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R. A. SASRAKU
V.
OKINE, OAPARE AND KAALEY
WEST AFRICAN COURT OF APPEAL, ACCRA, OLD GOLD COAST (GHANA)
16TH DAY OF JUNE, 1930
2PLR/1930/18 (WACA)
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OTHER CITATION(S)
2PLR/1930/18 (WACA)
(1930) I WACA PP. 49-62
LEX (1930) – I WACA PP. 49-62
BEFORE THEIR LORDSHIPS:
MICHELIN, J.
HOWES, J.
SAWREY-COOKSON, J.
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BETWEEN:
R. A. SASRAKU — Appellant
AND
OKINE, OAPARE AND KAALEY — Respondents
AND
KOFI KWESI — Respondent
AND
AMON SASRAKU — Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Trespass — Proof of — Previous judgment between privies—Compromise on appeal — Rejection of judgment because compromise not tendered in evidence at same time — Legal effect
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CASE SUMMARY
One Sasraku and one Kofi Kwesi had a dispute concerning certain land and instituted cross-actions to determine the title. There had been a previous action with reference to the same land, viz., Jotchi v. Nkum, in which judgment was given in favour of Nkum. Jatchie appealed, but the appeal was not decided, the parties entering into a compromise.
Sasraku, alleging Nkum to be his predecessor in title, tendered in evidence the judgment in Jatchie v. Nkum. The Court below refused to admit it, unless the compromise was tendered at the same time, on the ground that, without perusing the compromise, the Court was not in a position to say whether the compromise had or had not the effect of a judgment of the Full Court.
On appeal, the decision of the Court below was upheld. Among Kwame v. Ayitey, F.C. 9-5-27, distinguished Ohia v. Nlikora, P.C. 1874-1928 page 15, discussed.
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MAIN JUDGMENT
The following judgment was delivered in the Court below:
DEANE, C.J., THE GOLD COAST COLONY
In one of these actions 208/1926 the plaintiff Sasraku is claiming damages from three persons for trespass to land which he alleges to be his: in the other a transferred case-the plaintiff Kwesi is claiming against Sasraku to have a declaration of title to a parcel of land which includes the land with regard to which plaintiff in the first named suit alleges trespass.
As Kofi Kwesi further alleges that the three persons against whom trespass is alleged in 208/1926 were his servants and on the land at his request and by his direction, it will be apparent that the actions are really in the nature of cross actions to determine the right to possession of the land in dispute. Inasmuch as the parties are natives, and the suits relate to the ownership, possession or occupation of land within the jurisdiction of a native tribunal, they would prima facie be triable by a Native Tribunal. As, however, the transfer case has been referred to this Court by a Commissioner from a Native Tribunal, and 208/1926 was instituted in this Court prior to the coming into force of Cap. 111, I have exercised my discretion under section 58 (5) of Cap. 111 and decided that the two matters should be heard and determined together in this Court.
In this judgment it will be convenient to refer to Sasraku as the Plaintiff and to Kofi Kwesi as the Defendant.
The Defendant has established to my satisfaction that in the year 1887 a predecessor in title of his, one Ashong Cudjoe, bought from one Achyea, the then holder of the Stool of Apedwa to which the land is attached, the parcel of land coloured green on the plan exhibit “A,” and I see no reason to disbelieve his statement that following on Ashong Cudjoe’s agreement with Achyea to buy land, Achyea sent messengers to one Mankatta who represented Achyea in charge of land in the Panpansu District to be present at the cutting of the boundaries for Ashong Cudjoe, and that Mankatta deputed men who were present and assisted in cutting the boundaries of the land sold to Ashong Cudjoe.
This statement if true, and I accept it, is quite inconsistent with the land sold being at that time the property not of the stool but of Mankatta himself, and it debars Mankata or his successors from setting up a prior sale to Mankatta by Abrokwa a predecessor to Achyea on the Stool of Apedwa; inasmuch as Mankatta was a consenting party to the sale by Achyea to Ashong Cudjoe. After the sale Ashong Cudjoe took possession of the land in question, and he and his successor held it in undisputed possession down to 1908 when for the first time that possession was disputed under circumstances hereinafter referred to. Right through from 1887 up to the present day, however, the possession by Ashong Cudjoe and his successors of the parcel of land in question has been uninterrupted. When Ashong Cudjoe died he was succeeded by Atta Kwamina, Atta Kwamina on his death was succeeded by Kwadjo Kwabena, and Kwadjo Kwabena in his turn by the Defendant Kofi Kwesi. They all in turn have lived upon the land cultivating it and reaping the crops, and it is only since 1908 that efforts have been made to dispossess them.
