ROBERTSON v. REINDOR [1971] 2 GLR 289

DIVISION: IN THE COURT OF APEAL

DATE: 29 MARCH 1971

BEFORE: AZU CRABBE, AMISSAH AND ANIN JJ.A.

CASES REFERRED TO

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

(2) Long v. Gowlett [1923] 2 Ch. 177; 92 L.J.Ch. 530; 130 L.T. 83.

(3) Outram v. Morewood (1803) 3 East 346; 102 E. R. 630.

(4) Aperade Stool v. Achiase Stool (1957) 3 W.A.L.R. 204.

(5) Frempong II v. Effah [1961] G.L.R. 205, P.C.

(6) Ohene of Agogo v. Omanhene of Kumawu (1940) 6 W.A. C.A. 18.

(7) Baker v. Medway Building and Supplies [1958] 1 W.L.R. 1216; [1958] 3 All E.R. 540, C.A.

(8) Addai v. Omori, Court of Appeal, 14 April 1969, unreported; digested in (1969) C.C. 64.

(9) Kingston’s (Duchess) Case (1776) 20 St.Tr. 355; (1776) 1 East P.C. 468.

(10) Thoday v. Thoday [1964] P. 181; [1964] 2 W.L.R. 371; [1964] 1 All E.R. 341, C.A.

(11) Fidelitas Shipping Co., Ltd. v. V/O Exportchleb [1966] 1 Q.B. 630; [1965] 2 W.L.R. 1059; [1965] 2 All E.R. 4; [1965] 1 Lloyd’s Rep. 223, C.A.

(12) Carl-Zeiss-Stiftung v. Rayner and Keeler Ltd. (No. 2) [1967] 1 A.C. 853; [1966] 3 W.L.R. 125 [1966] 2 All E.R. 536; 110 S.J. 425, H.L.

(13) Mills v. Addy (1958) 3 W.A.L.R. 357.

(14) King v. Hoare (1844) 13 M. & W. 494; 153 E.R. 206. 15 Badar Bee v. Habib Merican Noordin [1909] A.C. 615, P.C.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court sustaining the claim of the respondent in respect of a piece of land at a disputed border. The facts are fully set out in the judgment of Amissah J.A.

COUNSEL

A. E. Akuoko (Dr. Seth Twum with him) for the appellant.

Nelson-Cofie for the first respondent.

Joe Reindorf for the second respondent.

[p. 291] of [1971] 2 GLR 289

JUDGMENT OF AMISSAH J.A.

It is not disputed that the plaintiff’s family, the Nikoi Olai stool family (hereafter called the “Nikoi Olai family” for short) are the owners of a tract of land called Mukose lands. It is also not disputed that adjacent to the Mukose lands is another tract, known as Dome lands, owned by the Onamrokor Adain family (hereafter called the “Onamrokor family”) of which the defendant, now respondent, was the head. The real controversy in this case is as to the proper boundary which demarcates these respective lands. The plaintiff, now appellant, draws his relevant boundary at a place which the respondent says eats into their Dome lands while the respondent takes a boundary which the appellant says lies within their Mukose lands. Thus we have the all too familiar situation in disputes of this kind where each of the parties lays claim to a parcel of land lying in between undisputed properties belonging to them. The question for the trial court was whether the appellant’s claim to that parcel of land was sustainable. The court found that it was not. From that decision the appellant now appeals to us on a number of grounds. Before the merits of the appellant’s case on the evidence can be discussed, however, one hurdle needs to be cleared. That is, whether the issue for determination raised by this case is not res judicata. It was pleaded in the defence to the plaintiff’s claim that in an earlier suit, Reindorf v. Amadu [1962] 1 G.L.R. 508, S.C. between the respondent and the Manche Ankrah family of Accra as plaintiffs against Amadu and Braimah, which the appellant’s predecessor in title, Nii Amasah Nikoi Olai (later substituted by Nii Amon Kotei) as the head and lawful representative of the King Tackie family of Asere Djorshie joined as co-defendant (hereafter referred to as the Amadu case), the land now claimed as part of the Mukose lands by the appellant was the subject of the dispute between the parties. According to the pleadings, that same land was then claimed by the appellant’s predecessor in title who then represented the King Tackie family of Asere Djorshie, a branch of the Nikoi Olai family. Judgment was given in that case for the present respondent by the High Court and was affirmed by the then Supreme Court. And the effect of that judgments said the respondent, was to estop the appellant’s family from laying claim to that same land ever again.

The reply by the appellant to this pleading was twofold. First, he pleaded that in the earlier case referred to, the present respondent, then as plaintiff, sought a declaration of title and ancillary relief only in respect of a quarry site in the area. Therefore any estoppel per rem judicatam, if at all operative, should be limited to the quarry site and not be enlarged in effect to cover the greater area now claimed. Secondly, the appellant stated that the parties in the Amadu case were not indentical with those in the present case, in that Nii Amon Kotei, the original plaintiff in the present case, and the predecessor in title to the appellant, who as acting head and representative of the Nikoi Olai family brought this action, acted not in that capacity in the Amadu case, but represented the interests of the Tackie Tawiah family, an entity whose interest was not identical with the Nikoi Olai family. And to support this point, it was alleged that the Nikoi

