ADADE v MINTAH (J4/3/2026) [2026] GHASC 3 (22 April 2026)

Page 1 of 18 IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A.D.2026 CORAM: LOVELACE-JOHNSON (MS) JSC (PRESIDING) PROF. MENSA-BONSU (MRS) JSC KULENDI JSC ADJEI-FRIMPONG JSC DZAMEFE JSC CIVIL APPEAL NO: J4/3/2026 22ND APRIL, 2026 MADAM AKOSUA ADADE …… PLAINTIFF/RESPONDENT/RESPONDENT VRS OKESSEKU MINTAH (SUBST. BY ……. DEFENDANT/APPELLANT/APPELLANT LAWRENCE MINTAH AFARI) JUDGMENT LOVELACE-JOHNSON, JSC: - The designation of the parties at the high court will be maintained in this appeal. Page 2 of 18 The plaintiff sued the defendant for the sum of 206,000 cedis being the cost of damage caused to her building by the latter when he used a caterpillar to raze it down. She also claimed interest on this sum from February 2018 to the date of final payment. The trial court found an amount of 45,551.68 cedis proved and granted that to her with interest at the commercial bank rate from April 2018 to the date of final payment and costs of 20,000 cedis. Being dissatisfied with the judgment, the defendant launched an appeal to the court of appeal on the following grounds: a) The judgement is against the weight of evidence. b) The judge erred by setting aside a High Court judgment on grounds of fraud when neither fraud was pleaded nor evidence lead on fraud. c) The judge erred when she set aside a High Court judgment on grounds of fraud in addition to granting other relieves for the Plaintiff in the same suit. d) The judge erred when she somoto vacated and set aside a court of Appeal Stay of Execution on the subject matter in Suit number 58/03 where no demand on same was made by any of the parties. e) That the judge exceeded her jurisdiction by setting aside a High Court judgment and Court of Appeals of stay of Execution. f) The judge erred on the assessment of damage to the subject matter. g) The Cost of GH¢20,000.00 against the Defendant is extremely high in the circumstance of this matter. h) Other grounds of appeal will be canvassed upon obtaining a copy of the full judgment. Page 3 of 18 The court of appeal found that only four of the above ie grounds a, b, c and e were argued in counsel’s submissions. The court considered grounds (b) and (c), found that they had merit, upheld them and stated that with this finding, no useful purpose would be served by determining ground (e) which alleged that the trial high court judge exceeded her jurisdiction when she set aside the judgment of another high court and the stay of execution granted by the court of appeal. Under omnibus ground of appeal ie ground (a) the court upheld the finding by the high court that the defendant was ‘liable for the demolition and the Respondent is entitled to her claim’. The court however based this finding on a different ground from that of the high court (which it set aside) and stated that the Sheriff became the defendant’s agent as the demolition was done on his instruction. It was satisfied that notwithstanding its disagreement with the basis for granting the relief, the said reliefs were supported by the evidence on record. The court of appeal also found that the conduct of the defendant in this matter amounted to an abuse of the process of the court. Being dissatisfied with this judgment, the defendant has appealed to this court on the following grounds (1) The judgment is against the weight of evidence adduced at the trial (2) The court erred when it factually speculated that the Defendant/Appellant/Appellant withheld vital information from the Registrar/Sheriff of the Court at the time of execution of the High Court Judgment when no evidence was led at trial to prove same. Page 4 of 18 (3) The court erred when it concluded that the Registrar/Sheriff of the Court being a public officer of the Republic became an agent of the Defendant/Appellant/Appellant. (4) The court erred when it held that the Defendant/Appellant/Appellant had resorted to the abuse of Court processes without resource to the full complement of the facts as to why the appeal and stay of execution against the decision of the Circuit Court in the Court of Appeal had stalled. (5) The court erred when it held that because the Plaintiff/Respondent/Respondent had in her custody receipt given to her by the Defendant/Appellant/Appellant, the Defendant/Appellant/Appellant’s interest had been extinguished even though ownership of title was not under determination in this instant appeal. (6) Additional grounds of appeal will be filed upon receipt of the Records of Appeal. No additional grounds were filed as had been indicated in ground (6). Counsel for the defendant labelled the grounds alphabetically in his statement of case. In sum, the argument of counsel for the defendant on grounds 2, (b) and 3(c) is that the position of the court of appeal relating to the defendant’s dealings with the sheriff and his alleged position as defendant’s Agent did not arise from the grounds of appeal filed against the high court judgment before it. Indeed that these issues did not arise during the trial so no evidence was led on them and so having failed to gi ve the parties an opportunity to address the court on it, The court breached its rule 8(9) which required that such an opportunity be given to the parties to be heard. On ground (d) which relates to the court’s finding that the defendant had abused the court’s processes, counsel submits in short, that, having satisfied the mandatory