SUPREME COURT, ACCRA
DATE: 21ST DECEMBER, 1962
BEFORE:VAN LARE, OLLENNU AND AKUFO-ADDO, JJ.S.C.
CASES REFERRED TO
(1) Nettey v. Odjidja [1959] G.L.R. 261, C.A.
(2) Bassil v. Honger (1954) 14 W.A.C.A. 569
(3) Akomea v. Biei (1958) Oll.C.L.L. 186, C.A.
(4) Asenso v. Nkyidwuo (1956) 1 W.A.L.R. 243, W.A.C.A.
(5) Amoabimaa v. Badu (1956) 1 W.A.L.R. 227
(6) Kwao v. Coker (1931) 1 W.A.C.A. 162
(7) Ashon v. Baring (1891) Sar.F.C.L. 132
NATURE OF PROCEEDINGS
APPEAL from a judgment of Adumua-Bossman, J., (as he then was) delivered in the Land Court,
Cape Coast, reversing a decision of the Enyan-Na-Breman Native Court “B” delivered in favour of
the plaintiff in an action for declaration of title to land.
COUNSEL
D. K. Afreh for the plaintiff-respondent-appellant.
Respondent in person.
[p.189] of [1962] 2 GLR 187
JUDGMENT OF VAN LARE J.S.C.
Van Lare J.S.C. delivered the judgment of the court. The case which the appellant put up is that the
land, the subject-matter of this dispute, known as Odumasi land, is the ancestral property of his
family, and that the same was acquired by his ancestor Inkabi by cultivation of the virgin forest and
reducing it into his possession; that Inkabi permitted his grand-daughter, one Poprodo, to occupy the
land; that upon the death of Inkabi, Effua Kum, his sister, and mother of the appellant, also permitted
Poprodo to continue in occupation, and Poprodo built a village on the land which she named Misire
Nyami, which has become the other name of the land. He sued, according to him, because the
respondent who got to the land through Poprodo was claiming the land as the ancestral property of his
family, the Dihyina family.
The case of the respondent on the other hand is that the land is his ancestral property acquired by his
ancestor Breman who was a brother of Nyaku and uncle to Poprodo, Kwami Fosu and Biney; that
Nyaku succeeded Breman and took charge of the land; that Nyaku was succeeded by his nephew one
Kwami Fosu who thereupon placed his nephew one Kofi Anku in charge of the land; that Kofi Anku
pledged the land to one Essel for a loan of £30, and thereupon Essel occupied the land for some time
exercising full acts of ownership, and when later Essel demanded payment of the loan, Biney paid the
amount and redeemed the land for the family and placed Poprodo and himself, the respondent, in
charge thereof. The respondent further contended that he had successfully litigated the family’s title to
the land in a number of suits, to the knowledge of the appellant and his family, the first of which was
heard in 1920; another was in 1951.
When the appellant said that Breman was his ancestor, he explained that he was not a blood relation
of Breman, but was a domestic of Breman’s nephew Biney and was adopted by Biney’s sister
Poprodo as her child, and that he had identified himself all his life with the family of his former
master. By customary law, the respondent is a member of Breman family otherwise known as the
Dihyina family and therefore has every justification to refer to Breman as his ancestor.
The native court accepted the case of the appellant and entered judgment for him against the
respondent for declaration of his title and recovery of possession. The respondent appealed from that
judgment to the Land Court. The Land Court allowed the appeal on two main grounds, (1) that the
appellant was estopped from disputing the title of the respondent’s family to the Odumasi lands
because he and his family, knowing full well that the respondent was litigating his family’s title to the
land over the years, sat by and did not intervene to assert their title to it; and (2) the appellant failed to
discharge the onus which lay upon him, as plaintiff, to prove his title satisfactorily.
Before us, the judgment of the Land Court was attacked on three main grounds namely: (i) that the
learned judge misdirected himself in holding that the appellant was estopped by conduct from
disputing the respondent’s family’s title; (ii) that the declaration of the learned judge that the
judgment of the native court was wrong because the appellant failed to discharge the onus upon him is
unjustified, and consequently (iii) that learned judge erred in setting aside findings of fact made by the
trial native court which saw and heard the witnesses.
[p.190] of [1962] 2 GLR 187
In support of the ground of misdirection on the question of estoppel, counsel for the appellant
submitted that the issues raised in the previous suits relied upon to sustain the plea of estoppel by
conduct were not inconsistent with the appellant’s title to the land, and were not the same as were
raised in the present proceedings; and that the title of the appellant’s family to the land was not in
jeopardy in any of the previous proceedings, therefore his family could not reasonably be expected to
intervene and assert their title. Consequently, it was submitted that the cases cited by the learned judge are not applicable. Counsel relied upon Nettey v. Odjidja 1(1) for this proposition.