[p.292] of [1971] 2 GLR 289

Olai family had applied to be separately joined in the Amadu case, but had been turned down. The learned trial judge carefully examined these contentions. With regard to the question as to identity of the parties, she found that the Tackie Tawiah family for whom Nii Amon Kotei had acted in the Amadu case was a smaller unit within the larger Nikoi Olai family and that in the defence filed by his predecessor, Nikoi Olai Amasah as co-defendant, he was described as “Head of the Nikoi Olai family of Asere Djorshie, Accra.” The traditional evidence given in the Amadu case as to how the co-defendants came to acquire title to the land was the same as that given in the present case on behalf of the appellant; the villages claimed were also the same. When Nii Amon Kotei was substituted for Nikoi Olai Amasah in the Amadu case, he was not only the head of the Tackie Tawiah family but he was also head of the larger Nikoi Olai family as well. If the parties were not identical, they were at least privy to each other. In the circumstances the trial judge dismissed the claim that the parties were different. In this I agree with her. As to the extent to which the Amadu case could be used as an estoppel the learned judge made the following pronouncement:

“On the question of estoppel I have had the advantage of reading the judgments, exhibit 5 (the judgment at the trial) and exhibit 6 (the judgment on appeal in the same case). In exhibit 5 the claim was in respect of the quarry site shown on exhibit 4 within the area surrounded by the yellow line which was the claim of the plaintiff in the Amadu case. The first witness for the plaintiff in this case admitted that the area in dispute in the Amadu case was part of the Mukose lands, the subject matter of the present suit. In the Amadu case defendant herein as plaintiff therein claimed successfully that the quarry site was part of the Dome lands. Although the claim before the court in the Amadu case was in respect of only the quarry site, the issue fought was the ownership of the whole area now in dispute. The learned commissioner made some general observations on the title of the larger area distinctly put in issue.

The verdict found however was limited to the area of claim in the writ. The Supreme Court confirmed the judgment of the trial court in exhibit 6 … Had the verdict found in the Amadu case been on the larger area put in issue in that case, I would have had no hesitation in declaring that the plaintiff herein is effectively estopped. I am satisfied however that the Amadu case raises a res judicata in respect of the quarry site and effectively estops plaintiff from claiming the quarry site only.”

This gives powerful support to the argument put forward before us by learned counsel for the appellant, Mr. Akuoku, that the Amadu case should be taken, if at all, as creating an estoppel only in respect of the quarry site. But the question is whether the trial judge’s approach to this particular problem was the right one.

[p.293] of [1971] 2 GLR 289

It is true that the declaration made by Mr. Commissioner Gwira who tried the Amadu case was in terms of the claim submitted to him and that claim was for a declaration of title to the quarry site. But Mr. Commissioner Gwira came to the conclusion that the present respondent was entitled to the declaration only because the quarry site fell within the Dome lands as proved by him. The extent of the Dome lands and of the Mukose lands in the area was put in issue in that case as a decision thereon was taken. As Korsah C.J. reading the majority judgment of the Supreme Court in the Appeal, said in [1962] 1 G.L.R. 508 at p. 511:

“It will be observed that although the original claim related to the quarry only, the subject-matter of the suit was extended to embrace a much larger area of land which plaintiffs claim their ancestor had acquired over two hundred years ago; as the result, the evidence adduced by the plaintiffs was partly of tradition and partly of occupation and possession by members of the family and tenants or licensees. The defendants also adduced evidence of tradition and of occupation and possession by members of their family and tenants or licensees. Apart from the oral evidence both parties tendered in evidence judgments which each claimed operated as estoppel against the other in previous litigations with regard to portions of the land which the plaintiff called ‘Dome’ and the defendant called ‘Mukose’.”

Then later Korsah C.J. said at p. 514:

“The learned commissioner’s finding ‘That they [plaintiffs] have proved that they are owners of all that land known as Dome land as shown on exhibit C by their possession and occupation, and trespass has been committed’, is in my view supported by evidence on the record.”

The Dome land shown in the plan exhibited as C in that case includes the land now in dispute. Thus a decision was taken by the court as to the ownership of the land in dispute as between the parties. And so long as that decision stands, the issue should not be made the subject of fresh litigation between these same parties or their privies. At this stage I think it pertinent to point out that counsel for the appellant in connection with another previous judgment pleaded in the case argued that as by the time the Supreme Court dealt with the Amadu case there was a judgment of the Privy Council in respect of the same land pronouncing the appellant’s family substantial owners of it, it was not open to the Supreme Court to take this view. I shall presently deal more fully with that case. For present purposes, it is sufficient to say that I think that contention is wrong, simply because the parties before the Privy Council in that case were not the same as the parties in the Amadu case, nor had the present respondent any connection with them. I am, in the case now before us, with respect, unable to subscribe to the view that the application of the estoppel raised between the parties should be limited to the quarry site. In Long v. Gowlett [1923] 2 Ch. 177 the owner of a water-all brought an action to restrain the riparian owner of [p.294] of [1971] 2 GLR 289 land higher up the river from obstructing his access to that land along one bank, the north bank, of the river for the purposes of repairing the bank and cutting weeds. He based his claim to relief on the allegation in his statement of claim that he had a prescriptive right to an easement to pass along both banks of the river for these purposes. The action was dismissed. Subsequently in an action against his successor in title to restrain him from interfering with the other bank the argument was raised that the operation of the earlier judgment should be restricted to the north, thus leaving the south bank free from prior judicial decision and open for a fresh adjudication. It was held, even though the specific claim earlier was only in respect of access along the north bank, that failure in that action operated as an estoppel against the successor in the subsequent action in respect of the south bank. In the course of his judgment Sargant J. dealt with an argument similar to what we have heard in this case in the following manner at p. 193:

