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NANA KWAMI NKYI XI
V.
SIR TSIBU DARKU IX AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
11TH DAY OF FEBRUARY, 1954
W.A.C.A NO. 28/53
2PLR/1954/82 (WACA)
OTHER CITATION(S)
2PLR/1954/82 (WACA)
(1954) XIV WACA PP. 438-441
LEX (1954) – XIV WACA 438-441
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
CONCESSION ENQUIRY No. 2430 (CAPE COAST)
“BARTHOLOMEW FOSO RAILWAY SIDING CONCESSION”
NANA KWAMI NKYI XI, OMANHENE OF ASSIN APIMANIM STATE – Appellant
AND
1. SIR TSIBU DARKU IX, OMANHENE OF ASSIN ATANDASU STATE, CHIEF KWEKU APPOTOI AND CHIEF OYEDU TWUM VIII
2. W. BARTHOLOMEW & CO. (TIMBER) LTD. OF TAKORADI – Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Fixing of boundary of communal land – Estoppel — Paramount Chief helping to fix boundary between his sub-chief and the sub-chief of another State — Judgment — Non-party in same interest with a party
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ORIGINATING COURT(S)
Appeal by the opposer to a Concession:
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REPRESENTATION
Bannerman-Hyde, with Williams — for Appellant
Christian — for Respondents
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CASE SUMMARY
The first respondents, a Paramount Chief and two of his sub-chiefs, hereafter referred to collectively as the Granting State, granted a concession to the second respondent which the appellant, the Paramount Chief of a neighbouring State, hereafter referred to as the Opposing State, opposed, claiming a portion of the land.
There had been trouble at the boundary between the border sub-chief of the now Granting State (the predecessor in title of one of the respondents No. 1) and the border sub-chief of the now Opposing State; the Paramount Chiefs of the two States intervened and settled the boundary through arbitrators; and in 1924 the border sub-chief of the now Opposing State sued the border sub-chief of the now Granting State asking the Court to give effect to the boundary award of the arbitrators, and the representative of the then Paramount Chief of the now Opposing State gave evidence in support of that boundary, which was shown on a plan. That boundary was adopted in the judgment and was later surveyed and demarcated by Government without opposition.
In this Concession Enquiry the Paramount Chief of the Opposing State sought to avoid that boundary. The land claimed by him fell on the side of the Granting State according to that boundary, and the Court held that the Opposing State was estopped by the judgment in the 1924 suit — Chief Katurka Yardom (representing the border sub-chief of the now Opposing State) v. Chief Kurankyi Minta III (border sub-chief of the now Granting State).
The Paramount Chief of the Opposing State appealed and argued that he did not derive his title from his sub-chief, and was not a party nor privy to the sub-chief, the plaintiff in that suit which
(i) decided the boundary between two sub-chiefs on the basis of an agreement between them, and
(ii) did not define the boundary as such between the two States and could not define it as it was not an issue in that suit;
for which reasons he was not estopped by the judgment in that suit of 1924.
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ORIGINATING COURT(S)
Held (dismissing the Appeal) that:
The appellant was estopped because:-
(i) his predecessor in title actively participated in fixing the boundary and did not assert any title to land on the other side during the boundary settlement;
(ii) his State’s interests were coterminous with those of the plaintiff sub-chief in the 1924 suit and the judgment in that suit bound him though not a party: a party his predecessor could have become had he chosen to apply under the rules of Court.
Cases cited:-
(1) Farquharson v. Seton, 5 Russ. 45.
(2) In re Lart: Wilkinson v. Blades, 1896, 2 Ch. 788.
(3) Wytcherley v. Andrews, L.R., 2 P. & D. 329.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J.A.
This Concession Enquiry raises an issue as to title to land between the Omanhene of Assin Atandasu State and two of his sub-chiefs, the Ohene of Assin Yankumasi and the Ohene of Foso, as grantors of land at Foso, and the Omanhene of Assin Apimanim State as opposer, who opposed the grant of the Concession on the ground that the land granted included an area a portion of which is attached to the Opposer’s Stool and that the grantor Stools “are not the only persons entitled in law to grant the Concession”.
At the hearing of the enquiry in the Concessions Division of the Land Court, at Cape Coast in the Central Judicial Division, two issues for decision were, by consent, settled by Counsel for the parties, namely:-
(i) whether or not the opposer, the Omanhene on behalf of the Stool or State of Assin Apimanim, is estopped from opposing the grant by reason of the judgment of Hall, J., in 1924 in the suit of Chief Kalurka Yardom v. Chief Kurankyi Minta III;
(ii) whether or not the land, the subject of the Concession, is within the Foso and Yankumasi side and, incidentally, of the Assin Atandasu side, of the boundary demarcated by the judgment of Hall, J., or within the Assin Apimanim side of that boundary.
To determine these issues a copy of proceedings and judgment in the Divisional Court, Cape Coast, in Chief Katurka Yardom v. Chief Kurankyi Minta Ill, and plans showing the boundary between the two States which had been surveyed and demarcated by Government as a result of the decision in the suit referred to, were put in evidence.
After hearing the evidence of the grantors’ witnesses and inspecting the land the Court held, in effect, that the land granted fell on the Kurankyi Minta-Assin Apandasu side and not on the Katurka Yardom-Assin Apimanim side of the boundary demarcated as aforesaid and that the opposer, the Stool or State of Assin Apimanim, was therefore estopped, by virtue of the judgment referred to, which was upheld on appeal, from laying claim to the area granted by the Concession.
