BEDU AND OTHERS v. AGBI AND OTHERS [1972] 2 GLR 238
COURT OF APPEAL
Date: 3 JULY 1972
BEFORE: AZU CRABBE J.S.C., LASSEY AND ARCHER JJ.A.
CASES REFERRED TO
(1) Thoday v. Thoday [1964] P. 181; [1964] 2 W.L.R. 371; 108 S.J. 15; [1964] 1 All E.R. 341, C.A.
(2) Fidelit as Shipping Co.,Ltd. v. V/O Exportchleb [1966] 1 Q.B. 630; [1965] 2 W.L.R. 1059; [1965]
2 All E.R. 4; 109 S.J. 191, C.A. (3) Akoto III v. Agyiman I [1962] 1 G.L.R. 524, S.C.(3) Archibong V v. Ita (1954) 14 W.A.C.A. 520, C.A. [p.239] of [1972] 2 GLR 238
NATURE OF PROCEEDINGS
APPEAL against a judgment of the High Court dismissing the plaintiffs’ action for declaration of title to and recovery of possession of a certain piece of land. The facts are fully set out in the judgment of Archer J.A.
COUNSEL
E. D. Kom for the appellants.
Joe Reindorf for the respondents.
JUDGMENT OF ARCHER J.A.
The plaintiffs-appellants, hereinafter called the plaintiffs, as representatives of the Dzutormawa family of Akpafu Todzi in the Volta Region sued the defendants-respondents, hereinafter called the defendants, for a declaration of title to a piece of land described in the statement of claim as follows:
“On the east by the family property of Matedua family headed by Efia Akrasi. On the south by the family property of Masakyiri family headed by Francis K. Odum of Akpafu Todzi. On the west by the Fio River. On the north by the property of three families:
(1) Dzakua family headed by one Doh who had died before the writ was issued,
(2) Kpadzia family headed by Atukura from Akpafu Odomi and lastly by the property of Masakyiri family of Akpafu Odomi whose head is Adra. ”The plaintiffs also sought recovery of possession of the said land, perpetual injunction against the defendants, their agents or servants, damages for trespass, accounts for tributes and rents collected by the defendants and mesne profits. The basis for their claim was that the land in question was originally founded by their ancestor called Dzutor by settlement and that since Dzutor’s death, all his lineal descendants, have been in possession and occupation of the land without interruption from anyone.
The defendants disputed the claim of the plaintiffs and asserted their claim to the land on the ground that the land was first settled by their own ancestor, one Tsitor, and that the land had been possessed by Tsitor’s descendants, including the defendants, known as the Mako family. After hearing evidence from both parties, the High Court sitting at Ho dismissed the claim of the plaintiffs on the ground that although they had succeeded in proving, almost all the boundaries mentioned in their claim, they had failed to prove the northern boundary. The two grounds of appeal argued together before this court were that:
(1) The learned trial judge erred in law in holding that the plaintiffs-appellants have failed to prove
their northern boundary.
(2) The judge erred in law in that he held that the plaintiffs-appellants have not discharged the onus of proof.”[p.240] of [1972] 2 GLR 238 These arguments stemmed from the evidence of one witness for the plaintiffs. This witness, Francis Kwaku Odoom, in a previous litigation with the defendants at the High Court, Ho, had called the second plaintiff, Winfried Asamani, to testify that he, the witness, owned the land north of Odoom’s land. The judgment of the court was tendered in the present case in the court below as exhibit C. Two extracts from that judgment read as follows:
“According to the surveyor, both the plaintiff and the defendants agreed that the land south of P.13-P.32 the arbitrators’ boundary line was the property of the defendants’ family. Agyeman Bedu’s land was on the northern boundary of the land in dispute. Agyeman Bedu was present at the survey and pointed out the boundary of his land. ”Then the learned trial judge in exhibit C concluded as follows:
“I am satisfied that the true boundary between the plaintiff’s land and that of defendants’ family is the one fixed by the arbitrators P.13-P.32 and that Agyeman Bedu’s property is on the northern boundary of plaintiff’s land. The defendants pointed out to the surveyor areas within the plaintiff’s land which was cultivated by them.
I am satisfied that the defendants committed trespass on the plaintiff’s land.