Now it is clear, inasmuch as it is agreed by both parties to this dispute that the land in question is attached to the stool of Apedwa, that the sale by Achyea the holder of the stool to Ashong Cudjoe would confer on Ashong Cudjoe a good and valid title to the land, unless the Plaintiff could establish that when Achyea purported to sell, the land had already been alienated either by Achyea himself or by one of his predecessors on the stool. The Plaintiff accordingly did attempt in the course of his evidence to show that Achyea, when he purported to sell to Ashong Cudjoe, had nothing to sell since Abrokwa his predecessor on the stool had already alienated the land to Mankatta. But putting aside the difficulty to which I have already referred, viz., that Mankatta or his successors in title cannot be heard to set up a prior sale to Mankatta when he was a consenting party to the sale by Achyea to Ashong Cudjoe, the Plaintiff has completely failed to satisfy me that any such sale to Mankatta by Abrokwa did in fact take place. The evidence in support of it was purely hearsay, while the fact that Defendant and his successors were allowed to enjoy undisputed possession of the land down to 1908 is strong evidence against it.
The position therefore is that I must take it as a starting point that Defendant in 1887 acquired from Achyea the holder of the stool of Apedwa a good title to the land coloured green on exhibit “A” and it is for plaintiff to show that something has occurred since 1887 which has put an end to that title and vested the land in himself before he can succeed.
The Plaintiff’s real claim to title indeed in this case is based not on the alleged sale to Mankatta by Abrokwa but on the decision in favour of Nkum, a son of Mankatta, in a case of Jatchi v. Nkum decided by Sir Brandford Griffith in 1908. If the opening statement of Counsel for Plaintiff which must be taken as his case is examined, it will be found that he states “we rely on decision in Jatchi v. Nkum by Sir Brandford Griffith.”
It will be necessary, therefore, to see whether the Plaintiff’s title derived from the decision in that case is a substantial one and such as to override the Defendant’s good prior title.
To do this it is necessary, I think, to set forth the history of the case of Jatchi v. Nkum, and that I shall do mainly by reference to statements in Counsel for Plaintiff’s opening statement. It appears that some time about 1905 a dispute arose between Nkum and two persons called Ashong and Patabubu with regard to land situate at a place called Anyabiri, which is stated to be included within the lands known as Panpansu lands. A reference to exhibit “A” shows that the description Panpansu applies to a very large block of land in the basin of the Panpansu river, which is alleged to include within its boundaries not only Anyabiri but also Sansami where the lands claimed by defendant in this case are situate. When Nkum had his dispute with Ashong and Patabubu he proceeded to bring an action against them for trespass, not upon lands situate at Anyabiri but for trespass upon Panpansu lands, and got judgment against them. Thereupon Jatchi the then holder of the stool of Apedwa, having succeeded Achyea on the stool, no doubt thinking that the judgment being for trespass upon Panpansu lands which he considered belonged to his stool might infringe his rights although he was not a party to the action Nkum v. Ashong and Patabubu, brought an action against Nkum claiming a declaration of title to Panpansu lands in favour of himself.
In the Divisional Court he failed and judgment was given for Nkum: he then appealed to the Full Court, but before the Full Court ” on the suggestion of the Court” a compromise was entered into the result of which was to confirm the judgment of the Divisional Court so far as his title to Panpansu lands as against Nkum was concerned. Thereupon Ntikora the successor of Nkum who had died in the meantime, acting on the belief that the compromise judgment of the Full Court had given him title to Panpansu lands as against the world, proceeded to bring an action for possession of lands situate at Panpansu against certain persons who claimed to be in possession of lands at Panpansu as having bought from Achyea the predecessor of Jatchi (Nlikora and Ors.) He was successful in the Courts of the Colony, but on appeal to the Privy Council by the Defendants, judgment was given in their favour, their Lordships holding that the Defendants were not bound by the compromise, since to quote the judgment ” the Plaintiff could not show his title by proving that Jatchi entered into an agreement with the Plaintiff after his predecessor had given a title to the Defendants, otherwise one man might dispose of another man’s interest behind his back.” (Ahia and Ors. v. Ntikora, P.C. 1874 1928, 15.)