“[T]he first question that I have to deal with is that of res judicata. Mr. Greene for the defendant admitted that the former action did so operate, and completely estopped the defendant, as regards any right to come on the north bank for the purpose of repair or removing weeds under any title whatsoever. But he contended that the subject matter of that action was limited to this small right; and that the judgment dismissing the action did not necessarily include, or operate as an estoppel in respect of, any similar right with regard to the south bank. I am, however, unable to take this view. The right pleaded and relied on in that action was one entire right to come on both banks, or either bank, of the river for the purposes in question; and, though the act of obstruction complained of was only in regard to the north bank, it was pleaded as a violation of the right as alleged, that is, as an entirety. The act of obstruction being admitted by the then defendant—the present plaintiff—and no distinction being drawn by him between any right in respect of the north bank and any similar right in respect of the south bank . . . , it seems to me that the complete dismissal of the action was incompatible with the existence of the right claimed, and involved the negation of it.” Reference may also be made to the earlier case of Outram v. Morewood (1803) 3 East 346 the facts of which bear an even closer resemblance to the case before us. A plaintiff sued for trespass to a mine and the plea of the defence put in issue his title to the whole area under which the vein trespassed upon was situated. He recovered damages for the trespass. A successor to the defendant trespassed upon another part of the mine and put in issue this plaintiff’s ownership of that particular vein. It was held that he was estopped by the judgment in the former suit from relitigating the plaintiff’s title to that particular vein, since it was within the limit of the area of the bigger land, the ownership of which was traversed in the previous suit.

[p.295] of [1971] 2 GLR 289

In the course of his judgment Lord Ellenborough C.J. said this at p. 355:

“[I]t is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery of itself in an action of trespass is only a bar to the future recovery of damages for the same injury; but the estoppel precludes parties and privies from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them.” As I have said before, the court in the Amadu case made the declaration of title to the quarry site and pronounced that there had been a trespass thereto only because it decided that the site fell within the Dome lands as proved. The fact that the declaration was limited to the quarry site does not, in my view, confer a privilege on the same party against whom that judgment went to trespass on other parts of the Dome lands as determined by the court to belong to the successful party. If it were otherwise estoppel would serve a very limited and totally ineffectual purpose in putting an end to litigation. One who has been adjudged guilty of trespass in respect to a part of land, the title to the whole of which was put in issue, can continue trespassing on any number of different parts of that same land as his ingenuity can find, and with each fresh allegation of trespass will argue that as no concluded judgment has been given against him in respect of that particular part, the title to that ought once more to be tested in court. On that basis, litigation will never end. It is accepted, however, that in the interest of all concerned, it should. Ollennu J. in his dissenting judgment in Aperade Stool v. Achiase Stool (1957) W.A.L.R. 204, a dissent which was upheld by the Privy Council (sub nom. Nana Darko Frempong II v. Mankrado Kweku Effah [1961] G.L.R. 205, P.C.), illustrated by example the ridiculous consequences that would flow from limiting the effect of a judgment to the exact, identical, extent of the claim. There the question was whether a subsequent action over a portion of a larger piece of land was precluded by an earlier judgment between the parties on the larger area. The case before us presents what, in a way, may be described as the converse situation. In either case the claim that the same parties or their privies have the right to relitigate title to different parts of an area, title to which has once before been put in issue and been determined by a competent court would lead to the same undesirable consequences, and therefore, ought to be discouraged.

I now come to the other previous judgment pleaded in the case. Unlike the Amadu case, this second judgment was pleaded by the appellant, the plaintiff at the trial. It was pointed out by counsel on his behalf, that there was this other judgment with regard to the land in question which pronounced that the land substantially belonged to the appellant’s family. I use the word “substantially” advisedly, because the Privy Council also recognised that the ownership was subject to certain customary services [p.296] of [1971] 2 GLR 289 to the paramount stool. That other case was entitled Nii Amasah Nikoi Olai, etc. v. J. Adams and Others, Asere Stool, Co-Defendant (hereafter referred to as the “Adams case”). That case arose out of a sale of Mukose land by a former occupant of the Asere stool to one M. Captain. The Nikoi Olai family brought the action claiming that the land was their ancestral land. Jackson J. who tried the case found for them but limited the family’s rights vis-a-vis the Asere stool to farming; they could alienate the land only with the consent of the stool. The West African Court of Appeal affirmed that decision. The Privy Council however varied the limitation, expanding the family’s usufructuary right somewhat to keep pace with the rapidly developing customary law in this sphere. The Privy Council recognised that the usufructuary right of the subject of a stool was transformed into an interest in the land once he had reduced it into possession, which entitled him to use it and deal with it as his own, so long as he did not prejudice the right of the paramount stool to its customary services. He could alienate it to a fellow-subject without obtaining the consent of the paramount stool, as the fellow-subject would perform the customary services. He could alienate it to a stranger, so long as proper provision was made for commuting the customary services. On his death it would descend to his family as family land, except in so far as he had disposed of it by will which in some circumstances he might lawfully do. This was the nature of the right which the Privy Council recognised as subsisting in the present appellant’s family.

