Res judicata: The Undefined Borders
The Common Law doctrine of res judicata holds that where a court of competent jurisdiction has determined a case to finality, the parties and their privies are precluded from relitigating the same issue or claim. The common notion among the courts in Ghana is that the res judicata doctrine is ‘well-settled’. Nevertheless, some judges have their reservations about the way the doctrine is ventilated. Expressing the unanimous view of the Court in Siisi v. Boateng, Atuguba JSC said: “It must never be forgotten that the principle of estoppel per rem judicatam has never been stated in absolute terms, for its formulation has often been made subject to the requirements of justice”. Their Lordships’ sentiments are also shared by some jurists and judges outside Ghana.
In the 1868 case of Forster v. The Richard Busteed, it was decided that the doctrine of res judicata is plain and intelligible. A hundred years afterwards, Zollie Steakley and Weldon Howellstrongly evinced doubts about the Court’s pronouncements. When they could not hold it any further, they openly voiced out tersely in their legal commentary thus: “This characterization of res judicata as a simple, easily applied legal doctrine, may have been valid at one time; however, such a reputation was short-lived. Disparate interpretation of the doctrine by the courts and scholars alike has transformed res judicata into a legal labyrinth”.
Undeniably, the res judicata doctrine has a long history under English law and has become part of the received laws of Ghana. It unfolds as a simple and obvious formulation, but the jurisprudence is strewn with the torsos of cases mangled by judicial mistreatment. Its tracks keep becoming murkier and murkier, not only as an entrapment for the unwary, but as a handful for the accomplished. It is envisaged as an arcane jumble of technical and elliptical principle. Charles Clarke has surmised that the doctrine is: “a problem which has troubled many of the great scholars” . Acquah JSC, however believed, quite strangely, that the doctrine has never been a technical one.
In contemporary times, Lord Sumption sitting in the United Kingdom Supreme Court in the case of Virgin Atlantic Airways Ltd v. Zodiac Seats UK Limited has described the doctrine as: “a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle”.
The different legal principles with their diverse juridical origins of the doctrine is made apparent in this paper. It may be realized that the two traditional seats of privity and mutuality which, for a long time, anchored the doctrine has been shaken in the last century, and that has brought about the divergent principles from their manifold origins. When one begins to reflect on Lord Sumption’s statement, the person might think the seasoned judge was recounting the story of the doctrine’s experience in Ghana. It would be seen, quite noticeably, from this paper that Ghanaian courts and jurists, by enunciating and advertising the res judicata label, appeared to have heedlessly resold a different content from what was originally packaged in the bottle. It is in that respect that the writer attempts an investigation into the doctrine to ascertain the veracity of Lord Sumption’s statement and the magnitude to which the doctrine has been overstretched under Ghanaian jurisprudence.
A Brief Origin of the Concept of Estoppel
Since Res judicata seeks to estop parties and their privies, it is essential that the word ‘estoppel’ is dug into. Estoppel only means stopped. It was explained by Chief Justice Coke in his Commentaries on Littleton. It was a word brought over by the Normans who used the old French ‘estoupail’, which referred to a bung or cork used to stop something from coming out. It was common to hear it in the English courts during the days when they carried on all legal proceedings in Norman-French. According to Lord Denning, estoppel has from that simple origin built up over the centuries in our law a big house with many rooms, unlike Coke’s time when it was a small house with only three rooms. For the abundant rooms that estoppel has acquired, the learned Judge illustrates thus: ‘But each room is used differently from the others, if you go into one room, you will find a notice saying ‘Estoppel is only a rule of evidence’. If you go into another room you will find a different notice, ‘estoppel can give rise to a cause of action’. Each room has its own separate notices. It is a mistake to suppose that what you find in one room, you will also find in the others”. He said, in the room of estoppel per rem judicatam, there are two chairs to sit on. “One is called the doctrine of privity. The other is the doctrine of mutuality. The two look alright but they are both a bit rickety”. He thus warned that the two chairs are quite unsafe to sit on. In this room is an old cabin double-bed shared by issue estoppel and cause of action estoppel. The former was the first to be recognized as the occupant of the room in 1776, before being joined by her counterpart in the course of time.
Meaning of the term ‘privy’
Charles Clarke has underscored that ‘privity’ is “a word of fairly frequent occurrence in the law’. He expounded that because it has a very broad content, ‘its precise meaning tends to become vague and confused; being a legal term lacking precision”. Assuredly, an investigation into the background of the word ‘privy’ may rest our curiosity. True it is, ‘privy’ has a ‘pungent smell’. The word was originally used for latrine or an outhouse toilet and according to a Gambian proverb, ‘human faeces will always smell, no matter how small”. Perhaps, we can now have an idea why the simple five-letter-word ‘privy’ has, for centuries, ‘fouled’ the judicial atmosphere by confounding great legal minds and stubbornly refusing to commend itself to an uncluttered denotation.
Privy is defined by the Black’s Law Dictionary as ‘a person having a legal interest of privity in any action, matter, or property; a person who is in privity with another”. The Law Dictionary identifies six types of privies traditionally known to the law thus: “(1) privies in blood, such as an heir and an ancestor; (2) privies in representation, such as an executor and a testator or an administrator and an intestate person; (3) privies in estate, such as grantor and grantee or lessor and lessee; (4) privies in respect to a contract, being the parties to a contract; (5) privies in respect of estate and contract, such as a lessor and lessee where the lessee assigns an interest, but the contract between lessor and lessee continues because the lessor does not accept the assignee; and (6) privies in law, such as husband and wife”. It goes on that the term ‘privy’ when used in the context of litigation “includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; and a successor in interest to anyone having a derivative claim”. A 20th Century Law Dictionary attempts to simplify the meaning of ‘privy’ as ‘one who is party to, or had a share or interest in something’.
Who are the ‘privies’ estopped from relitigating by the res judicata doctrine?
Undeniably, while the term ‘privy’ lends itself to diverse interpretations. Their Lordships in the Nigerian case of Agbogunleri v. Depo and two Others, viewed ‘privies’ in three senses thus: (a) Privies in blood such as testator and heir; (b) Privies in law such as testator and executor or in the case of intestate succession, a successor and administrator and (c) Privies in estate, such as vendor and purchaser or lessor and lessee. Similarly, the Supreme Court of Ghana defined the term ‘privies’ in the case of Agbeshie & Another v. Amorkor & Another, “to include anyone who has a legal interest of privity in any action, matter or property by blood, in representation such as an executor or an administrator of an intestate person.” In Republic v. Adofrakye & Others, Ex parte Twum,it was plainly underscored that the doctrine of estoppel per rem judicatam “…also operated against the privies of parties including anyone who has a legal interest of privity of action, matter or property by blood, in representation such as an executor or an administrator of an intestate person.”
Close to a century ago, the West African Court of Appeal defined ‘privy’ in the case of Ababio v. Kanga, as a person whose title is derived from and who claims through a party. The Court had, in Yode Kwao v. Kwasi Coker supra, stated that privies bound by the res judicata doctrine are “any such person who succeeds to the rights or liabilities of one of the parties to a suit or who is otherwise identified with him in estate or interest …”
In the case of Dintie v. Kanton IV, His Lordship Ansah dilated thus: “Privies includes any person who succeeds to the rights or liabilities of the party upon his death or insolvency or who is otherwise identified with his or her estate or interest; but it is essential that he who is later to be held estopped must have some kind of interest in the previous litigation or the subject matter.”