Page 5 of 18 requirement of paying the required court fees and the Registrar not having applied for the striking out of the appeal for non-compliance, the defendant had done his part. What was left to be done was administrative and he could not be accused of exploiting the judicial process to his advantage ie abusing the court process. On the omnibus ground that the judgment is against the weight of evidence adduced at the trial, counsel for the defendant contends in sum that since the ownership of the disputed land has not been conclusively determined due to the pending appeal and a subsisting stay of execution, plaintiff is not clothed with capacity to claim damages even if the execution by defendant was indeed wrongful. No submissions were made on ground 5,(e) of the appeal. It is deemed abandoned. The first complaint of the Plaintiff is that the grounds of appeal enumerated in 2,(b) to 5, (e) sin against rules 6(2)(f) and 6(4) of the Supreme Court Rules 1996 (C I 16), which states as follows Rule 6(2): A notice of civil appeal shall set forth the grounds of appeal and shall state- …………….. (f) the particulars of a misdirection or an error in law, if that is alleged” Rule 6(4) also states; “The grounds of appeal shall set out concisely and under distinct heads the grounds on which the appellant intends to rely at the hearing of the appeal, without an argument or a narrative and shall be numbered seriatim and where a Page 6 of 18 ground of appeal is one of law, the appellant shall indicate the stage of the proceedings at which it was first raised” This court has stated in several cases that a failure to particularise allegations of misdirection or errors of law will lead to their being struck out as a consequence. However where they can be inferred from the wording of the grounds and thus enable the complaints therein to be effectively addressed, such a failure tends to be overlooked by the court. See the case of Susan Bandoh vs Mrs Maxwell Apeagyei-Gyamfi & 1or [2019] DLSC 6502@ page 2 A study of the defendant’s grounds (b) to (e) show that they do not allege error of law on the part pf the court of appeal. There is therefore no requirement to particularise them. Though they are argumentative and narrative they are not vague and succeed in putting across the complaints of the defendant and so will not be struck out, in the interest of justice. That having been said, we are also of the opinion that this appeal can be determined by the resolution of the first ground of appeal that is the omnibus ground that the judgment is against the weight of evidence which calls for the court to conduct a rehearing of the matter by an analysis of the evidence on record with special attention to the particular complaints which the appellant is duty bound to point out, with the sole purpose of satisfying itself that on the preponderance of probabilities, the lower court’s conclusions are supported by the evidence on record. See the cases of Mfum Farms and Feedmill Lt vs. Madam Agnes Gyamfua [2018] DLSC 2484@ page 4 Olivia Anim (suing per her lawful attorney Diana Mensah Bonsu) vs. William Dzandzi [2019] DLSC 6503@ page 6 among a host of cases on the court’s duty in such circumstances. Page 7 of 18 What was the conclusion of the court of appeal in this matter? The court concluded that the plaintiff was entitled to damages for the destruction of a structure destroyed because it was done at the instance of the defendant by the sheriff who did so as an official duty. The trial court had also found that the defendant was liable for damages for the destruction but for different reasons, which the court of appeal had disagreed with and therefore set aside those reasons but as stated earlier found the grant of damages justified for its own stated reasons and so affirmed them. To put this appeal in proper context the claim of the plaintiff will be reproduced hereunder. The claim was for i. An order for the recovery of Two Hundred and six Thousand Ghana Cedis (GH¢206,000) with interest from February 2018 until date of final payment ii. Any other order(s) the Court may deem fit, just and equitable in the circumstance of the case. Plaintiff’s paragraph 9 states in part that “….the defendant had employed a caterpillar and pulled down her….building structure completed awaiting roofing and its walls, Particulars of Damages/Destruction (i) First construction cost of fence walls destroyed/damaged by the defendant in the year 2013 at Ten Thousand Ghana Cedis (GH¢10,000) (ii) Estimated cost of building structures destroyed/damaged at One Hundred and Ninety-Six Thousand Ghana Cedis (GH¢196,000). The above shows the basis of her claim for the monies stated in her writ. The questions to be answered are whether the defendant destroyed the properties in question, whether he was justified in doing so, if he was not whether plaintiff was entitled to damages and if she was so entitled, the quantum she was entitled to. Page 8 of 18 How did the court of appeal answer these questions and are these answers or findings borne out by the evidence on record? The record shows that there are two judgments regarding the piece of land upon which stood the structures whose destruction the plaintiff is claiming damages for. a. The circuit court judgment between the parties in which judgment was delivered in favour of the plaintiff on 12th August 2013 b. The high court default judgment between the defendant and