Estoppel-Previous suit-Person
privy to Plaintiff-Person in
same interest standing by.
There had been a previous action
in which the Stool of Muronam
litigated against the Banka
Stool the title to a piece of
land; the Banka Stool won. The
case now under appeal related to
the same land. The appellants
were the plaintiffs below, No.1
being the Paramount Chief of
Akim Abuakwa, to whom the
Muronam Stool is subject, and
No.2 the head of the Muronam
Stool; they at first sued the
representative of the Stool of
Adanse, but he asked for his
master, the Banka Stool, to be
joined as co-defendant. The
defendants denied plaintiffs'
claim and also pleaded the
former judgment as estoppel. The
trial Judge held that.plaintiff
No.2 (the Muronam Stool) was
estopped thereby having been a
party in the previous action,
and that as plaintiff No.1 was
suing on the plea that the
Muronam Stool lands are attached
to the paramount Akim Abuakwa,
he, also, was estopped from
questioning a judgment obtained
against a Stool claiming under
him, as the issue in the
previous action was about the
title itself to the land and he
knew of that action and had a
right to intervene but did not.
The trial Judge dismissed the
case, and the plaintiffs
appealed, in substance on the
grounds that the parties were
not the same as before and that
the trial Judge was wrong in
holding that the Paramount chief
of Akim Abuakwa knew of, or had
a duty to intervene in the
previous case.
Held:
(1) As regards the second
plaintiff, now appellant No.2:
in the previous case between him
and the person now respondent
No.2, there was a judgment
against him in regard to the
title to the land in dispute,
therefore he was estopped from
re-litigating the title to the
same land.
(2) (a)
As regards the first plaintiff,
now appellant No.1: the opening
statement in the former suit
and the writ and statement of
claim in the present suit show
that the land is claimed as the
property of the Muronam Stool
and that Akim Abuakwa's interest
is only by virtue of Muronam's
allegiance to Akim Abuakwa; Akim
Abuakwa can only establish an
interest in the land by
establishing the title of the
Muronam Stool and is therefore
privy to the rvluronam Stool and
estopped from re-litigating the
title by the judgment in the
previous suit against the
Muronam Stool.
(b)
Appellant No.1 had, as above
stated, the same interest as
appellant No.2 in the previous
action; the proceedings in that
case showed that appellant No.1
knew about them, but having
stood by in that action by
appellant No.2 in which the
defence claimed that the land
belonged to another paramount
Stool, was estopped from
re-opening the question of
Muronam's title to the land.
Case cited:-
(1) In re Lart: Wilkinson
v.
Blades
(1896) 2
Ch. 788.
Appeal by plaintiffs: No. 46/50.
J. B. Danquah for
Appellants.
N. A. Ollennu
for Respondent.
[pg149]
The following judgment was
delivered:
Manyo-Plange, J.
In this appeal the
plaintiffs-appellants claimed by
their writ the first as
Paramount Chief of Akim Abuakwa
to whom Muronam Stool and Stool
land are subject and, the
second, as the Odikro of Muronam
to whose Stool the Muronam Stool
lands belong for a declaration
of their title to the land the
subject matter of the action and
for an injunction.
The writ was issued against only
the first defendant-respondent.
The title to the land the
subject matter of the action has
in a former action
(Chief Kwame A ndoh and another
of Muronam on behalf of the
Stool of Muronam
v.
N ana Kwakye Penkro, Bankahene
and two others)
been litigated by the second
plaintiff-appellant's Stool and
the Banka Stool as represented
by the then Bankahene. In that
action judgment was given
against second
plaintiff-appellant's Stool.
In that action, the Bankahene's
defence was that the land was
for the Adansehene for whom he
was caretaker. The first
defendant-respondent therefore
applied for the joinder of the
Banka Stool as represented by
Brako Ababio II as co-defendant
and he was accordingly so
joined.
Pleadings were ordered and
statements of claim and defence
were filed. The
defendants-respondents by their
defence denied that the
plaintiffs-appellants were
entitled to the declaration
sought and pleaded further, that
the plaintiffsappellants were
estopped from litigating the
title to the land in dispute
and, in support of the plea of
estoppel, pleaded the judgment
in the former action referred to
above.
The plea of estoppel was upheld
by the learned trial Judge on
different grounds against the
plaintiffs-appellants.
The learned trial Judge held
that the second
plaintiff-appellant was a party
to the former action in which
the cause of action and the
subject matter of the action
were the same as in this action
and was therefore bound by the
judgment in that action and
thereby estopped from again
litigating the title to the land
in dispute.
