Division: IN THE SUPREME COURT
Date: 29 FEBRAURY 1964
Before: ADUMUA-BOSSMAN, MILLS-ODOI AND OLLENNU JJSC
JUDGMENT OF ADUMUA-BOSSMAN JSC
This appeal is against a decision of Charles J. dated 5 June 1962 in the Sekondi High Court whereby he gave judgment against the plaintiff-appellant (hereinafter called shortly the appellant) dismissing his claim for (1) a declaration of title to the parcel of land described in the writ, (2) £G500 damages for trespass and (3) perpetual injunction to restrain the defendant-respondent (hereinafter called the respondent), his agents and servants from further commission of trespass on the said parcel of land.
In the statement of claim filed on behalf of the plaintiff the following material averments were made:
“(3) Plaintiff’s stool has attached to it a large tract of land including the land described in the writ of summons herein, [the description of the land in the writ was then repeated or reproduced in this paragraph of the statement of claim].
(4) In the year 1943 plaintiff ‘s stool brought an action against the stool of the defendants in the native tribunal of the paramount chief of Benyin, Western Nzima, claiming ownership of the land described above.
(5) Judgment was given in favour of plaintiff ‘s stool with £15 costs, against the stool of the defendants on 14 September 1945.
(6) In a later suit between the plaintiff ‘s stool and that of the defendants in the Land Court, Sekondi, the court held that the judgment of the native tribunal of 1945 did not show the identity of the land in dispute with sufficient certainty to create an estoppel.
(7) On appeal to the Court of Appeal the latter court upheld the judgment of the Land Court and ordered the plaintiff to bring a fresh action in order that the real issue, namely, the title to the land, may be decided.
(8) Wherefore plaintiff claims against the defendants in terms of the writ of summons.”
In the statement of defence filed on behalf of the defendants, the material averments were these:
“(3) The defendants do not admit paragraph 3 of the statement of claim. The greater portion of the land described in the writ and in paragraph 3 of the statement of claim is the property of the stool of Awhaka.
(4) The land attached to the defendant’s stool of Awhaka includes and is contiguous to a piece or parcel of land . . . the boundaries whereof, described in this fourth paragraph of the statement of defence were well described in a plan prepared and tendered in evidence in the case of Chief Kwami Yamikeh v. Chief Bazzie Kpanyili and Another (tried in the Land Court, Sekondi, in which judgment was given on 4 May 1959).
(5) The said land has been attached to the stool of Awhaka from time immemorial, and the defendants have been in undisturbed possession of same exercising acts of ownership without opposition for hundreds and hundreds of years.
(6) The defendants deny paragraphs 4, 5, 6 and 7 of the statement of claim, the same being incorrect and misleading.
(7) The defendants deny that plaintiff is entitled to the reliefs claimed.”
In due course the parties agreed upon, and the learned judge accepted, the following as the sole issue for trial: “whether the lands the subject-matter of this action are attached to the stool of Adjasa or the stool of Awhaka.”
It is to be observed that the stool of Awhaka, the respondents’ stool, had not counterclaimed for
ownership, so that strictly speaking, the only issue which arose is whether the lands claimed belong to, or are owned by, the appellant’s stool or not. That issue of ownership thus raised by, or upon, the pleadings turned however upon two preliminary issues or questions of fact, namely, (a) whether the area the subject-matter of the instant action was, and is, not the same as, or identical with, the area the subject-matter of an earlier action between the same stools of Adjasa and Awhaka which was heard and determined in the tribunal of the paramount chief of Benyin, entitled Chief Kwami Yamikeh of Adjasa (Plaintiff) v. The Stool of Waaka per Nda Ackah (Defendant) in which judgment was delivered on 14 September 1945 for the plaintiff in the said action (hereinafter referred to as the 1945 case); and (b) whether the southeastern boundary of the land in dispute described and claimed by the plaintiff as being:
“Somianza and Ebakpo (or A-bakpo) streams and Twennen Stool lands” was, and is, not incontrovertibly established by the judgment dated 1 May 1956 delivered by the Western Nzima Native Court B at Benyin in a suit entitled Amgbole Nyan, etc. representing the stool of Adjasa (Plaintiff) v. Nana Kojo Menla: Chief of Twennen, representing the stool of Twennen.