Counsel further submitted that in so far as evidence given in the previous suits by the appellant or any
person through whom he claims is concerned, that evidence cannot operate as estoppel because it does
not amount to representations intended to be acted upon by the respondent and it has not been as
shown that the respondent acted upon those representations or any of them to his detriment. He cited
Bassil v. Honger2(2) where Coussey, J.A. (as he then was), drawing a distinction between the pleas of
estoppel and res judicata said:
“Estoppel prohibits a party from proving anything which contradicts his previous acts or declaration to
the prejudice of a party, who, relying upon them, has altered his position. It shuts the mouth of a party.
The plea of res judicata prohibits the Court from enquiring into a matter already adjudicated upon. It
ousts the jurisdiction of the Court.”
To sustain the plea of estoppel the respondent tendered a number of documents in evidence in the
native court. They include whole proceedings in previous suits directly or indirectly affecting the
land, subject matter of the present suit. Under the strict rules of evidence such proceedings would be
inadmissible. However, in a trial before a local court, such documents are admissible if they
materially throw light on the issues and would enable the local court to do justice between the parties.
In Akomea v. Biei3(3) where the question was raised as to admissibility of previous proceedings in a
suit in a native court in circumstances similar to those in this case, the Court of Appeal in the
judgment said that such a record:
“might not be considered admissible under the strict rules of evidence, but since there is absence of strict
rules of evidence in customary procedure, such of the record that materially throws light on the matter
even though not strictly admissible in the court of law is admissible.”
Also in Asenso v. Nkyidwuo4(4) the West African Court of Appeal held that native customary rules
of procedure, applicable in a native court, permit the admission of documentary evidence where this
will materially shed light upon the subject in dispute even though such evidence would be
inadmissible in the High Court. See also Amoabimaa v. Badu.5(5)
As will appear presently, substantial parts of the proceedings admitted by the native court would be
admissible in a court of law if proper procedure for tendering them is followed, as some of them are in
the nature of evidence given by the appellant or his mother to whom he [p.191] of [1962] 2 GLR 187 is a privy, which contradicts the evidence he gave in the present case; some are declarations against interest made by the appellant or a person through whom he claims, others are evidence of conduct of the appellant which is inconsistent with his conduct in this case; while others are evidence given by witnesses in the previous suits which contradict evidence they gave in the present suit.
Now the proceedings first tendered in evidence are proceedings in two cross-actions tried in 1920
entitled Adzi Nyamiaye v. Kwami Acquah, and Kwami Acquah v. Adzi Nyamiaye. The respondent as
plaintiff in the first of those actions claimed damages for trespass to portion of the Odumasi land, and
Kwami Acquah also claimed damages for trespass to the same portion of land. Those cross-actions,
therefore, became a suit for determination of title to a portion of Odumasi land. Effua Kum, the
mother of the appellant, gave evidence in that case on behalf of the respondent, but she never claimed
that the Odumasi land was her ancestral property. Another was in 1951 entitled Yaw Donkor v. Dza
Nyami Aye in respect of title to the same land.
It was submitted on behalf of the appellant that the issue in the 1920 consolidated actions related to
boundary only and that title was not involved. This submission is ingenious but misconceived as a
boundary dispute between owners or occupiers of adjoining lands necessarily raises title to the section
of land enclosed between the two conflicting boundaries asserted by the opposing parties. If the
parties to the suit are mere occupiers or licensees, they put the title of their respective licensors in
issue; and if one only is a licensee, he puts the title of his licensor in issue.
Although when the 1920 proceedings are read in isolation there may appear to be some vagueness
about the area of land involved in that dispute, yet when read together with the proceedings in the
1951 case, which were in respect of the identical area, it becomes abundantly clear that the area
involved is not just a narrow strip of land but one of some size with farms and palm trees thereon.
Yaw Donkor, the plaintiff in the 1951 case, was successor to Kwami Acquah against whom the
respondent litigated his family’s title to the land in 1920. The case which he, Yaw Donkor, put up in
the 1951 suit was that the respondent’s family owned no land whatsoever in the area, that the
Odumasi land, which the respondent, occupied was the property of the appellant’s family, and that the
land ended at a rivulet, and did not go beyond it, and further that Poprodo through whom the
respondent got the land was a mere licensee of the appellant’s family.
