NII AKRAMAH II AND OTHERS v. ROBERTSON (CONSOLIDATED) [1975] 2 GLR 301

COURT OF APPEAL, ACCRA (FULL BENCH)

AZU CRABBE C.J JIAGGE ARCHER AND KINGSLEY-NYINAH JJ A  AND ABBAN J

(1)    In re Public Lands Ordinance; Wireless Station Acquisition (1948) D.C. (Land) ‘48—’51, 34.

(2)    Nikoi Olai v. Adams, Land Court, 22 November 1951, unreported.

(3)    Kotei v. Asere Stool [1961] G.L.R. 492, PC.

(4)    Robertson v. Nii Akramah II (Consolidated) [1973] 1 G.L.R. 445, C.A.

(5)    Kotei v. Asere Stool, West African Court of Appeal, 4 March 1955, unreported.

(6)    Robertson v. Nii Akramah II, High Court, Accra, 30 September 1966, unreported.

(7)    Aperade Stool v. Achiase Stool (1957) 3 W.A.L.R. 204, C.A.

(8)    Frempong II v. Effah [1961] G.L.R. 205, PC.

(9)    Robertson v. Reindorf [1971] 2 G.L.R. 289, C.A.

(10)    Re Kujani Bush Forest Reserve; Atakora v. Acheampong, Court of Appeal, 17 July 1967, unreported; digested in (1968) C.C. 27.

(11)    New Brunswick Rail Co. v. British and French Trust Corporation Ltd. [1939] A.C. 1; [1938] 4 All E.R. 747; 108 L.J.K.B. 115; 160 L.T. 137; 55 T.L.R. 260; 83 S.J. 132, H.L.

(12)    Reindorf v. Amadu [1962] 1 G.L.R. 508, S.C.

(13)    R. v. Hogan [1974] Q.B. 398; [1974] 2 W.L.R. 357; [1974] 2 All E.R. 142.

(14)    Praka v. Ketewa [1964] G.L.R. 423, S.C.

NATURE OF PROCEEDINGS

APPLICATION for a review of a decision of the ordinary bench of the Court of Appeal, allowing the respondent’s action for recovery of land and damages for trespass. The facts are fully set out in the judgment of Archer J.A.

COUNSEL

U. V. Campbell (de Graft-Johnson and Ofori Atta with him) for the applicants.

Akuoku (Frimpong-Boadu with him) for the respondent.

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JUDGMENT OF AZU CRABBE C.J.

I have had the opportunity of reading in draft the judgment which is about to be read by Archer J.A. and my agreement with its analysis of facts and conclusions of law makes it unnecessary for me to examine once more in detail the circumstances of the case. I content myself by simply saying that I agree with Archer J.A.’s judgment, and only wish to make some few observations on one important point.

The real basis of the plaintiffs’ claim in this case was that they had been adjudged “owners in possession of Mukose lands,” and this assertion was elaborated in paragraph (4) of their statement of claim as follows:

“The said Mukose lands—of which the Abeka village and the lands lying in and around it are a part—were the subject of litigation in the suit entitled ‘Amon Kotei etc. v. James Adams & ors: Asere Stool (meaning the Asere stool of Akotia Oworsika) Co-defendant’ which said suit finally terminated on appeal to the Lords of the Privy Council, by judgment of that Board reported in Kotei v. Asere Stool [1961] G.L.R. 492, P.C. adjudging the plaintiffs’ family to be owners in possession of the said Mukose lands. The said judgment of the Privy Council was adopted by the Supreme Court of Ghana on 20 November 1961.”

I think that it is of the highest degree essential that the origin, nature and extent of Mukose lands should be determined once and for all; otherwise, as experience in this court has taught some of us, there will be no end to litigation about these lands until legal ingenuity is completely exhausted. In the Privy Council judgment, delivered on 24 July 1961, and reported in [1961] G.L.R. 492 Mukose lands were described as an area of 900 acres of land, four miles north-cast of Accra. As the Privy Council found at that time, it was an undulating tract of land of little agricultural value and situated on high ground.

The attempt to trace the historical origin of the land, described by the plaintiffs as Mukose lands, appears to have been first made in 1948 in the Wireless and Telephone Service Installation Acquisition Enquiry (Land Acquisition No. 10.1947). In this inquiry the principal rival claimants were the Asere Mantse and Nii Amasah Nikoi O’lai of Asere Djorshie, the plaintiffs in this case. In a passage from the judgment delivered in this matter in In re Public Lands Ordinance; Wireless Station Acquisition (1948) D.C. (Land) ‘48-’51, 34 at p. 37 Jackson J. said:

“It is common ground that the Aseres were not the aboriginal inhabitants and that they came as the result of defeat in tribal warfare from a place near Nsawam called Ayawaso. The evidence tends to support the story told by the 5th claimant that the village of Mukose was founded by some of the earliest settlers said to have been the descendants of a man whose name was said to have been Nikoi O’lai and who died before the people reached this part of the country when the name Asere became attached to this community and where they lived as subjects of a stool brought from their original home.”

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Jackson J. further said at the same page:

“The circumstances attending the arrival of the Aseres indicate that each family settled upon land near Accra with the permission of the aboriginal inhabitants and that the family of which the 5th claimant is now the Head settled at the village of Mukose (which was situate some few hundred yards to the North of the land now acquired for the Wireless Station).”

It seems clear from the above two passages that Jackson J. found as a fact that the plaintiffs’ ancestors founded the village of Mukose. It seems equally clear that other families of the Asere community settled in the same area. Jackson J. further found that after the founding of Mukose village, the descendants of the original settlers continued to farm the surrounding land, until the village fell into ruins and was abandoned in 1926. Though the learned judge stated in the judgment that the village of Mukose was situated at a distance of some few hundred yards to the north of the land acquired for the proposed wireless station, the judgment was silent on the extent of the area on which the village stood. In his evidence at the inquiry given on 13 August 1948 Nii Amasah Nikoi O’lai, the spokesman for the plaintiffs, said, “The wireless station land is at Kpatsakole and not at Mukose.” (See exhibit 1 at p. 612 of the record.) It seems to me, therefore, that the statement in the Privy Council’s judgment that the area acquired for the wireless station was part of Mukose lands is, with the greatest respect, at variance with the evidence, and was merely an obiter.

Dealing specifically with the land acquired, Jackson J. said at p. 38 that he was satisfied that the plaintiff s family had “enjoyed all the rights of owners in possession of land” until the expropriation of the land by the acquisition. I think it is this statement of Jackson J. that the plaintiffs had “rights of owners in possession of land” which seems to have inspired the conduct of the plaintiffs in subsequent litigation. But the admission of Nii Amasah Nikoi O’lai supports Jackson J.’s observation that this right of “owners in possession in land” was restricted to the area acquired for the wireless station and not to lands around Mukose village. The learned judge then proceeded to explain the competing rights of parties who had originally settled on the land. He said at p. 38:

“Land which had not been used exclusively by the family and which was unoccupied land and of which there must have been a very good deal was regarded as Stool land. It was land upon which any member of the Stool, and who had the enterprise, might farm without leave or licence, but it was always regarded as land upon which strangers could not live or farm without first obtaining permission from the Mantse of Asere. This in practice was effected by obtaining permission from one of the several Headmen or Caretakers who lived in scattered settlements and who protected the interests of the Stool, and in effect these Headmen or Caretakers, who normally had the greatest interest in these lands, administered them as if they were

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to all intents and purposes lands belonging to these quarters of which these Caretakers or Headmen were the heads elected by their own quarters.”

This passage makes it plain that portions of land within the acquisition area which had not been reduced into possession by the plaintiffs’ family were regarded as Asere stool land. Finally, the learned judge explained the rights of the plaintiffs in respect of the area acquired in the following passage at p. 40:

“Ownership means the right to the exclusive enjoyment and possession of a thing; ownership is absolute or restricted. In this case the ownership of the 5th claimant’s family is, I find, restricted by the denial of the right to alienate without the consent of the paramount Stool. The 5th claimant has satisfied me that his family, at the date of the acquisition, were the parties in possession of some seven-eighths of that area of land shown as being delineated in pink and marked with the Registration No. Y. 573A. and dated 27th May, 1946 and for the reasons already given by me they are in possession as being the owners thereof and, as such, are entitled to receive compensation for seven-eighths of the area of the land.”

In my view the judgment of Jackson J. made two points clear. First, that Mukose is not part of the land acquired for the wireless station; and secondly, that the plaintiffs’ right of ownership to the land for which they were adjudged to be entitled to the compensation was not an absolute right.

In his invaluable book, Customary Land Law in Ghana, by N. A. Ollennu, the learned author has, made a brilliant classification of land ownership in Ghana. The author writes at p. 4:

“Ownership of land takes different shapes and forms, each with peculiar legal rights and incidents attached thereto. The various types of ownership known to customary law may be grouped under six heads. They are:

(1)    paramount title, sometimes called absolute, final, radical or or allodial title;

(2)    sub-paramount title;

(3)    determinable estate otherwise called possessory or usufructuary title;

(4)    tenancies or interest in land which can be owned by a person who is not the    owner of the paramount, sub-paramount or the determinable estate, these include abusa, the abunu, the    the annual crop tenant;

(5)    licences, e.g., the right to occupy and enjoy land for a specific period or for    an indefinite    duration of time;

(6)    pledges.”

It seems to me that when the learned judge observed that the plaintiffs’ family “enjoyed all the rights of owners in possession of land,” all that he meant was that the plaintiffs’ family were “possessory owners’ or

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“owners of a possessory title.” The plaintiffs had in effect the right to immediate enjoyment of the beneficial interest in the same land vested in the Asere stool, the absolute owner: see Ollennu, Customary Land Law in Ghana, at pp. 9, 10 and 11. In my view the right which Jackson J. declared the plaintiffs had was one which could be safely put under the third heading of the classification above.

Whilst the proceedings in the acquisition were pending, the plaintiffs instituted a suit (Transferred Suit No. 31/1948) entitled Nii Amasah Nikoi O’lai, Mantse of Asere Djorshie etc. v. James Adams & Ors. in the Ga Native Court B (See exhibit 3, p. 640 of the record). The suit was subsequently transferred to the Land Court, Accra, on 22 November 1951, unreported, and in an amended writ, the plaintiffs claimed:

“All that piece or parcel of land containing an area of 903.15 acres situate at North of Kaneshie in a portion of land known and called Muko or Mukose near Abeka in the Accra District, belonging to the Stool of Nikoi Olai of Asere and King Tackie Tawiah family land known as Mantse-Man Mukose and formerly belonging to Nikoi Olai stool of Asere; on the south by land belonging to Nikoi Olai stool of Asere and Nii Kotei and Nii Ashie, family lands on the West by Akoloo land belonging to Nikoi Olai stool of Asere and Nii Asere Oku and Nii Ashalley family land; and on the East by Nikoi Olai stool land in charge of Tetteh Amrakese family of Sarkortsosisi, Asere known as Onamroko, is the ancestral stool property of Nikoi Olai of Asere, Accra.”

