COURT OF APPEAL, ACCRA
Date: 21 APRIL 1975
APALOO KINGSLEY-NYINAH AND ANNAN JJ A
CASES REFERRED TO
(1) Humphries v. Humphries [1910] 2 K.B. 531; 79 L.J.K.B. 919; 103 L.T. 14, C.A.
(2) Hoystead v. Commissioner of Taxation [1926] A.C. 155; 94 L.J.P.C. 79; 134 L.T. 354; 42 T.L.R. 207, P.C.
(3) Vooght v. Winch (1819) 2 B. & Ald. 662; 106 E.R. 507.
(4) Rogers v. Wood (1831) 2 B. & Ald. 245; 109 E.R. 1134.
(5) Duchess of Kingston’s Case (1776) 1 East P.C. 468; 1 Leach 146; 20 St.Tr. 355; [1775-1802] All E.R. Rep. 623; 168 E.R. 175, H.L.
(6) Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547; 72 L.J.K.B. 271; 67 J.P. 397; 51 W.R. 337; 19 T.L.R. 266; 47 S.J. 316; 1 L.G.R. 639, C.A.
(7) Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A.
(8) Republic v. Wiamoasehene Stool Affairs Chieftaincy Committee; Ex parte Oppong Kwame [1972] 1 G.L.R. 60, C.A.
(9) Maritime Electric Co., Ltd. v. General Dairies, Ltd. [1937] A.C. 610; [1937] 1 All E.R. 748; 106 L.J.P.C. 81; 156 L.T. 444; 53 T.L.R. 391; 81 S.J. 156, P.C.
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(10) Annotay v. Aginfram (1881) Sar.F.L.R. 14; 1 Ren. 50.
(11) Adjei v. Kwao (1924) F.C. ‘23-’25, 156.
(12) Mensah v. Kitsi (1910) Earn. 33.
(13) Anane v. Efriyea (1940) 6 W.A.C.A. 169.
(14) Aniomega v. Ahiabor [1971] 1 G.L.R. 1, C.A.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court, Sekondi, in respect of a chieftaincy dispute as to the rightful owner of a stool wherein the appellants relied on a plea of estoppel per rem judicatam. The facts are sufficiently stated in the judgment of Annan J.A.
COUNSEL
Sackeyfio (with him Hughes) for the appellants.
Joe Reindorf for the respondent.
JUDGMENT OF ANNAN J.A.
This action is the latest aspect of a long-standing series of litigation over the right of succession to the stool of Bonyere in Western Nzima, the litigation spanning a period of about 28 years.
On the facts admitted in the pleadings there are two contending families in Bonyere. One is the Adahunle family, represented in the appeal by the plaintiff-respondent (hereinafter referred to as the respondent); the other is the Asamangama family, represented by the first and second defendants-appellants (hereinafter referred to as the appellants). The respondent, Aboagye Tayee, is the head of the Adahunle family; the first appellant. Amihere Agyiliha, is the head of the Asamangama family and the second respondent, Nana Nyameke Annor II, is his nephew. According to the statement of claim, Nana Nyameke Annor II claims, impliedly without justification, to be the chief of Bonyere with the support of the first appellant and his family. The Asamangama family however made a positive assertion in the statement of defence and say categorically that Nana Nyameke Annor II is the ohene of Bonyere. In support of these averments each party claims to be the rightful owner of the stool of Bonyere. Although it is these rival claims that lie at the base of the conflict, neither this court nor the High Court, was called upon to adjudicate on the validity of the rival contentions. The respondent claims a declaration of the rights of the
Adahunle family in terms of a judgment of the Western Nzima Traditional Council delivered in 1964 and the effect of that judgment on the status of Nana Nyameke Annor II in relation to the stool. He further wants to ascertain the right of the Adahunle family to the stool of Bonyere in terms of that judgment, and vis-à-vis the consequential decision of the government in relation to the matter of statutory recognition of the occupant of the Bonyere stool.
The Asamangama family met these claims by relying on an older judgment in their favour delivered in 1957 by the appeal commissioner and some other judgments older than the 1957 decision. The High Court therefore was called upon to make a decision as to the legal effect of the judgments relied upon by the parties and then to declare the rights of the parties in terms of these judgments.