The argument founded on this was to the effect that as the plan drawn for the purpose of the Adams case showed the extent of the appellant’s family land, and that this land included the present disputed area, and as the courts had declared in favour of the appellant in that case , so he and his family had been adjudged the owners, if not of the land itself, then at least of the interest described by the Privy Council in all that area so demarcated as the appellant’s family land, including the land presently in dispute. The present respondent was, according to this thesis, therefore estopped by record from claiming to the contrary. This was the submission, which I said earlier, was put forward by counsel as precluding the Supreme Court in the Amadu case from taking the view that it did, the Privy Council decision in the Adams case being given just before the Supreme Court’s in the Amadu case.

The fundamental weakness in that otherwise attractive argument lies in the fact that the Onamrokor family which the respondent represents was not a party to the Adams case. Nor can it be held privy to any of the parties. The plaintiff in the Adams case who is also the appellant in this case brought his action in the earlier case against the alienators of what he claimed to be his family land. With those alienators the Onamrokor family has no connection. The Asere stool joined as co-defendant. To this stool the Onamrokor family owes no allegiance and has no relation, it being, according to the evidence, a subject of the Gbese stool. It is the appellant rather who is the subject of the Asere stool. And as has been noticed earlier, one of the issues which had to be resolved in the Adams case was the relationship between the appellant’s family and

[p.297] of [1971] 2 GLR 289 their paramount stool of Asere with respect to the land. In these circumstances I am at a loss to understand the argument that the Onamrokor family is estopped by the judgment in the Adams case. For that judgment to operate as an estoppel against the respondent, he and his family must have been a party or privy to a party in the case. But that they certainly were not.

Rather late in the day, learned counsel for the appellant sought to rest his case against the respondent on the doctrine of estoppel by conduct, in that the Onamrokor family stood by and did nothing while title to land which they now claim is theirs was being litigated in the Adams case. The first time that this point was raised was in the course of argument before us. To be able to rely on estoppel, it ought to be pleaded: see Ohene of Agogo v. Omanhene of Kumawu (1940) 6 W.A.C.A. 18. In this case estoppel by conduct was not pleaded. To meet that objection counsel sought leave to amend the statement of claim to include this allegation. We refused leave but reserved our reasons until judgment. The Onamrokor family’s default apparently lies in the fact that when the parties to the Adams case went on to the land with the surveyor to point out the boundaries, they met members of the Onamrokor family. This comes out casually in the evidence of the surveyor when saying whom he saw and what he was told on the land. They therefore were, according to counsel, fixed with knowledge of the litigation then in progress, and ought to have intervened at that stage to protect whatever interest in the land they now say they have. But they did not do so.

I am with counsel when he says that this court has the power to allow applications for the amendment of the pleadings even in cases on appeal (see Baker v. Medway Building and Supplies [1958] 1 W.L.R. 1216, C.A. and Addai v. Omoru, Court of Appeal, 14 April 1969, unreported; digested in (1969) C.C. 64). The question is whether this is a deserving case for the exercise of the court’s undoubted power. This court will allow an amendment if by it the real issues between the parties as appear on the record will be determined. It is a power which, I think, ought to be used sparingly. When used judiciously, it saves a multiplicity of actions, at the same time doing substantial justice to the parties. In my opinion the power ought not to be used to raise fresh issues which could easily have been raised at the trial but were not. Nor should it be used to spring surprises on an adversary at such a late stage in the judicial process, especially when it is obvious that by granting the application, that adversary would seek leave to adduce fresh evidence to justify his position and thereby set matters at large once more. In this case, perhaps what the Onamrokor family claim to be their land was never actually trespassed upon during the survey in the Adams case and, therefore, there was no point in their intervening; we do not know. There may be any number of reasons why they did not intervene, reasons which they may best explain. Even if it is accepted that there is evidence on record that some members of the Onamrokor family knew of the demarcation of the land for the purposes of the Adams case, nobody at the trial asked the respondent or his witnesses why they did not intervene in that case. Learned counsel for the appellant frankly and [p.298] of [1971] 2 GLR 289 fairly admits that no opportunity was afforded the Onamrokor family to explain why they did not act. To my mind whether the Onamrokor family stood by or not was not an issue in the trial of this case. And it is too late to make it an issue now. Granting the desired leave to amend the statement of claim will not be for the purpose of settling the real issues between the parties at the trial; it will merely raise fresh issues. If anyone ought to be bound by the consequences of his conduct in standing by and not taking timeous action to protect his interest in this matter, it seems to me, it should be the appellant’s family who, with knowledge of the circumstances, failed to make this an issue at the appropriate time.

Upon consideration I am of the opinion that the learned trial judge was right in holding that the Amadu case operated as an estoppel against the appellant in this case, but wrong in the view that the bar was limited only to the quarry site. It covered the whole extent of the land put in issue and not only that for which the declaration was made. Taking the view she did, she, of course, had to go through all the evidence of tradition put forward by the contestants, which was essentially no different from that related at the Amadu trial, and the acts of ownership claimed to have been done by the parties. Like Mr. Commissioner Gwira before her, the learned judge found that the case for the respondent’s Dome lands was to be preferred to the appellant’s Mukose claim and gave judgment accordingly.

