Cases referred to :
(1) Djokoto v. Saba and Others, Supreme Court of the Gold
Coast, Eastern Judicial Division, Land Court, Accra, June 28, 1950,
(2) The Queen v. Inhabitants of Hartington (Middle Quarter)(1855) 4 E. & B. 780.
APPEAL from the decision of the Buem-Krachi Native Appeal Court on September 18, 1956, affirming the decision on May 22, 1956, of the Native Court ``B,'' Nkenya giving judgment for the defendant stool on the claim and a declaration of title on the counterclaim, in an action brought by the plaintiff family for a declaration of title to, and recovery of possession of, an area of land.
the history of the case is as follows: On or about January 8, 1941, the defendant's stool caused by-laws to be published directing citizens of Akloba who sold, pledged or let out portions of the land in dispute to report the transaction to the stool,a nd that any citizen who failed to comply with the order should suffer a fine of 26s. and a live sheep. The plaintiff wrote to the defendant refusing to comply with the by-laws, claiming the land to be his property. The defendant referred the matter to his head chief for settlement, but the plaintiff would not attend on an invitation by the head chief, whereupon the defendant took action against the plaintiff in the Magistrate's Court at Kpandu, claiming £50 damages for disregarding the lawful orders of the stool.  The Magistrate dismissed the claim, holding that disobedience to the lawful order of a stool is a criminal offence and does not give cause for an action for damages; and further that ``ownership of land in Nkeyna Akloba is not confined to the Divisional Chief and his sub-chiefs but is vested in individuals as well.'' That judgment was confirmed on appeal to the Provincial Commissioner of the Eastern Province.
On July 17, 1944, the defendant instituted another action in the Magistrate's Court at Kpandu for £25 damages for trespass, alleging that the plaintiff had wrongfully entered upon the land, made a plan of it and fixed pillars thereon. In a judgment delivered on November 26, 1948, the Magistrate held as follows:
``I can therefore only conclude that the land specified by the plaintiff in his claim is not Akloba Stool land but belongs to the defendant either in his personal capacity as head of his family or of the Amandja clan. I therefore find that the plaintiffs' claim for damages for trespass committed by the defendant fails.''
The defendant appealed to the Land Court but his appeal was dismissed. He thereupon appealed to the West African Court of Appeal. That court by a judgment delivered on March 7, 1952, dismissed the appeal, but amended the judgment of the Magistrate by deleting therefrom the passage declaring the plaintiff the owner of the property on the grounds that no declaration could be made in his favour where he had not counterclaimed.
On January 10, 1956, the plaintiff instituted the present suit. In support of his case he gave short oral evidence and tendered in evidence the writ of summons in the former case, the proceedings and judgments in it up to the Land Court, and the judgment of the West African Court of Appeal. He led no other evidence in proof of his title and refused to answer any questions by the defendant or the Native Court relating to title, and called no witnesses. He also refused to attend the inspection of the land by the Native Court.
The defendant on the other hand led evidence and called witnesses to prove his counterclaim that the land was communal land, and, at the inspection of the land, showed the Native Court features on the land evidencing the use of it as communal land by all four clans of the Akloba.
The Native Court held that the plaintiff had failed to prove his claim, and that the defendant had established his counterclaim. They therefore dismissed the plaintiff's claim, and entered judgments for the defendant both on the claim and the counterclaim. The plaintiff appealed from that judgment to the Buem-Krachi Native Appeal Court, but lost . He has now appealed to this court.
M. Akufo-Addo for the plaintiff submitted that the Native Courts misdirected themselves when they held that the plaintiff failed to prove  his case, because (a) the matter was res judicata by reason of the judgment in the previous suit, and (b) the defendant was estopped by the finding of facts made in the previous suit both from disputing the claim of the plaintiff and from maintaining his counterclaim. He submitted that if the plaintiff had counterclaimed in the previous suit, he would upon the facts found by the Magistrate have been entitled to a declaration of title and the present suit would not have been necessary. He referred the court to a judgment delivered by Coussey J., as he then was, in Djokoto v. Saba and Others (1), which he said is on all fours with the present suit.
Mr. E. O. Asafu-Adjaye for the defendant argued that he matter was not res judicata because the issue in the former suit was one of trespass, while the issue in the present case was one of title, and that any decision which the Magistrate purported to give on title was orbiter. He submitted therefore that the plaintiff could not succeed in the present action, where title is specifically raised, without leading evidence in proof of his title but by relying solely on the proceedings and judgment sin the former suit. On the question of estoppel he submitted that the contentions of Mr. Akufo-Addo were not maintainable in the present case.
Mr. Akufo-Addo in reply submitted that when carefully studied the whole of the proceedings and judgments in the former case amply support his contention that the matter was res judicata, because title was put in issue and proved in the former case.
In a claim for trespass, a plea of ownership by the defendant usually puts the title of the plaintiff in issue especially where the defendant is in possession. I think, however, that that principle applies where the title of the defendant must conflict with that of the plaintiff, e.g., on a claim by one subject against another subject of the same stool in respect of stool land, a claim by one member of a family against another member of the same family in respect of family land, a claim by one family against another family or a claim by one stool against another stool. It is not the same in the case of a claim by a stool against a subject in respect of stool land, or by the head of a family against a member of the stool family. In these latter cases the ownership of the defendant in possession could be only the usufruct while absolute title might be vested in the stool or the family. Therefore, a declaration of ownership in favor of the individual against the stool or the family may amount to nothing more than a declaration that the individual is entitled to the usufructuary or the possessory right in the land and that declaration may not affect the absolute title of the stool or family.
