Estoppel-Person not a party standing by in previous case involving his title.

(The two actions related to adjoining plots of land and were consolidated but were dealt with apart as in the second action a plea of estoppel was raised with success. The first action-I. S. N. Marbell v. R. Akwei-turned on evidence; the plaintiff failed below and appealed with success upon the evidence, which is dealt with in the latter part of the judgment on appeal beginning with the words " The first action relates to a plot of land" etc. The trial Judge made a mistake in the consideration of the evidence. This headnote deals with the first action no further.)

In regard to the second action-R. Akwei v. E. C. Co fie-which is dealt with in the first part of the judgment on appeal:-

The plot in question in the above action had been the subject of litigation between Emelia C. Cofie and one S. Y. Faris (and one MacDonald). She claimed title through certain persons, and Faris claimed through E. Akwei, from whom he bought the plot, and the issue was which was the valid title. R. Akwei gave evidence in support of Faris. Emelia C. Cofie won that case, and pleaded estoppel against R. Akwei in the new action of Richard Akwei v. Emelia Chicher Cofie (mentioned above as the second action in the appeal). The trial Judge was of opinion that R. Akwei, though not a party in the previous litigation, was in the same interest as S. Y. Faris and might, if he had chosen to take the necessary steps, have been admitted as a party in that litigation, the result of which was likely to affect him, and that consequently R. Ahwei was estopped from re­litigating the title to the plot against Emelia C. Cofie. Akwei (the plaintiff) appealed on the ground, mainly, that the mere fact that he gave evidence did not make him a privy although his evidence supported a title he himself had conveyed.

Held: The appellant was vitally interested in the previous case between the respondent and a person to whom he, the appellant, had conveyed, as the validity of the title he had conveyed was in issue in that case; instead of applying to be joined as a defendant in that case, he was content to stand by and see his battle bought by that person in the same interest; he was therefore bound by the result 1Il that case and estopped from re-opening the issue determined in that case.

Cases cited:-

(I) Wycherleyv.Andrews (1872},L.R., Courts of Probate and Divorce Vol2 327.

   (2) Wilkinson v. Blades (1896), L.R., C.R., 788.      

(3) Yode Kwao v. Kwasi Coker, 1 W.A.C.A., at p. 1H8.

(4) Mercantile Investment and General Trust Co. v. River Plate Tntst Loan  and Agency Co. (1894), 1 Ch. D., 595.

Appeal by the plaintiff in each of the above two suites: No. 46/51.

K. A. Bossman for Akwei.

J. Sarkodee-Adoo for Marbell and also for Cofie. [pg143]

 

The following judgment of the Court was delivered:

This is an appeal from a judgment of Jackson, ]., in two suits which were consolidated by an order made by him under the provisions of Order 3, rule 9 of the Civil Procedure Rules.

In suit No. 27 of 1950 the plaintiff, Isaac Marbell, claimed against the defendant, Richard Akwei, the sum of £50 damages for trespass upon land situate in Farrar Avenue, Accra. Other claims were included in the Civil Summons but they have no relevarice to this appeal.

In suit No. 29 of 1950, the plaintiff Richard Akwei claimed as against the defendant Emelia Chicher Cofie, a declaration of title to a plot of land in Farrar Avenue, Accra.

Both actions related to plots of land adjoining each other, each having a frontage on Farrar Avenue.

In the second suit a plea of estoppel had been raised in the statement of defence, which if successful would put an end to that piece of litigation. That being so the learned trial Judge, with the agreement of the parties, allowed the point to be argued before dealing with the earlier suit. The same procedure was adopted at the hearing of the appeal before us.

The facts in that case shortly put, are as follows:-

On the 7th October, 1947, Richard Akwei conveyed the western of the two plots I have already referred to, to one Shakik Yusuf Faris, the vendor purporting to be seised of an estate in fee simple by virtue of a sale to him of the land in question by the Nii Odoi Kwao Family of Christiansborg, Accra. The conveyance was admitted in evidence as Exhibit" 15 ".

After his purchase of the plot of land Faris commenced building upon it and as a result Emelia Co fie brought an action against him and one MacDonald claiming damages for trespass and an injunction restraining them from entering upon the land. The plaintiff in that action, Emelia Cofie, claimed the legal estate in fee simple in the plot of land by virtue of a conveyance executed by the executors of one Vidal] ames Buckle. That conveyance was admitted in evidence as Exhibit" 14 ".

