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Land - Ownership -
Declaration of title - Recovery
of possession - Perpetual
injunction - Estoppel per rem
judicata - Licensee – Head of
family – Capacity - which of the
two families owned the disputed
land - Whether or not the
disputed land was known as
‘Kpodor’ or ‘Terkpenya - Whether
or not both parties or any of
them had capacity to pursue
claims for and on behalf of
their respective families - Which
of the parties was a licensee of
the other
HEADNOTES
The respondent prayed, inter
alia, for declaration of title
to a piece of land described in
a schedule attached to his
statement of claim, which he
claimed was his family land,
recovery of possession of the
said land and perpetual
injunction. He traced the roots
of his family’s title to his
ancestor and according to
respondent, permitted the
appellant’s family to settle on
a portion of their family land
He described the appellant and
his family as their licensees.
However, notwithstanding their
status as licensees, appellant
started laying claim to
ownership of portions of the
land thus defeating his status
and that of his family as
licensees. He therefore took
this action, as the current head
of his family, to reclaim the
land. In his reply to
appellant’s statement of defence
and counterclaim, he challenged
appellant’s claim of being the
head of his family for which
reason he thought appellant had
no capacity to pursue a
counterclaim against him.
HELD
The issue as to whether or not
Terkpenya lands situate at Ningo
belong to the Tei Kwabla Forzi
family of Ningo as the appellant
was claiming in this case, has
been determined against
appellant’s family in the cases
of ameoda v pordier and ameoda v
forzi & others (consolidated)
and kweinor tei kwabla forzi v
nene kwaku darpoh & 2 others
(supra). the appellant is
therefore estopped per rem
judicatam from relitigating that
issue as the two lower courts
rightly contended. With this
finding, we deem it unnecessary
to go into the other aspects of
this appeal. We accordingly
affirm the concurrent judgments
of the two lower courts and
dismiss the appellants appeal as
having no merits whatsoever.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
AMEODA v PORDIER and AMEODA v
FORZI & Ors [1967] GLR 479; C.A.
ASANTE-APPIAH v AMPONSAH [2009]
SCGLR 90
KWAN v NYIENI [1959] GLR 67
IN RE ASHALLEY BOTWE LANDS:
ADJETEY AGBOSU & Ors v KOTEY &
Ors [2003-2004] 1 SCGLR 420
KWEINOR TEI KWABLAH FORZEE v
NENE KWAKU DARPOH & ORS; CIVIL
APPEAL NO. J4/38/2015
17/02/2016
NENE DORKUTSO TEI KWABLA v LANDS
COMMISSION & ANOR; CIVIL APPEAL
NO. J4/21/2016, 26/07/2016
KWEINOR TEI KWABLA FORZEE v
NENE KWAKU DARPOH, LANDS
COMMISSION & (3) NUMO AWULEY
KWAO; SUIT NO. J4/38/2015, 17th
FEBRUARY 2016
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary, Ninth
Edition
DELIVERING THE LEADING JUDGMENT
APPAU, JSC:-
COUNSEL
K. ANTWI ABANKWA FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
ABU JUAN JAGIARA FOR THE
DEFENDANT/APPELLANT/APPELLANT
APPAU, JSC:-
The Court of Appeal, in a
unanimous decision, affirmed the
judgment of the trial High Court
in favour of the
plaintiff/respondent/respondent
against the
defendant/appellant/appellant in
this land matter. In the said
judgment, the trial High Court
dismissed appellant’s
counter-claim, which was also
affirmed by the Court of Appeal.
Aggrieved by the concurrent
judgment of the Court of Appeal,
the
defendant/appellant/appellant
has brought this appeal before
us, praying for the reversal of
same on the following grounds:
1.
The Court of Appeal erred in
coming to a conclusion that the
identity, extent and size of the
land, the subject-matter, was
not in issue as same was one of
agreed fact.
2.
The Court erred by holding that
Exhibit ‘B’, which is the
judgment in the case of AMEODA
v PORDIER and AMEODA v FORZI &
Ors [1967] GLR 479; C.A., is
binding on the defendant and
operated as Estoppel per rem
judicatam.
