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syndicate-Judgment against one member of the syndicate binding on the other members.

Some time before 1896 one N. sold certain land to A. A. sold a portion of this land to T., a predecessor of the defendant.

Later N. sold the land a second time to a syndicate consisting of three persons, B., C., and the plaintiff. This resulted in an action between A. and N. in a Native Tribunal, in which A. was declared to have been owner Of the land.

Some time after this B. asserted a right to a portion of the land and was sued for trespass by the defendant in a Divisional Court. The land was found to be the property of the defendant.

In the present suit the plaintiff sued the defendant for trespass on the same land.

Held, affirming the decision of the Court below, that the title of plaintiff was identical with that of B. and that as he had stood by and acquiesced in the title being determined in favour of the defendant in the Divisional Court, he was estopped now from asserting a title to the land.

H. A Hayfron and S. A. Okai-Idun for Plaintiff-Appellant. E. O. Asafu-Adjaye for Defendant-Respondent

The following judgments were delivered :-

SAWREY-COOKSON, J.

This is an appeal from a judgment by Michelin, J. by which he held on the preliminary issue then before him by consent of counsel (Mr. Idun for plaintiff and Mr. Asafu-Adjaye for defendant),

that the action was" res judicata." .

The facts are so fully set out in that judgment that I do not think it necessary to go over them again beyond mentioning that Mr. Asafu-Adjaye relied on two judgments, one by a Native Tribunal in the case of Aboagye v. Nkansa in 1908, and the other by Sir Brandford Griffith, C.J. sitting' in the Divisional Court, Accra, in the case of Coker v. Nmate in 1909, the Coker in that cas~ being the! defendant in this case.

This action was for trespass by defendant on the plaintiff's land, and its hearing was to have commenced" de novo" if the learned Judge found that the matter was not "res judicata" according to the definition of what estoppel amounts to as given in Spencer Bower (and elsewhere). This will be found at the bottom of page 62 and on top of page 63 in the reeord of appeal.

At page 63 (ibidem) the learned Judge proceeds to consider the definition of privies as referred to in that definition of estoppel, a privy being any such person who succeeds to the rights or liabilities of one of the parties to a suit or who is otherwise identified with him in estate or interest, and the learned Judge then went on Yode Kwao to show that, although persons may be distinct in name, yet if their Kwasi Coker title and interest are substantially identical, they are in law considered. as one and the same party for the purpose of estoppel by res Judtcata.

Now so far as the law on this subject goes, neither Mr. Idun nor Mr. Bejamin who was with him in this appeal have anything to say, but they contend that the judgment af Sir Brandford Griffith in Coker v. Nmate cannot be binding or conclusive as against Yode Kwao (the present plaintiff) simply because he bought the land on which he alleges Coker trespassed long before Coker bought it, and reliance is placed on the case Mercantile Investment etc. Co. v. River Plate Trust Co. (1894) 1 Ch. 578. But it seems to me that both counsel have overlooked the fact that the learned tri~ Judge was in entire agreement with them on this point, for he states in his judgment towards the bottom of page 63 of the record that were it not for this very fact, i.e. the fact that Yode Kwao did actually purchase the land now in dispute before the date of Sir Brandford Griffith's judgment, he would have been estopped from bringing the present action. It is clear, therefore, that there were other reasons which decided the matter in the learned trail Judge's view. What were those reasons and did the learned Judge in arriving at his judgment do so against the weight of evidence and was it come to against law, equity and good conscience or was it otherwise erroneous and lastly was it the result of admitting inadmissible evidence? (See grounds of appeal at page 85 of the record). These grounds, at any rate the first three of them, are extremely general and are such as are often found in appeals before this Court that it was not surprising to hear Mr. Benjamin apply for leave to add the fourth. When, however, he came to argue that fourth ground, viz., admission of inadmissible evidence, it only amounted to an attempt to show that Sir Brandford Griffith's judgment had not been properly tendered, and he proceeded to address the Court on what could be said to be in issue and quoted from Wharton's Law Lexicon to show what an issue is and that that judgment was not relevant to the issue before us. But it is clear that the whole question- here is whether or not this judgment has decided that the land now in dispute belonged to the defendant Coker who was then plaintiff in the suit before Sir Brandford Griffith. It was, therefore, clearly admissible, and its great importance consists in showing identity of interest as between Nmate and Yode Kwao in the land now in dispute, and in establishing whether or not the learned trial Judge rightly concluded that the subject matter now in dispute was the same land as was· then in dispute.

In my opinion the answer to that question depends on the consideration of the fact (which is well proved) that there were (so to speak) two camps consisting of two companies, i.e. land purchasing companies who undoubtedly acquired their land from the: same source originally-not perhaps immediately from the sane source, but indirectly.