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Several judgments were pleaded; however, I think, three of these stand out as those of immediate relevance. The first of these is a judgment of 10 February 1955, by the Western Nzima State Council in the matter of Awonyi Nyowah of Bonyere v. Amihere Agyiliha of Bonyere given in favour of the Adahunle family of the respondent in an action instituted by his predecessor. Paragraph (11) of the statement of claim, admitted by paragraph (9) of the statement of defence, sets out the claim and relief sued for in 1955 as a claim to “ownership of the Bonyere stool for the Adahunle family.” The Asamangama family represented by the first respondent appealed to the Governor under section 6 of the State Councils (Colony and Southern Togoland) (Amendment) Ordinance, 1955 (No. 37 of 1955), and the appeal was referred to an appeal commissioner, Mr. D. E. Gwira, barrister-at-law, sitting with two assessors, Nana Kwesi Agyeman VII, Omanhene of Lower Dixcove and Nana Kwaw Fraiku II, Omanhene of Shama State. The judgment of the appeal commissioner constitutes the second relevant judgment. By that judgment, the appeal was allowed and the decision of the Western Nzima State Council reversed. The date of that judgment is 9 April 1957 and was delivered under powers granted by section 88 of the Ghana (Constitution) Order in Council, 1957 (L.N. 47), and section 12 of the State Councils (Colony and Southern Togoland) Ordinance, 1952 (No. 8 of 1952). This judgment of 1957, which I shall for convenience refer to hereafter as the Gwira decision is pleaded in paragraph (12) of the statement of claim and admitted in paragraph (9) of the statement of defence and, as pleaded, the basis of the appellants’ case on appeal was that the stool of Bonyere belonged to their family. The issue therefore in the action in 1955 and the appeal in 1957 was the ownership of the Bonyere stool, as between the Adahunles and the Asamangamas, and in 1957 the Gwira decision determined that issue in favour of the Asamangama family of the appellants. In the said paragraph (9) of the statement of defence, the defendants pleaded as follows:
“The first and second defendants aver that following the appeal decision in 1957, Mr. Jackson Arioo was on 3 April 1960 installed as Nana Nyamekeh Annor II and was duly accorded recognition by item 12, page 20 of Local Government Bulletin (No. 6) of 5 August 1960. The said Nana Nyamekeh Armor II is the second defendant who has never at any time abdicated his stool nor has he been destooled.”
This averment was not denied in the reply.
The third judgment was delivered on 3 November 1964 by the Western Nzima Traditional Council. The respondent set out the nature of the action leading to that judgment in paragraph (13) in the statement of claim as follows:
“‘In 1962 the Adahunle family represented by the plaintiff herein and others sued the first defendant herein and others claiming against the defendants the following among others: ‘To explain why they have by fraud and falsehood laid claim to the plaintiff’s stool, namely, Kwesi Bendobenli stool which by custom belongs exclusively to the
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said plaintiffs … In default, the plaintiffs claim from the defendants possession of the stool paraphernalia, plus all the expenses incurred by the plaintiffs in the course of the dispute with the defendants herein for unnecessary inconveniences caused by them to the plaintiffs herein from 1947 to date’.”
The respondent pleaded further that at the trial of that action the appellants did not at any time raise the defence of estoppel per rem judicatam and subsequently judgment was entered for the respondent. There was no appeal by the appellants.
The appellants’ answer to the judgment of 1964 is that “the whole proceedings before the Western Nzima Traditional Council were null and void, the council having no jurisdiction in the first place to entertain the respondent’s suit on the same subject-matter after the Gazette notice in 1957.” They pleaded further that the claims raised in paragraphs (1) and (2) of the statement of claim are “res judicata and statute-barred.”
Those claims are as follows:
“The plaintiff’s claim against the defendants jointly and severally is for a declaration:
(1) That the purported reversal in 1969 by the National Liberation Council of the decision of the Western Nzima Traditional Council contained in the judgment of the Traditional Council delivered on 3 November 1964 in the constitutional matter entitled Aboadji Tayee and others v. Amihere Agyiliha and others, was without authority, null, void and of no legal effect.
(2) That the judgment of the Western Nzima Traditional Council delivered on 3 November 1964 in the constitutional matter entitled Aboadji Tayee and others v. Amihere Agyiliha and others is final of full force and binding as between the parties thereto their families and their successors.”
I now set out the crux of the respondent’s case on the pleadings as to events subsequent to the judgment of 1964:
“(19) Nana Kwasi Bendobenli II was accordingly enstooled and in March 1967 the third defendant (who is the Omanhene of Western Nzima) submitted his name to the government for recognition as a chief.