The case was heard by Jackson J., who ordered a plan of the disputed area to be made and filed for the purposes of the trial. The Asere stool subsequently was joined as co-defendant.

The plaintiffs’ claim was that the land edged pink on the plan was the stool land of the plaintiffs’ family, and that part of that land also edged green on the plan was sold by J. Adams and others. It was common ground that the sales took place as alleged by the plaintiffs. Jackson J. stated the case for the parties briefly as follows:

“The case for the plaintiff is that the extent of his stool lands corresponds with the boundaries of the Asere stool lands, and that no alienation of such lands can be affected without the consent of his stool.

The case for the defendants is that the land was originally Asere stool land consequent upon the first migration from Ayawaso about 200 years ago and when they first occupied this land, and that in recognition of the services in war of a distinguished member of the Abbetsewe family a piece of land, of which this is a part, was granted to that member of the Asere stool, very many years ago and that the land is now recognised by the stool as being the property of the Abbetsewe family.”

The stage was once again set for a reappraisal by the court of the right of ownership to the whole of the original settlements on the lands which the plaintiffs called Mukose lands. Giving traditional evidence for the

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plaintiffs, Nii Amasah Nikoi O’lai said that the village of Mukose was founded by one Leh Kotey who was a member of the plaintiffs’ family. In paragraph (6) of the plaintiffs’ statement of claim, it was alleged as follows:

“From the time of Nii Kotey Leh up to date, the heads of the Nikoi O’lai family and the members thereof have maintained their control and occupation of the family land of which the area the subject-matter of this suit forms a part, and have exercised all rights of ownership in respect thereof principally by granting permission to persons to occupy and farm on portions thereof.”

In his judgment, Jackson J. again expressed himself satisfied that the ancient village of Mukose was originally settled by the plaintiffs’ family, and that it was for that reason that the Asere Mantse recognised Djani Kofi of the plaintiffs’ family as his headman of the village. The learned judge said that members of the plaintiffs’ family occupied villages on the surrounding land, and farmed until these farming villages were abandoned, the last one being Mukose in 1926. Consequently, the learned judge said, that by the ordinary practice of customary law whatever character of family land it might then have possessed disappeared with its abandonment. The learned judge then proceeded to make the following crucial remarks: “The evidence is perfectly clear that the land at the date of the issue of the writ was Asere stool land, and had been Asere stool land for many years before the issue of that writ.” In my judgment, this is a statement which is expressing with absolute clarity that the Asere stool had for many years been the absolute owner of the land which the plaintiffs call “Mukose land.” The learned judge was, however, careful to state that the plaintiffs’ family which was an Asere family, could not be dispossessed of the right of farming in the area, and to that extent they had some title or interest in the land. But the learned judge continued to emphasize: “The property in the land, it follows remains in the Asere stool, subject to the rights of its subjects and those strangers who have received permission to farm thereon.” Again, the learned judge is saying here that the paramount or allodial title of the land in dispute was vested in the Asere stool.

Not being satisfied with the decision of Jackson J., the plaintiffs appealed to the West African Court of Appeal, and one of the grounds of appeal was expressed in these terms: “The learned trial judge was confused in his mind as to the correct principles of native customary law to apply in deciding the rights of the plaintiff s stool family in relation to the Asere stool.” It is sufficient to say here that this appeal was dismissed. The plaintiffs made yet another appeal to the Judicial Committee of the Privy Council, which examined fully not only the evidence in the judgment appealed from, but Jackson J.’s judgment in the Wireless Station Acquisition Enquiry. Before their Lordships of the Privy Council, it was contended on behalf of the plaintiffs’ family that the decision of Jackson J. in the Wireless Station Acquisition Enquiry that they were entitled to receive compensation for seven-eighths of the area of land acquired amounted to a res judicata adjudging them “the absolute owners

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of the Mukose lands as their family lands free from any rights of the Asere stool.” But this contention was rejected by their Lordships. On the critical issue as to the ownership of Mukose lands, their Lordships observed that Jackson J. came to the same conclusion as he did in the Wireless Station Acquisition Enquiry. For as they said in Kotei v. Asere Stool [1961] G.L.R. 492 at p. 494, P.C.:

“He held that the Mukose lands were Asere stool lands. He based this finding on evidence that the Asere stool had placed headmen on the land; that these headmen permitted strangers to farm upon that land and collected tolls from them; and the headmen paid these tolls over to the Asere Mantse. Their Lordships have examined this evidence and are of opinion that it supports the judge’s finding that ‘the tolls collected were paid by the collector to the Asere Mantse. ’ It was said by Mr. Davies that, even if this were so, it does not warrant the inference that it was Asere stool land. The tolls were only paid by strangers and they may have been paid, not for the use of the land itself, but as a recognition of the political jurisdiction of the Asere Mantse. Their Lordships cannot accept this view. It seems clear upon the evidence that these strangers paid the tolls for the use of the land.”

Then after examining the evidence adduced before Jackson J., they said at p. 494:

“we find there was sufficient evidence on which he was entitled to find, as he did, that the Mukose lands were Asere stool lands, in this respect, that the Asere stool had a paramount title. The payment of tolls to the Asere stool and the recognition of headmen in the villages is sufficient proof of such a paramount title in the stool.”

Finally, their Lordships concluded at p. 496:

“Their Lordships will accordingly report to the President of Ghana that in their opinion the declaration made by Jackson J., and affirmed by the West African Court of Appeal should be varied so as to grant to the plaintiffs a declaration that they possess such rights in the area edged in green, on the plan, exhibit 1, as are conferred by law on a subject of a stool who is in possession. But inasmuch as the plaintiffs have not succeeded in their claim to be absolute owners free of the Asere stool altogether, and thus have in part failed but in part succeeded, their Lordships will report to the President of Ghana that in their opinion no order should be made as to the costs of this appeal and that the order for costs made by the West African Court of Appeal should be set aside, leaving each party in that court also to pay his own costs.”

Pausing here for a moment, we may ask what were the definite conclusions of the Privy Council? In my judgment these were as follows: (a) That the land which the plaintiffs called Mukose land had for many years been the land of the Asere stool; (b) That the property in Mukose lands is

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accordingly vested in the Asere stool, subject to the rights of its subjects and those strangers who had received lands for farming purposes.

The Privy Council emphasized that the plaintiffs’ family had failed in their claim to be absolute owners free from the Asere stool altogether.

Their Lordships thought, however, that the plaintiffs’ family had more than farming rights on the land in dispute, and, therefore, varied Jackson J.’s findings in that regard and conferred on the plaintiffs the possessory rights of a subject in possession of stool lands. These rights they explained earlier in their judgment in these terms at p. 495:

“Native law or custom in Ghana has progressed so far as to transform the usufructuary right, once it has been reduced into possession, into an estate or interest in the land which the subject can use and deal with as his own, so long as he does not prejudice the right of the paramount stool to its customary services. He can alienate it to a fellow-subject without obtaining the consent of the paramount stool: for the fellow-subject will perform the customary services. He can alienate it to a stranger so long as proper provision is made for commuting the customary services. On his death it will descend to his family as family land except in so far as he has disposed of it by will, which in some circumstances he lawfully may do.”

See Ollennu, Customary Land Law in Ghana, pp. 9, 10 and 11.

In view of the nature of the claim in the case from which this appeal arises, I think it is important that I should deal with the rights of the parties in relation to the village of Abeka. The Privy Council did not deal specifically with this point, but Jackson J. did in his judgment in Nikoi Olai v. Adams, Land Court, 22 November 1951, unreported. The learned judge found that one Kwamin also known as Abeka Kwame became the headman of the village of Abeka when it was first founded, and that the village appeared to have been inhabited practically entirely by strangers from the then Northern Territories. One witness, Kofi Dorman, who impressed the learned judge as being not only truthful, but one who had intimate knowledge of the land in dispute, said that he obtained permission to farm on the land from the headman Kwame of Abeka and paid to him five shillings toll every year until Kwame died, and he then paid it to a man called Lamptey. But he said that later he was directed by the Asere Mantse to pay the tolls to one Adjetey, but he refused, as he had already paid them to Lamptey. Concluding his examination of the evidence about Abeka, the learned judge said: “I am satisfied that the tolls collected were paid by the collector to the Asere Mantse and of that fact there was no dispute.” In the view of the Privy Council, as we noticed early in this judgment, these tolls were paid by strangers for the use of the land, and they brushed aside an argument that they were paid in recognition of political jurisdiction. It seems to me, therefore, that the courts were unanimous that Abeka village was not part of Mukose village, which was under Djani Kofi as headman for the plaintiffs.

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The result of the decisions of the courts in the Adams case was, therefore, that the plaintiffs’ claim that their land was co-terminus with or the same as the Asere stool lands was firmly rejected.

On 8 December 1961, the plaintiffs filed yet another suit (No. L.232/61) entitled Amon Kotei—Head of family of the Nikoi O’lai stool family of Asere Djorshie, etc. v. Nii Akramah II, Mantse of Asere and George Boye, Senior Linguist, etc. The plaintiffs’ claim on this occasion was for a declaration:

“that plaintiff’s family having been adjudged to be owners in possession of the Mukose lands of which the Abeka village and the lands in and around the said village are part, they are the proper persons entitled by law and native custom to grant or alienate any portion of the said Mukose lands at Abeka.”

And in paragraph (4) of the statement of claim it was averred as follows:

“The said Mukose lands—of which the Abeka village and the lands lying in and around it are a part—were the subject of litigation in the suit entitled ‘Amon Kotey etc. v. James Adams & Ors: Asere Stool (meaning the Asere stool of Akotia Oworsika) Co-defendant’ which said suit finally terminated on appeal to the Lords of the Privy Council, by judgment of that board given on 24 July 1961, adjudging the plaintiff’s family to be owners in possession of the said Mukose lands. The said judgment of the Privy Council was adopted by the Supreme Court of Ghana on 20 November 1961.”

Then in paragraph (6) of the statement of claim it was alleged:

“The plaintiff asserts that his family having been adjudged to be the owners in possession of the Mukose lands, of which the Abeka village and the lands in and around it are a part, are the proper persons entitled by native customary law and usage to grant or apportion the said Mukose lands.”

With respect, I think the term “owners in possession” in that context was intended to give the false impression that the plaintiffs’ family were adjudged the absolute owners of Mukose lands (including Abeka) who had gone into possession. This was exactly their case in the Adams case which was rejected by Jackson J., whose findings were confirmed on this particular point by the Privy Council. The declaration that the Privy Council made in favour of the plaintiffs was that they possessed “such rights in the area edged in green, on the plan, exhibit 1, as are conferred by law on a subject of a stool who is in possession.” What are these rights? These in short, are possessory or usufructuary rights, and they prevail against the whole world, even against the stool, community or tribe. Their existence is concurrent with the existence of the absolute ownership, and they are generally dependent upon the occupation or possession by the subject: see Ollennu, Customary Land Law in Ghana, p. 55.