Each of those two companies consisted of three persons, the on(~ of Chu, Norgah and Coker and the other of Kwao, Agbida and Nmate, and there seems to be no doubt that Nmate was the leader of the latter company: and he being the leader explains, I consider, and supplies the answer to the question asked by Mr. Benjamin, why it was that Kwao was not sued by Coker. It was sufficient, I think, in the circumstances (as Mr. Asafu-Adjaye argued before us), for Nmate to be sued as leader of the company in order that the decision in that case should be binding on the other members of his company in so far as it decided the main question before us, viz., did Coker's land and the land of the other members of his company extend from the Adebon stream right up to the Ababio hill, as shown on the plan (exhibit" A "), or did it extend only to the Kensatso tree as shown at about the centre of that plan.

Sir Brandford Griffith answered that question in Coker's favour and, if that is so, the land in dispute is covered by that decision.

It is also very significant, as the learned trial Judge found, that although Yode K wao was present throughout the hearing before Sir Brandford Griffith, he did not apply to be joined as a party to that action if he knew, as he must be taken to have known, that his own interests were then at stake as well as those of Nmate, they having bought their land at the same time from the same source.

Finally, therefore, I am of opinion that the learned trial Judge has correctly brought the facts and circumstances of the main question which he had to decide within the authorities mentioned in his judgment, in order to, establish that the land in dispute was comprised in the area held by Sir Brandford Griffith to be the property of the defendant's predecessor-in-title and accordingly that he (the plaintiff) was estopped from litigating further in respect of that land. If only for these reasons I consider this a.ppeal should be dismissed with costs assessed at £36 Is. 6d.

DEANE, C.]. THE GOLD COAST COLONY.

This is an appeal from a judgment of Michelin, J. in a suit begun in the Native Tribunal of Srah Yilo Krobo, and transferred to the Divisional Court by an order of Mr. Fieldgate, Acting Commissioner of the Eastern Province.

The plaintiff's claim in the suit was for damages for trespass to his land. He alleged that the land in question which is shown on the plan put in evidence by consent and marked" A," being the more or less triangular shaped parcel of land outlined in blue in the said plan, was bought by him from one Nkansa the agent of the Ohene of Kukurantumi in the year 1926, that he was in possession of the land from that date until now, but that in November, 1929, the defendant entered upon his land and carried away cocoa and foodstuffs growing on it. He claimed £100 damages for the trespass.

The defendant admitted having gone upon the land and gathered cocoa thereon, but alleged that the land in question was his property. He traced back his title to one Aboagye or Tserepon his brother who, he stated, bought the land from Nkansa the agent of the Ohene of Kukurantumi some time before the Prempeh expedition of 1896.

Aboagye sold the land which he bought from Nkansa and which compri!!ed the whole of the land west of the most easterly green line, to three persons who divided it up among them, the westernmost portion outlined in blue on the plan falling to one Tetteh Kpar from whom the defendant derived his title. These three parties were in possession of the land bought cultivating it when their pessession was disturbed by three other persons, who claimed that they had bought the northern portion of the land lying between a line running through the Kenatso tree on the south to the Aboabo hill on the north through one Odonkor Nmate. the head of their syndicate or company, from the same Nkansa. They thereupon complained to Aboagye that their possession was being disturbed. Aboagye at once took action in the Native Tribunal of Akwapim against Nkansa "for taking and selling a portion of land at Adabanho sold by defendant to myself and my brother Kwame Tserepon extending from Adabon stream to the top of Aboabo hill without calling me to stand on the boundary."

On 30th March, 1908, the Tribunal found that "it is the custom that Nkansa should have called upon the plaintiff to stand upon his boundary when he was selling the top portion of his land to Odonkor Nmate.

" We find that the land was sold to plaintiff and his brother Tserepon up to Aboabopepoano. Judgment for Plaintiff with costs. "

Each of those two companies consisted of three persons, the on{~ of Chu, Norgah and Coker and the other of Kwao, Agbida and Nmate, and there seems to be no doubt that Nmate was the leader of the latter company: and he being the leader explains, I consider, and supplies the answer to the question asked by Mr. Benjamin, why it was that Kwao was not sued by Coker. It was sufficient, I think, in the circumstances (as Mr. Asafu-Adjaye argued before us), for Nmate to be sued as leader of the company in order that the decision in that case should be binding on the other members of his company in so far as it decided the main question before us, viz., did Coker's land and the land of the other members of his company extend from the Adebon stream right up to the Ababio hill, as shown on the plan (exhibit" A "), or did it extend only to the Kensatso tree as shown at about the centre of that plan.

Sir Brandford Griffith answered that question in Coker's favour and, if that is so, the land in dispute is covered by that decision.