In the 5th Edition of their book, Bigelow on Estoppel, the learned author said at page 143 thus: “To make a man privy to an action he must have acquired an interest in a subject-matter of the action either by inheritance or succession or by purchase from the party subsequently to the action or he must hold property subordinately”. As an instance of subordinate holding, the learned author illustrates the point with a landlord and tenant relationship thus: “A lawful judgment which deprives the landlord of the estate deprives the tenant of necessity of his subordinate right”.
The meaning ascribed to ‘privy’ by the learned authors of Bigelow, is quite similar to the definition of privity of estate in the Osborn’s Concise Law Dictionary as “… the relationship between a landlord and a tenant who holds directly from him (not, e.g. between a landlord and sub-tenant). It enables an action to be brought to enforce covenants between any landlord or tenant, whether or not they were parties to the lease, if the breach of covenant occurred while they were parties the party in question held his interest in the lease”. The class of persons considered privies in the light of the rules are those related to the parties either in blood, title or interest. In reality, privity of interest has been held to be an elusive concept. The Court in the case of House of Spring Gardens Ltd v. Waite acknowledged: “it is not easy to detect from the authorities what amounts to a sufficient interest” to constitute privity of interest.
It would appear lucidly from all the authorities cited above that the word privy is far from clear.
Purchasers not bound by judgments delivered against their vendors
While it is trite learning that a purchaser is privy in estate to a judgment against his vendor, it needs pointing out that a purchaser of a property is not estopped by a judgment obtained against the vendor after the sale. In the case of Mercantile Investment & General Trust Co. v. River Plate Trust, Loan & Agency Co. Romer J. authoritatively held thus: “A prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after the purchase”. Though the principle has received massive adoption in Ghanaian Courts, its content is suspected not only to have been diluted, but repackaged in two unidentical bottles.
In the case of Republic v. Court of Appeal; Ex Parte Lands Commission (Vanderpuye Orgle Estates Ltd. – Interested Party), the respondent acquired a large tract of land from the James Town stool in 1973. The lease was executed by the then James Town Mantse, NAK II with the consent and concurrence of the accredited elders of the stool. The lease received further concurrence from the Lands Commission and was duly registered. In 1983, NAK II was destooled following a decision by the judicial committee of the National House of Chiefs declaring his enstoolment as null and void. The Lands Commission threatened to expunge the respondent’s lease from its property records and the respondent successfully brought a mandamus application at the High Court directing the Commission to restore the lease of the respondent in their records.
Lands Commission appealed against the decision on the grounds that upon the nullification of NAK II’s enstoolment as chief, all lands granted by him were void for want of capacity. The respondent, on the other hand, claimed to be an innocent third party whose acquired right is protected by law, notwithstanding the nullification of the chief. On a further appeal to the Supreme Court, Her Ladyship Bamford-Addo JSC held: “The law then is that a purchaser of land would not lose his land by virtue of a judgment in a litigation commenced after the sale. Similarly, even if a valid deed is legally invalidated … by a subsequent legally proper judgment, the doctrine of bona fide purchaser for value would apply to protect the title of such a purchaser” (My Emphasis).
Astoundingly, the ratio espoused by Romer J. has been extended to cover the sale of property by a chief who is subsequently destooled. One may be at a loss in trying to find the link between the principle of prior purchaser and its application in the context of a chief’s destoolment and, importantly, its effect on land sold by him. This is because, analyzing it in the light of Romer J.’s principle, it is the title of the property sold that should be the issue determined by the Court against the vendor (the chief); but in the chieftaincy matter, the issue dealt with by the tribunal was the right of appointment to the stool (an entirely different issue) and not properties that had been alienated by the chief. Obviously, the purchaser could not have joined the proceedings when it was pending before the National House of Chiefs to defend his interest in the land that had been sold to him. The Supreme Court appeared however to have adopted a purposive approach to achieve the ends of justice at the end of the day.
The learned author of the book, Land Law, Practice and Conveyancing in Ghana, similarly introduced the concept of bona fide purchaser for value when espousing the principle thus: “A purchaser who purchases a land from a vendor and acquired it in good faith would not be estopped as being privy in estate by a judgment in a suit obtained against his vendor which was commenced after the purchase. In Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency … the court held that where purchaser acquires a land in good faith and after the acquisition of the land, his vendor is sued, any such judgment obtained against his vendor will not be binding on him” (Emphasis supplied).
In sharp contrast to their Lordships’ position is the case of Attram v. Aryee where the Supreme Court applied the principle, notwithstanding the fact that the prior grantee of the land was not a purchaser in a strict sense but was a beneficiary of a deed of gift. In recent times, the Apex Court in the case of Registered Trustees of the Catholic Church Achimota v. Buildaf Ltd and Others,has followed Attram v. Aryee supra and applied the principle of Romer J. to a beneficiary of a gift.
In view of the two inconsistent twists given to Romer J.’s principle, it is imperative that we ascertain the real position of the law. With regard to the first position of apparently merging Romer J’s prior purchaser principle with that of a bona fide purchaser for value otherwise called ‘Equity’s Darling’; their Lordships were, by implication, extending the parameters of the ratio laid down in the Mercantile Investment & General Trust Co. v. River Plate Trust, Loan & Agency Co. supra. Suffice it to say that the ratio in the original case and indeed, some of the earlier Ghanaian casesthat had applied the principle, did not encompass the bona fide purchaser for value concept and the protection of the law of the titles of prior purchasers. The authorities rather sought, unambiguously, to underscore the point that prior purchasers are not deemed privies in estate to the judgment obtained against their vendors by the law so as to be estopped thereby. It appears that sometimes the import of Romer J.’s ratio is lost on the Courts.
It is important to emphasize that the law generally recognizes only persons who purchase properties after a court judgment as being privy in estate to their vendors, but it does not include those who purchase their properties prior to the court action. Going by the res judicata doctrine, the knowledge of the purchaser as regards the defectiveness or otherwise of the vendor’s title pales into insignificance. It is instructive to note that the two occasions where a purchaser of a property may be estopped as being privy in estate to his vendor in respect of a judgment obtained in an action against the vendor is where the purchaser acquired his title during the pendency of the suit brought against his vendor or after the delivery of the judgment (My Emphasis).
Miller and Sankaran Nair JJ beautifully articulated the law in the Indian case of Midras High Court Seshappaya v. Venkatramana Upadya thus:“… on the Law of Res Judicata the American Law on the subject is thus enunciated at page 185: It is quite a general rule, in fact, that to create the relation of privity, the person to be bound by the judgment must be one who claims an interest in the subject matter affected through or under one of the parties, and he must claim it as acquired after the rendition of the judgment. It was held in Hunt v Havens 52 N.H. 162 that one cannot be a privy in estate to a judgment or decree unless he derives his title to the property in question, subsequent to, and from some party who is bound by, such judgment or decree’ …. The rule that the interest to be bound, must be acquired after the action, is supported by the English cases of Doe dem Thomas Forster v. Marl of Derby 1 A. & E 783: 110 E.R. 1406: 3 N. & M. 782: 3 L.J.K.B. 191: 40 R.R. 423 and Mercantile Investment and General Trust Co. v. River Plate Trust Loan and Agency Co. (1894) 1 Ch. 578 at 595 …” (Emphasis is mine).
Similarly, in Jujjuvarapu Kotamma v. Pappala Simhachalam and Others Judge Kumarayya emphasized: “It is thus clear that it is the successor-in-interest or a purchaser from a party who becomes a privy and that only in respect of the interest and rights in property to which he has succeeded or which he has purchased … the rule that the interest to be bound must be acquired after the action is supported by English and American authorities” (Emphasis given).