3.
The Judgment was against the
weight of evidence.
For the purposes of this appeal
the parties shall, hereinafter,
be referred to as respondent and
appellant respectively.
In his written submissions filed
on 15th May 2019, the
appellant decided to argue all
three grounds of appeal together
under the last and omnibus
ground; i.e. “The judgment
was against the weight of
evidence.” He claimed the
disputed land as belonging to
his family and that the
respondent’s family is their
licensee as they permitted them
to settle on the land. He
faulted the two lower courts for
deciding in favour of the
respondent by dismissing his
counterclaim in the wake of the
overwhelming evidence on record,
which suggested that his Tei
Kwabla Forzi family is the owner
of the disputed land. He again
challenged the trial court’s
preliminary finding that he was
not the head of his family and
for that matter could not pursue
a counterclaim against the
respondent. He referred the
Court to previous cases which he
had pursued for and on behalf of
his said family as family head
without any challenge from
anybody. He contended that the
judgment in the consolidated
cases of Ameoda v Pordier and
Ameoda v Forzi and Ors. (supra),
which the two lower courts based
their decisions on in dismissing
his counterclaim, was not
applicable to him, since his
immediate Forzie family of
Terkpenya, was neither a party
nor privy to that litigation.
That judgment, he reiterated,
could not therefore operate as
estoppel per rem judicata
against his family as contended
by the two lower courts. He
prayed the Court to reverse the
decisions of the two lower
courts and grant him judgment on
his counterclaim.
Before we venture into the
merits or otherwise of the
appeal, we wish to recall in
brief the respective cases the
parties canvassed both in their
pleadings and evidence before
the trial High Court. In his
amended statement of claim, the
respondent prayed, inter alia,
for declaration of title to a
piece of land described in a
schedule attached to his
statement of claim, which he
claimed was his family land,
recovery of possession of the
said land and perpetual
injunction. He described the
land, which he said was
popularly known and called
Kpodor, as bounded; “On the
North by the Tema-Aflao motor
road; on the South by the Ta
River tributary through Mgedor
stream; on the South-East by the
Jange lagoon; on the East by the
Lakpleku Amewoda family land and
on the West by the Prampram
Traditional land”. He traced
the roots of his family’s title
to his ancestor called Nartey
Asamoah who, according to
respondent, permitted the
appellant’s family to settle on
a portion of their family land
as described. This was after
they had been ejected by
Ameoda’s family from their land
at Terkpenya several years ago
after unsuccessfully challenging
the Ameodas’ title to the said
land. He described the appellant
and his family as their
licensees. However,
notwithstanding their status as
licensees, appellant started
laying claim to ownership of
portions of the land thus
defeating his status and that of
his family as licensees. He
therefore took this action, as
the current head of his family,
to reclaim the land. In his
reply to appellant’s statement
of defence and counterclaim, he
challenged appellant’s claim of
being the head of his family for
which reason he thought
appellant had no capacity to
pursue a counterclaim against
him.
The appellant, on the other
hand, denied respondent’s claim.
He contended that the disputed
land respondent is claiming
belonged to his immediate Tei
Kwabla family of Terkpenya, of
which he was the head. He also
challenged plaintiff’s capacity
to institute the action, as
according to him, plaintiff was
not the head of his family. He
again said it was his ancestor
by name Ashalley Botwe who
permitted respondent’s ancestor
Nartey Asamoah to settle on that
portion of their land so the
respondent’s family was rather
their licensees. He described
the disputed land as commonly
known and called ‘Terkpenya’ but
not ‘Kpodor’ and gave the
boundaries under paragraph 5 of
his amended statement of defence
and counterclaim as follows:
“On the North by the Tema-Aflao
motor road; On the East by
Lakpleku Osabunya family lands;
on the West by Prampram
Traditional lands; on the
Souh-East by the Dzange lagoon,
which piece or parcel of land
encompasses an area of 9,404.28
acres”. {See page 181 of
Volume One of the RoA)
It is interesting to note that
apart from the Ta River, which
respondent says marks his
family’s boundary in the South
(the only feature the appellant
never mentioned), both parties
mentioned the same boundary
owners and features as the
description of the disputed
land. They all mentioned the
Tema-Aflao motor road as their
boundary on the North; Lakpleku
family lands as their boundary
on the East; the Jange or Dzange
lagoon as their boundary on the
South-East and Prampram
Traditional lands as their
boundary on the West.
