Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: SARKODEE-ADOO C.J., OLLENNU AND BLAY JJSC
JUDGMENT OF OLLENNU JSC
This appeal is brought against a judgment of the High Court, Kumasi, reversing a judgment delivered by the Kumasi East Local Court in favour of the appellant, the plaintiff in the said local court. The appellant is hereafter referred to as the plaintiff, and the respondents referred to as the defendants.
The basis of the decision of the High Court is that the plaintiff is estopped per rem judicatam from instituting her action by reason of a judgment given against her by the Juaso-Bompata Local Court C on 14 April 1959, affirmed by the Asantehene’s Court, and eventually affirmed by the local court. The appeal raises some important points of law, both substantive and procedural, which are not of frequent occurrence in the courts. A short statement of the history of the litigation will facilitate appreciation of those points of law raised.
The plaintiff is the successor to one Yaw Poku of New Juaben, who died in or about 1959. When she entered upon her office as successor, she found the first defendant and another person in possession of a farm which belonged to her predecessor. According to her she questioned the first defendant how they got into possession of the said farm but he gave no explanation; she then swore to an affidavit asserting her family’s ownership of the said farm, and served a copy thereof upon the first defendant and that other, requesting them to vacate and give her vacant possession of the farm. There was no response from the first defendant and his associate; whereupon the plaintiff sued them in the aforesaid Juaso-Bompata Local Court C for recovery of possession; her claim in that suit was as follows:
“(a) Plaintiff claims from the defendants jointly and severally a judicial relief for defendants to assign their tangible reasons why defendants should unlawfully seize and take possession of plaintiff’s cocoa farm, being lying at a place commonly known and called ‘Kantanagya’ on Atwedie stool land and bounded by the farms belonging to Kwasi Yentumi, Yaa Adansi, Kwasi Badu, and KwadwoAdai—stream Saantin, Kofi Wee, without the consent and knowledge of plaintiff.
(b) Defendants to assign their good reasons why defendants should unlawfully seize the cocoa farm as their bona fide property without the consent of plaintiff.
(c) In default plaintiff claims lawful possession over the said cocoa farm.”
The proceedings and judgment in that case before the Juaso-Bompata Local Court C were admitted and made part of the proceedings in this case before the trial local court. There were no pleadings, the trial being in the local court; and although the first defendant, who was also the first defendant in that suit, did in cross-examination ask the plaintiff whether she had not heard of a sale of the said farm under a writ of fi fa., which the plaintiff answered in the negative, it was not until the second defendant gave evidence that he disclosed that he relied, for his possession of the farm, upon purchase thereof at a sale at public auction conducted under a writ of fi. fa., which he alleged was issued by the Juaben Local Court B in execution of a decree against the plaintiff’s predecessor, to satisfy the sum £15 17s. 11d. which was costs in a suit by Kofi Nkrumah against the said Yaw Poku. Upon the production by the first defendant of the certificate of purchase allegedly issued to him upon the said sale, the local court entered judgment for him saying inter alia:
“The defendants, evidence revealed that the first defendant bought the cocoa farm in question under writ of fi. fa. in case Kofi Nkrumah v. Yaw Poku in the Juaben Native Court and produced certificate of purchase with writ of possession attached as exhibit dated 31 May 1950. The defendants therefore found not liable to the claim. Judgment for defendants. . .”
The production of the alleged certificate prompted the plaintiff to make inquiries in the Juaben Local Court B; the inquiries revealed that costs of £15 17s. 11d. in respect of which the farm was alleged to have been sold still stood in the books of the local court against Yaw Poku, and that the court had not issued any writ of fi.fa., in respect thereof; rather it had made an order for Ca. Sa. to issue against him for the costs upon summons to show cause taken by the judgement creditors, Kofi Nkrumah, the first defendant. The plaintiff accordingly paid the said sum of £15 17s. 11d. to the said local court, and was given an official receipt for the same.
Armed with these facts, the plaintiff, contending as it appears, that the judgment in the former case was obtained by fraud or contrivance, instituted another action in the Juaben Local Court B; her claim in that suit was against the first defendant the judgment-creditor, the second defendant herein, the purchaser, and another, and it reads as follows:
“The plaintiff’s claim is for possession and ownership of a piece or parcel of land cocoa farm, situate lying and being at Kantanagya on the Juaben stool land at a place commonly known and called as herein mentioned and having boundaries with the following persons: Kwasi Yentumi, Kofi Wi, Kwasi Badu, Yaa Adansi and River Ankasu the said cocoa farm being the property of late Yaw Poku, the plaintiff’s predecessor.”