Now, however, as the result of the Privy Council case has precluded the Plaintiff from setting up the title arising out of the compromise judgment as against any other persons than Jatchi and persons who claim through Jatchi, the Plaintiff seeks to set up the title which he says the Divisional Court Judgment in Jatchi v. Nkum gave him. “The Divisional Court Judgment,” so runs his argument, “binds Jatchi and all who purchased from hin of whom the Defendant’s predecessor was one”: that judgment has not been set aside and is in full force and effect. “Therefore I am entitled to judgment against the Defendant.”
It is obvious that if the facts were as stated in the argument, it could be a good argument and the conclusion a perfectly sound one. To my mind, however, the whole argument teems with misstatements. The first misstatement is that the Defendant claims through Jatchi; whereas the whole case of the Defendant, which is really not seriously challenged by Plaintiff, is that he bought not from Jatchi but from Achyea, a predecessor of Jatchi on the stool of Apedwa. Then it is argued that Jatchi being the holder of the stool must be taken to have sued in a representative capacity, and that a judgment against him must be taken as binding all persons who hold stool lands.
It is quite true that a chief who sues for stool lands sues as representing not only himself but all the members of his tribe who have an interest in the stool or communal lands, but when his predecessor has once parted with the lands by sale to a stranger of his tribe, he can tribe can have any further right in them except on the remote possibility that the lands may revert to the stool if the purchaser dies intestate and without heirs.
In the case of Jatchi v. Nkum, however, as appears from the Privy Council case of Ahia and Ors. v. Ntikora, what was being litigated was Jatchi’s right to Panpanşu lands as stool lands, and clearly he could not possibly be held to represent the Defendant in any litigation when Defendant is not even a member of the tribe who is interested in stool lands.
The next statement to which I take exception as not having ‘been established is that the winna.vut judgment in Latchi v Ukum has not been set aside but is in full force and effect. Counsel for Plaintiff attempted to put in evidence the judgment, but as he refused at the same time to put in evidence the compromise which he had already referred to, I refused to accept it holding that the Court was entitled to see not only a part of the proceedings but the whole, and that he could not put in the judgment unless he at the same time put in the compromise. His argument is the ingenious one that the Privy Council in the case of Ahia and Ors. v. Ntikora (ut supra) referred in disparaging terms to the judgment.
He quoted Lord Loreburn’s words “their Lordships think that this so-called prior judgment was not in fact admissible and they would not themselves describe it as a judgment at all” and that therefore the compromise had no effect. I would, however, venture humbly to point out that the question before the Board was not whether the compromise in Jatchie v. Nkum was a correct judgment, but whether it was admissible in evidence in the case before the Board, and that any disparaging remarks made with regard to it can only be considered obiter dicta and not as holding that the compromise had no effect as a judgment in the case in which it was delivered.
I hold therefore that when it is sought to put in before me in evidence part of the proceedings in a case which ended finally in this compromise, I am entitled to be shown the whole proceedings in order that I may form my opinion as to the effect of the compromise on the judgment of the Divisional Court.
In Spencer Bower on res judicata page 25 it is stated ” when a judgment or order which fulfils all the requisites of a good res judicata has once been pronounced a subsequent order merely subodying a compromise by the parties on appeal of their rights and liabilities so adjudged or merely purporting to rescind or set aside by consent the former judgment or order, without the Court being called upon to exercise its functions of review or having any judicial cognizance of the unofficial reversal, is not a decision at all and has no effect whatever on the first judgment which remains the only res judicata binding on the parties.’
