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JUDGMENT
TWUMASI, J.A.:
The appellants representing the
stool of Gomoa Akyemfo
instituted an action before the
High Court, Cape Coast against
the respondents, the first in
his capacity as the chief of a
town called Dwema otherwise
known as Mumford and the rest
being subjects and licencees of
the first. The subject matter of
the suit was a piece or parcel
of land described by the
appellants as lying and situate
at Gomoa Akyemfo and bounded on
its sides as follows:
(a) On the south by lands
belonging to Mumford and Apam
stools
(b) On the north by properties
of Agyin of Whidda, Kwame Anonu
and Kwabena Amoo of Assin
Akwantsin
(c) On the east by Apam stool
land
(d) On the west by Mumford
stool land behind the Atue
river.
The complaint leveled against
the respondents was that they
had committed acts of trespass
upon a portion of the land which
belonged to the stool of Gomoa
Akyemfo. The appellants
therefore claimed for (1) a
declaration of title to the land
described in the indorsement of
their writ of summons and as
described above, (2) damages for
trespass, (3) recovery of
possession and (4) perpetual
injunction. The appellants
claimed that the land in dispute
was acquired by their ancestors
who broke the virgin forest and
settled upon the land from time
immemorial. They pleaded that in
1963 the Government of Ghana
divided to constitute a portion
of the land described in their
writ for use as Fuel-wood Forest
Reserve.
The respondents asserting that
they did not recognize any town
as Gomoa Akyemfo and that the
place they knew was Dwema
Akyemfo claimed that the said
Dwema Akyemfo was but a suburb
of Mumford and that the people
of Mumford were the original
settlers of the area being
claimed by the appellants. They
pleaded in paragraph 4 of their
statement of defence that their
ancestors granted permission to
the people of Gomoa Akyemfo to
settle on the land because both
peoples belonged to the Nsona
clan of the Fanti community of
Ghana. The respondents therefore
contended that the acts of
trespass complained of by
appellants were a legitimate
exercise of the legal rights of
the people of Mumford in the
development and expansion of the
town of Mumford.
What was happening and which
prompted the legal action
instituted by Gomoa Akyemfo was
that the people of Mumford were
putting up buildings and
otherwise using the land as
owners would do without notice
to Gomoa Akyemfo. The appellants
relied upon the judgment given
in their favour by the
Commissioner appointed to settle
claims in respect of the
Fuelwood Forest Reserve
acquisition by the Government.
By that enquiry and judgment the
Commissioner declared the
appellants as owners of the
Forest Reserve land and rejected
the claim by Mumford stool.
The proceedings of the enquiry
was tendered in evidence as Ex
C. The judgment of the
Commission was affirmed by the
Court of Appeal. For their part
the respondents pleaded certain
judgments but the appellants by
paragraph 4 of their reply to
the statement of defence denied
that they were bound by those
judgments.
The position therefore that
emerged was that apart from the
merits of the case each party
relied upon the plea of estopped
per rem judicatam. The learned
trial judge heard the case on
the merits and made findings
that even though the judgment of
the Fuelwood Forest Reserve was
unimpeachable it did not operate
as a judgment declaring the
appellants as owners of the land
claimed by them in their writ of
summons because, as he opined,
the said judgment must be
limited to that area affected by
the Government acquisition.
Before he delivered his judgment
the learned trial judge
inspected the land in dispute.
By this I am talking of the
whole or entire area claimed by
the appellants in their writ and
which same land the respondents
claimed as theirs arguing that
the whole of Gomoa Akyemfo was a
suburb of Mumford. One material
fact pleaded by the appellants
in paragraph 2 of their reply
which was not challenged but
which the learned trial judge
glossed over in his judgment was
the plea that Gomoa Akyemfo had
never been part of Mumford or
Dwema because Gomoa Akyemfo
formed part of the Adonten
Division of the Traditional Area
while Mumford belonged to the
Nifa Division.
I wish to say before long that
in the proceedings of the
Reserve Commissioner’s enquiry a
witness states that Mumford is
under Nifa Division while Dwema
Akyemfo falls under the Adonten
Division. Then the witness
stated that as the chief of
Mumford he is the sole owner of
the proposed forest reserve
area. The respondents in their
amended statement of defence
filed long after being served
with the reply to their original
statement of defence were in my
view expected to take that
opportunity at least to aver
something about that material
fact respecting the two separate
divisions of the traditional
area but this was never thought
of.
The appellants attacked the
judgment on three main grounds:
(1) that the learned trial judge
erred in holding that the
appellants’ plea of estoppel per
rem judicatam could not dispose
of the case in their favour.
