HIGH COURT, CAPE COAST
DATE: 14 APRIL 1960
BEFORE: ADUMUA-BOSSMAN, J.
CASES REFERRED TO
(1) Fryer v. Bernard (1724) 2 P. Wms. 261; 24 E.R. 722
(2) Attorney-General v. Stewart (1817) 2 Mer. 144; 35 E.R. 895
(3) British Coal Corporation v. The King [1935] A.C. 500; 51 T.L.R 508, P.C.
(4) Willis v. Earl Beauchamp (1886) 11 P.D. 59, C.A.
(5) Reichel v. Magrath (1899) L.R. 14 App.Cas. 665, H.L.
(6) Amuquandoh v. Aggrey, Land Court, Cape Coast, July, 11, 1957 unreported
(7) Birch v. Birch [1902] P. 130, C.A.
(8) Pon v. Fua (1929) F.C. `26-’29, 522
(9) Flower v. Lloyd (1877) 6 Ch.D. 297, C.A.
(10) Bright v. Sellar [1904] 1 K.B. 6, C.A.
(11) Norris v. Le Neve (1743) 3 Atk. 26; 26 E.R. 818
(12) Young v. Keighly (1809) 16 Ves. Jun. 348; 33 E.R. 1015
(13) Anderson v. Titmas (1877) 36 L.T. (N.S.) 711
(14) Young v. Kershaw (1899) 81 L.T. (N.S.) 531, C.A.
(15) Flower v. Lloyd (1878) 10 Ch.D. 327, C.A.
(16) Baker v. Wadsworth (1898) 67 L.J.Q.B. 301
(17) Ofuman Stool v. Nchiraa and Branam Stools (1957) 2 W.A.L.R. 229 W.A.C.A
(18) Buaten v. Amoako (1927) F.C. `26-’29, 254
(19) Kwamin v. Kufuor (1914) P.C. `74-’28, 28
(20) Akpandja v. Egblomesse (1939) 5 W.A.C.A 10, P.C. [p.3] of [1962] 2 GLR 1
NATURE OF PROCEEDINGS
ACTION to set aside the judgment of Dennison, J. in the Land Court, Cape Coast, delivered on the 11th August, 1951, in an action between Nana Kojo Kodia IV (the present defendant) and Nana Kofi Nyimpa Ababio (the plaintiff’s predecessor), on the grounds of fraud and collusion.
COUNSEL
F. Awonoor Williams (with him Sampson Baiddo) for the plaintiff.
C. F. Hayfron-Benjamin for the defendant.
JUDGMENT OF ADUMUA-BOSSMAN, J.
This action was commenced by an ordinary writ which, for reasons which will hereafter appear, it is necessary to set out in detail, and which, as finally amended, was in the following detailed form: “The plaintiff’s claim as representing the stool of Sefwi-Anwhiaso against the defendant as representing the stool of Diaso in Denkera State is that: – the judgment of the Land Court, Cape Coast, in transferred suit No. 1/49 delivered by Dennison, J. on 11th August, 1951, in Nana Kojo Kodia IV for himself as occupant and as representative of the stool of Diaso in Denkera State versus Nana Kofi Nyimpa Ababio as presenting the stool of Sefwi-Anwhiaso, be set aside, on the grounds of fraud and collusion between the said Chief Kojo Kodia IV (plaintiff therein) and Chief Kofi Amankwa of Manso Nkwanta in Ashanti, in that the said Chief Kofi Amankwa by fraud and collusion between him and the said Chief Kojo Kodia IV misrepresented and fraudulently imposed upon the said court that there was a boundary or boundaries between the said Chief Kojo Kodia IV and the Manso-Nkwanta State in Ashanti, namely, the stool lands of Manso-Nkwanta form boundary with the plaintiff’s land on the north by Sumtwitwi hills by the Offin river, from the latter the boundary went to Tetiasu river, from there to Kwamin Edu Esua, thence to the Subin river; and that he the said Chief Kofi Amankwa had the authority of the Paramount Stool of Manso-Nkwanta to represent the said Manso-Nkwanta State or the Paramount Stool; whereas the boundary or boundaries (if any) was between the Manso-Nkwanta State and the state and/or stool of Sefwi-Anwhiaso; by reason of which fraud and collision the said Chief Kojo Kodia IV and the said Chief Kofi Amankwa fraudulently imposed upon the said court to give judgment for the said Chief Kojo Kodia IV. Under an Order of His Majesty in Privy Council in England dated 22nd October, 1906, reciting a previous Order of the said Privy Council dated 26th September, 1901, and published in Government Gazette No. 1 of 1907, dated 1st January 1907, His Majesty in Council directed, and pursuant to which the boundaries of certain State lands in the Gold Coast and Ashanti, namely Sefwi-Anwhiaso, Sefwi-Wiawso, Denkera and Manso-Nkwanta in Ashanti were surveyed and boundary pillars in due course erected, showing the various States affected by the said Order in Council, in particular the boundary between Sefwi-Anwhiaso and Denkera State are shown as follows: [Details are set out which is not necessary to reproduce]. The survey and fixing of pillars was duly published in the said Gazette and on Government survey plan (or sheet) No. 72 JIV, made under the direction and command of the then Governor Sir John Rodger, in or about July 1908. Under judgment of Dennison, J., Land Court, Cape Coast dated 11th August, 1949, in suit No. 1/49 Nana Kojo Kodia IV as representing the stool of Diaso versus Nana Kofi Nyimpa Ababio as representing the stool of Sefwi-Anwhiaso, the plaintiff Nana Kojo Kodia IV recovered judgment against the defendant Nana Kofi Nyimpa Ababio, which judgment affects a large portion of the land referred to in the said Privy Council Orders, and seeks to eject the defendant Nana Kofi Nyimpa Ababio, his subject, people and licensees from the said land.
The land claimed by Nana Kojo Kodia IV [p.4] of [1962] 2 GLR 1 appears in a survey plan made by J. Essuman, licensed surveyor, dated 14th September, 1949, in the suit Nana Kojo Kodia IV versus Nana Kofi Nyimpa Ababio (aforementioned), the plaintiff’s claim being depicted in pink and the defendant’s land being depicted in green. The plaintiff claims that the judgment and claim of the defendant (in this instant suit) Nana Kojo Kodia IV is in conflict with and infringes on a large portion of Sefwi-Anwhiaso stool lands. The plaintiff claims perpetual injunction to restrain the defendant Nana Kojo Kodia IV, his subjects, people and licensees from infringing the rights of the plaintiff as defined in the said Order in council, and from in any way interfering with the possession of the stool of Sefwi-Anwhiaso represented by the plaintiff in the said Sefwi-Anwhiaso stool lands referred to in the said Orders of the Privy Council. The plaintiff claims that the said Order of the Privy Council defining Sefwi Anwhiaso stool lands is prior in date to the judgment of the Land Court, Cape Coast (Dennison, J.) and cannot in law override, abrogate or annul the said Order of the Privy Council.
The plaintiff further states that the Privy Council was the Imperial Parliament for the Gold Coast at the date aforesaid and its Orders are not demurrable or traversable in any municipal court of the Gold Coast. The plaintiff claims £5,000 damages from the defendant, his subjects, agents, and licensees, for wrongfully entering upon and cutting timber trees on the Sefwi-Anwhiaso stool land and also claims such further and other relief in the premises as to the court may seem just.”
Together with the writ were filed, firstly a photostat copy of Gazette Extraordinary, No. 1 of the 1st January, 1907, covered by a certificate of authentication made all the more awe-inspiring by the official seal of the National Archives thereon (a spectacular large red deal over a green ribbon), which Gazette contained a publication of the Order in Council of the 22nd October, 1906, referred to in the writ; and secondly, a photostat copy of the survey sheet or Map No. 72 JIV also mentioned in the writ, and also covered by another certificate of authentication.