It seems more convenient to consider and deal with the second question first. In embarking upon that consideration it seems necessary to examine the evidence of the parties concerning that south-eastern boundary. The plaintiff’s evidence-in-chief about that south-eastern boundary which he had described in his writ and statement of claim was this:
“We have litigated with the Twenani stool in respect of the land to the east (south-east) and we obtained judgment . . . The defendants claim to have a boundary with Twenani stool, but this is not so . . . I know the Adahor stream and it is a boundary of our land on the eastern (south-eastern) side of Twenani land. I know the Somianza river. It is our boundary with Twenani land which is to the south-east. Adahor stream runs through our land and Twenani land.”
Under cross-examination he added the following: “Our eastern (south-eastern) boundary with the Twenani stool extends from Somianza stream to Ezukwey.”
For the defendants, Safohene Ezar Kwaw who represented the Awhaka stool to give evidence because the first defendant, the chief, had been installed only three years before the action, in his evidence-in-chief claimed a boundary at the south-west with the Twenani stool along certain points which he indicated, and at the south-east with Kengen stool by the Somianza stream 3⁄4 as shown by the green line along the south of the area claimed by his stool in the plan exhibit A. Under cross-examination, however, he was forced to make a number of admissions which were, and are, definitely destructive of the case of his stool, as follows:
“The land south-east of our boundary from Atum Hill to Somianza stream belongs to Twenani stool. I do not know that in the dispute between Twenani stool and Adjasa stool in respect of this land Adjasa stool was declared to be the owner of this land. I know Kojo Ackah Kojo who was the caretaker of the stool of Awhaka. I do not know if Kojo Ackah Kojo gave evidence for Twenani stool in the dispute between Twenani stool and Adjasa stool . . . when the litigation started I was at Awhaka, but I was not there when Kojo Ackah gave evidence. I know of the
litigation between Twenani stool and Adjasa stool subsequent to 1956, and the court declared that the land belongs to the Adjasa stool, not to Twenani stool.”
The judgment referred to by the witness appears to have been used as exhibit C in the previous action between the plaintiff and the defendants which was transferred from the Western Nzima Native Court B to the Land Court, Sekondi, where, after a plan had been prepared pursuant to an order of the court, the action came to be tried and decided adversely against the plaintiff, who, however appealed, and the court, although confirming the judgment of the court below, granted liberty to bring a fresh action, i.e. exhibit B before Charles J. On referring to that judgment between Adjasa stool and Twenani stool (at pp. 93-94 of the record) we find that the trial native court clearly and categorically defined the boundary between Adjasa and Twenani stool lands in these words:
“The boundary between the plaintiff’s stool lands and the defendant’s stool lands is as
follows—commencing from the Ezukwey on the boundary to Kabla Ezan’s land it stretches northwards in an easternly direction across the Kendin-Wam stream, thence on to Atum village in ruins, thence on to the Adahosu ruins, thence on to Somia-Erza stream.”