(2) That the learned trial
judge erred by substituting his
impressions gathered at the
inspection of the land for the
evidence tendered by the
witnesses in court and by the
documents.
(3) That the judgment was
against the weight of the
evidence.
Before I deal with the
submissions of Counsel for the
appellants on the question of
estoppel I deem it important to
state the amplitude of plea of
estoppel. In the case of Ababio
v Kanga (1932) I WACA 253 at 254
Deame CJ stated:
“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 any one 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.”
What concerns us in this appeal
is the phrase “the same subject
matter”. This has been construed
not only as identity in the
ordinary geometric sense, but
also identity in the juridical
sense and the latter sense has
also been explained to mean that
in law part of a thing can be
construed as being identical
with the whole and when this
happens it is said that there is
identity in the juridical sense.
Two cases would be sufficient to
illustrate the point. They are
Frempong II versus Effah
(1961)GLR 205 and Robertson v
Reindorf (1971) 2 GLR 289 and
the rule can be found in the
second case holding (1) as
follows:—
“If in an action in respect of a
portion of land title to a wider
area covering that portion is
put in issue, a judgment given
in that action operates as
estoppel against a subsequent
suit involving a portion of the
larger area.”
Thus in the Robertson case the
Court of Appeal held that the
decision in the earlier suit on
a quarry site was arrived at
after the court had pronounced
that the larger area in which
the quarry was situate belonged
to the respondent’s family and
that the estoppel raised by that
decision should therefore not be
limited to the quarry site only.
In the instant case, the
question naturally obtrudes
whether the learned trial judge
was right in limiting the
estoppel raised by the
appellants to the area acquired
by the Government for the
proposed Fuel wood Forest
Reserve. The position taken by
Counsel for the respondents was
that in order for the rule in
Robertson v Reindorf to apply,
there must be proof that the
court pronounced judgment on the
larger area. Accordingly he
submitted that the rule was
inapplicable to the instant case
where the learned Commissioner
who settled ownership of the
proposed reserve forest area did
not pronounce judgment on the
ownership of the wider area that
was raised in response to this
argument.
Counsel for the appellant
submitted that since both
parties and their witnesses gave
evidence in support of their
rival claims to the ownership
over the wider area and the
Commissioner’s decision was
based on the evidence so
adduced, the mere fact that he
made no formal declaration or
pronouncement on the wider area
could not affect the application
of res judicata over the said
wider area. It seems to me that
certain portions of the judgment
of the Fuelwood Forest Reserve
Commissioner may be relevant and
LI refer to them as follows:
At page 31 of Exhibit C
“Nana Edwey ix gave evidence on
oath but in his evidence he was
unable to show how the proposed
area was acquired by his stool.”
At page 32
“It is quite clear from Nana
Edwey’s evidence that he failed
hopelessly to prove the root of
his title nor was he able to
prove the origin of the proposed
area. He seems to base his claim
merely by virtue of his being
the Ohene of Mumford.”
At page 33
“As against Nana Edwey’s claim,
Kwa Botwe on the other hand was
able to trace the history of the
proposed area and gave evidence
as to how the proposed area was
acquired by his ancestors.”
In the course of his evidence
Kwa Botwe described the
boundaries of the land which his
ancestors founded and the river
Atue was particularly mentioned.
He also stated that Gomoa
Akyemfo paid no tribute to
Mumford because Gomoa Akyemfo
were the original owners of
their land. It is clear from the
pronouncements of the
Commissioner that in arriving at
his decision, he took into
account the history of the
acquisition by the people of
Gomoa Akyemfo of the area they
occupied as a people. In this
regard I found myself in entire
agreement with the submission of
Counsel for the appellant that
the evidence led and relied on
before the Commissioner by both
parties was one entire right to
the whole area, part of which
was eventually constituted into
a reserve. Another submission by
Counsel for the appellants which
found favour with me was his
reference to holding two in the
case of Aperade Stool v Achiase
Stool (1957) 3 WALR page 204 at
page 205 thus:
“A test to be used in
determining whether there is
identity of subject matter is
whether or not the evidence
required to establish the one
claim will be the same as that
required to establish the other”
In the instant case the evidence
required to prove ownership of
the proposed forest reserve was
the same as that required to
prove ownership of the wider
area and once the appellant’s
predecessors were able to
establish that their ancestors
broke the virgin forest of the
area which was being claimed by
the respondents and historical
evidence was adduced by the
appellants side, while the
respondents had no history to
offer and thereby lost the case,
it did not lie in their mouth
several years after 1973 to
plead history to establish that
their ancestors were the
original settlers of the area.