one Kwame Togbe delivered on 18th October 2013 The circuit court judgment which was prior in time to the high court judgment granted the plaintiff declaration of title, recovery of possession and perpetual injunction. The defendant appealed against the judgment and obtained a stay of its execution. Irrespective of this, that judgment remained the subsisting judgment as between the present parties in respect of the land in question until it was set aside. It has not been contended that this has happened. See the case of Nkrumah v Atta [1972] 2 GLR 13 cited by counsel for plaintiff where it was stated that: “A judicial decision, otherwise final, is not the less so merely because it is appealable. If it is incapable of revision by the court which pronounced it, it is final in that court and it is wholly immaterial that it is capable of being rescinded or varie d by some other court invested with competent appellate jurisdiction” Having been declared owner of the land by the subsisting circuit court judgment as between her and the defendant, the court of appeal was right in its finding that the plaintiff had a valid cause of action against the defendant in respect of the demolition of the structures on it. The court was also correct in its position that the stay of execution and the high court judgment declaring defendant as owner as against Togbe Kwame did Page 9 of 18 not reverse the declaration by the circuit court that Plaintiff was owner of the land as between the two of them since she as not a party to that suit. The tenor of the defence of the defendant at the trial is an admission that he destroyed the structure in question. His justification is that he obtained judgment against one Kwame Togbe and “properly executed it”. It is undisputed that this high court judgment was given after the circuit court judgment which had resulted from a trial in which the defendant participated. It appears from the submissions of counsel in his statement of case that if ( and that is what he contends) the defendant went through the normal processes to execute his judgment against Togbe Kwame, which execution led to the demolition of plaintiff’s structure then the former is covered and cannot be held responsible in damages for that action. That position may have been tenable if defendant had not been a party to the circuit court action. It may have been tenable if he had had no knowledge of the judgment resulting from that action. It may have been tenable if that judgment had NOT been prior in time to the high court judgment. It may have been tenable if he had given the plaintiff notice, as required by law since to his knowledge, she was the one in possession. The above stated not being the true state of affairs, counsel’s position is not sup ported by the evidence on record. The circuit court judgment still subsisting and the present case not being an appeal against that judgment, there is no need to go into the merits of that matter in this judgment. The court of appeal was right that embarking on that journey was what led the trial high court astray. What should have been determined was whether the demolition was lawful in the circumstances that is regarding its effect on the plaintiff Page 10 of 18 especially where the pleadings and evidence led clearly show an admission by the defendant that it was done at his instance. Counsel for the defendant accuses the court of appeal of importing matters that were not in contention during the trial into the appeal, that is the issue of the sheriff being kept in the dark about the plaintiff’s interest in the land during the execution of the high court judgment which execution led to the demolition in question. Counsel says it was wrong for the court of appeal to make such an assumption without the full facts and base its judgment on it. The court of appeal had this to say at page 395 of volume 2 of the Record of Appeal (ROA). “What is the effect of the Appellant’s admission that the execution that resulted in the demolition of the property which Respondent claims to be hers was at his instance? It is undisputed that: 1. Appellant was sued in the circuit court in respect of the same land 2. Appellant participated in the case including the trial 3. Appellant sued Kwame Togbe in the High Court 4. Judgment was given in the Circuit Court case 2 months prior to the judgment of the High Court. 5. At the time the Appellant was pursuing the execution in respect of the land he knew that the Respondent had obtained judgment in respect of it against him 6. Appellant did not inform the Registrar or Sheriff that the Respondent had obtained judgment against him before or during the execution. 