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  • appeal
  • 1959-06-08
  • GLR 261-268
  • Print



Trespass to land?-Estoppel by inactivity in another?'s litigation?-Test of culpable inactivity?-Onus of proof of right to possession where ownership proved.


Through gift by the Ga Mantse at some time prior to 1917 to his daughter Nah Korley, the Nah Korley family were owners of certain land at Adabraka. In 1920, one Isaac Fiscian purported to sell a portion of this land to one Nelson, and in 1931 to one Amarh.In 1933, Nelson sued Amarh in trespass before the Ga Mantse.In 1934, a member of the Nah Korley family (one Hammond) brought an action against Amarh and another before the Ga Mantse in respect of the same land, but no more was heard of that proceeding after the Deputy Commissioner of the Eastern Province refused in 1935 to transfer it to the High Court at the request of the defendants to that action.In 1936, Hammond (for the Nah Korley family) sued Fiscian before the Gbese Mantse, claiming title to the land; he recovered judgment on behalf of the family.In 1941 a conclusion was reached in the proceedings by Nelson instituted against Amarh in 1933, as the result of which Amarh paid to Nelson 67 for the right to remain in possession.On the 11th March, 1949, in a proceeding in the High Court on an award of compensation for a land acquisition, Quashie-Idun J. held that Fiscian was estopped as against the Nah Korley family by res judicata in the Gbese Mantse?'s judgment in the 1936 suit by Hammond, and that Nelson was also estopped by it as against the family, though it was for the Court to decide whether in 1920 Fiscian had a title in the land to convey to Nelson. It was held that Fiscian had no such title, and that Nelson?'s action in trespass against Amarh was not sufficient to prove that to the knowledge of the real owners of the land Nelson had acquired interest in that portion of the land. An appeal to the West African Court of Appeal was dismissed.On the 13th June, 1949 the Nah Korley family sold the land in dispute to Susuana Anyema Nettey, who did nothing with it, neither erecting demarcation pillars nor clearing it of weeds.In November, 1950 Amarh purported to let the land on a tenancy to Odjidja, a motor mechanic, who proceeded to carry on his trade thereon.On the 29th January, 1955 Nettey issued a writ against Odjidja and Amarh, claiming declaration of title, damages for trespass, mesne profits, recovery of possession and perpetual injunction. The Court (van Lare J., as he then was) held that the Nah Korley family were estopped from holding themselves out as owners of the land by their conduct in standing by while defendant?'s grantors litigated concerned that land. His lordship observed, with reference to the suit commenced in 1933. [p.262] ?"Although the plaintiff?'s vendors knew of this litigation and had the same interest they stood by and contented themselves in doing nothing about their interest while Samuel Quashie Nelson and others, including the 2nd defendant, litigated over title to the disputed area. `It has been repeatedly held by this Court and the Courts in England that if a person was content to stand by and see his battle fought by somebody else in the same interest, he is bound by the result, and should not be allowed to reopen the case . . . that principle is founded on justice and common sense. The court looks to substantial justice and that which right reason requires?'-Marbell v. Akwei etc. (14 W.A.C.A. 143).?" The trial-Judge accordingly found for the defendants (Odjidja and Amarh). The plaintiff Nettey appealed to the Court of Appeal (Civ. App. No. 38/58).


This is an appeal from a decision of the Judge in the Land Court who, on the 31st December, 1955, directed that judgment be entered for the defendants, the respondents in this Court, in a suit in which the [p.265] appellant claimed a declaration of title to land situated at South Adabraka, damages for trespass and recovery of possession and other ancillary relief.

There is an interesting history attaching to the land in dispute, and this may usefully be outlined at the outset. The appellant based her claim to title on a Deed of Conveyance dated 13th June, 1949 between herself and the then representatives of the Nah Korley Family as vendors. The first respondent is in possession as a tenant of Amarh the second respondent, who claimed at one time the right and title to ownership of the land through one Isaac Fiscian, from whom he said he had purchased under an Indenture dated the 18th July, 1931. This claim was tested in proceedings instituted in 1933 by one S. Q. Nelson, who sued Amarh in trespass. The course of this action was protracted, and it was not until 1941 that a conclusion was reached, as the result of which Amarh paid to Nelson a sum of 67 for the right to remain in possession. Nelson claimed title through Isaac Fiscian and gave evidence on behalf of Fiscian when in 1936 one Hammond, a member of the Nah Korley family, sued him and claimed title to the land in an action before the Gbese Mantse. In this action Hammond succeeded in recovering judgment on behalf of the family.