(20) In April 1969 the government constituted by the National Liberation Council, acting on the advice of the fourth defendant (who is the Attorney-General) purported to reverse the decision of the Western Nzima Traditional Council delivered on 3 November 1964 and gave judgment in favour of the first and second defendants herein.
(21) Following this purported reversal of the said decision the government has continued recognition of the second defendant as chief of Bonyere and the second defendant as a member of the Western Nzima Traditional Council.
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(22) The plaintiff says that this reversal of the said decision was without authority null, void and of no legal effect whatever.
(23) The plaintiff says further that the judgment of the Western Nzima Traditional Council delivered on 3 November 1964 is final, of full force and binding as between the parties thereto their families and their successors and the plaintiff is entitled to levy execution against the first and second defendants.
(24) The plaintiff says that the second defendant is not entitled to be recognised as chief of Bonyere and he is not entitled to membership of the Western Nzima Traditional Council.”‘
The issues of fact raised on the pleadings are in the main admitted or proved in evidence and it is the legal implications of these matters of fact that call for decision. These implications seem to me to fall within a narrow compass. There is no dispute that in 1957 the Gwira decision constituted a final judgment of full force and effect which determined the issue of ownership of the Bonyere stool in favour of the Asamangama family. This was clearly a determination on the merits by a court of competent jurisdiction of the issue of ownership of the stool as between the respondent and the Adahunle family on the one hand and the appellants and the Asamangama family on the other and was binding on both parties. On the normal principles of the common law, therefore, the Gwira decision raised an estoppel per rem judicatam in favour of the Asamangama family against the Adahunle family. The principles of the common law rules of evidence which give the doctrine of defence of estoppel its force is that a party is debarred from denying facts on which a previous judgment on the same cause of action and between the same parties or their privies was based. The rule, it is said, is intended to ensure that there should be an end to litigation and that nobody should be sued twice in the same cause; so that where a final judgment has been given in an action a court will not permit the same parties to open the subject-matter of litigation in respect of matters decided in the previous action either in respect of the cause of action or issues determined: see Humphries v. Humphries [1910] 2 K.B. 531, C.A. and Hoystead v. Commissioner of Taxation [1926] A.C. 155, P.C.
The application of these basic principles to the present case should have concluded the matter shortly in favour of the appellants but then there are other important considerations. The first is the rule of pleading that the estoppel must be especially pleaded in the subsequent action if it is to be relied upon by the party in whose favour it operates: see Vooght v. Winch (1819) 2 B . & Ald. 662. Secondly there is the rule that a judgment that is ineffective is no bar to a subsequent action. Such is the case where there was no jurisdiction in the court which pronounced it: see Rogers v. Wood (1831) B. & Ald. 245, or where the judgment was obtained by fraud: see Duchess of Kingston’s Case (1776) 20 St.Tr. 355, H.L.
Where therefore in a subsequent action between the same parties and on the same subject-matter, the validity of a previous judgment is put in issue either on grounds of fraud or lack of jurisdiction, the previous
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judgment cannot be a bar to the subsequent proceedings aid cannot be pleaded as res judicata. This is for the reason that the element of fraud or defect of jurisdiction if established would invalidate the very foundation of the previous judgment whatever the case on the merits. Looking then at the claims of the respondent from the stand point of the common law, the obvious question is whether the proceedings instituted by them in 1962 leading to the judgment of 3 November 1964, are caught by the rules as to estoppel and if so whether estoppel was pleaded or otherwise raised in those proceedings.
The proceedings in the action commenced in 1962 were put in evidence as exhibit A and the very first claim is worded as follows:
“The plaintiff sues the defendants as follows:
(1) To explain why they have by fraud and falsehood laid claim to the plaintiff’s stool, namely, Kwesi Bendobenli stool which by custom belongs exclusively to the said plaintiff.”
At the time of the institution of this action the Gwira decision was in force and the second appellant was on the Bonyere stool by virtue thereof and had laid no fresh claim to that stool. The last time that the appellants had made any claim to the stool was in the action of 1955 which culminated in the Gwira decision of 1957. The respondent appears therefore on the face of his writ to have raised the issue of fraud in relation to the claim of the defendants made in the proceedings of 1952.