One significant fact about the 1951 case is that the appellant was a witness for Yaw Donkor and the
evidence he gave then, which is precisely the same as he gave in the present case, supported Yaw
Donkor’s claim in toto, namely, that the respondent’s family owned no land in the area, that the
Odumasi land belong to the appellant’s family and that Poprodo was a licensee of his, the appellant’s
family, in respect of the Odumasi land, and further that the said Odumasi land ended at the rivulet,
that the rivulet formed a boundary between the Odumasi land and Yaw Donkor’s family land, and that
the area of land then in dispute, i.e. between the rivulet and the boundary claimed by the respondent,
is not part of the Odumasi land which the respondent occupied. He, the appellant, summed up his
evidence in that case in the answers he gave to the [p.192] of [1962] 2 GLR 187 native court in the following words: “I remember the land in possession of the defendant given him by my predecessor is called Odumasi which it forms boundary mark6(6)[sic] with the plaintiff by a rivulet. The defendant is a caretaker for Poprodo.” But in the 1920 case, the respondent as plaintiff, established that the Odumasi land extended beyond the said rivulet. And again, in the 1951 case, he successfully resisted the claim of Yaw Donkor that the Odumasi land ended at the rivulet. It follows that what the appellant seeks to do in the present suit is to establish the very claim which Yaw
Donkor, with his assistance, attempted to establish in the 1951 suit. But he failed miserably.
Thus, the 1951 proceedings and the present proceedings have one common objective namely, to
deprive the respondent’s family of the whole of the Odumasi land and partition it between the
appellant’s family and Yaw Donkor’s family, using the rivulet as the dividing line—the appellant’s
family taking a portion from one end to the said rivulet, and Yaw Donkor’s family taking the other
portion, i.e. from the other end to the rivulet.
The appellant identified himself with Yaw Donkor in the 1951 case to make precisely the same claim
which he has now made in the present suit. And Effua Gomba too as successor to Yaw Donkor, has
now identified herself with the appellant in making that claim; thus she gave evidence in support of
the appellant in his claim that the Odumasi land belonged to his family, and that the rivulet is its
boundary with Yaw Donkor’s family land.
Surely, having so identified himself with Yaw Donkor in the issues raised in the 1951 case, and those
issues having been determined against Yaw Donkor, the appellant, Yaw Donkor’s associate in those
issues, cannot now be heard to raise the identical issues to compel the respondent to re-litigate them;
for the success of the appellant would automatically mean success for Yaw Donkor, now succeeded
by the appellant’s second witness, Effua Gomba, as to her family’s title to the area she unsuccessfully
laid claim to in the 1951 suit. In other words the appellant’s family knew in 1951 that the respondent
claimed the whole land as his ancestral property with its boundary extending beyond the rivulet, and
the appellant was an active participant in the effort to disprove that claim of the respondent.
The logical consequence of the conduct of the appellant in the light of the decisions in those two cases
is that it should prohibit him from proving anything which should contradict the result achieved by those two suits. We may put the principle in this way: If A. identifies himself with B. in a suit against
C. on specific issues and B. loses to C., then A. is estopped by conduct from re-litigating the same
issues against the successful party C. This follows the well-known doctrine stated by the West African
Court of Appeal in Yode Kwao v. Kwasi Coker. 7(7)
In the 1951 suit the appellant stood by and saw the respondent assert title to land, the ownership of
which he, the appellant, claimed and now claims to be vested in him; instead of coming into open
conflict with the respondent on the issues at that time, the appellant identified himself with, and gave
evidence for Yaw Donkor, the plaintiff in that [p.193] of [1962] 2 GLR 187 case against the respondent, who was defendant in that case; the appellant thereby indirectly procured the native court in 1951 to uphold his title to the land as against the respondent, in the following judgment:
“In summing up the evidence of both parties, the court in the opinion doubtedly that the defendant could
not get a single person as witness to verify the dispute area as his, to clear doubt and therefore the
evidence of defendant is rather immaterial; that the Court as a whole found really that Chief Kofi Egyin
whose ancestors were the original ownership of the said land, deliberately had proved and shown the
said boundary line between plaintiff and defendant under the circumstances, this court really satisfied
and delivered judgment against the defendant herein.8(8)[sic.]”
It is obvious that this pronouncement is precisely the declaration which the appellant has been
struggling hard by these proceedings to obtain. Had that judgment of the native court, given in 1951,
remained in force and not been reversed by Dennison J., in the Land Court in his favour, the
respondent could not be heard to dispute the identical issues which the appellant has again raised in
the present proceedings. Conversely the final decision in the 1951 case shuts the mouth of the
appellant from raising the same issue.