She succeeded in the local court; the Asantehene’s A1 Court refused to go into the merits of the plaintiff’s claim, on the grounds that her claim was res judicata by reason of the judgment of the Bompata-Juaso Local Court C. In his judgment in this second suit Simpson J. said inter alia:
“The Asantehene’s Al Court held that the plaintiff was estopped from bringing the action by res judicata. The present action is a claim for possession and ownership of a piece of land at Kantanagya and the real point at issue is whether the land had been bought by the first defendant at a public auction. It is not an action to set aside a sale as contended by the appellant. In a previous action before Bompata-Juaso Local Court the same plaintiff had sued the first and third defendants for possession of the same land. The court found as a fact that the farm in dispute was sold by public auction and bought by the first defendant. An appeal to the Asantehene’s A1 Court was dismissed and a further appeal to the Land Court was discontinued. Instead the plaintiff brought a fresh action before another local court. There is no doubt that the Asantehene’s Al Court correctly held that the plaintiff was estopped by the previous action.”
It was in consequence of that judgment of the High Court, that the plaintiff instituted the present action and claimed that: “The alleged sale was irregular and unlawful and plaintiff in the premises therefore sues defendants jointly and severally for the court to set aside the said sale to entitle plaintiff to the title and ownership of the one cocoa farm.”
At the trial in the local court, the defendants contended that the plaintiff was estopped from bringing this action by reason of the judgment of the Juaso-Bompata Local Court C aforesaid which they pleaded operated as res judicata. The local court tried that plea as a preliminary issue and came to the conclusion that the issues raised in the present suit had never been tried between the parties. The local court then heard the case on the merits and came to the definite conclusion of fact that no writ of fi.fa., ever issued from the Juaben Local Court B for the sale of the farm in dispute in execution of a decree against the late Yaw Poku, and that no application for fi. fa., was in fact made to the said court, and therefore the alleged sale of the farm was illegal, and passed no title in the farm; in other words, that the defendants had no legal right to the cocoa farm. That is the judgment which was reversed by the High Court, and which reversal led to this appeal.
Nine grounds of appeal were filed; these were argued in three groups; the substance of which are as follows:
(a) the trial judge misdirected himself in holding that issues raised in the present suit are identical with those raised in the first suit,
(b) the trial judge misconceived the plaintiff’s case that the judgment pleaded as res judicata was judgment obtained by fraud, and consequently misdirected himself in holding that the identical issues raised in the said former suit could not be re-litigated in a subsequent suit, and
(c) that upon the facts, the plaintiff discharged the onus upon him to prove that the certificate of purchase relied upon by the defendants is illegal and conferred no title in the land upon the
defendants.
The operative part of the judgment of the High Court is as follows:
“As the defendant set up an auction sale by fi. fa. as the root of his title a judgment in his favour necessarily inferentially decides the validity of that auction. If it was the plaintiff’s case that the auction was invalid for irregularity it was clearly her duty to set up this and prove it. If she did not and the court for want of such proof came to the conclusion that the sale was valid and that the defendant acquired a good title to the farm by it, that in my judgment, puts to rest for ever any question of the regularity of such sale.”
For this statement of the law, the learned judge relied upon Duedu v. Yiboe1 where Lord Hodson quoting Romer J. in Shoe Machinery Co., Ltd. v. Cutlan2 said3:
“ ‘It is not necessary, in considering the question of res judicata, that there should be an express finding in terms, if, when you look at the judgment and examine the issues raised before the Court, you see that the point came to be decided as a separate issue for decision, and was decided between the parties.’
He also quoted the following dictum of Lord Romer in New Brunswick Railway Co. v. British and French Trust Corporation Ltd.4 which was5:
“It is no doubt true to say that whenever a question has in substance been decided, or has in substance formed the ratio of, or been fundamental to, the decision in an earlier action between the same parties, each party is estopped from litigating the same question thereafter.’”
This as a proposition of law is quite sound. Where a party has had opportunity in one suit to traverse an issue and he failed to traverse it, he would be estopped from re-litigating the identical issue in a subsequent suit. Thus in Hoystead v. Commissioner of Taxation6 Lord Shaw, delivering the judgment of the Privy Council, said:
“[T]he same principle—namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs.”