They are clearly estopped. In my
view where there was clear
evidence in a previous trial
that an issue as to the
ownership of a wider area of
land subject matter of the suit
arose and the trial court or
judge gave judgment in favour of
a party upon the evidence led
before the court, any such
judgment in favour of the said
party as owner of the specific
area being part of the wider
area must be taken as judgment
for such party over the whole
area about which the litigation
arose between the parties
notwithstanding the omission by
the court to make a formal
pronouncement to that effect.
Were it not the case, there
would never be an end to
litigation because the loosing
party shall always raise
litigation piecemeal over the
wider area at his whim and
caprice. The law frowns over
such practice. Thus in the case
of Henderson v Henderson 1843 3
Hare 100 – 121 Wingham VC said
at page 224 of Vol 64 Revised
Reports and I quote:
“The plea of estoppel applies in
exceptional cases, not only to
points upon which the court was
actually required by the parties
to form an opinion and pronounce
judgment, but to every point
which properly belonged to the
subject matter of the litigation
and which the parties exercising
reasonable diligence might have
brought forward at the time.”
In the instant case the
respondents could not produce
historical evidence before the
Commissioner in the previous
enquiry. They however pleaded
copious history in their amended
statement of defence to
establish that their ancestors
were the first settlers of the
area known as Gomoa Akyemfo.
This was not permissible yet the
learned trial judge went into
the case and made positive
findings that the ancestors of
the respondents first settled in
the vicinity, abandoned the
place before the ancestors of
the appellants came to the
place. This was clearly
unsupportable having regard to
the fact found by the
Commissioner that the
respondents predecessors
hopelessly failed to prove any
root of title to any part of the
area in dispute. The learned
trial judge failed to advert his
mind to the case of Appiah v
Addai (1962) 1 GLR 345 where the
Supreme Court of the First
Republic speaking through Chief
Justice Sir Arku Korsah (as he
then was) directed that it was
incumbent upon a court before
which a plaintiff in his
statement of claim pleads
estoppel against the defendant
to try the issue of estoppel
before the proceeds to the
merits in the event of the plea
failing.
In the instant case the
appellants had raised the issue
of estoppel in their pleadings
and the learned trial judge
erred by ignoring it and
proceeding to hear the case on
the merits. This approach was
dangerous as it did not serve
the ends of justice because in
such situations the party
estopped would naturally take
advantage to make amends where
his predecessors failed. A
glaring event that occurred in
the trial, for example, was the
averment by the respondents in
their statement of defence as
amended that Gomoa Akyemfo was a
suburb of Mumford. This plea was
diametrically adverse to the
positive finding by the Forest
Reserve Commissioner as born out
by Exhibit C and D. Again the
appellants’ contention that the
Atue river formed one of their
boundaries came up in the Forest
Reserve proceedings but the
learned trial judge after
hearing fresh evidence rejected
it. This was clearly wrong, to
say the least with due respect
to the learned trial judge.
The respondents relied upon a
judgment in a case entitled The
Tribunal Per Linguist Kofi
Adubah v Ohene Debi, J.B.
Simpson per JJ Quaye and the
judgment of the High Court dated
29th May 1972 and confirmed by
the Court of Appeal, Accra, in a
judgment dated 3rd July 1973 in
the suit Nana Edwey ix. V Nana
Nyan IV And Kobina Ogomong. On
the evidence it is clear that
the dispute in these cases were
fought between Apam and Mumford
as to their boundary. Gomoa
Akyemfo were not parties. In
fact Gomoa Akyemfo gave evidence
on behalf of Mumford. It was a
clear instance of ‘res inter
alios acta’. Professor Nokes in
his book titled “Nokes On
evidence” 4th Edition at page
226 puts the point in the
following words:
“Strangers to former proceedings
are not normally estoppel by the
judgment, which has been
variously regarded as hearsay or
as irrelevant opinion, or as a
thing done between others ( res
inter alios acta ). A judgment
in such proceedings cannot
usually operate as estoppel
either for or against a stranger
and it is immaterial that one of
the parties to the former
proceedings is also a party to
the late action”.
