Estoppel per rem judicatam
Spencer-Bower and Turner’s book, Res Judicata, defines estoppel by res judicata as
a rule of evidence and may be stated thus: “where a final decision has been
pronounced by a judicial tribunal of competent jurisdiction over the parties to, and the
subject matter of the litigation, and any party or privy to such litigation, as against any
other party or privy thereto is estopped in any subsequent litigation from disputing or
questioning such decision on the merits whether it be used as a foundation of action or
relied upon as a bar to any claim.”1
In simpler terms, estoppel by res judicata means that once a court has made a final
decision on a legal issue between certain parties, neither side can go back to court to
re-litigate the same issue again. This applies to anyone who was involved in or closely
connected to the original case. So, if a court has already decided something, you can't
keep arguing about it in future cases.The doctrine in English stands for “Rule of
Estoppel By Judgement”.
This doctrine is based on two ground policies;
1. It is in the public interest that there is an end to litigation.
2. Nobody should be vexed twice on the same matter.
In In re Sekyedumase Stool; Nyame v Kese Alias Konto2 it was held per Acquah JSC
(as he then was) that:
the concept of res judicata applies to any final decision made by a court on a legal
matter. Once a court has made a final decision on a legal issue between certain
1
Adu-Gyamfi, D. (2022, November 22). Default judgment and the doctrine of Estoppel per rem Judicata: A legal
conundrum In Order 10 Rule 6 & Order 13 Rule 6(2) of the High Court (Civil Procedure) Rules, 2004 (C. I 47) - ::
Ghana Law Hub. :: Ghana Law Hub. https://ghanalawhub.com/default-judgment-and-the-doctrine-of-estoppel-
per-rem-judicata-a-legal-conundrum-in-order-10-rule-6-order-13-rule-62-of-the-high-court-civil-procedure-rules-
2004-c-i-47/
2
[1998-99] SCGLR 476
parties, neither side can go back to court to re-litigate the same issue again. This
applies to anyone who was involved in or closely connected to the original case.
The court further explained that there are three types of estoppel that fall under the
plea of res judicata:
I. Cause of action estoppel
It applies when the cause of action and the parties (or their privies) are the same in
both the current and previous proceedings. This means that if the same cause of action
arises between the same parties in a later case, the court will not re-examine it.
II. Issue estoppel in the strict sense
It arises when issues, whether factual or legal, have already been decided in previous
proceedings between the parties. This means that if an issue has already been decided
in a previous case, it cannot be re-litigated in a later case between the same parties.
III. Issue estoppel in the wider sense
It applies when issues should have been litigated in previous proceedings but were not
brought before the court due to negligence, inadvertence, or accident. This principle,
known as the Henderson v Henderson rule, prevents parties from raising issues in
later cases that should have been raised in earlier cases.
In Mensah v Intercontinental Bank Ghana Ltd3 It was held per Adinyira JSC that:
“Ordinarily, this plea is available only after the issue has been determined in a
contested action in which both parties have been heard. But it has been held to apply
even in cases where the decision was reached in default of either party.
A default judgment is a decision made by a court when one party in a legal case fails
to respond or defend themselves within the specified time frame. This judgment is not
3
[2010] 26 MLRG 10 SC
based on the merits of the case or the arguments presented by either side but rather on
the fact that the party did not participate in the legal process as required.
TYPES OF RES JUDICATA
1. Defensive collateral estoppel: estoppel asserted by a defendant to prevent a
plaintiff from relitigating an issue previously decided against the plaintiff.
2.Offensive collateral estoppel: estoppel asserted by a plaintiff to prevent a
defendant from relitigating an issue previously decided against the defendant.
3. Non-mutual collateral estoppel: estoppel asserted either offensively or
defensively by a nonparty to an earlier action to prevent a party to that earlier action
from relitigating an issue determined against it.4
4
estoppel per rem judicatam definition · LSData. (n.d.). https://www.lsd.law/define/estoppel-per-rem-judicatam