It may be pointed out, in passing, that when the boundary so defined is attempted to be ascertained or traced on the plan exhibit A it will be found to follow exactly, or coincide with, the southern red line claimed by the plaintiff, i.e. when traced from the south-westernly point, Ezukwey in a north-easternly direction to meet the Somianza stream. But to continue with the examination of the judgment—after defining the boundary as aforesaid the judgment ultimately made most significant disclosures when it disclosed that:
“After patiently hearing the evidence of both parties and their witnesses, the court ordered the inspection of the disputed lands and farms said to have been trespassed on by defendant and his subjects. During the inspection both parties agreed that the same lands and farms were previously in dispute between the twostools (Twennen and Adjasa) and judgment was delivered in favour of Adjasa (Chief Kwame Yamikeh) now represented by the present plaintiff. Defendant’s witness Kojo Ackah Kojo, caretaker of Awaka stool gave evidence to the satisfaction of the court that the correct or existing lands boundary between the stool of
Twennen and Adjasa, lies from Ewukwesu (Ezekwey) southerly straight to Somiah-Arzah north, which was inspected by the court . . . As both parties already delineated their boundaries of the lands between them in the previous action, now the court considers that, (from the evidence) at the inspection, the defendant and his fifteen people or subjects committed trespass to the plaintiff’s stool land. The plaintiff’s possession of the land in dispute cannot now, and it is not to, be disputed by the defendant.”
The disclosures that (1) there had been an earlier action about the same land between Adjasa and Twenani stools in which judgment had been given for Adjasa stool; and (2) that, at any rate in the second action from the judgment of which the citation is made, the caretaker for the time being of the Awhaka stool gave evidence for the defendant (Twenani stool) but even so admitted or acknowledged the boundary claimed by Adjasa stool, are significant. They are significant, because they amount to, or constitute, conduct on the part of the caretaker and accredited representative of the Awhaka stool, which, if estoppel had been pleaded, would have enabled the plea to be sustained. That appears to be so, because when, to the knowledge of the said caretaker of the Awhaka stool, the Adjasa stool claimed as against Twenani land, right down to the southern red line of the area edged red in the plan exhibit A—and the said caretaker of the Awhaka stool must have known of it because he was a witness in the case who testified about that boundary and took part in the inspection of the land, according to the judgment—he was bound to apply to be joined as a party in order not only to oppose the Adjasa stool’s claim to that portion of land, but also to endeavour to establish the alleged ownership of his own the Awhaka, stool. As he did not do that, but on the contrary, gave evidence for the Twenani stool, and even then admitted the boundary claimed by the Adjasa stool, it seems to me that if estoppel by the judgment obtained against the Twenani stool had been pleaded, the said caretaker and accredited representative of the Awhaka stool, or rather then stool which he represented, would have been estopped. Estoppel, however, was not pleaded, and therefore
the facts, i.e. (1) that the result of the litigation between the Adjasa and Twenani stools is that the Adjasa stool was, not once but twice, adjudged and declared owner of the land; and (2) that the Twenani stool per its accredited representative at the time of the litigation admitted on oath the boundary with Twenani stool land which the Adjasa stool claimed, became available as pieces of evidence in support of the appellant’s case in the instant action (see as to (1) the result of the litigation, Akoto III v. Agyiman I,1 in which Vooght v. Winch2 was adopted and applied; and (2) as to the admissions of the representative of the Awhaka stool, Okai II v. Ayikai III3). Now, as pieces of evidence those acts or circumstances are, undoubtedly, cogent and incontrovertible, and serve, in my opinion, decisively to discredit and destroy the respondents’ case that their stool forms boundary with Twenani stool land.
In the course of his judgment the learned trial judge criticised the presentation of the appellant’s case by observing that: “Moreover the plaintiff has failed to call any independent witness to establish all the boundaries of the land as claimed by the stool of Adjasa; I find this most surprising.” The criticism, however, seems unwarranted. The dispute between the Adjasa and Awhaka stools, which were adjoining landowners, was, substantially, how far down towards the Twenani town direction the respective lands of the contending stools, Adjasa and Awhaka, extended; and in so far as there was a boundary dispute between them, it was at that side, where Adjasa claimed the boundary indicated by the red line on the plan and Awhaka the boundary indicated by the green line, that the dispute was centred or localised. Then, in respect of that controversy as to the correct or true boundary at that Twenani side, the appellant tendered in evidence the adjudication of a competent court that the boundary line claimed by
him is the accurate boundary; and the adjudication incidentally contained a recital that the caretaker and accredited representative of the Awhaka stool had testified as a witness and admitted the accuracy of the boundary adjudged in favour of the appellant. In these circumstances what further need of a witness had the appellant to prove that which his judgment could, and did more effectively prove for him? By reason of that judgment, it seems clear that the second preliminary issue or question of fact must be decided adversely to the respondents but in favour of the appellant.