In this matter accordingly it is in my opinion necessary, when Plaintiff while tendering the judgment of the Divisional Court admits that a compromise was entered into on appeal, that the whole proceedings should be before me in order that I may decide on consideration of the record whether the judgment of the Divisional Court is the res judicata binding on the parties in the matter or whether the Appeal Court, as is strongly suggested by Counsel’s statement that it was done “ on the suggestion of the Court,” exercised its functions of review and had judicial cognisance of the matter so that the Divisional Court judgment became merged in the judgment of the Appeal Court.
In my opinion therefore the plaintiff’s claim to override defendants’ title cannot be supported by the Divisional Court judgment in Jatchie v. Nkum –
1. Because it is quite clear that Jatchi did not represent the Defendant so that Defendant would be bound by the judgment, and
2. because if the Defendant was so bound, the judgment binding him, owing to the refusal of Plaintiff’s Counsel to put in the whole proceedings, is not before the Court.
One further aspect of this case needs to be noticed-The Plaintiff has certainly been on a part of the land coloured green as Defendants’ land in Exhibit “A” for some years, and the Defendant admits that he has planted cocoa trees on it which have grown to a considerable size.
The explanation seems to be this As I have stated above after the compromise in Jatchi v. Nkum, Ntikora’s successors seemed to have thought that he had been given title by the Court to all lands to which the description Panpansu could be attached. In exercise of his supposed rights he thereupon proceeded to sell lands which he considered fell within that description, and there seems to be no doubt that he sold a quantity of land which lies within the portion delineated green on Exhibit “A” to various people, including one Afutufio who states that he bought for himself his brothers Awulin, Anom, Sasraku and others.
Thereupon Atta Kwamin, Defendant’s predecessor who was then alive filed a writ dated 10th March, 1913, against these persons (Atta Kwamin v. Charles Bruce and another).
On 17th April, 1915, Smyly, C.J. referred the matter to the Native Tribunal. On 17th August, 1915, the Native Tribunal gave judgment in favour of Atta Kwamin which judgment was confirmed by the Provincial Commissioner on 13th November, 1916. Atta Kwamin might then well have thought that he had finished with the matter and would have no more trouble, but the Plaintiff whose name had not been included in the list of Defendants sued in Atta Kwamin v. Charles Bruce and others for the simple reason that he had not been on the land and was not known to Atta Kwamin or his people now came forward, the other“ brothers” having been unsuccessful, to carry on the fight. He admits that he was not on the land when the survey was being made for the purpose of the case, and his story that he was away on a journey at the date of the survey may possibly be true, but when he goes further and contends that he has never been disturbed in his possession until the date of the alleged trespass and that he could not take steps against the parties who cut a line through his land because he did not know who they were, I find it impossible to believe him. The proceedings lasted for three years, his brothers, Awulin and Amon for whom Afutufio had bought along with himself, and whose lands must therefore have been either contiguous to his or at least in the very near neighbourhood to his, were defendants, while Afutufio himself under stress of cross-examination or admitted, although he had denied it strongly at first, that he was one of the Defendants in that case. There is evidence also on the previous survey made of the neighbourhood (Exhibit “B”) that the spot where the now alleged trespass is said to have taken place is somewhere right within a farm coloured green on plan “ B,” and pointed out at the time of the making of the plan by Defendant Kofi Kwesi as his property.
I accede therefore to the Defendants’ contention that the case of Atta Kwamin v. Charles Bruce and others was an attempt by Atta Kwamin to eject from his land all those persons who under colour of a purchase from Ntikora had settled themselves upon his land, that he considered that in that action he was vindicating his claim to be entitled to the very land now in dispute, and that had Plaintiff then asserted his right to the land as he did later his name would have been included in the list of Defendants in Atta Kwamin v. Charles Bruce and others.
Had he done so the Native Tribunal and subsequently the Commissioner would have decided in favour of Atta Kwamin since it is clear Plaintiff’s title is the same as the titles of Amon and Awulin and the Court would not have been troubled by the dispute to-day.
For these reasons I think that Plaintiff in case 208/1926 (Sasraku) has failed to prove a trespass by the Defendant or his servants, and I give judgment for the Defendants ; in the trans ferred case I am of opinion that Kofi Kwesi has substantiated his title to the land coloured green in plan “A” and I give judgment in his favour.
Costs will follow the event in both cases.”
The following judgments were delivered:
MICHELIN, J.