It is worth stressing the point that a purchaser who acquires his title during the pendency of the action against his vendor, but before the judgment may not be deemed as a prior purchaser, but a privy in estate to the vendor. In other words, such purchasers may be estopped by the eventual judgment against their vendors. The learned authors of Halsbury’s Laws of England explicated in Vol. 13 at page 346 as follows: “in order that a judgment may be conclusive against a person as privy in estate to a party litigant, it is necessary to show (apart from his taking with a notice of a lis pendents), that he derives title under the latter by act or operation of law subsequent to the recovery of the judgment”.
In Spencer Bower on Res Judicata (Second Edition) at page 201, the following statement of law appears: “Where privity of estate is set up as the foundation of estoppels per rem judicata, the title relied on to establish such privity must have arisen after the judgment on which the res judicata is based, or at least after the commencement of the proceedings in the course of which judgment was given”.
Everest & Strode’s Law of Estoppel (3rd Edition) states: “Privies in estate are not bound by a judgment unless it precedes the execution of the interest which is to be stopped …”
Ungoed-Thomas sitting at the Chancery Division of England, on his part decided in Pople v. Evans thus: “the title relied on to establish such privity must arise after the judgment on which the res judicata is based, or at any rate after the commencement of the proceedings in which the judgment was made”.
By way of further illumination, the law is that while a prior purchaser is not bound by a judgment subsequently obtained against his vendor as his privy, he is equally not immune from legal suits challenging his title. In Musuru Okunubi v. Antonio Assaf, the West African Court of Appeal clearly reiterated that a third party who wishes to bind the purchaser may either join him to the suit instituted against his vendor or institute fresh proceedings against him after obtaining judgment against his vendor. Verity C.J., citing and defending Romer J.’s legal proposition, ruminated: “… there are obviously sound reasons for this view. A purchaser who enters into negotiations with a vendor after proceedings have been commenced to determine the vendor’s rights and especially if he has notice and knowledge of such proceedings, does so with his eyes open and may well be bound by the result thereof. But a purchaser who buys and completes his purchase before any such proceedings cannot be affected by such proceedings unless he is made a party thereto, for the contractual relationship between the vendor and himself has come to an end by performance of the contract. A third party, who wishes to bind the purchaser, should join him in the proceedings, and if he does not do so, then he must take fresh proceedings against him, … and in those proceedings he cannot rely on the previous proceedings against the vendor in which he failed to join the purchaser as he should have done.” (Emphasis given).
The above decision makes it palpably clear that where a judgment is obtained by a third party against the vendor of a prior purchaser, it does not preclude the third party from instituting fresh proceedings against the purchaser and vice versa. It is the judgment of the vendor which does not bind the prior purchaser to estop him from relitigating. In the course of defending the new proceedings, the prior purchaser can lean on equity’s darling to get a favourable result, notwithstanding the third’s party success against his vendor in the earlier suit. If equity’s darling is to apply as is being urged on us by their Lordships, then the Court in the second suit against the prior purchaser cannot assume jurisdiction to re-determine the matter. In other words, the plea of res judicata and that of equity’s darling are raised at separate times. While the former is raised to preclude a Court from hearing a case altogether for lack of jurisdiction, the latter does not bar the Court from proceeding, but is usually raised as a defence in the proceedings to get a propitious outcome from the Court as rightly stated by the learned Land Law author at page 270 thus: “A person who puts up a defence of bona fide purchaser for value without notice … has the burden to prove same, and where such a defence succeeds, it would constitute an absolute, unqualified and unanswerable defence.”
In Abbey v. Ollenu, the respondent purchased his land in 1935 before the appellants sued his vendor in 1936 and successfully obtained judgment. In 1940, the respondent who was unaware of the ‘defect’ in his title commenced his building operations and completed it in 1945. In 1949, the appellants instituted an action against the respondent. The respondent’s case was that he was not aware of the defect in his title until after the completion of his building, and that the appellants with full knowledge of their rights, stood by and watched him build, without ever objecting or attempting to warn him. He therefore grounded his defence on acquiescence and prevailed.
It is important to emphasize that while the West African Court of Appeal applied Romer J.’s principle that the respondent was not estopped as being privy in estate by a judgment in an action against his vendor commenced after the purchase, the Court did not consider the respondent’s purchase of the land prior to the institution of the action as unimpeachable. From the Court’s reasoning, the appellants were expected to have challenged the respondent of his title when he started building on the land in 1940.
Consequently, the Court dismissed the appellants’ case on grounds of acquiescence and not on Romer J.’s principle. If the law were that the prior purchase of the land before the judgment against his vendor merely rendered his title indefeasible, the respondent would not have conceded that his title was defective (despite applying Romer J.’s principle) and the Court would, also, not have anchored its judgment on the appellants’ acquiescence from 1940 when the respondent commenced his building activities on the land but the appellants failed to challenge him of his title. Thus, if the judgment obtained by the appellants against the respondent’s vendor meant that the respondent’s title could not be challenged merely because he was not privy in estate to the judgment against his vendor, the Court would not have expected the appellants to have challenged the respondent on the land and the issue of acquiescence would not have arisen at all.
Curiously, if the prior purchaser principle is made to merge with equity’s darling and the Court is to be estopped by the res judicata doctrine from going into the merits of the case, then the question is; at what stage would the Court be able to determine that the person is a bona fide purchaser for value? This is because in the action against the vendor, he would, most probably, have defended his title alone (and lost) and not necessarily ventilating the interest conveyed to the purchaser. Needless to say, the bona fide purchaser for value’s principle is an equitable one which defers to the Court’s overriding discretion. Equity’s darling is, thus, a different breed of legal concept that may be relied upon in appropriate cases to protect an innocent purchaser, and in my respectful view, it should not be weaved into the res judicata doctrine.
Does the principle of prior purchaser apply to movable goods?
Undoubtedly, Romer J. stated the principle in relation to the purchase of land. It has been observed from the Law Reports that the Courts in Ghana have, invariably, applied the principle only in cases involving land. Nevertheless, it should be noted that the principle correspondingly applies to movable goods. In Wiltshire v. Powell and Others, it was held that privity applies in the same manner to a judgment determining the ownership of goods as it does to one determining the ownership of land. Latham LJ held “[w]here title to goods is in dispute … a person claiming title is privy to the interests of those through whom he claims that title for the purpose of the operation of the doctrine of estoppel per rem judicatam but only if the title he claims was acquired after the date of the judgment”.
Suing in different capacities
A rule often stated in elaboration of the requirement of the identity of parties is that one is not bound by a judgment entered in a case where he sued or defended in his individual capacity, when such judgment is pleaded as res judicata in a subsequent suit where he appears only in a representative character. In Freeman on Judgment (5th ed.) at 419, 913, the author said: “The judgment in a proceeding to which one is a party merely as a guardian, guardian ad litem or next friend is not res judicata for or against him in a subsequent action to which he is a party only in his individual right; and the converse of this proposition is equally true”. Therefore, where a person sues in one capacity, he is not estopped from relitigating in another capacity. The same represents the law in Ghana as gleaned from the decision in Kariyavoulas v. Osei. It is essential that in determining the identity of parties in any given situation, the Court should look beneath the surface, particularly, the entire proceedings, and ascertain what the interests actually represented are; since, if this is not done, a mere change in designation of parties on the record may bring about the very evils against which the res judicata doctrine is intended to protect.
Is privity a mutual concept?
