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Atta Panyin and Another v. Nana Asani II; Atta Panyin and Another v. Essuman (Consolidated)
[1977] 1 GLR 83.
Court of Appeal, Accra
25 June 1976


APPEAL against a judgment of Owusu J. in an action inter alia injunction and possession. The facts are fully stated in the judgment of Francois J. A.

Brodie Mends for the appellants.
J. Mercer for the respondents.

This is an appeal against the decision of the late Charles Owusu J. sitting in the Cape Coast High Court, in two actions which were consolidated for trail. The first of these suits was filed in February 1963 by the plaintiff-respondent, Nana Asani II, Ohene of Bedum, on behalf of his stool subjects against the defendants-appellants, abusuapanyin Atta pinyin and Nana Amuakwa VI, presenting the stools of Ewumaso [86] and Breman Asikuma, respectively. The respondent sought an order of the court declaratory of his right to a quiet sojourn on the appellants' Adumegya Bedum land upon payment of annual customary tribute. He also sought a protective injunction to shield his subjects from the harassment to which they had been subjected by the appellants. He Breman Asikuma Native Court B (subsequently transferred to the Cape Coast High Court for trial) the appellants had obtained a declaration of their title to Bedum land but failed in their bid to restrain the respondent and his subjects from entering the land. It was the respondent's case that that earlier prayer for an injunction sought against him was couched in such wide terms as to embrace not only his people, servants, agents, tenant and workmen, but ``all others claiming right of access to the said piece or parcel of land derived from [him] the defendant.''

It was the respondent's further case the, since that decision in 1961, the appellants had refused to accept the yearly tribute offered but had embarked upon a course of systematic harassment calculated to obtain a relief the court had significantly denied them, namely, the ejectment of the respondent and his people from the land. In the first of the consolidated suits therefore, the respondent sought to challenge the appellants' conduct and bring it to a halt.

The appellants agreed in the main with the averments pleaded by respondent which briefly recounted the history of the grant, the conditions attached thereto, to genesis of the 1958 action, and its conclusion in 1961 with the declaration of ownership in favour of the appellants and the refusal of the court to grant an injunction or exact forfeiture against the respondent and his subjects provided annual tributes were paid.

The appellants, however, controverted three specific matters. First, that the original grant vested any power in the respondent to alienate land especially to strangers without their consent. Second, that they had refused to accept annual tributes, and third, that they had molested the respondent. In turn they pleaded that the respondent in breach of his obligations under the grant had placed tenants on the land and goaded them into denying their over lordship. They contended that four of such tenants had been successfully sued in the High Court, Cape Coast, but had truculently refused to attorn tenant. Relying on these judgments the appellants counterclaimed for recovery of possession, an order upon the respondent's tenants to attorn to them, and an injunction against the respondent and his people from setting foot in the area. In issue for trial, consequently, were the matters above adverted to but more particularly the effect of the 1961 judgment of Adumua-Bossman J. reported as Atta Panyin v. Asani II 1961 G.L.R. 305.

In the second of the consolidated suits filed on 23 February 1966 the appellants used one Kwame Essuman (hereinafter referred to as Essuman) a tenant of the respondent. The claim derived its substance from the refusal of Essuman to attorn tenant to the appellant in terms of an order contained in a judgment of Charles J. of 1 December 1962. Essuman resisted this claim and denied the Charles J. judgment any validity, [87] relying on the derivative sub-title of the respondent. The appellants replied that the 1961 judgment of Adumua-Bossman J. (as he then was) estopped the respondent from litigating the issue.

On 14 February 1968, the two suits were consolidated for trail. As both parties relied largely on the judgment of Adumua-Bossman J. and to a lesser extent on that of Charles J., the evidence was extremely succinct. The argument in the trial court, rehearsed again in this court, was directed to the true construction and effect of these judgments. Counsel for the appellants in a fulsome and impassioned plea, exhorted this court to construe the judgment of Adumua-Bossman J. at its face value and to resist any temptations to interpolate. He argued that the late eminent judge did not lack clarity on legal issues and was the champion and best advocate of his own views. Any annotation of his judgment would consequently be unwarranted. It is readily conceded that it would be wrong to read into a judgment more than what an articulate and clear minded judge had inscribed. It is recognised also that Adumua-Bossman J., as was his wont, expressed his views forcefully with perception and at some length and his judgments betrayed no ambivalence on controversial issues. Consequently, this appeal must turn to a large extent on the true unvarnished interpretation of this judgment: specifically the nature of the appellant's holding as a stool tenant of a customary estate from the appellants. Adumua-Bossman J. was at great pains to trace the development of customary estates in Ghana. In his judgment of 1961, aforementioned, he examined in depth the right the usufructuary subject acquires in his holding in land and after examining critically the extent or quality of the respondent's usufructuary title in the light of decided authorities, concluded in favour of the respondent in upholding his right to remain on the land and deal with it. This appeal must determine whether the matters so examined came to a finality to preclude their further agitation, and sustain the plea of estoppel.

