Division: IN THE COURT OF APPEAL
Date: 8TH JUNE, 1959.
Before: GRANVILLE SHARP J. A., ACOLATSE J. AND SMITH J.
ARGUMENT OF COUNSEL
Bentsi-Enchill for appellant (Nettey). The onus rests on the Defence, because the trial-Judge held that the plaintiff has title, but is estopped from a grant of declaration because her predecessors had stood by. Since defendants’ grantor had alienated to defendants a portion of their land prior to judgment against defendants’ grantors in favour of plaintiff s grantors, defendant is not estopped by that judgment. The learned Judge so found. However, plaintiff has title in that her predecessors are clearly owners of the land by virtue of the judgments of the Gbese Mantse and Quashie-Idun J. (the latter upheld by the West African Court of Appeal). Where an owner of land brings an action to recover possession thereof, the defendants being in possession the onus of proof of their right to possession lies on them (Oloto v. Administrator-General (12 W.A.C.A.76)). The onus on the plaintiff to prove her title had been discharged and the learned trial-Judge substantially so found. The onus then shifted.
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The defendants’ right to remain in possession can be rested only on possession given by Nelson in 1940-41. Prior to that the defendant was a trespasser. In 1941, as the result of action taken by Nelson against Amarh, the latter was declared a trespasser, and then for a consideration of £72 was given leave to remain on the land.
By 1941 the plaintiff s family (meaning the Nah Korley family) had obtained judgment against Fiscian, which would be held to estop Nelson from litigating against the plaintiff s predecessors. It was the action which declared the Nah Korley family’s title to the whole area. S. Q. Nelson, who knew that the land he claimed was within the area then in dispute, gave evidence in favour of Fiscian, but judgment went against the latter, who in any case was Nelson’s grantor. In 1941, therefore, Nelson had no title to give a licence to Amarh to remain in possession. By Quashie-Idun J.’s judgment, and that of the West African Court of Appeal upholding it, the title of the Nah Korley family was conclusively upheld against both Fiscian and Nelson. It is therefore clear that the defendants in the present case cannot, on the strength of a licence granted to Amarh by Nelson who had no title, have a right to possession superior to that of the owner.
The learned Judge stated in his judgment, “the issue I have to decide is which of the two conflicting titles is the valid one, namely, is the title of the plaintiff as derived through the Nah Korley family
from Ashalley Okoe and another the good title, or that of the 2nd defendant derived through Isaac Fiscian from Samuel Quarshie Nelson.” But this was an issue that could not arise. He ought to have asked whether the defendants had discharged the onus that rested on them.
As to the Nelson and Amarh action, Nelson was sueing in trespass. Amarh was defending a trespasser’s interest, and lost. His interest was not the same as the Nah Korley’s interest. The family did not stand by. After the beginning of the Nelson and Amarh litigation, which lasted from 1933 to 1941, the family took action in 1937 against the major miscreant, Fiscian, and in that action Nelson gave evidence for Fiscian, who lost. In 1934 the family had notified to Amarh their claim to title to the land. It does not matter that that action did not proceed. Its importance was that it gave Amarh notice of the family’s claim to ownership.
The learned Judge erroneously applied the principle in Marbell v. Akwei (14 W.A.C.A.143). The principle in the case was that if a party stands by while someone else, to his knowledge, is defending his interest, he must stand or fall with the person so defending. In the present case, even if it be assumed that the family knew of the Nelson and Amarh case, the latter (in whose interest the estoppel is here raised) is not in any sense identified in interest with the Nah Korley family. Estoppels must be mutual, the only interest that is relevant is that of Amarh; and that, the interest of a trespasser, is certainly not identical with the interest of the Nah Korley family. Nelsons’s interest was irrelevant. First, he is not a party to this action. The interest he claimed was not identical with that of the family -the roots of origin are different. The Nah Korley family had judgments against Nelson which effectively estop Nelson.
