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M. D. BASSIL AND ANOTHER
V.
ABRAHAM KWAKU HONGER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
30TH DAY OF JUNE, 1954
2PLR/1954/52 (WACA)
OTHER CITATION(S)
2PLR/1954/52 (WACA)
(1954) XIV WACA PP. 569-573
LEX (1954) – XIV WACA 569-573
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
M. D. BASSIL AND KOFI NASSU ACQUAH, BOTH OF ACCRA – Appellants
AND
ABRAHAM KWAKU HONGER AS HEAD OP THE FAMILY OF GEORGE AKOTRYFIO NELSON (DECEASED) – Respondent
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ORIGINATING COURT(S)
Appeal by the defendants from a decision of the Lands Division of the Supreme Court, Eastern Judicial Division (Van Lare, Ag. J) No. 35/53.
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REPRESENTATION
Akufo Addo — for Appellants
Ollennu — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Lease of Family property without concurrence of principal members – Legal effect
CONSTITUTIONAL AND HUMAN RIGHTS LAW – SLAVERY:- Slave holding – Marriage between slave and master – Children/descendants of the marriage – Implications for inheritance rights
FAMILY LAW – MARRIAGE:- Native Law and Custom – Polygamous marriage made up of lawful wife and slave wives – Position of children and uterine descendants of the slave wives in regard to interests over land of the estate of the deceased father/husband who died intestate
CHILDREN AND WOMEN LAW:- Women/Children & dignity of the human person – Women living as slave brides – Children born therefrom – Legal status arising therefrom in regard to estate of deceased father/husband who died intestate
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PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE:- Estoppel – Testimony in another suit not affecting family’s position – Testimony by person not a party to that suit – Legal effect
JUDGMENT AND ORDER:- Res Judicata – Two cases not resting on same foundation and which had different parties, etc. – Whether can be ground for the plea of res judicata
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CASE SUMMARY
One Mama Nassu married some female slaves of his and a lawful wife; the main controversy was whether it was· only the maternal descendants of the lawful wife who had a voice in leasing property of the Mama Nassu family: the maternal descendants of the slave wives claimed that they had a right to be consulted.
At the material time Acquah (the second appellant above) was the head of the family. He, with the concurrence of the family, authorised someone to make an agreement for a lease with G. & S. Busby (but Acquah denied these facts). Later, Acquah, with the concurrence of his sisters and niece, who with him were the descendants on the side of Mama Nassu’s lawful wife, but without the concurrence of the principal members on the side of the slave wives-in fact those of them he consulted opposed it–executed a lease of the premises in favour of Bassil (the first appellant above).
The Busbys sued Acquah for specific performance of the agreement for a lease to them, and in that suit members of the Mama Nassu family on the side of the slave wives gave evidence that there had been a valid concurrence to a lease to be given to the Busbys. The trial Judge thought (rightly: see the appeal No. 34/53, George Busby and Another v. Kefi Nassu Acquah, decided on 30th June, 1954) that Acquah by executing a lease in favour of Bassil put it beyond his power to implement the agreement with the Busbys and refused the Busbys’ claim. (For the Busbys’ appeal see p. 574.)
A. K. Honger, the respondent above, sued as head of the family of G. A. Nelson, according to the title of the suit, in fact as head of the Mama Nassu family, and the defendants Acquah and Bassil (appellants above) agreed to have him regarded as such for the purpose of the suit; the plaintiff (now respondent) claimed that the lease be set aside and obtained judgment.
The defendants appealed and the arguments for them were, as they had been in the trial Court, (1) that the descendants on the side of the slave wives bad no right to be consulted, and (2) that (a) having supported the Busbys in the earlier suit, they were estopped Irom pursuing their present suit, and (b) the Court having held in the earlier suit that the lease to Bassil was a bar to granting specific performance to the Busbys thereby declared upon the validity of the “lease to Bassil (which was now in question here).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
1. When a master married his own female slave, their children were by customary law adopted into his family and their uterine descendants are members of his family on the same footing as the free uterine descendants therefore the lease to the first appellant executed by the second appellant and his sisters and niece was not valid as against the other principal members of the family and was of no effect as a lease:
2. The attitude of the other principal members of the family in the earlier suit in which they were not parties was consistent with the respondent’s claim in the present case; the argument drawn from estoppel failed as there was no alteration in the family’s position.