Our inquiry begins therefore with an examination of the respondent's usufructuary interest, and the first consideration is the nature of the grant the respondent's ancestors received from the appellants' forbears, some three hundred years ago.

There is no dispute that the radical title lay in the appellants. The 1961 judgment confirmed this. Equally uncontroverted is the term of the grant that the respondent should annually pay the appellants £G2 8s. 4d., and offer yams and sheep for the privilege of staying on the land with his subjects. The question, however, posed on these facts is whether the respondent was the possessor of a bare licence or a usufructuary title. For a mere occupational licence, denudes the grant of powers of control and disposition and seriously curtails and circumscribes the ambit of alienation.

The nature of such distinctive rights was examined in Yartey and Oko v. Construction & Furniture (West Africa), Ltd. [1962] 1 G.L.R. 86, S.C. where the Supreme Court laid down the test, that usufructuary title exists only where possession, control and management of the land has been vested in the grantee. Possession in that context being equated with prolonged [88] and effective occupation. The question now is whether upon that test the respondent's holding qualifies as a usufructuary interest. Even at the start of this examination it is wise to bear in mind the paramount importance of clarity and consistency in defining indigenous concepts. This caveat was given by Lord Maugham in Oshodi v. Balogun (1936 4 W.A.C.A. 1, P.C. where he deplored the inconsistency in terminology with regard to ownership and usufructuary title and prayed for statutory intervention to regulate the position. While endorsing the opinion of Lord Dunedin in Oshodi v. Dakolo [1930] A.C. 667 at p. 668, P.C. that: ``The paramount chief is owner of the lands, but he is not owner in the sense in which owner is understood in this country. He has not fee simple, but only a usufructuary title,'' Lord Maugham explained that usufructuary title could only legitimately exist in that context if contrasted with the title of the whole family unit which could claim the fullest beneficial rights. Loose terminology is also criticized in the Privy Council case of Enimil v. Tuakyi (1952) 13 W.A.C.A. 10 at p. 14 where Lord Cohen said:

``But it seems clear from authorities, to which their Lordships' attention was called in the course of the argument, that the term owner is loosely used in West Africa. Sometimes it denotes what is in effect absolute ownership; at other times it is used in a context which indicates that the reference is only to rights of occupancy such as the rent and tribute are on occasions treated as interchangeable. This looseness of language is, their Lordships think, due very largely to the confused state of the land law in the gold Coast as it now stands ...there has been introduced into the native customary law, to which the notion of individual ownership was quite foreign, conceptions and terminology derived from English law. In these circumstances it is not surprising that it is difficult to be sure what is meant in any particular case by the use of the expression owner.''

The call to the legislature to step into the breach has fallen on deaf ears, but fortunately, subsequent decisions of the courts have partially remedied this. Some of these authorities will presently be discussed, but it must be said now that the evidence does not suggest that the grant made three centuries ago was restricted in any way. Indeed documents tendered by the appellants themselves, exhibits B, B1 to B12 and exhibit D show that the respondent had been dealing with and managing the land to the fullest extent for at least a quarter of a century without let or hindrance. Assuming no waiver applies, the gravamen of the appellants' case in that if the respondent is permitted to put tenants and strangers on the land, it would give him rights over and above what was contracted for in the original grant and would in effect equate him with a titular overlord. The sort of situation was described by Graham Paul C.J. in Manuel v. Dokubo (1944) 10 W.A.C.. 47 at p. 60, where a grantee aspired to obtain a:

``higher right over the land than that given by the ordinary well-known and judicially recognized tenancy under native law and custom, [89] namely that the occupation was to be confined to himself, his family, his house members and successors and that he could not put strangers on the land--the right to put strangers on the land or collect rents being the well-known right of the absolute owner and not of the tenant under native law and custom. This is fundamental and recognized through West Africa.''