If that was the case then once the issue of fraud had been raised in relation to those proceedings it was not open to the appellants to plead the judgment obtained in those proceedings as res judicata. In my view therefore no issue of res judicata arose on the proceedings of 1962. That being the case, the Gwira decision would continue to have full force and effect unless it be shown that the proceedings of 1962 operated to make it ineffective or invalid. The judgment of 1964 however made no findings of fraud in respect of the Gwira decision and there is nothing in it which can be urged against the earlier decision and in my judgment that decision continued valid and binding after the judgment of 1964. The controversy then as to which of these two judgments has effect as between the parties admits of only one answer and that must be that the earlier decision must be the operative decision. It comes as no surprise therefore that when the respondent instituted the present action in the High Court in 1971 his claim that the judgment of 1964 was “final, of full force and binding as between the parties” was met by a plea of res judicata based on the effectiveness of the Gwira decision. In my judgment it was that decision of 1957 which was “final, of force, and binding as between the parties.”
Considerations of common law apart, there are issues of statute law raised for determination. The statutes are section 12 of the State Councils (Colony and Southern Togoland) Ordinance, 1952 (No.8 of 1952) and section 88 (1) of the Ghana (Constitution) Order-in-Council, 1957 (L.N. 47), which conferred jurisdiction on the Western Nzima State Council and the appeal commissioner, Mr. Gwira, in respect of the proceedings of
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1955 and the judgment of 1957. Section 88 (1) of the Ghana (Constitution) Order-in-Council, 1957, made provision for an appeal from a state council to go to an appeal commissioner “whose decision shall be final.” The Gwira decision was delivered under and by virtue of this statutory provision and by the statute that decision was final. The concept of statutory finality of decisions of statutory bodies exercising judicial or quasi-judicial functions is nothing new and there are various instances where this useful legislative device has been used in statutes. In my view the clear purpose of this legislative formula must be, on grounds of policy, to bring certain categories of proceedings to an end once and for all when the adjudicatory machinery set up by the particular statute is exhausted. There is therefore no right of appeal to the ordinary courts, and as was the case in chieftaincy disputes, the trial or appellate jurisdiction of these courts was expressly ousted. Statutory finality must therefore be seen as something different from the notion of finality of judgments and orders at common law exemplified in cases, such as Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547 at p. 548, C.A. Clearly a final judgment at common law is not final in regard to proceedings which may be taken to impeach it subsequently whether on the merits or on fundamental grounds such as fraud or lack of jurisdiction. It has been decided however that where a decision is declared final or conclusive by statute that provision rules out a subsequent challenge to it on the merits, although it is no bar to challenge on grounds of jurisdiction or fraud: see Ahenkora v. Ofe (1957) 3 W.A.L.R. 145, C.A. and Republic v. Wiamoasehene Stool Affairs Chieftaincy Committee; Ex parte Oppong Kwame [1972] 1 G.L.R. 60, C.A. Section 39 (5) (a) of the Chieftaincy Act, 1961 (Act 81), provided that a decision of the Minister in a chieftaincy dispute when published in the Local Government Bulletin “shall be conclusive.” The issue for determination in the Wiamoasehene case was framed as follows at p. 63:
“The pivotal ground on which the application for certiorari was based is that the decision of the National Liberation Council thus published in the Local Government Bulletin on 28 March 1969, as required under section 39 (5) (a) of the Chieftaincy Act, became final and conclusive; and that it was ultra vires the National Liberation Council and contrary to section 39 (5) (a) of the Chieftaincy Act to make and publish another decision some six months later in the same appeal purporting to review the earlier decision.”
This court found no difficulty in upholding the decision of the trial judge quashing the subsequent decision by certiorari. The court held at p. 64 that:
“And if, as provided by section 39 (5) (a), the National Liberation Council decision published on 28 March 1969 concluded the matter, then, the National Liberation Council clearly had no jurisdiction under the Chieftaincy Act to come to a contrary decision in the same matter six months later.”
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It seems to me that whether the expression used be “final” or “conclusive,” the purpose must be to impose an obligation on all concerned with or who may be affected by the decision to take it as the binding statement on the matter. If that be the case then that obligation must constitute a bar to a subsequent attempt to re-open the matter on the merits, and one that the court ought to enforce in order to give effect to the statute: see Maritime Electric Co., Ltd. v. General Dairies, Ltd. [1937] A.C. 610 at p. 620, P.C.
Turning now to the judgment of the trial court, the judge came to the following conclusion:
“I have considered the question of the propriety of the action taken afresh before the Western Nzima Traditional Council and I cannot conceivably find any just reason for thinking that that action was misconceived.”