Proceedings, including a plan in a suit entitled Clara Cheetham v. Nana Egyir Ababio, heard in 1940,
were also tendered. The appellant represented Clara Cheetham the plaintiff in the suit, the land then in
dispute formed boundary with the Odumasi land on the south-west. A survey of that land was made
upon order of the court, and a plan thereof prepared by one Mr. Selby, licensed surveyor. According
to the surveyor, who gave evidence for the respondent in this case, the appellant at the survey pointed
out the Odumasi land to him as land belonging to Kwami Fosu. The respondent was the person in
possession of the Odumasi land at the date of the survey, at which time Kwami Fosu was dead;
moreover, it was in the absence of the respondent that the appellant gave that information to the
surveyor.
That statement which the appellant made to the surveyor in 1940 as to the ownership of the Odumasi
land, was a declaration against his interest, made at a time when there was no litigation over the said
land. In the present proceedings, however, the appellant testified that he had never heard of a man
called Kwami Fosu in connection with the Odumasi land. This statement is patently false and was
obviously made to contradict his previous declaration that the land in dispute was the property of
Kwami Fosu through whom the respondent asserts title. The appellant is bound by that declaration
and is estopped from now disputing Kwami Fosu’s title to the land.
On the merits, the learned judge felt himself obliged to set aside the findings made by the trial native
court. It was submitted by counsel for the appellant that the learned judge erred in so doing.
Where upon the evidence on the record the balance of probabilities weighs heavily against findings of
fact made by a trial court, a court of appeal has a duty to reverse those findings of the trial court.
Again where the findings made by a trial court constitute wrong inferences drawn from facts, or
where the findings show improper appraisal of the totality of the evidence, the court of appeal is under
a duty to draw such inference as is warranted by the evidence and come to its own conclusions.
[p.194] of [1962] 2 GLR 187
In this case there is abundant evidence which weighs the probabilities very heavily against the
appellant’s case. The appellant failed hopelessly to discharge the onus which lay upon him as a
plaintiff. He rested the whole of his case upon an allegation that Inkabi was the first to cultivate the
land and that he licensed Poprodo to occupy it. There is no proof whatsoever of this allegation and
there is also no evidence to show his relationship with Inkabi. Further, the appellant’s allegation that
Poprodo was Inkabi’s grand-daughter and his licensee is in no way established. He led no evidence of
any user of the land by Inkabi or by any other member of his family. He, however, called two
witnesses, owners of adjoining lands to testify on his behalf that their lands formed boundary with the
Odumasi land at a white clay pit, and that the person with whom they formed that boundary was
Inkabi, his alleged predecessor. The first of those witnesses was Kwasi Aban. The evidence of this
witness contradicted the evidence he gave in the 1951 case; there he said that the person with whom
he formed boundary at the white clay pit was Mami Poprodo, through whom the respondent claimed.
The second witness was Effua Gomba, successor to Kwami Acquah of the 1920 case, and to Yaw
Donkor of the 1951 case. The evidence she gave contradicted the evidence which her predecessor,
Kwami Acquah, gave in 1920 that he formed boundary with the respondent, and was exactly the same
as the case put up by Yaw Donkor but rejected in the 1951 case. In any event, none of the adjoining
owners testified to seeing people other than members of the respondent’s family on the Odumasi land.
Thus their evidence, like that of the appellant, at its best, is evidence of tradition—something they had
heard.
Against this poor attempt by the appellant to assert title to the land, the respondent produced
undisputed evidence that his family had been in possession and occupation of the land for many
generations exercising full acts of ownership thereof; that they pledged it at one time to one Essel and
placed him in possession for a time and that Essel, in exercise of his rights as pledgee, felled palm
trees on the land without objection from the appellant’s family. It must be pointed out that the felling
of palm trees is by customary law an exercise of unequivocal acts of ownership reserved only to an
owner of land, or a pledgee holding of the owner: Ashon v. Baring.9(9)
When the appellant’s evidence of tradition is pitched against the evidence as to accomplished
facts—the acts of occupation and the exercise of full rights of ownership over the generations—the
appellant’s case collapses completely and must therefore fail.
If the native court had sufficiently laboured to evaluate the evidence as a whole, particularly as to the
effect of the proceedings in the earlier cases tendered before them, and sifted it to the extent that they
should, that is to say the extent to which the Land Court and this court have sifted it, the native court
would, most probably, have reached the conclusion that the appellant had not sufficiently discharged
the high onus of proof on him to be entitled to the ownership of the land in possession of the
respondent’s family.
The appeal is dismissed.
DECISION
Appeal dismissed.
J.D.