In 1934 this same Hammond brought an action before the Paramount Chief of the Ga State against Amarh and another in respect of the same land, but no more was heard of this proceeding after the Deputy Commissioner of the Eastern Province had, on the 15th September, 1935 refused to transfer it to the High Court as requested by the defendants.

It seems that Hammond, while the suit between Nelson and Amarh, above referred to, was pursuing its protracted course, thought it wiser to protect his own interest and title in his action against Fiscian, through whom Nelson was claiming. In this Hammond again on behalf of the family succeeded in establishing title to a large area of land, including the land in dispute in the present case.

The defence to the appellant?'s claim before the trial-Judge was that the respondent and his predecessors had been in long and undisturbed possession long before Ashaley Okoe and others purported to convey to the appellant, that Nelson had been in possession since 1920, and further:

?"To the full knowledge of Mr. R. Ashaley Okoe, the said Mr. S, Q. Nelson successfully litigated his title to that land between the years 1933 and 1941, the said suit commenced in the Ga Mantse?'s Tribunal; it went up to the West African Court of Appeal, [p.266] it was remitted to the Ga Mantse for fresh trial and was finally determined by the said Ga Mantse?'s Tribunal.

?"The plaintiff?'s vendor Mr. R. Ashaley Okoe was the Registrar of the Ga Mantse?'s Tribunal; he was the one who took down the evidence and wrote the judgment both at the first trial and at the retrial which was held upon directions of the West African Court of Appeal. The title of the case is: Nelson versus Amarh Anor. The defendants will contend that both the plaintiff and her vendors having sat by while the 2nd defendant and others litigated over the property are estopped by their conduct from now claiming title to and possession of the said land.?"

The appellant?'s vendors, the Nah Korley family, claimed title through gift to their predecessors by the Ga Mantse and it was this title that they established in their action against Fiscian, the then head of the Aruna family of Brazilians. Nelson and Amarh each claimed title through this same Fiscian, and it was these competitive titles derived from Fiscian that they were litigating between 1933 and 1941.

This title of the Nah Korley family was further tested as between them and Isaac Fiscian and S. Q. Nelson in a land acquisition (award of compensation) proceeding before Quashie-Idun J. in 1949. In this proceeding Quashie-Idun J. on the 11th March, 1949 delivered judgment, in the course of which the learned Judge held that Fiscian was estopped by ?"res judicata?" in the judgment of the Ga Gbese?'s Court, and as to Nelson held ?"in law the judgment against Fiscian by Hammond in 1937 does operate as ?'res judicata?' against S.Q. Nelson but it is for the Court to decide whether in 1920 Isaac Cobblay Fiscian had any title in the land to convey to S. Q. Nelson.?" It was held that Fiscian had no title to convey, and that the fact that Nelson had brought an action against a trespasser (Amarh) was not sufficient to prove that to the knowledge of the real owners of the land he had acquired interest in that portion of the land. This judgment was taken to the West African Court of Appeal, and their Lordships (Blackall P., Lewey J. A. and Coussey J.), holding that the appeal was not supported by any valid ground, refused an application for an adjournment for the purpose of calling further evidence, and ordered that the appeal be dismissed.

One result of all this litigation is that Fiscian is estopped as against the Nah Korley Family; Nelson is estopped as against the Nah Korley family by reason of his conduct in the proceeding in the Ga Gbese?'s Court and by reason of the judgment of Quashie-Idun J., and Amarh is estopped as against Nelson in any proceedings in relation to this land. [p.267]

It remains to be seen whether the defence in the present case establishes in law an estoppel in favour of the respondents as against the appellant.

The first respondent is in possession of the land in dispute under title alleged by the second respondent. The appellant, as the learned Judge of the Land Court in our view rightly held, derived title from the Korley family who had ?"established title to a larger area of land which included the whole of the land claimed?" by the appellant. It seems to us to follow that the appellant proved that she was the true owner, and that following upon such proof the onus of proof of their right to possession shifted to the respondents (see Oloto v. Administrator General etc 12., W.A.C.A.76).