In my view the term “owner in possession” is not synonymous with the expression “owner of a possessory title”; the former means the real

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owner. i.e. the absolute owner in possession, and the latter connotes a determinable estate and is a qualification or burden on the “absolute, final, radical or allodial title.”

Finally, what is the extent of the area called Mukose lands, to a portion of which the plaintiffs’ family were declared to have possessory title? In their writ in the present case the plaintiffs’ family claim that their possessory title to Mukose lands covered Abeka village. I think that this claim was not well-founded. In the Privy Council’s judgment, the rights which the plaintiffs’ family were declared to possess on Mukose lands were limited to the area edged green on the plan, exhibit 1. Abeka village lies outside this area. There were concurrent findings of fact that tolls collected from the village were paid to the Asere stool as owner of the village. In these circumstances I think it would be patently wrong to include Abeka village in the area edged green, despite its close proximity to the village of Mukose. Neither Jackson J. nor the Privy Council held that the plaintiffs’ family were “owners in possession of Mukose lands of which the Abeka village and the lands in and around the said village are part.” This was an attempt by the plaintiffs to go out of bounds.

It is unfortunate that in the Adams case the courts did not make any pronouncements on the extent of Mukose lands, and it is impossible to do so now. In the present case, Apaloo J.A., delivering the judgment of the ordinary bench reported in [1973] 1 G.L.R. 445, said at p. 459: “We do not feel ourselves called upon to determine and declare the exact extent of the huge piece of land called Mukose.” This cannot be determined, because except for the eastern boundary as shown in exhibit Q, the other boundaries are extremely vague. In my view, it is this vagueness about the extent of the land which has encouraged litigants, opposed to the Asere stool, to harass people who buy land in the area for building and development purposes. But whatever the extent of Mukose lands, I am satisfied that after the decision of the Privy Council in the Adams case no claim for a declaration of title or for trespass in respect of any portion of that land by the Nikoi O’lai stool family of Asere Djorshie against the Asere stool, and all those claiming through the latter stool, ought to succeed, unless the former stool first establishes prior possession or occupation of the area in dispute.

The rights of the Asere stool and the Nikoi O’lai stool family of Asere Djorshie to Mukose lands have been finally determined by the Privy Council’s decision of 24 July 1961. Title to these lands, as between these parties, cannot be litigated ad infinitum.

JUDGMENT OF JIAGGE J.A.

I agree.

JUDGMENT OF ARCHER J.A.

On 7 June 1974, the full bench of the Court of Appeal heard an application for the review of the judgment of the ordinary bench reported sub nom. Robertson v. Nii Akramah II (Consolidated) [1973] 1 G.L.R. 445 in the above consolidated suits, namely, suit 232/61, suit 79/62, suit No. 605/62 and suit No. 607/62. Subject to slight variations

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in the orders of the ordinary bench, the full bench dismissed the application for review in suits Nos. 232/61 and 79/62 and upheld the judgment of the ordinary bench in these two suits. As regards suits No. 605/62 and No. 607/62, the full bench ordered re-trial by the High Court at Accra. Reasons for the judgment of the full bench were reserved.

Just after the Second World War, the government decided to acquire a piece of land for the installation of a wireless and telephone service in the area of the present dispute which may properly be described as North-West Accra. The assessment for the compensation was completed by Korsah J. (as he then was) in 1947 but the amount of compensation was varied by the then West African Court of Appeal in 1948. However, the question of who should be the recipients of the compensation could not be resolved without legal proceedings. Accordingly, by virtue of the provisions of the Public Lands Ordinance, Cap. 113 (1951 Rev.), the matter was referred to the Lands Division of the then Supreme Court sitting in Accra: see In re Public Lands Ordinance; Wireless Station Acquisition (1948) D.C. (Land) ‘48-’51, 34. There were in all nine claimants and the fourth claimant was Nii Teiko Ansah II, the predecessor of the present applicant, Nii Akramah II, Asere Mantse. The fifth claimant was one Nii Amasah Nikoi Olai, the predecessor of the present respondent. The learned trial judge Jackson J. had to decide which of these two claimants was entitled to the compensation as the remaining claimants derived their respective titles through these two, i.e. the stool of Asere and the family of Nikoi Olai. He found as a fact that the Nikoi Olai family had been in exclusive possession of the area affected by the acquisition. Jackson J. stated as follows in his judgment at p. 40:

“The 5th claimant has satisfied me that his family, at the date of the acquisition were the parties in possession of some seven-eighths of that area of land shown as being delineated in pink and marked with the Registration No. Y. 573A. dated 27th May, 1946 and for the reasons already given by me they are in possession as being the owners thereof and, as such, are entitled to receive compensation for seven-eighths of the area of the land.

In respect of the remaining eighth, the 4th claimant is entitled to receive the compensation for that portion.”

In his judgment, Jackson J. explained that to the west and to the east of the land was land not occupied by the family of the fifth claimant but farmed by strangers who paid tolls to the Asere stool. As such the stool was entitled to one-eighth of the compensation. It must be observed that in his judgment, Jackson J. referred to the family of Nikoi O’lai as “owners in possession.”

Before the judgment of Jackson J. (in the Wireless Station Land Acquisition) was delivered on 13 August 1948, the same Nikoi O’lai on 20 April 1948 had issued a writ of summons out of the Ga Native Court claiming:

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“All that piece or parcel of land containing an area of 903.15 acres situate at North of Kaneshie is a portion of land known and called, Muko or Mukose near Abeka in the Accra district belonging to the stool of Asere, and bounded on the north by land belonging to Nikoi Olai stool of Asere and King Tackie Tawiah family land known as Mantse-Man Mukose formerly belonging to Nikoi Olai stool of Asere; on the south by land belonging to Nikoi Olai stool of Asere and Nii Kotei and Nii Ashie family lands; on the west by Akoloo land belonging to Nikoi Olai stool of Asere and Nii Asere Oku and Nii Ashalley family land; and on the cast by Nikoi Olai stool land in charge of Tetteh Amrakese family of Sarkortsosisi, Asere known as Onamroko, is the ancestral stool property of Nikoi Olai of Asere, Accra.

(2)    Fifty pounds (£50) damages for trespass committed on the said land.

(3)    A perpetual injunction restraining the said defendants respectively, the members of their respective families, their respective agents, servants or workmen from entering upon the said land or dealing with or alienating the same or portion thereof.”

The defendants against whom the summons was issued were James Adams, J. E. Bart-Plange, Robert Mensah, Abbeyehe Shamo, Nii Lartey Otoo and Anneitey Abbey. By an order of transfer signed by A. C. Smith, Acting Chief Justice on 22 June 1948, the suit was transferred from the Accra Native Court to the Lands Division of the Supreme Court. Pleadings were ordered and thereafter the Asere stool was joined as co-defendant. On 12 October 1951, counsel for both parties agreed that the writ was defective and accordingly the capacity in which the plaintiff sued was amended to read “Nii Amasah Nikoi Olai, Mantse of Asere Djorshie for himself and representing the stool and subjects of Asere Djorshie.” After a lengthy trial, Jackson J. (the same judge who had tried the Wireless and Telephone Service Land Acquisition case) in Nikoi Olai v. Adams, Land Court, 22 November 1951, unreported, delivered judgment in favour of the plaintiff Nikoi Olai and his family, the present respondent. The following extracts from the judgment are relevant:

“The evidence is perfectly clear that the land at the date of the issue of the writ was Asere stool land and had been Asere stool land for very many years before the issue of that writ.

Quite clearly the plaintiffs’ family which is an Asere family, cannot be dispossessed of this right of farming in this area and to this extent have some title or interest in the land. Equally clearly the principal members and elders of Abbetsewe family could not convey to James Allotey, Charles Okoe Aryee and Emmanuel Tettey Adams, all members of the family, a greater interest or title in the land than the family possessed, and as that family qua family possessed no title or interest in this land—they possessed no title whatsoever by the deed dated 25 October 1947 and when less than six weeks later these three members of that family purported to convey that estate

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to Moushah Captan by their deed dated the 4 December 1947, they conveyed precisely nothing. The property in the land, it follows, remains in the Asere stool, subject to the rights of its subjects and those strangers who have received permission to farm thereon …

I do grant to the plaintiffs a declaration of title that as subjects of the Asere stool they possess    rights of farming in the area edged in pink, subject only to such rights as may have been granted to strangers for farming by the Asere Mantse or one’s possessed by other subjects of the Asere stool.”

As the plaintiff and his family had contended that the land in dispute was their ancestral property, they were dissatisfied with the curtailment of the nature of their rights which Jackson J. had restricted to farming rights only. They appealed to the West African Court of Appeal in Kotei v. Asere Stool, West African Court of Appeal, 4 March 1955, unreported, and on 4 March 1955, Foster Sutton P., Coussey and Hearne JJ.A. dismissed the appeal. Undaunted by this dismissal but determined to vindicate their rights, they appealed to the Privy Council, which was at the time the final court of appeal in the judicial hierarchy of this country: see Kotei v. Asere Stool [1961] G.L.R. 492, P.C.

On 24 July 1961, the Judicial Committee of the Privy Council sitting in London, Lord Denning, Lord Morris of Borth-y-Gest and Mr. L. M. D. de Silva, reported to the then President of Ghana in Kotei v. Asere Stool [1961] G.L.R. 492 at p. 496 that:

“in their opinion the declaration made by Jackson, J. and affirmed by the West African Court of Appeal should be varied so as to grant to the plaintiffs a declaration that they possess such rights in the area edged in green, on the plan, exhibit 1, as are conferred by law on a subject of a stool who is in possession. But inasmuch as the plaintiffs have not succeeded in their claim to be absolute owners free of the Asere stool altogether, and thus have in part failed but in part succeeded, their Lordships will report to the President of Ghana that in their opinion no order should be made as to the costs of this appeal and that the order for costs made by the West African Court of Appeal should be set aside, leaving each party in that court also to pay his own costs.”

Why did the Privy Council vary the judgment of Jackson J.? The following passage from their Lordships’ judgment at p. 495 is pertinent:

“What was the nature of this estate or interest in the land? There was no evidence on this point. Jackson, J. seems to have thought it was a right of farming with no right to alienate except with the consent of the paramount stool. Hence his declaration that ‘as subjects of the Asere stool they possess rights of farming in the area.’ In this he no doubt had in mind the evidence which he had heard earlier in 1951 in cases about the Kokomlemle lands [Golightly v. Ashrifi [1961] G.L.R. 28]. But their Lordships would point out that the findings in the Kokomlemle cases depended entirely on the evidence

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in those cases: and must not be taken to be determinations of law which are of general application. Their Lordships have been referred to a series of decisions in the Land Court in recent years, affirmed on occasions by the Court of Appeal, from which it appears that the usufructuary right of a subject of the stool is not a mere right of farming with no right to alienate. Native law or custom in Ghana has progressed so far as to transform the usufructuary right, once it has been reduced into possession, into an estate or interest in the land which the subject can use and deal with as his own, so long as he does not prejudice the right of the paramount stool to its customary services. He can alienate it to a fellow-subject without obtaining the consent of the paramount stool: for the fellow-subject will perform the customary services. He can alienate it to a stranger so long as proper provision is made for commuting the customary services. On his death it will descend to his family as family land except in so far as he has disposed of it by will, which in some circumstances he lawfully may do. The law on the subject is developing so rapidly that their Lordships think it wrong to limit the right of the plaintiffs in the way that Jackson, J. did.”

