PENIANA AND OTHERS v. AFFRAM [1966] GLR 220

Division: SUPREME COURT

Date: 28 FEBRUARY 1966

Before: SARKODEE – ADOO C.J., MILLS-ODOI AND

BRUCE-LYLE JJ.S.C.

CASES REFERRED TO

(1) Tei Angmor & Co. v. Yiadom III [1959] G.L.R. 157, C.A.

(2) Ababio II v. Catholic Mission (Priest-in-charge) (1935) 2 W.A.C.A. 380.

NATURE OF PROCEEDINGS

APPEAL from the decision of the High Court, Ho, giving judgment for the plaintiff in his claim for a declaration of title, damages, and perpetual injunction to the land claimed. The facts are sufficiently set out in the judgment of the Supreme Court delivered by Bruce Lyle J.S.C.

COUNSEL

Hayfron-Benjamin (with him Tekpe Doku) for the appellants.

E. D. Kom for the respondent.

[p.222] of [1966] GLR 220

JUDGMENT OF BRUCE-LYLE J.S.C

Bruce-Lyle J.S.C. delivered the judgment of the court. This is all appeal from the judgment of Simpson J. sitting in the Land Court, Ho, and dated 4 June 1960. The plaintiff-respondent (hereinafter referred to as the plaintiff) took an action against the defendants appellants (hereinafter referred to as the defendants) in the Local Court B of Peki State for a declaration of title to an extensive area of land west of Tsito, £G50 damages for trespass, an order for recovery of possession and perpetual injunction. This cause was later transferred to the Land Court, Ho, where pleadings were ordered. The plaintiff in his statement of claim based his claim on an outright sale of the land described in the writ to his late father by one Bie (deceased). He averred that the land had been in his father’s and in his own possession for about 62 years and that seven years prior to the issue of the writ, the defendants, members of the defendants’ families and their licensees had trespassed on the land and had been making farms thereon.

The defendants in their statement of defence denied any sale of the land to the plaintiff’s father and averred that the land in dispute was the property of the first and third defendants’ family and had been their family’s property from time immemorial and pleaded estoppel by res judicata and by conduct. They also pleaded possession from time immemorial. The defendants further counterclaimed for a declaration of title, £G100 damages for trespass and an order for perpetual injunction.

Evidence was led by both parties in support of their respective claims and the learned trial judge, in a well-considered judgment, dismissed the counterclaim of the defendants and sustained the claim of the plaintiff. Against this judgment the defendants have appealed to this court.

Not less than fourteen grounds of appeal were filed but nine of them were canvassed and they are: “(1) The learned judge was wrong in law in overlooking the important principle of law that a plaintiff must succeed on the strength of his own case.

(2) The learned judge was wrong in accepting the evidence of the plaintiff’s title because it was not proved.

(3) The plaintiff failed to prove the extent of the land alleged to have been sold to his predecessor in title by Bie and Bansah.

(4) There was no proof of the sale being valid according to native custom of the area alleged to have been purchased by the plaintiff’s predecessor in title.

(5) The learned judge decided the case on the supposed weakness of the defendants’ case instead of deciding the case on the strength of the plaintiff’s case.

(6) The plaintiff herein failed satisfactorily to evidence a radical and possessory title of the plaintiff to the area in dispute.

(7) If there was any such boundary, it is an issue in a suit pending in the High Court, Ho, undetermined.

(8) The judgments relied on in the judgment in the instant case, are res inter alios acta and consequently inadmissible and irrelevant.

(9) The learned judge was manifestly wrong in his conclusion on the estoppel in the case of Kwao Komla v. Boafo Affram because the words ‘the appeal is therefore quashed’ cannot mean that the decision on the appeal is deferred pending final decision in the case of Kofi Tsui v. Ahli Kuma as stated by him.” In support of grounds (2), (3), (4), (5) and (6), which were argued together, learned counsel for the defendants in effect submitted that there was no evidence of sale by customary law and therefore the sale alleged by the plaintiff was invalid and relied upon the case of Tei Angmor & Co. v. Yiadom III.1 He further submitted that the extent of the land sold was not identified and therefore the extent of the land sold was not proved.

On the first leg of learned counsel’s submission, we find that in the instant case there was no necessity for the plaintiff to provide evidence in proof of the custom performed at the time of the sale to his late father. This sort of proof, in our opinion, is essential in cases where the issue of the validity of the sale is between the vendor and purchaser or between persons claiming through them as in the case of Tei Angmor & Co. v. Yiadom III (supra) relied upon by learned counsel. In this case there is abundant evidence on record as to this sale; there was evidence by the plaintiff himself who tendered judgments in his late father’s favour as against the vendor; there was also evidence by the plaintiff’s second witness, N. K. Agbo, the vendor’s successor of the sale of the land in dispute to the plaintiff’s late father and it is most significant that this witness is an adjacent boundary owner. With the mass of evidence of the sale, it was left to the trial judge to consider the weight of that evidence and this he did by accepting as a fact that there was a valid sale of the land in dispute to the plaintiff’s late father by Bie.