Having determined earlier that those subsequent proceedings of 1964 constituted the gravamen of the case before him he went on to conclude the matter: “It is baseless to think that the proceeding of the Western Nzima Traditional Council resulting in its majority judgment of 3 November 1964 was without jurisdictional foundation.” It seems to me, if I may say so with respect to the trial judge, that in taking this stand on the matter he completely ignored the Gwira decision of 1957 and by-passed a consideration of the effect of that decision in terms of the statute from which it derived its validity. That approach then failed to lead to a consideration and determination of the crux of the case before him which, as I have said earlier, was the legal effect of the two judgments relied upon by the parties and the rights of the parties in terms of these judgments. On that paramount issue there was no consideration and no determination. The issue of effectiveness in my view, should have been determined in favour of the appellants. For these reasons I would allow the appeal.
JUDGMENT OF APALOO J.A.
I have reached the same conclusion. The question for decision before the court below and before this court is, which of two apparently final judgments of the Western Nzima State Council on the same subject-matter and between the same parties is valid and subsisting in law? The earlier of the judgments was given in 1957 and was for the Asamangama family (hereinafter called the appellants) while the later one delivered in 1964, favoured the Adahunle family (hereinafter referred to as the respondent).
Before considering the issue of law which is thereby raised, it is necessary to relate the facts, which in so far as they are relevant, are not in dispute. There are two families in Bonyere which have asserted their rights to the stool of that town. They are the Adahunle and the Asamangama families. These rights have been asserted by way of litigation with varying fortunes for each side.
In 1947, the appellants sued the respondent in the Western Nzima State Council. The claim seems to have been for a declaration that the Asamangama family was entitled, as against the Adahunle family to
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make a valid installation of a candidate on the Bonyere stool. In 1949, the state council gave judgment in favour of the Asamangama family. The Adahunle family appealed to the Government Agent against the said judgment. It appears to have done so under the Native Authority (Colony) Ordinance, 1944 (No. 21 of 1944). The Government Agent acting under section 26 (2) and (3) of the said Ordinance, affirmed the decision of the state council. The Governor confirmed the decision of the Government Agent and it would seem this matter was at an end. This was in 1952.
In 1955, this litigation was resumed. The losing Adahunle family again sued the Asamangama family claiming “ownership of the Bonyere stool” in the Western Nzima State Council. This, it will be noticed, was the same question that appears to have been concluded in 1952. As was to be expected, the appellants pleaded that the matter was res judicata. The state council turned down that plea and proceeded to pronounce in favour of the respondent. This was on 10 February 1955. It was then the appellants’ turn to appeal.
The Asamangama family availed itself of its right under section 6 of the State Council (Colony and Southern Togoland) Ordinance, 1952 (No.8 of 1952), and appealed to the Governor. The latter exercising his powers under section 12 of the said Ordinance, appointed an appeal commissioner and referred the determination of the appeal to him. The appeal commissioner duly heard the appeal with the aid of two assessors. He proceeded to reverse the decision of the state council and his decision was published in the Gazette on 1 June 1957. Between the date of the original judgment of the State Council in February 1955 and the announcement of the decision in June 1957, Ghana attained independence. So the decision of the appeal commissioner was dealt with by section 88 (1) of the Ghana Constitution Order-in-Council, 1957 (L.N. 47), which provided that appeals like the one in question, which formerly lay to the Governor, would lie to the appeal commissioner “whose decision thereon shall be final.” For the second time, the issue, which of the two contesting families was entitled to elect a candidate for the Bonyere stool was concluded in favour of the Asamangama family, and such conclusion was declared by statute to be final.
The finality decreed by the statute did not appear to mean much to the Adahunle family. In 1962, it recommenced the litigation against the same family on the same question in the Western Nzima Traditional Council. The writ was worded as follows: “To explain why they have by fraud and falsehood lay claim to the plaintiff stool . . . “ It was clearly not an action to set aside the 1957 judgment on the ground of fraud. The proceedings before the state council were tendered in evidence and they show plainly that what the respondent sought was to re-open the issue of the right of the two families to the stool. That is how the traditional council dealt with the matter. The respondent again led traditional evidence, not suggesting even obliquely, that the 1957 judgment was vitiated by fraud. The appellants brought the 1957 judgment to the notice of the traditional council in circumstances which clearly suggest that they
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relied on it and in addition, gave evidence of their right to the stool aliunde. On 3 November 1964, the traditional council read two judgments. Of the 23 members who formed the council, nine found for the appellants and fourteen found for the respondent. There can be no question that the majority decision was the decision of the council. This decision reached a conclusion directly opposite to the ones reached by the same council in 1949 and by the appeal commissioner in 1957.