And I Zahri and Kassab v. Denkyira [1961] G.L.R. 419 where Ollennu J., as he then was, said at p. 423:

``But where a limited owner in denial of the title of the holder of a higher title in the land, e.g. where a tenant, abusa or otherwise, denies the title of his landlord, holding himself out as able to transfer a higher title deliberately offers to transfer that higher title, he, the limited owner, renders himself liable to forfeiture of his estate of interest in the land.''

And again in Bassey v. Eteta (1938) 4 W.A.C.A. 153 at p. 155 where it was held that a letting by a grantee to a stranger by the strict rule of native law and custom entails forfeiture but ``in practice the Courts grant relief against such forfeiture usually upon the terms that the letting shall hold good and the grantee shall pay over to the grantor a proportion of the rent received ...''

These cases were indeed illustrative of fundamental principles of land holding in Ghana. But they are hardly apposite in their application to the instant case. In the present case, the grantee was stool which in its own right had subjects and strangers. Such strangers' holding, ensuring future customary services; the allocation being the quid pro quo for their fealty and all its entails, within the territorial and jurisdictional areas of the stool. Further the presumption remained undisplaced that the original letting took cognizance of future dealings of the grantee with the land; consequently any subsequent letting did not constitute a derogation of the grant. Secondly, since the grantee contracted to pay a yearly tribute, it could be rightly urged that this fee covered and exhausted any other form of rent that could legitimately be exacted as the grantee stool was in the position always to provide customary services. Thirty, the issue where both rent and tribute were payable, was properly before Adumua-Bossman J. who was seised of it and had made a final pronouncement thereupon which could not be reagitated.

It will be observed that Graham Paul C. J.'s view in the Manuel case (supra) was not vindicated by the majority of the West Africa Court of Appeal for the simple reason that the issue was res judicata and not legitimately be reopened. The criticism is more telling in the instant case where from the pleadings and evidence the very question of alienation to strangers was canvassed before Adumua-Bossman J. whose considered judgment was not appealed against. Significant, for instance, are the admissions of the first appellant elicited in cross-examination as follows:

Q. `` You are aware of the case decided by Adumua-Bossman J. between you and the people of Bedum?
A. Yes, I am aware. [90]
Q. In the case part of your claim was that the defendant and his people, servants, agents, tenants, workmen and all others claiming right of access to the said piece or parcel of land derived from the defendant be restrained on oath from interfering or in any was dealing with the land the subject-matter of the dispute?
A. That is correct.
Q. And the court gave judgment against you in that claim?
A. Not, but I was not allowed to eject them.
Q. At the time of the suit these people you term strangers were already on the land?
A. I did not know until after the case and I invited them.
Q. The land has been in the hands of the Bedum people for about 300 years?
A. That is correct.
Q. After the war between your people and Bedum people you made Bedum people to pay annual tribute to you?
A. The Bedum people have been paying tribute from time immemorial until recently when they refused to pay.''

A cursory reference to the judgment of Adumua-Bossman J. reported in [1961] G.L.R. 305 demonstrates the falsity in the appellants' contention that the original complaint did not relate to alienation to strangers and that they were not aware of the presence of strangers. The headnote to that report at pp. 305-306 reads:

``In the late 1950's the Bedum stool [i.e. the respondent stool] began to allocate portions of the land to strangers without reference to the plaintiff or the co-plaintiff, claiming that the Bedum stool is the owner of the land. Whereupon the plaintiff instituted the present action for declaration of title to the land, recovery of possession and an injunction.''

Although the pleadings in the original action are not available, paragraph (5) of the statement of claim was reproduced at p. 307 in the Adumua-Bossman J. judgment as follows:

``Of late the defendant [i.e. the respondent] has been asserting title of ownership to the said land, and threatens to discontinue the payment of the tribute aforesaid. The defendant in assertion of his unfounded claim to ownership of the said land has been alienating portions of the said land without the consent of the plaintiff's stool.''

(The emphasis is mine.) In an amended defence the respondent pleaded in paragraph (4) (as reproduced at p. 308 of the report) that:

``Defendant in answer to paragraph 5 avers that the land in dispute is vested in the stool of the defendant, and further that the defendant had performed acts of ownership by alienating portions of the said land to his subjects of his stool and other licensees and strangers for upwards of 300 years, incurring pecuniary responsibilities thereto, to the knowledge of the plaintiff herein, without any protests or objection from either of them or both.''

