POKU v. FRIMPONG [1972] 1 GLR 230
COURT OF APPEAL
Date: 19 JULY 1971
BEFORE: AZU CRABBE J.S.C., LASSEY AND ARCHER JJ.A.
CASES REFERRED TO
(1) Robertson v. Reindorf [1971] 2 G.L.R. 289, C.A.
(2) Wadsworth v. Bentley (1853) 23 L.J.Q.B. 3.
(3) Koom v. Awortwi (1929) F.C. `26-`29, 404.
(4) Akyin III v. Abaka II (1939) 5 W.A.C.A. 49, P.C.
(5) Alhadi v. Allie (1951) 13 W.A.C.A. 323. (6) Frempong II v. Effah [1961] G.L.R. 205, P.C.
(7) Bank of West Africa Ltd. v. Darko, Court of Appeal, 4 May 1970, unreported; digested in (1970)
C.C. 74.
NATURE OF PROCEEDINGS
APPEAL from a decision of Sampson Baidoo J. in which judgment was awarded to the respondent on his claim for the cost of some cocoa loads plucked from trees on his land. The facts are sufficiently set out in the judgment of Azu Crabbe J.S.C.
COUNSEL
E. D. Kom (E. C. Djamson with him) for the appellant.
No appearance by or for the respondent.
JUDGMENT OF AZU CRABBE J.S.C.
This is an appeal from the decision of Sampson Baidoo J. who gave judgment for the plaintiff in a case in which the claim against the defendant was for:
“(a) The sum of £G40 10s. being the value of fifteen loads of cocoa which the defendant has wrongfully and unlawfully plucked from cocoa trees on the plaintiff’s land situate at Sankori at a place commonly called Abonyiredesu bounded by the property of Kwabena Poku, and by forest reserve and by the properties of Kwasi Addai, Kwame Nsiah, Haruna and Kwaku Buor. (b) An order of perpetual injunction restraining the defendant or his servants and agents and licensees from entering or in any way dealing or interfering with the plaintiff’s said land.” In his statement of claim the plaintiff alleged that on 3 August 1960 he brought an action in the Brong-Ahafo South Local Court claiming against the present defendant possession of a forest land situate at Sankori
[p.233] of [1972] 1 GLR 230 at a place commonly called Abonyeredesu, the boundaries of which are described in the writ and statement of claim. Judgment was given in favour of the plaintiff on 5 September 1960 and this was confirmed by a judgment of the former Supreme Court dated 3 June 1963. In paragraphs (5) and (6) of the statement of claim the plaintiff averred as follows:
“(5) There are cocoa trees on this land in respect of which the plaintiff holds two judgments entitling him to possession thereof. (6) In defiance of these two judgments, the defendant has audaciously and wrongfully entered the plaintiff’s said land again, and has by himself and his servants and agents wrongfully plucked therefrom and made use for himself fifteen loads of cocoa.”In his statement of defence the defendant admitted the existence of the two judgments pleaded by the plaintiff, but he averred that: “the land, the subject-matter of the present suit, is an entirely different piece of land, distinct from the land described in paragraph (1) of the plaintiff ‘s statement of claim, which the
defendant admits has been adjudged to be the plaintiff’s property.” The defendant denied that he had ever entered the land described in the plaintiff’s statement of claim, and he made the following important averments in the statement of defence:
“(4) The land which the plaintiff now claims from the defendant herein is different from the one he has described in his writ of summons and paragraph (1) of his statement of claim; the plaintiff has done this with the sole purpose of misleading this honourable court, so as to defeat the ends of justice.
(5) The defendant will therefore at the hearing of this suit put the plaintiff to strict proof as to the identity of the subject-matter of this suit and that of the earlier suit. (6) The defendant denies paragraphs (5) and (6) of the plaintiff’s statement of claim, and states further that the boundaries of the land now being claimed by the plaintiff in this suit are as follows: By the properties of Kwaku Seidu, Kramo Badu, forest reserve, Kwame Frempong (plaintiff) and Kwasi Addae, and not as wrongly described in paragraph (1) of the plaintiff’s claim. (7) The defendant states further that he has never had any dispute in respect of his said farm described in paragraph (6) supra, with the plaintiff or anybody else, and he has been in possession of and enjoyed the proceeds from the said farm ever since he cultivated same fourteen years ago.” The issues agreed upon for trial were stated as follows:
“(a) Whether or not the land and farm the subject of this suit is the identical farm in respect of which the plaintiff holds a judgment of the Supreme Court against the defendant.