The course taken by the learned judge has given rise to the complaint by the appellant that the judgment was against the weight of evidence. Counsel arguing that ground of appeal before us, sought to take us through the mass of evidence in detail to show that it was not considered with enough care by the trial judge. But this attempt to re-assess the evidence was entirely unnecessary. As between the parties there was a concluded judgment which estopped the plaintiff from putting forward this claim. And the case should have been determined on that basis.

Taking the view I do, I think it should not be necessary for me to go into the other questions raised in this appeal. These matters arise out of the taking and the consideration of evidence in this case, which I have said was entirely unnecessary. I will, therefore, refrain from laying myself open, at least, to the same criticism that I have voiced of the judgment in the case and go no further. The case ought to have been disposed of as res judicata. Thus, though I agree with the learned trial judge’s finding for the defendant, I think it ought to have been differently based.

I would dismiss this appeal.

JUDGMENT OF AZU CRABBE J.A.

I agree entirely with the reasoning and conclusion arrived at by my brother Amissah, and I only wish to say a few words about the effect of the decision in the Amadu case as an estoppel per rem judicatam against the plaintiff’s family.

In this case the plaintiff ‘s family claimed to be owners in possession of a large tract of land, commonly known and called Mukose lands. Their case against the defendant’s family was that the defendant’s family had unlawfully entered upon portions of the Mukose lands in the Abeka [p.299] of [1971] 2 GLR 289 area, by interfering with the plaintiff’s ownership, possession and occupation of the lands comprising the Abeka village, and those lying in and around the said village—particularly, the land comprising the villages of Koteimang, Blema-Kpehe, Wuoyenmang, Akwetemang, Manchemang and Serikin Kramo. The plaintiff’s family accordingly claimed for a declaration that they were owners in possession of all the lands which embrace the villages hereinbefore described. The plaintiff’s family further claimed against the defendant’s family £G250 (or N¢500.00) damages for the unlawful trespass, and for perpetual injunction.

The defendant resisted the claim mainly on the ground that the land which the plaintiff described as Mukose lands is in fact the Dome lands of the defendant’s family, and in paragraph (13) of the statement of defence it was averred as follows:

“The defendant says that in the suit entitled Reindorf and Another v. Amadu and Others [1962] 1 G.L.R. 508, S.C. the land now described as Mukose and land claimed by the plaintiff was in dispute and was claimed by the plaintiff who as co-defendant in that suit represented the King Tackie family of Asere Djorshie described as a branch of the Nikoi Olai family.”

The defendant further averred that judgment was given in his favour by the High Court, and this was affirmed by the Supreme Court. The defendant, therefore, contended that since the land now claimed by the plaintiff in this suit is the same land as he claimed in the Amadu case, the plaintiff’s family were estopped from asserting title to or disputing the title of the defendant’s family to the land in dispute. Apart from relying on estoppel per rem judicatam, each party led traditional evidence to bolster up his case. And, referring in her judgment to the evidence of the plaintiff, the learned trial judge said: “It is of interest to note that the traditional evidence pleaded in the Amadu case was the same as the evidence given by the first witness for the plaintiff in this case … As a result of exhibit 3 which is an order by the court for a plan to be made in the Amadu case, exhibit 4 was made.

Under cross-examination, the first prosecution witness for the plaintiff admitted that in the Amadu case Nikoi Olai Amasah the co-defendant, claimed as the eastern boundary of his land the area marked yellow on exhibit 4; and mentioned all the villages he, the first witness for the plaintiff had mentioned in his evidence-in-chief. The first witness for the plaintiff said ‘Nikoi Olai’ in the Amadu case claimed Mantsemang village, Naa Fofo Ashong village and Serikin Kramo village as belonging to the Nee Tackie Tawiah family. He claimed Akwetemang as land falling within the eastern boundary of Mukose lands. The first witness for the plaintiff further admitted that at the time Nii Amon Kotey was substituted for Nikoi

Olai Amasah, in the Amadu case, Amon Kotey was head of both the King Tackie [p.300] of [1971] 2 GLR 289

Tawiah family and the Nikoi Olai stool family. Exhibit 5 was the judgment in the Amadu case and exhibit 6 the decision of the Supreme Court in the appeal on exhibit 5. The first witness for the plaintiff, under cross-examination, admitted that the area claimed as Dome lands in the Amadu case by defendant herein was marked on exhibit 4 by the yellow line and the area claimed by the plaintiff family herein as Mukose lands in Amadu case was marked on exhibit 4 by the orange line which the plaintiff family claimed was the eastern boundary of their land. The first witness for the plaintiff admitted further that the villages he mentioned in the present case were all mentioned in the Amadu case, and that the defendants herein, in that other case, claimed that the footpath running through Abeka village was their western boundary.” The cause of action in the Amadu case was the trespass committed at the quarry site. But the real contest between the principal parties revolved around the issue whether the trespass was on Dome lands or on Mukose lands. The plaintiff in this case, as co-defendant in that case, claimed that the quarry was on Mukose lands, and the defendant here, as plaintiff in that case, also claimed that it was on Dome lands. As Korsah C.J. said, when delivering his judgment in the Supreme Court [1962] 1 G.L.R. 508 at p. 511: “It will be observed that although the original claim related to the quarry only, the subject-matter of the suit was extended to embrace a much larger area of land which the plaintiffs claim their ancestor had acquired over two hundred years ago; as the result, the evidence adduced by the plaintiffs was partly of tradition and partly of occupation and possession by members of the family and tenants or licensees. The defendants also adduced evidence of tradition and of occupation and possession by members of their family and tenants or licensees.”