This was no insignificant victory for the respondents. The battle had been fought and if only partially won, at least, the farming rights granted them by Jackson J. had been redefined or reclassified by the Privy Council as possessory rights with far-reaching consequences—with power to alienate without the consent of the paramount stool so long as the allodial title vested in the stool is not disputed or challenged. What did the respondents do after the Privy Council judgment? With extreme confidence, they embarked upon a vigorous assertion of these rights. As a result of the perpetual injunction granted by Jackson J. against the Asere Mantse and the other defendants in transferred suit No. 31/1948, the respondent initiated a series of actions against the grantees of the Asere Mantse in respect of all grants affected by the Privy Council decision. Some of these suits were the four suits consolidated in the court below and which are now the subject-matter of this review, namely, suits Nos. L.232/1961, L.79/1962, L.605/1962 and L.607/1962 which will be dealt with later seriatim. After a laborious trial commencing from 2 December 1965 to 2 June 1966 during which ten witnesses gave evidence for the Nikoi Olai family and no less than seventeen witnesses testified for the present applicants, judgment was reserved and was delivered in Robertson v. Nii Akramah II, High Court, 30 September 1966, unreported. The judgment consisted of eleven pages of single-spaced typescript. It repeated what the respondent claimed in each case, what each defendant said and what some of the witnesses testified, and in the concluding paragraphs stated:

(1) that on the evidence as a whole the paramount title of the Asere stool over these lands stands undisputed as asserted in the Privy Council judgment which declared that the Nikoi Olai family were not absolute owners;

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(2)    that as Jackson J. in transferred suit No. 31/1948 had already granted an injunction restraining the Asere stool and its agents from selling the lands, there was no need for a new order of injunction. In any case, if an order of injunction were made it would operate against any successor to the Asere stool which after the departure of the present occupant would have to be a candidate from the Nikoi Olai family. In other words why should the Nikoi Olai family seek an order to restrain themselves;

(3)    the respondent could only claim possessory rights for his family as adjudged by the Privy Council.

Then, in a penultimate paragraph which must have been anathema to the respondent’s family, the learned trial judge revealed his judicial sentiment in the following passage:

“It is submitted on behalf of the defendants, particularly Nii Akramah II, that the plaintiff’s family is claiming absolute title, that they as Asere subjects have been granting lands without paying tolls or accounting to the Asere Mantse, thereby challenging the paramount title of the Asere Mantse, and that being the case the Asere Mantse is withdrawing recognition of any right of the plaintiffs family over the lands, and consequently the Asere Mantse is claiming forfeiture; that it is difficult to see how the Asere Mantse with a paramount title to the lands can be made to deal with the lands with the consent of subjects of the stool. With this submission I agree.

I do not consider that it is necessary or competent for me to make a declaration as sought by the plaintiff, in terms similar to that already made by the Privy Council. On the evidence as a whole the plaintiff cannot succeed in his claim against the defendants as per his writ of summons as filed. There will accordingly be judgment for the defendants.”

The judgment was silent on the question of costs.

The Nikoi Olai family appealed to the Court of Appeal and filed eleven grounds; but two of them gained prominence during the hearing of the appeal, namely:

“(a) The learned trial judge made no effort whatsoever to interpret the judgment of the Privy Council in transferred suit No. 31/1948 and to apply the interpretation or ratio or both thereof to the facts of this case.

(b) The learned trial judge failed miserably to make his own findings of fact on the issues in each of the four suits consolidated.”

The ordinary bench of this court, no doubt were highly impressed by arguments submitted by learned counsel for the Nikoi Olai family and as a consequence embarked upon an analysis of the evidence adduced in the court below, made its own findings and pronounced judgment on 22 February 1973 in favour of the respondent, the Nikoi Olai family (the judgment is reported in [1973] 1 G.L.R. 445, C.A.)

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The present applicants then applied by virtue of section 3 (2) (b) and (c) of the Courts (Amendment) Decree, 1972 (N.R.C.D. 101), for a review (of the ordinary bench) by the full bench. The grounds filed for the review were multifarious but in order to simplify and expedite the hearing of the application, this court narrowed the issues by taking the consolidated suits one after the other.

In the first suit No. L.232/1961, the respondent sued the Asere Mantse and his linguist Boye for entering the Mukose lands at Abeka and for making grants of portions of the land which had been adjudged by the Privy Council in transferred suit No. 31/1948 to be possessed by the Nikoi Olai family. At the trial, ten deeds of gifts (exhibits D1—D10), executed by the Asere stool between 1959 and 1960 (before the Privy Council judgment was pronounced on 24 July 1961) were tendered in evidence. The portions of land affected by these grants were also traced and superimposed on a plan exhibit Q by a surveyor employed by the respondent. The ordinary bench at p. 460 found that these grants “all fell neatly in the area edged green in the plan exhibit Q. That was the area adjudged in favour of the plaintiff s family in the Privy Council suit … the plaintiff s family has made out its case in this suit and ought to get the reliefs it seeks.” As regards suit No. 79/1962, the respondent took action against one Dimson, who apparently on the authority of the Asere Mantse had been making grants of land to strangers for the purpose of founding a Zongo. The respondent’s evidence was that a large portion of the area in dispute fell within the area edged green adjudged by the Privy Council in favour of the respondents. Although the remaining portion fell outside the area edged green, yet the respondent claimed that that area was also part of the Mukose lands. The ordinary bench upheld this claim and found for the respondent.

It will be convenient at this stage to consider the judgment of the Privy Council more closely. What did the Privy Council decide and what was the area affected by that decision? In their judgment, their Lordships stated as follows as reported in [1961] G.L.R. 492 at pp. 494-495:

“In these circumstances it is open to their Lordships to consider the evidence adduced before Jackson, J. in the present case; and they find there was sufficient evidence on which he was entitled to find, as he did, that the Mukose lands were Asere stool lands, in this respect, that the Asere stool had a paramount title. The payment of tolls to the Asere stool and the recognition of headmen in the villages is sufficient proof of such a paramount title in the stool. Nevertheless there was a great deal of evidence to show that, subject to the paramount title of the Asere stool, the Nikoi Olai family had an estate or interest in the Mukose lands. The crucial findings on this point are these: (i) The Nikoi Olai family were the original founders of the village of Mukose: and the land in issue was occupied very many years ago by members of the Nikoi family … (hence the seven-eighths area for which they obtained compensation for the wireless station). But some of it has been used by strangers by the permission of the headmen and in respect of land so occupied by strangers, tolls have been paid to the Asere stool (hence the one-eighth area for which the Asere stool received compensation). It is true that the village of Mukose was abandoned in 1926 but farms have been maintained by the descendants of the old settlers. ‘I am satisfied’, said Jackson, J. in the wireless case, ‘that the Nikoi Olai family formerly occupied the major portion of the land . .. and have since their first settlement … enjoyed all the rights of owners in possession’.

(ii) The Nikoi Olai family have asserted their estate or interest in the land successfully, not only in the claim for compensation, but also in the proceedings against the Abbetsewe family. Furthermore, the head of the family gave evidence that he inspected the land from time to time and asserted their title against anyone who was there. ‘I used to go and inspect the land and if I saw anyone there, I asked him how he got there’. (iii) In the light of this evidence, it cannot be said that the Nikoi Olai family have abandoned their rights. It is true that the village of Mukose was abandoned and fell into ruin but there is nothing to warrant the suggestion that the family ceased to have anything to do with the land such as to warrant the inference of abandonment. Indeed, they have vigilantly upheld their rights.”

The nature of the rights which the Nikoi Olai family enjoyed as re-defined by the Privy Council has already been dealt with. Now what was the area affected by the Privy Council judgment? In this respect reference must be made to the claim of the Nikoi Olai family in their writ of summons against Adams and others in the transferred suit No. L.31/1948. The family claimed an area edged green on a plan ordered by the court, the acreage of which was estimated to be about 903.15 acres. However in paragraph (2) of their statement of claim (see exhibit 3), they averred as follows:

“(2)    The said family of which plaintiff is the head are the owners of all that piece or parcel of land hereinafter more accurately described the boundaries whereof are delineated and edged red in plan signed by F. H. S. Simpson licensed surveyor prepared for the purpose of this suit.”

Then paragraphs (8) and (9) read as follows:

“(8)    The original defendants purported to sell and convey the area edged green in the plan as their family property and wrongfully entered upon the said land and purported to give possession thereof to their said grantees J. A. Quaye and two (2) others.

(9)    The plaintiff therefore claims as in their writ of summons

(1)    Declaration of title

(2)    £50 damages for trespass and

(3)    Perpetual injunctions.”

Paragraph (9) clearly states that the Nikoi Olai family was claiming as in their writ of summons a declaration. Now a declaration as to what? The writ of summons claimed “All that piece or parcel of land containing an

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area of 903.15 acres” which according to paragraph (8) of the statement of claim was the area edged green on the plan. Nevertheless when Jackson J. delivered his judgment in Nikoi Olai v. Adams, Land Court, 22 November 1951, unreported, he pronounced his order in the following terms:

“I do grant to the plaintiffs a declaration of title that as subjects of the Asere stool they possess rights of farming in the area edged pink, subject only to such rights as may have been granted to strangers for farming by the Asere Mantse or one possessed by other subjects of the Asere Stool.”

The Privy Council in Kotei v. Asere Stool [1961] G.L.R. 492 at p. 496 was not satisfied with this order and after varying the rights of the family from farming to possessory rights granted the respondent’s family “a declaration that they possess such rights in the area edged in green, on the plan, exhibit 1, as are conferred by law on a subject of a stool who is in possession.” Their Lordships did not state why the declaration granted by Jackson J. was altered to cover the area edged green only; but it appears from the writ of summons and paragraph (9) of the statement of claim that the area edged green is what the Nikoi Olai family claimed in transferred suit No. 31/1948. In such a case there can be no warrant for any animadversion of the declaration granted by the Privy Council.

In the present case, the respondent pleaded estoppel per rem judicatam and relied on the Privy Council decision in transferred suit No. 31/1948 and claimed that the applicants had trespassed on the Mukose lands of which the Abeka village and the lands in and around the said village are part and pleaded in paragraph (4) of this statement of claim as follows:

“(4) The said Mukose lands of which the Abeka village and the lands lying in and around it are a part—were the subject of litigation in the suit entitled ‘Amon Kotey, etc. v. James Adam & Ors: Asere Stool (meaning the Asere stool of Akotia Oworsika) Co-defendant’ which said suit finally terminated on appeal to the Lords of the Privy Council, by judgment of that Board given on the 24 July 1961 adjudging plaintiffs’ family to be owners in possession of the said Mukose lands.”

