pages.gif

Accra, 15th November 1932.

OHENE APPOH ABABIO Plaintiff-Appellant.

OHENE DOKU KANGA Defendant-Respondent.

Boundary dispute-Claim for demarcation of boundary between two divisions of one State-Res judicata-Weight of evidence-Long possession.

The plaintiff, in his representative capacity as Ohene of Assenta in the State of Eastern Akim, instituted a suit in the State Council of that State as against the defendant in his representative capacity as Ohene of Kickam in the same State, to determine the boundary between the divisions of Assenta and Kickam.

The State Council by their judgment dated the 11th of December, 1929, held that the matter was res judicata, the boundaries between the two divisions having a.lready been fixed by the Provincial Commissioner in the case of AnQ/>oley v. At/runli. Judgment was therefore given in favour of the defendant with costq to be taxed. On an appeal having been taken to the Provincial Commissioner, he upheld the judgment of the State Council, not only on the ground of res judicata, but also upon the evidence before such Tribunal.

On an appeal having been taken to the West African Court of Appeal from the latter judgment.

Held, that although the judgment upon which the judgments of the State Council and Provincial Commissioner were based did not constitute a valid ,~s judirata, the parties to the present action not being parties or privies to the parties in the previous suit, there was ample evidence in the Courts below to support the conclusions at which the State Council and the Provincial Commissioner arrived.

The appeal was therefore dismissed with costs.

F. Awoonor Williams for the Plaintiff-Appellant. Frans Dove for the Defendant-Respondent.

The following judgments were delivered:-

DEANE, c.J. THE GOLD COAST COLONY.

In this matter the plaintiff, who is Ohene of Assenta, sued the defendant, who is the Ohene of Kickam, in the Native Tribunal of Atuabo claiming a demarcation of the boundary between the two divisions of Assenta and Kickam and alleging that an odum tree constituted the boundary mark. The parties are Divisional Chiefs under the Omanhene of Eastern Appolonia or Nzima, and the dispute is over the boundary between the two divisions. The Chief of Assenta claims that the stool lands of his division are bounded by the Biale River so as to include within his territory all the land known as Agona lands, lying to the South of the Biale when it makes a westward turn before debouching into the sea as shown on plan "A," while the J{ickam Chief claims that the Agona lands are appurtenant to his stool and that the boundary between himself and Assenta is the Biale River down to the point where the bridge crosses the stream, and then due south along a line now marked by pillars to a lagoon or creek called Boblama Sukpe. There is an odum tree marked on the plan on an upper reach of the Biale River, but it is far away from the land in dispute and has no significance in the case; the real question at issue

-1

Appeal Court

15 Nov., 1932

254

Appoh Ababio v.

Doku Kanga

Deane, C.].

Appoh Ababio v. Doku Kanga.

being whether the line of the boundary runs from the bridge south to the Bobloma creek or whether it follows the stream westward and then southward to the sea.

Now it was made quite clear from the evidence of both plaintiff and defendant that this case followed closely upon and was intimately connected with a case of Anopoley v. Chief Athunli and another which was finally settled by a judgment of Mr. Bartlett, Commissioner of the Western Province, delivered on the 30th August, 1928, on appeal from a Native Tribunal.

That case according to the judgment raised the question of the boundary between Kickam and Assenta which is the very question raised in this case, and the Commissioner decided that the boundary of Kickam was Biale from its source to where the bridge on the motor road crosses the stream, and then in a straight line seaward to the mouth of the Bobloma creek, thereby including within the Kickam boundary the Agona lands which are the subject of dispute in this case, and confirming the judgment of the Omanhene in favour of Anopoley.

Counsel for the plaintiff admits that if the judgment in Anopoley v. Athunli and another can be used in evidence against the plaintiff in this case by way of estoppel per rem judicatam he is out of Court, but he coritends that inasmuch as the plaintiff was neither a party nor a privy in that case, the judgment has no effect against him and should not have been admitted in evidence.