3. The judgments in the above suits did not rest on the same foundation: the parties were not the same nor the cause of action; there were no admissions in the earlier suit on which the defendants could rely in the second suit, nor was the validity of the lease here in question an issue in the earlier suit: therefore there was no res judicata.
Cases cited:-
(1) Rex v. Inhabitants of Hartingdon Middle Quarter, 119 Eng. Reps. 288.
(2) Duchess of Kingston’s case, 2 Smith’s Leading Cases.
(3) Spencer and Another v. Williams and Others, 24 L.T.R. 513 at 516.
(4) Bainbridge v. Baddeley, 1847, 2 Ph. 705 al 709; 41 Eng. Reps. 1115 L.C.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
The defendants appeal from a judgment of the Lands Division of the Supreme Court, Eastern Judicial Division (Van Lare, Ag. J), setting aside a deed of lease expressed to be made between the second defendant as head of the family of George Akoteyfio Nelson deceased, with the consent and concurrence of the principal members of the family as lessor and the first defendant as lessee. The ground on which the deed was set aside is that it was not consented to by all the necessary principal members of the family and that the signatories to the lease did not by their act bind the other principal members of the family, whose consent and concurrence, which had not been given, is by native customary Jaw necessary.
The first ground of appeal is that the judgment on this issue is against the weight of evidence.
The plaintiff claimed as head of the family of George Akoteyfio Nelson. It is not in dispute that the property was self-acquired by George Akoteyfio Nelson and that on his death the property passed to his family. It is also not disputed that the family of George Akoteyfio Nelson was the Mama Nassu family and that the property affected by the lease vested in the latter family on Nelson’s death. In the writ of summons therefore, where the plaintiff claimed for and on behalf of the family of George Akoteyfio Nelson deceased, he in fact claimed for the Mama Nassu family.
The plaintiff in his evidence in this suit did not clarify his own status in the family; for instance, he said George Akoteyfio Nelson’s mother was his grandmother and that Mrs. Joanna Orgle was his father’s sister, without giving the names of mother or grandmother, or of his father and their connection with the Mama. Nassu family. But in the record in appeal case No. 34/53, which counsel have agreed this Court should treat as part of the record in this appeal, there is the evidence of the second defendant-appel!ant, Kofi Nassu Acquah, that the plaintiff is the son of Juliana Honger’s sister, presumably by the same mother. Juliana Honger will be referred to later.
The defence, however, agreed that the plaintiff should be regarded as head only as representing the family for the purpose of the suit.
Mama Nassu acquired several female slaves who bore issue to him. The controversy between the parties revolves around whether some of the descendants of those slaves are regarded as principal members of his family, so that they have a right to be consulted, and so that the second defendant-appellant, who, at the material time was head of the family, could not deal with the property without the concurrence of all those persons who claim to be principal members.
Apparently, Mama Nassu had no family, i.e. no uterine relatives of his own. He married, according to the evidence, five female slaves and one lawful wife by all of whom he had issue.
The second defendant-appellant and his sisters Amponsah Acquah and Afuah alias Florence Acquah are the maternal descendants of the lawful wife. Mary Amoo, daughter of the second defendant-appellant’s late sister Akua Acquah, is a fourth maternal descendant.
The persons above-named alone executed and concurred in the execution of the lease to the first defendant-appellant.
On the evidence so far as it is relevant to this inquiry the maternal descendants of the several slave wives are or were:-
(1) Yawa Nukpa, a daughter.
(2) Akua Adjoa, a uterine grand-daughter.
(3) George Akoteyfio Nelson and Tawiah, a son and daughter of one mother.
