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COBBLAH v. OKRAKU


  • New
  • 1961-11-20
  • HIGH COURT
  • GLR 679-686
  • Print

OLLENNU, J.


Summary

Estoppel?-Estoppel per rem judicatam?-Subject-matter in judgment relied on must be identical with subject-matter in dispute.Estoppel?-Previous judgment affecting same land will not estop third party unless he knew of that case and was aware that it affected subject-matter in present suit.

Headnotes

The plaintiff sued the defendant in trespass in respect of a piece of land in Accra at a place called Lartebiokorshie. He alleged that the land was gifted to him by the Sempe stool in 1947, that in 1952 when a Mr. Bruno trespassed on to the land he successfully took action in the Land Court, Accra, against him and his grantor, Modua Abrahams. The judgment in that case, entitled Cobblah v. Gariba & Modua Abrahams and dated the 25th February, 1955, was tendered in evidence as exhibit B. The defendant on her part pleaded that the land belonged to the Alata stool of James Town, and that it was given to her father-in-law Teiko Tagoe some 50 years ago. In support of her contention that the land belonged to the Alata stool she tendered and relied on (a) Mantse Anege Akwei v. Mantse Kojo Ababio (1927) P.C. '74-'28, 99 in which the Sempe stool had unsuccessfully litigated title to a larger area against the Alata stool; and (b) Mantse D. P. Hammond v. Mantse Kojo Ababio & Anor. (1912) D. & F. '11-'16, 17 in which the Sempe stool supported D. P. Hammond, the Asere Mantse in an unsuccessful claim he made to certain land against the Alata stool. She therefore contended that the plaintiff is estopped per rem judicatam from alleging that the land is Sempe stool land and that it was properly granted to him.

Judgement

ACTION for damages for trespass to land and an injunction.

The claim of the plaintiff is for damages for trespass and injunction, and the subject-matter of the suit is a piece of land situate in an area west of Accra town, popularly known as Lartebiokorshie and south of a settlement known as Sarbon Zongo. The plaintiff who is a subject of Sempe stool claims that the land in dispute was granted and conveyed to him by the Sempe stool in 1947 by deed of gift dated the 8th December, 1947, and he was placed in possession of the same. He pleaded that his possession of the land was invaded in 1952 by one Bruno, who in spite of all warnings built on a portion of the land upon the authority of one Modua Abrahams; in consequence of that trespass the plaintiff sued the said Bruno and the said Modua Abrahams and recovered judgment against them for declaration of his title, and for recovery of possession of the land with the buildings thereon. He pleaded further [p.681] that in May, 1960 the defendant also trespassed upon a portion of his said land and fixed pillars thereon, claiming it to be her property.

The defence is that the area of land in dispute forms part of an area of land owned by the Alata stool of James Town, and that the defendant and her predecessors in title, i.e. her father-in-law, one Teiko have been in quiet possession of the same for over 50 years as a portion of land granted to her father-in-law by the said Alata stool. The defendant therefore put the plaintiff to strict proof of his title to the land. It was further pleaded for the defence that the dispute is res judicata by reason of a judgment of the Privy Council1 which confirmed concurrent judgments of the Divisional Court2 and the Full Court3 in a suit entitled Mantse Anege Akwei v. Mantse Kojo Ababio, Mantse Anege Akwei being the occupant of the Sempe stool, the plaintiff's grantor, and Mantse Kojo Ababio, occupant of the Alata stool, the defendant's grantor. The defendant further pleaded that the plaintiff and his grantor, the Sempe stool, are estopped by the conduct of the Sempe stool in supporting Mantse D. P. Hammond, Asere Mantse, in an unsuccessful claim he made to the land against the Alata stool in suit entitled Mantse D. P. Hammond v. Mantse Kojo Ababio and Another.4

It was submitted by counsel for the defendant that the plaintiff, as privy in estate to the Sempe stool who lost in that suit, is estopped from asserting title to the land in dispute. One of the most essential elements of estoppel per rem judicatam is that the subject-matter of the subsequent suit is identical with and comprised in the subject-matter of the former suit. The subject-matter of the suit upon which the plea is based is land situate at Wedjeian, some miles away from the land in dispute in this case, acquired by Government under the Public Lands Ordinance5 for water works. That land is miles away from the land now in dispute and has no connection whatsoever with the land the subject-matter of the present suit. Therefore the judgment in that former case cannot operate as res judicata to estop the Sempe stool or the plaintiff in this suit. The significance of the judgment of the Privy Council in that suit, Mantse Anege Akwei v. Mantse Kojo Ababio, is that it emphasised one of the basic principles of the common law of Ghana with relation to land, namely, that land, urban or rural, exclusively used by the subjects of a particular quarter of a town, belong exclusively to that quarter, and land exclusively used by subjects of a particular sub-stool belong exclusively to that sub-stool. In other words, the management and control of such land is vested in the quarter or in the sub-stool as the case may be and not in the paramount or head stool, subject only to the jurisdictional authority of the paramount or head stool in whom is vested the absolute title of all the lands, together occupied and owned by all the quarters of the town or all the sub-stools under that head or paramount stool.