The authorities have traditionally held next to unanimity that privity is a mutual concept. “The term ‘privity’ denotes mutual or successive relationship to the same rights of property’, claims Charles Clarke. He goes ahead to proffer illustrations that tenants in common are in mutual relationship of estate, while a grantor and a grantee are in successive relationship of estate, but a lessor and lessee are related in both respects. At page 591 of the Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency supra, Romer J. held of the doctrine thus: “One principle inseparable from the doctrine is that it must be mutual”. It has further been held in the case of Sun Life Assurance Company of Canada & Others v. The Lincoln National Insurance Company, that: “The principle of res judicata and issue estoppel operate mutually”. Spencer Bower put it: “Estoppels by res judicata in civil cases must be mutual’ (Petrie v. Nuttal (1856) 11 Exch. 569, 575). The established requirement is that res judicata estoppels in civil cases are mutual, and a party is only bound in favour of another if a contrary decision would have bound him. This is important when determining whether a person is a privy”.
Interestingly, Lord Denning disagreed with the above view and purported to overrule Petrie v. Nuttal in the case of Mclikenny v. Chief Constable of the West Midlands Police. Some judges and jurists equally do not buy the mutuality of the res judicata concept. In a paper on the topic: ‘Some Overlooked Aspects of the Res Judicata Doctrine’, delivered in Lincoln Hall on 5 May 2010 for the Conference of the Chancery Bar Association and the Anglo-Australasian Lawyers, Judge Handley of the New South Wales Court of Appeal underscored that privity need not be mutual. She cited an example thus: “A tenant is always a privy of his landlord, but a landlord is not necessarily a privy of his tenant”.
In instances where mutuality is not easily ascertainable, the Courts ingeniously find other ways of precluding a ‘privy’ from relitigating. In Sun Life Assurance Company of Canada & Others v. The Lincoln National Insurance Company supra, Lord Justice Jacob held thus: “Where a party seeks to re-litigate in subsequent proceedings against Y a point he fought fully in earlier proceedings against X, it may be that, notwithstanding a lack of mutuality, he can be prevented from doing so on the grounds of abuse of process”.
In the American case of Bernhard v. Bank of America, a woman authorized an agent to deposit money in her account with the defendant bank. The agent did so, but subsequently withdrew the money and put it into his own account for his personal use. After the demise of the woman, the agent acted as her executor. However, after rendering an account to the court, he asked to be discharged, not having completely administered the estate. In the ensuing proceedings, the plaintiff and the other next-of-kin of the deceased claimed that the agent-executor had embezzled the money from the testatrix, but the court found that the money was a gift and discharged the executor. The plaintiff having been appointed an administrator with the will annexed, later sued the bank for the money it had paid out to the agent-executor. It was held that the question of whether the money had been a gift or had been embezzled was res judicata and that the defendant bank could claim the benefit of the previous judgment although it was not a party or privy of any party to the prior proceedings.
Also, in the case of Brobston v. Darby Borough, an injured person sued a trolley company, whose tracks were laid on the highway under an obligation assumed by the company to maintain the road in good repair. It was found that the corporation had not failed in that regard and the action was dismissed. Later, the Plaintiff instituted a suit in another court, on the same facts, against the Municipal Authority. It was held that, notwithstanding a difference in parties, res judicata applied to estop the Plaintiff.
On appeal, the State Supreme Court of Pennsylvania, in affirming the decision of the Court below, said: “If a recovery were now had, then the borough defendant could compel by suit, the street railway to pay for the injury, where in regular judicial proceeding it had been declared not, to be responsible. The plaintiff elected to sue the one ultimately liable, and failed to recover, and he cannot now be permitted to secure judgment against the borough for this identical negligence. If so, then the latter can seek a recovery from the former, though its non-liability has been adjudicated, and compel it to defend a proceeding based on a cause of action previously determined in its favour … Ordinarily, an estoppel by judgment is only applied where parties are the same, or in privity ; … but an apparent exception to the rule of mutuality has been held to exist where the liability of defendant is altogether dependent upon the culpability of one exonerated in a direct action….”
In Ghana, the Apex Court seemed to have toed the line of the latter view in the case of Brown v. Ntiri supra, by not relying on the res judicata doctrine but on the grounds of abuse of process. Date-Bah JSC said: “Although the claimant was not strictly speaking, a privy to the defendant; his vendor, because his purported purchase was made long before the grant of judgment against his vendor, it would be an abuse of the process of this court for the claimant to reopen issues litigated in the earlier case”.
Should the subject matter of the two suits be the same or identical?
In the consolidated suits of Nene Narh Matti & 2 Others v. Osei Godwin Teye and Samuel Lamm Oyortey & 2 Others v. Osei Godwin Teye, the Supreme Court per Dotse JSC decided thus: “It must be noted that, a party who relies on estoppel per rem judicatam must prove that the identity of the previous suit in respect of which judgment was given in his favour are the same in the subsequent suit under consideration”. By this decision, the identity of the previous suit must be the same as the new suit.
Nonetheless, the Court held in Yode Kwao v. Kwesi Coker that a person may be estopped in a latter action where the two suits are identical. There appears to be slight differences in the two principles. In the latter case, the subject matter must have been identical with the present one and ‘identical’ does not necessarily mean sameness, it could be ‘similar’ or ‘likeness’. In Gyetua v. Boafo, the Supreme Court held that res judicata applies where “the subject matter … was identical in juridical sense with the one in the previous action”.
The Privy Council had in Nana Darko Frempong v. Mankrado K. Effah affirmed Ollenu J.’s dissenting opinion thus: “a part of a subject matter is identical with the whole”. He reasoned thus: “Unless that legal term is so interpreted anomalies will occur and the law relating to res judicata will become ridiculous … litigation would have no end, except legal ingenuity is exhausted’.” By adopting that approach, one can see that the scope of the traditional formulation of the res judicata doctrine as espoused by Dotse JSC supra that the subject matter must be the same has somehow been expanded. A restatement of the principle to capture the two outlooks was a matter of course and the Apex Court gladly accomplished that task in Ofei Kwaku Mante (Substituted by Rev. Alex Aryeequaye) v. Mike Similao & 3 Others, where Gbadegbe JSC said: “In relation to the subject matter of the action herein the identity of the disputed land must either be the same or have a juridical identity with the area covered by the previous judgment; both areas must be relational, so to say”.
Have the Ancient Borders of the Res Judicata Rule been moved?
The doctrine of res judicata precluding a party and his privy from relitigating appears to have been bolstered mainly by two latter principles – the rule in Henderson v. Henderson against the abuse of instituting legal proceedings and the estoppel rule of ‘standing by’. In Fidelitas Shipping Co. Ltd v. V/O Exportleb, Lord Denning noted that the estoppel rule is not inflexible, while Lord Upjohn also in Carl Zeiss v. Stiftung v. Rayner & Keeler Ltd, asserted that all estoppels are not odious but must be applied to work justice and not injustice, so “issue estoppel must be applied to the circumstances of the subsequent case with the overriding consideration in mind”. When the courts take a narrower view of privity of interest, they are only concerned with the actual parties and their successors.
Generally, the courts have applied the doctrine of abuse of process to preclude litigation in circumstances where the strict requirements of issue estoppel (typically the privity and mutuality requirements) are not met, but where by allowing the litigation to proceed, it would definitely violate such principles such as judicial economy, consistency, finality and the integrity of the justice system. In Mahama & Others v. Ashanti Goldfield Co. Ltd. & Another, Owusu J.A. rumbled of the Henderson v. Henderson rule thus: “The rule is not based on the doctrine of res judicature in a narrow sense, or even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one could do. That is the abuse at which the rule is directed”.