For that reason it is only in rare cases that a stool can succeed against a subject in an action for trespass, and for that matter a family against a member thereof.
 To operate as res judicata the judgment relied upon must
`` conclude not merely as to the point actually decided, but as to a matter which it was necessary to decide, and which was actually decided, as the ground work of the decision itself, though not then directly the point at issue '' :
see Coleridge J. in The Queen v. Inhabitants of the Township of Hartingon Middle Quarter (2). It is therefore necessary, as submitted by Mr. Akufo-Addo, to study the proceedings and judgments in the former suite to ascertain whether the issue in this case is the same as was decided in the former case, or the same as that which was actually decided as the ground for the decision in the former suit. If it is, that will be the end of the whole matter. I have consequently made such a study and found great assistance from the judgment of th West African Court of Appeal delivered on March 7, 1952. In the case of Chief Tengey Djokoto IV, etc. v. Chief Saba III, etc. (1) cited by Mr. Akufo-Addo, the Tovie tribe who were in possession of a portion of the Djita lands brought an action against the Bate tribe for declaration of their title to the said Djita lands. The Bate tribe set up a counterclaim for damages for trespass on the ground that the Tovei tribe had, without right, cut down a number of palm trees on the land. To succeed on their counterclaim against the Tovie tribe, who were in possession, it was necessary for the Bate tribe to prove a superior right to immediate occupation, namely, their title to the land. The claim and the counterclaim made the title of either tribe an issue in that case. The trial court dismissed the claim of the the Tovie tribe and entered judgment for the Bate tribe on the counterclaim, declared them owners of the land an awarded them damages for trespass. On appeal, the West African Court of Appeal upheld the judgment in trespass, but set aside the declaration of title made in their favour as they had not counterclaimed for declaration of title. Thereafter the Bate tribe, headed by Chief Tengey Djokoto IV, sued the Tovie tribe, headed by Chief Saba III, for a declaration of title. Coussey J., as he was then, held that the issue in the second case, namely the title of the Bate tribe to the Djita lands, was precisely what was fully litigated in the former trial for the determination of the issue of trespass raised by the counterclaim.
Now that was a claim by one tribe against another, therefore a plea of ownership to the counterclaim for damages for trespass must of necessity put the title of the claimant in issue. It is no the case here. Before the West African court of Appeal, it was submitted on behalf of the defendant (who in that case was the plaintiff) that the
`` real issue between the parties was the question as to whether the defendant held the land under the stool, or whether it was just personal property in which the stool had no interest ''
 and that
`` the plaintiff has at no time questioned the defendant's right to occupy and use the land in question, and that it is clear the Magistrate misdirected himself as to the real issue in the case, because he based his decision on the evidence relating to the defendant's occupation and user [sic] of the land over a period of years, in respect of which no complaint had been made by the plaintiff.''
On behalf of the plaintiff it was submitted that
``the plaintiff had sued for damages for trespass, not for a declaration of title of the stool ''
``upon a careful analysis of the evidence it is clear that the plaintiff was endeavoring to establish, on behalf of the stool, a right to possession of the land in question, which was inimical to the defendant's possession and user [sic] of such land. In other words that the evidence led on behalf of the plaintiff was designed to support his claim for trespass, not a claim to establish any overall right of the stool.''
The court reviewed the evidence coupled with the wording of the claim and came to the conclusion that the issue before the Magistrate was as submitted by the defendant's counsel.
I have studied the record of the proceedings in the former case. One fact stands out pre-eminently in it, namely, that the contention by the defendant that the land belongs to his stool--that is to a community consisting of four clans including the plaintiff's clan--and that any member of the community has a right to occupy any portion of it with the customary permission of the stool or head of the community. In such a case all the plaintiff, a subject or member o the community, needed to prove to succeed, in the action for trespass by the stool or head of the community against him, was that he was in possession or occupation. I do not, therefore, see how the West African Court of Appeal could have come to any other conclusion than the one to which they did come.
This means that the questions as to the title of the defendant's stool or the Akloba community in the land, as well as the issue as to whether the land was the plaintiff's absolute property in which the defendant's stool or the Akloba community had no interest, were not in issue, nor were they necessarily decided for the determination of the issue of trespass.
It my opinion the proceedings and judgments in the former suite, therefore, cannot operate as res judicata in the present suit. To succeed in his present claim to the ownership of the land by his clan to the exclusion of the other three clans in Akloba, the plaintiff must discharge the onus which lies upon any plaintiff in an action for a declaration  of title, and must prove his case to the satisfaction of the court. This he failed to do.
As regards estoppel, this seals a party's mouth to stop him from speaking, or prohibits him from alleging the contrary of what he had said on a previous occasion. Had the issue raised in the counterclaim been decided in the former suite I would have had no hesitation in holding that that decision, even if it did not operate as res judicata, would operate to seal the mouth of the defendant from raising it. And had the contention of the defendant in his counterclaim been the contrary of what he alleged in the previous case, I would have held that he is estopped from making his counterclaim. But that is not the case.
In my opinion both the Native Court ``B'' and the Native Appeal Court properly directed themselves ans were right in the decisions they gave. For these reasons I dismiss the appeal with costs.
The points raised in the appeal are of considerable importance and I think the plaintiff should be given an opportunity for further appeal if he should with do do so. I shall be prepared to grant special leave to appeal if application is made.