Undoubtedly, the pleadings of
the parties and the evidence
they and their witnesses led in
the trial court, did not suggest
in any way that they were
talking about different pieces
or parcels of land as the
appellant wanted this Court to
believe in his submissions.
Aside of the description of the
disputed land indicated under
paragraph 5 of his amended
statement of defence as quoted
above, appellant’s pleading
under paragraphs 2 and 4 of his
amended statement of defence and
counter-claim read:
“2. Save that it is admitted the
defendant is a descendant of Tei
Kwablah Forzie, the defendant
denies that the land the
subject-matter of this dispute,
is owned by plaintiff’s family
as alleged or at all.
4. Defendant says further that
he is the head of the Tei
Kwablah Forzie family who are
owners of the land in dispute
and that the said Tei
Kwablah Forzie family acquired
the said lands by
cultivation and settlement and
has occupied the said land from
time immemorial over 300 years
ago”.{Emphasis
ours}
The contents of paragraphs 2, 4
and 5 of appellant’s statement
of defence, were emphatic that
the appellant was ad idem with
the respondent on the identity
of the land in dispute. This
made the respondent to plead
under paragraph 3 of his reply
filed on 21st June
2011 as follows: “3.
Plaintiff joins issue with the
defendant on paragraphs 4 and 5
and that the description of the
land in paragraph 5 of the
statement of defence, is the
description of the plaintiff’s
family land and not the
defendant’s family land.”
{Emphasis ours}
It is important to note that the
term ‘land in dispute’,
as used by the appellant in his
pleadings referred to above, was
in relation to the land over
which the plaintiff had sued
him. Therefore, when appellant
responded to respondent’s claim
and registered his denial of
respondent’s contention that the
disputed land belonged to his
family, appellant was referring
to no other land but the one
over which the respondent had
sued him. So, if the defendant,
in a traverse, denied that
plaintiff was the owner of the
land over which he had sued but
rather he defendant was the
owner, then there is no denial
that they both agreed on the
identity of the subject-matter
of the suit. We have to
emphasize that the appellant did
not raise any issue with regard
to any boundary dispute between
his alleged family and that of
the respondent, likewise the
respondent. Appellant claimed
that it is his family that owned
the land over which the
respondent had sued him and that
it was his predecessor or
ancestor who permitted the
respondent’s family to settle on
the land. This was why he said
respondent and his people were
their licensees, contrary to
respondent’s claim. Again, in
his appeal against the judgment
of the trial High Court to the
Court of Appeal, the appellant
did not raise any issue with
regard to the identity of the
land in dispute. The only
grounds of appeal filed in the
Court of Appeal as the basis for
the appeal were three and they
were as follows:
a.
The judgment was against the
weight of evidence.
b.
That the trial court erred when
it failed to take full
cognizance of the evidence
adduced at the trial.
c.
That the trial court failed to
determine the real issues in
controversy based on the oral
and documentary evidence before
it on the issue of ownership of
the land and the size/extent of
the land.
Having considered the
submissions filed by the
parties, particularly the
appellant, the Court of Appeal
came to the conclusion, and
rightly so, that grounds ‘b’
and ‘c’ could be taken
care of under the omnibus ground
‘a’ since the central
issue urged in the appeal was
the question as to which of the
two families was the true and
legal owner of the subject
property. The fact is that the
respondent traced his family’s
ownership of the land in dispute
to one Nartey Asamoah whom he
said was the original settler.