Of course, the Privy Council did not use the language pleaded. The Privy Council granted a declaration in respect of an area edged green identifiable on the plan exhibit 1. If res judicata is relied on by the respondent then any trespass alleged by him must fall within the area edged green whether one chooses to call it Mukose or Abeka. When one looks at the plan exhibit A it is obvious that all the grants in the ten deeds of gift exhibit D1 to D10 lie in the area edged green. As the applicants are estopped by the Privy Council decision, then their grantees, who are privies, are also estopped.

So far as these ten grants are concerned, the respondent need not adduce any further evidence to establish trespass to the areas affected by these grants.

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It was seriously urged by learned counsel for the applicants, that there was no evidence that the applicants actually entered the land so as to constitute trespass. This argument no doubt stems from the common law definition of trespass. Clerk & Lindsell on Torts (13th ed.) at p. 733, para.1311 defines trespass thus:

“Trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of another.

‘Every unwarrantable entry on another’s soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to show cause quare clausum querentis fregit. For every man’s land is in the eye of the law enclosed and set apart from his neighbour’s; and that either by a visible and material fence, as one field is divided from another by a hedge; or by an ideal invisible boundary, existing only in the contemplation of law, as when one man’s land adjoins to another’s in the same field.’ The slightest crossing of the boundary is sufficient. ‘If the defendant place a part of his foot on the plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it’.”

The answer to this submission is very straightforward. How did the surveyor, who prepared the plans attached to the various deeds of gift, find his bearings to locate the pieces of land before he prepared the plans? Surely he must have gone to the land as an agent of the donors, the present applicants. Secondly, in almost all the recitals in exhibits D1 to D10 reference is made to the fact that Nii Teiko Ansah II, the former Asere Mantse, had made customary grants at antecedent dates but as no deeds were executed, the reigning Asere Mantse was executing formal deeds of gifts as perpetual evidence of these grants. How does one make a gift of land according to customary law? Is it not essential that the donee should be taken to the land and shown the boundaries of the land in the presence of witnesses? It does not therefore matter whether the respondent adduced evidence of physical entry by the applicants. The court can draw its own reasonable inferences not only from the execution of these documents but also from the fact that the plans attached to these grants can be located in the area edged green on exhibit Q.

The next point raised by learned counsel for the applicants was the thorniest of all the problems. He submitted that as the Privy Council decision restricted the declaration to the 903.15 acres in the area edged green, the respondent could not rely on the Privy Council decision as res judicata in establishing trespass in Abeka village and its surrounding lands which lie outside the area edged green and that the ordinary bench erred in holding that the applicants had committed trespass. How did the ordinary bench treat the matter? The following extract from the judgment of the ordinary bench at p. 456 is relevant:

“The land which the plaintiff called Mukose and in respect of which he litigated in the Privy Council case was described in the evidence and its eastern boundary, at any rate, was set out in the plan exhibit Q. The area of the immediate trespass was clearly smaller and is

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shown on the plan exhibit C and edged green. The judgment of the Privy Council proceeded on the clear basis that the land in dispute was much larger than the green area and that court considered the case not in fragments but on the whole of Mukose. It limited its relief to the green area because that happened to have been the portion sold to Captan which occasioned the litigation. In that sense, it is factually accurate to say that the judgment covered the smaller area edged green. One of the fundamental requirements for a successful plea of estoppel, is that the subject-matter in the former suit must be identical with the subject-matter in the instant suit.

The question therefore is: whether the green area can be said to be identical with the larger Mukose lands.”

The ordinary bench then cited the cases of Aperade Stool v. Achiase Stool (1957) 3 W.A.L.R. 204, C.A.; Frempong II v. Effah [1961] G.L.R. 205, P.C., Robertson v. Reindorf [1971] 2 G.L.R. 289, C.A. and also Re Kujani Bush Forest Reserve; Atakora v. Acheampong, Court of Appeal, 17 July 1967, unreported; digested in (1968) C.C. 27 and held that the plea of estoppel cannot properly be limited only to the green area and that the area edged green being part of the larger Mukose lands, is identical with it in the juridical sense. It is the application of the phrase “the axiomatic mathematical truth that the part is included in the whole” to the doctrine of res judicata which has aroused this controversy. If Granville Sharp J.A. had refrained from making reference to “axiomatic mathematical truths,” perhaps subsequent trial courts would have been spared much mental stress and strain. Courts of law do not apply axioms in resolving issues. They apply maxims, cannons of interpretation and principles. These have all been evolved, enunciated and developed by the courts themselves. Courts of law do not grope in dark spheres in quest for Euclidean axioms or Pythagorean propositions in solving legal disputes; otherwise the reported judgments of some past and present judges, who were wranglers in mathematics in the ancient universities would have been interspersed with mathematical combinations and permutations.

What is the basis for the doctrine of res judicata? In New Brunswick Rail Co. v. British and French Trust Corporation Ltd. [1939] A.C. 1 at pp. 19-20, the House of Lords, per Lord Maugham explained the basis as follows:

“The doctrine of estoppel [per rem judicatam] is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them.”

Public policy demands that there should be termination of disputes and finality or conclusiveness of judicial decisions. This is usually summed up in the Latin maxim interest republicae ut sit finis litium: Private justice also requires that the individual should be protected from vexatious multiplication of suits and prosecutions. This is also expressed in the Latin maxim nemo debet bis vexari pro una et eadem causa or in criminal litigation nemo debet bis vexari pro una et eadem delicto. These are all maxims; they are not axioms.

How does the plea of estoppel operate? At para. 1362 of Phipson on Evidence (10th ed.), the following passage explains its operation:

“In order that a former judgment should conclude the parties thereto or their privies, either as an estoppel or as evidence, the matter in dispute must be identical in both proceedings; though it is not necessary that it should be the only point in issue in either, or that the cause of action should be the same.”

It is the requirement that the matter in dispute must be identical which is the crux of this review. In this respect, it is intended to refer to two local decisions as illustrations. The first is Aperade Stool v. Achiasi Stool (1957) 3 W.A.L.R. 204, C.A. In that case at p. 208 the Aperade stool had sued the Achiasi stool for a declaration of title to “all that piece or parcel of land commonly known and called Amanfupong and Aperade Stool land situate in the western Akim District and bounded on the north by lands belonging to the Stools of Eduasa, Ewisa respectively; on the south by lands belonging to the Stools of Wurakessi; Jambra and Asantem respectively; in the east by lands belonging to the plaintiffs’ Stools and Surasi Stool respectively; and on the west by Akentensu stream and Wurakessi Stool land.”

The defendant stool (Achiasi) defended the action although it did not counterclaim. The Aperade stool claimed ownership of the whole area described above. No plans were ordered for the purposes of the trial. There was substantial traditional evidence adduced but the learned trial judge brushed the traditional evidence aside and held that of the two parties, the plaintiff stool had acted timeously and were entitled to a declaration. On appeal the West African Court of Appeal held that the real question for the court below was whether the Aperade stool discharged the burden of proof required by law and not whether the stool was guilty of leaches. On further appeal the Judicial Committee of the Privy Council upheld the decision of the West African Court of Appeal. This decision therefore operated as res judicata against the Aperade stool in so far as the land or area described in the writ of summons was concerned. Subsequently, the same parties had to prosecute claims before the Reserve Settlement Commissioner who was holding an inquiry into claims to interests in land in an area designated the Bemu River Forest Reserve. Part of this reserve was claimed by both the Aperade stool and the Achiasi stool. The commissioner then ordered the parties to file plans showing the boundaries of the land which was the subject-matter of the dispute finally decided by the Privy Council.

The Aperade stool claimed the whole reserve whereas the Achiasi stool claimed a portion of the reserve which had been specifically named by the commissioner as Block I. It

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became evident that Block I fell within the area which was the subject-matter in the earlier suit. The commissioner therefore upheld the claim of the Achiasi stool on the ground that by virtue of the Privy Council decision, the Aperade stool had lost any claim to ownership of the area. By a majority, van Lare and Granville Sharp JJ.A. the decision of the commissioner was reversed on the ground that, according to dictionary meaning, Block I was not identical with the whole land previously adjudicated upon by the Privy Council. Ollennu J. (as he then was) dissented and agreed with the commissioner’s decision that Block I was part and parcel of the whole area and it could not be said that they were not identical. On further appeal, the Privy Council agreed with Ollennu J.’s reasoning and upheld the commissioner’s decision: see Frempong II v. Effah [1961] G.L.R. 205, P.C. When one has read the relevant judgments, one becomes more convinced that the reasoning of Ollennu J. and the Privy Council is correct and preferable. The judgment of Granville Sharp J.A. was akin to an autopsy on the Privy Council judgment in Aperade Stool v. Achiasi Stool (supra). Granville Sharp J.A. did not understand why the Privy Council agreed to uphold the decision of the West African Court of Appeal when “no declaration of title in favour of either party was subsisting.” See Aperade Stool v. Achiasi Stool (1957) 3 W.A.L.R. 204 at pp. 210-211. But such reasoning is untenable because the Achiasi stool did not counterclaim and although they won they were not entitled to a declaration. The Aperade stool put in issue a whole tract of land with a vivid description of its boundaries and the names of owners of adjoining land. When the commissioner ordered plans, the Aperade stool prepared a plan to show the extent of the land in the judgment against the stool. That judgment categorically stated that the Aperade stool had failed to prove ownership of that whole area. The Reserved Settlement Commissioner found that Block I was part of that area affected by the judgment. Is this not a matter which should have been resolved by common sense or good sense which is the basis of the doctrine of res judicata instead of having recourse to dictionaries to ascertain the meaning of “identical”?

The second case is that of Robertson v. Reindorf [1971] 2 G.L.R. 289, C.A. There the plaintiff, who happens to be nobody else but the present respondent, sued the Onamrokor Adain family of which Reindorf the defendant was the head. Their claim was that the Privy Council had declared the Nikoi Olai family to he owners in possession of lands known as Mukose lands which included Abeka village and other villages. The defendant on the other hand maintained that his family owned the land known as Dome lands. The two lands are different but the real controversy between the parties was what was the true boundary separating the Mukose lands from the Dome lands. The plaintiff relied on the Privy Council judgment which is now one of the subject-matters in this review, and which is not binding on the defendant’s family because they were not parties or privies to it. The defendant’s family also relied on a previous judgment in their favour so far as the Dome lands were concerned. That case was Reindorf v. Amadu [1962] 1 G.L.R. 508, S.C. in which the same

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Onamrokor Adain family represented by Reindorf sued one Amadu and Braimah for working a quarry at Apenkwa village on a portion of the Dome lands belonging to the Onamrokor Adain family. The facts were that the defendants were the licensees of the Onamrokor family but had failed to pay the agreed fees for six months. The then head of the Nikoi Olai family joined as co-defendant. A plan was prepared and the whole of the Dome lands was put in issue and the Onamrokor family was found to be the owners. In other words the western boundary of the Dome lands was judicially ascertained as between the parties to that suit. The quarry was found to be within the Dome lands and nowhere else. When therefore the Robertson v. Reindorf case came before this court, it was held that the whole of the Dome lands had been put in issue in the Reindorf v. Amadu case and therefore the Nikoi Olai family was estopped per rem judicatam through their own head of family who intervened in that suit as a co-defendant.