Ashalley Okoe’s knowledge cannot be said to be the knowledge of the family. He was a junior member of the family (see Hammond v. Randolph & anor. (5 W.A.C.A. 42 at p. 48); Ashodi v. Balogun (4 W.A.C.A.5). The principle of standing by cannot apply to this case.
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Sowah for defendants (Odjidja and Amarh). The 2nd defendant was not estopped by the prior judgment against his vendors. It is plaintiff who is estopped. The plaintiff s predecessor in title knew of the litigation between Nelson and Amarh. Plaintiffs themselves (i.e. their predecessors, the family) took action against Amarh. It is enough to estop the plaintiff if he knew about the litigation between Nelson and Amarh.
The 2nd defendant alleged that in 1931 he had been, to the knowledge of the family, in possession of the land. Nelson supported Fiscian who was fighting his (Nelson’s) interest. Fiscian failed. It is not the case that Nelson stands or falls with Fiscian (see Ofori Atta II anor. v. Bonsra II & anor.
([1958]A.C.95)).
Plaintiff was guilty of such laches as amounted to acquiescence. The plaintiff has proved her title to ownership, but her right to a declaration is destroyed by the laches of the family (Akuru v. Olubadan-in-Council; 14(W.A.C.A.523)). From 1937 onwards the Nah Korley family knew of Amarh’s possession, but took no steps until 1952. The position was similar to that in Suleman v. Johnson (13 W.A.C.A. 213), where it was held that the evidence established acquiescence, and a declaration of title was refused. The learned Judge found as a fact that the defendant had been in undisturbed and effective possession of the land long before the plaintiff derived title from the family. The conduct of the plaintiff estops her from enforcing her right to possession.
Bentsi-Enchill in reply. The plea of laches was never raised. It is in the nature of fraud. See Rule 19, 0.21. The plea was a plea of estoppel based on the case of Marbell v. Akwei. The two pleas are distinct, and the only one raised here is estoppel. See Rule 6, 0.20. Even if laches had been pleaded, the evidence does not support it.
Suleman v. Johnson can be distinguished. In the present case the plaintiff s grantors effectively demolished the root of title of the defendants’ grantors’ action of 1936.
Though the 1934 action against Fiscian and another was not pursued, it gave notice to the defendant.
During the pendency of Nelson v. Amarh, Nelson gave evidence in favour of Fiscian in the action Hammond v. Fiscian. Up to 1941 Amarh’s occupancy of the land was the subject matter of challenge. The character of Amarh’s occupation was mainly technical. He was not living on the land. There was nothing to indicate physical occupation. Plaintiff had obtained a building permit; she proved this, and the plan. If someone else had been on the land no permit would have been granted. The fact that Amarh is not estopped per rem judicatam means only that he is not prevented from giving evidence. It does not mean that the judgment is rendered useless. Nelson’s alleged root of title was Fiscian. The Nah Korley family derived title from Ga Mantse. At no time were any parties litigating the interest of the Nah Korley family. See the cases cited in the report of Marbell v. Akwei; see also Nkyi v. Darku (14 W.A.C.A.438).
JUDGMENT OF GRANVILLE SHARP J.A.
st
This is an appeal from a decision of the Judge in the Land Court who, on the 31 December, 1955, directed that judgment be entered for the defendants, the respondents in this Court, in a suit in which the
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appellant claimed a declaration of title to land situated at South Adabraka, damages for trespass and recovery of possession and other ancillary relief.
There is an interesting history attaching to the land in dispute, and this may usefully be outlined at the outset. The appellant based her claim to title on a Deed of Conveyance dated 13th June, 1949 between herself and the then representatives of the Nah Korley Family as vendors. The first respondent is in possession as a tenant of Amarh the second respondent, who claimed at one time the right and title to ownership of the land through one Isaac Fiscian, from whom he said he had purchased under an Indenture dated the 18th July, 1931. This claim was tested in proceedings instituted in 1933 by one S. Q. Nelson, who sued Amarh in trespass. The course of this action was protracted, and it was not until 1941 that a conclusion was reached, as the result of which Amarh paid to Nelson a sum of £67 for the right to remain in possession. Nelson claimed title through Isaac Fiscian and gave evidence on behalf of Fiscian when in 1936 one Hammond, a member of the Nah Korley family, sued him and claimed title to the land in an action before the Gbese Mantse. In this action Hammond succeeded in recovering judgment on behalf of the family.