(b) Whether or not the plaintiff is entitled to the remedies he seeks.” [p.234] of [1972] 1 GLR 230
On 9 March 1966 the High Court, Sunyani, ordered that a plan of the area in dispute be made by a
licensed surveyor, Mr. Issiah Osei-Duah of Kumasi. When it was completed, counsel for the plaintiff
made an application to the court for the plan to be rejected, and on 2 February 1967 the court made the following order:
“Order: In view of the uncertainty, and by consent of both parties, Mr. Nathan Aidoo is appointed surveyor to check up on the accuracy of the plan drawn by Dua and to insert other particulars not already shown.
Plaintiff to deposit £G50. Both counsel to file full particulars of things to be plotted.”
The plan drawn by the surveyor Mr. Aidoo was admitted in evidence, without objection, and was marked exhibit A. The area claimed by the plaintiff is edged yellow on the plan, the area edged green is the area claimed by the defendant. The area in dispute is edged red. Giving evidence in court the surveyor said:
“I went on the land with both parties at the same time to do the survey. I had the plaintiff’s typewritten instructions from his counsel. The plaintiff ‘s counsel gave me a copy of the summons in the previous case between the parties. The summons disclosed the boundaries of the land which formed the subject-matter of the previous suit to be Kwabena Poku, forest reserve, Kwasi Addae, Kwame Nsiah, Haruna and Kwaku Buor. The plaintiff pointed out the boundaries of his claim and I plotted them out. It was the plaintiff who pointed out the domini stump to me as being the head boundary between Kwasi Addai, the defendant and himself. The concrete pillar No. F.R.B.P. 35 was pointed out by the plaintiff as being the head boundary between himself and the defendant. The plaintiff showed me where the defendant plucked his cocoa as a result of which this action was filed.”
The first issue at the trial related to the plaintiff’s plea of estoppel per rem judicatam. Estoppel deriving from a former judgment is of two distinct kinds: (i) “Cause of action estoppel,” which arises between parties by reason of a judgment given in favour of one and against the other with respect to the cause of action relied upon in the first proceedings: Transit in rem judicatam. (ii) Issue estoppel, which is an extension of the former, and it means that when an issue of fact has been raised in any action between two litigants and decided in favour of one, then in any future litigation between the same parties, the loser will not be permitted to dispute that fact. See Robertson v. Reindorf [1971] 2 G.L.R. 289, C.A.
I think it is necessary for a trial judge, in order to avoid confusion, where a plea of estoppel per rem
judicatam is raised, to decide first the nature of the estoppel relied upon.
In this case I think the estoppel on which the plaintiff relied was “cause of action estoppel,” and the onus was, therefore, on the plaintiff to prove the identity of the cause of action before the court with that which was the subject-matter of the judgments in the Brong-Ahafo South Local
[p.235] of [1972] 1 GLR 230 Court and the former Supreme Court. The judgments of the two courts were tendered in evidence by the plaintiff.
In his judgments the learned trial judge made copious references to the evidence in the previous
proceedings, and in one passage of his judgment he said:
“Comparing the evidence adduced by the defendant and his witnesses in the previous trial with the evidence adduced for the defence in the present trial there is not a shadow of doubt that the whole case now put up by the defence is a frame up and a cunning concoction.”
And in another passage the learned trial judge said this:
“In this trial both the first defence witness and the third defence witness contradicted their former testimony and were at pains to try to convince the court that some five persons including themselves were present on the occasion the defendant’s land was being demarcated and that the western boundary was fixed at the Aponapon stream. All these contradictions in the evidence of the various witnesses for the defendant establish without any shadow of doubt that the defendant and his witnesses conspired to deceive the court on the exact location of defendant’s western boundary, the relevant boundary in dispute in these proceedings.”