(4) Juliana Honger a daughter
(5) The plaintiff Abraham Kwaku Honger (see the evidence above referred to of the second defendant-appellant in appeal case No. 34/53).
(6) The position of Afuah Nelson is peculiar. She is the issue of Juliana Hanger and George Akoteyfio Nelson whose mothers were both slave wives. Through her mother Juliana, therefore, Afuah Nelson is a member of the Mama Nassu family. There is no evidence who were the mothers of George, Akoteyrio Nelson’s other children, amongst them Mercy and Maria who are referred to in the evidence. Without proof it cannot be assumed that they are members of the family.
(7) There remains M. Q. Nelson. He is the uterine grandson of Tawiah, the sister of George Akoteyfio Nelson by their mother, a slave wife as already stated. Of these, Nos. 1, 2, 5, 6 and 7 were alive at the time material to this question.
In my opinion the above-mentioned persons, together with the second defendant-appellant and his group already referred to, are the principal members of the family without whose consent and concurrence, except for good cause, the property in question could not be validly demised according to native customary law.
The property in this case was acquired by the descendant of a slave union but, notwithstanding this, Mr. Akufo Addo for the appellants submits that only the descendants of a free daughter of Mama Nassu, namely the second defendant- appellant and his group, could alienate the property.
In his evidence the second defendant-appellant agreed that he did not obtain the concurrence of the persons above-named because he regarded them as descendants of slaves. He admitted that at least two of those persons whom he consulted expressly opposed a lease to the first defendant-appellant. He was therefore ignoring their active opposition.
When a master married his own female slave, their children, having no other family were already, by native customary law, adopted into the master’s family and their uterine descendants are members of the family; they had the same voice and were treated on the same footing as the free uterine descendants.
In the light therefore of the evidence and of the admissions of the second defendant-appellant, the learned trial Judge was right in holding that the lease of the first defendant-appellant, executed and signed by the second defendant-appellant and his sisters and niece only, is not valid as against the above-named other principal members of the family and is of no effect as a lease.
The first ground of appeal therefore fails.
The other ground of appeal argued is that the trial Judge erred in not upholding the appellants’ plea of estoppel.
By an amendment to the defence the appellants set out the ground of estoppel as follows:-
“…for the following among other reasons:-
“The plaintiff and the members of the family whom he represents through their agent and spokesman E. Q. Nelson supported Dr. and Mrs. Busby in the suit George Busby and Sarah Busby v. K. N. Acquah in which Dr. and Mrs. Busby claimed an order for the specific performance of an agreement for a lease and in which the lease to the first defendant was raised as an issue. The judgment of Jackson, J., dated 24th July, 1951, in the aforesaid suit was to the effect that the lease to the first defendant was a valid lease.”
It is to be noted that the claim in the suit referred to, which is appeal case No. 34/5:J, was for specific performance of an agreement by the family to lease the property to Dr. and Mrs. Busby. the plaintiffs in that suit. The principal members of the family who, in the present suit, appeal case No. 35/53, obtained an order setting aside the lease to the first defendant-appellant, supported the plaintiffs in the first suit by the testimony of two of their number for the purpose of establishing that there had been a valid concurrence to a lease…to the plaintiffs, the Busbys.
In that suit the learned trial Judge discredited the evidence of the now second defendant-appellant Kofi Nassu Acquah and held that one E. Q. Nelson had the express authority of Kofi Nassu Acquah and the family to negotiate and to conclude an agreement for a lease (with the Busbys). He went on to find that the defendant Acquah and other principal members of his family (i.e. his sisters and niece) on the 17th January, 1951, and therefore in breach of the concluded agreement with the Busbys, had executed a lease to the first defendant-appellant Bassil and thereby placed it beyond their ability to implement the agreement with the Busbys. Quite clearly, therefore, there could be no order upon the defendant in that suit for the specific performance of the agreement for lease, an order which would have been ineffectual.
