Definition:
Citing the case of Ababio v. Ohene Doku Kanga (1932) 1 W.A.C.A. 253 at p. 245: “Estoppel per rem judicatam is the rule that a final decision of a Court of competent jurisdiction once pronounced between parties cannot be contradicted by any one of such parties as against any other of such parties in any subsequent litigation between them respecting the same subject-matter.”
Practice Note: Blewudzi And Others V. Dzotsi And Others [1979] GLR 173 Page 177 Division: COURT OF APPEAL, ACCRA
There were two types of judgments to be considered when determining issues of res judicata: (a) judgments in rem, and (b) judgments in personam. A judgment in rem would settle all issues as to the status of the persons or things or as to the right or title to the things and the dispositions of them or the proceeds of their sale and it operated as estoppel per rem judicatam against all persons domiciled within the jurisdiction of the court pronouncing it; whereas a judgment in personam was one inter partes and raised an estoppel against the parties to the suit.
Kariyavoulas & Another V. Osei [1982-83] GLR 658
Conditions for Grant
Grounds and Elements:
Res Judicata is inapplicable in interlocutory judgments.
Vanderpuye V. Nartey [1977] 1 GLR 428 Holding 1 Division: COURT OF APPEAL, ACCRA
Res Judicata is available in respect of judgments obtained by fraud.
Randolph V. Captan & Anor. [1959] GLR 347
For a judgment to operate as res judicata, it had to be a valid and subsisting judgment, that is a final judgment delivered by a court of competent jurisdiction, otherwise it could not operate as res judicata to bind the parties to it.
Republic V High Court, Accra; Ex Parte Brenya And Another [2001-2002] 1 GLR 483 Holding 1
Estoppel of all kinds was subject to the general rule that it could not override the laws of the land, i.e. where a particular formality was required by statute, no estoppel could cure the defect nor give jurisdiction to a court where statute denied it. Consequently, in order that estoppel by record might arise out of a judgment, the court which pronounced the judgment must have had jurisdiction to do so.
Ababio And Others V Karikari And Another [2001-2002] 1 GLR 381 Holding 1
There are six elements which have to be established for a successful plea of estoppel by way of res judicata to avail a party seeking to rely on it, these are:
- that there was a judicial decision which is deemed a judicial decision as such in law;
- that there was a definite pronouncement of the decision relied upon;
- that the tribunal pronouncing the decision had competent jurisdiction to do so;
- that the decision was final;
- that the decision was, or involved a determination of the same question as that sought to be involved in the present suit in which estoppel is raised; and
- that it involves the same parties or their privies, or that the decision was conclusive in rem.
Osumanu V Osumanu And Another [1995-96] 1 GLR 672 Page 683 Division: Court Of Appeal
The fact that the two actions were fought between the same parties and related to the same land did not per se raise the issue of estoppel for the reliefs sought by the two actions were not the same in law.
Sam V. Noah [1987-88] 2 GLR 213 Page 214
Proof of Principle
In order to ascertain whether the parties were the same and also the import of the decision in the earlier proceedings, the whole record of proceedings ought to be examined if a proper determination on the issue of res judicata could be made. And where a party appeared in one capacity in an earlier suit, and in another capacity in a subsequent suit touching the same subject-matter (as in the instant case where AD appeared in a different capacity as the lawful attorney of the plaintiffs), no issue of res judicata would arise to defeat his claim.
Citing West African Court of Appeal in Bassil v. Honger (1954) 14 W.A.C.A. 569 at p. 572 of invaluable assistance. Speaking through Coussey J.A. (as he then was) the court said:
“It is as well to have clearly in mind the distinction between the pleas of estoppel and res judicata. Estoppel prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who, relying upon them, has altered his position. It shuts the mouth of a party. The plea of res judicata prohibits the Court from enquiring into a matter already adjudicated upon. It ousts the jurisdiction of the Court.” Robertson v. Reindorf [1971] 2 G.L.R. 289 at p. 304, C.A. and Yiboe v. Duedu (1957) 2 W.A.L.R. 293 at p. 297 where the following passage appears:
“To operate as res judicata the judgment relied upon must, conclude not merely as to the point actually decided, but as to a matter which it was necessary to decide, and which was actually decided, as the ground-work of the decision itself, though not then directly the point at issue.” at Page 669
Kariyavoulas & Another V. Osei [1982-83] GLR 658 [IBID]