The first ground of appeal alleges that the learned trial judge erred in law in basing his judgment on
evidence inadmissible per se, therefore resulting in a miscarriage of justice. Arguing this ground counsel for the defendant, Mr. Kom, said that in the previous suit there was no plan, and therefore identity of the land, the subject-matter of this suit, was sought to be established by the previous judgments. Counsel submitted that when a party pleads estoppel per rem judicatam, it is only the writ and the judgment that go to establish the plea. He argued that in the court below, the learned trial judge did not use the description of the land in the writ and the judgment in the previous suit, but the oral evidence in the present case, to determine the identity of the land in dispute.
In my view, where a party in a suit relies on “cause of action estoppel,” the burden of establishing the
identity of the subject-matter of the previous litigation with that of the second suit lies on the party who alleges the judgment in the previous suit as a bar. He discharges this burden by first producing in evidence (i) the record of the judgment in the previous suit, and (ii) the pleadings in that former suit. And if, by comparison between (i) and (ii) on the one hand and the pleadings in the case before the court he satisfies the court of the possibility of the two causes of action being identical, he will then proceed to give positive evidence of the identity. In Spencer-Bower and Turner, The Doctrine of Res Judicata (2nd ed.), pp. 372-373, there are the following two passages in which the onus and proof on a plea of “cause of action estoppel” have been discussed:
[p.236] of [1972] 1 GLR 230 “449. The burden of alleging, and, having alleged it, of establishing this identity lies upon the party who sets up the former judgment as a bar. Such onus is prima facie discharged by production of the record of the judgment, and of the pleadings, if any, in the former proceedings, and by reference to the pleadings (if any) in the second proceedings. If, on the mere comparison of these documents, it appears that the former judgment was in respect of a cause of action, or an offence, which could not, ex facie, have been the same as the cause of action, or the offence, on which the subsequent action or prosecution is founded, – which is a question of law, – the plea of former recovery, or (as the case may be) of autrefois convict, fails in limine. If, however, it appears, on such comparison alone, that there is a possibility of the two causes of action, or the two offences, being identical, there being nothing on the face of the documents to negative such possibility, then the plea is valid and adequate in point of law, and the party setting up the plea must proceed to establish the identity as a fact. 450. The plea having averred the identity, it is for the opposite party to allege the absence of such identity, either by pleading nul tiel record, if he desires to set up that the effect of the former judgment has been incorrectly stated in the plea so as to show an identity which, on the production of the actual record, will not appear, or by some other form of special replication or reply; and, if any prima facie evidence is adduced in support of the identity, it is for him to displace it by counter-evidence, unless he is content to rely solely upon what is disclosed by the record of the two proceedings, when produced.” In Wadsworth v. Bentley (1853) 23 L.J.Q.B. 3, Crompton J. said at p. 5: “I think that the rule is what I have mentioned, that the record when produced must be such as to show on its face that the cause of action in the second case may be the same as that for which the judgment has been recovered in the former action.”
The judgment relied upon must be one granting relief and remedy to one of the parties, and it is
immaterial that the judgment was in rem or inter parties, or by default of appearance or pleadings, or was a judgment obtained by consent. The pleadings consist of the statement of claim delivered by the plaintiff;
the statement of defence, which is the answer of the defendant; the reply, which is the plaintiff’s answer to the defence; and all subsequent pleadings, which are rarely delivered, such as the rejoinder, the surrejoinder, the rebutter and the surrebutter. Where the judgment was obtained in proceedings before a native court or a local court it is sufficient to produce only the writ of summons and the record of the judgment.
In this case there was produced before the High Court not only the writ of summons and the judgment in the proceedings before the Brong-Ahafo Local Court, but also the judgment of the old Supreme Court (marked exhibit B and exhibit C respectively). The former judgment in [p.237] of [1972] 1 GLR 230 exhibit B could not operate as a bar to the present proceedings, unless these proceedings are founded upon the same “cause” as that upon which the judgment in exhibit B proceeded. Since exhibit B was tendered in evidence for the limited purpose of establishing the “cause,” the sole duty of the court in regard to this exhibit was to compare these documents (the writ of summons and the record of judgment) with the pleadings in the instant case. I think that in so far as the learned trial judge purported to use the evidence in exhibit B to contradict witnesses who gave evidence for the defendant at the High Court, he was in error.