The action was tried before Smith, ]., who gave judgment for the plaintiff, Emelia Cofie.

The issue Smith, ]., had to determine was which of two conflicting titles was the valid one, namely, was the title of Richard Akwei, as derived through the Nii Odoi Kwao Family the good title, or that of Emelia Cofie, derived through the executors of the late Vidal] ames Buckle. The trial] udge found in favour of the title of Emelia Cofle, as against that of Faris who claimed title by virtue of the alleged conveyance of the land to him by Richard Akwei.

That is the same piece of land in respect of which Richard Akwei sought a declaration of title as against Emelia Cofie in the present suit.

It is admitted that in the action tried by Smith, J., Richard Akwei gave evidence in support of Faris' title and as Jackson, ]., said in his judgment in this case ... " it is manifest that he was in a class of persons' who may be likely to be affected by the result' (Order 3, rule 5) namely by being liable to refund to Faris the sum he had received as purchase money together with certain other costs if Faris could not successfully defend his title as against Emelia Chicher Co fie ". The learned trial] udge went on to say:

" Quite clearly Richard Akwei is estopped from further litigating this matter. Apart from decisions in the English Courts in the cases of Wytcherley v. Andrews (1872), L.R. 327 and Wilkinson v. Blades (1896) L.R. C.R. 788, I am bound by the decision given by the West African Court of Appeal in the case of Yode Kwao v. Kwasi Coker (1 W.A.C.A.) where at page 168 Deane, C.]., said:-

"But if Odonkor Nmate is estopped, so is the present plaintiff [pg 144]

because his interests, as I have pointed out, are coterminous with Odonkor Nmate's: and a person may be bound by a judgment though not a party to it if he is in the same interest as a party thereto and might, if he had chosen to take the necessary steps, have been admitted as a party (Farquharson v. Seton, 5 Russ. 45) ,

.. and I did accordingly rule that in his action against Emelia Chicher Cofie (Suit L. 29/50) the plaintiff Richard Akwei was estopped and I do dismiss his claims as set out in the writ with costs."

Counsel for the appellant submitted, inter alia, that Richard Akwei could not, in any circumstances, have been made a party to the proceedings before Smith, J., that for the judgment in the former case to act as an estoppel in the present one it was necessary for Akwei's interest to be such as to entitle him to be joined as a party, and he argued that the case of Yode Kwao v. Kwasi Coker (3), referred to by the learned trial Judge, does not support the contrary view because there the Court had under consideration the question whether a judgment against one member of a class, where the title and interest of all the members was identical, bound the other members of the class, and that different principles apply in such cases. He further submitted that there is not sufficient evidence of his being a privy, in the sense that he ought to be held to be bound in law by the previous decision, that the mere fact that he gave evidence in favour of Faris' title does not make him a privy even although his evidence supported a title he himself had conveyed. Finally he referred us to a passage from the judgment of Romer, J., in the case of Mercantile Investment and General Trust Company v. River Plate Trust, Loan, and Agency Company (4), where the learned Judge said: •• A prior purchaser of land cannot be estopped as being a privy in estate by a judgment obtained in an action against the vendor commenced after the purchase."

It is obvious that the appellant was vitally interested in the result of the case before Smith, J. It was the validity of the title he had conveyed to Faris which was in issue in that case, and although joinder under Order 3, rule 5 is discre­tionary, we have no doubt, if an application to be joined as a defendant had been made by him, that it would have been granted by Smith, J.

It has been repeatedly held by this Court and the Courts in England that if a person was content to stand by and see his battle fought by somebody else in the same interest, he is bound by the result, and should not be allowed to re-open the case. As Lord Penzance said in Wytcherley v. Andrews, L.R. Courts of Probate and Divorce, Volume 2, at p. 329, •• That principle is founded on justice and common sense." The Court looks to substantial justice and that which right reason requires.

It is true, as contended by Counsel for the appellant, that in Yode Kwao v. Kwasi Coker (3) the Court was dealing with the question whether a judgment against one member of a class where the title and interest of all the members was identical, bound the other members of the class. The principles applied by the Court in that case seem to us equally applicable to the present one.