The two cases of Aperade v. Achiasi (reversed sub nom. Frempong II v. Effah) (supra) and Robertson v. Reindorf (supra) clearly show that once the whole of the land has been put in issue and the dispute has been decided in favour of one party, it is not open to one party in any subsequent proceedings to claim that a portion of that whole is not affected by the previous judgment. The point is based simply on common sense and reason. It is so elementary that it could be reduced into the following reasoning: The court has declared Mr. X to be the owner of the whole land A. The land B is a portion of the land A. Mr. X is therefore owner of the land B. Or take the negative case: Mr. Y has failed to prove his title to the whole of the land C. The land D is a portion of the land C. Mr. Y is therefore not entitled to the land D. It seems that if only the courts will endeavour to ascertain what was put in issue and what was decided, the application of the doctrine of res judicata in this country will be consistent. Recourse to mathematical axioms will lead the courts to unknown philosophical paths and ultimately to Kantian obfuscation. In all such cases it is better to syllogize than to philosophise. Originally, the Nikoi Olai family sued as allodial owners. If they had succeeded then they would have been declared owners of all Asere stool lands and as the whole of Asere lands had been put in issue, all parts or portions of that whole land would have been affected by such a declaration. But on the contrary, they were declared as being in possession of a portion of the Mukose lands subject to rights of the other subjects of the stool.

In the first edition of Spencer-Bower’s Res Judicata (1924), pp. 115-116, the learned author appears to have equated English law with Roman law when he put forward the following proposition:

“for this purpose identity of subject-matter means not only eadem res, but also eadem quaestio,—not only identity of subject-matter in a physical sense, but also identity of subject-matter in a juridical sense.”

However the learned editor of the second edition of the same work, at p. 172, is of the opinion that “the two questions which seemed to Mr.

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Spencer-Bower to be separate are now better regarded as only one—viz: Is the question to be decided in the second proceedings the same as was contested in the first? If it is not, then there can be no estoppel.” This proposition no doubt refers to “issue estoppel” on which judicial pronouncements in both simple and elegant styles will never cease. One of the latest from Lawson J. in R. v. Hogan [1974] 2 All E.R. 142 at p. 145 may be quoted:

“Issue estoppel can be said to exist when there is a judicial establishment of a proposition of law or fact between parties to earlier litigation and when the same question arises in later litigation between the same parties. In the latter litigation the established proposition is treated as conclusive between those same parties. It can also be described as a situation when, between the same parties to current litigation, there has been an issue or issues distinctly raised and found in earlier litigation between the same parties.”

In the present review, if the Nikoi Olai family had put in issue the whole of the Mukose lands showing clearly the northern boundary, the southern boundary and the western boundary, the task of this court would have been smooth-sailing and disputes over tracts of land lying outside the area edged green could have been resolved with less difficulty. On all the plans tendered by them, it is impossible to detect where their western boundary is. Their northern boundary is unknown and their southern boundary is anybody’s case. In such a case, it is extremely difficult and indeed unsafe to conclude that in transferred suit No. 31/1948, the whole of the Mukose lands was put in issue whereas the boundaries were unclear. It is true that in the Frempong II v. Effah case, Lord Guest, delivering the judgment of the Privy Council stated that it was immaterial whether or not the outer boundaries of the whole area were sufficiently and clearly defined. But he was not laying down a new principle of law. What he meant was clearly stated in Frempong II v. Effah [1961] G.L.R. 205 at p. 209: “When it is admitted that Block I lies within the area which was the subject of the decision of the Privy Council, it is immaterial . . .” In other words, on the Aperade stool’s own admission that Block I formed part of the whole tract of land in respect of which they had lost before the West African Court of Appeal and the Privy Council, it was not open to the Aperade stool to say in another breath that they were not estopped because the boundaries of the whole land were not clearly defined. It seems therefore that in order to assert that a piece of land is part of a larger tract of land, that larger tract must have been clearly defined and judicially ascertained to enable the doctrine of res judicata to operate.

On what issues then are the parties in the present suit estopped? First of all, the Nikoi Olai family said they were ancestral owners; in other words allodial owners. The Privy Council said they were not such owners and that the paramount title in Mukose lands was vested in the Asere stool. On this issue, the Nikoi Olai family is estopped. The Privy Council also decided that the Nikoi Olai family had possessory rights in the Mukose land and that so long as they continue to enjoy these rights,

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the Asere stool cannot, by alienation to others, interfere with these rights. On this issue, the Asere stool is estopped. But what is the extent of the area over which the Nikoi Olai family has possessory rights ? In the Wireless case, they were found to be in possession of seven-eighths of the area acquired. In the transferred suit No. 31/1948 they were found to be in possession of the area edged green. What about Abeka village and its surrounding lands which are not included in the area edged green? They came to court as allodial owners. The Privy Council said they were not and they could only, as stool subjects, claim land reduced into their exclusive occupation or possession. The respondent should therefore have proved that Abeka village and the surrounding land was occupied by his family instead of relying on axioms.

When it is recalled that the Privy Council did not upset all the findings of Jackson J. in the transferred suit No. 31/1948 but varied only the nature of the rights of the Nikoi Olai family and the area to which the declaration should apply, then it becomes very pertinent indeed to refer to the findings made by Jackson J. who in his judgment in Nikoi Olai v. Adams (supra) stated as follows:

“During that enquiry (the Wireless case) the present plaintiff’s stool founded its case upon one of the original settlements of the family having been made at the village of Mukose, a place which is now uninhabited and has been permitted to fall into ruins. It was the case of the Asere stool that land to the north of that acquired then was the property of the Asere stool and which land included Mukose.

Mukose appears to have been abandoned in or about the year 1926, shortly after the death of one Djani Kofi who I am satisfied was recognised as the Headman of that village whilst he lived there, and that he was an elder in the plaintiff’s family. That village I am satisfied was an ancient village and was originally peopled by those of the plaintiffs family, and I am satisfied that it was for this reason that the Asere Mantse recognised him as his headman in that town.

The evidence shows that whenever villages of any size have been established on that land, that a headman or Onukpa has been appointed by the Asere Mantse, and whose duty it was to collect tolls from any stranger who might receive permission to farm upon that land. The permission was sought and obtained from the headman, the tolls collected were taken by the headman to the Asere Mantse, and which then a part of his private or stool revenue, i.e. until 1 April 1945, when such profits become one of the sources of revenue of the Native Authority, section 32 (1) (b) of Ordinance No. 21 of 1944.

A copy of a relevant page of the Gold Coast Civil Service List was put in evidence (No. 5) and this does support the oral evidence and which I accept (without that other evidence) that Dzane Kofi was the headman of Mukose in 1914-15 and one Kwamin known as Abeka Kwame was then the headman in the newly formed village

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of Abeka and which appears to have been inhabited practically entirely by strangers from the Northern Territories.”

Jackson J. then relied on the evidence of one witness Dormon who had knowledge of both Mukose and Abeka villages. This is what the learned trial judge said:

“There was one witness who impressed me as being not only truthful, but as being one who had a first hand knowledge of this land for the past 58 years and he was Kofi Dormon.

When he first came to live at Apenkwa, a village just off the land and to the north cast, he was twelve years old.

He knew the old village of Mukose and he says that there were Moshie people living there as well as Dsane Kofi. At Abeka there lived only one man and a woman. At Wuoyeman (just north of Abeka) there lived an old man Sibila (also from the Northern Territories) with his children. The witness obtained permission to farm on the land from the headman Kwamin of Abeka and to him he used to pay his five shillings toll every year until Kwamin died and he then paid to a man called Lamptey. Recently however he was called by the Asere Mantse and told to pay them to one Adjetey. He refused as he had already paid them to Lamptey.

I am satisfied that the tolls collected were paid by the collector to the Asere Mantse and of that fact there appears to be no dispute.”

From the above-mentioned findings by Jackson J. it is evident that the old village of Mukose and the surrounding lands became known as Mukose and was “originally peopled by the Nikoi Olai family.” So far as Abeka is concerned, it appears that Kwamin or Abeka Kwame was the headman who collected tolls from the area preponderantly inhabited by strangers from the Northern Territories. The effect of Jackson J.’s finding is that Abeka village was inhabited by people other than the Nikoi Olai family. It appears that when the area edged green was sold by Adams and others to Moushah Captan, the vendors clearly excluded Abeka village and its surrounding land because obviously it must have been inhabited or occupied by others and the land could not be included in the sale.

There is also one striking fact from Jackson J.’s judgment. Apart from the old Mukose village (which is in the area edged green) which was originally inhabited by the Nikoi Olai family, there was no clear finding as to what other villages on Asere stool land were founded or settled upon by the Nikoi Olai family. These villages had their own headmen who were responsible and accountable to the Asere Mantse for the collection of tolls. The finding of Jackson J. does not suggest that Abeka village with its surrounding land was originally peopled by the Nikoi Olai family, and it is immaterial whether the whole region is now described as Mukose or Abeka. The restriction of the Privy Council’s declaration to the area edged green is therefore understandable.

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As the Privy Council decision affected only the area edged green, Abeka village with the surrounding land was outside it and the Nikoi Olai family could not rely on the Privy Council decision to establish their possessory rights in Abeka village and the lands around the village in order to establish trespass. They could do so by adducing evidence of earlier occupation and possession.

As the quantum of damages (01,000) awarded by the ordinary bench was in respect of the proven trespass in the area edged green and also in respect of the unproven trespass in the Abeka area, it became necessary for this court to reduce the amount from 01,000 to 0800 to be paid jointly and severally by the applicants.

Now suit No. 79/62. In this case the area of trespass, according to the respondent, falls partly but substantially within the area edged green and partly outside it. It was contended by learned counsel for the applicants that the area which Dimson (the defendant- respondent-applicant) was developing as a Zongo is well known as Bubiashie which was not part of the Mukose lands in the possession of the respondent’s family. Moreover, he urged that the area which was acquired for the wireless station was Kpatsakole and not Bubiashie. It was not disputed by both parties that the area of trespass fell substantially within the area edged green and that only a small portion was outside it. It follows that the respondent must succeed on his claim for damages for trespass in the area that fell within the declaration granted by the Privy Council. The ordinary bench appears to have accepted the evidence of the respondent that the land lying west of the area edged green was part of the Mukose lands on the ground that as the whole of the Mukose lands was put in issue in transferred suit No. 31/1948 and as the area edged green must be regarded as identical with the whole of the Mukose lands, then the applicants were estopped by the Privy Council decision.