It has, therefore, been submitted in this appeal that a miscarriage of justice was occasioned by the learned trial judge relying on the inadmissible oral evidence in exhibit B. In Koom v. Awortwi (1929) F.C. ‘26-’29, 404, the trial judge having based on inadmissible evidence a finding that the defendant and his witness were not telling the truth, it was held by the Full Court that it would be dangerous to allow the judgment to stand, and the appeal was therefore allowed, and the case sent back for rehearing. This case seems to lend support to the submission on the first ground of appeal. In contrast to the Full Court’s decision is the judgment of the Judicial Committee of the Privy Council in Akyin III v. Abaka II (1939) 5 W.A.C.A. 49. In that case the main ground of appeal argued before the Privy Council was that the trial judge and the Court of Appeal were influenced in their decision by inadmissible evidence and that the appeal should be allowed upon that ground. In rejecting this argument, Sir Lancelot Sanderson, who delivered the opinion of the Privy Council, said at p. 55:
“Their Lordships’ conclusion is that although there was certain evidence admitted which should not have been admitted, there was sufficient evidence, apart from the inadmissible evidence, to justify the decision at which the two Courts in Africa arrived, and consequently that the appeal should be dismissed with costs.”
And in Alhadi v. Allie (1951) 13 W.A.C.A. 323, the plaintiff recovered judgment against the defendant
for damages for malicious prosecution. The trial judge admitted as against the defendant certain
inadmissible evidence, and, to some extent, relied upon it on the issue of malice, but there was other
evidence supporting the judge’s conclusions. It was held that the misreception of the inadmissible
evidence was not fatal, because, after excluding that evidence, there was ample evidence to support the findings of fact.
It seems to me that where in a civil appeal it is alleged that the misreception of inadmissible evidence has occasioned a miscarriage of justice the true test is: Excluding the evidence misreceived and the
impression that evidence made on the mind of the trial judge, is there sufficient evidence aliunde to
support the judgment? If there is, the complaint will be of no avail.
Applying this test in the present case, I am satisfied that there is ample evidence to support the finding of fact by the learned trial judge. [p.238] of [1972] 1 GLR 230 The first witness who gave evidence for the plaintiff was the surveyor, Nathan Amporfrom Aidoo. He surveyed the area in dispute on the orders of the court and prepared the plan, exhibit A. He went on the disputed land with the parties and had with him a copy of the writ of summons in the previous case between the parties. The plaintiff showed his boundaries to him, and the area where the defendant committed the trespass, and these are indicated on the plan. It was never suggested to the surveyor that the
boundaries pointed out to him by the plaintiff were different from those described in the writ of summons in the previous suit.
The plaintiff himself gave evidence, and the important part of his testimony is as follows:
“I pointed out my boundaries in the presence of the defendant and the surveyor plotted same out. I have a boundary with the defendant starting from a domini tree then to a denya tree near to a pillar both being on the boundary. From the domini stump to the denya tree and pillar the defendant’s cocoa farm is on the right hand side. The boundary continues from the pillar along the forest reserve boundary till you come to a wawa tree which stands on my boundary with Kwaku Buor’s land. Buor’s land starts from the wawa. The boundary continues to an akasaa tree which stands on the triple boundary with my land, Buor’s land and Haruna Moshie’s land. From the akasaa tree you go to an esa tree, then a wawa tree and then to a flower which stands on the triple boundary with my land, Haruna Moshie’s land and Kwame Nsiah’s land. There are flowers planted on my boundary with Kwame Nsiah. You then go to my boundary with Kwasi Addai’s forest land. There is an akasaani tree on my boundary with Kwasi Addai; after the akasaani you go to a tiamatiama or edinam tree then an onyina tree. After the onyina tree you go to Kwasi Addae’s cocoa farm which forms boundary with my land till you come to an asanfra tree which is on my boundary with Kwasi Addae’s cocoa.