The passage cited from Romer, J.'s judgment, in our view, has no application to the case before us. This case is the converse of the type of case to which Romer, J., was referring. Here Akwei was Faris' vendor and, as we have already said, it was his title to convey to Faris which was in dispute in the former case.

For the reasons we have given we are of the opinion that the learned trial Judge was right in holding that the appellant was estopped from litigating the issue which was determined in the case between the respondent and Faris.

The first action relates to a plot of land with a road frontage of 80 ft. adjoining the eastern boundary of Emelia Cofie's land. On the adjacent plot, still more to the east, stands Thelma Lodge, which will be referred to later. The defendant Akwei as stated already based his title upon a sale by the Nii Odoi Kwao Family [pg145] dated 31st October, 1936. The plaintiff-appellant Marbell, traced his title ultimately to a conveyance by Ayeetey Tawiah, the Korle Priest of Accra to Ayeley Akuah as follows:-

By Exhibit" 4 " dated the 14th May, 1910, for £25, the Korle Priest sold land to Ayeley Akuah with a southern frontage of 400 ft. on what is now Farrar Avenue.

By Exhibit" 3 " dated the 21st May, 1910, for £12 10s. Od., Ayeley Akuah sold the western one-half of the land comprised in Exhibit" 4 " with a frontage of 200 ft. to Adjuah Fio.

By Exhibit" 5 " dated the 18th May, 1912, for £198, Ayeley Akuah conveyed to Vidal J. Buckle the remaining one-half of the land she had acquired from the Korle Priest by Exhibit" 4 ".

By Exhibit" 9 " of the same date, namely 18th May, 1912, for £40, Adjuah Fio conveyed to Vidal]. Buckle the land which she had acquired from Ayeley Akuah by Exhibit" 3 ". By these two Deeds, Exhibits" 5 " and" 9 " both bearing the same date, Buckle acquired the identical land with a frontage of 400 ft. which the Korle Priest had sold to Ayeley Akuah by Exhibit" 4 ".

By Exhibit" 10" dated 10th January, 1913, for £45, Ayeley Akuah conveyed to Vidal ]. Buckle another plot of land with a road frontage of 200 ft. adjoining the eastern boundary of the plot comprised in Exhibit" 5 ".

By Exhibit "11" dated 1st September, 1916, for £175, Ayeley Akuah conveyed to Vidal ]. Buckle another plot of land with a road frontage of 200 ft. adjoining the eastern boundary of the plot comprised in Exhibit" 10 ".

The result of Buckle's purchases between the years 1912 and 1916 by Exhibits " 9 ", "5 ", "10" and" 11 " was that he became the owner of land with a continuous frontage of 800 ft. on Farrar Avenue.

Marbell, by his Deed of Conveyance dated 30th September, 1932, from the executors of Buckle, claims that a portion of the land which Buckle acquired by Exhibit" 9 " from Adjuah Fio has been sold to him while the defendant, Akwei, contends that the said executors had no right to convey the land in question because Exhibit" 9 " relates to the plot immediately to the east of it on which Thelma Lodge actually stands, and that Buckle did not buy any land to the west of that plot of land.

It may be as well to set out the issue in the words of the learned trial Judge himself :-

" The case for the defendant Richard Akwei is that Thelma Lodge stands upon the western portion of the land originally conveyed to Ayeley Akuah and that the two plots in issue in the present consolidated trial were never purchased by the late Buckle so as to enable his executors to deal with them as a part of his estate."

In considering the Deeds of Conveyance, the learned Judge makes a special point of the fact that in Exhibit" 9 " the Deed from Adjuah Fio to Buckle, together with the land are conveyed, " building, garden, farm and plantation" and he draws the inference from these words that Buckle, in 1912, owned a building on the land sold by Adjuah Fio. He finds later in his judgment that the building is Thelma Lodge which must stand on the most westerly plot purchased by Buckle in 1912 and therefore that it being to the west of Thelma Lodge, the land claimed by Marbell was not within Adjuah Fio's sale to Buckle. In the words of the learned Judge:-

" Now it is abundantly clear that the only building in existence in 1912 was that one which had been built upon the plot purchased by Adjuah Fio and which was the plot sold to Buckle with the building on the 18th May, 1912 (Exhibit " 9 ") and that it is this building which was improved upon and subsequently became known as Thelma Lodge. [pg146]

" Apart from any other 'evidence it is quite clear to me that the late Vidal Buckle never purchased any land to the west of the land once owned by Adjuah Fio and that it follows her executors had no estate vested in them to the land to the west of the plot upon which Thelma Lodge now stands."

