COURT OF APPEAL
16 FEBRUARY 1970
BEFORE: AZU CRABBE AG CJ JIAGGE AND ARCHER JJA
CASES REFERRED TO
(1) Yardom v. Minta III (1926) F.C. ‘26-’29, 76.
(2) Damoah v. Taibil (1947) 12 W.A.C.A. 167.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Prempeh J. in the High Court, Ho, wherein he gave judgment for the respondents in an action for trespass to Kpordui creek against the appellants.
COUNSEL
Amorin for the appellants.
D. Kom for the respondents.
JUDGMENT OF AZU CRABBE AG. C.J
This was a transferred suit from the Anlo State A and Native Appeal Court, Keta, to the Lands Court, Accra. Pleadings were ordered and filed, but upon the establishment of a High Court at Ho, the case was further transferred to that court, and was eventually heard and determined by Prempeh J. against whose decision this appeal has now been brought.
The plaintiffs’ case was that on 15 January 1955, in consideration of the sum of £G225 which they paid to the late Togbi Sri II, Awoame Fia of Anlo, then the head of the Adjorvia Tribe of Anlo, the late Togbi Sri II granted them fishing rights for three fishing seasons in the Kpordui creek for the period 1955-1957 inclusive. In consequence of this grant
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the plaintiffs entered the Kpordui creek and fished for only one season, because constant flooding of the creek made it impossible for them to fish for the two remaining seasons. By special arrangement with the late Togbi Sri II, the period was extended to enable the plaintiffs to have full benefit of fishing for three fishing seasons as agreed in January 1955. The plaintiffs alleged that in the fishing season of October 1957-March 1958, the defendants, without permission from the plaintiffs, entered and fished in the Kpordui creek. By this act the defendants prevented them from making any profit from the creek, and they thereby suffered damage. The plaintiffs further alleged that in the one season that they fished in the Kpordui creek their sale of fish amounted to £G350 and odd. The plaintiffs therefore claimed from the defendants jointly and severally the sum of five hundred pounds (£G500) damages for their trespass in the Kpordui creek.
In a statement of defence filed on behalf of all the defendants on 23 October 1958, the defendants emphatically denied that the Kpordui creek belonged to the Adjorvia tribe, or that the late Togbi Sri II had any disposable interest over the said creek. They maintained that the creek in dispute originally belonged to one Agama of Agave, and that this was subsequently purchased from Agama by Azima Hada, the ancestor of Heletsi Agbetepe. The defendants claimed that they were the licensees of Heletsi Agbetepe, the lawful owner of the creek in dispute, and that the plaintiffs were not entitled to the reliefs they sought.
On 20 November 1958, a separate defence was filed on behalf of the fifth defendant by another solicitor, and in the statement of defence it was averred that the Kpordui creek belonged to the Azima Hada family, whose head was one Hiadzi Sakpaku, and that the fifth defendant had been put in possession of the creek by the said Hiadzi Sakpaku. It was further averred that the profits realised from fish caught in the creek for one season would not exceed £G150.
Before hearing commenced, the co-defendants, Emmanuel Hiadzi Sakpaku and Heletsi Agbetepe, who claimed to be the head and principal members respectively of the Azima Hada family applied to be joined as parties to the suit on the ground that the defendants were their licensees, and that their interests were likely to be affected by any judgment that might be given in the case. They were accordingly joined.
Later, upon the application of the plaintiffs, Chief Tamakloe III the head of the Ajdorvia tribe of Huti was also joined as a co-plaintiff. In pleadings filed on behalf of the co-plaintiff it was averred that by a judgment of the Divisional Court, Accra, dated 14 November 1923, the Adjorvia tribe was adjudged to be the owners of the Kpordui creek, the subject-matter of the dispute in this case. It was further averred in paragraphs (4) and (5) of the co-plaintiff’s pleadings that the predecessors of the defendants were the defendants in that case and that therefore the defendants in this case were estopped from relitigating title to the Kpordui creek.
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In a statement of defence filed on behalf of the co-defendants, the co-defendants claimed that the disputed creek belonged to the Azima Hada family, and it was further averred as follows:
“The judgment referred to in paragraphs four (4) and five (5) was an arbitration award which was eventually considered by the Anlo tribunal on 19 September 1925, when the said creek was adjudged to belong to the co-defendant. The co-plaintiff is estopped from asserting title and or challenging the co-defendant’s rights herein.”
