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Judgment & Pleadings of Previous Suits in Res Judicata: To Tender or Not to Tender?

Source: Justice Alexander Osei Tutu

Judgment & Pleadings of Previous Suits in Res Judicata: To Tender or Not to Tender?
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Introduction

When a name or concept is ‘corrupted’ over time due to its misspelling or mispronunciation, it becomes very difficult to revert to the original name or concept. Who would have thought that Kofi Ofori Dua will one day become Koforidua, for Nungua to be anglicized for Ningo-wa, Techiman for Takyi Oman, Cape Coast for Oguaa, Ningo for Nugo and Prampram for Gbugla? For the names of human beings, Muslim Khatib illuminates that Umar has now become Moro, Abu for Bukari, Zenabu has taken the place of Zainab, Hussein has been substituted with Fuseini, while Dramani has replaced Abdul Rahman. On a personal level, I still recall that several decades ago, my grandmother and the old folks in my hometown would call me ‘Oseeetu’, other than its corrupted version ‘Osei Tutu’.

I am particularly certain that not many a football enthusiast knows that Ghanaian football legend, Abedi Pele, was not born Abedi Ayew, but for the corruption of his name. Born to an Accra based Gurunsi (Kassena) chief, his father who was not accustomed to eating outside of his home, was forced to eat outside one day when he went out. Upon returning home without yielding, he found that his wife had delivered a baby boy, so he proudly named him ‘Abadi Ayuu’. ‘Abadi’ literally meaning - ‘I will not eat’. Whilst growing up, society found a way of changing the name of the footballer, who seemed helpless in trying to restore his originality.

The trouble in restoring a corrupted name or concept over a period of time plays out prominently in the evidential principle of relying on pleadings and judgment as proof in dealing with the defence of estoppel per rem judicatam. Per the doctrine, cases are not to be relitigated after they have been determined to finality and it operates either as a preclusion to a cause of action or the issues. The evidential rule which was developed and construed long ago was that the one seeking to rely on the previous judgment was required to produce the said judgment as well as the entire record in evidence before the defence could succeed.

The courts have had to contend with whether the true import of the rule requiring the production of the judgment and pleadings in the previous case actually meant their tendering in evidence in the new case. In pursuing that course, two seemingly inconsistent positions have emerged. The paper interrogates the two positions and the recent attempt by the Apex Court to reconcile them. Was the Court able to rectify the ‘corrupted version’ of the estoppel per rem judicatam rule or just like Abedi Ayew, it is too late in the day to establish its originality?


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