Turning now to the first preliminary issue or question of fact as to whether the subject-matter of the 1945 case was not the same as the subject-matter of the instant case, after the most anxious, careful, and diligent study and examination of the record of proceedings of that 1945 case in the permitted or prescribed manner, I have felt completely convinced and satisfied that the subject-matter of both actions were, and are, one, identical, and the same. With regard to what is the permitted manner of examining the record, Spencer Bower on Res Judicata at page 113, has stated that:
“For the purpose of ascertaining the subject-matter of the decision relied upon as res judicata, the record (in the formal sense) of the judgment itself and such pleadings, and other proceedings, if any, as tend to show what particular questions of law or issue of fact must necessarily have been determined by the tribunal in adjudicating as it did, can be examined.”
Accordingly, it has been the usual practice to examine, apart from the terms of the writ of summons, the whole of the record, especially the evidence of the parties, to ascertain that which substantially formed the subject-matter of the adjudication. Writs and other documents for use in the old tribunals, which were more often than not drawn up, or written out, by clerks whose standard of literacy was not very high, could not be expected, in the nature of things, to be as fully informative and satisfactory as those drawn up or drafted by lawyers for use in the superior court, and it is often in the statements of the parties before the tribunal that further information as to what the litigation is all about, is made available (see, e.g. Fosu v. Turkson4).
Now, in the instant case, when the description of the lands in the writ of summons, as from “Atumi thence to Bokowu lands and farms” is read together with the evidence of the parties, it becomes more than clear that the whole area shown in the plan exhibit A was the subject-matter of the 1945 case—particularly when careful note is taken of the localities within the area alleged by the parties to be occupied by their subjects or tenants. For example the appellant started by stating “my ancestors founded Adjasa by Epa Twinbuah, Nyanzoo Buah, [and] Ansulebi, from Adjasa to Bokowu.” In that sentence he appears to have given the names of three persons as the ancestors who founded the land, and claimed the whole stretch of land extending from Adjasa on the sea-coast, in a north-easterly direction to the Bokowu stream. He then proceeded to mention grantees from his ancestors of portions of the land, and the localities where the said grantees made settlements, as follows: “Where my ancestors
gave to Kessi Kobina’s ancestors is called Aguayeleh. This place is not shown within the red area, although Kessi Kobina’s coconut plantation is shown to the north-west of the red area but outside the said red area.” He continued: “After Yonwah Polley’s boundary there is a hill called Ayefu-Ayefu; from Ayefu-Ayefu thence to Bokowu.” Ayefu-Ayefu is marked within the red area. He continued: “In the pathway of Adjasa you go to Atumi; after Atumi then Avidalie; and after Avidalie you go to Alloo’s cottage.” Atumi hill is marked conspicuously on the plan, but Avidalie and Alloo’s cottage are not shown. He continued: “After Alloo’s cottage then Afu Meazah’s cottage; he cultivated farms up to a swamp Adahor.” The swampy area Adahor is shown, as also the ruined cottage of Afu Meazah. He continued:
“After Adahor then Kwesi Yonwah’s cottage … Kangah Zuah [also] made a cottage. After Kangah Zuah’s cottage then Ennor’s cottage … Tayee Armah and Ennor cultivated farms to Bokowu.” Ruins of a settlement by Ennor are shown, and also the ruins of Tayee Armah’s cottage not far from the stream Bokowu.