This process of reasoning has already been dealt with in this judgment and need not be repeated. All that need be said is that it was not a safe approach to the matter and with the greatest respect, the ordinary bench should not have relied on the Privy Council judgment in determining whether trespass had been committed by the applicants in the portion west of the land edged green. The judgment of the Privy Council was simply to the effect that the respondent’s family had possessory rights in the area edged green and no more. As the respondent alleged trespass outside the area edged green, he could not rely on res judicata. He should have led evidence of elective occupation and possession of the area before the trespass was committed. In any case, in Nikoi Olai v. Adams (supra) Jackson J.’s judgment was to the following effect: “I do grant to the plaintiffs a declaration of title that as subjects of the Asere Stool they possess rights of farming in the area edged pink, subject only to such rights as may have been granted to strangers for farming by the Asere Mantse or one possessed by other subjects of the Asere Stool.” This means that whatever rights the respondent’s family had were subject to the rights of strangers who were there

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with the permission of the Asere stool. There is no indication that the subsequent Privy Council decision disturbed this qualification or proviso to the rights of the respondent as formulated in the decision of Jackson J. The Privy Council merely re-designated the farming rights as possessory rights and restricted the area of the operation of these rights to the area edged green. For instance, in the Wireless case, seven-eighths of the land was found to be in the possession of the respondent’s family and the one-eighth in the possession of others, i.e. strangers. Even before the old Mukose village fell into ruins in 1926, Dormon, in his evidence in the transferred suit No. 31/1948 testified that there were Moshie people living in the old Mukose village as well as Dzane Kofl, who according to the Gold Coast Civil Service list was the headman of Mukose in 1914-15 and he must have collected tolls from these Moshie people for the Asere Mantse. The peculiar characteristic of the Mukose lands appears to be that although the Nikoi Olai family people were preponderantly on it, there was also a small trickle of strangers occupying portions of it. In such a case, it is legally impossible to conclude that the respondent’s family were one hundred per cent exclusively in occupation or possession of all the land. That is why it becomes more imperative that whenever trespass is alleged by the family in a court of law, the family should endeavour, if the area of trespass lies outside the area edged green, to prove prior possession. The family should not always rely on the Privy Council decision as their only legal shield and armour.

In this second suit also, the ordinary bench granted the respondent 01,000 damages for trespass on land within the area edged green and also outside it. As trespass outside the area edged green could not be proved by mere reliance on res judicata, the amount awarded by the ordinary bench was reduced to 0800 to be paid jointly and severally by the applicants.

As regards suit Nos. 605/62 and 607/62 this court ordered these cases to be re-tried and in the interest of the parties and in fairness to the new trial judge, the less said about these cases the better in order not to prejudice the trial or pre-judge the issues. In suit No. 605/62, one E. C. Otoo a grantee of the Asere Mantse leased a plot of land to E. Borio & Co., Ltd. In suit No. 607/62, one Victoria Otoo, another grantee of the Asere Mantse, had also leased her plot of land to the same company Borio & Co., Ltd. Relying on the judgments by Jackson J. in the Wireless case and also the Privy Council decision in transferred suit No. 31/1948 the respondent challenged the title of these two grantees to the plots of land in question and sued them in trespass and for recovery of possession. The basis for these two actions was that the plots in question were situated at Bubiashie which was covered by the Wireless case judgment and that Bubiashie was part of the Mukose lands which had been declared by the Privy Council to be in the possession of the respondent’s family. Apart from these two judgments, the respondent testified that when his ancestors settled at Mukose, there was no water in the area and so they travelled to a nearby area called Bubiashie, for water. And because they dug small wells in order to obtain water, the place was called Bubiashie meaning

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“area of small wells.” The respondent also stated that during the Second World War, the then Gold Coast army (or more accurately the former West African Frontier Force) occupied land including the plots of land involved in suits Nos. 605/62 and 607/62 under the then Defence Regulations. When the army vacated the land after the war, the land reverted to the respondent’s family as a result of an exchange of correspondence between the Lands Department and the respondent’s family on one hand, and between the army authorities and the respondent’s family on the other—the letters were tendered in evidence. In effect, the respondent was not relying only on the judgments in the Wireless case and in the case of the land sold to Moushah Captan, but also on independent evidence of possession of the two areas involved in suits Nos. 605/62 and 607/62 before the purported grants to E. Borio & Co., Ltd. The learned trial judge in Robertson v. Nii Akramah II, High Court, 30 September 1966, unreported, as already pointed out, did not make any specific findings but dismissed the respondent’s claim on the ground that “it is difficult to see how the Asere Mantse with a paramount title to the lands can be made to deal with the lands with the consent of subjects of the stool.”

When the matter came before the ordinary bench, the court held that the areas affected were at Bubiashie which was also part of the larger Mukose lands adjudged by the Privy Council in favour of the respondent’s family. In addition, the letters between the respondent’s family, the Lands Department and the army authorities, were considered by the ordinary bench to be favourable to the respondent’s family. In the words of the ordinary bench at p. 461:

“Of these letters, three were dated at varying periods in 1943 and the last one from the Commissioner of Lands, bore the date 4 April 1944. This struck us as acts of ownership ante litem motam, and is, we think weighty evidence in support of the plaintiff’s family. We do not need to go into any further details.”

It must be pointed out that the respondent in his own evidence confirmed that the two pieces of land in suits Nos. 605/62 and 607/62 were outside the area edged green. There was also no evidence that they were adjacent to the rectangular area acquired in the Wireless case. Before us both parties agreed that the two pieces of plots were some distance away. If that is the case then the doctrine of res judicata cannot be relied on by the respondent to establish trespass. Secondly the Privy Council had declared the Asere stool to be the allodial owner of all Asere stool lands including the Mukose lands and that the respondent’s family had only possessory rights in the area edged green. It follows that even if Bubiashie was part of the larger Mukose lands (and it should not be misunderstood that this judgment is saying so, as a re-trial has been ordered) then the respondent’s family could have had only possessory rights in Bubiashie. It is therefore difficult to reconcile these possessory rights with the conclusion by the ordinary bench that the correspondence between the respondent’s family, the Lands Department and the army authorities constituted “acts of ownership ante litem motam.” It is not clear whether

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the ordinary bench meant the allodial ownership. In any case this could not be the meaning in view of the Privy Council’s decision on the issue in respect of which the respondent is estopped. All that the respondent should have proved was his family’s possession of the area in which the two plots are situated. If the area the army occupied during the Second World War was in fact in the possession of the respondent, there should have been a finding of fact by the court of first instance that the two plots actually fell within the area occupied by the army. Acceptance of the evidence of witnesses on this score at the trial that these two plots were in the possession of the respondent’s family before the Second World War could depend also on the credibility of the witnesses. The ordinary bench could not competently assess the credibility of witnesses in the same way as the trial court could have done. The extent of the occupation of the army was not clear. Exhibit H—the letter from the Lands Department dated 4 April 1944 (relied on by the ordinary bench) had at the top as its subject-matter: “Land At Bubiashie—Plan Drg. 163/41 Restoration of.”

The plan mentioned in this letter was not available to the trial court. In that letter, there were three claimants, Nii Amassah Nikoi Olai, C.C. Dormon and Ashalley Oko Amassah, to the seven huts and three kitchens which were to be handed over. These two cases Nos. 605/62 and 607/62 therefore called for a series of specific findings of fact by the learned trial judge some based on the credibility of the witnesses; and in such a case, the safest course for the ordinary bench would have been to remit the case to the court below for re-trial. Although the respondent could not rely on the plea of res judicata to establish trespass committed by the two Otoos, yet the respondent’s testimony was that before 1940 and after 1945 (that is before and after the Second World War) his family was in occupation or possession of land in the area, which was occupied by the army under Emergency Regulations. From this finding of fact, a further finding has to be made, as regards the extent of the land occupied by the army and lastly whether the two plots granted to the Otoos by the Asere Mantse fell within the area which reverted to the respondent’s family. Such an exercise should have been carried out by the trial court. It may be asked why a re-trial was also not ordered in suits Nos. 232/61 and 79/62. The answer is very simple. No useful purpose would have been served. The respondent relied on res judicata and he was able to establish that trespass had been committed in the area edged green. Reference to the plans available to this court was all that was necessary.

In suits Nos. 605/62 and 607/62, the area of trespass fell outside the land edged green and as the respondent adduced other evidence of his family’s possession of the area in dispute, that evidence should have been evaluated by the trial court—this was not done. The power to order a re-trial is a discretionary remedy and must be exercised judicially. In the case of Praka v. Ketewa [1964] G.L.R. 423 at p. 426, S.C. the then Supreme Court stated the following principles:

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“It is true that an appeal is by way of rehearing, and therefore the appellate court is entitled to make up its own mind on the facts and to draw inferences from them to the same extent as the trial court could; but where the decision on the facts depends upon credibility of witnesses, the appeal court ought not to interfere with findings of fact except where they are clearly shown to be wrong, or where those facts are wrong inferences drawn from admitted facts or from the facts found by the trial court. Therefore if in the exercise of its powers, an appeal court feels itself obliged to reverse findings of fact made by the trial court, it is incumbent upon it to show clearly in its judgment where it thinks the trial court went wrong. It goes without saying that if an appeal court sets aside the findings of a trial court without good ground, or upon grounds which do not warrant such interference with the findings made by the trial court, a higher court will set that judgment aside.”

In suits Nos. 605/62 and 607/62, the trial court made no findings of fact whatsoever and in such a situation, the ordinary bench, with all due respect, should have ordered a re-trial. That has been the practice and it is not necessary to cite decisions to illustrate the practice. Indeed the decided cases on the practice are legion.

Now the counterclaim. In each of the four suits Nos. 232/61, No.79/62, No. 605/62 and No. 607/62, the Asere Mantse as co-defendant counterclaimed in the following terms:

“The co-defendant counterclaims for a declaration of title to the said land and a declaration that the Nikoi Olai stool family has committed customary waste and forfeiture and has, therefore forfeited any usufructuary or possessory title the said family might have possessed in any part of the Asere stool land by reason of the said family withholding its customary services and allegiance to the occupant of the Asere stool and by reason of the alienation or grant of absolute or allodial title in the Asere stool land to various persons.”

The respondent in his reply to the co-defendant’s defence and counterclaim denied the allegation that the Nikoi Olai family had withheld customary services to the Asere stool and that there has been any forfeiture. The learned trial judge did not consider the counterclaim at all in his judgment. His final order merely dismissed the respondent’s claim.

The respondent appealed to the ordinary bench against the dismissal of his claim but the Asere Mantse, the co-defendant, did not cross-appeal against the silence of the judgment on the counterclaim. During the hearing of the appeal, the ordinary bench refused to grant an application under rule 32 of the Supreme Court Rules, 1962 (L.I. 218), with a view to considering that counterclaim. Notwithstanding this refusal, the ordinary bench in its judgment dismissed the counterclaim. Of course, this course was not open to the ordinary bench in as much as that court had refused to entertain the application to consider the merits of the counterclaim. After declining jurisdiction, the counterclaim could not legally

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be before that court although it continued to remain on record in the court below as an undisposed of counterclaim.