In the past century and the beginning of this century, the Courts in Ghana treated the abuse of process rule as part of the res judicata doctrine as distilled from cases such as Andani v. Abdulai, Nyame v. Kese, Dahabieh v. S.A. Turqui & Bros. However, they revised their position to treat the Henderson v. Henderson rule as a separate strand of concept. In Attorney General v. Sweater & Socks Co. infra, the Apex Court said: “In the past, we have included it in the variants of the commonly utilized defence of estoppel per rem judicatam doctrine. We have actually not merely identified it as the third branch, so to speak, of principle, but assigned to it the generic term ‘res judicata’ … However, in Sasu v. Amua-Sekyi … Dr. Date-Bah JSC took a different stance. He concluded differently as far as the proper nomenclature of this less commonly used principle – abuse of process is concerned. He observed that the doctrine, though related to res judicata, is not strictly speaking res judicata, although it bears close affinity to it”.
Estoppel by standing by
The concept of estoppel by standing by traces its historical roots to the 1814 pronouncement of Sir John Nicoll in Newell v. Weeks and was reviewed by Sir Francis in Young v. Holloway in what was expressed to mean that spectators to proceedings who have had full notice and the opportunity of intervening in the contest but failed to do so would be bound by the decision. The principle was applied in the Ecclesiastical Courts in proceedings involving wills and probate where the beneficiaries were numerous and it was essential that the action be filed by their representatives.
In 1871, Lord Penzance had intimated in Wytcherley v. Andrews thus: “There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result and not be allowed to re-open the case. The principle is founded on justice and common sense, and is acted upon in courts of equity, where, if the persons interested are too numerous to be all made parties to the suit, one or two of the class are allowed to represent them, and it appears to the court that everything has been done bona fide in the interests of the parties seeking to disturb the arrangement, it will not allow the matter to be re-opened”.
Lord Diplock LJ in 1964 held in the Estate of Langton thus: “This rule differs from the common law rule of estoppel per rem judicata. It is peculiar to the Probate jurisdiction …” (My emphasis). He was attempting to shut the stable door, but under Lord Denning, the horse had already bolted when he sat on the case of Nana Ofori-Atta II v. Nana Abu Bonsra II. Admittedly, the principle had been confined to only probate cases in England and Wales, so, Lord Denning inventively took solace from a Ghanaian custom and authoritatively pronounced: “It seems to be the recognizing thing in this part of West Africa for all persons with the same interest in a land dispute to range themselves on one side or the other. Sometimes they apply to be joined as parties. On other occasions they regard the named party as their champion and support him by giving evidence. If he wins they reap the fruits of victory. If he fails they fall for him and must take the consequences. It is now 25 years ago that the Chief Justice drew attention to this way of looking at litigation… It has led the Court of Appeal in West Africa to look for a principle to meet the situation, and they have found it in principle stated by Lord Penzance ..” The Ghanaian cases which Lord Denning relied upon to arrive at that conclusion were Yode Kwao v. Kwesi Coker; Appoh Ababio v. Doku Kanga and Akwei v. Coffie.
The customary practice of precluding a grantor from reinstituting a fresh action if he stands by for his grantee to fight alone and loses has taken a firm habitation in the jurisprudence of this country as attested to by succeeding cases. Amazingly, Lord Denning’s ‘West African standing by estoppel rule’ has received enviable global adoption. In England, in the cases of Society of Lloyd’s v. Fraser, ML Hart Builders Limited (In Liquidation) v. Swiss Cottage Properties & Nori Holding v. Bank Otkritie; in Cayman Island in the case of Tianrui (International) Holding Company Limited v. China Shanshui Cement Group Limited; in Singapore by the Court of Appeal in the case of Lim Geok Lin Andy v. Yap Jin Meng Bryan; in Australia, in Osborne v. Smith and by the High Court of Trinidad and Tobago in the case of Mohammed v. Harrilal. Nigeria, another West African country, applied the principle in the cases of Adesina Oke & Ors. v. Shittu Atoloye & Ors. & Idowu Alashe & Others v. Sanya Olori Ilu & Others. Zambia also has it adopted in the case of Bampi Aubrey Kapalasa and Another.
Res judicata in criminal cases
Some states in the United States of America have laws that strangely allows res judicata to be applied in successive criminal proceedings as highlighted by a legal commentator thus “… the principles of res judicata apply in successive criminal proceedings against the same defendant, involving the same facts, practically as in civil suits. This is a different thing from the force of the doctrines of former jeopardy, and of autrefois acquit and autrefois convict; those doctrines operate to prevent renewed prosecutions for the same offense; res judicata is of wider effect; it prevents retrial of facts, even though the offenses in which they feature are differently denominated”. Ghanaian law does not explicitly know of res judicata in criminal proceedings, apart from the rule against double jeopardy which allows an accused person to plead autrefois acquit or autrefois convict. It needs to be elucidated, however, that the criminal proceedings concept is one-sided and avails only the accused person but not the prosecution. Ayebi JA in the case of Sanusi Alhaji v. The Republic offered some clarity thus: “So unlike the plea of estoppels per rem judicatam which is available to both a plaintiff and a defendant in a civil suit to take advantage of, a plea of autrefois acquit or autrefois convict is not available to the State or the prosecutor.”
Res Judicata and Estoppel
The two terms are like two peas in a pod and are sometimes used interchangeably in legal parlance. According to a Nigerian Law Professor, the doctrine of res judicata is “popularly though erroneously called estoppel”. It is important that a clear distinction is drawn between the estoppel element of res judicata and estoppel in pais. The distinction was drawn in Marsh v. Pier thus: ‘The effect of a judgment of a court having jurisdiction over the subject-matter of controversy between the parties, even as an estoppel, is very different from an estoppel arising from the act of a party himself, … which (later estoppel) may or may not be enforced at the election of the other party, because whatever the parties have done by compact they may undo by the same means. But a judgment of a proper court, being the … conclusion of the law, upon the facts contained within the record, puts an end to all further litigation on account of the same matter … even by the consent of the parties, and is not only binding upon them, but upon the courts … even afterwards, as long as it shall remain in force and unreversed”.
Estoppel has been described as a rule of evidence which shuts the mouth of a party from asserting anything that contradicts his previous act or declarations to the prejudice of a party who relied upon them. Res judicata on the other hand, prohibits a court from inquiring into a matter already adjudicated and thereby outs the jurisdiction of the Court. Lord Denning however refused to accept that estoppel is a rule of evidence in Moorgate Mercantile Co. Ltd v. Twitchings when he held thus: “Estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and equity. It comes to this. When a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so”.
The debate of whether estoppel is a rule of evidence is replicated in Ghana. In the Court of Appeal case of Rudoph Nortey Otoo & Another v. Nora Odofoley Otoo & Another Dzamefe JA held emphatically thus: “Estoppel is a rule of evidence”. His Lordship Dennis Adjei, in his Land Law Book supra, however, believes that despite the conclusive presumptions contained under sections 26 to 29 of the Evidence Act, 1975 (NRCD 323) and their common objectives; estoppel is materially different from the conclusive presumptions in the Evidence Act. According to him, estoppel is procedural in nature which must expressly be pleaded and proved, but the conclusive presumptions in the Evidence Act are substantive and may be applied by the Court, the absence of pleading and proof notwithstanding. Finally, res judicata presumes the truth of a decision in the previous suit, while estoppel precludes a party from denying what he has earlier said as truth.
Is Res Judicata only a shield or a sword?