Now the first requisite in a case of this kind is to be clear about our terminology. Estoppel per rem judicatam is the rule that a final decision of a Court of competent jurisdiction once pronounced between parties cannot be contradicted by anyone of such parties as against any other of such parties in any subsequent litigation between them respecting the same subject matter. The word parties must be taken as including privies, a privy being a person whose title is derived from and who claims through a party. In the case of Anopoley v. Athunli and another there is no dispute as to the Commissioner's Court being a Court of competent jurisdiction, or as to the decision of Mr. Bartlett being a final decision. Those points being settled there remain two other points at issue between the parties, both of which must be decided in favour of the respondent before the judgment in Anopoley v. Athunli can operate as an estoppel per rem fudicatam in the present case :-

1. Are the parties in both cases the same?

2. Is the subject matter of the dispute in both cases the same?

Let us first discuss the question whether the parties are the same in both suits. Obviously if we go by the names appearing on the record they are not, since in the first litigation the plaintiff was Anopoley, a Korante or headman of Kickam, and the first defendant Chief Athunli and his co-defendant (both of Assenta) were sued as representing their family, while in this litigation

------------~

Appoh Ababio v. Doku Kanga.

plaintiff and defendant are the respective Ohenes of Assenta and Appo~ Kickam. On the other hand both the Omanhene of Eastern Ab.:.blO Nzima and the Provincial Commissioner who heard the appeal Doku Kanga from his decision thought they were, and it will be necessary D -c therefore to scrutinize the evidence that appears on the record eane •. J. to see what, if any, justification there is for that conclusion. Now

in the Gold Coast there is no land without an owner, all vacant

lands being attached to the nearest Stool in which they may be

said to vest for the community represented by that particular

Stool. Stool land may be occupied and used by subjects of the

Stool, and once lawfully occupied by them cannot be alienated

by the Stool without the consent of the occupiers, whose family

property it thus often becomes. The Stool, however, does not

lose all interest in the land: it still retains its paramount title

so that "when a person in possession of Stool land abandons it

or when his family have abandoned it for more than ten years. at

least, the village headman and others can allow another person to

occupy the same." (Vide Sarbah's Fanti Customary Laws,

page 56).

The result is that the same land may be family land and Stool land at the same time-family land in the sense that the family have a right to it even against the Stool, and Stool land in that it is recognised that the land came from and may some day return to the Stool which thus holds something of the position of a reversioner. Hence it commonly happens that a person or family in possession of Stool land may litigate with other persons similarly circumstanced with regard to the boundaries of their lands, and provided that the litigation is between subjects of the same Stool and interests of the Stool are in no wise effected. Thus, whether the verdict goes against " A " or against " B" makes no difference to the Stool since the land, whatever the private boundaries of " A " and " B " may be, still remains within the boundaries of the Stool lands. When, however, litigation takes place between parties who live on the boundaries of the Stool the shifting of a boundary in litigation between subjects of neighbouring states becomes a matter of vital importance to the Stool as involving the possible transference of land from one Stool to the other.

In such cases the private owners of the stool lands over which there is litigation are supposed to inform their Chiefs of the litigation, and the latter in turn, if they consider their subjects in the right, are supposed to assist them in the litigation. The opposing litigants thus become, as it were the champious of their respective Stools.

So when Anopoley of Kickam brought his action for trespass against Chief Athunli and another of Assenta, Anopoley was evidently an individual who was a subject of Kickam in occupation of Kickam Stool land, while Athunli and his co-defendant represented a family in possession of neighbouring Assenta Stool land. In order, then, to decide who was the trespasser it was

256

Appoh Ababio v.

Doku Kanga

Deane, C.].

Appoh Ababio v. Doku Kanga.

necessary to demarcate the boundary between Kickam and Assenta, since the Kickam man would be the owner of the land on the Kickam side of the line and the Assenta man of the land on the other side of the line; and so the Chiefs of the respective Stools were called as witnesses in the litigation which eventually ended in favour of the Kickam man by the Eastern boundary between him and Assenta being drawn along the line marked by pillars from the bridge over the Biale to the Bobloma creek.