(The emphasis is mine.)
It is obvious Adumua-Bossmua J. considered the issue of unauthorized alienation to strangers and concluded his judgment by granting the appellants ownership of the land while at p. 316 dismissing ``that part of the claim for an order to restrain the defendant and his people from dealing with the land.'' Adumua-Bossman J. stated earlier that the appellants' claim was completely misconceived and repeated this former observation in slightly different language at p. 314:

``The authorities are many that where an owner has made a customary grant whereby he has conferred possessory or usufructuary interest right or title on another, he, the owner of the reversionary or radical title has not right to interfere with the possessory or usufructuary owner's occupation and use of the land.''

The learned judge proceeded to review a number of cases and concluded at pp. 315-316 that:

``Such being the clearly evolved principles applicable, it is clear the plaintiffs' are not entitled to the order to restrain the defendant and his people which they claim by their writ and statement of claim ...because no good or sufficient cause or ground for making such an order has been established before me.''

It cannot therefore in truth be said that the judgment did not deal with so prominent an issue as alienation to stranger. It is also furtherest from the truth to urge that such alienation came to the notice of the appellants after the said judgment. Assuming that the issue of alienation to strangers a had not been so distinctly raised and equally decisively determined, the appellants would still fail In the application of customary rules to a grant of this kind. For customary law abhors the placing of fetters on a usufructuary title other than the obligation to provide commutable services. A distinction must here be drawn between cases relied on by counsel like Kuma v. Kuma (1938) 5 W.A.C.A. 4, P.C. and Ado v. Wusu (1940) 6 W.A.C.A. 24 which turn on the denial of the existence of the overlord's title. In those cases it was sought by mere length of occupation to establish title adverse to the owner's. these were clearly breaches of customary tenure. In this case the radical title of the appellants is not in issue nor in jeopardy having been settled by the Adumua-Bossman judgment of 1961. An original grant to the respondent, qua stool, and its subjects has also been conceded. The issue for resolution was therefore [92] the quantum of the grant. It is in this context that the appellant's qualification to the grant to the effect of precluding alienation, must be viewed. Can the restrictions urged as fetters to alienation be valid?

In Thompson v. Mensah (1957) 3 W.A.L.R. 240, the Court of Appeal considered that question and in a significant passage said per Ollennu J. at p. 249:

``It may be argued that when a subject obtains the express consent of the stool to occupy stool land, the stool can attach conditions to such occupation, and one of such conditions may be a prohibition against alienation of the usufructuary title without the previous consent and concurrence of the stool. In my opinion such a condition will be void and unenforceable since it will be a violation of the subject's inherent right to occupy stool land without any burden except the recognition of the title of the stool which carries with it certain customary services.''

Also in point is the opinion of Coussey J. (as he then was), in the unreported judgment of the West African Court of Appeal, Civil Appeal No. 107/49 of 15 January 1952, an extract of which appears in Ollenu's Customary Land Law in Ghana, p. 59:

``usufructuary title can be transferred without the consent of the real owner, provided that the transfer carries with it an obligation upon the transferee to recognize the title of the real owner, and all the incidents of the subject's right of occupation, including performance of customary services to the real owner.''

In sum, it seems to me, that there can be no breach a priori. Alienation can take place without the overlord's prior consent but a subsequent refusal to provide the services custom demands can be visited by invoking customary sanctions. Hence the rule that alienation of a determinable estate even to a stranger can only be voidable and not void ab initio, and if the overlord fails to seek avoidance of the infringement of his residual rights of which he is aware, timeously, he would be estopped by acquiescence: see Buor v. Bekoe (1957) W.A.L.R. 26 and Bayaidee v. Mensah (1878) Sar.F.C.L. 171.

The extent of an indigenous usufructuary interest has been recently considered in a number of cases. Adumua-Bossman J. in Panyin v. Asani II (supra) reviewed a number and it was considered at length in Lord Denning's statement of the law in Kotei v. Asere Stool [1961] G.L.R. 492 at p. 495, P.C. That statement will bear repetition:

``Their Lordships have been referred to a series of decisions in the Land Court in recent years, affirmed on occasions by the Court of Appeal, from which it appears that the usufructuary right of a subject of the stool is not a mere right of farming with no right to alienate. Native law or custom in Ghana has progressed so far as to transform the usufructuary right, once it has been reduced into possession, into and estate or interest in the land which the subject can use and deal with as his own, so long as he does not prejudice the right [93] of the paramount stool to its customary services. He can alienate it to a fellow-subject without obtaining the consent of the paramount stool: for the fellow-subject will perform the customary services. He can alienate it to a stranger so long as proper provision is made for commuting the customary services. On his death it will descend to his family as family land except in so far as he had disposed of it by will, which in some circumstances he lawfully may do. The law o the subject is developing so rapidly that their Lordships think it wrong to limit the right of the plaintiffs [to farming only] in the way that Jackson J. did.''