On the second leg of the submission that there was no proof of the extent of the land alleged by the plaintiff to have been sold to his late

[p.223] of [1966] GLR 220 father, a scrutiny of the evidence of the plaintiff and his witnesses demolishes this submission. The plaintiff called evidence of boundary owners and they all deposed to the fact that the plaintiff’s father and the plaintiff have both been in long possession of the land in dispute. If therefore the plaintiff has been in long possession of the land on the strength of a sale to the plaintiff’s late father, we do not see how any absence of evidence as to the identity of the land sold can affect the findings of fact by the learned trial judge on the issues of long possession and sale. Again absence of evidence as to the identity of the land sold can be material in cases where the issue of validity of a sale is raised in a claim between the vendor and the purchaser or persons claiming through them as in the case of Tei Angmor & Co. v. Yiadom III (supra) cited by learned counsel. In short we find that the case of Tei Angmor & Co. v. Yiadom III is in no way applicable to the instant case. On the totality of the evidence as adduced in support of the plaintiff’s claim, we are satisfied that the plaintiff discharged the onus placed on him and that the learned trial judge’s acceptance of the plaintiff’s case as against that of the defendants is amply supported by the evidence on record.

On the seventh ground (which is ground ten in the grounds of appeal) that the judgments relied upon by the learned trial judge in his judgment are res inter alias acta and consequently inadmissible and irrelevant, learned counsel referred to that part of the judgment which mentioned the actions fought as a result of the sale to the plaintiff’s late father. There appears on the record litigation in 1925 and 1928 in which the plaintiff ‘s father sued one Adatsi Bansah, who together with Bie sold the land to the plaintiff ‘s father, and who is not a predecessor of any of the defendants, and the following is what the learned trial judge said about the result of that litigation:

“In 1925 the plaintiff’s father sued Adatsi Bansah in the Peki Native Tribunal ‘to show cause why he bought the land from you at Awalime and you stopped him not to plough it.’ The court found Adatsi Bansah guilty ‘because he who is the owner of the land cannot prove any proper boundary.’ There seems to have been no doubt in the mind of the court that there had been a sale of land by Adatsi to the plaintiff’s father and that land extended to the Tsave river (see p. 143 of exhibit B).

Adatsi Bansah appealed to the Acting Commissioner of the Eastern Province who dismissed the appeal holding that the land sold to the plaintiff’s father on the first occasion extended to a tea tree on the east and on the second occasion extended to the Tsave stream in the south. It is not clear which tea tree is meant unless it is the tree on the eastern boundary of the land claimed by the plaintiff marked ‘tea felled and stump burnt.’ There is no

[p.224] of [1966] GLR 220 tea tree shown on the western boundary of the land claimed by the third defendant which he said marked the extent of the land bought by the plaintiff’s father.

The plaintiff’s father brought another action against Adatsi Bansah in 1928 for refusing to show the boundaries of the land he had bought. Judgment was given against the defendant in default of appearance. Although there is no evidence that the custom alleged by the defendants to be essential to a valid sale of land had been performed the courts in these earlier cases were evidently entirely satisfied that the sales had taken place . . .” It is quite evident from the evidence and from the judgment of the learned trial judge that the judgment in these actions were tendered not to operate as res judicata but as the learned trial judge rightly said to show that the sales by Bie and Bansah to the plaintiff’s late father had taken place. The principle of law is that a judgment in a previous land suit is admissible in a subsequent suit though one of the parties to the subsequent suit was not a party to the former suit; such a judgment is admissible as evidence of acts of possession and evidence of exercise of acts of ownership, but not as establishing res judicata and this principle was followed in the case of Ababio II v. Catholic Mission (Priest-in-Charge).2 On this principle we find that the learned trial judge was right in admitting these judgments and acting upon the same. The other judgment was in respect of litigation in 1947 to which the learned trial judge referred as follows:

In 1947 Kofi Tsui brought an action in Peki Native Court B against Kwao Kwamla for trespass on his Awalime land. The action was transferred to the Land Court, Accra. In due course Kofi Tsui died and was succeeded by N. K. Agbo, who was substituted for him, Abba Kwasi the present third defendant was substituted for Kwao Kwamla and Agya Wia the predecessor of the present first defendant was joined as co-defendant. Judgment was given by Korsah J. in 1953 in favour of the plaintiff.

In my view the judgment concludes that the ‘plaintiff has successfully proved that he and his licensees have been in occupation of the land claimed as indicated in the plan made by Mr. A. E. Kpekata, licensed surveyor marked A for more than 50 years . . .’ A copy of that plan was used in the present case (exhibit A). [p.225] of [1966] GLR 220

The defendant and co-defendant appealed to the West African Court of Appeal and the appeal was allowed on the ground that the court below overlooked the evidence of the sale to S. B. Affram including the judgment of the Provincial Commissioner’s Court, already mentioned, the effect of which evidence was that the plaintiff had no locus standi as the alleged trespass was clearly within the land alleged to have been sold to Affram.”