This is an appeal by the plaintiff, R. A. Sasraku, from the judgment of His Honour the Chief Justice (Mr. now Sir George Campbell Deane) dated the 3rd February, 1930, in the above two actions which by order of the Court were heard and determined together as a consolidated case, judgment having been delivered in favour of the defendants in the first action and in favour of the plaintiff in the second action, costs to follow the event in both actions.
In the first action, which was instituted in the Divisional Court, the plaintiff by his writ of summons dated the 27th of October, 1926, claimed from the defendants the sum of £250 by way of damages for trespass on certain land situate at Pampanso in the Akim District near Apedua, with boundaries as set out in the writ of summons and also an injunction restraining the defendants from continuing such trespass. In the second action which was originally instituted in the Tribunal of the Omanhene of Akyem Abuakwa, but which by an order of the Provincial Commissioner was subsequently transferred to the Divisional Court, the plaintiff by his writ of summons dated the 7th February, 1927, claimed a declaration of title as against the defendant to certain land with cocoa farms thereon situate at Sansami with boundaries as set out in the writ of summons.
Although the land is described differently in the two writs of summons, it is not disputed that the land described in the first writ of summons forms a portion of the land claimed by the plaintiff in the second writ of summons, and this is made clear by the Chief Justice in the course of his judgment when he states as follows:-” The land Kwesi is claiming against Sasraku to have a declaration of title is a parcel of land which includes the land with regard to which plaintiff in the first named suit alleges trespass. As Kofi Kwesi further alleges that the three persons against whom trespass is alleged in 208/1926 were his servants and on the land at his request and by his direction, it will be apparent that the actions are really in the nature of cross-actions to determine the right to possession of the land in dispute.”
According to the opening statement of Counsel for the plaintiff in the first action, in the Court below, he based his title to the land in dispute upon a purchase by him from one Ntikora, in the year 1908, and since such purchase he had been in undisturbed possession of the said land. The defendants in the first action were servants or agents of Kofi Kwesi the plaintiff in the second action, who was an adjoining landowner to the plaintiff (Sasraku).
“In 1905, a dispute arose between one Nkum, the immediate predecessor of Ntikora, and two persons Ashong and Patabudu as to a piece of land part of Pampansu land, called Anyaviri. The action was by Nkum for trespass to the whole of the land called Pampansu and the boundaries of Pampansu were given and included the land now the subject of this case. Judgment was given by Sir Brandford Griffith for Nkum.
“Immediately afterwards, one Jatchie the occupant of the Stool of Apedwa brought an action against Nkum claiming title to the land called Pampansu
“Jatchie’s action failed in the Divisional Court, Jatchie appealed to the Full Court. The Appeal was not decided, but on the suggestion of the Court a compromise was entered into by Jatchie.
“The plaintiff relied on the decision in Jatchie v. Nkum by Sir Brandford Griffith, and not on the compromise.”
According to the opening statement of Counsel for the defendant (Kofi Kwesi) in the Court below, the defendant did not claim the land in dispute through Jatchie, but through a purchase from one Akyea, the predecessor of Jatchie on the Apedwa Stool. The person who bought the land was one Ashong Cudjoe, about the year 1887. Boundaries were cut at the time and the sale carried out in accordance with Native Custom. Ashong Cudjoe was succeeded by Kwadjo and he in turn by Kofi Kwesi, the present defendant. Since the purchase, the defendant and his predecessors in title had been in undisturbed possession of this land.
With regard to the action of Nkum v. Ashong and Patabudu, Counsel for the defendant contended that the land in dispute in that action was for away from the land now in question.
As regards the judgment of the Divisional Court in Jatchie v. Nkum upon which reliance was placed by Counsel for the plaintiff, Counsel for the defendant contended that this judgment was not relevant, inasmuch as the defendant’s predecessor in title had purchased this land before Jatchie sold to Nkum.
The Appeal was argued before us on the following three grounds :
(1) Rejection of admissible evidence.
(2) The Court drew erroneous conclusions in law.
(3) The judgment was otherwise erroneous.
