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ABRAHAMS v. AKWEI


  • appeal
  • 1961-11-16
  • HIGH COURT
  • GLR 676-679
  • Print

OLLENNU, J.


Summary

Estoppel?-Estoppel by conduct?-Grantor standing by in a previous case involving title of his grantee.Evidence?-Circumstances in which proceedings in previous case admissible as evidence in subsequent suit.Practice?-Local courts are bound by decisions of superior courts.

Headnotes

Akwei, the defendant-appellant herein, acquired land under customary law from Nii Kpeshie II, Sempe Mantse. Abrahams, the plaintiff herein, claiming to be the proper authority to alienate Sempe stool lands, granted the same piece of land to one Nunoo. Akwei sued Nunoo for declaration of title and damages for trespass. The Land Court, Accra, by a judgment delivered on the 4th November, 1960 (unreported) decided in favour of Akwei. Abrahams knew of the case, but he did not take steps to join in it to protect his interest. Subsequent to the 1960 case, Abrahams commenced the instant action against Akwei in the Accra West Local Court for declaration of title. At the trial, Akwei tendered the 1960 judgment and submitted that the plaintiff is estopped by that judgment from challenging his title. The local court magistrate ruled against the defendant and ordered the case to proceed. The plaintiff did not lead oral evidence in proof of his title. Instead he tendered the proceedings in two other cases in respect of Sempe stool lands decided in his favour by the same local court. The proceedings were admitted in spite of the defendant's objection. One of those cases had gone on appeal to the High Court, and the judgment was reversed. The local court magistrate ignored the High Court judgment, and basing himself on the proceedings, gave judgment for the plaintiff. The defendant appealed.

Judgement

APPEAL from a judgment of the Accra West Local Court in a suit for declaration of title to land.

The respondent, plaintiff in the Accra West Local Court, claimed declaration of title as owner to the whole of Sempe stool lands in Accra. The immediate cause of action as disclosed in paragraph 1 of his writ of summons is a judgment of this court (unreported) delivered on November 4, 1960 by Adumua-Bossman, J., as he then was, in favour of the appellant, Richard Akwei, against one Ashirifie Nunoo, for declaration of title and damages for trespass. The subject-matter of that suit is a portion of Sempe stool land. The said land was granted to the appellant by Nii Tetteh Kpeshie II, Sempe Mantse, in accordance with customary law. The identical land was sold and conveyed to the said Ashirifie Nunoo by the respondent who claims to be the proper authority to alienate Sempe stool land. Thinking he had acquired good title from the respondent, Ashirifie Nunoo went upon the land to possess it, but his attempt was successfully resisted by the appellant who sued him in this court and obtained judgment against him as stated above. The respondent did not apply to join Nunoo to litigate his title to the land. He, however, instituted this action against the appellant after the appellant had successfully litigated his title against the said Nunoo.

At the trial before the local court, the appellant tendered in evidence a certified copy of the judgment he obtained in this court against Nunoo, and submitted that the respondent was estopped by reason of that judgment from laying claim to the identical land. The local court magistrate rejected the appellant's submission in the following words:

?"In the said judgment exhibit A there is nothing to show that the subject-matter is the subject herein, the court in that case in exhibit A herein bestows no judicial examination on the merits of the question. With great respect I quote the following from the very learned judges of the West African Court of Appeal. It reads: 'In the case of Jonkins v. Robertson, it was held that a decree obtained by arrangement between the contending parties, the Court bestowing no judicial examination on the merits of the question, can never be res judicata?' (see selected judgments West African Court of Appeal 1930-33, Vol. 1 (page 60). Plaintiff herein as the stool father of Sempe, is suing in this action as the paramount title?".