Just before concluding his evidence-in-chief he mentioned some of the subjects of the defendants who were trespassing within the area he claimed as his stool land, and he stated as follows:
“Nda Ackah representing the stool of Waaka has cultivated Tayee Armah’s farm. Turning aside from Bokowu, Ennor cultivated rice farm; [but] Aduapah, Pensare, Amihere, have cultivated Ennor’s rice farm. On the north of the rice farm, Pensare and Amihere have cultivated a rice farm.”
The cultivation, at least of Pensare at the northern side of the land, is shown—and there is not a shadow of doubt that in terms of his writ the appellant claimed the stretch of land from the locality of Atumi hill right across in a north-easternly direction to the Bokowu stream. That situation is made still clearer by certain questions which the defendant put to the appellant in cross-examination, and the appellant’s answers thereto as follows:
“Q. Do you know that Dono Yonwah cultivated a farm?
A. Yes.
Q. Did you remember Morni of Twennen has cultivated farm to Bokowu, and how much did you get from him?
A. Yes—but I did not get money from him.
Q. Whom did you get boundary with at Bokowu?
A. I have boundary with the water.
Q. Where lies your boundary?
A. I have boundary with Yamikeh Tufuleh on the west. On the north with the swamp Bokowu, and on the east [south-east] with the chief of Twennen.
Q. Are you having boundary with chief Kojo Menlah [of Twennen] from Somianza to Bokowu?
A. I have boundary with him to Bokowu.”
The localities where Dono Yonwah and Morni are cultivating are shown at the north of the land about where the Bokowu swamp and the stream meet; and the appellant’s further description of his boundaries as being with the chief of Twennen at the side where there is the Somianza stream joining with the Bokowu (which was not given in the writ of summons), surely, dispels any doubts there may have been, as to the identity of the land in the 1945 case being one and the same with the land shown in plan A as the subject-matter of the instant case. In the evidence-in-chief of the representative of the stool of Waaka, he referred mostly to the farmers in the same localities on the land as had been mentioned by the appellant, trying, it seems, to establish that it was rather his people who settled first and were in effective occupation of the land. In due course the tribunal questioned him about the boundaries of his land and he stated that he formed boundaries: “On the north with the stool of Kengen, on the east [south-east] with the stool of Twennen, and on the south with Adjasa stool.” Ultimately the tribunal inspected; after which, it described the area pointed out and claimed by the appellant as follows: “Plaintiff has a boundary on the north with a swamp called Bokowu. On the south with the Atlantic Ocean, on the east with the chief of Twennen, and on the west with Awaaka leading to a stream called Adahor.”
It will be observed that while the appellant in that 1945 case appears to have restricted his description of the land to the area “from Atumi to Bokowu,” which appears to be the farming area where the clashes of farming disputes between the farmers from the two contending sides seem to be centralised or localised, the tribunal appears to have inspected the whole of Adjasa stool land, including the land from Atumi hill in a south-westernly direction embracing Adjasa town to the sea, and their description of the appellant’s land as appearing in their report is a fuller and wider description than that contained in the writ, which at best, was a sketchy one which described the land by reference to two outstanding natural features only, i.e. “the Atumi hill thence to Bokowu.” The important and significant point, however, is that their description of the land in their report brings out more clearly the undoubted fact that it was the whole of
Adjasa stool land—but not just some portion of it — which was in dispute in the 1945 litigation.
The learned judge appears to have taken the view of the case which he took and expressed in his judgment, by failing to examine the records of the former proceedings sufficiently and by placing too much reliance on the surveyor who prepared the plan exhibit A and who, unfortunately, betrayed himself as a partisan on the side of the respondents and an unfavourable witness to the appellant who had to call him for the purpose of tendering the plan. As he (the surveyor) was obliged to explain, when he was appointed and entrusted with the survey and preparation of the plan for the trial of the case transferred from the native court to the Land Court, he went first to the appellant, as he obviously should have done. The appellant, however, to quote the words of the witness: “was unwilling to join the survey ordered by the court as he contended that he had a plan prepared by late Esuman (licensed surveyor).”