In dealing with ground (1), Counsel for the appellant referred us to pages 163 and 220 of the Record, wherein the evidence alleged by him to have been wrongly rejected, and which consisted of the opening statement of Counsel, and the judgment of the Divisional Court in Jatchie v. Nkum, is recorded. He also referred us to page 58 of the Record, where the Chief Justice gave his ruling, when the evidence was tendered in the Court below; and which reads as follows:-
“Mr. Phipps says he does not tender the compromise which was arrived at before Full Court in Jatchie v. Nkum, he only tenders the Divisional Court judgment. I hold on the statements before me by Mr. Phipps himself that the Divisional Court judgment did not conclude the matter, but that subsequent proceedings took place, that he cannot put in a part of the proceedings which are obviously incomplete but must put in the whole, including the compromise in Full Court. Opening and Divisional Court Judgment in Jatchie v. Nkum tendered and rejected.”
He also referred us to page 85, where in the course of his judgment, the learned Chief Justice stated as follows:
” In Spencer Bower on Res Judicata, page 25, it is stated where a judgment or order which fulfils all the requisites of a good res judicata has once been pronounced, a subsequent order merely embodying a compromise by parties on appeal of their rights and liabilities so adjudged, or merely purporting to rescind or set aside by consent the former judgment or order without the Court being called upon to exercise its functions of review or having any judicial cognisance of the unofficial reversal, is not a decision at all and has no effect whatever on the first judgment which remains the only res judicata binding on the parties.
“In this matter accordingly it is in my opinion necessary when plaintiff while tendering the judgment of the Divisional Court admits that a compromise was entered into on appeal, that the whole proceedings should be before me in order that I may decide on consideration of the record whether the judgment of the Divisional Court is the res judicata binding on the parties in the matter, or whether the Appeal Court, as is strongly suggested by Counsel’s statement that it was done on the suggestion of the Court, exercised its functions of review and had judicial cognizance of the matter so that the Divisional Court judgment became merged in the judgment of the Appeal Court “
In my opinion therefore, the plaintiff’s claim to override Defendant’s title cannot be supported by the Divisional Court judgment in Jatchie v. Nkum –
“(1) because it is quite clear that Jatchie did not represent the defendant so that defendant would be bound by the judgment,
(2) because if the defendant was so bound, the judgment binding him, owing to the refusal of plaintiff’s Counsel to put in the whole proceedings, is not before the Court.”
Learned Counsel contended:
(1) That the Chief Justice was wrong in calling upon him to produce the compromise judgment before admitting the Divisional Court judgment in evidence.
(2) That the judgment should have been admitted on the ground that the action upon which it was based had been brought by Jatchie in his representative capacity as chief of the stool of Apedwa, not only on behalf of is stool, but also on behalf of those persons who had purchased from the stool.
In support of his first contention, he referred the Court to the following cases :- Jenkins v. Robinson L.R. I.H.L. Sc. 117, Among Kwame v. Ayitey F.C. 1926–29, 212 and Ohia v. Ntikora, P.C. 1874 1928, 15; and in support of his second contention, he referred to the following cases:- Duke of Bedford v. Ellis (1901) A.C.1, Commissioners of Sewers v. Gellatly (1876) 3 Ch.D 610, Pyke v. Crouch 91 E.R. 1387, Neill v. Duke of Devonshire 8 App., Cas. 135, Brown v. Howard 21 E.R. 960, and Strutt v. Bovingdon, 8 R.R. 834.
I may mention here, that although in his opening statement in the Court below learned Counsel appears to have relied upon the Divisional Court judgment in the case of Jatchie v. Nkum as establishing a res judicata in favour of the plaintiff, in arguing the appeal before us he contended that he relied on this judgment not as the root of the plaintiff’s title but as evidence to show that Pampansu land had been sold by Abrokua to Mankatta. (Abrokua being a predecessor to Akyea on the stool of Apedwa, and Mankatta being a predecessor of Ntikora, from when the plaintiff is alleged to have purchased the land in dispute.
I shall in the first place consider the effect of the judgment of the Full Court in the case of Among Kwame v. Ayitey to which learned Counsel referred.