We do not see how the judgment in the 1947 litigation can in any way be considered as res inter alios acta as the first and third defendants were parties to that suit. In the circumstances we find no substance in this ground. On the whole of the evidence adduced by the plaintiff, we are satisfied that the plaintiff discharged the onus placed on him and no doubt succeeded on the strength of his own case. On the next ground argued by the learned counsel that the judge erroneously overlooked the defendants’ effective occupation of the land, we are satisfied that the learned trial judge in his judgment carefully considered the evidence adduced by the defendants and had this to say on the evidence of occupation particularised under this ground:

“The first defendant was consistently evasive. He gave no evidence of traditional history apart from saying that the land was first settled by his ancestor Agyavia and claimed to have a large village on the land with hundreds of coconut trees. The village is marked on the plan in the area claimed by Fia Kwadzo according to the surveyor—the trees are not. He claimed a palm grove in the northern part of the area and a fishing trap on the Abiakpetre. These also are not shown on the plan. He claimed a hunting area and grassland but admitted there was nothing to indicate occupation in these areas except ‘small small food farms’ in the hunting area. There are no boundary marks on his western boundary except small small trees’ not shown by the surveyor. East of the eastern boundary of the land in dispute the Abiakpetre stream, the land belongs to Fia Kwadzo he said. No representative of Fia Kwadzo (who had been the second defendant) was called. The plan shows Fia Kwadzo as owner of an area west of that boundary and the surveyor gave evidence of a dispute between them when the first survey was made. Extending from the area claimed by the first defendant through the area claimed by the plaintiff and into the area in the east which the first defendant is content to leave to Fia Kwadzo are two large food farms claimed by the first defendant. According to the surveyor they are recent farms. [p.226] of [1966] GLR 220

The first defendant called a most unimpressive first witness — his cousin — who began by saying that he lived at Tsito then remembered he had lived all his life and was still living at Wia Kofe on the land claimed by the first defendant. He had a fishing trap at the confluence of the Abiakpetre and the Tsave which he had pointed out to the surveyor but it was not shown on the plan. There were 60 tenants on the land from each of whom he collected £G3 per annum which he paid to the first defendant. The first defendant must have forgotten this or considered it too trivial to mention. He had a palm plantation and a hut on the strip claimed by the plaintiff but these were not shown by the surveyor—because he was a Peki man according to the witness.”

There is no doubt whatsoever that the learned trial judge did not overlook the evidence of occupation but gave it the requisite consideration and drew out his conclusions which in our opinion are the proper conclusions and this ground should also fail.

On ground (9) learned counsel urged that the words “the appeal is therefore quashed” in the judgment in the case Kwao Komla v. Boafo Affram (exhibit E) should have been construed by the learned trial judge to mean that the appeal was dismissed and therefore operated as an estoppel against the plaintiff. A judgment to operate as an estoppel must be clear, unambiguous and determine finally the issues between the parties. The learned trial judge in applying this principle to the judgment said as follows: “In his pleadings the third defendant claimed that the plaintiff was estopped from denying his title to the northern portion claimed by him by a judgment of the Native Tribunal of the Fia of Awudome at Anyirawase in a suit Kwao Komla v. Boafo Amanie Affram in 1943. Kwao Komla is the previous head of the Tronsu family and Boafo Amanie Afram is the present plaintiff. The plaintiff’s claim was for a declaration of title to all that piece and parcel of land known and called Anfor Kpetornu land. Judgment was given for the plaintiff. The defendant appealed to the highest native tribunal at Peki. The relevant parts of the judgment on appeal read as follows: ‘The plaintiff-respondent’s witness stated the disputed land is neither for the plaintiff respondent nor the defendant-appellant but rather claiming same to be his, and there be a dispute still pending re the said land before Fiaga’s tribunal between the plaintiff-respondent and Kofi Tsui. All parties were in agreement with the witness that the said pending dispute relates to the present case which is on appeal.

[p.227] of [1966] GLR 220

If such be the case the tribunal could see no reason as to entertain the appeal. The appeal is therefore quashed.’

The dispute re the ownership of the land lies between the plaintiff-respondent and his witness the vendor, now pending before this tribunal. All parties to be using their cocoa farms cultivated thereon, but not to destroy any valuable tree and cultivate any new farms pending the final decision in the case Kofi Tsui v. Ahli Kuma. Each party to suffer its own costs.

Notwithstanding the words ‘The appeal is therefore quashed’ this can only mean that a decision on the appeal is deferred pending the final decision in the case referred to. It is admitted by the defendants that the appeal was never finally decided.

Whatever may have been the cause of the delay the question of ownership of the land in dispute in that action has not been finally settled. The Peki court clearly was not satisfied that the respondent—the third defendant’s predecessor—was the owner of the land as found by the lower court. The judgment of the Anyirawase court does not therefore in my opinion operate as an estoppel.”

We agree with the line of reasoning of the learned trial judge and the conclusion he arrived at and find that the words in their present context cannot be deemed to mean that the appeal before the Anyirawase court was dismissed. We also find no substance in this ground. On the ground that the judgment is against the weight of evidence we find that the judgment is amply supported by the evidence.

On the above consideration we find no substance in this appeal and the appeal is therefore dismissed with costs for the plaintiff fixed at £G121 10s. or ¢291.60.

DECISION

Appeal dismissed.

S. K. T.