The point there is that for a party to be estopped, he must have had the opportunity to traverse an issue but failed or neglected to traverse it. The principle involved is stated in Halsbury’s Laws of England (3rd ed.), Vol. 15 at p. 185: “It is not enough that the matter alleged to be concluded might have been put in issue, or that the relief sought might have been claimed. It is necessary to show that it actually was so put in issue and claimed.” The question then is: Was the legality of the certificate of purchase put in issue in the first case, and did the plaintiff have the opportunity of traversing it, but failed, neglected or omitted to do so?
A certificate of purchase is prima facie evidence of title, its validity is not put into issue by its mere production in evidence in a case. There were no pleadings in the local court, and the second defendant concealed from the plaintiff the fact that he relied upon a certificate of purchase for his entry upon the land. As earlier observed, it was not until the trial was actually in progress, that he hinted a purchase, and not until he actually got into the witness box that he came out openly with the alleged certificate of purchase. It is true that the legality might have been put in issue at that late stage in the former suit at which it was tendered; but certainly it was not actually put in issue.
Here it must be pointed out that issues raised in complaint that a sale in execution was irregularly conducted are quite different from those in a claim that the sale is illegal; where there are irregularities in the conduct of the sale, the sale is voidable and a special remedy is provided in the procedure regulations for setting the same aside; if the complaint were as to irregularity, the relevant procedure rules would be rules 101 and 103 of the Native Courts (Ashanti) Procedure Rules7; on the other hand, a sale conducted without lawful authority is not merely irregular, it is illegal, null and void, and any rights exercised in pursuance of it are wrongful.
As pointed out by counsel for the appellant, the learned judge in the High Court erroneously directed himself that the plaintiff’s case was based upon an allegation of irregularities in the conduct of the sale while her case was that the sale was void ab initio for illegality. Whilst the issue of illegality might have been raised in the first suit if there had been the opportunity, it has not been shown that it was in fact raised. Therefore a plea of res judicata could not be founded upon that first case.
The first time that the issue of the illegality of the certificate of purchase was raised was in the second suit commenced in the Juaben Local Court B, which terminated in the High Court before Simpson J. It was decided by the trial local court in favour of the plaintiff; but the judgment of the trial local court was set aside by the Asantehene’s Al Court. Simpson J. later held the plaintiff strictly to the wording of his claim. Then a local court upheld the decision of the Asantehene’s Al Court stating that the issues raised by that writ were ownership and possession of the farm, which were identical with the issues canvassed in the Juaso-Bompata Local Court, and that “it was not an action to set aside a sale as contended by the appellant.” Inferentially it meant that the plaintiff had sought a remedy by the wrong action and it was
open to her to resort to another form of claim to obtain the appropriate remedy.
Next is another very fundamental point, which invokes a legal remedy and procedure not often resorted to in the courts. The suit being one in a local court where there are no pleadings, we have to look, not only at the wording of the writ, but also at the whole of the proceedings to ascertain the real nature of the plaintiff’s claim and the issues raised. When the writ of summons and the proceedings are so examined it is made abundantly clear that the plaintiff’s contention is, that the judgment delivered by the Juaso-Bompata Local Court was one obtained by fraud, therefore void of effect, and that the plaintiff was entitled to resort to the court again
for remedy. Counsel for the defendants conceded that the proceedings reveal a contention by the plaintiff that the Juaso-Bompata Local Court judgment is null and void as having been obtained by fraud. What then is the legal position?
The law on the point is, that where a judgment has been obtained by fraud, one of two remedies is open to a party who seeks to avoid it; he may either institute an action in the appropriate court to set the judgment aside on the grounds of the said fraud, or he may institute a fresh action raising the identical issues as those in that other suit. In his book The Doctrine of Res Judicata (1st ed.) G. S. Bower stated the principle as follows at p. 153:
“The avoidance of a judicial act on the ground of fraud or collusion is effected not only by active
proceedings for rescission . . . but also by setting up the fraud as a defence to an action on the decision, or as an answer to any case which, whether by way of estoppel or otherwise, depends for its success on the decision being treated as incontrovertible.”