In that case, an appeal was taken from a judgment of the late Chief Justice (Sir Philip Smyly). One of the grounds of appeal was that the identical judgment, now rejected, had also been rejected by him. The Full Court allowed the appeal on that ground, and the action was accordingly remitted to the Court below for rehearing
In the course of the judgment of Hall, J. who delivered the judgment of the Full Court, he stated as follows:
“I am of opinion that the learned Chief Justice was not correct in rejecting the judgment in Jatchie v. Nkum on the evidence before him, and I consider it was his duty to have accepted it in evidence unless it was proved to have been avoided by the compromise in the Full Court.”
If the facts in that case were identical with the facts in the present case, this judgment would undoubtedly have been binding on the Court below, and it would have been incumbent on the Chief Justice to have admitted in evidence the judgment tendered. The facts, however, are not identical. The plaintiff in that case based his title upon a purchase from Kwesi Jatchie, the Chief of Apedwa, who was the plaintiff in the action of Jatchie v. Nkum, whereas it is admitted that the defendant in the present case based his title upon a purchase from one Akyea a predecessor on the stool of Apedwa. The reason given for the rejection in that case appears also, from the judgment, to have been different to that given in the present case. I am unable to hold, therefore, that the judgment of the Full Court in the case cited was binding upon the Court below in the present case.
As to the judgment of the Privy Council to which reference has been made, although undoubtedly great weight must be attached to the views of their Lordships as to the effect of the compromise arrived at by the Full Court in the case of Jatchie v. Nkum, I agree with the learned Chief Justice in his opinion that as this particular judgment of the Full Court was not before the Privy Council on appeal, apart from their definite decision as to the inadmissibility in evidence of the “compromise” judgment in the particular action on appeal before the Board, the disparaging remarks of their Lordships as to the “compromise” judgment can only be considered as obiter dicta and therefore the Court below could not give a pronouncement as to whether the Divisional Court judgment tendered, amounted to a res judicata or not, without having an opportunity of seeing also the judgment of the Full Court when the action came before it on appeal.
In the case of Jenkins v. Robertson, it was held that a decree obtained by arrangement between the contending parties, the Court bestowing no judicial examination on the merits of the question, can never be res judicata.
Without having an opportunity, therefore, or perusing the terms of the alleged compromise, it would have been impossible for the Court to say whether there had been a judicial examination on the merits of the question or not, and the decision in the above cited case cannot therefore be held to support Counsel’s contention that the Chief Justice was wrong in requiring the production of the compromise before admitting the judgment of the Divisional Court in evidence.
I shall now consider the submissions of learned Counsel under the second portion of this ground.
Most of the cases cited by him are in support of the well-known principle of law that members of a class are frequently bound by a judgment obtained against others suing or being sued in a representative capacity.
Although I am satisfied from the judgment of the Full Court in the case of Among Kwame v. Ayitey, and also from the judgment of the Privy Council in Ohia v. Ntikora, that in the case of Jatchie v. Nkum the plaintiff sued in a representative capacity, the question for the Court to determine its whether the present respondent could be considered as a member of the class who could be held to be bound by that judgment: In the course of the judgment of the learned Chief Justice he stated as follows:
“It is quite true that a Chief who sues for stool lands sues as representing not only himself but all the members of his tribe who have an interest in the stool or communal lands, but where his predecessor has once parted with the 0lands by sale to a stranger neither he nor the members of his tribe can have any further right in them.”
In the case of The Mercantile Investment and General Trust Co. v. River Plate Trust Co. (1894) 1. Ch. page 578, it was held that a purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against his vendor, commenced after the purchase. In the case of Spencer v. Williams (1871) L.R. 2 P. & D. page 230, it was held that if parties litigate a question in a Court of competent jurisdiction and a final decision be given thereon, such parties, or those claiming through them, cannot afterwards re-open the same question in another Court; but that this restriction does not extend to other persons whose interest is almost identical with that of one of the parties to the first suit if they do not actually claim through such party.
In Phipson on Evidence (3rd Edition) at page 261, it is stated, as follows:-
“The rule is now established that on questions of public or general, but not of private interest the verdict, judgment or order of a competent tribunal is admissible, not however, as evidence of any particular fact, but as an adjudication upon the state of facts and questions of usage at the time.”