The appellant also contended
that it was rather his
predecessor by name Ashalley
Botwe who permitted Nartey
Asamoah to settle on the
disputed land. So clearly, the
appellant never talked of any
different land aside of the one
over which respondent sued,
which he also clearly identified
in his counterclaim with similar
descriptions.
In his own written submissions
filed on 15th May
2019, the appellant, in setting
out his case, contended at
paragraphs 24 and 25 at page 6
as follows:
“24. Defendant contended in
paragraph 6 of his statement of
defence that plaintiff’s family
occupies part of the land as
licensees of the defendant’s
family. Defendant said it was
one member of his family called
Ashalley Botwe who put
plaintiff’s family on a portion
of the land as licensees.
25. Defendant maintains that
plaintiff’s family has no
interest in any portion of the
land beyond that of licensees…”
From the record before us, the
issues set down for trial in the
trial High Court, which the
court settled in favour of the
respondent, did not include any
boundary issue or disparity in
identity of the disputed land.
It was purely a question of:
(i) which of the two
families owned the disputed
land; (ii) whether the
disputed land was known as
‘Kpodor’ or ‘Terkpenya’;
(iii) whether or not both
parties or any of them had
capacity to pursue claims for
and on behalf of their
respective families; (iv)
which of the parties was a
licensee of the other and (v)
whether or not the Ameoda v
Pordier case (supra) operated as
res judicata against the
appellant with regard to
Terkpenya lands. It is therefore
strange that the appellant tried
to challenge the findings of the
two lower courts that the
identity of the disputed land
was not in issue when he raised
it as a ground of appeal for the
first time in this Court, but
failed to canvass any points to
support same. We shall therefore
dismiss that argument and affirm
the decision of the two lower
courts that the identity of the
land over which the parties
disputed, was not in issue
whatsoever notwithstanding the
different names given to it by
each of them.
The next point appellant
canvassed was with regard to the
trial High Court’s initial
dismissal of his counterclaim on
the basis that he was not the
head of the Forzi family and
therefore had no capacity to
maintain a counterclaim against
the respondent. This preliminary
finding by the trial High Court
made the appellant to amend his
statement of defence and
counterclaim. In this amended
statement of defence and
counterclaim, appellant
maintained that he did not
counterclaim on behalf of the
overall Forzi family, which was
a party in the Ameoda v Pordier
case (supra), but rather on
behalf of his immediate Tei
Kwabla Forzi family of which he
was the head and whose land at
Terkpenya was different from the
Terkpenya land, which was the
subject-matter in the Ameoda v
Pordier case.
Ironically, both parties
challenged each other’s capacity
to mount the action and
counterclaim respectively. This
made the trial court to,
undesirably; decide to take as a
preliminary point, the issue of
capacity with regard to each of
the parties’ locus to mount the
action. Whilst the rules permit
the issue of capacity to be
determined as a preliminary
point where its determination
could curtail the litigation
without going into its merits -
ASANTE-APPIAH v AMPONSAH
[2009] SCGLR 90, the facts
in the instant case, where each
of the parties was challenging
the capacity of the other, among
other reliefs, did not call for
such a preliminary determination
as that determination alone
could not have brought the
dispute to a final close. The
decision of the trial High Court
therefore, to determine the
capacity issue involving the two
parties as a preliminary point
before delving into the real
issues of controversy, though
permissible under the law, was
not a better choice or option to
have been charted by the trial
court. That decision, as the
record shows, made the whole
trial unwieldy and very
difficult to comprehend. In our
view, since it was the
respondent who sued the
appellant for interfering in the
ownership of his family’s land
as alleged, the appellant was
compelled or obliged under the
circumstances, to defend the
action and possibly counterclaim
for title for and on behalf of
his family, where appellant
thought the land rather belonged
to his family, even granted he
was not the accredited head of
his family. He could do so under
the authority of KWAN v
NYIENI [1959] GLR 67 and
other related authorities like;
IN RE ASHALLEY BOTWE LANDS:
ADJETEY AGBOSU & Ors v KOTEY &
Ors [2003-2004] 1 SCGLR 420,
etc. on the principle of
necessity and then call the
actual family head to support
him on the claim. The trial
court’s initial dismissal of
appellant’s counterclaim on the
ground that he was not the head
of his family when he was the
very person the respondent
decided to sue was therefore
erroneous, taking cognizance of
the decision of this Court in
the In re Ashalley Botwe lands
case (supra). However, since the
trial court later addressed this
anomaly and determined
appellant’s counterclaim on the
merits, likewise the Court of
Appeal, we shall not belabour
that point.