7. Appellant knew that he had appealed against the Circuit Court judgment and obtained an order for stay of execution against it. Page 11 of 18 8. The following court processes had been instituted or concluded to the knowledge of the parties especially the Appellant i. Execution of the High Court judgment ii. Stay of execution at the Court of Appeal iii. Application to the Court of Appeal to lift the Stay of Execution …………………….. ……………………. ……………………. The matters we have listed above were perculiarly within the knowledge of the Appellant. He did not disclose the fact of the victory of the Respondent in in the Circuit Court to the Sheriff to enable him to independently decide on what to do. Secondly, the Appellant was singularly aware of the Respondent’s development on the land……..It is evident from the evidence that before any of the two cases went to court, the parties herein had dealings in respect of the land. We also put emphasis on the fact that in respect of the land, the Appellant knew beyond any shadow of doubt that the Respondent had obtained a judgment against him which had declared her owner. Why did he keep this very critical and vital information from the Sheriff when he was providing the particulars for the execution? There can be no excuse. In the circumstances, our conclusion is that the Sheriff became a servant or agent of the Appellant and carried out the Appellant’s directions to him. The Appellant is therefore liable” The court of appeal’s conclusion that the defendant did not inform the Registrar or the Sheriff about the circuit court judgment against him is definitely supported by the evidence. His failure to reveal the circuit court judgment smacks of bad faith and should not be countenanced. Th court of appeal in refusing to vacate its earlier order staying execution of the circuit court judgment had warned both parties not to develop or sell the Page 12 of 18 disputed land. The defendant being party to these proceedings was very aware of this order and yet proceeded to go into execution against it under the guise that the said execution arose out of a different matter, a matter in which the other party had stated in a connected process that the land belonged to the plaintiff herein. No better evidence of bad faith is needed than this. The sheriff, normally, acts upon the instructions of the judgment creditor, here, the defendant. It has not been intimated anywhere in the proceedings that the Sheriff acted contrary to instructions or beyond the scope of his authority. That being so, the conclusion of the court of appeal that the defendant must bear the consequences of the Sheriff’s actions, same having resulted in a liability, in the circumstances of this case, is not just commonsensical, it is also just. This conclusion does not amount to the raising of a new issue by the court ex proprio outside the confines of the pleadings as contended by counsel. The courts exist to do justice and in exercising its power of rehearing in an appeal, a court must ‘ascertain from the records whether substantial justice has been done’ per Anin Yeboah JSC in the case of Mohammed Odartey Lamptey v Lands Commission & 3 ors Civil Appeal No 34/18/2015 Flowing from the above will be a confirmation of the court of appeal’s position that the peculiar circumstances of this case justify the treating of the Sheriff as the agent of the defendant. It is trite that it is the Principal who is responsible for liabilities which arise as a result of an agent who acts within the scope of his authority. Treating the defendant as a Principal is a justified means of obtaining justice for the plaintiff (who was not given any notice of the said execution, as the actual person in possession, as required by law) against the defendant who, one can firmly conclude from the record, did not disclose the existence of the circuit court judgment in favour of the plaintiff, on the same subject matter during the execution process. Page 13 of 18 In conclusion, we dismiss this appeal as unmeritorious and affirm the judgment of the court of appeal, being satisfied that on the preponderance of probabilities, it is supported by the evidence on record. (SGD.) A. LOVELACE-JOHNSON (MS) (JUSTICE OF THE SUPREME COURT) (SGD.) PROF. H. J. A. N. MENSA-BONSU (MRS) (JUSTICE OF THE SUPREME COURT) (SGD.) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT) (SGD.) S. DZAMEFE (JUSTICE OF THE SUPREME COURT) Page 14 of 18 CONCURRING OPINION KULENDI JSC: 1. I have had the distinct privilege of reading the judgement of my esteemed sister and fully concur with the reasoning and conclusions reached. There is however, a fundamental ethical issue concerning a glaring conflict of interest in legal representation that I noticed from my reading of the record that I am unable to refrain from addressing. 2. The rules prohibiting lawyers from placing themselves in conflicts of interest in respect of rendering legal services do not only find expressions in the code of ethics adopted by the bar but same have been codified in legislation. 3. Accordingly, a breach of these Rules therefore cannot be glossed over by a Court when an objection is raised, or when the processes filed before a court betrays the occurrence of a case of conflict of interest. 4. A lawyer is prohibited from representing two parties in the same or substantially related matter where the interest of a former client is adverse to or at variance with a new client. This rule extends to the entire law firm. If a lawyer at a firm cannot represent a client due to a conflict, then by the dictates of the law, no other lawyer at that same firm can represent such a client either. 5. In this regard, Rule 21 of the LEGAL PROFESSION (PROFESSIONAL CONDUCT AND ETIQUETTE) RULES, 2020 (LI 2434) states as follows: Page 15 of 18 “Duty to former client 21. (1) A lawyer who has formerly represented a client in a matter shall not represent another person in the same or a substantially related matter in which the interest of that person is materially adverse to the interest of the client. (2) A lawyer shall not represent a person in the same or a substantially related matter in which a firm with which the lawyer was associated had, to the knowledge of the lawyer, previously represented a client (a) whose interest is materially adverse to the interest of that person; and (b) about whom the lawyer had acquired information protected by these Rules that is material to the matter.” 