The judgement in favour of the Nah Korley family in the Ga Gbese?'s Court does not estop the respondent in possession by some prior alleged title. But this is not the equivalent of a setting aside of that judgment. The judgment stands in proof of the right to ownership of the appellant vested in her by those in whose favour it was given, and can be defeated only by proof given on behalf of the respondents that they have some superior valid title. In this on all the evidence the respondents must fail. No title said to derive from grants by Fiscian can succeed in defeating a title derived from the Nah Korley family, and the learned Judge, we think, erred when he held that the appellant?'s title was invalid.

We are of opinion that the real question posed by the facts and pleadings in the Land Court was whether the plaintiff there, having a valid title, was by the conduct of her predecessors, and/or herself, estopped from claiming the discretionary relief of a declaration of title. The learned Judge seemed so to hold, but went further when he declared the appellant?'s title invalid. The appellant?'s situation is that she is entitled to declaration and to possession unless either a better title can be shown by those in possession, or she is estopped from asserting her title as owner to possession as against them.

One ground of estoppel which seems to have been accepted by the learned Judge is that Ashaley Okoe, a junior member of the Nah Korley family at the time, knew of the litigation between Nelson and Amarh; that his knowledge must be taken to be the knowledge of the family;that they stood by and allowed the litigation to proceed, thereby acquiescing, and that they must stand or fall with the party defending their interest.

The evidence shows that Amarh was defending the interest of a trespasser, claiming right through Fiscian against Nelson, who also claimed right through Fiscian. It is difficult to see how and in what capacity the family could have intervened in such a proceeding, even if they must be taken to have known of it. [p.268]

The evidence establishes that the family did not in fact stand by in any real sense. They sued the person who had purported to make dispositions of their land to the two contestants, Amarh and Nelson. In that action Nelson gave evidence to support the title on which he himself relied, and which as in competition with the title of the family deriving from Ga Mantse. It is the family title that prevailed, and all titles to the land said to derive from Fiscian fell with such decision. In the action brought by Nelson, Amarh was held to be a trespasser, and he remained as a licensee of one who had no title to grant such a licence.

The case of Marbell v. Akwei (14 W.A.C.A.143) has in our opinion no application to the present case. The appellant in that case stood by whilst someone was disputing a title which he, the appellant, had conveyed. The possessor of that title defended to uphold it, and lost, and it was held that the appellant, who had stood by, must be bound by such decision. He had ?"stood by to see his battle fought by somebody else in the same interest.?" The words?" in the same interest?" are of importance. It appears from the judgment of their Lordships in the Privy Council in the case of Ofori Atta II anor v. Bonsra II anor. ([1958] A.C. 95) that the test to be applied in deciding whether the interests are the same is ?"whether the matter to be determined in the present action was the same as the matter determined in the former action??" Applying this test, it seems to us clear that neither Amarh nor Nelson was defending any interest of the appellant or her predecessors, and that therefore the reasoning of Marbell v. Akwei cannot here be applied.

Further, upon the evidence in this case it cannot be said, and it was not pleaded in the defence, that the Nah Korley family were guilty of such laches as would support a case of acquiescence on their part, though there appears to be some such suggestion in the judgment.

The second respondent very shortly after his entry on the land was subjected to a long litigation, and the land itself formed the subject matter of competitive claims in Native Courts and in the High Court. The first and second respondents cannot be said to have improved the land or developed it to the knowledge of the family or the appellant, or at all, so as to render it fraudulent on the part of the family to convey, and on the part of the appellant to enforce her title. If such a case were to be suggested, it is fatal to it that it was not pleaded.


<P>For these reasons we allow this appeal, set aside the judgment of the Land Court and enter judgment for the plaintiff-appellant, granting a declaration as prayed, an order for

Plaintiff / Appellant


Defendant / Respondent



(1) Oloto v. Administrator-General (12 W.A.C.A.76);

(2) Marbell v. Akwei (14 W.A.C.A.143);

(3) Hammond v. Randolph & anor. (5 W.A.C.A.42);

(4) Ashodi v. Balogun (4 W.A.C.A.5);

(5) Ofori Atta II & anor. v. Bonsra II & anor. ([1958] A.C.95);

(6) Akuru v. Olubadan-in-Council (14 W.A.C.A.523);

(7) Suleman v. Johnson (13 W.A.C.A.213);

(8) Nkyi v. Darku (14 W.A.C.A.438);

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