The appellants did not appeal against the 1964 judgment. They took the view that:
“the proceedings instituted by the plaintiff [meaning the respondent] at the Western Nzima Traditional Council after the decision of the appeal commissioner published in Gazette (No. 26) of 1st June 1957, were statute-barred, and without jurisdictional foundation and therefore a nullity.”
They did not have to appeal. This is because notwithstanding the 1964 judgment, a chief which they elected and installed pursuant to the 1957 judgment, was still on the stool and continued to be acknowledged as such by the government. An attempt by the respondent in 1969 to get the Government of the National Liberation Council to acknowledge the validity of this judgment and concede its right to instal a candidate on the Bonyere stool was unavailing. Accordingly, on 23 March 1971, the respondent commenced in the High Court, Sekondi, an action against the appellant family, the Omanhene of Western Nzima and the Attorney-General for a declaration:
“(1) That the purported reversal in 1969 by the National Liberation Council of the decision of the Western Nzima Traditional Council contained in the judgment of the traditional council delivered on 3 November 1964 in the constitutional matter entitled ‘Aboadji Tayee and ors. v. Amihere Agyiliha and ors.’ was without authority, null, void and of no legal effect.
(2) That the judgment of the Western Nzima Traditional Council delivered on 3 November 1964 in the constitutional matter entitled ‘Aboadji Tayee and ors. v. Amihere Agyiliha and ors.’ is final, of full force and binding as between the parties thereto, their families and their successors.
(3) That the plaintiff is entitled to go into execution of the said judgment against the first and second defendants and their Asamangama family.
(4) That the second defendant is not entitled to government recognition as a chief within the meaning of section 1 of the Chieftaincy Act, 1961.”
The respondent did not place before the court any evidence that the National Liberation Council purported to reverse the 1964 decision of the state council. What the evidence showed, was, that acting on the advice of its legal expert, that government refused to disturb the status quo with the result that a chief elected and installed by the appellants’ family
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continued on the Bonyere stool. The third and fourth reliefs endorsed on the writ could only flow from a holding that vis-à-vis the 1957 judgment, the 1964 judgment was valid. So in the end, the only serious question submitted to the learned trial judge was, which of these conflicting judgments was valid and subsisting?
The learned judge, Coussey J., pronounced for the validity of the 1964 judgment on the delusively simple ground that “there was no appeal against the decision of the Western Nzima Traditional Council. . .” He rejected almost with contempt, the appellant’s contention that in view of the subsistence of the 1957 judgment (which was declared final by statute) the traditional council could not have had jurisdiction to entertain the same issue in 1964. To this the judge said: “It is baseless to think that the proceedings of the Western Nzima Traditional Council resulting in its majority judgment of 3 November 1964 was without jurisdictional foundation.” The learned judge gave no reason for this summary rejection of what appears a serious submission. Pressed with the contention that the 1964 judgment could not subsist contemporaneously with the earlier judgment between the same parties on the same issue, the judge answered:
“The plaintiffs have not challenged before me the decision contained in the Gazette notice of 1957. What they did about the matter was to go to the Western Nzima Traditional Council as evidenced by the proceedings accepted in evidence and marked exhibit A to reopen the litigation as to the ownership of the Bonyere stool on an allegation of fraud among other issues.”
But as I said, the evidence shows that the 1964 suit though mentioning fraud in the claim, was not an action to set aside the 1957 judgment on the ground of fraud. No evidence of fraud was given and none was found by the court. The action was no more than one intended to re-open the statutorily concluded litigation. Having held that “the defence put up in an attempt to attack that judgment [i.e. the 1964 one] as petty,” the judge granted the respondent all the declarations he sought. It is this decision that the appellants sought by this appeal to vacate.
The judgment was attacked on the ground that as the 1957 judgment was declared by section 88 of the Constitution Order-in-Council to be final, it was not open to the state council to assume jurisdiction over it all over again and inasmuch as it purported to do so, its proceedings culminating in the 1964 judgment were without jurisdiction and therefore void. That being the case, an appeal was pointless. For the respondent, it was answered that although the statute says the decision of the appeal commissioner shall be final, that does not make the findings part of the statute. The position, it was said, was analogous to a decision of the High Court which is final unless vacated by appeal. Accordingly, it was said, the appellants were entitled to rely on the plea of res judicata. This was not raised, or even if raised unsuccessfully, may give rise to an appeal but does not affect the jurisdiction of the state council. In any event, it was argued that if the state council ignored a previous decision, it was appealable but does not go to jurisdiction.