Lord Brougham also states the law on the point in Bandon v. Beacher8 as follows:
“It is contended that a decree pronounced by a court of competent jurisdiction between parties legally and formally before it, in a matter of which it has a title to take cognisance, cannot be questioned in another court of co-ordinate jurisdiction, that is to say, the Court of Chancery has no power to be canvassing a suit which has been decided in the Court of Exchequer. That is a general proposition to which I assent under ordinary circumstances. On the other hand, as it was argued, the proposition must be qualified in this respect, that you may object to the validity of the decree in the other court, provided it was pronounced through fraud, through contrivance, or through covin of any description…. This is a proposition as undeniable as the former…. But if the decree has been obtained by fraud; if the whole suit has been concocted from the beginning to the end in fraud, that decree shall avail nothing for the party obtaining it in the further prosecution of his claims, and it shall avail nothing against the party affected by it, and against whom it was set up, to the defeating of his right, to the destruction of his property, or to stay the prosecution of the claim against those who have so done. For these propositions there is undoubted law, recognised in daily practice, and not only undeniable,
but they exist independently one of the other, and stand together consistently.”
This principle of law is discussed in Randolph v. Captan9 where other references have been made. Had the learned judge directed his attention to this principle of law, he surely would not, in the face of the findings of fact made by the trial local court, have come to the conclusion that the plaintiff was very clearly estopped by the judgment of the Juaso-Bompata Local Court “from re-litigating the question of the validity or regularity of the sale,” and that “this is a matter of some technical legalfinesse and it is quite understandable that the local court magistrate should erred in it.”
Counsel for the defendants properly conceded this point of law; he therefore invited the court to deal with the case on its merits. He submitted that on the merits the plaintiff failed to discharge the onus upon him to prove that the certificate of purchase in question is illegal.
On the merits of the case, the learned judge after expressing the opinion that the claim was “an absolutely vexatious litigation and it is the more so that the plaintiff should have commenced it by taking one isolated sentence from the judgment of this court out of its context as the basis of her writ,” and after commenting on the fact that the plaintiff delayed considerably and only brought the action after the death of her predecessor Yaw Poku whose right title and interest in the farm was purported to have been sold, finally held as follows:
“In my opinion, in so far as the plaintiff seeks by this action to set the sale aside on no other ground save for irregularity, she ought to have been met, quite apart from anything else, by rule 103 of the Native Courts (Ashanti) Procedure Rules which limited the time within which an application of this sort should have been brought.”
This opinion expressed by the learned judge eloquently testifies that up to the last, the learned judge confused complaint of irregular sale with complaint of unlawful sale. Rule 103 reads as follows: “If no application to set aside the sale is made under rule 102 the sale shall be absolute.” From the context of rule 102, one should read rule 101, which is as follows:
“At any time within 21 days from the date of sale of any immovable property, application may be made to the Native Court for an order to set aside the sale on the ground of material irregularity in the conduct of the sale, but no such order may be made unless the applicant prove to the Native Court that he has suffered substantial injury by reason of such irregularity.”
The important words in rule 101 are, “to set aside the sale on the ground of material irregularity in the conduct of the sale.” This could only mean a sale lawfully ordered to take place but irregularly conducted, e.g. where only seven days’ notice was filed instead of the fourteen days required by law, or where a copy of the attachment was not served upon the execution debtor. Rules 101 and 103 therefore have no reference to a sale conducted with all the necessary formalities purporting to have been ordered by a court of competent jurisdiction, when in fact, no court has ordered such sale, as is alleged in this case, the rules, 101 and 103, cited are therefore irrelevant to the issues here.
The trial local court magistrate showed a clear appreciation of the issues involved in the case; he summed it up in the following words:
“The case of plaintiff’s proxy is that the sale the first defendant herein authorised third defendant to conduct was illegal and not in accordance with law as the relevant documents in respect of the sale were not issued and filed accordingly and as such the second defendant illegally purchased the said cocoa farm. The plaintiff asserted again that when she heard that Yaw Poku was indebted of £15 17s. 11d. she paid the amount to the then Juaben Local Council B and obtained receipt No. D. 214217 dated 6 August 1959. The plaintiff asserted again that when she paid this amount she noticed that the court ordered for a Ca. Sa. to be issued other than
fi.fa. against the judgment debtor but this was not complied with hence she is asking the leave of this court for the sale of a cocoa farm of late Yaw Poku to be set aside.”
And after a meticulous examination of all the evidence before him, the local court magistrate came to the definite conclusion and said, “In my opinion the sale was conducted at the back door,” meaning fraudulently.