Mr. Akufo Addo’s arguments are twofold:-
(a) that the plaintiff-respondent by his conduct in supporting the plaintiffs in the first suit is estopped from pursuing the second suit, and
(b) that the Court below, by holding in the first suit that the existence of the first defendant’s lease wf1s a bar to the grant of specific performance to the plaintiffs, the I3usbys, thereby declared upon the validity of that lease; the latter is a plea of res Judicata .
It is as well to have clearly in mind the distinction between the pleas of -estoppel and res judicata.
Estoppel prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who, relying upon them, has altered his position. It shuts the mouth of a party. The plea-of res judicata prohibits the Court from enquiring into a matter already adjudicated upon. It ousts the jurisdiction of the Court.
The proposition as to estoppel has only to be stated to demonstrate how inapplicable it is to the present facts.
The members of the family who contest the second defendant-appellant’s authority to grant a lease to the first defendant-appellant were not parties to the first suit. Their testimony however, supporting as it did the plaintiffs in that suit, did result in a finding on the facts that there was a prior agreement binding on the family to grant a lease to the Busbys, which agreement had only been defeated by the lease executed in favour of Bassil. In my opinion there has been no alteration in the position of the family upon which the second defendant-appellant could rely. On the contrary, there is a finding on the facts and an attitude consistent with the claim of the plaintiff-respondent in the present appeal.
As to res judicata Mr. Akufo Addo has cited Rex v. Inhabitants of Hartingdon Middle Quarter (1), which, a passage in paragraph 162 of Spencer Bower on res Judicata, 1924 edition, suggests, may, in point of expression and lucidity be a preferable exposition and guide to the rule as to res judicata than the celebrated passage in the judgment in the Duchess of Kingston’s case (2). Let that be so. But in Rex v. Inhabitants of Hartington Middle Quarter (1) there is the following statement which, to my mind, is more important to the present case than a consideration of what facts are a necessary step to the decision. The passage is:-
“The judgments in the two cases rest on the same foundation; which, having been settled in the first, cannot be, as between the same parties, unsettled in the latter.”
Here the decisions in the two cases do not rest on the same foundation:-
(1) The parties are not the same.
(2) The subject matters are not the same; one is for specific performance of an agreement for a lease, the other to set aside a lease, a different transaction between different parties although affecting the same property.
(3) The causes of action are therefore not the same. The parties in the first suit could not have recovered precisely that which it is sought to recover in the second suit.
(4) There are no admissions found in the first suit upon which the defendant-appellants in the second suit could rely.
(5) The Court’s refusal to enforce the agreement sued on in the first suit did not establish the validity or invalidity, the legality or illegality of the first defendant-appellant’s lease. It was in fact a voidable lease. It was not pleaded in the first suit as a defence and was therefore not canvassed nor brought into controversy or discussed as an issue. Far from being a necessary step in the decision the Court was driven to refuse relief in spite of the facts.
“Every man has a right to litigate his own right and to be the guardian of his own right, and it is the commonest-basis of justice that a man should not be robbed of that right by the fact that somebody else insisting upon the same right for his own purposes, has entered upon a litigation which has turned out unfavourably for him.” (Per Lord Penzance in Spencer and Another v . Williams and Others (3))
But even if the parties had been the same in both suits, I would have been prepared to hold that as the decision in the first suit set up the first defendant-appellant’s lease as a bar to relief only but did not purport to adjudicate upon its validity and although it may have been an element in the case, it would not have precluded the same party against whom judgment had been given from impugning such validity as against the same party in subsequent proceedings. See Bainbridge v. Baddeley (4) (2 Ph. 705 per Lord Langdale, M.R., at p. 709), where a decree for specific performance of a contract with trustees under a will was held to be no bar to a subsequent suit by the same plaintiff to set aside the same will as having been obtained by fraud.
In this case, however, the plaintiff-respondent need not put his case so high. I have no difficulty therefore in arriving at the same conclusion as did the learned trial Judge that the pleas of estoppel failed, and I would, therefore dismiss this appeal with costs.
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FOSTER-SUTTON, P.
I concur.
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WINDSOR-AUBREY, J.
I concur.
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Appeal dismissed.
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