A careful perusal of the record of evidence and the exhibits brings us to the conclusion that this finding of the learned trial Judge cannot be supported. It entirely fails to take into account Exhibit" 5 ", its recitals and the evidence which that Deed affords of Buckle's total frontage of 800 ft. as a result of his acquisitions.

This Deed is nowhere referred to in the judgment appealed from and we can only conclude that this was due to an omission, which is unusual in the case of the learned trial Judge.

It will be observed that both exhibit " 5 " and exhibit " 9 " bear the same date and are drawn in identical form. Exhibit" 5 " relates to the first plot sold by Ayeley Akuah to Buckle. It contains the same descriptive words" with building, garden, farm or plantation and whatsoever being or erected or growing thereon ", as Exhibit" 9 " does and which led the learned Judge to find that in 1913 the Thelma Lodge building stood on the western portion of the land which had a frontage of 400 ft. It is clear, however, that no inference can be drawn, either way, from the description referred to as it appears in both Deeds.

It is inevitable that if at his inspection, the learned Judge failed to take Exhibit" 5 " into consideration as if it did not exist, then a tape measure run eastwards from the western limit of the plot upon which Thelma Lodge stands to the western boundary of other land sold by Ayeley Akuah to Thomas Morgan & Co. in 1913 would measure approximately 600 ft. and it would ,not be difficult to find from that measurement even if it were taken from the correct datum point from the western corner of Thomas Morgan's land that Buckle never owned land to the west of the plot upon which Thelma Lodge stands. That result would be arrived at by regarding Thelma Lodge as on Adjuah Fio's plot Exhibit" 9 ", 200 ft.; placing Exhibit" 10 ", the garden plot now owned by Martinson and others next eastward, 200 ft.; and Exhibit" 11 ", now Guinea Lodge next eastward, 200 ft. But by the Deeds of Conveyance in evidence, Exhibit" 5 " \dth a frontage of 200 ft. has still to be accounted for. Obviously this 200 ft. cannot be run from the eastern corner of the Guinea Lodge plot into Thomas Morgan's property of which Buckle never had title.

The result, irresistibly, is that the remaining land with a 200 ft. frontage is on the westward side of what the learned Judge describes as the plot on which Thelma Lodge stands and that that land comprises the frontage plots conveyed by the executors of Buckle to the plaintiff-appellant Marbell in Suit No. 27/1950 and to the defendant-respondent Emelia C. Cofie in Suit No. 29/1950.

In our view the frontage measurements of the admitted conveyances are a more decisive factor in this case than the actual site of Thelma Lodge. Although no inference that Thelma Lodge stood on Adjuah Fio's plot can be gathered from the descriptions already referred to in the Deeds, the fact that £198 was paid as the purchase price of Ayeley Akuah's plot and £40 was paid by Buckle, on the same day, for Adjuah Fio's plot of identical dimensions and similar terrain, and that £45 was paid eight months later for land to the east of Ayeley Akuah's plot of approximate size, suggests forcibly that Buckle was paying a higher consideration for something on Ayeley Akuah's land. In her evidence Mrs. Ellen Buckle says, When we bought the land in 1912 on which Thelma Lodge stands there was only a swish building." This probably is what the extra £150 was paid for. Mrs. Buckle added later in her evidence that to the west of Thelma Lodge was vacant land belonging to Afio (Adjuah Fio).

So clearly has the learned trial Judge failed to arrive at a correct judgment through measuring a frontage of 600 ft. instead of 800 ft. by overlooking Exhibit [pg147]

" 5 " that it is unnecessary to consider the other reasons for his judgment. In our opinion the Odoi Kwao Family had no title to grant to the defendant. The finding that the executors of Buckle have sold Marbell land which was never part of Buckle's estate and to which the executors had no title is therefore erroneous and the appeal must be allowed. The judgment of the Court below in Suit No. 27/1950 is set aside and there will be substituted therefore a judgment for the plaintiff with damages which are assessed at £5 for trespass and for the injunction and order for removal of the defendant-respondent's cement blocks in the terms prayed.

Appeal dismissed.

[pg148]