The certificate of purchase tendered by the defendants purported to show that the sale had been ordered by the Juaben Local Court, this was however contradicted by the court record book of the said local court and the docket in the case in which the sale was alleged to have been ordered. Far from showing that the local court had ordered a writ of fi.fa. to issue, the said court record book and the case docket showed, as earlier stated, that the only order made as to execution was an order for a writ of Ca.Sa. to issue for the arrest and incarceration of the said Yaw Poku, and that the same was made in summons to show cause in proceedings taken by the second defendant against the said Yaw Poku. If the local court made an order for a particular process of execution to issue, and the second defendant prevailed upon the clerk to issue
execution not ordered by the local court, the issue of that other execution not ordered by the local court would be illegal. It is worthy of note that there is no endorsement by the president of the local court on the copy of the alleged application for a writ of fi. fa., ordering attachment of the farm, and the docket further shows that no attachment was made.
Once a judgment creditor has commenced execution by one form of process to enforce the decree in his favour and has obtained an order of the court in respect of that process, he cannot resort to a different form of process of execution without first obtaining an order of the court in that regard. In Oduro v. Davis10 the first defendant, a judgment creditor obtained an order against the plaintiff on summons to show cause for payment of the judgment debt by monthly instalments. The plaintiff paid the first instalment but defaulted thereafter for several months, whereupon the first defendant, without further order of the court, took a writ of fi.fa. and had a charging plant of the plaintiff sold in execution for the balance of the judgment debt due. It was held, inter alia, that the order which was made on the summons to show cause operated as a stay of execution unless leave of the court to issue execution had been obtained. The local court concluded its findings on the facts as follows: “In recapitulating the contents of the record
book at page 348 and the docket I am satisfied that there was no court order for such sale, no notice of attachment and account sales, neither application for a fi. fa.” “There is abundant evidence oral and documentary which amply warrant those findings of fact. Therefore the decision of the local court based upon those findings ought not to be disturbed.
For these reasons the appeal should be allowed, the judgment of the High Court set aside, and that of the local court restored.
JUDGMENT OF SARKODEE-ADOO CJ
I agree.
JUDGMENT OF BLAY JSC
I have had the opportunity of reading the judgment of my brother Ollennu and I regret that I am unable to agree with the conclusions arrived at by him for the reasons stated hereunder.
The appeal is from the judgment of the High Court, Kumasi, reversing the judgment of the Kumasi East Local Court, which had set aside the sale of a cocoa farm said to be the property of one Yaw Poku, on the ground that the said sale, which was by public auction, in execution of a writ of fi. fa. at the instance of the first defendant was “irregular and unlawful.” The facts of the case as stated by the learned judge are very simple. The plaintiff, now appellant, claims to be the successor of Yaw Poku whose cocoa farm was sold. It appears that the first defendant, in 1949, litigated with the predecessor of the plaintiff and as a consequence of that litigation her said predecessor was condemned to pay to the first defendant the sum of £15 17s. 11d. The judgment debtor Yaw Poku being unable to pay the judgment, the first defendant applied for a writ of fi. fa. and was issued a receipt No. 81958 dated 13 January 1949. The first defendant
deposed that after his application for the writ of fi. fa. he saw a notice posted at Atwedie attaching, and indicating the sale of, the farm of the judgment debtor, Yaw Poku; that the farm was consequently sold at a public auction by the third defendant and bought by the second defendant for £20; that after the sale of the farm, Yaw Poku lived for ten years or more before his death; and that after the sale he heard nothing more about the matter until the plaintiff appeared on the scene and claimed the farm as her property by virtue of her successorship.
The second defendant deposed that he was declared the purchaser of the farm at a public auction conducted by the third defendant; and that he paid at the auction the sum of £20 for the farm and had issued to him a certificate of purchase by the Juaben Local Council which had sold the property on a writ of fi. fa. at the instance of the first defendant. The certificate which was dated 31 May 1950 was tendered in evidence by him without objection. He said that after the purchase of the farm he took possession of the same and improved it by planting more cocoa trees thereon and that his possession was not challenged for more than ten years until the plaintiff made her claim as successor after the death of Yaw Poku. It appears that the action which resulted in this appeal was the third of a series of actions brought by the plaintiff against the defendants in an effort to claim the farm after the death of Yaw Poku. The first action was brought against the second defendant in the Bompata-Juaso Local Court in which the plaintiff claimed possession of the farm in dispute. That action failed because the second defendant produced to the court the certificate of purchase issued to him 1950 when he bought the farm at a public auction under a writ of fi. fa. The court gave judgment for the second defendant in the following terms:
“The plaintiff’s own witness the chief of Atwedie’s evidence was that the first defendant had bought the cocoa farm during public auction under writ of fi.fa. The defendant’s evidence revealed that first defendant bought the cocoa farm in question under writ of fi.fa. in the case of Kofi Nkrumah v. Yaw Poku in the Juaben Native Court and produced certificate of purchase with writ of possession attached as exhibit dated 31 May 1950. The defendants therefore found not liable to claim.”