[p.682]

It is only land within the area of authority of a paramount or head stool which is not occupied by subjects of any quarter or subjects of any sub-stool, which comes under the direct control of the paramount or head stool: Wiapa v. Solomon.6

The importance therefore of the case of Mantse Anege Akwei v. Mantse Kojo Ababio as far as this case is concerned, as would appear presently, lies in the emphasis it lays on the aforesaid principle of our land law, and not in the res judicata pleaded.

On the plea that the Sempe stool, and its grantee, the plaintiff are estopped by the conduct of the Sempe stool in the case of Mantse D. P. Hammond v. Mantse Kojo Ababio, counsel relied upon the following cases: Wilkinson v. Blades7, Marbell v. Akwei8 and Nana Ofori Atta II v. Nana Bonsra Adjei.9

The decision in Marbell v. Akwei followed the decision in Wilkinson v. Blades, above, and Yode Kwao v. Kwasi Coker10; another case decided upon the same principle is Fiscian v. Tetteh.11

In the case of Yode Kwao v. Kwasi Coker, a number of farmers forming a syndicate of which Yode Kwao was a member, purchased a larger area of land and apportioned it among themselves; later one member of the syndicate litigated his title to his portion of the land with Coker a non-member of the syndicate and lost. Yode Kwao knew of the case and gave evidence in support of the member of the syndicate. Afterwards he Yode Kwao sued Coker in respect of his, Yode Kwao's portion of the land. It was held that since his title was identical with that of the other member of the syndicate who litigated his title with Coker and lost, and having stood by and acquiesced in the title being determined in favour of Coker in that other case, he was estopped from asserting title to the land. In the cases of Marbell v. Akwei, and Fiscian v. Tetteh it was held that a vendor of land is vitally interested in a suit between the purchaser from him and a third party to determine title to the land he sold and conveyed to the purchaser, and if he stood by and judgment went against the purchaser from him, he would be estopped by that judgment from afterwards asserting his own title to that land.

In the case of Ofori Atta II v. Bonsra Adjei, a sub-stool to the plaintiff's stool litigated with the defendant's stool and lost. The plaintiff thereafter sued the defendant claiming title to the same land. It was held that since as a paramount stool the plaintiff's title to land depended upon title of its sub-stool to the land, a judgment against the sub-stool operated as estoppel against the paramount stool.

It follows that for the principles laid down in the judgments cited to apply, it must be proved that (1) the land in the subsequent suit is identical with and comprised in the land the subject-matter of the former [p.683] suit, and (2) the interest or title which the person sought to be estopped claims in the subsequent suit is identical with that claimed by one of the parties to the previous suit.

Now the land the subject-matter of the suit in Mantse D. P. Hammond v. Mantse Kojo Ababio is proved upon the evidence led by both sides to be land known as Sarbon Zongo which Mantse Kojo Ababio granted to some Hausas for building a settlement; while the land in dispute in the present suit is situate in an area known as Nmenmetey, and is at least about 300 yards away from Sarbon Zongo; it is also proved that the said Sarbon Zongo and the said Nmenmetey lands are portions of a large area of land known and called Lartebiokorshie. Therefore the land the subject-matter of this suit is not identical with and is not comprised in Sarbon Zongo the land over which Mantse D. P. Hammond litigated with Mantse Kojo Ababio. Again the evidence shows that the Mantse D. P. Hammond's stool, the Asere stool, did not claim the land as a grantee of the Sempe stool, as was the case in Marbell v. Akwei and Fiscian v. Tetteh; nor does the Sempe stool in the present suit claim that the Asere stool is a sub-stool of the Sempe stool, and that by operation of law, land owned by the Asere stool belongs also to the Sempe stool as the paramount or senior stool, as was the case in Ofori Atta II v. Bonsra Adjei. Therefore those cases cited have no relevance to the issues in the present suit, and cannot operate to estop the plaintiff from prosecuting his claim in this suit.

The plaintiff tendered in evidence exhibit B, the judgment of the Lands Division of the then Supreme Court delivered on the 25th February, 1955, in the suit entitled Cobblah v. Gariba Modua Abrahams. The plaintiff, Cobblah in this suit is the same person as Cobblah, the plaintiff in that suit. It was submitted on behalf of the defendant that the said judgment is res inter alios acta, and therefore inadmissible, the defendant not being a party to that suit. The submission of counsel for the defence would have been forceful if the document had been tendered with a purpose to establish a plea of estoppel by res judicata. But as counsel for the plaintiffs pointed out, the said judgment was tendered to prove the plaintiff's possession and active steps taken by him on previous occasions to resist attempts to violate his said possession.