Almost immediately after this judgment was given the Assenta Chief, whose subject had as we have seen got the worst of the litigation, took this action against the Kickam Chief claiming delimitation of his boundary with Kickam in the Tribunal at Atwabo of the Omanhene of Eastern Nzima, who was Paramount Chief of both Kickam and Assenta. Before, however, the matter could come on in the Tribunal the plaintiff wrote a letter to the Omanhene which appears on page 54 of the record and which, with the minutes of the State Council of Eastern Nzima appearing on pages 52 and' 53, are included in the record for the purpose of explaining how the matter came to be brought before a State Council for decision instead of being decided by the Paramount Chief's Tribunal in the ordinary way. In the letter from the plaintiff to the Omanhene to which I have referred appears this passage :-" ]anza Anopoley fight the Bialeh land for Ohene of Kickam and Athunli and others for myself," a clear admission by the plaintiff in this case that Athunli and his co-defendant in the case of Anopoley v. Athunli and another had been defending the interests of the Assenta Stool. The question therefore arises whether in view of the circumstances and of that admission by the plaintiff it can be held that the plaintiff and Athunli are so identified that what was decided against Athunli bound the plaintiff. Now I am not prepared to say that if it were clearly proved, in such a case as this, that a party thereto was really litigating as A's agent, then " A " would not be bound by the verdict-it is possible that he would be since" qui facit per alium facit per se " ; but in this case I do not think that the admission coupled with the evidence goes quite far enough to bind the plaintiff as though he were the real litigant.

After all a man may fight my battle incidentally in a law suit in which his own interests are engaged without my requesting him to do so, and without my having any control or say in the litigation even though I may be a witness for him. In this matter we know that the respective Chiefs gave evidence for their subjects, but there is nothing to suggest that they either of them originated or controlled the litigation; in fact with regard to the defendant his own evidence shows that he knew nothing of the matter except what he had heard until he was asked by Mr. Bartlett to give evidence at the rehearing on appeal. That being so it follows that this case comes within the general principle that a transaction

between two parties in. a judicial proceeding ought not to bind a ~b~~ third; for it would be unjust to bind any person who could not be ~.lO admitted to make a defence or to examine witnesses or to appeal from Doku Kanga a judgment which he might think erroneous. The plaintiff therefore D -c J in my opinion cannot be bound on the ground that Athunli was his eane, .. agent acting right through under his direction and so representing

the Stool. Nor again in my opinion can the plaintiff be held to be

a privy of Athunli and his family, since he is in no sense a successor

in title to Athunli. If anything his is the paramount title from

which the Athunli family derived its title: he is as I have said in

the position of a reversioner to whom the land might some day

return and as such would not be bound by a verdict against his ...

tenant for life or years (Rees v. Walters 3 M. & W. 527: Wenman v.

Mackenzie 25 L.J. Q.B. 44). It follows I consider that the plea of

estoppel per rem judicatam cannot be sustained, and that the

State Council and Commander Saxton the Provincial Commissioner

were wrong in thinking that it could. I am not prepared, however,

to hold that the judgment is not admissible in evidence, it has

some evidential value as proof that a Kickam man successfully

asserted a claim to this Agona land; and to that extent it supports

the contention of the defendant that Agona land is Kickam Stool

land since one way of proving that land as Stool land is by proving

that it belongs to subjects of the Stool.

The question then presents itself what is to be done under the circumstances? This matter was tried before a State Council with the Omanhene of the State at the head of it as Paramount Chief. I t is true that in the letter above referred to the plaintiff expressed a hope that the Omanhene would not sit on the Tribunal but would refer the matter to the State Council, and his counsel explained that that was due to the plaintiff having lately had some litigation with the Omanhene. That, however, had been settled and no objection was taken to the Omanhene sitting on the State Council nor has plaintiff alleged prejudice in the Omanhene as a ground of appeal; on the contrary when the litigation between plaintiff and the Omanhene was mentioned and counsel was asked whether he made it a ground of complaint, he definitely said that he did not. The tribunal then which sat to hear this case was the highest Native Tribunal under the Omanhene, the Paramount Chief over both parties, one whose interests therefore were in no wise concerned: the proceedings were conducted as the record shows carefully and in an orderly manner, and the Council after hearing the evidence visited the locus in quo. Their report on the visit shows that they clearly apprehended the points at issue before them.

Their written judgment it is true was largely based on the supposed estoppel, but that was not the onl~' thing before them and they state that they considered all the evidence in arriving at their verdict. That they considered one piece of evidence is

APpo!t clear from their reference to the discrepancy between the evidence

AbablO of the plaintiff who stated that his ancestor Beyi Kwao Nto settled

D:ku Kanga on the land bordering with Agya Ankah before Memli Kotwe the

- ancestor of Chief Athunli came on the scene, and the evidence of

Deane, C.]. his witness Ohene Agun Aka III of Salmon, the descendant of Agya Ankah, who stated that it was Memli Kotwe who first settled on the land before Nto. Now what was the evidence led by the plaintiff in support of his case? First there was the evidence of the linguist who spoke for the plaintiff. On page 8 of the record we find a clear admission by him, when he was asked about the matter, that the settlement of Kickam was prior in time to the settlement of Assenta.

