Basis of the doctrine and requirement of identity of the matter in dispute
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.”
Burden and mode of proving identity of the cause of action
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.
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.
Cause of action estoppel and issue estoppel distinguished
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.
Effect of an earlier declaration of possessory title on later claims against the stool
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.
Issue that might have been but was not raised in the earlier suit
Where a party has had opportunity in one suit to traverse an issue and he failed to traverse it, he would be estopped from re-litigating the identical issue in a subsequent suit. Thus in Hoystead v. Commissioner of Taxation6 Lord Shaw, delivering the judgment of the Privy Council, said: “[T]he same principle—namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties’ rights to rest applies and estoppel occurs.” The point there is that for a party to be estopped, he must have had the opportunity to traverse an issue but failed or neglected to traverse it. The principle involved is stated in Halsbury’s Laws of England (3rd ed.), Vol. 15 at p. 185: “It is not enough that the matter alleged to be concluded might have been put in issue, or that the relief sought might have been claimed. It is necessary to show that it actually was so put in issue and claimed.”
I confess that I am not impressed by that argument. It is true that no court had made a direct declaration as to the validity or otherwise of the sale by auction of the farm; but as the defendants were claiming the farm by reason of a sale and purchase at a public auction under a writ of fi.fa., and the plaintiff was claiming by right of succession, a judgment in favour of the defendants inferentially meant that the sale on which they rely was valid and regular. That being the case I am of the view that the matter cannot be relitigated. In any case, as I have already stated, the plaintiff could have been under no illusions as to the basis of the second defendant’s claim in the Bompata-Juaso Local Court. It was then open to her to test the validity of the sale by a direct action to set aside the sale on the ground of fraud or illegality. This she failed to do but chose to go about the matter in an indirect manner by action claiming ownership. She cannot therefore complain now that ownership in the second defendant has been declared by the court in the action she took. She is in my view effectively estopped from litigating the matter again.
Judgment obtained by fraud as an answer to res judicata
The law on the point is, that where a judgment has been obtained by fraud, one of two remedies is open to a party who seeks to avoid it; he may either institute an action in the appropriate court to set the judgment aside on the grounds of the said fraud, or he may institute a fresh action raising the identical issues as those in that other suit.
Judgment on a whole tract as binding on a portion of it
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.
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.
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.
Use of evidence in the earlier proceedings on a plea of res judicata
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.