The main contention of the
appellant in his submissions
under the omnibus ground centred
on the concurrent decision of
the two lower courts that his
family was bound by the Ameoda v
Pordier case (supra). According
to the appellant, the land
belonging to his Tei Kwabla
Forzi family at Terkpenya is
different from the land Ameoda
litigated over with his father’s
half-brother Forzie, which was
also called Terkpenya. His
argument was that ever since the
Ameoda case was determined, he
has litigated with several
people over his family land as
the head of his family without
any challenge to his position,
which was proof that his family
land at Terkpenya is different
from the Forzi land at Terkpenya
over which Ameoda succeeded in
taking over. He cited those
litigations as suits entitled:
1. KWEINOR TEI KWABLAH FORZEE
v NENE KWAKU DARPOH & ORS; CIVIL
APPEAL NO. J4/38/2015 DATED
17/02/2016 and then 2.
NENE DORKUTSO TEI KWABLA v LANDS
COMMISSION & ANOR; CIVIL APPEAL
NO. J4/21/2016, DATED
26/07/2016. The appellant
herein was the plaintiff in
those two cases referred to
above. Appellant said though he
did not mention those two cases
in this present suit, he cited
them in his submissions to show
that; (i) his father was
not part of the Ameoda v Pordier
suit and therefore his family
was not affected by it and
(ii) he was currently the
head of his family.
Incidentally, I happened to be
on the Supreme Court panel that
determined those two cases on
appeal and coincidentally, I
authored the two unanimous
judgments for and on behalf of
the Court. We therefore take
judicial notice of those two
cases and their effect on the
instant case before us.
Though none of the other parties
in those two cases referred to
above, challenged the
appellant’s alleged position as
head of his family as described
in the two cases, the appellant
lost in both suits from the
trial stage up to the Supreme
Court. The first of the two
cases referred to by the
appellant and recalled above,
was titled; KWEINOR TEI
KWABLA FORZEE (HEAD OF FAMILY,
TERKPENYA MANYA, H/NO. A/A/84,
OLD NINGO) v (1) NENE KWAKU
DARPOH, (2) LANDS COMMISSION &
(3) NUMO AWULEY KWAO; SUIT NO.
J4/38/2015, DATED 17th
FEBRUARY 2016. The
appellant herein was the
plaintiff in that case and
interestingly, the land over
which he sued the three
defendants listed above is the
very land over which he
counterclaimed for title against
the respondent herein in the
instant case. The first relief
the appellant herein, then
plaintiff therein, sought from
the trial High Court then was:
“A declaration of title to
the vast tract and parcel of
land being, lying and situated
at Terkpenya in the
Greater Accra Region, containing
an approximate area of
9,404.28 acres more or less
and which piece of land is more
particularly described in
paragraph 5 of the accompanying
statement of claim”.
The name and description of the
land at paragraph 5 of his
statement of claim and the size
of the land (i.e. 9,404.28
acres) in that case, was the
same as the one in the instant
suit. In that suit, appellant
contended that his family
acquired the land over three
hundred (300) years ago
as he did testify in the instant
suit. In short, the case the
appellant put forward in that
case was the same case he put
forward in the instant case
before the trial High Court,
which is now on appeal before
us. The trial High Court then,
in its judgment of 27th
October, 2011, dismissed the
appellant’s claim as unproven
and gave judgment to the 3rd
defendant therein. The appellant
appealed against the judgment of
the trial High Court to the
Court of Appeal and lost the
second time. After losing in the
Court of Appeal, the appellant
herein failed to pursue the
matter to the Supreme Court. It
was the 1st defendant
in that case who pursued an
appeal against the dismissal of
his counterclaim against the 3rd
defendant to the Supreme Court.