As against the first
plaintiff-appellant, he held
that the claim made by the
Muronam Stool in the former
action was quite clearly within
the knowledge of the Omanhene of
Akim Abuakwa and, that as the
first plaintiff-appellant pleads
that the Muronam lands are
attached to his Stool, there was
then, if true, a clear duty on
Akim Abuakwa to intervene, and
having been cognisant of those
proceedings and having a right
to intervene, and not having
done so, Akim Abuakwa Stool,
that is first
plaintiff-appellant, is now
estopped by his conduct from
questioning a judgment obtained
against a Stool claiming under
him; since it was not only the
right of possession of Muronam
which was then attacked, but it
was the title to absolute
ownership that was challenged ..
Having thus held, the trial
Judge gave judgment against the
plaintiffsappellants,
dismissing their claim with
costs. It is against this
judgment that the
plaintiffs-appellants have
appealed on 14
grounds. In my view, the
determination of this appeal
turns only on the first two
grounds which read as follows:-
" 1. The learned Judge of the
Court below was Wrong in finding
for the
respondent and co-respondent on
their plea that-
, the issues between the parties
had been determined by a
decision given by the Court of
the Chief Commissioner of
Ashanti on the 19th December,
1940, and which decision had
been upheld by the West African
Court of Appeal on the 29th May,
1941,'
" in that, taken together, the
two previous decisions did not
in fact and in law, determine
the issue of ownership of the
land in dispute, the parties in
the previous action were not the
same, the issues to be
determined were not the same,
and the evidence required in
support was also not the same.
Neither the first Plaintiff nor
the principal Defendant in the
present action was privy to any
party in the previous action of
1940. [pg
150]
"2. The learned Judge of the
Court below was wrong in holding
that the claim made by the
Muronam Stool in 1940, was quite
clearly within the knowledge of
the Omanhene of the Akim Abuakwa
State, or that there was a clear
duty on the part of the Omanhene
to intervene, and that not
having so intervened he is now
estopped by his conduct from
questioning a judgment obtained
against a Stool claiming under
him. The Odikro of Muronam did
not claim under the Omanhene of
Akim Abuakwa in that suit."
The first ground attacks the
finding of estoppel by record
which was against the second
plaintiff-appellant and the
second ground attacks the
finding of estoppel by conduct
against the first
plaintiff-appellant.
I shall deal firstly with the
first ground. As stated by the
learned trial Judge, a perusal
of the copy of the proceedings
with the judgments which was
exhibited and is Exhibit" A " in
this action, shows that the
second plaintiff-appellant and
second defendant-respondent in
this action, were the principal
parties in the former action:
second plaintiff-appellant in
that action being the first
plaintiff, and the second
defendant-respondent the first
defendant. The issue was the
same as in the present action
i.e. ownership to land, and the
land in dispute the same as the
land in dispute in the present
action. The claim of the second
plaintiffappellant then, as
now, was for a declaration of
title to the same land as in
this action. The judgment which
was given against the second
plaintiff which was confirmed on
appeal by this Court, was one of
a dismissal of his claim and not
a non-suit; it reads as
follows:-
" I find there is no evidence on
the plaintiff's side to justify
the grant of the declaration of
title which he seeks ... There
will therefore be judgment for
the defendants with costs to be
taxed."
It was therefore a final
judgment as to his claim to the
title to the land in dispute.
That being a final judgment
in rem
against the second
plaintiff-appellant, he is in my
view as held by the learned
trial Judge, estopped from
re-litigating the title to the
ownership of the same lane!.
Ground 1 therefore fails.
Before leaving this ground, I
would like to add that, although
the learned trial Judge did not
base his finding against the
first plaintiff-appellant on his
being privy to any party to the
former action, I am of the
opinion that the first
plaintiff-appellant is also
bound by the judgment in the
former action on the ground of
his being privy to the second
plaintiff-appellant who claimed
title as owner to the land. In
the former action there were no
pleadings, but Counsel for the
plaintiff in that action stated
in his opening as follows:-
" ... originally all three
parties (that is Muronam, Banka
and Kade) lived on Anum and Prah
lands subject of the Ofori
Stool, i.e. the Paramount Stool
of Akim Abuakwa to which they
all owed allegiance through the
Odauhene of Otwereso and Osenase
... The plaintiffs were the
first to settle on the land in
that area. They claim to have
been on the land from time
immemorial. "
It is to be observed that there
was no suggestion of the
plaintiffs having derived their
title to the land from Akim
Abuakwa nor is it so suggested
in this present action. This
claim of Muronam is not
challenged by Akim Abuakwa; on
the contrary Akim Abuakwa joins
Muronam to reassert the claim
that the lands are Muronam
lands, for by their writ, they
claim that the land belongs to
Muronam. The writ and the
statement of claim in the
present action read together
with the opening statement of
plaintiff's Counsel in the
former action already quoted,
make it clear in my view that
the land is claimed to belong to
Muronam and that its attachment
to the Stool of Akim Abuakwa is
only by virtue of Muronam's
admitted allegiance to Akim
Abuakwa, and it is that
allegiance that gives Akim
Abuakwa an interest in the
Muronam lands. Therefore, any
interest that Akim Abuakwa may
have in the land in dispute is
derived
[pg 151] from, and
entirely dependent on Muronam's
title to the land; that is Akim
Abuakwa claims her interest
through Muronam and not that
Muronam claims under Akim
Abuakwa as the learned trial
Judge \vould seem to have held.