In its form and terms the plaintiff’s writ was undoubtedly unique and definitely questionable. It was questionable because in the framing of its three most important and pertinent legal situations appear to have been overlooked. There was, firstly, the absolute prohibition in this matter of engaging in the adjudication and determination as of first instance of private rights, imposed upon the King in Council by “An Act for the Regulating the Privy Council and for taking away the Court commonly called the Star Chamber,” more popularly known as the Habeas Corpus Act, 1640,1(1) section 3 whereof provided: “that neither His Majesty nor his Privy Council have or ought to have any jurisdiction, power of authority by English bill, petition … or any other arbitrary way whatsoever to … determine or dispose of the lands tenements, hereditaments goods or chattels or any the subjects of this Kingdom but that the same ought to be tried and determined in the ordinary Courts of justice and by the ordinary course of
law.” It may not be without some interest to note that that prohibition incidentally appears to have given veracity and authoritativeness to the otherwise merely predicatory, rather than strictly accurate, statement of Sir Edward Coke (Lord Coke) in his Fourth Institutes written in 1634, [p.5] of [1962] 2 GLR 1 but not published until after his death in 1641, when he stated at page 35, concerning “the King and his Council” that they: “Like good continel and watchmen consult of and for the publique good and the honour defence safety and profit of the realm … (but) private causes lest they should hinder the publique, they leave to the Justices of the King’s Courts of justice and meddle not with them.”
There was, secondly, the accepted constitutional position that so far as his dependencies (or former “plantations”) are concerned the only judicial power which remained to His Majesty in Council after the Habeas Corpus Act of 1640, was the power to entertain appeals from decisions of the courts in his said dependencies. So in Fryer v. Bernard2(2) in the course of his judgment in the Chancery in an application for sequestration against the real and personal estate in Ireland of a defendant following judgment against him in England, the Lord Chancellor said as follows: “as to the sequestration mentioned to be directed to the governor of North Carolina, or any other of the
plantations, the Court doubted much whether such sequestration should not be directed by the King in Council where alone an appeal lies from the decrees in the plantations.”
Again in the case of the Attorney-General v. Stewart3(3) in which the Court of Chancery was considering the question of disposition of funds in court accruing form lands situate in Grenada, in the West Indies, the Master of the Rolls pronounced as follows: “The question in this case is, whether real estate, or the money produced by the sale of a real estate, situated in the island of Grenada, can be legally devised to a charitable use. That is a question, with respect of which no Court in this country has any direct original jurisdiction. All titles to land are, regularly, to be decided upon, in the first instance, by the courts of local judicature, from whose decision an appeal lies to His Majesty in Council.” And it seems to me that no better, more succinct, and more authoritative explanation of the whole situation can be found than that given by Viscount Sankey, L.C. when in British Coal Corporation v. The King4(4) he explained as follows: “It will be convenient to summarize in the briefest terms the nature of the appeal from Dominion or Colonial Courts to His Majesty in Council… In early days it was to the King that any subject who had failed to get justice in the King’s Court brought his petition for redress. As time went on, such petitions
were brought to the King in Parliament (which was the origin of the modern judicial functions of the House of Lords) or to the King in his Chancery (from which flowed the jurisdiction of the Court of Chancery). But this was so only in causes which had been dealt with in English Courts; from the Courts of the Channel Islands and alter from the Courts of the Plantations or Colonies the petition went to the King in Council, and this continued to be the practice after the jurisdiction of the Privy Council in English common law cases had been abolished. It was this appellate jurisdiction … which was affirmed and regulated by Parliament in the Privy Council Acts of 1833 and 1844.”
There was, thirdly, the position that by 1900, the power of the Queen and her successors to make Orders in Council in respect of her dependencies or settlements in Africa, of which Southern Ghana, then [p.6] of [1962] 2 GLR 1 the Gold Coast Colony, was one, was derived from the British Settlements Act, 1887,5(5) section 2 of which only empowered: “Her Majesty the Queen in Council from time to time to establish all such laws and institutions, and make such provisions and regulations for the proceedings in the said Courts and for the administration of
justice as may appear to Her Majesty in Council to be necessary for the peace, order and good Government of Her Majesty’s subjects and others within any British Settlement.” but did not empower her to exercise any judicial powers of first instance at all. It is, I think, now a matter of common knowledge that it was in virtue of that Act that Order in Council dated the 26th September, 1901, known as the Gold Coast Order in Council, 1901, which is recited in the Order of 1906, was made defining the boundaries and/or territorial limits of the then Gold Coast dependency. By reference to the terms of that enabling Act, it seems fairly obvious, I think, that there is no power
by Order in Council to determine private rights to property. It is in the light of the foregoing legal situation which appears to have been overlooked that it seems questionable and remarkable that the plaintiff’s writ should assert and claim, as it does, that an Order in Council of the 22nd October, 1906, has actually effected and made adjudication and determination of private rights in or to ownership of lands within a former dependency, and that such determination by the said Order in Council, prevails against and overrides the solemn adjudication of an admittedly competent local superior court of law.
But to continue with the account of the progress of the action: upon the writ being served on the defendant, he caused formal appearance to be entered on his behalf and notice thereof was served on the plaintiff. Thereupon a very detailed and elaborate statement of claims was filed by counsel on his behalf which also, as finally amended, it is necessary to and is accordingly set out as hereunder:
“(1) The plaintiff is the successor of Nana Kofi Nyimpa Ababio on the stool of Sefwi-Anwhiaso State, and brings this action on behalf of the said State against the defendant.
The plaintiff’s claim as representing the stool of Sefwi-Anwhiaso against the defendant as representing the stool of Diaso in Denkera State, is that:
(a) the judgment of the Land Court at Cape Coast in transferred suit No. 1/1949, the 11th day of August, 1951, in Nana Kojo Kodia IV, for himself as occupant and as the representative of the Stool of Diaso in Denkera State versus Nana Kofi Nyimpa Ababio, as representing the Stool of Sefwi-Anwhiaso, be set aside on the grounds of fraud and collusion between the said Chief Kojo Kodia IV (the plaintiff therein) and Chief Kofi Amankwa of
Manso-Nkwanta in Ashanti in that the said Chief Kofi Amankwa by froud and collusion between him and the said Chief Kojo Kodia IV misrepresented and fraudulently imposed upon the said court that there was a boundary or boundaries between the said Chief Kojo Kodia IV and the Manso-Nkwanta state in Ashanti, namely the stool lands of Manso-Nkwanta form boundary with the plaintiff’s land on the north by the Sumtwitwi Hills by the Offin River, from the latter the boundary went to Tetiasu river, from there to Kwamin Edu Esua, thence to Bank a Bippo Hill, thence to the Sumtwitwi Hills and thence to the Subin River; and that he the said Chief Kofi Amankwa had the [p.7] of [1962] 2 GLR 1 authority of the Paramount Stool of Manso-Nkwanta (Ashanti) to represent the said
Manso-Nkwanta State of the Paramount Stool; whereas the boundary or boundaries (if any) was between the Manso-Nkwanta State and the stool of Sefwi-Anwhiaso State: by reason of which fraud and collision the said Chief Kojo Kodia IV and the said Chief Kofi Amankwa fraudulently imposed upon the said court to give judgment for the said Chief Kojo Kodia IV. That the said Kofi Amankwa was neither a divisional chief nor a chief of Manso-Nkwanta State when he misrepresented that he was a chief.
