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 already been
fixed by the Provincial
Commissioner in the case of
Anopoley v. Athunli.
Judgment was therefore given in
favour of the defendant with
costs 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
,res judicata,
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 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
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
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 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 only 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
clear from their reference tothe
discrepancy between the evidence
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
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, 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
and still are in possession,
raises a strong presumption in
their favour as being owners of
the Agona lands. The plaintiff's
Doku Kanga evidence is not
sufficient, in my view, to rebut
that presumption. Dea -c J I do
not think, therefore, that this
is a case which should be sent
back for a new trial. There is
in my opinion ample evidence to
support the conclusion at which
the State Council and the
Provincial Commissioner arrived,
and I think this appeal should
be dismissed with costs.