It is not clear what the local court magistrate was talking about. Unfortunately for him he was dealing with legal problems which, undoubtedly, were beyond him, namely the principle of estoppel by conduct, which is quite different thing from estoppel per rem judicatam. That principle is that where a person was vitally interested in a previous case between a person to whom he has sold land and a third party, the validity of the title he has conveyed being in issue, did not apply to be joined as a party to that suit, but was content to stand by and see his battle fought [p.678] by that person in the same right, he would be bound by the result in that case, and would be estopped from re-opening the issue determined in that case. See Marbell v. Akwei (Consolidated)1 and Fiscian v. Tetteh.2 In that case Fiscian sold land to T, who built on it; Tetteh sued T and obtained judgment against her for declaration of title, and recovered possession of the land with the buildings thereon; the main issue litigated was Fiscian's right to convey the land. Fiscian afterwards sued Tetteh and claimed title to, and recovery of possession of the land. It was held that the estate or interest of Fiscian had, to his knowledge been put in issue by his grantee, and as a declaration of title had been obtained by Tetteh against Fiscian's said grantee, in respect of that estate or interest, Fiscian was thereby estopped from denying the title of the defendant. That is exactly the position in this case. The local court magistrate was therefore wrong in rejecting the submission of the appellant.

When the local court magistrate overruled the appellant's submission and ordered the case to proceed, the respondent offered no oral evidence, he simply tendered the record of proceedings in two other cases previously tried by the said local court magistrate and rested his case entirely upon those two records and the averments in his writ of summons. The appellant objected to the admission of those proceedings, but his objection was overruled by the local court magistrate. In this also the local court magistrate erred greviously. Proceedings taken in one case are not admissible in evidence in a subsequent suit unless in very special circumstances, e.g. when evidence given by a witness on a previous occasion is tendered to contradict the same person when he gives evidence to the contrary in a subsequent suit, or where the person who gave the evidence in the previous case has since died, or is not available to give evidence in the subsequent suit; but even in such a case, the evidence will not be admissible unless it is proved that the party against whom that evidence is sought to be tendered in the subsequent suit had opportunity to cross-examine the witness in that former suit when he gave the said evidence. None of those conditions are present in this case. Therefore those proceedings were wrongly admitted. They must be completely disregarded in the consideration of this appeal. With the rejection of those proceedings the respondent is left with no evidence whatsoever, and his claim should therefore be dismissed.

But something most serious happened in this case. The appellant gave evidence and submitted to the local court magistrate as an authority binding upon him, a certified copy of the judgment of the Land Court, Accra, in Allotey v. Abrahams.3 That judgment is a judgment in rem. It decided the very issue raised in this suit, namely who is the proper person entitled by law to deal with Sempe stool lands. The local court magistrate treated that judgment with the greatest contempt and ignored it. He preferred a judgment which he had given, and after quoting at length from his said judgment held, as he had done in that former suit, [p.679] that as between the Sempe Mantse and the elders of his stool on the one hand, and Samuel Modua Abrahams on the other hand, is the said Samuel Modua Abrahams is the proper authority to alienate Sempe stool lands because he the said Modua Abrahams had in his physical possession some stools which he claims to be ancient Sempe stools. That judgment of the local court magistrate upon which he based his judgment in this action from which this appeal is taken, has itself been set aside by this court. For that reason, if not for anything else his judgment in this case cannot stand.

Judgment of the superior courts are binding upon the local courts, local court magistrates would do well to remember that. It is therefore most improper for the local court magistrate to have disregarded the way laid down in the case of Allotey v. Abrahams cited to him, and to have acted on some new-fangled proposition of his own.

The appeal is allowed; the judgment of the local court is set aside including the order as to costs. Any costs paid to be refunded. The following is substituted therefor: The plaintiff?'s claim is dismissed and judgment entered for the defendant. The appellant will have his costs in this court fixed at 40 guineas inclusive, and his costs in the local court fixed at G20.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

J. Amoo-Lamptey

Defendant / Respondent

In person.

Referals

(1) Marbell v. Akwei (Consolidated) (1952) 14 W.A.C.A. 143

(2) Fiscian v. Tetteh (1956) 2 W.A.L.R. 192

(3) Allotey v. Abrahams (1957) 3 W.A.L.R. 280.

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