(b) The true state boundary between Manso-Nkwanta stool in Ashanti and the Sefwi-Anwhiaso State commences from the junction of Biaerabon River and Katabotri River marked by GCS. 1676, thence along the said Katabotri upstream to its source marked as GCS. 1675, thence it crosses the Subin-Katabotri hill to the source of Subin River about 600 yards from the said GCS. 1675 more or less, thence along the same Subin River to its confluence with Aborsu River at GCS. 1673, thence it follows the said Aborsu River to its source at GCS. 1672, thence it follows the range of hills known as Sumtwitwi between the source of the said Aborsu and Kusumusu River to GCS. 1671 on the old footpath from Nkrondia to Edwinasi or Ejenasi where there is a common boundary between the Sefwi-Anwhiaso and the Chief of Esasi. These boundaries represent the state boundary between Manso-Nkwanta in Ashanti and the stool of Sefwi-Anwhiaso fixed by an Order in Council in the Privy Council of His Majesty in England dated the 22nd October, 1906, reciting a previous Order of the said Council dated 26th September, 1901, and published in the Gold Coast Government Gazette of 1st January, 1907.
(c) The other state boundaries fixed by the said Order of the Privy Council in England dated the 22nd October, 1906 with its recitals dealing with certain state lands in the Gold Coast and Ashanti, are namely, Sefwi-Anwhiaso, Sefwi-Wiawso, Denkyira and Manso-Nkwanta (Ashanti) already referred to; these were surveyed and boundary pillars, in due course, erected showing the various states affected by the said Order in the Privy Council, in
particular, the boundaries between Sefwi-Anwhiaso and Denkyira States are shown as follows: – ‘On the North, the Sefwi-Anwhiaso State or Stool lands boundary with the Omanhene of Manso-Nkwanta (Ashanti) commences from the junction of Baierabon and Katabotri or GSC. 1676, thence following the said Katabotri upstream to its source, thence to an Old GCS. pillar at the top of the Katabotri Hill, thence to the source of Subin River, thence along the said Subin River down stream to its confluence with Abo Stream thence along the Crest of Sumtwitwi Hills to an Old GCS. pillar No.1670 on Nkrundia-Ajenasi footpath which said boundary has already been demarcated since 1907 with concrete Iron pillars Nos. 1670 to 1676, and accepted as common boundary between Sefwi-Anwhiaso
Stool and Manso-Nkwanta (Ashanti) Stool from the point established on the said Nkrundia-Ajenasi footpath or GCS. 1670, Sefwi-Anwhiaso Stool boundary continues on South-westerly direction along the boundary between Denkera-Esasi and Sefwi-Anwhiaso Stool to Npawe Stream, thence to Nkrundia Stream where Sefwi-Anwhiaso Stool forms boundary with the Chief of Denkera-Obuasi up to Subinso Village, thence along the Subin upstream or along the boundary between Nana Kwamin Akaah of Asawinson and Sefwi-Anwhiaso Stool to the point of commencement.’ [p.8] of [1962] 2 GLR 1
(d) Under the said judgement of Mr. Justice Dennison in the Land Court at Cape Coast dated 11th August, 1951, in suite No. 1/1949 Nana Kojo Kodia IV versus Nana Kofi Nyimpa Ababio, the plaintiff, Nana Kojo Kodia IV recovered judgment against the defendant, Nana Kofi Nyimpa Ababio, which judgment affects or purports to affect a large portion of the lands referred to in the said Orders, and seeks to eject or oust the defendant, Nana Kofi Nyimpa Ababio, his subjects, people and licensees from the said land.
(e) The land claimed by Nana Kojo Kodia IV appears in a survey made by J. Annu-Essuman, licensed surveyor, dated the 14th September, 1949, in the suit, Nana Kojo Kodia IV versus Nana Kofi Nyimpa Ababio, the plaintiff’s claim is depicted in pink and the defendant’s land is depicted in green. The plaintiff avers that the judgment and claim of the defendant Nana Kojo Kodia IV herein, is in conflict with, and infringes on a large portion of Sefwi-Anwhiaso stool lands, as appears in the said Gazette and a Government survey plan sheet No. 72 JIV of the Gold Coast made under the direction of, and by command of, the then Governor, John Pickersgill Rodger of the Gold Coast in or about July, 1908, pursuant to the said Order of the Privy Council.
(f) The plaintiff’s claim is for a perpetual injunction restraining the defendant, the said Nana Kojo Kodia IV, his subjects, people and licensees from infringing on the rights of the plaintiff as defined in the said Privy Council Order in Council, and from in any way interfering with the possession of the stool of Sefwi-Anwhiaso, as represented by the plaintiff, as Omanhene of Sefwi-Anwhiaso State, and referred to in the said Order of the
Privy Council.
(g) The plaintiff avers that the said Order of the Privy Council defining the Sefwi-Anwhiaso stool lands is prior in date to the judgment of the Land Court delivered by Mr. Justice Dennison, and cannot, in law, override, abrogate or annul the said Order of the Privy Council.
(h) The plaintiff further avers that the Privy Council was the Imperial Parliament for the Gold Coast at the date aforesaid, and its Orders are not traversible or demurrable in any municipal court of the Gold Coast.
(i) The plaintiff claims five thousand pounds (£5,000) damages from the defendant, his subjects, agents and licensees for wrongfully entering upon and cutting timber trees on the said Sefwi-Anwhiaso stool lands.
The area of the land encroached upon by the defendant is approximately between 40 and 60 square miles more or less in the Sefwi-Anwhiaso State. The plaintiff also claims such further and other relief in the premises as to the court may seem just. The plaintiff would ask, if necessary, that the writ of summons herein be amended by including therein paragraph (a) of the statement of claim herein.”
Together with the said statement of claim was filed the judgment dated the 11th August, 1951 of Dennison, J., sought to be impugned by the institution of this action. With regard to this judgment, it is worthy of observation that ex facie it proceeded not upon the acceptance of any evidence of the witness Chief Kofi Amankwa of Manso-Nkwanta, but on two grounds clearly expressed, namely, (a) as to a portion of the land, because the stool of Sefwi-Anwhiaso was estopped by an award to an arbitration dated the 22nd July, 1926 (admitted as exhibit B at the trial
[p.9] of [1962] 2 GLR 1 of the suit) and a judgment of the Divisional Court, Sekondi, dated the 8th February, 1927, in a previous suit between the Sefwi-Anwhiaso stool as plaintiff and the stool of Diaso as defendant (the writ and judgment with respect to which was admitted as exhibits A and C at the trial of that suit), and
(b) as to the remainder of the area in dispute because, in the learned judge’s own words, “After a full consideration of the evidence, particular regard being had to that concerning the village of Bertriham, and the evidence referred to relating to the old native diggings of gold, I accept the boundaries claimed by the plaintiff as correct; he had therefore proved both title and possession to the land in dispute.”
That is to say, in respect of the portion of the disputed area not covered by the previous adjudications between the parties, the learned judge was prevailed upon the evidence of actual occupation and possession of portions of the area in dispute and the evidence of exercise of acts of ownership on the part of the Dadiaso stool, to prefer the Dadiaso case to the Sefwi-Anwhiaso case. To continue however with the progress of the action. Following service of the statement of claim on the defendant he caused statement of defence to be filed on his behalf as hereunder:
“(1) Defendant specifically denies the allegations of fraud and collusion imputed to him and Chief Kofi Amankwa of Manso-Nkwanta, Ashanti, in paragraph 1 of the statement of claim as wholly untrue and incorrect and further denies the correctness of the boundaries set forth in the said paragraph.
(2) Defendant avers that the correct boundaries between the plaintiff and the defendant herein are as those set out in the judgment of His Lordship Mr. Justice T.A. Dennison delivered at the Land Court, Cape Coast, on the 11th day of August, 1951.
(3) Defendant pleads that in and by virtue of the judgment of His Lordship Mr. Justice T.A. Dennison delivered at the Land Court, Cape Coast, on the 11th day of August, 1951, aforesaid, between the same parties the matter herein is res judicata and cannot be re-opened nor relitigated again.
(4) Defendant denies the correctness of the boundaries set out in paragraph (1) (b) and (c) respectively of the plaintiff’s statement of claim herein and further avers that the Order in Council defining the states referred to in the statement of claim herein cannot and could not deprive either party to the suit herein of his rightful ownership of any land legitimately claimed by him.