After this judgment the plaintiff could have been under no illusions as to the basis of the second defendant’s claim. She knew then if she did not know before, that the second defendant claimed the farm as a purchaser under a writ of fi. fa. and that he held a certificate of purchase and a writ of possession issued to him by a competent native court.
As I see it the only way the plaintiff could have succeeded in recovering the farm was by an action to declare the sale void and having the same set aside. This she apparently did in her own way by instituting fresh proceedings against the defendants in the Juaben Local Court claiming ownership and possession of the farm.
The defendants set up a plea of estoppel per rem judicatam against her but that plea was not upheld by the local court and judgment was given against the defendants. Upon an appeal to the Asantehene’s Court that court set aside the judgment of the local court and sustained the defendants’ plea of res judicata. The plaintiff then appealed to the High Court, Kumasi, against the judgment of the Asantehene’s Court and on 27 January 1961 Simpson J. dismissed the appeal and upheld the judgment of the Asantehene’s Court. It appears that in the High Court the plaintiff rightly in my view, insisted that her case against the defendants was to have the sale set aside, since in the judgment of Simpson J. the following sentence occurs, “It is not an action to set aside a sale as contended by the appellant.” The plaintiff did not appeal from the judgment of the High Court but took inspiration, as the learned judge of the court below puts it,
from that one sentence of Simpson J. quoted above, and based a third action on it against the defendants in the Kumasi East Local Court. Again the defendants met this fresh action by a plea of estoppel per rem judicata. This plea was rejected by the local court which proceeded to give judgment against the defendants, and set aside the sale. From this judgment the defendant appealed to the High Court, Kumasi, and the main ground of appeal urged before that court on their behalf was that the plaintiff was estopped by both the judgment of the High Court of 27 January 1961 and the judgment of the Asantehene’s Court on appeal from the Bompata-Juaso Local Court from litigating the matter again. Counsel argued that the defendants relied in those actions on a sale by public auction under a writ of fi. fa, and a judgment in their favour decided by necessary inference the validity and regularity of the auction sale. He referred to the case of Greenhalgh v. Mallard11 in which Somervell L.J. said inter alia:
“I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues for facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.”
For the plaintiff it was urged on her behalf that the issue fought in the previous actions amounted to this:
“Was it the plaintiff or the defendant that owned the farm in dispute?” It was found that the defendant owned the farm by reason of an auction sale; and that the present action substantially asked the court to determine whether there was an auction sale authorised by the court in respect of a judgment against the defendant’s uncle and predecessor.
The learned judge of the High Court had no hesitation in upholding the arguments advanced on behalf of the defendants and said as follows:
“In my opinion, the contention of Mr. Sotomey is plainly right. As the defendant set up an auction sale by fi.fa. as the root of his title, a judgment in his favour necessarily inferentially decides the validity of that auction. If it was the plaintiff’s case that the auction was invalid for irregularity it was clearly her duty to set up this and prove it. If she did not and the court for want of such proof came to the conclusion that the sale was valid and that the defendant acquired a good title to the farm by it, that in my judgment, puts to rest for ever any question of irregularity of such sale. Indeed Mr. Sotomey need not have gone so far afield for the proposition which, in my opinion, he stated so very correctly. In the case of Duedu v. Yiboe, Court of Appeal, 4 November 1957, unreported, van Lare Ag.C.J. (as he then was) citing Romer J. in Shoe Machinery Co., Ltd. v. Cutlian [1896] 1 Ch. 667 said: ‘It is not necessary, in considering the question res judicata, that there should be an express finding in terms, if, when you look at the judgment and examine the issues raised before the Court, you see that the point came to be decided as a separate issue for decision, and was decided between the parties.’ This was expressly approved by the Privy Council when this case went on appeal in its judgment of 20 June 1961 ([1961] G.L.R. 346). The Privy Council also approved and adopted a dictum of
Lord Romer in New Brunswick Railway Co. v. British and French Trust Corporation Ltd. [1939] A.C. 1 at p. 43 as follows: ‘It is no doubt true to say that whenever a question has in substance been decided, or has in substance formed the ratio of, or been fundamental to, the decision in an earlier action between the same parties, each party is estopped from litigating the same question thereafter.’ Accordingly, I hold that the plaintiff is very clearly estopped by the
judgments to which I have referred from relitigating the question of the validity or regularity of the sale. This is a matter of some technical legal finesse and it is quite understandable that the local court magistrate should have erred in it.”
