay for it.

But even if Isaac Akwei retained any interest in the property, which upon his own showing he did not, he being a party to the arbitration, though not a party to this suit, is bound by the award of the arbitration and cannot be heard to resile at this stage.

It was submitted on behalf of the applicant that although not a party to this suit he was entitled to apply for review of the consent order made[p.26] between the parties, because the said order affects property which used to belong to him. As authority for this contention that a stranger to a suit can apply for a review of an order made in that suit, counsel for the applicant referred the court to Order 39, rule 1 under which the application purports to have been made. It says:

"I (1) Any person considering himself aggrieved-(a) by a judgment or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a judgment or order from which no appeal is allowed".

This submission fails to take cognisance of the remaining part of the rule which is as follows:

"and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the judgment was given or the order made, or an account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtained a review of the judgment given or order made against him, any apply for a review of the judgment or order to the Judge who gave judgment or made the order.

"(2) A party who is not appealing from a judgment or order may apply for a review of the judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appeal Court the case on which he applies for the review."

When the whole rule is read together it will be seen that the words any person" used in the rule means a person who was entitled to tender evidence at the hearing of the substantive suit, but who failed to adduce a vital piece of evidence, because that evidence only came to his knowledge after the judgment had been given or the order made, and which with the exercise of due diligence he could not have known of. No person except a party to a suit is entitled to tender evidence in the suit. Again rule 1 sub-rule (2) makes it clearer still that "any person" entitled to apply for review must be a party to the suit. It reads":

"(2) A party who is appealing from a judgment or order may apply for a review of the judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appeal Court the case on which he applies for the review".

Counsel for the applicant further submitted that the arbitration is invalid because the arbitrators did not limit the scope of the enquiry to the claim as disclosed on the writ of summons. He cited the Nigerian case of Inyang v. Udo, in support of his submission. With respect to learned counsel I must say that there is no substance in this submission. Firstly the arbitration in this case was not held upon reference by the court as was the case in Inyang v. Udo. it was arbitration held purely in conformity wit customary law, upon voluntary submission by the parties to the dispute. It is open to parties to submit disputes between them to arbitration whether those disputes form the subject-matter of a suit in court or not. And that is exactly what happened in this case as revealed [p.217] by the report. Secondly, the parties to the suit have not questioned the validity of the arbitration; in fact, they relied upon it for the consent order, and are now estopped from disputing its validity. And thirdly, the claim of the plaintiff is one in respect of ownership, possession and occupation of the house, therefore the award for transfer for ownership of possession and occupation of the said house by the plaintiff to the defendant and those whom he represent is in conformity with the claim.

This application is an abuse of legal process which should never have been indulged in. It is dismissed with costs.

Decision

<P>Application dismissed.</P>

Plaintiff / Appellant

J.C. Armah

Defendant / Respondent

Koi Larbi

Referals

(1) Yardom v. Minta III (1926) F.C. '26-'29, 76

(2) Inyang v. Udo (1944) 10 W.A.C.A. 40.

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