He also said that Anopoley's grandmother paid tolls to Assenta, but when the Council following up the question of tolls asked him "Can you mention from whom you have been collecting tolls?" he mentioned six or seven names but then had to admit in answer to the Council that the persons whose names he had mentioned were subjects of Assenta, a highly significant admission for the reason that subjects of a Stool do not ordinarily pay tolls to their own stool. His evidence as to tolls accordingly boils down to the statement about Anopoley's grandmother.

The first witness for the plaintiff after the linguist was Agya Aka III of Salman already mentioned. The only evidence he gave was tradition as to the persons who first settled on the land, and as already pointed out, his evidence was in opposition to that of the linguist.

The next witness for the plaintiff was a timber merchant by the name of Blay Polley, who made a couple of statements that might appear important for the plaintiff's case, one that a Kickam man fishing beyond Bialeh Akomisu, which I will assume is in the disputed territory, was sent back by the Ohene of Assenta, the other that a man called Agyawi paid £5 to the Ohene of Assenta for being allowed to fish beyond Bialeh Akomisu.

As these very important facts, however, were not deposed to by the plaintiff's linguist who certainly would have mentioned them if they had ever happened, and as the witness Blay Polley was fined £2 by the State Council at the clOtie of his evidence for having given false evidence, it is clear that no weight can be attached to them, or was attached to them by the Council. The next witness Amihia Ansah spoke as to the traditional ownership of the land oeing in Assenta. He stated that when he was a boy his father made a war camp at Biale, and that when he visited the camp to take food to his father he was told by him that the land on which the camp stood belonged to Apo Ababio the plaintiff. As he later on had to admit that the time of the war of which he spoke Apo Ababio was not onthe Stool at all but Agye Panyinah, so that his father could not have told him what he had said he had, and as further he admitted that he knew nothing about the war,

1 \

Appoh Ababio 11. Doku Kanga.

his evidence does not seem of much importance. The last witness for the plaintiff was K wpsi, who represented Ohene Senni Panya!i of Nkroful. Senni's name appears as owner of the land to the north of the odum tree very far away from the Agona lands, of which therefore it is very unlikely that he would know anything. His evidence, which mainly deals with tradition, is not convincing as he contradicted himself and after being forced into admissions withdrew them without explanation. Then the defendant gave his evidence, to the effect that his ancestors had always been on the land from before the plaintiff's ancestors arrived (this evidence as I have shown elsewhere was admitted by the plaintiff) ; that his ancestors gave lands to Mailla Kotwe the ancestor of Athunli and also to James Anopoley's ancestor, and that it was the boundary between these lands which he had pointed out to 1\1r. Bartlett in the litigation between Anopoley and Athunli: he also pointed out that the land was in the possession of Kickam people.

The State Council, after consideration of the evidence and inspection of the land, gave judgment for the defendant. The plaintiff then appealed to the Court of the Provincial Commissioner Mr. Saxton. The Provincial Commissioner visited the land and carefully inspected the conditions on the ground, and then, after hearing counsel for the parties, gave judgment confirming the judgment of the State Council.

It is true that he decided that the judgment in the case of A nopoley v. Athunli operated as an estoppel against the plaintiff, but in his judgment, which shows considerable care and thought, he gave independent reasons for the conclusion at which he arrived. He speaks of the natural features of the country, points out that the land is mostly swamp land, and dealing with the argument that the boundary claimed by Assenta is a natural boundary while that claimed by the Kickam people is an artificial line, states that the Bobloma creek opposite to the bridge may well be a mouth of the Biale river in time of flood, so that the line from the bridge to the creek which had admittedly been marked by pillars since the litigation, was artificial only in the sense of having been freshly marked out but did represent a natural outlet to the sea from the Biale. He pointed out that the land was practically unfarmed except by Anopoley and the Kickam people, who had at once when the Assenta people encroached taken steps to assert their ownership which steps had been successful so that they were now in undisputed possession.

Dealing with the question of tolls he comments on the fact that there is no reliable evidence that the Assenta people ever collected tolls, and although he. is mistaken as to the name of the man who was fined for giving false evidence his argument on that head remains sound.

For my part the admitted fact that the Kickam people were first on the land, coupled with the evidence that they have been

259

Appob Ababio v.

Doku Kauga

Deane, C.].