I am in entire agreement with the opinion of the learned judge of the High Court as quoted above. Before this court the main argument urged on behalf of the appellant was that the claim in the present suit was entirely different from the claims in the other suits between the parties; that while the claims in the other suits were for possession and ownership, that in the present suit was for the setting aside of the sale on the ground that it was illegal; and that no court had made a declaration on the legality or otherwise of the sale hence the question of estoppel does not arise.
I confess that I am not impressed by that argument. It is true that no court had made a direct declaration as to the validity or otherwise of the sale by auction of the farm; but as the defendants were claiming the farm by reason of a sale and purchase at a public auction under a writ of fi.fa., and the plaintiff was claiming by right of succession, a judgment in favour of the defendants inferentially meant that the sale on which they rely was valid and regular. That being the case I am of the view that the matter cannot be relitigated. In any case, as I have already stated, the plaintiff could have been under no illusions as to the basis of the second defendant’s claim in the Bompata-Juaso Local Court. It was then open to her to test the validity of the sale by a direct action to set aside the sale on the ground of fraud or illegality. This she
failed to do but chose to go about the matter in an indirect manner by action claiming ownership. She cannot therefore complain now that ownership in the second defendant has been declared by the court in the action she took. She is in my view effectively estopped from litigating the matter again. See MacKenzie-Kennedy v. Air Council.12
Then there is the question of rules 101 and 103 of the Native Courts (Ashanti) Procedure Rules to consider. Rule 101 provides for the setting aside of the sale of immovable property on the ground of material irregularity in the conduct of the sale. The time limited for that purpose is 21 days from the date of the sale.
Rule 103 provides that if no application to set aside the sale is made under rule 102, the sale shall be absolute. In this case the second defendant claims that he bought the farm in dispute at a sale by public auction under a writ of fi. fa. issued by the Juaben Ashanti Native Court and a certificate of purchase was issued to him by that court on 31 May 1930. Yaw Poku, the judgment debtor and predecessor of the plaintiff, was alive and if he had any doubts as to the regularity of the sale he should have applied within the time limit to have the sale set aside. This he did not do and the evidence is that he lived for more than ten years after the sale before he died. The sale to the second defendant therefore became absolute and could not be set aside on the ground of irregularity. The local court magistrate in his ruling of 8 May 1961, had this to say:
“The previous case before the presiding judge was a claim for possession and ownership of a piece of land at Kantanagya; and whether the land had been bought. The present case is for the court to set aside the sale as it was irregular and unlawful as the auctioneer did not comply with the rules of public auction and in this premises the sale should be set aside.”
It appears to me that the local court magistrate completely forgot the existence of rule 103. It follows that had Yaw Poku been alive at the date of the institution of the present action he could have been met by rule 103 as stated above. In my opinion the plaintiff in this action is in no better position than her predecessor through whom she claims. She is equally debarred from making the claim.
Now assuming that I am wrong in the views I have expressed, it still remains to consider whether on the evidence the plaintiff was entitled to judgment. She herself did not give evidence, but got one Kwame Mosi, whom she appointed as her attorney, to speak on her behalf. This Kwame Mosi is described by the local court magistrate as the “plaintiff’s proxy.” This man having given his name to the court, proceeded to give his evidence in the first person as if he was the plaintiff herself giving evidence. The evidence he gave in chief was very short and reads as follows:
“The plaintiff’s proxy. S.O.B. and states my name is Kwame Mosi, living at Koforidua, and a tailor, representing the original plaintiff herein. I know the parties in the suit. I have to state that the sale that the first defendant ordered the third defendant to conduct, a sale of a cocoa farm of late Yaw Poku, which farm was bought by the second defendant was wrongly conducted and was not in accordance with law because no notice was filed as well as fi. fa. and all the relevant documents were not properly executed and as a result I have subpoenaed the court record of Juaben Ashanti as well as the relevant docket for the court to examine whether the sale was properly conducted. When I noticed that the cost of £15 17s. 11d. was against Yaw
Poku I paid the amount to the court therefore I have to point out that there was no fi. fa. issued against the judgment debtor but rather a Ca.Sa. I tender the certified copy of proceedings of the court. Copies of proceedings dated 19 November 1958 and 3 December 1948 of Juaben Native Court exhibit A tendered in evidence accepted and marked exhibit A. A receipt No. D.214217 of £15 17s. 11d. dated 6 August 1959 tendered in evidence accepted and marked exhibit B.”