(5) That the defendant and his people have been in long undisturbed possession of the land covered by the judgment of the Land Court, Cape Coast, presided by His Lordship Mr. Justice T.A. Dennison, dated the 11th day of August, 1951, whose conclusions were affirmed by the findings of the West African Court of Appeal, Victoriaborg, Accra, on the 23rd day of January, 1953.
(6) Defendant avers that the plaintiff herein is not entitled to a claim for damages for trespass or relief for a perpetual injunction sought for herein or any other reliefs with respect to the area of land covered by the judgment of the Land Court, Cape Coast, delivered by His Lordship Mr. Justice T.A. Dennison and confirmed by the judgment of the West African Court of Appeal, Accra, dated the 23rd day of January, 1953, aforesaid.
(7) Defendant pleads that paragraph (1)(g) and (h) of the statement of claim herein are both irrelevant to the issue herein and/or are the wrong statements of law or as otherwise a legal aberration.
(8) Defendant further pleads that the plaintiff’s claim is wholly and totally misconceived and should be dismissed.” [p.10] of [1962] 2 GLR 1
Reply was filed as hereunder:
“(1) The plaintiff joins issue with the defendant on his statement of defence dated the 29th day of July, 1959.
(2) As to paragraphs (1), (2), (3) and (5) of the said statement of defence, the plaintiff avers that by reason of the said fraud and collusion between the plaintiff, Chief Kojo Kodia IV, and Kofi Amankwa of Manso-Nkwanta, the said judgment of the Land Court, Cape Coast, dated the 11th day of August, 1951, cannot operate as res judicata, and is liable to be set aside both at law and in equity on the grounds of fraud and collusion between the said plaintiff, Chief Kojo Kodia IV, and said Kofi Amankwa.
(3) As to paragraph (6) of the said statement of defence, the plaintiff avers that the Order of the Privy Council referred to in the plaintiff’s statement of claim is prior in date and overrides in law the judgment of the Land Court, Cape Coast, referred to in the said paragraph.
(4) The plaintiff joins issue with the defendant as to paragraphs (7) and (8) of the said statement of defence and will contend that in law the averments in the statement of claim are the correct conclusions of law arising from the facts pleaded in the said statement of claim.
(5) Saving and excepting where expressly or impliedly admitted, the plaintiff joins issue with the defendant in his statement of defence as if every paragraph thereof were herein written and traversed seriatim.”
In due course, following the directions given on summons for directions, when one of the issues which the court itself ordered to be set down for consideration was “Whether any cause of action is disclosed by the writ and statement of claim,” the action came on for trial on the 22nd February, 1960. On that occasion, the court again referred to the question of law: whether any cause of action is disclosed by the writ and statement of claim, which had been raised for preliminary consideration on the hearing of summons for directions, and asked for and heard the arguments of counsel for the parties on the question.
The question raised, which is one in limime could have been raised by counsel for the defendant under Order 25, rules 1 and 2, but was not so raised. Nevertheless, it cannot be doubted that it is competent for the court to raise such a point as goes to the very root of the action. See, for example, Willis v. Earl Beauchamp6(6) in which Bowen, L.J. said as follows: “I think this action ought to be stayed as being a vexatious action within the meaning attached to that word by the courts, because it can really lead to no possible good. It does not fall under the rule … but the rules, as we have pointed out more than once, do not … deprive the Court in any way of the inherent power or jurisdiction which every Court has to prevent the abuse of legal machinery which would occur, if for no possible benefit, the defendants are to be put through litigation which must be long and expensive.” Fry, L.J. also said7(7):
“I think that this action ought to be stayed under the general jurisdiction of the Court to prevent the prosecution of frivolous and vexatious actions.” See also Reichel v. Magrath8(8) where Lord Halsbury, L.C. said, “I believe there must be an inherent jurisdiction in every Court of Justice to prevent abuse of its procedure.” See lastly Amuquandoh v. Aggrey.9(9) [p.11] of [1962] 2 GLR 1
That every one of this type of case is particularly and specially subject to scrutiny to ascertain whether it is one which from its peculiar circumstances as disclosed in the averments appearing in the pleadings, ought to be allowed to proceed to trial or else by stayed, is made clear by the observations of the Lords Justices of Appeal, who dealt with similar case, Birch v. Birch10(10) in the English Court of Appeal. In that case which was on appeal against a decision of the trial judge refusing to stay proceedings, Vaughan Williams, L.J. delivering the first judgment of the court allowing the appeal and ordering stay of the proceedings, said as follows11(11): “The question which in form has to be decided in the present case, is whether or not the action ought to be stayed as being frivolous and vexatious, and whether the statement of claim ought to be struck out as disclosing no cause of action . . . I think that the Court ought to treat as frivolous and vexatious any cause of action in support of which the plaintiff does not produce evidence of facts discovered since the former judgment which raise a reasonable probability of the action succeeding.
Conceding then that the court may raise the point when it appears to it that the action “can really lead to no possible good,” the point in this particular action is this – that assuming all the allegations in the writ and statement of claim to be accurate or true, namely, (1) that as afar back as 1906 to the knowledge of the world at large, His (then) Majesty in Council (assuming for this purpose that he had power to define the state boundaries and thereby determine private ownership of lands) did define and/or determine and thereupon caused to be marked out by the fixing of boundary pillars, the boundary between Sefwi-Anwhiaso State or stool land and Dadiaso State or stool land; and (2) that thereafter, sometime between 1949-51 in an action in the High Court between the Dadiaso stool as plaintiff and the Sefwi-Anwhiaso stool as defendant, the then Dadiaso chief procured on Chief Kofi Amankwa of Manso-Nkwanta in Ashanti to conspire or collude with him to give false evidence in his
(the Dadiaso chief’s) favour; (3) that in furtherance or by reason of that conspiracy and collusion, the witness Chief Kofi Amankwa did give false evidence, firstly that he was the duly authorised representative of the Omanhene of Manso-Nkwanta in Ashanti when in truth and in fact he was not; and secondly, that Manso-Nkwanta State or stool land formed boundary at certain specified points with Dadiaso State or stool land when in truth and in fact the allegation of a boundary between Manso-Nkwanta and Dadiaso was false by reason of the fact that it was quite contrary to the definition and demarcation of the boundary which had been made by the Order in Council of the 22nd October, 1906, and (4) the result had been that judgment had been given against the Sefwi-Anwhiaso stool in favour of the Dadiaso stool declaring and awarding to the Dadiaso stool an area of land to
which Dadiaso was not at all entitled, when regard is had to the alleged boundary fixed by the Order in Council of the 22nd October, 1906 – does the sum total of those allegation set out above, amount to or constitute adequate or sufficient ground or reasons, entitling the plaintiff in the present action to have the judgment of the High Court set aside s having been obtained by fraud and/or misrepresentation?
Learned leading counsel for the plaintiff, Mr. Awoonor Williams and his able junior, Mr. Baidoo (both of whom I permitted to conduct parts of the arguments on behalf of the plaintiff) say “Aye”; but with [p.12] of [1962] 2 GLR 1 the utmost respect to their individual and collective views, I think not, and I am rather obliged to express agreement with the connection of learned counsel for the defendant, Mr. Hayfron-Benjamin (senior) that the action is misconceived and that the writ and statement of claim do not disclose any good or sufficient cause of action. It is to facilitate easier reference to the averments in the pleadings and the easier ascertainment
thereby of which of the contending views is the correct one, that I have thought it necessary to have the terms of the pleadings set out in detail in this judgment. What then are my reasons for upholding the contention of counsel for the defendant that the writ and statement of claim disclose no cause of action? They are these: that it appears to me firstly, that the authorities are manifestly against the contentions of counsel for the plaintiff but rather in favour of those of counsel for the defendant; and secondly, that in any event certain allegations of fact set out in
the writ and statement of claim on which the plaintiff’s claim is based and founded are completely misconceived and grossly inaccurate.