This opinion can be found in our
local case Bedu v Asbi (1972) 2
GLR 238 where the High Court
held that a witness cannot rely
on estoppel in the action
neither can the rule be enforced
against him unless he joined as
a party. In the case relied upon
by the respondents, Gomoa
Akyemfo sought to join as a
party to protect their interest
but it was refused entry on the
ground that the issue was the
boundary between Apam and
Mumford. It was therefore wrong
to hold that the judgment
affected Akyemfo. I now wish to
deal with grounds (a) and (e) of
the grounds of appeal which I
have outlined as grounds (b) and
(c) on the issues of the
findings of the learned trial
judge being against the weight
of the evidence and the alleged
improprieties in the inspection
of the land by the learned trial
judge. First of all, it must be
noted that the learned judge had
before him a surveyor’s plan
which had been prepared to show
the land in dispute ie the area
trespassed upon and the
respective areas claimed by the
parties each showing their
boundaries.
The plan was tendered in
evidence by consent. Thereafter
the parties and their witness
gave evidence. I should have
thought the next stage for the
trial judge was to have made his
findings on such evidence
relating it to the plan and
other exhibits. Inspection to
the locus becomes necessary only
where the evidence raised a
material issue which can only be
resolved by the colourless
evidence at the locus. Thus in a
recent case heard by this court,
Raphael Afartei Brown v Komigah
Quarshigah dated 11th April
2002, unreported, the court
found nothing wrong with the
trial judge going to the locus
to resolve the issue of whether
there were coconut trees planted
on the land by the respondent, a
fact denied by the appellant.
There was no survey plan. The
danger which unwarranted visit
to the locus creates is that the
trial judge may be influenced by
his impressions gathered at the
locus. This is what happened in
the instant case and I find that
the criticisms by Counsel for
the appellants was well
justified. For instance on
behalf of the appellants PW2
testified that adadze trees
formed the boundary features
between Akyemfo and Apam and
also about Kroboadze. The
learned judge held that PW2’s
evidence was false because on
the evidence Akyemfo shared no
boundary with Apam to the south
and east with your back facing
the sea, but this finding is in
conflict with Exhibit 5 where a
witness of the defendants
admitted that Mumford Salt pound
(Akyemfo) lies between Apam and
Mumford. This means Akyemfo must
share boundaries with Apam and
Mumford as stated in their writ
of summons and proved by PW2. A
careful look at the surveyor’s
plan clearly shows that PW2
spoke the truth when he
testified at the locus in answer
to questions put to him by the
learned trial judge at the locus
in quo (See page 209 line 19-38
of the record of appeal. Even
the manner in which the learned
trial judge put questions to PW2
which in my view smacked of
cross-examination could
embarrass a witness of low
courage. The judge’s remarks on
this incident back to the court
room confirmed my disapproval of
the approach which may
nevertheless have been made in
good faith. Another finding made
by the learned trial judge which
conflicted with a fact which had
been established by the
Commissioner was about a certain
rubbish dump which he saw at the
inspection. He used some
reasoning to discredit the claim
by the appellants that Akyemfo
had a boundary at Atue but this
had been established by the
Commissioner of the Fuelwood
Forest Reserve. By far the most
intriguing and yet fundamental
aspect of the whole case
revolves around one question
which has continued to agitate
my mind. The question is if the
respondents’ claim that Gomoa or
Dwema Akyemfo was a suburb of
Mumford which implies that their
whole land mass on which they
existed as a people was a
suburb, and this claim had been
found to be false by a
Commissioner who enquired into a
portion of the land, I see no
factual ingenuity by the people
of Mumford or legal sophistry by
a trial judge to counteract the
claim that Akyemfo people owned
the land. The area trespassed
upon clearly falls within Gomoa
Akyemfo.
The evidence is clear on the map
and the testimony of the
appellants. The Gomoa Akyemfo on
the evidence are a farming
community. They control the bush
area and the place where the
trespass took place and the
learned judge erred in not so
finding. On the evidence as a
whole, I am of the firm view
that on the balance of the
probabilities the appellants’
case succeeds. The appeal is
allowed. The judgment of the
court below is hereby set aside.
In lieu thereof there shall be
judgment for the appellants on
all the reliefs indorsed on the
Writ of Summons except recovery
of possession.
The appellants are entitled to
damages for trespass assessed at
¢1 million against each person
who has put up a house on the
land.
Costs of ¢ 5 million for the
appellants. Costs of the court
below to be refunded.
P. K. TWUMASI
JUSTICE OF APPEAL
OMARI-SASU, J.A:
I agree.
K. OMARI-SASU
JUSTICE OF APPEAL
ADINYIRA (MRS), J.A.:
I also agree.
S.O. ADINYIRA (MRS)
JUSTICE OF APPEAL |