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What can have been the object of the legislature in providing that a chieftaincy issue should be dealt with in the first place by the state council and thereafter by an appeal commissioner “whose decision shall be final?” The legislative history of this matter shows that as long as one can recall, the resolution of chieftaincy disputes was entrusted to the state councils and jurisdiction was expressly denied to the ordinary courts. It cannot have been thought that the ordinary courts would do the parties less justice. The state councils administer almost formless justice. Appeals from their decisions lay to the Chief Executive, that is, the Governor, never to the ordinary judicial tribunals. I think it a fair inference that the object of the legislature was to ensure that justice was administered in these tribunals expeditiously and free from the complexity of ordinary court procedures and that appellate consideration of their decisions should be similarly attended.
The reason for this is not far to seek. Chieftaincy disputes are often emotive political issues. Nothing is more productive of strife or subversive of order and good government than prolonged or interminable stool litigation. The clear legislative policy is that opportunity should be given for impugned decisions of these tribunals to be reviewed once by an appellate body, namely, the Governor and laterly, the appeal commissioner and once that stage was reached, the matter must end for all time. The corollary of this is that neither the parties nor the state council can validly re-open the matter. It would follow that proceedings taken to re-open the matter after its conclusion by the legally designated appellate tribunal, offend the letter and spirit of the enactment and must be void. I think this is the sense in which the finality of the decision was decreed by the statute. No other interpretation seems to me to accord with the legislative intent.
If this view is right, the Western Nzima Traditional Council could have had no jurisdiction after June 1957 to entertain this suit whose undisguised purpose was to re-open between the Adahunle and Asamangama families, an issue relating to the ownership of the Bonyere stool. The fact that res judicata may not have been pleaded does not affect the matter. The true legal position is that, “The doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted shall be invalid, or to give the court a jurisdiction which is denied to it by statute . . . “ See Halsbury’s Laws of England (3rd ed.), Vol. 15, p. 176, para. 345.
The construction proffered for the respondent depends on the fortuity of a previously successful litigant being knowledgeable enough to raise in a lay tribunal, the technical plea of res judicata. If his knowledge is deficient on this with the result that he raised no such plea, the whole litigation is re-opened. Even if he raised it successfully, his opponent may commence another process of appeal. And so the litigation continues indefinitely and without end. Such a construction makes nonsense of a legislative provision which enacts that after the matter was considered and resolved by a designated “persona” his “decision shall be final.” My opinion is,
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that the contention of the appellants that the Western Nzima Traditional Council had no jurisdiction to entertain this suit in 1964, was right and ought to have been sustained.
The question of interpretation aside, there is ample authority for the proposition that when a court delivers judgment at the conclusion of a suit, it cannot have jurisdiction to retry as between the parties, the same issue unless so empowered by statute. Thus in Annotay v. Aginfram (1881) Sar. F.L.R. 14, the Acting Chief Justice set aside a judgment delivered by the Chief Justice. It was held by the Full Court that where a judgment was delivered, there were two possibilities, namely, a review, if this was permitted by law, or an appeal. As neither of these methods was adopted the Acting Chief Justice had no jurisdiction to rehear the case. Accordingly, it was held that the whole proceedings were illegal and void. In Adjei v. Kwao (1924) F.C. ‘23-’25, 156, the Full Court was firmly of opinion that a differently constituted Full Court had no jurisdiction to relist an appeal previously struck out by the Full Court.
A case which bears close similarity to the one in question is Mensah v. Kitsi (1910) Earn. 33. In that case, the plaintiff sought a declaration that he was entitled to a third of the fish caught in a pond on the plaintiff’s ancestor’s land. It appeared that the same question between the parties and the identical pond was litigated and decided by a native court. In declining jurisdiction, Earnshaw J. said at p. 34:
“The question for this Court to decide is whether this Court has jurisdiction now to try the question of claim to right to fish . . . I find, without hesitation on the admissions and evidence, that the Native Court heard, with all proper formalities, and decided the question now before this Court, and I decide that under those circumstances this Court has no jurisdiction to re-try that question on the claim now before it.”