The trial court in that case expressed itself in definite terms on the issue in the following passage: “I will say off-hand that I am more impressed by the evidence led by the plaintiffs and their witnesses. That they have proved that they are owners of all that land known as Dome land as shown on exhibit C by their possession and occupation and trespass has been committed. The traditional evidence led by the co-defendant and their witnesses is inconsistent and unreliable and in my view does not show any evidence of possession and occupation. I visited and inspected the land in dispute and the report is exhibit 18 and the physical features as the pillar marks support the case for the plaintiffs.”

The Supreme Court confirmed the decision of the trial court, and in his judgment Korsah C.J. observed as follows at p. 514:

“The learned commissioner’s finding ‘That they [plaintiffs] have proved that they are owners of all that land known as Dome land as shown on exhibit C by their possession and occupation, and trespass has been committed’, is in my view supported by evidence on the [p.301] of [1971] 2 GLR 289 record; furthermore the presumption that the decision of the court below on the facts was right has not been displaced by counsel in this court.”

On the question whether the Amadu case operates as an estoppel per rem judicatam against the plaintiff’s family in the present case, the learned trial judge said:

“On the question of estoppel I have had the advantage of reading the judgments, exhibit 5 and exhibit 6. In exhibit 5, the claim was in respect of the quarry site shown on exhibit 4 within the area surrounded by the yellow line which was the claim of the plaintiff in the Amadu case. The first prosecution witness in this case admitted that the area in dispute in the Amadu case was part of the Mukose lands the subject-matter of the present suit. In the Amadu case defendant herein as plaintiff therein claimed successfully that the quarry site was part of Dome lands.

Although the claim before the court in the Amadu case was in respect of only the quarry site, the issue fought was the ownership of the whole area now in dispute. The learned commissioner made some general observations on the title of the larger area distinctly put in issue.

The verdict found however was limited to the area of claim in the writ. The Supreme Court confirmed the judgment of the trial court in exhibit 6.

The pleadings in the Amadu case in effect were that possession by the King Tackie Tawiah family was possession by the Nikoi Olai family. The head of the King Tackie Tawiah family was also the head of the Nikoi Olai family at the time of the Amadu case and the traditional evidence he relied on was the same as the one put forward in this case. Had the verdict found in the Amadu case been on the larger area put in issue in that case, I would have had no hesitation in declaring that the plaintiff herein is effectively estopped. I am satisfied however that the Amadu case raises a res judicata in respect of the quarry site and effectively estops plaintiff from claiming the quarry site only.”

Having thus limited the defendant’s plea of estoppel to the quarry site, the learned trial judge proceeded to examine the whole evidence in detail, and in the end she arrived at the same conclusion as the trial court in the Amadu case that the defendant’s family are the owners of Dome lands. This means in effect that the learned trial judge did not think that the present plaintiff’s family are debarred from re-litigating the issue whether the disputed land forms part of Mukose lands or of Dome lands, an issue which was conclusively decided in the Amadu case. The plaintiff has, therefore, been emboldened in this appeal to impeach the trial judge’s judgment on the ground that her judgment is against the weight of evidence. With very great respect to the learned trial judge, I think she must have been confused about the nature of the estoppel upon which the

[p.302] of [1971] 2 GLR 289 defendant relied, and the plaintiff cannot be permitted to take advantage of this so as to re-agitate an issue which had been adjudicated by courts of competent jurisdiction in this country. Interest (or expedit) reipublicae utsit finis litium.

The doctrine of estoppel per rem judicatam has been developed from earliest times until within recent years. As early as 1776 in the Kingston’s (Duchess) Case, (1776) 20 St.Tr. 355 at p. 538, De Grey C.J. in delivering the unanimous opinion of the judges, made a pronouncement, often quoted, which has been the basis of the modern doctrine. He said:

“From the variety of cases relative to judgments being given in civil suits, these two deductions seem to follow as generally true: first that the judgment of a court of concurrent jurisdiction directly upon the point, is as a plea, a bar, or as evidence conclusive, between the same parties upon the same matter directly in question in another court: secondly that the judgment of a court of exclusive jurisdiction directly upon the point is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which comes collaterally in question, though within their jurisdiction; nor of any matter incidentally cognizable; nor of any matter to be inferred by argument from the judgment.” Estoppel per rem judicatam is a generic term, and the cases plainly show that estoppel deriving from a previous judgment can be classified under two distinct main heads. These are (a) Cause of action estoppel and (b) issue estoppel. The former has recently been explained by Diplock L.J. in Thoday v. Thoday [1964] P. 181 at pp. 197 and 198, as

“that which prevents a party to an action from asserting or denying, as against the other party the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given upon it, it is said to be merged in the judgment, or, for those who prefer Latin, transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim ‘Nemo debet bis vexari pro una et eadem causa.’ In this application of the maxim ‘causa’ bears its literal Latin meaning.”