Finally, therefore, I am of opinion that the learned trial Judge has correctly brought the facts and circumstances of the main question which he had to decide within the authorities mentioned in his judgment, in order to· establish that the land in dispute was comprised in the area held by Sir Brandford Griffith to be the property of the defendant's predecessor-in-title and accordingly that he (the plaintiff) was estopped from litigating further in respect of that land. If only for these reasons I consider this aj)peal should be dismissed with costs assessed at £36 Is. 6d.

DEANE, c.J. THE GOLD COAST COLONY.

The plaintiff's claim in the suit was for damages for trespass to his land. He alleged that the land in question which is shown on the plan put in evidence by consent and marked" A," being the more or less triangular shaped parcel of land outlined in blue in the said plan, was bought by him from one Nkansa the agent of ~he Ohene of Kukurantumi in the year 1926, that he was in possession of the land from that date until now, but that in November, 1929, the defendant entered upon his land and carried away cocoa and foodstuffs growing on it. He claimed £100 damages for the trespass.

Aboagye sold the land which he bought from Nkansa and which comprised the whole of the land west of the most easterly green line, to three persons who divided it up among them, the westernmost portion outlined in blue on the plan falling to one Tetteh Kpar from whom the defendant derived his title. These three parties were in possession of the land bought cultivating it when their possession was disturbed by three other persons, who claimed that they had bought the northern portion of the land lying between a line running through the Kenatso tree on the south to the Aboabo hill on the north through one Odonkor Nmate, the head of their syndicate or company, from the same Nkansa. They thereupon complained to Aboagye that their possession was being disturbed. Aboagye at once took action in the Native Tribunal of Akwapim against Nkansa "for taking and selling a portion of land at Adabanho sold by defendant to myself and my brother Kwame Tserepon extending from Adabon stream to the top of Aboabo hill without calling me to stand on the boundary."

On 30th March, 1908, the Tribunal found that •• it is the custom that Nkansa should have called upon the plaintiff to stand upon his boundary when he was selling the top portion of his land to Odonkor Nmate.

" We find that the land was sold to plaintiff and his brother Tserepon up to Aboabopepoano. Judgment for Plaintiff with costs. "

The word "Aboabopepoano" has been explained by Mr. Koranteng, a Native Barrister-at-Law who at the time of the trial was clerk to the Akwapim Tribunal, as meaning the edge of the Aboabo hill, and it will thus be' apparent that the Tribunal found that the land sold by Nkansa to the defendant's predecessors in title stretched from the Adupon stream to the edge of the Aboabo hill, covering in fact the whole extent of land in dispute in this case. The finding of the Tribunal in fact was conclusively in favour of Aboagye as against Nkansa who sold the top portion to Odonkor Nmate; and had the action by Aboagye been instituted against Nkansa before the sale to Odonkor Nmate the judgment would have equally been conclusive as against Odonkor Nmate. As, however, Odonkor Nmate had already bought and taken possession when Aboagye instituted his action, it is clear Odonkor Nmate could not strictly be affected since some equity might have been acquired by Odonkor Nmate against Aboagye which Nkansa did not have and which might prevent Odonkor's title from being affected by the judgment (Mercantile Investment and General Trust Co. v. River Plate Trust Loan and Agency Co. (1894) 1 Ch. pages 579 and 595). Odonkor Nmate we may suppose, however, had acquired no equity against Aboagye, because as soon as the judgment was given in favour of Aboagye against Nkansa he left the land as did the other two members of the syndicate who bought with him, viz., the plaintiff and a man named Agbida who had been alloted a piece of land between the plaintiff's portion and Odonkor Nmate's This action by them was consistent with native custom. In this Colony cases of land being bought by companies or syndicates in the name of one of the members, who is referred to as the leader, and of the land being then divided up among the members, are fairly common. In such cases it is well recognised that the title of one is the title of all, and if the title of one member of the syndicate is challenged, the others at once come forward and support him knowing well that the land has been acquired by all of them at the same time by a single act of purchase. When therefore the Tribunal gave judgment in the case of Aboagye v. Nkansa in favour of Aboagye, and in effect decided that Nkansa having already parted with the land to Aboagye had no land to sell to Odonkor Nmate, we are not surprised to hear that not only Odonkor Nmate but the other members of the syndicate left the land.

But as generally also happens in this Colony, Odonkor Nmate soon repented of his action in leaving the land-whether it was because he learned that the judgment did not act as an estoppel against him, or whether he determined that inasmuch as the Tribunal in their judgment had referred only to the "top" of the land he might have another try to retain the land for which he had paid we do not know, but we find him within a year asserting his right to the bottom of the land, i.e. the parcel enclosed in browr lines on plan II A."