There is no doubt that exhibit C at the time it was tendered was binding on the present defendants and they would be estopped per rem judicatam in any future litigation with Francis Kwaku Odoom. George Asamani was only a witness in the exhibit C case and he was not a party to that suit. He could not therefore raise the plea of estoppel per rem judicatam against the present defendants. Nevertheless learned counsel for the plaintiffs submitted in reply that the nature of the argument was covered by the class of estoppel now generally recognized as “issue estoppel.” In very simple terms, the plaintiffs’ argument is that in the previous proceedings in exhibit C, the court found that the present defendants were trespassers on the land belonging to Francis Kwaku Odoom who shared a common northern boundary with George Asamani, the present second plaintiff. The argument goes further that one of the issues decided in that case was the location of the northern boundary and that enabled the court to find that trespass had been committed, therefore the present defendants were estopped by the finding of fact as regards that boundary.
It is well settled that all estoppels especially per rem judicatam must be pleaded. If an estoppel per rem judicatam is pleaded, the estoppel can only succeed if the party relying on it was a party to the suit and the subject-matter was the same. The same principles govern issue estoppels. In this connection I prefer the classification made by Diplock L.J., as he then was, in Thoday v. Thoday [1964] P. 181 at p. 197, C.A.: [p.241] of [1972] 2 GLR 238 “estoppel per rem judicatam….is a generic term which in modern law includes two species. The first species, which I will call ‘cause of action estoppel’, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties…. The second species, which I will call ‘issue estoppel’ is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more
different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was. ”See also Fidelitas Shipping Co., Ltd. v. V/O Exportchleb [1965] 2 All E.R. 4 at p. 10, C.A. where the same Lord Justice said: “ ‘issue estoppel’…… operates in subsequent suit between the same parties in which the same issue arises.”
It is clear from the above analysis that the plea of issue estoppel is not open to the plaintiffs as they were not parties to the suit which culminated in the judgment delivered in exhibit C. Nevertheless, exhibit C was relevant to the issues before the court and it appears that the court below considered it. This was perfectly in order as van Lare J.S.C. stated in Akoto III v. Agyiman I [1962] 1 G.L.R. 524 at p. 529, S.C. that, “The law does not prevent a judgment being used as a relevant fact from which the court may draw a conclusion in favour of the person who tenders it.” Indeed the learned trial judge in the present suit relied on the previous finding that Asamani, the second plaintiff, had land north of F. K. Odoom’s land and therefore held that there was no need for them to prove the southern boundary of the land in dispute.
The real hurdle which the plaintiffs had to jump was the satisfactory proof of their northern boundary.
They claimed a declaration of title to all that area edged violet on the plan while the defendants claimed the larger area edged yellow. The plaintiffs also claimed recovery of possession and damages for trespass.
Surely, in such a case, the plaintiffs should be able to establish the exact boundaries of the land so that any [p.242] of [1972] 2 GLR 238 judgment in their favour would be related to a defined area. Recovery of possession would also be restricted to that area and finally damages for trespass would be assessed by considering whether the area of trespass fell within the defined area and if so how much damages should be paid. But what happened at the trial was fascinating. The plaintiffs brought one Felix Kwame Ntim as their own witness to establish their common northern boundary. This witness rather gave damaging evidence. This is what he said: “I am a farmer and a stool father and live at Akpafu Odome. I know Kpedzia family. I am from that family and its present head. I know the Fio river, we have land near the river. I have boundaries with the following: Ofosu Te, the second side with Masakyiri on the northern side with Atedua family. I do not know if Ofosu Te is still on the land but our boundaries were demarcated. I have heard of a dispute in connection with the land but I was not concerned. I heard that he disputed the land with Francis Odoom.” Then in cross-examination he said: “I knew Ablekpe, he was one of the elders of the clan but he is dead. I know that Ablekpe had a dispute with Ofosu Te in 1942, as a result the land was demarcated by Nana Adibo. I know one Agbotsu, he is an elder of the family. He has been farming on the northern side towards our boundary with Agbowi people. I was one of the elders who went and demarcated our land with Ofosu Te. Ablekpe, Agbotsu and myself were present at the demarcation.”
The effect of this piece of evidence on the mind of any trial judge must be too obvious. This witness
never mentioned the plaintiffs or George Asamani, the second plaintiff, as his neighbours on his southern boundary. Perhaps, the plaintiffs hoped and expected him to say so but he did not. Instead, he emphasized that Ofosu Te, a member of the defendants family was the person with whom he shared his southern boundary.