Dealing firstly with the authorities, the leading English authorities were referred to and considered in some detail in our local leading case on the subject of setting aside a judgment a having been obtained by fraud, namely, the case of Kojo Pon v. Atta Fua12(12) and I would refer to some of them which appear to have points of resemblance with, or to be relevant to this case. I would refer here to the leading case of Flower v. Lloyd13(13) a decision of the Court of Appeal, in which Jessel, M.R. pointed out the origin of the particular jurisdiction as emanating form the old practice of the old Court of Chancery as follows14(14): “The question which we have to decide is whether, final judgment having been pronounced by the Court of Appeal dismissing an action with costs, the plaintiff in that action is entitled by motion to apply for leave for a rehearing of the appeal before the Court of Appeal on the ground of subsequent discovery of facts which shew or tend to shew that the order of the Court of Appeal was obtained by a fraud practised on the Court below.
If there were no other remedy I should be disposed to think that the relief now asked ought to be granted, for I should be slow to believe that there were no means whatever of rectifying such a miscarriage if it took place: but I am satisfied that there is no other remedy. In the first place it must be remembered that the old practice remains where not interfered with by the new rules, and secondly, it must be remembered that all the jurisdiction of the old Court of chancery is transferred to the High Court of Justice. Now, had the Court of Chancery any jurisdiction to give relief in such a case? It plainly had. I will read from the well-known treatise of Lord Redesdale, (5th ed.) pp. 112-113: ‘If a decree has been obtained by fraud, it may be impeached by original bill,’ and he goes on to say, ‘without the leave of the Court’—but there are very few such cases, in most cases you must obtain leave—’The fraud used in obtaining the decree being the principal point in issue, and necessary to be established by proof before the propriety of the decree can be investigated. And where a decree has been so obtained the Court will
restore the parties to their former situation, whatever their rights may be.’ So there is no doubt that under the old practice you could have brought an original bill to impeach a decree for fraud, and could have got relief if fraud in obtaining the [p.13] of [1962] 2 GLR 1 decree was proved. There was another totally different class of cases where you discovered subsequent matter which showed that the decree was wrong, although there had been no fraud in obtaining it. That was called a supplemental bill in the nature of a bill of review, which brought the new matter forward and again enabled the Court to do justice and get rid of the original decree. That always required leave . .. But the leave to be given when required was always to be obtained from the Court in which the bill was filed or in which the action had been brought.”
James, L.J. concurred by saying as follows15(15):
“I agree with what has been said by the Master of the Rolls, that in the case of a decree (or judgment as we call it now) being obtained by fraud there always was power, and there still is power, in the Courts of Law in this country to give adequate relief. But that must be done by proceedings putting in issue that fraud, and that fraud only.”
The same indication of the origin of the jurisdiction is made by Cozens-Hardy, L.J. in Bright & Co. v. Sellar16(16), also a Court of Appeal case, when he said as follows: “Doubtless there is ample jurisdiction now to deal by fresh action with some matters which were formerly the subject of a bill of review, or of a supplemental bill in the nature of a bill of review. For instance, where a judgment has been obtained by fraud, Birch v. Birch [1902] P. 130, or where fresh material evidence has been obtained since the judgment which could not have been previously procured, Boswell v. Coaks 6 R. 167, an action may be maintained. Actions of this nature do not invite the High Court to rehear upon the old materials. Fresh facts are brought forward, and the litigation may be well regarded as new and not appellate in its nature, because not involving any decision contrary to the previous decision of the High Court.”
The origin of the particular jurisdiction having been ascertained or discovered, the next important
matter for consideration is on what conditions or terms was it exercised? As to that, reference has to
be made to some of the cases decided under the old practice, and it will be sufficient to refer to three.
The first is Norris v. Le Neve.17(17) The headnote reads as follows:
“Lord Bacon’s rules in respect of bills of review, having never been departed from since the making of them, the court was of opinion that the parties who now applied for leave to bring such a bill, had not brought themselves within those rules and dismissed the petition.”
On reference to the decision of Hardwicke, L.C. we find him setting out the main conditions and rules for the allowance of a bill of review, in the following terms18(18) “The present application is, for leave to bring a bill, in nature of a bill of review; and this is said to be founded upon new matter, not at all in issue in the former cause, or upon matter which was in issue, but discovered since the hearing of the cause.
Upon these rules, I do allow bills of review have been granted: for though it has been said that these were varied by the order that was made in the cause of Montgomery versus Clark, yet I see no alteration, and therefore the rules I shall judge by in the present case, must be the ancient ones. Lord Bacon’s rules have never been departed from since the making of them. [p.14] of [1962] 2 GLR 1
By the established practice of the court, there are two sorts of bills of review; one founded on supposed error appearing in the decree itself, the other on new matter which must arise after the decree, or upon new proof which could not have been used at the time when the decree passed.
The question is, whether in this case the defendants [in the original cause] have brought themselves within the rule, and whether there is new matter not existing at the time of the decree, or new proofs thatcould not possibly be made use of at the former hearing… It has been insisted for the defendants in the original and plaintiffs in the cross cause, that the equity to which the new facts are pointed was not in issue at the hearing of the former cause.
Now as to this I am clear of opinion, that the equity was as full before the court, in the former hearing, as
it can be now.
For it appeared there that old Oliver Neve was the maker of the settlement, that young Oliver was an infant, that old John was Trustee under the settlement during ten years, for the payment of debts’ and in that time took a conveyance from the blacksmith, the last remainder-man under the settlement in 1679. The equity insisted on in the cross-bill is that old John Norris ought to be considered as a trustee only, for the parties interested in the trust estate, and that the purchasing the reversion from the blacksmith was a breach of trust in him, and that the conveyance … to Norris [should be] cancelled and the proceedings at law stayed…
All the charges relating to the trust and the execution of it, were made out then . . . .
The defendants then do not want a bill of review to come at this equity, for all the acts which are now said to be discovered, are corroborative only of the former equity and therefore there is no ground to grant it upon this head.
Which brings me to the other point, whether they are so many new proofs, and that by the rules of publication the defendants were precluded from making use of them at the former hearing.
The first question is whether they are new discoveries, . . . Now it does not appear to me that these are new discoveries, so as to intitle the defendants to a review.
For if they were known to the parties’ counsel, or their attorney, and solicitor, or agents, it is sufficient to rebut such an application, or there would be no end of Suits… (Vide Worsley v. Earl of Scarborough 3 Atk. 392, and Le Neve v. Le Neve 3 Atk. 646). It is sworn by Martin who was attorney for the defendants in the ejectments that he had the several deeds and writing even at the time of the trial… but says he was concerned only as attorney in this trial but not as solicitor in the cause in Chancery. But I will consider him as solicitor likewise .. Suppose then these
are not new discoveries, it is a final and conclusive answer to this application for a bill of review, that they existed at the former hearing, and were known to the parties or their attorney, and therefore are not within the rule laid done by Lord Bacon.”
We refer secondly, to the case of Young v. Keighly19(19) the headnote of which is as follows: “Bill of review, or a supplemental bill in nature of it, where the Decree has not been enrolled, upon new evidence discovered since publication, not permitted to introduce a new case, of which the party was sufficiently apprised to enable him with reasonable diligence to have put it upon record originally.” [p.15] of [1962] 2 GLR 1
In that case, a petition was presented by the plaintiff for leave to file a bill of review in the case, upon the ground of evidence since discovered, the affidavit stating that neither the plaintiff nor as he believes, his solicitor now deceased, knew that securities proposed by the defendant Keighly in a letter to the plaintiff were the joint property of the defendant and two partners. Eldon, L.C. ruled as follows20(20): “This is an extremely important question. The evidence, the discovery of which is supposed to form a ground for this application, is very material; and I am persuaded, that by refusing the application, I decided against the Plaintiff in a case, in which he might, perhaps with confidence, have contended, that upon the evidence he was entitled to the whole money. On the other hand, it is most incumbent on the Court to take care, that the same subject shall not be put in a course of repeated litigation; and that, with a view to the termination of suit, the necessity of suing reasonably active diligence in the first instance should be imposed upon parties. The court must not therefore be induced by any persuasion as to the fact, that the Plaintiff had originally a demand which he could clearly have sustained, to break down
rules, established to prevent general mischief at the expense even of particular injury.” It will be observed that the accent in this latter case was on “the necessity for using reasonably active diligence in the first instance,” to use Lord Eldon’s words, in obtaining all the materials necessary for combatting the adversary at the initial trial of the action.