This principle was recognised by the House of Lords in the case of Neil v. Duke of Devonshire, 8, Appeal Cases, page 147, to which learned Counsel referred. The judgment held to be admissible in that case had reference to rights of public fishing in a tidal river. In the case of Strutt v. Bovingdon to which learned Counsel also referred, the record admitted in evidence in a second action against the same defendant was as to a question of rights of water.
In the present case the evidence sought to be adduced from the previous judgment was not as to a public, but as to a private right.
In Halsbury’s Laws of England, Volume 13 at page 343 it is stated as follows:
“A judgment ‘inter partes’ raises an estoppel only against the parties to the proceedings in which it is given and their privies, i.e. those claiming or deriving title under them. As against all other persons it is ‘res inter alios acta,’ and with certain exceptions (e.g. when the judgment determines a question of public right and is admissible as evidence of reputation), though conclusive of the fact that the judgment was obtained and of its terms, is not even admissible evidence of the facts established by it.”
I have carefully considered the various cases cited by Counsel for the appellant, and am of the opinion that none of these cases in any way overrides that general principle.
In my opinion, the defendant-respondent not being a party or a privy to the Divisional Court judgment in Jatchie v. Nkum such judgment was not admissible in evidence against him, and apart from the reasons given in the Court below for the rejection of this judgment and also of the opening statements of Counsel at the hearing of the action upon which the judgment was based with which I have already dealt, this ground of appeal cannot be sustained.
I shall now consider the second ground. Learned Counsel arguing this ground, referred us to page 79 of the Record of Appeal, where the Chief Justice in the course of his judgment stated as follows:
“The defendant has established to my satisfaction that in the year 1887 a predecessor in title of his, one Ashong Cudjoe, bought from one Achyea the then holder of the stool of Apedwa to which the land is attched the parcel of land coloured green on the plan Exhibit ‘A.’ I see no reason to disbelieve his statement that following on Ashong Cudjoe’s agreement with Achyea to buy land, Achyea sent messengers to one Mankatta who represented Achyea in charge of land in the Pampansu district to be present at the cutting of the boundaries for Ashong Cudjoe, and that Mankatta deputed men who were present and assisted in cutting the boundaries of the land sold to Ashong Cudjoe. This statement if true, and I accept it, is quite inconsistent with the land sold being at that time the property not of the stool but of Mankatta himself, and it debars Mankatta or his successors from setting up a prior sale to Mankatta by Abrokwa a predecessor to Achyea on the Stool of Apedwa, inasmuch as Mankatta was a consenting party to the sale by Achyea to Ashong Cudjoe.”
He contended that the suggestion of the Court as to estoppel was wrong, and that it was inconsistent with the plaintiff’s claim that Mankatta had purchased the land, which matter he submitted was already res judicata.
The conclusions at which the learned trial Judge arrived, were based entirely upon findings of fact, and having ruled that the judgment in Jatchie v. Nkum could not be pleaded as a res judicata, with which ruling I agree, these conclusions cannot in my opinion be regarded as erroneous in law.
In arguing as to the third ground learned Counsel dealt with the question of possession, and submitted that as the appellant had been in possession since 1908, he was entitled to a judgment in his favour. In this connection he referred the Court to page 85 of the record where the Chief Justice stated as follows:-
“Right through from 1887 up to the present day, however, the possession by Ashong Cudjoe and his successors of the parcel of land in question has been uninterrupted. When Ashong Cudjoe died he was succeeded by Atta Kwamina, Atta Kwamina on his death was succeeded by Kwadjo Kobina and Kwadjo Kobina in his turn by the defendant, Kofi Kwesi. They all in turn have lived upon the land cultivating it and reaping the crops and it is only since 1908 that efforts have been made to dispossess them.”
In view of these findings of fact, with which upon the evidence before the Court I see no reason to disagree, I do not consider that the fact of the plaintiff’s recent possession of a portion of the land in dispute was sufficient of itself to deprive the defendant of his title to the land in dispute.
In my opinion the learned Chief Justice’s judgment was supported by the evidence before him, and I see no reason to disturb such judgment.
The appeal must therefore be dismissed with costs assessed at £57 17s.
The Court below to carry out.
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HOWES, J.
I concur.
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SAWREY-COOKSON, J.
I concur.
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