The counterclaim for forfeiture was a separate claim involving entirely different issues to be resolved by entirely different pieces of evidence. The allegation in paragraph (20) of the co-defendant’s statement of defence contained three accusations:

(a)    that the respondent’s family have refused to render customary services to the Asere stool,

(b)    that the respondent’s family have refused to pay allegiance to the co-defendant,

(c)    that as occupant of the Asere stool the respondent’s family have been alienating or granting absolute and allodial titles or estates to various persons to the detriment of the Asere stool.

The learned trial judge made no findings on these allegations. The ordinary bench also refused to consider them. Without considering and resolving these three issues, that is, either by finding for the counterclaim or by finding that the allegations had not been proved, the ordinary bench dismissed the counterclaim simpliciter. This summary dismissal of the counterclaim was unfortunate and the only course open to this court was to set aside the order dismissing the counterclaim and to restore it to its legal place as an outstanding matter on record in the trial court. Order 21, r. 15 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), provides: “If, in any case in which the defendant sets up a counterclaim, the action of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.” Accordingly the counterclaim is still pending despite the disposal by this court of the respondent’s claim in suits Nos. 232/61 and 79/62, and the Asere Mantse is at liberty to proceed with his counterclaim if he so desires. As regards suits Nos. 605/62 and 607/62, a re-trial has been ordered and it is up to the Asere Mantse to advise himself on what to do with his counterclaim when the re-trial commences.

On the question of costs, this court set aside the costs awarded by the ordinary bench and made no order as to costs in the application for review. As the applicants partly succeeded in suits Nos. 232/61 and 79/62 and the respondents also succeeded partly in both suits, it was fair that each party should bear his own costs not only in this court but also before the ordinary bench. The Judicial Committee was faced with identical results in transferred suit No. 31/1948 and made a similar order as regards costs and there are no special circumstances which should compel this court to mulct one party in costs.

JUDGMENT OF JIAGGE J.A.

I have had the privilege of reading the reasons for judgment so very ably stated by Archer J.A. and I wish to add a few words in support.

In the Wireless Station Acquisition (1948) D.C. (Land) ‘48-’51, 34 Jackson J. at p. 35 framed the issue before him as: “Does the land belong to the Asere Stool (4th claimant) or to the Djani Kofi Family (5th claimant)?” The Djani Kofi family were descendants of one Nikoi Olai who,

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it was claimed, founded the village of Mukose and settled on the surrounding lands. Nikoi Olai was the predecessor of the respondents herein, and in the matter of the wireless land acquisition, the Djani Kofi family claimed the land as its ancestral family land.

The Asere stool (fourth claimant) asserted that there was no such thing as family land in the Asere division. The stool claimed that the land was founded and settled upon by hunters who were subjects of the Asere stool and that the property was stool land. Jackson J. held at p. 38:

“I am satisfied that the 5th claimant’s family [i.e. Djani Kofi’s family] formerly occupied the major portion of the land acquired and which is now the land the subject of this enquiry and have since their first settlement and until the land was taken from them by this acquisition enjoyed all the rights of owners in possession of land subject possibly to the limitation that the land upon which the subjects of the Asere Stool lived could not be alienated without the knowledge and approval of the Asere Stool.”

Jackson J. found “no reason to doubt” the general accuracy of the traditional history as to the manner of the original settlement on the land as given by the fifth claimant—the Djani Kofi family. However, he held at p. 40 that:

“Ownership means the right to the exclusive enjoyment and possession of a thing; ownership is absolute or restricted. In this case the ownership of the 5th claimant’s family is, I find, restricted by the denial of the right to alienate without the consent of the paramount Stool. The 5th claimant has satisfied me that his family, at the date of acquisition were the parties in possession of some seven-eighths of that area of land [to be acquired for the wireless station].”

He held further that the Djani Kofi family were entitled to receive compensation for the seven-eighths of the land. Jackson J. also found that one-eight of the land was in possession of strangers who paid tolls to the Asere stool and held that the stool was entitled to one-eighth of the compensation to be paid for the land.

Although Jackson J. was impressed by the story of original settlement as given by the Djani Kofi family he held that the said family had rights of “restricted ownership” over the area of land that was reduced to possession. To me, it is clear from the judgment of Jackson J. that although he was impressed by the traditional history of settlement given by the Djani Kofi family he did not in fact accept it. Instead, he carefully qualified the title of ownership at p. 40 as “restricted by the denial of the right to alienate without the consent of the paramount Stool.” He however rejected the claim of the Asere stool that there was no such thing as family land in the Asere division.

In the transferred suit No. 31/1948, Nikoi Olai v. Adams (supra), the plaintiff s claim was that land “containing an area of 903.15 acres situate at North Kaneshie is a portion of the land known or called Muko or

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Mukose near Abeka in the Accra district belonging to the stool of Nikoi Olai of Asere.”

Jackson J. in the Nikoi Olai v. Adams case found that “Quite clearly this land in issue was occupied very many years ago by some members of the plaintiff s family and who farmed it to some degree,” and held “I do grant to the plaintiffs a declaration of title that as subjects of the Asere stool, they possess rights of farming in the area edged pink, subject only to such rights as may have been granted to strangers for farming by the Asere Mantse or one possessed by other subjects of the Asere stool. It is pertinent to note that Jackson J. limited the declaration of the plaintiff ‘s title to farming rights of subjects of a stool over stool land.

The issue of the nature of the plaintiff s interest in the land was the subject-matter of a dispute that was finally settled by the Privy Council on 24 July 1961. In that judgment entitled Kotei v. Asere Stool [1961] G.L.R. 492 at p. 496, the judgment of Jackson J. was “varied so as to grant to the plaintiffs a declaration that they possess such rights . . .as are conferred by law on a subject of a stool who is in possession.” The Privy Council held further at p. 495 that:

“the usufructuary right of a subject of the stool is not a mere right of farming with no right to alienate. Native law or custom in Ghana has progressed so far as to transform the usufructuary right, once it has been reduced into possession, into an estate or interest in the land which the subject can use and deal with as his own, so long as he does not prejudice the right of the paramount stool to its customary services.”

The net result of the judgments of Jackson J. in the two cases aforementioned was that the predecessors of the respondents herein had a declaration of title to land which was proved to have been reduced into possession by them. It is no more than the estate or interest in land of a subject of a stool who has reduced the usufructuary right into possession.

In the four consolidated suits before the court, the issue was whether or not the usufructuary right was reduced into possession by the respondents and the respondents must satisfy the court that the area of the alleged trespass was in their possession prior to the date of trespass.

In suit No. 232/61, the ordinary bench of this court at p. 460 found that the ten deeds of gift executed by the Asere stool “all fell neatly in the area edged green in exhibit Q. That was the area adjudged in favour of the plaintiff s family in the Privy Council suit.” The plan, exhibit Q, before this court confirms that the ten plots of land the subject-matter of the action in trespass, all lie within the area edged green and adjudged in favour of the plaintiff s family in the Privy Council suit. Consequently the appellants are estopped by the Privy Council decision.

However, it was submitted by counsel on behalf of the appellants that the Privy Council decision restricted the declaration of title to 903.15 acres of land in the area edged green, that Abeka village and its surrounding lands fell outside the green area, that the respondents could not rely on the Privy Council decision as res judicata in establishing trespass in

[p.336] of [1975] 2 GLR 301

Abeka and all the lands outside the green area. Counsel submitted that the ordinary bench erred in holding that trespass was committed in the area outside that covered by the Privy Council decision. The ordinary bench held that the green area in the Privy Council suit could be said to be identical with the larger Mukose lands in the juridical sense for the purposes of res judicata.

The Nikoi Olai family did in fact put the whole of Mukose lands in issue by claiming it as ancestral stool land which was founded by Nikoi Olai. Jackson J. however held that the family were Asere subjects who had reduced usufructuary rights over Asere stool lands into possession. In the Wireless Station Acquisition suit Jackson J. found that the Nikoi Olai family were in possession of seven-eighths of the area and compensation was paid for only that area.

The title of the Nikoi Olai family was dependent on the area reduced into possession. As subjects of the Asere stool, they cannot be deprived of title once they have reduced the usufructuary right into possession. Neither Abeka nor its surrounding lands were found to be in the possession of the Nikoi Olai family.

Regretfully, we found it necessary under the circumstances to depart from the decision of the ordinary bench that the green area of the Privy Council decision was identical to the larger Mukose lands in the juridical sense.

We accordingly confirmed the judgment of the ordinary bench in so far as it relates to the area of trespass in the area edged green in exhibit C but subject to the variation that it excludes from its operation the village of Abeka and the surrounding lands in the rectangular area in exhibit C.

In suit No. 79/62, one Dimson on the authority of the Asere Mantse gave out plots of land for the building of a Zongo. The respondents herewith claimed that a substantial portion of the land granted by Dimson fell within the green area of the Privy Council decision. The respondents claimed further that the remaining land that fell outside the Privy Council decision area was also Mukose land, and the ordinary bench upheld this claim.

Again, we found it necessary to depart from the decision of the ordinary bench for the same reasons as already given in suit No. 232/61. The respondents’ estate or interest in the land is valid only where the usufructuary right had been reduced into possession. To establish trespass the respondents must prove that they were in possession prior to the trespass complained of.

We therefore confirmed the judgment of the ordinary bench subject to this variation as that court found that a substantial portion of the land fell within the area edged green in exhibit C and the rest outside, it follows that not all the land in dispute fell within the area edged green. If any trespass had been committed it is within the substantial portion, which fell within the area edged green. The portion outside the area edged green cannot therefore constitute part of the area of trespass.

I do not find it necessary to add anything to what had been so ably stated in respect of suits Nos. 605/62 and 607/62 by Archer J.A.

[p.337] of [1975] 2 GLR 301 JUDGMENT OF KINGSLEY-NYINAH J.A.

My brother Archer J.A. has in an able and admirable manner stated our reasons for the judgment we delivered in this matter on 7 June 1974. I have had the privilege of reading and considering his reasons (which is the main decision of this court) and I agree entirely with, and endorse those reasons fully. I only wish to recommend, speaking for myself, that all counsel involved in this matter as well, also, as the principal parties themselves, must use their most persevering endeavours to come to such an harmonious understanding and an amicable and practicable agreement as would considerably cut down and, eventually, put a reasonable stop to needless litigation which does nothing but dissipate good money so urgently needed for human and material development in these difficult times.

JUDGMENT OF ABBAN J.

I have had the opportunity of reading all the judgments and I agree to all of them. I may add that it will be in the interest of all the parties to reflect seriously on the sentiments which my learned senior brother Kingsley-Nyinah has expressed.

DECISION

Suits Nos. 232/61 and 79/62 varied.

Re-trial ordered in suits Nos. 605/62 and 607/62. Action dismissed with costs.

S.E.K.