We refer thirdly to a case decided in the Exchequer Division, Anderson v. Titmas21(21)21. The facts according to the headnote were as follows: “An action was brought to recover the price of certain pigs which had been sold by the plaintiff to the defendant. The pigs were bought in a fair, and the defendant gave his cheque for the price of £66 13s., but afterwards stopped payment of the same, alleging that the pigs had been sold with a warranty that
they were fresh from the farm and healthy, whereas in reality they were not so. The defendant paid the sum of £18 14s. into court and the jury found a verdict for the full amount claimed. The plaintiff’s case was proved by himself and another witness, whilst the defendant alone appeared on the other side. A rule was subsequently applied for an obtained on behalf of the defendant, calling upon the plaintiff to show cause why a new trial should not be had, on the ground of the discovery of material evidence since the trial. The evidence proposed to be given was that of a bystander, a stranger to the defendant, who without defendant’s knowledge was present when the deal took place, and who, having heard of the result of the trial, made known to the defendant that he could support his contention that the plaintiff had given a warranty.
Cleasby, B., ruled as follows22(22): “I am of the opinion that we cannot grant this application. On the maxim Interest reipublica ut sit finis litium is founded the rule that the parties to an action should be prepared with the best evidence at the trial. Where fresh evidence has been discovered after the trial, a party may have his case tried a second time; but to entitle him to that privilege I think that the fresh evidence proposed to be adduced should be
conclusive; and that it is not sufficient that another witness has been found who can depose to the facts as one already called, otherwise it would be difficult to say when a case might end.” [p.16] of [1962] 2 GLR 1
Huddleston, B., also ruled as follows23(23): “I am of the same opinion. It is no doubt difficult to lay down a general rule, inasmuch as every case is a governed by its particular facts; but I think the court has to decide whether, if the new evidence were brought before a jury, there would be a reasonable probability that a verdict would be given for the party who brings it forward. In the cases in which new trials have been granted on this ground the proposed fresh evidence will be seen to have been of a material and conclusive character, as in Broadhead v. Marshall (2 W.B. 955), where an action was brought against an executor for a debt of his testator. The defendant was abroad at the time of the trial, and afterwards a receipt was discovered which clearly showed the debt had been paid. But in the present case there is nothing conclusive.”
Anderson v. Titmas was applied and followed in a subsequent case in 1899, the consolidated cases of Young v. Kershaw and Burton v. Kershaw24(24) in which the defendant in both actions having failed to establish a defence of justification in an action in which he was sued in libel for accusing each of the plaintiffs of adultery and having had judgment given against him in favour of each of the plaintiffs, application was made on his behalf for a new trial on the ground that since the trial, he had obtained fresh evidence which could not by reasonable diligence have been obtained before the trial, and the proposed evidence was of two youths who had seen adultery committed by the plaintiffs upon occasion different from that which was set up and sought to be proved at the trial. The proposed fresh evidence was said to have been communicated to a man who was co-respondent in a pending divorce suit by the plaintiff Young against his wife, and was referred by that man to the defendant Kershaw’s solicitor. Collins, L.J. said as follows25(25):
“The only question which has been argued is whether or not the defendant is entitled to a new trial for the purpose of adducing new evidence which he has discovered since the trial. It is a matter of the greatest importance, and has always been so treated by the courts, that all material evidence, which could with reasonable skill and diligence be produced at the trial, shall be the only evidence which can be considered, and must be adduced at the trial. It is obviously in the public interests that parties, who have gone through the ordeal of litigation and have had their rights settled at the trial, should not afterwards be allowed to patch up the weak parts and fill up the omissions in their case by means of fresh evidence. That is a rule of great importance. It is true that in special and exceptional circumstances a new trial has been granted because new evidence has been discovered. But the rule which permits that to be done is fenced round with any limitations. The party asking for the new trial must show that there was no remissness on his part in adducing all possible evidence at the trial. Then, again, as to the class of new
evidence, the rule is that the new evidence must be such that, if adduced, it would be practically conclusive – that is, evidence of such a class to render it probable almost beyond doubt that the verdict would be different. In some of the cases which have been cited, the new evidence came in to corroborate evidence which was, although not contradicted, weak at the trial, and the corroboration made the previous weak, but uncontradicted, evidence practically conclusive. The other cases were cases in which the new evidence consisted of documents which were not impeached and were conclusive. The case which was most relied upon by the appellant – Anderson v. Titmas (36 L.T. Rep. 711) – does not support his contention at all, but is really against him, and is nearly on all fours with the present case. In that case the new evidence was evidence [p.17] of [1962] 2 GLR 1to support the evidence of the defendant at the trial which was contradicted by the plaintiff, and it was held that such evidence was no ground for granting a new trial.”
It is on the limitation and restrictions so clearly imposed or laid down in the older cases that the more modern decisions have proceeded, and we now refer to a few of those, commencing with Flower v. Lloyd,26(26) also a decision of the Court of Appeal. In that case, in a former action by the plaintiff to restrain the defendants from an alleged infringement of a patent process for printing on metal plates, an expert agreed to by the parties had been appointed by order of the court to inspect the defendant’s process, the defendants undertaking to show him the whole process. He inspected and submitted a report upon which the plaintiff’s action was dismissed. Subsequently a fresh action was brought to set aside the former judgment on the ground of fraud, the fraud alleged being that during the inspection leading to the report on which the former judgment was based, the defendant and his servants wilfully and with corrupt intention had concealed part of the process and in other respects misled him to make his report. Bacon, V.C. considered the alleged fraud proved and made a decree in the plaintiff’s favour. On appeal however, the court unanimously held that the charges of fraud had not been substantiated and that the judgment of the Vice-Chancellor should be set aside. This important enunciation of principle was then made by James, L.J. and concurred in by Thesiger, L.J. as follows27(27): “We have thought it right and due to the Defendants to go through the allegations made against them; and their counsel, in fact, scarcely asked for any judgment except one based on their acquittal of the fraud charged against them. But we must not forget that there is a very grave general question of far more importance than the question between the parties to these suits. Assuming all the alleged falsehoods and frauds to have been substantiated; is such a suit as the present sustainable? That question would require very grave consideration indeed before it is answered in the affirmative.
Where is litigation to end if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm’s length could be set aside by a fresh action, on the ground that perjury had been committed in the first action or that false answers had been given to interrogatories, or a misleading production of documents, or of a machine, or of a process had been given. There are hundreds of actions tried every year in which the evidence irreconcilably conflicting, and must be on one side or the other wilfully and corruptly perjured. In this case, if the Plaintiffs had sustained on this appeal the judgment in their favour, the present Defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subornation of perjury; and so the parties might go on alternately ad infinitum … The Court ought to pause long before it establishes a precedent which would or might make in numberless case judgements supposed to be final, only the commencement of a new series of actions.”