(The emphasis is mine.)
If alienation by a subject to another is permissible without the consent of the paramount stool on the basis that ``the fellow-subject will perform the customary services,'' how much more alienation by a grantee stool which exists in perpetuity and can be called upon to provide the customary services any time. The payment of tribute is, in a measure, an assurance that service will be rendered when demanded.

In a progressive society which aims at throwing off the shackles of commutation of services take? The extension favoured by Ollennu J. ( as he then was) in Total Oil Production Ltd. v. Obeng and Manu (1962) 1 G.L.R. 240 C.A. and Baidoo v. Osei and Owusu (1957) 3 W.A.L.R. 289 to prescribe the following at p. 236:

`` Since tribal wars have ceased to exist, a subject is no longer liable to be called upon to lay down his life to win more land for the stool, or to protect land. Therefore the general form which the customary services take are provision of foodstuff, firewood or some other articles to the stool at the feasts of the stool, at annual festivals, or when necessary, contributions to funds for financing litigation in respect of the land. With the rapid developments taking place, it soon may happen that the performance of the customary rites to the stool and litigation in respect of stool land may be financed from a central fund to which all the dwellers, subjects and stranger alike, within the territorial limits of the stool land are bound to contribute. In such a case since the contribution by the subject to that fund amounts to performance of customary rites to the stool, the compulsion upon the stranger too to contribute to that same fund would amount to the stool admitting him to actual per same fund would amount to the stool admitting him to actual performance of the said customary services. In that case subjects and strangers within the particular area would have equal responsibilities towards the stool in respect of stool land; in the case the alienation of land by a subject to such a stranger would be on exactly the same principles as alienation by a subject to a subject.''

These prophetic words are with us already. If customary law is not to remain static, but advance with the times, the direction indicated in the Total Oil case (supra) must be nurtures and stimulated. Commercial necessity and the socio-political drive for unity dictate such courses. The Kotei case (supra) and Total Oil case (supra) advocate the unfettered and the fullest extension of usufructuary rights. To the same end is the decision of this court in Robertson v. Nii Akramah II [1973] 1 G.L.R. 445 at pp. 454-455.

The net results is that whereas the appellants as overlords cannot re-alienate to another person without the consent of the respondent tenant, the contrary cannot hold good if there is provision for the commutation of services, and if the respondent's tenancy has not been determined.

The consideration of the usufructuary title, in its original concept and modern extension with reference to old authorities has been extensive though I hope not unduly so. It has been undertaken because it seems to me necessary for a proper evaluation of the adumua-Bossman J.'s judgment and the resolution of the problem posed in this case. Confession must also be made to a predilection to accord the early decisions the utmost respect unless it is plain that they have been overtaken by changed circumstances or their eroded by contrary decisions and subsequent legislation.

I turn now to the issue of res judicata: In determining whether res judicata applied, a preliminary examination of the subject of the previous litigation is called for. To set our sights right, this passage from the judgment of Deane C.J. in Ababio v. Kanga (1932) 1 W.A.C.A. 253 at p. 254 seems apposite. There the learned Chief Justice said:

``Now the first requisite in a case of this kind is to be clear about our terminology. Estoppel per rem judicatam is the rule that a final decision of a Court of competent jurisdiction once pronounced between parties cannot be contradicted by any one of such parties as against any other of such parties in any subsequent litigation between them respecting the same subject matter. The word parties must be taken as including privies, a privy being a person whose title is derived from and who claims through a party.''

And in New Brunswick Rail. Co. v. British French Trust Corporation, Ltd. (1939) A.C. 1 at pp. 19-20, H.L. Lord Maugham explained the doctrine further in the following words:

``The doctrine of estoppel is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action, in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them.''

The whole controversy must be open to final adjudication. A piecemeal approach is not permitted. Thus the established rule that not only substantial issue, but all matters that impinge on the issue are properly the subject of res judicata.

[95] It is clear therefore that a party is not entitled to impeach a judgment on evidence not given in a former trial. In Ojo v. Abaidie (1955) 15 W.A.C.A. 54 at p. 55 Coussey J.A. approved the statement of Romer J. in Shoe machinery Co. v. Cutlan [1896] 1 Ch. 667 at p. 672 denying a party the right to adduce new evidence to impeach a former judgment:

``If they were held to be so entitled , I do not see how there could be any finality of the questions in an action ...According to this contention the defendant might try his case piecemeal ... and when he was defeated he might then raise other points at his leisure, and might in that way try the case piecemeal, and, so far as I can see, extend it over as long a period as he pleased. In my opinion the defendants are not entitled to do that ...he is bound to put his whole case before the Court; and if he does not do so, then it is his own fault or his misfortune. He cannot be allowed to put part of his case, or to put his case in and incomplete manner.''