6. The rationale underpinning this rule is self-evident. A client who consults counsel must do so with complete confidence that disclosures made in the course of representation will never later become instruments of prejudice in the hands of the same counsel or firm acting for an adverse party. 7. The consequence of a breach of this duty by lawyers and law firms may not only result in disciplinary action being taken against such conduct, but may also lead to the invalidation of processes filed or, at the very least, the striking out of such a lawyer’s name from the suit as counsel. Courts cannot shut their eyes to conduct that undermine the integrity of judicial proceedings. 8. This Court has on previous occasions emphasised the need for legal practitioners to maintain the highest standards of ethical propriety. In a ruling of this court dated 28th July, 2020 in Civil motion No.: J5/24/2020 entitled Republic vrs High Page 16 of 18 Court, Ex Parte Charles Zwennes, Philip Addison & 2 Others as Interested Parties, Dotse JSC, in his epilogue to the ruling stated as follows: “We reiterate and affirm the long held cherished views that the Legal Profession is an honourable, learned and noble profession…If indeed Lawyers are honest people which by their training and codes of ethics and the position they occupy in society they ought to be, then they must in the practice of the profession endeavor to eschew any practices, and or tendencies that are likely to give any indication of conflicting their roles in the discharge of their professional responsibilities. That is the way for the profession to maintain its dignity, honour and respect.” 9. The legal profession is a calling grounded in fidelity, candour, loyalty, confidentiality and the unwavering duty of counsel to uphold the dignity, sanctity and integrity of judicial proceedings and the Courts. 10. The prohibition against conflict of interest is a long established rule of the legal profession, developed over centuries to preserve the integrity of legal representation and to ensure that confidential information is never weaponised against a former client. 11. That notwithstanding, rule 21 of LI 2434 does not require a demonstration of receipt of confidential information. Once it is established that the Lawyer has previously acted or represented a client in a related matter, such a lawyer SHALL NOT be permitted to act for a different client whose interest is adverse to that of the former client. The rule is one of caution, not certainty. It is just reasonable and appropriate that Lawyers do not put themselves in situations that undermine their integrity and make persons apprehensive of information they divulged to their Page 17 of 18 Lawyers for fear of the Lawyer using such information to aid an adversary against the disclosing party. 12. From my reading of the record, this suit is an offshoot of Suit No.: 58/03 entitled Madam Akosua Addai vrs. Okesseku Minta Afari which was filed before the Circuit Court and a judgment delivered on 12 th August, 2013 adjudging Plaintiff/Respondent/Respondent (hereinafter called “the Plaintiff”) as owner of Plot 35 Block E, Ejisu. The record further reveals that Counsel who executed the judgment in Suit No.: 58/03 for the benefit of the Plaintiff is the same Lawyer for the Defendant/Appellant/Appellant (hereinafter called “the Defendant”) in this appeal. In fact, pages 43, 45, 46, 47, and 49 of the Record of Appeal shows counsel as having filed various processes including motion for writ of possession to issue and an application for the committal of the Defendant for contempt. 13. The said contempt application sought to have the Defendant committed to prison for his “deliberate act and conduct in disregarding a perpetual injunction restraining Appellant whether by himself, his agents, labourers from further continuing with the interference with the property, and wall of House No.: Plot 35 Block “E”, Ejisu/Ashanti”. 14. It is therefore surprising that the appeal to this Court, which is founded on the Plaintiff’s claim to an entitlement to an award of special damages for unlawful demolition of a portion of House No.: Plot 35 Block E by the Plaintiff was filed by Plaintiff’s lawyer in Suit No.: 58/03 for the benefit of the Defendant. 15. In respect of the same matter or substantially the same matter therefore, one lawyer has acted for the Plaintiff herein as counsel in Suit No.: 58/03 and for Defendant in respect of this appeal. We deprecate this conduct and caution Page 18 of 18 lawyers and practitioners against such conduct and practices. It detracts from the ethical standards set for practitioners. 16. We cannot overemphasize the fact that the bar remains a noble profession precisely because society expects lawyers to maintain standards higher than those ordinarily imposed on commercial actors. Consequently, lawyers must pay heed lest they bring themselves and the esteemed profession of the law into avoidable reproach and disrepute. (SGD.) E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT) COUNSEL EMMANUEL ABOAGYE ESQ. FOR THE DEFENDANT/APPELLANT/APPELLANT ALFRED A. QUARSHIE ESQ. FOR THE PLAINTIFF/RESPONDENT/RESPONDENT.