Now, seeing it was the appellant who had sued and there was no counterclaim by the respondents, one would have expected the surveyor to report to the court and see what instructions the court would give. Instead of that, he proceeded to the respondents’ side, no doubt reported to him the appellant’s attitude about the making of the plan ordered by the court, and placed himself at the disposal or service of the respondents. The latter then, although having no counterclaim against the appellant, proceeded to instruct him to survey for the purpose of preparing a plan to their (i.e., the respondents’) advantage, and the result was the green-edged plot in the plan exhibit A with the small area edged orange within it in the locality of Atumi hill, which is supposed to represent the land the subject-matter of the 1945 suit, with the inscription thereon Area comprised in judgment dated 14 September 1945, as though in reality that was the actual area litigated about in that 1945 proceedings.
According to the surveyor himself, it was after he had completed surveying to the satisfaction of the respondents that somehow contact was made with the appellant and arrangements were effected whereby the appellant and his people went and pointed out the land they were claiming to the surveyor. The appellant also handed to him the record of proceedings of the 1945 case, in which the tribunal described in their report the area of the appellant’s land which they inspected, and it must, surely, have been obvious to the surveyor that the respondents were definitely prevaricating when they represented that the small orange edged area which they pointed out in the locality of Atumi hill was the subject-matter of the 1945 case. Yet, in the manner of the preparation of the plan and the form of his testimony before the learned judge, the surveyor gave the impression that the respondents had made true representations, and,
whether wittingly or unwittingly, he aided the respondents to impose upon the court.
In the drawing up of the plan, when he inscribed across the small area “Area comprised in judgment dated 14 September 1945,” he might well have added the words, “as alleged by the defendants,” to put a reader on his guard, and he should have made a corresponding inscription across the whole red-edged area which the appellant alleged to be the subject-matter of the 1945 case. Again in his evidence in court, his utterances, in my view, showed definite bias against the appellant. For example, he stated: “The area edged orange which is in the area in dispute was alleged by the defendant to be the area in dispute in the suit before the native court.” He went on later to make a statement which was quite unfounded: “The land as claimed by the plaintiff in the viewers’ report, is smaller in area than the land now in dispute”; when, in fact, as I have already indicated, the description of the appellant’s land in the viewers’ report, embracing, as it did, the land from Atumi hill south-westwards including Adjasa town to the sea, was the description of the whole of Adjasa stool land, as in the instant action.
He continued with further adverse criticism of the appellant’s case when he stated: “According to the viewers’ report I cannot understand how the land as claimed by the plaintiff joined up to Bokowu stream.” Finally when he was re-examined about the south-eastern boundary with the Twennen stool he answered: “The plaintiff told me that they had a boundary with Twenani stool in the south”; then he went on, of his own volition, to volunteer adverse evidence when he stated: “But the representative of Twenani stool did not claim any land to the south-east as suggested by the plaintiff belonged to the Twenani stool,” obviously intending to prove that the representative of the Twennen stool did not admit or acknowledge the appellant’s stool as an adjoining boundary owner. The learned trial judge, unfortunately, was not able to detect this questionable attitude of the surveyor, and accepted his evidence wholesale and quoted his evidence copiously in his judgment. He began by accepting the surveyor’s representation on the plan that the small inscribed area in the locality of Atumi hill was the area the subject-matter of the 1945 case and said: “The land which was adjudged by the native court in 1945 to be that of the stool of Adjasa forms a small portion of the land now claimed by the plaintiff, and is edged orange, but there is no dispute over his piece of land.”