Subsequently, the name of Chief Tamakloe III was, upon application, struck out, and the present co-plaintiffs were substituted. The co-plaintiffs claimed to be the lawful attorneys and representatives of the three houses of the Adjorvia clan of Anlo and caretaker-managers of the Adjorvia stool properties, including the subject-matter of the present dispute. At the hearing of the application, counsel for the defendants and co-defendants stated that he would not oppose the application for substitution so long as the character of the pleadings remained unchanged.
The issues which fell for determination were formulated by the learned trial judge as follows: “(a) Whether the co-plaintiffs were the proper representatives of the Adjorvia tribe.
(b) Whether the co-defendants were estopped by the Divisional Court judgment from asserting title of the Kpordui creek to the Azima Hada family or whether the co-plaintiffs were estopped by the subsequent decision of the Anlo State Tribunal from claiming that the judgment of the Divisional Court was still of full force and effect.”
In this appeal no complaint has been made about the trial judge’s formulation of the issues in the case, and I think he was right.
It was admitted that the first and second co-defendants are the son and nephew respectively of Hiadzi Sakpaku and Nuvenu Klomanyi, who were the defendants in the Divisional Court judgment delivered on 14 November 1923. In those circumstances the only issue that remained for the learned trial judge to determine was whether the decision of Anlo State Tribunal created an estoppel against the co-plaintiffs.
Exhibit 1 is a certified copy of the proceedings and findings of the State Tribunal, Anlo dated 19 September 1925. The case was between one Gbologa, as plaintiff, and Fia Sri II of Anloga as the defendant, and the claim was in these terms:
“That the judgment or award of the court and referee of 4 November 1923 between Fia Togbi Sri II as head of the Adzovia tribe and Nuvenu Klomanyi and Sakpaku family members of the Azima Hada division of the Adzovia tribe be brought into court to be construed and interpreted. The defendant has wrongfully and unlawfully since the judgment aforesaid caused his agents and servants to enter upon plaintiff’s farm and gather the crops contrary to native custom and
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in contravention of plaintiff’s right. The defendant has set up individual right in himself or his agents and servants to fish and enjoy the fishing or benefit of the Leh and Kpordui creeks and the lands adjacent.”
In its decision the state tribunal stated that it concurred in the award of the Divisional Court and dismissed the claim. Nevertheless, the tribunal made certain findings and orders which are completely inconsistent with the judgment of 14 November 1923, which amounted to a compromised judgment.
For the defendants it was contended that Togbi Sri II consented to the jurisdiction of the state tribunal, for he did not, at any stage of the proceedings, object to that jurisdiction. The learned trial judge rejected this contention in the following passage of his judgment:
“Exhibit 1 evidences an action brought—not even to a court of co-ordinate jurisdiction of the Divisional Court but to a court of inferior jurisdiction seeking to re-open the whole matter already dealt with by the Divisional Court, Accra, and as was held by the learned Chief Justice, it was not open to either of the parties to do so.
In these circumstances it is my view that the Anlo State Tribunal had no jurisdiction to entertain and re-open that matter; that therefore the whole proceedings and judgment contained in exhibit 1 are a nullity, and that the fact that the late Togbi Sri II did not object to the jurisdiction of the court to adjudicate upon the matter cannot convert its decision to be a binding decision such as to upset the definite judgment and award of the Divisional Court. See the case of Damoah v. Taibil (1947) 12 W.A.C.A. 167 at p. 168.”
In this appeal counsel for the appellants, Mr. Amorin, has contended with great force and reiteration that the parties consented to compromise their rights before the state tribunal, and therefore the respondents are estopped from denying the effect of the compromised judgment, for Togbi Sri II was summoned and he had to attend the state tribunal. He said the tribunal annulled the judgment of the Divisional Court and gave judgment against Togbi Sri II. In Mr. Kom’s submission, the decision of the state tribunal was a nullity, and cannot operate as res judicata.