From this decision, the opposer has appealed on numerous grounds, the substance of which may be summarised as follows:-
That the Court below was wrong in law in holding that the judgment of Hall, J., created an estoppel by record against the opposer appellant as he is not a privy of Chief Katurka Yardom or a party to the action before Hall, J., in 1924:-
(i) that judgment decided only the boundary between sub-chiefs Katurka Yardom and Kurankyi Minta III and was therefore not binding upon the opposer, the Paramount Stool or State of Assin Apimanim, which was not party to the agreement between the sub-chiefs which is referred to in the judgment appealed from and that in law such agreement does not bind the opposer;
(ii) because the judgment of Hall, J., could not and did not define any boundary, as such, between the States of Assin Atandasu and Assin
Apimanim, that not being an issue in the suit of Katurka Yardom v. Kurankyi Minta III.
In support of the appeal it was argued that the appellant’s Paramount Stool or State does not derive its title to the land in dispute from its sub-chief, that the judgment of Hall, J., cannot therefore operate as an estoppel and that the opposer-appellant is not a privy of Chief Katurka Yardom or a party to the action before Hall, J., in 1924. It is submitted that as in the 1924 suit there was no litis between the two Paramount Stools, there can be no estoppel by record as against the opposer-appellant.
It is correct to say that neither the Paramount Stool of Assin Apimanim nor the Paramount Stool of Assin Atandasu were parties on the record to the action before Hall, J., but that does not dispose of the case. A brief narrative of the litigation is necessary to appreciate the issues.
The lands of the sub-chiefs of Assin Akropong and of Assin Yakumasi border each other. Assin Akropong is a sub-chief of the Stool or State of Assin Apimanim and Assin Yankumasi is a sub-chief of the Stool or State of Assin Atandasu. These two sub-chiefs are, in a sense, Wardens of the Marches for their respective States, for unquestionably the boundary between them, so far as concerns the area in question, must necessarily be also the boundary between the two States.
In 1911 the two sub-chiefs of that time litigated in an action in the Divisional Court at Cape Coast for demarcation of their boundaries and terms of agreement as to the boundary were drawn up by the parties and entered as the judgment of the Court. Dissatisfaction with that judgment and a riot followed in 1916 and, as a result, the Omanhene of Assin Atandasu and the representative of the Omanhene of Assin Apimanim as the overlords of the parties met to settle the difference as to the boundary which had been the subject matter of the 1911 action. A boundary was defined by arbitrators at Nsuta in 1916. It was later confirmed by the award of arbitrators at Cape Coast in 1921. Both these demarcations were brought about by the exertions of the Paramount Chief of Assin Atandasu and the representative of the Paramount Chief of Assin Apimanim.
The claim in 1924 before Hall, J., was by the sub-chief of the present opposer-appellant to give effect to the boundary settlement as awarded by the arbitrators. It was contended by Kurankyi Minta III the then sub-chief of the present first grantor the Paramount Stool of Assin Atandasu and predecessor of the second grantor the Ohene of Assin Yankumasi, that the award was of no effect. It was in those circumstances that Hall, J., in the first passage of his judgment observed that the suit would in effect settle the boundary dispute or part thereof between the divisions of the Omanhene of Assin Atandasu and the Omanhene of Assin Apimanim.
Hall, J., held that a plan, exhibit “D”, which had fortunately been found and was produced in the present enquiry, was the identical plan on which the boundary had been actually demarcated by the Omanhene.
Chief Kobina Fori, the representative of the present opposer’s predecessor, testified in that suit in support of the boundary demarcated on the plan and the learned Judge gave effect to it in his judgment and himself initialled the demarcation line at various points. This line was later surveyed and demarcated by Government without opposition or representation to the contrary by the opposer’s predecessor as the boundary between the two Paramount Stools or States. Today the position is altered, and the opposer-appellant seeks to avoid the very boundary which his predecessor’s representative, in collaboration with the first grantor’s predecessor, played a major role in establishing not only as defining the boundaries of their separate sub-stools but obviously the limits of the two States in this area.
It is clear to my mind that the opposer-appellant is estopped from re-agitating the boundary laid down by Hall, J.
(i) As the evidence in the 1924 suit shows, it was demarcated as a result of the active participation of his predecessor in title and therefore binds the opposer.
(ii) He is estopped from alleging that the land to the west of the boundary laid down is attached to his Paramount Stool, for his predecessor’s representative in 1916 and 1921, when taking part in the boundary settlement, did not assert for the Stool of Assin Apimanim a claim of title to land to the west of the agreed boundary line.
(iii) He is further estopped because his interests, if any, as has been demonstrated are coterminous with those of the Ohene of Assin Akropong represented in the 1924 suit by Katurka Yardom.
A person may be bound by a judgment though not a party to it, if he is in the same interest as a party and might, if he had chosen to take the necessary steps under Order 3, rule 5 of the Rules of Court, have been admitted as a party— Farquahrson v. Seton (1) and In re Lart: Wilkinson v. Blades (2). As Lord Penzance said in Wytcherley v. Andrews (3), “That principle is founded on justice and common sense”. It is observed also that the opposer-appellant did not call evidence and did not prove at the enquiry any title in his Paramount Stool upon which his ground of opposition that part of the land is attached to his Stool could be founded.
The issues were therefore rightly decided and I would therefore dismiss this appeal with costs allowed at £42 11s. 0d.
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FOSTER-SULTON, P.
I concur.
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WINDSOR-AUBREY, J.
I concur.
Appeal dismissed.
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