Thereupon Kwesi Coker, the defendant in the present suit, brought an action against him in the Divisional Court. The claim was for £100 damages for trespass committed by removing provisions from plaintiff's land situate at Adupon and bounded on the east by Kwami's land, on the west by Akpati's land, on the north by the Aboabo hill and on the south by the Adupon stream. This is the piece of land coloured blue in " A " which includes the part II at the top" now claimed by plaintiff. The case came on before Sir Brandford Griffith, c.]. and on 20th April, 1909, the learned Chief Justice gave judgment for Kwesi Coker. The judgment has been put in evidence. In it the Chief Justice stated "The Court is satisfied that Nkansa was agent for the Ohene of Kukurantumi and sold the land to Aboagye or his predecessor, i.e. his brother Tserepon; that Nkansa did not sell the land to Aboagye only up to the Kenatso tree but generally towards the Aboabo hill: that Coker is the successor to the rights of Aboagyc so far as the land in dispute is concerned"; and again, "The Court is satisfied that the evidence of Mr. Koranteng as to what took place at Akropong is reliable"

" I do not believe that Nkansa ever said at Sra that he had sold the land to Aboagye and his brother up to the Kenatso tree. I find that the land is the property of the plaintiff" (i.e. K wasi Coker) " and there must be judgment for the plaintiff."

Now it is clear from a companion of this judgment with the judgment of the Tribunal that the plaintiffs in both these cases were setting up that their land extended from the Adupon stream on the south to the Aboabo hill in the north, while the defendants in both cases were claiming that the land sold to Aboagye by Nkansa extended only to a certain point north of the stream-referred to by Sir Brandford Griffith as the Kenatso tree--and that Nkansa had sold to them the land north of the Kenatso tree up to the Aboabo hilL It is equally clear that in both cases the contention of the plaintiff's prevailed and the contention of the defendant's failed. The learned Chief Justice in fact accepted the contention of K wasi Coker and found that the land claimed by him was his. That judgment, however., was given against Odonkor Nmate nominally, and it is contended by the plaintiff in this case that it cannot affect him in any way since in the first place he was not a party to it, and in the second place because the portion of land in dispute in that action before Sir Brandford Griffith was the portion delineated in brown on plan " A " while his land is an entirely separate piece. These contentions, however, in my opinion, do not bear examination.

I t is true that the action was nominally against Odonkor Nmate, but as I have pointed out and as the learned Judge found the title of Odonkor Nmate was identical with the title of the plaintiff. The plaintiff would know full well that the title of his syndicate was being called in question when Odonkor Nmate's title was challenged, and we find him giving evidence in support of Odonkor Nmate before Sir Brandford Griffith just as we find Odonkor Nmate and Agbida's successor giving evidence on his behalf in this case.

Beyond giving evidence, however, he did nothing although he must have known well that the question that was being litigated very deeply concerned him and that the title to his land was being affected. He was content to let Odonkor Nmate fight the battle while he kept in the background. But as was said by Cockburn, c.J. in Roden v. London Small Arms Co. 46 L.J. Q.E.D. 213, the doctrine is well known and recognised in Courts of law, that if you stand by and allow another to do an act in a particular way which you could have prevented at the time, you must be held bound by the act so done with your acquiescence. Or again by Lord Cottenham in Leeds (Duke) v. Amherst (Lord), 16 L.J. Ch. 5, " If a party having Yode Kwao a right stands by and sees another dealing with the property in a Kwasr'Coker manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain." Deane, C.J. The plaintiff therefore who took no steps to have himself joined with Odonkor Nmate as a defendant before Sir Brandford Griffith, although he knew perfectly well that any order affecting Odonkor Nmate's title would equally affect his, the two titles being the same, cannot now be heard to complain that he was not a party but must be taken to have acquiesced in the matter being decided in those proceedings.

Nor is plaintiff's second objection that what was being litigated was the portion of land coloured brown and not his piece tenable in my opinion. It is quite true that the piece coloured in brown was the scene of the actual trespass, but the land claimed and found by the judgment to be the property of Kwasi Coker (the present defendant) was the whole blue piece, and the true test is that Odonkor Nmate is not precluded by the judgment only from going on to the piece of land delineated in brown, but is estopped as regards the whole parcel coloured blue

But if Odonkor Nmate is estopped, so is the present plaintiff 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.)

I agree in fact with the learned Judge who took the view that plaintiff was estopped in this action by the judgment in the Divisional Court in 1909

As to the question of counter-espoppel by laches, the learned Judge found that the evidence was not sufficient to support the plea and I see no reason to dissent from that finding.

The appeal must be dismissed with costs assessed at £36 Is. 6d.

TEW, C.]. SIERRA LEONE.

I concur .