In effect, the appellant herein
lost his claim over the
Terkpenya lands as described
herein, as far back as 2011 in
the High Court, which judgment
was finally affirmed by the
Court of Appeal in 2014, since
the appellant did not pursue any
further appeal to the Supreme
Court. So with regard to
Terkpenya lands as described
herein by the appellant, the
judgment of the Court of Appeal
per Aduamah Osei, JA, which
affirmed the judgment of the
trial High Court dated 27th
October, 2011, operates as res
judicata against appellant and
his family. Having lost his
claim to Terpkenya lands as
described herein in that case,
the appellant is estopped from
re-litigating title over the
same piece of land with any
other party.
After losing his claim to
Terkpenya lands in 2014,
appellant shifted his attention
to Bundase lands, where he again
attempted, albeit
unsuccessfully, to claim those
lands too as belonging to his
family. This is the second case
appellant referred to in his
written submissions titled;
NENE DOKUTSO TEI KWABLA (HEAD OF
TEI KWABLA FAMILY SUING FOR
HIMSELF AND ON BEHALF OF TEI
KWABLA FAMILY) v (1) LANDS
COMMISSION & (2) VOLTA (GH)
INVESTMENT COMPANY LTD. In
this second case, the appellant
herein, as plaintiff therein,
claimed title to; “all that
piece of land situate and lying
at Bundase containing an
approximate area of 33,000 acres
bounded on the North-East by
Shai Hills, on the South-East by
Bundase lands, on the South-West
by Dawhenya and on the
North-West by Prampram lands”.
When the appellant lost in
the trial High Court, he climbed
further to the Court of Appeal
where he lost the second time
and finally to this Court, which
sealed his doom. Since the
subject-matter in this second
case is not the same as the one
in the instant case, we shall
not waste precious time to
discuss it further. However, the
conduct of the appellant herein,
in all these cases, portray him
as a desperate man, who, after
his family had lost its claim
over Terkpenya lands to the
Ameodas as far back as 1967,
tried vainly to lay claim to
other peoples land by giving
them the same description.
The question is, does the Ameoda
v Pordier case (supra), operate
as res judicata against the
appellant’s family as contended
by the two lower courts? These
two consolidated cases started
as two separate cases in 1962.
The plaintiff in both cases
instituted two separate suits
against Pordier and then one
Forzi. Ameoda claimed against
Pordier title of his family to
lands known as ‘Akwaaba’ and
against Forzi & Ors, title of
his family to lands known as ‘Terkpenya’,
all at Ningo. The trial High
Court then consolidated the two
cases. During the trial, the
defendants therein, which
included appellant’s
predecessors, denied the
plaintiff’s (i.e. Ameoda’s)
contention that the lands
belonged to his family. They
claimed the lands as belonging
to the Ningo Stool and that they
were in occupation as subjects
of Ningo Stool. This claim
compelled the paramount chief of
Ningo to join the action as
co-defendant to defend his
so-called Stool lands. The trial
High Court’s finding was that
the disputed lands (i.e.
‘Akwaaba’ and ‘Terkpenya’) were
not family lands but rather
Stool lands belonging to the
Ningo Stool. The High Court,
accordingly, dismissed
plaintiff’s action against the
defendants, i.e. Pordier and
then Forzi and others. Aggrieved
by the decision of the trial
High Court per Ollenu, J (as he
then was), the plaintiff Ameoda,
appealed against same to the
Court of Appeal. The Court of
Appeal, which was then the
highest court of the land,
allowed the appeal and held that
those two parcels of land (i.e.
‘Akwaaba’ and ‘Terkpenya’) were
not Ningo stool lands as
contended by the defendants but
rather belonged to Ameoda’s
family as the Ningo Stool had no
lands of its own.