It used to be that the plea of res judicata was a shield for the protection of the Defendant and generally pleaded by the Defendant as a bar to subsequent proceedings by the Plaintiff on the same issue, and between the same parties and their privies. The position appeared to have changed in recent times as decided by the Supreme Court of Nigeria in the case of Sylvester Ezekpelechi Ukaegbu and 6 Others v. Duru Ononanwa Ugoji and 2 Others thus: “The modern trend … as exemplified in recent judicial decisions is that ‘… although the plea of estoppel is a shield for the protection of the Defendant, it can also validly be employed as a sword by a Plaintiff’. An estoppel which includes per rem judicatam, can be raised to show the awareness of the Plaintiff of a previous litigation between the parties which he intends to rely upon, thus preparing the ground for a reply in the event of the Statement of Defence seeking to rely on the same estoppel – Ladega & Others v. Durosinmi & Ors. (1978) 3 SC 91”.
Does Res Judicata apply only to judgments of the courts?
Although the principle is often stated in relation to final decisions of a court, yet in Ghana, decisions in an arbitration or a chieftaincy tribunal have been incorporated into the res judicata principle. In Nyame v. Kyere, Acquah JSC held thus: “It must therefore be fully appreciated that the plea of res judicata is not confined only to the normal courts, but to all judicial tribunals including the judicial committees of the various traditional councils and houses of chiefs. Of course, it is also settled that the plea applies to a valid customary arbitration award”. Significantly, if parties or their privies voluntarily submit a judgment of a court or its subject matter to a compromise on terms, they will be estopped from claiming the benefits or the fruits of the said judgment of the court and would be bound by the award of the arbitration held subsequent to the judgment. It must also be emphasized that where a case was determined by a court in a foreign jurisdiction and one of the parties or their privies attempts to relitigate the same or identical issue, res judicata may be invoked to preclude him.
How the Res Judicata Doctrine is invoked
The long standing position across Common Law jurisdictions is that res judicata must expressly be pleaded and established before a court can rely on it. However, in Ghana, the strict requirement of the rule has been attenuated by substantial justice to give it a liberal outlook. The courts now apply the doctrine even where a party has failed to plead it in exceptional circumstances. In Attorney General v. Sweater and Socks Co., Wood C.J. riding at the back of substantial justice held of the res judicata doctrine thus: “[w]here the plea has not explicitly been set out, but the defendant’s statement of case unequivocally or substantially points to the plea, the court is bound to consider it, as if the same had been specifically raised by the defendant”.
Common Law Exception to the Res Judicata Doctrine
At common law, the most outstanding exception to the doctrine of res judicata was found in the rule which prevailed in an action of ejectment. In his commentary published in the Yale Law Journal, the author illuminated thus: “It was settled that a judgment in such an action was no bar to later proceedings between the same parties, for the same land, and based on the same claim of title”. The exception is linked to the historical and procedural antecedents of the Common law. Common law ejectment was considered a possessory action; although it was essential that the plaintiff proved his lessor’s title, in order to validate his own claim as a lessee; yet, the courts formed the view that title was drawn to it only collaterally, ‘the direct question being the plaintiff’s right to immediate possession’, and that whatever was incidentally determined as to title was not res judicata in a second ejection action. Usually the second action was crucial to actual recovery of the land, and therein a new demise was supposed. The position of the law has since changed in many jurisdictions. The law now appears to be that judgments delivered in an action to try title by whatever name they may be called, are generally final and constitutes res judicata.
It is however not clear what the position of the law is in respect of a case against a grantor where the grantee stood by without joining. If the grantor lost the suit in a title contest with a third party, is the grantee estopped from contesting his possession to the land? If we should answer ‘yes’ to the question; what then becomes of the principle that in an action for recovery of possession, it is the one on the land who must be sued and not the landlord? We may recall that Tenterden CJ in Berkeley v. Dimery puts it thus: “In ejectment, the tenant in possession must be sued” . It is obligatory that the one in physical possession is sued as was held in Dagadu and Others v. Addy that “Strictly, all persons who are in physical possession of the land should be made defendants in an action for trespass” (Emphasis supplied).
From the authorities, it stands to reason that an action against a grantor can only be for a determination of title, but not stricto sensu, a claim for recovery of possession, where it is the grantee who is in physical possession of the property and is not joined to the suit. To that extent, a court determining the matter against the grantor may only deal with the issue of title and not possession. It may be argued that the issue of recovery of possession can later be contested by the grantee in physical possession of the land, if the third party attempts to recover possession from him. After all, estoppel by standing by was formulated as a ‘common-sense rule’ and, thus, accords with justice and fairness so that a third party who sues for a declaration of title to land and wants recovery of possession of the land will, mandatorily, make the one in physical possession a party to the suit. And where he fails to join the grantee in possession to the suit, he cannot use the ‘backdoor’ to get recovery of possession, contrary to the law.
On the contrary, it may be contended that res judicata does not only deal with the actual issues determined in the previous litigation, but also issues that could have been raised by the opposing party and his privies, but were not. Thus, if an action is instituted against the grantor of the person in possession of the land and the issue of recovery of possession could have been raised and determined, but it was not; why should the court allow the one in possession to relitigate when he could have joined the prior suit and contested the issue of his possession? We must also not forget the fact that the law on declaration of title and recovery of possession has transmogrified over time. The law used to be that if a person obtained judgment for declaration of title, he could not have a writ of possession issued in his favour unless the Court expressly decreed possession in the judgment. However, the Supreme Court restated the law in the case of Republic v. High Court, Kumasi; Ex Parte Boateng about fifteen years ago and made it possible for a writ of possession to be issued pursuant to a judgment for declaration of title to land. While the writer finds comfort in the first argument, he looks forward to the Courts to offer some clarity in respect of the issue.
Relationship between Romer J.’s prior purchaser principle and Lord Denning’s Standing by Estoppel Rule in Ghana
There appears to be a conflict between the two propositions of law and it is not surprising that on a few occasions when the Courts sought to apply the estoppel by standing by rule, Roger J’s principle was thrown in their way in an attempt to thwart their efforts. The difference in land tenure system in England and Ghana has, considerably, contributed to this conflict. In England, fee simple (synonymous with freehold interest) is transferable or can be sold. In Ghana on the other hand, a freehold interest generally cannot be created, let alone, sold by customary land entities. Therefore, if Romer J’s principle contemplates outright sale of land of the fee simple (freehold) and not a mere grant or gift, then the principle will continue to struggle to find space in Ghanaian jurisprudence. However, the application of the principle to gifts by Ollenu JSC in Attram v. Aryee supra, does not only give some respite to the courts, but also clear and inspirational guidance.
It is said that the doctrine of res judicata restrains either party to a legal suit to ‘move the clock backwards’ after the determination of a matter. Writing about the application of the doctrine in India, Arnav Raj Chakravorty underscored: “The extent of res judicata is very very wide and it includes a lot of things … and covers a lot of areas which are related to society and people. The scope and the extent have widened with the passage of time and the Supreme Court has elongated the areas with its judgments”. Does the observation hold any truth for Ghanaian jurisprudence? The author believes it does and desires that we critically take a careful look at the new boundaries where the res judicatadoctrine seems to have been fixed.
 Under the Roman Law, a defendant could also successfully contest a suit filed by a plaintiff on the plea of ‘ex captio res judicata’. It was said: ‘One suit and one decision is enough for any single dispute’.
 See A.G. v. Sweater and Socks Factory Ltd. (2013-2014) 2 SCGLR 946; Dahabieh v. S.A. Turqui and Bros. (200102) SCGLR 498, 507; Brown v. Ntiri (2005-2006) SCGLR 247.