From the asanfra tree you go to the domini stump which stands on the triple boundary of my land, Kwasi Addae’s cocoa farm, and the defendant’s cocoa farm. The first litigation flared up as a result of the defendant cultivating the area between the domini stump and the asanfra tree where the defendant has since then planted orange trees which are at the moment still young and not bearing fruits. The area within the boundaries I have described belongs to me. The defendant came up to pluck cocoa near the wapupuo tree so I sued him. I was not the person who planted that cocoa the defendant plucked as a result of which I brought this action, but the cocoa was included in the area granted to me after I had given the drink of £G500. It was not actually sold to me.”
In rejecting the defendant’s contention that the western boundary of his land with the plaintiff’s land runs along the Aponapon stream to the wawa tree on Kwaku Buor’s land, the plaintiff said:
“It is not true that the area of the first action is between the river Aponapon and the wawa tree on Buor’s boundary. Kwasi Addai who [p.239] of [1972] 1 GLR 230 is a boundary man is dead only two to three months ago, but his labourer Abongo Frafra knows the triple boundary is at the domini stump. He attended the survey. During the previous case the river Aponapon was not mentioned by the defendant as being a boundary.” Then again in cross-examination the plaintiff said:
“It is not true that the defendant had cultivated up to the Aponapon river when I first went to the land. I don’t know that it was the defendant who cultivated the cocoa farm from which he plucked the fifteen loads which gave rise to this action … It is not true that the first litigation affected the land from Aponapon stream to Haruna Moshie’s farm. The boundary features in the first action were the forest reserve, Kwaku Buor, Haruna Moshie, Kwame Nsiah and Kwasi Addai. The Aponapon stream was never mentioned in the first action.”
After the plaintiff’s evidence, the court made an order that certain persons, who had inspected the
disputed land when it was taken away from the defendant by the Sankorihene and given to the plaintiff, should accompany the surveyor to the land and identify the boundaries to him. Two of these persons, who subsequently gave evidence for the plaintiff, were Kwame Nsowaah and Peter Kwadzo Kru. According to the surveyor these witnesses gave more land measuring 6.27 acres, to the plaintiff, but they both substantially supported the plaintiff’s evidence that his eastern boundary started from the denya tree near the first reserve pillar FRBP 35 down southwards to the domini stump as shown on the plan. They emphatically denied that the Aponapon stream formed the boundary between the plaintiff’s land and that of the defendant, as claimed by the defendant.
The learned trial judge accepted the evidence of Kwame Nsowaah and Peter Kwadzo Kru, and he found as a fact that the true location of the boundary between the parties was from the domini stump in a straight line right up to the denya tree standing near the concrete pillar FRBP. 35. He therefore held that the defendant had committed trespass when he plucked cocoa in the “wawa-pupuo” area plotted on the plan.
In my opinion there is abundant evidence to support the finding and conclusion of the learned trial judge, and there has been no miscarriage of justice.
The second ground of appeal alleges that the trial judge erred in law in placing the onus of proof on the defendant and thereby failed to examine the evidence of the plaintiff as critically as he did in respect of the defendant. This complaint against the judgment was the result of the learned trial judge re-opening a “cause of action” already determined and allowing the parties to re-litigate the issues. But I think that a careful examination of the learned trial judge’s judgment makes it clear that this contention is untenable.
During the course of the hearing, the learned trial judge made observations which made it obvious that he fully appreciated that the onus of proof lay on the plaintiff. At one point in the proceedings, when the learned trial judge was making an order that persons who inspected the disputed land should identify it to the surveyor, he said: [p.240] of [1972] 1 GLR 230 “The onus of establishing the true limits of the land granted to the plaintiff and which formed the
subject-matter of the earlier litigation is on the plaintiff. I therefore order that he pays the extra cost required by the surveyor to re-inspect the land and plot out what those four witnesses state to be the land taken away from the defendant by the Sankorihene.”
And at another point he said: “What are the boundaries of the land so granted to the plaintiff? This is the only issue to be thrashed out.” Again he ordered:
“Let the evidence be restricted to only those matters helping to prove or disprove that issue of res judicata.
The purpose of this trial is to find out the limits of the land granted to the plaintiff and which formed the subject-matter of the first case between the parties.”