The Court recounted the history
of how the original Forzi (also
spelled as Forzee) who is the
predecessor of the appellant
herein came to settle on
Terkpenya lands. It must be
emphasized that in that suit,
the appellant’s predecessors did
not claim the land as their
family land. Their claim was
that the land was Ningo Stool
land and they were in occupation
of same as subjects of Ningo
Stool. There was no evidence
that there was another parcel of
land elsewhere at Ningo called
Terkpenya, which belonged to
another branch of the Forzi
family as the appellant is now
claiming, aside of the Terkpenya
which the Forzis then said
belonged to the Ningo Stool. The
appellant’s claim in this action
that the Terkpenya land he is
claiming as belonging to his
immediate Tei Kwabla family is
different from the Terkpenya
land over which Ameoda litigated
with his predecessor cannot
therefore be true. The two lower
courts did not therefore err
when they held that though the
respondent herein was neither a
party nor a privy in the Ameoda
v Pordier case, that judgment
operated as res judicata against
the appellant and his family.
This was what the Court of
Appeal said at page 28 of its
judgment, which can be found at
page 626 (Vol. Two) of the RoA:
“Can the plaintiff who is a
stranger and not a privy to any
of the parties in the Ameoda
case succeed on a plea of
estoppel per rem judicatam?
Indeed, evidence on record
indicates that the plaintiff and
his forefathers were not parties
to the dispute in Ameoda case
which terminated in favour of
Ameoda family against the Forzi
family, the defendant’s
ancestors/predecessors. However,
since it has been established in
this case that the defendant’s
predecessors/ancestors,
including the defendant’s father
were parties to the Ameoda land
case, it is ipso facto that the
defendant is not only privy to
the Ameoda judgment but is bound
by it. It follows that the
Ameoda judgment, Exhibit B, is
binding on the defendant and
operates as estoppel by record
against him. In such situation,
the plaintiff as a stranger to
the Ameoda case, can rely on the
Ameoda judgment against the
privies in that case, that is,
the descendants of Forzi family
including the defendant herein,
as an exception to the general
principle under the doctrine of
estoppel”.
The term ‘Estoppel’ has
been defined in the Black’s Law
Dictionary, Ninth Edition,
edited by Bryan A. Garner as;
“1. A bar that prevents one from
asserting a claim or right that
contradicts what one has said or
done before or what has been
legally established as true; 2.
A bar that prevents the
relitigation of issues, etc.”
The term estoppel has
kaleidoscopic varieties. We have
estoppel by conduct, by deed, by
laches, by misrepresentation, by
negligence, by silence, by
judgment, by verdict, and so on.
The estoppel applicable in this
case is ‘estoppel by judgment’,
which is also known as
‘collateral estoppel’ or ‘issue
estoppel’. It is a doctrine
barring a party from
relitigating an issue determined
against that party in an earlier
action, even if the second
action differs significantly
from the first one. It has other
terms like; ‘issue preclusion’,
‘direct estoppel’, estoppel by
record, ‘estoppel by verdict’,
‘cause-of-action estoppel’,
‘technical estoppel’ and
‘estoppel per rem judicatam’.
{See Black’s Law Dictionary
cited supra, page 298).
The issue as to whether or not
Terkpenya lands situate at Ningo
belong to the Tei Kwabla Forzi
family of Ningo as the appellant
was claiming in this case, has
been determined against
appellant’s family in the cases
of AMEODA v PORDIER and
AMEODA v FORZI & OTHERS
(Consolidated) and
KWEINOR TEI KWABLA FORZI v NENE
KWAKU DARPOH & 2 Others (supra).
The appellant is therefore
estopped per rem judicatam from
relitigating that issue as the
two lower courts rightly
contended. With this finding, we
deem it unnecessary to go into
the other aspects of this
appeal. We accordingly affirm
the concurrent judgments of the
two lower courts and dismiss the
appellants appeal as having no
merits whatsoever.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS)
(JUSTICE OF THE SUPREME COURT)
M. OWUSU (MS)
(JUSTICE OF THE
SUPREME COURT)
COUNSEL
K. ANTWI ABANKWA FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
ABU JUAN JAGIARA FOR THE
DEFENDANT/APPELLANT/APPELLANT.
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