The receipt which was tendered in evidence as exhibit B was issued in the name of the plaintiff Ama Donkor and not in the name of the witness. It is obvious therefore that this witness who says he lives at Koforidua could not have been speaking on matters within his own knowledge, but was giving evidence as Ama Donkor. His evidence was therefore practically valueless except as to the documents he tendered in evidence. (See Yeboah v. Tse13 and the cases therein cited in the editorial notes.) The only other witness called by the plaintiff was one Peter Benjamin Obeng, who described himself as a bailiff, attached to Kumasi East Local Court. He said that he did not know the parties in the suit and had come to court merely to produce a number of documents, namely, a record book, an attachment, an account sales and copies of a writ of fi. fa. and a certificate of purchase. He, however, tendered in evidence only the evidence of one John Kojo Arthur, bailiff, Juaben Native Court B at page 348 of the civil record, Vol. 39, which was accepted by the court and marked as exhibit C. He also tendered in evidence docket No.
96/59 which he said contained a copy of an application for the issue of a writ of fi.fa., but there were no copy of a writ of fi. fa., no attachment notice, and no account sales. He said however that a copy of the certificate of purchase was on the file. The docket was marked as exhibit D. To a question by the court this witness said as follows: “Yes copies of such documents should all be filed. If such copies are not filed then the sale is irregular or not in accordance with public auction regulations.” That closed the case for the plaintiff.
The first defendant then gave evidence and deposed that about thirteen years ago he obtained judgment against Yaw Poku for an amount of £15 17s. 11d. in the Juaben Native Court; and that the judgment debtor was unable to pay the judgment debt and he therefore applied for a writ of fi.fa. He tendered in evidence a copy of his application and the receipt issued to him for the writ. He went on to say that the writ of fi.fa. was actually issued, that he later on saw a notice of attachment posted at Atwedie, and that the farm was sold by public auction and was bought by the second defendant. Cross-examined by the plaintiff’s attorney he answered as follows:
“The farm was sold three weeks after the filing of the fi.fa. Yes a copy of a fi.fa. should have been served on the judgment debtor. There were so many people at the sale. The purchase price was £20 . . . Second defendant bought the farm. The second defendant paid part of the purchase price of £10 to the auctioneer. I showed the boundary lines to the second defendant before the sale. Three persons were bidding for the sale.”
The second defendant gave evidence and said that he bought the farm at a public auction after he had seen a notice of attachment posted at Atwedie putting up the farm for sale. He said that he paid £20 for the farm and was later given a certificate of purchase. He said,
“After the sale the judgment debtor was still plucking cocoa, I reported to the court and he was restrained from entering the farm. I then recultivated the farm and replanted cocoa therein till 1959 during this time the judgment debtor was alive. The judgment debtor did not raise any objection to the sale till he died.”
The plaintiff did not cross-examine the second defendant and it must be presumed that she accepted the evidence he gave. That closed the case before the local court. On the strength of the evidence adduced as summarised above, I do not see how the local court came to give judgment for the plaintiff. Surely where a person in possession of property claims that he bought the property ten years ago and produces a certificate of purchase as his root of title, coupled with the fact that he had been in undisturbed possession all those years, a person claiming an adverse title has to prove more than the plaintiff did in this case. In this case all the plaintiff showed was that there was no copy of a writ of fi. fa. on file in the docket of the case and no auction account sales either. In my view the plaintiff hopelessly failed to prove that the sale of her predecessor’s farm was irregular and unlawful.
The absence in the docket of the documents mentioned by the bailiff could be accounted for in several ways other than that those documents were never in fact filed and had never been in the docket at any time. Then there is the uncontradicted evidence of the second defendant quoted above that he had the judgment debtor ejected from the farm by the court after the sale when he found him still plucking cocoa from it; that it was after that that he took possession of the farm and improved it by planting more cocoa trees; and that the judgment debtor, Yaw Poku, the plaintiff’s predecessor lived for more than ten years before he died. In my opinion even if the plaintiff’s story as it is, is accepted, she cannot now be heard to challenge the ownership and possession of the second defendant who is a bona fide purchaser for value without notice of any fraud or illegality. See In re Eyton; Barlett v. Charles.14 It follows that in the result
I would dismiss the appeal as of no merit.
DECISION
Appeal allowed.
T. G. K.