The crucial question, therefore, is whether Togbi Sri II consented to a compromised judgment by the Anlo State Tribunal. There is nothing in law to prevent a successful party in a judgment agreeing to reap the fruits of his victory in a manner different from that contemplated in the judgment. Yardom v. Minta III (1926) F.C. ‘26-’29, ‘76, Howes J. said at pp. 79 and 80 that:
“Having obtained a judgment, there is no power in anyone to compel the successful party to avail himself of the benefits or fruits of his judgment. The effect of a judgment, in a case relating to land (as the present case is), is to transfer, from one party to the other, certain rights over that land. Having acquired such rights, I am unable to see why the successful party cannot afterwards, by agreement or
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otherwise, deal with them in any manner he pleases … Whilst such new agreement will not set aside the judgment, if subsequently thereto, the successful party attempted to enforce his judgment, in my opinion, the doctrine of estoppel in pais would come in, and in equity no Court would give effect to the judgment, the terms of which the successful party has voluntarily and by his conduct varied; as he would be perfectly entitled to do in the case of any other contract.”
In the same case Smyly C.J. also observed at p. 82 that:
“It is obvious that, where the mutual rights of two parties have been adjudicated on by a Court of Law, it is not open to one of the parties to go to a Court of co-ordinate jurisdiction and re-open the whole matter, unless on the allegation of fraud, etc.; but I know of no law which would prevent the parties, by mutual consent, or as the result of arbitration, substituting some other and possibly some more satisfactory arrangement for that contained in the judgment; for instance, if ‘A’ obtained a declaration of title to land against ‘B’, I know of no law which would prevent ‘A’ subsequently selling the land to ‘B’.”
I respectfully agree with these observations by Howes J. and the learned Chief Justice, and I do not think that the Anlo State Tribunal could overrule a decision of the Divisional Court. There can be no doubt that Togbi Sri II appeared before the state tribunal by compulsion of a summons, and there is nothing on record to show that he voluntarily consented to a variation of the Divisional Court judgment of 14 November 1923. In my judgment, the decision of the state tribunal was a nullity and of no effect for all practical purposes. As Harragin C.J. said in Damoah v. Taibil (1947) 12 W.A.C.A. 167 at p. 168:
“It is impossible seriously to consider the suggestion that a judgment, which is by law a nullity, can be converted into a binding lawful judgment by the agreement of the parties.”
On the question of costs the learned trial judge said:
“It is unfortunate that special damage as pleaded was not proved, but on the pleadings of the fifth defendant, I do award the plaintiffs £G150 special damage, and I further award them £G50 general damages against the defendants for the trespass.”
Mr. Amorin argued that since the trial judge himself stated that special damage was not proved, he was wrong in awarding the plaintiffs £G150 special damages. Mr. Kom however, contended that the plaintiffs never claimed special damages, and he conceded that the learned trial judge erred in awarding special damages. But he submitted that the court could expunge the award for special damages and then take into consideration the fifth defendant’s admission that at most one could hope to make a profit of £G150 during a fishing season, in assessing the proper damages.
It seems to me that the learned trial judge must have awarded the plaintiffs special damages through inadvertence, for the plaintiffs did not
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claim special damages. They claimed £G500 general damages for trespass to the Kpordui creek, and the learned trial judge awarded only £G50 general damages for the trespass. The award of £G150 special damages is, with respect, clearly wrong, and I would set it aside.
With regard to the trial judge’s decision on the general damages, the plaintiffs have not appealed against the assessment, neither did they lead evidence to prove the averment in paragraph (10) of their statement of claim that in one fishing season alone they made sale of fish to the value of £G350 and odd. The defendants traversed this averment and put the plaintiffs to strict proof. Mr. Kom has not alleged that the learned trial judge erred on any point of law in his estimate of the general damages, neither has he alleged that the judge misapprehended the facts in the case. The fact that we would ourselves have awarded a larger sum is not a proper ground for interfering with award by the trial court. Mr. Kom has said nothing to persuade me that the award made by the trial judge is so low as to be wholly erroneous. And for these reasons I will not interfere with the award of £G50 general damages.
Counsel for the appellants argued other grounds of appeal which are so devoid of any merit that I do not consider it necessary to examine them.
In the result, I would, subject to the setting aside of the award of £G150 for special damages, dismiss the appeal with costs.
JUDGMENT OF JIAGGE J.A
I agree.
JUDGEMENT OF ARCHER J.A.
I also agree.
DECISION
Appeal dismissed.
Award of special damages in the High Court set aside.
B.T.A