We refer next to the case of Baker v. Wadsworth28(28) where the plaintiff brought the present action in 1897 claiming that the verdict and judgment in a former action tried by a judge and jury whereby the defendant obtained judgment for recovery of possession of certain cottages and land, [p.18] of [1962] 2 GLR 1 should be set aside on the ground that the defendant obtained judgment in her favour in the former action fraudulently, by falsely and fraudulently committing perjury, Wright, J. said as follows29(29): “I wish to decide the present case upon the ground that there is no authority that the mere proof that a verdict and judgment have been obtained by perjury is sufficient to induce the Court to set the judgment aside, and the expressions of the Lords Justices in Flower v. Lloyd (1878) 10 Ch.D. p. 327 are strongly against such a proposition.”
Flower v. Lloyd and Baker v. Wadsworth together are particularly decisive of the legal position that perjury committed by the successful party or his witnesses in the first trial as the foundation or ground for a claim to set aside will not avail. Both Flower v. Lloyd and Baker v. Wadsworth referred to supra were considered and relied on in sustaining the judgment of the judge of the Divisional Court (Smyly, C.J.) non-suiting the plaintiff in Kojo Pon v. Atta Fua30(30) in which the fraud alleged and relied on was alleged to consist in: “gross misrepresentation made in deceit of the Court by the linguists of the defendant, in, 1916, as to a Native Tribunal competent to try the matter in controversy between the parties [being available or in existence] whereby the plaintiff’s cause was referred.”
Gardiner-Smith, J. in the Appeal Court, said as follows31(31): “The plaintiff’s evidence in the present action amounts to this, that there is no such tribunal as that to which the case was referred, and that the witnesses who testified to its existence were perjured. In my opinion the appellant has failed to make out a case and the learned Chief Justice was right in non-suiting him.”
Michelin, J. also said32(32): “In the present case, the learned Chief Justice held, in the course of his judgement, that he was not satisfied upon the evidence that fraud had been proved, and he has also held that the witnesses who gave evidence before him, were in Court at the original trial, and were available if their evidence was desired;
and that they gave no new evidence in this action which could have been used when the decree was made [in the first action].”
Let us then consider or examine again the allegations of fact set out in the writ and statement of claim, and attempt to apply the principles or rules disclosed in the cases reviewed to those allegations, bearing in mind what Cozens-Hardy, L.J. said in Birch v. Birch33(33) that “A mere general allegation of fraud without particulars will not avail” and, therefore, taking the allegations set out in the writ and statement of claim as the “particulars of fraud” on which the plaintiff relies, namely, that the Dadiaso chief as plaintiff in the action before Dennison, J. conspired and/or colluded with Kofi Amankwa to give false evidence (or to tell deliberate falsehoods) and the conspiracy was actually carried out and the false evidence given, by which the court was misled to give judgment for the Dadiaso stool. The false evidence alleged was (a) as to the witness [p.19] of [1962] 2 GLR 1 Kofi Amankwa being a chief in the first place when he was no chief at all and as to his being in the second place the duly authorised representative of the Omanhene of Manso-Nkwanta when in truth and in fact he was not; and (b) as to Manso-Nkwanta having boundary with Dadiaso, when in truth and in fact the boundary was with Sefwi-Anwhiase as determined by the Order in Council of the 22nd October, 1906. The first question, however, is that assuming those were falsehoods or misrepresentations, were they such as could not at the time, by the use of reasonable diligence, be exposed? It would surely be idle to argue that where a person in the course of evidence in the
Supreme Court during the years 1949-51 misrepresents that he is a chief when in truth he is not a chief at all, he could not almost immediately after he had spoke the words, be reference to the chiefs list, or at latest the next morning by enquiry to the appropriate district commissioner’s office, be exposed as being a nobody; equally, if the misrepresentation was that he was the duly accredited representative of an Omanhene, that at latest by the very next day by enquiry from the Omanhene himself, the imposter, if such he be, could not be exposed.
Learned counsel for the plaintiff has urged and stressed that the misrepresentation by Kofi Amankwa that he was the representative of the Omanhene of Manso-Nkwanta, when in fact he was not, was particularly serious, because in that false capacity, traditional evidence and history concerning the Manso-Nkwanta stool and its alleged relationship with the Dadiaso stool which he must have given as part of his evidence that Manso-Nkwanta and Dadiaso stool lands form boundary, was received and acted on by Dennison, J. when otherwise such traditional evidence from him would not be admissible, and reliance is placed on the decision of the West African Court of Appeal in Ofuman Stool v. Nchiraa and Branam Stools.34(34) The argument however avoids and seeks to evade the more important question why the representatives of the Sefwi-Anwhiaso stool and their counsel did not
exercise the ordinary or usual diligence necessary in these matters to discover that the representation by the witness was false.
The judgment of Dennison, J. as admitted by counsel for the plaintiff, though he has not stated it in his writ and statement of claim, went on appeal to the West African Court of Appeal and it was open to counsel for the Sefwi-Anwhiaso stool as appellant in the appeal to have raised the point in the same way as the point was taken in Ofuman Stool v. Nchiraa and Branam Stools. Is it suggested that between August, 1951, the date of Dennison’s judgment and January, 1953, when the appeal was heard (see paragraph (5) of statement of defence), the representatives of the Sefwi-Anwhiaso stool and their counsel could not, by ordinary diligence, have discovered the falsity of the alleged misrepresentation made by Chief Kofi Amankwa that he was the Omanhene of Manso-Nkwanta’s representative, if in fact it was a misrepresentation at all?
And if they have not exercised that ordinary diligence to discover and expose any alleged falsehoods in the evidence of the witness for all that length of time, on what ground can they now be heard, when they seek to raise the matter of an alleged falsehood in the witness’ evidence by a writ issued in 1959? [p.20] of [1962] 2 GLR 1
Similarly with regard to the allegation that there was misrepresentation in swearing before the trial judge that the boundary was with the Dadiaso stool, when there existed an Order in Council, given publicity in a Gazette Notice and still further publicised by a public demarcation and fixing of boundary pillars in situ; surely the fact ought to be so well known to the representatives of the Sefwi-Anwhiaso stool themselves that a veritable uproar should have been made by them and their followers in court as soon as the witness uttered what is alleged to be false evidence, so that the witness could have been immediately exposed to the judge, and possibly dealt with as he would have deserved to be. Surely the arguments in respect of both alleged falsehoods, if such they be, are clearly
defeated by Eldon, L.C.’s authoritative ruling in Young v. Keighley35(35) that, “On the other hand, it is most incumbent on the Court to take care that the same subject shall not be put in a course of repeated litigation, and that with a view to the determination of the Suit, the necessity of using reasonably active diligence in the first instance should be imposed on the parties.”
The second question is, what conclusiveness can there be about the proposed evidence towards proving the evidence of the witness Kofi Amankwa before Dennison, J. to be false? If it can now be established that he was neither a chief nor the representative of the Omanhene of Manso-Nkwanta at the time of the trial of the action before Dennison, J., why was there any difficulty to establish the falsehoods at that time and thereby expose him?
As regards proving his evidence about a boundary between Manso-Nkwanta and Dadiaso to be false, reliance is placed on the documentary evidence of the Order in Council of 1906; but as I have already intimated the documentary evidence does not ex facie support the plaintiff’s contention, and I shall indicate more clearly how this is so, when I come to deal presently with the true meaning and effect of the said document, the said Order in Council of 1906.
Meanwhile, it seems to me the contentions of learned counsel for the plaintiff are further defeated by the ruling of Collins, L.J. in Young v. Kershaw and Burton v. Kershaw36(36) when he said: “Then again, as to the class of new evidence, the rule is that the new evidence must be such that, if adduced, it would be practically conclusive . . . In some of the cases which have been cited, the new evidence came in to corroborate evidence which was, although not contradicted, weak at the trial, and that corroboration made the previous weak, but uncontracted evidence, practically conclusive. The other cases were cases in which the new evidence consisted of documents which were not impeached and were conclusive.” See also Birch v. Birch.37(37)
The third question is, whether on the materials available to the court supplied by the plaintiff himself, namely, the documentary evidence of the published copy of the Order in Council of the 22nd October, 1906, and the certified copy of the judgment of Dennison, J., the plaintiff’s allegations that false evidence was given and fraud thereby committed are consistent and capable of being substantiated. I am satisfied the [p.21] of [1962] 2 GLR 1 answer is in the negative, but my views can be better understood and appreciated after I have dealt with the second of the two main grounds on which I have been obliged to express disagreement with the contention on behalf of the plaintiff that a cause of action is disclosed by his writ an statement of claim, and I now pass on therefore to that ground which, as I have already indicated, is that the basic or fundamental allegations of fact on which the plaintiff founds his claim, are substantially misconceived and grossly inaccurate.