Pausing here, the learned judge was no doubt induced to make this last statement by the facts to which I have already referred, (1) that the surveyor did not add to his inscription across that small plot some such further words “as alleged by defendants but denied by plaintiff”; and (2) making a corresponding inscription across the red-edged area which the appellant pointed out as being the subject-matter of the 1945 case to put a reader of the plan on his guard that in contrast to the inscription on the area edged orange, there was a contrary inscription on the area edged red. He continued with his acceptance of the surveyor’s statements as follows:
“P.W. 1 stated that the area of land claimed by the stool of Adjasa in the previous suit between the parties and as described in the viewers’ report at page 37 to the copy of proceedings exhibit B is smaller in area than that now claimed by the plaintiff. Moreover, P.W. 1 said he could not understand how the land as claimed by plaintiff in the previous suit joined up to Bokowu stream … When P.W. 1 was surveying the land in dispute the stool of Kengen was represented and the representative agreed that their northern boundary is as shown on the plan exhibit A. The representative of Twennen stool was also present and he also affirmed that Twennen stool had a boundary with Awhaka stool (the defendants).”
As previously indicated, however, almost all the statement of facts and expressions of opinion which were made by the surveyor and adopted by the learned judge appear to have been motivated by bias,and were for the most part erroneous statements of fact or expressions of opinion.
The learned judge passed from this state to review the evidence as to possession by both sides and came to the conclusion that: “There can be no doubt that the plaintiff as well as the defendants pointed out physical features to the first witness for the plaintiff as they appear on the plan exhibit A; and I am satisfied that the subjects of Adjasa stool and Awhaka stool have been occupying the land in dispute.”
The learned judge then referred to two authorities on the question of onus of proof of title, and then concluded as follows: “On the whole of the evidence I find that the plaintiff has failed to discharge the onus of proof which lies on him… and, on the balance of probabilities I cannot say on the evidence adduced that the plaintiff is entitled to the declaration sought.”
The judgment in terms as above is sought to be impugned on the grounds that:
(1) “Because the court failed to consider the judgment in the suit Amgbole Nyan, etc., as representing the stool of Adjasa v. Nana Kojo Menla Ohene of Twennen, as representing the stool of Twennen as appears on page 39 of exhibit B, which established the eastern [south-eastern] boundaries of the land claimed by plaintiff.
(2) Because the plaintiff established enough title to entitle him to the declaration sought.
(3) Because the learned judge misdirected himself as to what was the identity and size of the land which was adjudged by the native court in 1945 (exhibit B) to be that of the stool of Adjasa.”
From the discussions above of the questions of fact and law which arose in the case, I am satisfied that each of the grounds advanced by learned counsel for the appellant is well founded. Learned counsel for the respondents argued and endeavoured to convince the court that from the description of the land in the writ of summons in the 1945 case, it was clear that it was not the whole land as now depicted in the plan exhibit A which was in dispute in the 1945 case, although he was obliged to concede that his clients’ representation that the orange edged plot in exhibit A is an accurate and exact reproduction of the land which was the subject-matter of the 1945 case was difficult for counsel to support. I felt unimpressed by the arguments of learned counsel for the respondents, and have been at pains to explain in this judgment why I have not the least doubt that it was the whole of Adjasa stool land which was in dispute in that
1945 case. In my view by reason of (1) the judgment in that 1945 case, which, as I have endeavoured to point out, affected the whole of Adjasa stool land; and (2) the judgment dated 1 May 1956 settling the Adjasa and Twennen stool lands boundary, the appellant’s case was substantially unanswerable by the respondents.
In the result, therefore, I would allow the appeal, set aside the judgment in favour of the respondents and substitute for it judgment in favour of the appellant granting him (1) the declaration of title sought of the area edged red in the plan exhibit A, (2) £G100 damages for trespass, and (3) perpetual injunction as claimed. I would award the plaintiff the costs of this appeal assessed at £G67 2s. 0d. and the costs of the trial in the court below to be taxed.
JUDGMENT OF MILLS-ODOI J.S.C.
I agree.
JUDGMENT OF OLLENNU J.S.C.
I also agree.
DECISION
Appeal allowed.
S.A.B.