Akim Abuakwa therefore, can only
establish an interest in the
land by establishing the title
as owner of the Muronam Stool.
This view is strengthened by the
joinder of the Muronam Stool as
co-plaintiff. Akim Abuakwa Stool
therefore, is privy to the
Muronam Stool through which it
claims an interest in the land
in dispute, and is thereby
estopped by the judgment in the
former action from again
litigating the title.
I now come to ground 2. Exhibit"
A ", the proceedings in the
former action, in my view makes
it abundantly clear that the
Omanhene of Akim Abuakwa was at
the time of these proceedings
aware of them and of the claim
made by the Muronam Stool in the
action, and the claim set up by
the Banka Stool. The Muronam
Stool serves Akim Abuakwa Stool
through a sub-chief of Akim
Abuakwa that is the Odauhene.
This sub-chief was fully aware
of the action and proceedings.
He was subpoenaed at the
instance of the plaintiffs and
he deputed and authorised his
linguist to attend and give
evidence on his behalf-see page
94 of the record and the
linguist's evidence at page 121
of the record. In addition to
this, the Secretary to the
Omanhene of Akim Abuakwa and
Registrar to the Akim Abuakwa
State Council went from Kibi to
Kumasi to give evidence for the
plaintiffs-see page 129 of the
record, and before this he had
been serving notice on the
defendants to produce documents.
In these circumstances, I find
it inconceivable that the
Omanhene of Akim Abuakwa could
have been unaware of the
proceedings. The matters I have
referred to, in my view,
abundantly support the learned
trial Judge's finding that the
proceedings were clearly within
the knowledge of the then
Omanhene of Akim Abuakwa.
Now, there could have been no
doubt that the claim put up then
by the Bankahene would, if
established, have been adverse
to the interests, if any, of
Akim Abuakwa in the land in
dispute. That being so, what
should the Omanhene of Akim
Abuakwa have done in the
circumstances? In my view he
should have applied to be joined
as co-plaintiff. He took no such
course. Being cognisant of the
proceedings, he was "content to
stand by and see his battle
fought by somebody else in the
same interest": the interest is
the same, because the matter to
be determined in the present
action was the same as was
determined in the former action,
namely Muronam's title to the
land in dispute, without which
Akim Abuakwa cannot establish an
interest in the land. Having
stood by and seen the battle
fought to a finish to the
disadvantage of Muronam, he goes
to sleep for nearly five years,
then suddenly wakes up and tries
to re-open the question of
Muronam's title to the land in
dispute which had been
determined in the former action.
Clearly the first
plaintiff-appellant is by his
conduct estopped from so doing
and I think the case of
In re Lart: Wilkinson
v.
Blades
(1) supports the view that the
first plaintiff-appellant is
estopped by his conduct. I see
practically no distinction
between that case and the
present except that, in
Wilkinson
v.
Blades
(1), Wilkinson actually took a
benefit under the judgment; but
that in my view only amounted to
further evidence of
acquiescence.
Counsel for the
plaintiffs-appellants argued
that, as the dispute was between
two sub-chiefs of the Paramount
Stool, the Paramount Stool could
not intervene; because, whatever
the result, its title to the
land could not be affected. That
argument would have had some
force if the former action had
been one in which the titles of
the opposing parties were both
derived from the Paramount Stool
of Akim Abuakwa.
Here, not only are the titles to
the land in dispute not derived
from the Akim Abuakwa Stool, but
the defence claimed that the
land belonged to some other
[pg 152]
Paramount Stool, that is, the
Stool of Adansi.
The Stool of Adansi had
previously laid claim to the
land in dispute, in the case of
Omanhene of Adansi against the
Queen Mother of Muronam
in which judgment was given in
favour of Adansi in the District
Commissioner's Court and was
upheld on appeal to the
Provincial Commissioner's Court;
but on further appeal to the
Chief Commissioner's Court the
appeal was allowed not on the
merits, but only on the ground
that the Court of first instance
had no jurisdiction. When
therefore Adansi's title to the
land was again asserted, it was
clearly the duty of Akim Abuakwa
to intervene if she had an
interest to the land. Ground 2
must therefore also fail.
As I have already stated the
determination of this appeal
turns in my view only on the two
grounds I have dealt with. The
conclusions at which I have
arrived make irrelevant any
considerations of the other
grounds of appeal. I would
therefore dismiss this appeal
with costs.
Foster-Sutton, P.
I concur.
Coussey, J A.
I concur.
Appeal dismissed.