Moreover, exhibit C in which George Asamani, the second plaintiff, was found to be on the north of the land of Francis Kwaku Odoom, did not go further to state what was the northern boundary of the second plaintiff, Asamani. That judgment dealt only with his southern boundary. Yet it was submitted on behalf of the plaintiff that the finding as regards the southern boundary in exhibit C must preclude the defendant from claiming any land north of the southern boundary. In other words, the proper inference to be drawn was that the defendants had no land northwards. Such an inference would have been unreasonable as the northern boundary of George Asamani was never mentioned in exhibit C.
The other northern boundary owner, Reinfried Kalaite Agbosu, was called by the defendants, and he was emphatic that the Kpedzia family had no common boundary with the plaintiff whom this witness knew.
The defendants tendered a copy of the proceedings in the earlier [p.243] of [1972] 2 GLR 238
dispute between Francis Kwaku Odoom v. Opare and Ofosu Te, exhibit 1. Winfried Asamani’s evidence in that case must have cast serious doubts on the actual location of his northern boundary. This is what he said: “I form boundary with the plaintiffs’ clan (ie. F. K. Odoom’s) on the south. The clan’s land on the south and mine on the north. I also form boundary with the defendants (that is Opare and Ofosu Te) on the north. Their land is on the north and mine on the south. I am between the plaintiff and defendants. ”Here was a remarkable admission by the second plaintiff himself that Ofosu Te and others, members of the present defendants’ family, owned land north of his land. In the present case, the Kpedzia and Odomi families confirmed that Ofosu Te had land south of their land. Therefore it is clear that the northern boundary claimed by the plaintiffs could not have been correct and the court below was perfectly right in saying that they had failed to discharge the onus on them.
Learned counsel for the plaintiffs invited the court to draw its own inferences from the evidence. But it seems to me that having regard to the evidence adduced by the plaintiffs themselves, the court below could not have come to any other conclusion. The second plaintiff, George Asamani, had on a previous occasion in exhibit 1 said that Ofosu Te was his northern boundary owner, and that his land was between Ofosu Te’s and Francis K. Odoom’s. In the present case, he has denied that the defendants’ family had any land on his northern boundary whereas his own witness Felix Kwame Ntim, his northern boundary owner, according to the plan, has negatived that denial. It is clear that the plaintiffs did not know or were not sure of their northern boundary and it would have been palpably wrong if the court below had concluded that they had discharged the burden on them. Learned counsel for the plaintiffs relied on the case of Archibong V v. Ita (1954) 14 W.A.C.A. 520. In that case, Coussey J.A., as he then was, stated as follows at p. 522: “there is general proposition in the law of evidence that repeated acts of ownership done with respect to other places connected with the locus in quo by such a common character of locality as to give rise to the inference that the owner of one is likely to be the owner of the other is sometimes receivable . . . In such a case it is a probability, not a presumption of ownership.”
What were the repeated acts of ownership done by the plaintiffs in the disputed area? The present
litigation arose on account of the discovery of farms cultivated by the defendants in the area in dispute.
Francis Kwaku Odoom, who gave evidence for the plaintiffs and who relied on exhibit C to establish the southern boundary of George Asamani, did not know that the farms on the north of his land belonged to the defendants. But according to the surveyor almost all the farms in the disputed area were claimed by the defendants. The third plaintiff Evans Koto, in his evidence confessed as follows:
[p.244] of [1972] 2 GLR 238 “We have no farms on the land in dispute. We have never farmed in the area actually in dispute. We only farm near the eastern side near the Fia Akrasi’s boundary. It is only on the eastern portion of the land that we have made farms, the rest of the land is swampy.”
It appears that the plaintiffs even failed to establish isolated acts of ownership in the disputed area. The fact that the undisputed eastern portion of the land claimed by them was contiguous to the disputed area could not mean that the disputed area up to the river Fio also belonged to them. They must prove their title to the disputed area which they failed to do.
For the above reasons I would dismiss the appeal.
JUDGMENT OF AZU CRABBE J.S.C
I agree.
JUDGMENT OF LASSEY J.A.
I also agree.
DECISION
Appeal dismissed.
S. E. K.