An identity of reasoning informed the decision of the West African Court of Appeal in Anane v. Efriyea (1940) 6 W.A.C.A. 169. In that case, a suit was transferred from the native court to the Chief Commissioner’s Court in 1936 for hearing. When hearing opened, the defendant pleaded res judicata. The Acting Chief Commissioner accordingly took evidence and thereupon ruled that the judgment relied on as res judicata was a nullity. Having disposed of the plea, he thought the matter was properly cognisable by a native court to which he referred the parties. On a motion for review, the same commissioner reviewed that part of the order which referred the parties to a native court and ruled that the hearing of the case was to proceed before the Chief Commissioner’s Court. When the case came up for hearing in 1940, the court was constituted by a different commissioner. The defendant again raised the issue of res judicata and in spite of the plaintiff ‘s objection, the new commissioner entertained it and arrived at a conclusion diametrically opposite to the court’s standing ruling of 1936. On appeal, the West African Court of Appeal had no difficulty in holding that the later ruling was without jurisdiction and void. It held that the earlier ruling of 1936 stood. The court said at p. 170:
[p.447] of [1975] 1 GLR 433
“It is simply the blunt and inescapable truth that the Commissioner’s Court having given an interlocutory judgment in a particular suit that judgment stands unless in so far it may be reviewed by the particular Judge who pronounced it or altered by a competent Appeal Court. No other Judge of the Provincial Commissioner’s Court can come along and say —either ex proprio motu or, on application of one of the parties,—’I do not agree with the interlocutory judgment already pronounced by this Court and I shall ignore it and compel the parties to litigate the same question afresh’.”
That a later judgment on the same question between parties or their privies cannot supersede an earlier one, is a proposition on which judicial opinion is consistent. In the recent case of Aniomega v. Ahiabor [1971] 1 G.L.R.1, C.A., S. obtained judgment in the Divisional Court in 1923 declaring his title to a creek. In 1925, the Anlo State Tribunal summoned the parties and purported to re-adjudicate the matter and made orders at variance with the earlier judgment of 1923. On the question whether the later judgment superseded the former one, the learned trial High Court judge held at p. 5 that: “The Anlo State Tribunal had no jurisdiction to entertain and re-open that matter; that therefore the whole proceedings and judgment are . . . a nullity.” This court unanimously affirmed that holding. That is the beaten track of the decisions. True, some of the older cases are not binding authorities today but the policy reason underlying them, namely, the inhibition of repetitive and harassing litigation, remains entirely valid. They ought therefore to be followed. In any event, one should hold that the conclusion of a case by the pronouncement of a decision, must exhaust the exercise of the court’s jurisdiction over that eadem res. A court ought not, in principle, be held to have perpetual jurisdiction over the same matter. Judicial decisions apart, Rubinstein in his book Jurisdiction and Illegality at pp. 29-30, examined in a wider juristic context, the question to what extent an exercise of power precludes the donee authority from any further exercise of its authority by revoking, rescinding or altering a previous act. He points out that the question is sometimes confused with res judicata which has never been considered as affecting the power of the court. The learned author’s inquiry was concerned with the effect upon the organ making the decision as distinct from the parties thereto. His researches enabled him to conclude at p. 30 that:
“‘Where Parliament confers upon a body . . . the duty of deciding or determining any question, the deciding or determining of which affects the rights of a subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive and cannot be altered or withdrawn by that body’.”
He instances decisions of the courts as failing under the rule which precludes, except under certain circumstances, the court from any further tampering with a decision which has been drawn up.
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As a broad statement of principle, how do the facts of this case fit into it? Here, the state council was empowered by the legislature to determine a chieftaincy dispute subject to affirmance or reversal by a designated body. The state council duly exercised that power and arrived at a conclusion. This was reversed by the body lawfully entitled to do so. Such reversal was decreed by statute to be final. It is manifest the state council can have no jurisdiction to re-open the matter and exercise its decisional powers once again.
Accordingly, whether this matter is looked at simply as a question of interpretation, or in the background of case law or in a wider juristic context, the 1957 judgment stands and the 1964 one was given without jurisdiction and was absolutely void. The respondent based the declarations he sought in this action on the strength of that judgment. In my opinion, he was not entitled to them and inasmuch as the learned judge granted them, his decision was wrong and ought to be reversed.
JUDGMENT OF KINGSLEY-NYINAH J.A.
I also agree that the appeal be allowed.
DECISION
Appeal allowed.
