Division: IN THE HIGH COURT (LANDS DIVISION), CAPE COAST
Date: 30TH OCTOBER, 1959.
Before: ADUMUA-BOSSMAN J.
JUDGMENT OF ADUMUA-BOSSMAN J.
(His lordship referred to the history of the case, examined the evidence of the plaintiff and his witnesses, and continued: -)
From the foregoing examination of the evidence of the plaintiff and his two witnesses, it appears sufficiently clear that the sum-total of it falls very far short of establishing title. The trial-Court, in the light of that evidence alone and without regard even to the defendant’s evidence, was amply justified in finding that the plaintiff had failed to prove that title to the land on which his claim to recovery of possession necessarily depended.
But even if the plaintiff s family did have title to the land at all (which was strenuously denied by the defendant), it seems to me that, in any event, the admissions of the plaintiff and his two witnesses establish two situations, in either of which he is legally precluded from maintaining his claim. These admissions establish, as the first of these two situations, estoppel by acquiescence of conduct, in that the defendant’s family were allowed to obtain adverse possession of the parcel of land in dispute, as against the family of the plaintiff, and have been allowed to retain it from the time of the death of Tumfu Kwa right up to the date of the present proceedings. According to them, the period is about 15 years.
It was pointed out by the West African Court of Appeal in the case of Adu v. Kuma (3 W.A.C.A. 240 at p.241) that:
“There are a number of cases where the Courts have refused relief by way of decreeing possession to a plaintiff who has slept
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on his rights, and others where in a dispute as to ownership long undisturbed possession has been accepted as evidence of title.”
And in the subsequent case of Fiscian v. Nelson & anor. (12 W.A.C.A.1) M’Carthy Ag.C.J. was referring to the same legal situation when he said: –
“The view was expressed by the Full Court in the Bokitsi Concession Enquiry (1902, Renner, 239) that a former owner would not be allowed to claim land where he had stood by for a long time while someone else occupied the land and incurred pecuniary commitments under the impression that he was entitled to the land, notwithstanding that prescription is unknown to native customary law and that no statutory limitation applies to the case. This obiter dictum has been followed in many decisions, and the rule it enunciated is well established. The period of time which will justify the Court in acting upon it varies greatly according to the circumstances.”
If, therefore, for a period of 15 years the plaintiff s family have sat by and allowed the defendant’s family to occupy the land, and, in the words of M’Carthy Ag.C.J. (supra) “to incur pecuniary commitments under the impression that they were entitled to the land” (by paying money to redeem the land, and spending money to establish villages and cocoa plantations on the land, as is established by the plaintiff s own admissions) then I have no hesitation in holding that in the circumstances of this particular case the plaintiff s family are estopped by their conduct.
The trial-Court, however, held upon the undoubtedly cogent evidence of the co-defendant (which was not challenged) that he was about 72 years old at the trial of the action, and that he had grown up to find his relative Kwesi Gyan (occupant of his family stool) in control of the land in dispute. At that time the land was reported to have been purchased by Essi Bosuah, sister to Kwesi Gyan, and that the occupation by the defendant’s family had been for some 80 years or more. If that be so, the dicta of Verity C.J. (Nigeria) in the case of Suleman & anor. v. Johnson (13 W.A.C.A. 213 at p.216) would seem to be very apt:
“When land upon which no occupational rights have been granted, but into possession of which strangers enter and exercise acts inconsistent with the possession of the owners, then at once the owner is put upon enquiry . . . In the present case the adverse possession is for nearly 50 years, for the last 22 years of which at
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least, the occupiers were exercising such overt acts of ownership as would have provoked the owner to action if he desired to assert his won claim to ownership and possession. At no time during that period of 50 years did the family attempt to assert their rights . . . I am satisfied that this course of conduct not only excludes their right to possession . . . but also created a position in which it would be inequitable to hold that they are now entitled to rely upon native law and custom to support their claim to any rights of ownership whatever.”
The second situation which the admissions of plaintiff and his witnesses establish is estoppel per rem judicatam, i.e. by a former adjudication concerning the same subject-matter. This estoppel arises from the judgment in the action which Kweku Essilfie took against the defendant in regard to this same land. In that action Kofi Nkrumah (the present plaintiff s immediate predecessor as Head of his family) was subpoenaed, and gave evidence for Kweku Essilfie, who lost his action.
In respect of an identical situation which arose in the case of Akwei v. Cofie (14 W.A.C.A. 143), the West African Court of Appeal set out the legal position as follows:—
“It is obvious that the appellant was vitally interested in the result of the case before Smith J. It was the validity of the title he had conveyed to Faris which was in issue in that case, and although joinder under Order 3, rule 5 is discretionary, we have no doubt, if an application to be joined as a defendant had been made by him, that it would have been granted by Smith J. It has been repeatedly held by this Court and the Courts in England that if a person was content to stand by and see his battle fought by somebody else in the same interest, he is bound by the result, and should not be allowed to re-open the case. As Lord Penzance said in Wytcherley v. Andrews, “That principle is founded on justice and common sense. The Court looks to substantial justice and that which right reason requires.”
Since Akwei v. Cofie the principle has been affirmed in the Privy Council in the case of ofori-Atta II v. Bonsra II ([1958) A.C.95), where Lord Denning said:
“It seems to be the recognised thing in this part of West Africa for all persons with the same interest in a land dispute to range themselves on one side or the other. Sometimes they apply to be joined as parties. On other occasions they regard the named party as their champion and support him by giving evidence. If he wins they reap the fruits of victory. If he fails they fall with him and
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must take the consequences. It is now 25 years ago that the Chief Justice drew attention to this way of looking at litigation. (See Yode Kwao v. Kwesi Cokor (1 W.A.C.A. 167); Ababio v. Kanga (1 W.A.C.A. at p.255)). It has led the Court of Appeal in West Africa to look for a principle to meet the situation, and they have found it in the principle stated by Lord Penzance. (See Akwei v. Cofie (14 W.A.C.A. 143)).”
In the result, therefore, it appears to me that not only did the plaintiff fail completely to prove title to the land which he claimed, but it was clearly established that he was legally estopped from claiming by any title which he may have had, or any other rights whatever in the land. The decision of the trial-Court is accordingly upheld, and the appeal is dismissed.
