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WUO v. KWARKU


  • appeal
  • 1961-05-16
  • SUPREME COURT
  • GLR 235-238
  • Print

KORSAH, C.J., VAN LARE AND SARKODEE-ADOO, JJ.S.C.


Summary

Estoppel?-Action for declaration of title to land?-Plaintiff gave evidence for her brother?'s successor in title in previous litigation over same land?-Whether estopped by record?-Whether privy to brother's successor in title. [p.236]

Headnotes

The plaintiff claimed declaration of title to and recovery of possession of a certain cocoa farm which she alleged, had been jointly possessed and enjoyed by her and her late brother Amankwa during his life-time. During the hearing, it was conceded that the plaintiff could not claim as successor to her late brother and her claim was therefore based on the fact that she had been co-owner, during her brother's life-time and that on his death intestate, the property in question was given to her by her brother?'s family. The plaintiff agreed that one Kojo Dei had been appointed by the family to succeed to the family stool formerly occupied by her brother and to all his property, but with the exception, she alleged, of the cocoa farm in dispute.The defendant said that he was the head of the family to which Kojo Dei, the late Amankwa and the plaintiff belonged. He alleged that after the death of Amankwa there had been much litigation with respect to the ownership of the said cocoa farm, in all of which the plaintiff had given evidence for Kojo Dei against the defendant. The defendant further alleged that since in all these cases he had been declared to be in possession of the disputed cocoa farm as owner thereof, the plaintiff was estopped from now disputing his title.

Judgement

APPEAL from a judgment of the Commissioner of Assize and Civil Pleas (D.E. Gwira, Esq.,) in the Land Court, Kumasi, delivered on the 29th June, 1960, in a transferred suit from the Kumasi West District "B" Court, Teppa, in which the plaintiff claimed declaration of title to a cocoa farm, recovery of possession and damages for trespass. The facts which are taken from the judgment of the Supreme Court are set out in the headnote.

JUDGMENT OF SARKODEE-ADOO J.S.C.

Sarkodee-Adoo J.S.C. delivered the judgment of the court. [His lordship referred to the facts and continued:] The learned Commissioner of Assize and Civil Pleas in his judgment held that on the evidence he did not think that the plea of estoppel could prevail against the plaintiff even though she stood by without asserting her title and gave evidence in the litigation in support of Kojo Dei's claim to the property in dispute. He therefore gave judgment for the plaintiff but awarded no damages being of the opinion [p.237] that no damage had been done; he further held that he also felt that as the plaintiff and the defendant were closely related and also related to late Amankwa, who it is said was succeeded partially by the plaintiff and generally by Kojo Dei, the defendant should have one-third interest in the cocoa farm as both plaintiff and defendant are very old and infirm people.

Upon perusal of the record and after careful consideration of the issues involved, we concluded that the learned Commissioner of Assize and Civil Pleas erred in holding that the plea of estoppel could not prevail against the plaintiff; counsel for the respondent was therefore called upon to support the judgment from which this appeal has been lodged. Whereupon counsel stated that he admitted the plaintiff could not sue as successor, but contended that although the title of the case shows that the plaintiff sued as successor, it is clear from the pleadings and the evidence that this should not be construed as meaning successor under customary law, and the use of the word successor should not be fatal to the plaintiff's claim merely because she is not successor in the strict sense of customary law. He further contended that plaintiff being co-owner with Amankwa during the latter's life-time could sue in respect of the cocoa farm; that he should not support that part of the judgment which granted one-third of the cocoa farm to the defendant on the ground that the defendant is old and infirm. He added that the property in dispute was given to the plaintiff by the family after the death of Amankwa.

On the question of estoppel counsel contended that until it was proved that the plaintiff is privy to Kojo Dei, any judgment entered against Kojo Dei in the proceedings between Kojo Dei and the defendant of which she was cognisant and in which she gave evidence for Kojo Dei against the defendant, could not operate as estoppel against the plaintiff; he however agreed that the plaintiff is privy to Amankwa (deceased) and that the cocoa farm in dispute had been the subject-matter of dispute between Kojo Dei and the defendant in all the previous litigation between the same parties.