In 1934 this same Hammond brought an action before the Paramount Chief of the Ga State against Amarh and another in respect of the same land, but no more was heard of this proceeding after the
Deputy Commissioner of the Eastern Province had, on the 15th September, 1935 refused to transfer it to the High Court as requested by the defendants.
It seems that Hammond, while the suit between Nelson and Amarh, above referred to, was pursuing its protracted course, thought it wiser to protect his own interest and title in his action against Fiscian, through whom Nelson was claiming. In this Hammond again on behalf of the family succeeded in establishing title to a large area of land, including the land in dispute in the present case.
The defence to the appellant’s claim before the trial-Judge was that the respondent and his predecessors had been in long and undisturbed possession long before Ashaley Okoe and others purported to convey to the appellant, that Nelson had been in possession since 1920, and further:
“To the full knowledge of Mr. R. Ashaley Okoe, the said Mr. S, Q. Nelson successfully litigated his title to that land between the years 1933 and 1941, the said suit commenced in the Ga Mantse’s Tribunal; it went up to the West African Court of Appeal,
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it was remitted to the Ga Mantse for fresh trial and was finally determined by the said Ga Mantse’s Tribunal.
“The plaintiff’s vendor Mr. R. Ashaley Okoe was the Registrar of the Ga Mantse’s Tribunal; he was the one who took down the evidence and wrote the judgment both at the first trial and at the retrial which was held upon directions of the West African Court of Appeal. The title of the case is: Nelson versus Amarh & Anor. The defendants will contend that both the plaintiff and her vendors having sat by while the 2nd defendant and others litigated over the property are estopped by their conduct from now claiming title to and possession of the said land.”
The appellant’s vendors, the Nah Korley family, claimed title through gift to their predecessors by the Ga Mantse and it was this title that they established in their action against Fiscian, the then head of the Aruna family of Brazilians. Nelson and Amarh each claimed title through this same Fiscian, and it was these competitive titles derived from Fiscian that they were litigating between 1933 and 1941.
This title of the Nah Korley family was further tested as between them and Isaac Fiscian and S. Q. Nelson in a land acquisition (award of compensation) proceeding before Quashie-Idun J. in 1949. In this proceeding Quashie-Idun J. on the 11th March, 1949 delivered judgment, in the course of which the learned Judge held that Fiscian was estopped by “res judicata” in the judgment of the Ga Gbese’s Court, and as to Nelson held “in law the judgment against Fiscian by Hammond in 1937 does operate as ‘res judicata’ against S.Q. Nelson but it is for the Court to decide whether in 1920 Isaac Cobblay Fiscian had any title in the land to convey to S. Q. Nelson.” It was held that Fiscian had no title to convey, and that the fact that Nelson had brought an action against a trespasser (Amarh) was not sufficient to prove that to the knowledge of the real owners of the land he had acquired interest in that portion of the land. This judgment was taken to the West African Court of Appeal, and their Lordships (Blackall P., Lewey J. A. and Coussey J.), holding that the appeal was not supported by any valid ground, refused an application for an adjournment for the purpose of calling further evidence, and ordered that the appeal be dismissed.
One result of all this litigation is that Fiscian is estopped as against the Nah Korley Family; Nelson is estopped as against the Nah Korley family by reason of his conduct in the proceeding in the Ga Gbese’s Court and by reason of the judgment of Quashie-Idun J., and Amarh is estopped as against Nelson in any proceedings in relation to this land.
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It remains to be seen whether the defence in the present case establishes in law an estoppel in favour of the respondents as against the appellant.