Learned counsel has annexed the Gazette Extraordinary containing the official publication of the said Order in Council. It firstly refers to the previous Order in Council of the 26th September, 1901, better known as the Gold Coast Order in Council, 1901, the material parts of which, for our purposes are as follows:
“Whereas by Letters Patent passed under the Great Seal of the United Kingdom of Great Britain and Ireland bearing dated 13th January, 1886, provision was made for the Government of Her late Majesty Queen Victoria’s Settlement on the gold Coast, and it was provided that the Gold Coast Colony of her said late Majesty should, until Her Majesty should otherwise provided, comprise all places Settlements and territories belonging to Her Majesty on the Gold Coast in Western Africa between the fifth degree of West longitude and the second degree of East longitude. . . . . And whereas it is expedient that the boundaries of the Gold Coast Colony should be further defined and that all such portions of the territories on the West Coast of Africa, with the limits hereinafter defined which have not already been included within His Majesty’s Dominions should be annexed to and should henceforth form part of the said Gold Coast Colony… All such parts of the territories within the limits aforesaid as have not hereto for been included in His Majesty’s Dominions, shall be, and the same are hereby annexed to His Majesty’s Dominions, and the whole of the said territories are declared to be part and parcel of His Majesty’s Gold Coast Colony… to all intents and purposes, as if all such territories had formed part of the said Colony at the date of the said Letters Patent of 13th January, 1886.”
The Order in Council of the 26th September, 1901, was therefore the Order annexing Ashanti and the Northern Territories as part and parcel of the Gold Coast Colony.
The further Order in Council of the 22nd October, 1906, then recites firstly that: “Whereas by certain Orders of His Majesty in Council of even date herewith, provision has been made for defining the boundaries of certain territories adjacent to the Gold Coast Colony and known respectively as Ashanti and the Northern Territories of Ashanti.”
And secondly that “And whereas it is expedient to define the limits of the Gold Coast Colony” and the proceeds to define or give the limits of the Gold Coast Colony, but not of any state whatsoever. In the writ as well as in paragraph (1) (b) and (c) of the statement of claim, as will be noticed, it is set out that, “On the north of Sefwi-Anwhiaso State or Stool lands boundary with Omanhene of Manso-Nkwanta (Ashanti) commences from the junction of Baierabon and Kotabotri or GCS. 1676,” and then a detailed description of what is alleged to be the true boundary between the Sefwi-Anwhiaso State and Manso-Nkwanta State was given. In point of fact the description given or set out is just a reproduction of portion of the northern boundary [p.22] of [1962] 2 GLR 1 line of the Gold Coast Colony, as set out in the Order in Council, as it appears in the publication of the Order of 1906 in the Gazette Extraordinary of the 1st January, 1907, copy whereof was annexed to the writ. Moreover by reference to the operative words appearing in clause 1 of the Order, “The limits of the Gold coast Colony shall be the territories on the West coast of Africa which are bounded as follows, namely, on the South by the Atlantic Ocean, on the West by the line of the Frontier between the British and French Possessions from the Sea to the point marked by the Survey Beacon 1620 on the Frontier at which the Asuepiri River crosses it; on the North, starting from the S.B. GCS. 1620, etc.”
which description of the northern boundary line includes the boundary line set out by the plaintiff in his writ and statement of claim, it appears quite clearly that there is no room whatever for any misconceptions to what boundary the Order in Council was intended to and did in fact effect or make. It may well be that the course of the boundary as defined passed by or through or near, the lands of several native states both in the Gold Coast Colony and in Ashanti. That would be inevitable but merely accidental, and it would be just a question of part of the
administrative or official boundary of the Gold Coast Colony, passing through such and such a native state; but there can be no ground for any suggestion that the determination or defining of any state boundary was intended or actually effected. On the face of the Order in Council itself, therefore, the allegation that it was intended to and actually effected determination and defining of state boundaries was wholly unwarranted and wrong. Finally, as I have pointed out by reference to the enabling statue such an act or step on the part of the King in Council as the arbitrary determination of state boundaries (which would obviously be the determination of private rights to property without the representatives of the states being heard) would be blatantly and flagrantly ultra vires the powers conferred by the statute and glaringly wrong.
I am further fortified in my view by the decision of the old Full Court in the case of Omanhene Kofi Buaten of Kwahu v. Ohene Kwesi Amoako of Agogo38(38) in Ashanti in which the question directly came in issue whether this Order in Council of the 22nd October, 1906, defining the boundary between Ashanti the Gold Coast Colony, determined ownership of lands to the native states along those territories the boundary passed or ran, and Hall, Ag. C.J. delivering the judgment of the court said,39(39) “I agree with the Chief Commissioner when he says that the Order in Council defining the boundary between Ashanti and the Gold Coast Colony could not deprive either party of the ownership of lands.”
There are also the decisions of the Privy Council in two cases. Firstly, Atta Kwamin v. Kobina Kufuor40(40) in which it was pointed out that, “The lands of Bibianiha are at some distance from Enkawie (Nkawie) and since the delimitation of the frontier in 1906 they have been placed within the Gold Coast Colony, whereas Enkawie is in Ashanti,” yet no [p.23] of [1962] 2 GLR 1 question arose as to the delimitation of the frontier affecting Enkawie’s ownership of the land within the Gold Coat Colony, which was upheld in the trial court, the Full Court and the Privy Council. And secondly, Akpandja v. Egblomesse41(41) in which a similar Order defining the eastern boundary of the Gold Coast with French mandated Togoland, was not held to affect in any way ownership of land
within the Gold Coast territory by a neighbouring chief on the French side of the boundary, the Board holding that, “the respondent as chief of Akposso Badu (on the French side of the boundary) is the owner of that portion of the land in dispute situate in British Territory south of the River Ojinjin42(42).
It is clear therefore that the very basis and foundation of the plaintiff’s claim that the Order in Council of the 22nd October, 1901, had determined the boundary to be between Sefwi-Anwhiaso State in the Gold Coast Colony and Manso-Nkwanta State in Ashanti, and that by giving evidence before Dennison, J. that the boundary of Manso-Nkwanta towards the Gold Coast side was with Dadiaso in the Denkyera State and not Sefwi-Anwhiaso, the witness Chief Kofi Amankwa swore to a falsehood, crumples completely to the ground, and with it, the very fabric of the plaintiff’s case.
Finally, there is the allegation that it was the evidence of Kofi Amankwa which influenced Dennison, J. to give judgment in favour of the Dadiaso stool as plaintiff as against the Sefwi-Anwhiaso stool as defendant in suit No. 1/1949. I have already dealt with that question and pointed out that the judgment on the face of it, does not bear out that allegation. On the contrary the judgment itself recites and sets out the grounds, namely, the visible signs of occupation and evidence of acts of ownership, but not any statement on oath by Chief Kofi Amankwa that the traditional boundary of Manso-Nkwanta towards the Gold Coast was with Dadiaso, as the plaintiff avers in his writ and statement of claim to have been the substance of Kofi Amankwa’s evidence in that suit.
In the ultimate result, I am unable to find that the allegations such as they appear in the writ and statement of claim disclose any cause of action, and I am compelled therefore to dismiss the action in favour of the defendant.
DECISION
Action dismissed.
J. D.