The learned Lord Justice defined the latter in these terms (at p. 198):

“The second species, which I will call ‘issue estoppel,’ is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish this cause of action; [p.303] of [1971] 2 GLR 289 and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”

Diplock L.J.’s classification of estoppel per rem judicatam was approved in Fidelitas Shipping Co., Ltd. v. V/O Exportchleb [1965] 2 All E.R. 4, where Lord Denning M.R. made these observations at pp. 8-9: “The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given on it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicatam; see King v. Hoare 153 E.R. 206. But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances; see per Lord Macnaghten in Badar Bee v. Habib Merican Noordin [1909] A.C. 615, P.C.”

In the same case Diplock L.J. expressed this interesting view at pp. 9-10: “The final resolution of a dispute between parties as to their respective legal rights or duties may involve the determination of a number of different ‘issues’, that is to say, a number of decisions as to the legal consequences of particular facts, each of which decisions constitutes a necessary step in determining what are the legal rights and duties of the parties resulting from the totality of the facts … The determination of the issue between the parties gives rise to what I ventured to call in Thoday v. Thoday an ‘issue estoppel’. It operates in subsequent suits between the same parties in which the same issue arises. A fortiori it operates in any subsequent proceedings in the same suit in which the issue has been determined.” The classification received further approval in the more recent case of Carl-Zeiss-Stiftung v. Rayner and Keeler, Ltd. (No. 2) [1966] 2 All E.R. 536. In that case Lord Guest explained “issue estoppel” in a concise and lucid language thus at p. 565 that:

“where in a judicial decision between the same parties some issue which was in controversy between the parties and was incidental to the main decision has been decided, then that may create an estoppel per rem judicatam.”

[p.304] of [1971] 2 GLR 289

In the latest edition of the classic textbook on The Doctrine of Res Judicata (1969) (2nd ed.) by Spencer-Bower and Turner, it is stated (at p. 151) that:

“where one cause of action has been the subject of final adjudication between parties, those determinations of particular issues which are its essential foundation, without which it could not stand, may be used as the basis of issue estoppels between the same parties when another cause of action altogether is set up.” The rule of issue estoppel does not, however, apply to any collateral issue in the previous judgment; “nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment”; per De Grey C.J. in Kingston’s (Duchess) Case (supra).

Applying these principles to the present case, it becomes abundantly clear that the plea of estoppel that the defendant relied on at the trial was not a decision on the “cause of action” in the Amadu case (cause of action estoppel), but the decision on a particular issue decided in that case (issue estoppel). The issue estoppel is in relation to the decision as to ownership of Dome lands. The action in the Amadu case, as we have seen, was for trespass to a small piece of land, but a decision on whether the trespass had been committed on Dome lands constituted, in the words of Diplock L.J. in Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (supra), “a necessary step in determining what are the legal rights and duties of the parties.” That decision formed the groundwork of the judgment in the Amadu case.

Had the learned trial judge been able to appreciate the distinction between the two categories of estoppel per rem judicatam, she would inevitably, in my view, have held the plaintiff debarred from re-agitating issues which had already been determined in the Amadu case.

Another point about which I wish to make some observations is the identity between the parties in the Amadu case and this case. In his statement of defence the defendant averred that the effect of the Amadu case is that the family of the plaintiff in this case, who were the co-defendants in the Amadu case, are estopped from claiming title to any land east of the ancient footpath running through Abeka village to Ayawaso. But the plaintiff traversed this averment in his reply and contended that in the Amadu case there was no doubt in anybody’s mind that he represented the exclusive interest of the King Tackie Tawiah family, which is not the same family as the plaintiff now represents. Therefore, the identity of the parties became a critical issue at the trial of the present case. The principal witness for the plaintiff, Ashalley Okoe, was cross-examined very closely about the relationship between the Nikoi Olai family and the King Tackie Tawiah family. Ashalley Okoe, who described himself as one of the principal members of Nikoi Olai family, said that Nikoi Olai Amasah joined as co-defendant in the Amadu case in his capacity as head of the King Tackie Tawiah family. Continuing his evidence Ashalley Okoe said: [p.305] of [1971] 2 GLR 289

“It is not true that Nikoi Olai Amasah joined as head of the Nikoi Olai family and also as head of all smaller related families of which the Tackie Tawiah family was one.

It is not true that Nikoi Olai Amasah filed his defence as head of the Nikoi Olai family. He filed his defence as head of the Tackie Tawiah family.”

At this stage when he was shown the defence which was filed on behalf of Nikoi Olai in the Amadu case, he admitted that Nikoi Olai was described in the statement of defence (exhibit 1) as the head of the Nikoi Olai family. The statement of defence contains two important paragraphs which elucidate the whole question of identity of parties. In paragraph (3) it was stated that:

“the defendants and the co-defendant say that the cases referred to do not in any way affect the rights of the Nikoi Olai family or any of its sub-families such as Tackie Tawiah family alias Na Fofoe Ashong Danso family of Asere Djorshie and Nii Ashalley family of which the co-defendant is also the head with respect to their family land known as and called Mukose land (hereinafter described) which covers a part of the area apparently claimed by the plaintiff and further that the question of estoppel does not arise against the said Nikoi Olai family or any of its sub-branches.”