The first respondent is in possession of the land in dispute under title alleged by the second respondent. The appellant, as the learned Judge of the Land Court in our view rightly held, derived title from the Korley family who had “established title to a larger area of land which included the whole of the land claimed” by the appellant. It seems to us to follow that the appellant proved that she was the true owner, and that following upon such proof the onus of proof of their right to possession shifted to the respondents (see Oloto v. Administrator General etc 12., W.A.C.A.76).
The judgement in favour of the Nah Korley family in the Ga Gbese’s Court does not estop the respondent in possession by some prior alleged title. But this is not the equivalent of a setting aside of that judgment. The judgment stands in proof of the right to ownership of the appellant vested in her by those in whose favour it was given, and can be defeated only by proof given on behalf of the respondents that they have some superior valid title. In this on all the evidence the respondents must fail. No title said to derive from grants by Fiscian can succeed in defeating a title derived from the Nah Korley family, and the learned Judge, we think, erred when he held that the appellant’s title was invalid.
We are of opinion that the real question posed by the facts and pleadings in the Land Court was whether the plaintiff there, having a valid title, was by the conduct of her predecessors, and/or herself, estopped from claiming the discretionary relief of a declaration of title. The learned Judge seemed so to hold, but went further when he declared the appellant’s title invalid. The appellant’s situation is that she is entitled to declaration and to possession unless either a better title can be shown by those in possession, or she is estopped from asserting her title as owner to possession as against them.
One ground of estoppel which seems to have been accepted by the learned Judge is that Ashaley Okoe, a junior member of the Nah Korley family at the time, knew of the litigation between Nelson and Amarh; that his knowledge must be taken to be the knowledge of the family;that they stood by and allowed the litigation to proceed, thereby acquiescing, and that they must stand or fall with the party defending their interest.
The evidence shows that Amarh was defending the interest of a trespasser, claiming right through Fiscian against Nelson, who also claimed right through Fiscian. It is difficult to see how and in what capacity the family could have intervened in such a proceeding, even if they must be taken to have known of it.
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The evidence establishes that the family did not in fact stand by in any real sense. They sued the person who had purported to make dispositions of their land to the two contestants, Amarh and Nelson. In that action Nelson gave evidence to support the title on which he himself relied, and which as in competition with the title of the family deriving from Ga Mantse. It is the family title that prevailed, and all titles to the land said to derive from Fiscian fell with such decision. In the action brought by Nelson, Amarh was held to be a trespasser, and he remained as a licensee of one who had no title to grant such a licence.
The case of Marbell v. Akwei (14 W.A.C.A.143) has in our opinion no application to the present case. The appellant in that case stood by whilst someone was disputing a title which he, the appellant, had conveyed. The possessor of that title defended to uphold it, and lost, and it was held that the appellant, who had stood by, must be bound by such decision. He had “stood by to see his battle fought by somebody else in the same interest.” The words” in the same interest” are of importance. It appears from the judgment of their Lordships in the Privy Council in the case of Ofori Atta II & anor v. Bonsra II & anor. ([1958] A.C. 95) that the test to be applied in deciding whether the interests are the same is “whether the matter to be determined in the present action was the same as the matter determined in the former action?” Applying this test, it seems to us clear that neither Amarh nor Nelson was defending any interest of the appellant or her predecessors, and that therefore the reasoning of Marbell v. Akwei cannot here be applied.
Further, upon the evidence in this case it cannot be said, and it was not pleaded in the defence, that the Nah Korley family were guilty of such laches as would support a case of acquiescence on their part, though there appears to be some such suggestion in the judgment.
The second respondent very shortly after his entry on the land was subjected to a long litigation, and the land itself formed the subject matter of competitive claims in Native Courts and in the High Court. The first and second respondents cannot be said to have improved the land or developed it to the knowledge of the family or the appellant, or at all, so as to render it fraudulent on the part of the family to convey, and on the part of the appellant to enforce her title. If such a case were to be suggested, it is fatal to it that it was not pleaded.
DECISION
For these reasons we allow this appeal, set aside the judgment of the Land Court and enter judgment for the plaintiff-appellant, granting a declaration as prayed, an order for possession, and perpetual injunction, with costs fixed at £97.18s. 6d.