 Siisi v. Boateng and Another; Civil App. No. J4/27/2011  GHASC 164 (07 May 2014).
 Forster v. The Richard Busteed, 100 Mass. 409, 412 (1868); 2 H. BLACK, JUDGMENTS, 504 (2d ed. 1902) [hereinafter cited as BLACK].
 Zollie Steakley and Weldon U. Howell, Jr, ‘Ruminations on Res Judicata’; SMU Dedman School of Law, Volume 28, Issue 1, Annual Survey of Texas Law (1974).
 See Charles K. Clarke: “The Doctrine of Privity of Estate in Connection with Real Covenants”, 32 Yale Law Journal 123 (1922).
 See Nyame v. Kese alias Konto [1999-2000] 1 GLR 236 at p. 241.
 Virgin Atlantic Airways Ltd v. Zodiac Seats UK Limited  UKSC 46;  AC 160.
 Res judicata sometimes called Estoppel per rem judicatam is a doctrine derived from the maxim “nemo debet bis vexari, si est curiae quod sit pro una et eadem causa” – No man should be twice sued upon one and the same set of facts, if there has been a final decision of a competent court.
 At 352a.
 See the case of Mcilkenny v. Chief Constable of West Midlands Police Force and Another (1980) 2 All ER 227.
 Denning states estoppel per rem judicatam, issue estoppel, estoppel by deed, estoppel by representation, estoppel by conduct, estoppel b y acquiescence, estoppel by election or waiver and proprietary estoppel.
 Denning lists the three as: Estoppel of record, estoppel in writing and estoppel in pais.
 According to Denning, Jeremy Bentham as far as 1827 told people not to rely on them.
 See the case of Duchess of Kington’s Case (1776) 2 Smith’s LC (13 Edn.) 644, [1775-1802] All ER 623.
 Culled online.
 Osborn’s Concise Law Dictionary (8th Edn.) edited by Leslie Rutherford and Sheila Bone, Sweet & Maxwell, London, 1993.
 See Agbogunleri v. Depo & 2 Others (2008) Vol 33 NSCQR 871, 804.
 Agbeshie and Another v. Amorkor and Another (2009) SCGLR 594, S.C.
 Republic v. Adofrakye and Others, Ex Parte Twum [2010-2012] 1 GLR 196.
 Ababio v. Kanga (1932) 1 WACA 253, 254.
 Dintie v. Kanton IV  18 MLG 136 at p. 153.
 At page 142.
 See Kirin-Amgen Inc. v. Boehringer Mannheim GmbH, 31 July 1996, C.A.
 House of Spring Gardens Ltd. v. Waite  1 QB 241.
 Mercantile Investment General Trust Co. v. River Plate Trust, Loan & Agency Co. (1894) 1 Ch. 579, 595, C.A.
 See Anim v. Dzandi (2015) 83 GMJ 44 at 75, C.A.; Abbey v. Ollenu (1954) 14 WACA 567; Attram v. Aryee  GLR 341, S.C; Archiaa v. Ampate  52 GMJ 180; Kwame Adu v. Angelina Boakye-Ansah  85 GMJ 164, 188-189, C.A.; The Registered Trustees of the Catholic Church; Civil Appeal No. J4/30/2014, 2 June 2015, S.C (Unreported) and Odwuma Lakes Farms and Rural Estates Ltd v. Naval Captain Baffour Assassie-Gyimah; Civil Appeal No. H1/117/2017, 14 June 2017, C.A. Accra.
 Republic v. Court of Appeal; Ex Parte Lands Commission (Vanderpuye Orgle Estates Ltd. – Interested Party) [1999-2000) 1 GLR 75.
 See Dennis Dominic Adjei, ‘Land Law, Practice and Conveyancing in Ghana, Third Edition, Printed by Buck Press, Accra (2021) at page 271.
 Attram v. Aryee  GLR 341.
 Registered Trustees of the Catholic Church Achimota v. Buildaf Ltd and Others; Civil App. No. J4/30/2014, 25 June 2015, GHASC 124.
 See for instance Abbey v. Ollenu (1954) 14 WACA 567; Attram v. Aryee  GLR 341, S.C.
 Midras High Court Seshappaya v. Venkatramana Upadya 5 Ind. Cas. 732: 33 459: 20 M.L.J. 752 (1910) M.W.N. 26 at p. 462.
 Jujjuvarapu Kotamma v. Pappala Simhachalam and Others; AIR 1969 AP 76.
 See also the cases of Omiyale v. Macauley & Others (2009) 3 M.J.S.C. 29 at 45 Paras C-D; Mohammed Usman v. A.B.M. Oil Nigeria Ltd & 4 Others; Suit No. CA/J/96/2018, 20 December 2018.
 Everest & Strode’s Law of Estoppel, 3rd Edition) at page 56, 1923.
 Pople v. Evans  2 Ch. D 255.
 Musuru Okunubi v. Antonio Assaf JELR 81642 (WACA).
 See Dennis Dominic Adjei, ‘Land Law, Practice and Conveyancing in Ghana, Third Edition, Printed by Buck Press, Accra (2021).
 Abbey v. Ollenu  14 WACA 567.
 Wiltshire v. Powell and Others  EWCA Civ 534, Times 03-Jun-2004;  3 All ER 235;  3 WLR 666;  QB 117.
 Noyes v. Noyes, 233 Mass. 55, 123 N.E. 395 (1919); Collins v. Hydorn, 135 N.Y. 320, 32 N.E 69 (1892); Baker v. Small, 17 Pa. Super, 423 (1901).
 See Betty M. Armstrong v. Harold A. Miller, 200 N.W. 2d 282 (N.D. 1972).
 Kariyavoulas v. Osei [1982-83] 1 GLR 658. See also Golightly v. Ashrifi (1961) GLR 28.
 Robert von Moschzisker, “Res Judicata”; The Yale Law Journal Vol. 38, No. 3 (Jan 1929), pp. 299-334.
 Anson, Contract (Corbin’s ed. 1919) sec. 284.
 Sun Life Assurance Company of Canada & Others v. The Lincoln National Insurance Co.  Lloyd’s Rep 606;  1 All ER (Comm) 675;  2 CLC 664;  EWCA Civ 1660.
 See Spencer Bower, ‘Res Judicata’. 3rd edn. at 213.
 Mcllkenny v. Chief Constable of the West Midlands Police  QB 283, 321.
 Bernhard v. Bank of America, 19 Cal. (2d) 807, 122 P. (2d) 892 (1942).
 Brobston v. Darby Borough, 290 Pa. 331, 138 Atl. 849 (1927).
 At pages 256-257.
 In the Consolidated Suits of Nene Narh Matti and 2 Others v. Osei Godwin Teye and Samuel Lamm Oyortey and 2 Others v. Osei Godwin Teye; Civil App. No. J4/13/2017, 22 November 2017, S.C. Unreported.
 See also Numo Nortey Adjeifio (Substituted by Nii Adjei Sankuma) & 2 Others v. Nii Mate Tesa (Substituted by Daniel Makwei Mamah) & 5 Others  48 GMJ 65 at p. 105.
 Kwao v. Coker  1 WACA 162.
 Gyetua v. Boafo  GLR 443, SC.
 Nana Darko Frempong II v. Mankrado K. Effah  GLR 205.
 Ofei Kwaku Mante (Substituted by Rev. Alex Aryeequaye) v. Mike Similao & 3 Others; Civil App. No. J4/10/2016, 11 May 2017, S.C. (Unreported).