And in paragraph (6) it was also stated as follows:

“The co-defendant is the head of the Nikoi Olai family of Asere Djorshie, Accra, which family and its sub-branches are the owners of all that area of land known as Mukose land situate in the Accra district.” The admissions which Ashalley Okoe made after he had been confronted with exhibit 1 are, indeed, most revealing. He said:

“Nikoi Olai family is a wider family. King Tackie Tawiah is a smaller family within the Nikoi Olai family. It is correct that Nii Amasah in that case sometimes described himself as head of the Nikoi Olai family and at times as head of King Tackie Tawiah family …

It is correct that Nii Amon Kotey at the time of the Amadu case was head of both King Tackie Tawiah family and the Nikoi Olai stool family.

It is true that in the Amadu case Nii Amon Kotey as head of Tackie family claimed only that portion of the land over which Tackie Tawiah had authority on permission of the Nikoi Olai family.” There can be no doubt on the evidence that the co-defendant’s family in the Amadu case is a smaller branch of the Nikoi Olai family. The two families might not, according to Ashalley Okoe, have descended from a common ancestor, but, as he himself testified, the history is that King Tackie’s mother hailed from the Nikoi Olai family. In Mills v. Addy

[p.306] of [1971] 2 GLR 289

(1958) 3 W.A.L.R. 357, which is an authority on customary succession among the Ga people, Ollennu J. said at pp. 362-363 as follows:

“every woman becomes the originator of a family. The family she so originates is a branch of her mother’s or grandmother’s family; that branch family remains forever part of the trunk of her mother’s and grandmother’s family. Whenever the branch ceases to grow, there is reversion or retracing of steps to the trunk family.”

It seems to me, therefore, that, even if the two families do not originate from the same family, they are at least, as my brother Amissah has rightly said, privies to each other. The law is that the privies of parties to litigation may be estopped by the judgment in that litigation. But who are privies? In Spencer-Bower and Turner, Res Judicata (1969), (2nd ed.), pp. 209-210, the answer is stated as follows:

“Privies include any person who succeeds to the rights or liabilities of the party upon his death or insolvency or who is otherwise identified with his or her estate or interest; but it is essential that he who is later to be held estopped must have had some kind of interest in the previous litigation or its subject matter.” In Carl-Zeiss-Stiftung v. Rayner and Keeler, Ltd. (No. 2) (supra) a question arose as to whether a solicitor who had been instructed in a case by the Council of Gera was a privy to the Council. In a portion of his speech in which he dealt with this question Lord Reid said at p. 550:

“Again there is no doubt that the requirement of identity of parties is satisfied if there is privity between a party to the former litigation and a party to the present litigation. The only way in which that could be satisfied in this case would be if there were privity between the Council of Gera and the solicitors … The most that can be said is that the council is the ‘client’ instructing the solicitors, though I doubt whether that is proved; the real question may be whether there is a ‘client’ at all. Does this make it a privy? It has always been said that there must be privity of blood, title or interest: here it would have to be privity of interest. That can arise in many ways, but it seems to me to be essential that the person now to be estopped from defending himself must have had some kind of interest in the previous litigation or its subject-matter. I have found no English case to the contrary.”

Lord Guest also said in the same case at p. 566: “Before a person can be privy to a party there must be community or privity of interest between them.”

The evidence in this case makes it as plain as it can be that the King Tackie family is an extension of the wider Nikoi Olai family. The two families are practically the same. Persons cannot belong to the same family unless they have blood relationship. It is this blood, which the Ga-Adangbe people call “Weku La” (family blood), that unites and sustains a social

[p.307] of [1971] 2 GLR 289 group of people called the family; see Ollennu, The Law of Testate and Intestate Succession in Ghana, p.71. The pleadings in the Amadu case (exhibit 1) and the evidence of Ashalley Okoe make it clear beyond peradventure that not only is the Nikoi Olai family privy to the King Tackie Tawiah family in blood, but also that there is a community of interest between the two families.

A party who relies on an earlier judgment as estoppel per rem judicatam, must, if he is to succeed, establish:

(1) that there has already been a judicial decision by a court or tribunal of competent jurisdiction,

(2) that the decision is final,

(3) that the same question as that sought to be put in issue by the plea in respect of which the estoppel is claimed was decided in the earlier proceedings,

(4) that the case was between the same parties or their privies, as the parties between whom the question is now sought to be put in issue.

The defendant by his evidence successfully satisfies these conditions, and I think that the learned trial judge should have sustained his plea to cover the whole of the land in dispute.

The defendant has not cross-appealed, but I think this is a proper case in which this court ought to exercise its powers under rule 32 of the Supreme Court Rules, 1962 (L.I. 218). Rule 32 reads: “The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.” By virtue of this rule I would hold that the defendants plea of estoppel per rem judicatam in respect of the land in dispute succeeds, and that the plaintiff is estopped from re-opening the issues as to the title of Dome lands.

For the above reasons, I would dismiss the appeal.

JUDGMENT OF ANIN J.A.

I also agree.

DECISION

Appeal dismissed.

S. A. B.