It is a settled principle of law and the authorities thereon are numerous that where an issue has been once taken and found, between the parties taking it and their privies, such finding is conclusive, so as to create estoppel.

"A person taking some part in the proceedings in which the judgment was given is estopped and so is a person not a party if he is cognizant of the proceedings and had a right to intervene. Similarly a person may estop himself by his conduct in standing by, from afterwards questioning a judgment for inasmuch as he was in the same interest, he might, if he had chosen to take the necessary steps, have been admitted as a party. And upon the same rule, where the parties are numerous, a judgment against a few selected representatives may bind the rest".

See the Law of Estoppel by Everest and Strode, (3rd ed.) At pages 52-53.

In the case of Wytcherley v. Andrews1 it was held that a next of kin, although not cited in the proceedings, and not having intervened, is bound by a decree in a suit in which a will is contested by other next of kin, if he was cognisant of the suit and had an opportunity of intervening. But this rule does not apply to a case where the parties to the suit compromise it, and the decree is founded on the compromise, although cognisant of the suit. [p.238]

The well-known case of Mercantile Investment and General Trust Company v. River Plate Trust, Loan and Agency Co.2 Illustrates this principle of estoppel by record.

Similarly, this rule had been fully dealt with by this court in numerous cases among which may be mentioned Kwao v. Coker,3 Marbell v. Akwei and Akwei v. Cofie,4 and Esiaka and others v. Obiasogwu and others.5

It should be observed that both plaintiff and defendant are ad idem in respect of the cocoa farm in dispute which had been the subject-matter of the previous litigation between Kojo Dei as successor in title according to customary law of the one part, and the defendant herein of the other part. It is also not disputed that in the series of litigation referred to the plaintiff herein gave evidence in support of the contention of Kojo Dei, the successor of Amankwa, deceased; nor is it disputed that in all the said cases judgment was entered in favour of the defendant herein against Kojo Dei.

It is difficult therefore to understand the contention of counsel that although the plaintiff is privy to Amankwa yet she is not privy to Amankwa's successor in title. Apart from the question of privy, even if the plaintiff now contends that she does not derive title either from Amankwa or Kojo Dei, her conduct in standing by when title to the cocoa farm was being litigated and also giving evidence for one of the parties in respect of the identical cocoa farm estops her from now asserting title to the same property even if it was jointly owned by her and Amankwa on whose death she became sole owner thereof.

On the evidence adduced and upon the authorities already referred to, it is clear that the plaintiff could neither sue as successor to late Amankwa, nor claim the same property as co-owner thereof, the title thereof having been determined in the previous litigations of which she was cognisant and in which she gave evidence.

For the reasons we have given we are of the opinion that the learned Commissioner of Assize and Civil Pleas erred when he gave judgment for the plaintiff in holding that plaintiff is not estopped either by conduct or record. It follows that his subsequent order by which he purported to apportion the property whereby he gave one-third to the defendant and two-thirds to the plaintiff cannot stand.

In the result, we set aside the whole judgment with the order as to costs and enter judgment for the defendant.

Decision

<P>Appeal allowed.</P> <P>Judgment entered for the defendant.</P>

Plaintiff / Appellant

G. Koranteng-Addow

Defendant / Respondent

J. D. Reindorf

Referals

(1) Wytcherley v. Andrews (1872) L.R. 2 P. & D. 327.

 (2) Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency Co. [1894] 1 Ch. 578; 63 L.J. Ch. 366; 70 L.T. 131

 (3) Kwao v. Coker (1931) 1 W.A.C.A. 162.

 (4) Marbell v. Akwei; Akwei v. Cofie (consolidated) (1952) 14 W.A.C.A. 143.

 (5) Esiaka and others v. Obiasogwu and others (1952) 14 W.A.C.A. 178.

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