In his judgment the learned trial judge set out the circumstances which led to the previous action, and reproduced the writ of summons in that suit. He then proceeded to state that in the instant case before him the plaintiff was contending that the defendant had, despite the previous litigation, trespassed on the area again and plucked cocoa growing thereon. The learned trial judge continued: “I have very carefully considered the plea of estoppel put up by the plaintiff.” From this point he went on to consider the evidence of Kwame Nsowaah and Peter Kwadzo Kru relating to the exact boundaries of the land allotted to the plaintiff. It was after dealing with the plaintiff’s case that the learned trial judge proceeded to examine the evidence led on behalf of the defence . In doing so, the learned trial judge might have been more critical than when he was examining the plaintiff’s evidence, but that is far from saying that the learned trial judge placed the onus of proof on the defendant. In this case the onus was, in my view, placed squarely on the plaintiff, and he successfully discharged it. The second ground of appeal must therefore fail.
In the course of his judgment the learned trial judge said: “The 6. 27 acres of cocoa planted by the
defendant in the rectangular area to the west of the said boundary as shown on the plan exhibit A is on the clear evidence of the plaintiff ‘s second witness, also a portion of the plaintiff ‘s land.” It has been argued by counsel for the defendant in this appeal that the learned trial judge was wrong in awarding this area to the plaintiff. It is said that the plaintiff never claimed any area outside the yellow line, and reliance is placed on the evidence of the surveyor. The surveyor said in evidence that the area shaded with violet pencil, about 6.27 acres, was alleged by the two witnesses, Kwame Nsowaah and Peter Kwadzo Kru, to belong to the plaintiff, although the plaintiff himself did not claim it. A subsidiary, but nonetheless an important, issue which arose in the course of the trial was whether the eastern boundary of the plaintiff ‘s land was along the Aponapon stream, or started from the denya tree near the forest reserve pillar FRBP. 35 down southwards to the domini stump.
[p.241] of [1972] 1 GLR 230
The surveyor said that the two witnesses pointed out the latter as the plaintiff’s eastern boundary with the defendant. The plaintiff also pointed out the same boundary, which is almost a straight line running south from the forest reserve pillar FRBP. 35 down to the domini stump. The plaintiff’s evidence was reinforced by Kwasi Addai’s caretaker, Adongo Frafra, that the domini stump is the common boundary between Kwasi Addai, the plaintiff and the defendant. The plaintiff ‘s southern boundary was with Kwasi Addai. If the evidence of the plaintiff (especially the portion reproduced in this judgment) and his two witnesses is accepted then the rectangular 6.27 acres must clearly be part of the plaintiff’s whole land. It is axiomatic that a part of a subject-matter is identical with the whole, and therefore, where a person’s claim to a portion of land is dismissed by a court of competent jurisdiction, he is estopped per rem judicatam from asserting in future proceedings a claim to a part of the larger whole in respect of which his claim failed. It is immaterial whether the boundaries are clearly defined: See Frempong II v. Effah [1961] G.L.R. 205, P.C. The plaintiff might not have specifically claimed this area, but it is impossible for anyone else to own land within the area encompassed by the boundaries described by the plaintiff. It is difficult to reconcile the surveyor’s evidence with the rest of the evidence, and on balance I think the learned trial judge’s conclusion is much more rational, and is amply supported by the evidence. The third ground of appeal must also fail.
The fourth and final ground of appeal alleges that the costs awarded against the defendant are excessive and must be reduced. In this case the learned trial judge fixed the plaintiff’s costs at N¢350.00, inclusive of counsel’s. The award of costs in any proceedings in the High Court is in the discretion of the court or judge, and where this is done judicially, its exercise will not be interfered with by an appellate court. In Bank of West Africa Ltd. v. Darko, Court of Appeal, 4 May 1970, unreported; digested in (1970) C.C. 74, this court held that it will only review the discretion, if it is exercised on material that is illegitimate, or violates some principle of substantive right. The onus is on the appellant to show that the discretion had been wrongly exercised, and he has failed to discharge this onus. Accordingly this ground of appeal must fail.
In the result, I would dismiss this appeal.
JUDGMENT OF LASSEY J.A.
I agree.
JUDGMENT OF ARCHER J.A.
I also agree.
DECISION
Appeal dismissed.