I agree that the judgment cannot operate against the defendant as estoppel by res judicata, nor can it be admitted to establish estoppel by conduct, i.e. representation by silence or inactivity, because although it is clear that the land now in dispute was comprised in the land the subject-matter of the former suit, there is not enough evidence that the defendant knew and was aware of the said suit, and if she knew of the suit that she knew that the land the subject-matter of that suit comprised the land which she claims as part of her land. But there is another aspect of the question. A person who sues another person for title and for damages for trespass to, and/or for recovery of possession of land, is asserting his possession of the land and his right to immediate possession thereof.

[p.684]

That is the principle applied in the case of Kobina Ababio II etc. v. Priest-in-Charge, Catholic Mission, Ampenyi Ors.12 There it was contended, as it is in this case, that similar judgments tendered were inadmissible as the defendant was not a party to the suits in which those judgments were given. It was held that the previous judgments were admissible to show acts of possession as distinct from establishing estoppel or res judicata.

Now, as earlier pointed out, although this action is in trespass, yet by her defence, the defendant put the plaintiff to strict proof of his title. Therefore to succeed, the plaintiff has to prove that at the date of the defendant's entry upon the land he, the plaintiff, either was in possession of the said land as the person having title to it, or if not in actual physical or constructive possession thereof, that as between him and the defendant he is the person in whom was vested the right to immediate possession. It is upon that principle that the case is to be considered, bearing in mind that it is upon the plaintiff that the onus lies to establish those facts.

Again, in deciding this case the court has to bear in mind the principle emphasised in the case of Mantse Anege Akwei v. Mantse Kojo Ababio, that as between the stools of Sempe, Alata, and Akumadje, the stool whose subjects are shown to be in occupation of a particular piece of land is, in law, the owner of that particular land.

For the plaintiff, evidence was led, the most important of which was elicited by cross-examination from P.W. 1, the senior linguist of the Sempe Mantse, that the Sempes had settled in this area for over two and a half centuries before the Alatas arrived here from Lagos led by Wetse Kojo. The presumption of law therefore is, that the Sempe stool is the owner of all the lands except any particular portion thereof which the Alata stool can prove to be exclusively occupied by its subjects, as the Alata stool appears to have succeeded in proving in the Water Works Enquiry13 i.e. in the case of Mantse Anege Akwei v. Mantse Kojo Ababio. In addition to that presumption there is the evidence, again elicited by cross-examination, that the plaintiff is not only a grantee of the Sempe stool, but also that he is a Sempe subject, a member of a well known Sempe family. Added to this is the evidence of P.W.1, that the plaintiff was placed in possession of the land by the Sempe stool. That evidence was corroborated by the evidence of D.W.2, Okoe Aryee, who deposed that the plaintiff has been in possession of the land since 1947 at least. There is also the evidence, led on behalf of the defence by D.W.1, an elder of the Alata stool, that since the end of the Akwamu war up to this day the Alata stool has always had a caretaker of Alata stool land situate in the locality in which the land in dispute is situate. It follows from that evidence that if the land the plaintiff has been occupying all these years were part of the Alata stool lands, one or other of the successive caretakers of the Alata stool would have challenged the plaintiff's possession and would have reported his unlawful presence on the land to the Alata stool. The plaintiff gave evidence that the Alata stool had never challenged his right to be on this [p.685] land, that fact is corroborated by the said D.W.1 who represented the Alata Mantse to give evidence on behalf of the defendant. The witness went further to say that none of the caretakers of the Alata stool ever reported that one Bruno had built on portion of the land in dispute, and further that it was not until just about a month before the date on which he the witness gave evidence that some one complained to the Alata stool about the presence of the plaintiff on the land, and that the person who made that complaint to the Alata stool is the defendant.

Added to all these facts is the concrete fact that as soon as Bruno and Modua Abrahams stepped on the land, the plaintiff sued them and successfully litigated his title to the land against the said Bruno and Modua Abrahams, as evidenced by the judgment exhibit B, and recovered from them possession of the land together with a building they had erected thereon. That judgment, exhibit B, as already pointed out is definite evidence of the plaintiff's possession of the land.

To bolster up the case for the defence D.W.2 gave evidence that the defendant had a hedge enclosing her land or on part of her land, and that the western boundary of the plaintiff's land was cut through the defendant's said hedge or live fence. This witness further said that the northwest corner of the plaintiff's land is marked by a piece of iron rod or peg standing about two feet above the surface of the ground. It is inconceivable that if the plaintiff demarcated his boundary cutting through somebody's hedge in 1947, that person would keep quiet up to date and not question the right of the plaintiff to interfere with his hedge; or that the plaintiff would fix a piece of iron so plainly on some one else's land and that piece of iron would remain unquestioned by the person in possession of that land.