 Henderson v. Henderson  Hare 100.
 Fidelitas Shipping Co. Ltd. v. V/O Exportleb  1 QB 630.
 See C v. London Borough of Hackney  1 All ER 973.
 See Donald J. Lange, ‘The Doctrine of Res Judicata in Canada’ (Toronto Butterworths, 2000)
 Mahama & Others v. Ashanti Goldfields & Another  5 G.M.J. 179.
 See Osei-Ansong & Passion International School v. Ghana Airports Company Limited [2013-2014] 1 SCGLR 25.
 Andani v. Abdulai  GLR 866.
 Nyame v. Kese [1999-2000] 1 GLR 236; [1998-1999] SCGLR 476.
 Dahabieh v. S.A. Turqui & Bros. [2001-2002] SCGLR 498.
 See Sasu v. Amuah-Sekyi [2003-2004] SCGLR 742.
 A.G. v. Sweater and Socks Factory Limited [2013-2014] 2 SCGLR 946 at 951-952.
 Newell v. Weeks [2 Phillimore, 224.
 Young v. Holloway  Probate 87 at pages 89-90.
 Wytcherley v. Andrews (1871) LR 2 P and M 327.
 In the Estate of Langton, Deceased  EWCA Civ J0124-4.
 Nana Ofori Atta II v. Bonsra II (1958) A.C. 95.
 Yode Kwao v. Kwasi Coker  1 WACA 162 at 167.
 Appoh Ababio v. Doku Kanga  1 WACA 253 at p. 255.
 Akwei v. Coffie  14 WACA 143.
 Bruce v. Quarnor and Another (1959) GLR 40; Majolagbi v. Larbi (1959) GLR 190, 195; Nkum v. Andoh (1959) GLR 358; Abraham v. Akwei (1962) 2 GLR 676; Nyamaah v. Amponsah (2009) SCGLR 361, 368 and Shorme Tetteh & Nii Amon Tafo v. Mary Korkor Hayford, substituted by Stella Larbi & Comfort Decker; Civil App. No. J4/34/2012, 22 February 2012, S.C. (Unreported).
 Society of Lloyd’s v. Fraser [QBD (Comm).
 ML Hart Builders Limited (In Liquidation) v. Swiss Cottage Properties  EWCA 1465 (TCC).
 Nori Holding v. Bank Otkritie  EWCA 871.
 Tianrui (International) Holding Company Limited v. China Shanshui Cement Group Limited  (2) CILR 6, April 6 2020.
 Lim Geok Lin Andy v. Yap Jin Meng Bryan  SGCA 46, Civ. App. No. 152 of 2016.
 Osborne v. Smith (1960) 105 CLR 153, 8 December 1960.
 Mohammed v. Harrilal, TT 2014 HC 379.
 Adesina Oke & Ors. v. Shittu Atoloye & Ors. (SC 259 of 1984)  NGSC 5 (24 January 1986).
 Idowu Alashe & Others v. Sanya Olori Ilu & Others; FSC329/63, 23 December 1964.
 Bampi Aubrey Kapalasa and Another, 2021/CCZ/001.
 Altenburg v. Commonwealth, 126 Pa. 602 17 Atl. 799 (1889). Commonwealth v. Greevy, 75 Pa. Super. 116 (1920).
 Sanusi Alhaji v. The Republic  85 GMJ 11 at 43.
 Oretuyi S.A., ‘An Examination of the Operation of the Doctrine of Res Judicata in Nigeria’; Anglo-American Law Review, Volume 7, Issue 1 (September 2016).
 Marsh v. Pier, 4 Rawle, 273, 288 (Pa. 1833).
 Oretuyi S.A., ‘An Examination of the Operation of the Doctrine of Res Judicata in Nigeria’; Anglo-American Law Review, Volume 7, Issue 1 (September 2016).
 Moorgate Mercantile Co. Ltd v. Twitching  2 All ER 314, 323.
 Rudoph Nortey Otoo & Another v. Nora Odofoley Otoo & Another  70 GMJ 176 at p. 185, C.A.
 Sylvester Ezekpelechi Ukaegu and 6 Others v. Duru Ononanwa Ugoji and 2 Others, SC 226/1988, 18 July 1991.
 See Kwasi v. Larbi  13 WACA 76; Akunor v. Okan  1GLR 173, C.A.; Assampong v. Amadu  1 WACA 192 & Adusiah v. Addae [1982-83] 1 GLR 236.
 See Nyame v. Kese supra; Akwei v. Akwei  GLR 212 at p. 213; Yardom v. Minta III  FC ’26-29’, 7 & Sebeh v. Sekyim  GLR329.
 See the case of Republic v. High Court (Commercial Division), Accra; Ex Parte Attorney General [2013-2014] 2 SCGLR 990 at Holding 4.
 See the cases of Kwao v. Baalefio (2009) 25 MLRG 193 at 170, C.A.; Bedu v. Agbi (1972) 2 GLR 238, C.A.
 Sasu v. Amuah-Sekyi (2003-2004) 2 SCGLR 742 & Siisi v. Boateng & Wilson [2013-2014] 2 SCGLR 1227.
 A.G. v. Sweater and Socks Co. [2013-2014] 2 SCGLR 946 at 951-952.
 Robert von Moschzisker, “Res Judicata”; The Yale Law Journal Vol. 38, No. 3 (Jan 1929), pp. 299-334.
 Stevens v. Hughes, 31 Pa. 381 (1858).
 In Ghana, see the cases of Hydrafoam Estates Ltd. v. Owusu (per lawful attorney) Okine [2013-2014] 2 SCGLR 1117 & Nana Brafo Dadzie II v. John King Arthur & Others; Civil App. No. J4/20/2016, 26 January 2017, S.C. Unreported & Asante Appiah v. Amponsah (Alias Mansa)  SCGLR 90 at p. 98.
 See Robert von Moschzisker, “Res Judicata”; The Yale Law Journal Vol. 38, No. 3 (Jan 1929), pp. 299-334.
 Berkeley v. Dimery (1830) 109 E.R. 393.
 See Sam v. Noah (1982-83) GLR 1122.
 Dagadu and Others v. Addy (1991) 1 GLR 316.
 See Nana Ofori Atta II v. Bonsra II supra.
 Brown v. Ntiri (2005-2006) SCGLR 247 at 268, per Wood JSC (as she then was); Greenhalgh v. Mallard (1947) 2 All ER 255 at p. 257; Dahabieh v. SA Turqui & Bros. [2001-2002] SCGLR 498, 507 and Republic v. High Court, Accra (Commercial Division), Ex Parte Hesse (Investcom Consortium) (Scancom – Interested Party) [2007-2008] SCGLR 1230.
 Republic v. High Court, Kumasi; Ex Parte Boateng [2007-2008] SCGLR 404.
 Youe Kwao v. Kwasi Coker supra; Marbell v. Akwei  14 WACA 143.
 See section 9 (1) of the Land Act, 2020 (Act 1036).
 Arnav Raj Chakravorty, ‘Res Judicata-A Brief Study’ Legal Service India.com.
The author is a Justice of the High Court of Ghana and is currently on secondment in the Gambia. He obtained his LLB at the University of Ghana in 2000 and was called to the bar in 2002. In 2010, he joined the bench as a circuit court judge – after 8 years in private practice. He became a High Court Judge in 2013. Justice Alexander Osei Tutu holds an LLM in International Human Rights from the Fordham University and a Diploma in Transnational Criminal Law from the International Law Enforcement Academy at Roswell, USA.