As against that evidence of the plaintiff, the defendant could not say how her predecessor in title, i.e. her father-in-law Teiko Tagoe, got on the land. She came on the land and met Teiko Tagoe occupying some land there. D.W.1 has heard that some land was given to the defendant's people by the Alata stool, but he did not know that land and cannot identify it, all he could say is that the land is situate somewhere in the Lartebiokorshie area, which may be anywhere in that big area. If indeed the Alata stool has given land to the defendant's people, the best persons to know would be the caretakers of the Alata stool lands in the area. According to D.W.1, the Mills sisters, Emma and Helena Mills, were up to a short time ago, the caretakers of the Alata stool lands in the area, and that the present caretaker for the Alata stool lands in the area is one Nii Lartey Cobblah II who lives on the land and whose family have been the caretakers of the land for a long time. Emma Mills, Helena Mills and Nii Lartey Cobblah [II] are all alive; if it is true that the Alata stool has granted any land to the defendant or her father-in-law, they are the proper persons who can testify to that fact and the persons who are in a position to identify that land. But they have not been called. The presumption is that if called, they cannot substantiate the allegation of grant which the defendant relies upon. Again the defendant said that after the death of her husband his family said she and her children should occupy [p.686] the lands. The husband's family are the persons who can testify to the grant if one was made and if made, the extent of it, but they have not been called. But the fact that defendant failed to call those witnesses is not very material, because there is no onus upon her to prove anything. If the plaintiff failed to establish his claim by preponderance of evidence which should weigh the balance of probabilities in his favour, his claim would be dismissed and judgment entered for the defendant whether or not the defendant proved anything material to her defence. This is particularly so, because there is the undisputed fact that the defendant and her father-in-law through whom she claims have been in occupation of some land in the area. Definitely the defendant failed to prove that the possession of her father-in-law was by virtue of a grant made to him by the Alata stool. The defendant said the family of her father-in-law are Sempes. She afterwards denied having said so. If the said family is a Sempe family, i.e. if the members of the family are subjects of the Sempe stool, which I believe they are, the Sempe stool would not object to the defendant's said father-in-law occupying a portion of the land claimed as Sempe stool land. The only question therefore is the extent of land occupied by the defendant and her father-in-law before her.

It is very strange that no cultivated trees are growing on the particular area of land in dispute, although as the defendant showed, cultivated trees are growing on the other portion of land which the defendant claims to have been occupied by her said father-in-law.

As to the spot on the land where rubbish is dumped, I am satisfied that is not an ancient well as alleged by the defendant and the use of the spot as such rubbish dumping ground is not confined exclusively to the defendant and her family, and in any case the said user is of such a nature that it cannot establish exclusive possession of the land by the defendant.

I am also satisfied upon the evidence that the land in dispute was vacant and unoccupied at the date when the Sempe stool placed the plaintiff in possession of the same. I am further satisfied that the said land is portion of Sempe stool lands at Lartebiokorshie, and that the plaintiff was in lawful possession of the same at the date when the defendant entered thereon and removed his pillars. It appears the plaintiff is claiming the whole of the land she claims to be occupying. This is shown in her evidence that the plaintiff measured his land right up to the wall of her, i.e. the defendant's, house. She need have no fears at all about that, because the plan of the land in dispute shows that it is only a small area of land that is in dispute, and that that small area is not close to the buildings occupied by the defendant.

There will be judgment for the plaintiff against the defendant for G25 damages for trespass, and for injunction in respect only of the land edged blue on the plan in this case. The plaintiff will have his costs fixed at 50 guineas inclusive.

Decision

<P>Judgment for plaintiff.</P>

Plaintiff / Appellant

G. Koranteng-Addow

Defendant / Respondent

S. M. Codjoe

Referals

(1) Mantse Anege Akwei v. Mantse Kojo Ababio reported sub nom. Akue (Acquaye) v. Ababio IV (1927) P.C. '74-'28, 99

(2) Land for Accra Water Works (1918) F.C. Feb.  '19, 64

(3) Hammond v. Ababio (1912) D. & F. 11-16, 17

(4) Wiapa v. Solomon (1905) 2 Ren. 406

(5) Wilkinson v. Blades [1896] 2 Ch. 788; 65 L.J. Ch. 846

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

(7) Nana Ofori Atta II v. Nana Bonsra Agyei (1952) 14 W.A.C.A.149

(8) Yode Kwao v. Kwasi Coker (1931) 1 W.A.C.A. 162

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

(10) Kobina Ababio II v. Priest-in-Charge, Catholic Mission, Ampenyi & Ors. (1935) 2 W.A.C.A. 380

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