The principle is further illustrated in Humphries v. Humphries [1910] 2 K.B. 531, C.A. where a plaintiff successfully sued for arrears of rent under a lease. Further rents having accrued the plaintiff sued again. The defendant then for the first time pleaded that the lease did not satisfy the requirements of section 4 of the Statute of Frauds, 1677 (29 Cha. 2, c. 4). It was held that as the defendants had failed to raise this defence in the former action he was precluded form raising it in the second action. See also Oloto v. Williams (1944) 10 W.A.C.A. 23.

It seems to me the elements required to establish res judicata were abundantly in evidence. The parties and their prives were identical. There was a final conclusive judgment of Adumua-Bossman J. which was not appealed against. It determined the proprietary rights and interest of the parties. Those issues are being re-asserted and re-agitated in a form which is only a variant of the former action but with the same tell-tale hue. The whole policy aspect of res judicata with its aim at finality would be subverted if the appellants were permitted this second throw of the dice. The principles restated above are clearly discernible in the case of Larinde v. Afiko [1946] W.A.C.A. 108. There a plaintiff claimed tribute from the defendant, his tenant, for use of land granted him, and damages for unlawfully reaping palm nuts on the land. The defendant pleaded estoppel by record with regard to the second claim urging that an earlier 1925 judgment had denied the plaintiff the identical relief sought. In the subsequent appeal sustaining the defendant's case, the West Africa Court of Appeal held at p. 109 that the earlier judgment made it:

``quite clear that in the 1925 suit there was in issue before a competent Court between the present Respondent and the present Appellant (through his licensees) the same question as is now raised, namely whether the present Appellant as a tribute-paying tenant of the present Respondent had the right under Awori custom to reap palm nuts on the land of which he was tenant either by himself or by his licensees.

[96] The 1925 judgment decided rightly or wrongly that the present Appellant had that right and on this question it is abundantly clear that it constitutes res judicata between the Appellant and Respondent ...The Respondent cannot be allowed to found on the part of the 1925 judgment that suits him and to ignore it so far as it disposes of the other question in the present case.''

Again in Smith-Mensah v. Yartel [1962] 1 G.L.R. 238, S.C. the matter that came before the Supreme Court for determination was the effect of a plea of res judicata on issues that could have been raised in an earlier suit but were not. In that case, the plaintiff initially failed because proof of his title was held defective. On appeal this decision was reversed and the plaintiff's title was sustained. The defendant then submitted to the payment of amounts representing fixed annual rent. In a subsequent claim by the plaintiff in 1957 based on this victory, for an account of a two-third's share of ``tolls properly due and payable,'' it was held that the 1945 action not only operated as an estoppel against Yartel was liable to pay only the fixed sum of £G5, described in the 1945 action as a ground rent and it is clear on the evidence that this action only arose because Yartel defaulted in these payments. van Lare J.S.C. put it thus at p. 240 of the report:

``As the learned judge of the Land Court, Cape Coast, relied on the 1945 proceedings and judgment (exhibit C) as an estoppel against the defendant asserting claim of ownership to the land, he ought to have equally considered that the plaintiff is also estopped from now putting up a claim to two-thirds of tolls collected from canoes on the beach, because in 1945, the claim against the defendant was for only £G5, a year, for three years, ...being arrears of what was due and payable. We notice further that that claim suggested a fixed sum, amandzi, i.e. recognition fee, which that word in the Fante language imports and it is described as a ground rent in exhibit C. The plaintiff is, therefore, in our view also estopped from putting up a different story as to the nature of what the defendant has to pay annually to the plaintiff-family.''

In considering the relief of an injunction which the appellants put forth in their counterclaim the trail judge, Owusu J. said as reported as reported in [1971] 1 G.L.R. 166 at p. 171:

``To allow the counterclaim is to re-open one of the issue that was before Adumua-Bossman J. in (1961) and which was ably considered and decided upon by the court. In my view the defendants are estopped by the judgment of Adumua-Bossman J., dated 1 June 1961, from re-litigating the very issue as the possession and perpetual injunction.''

[97] The learned judge had the strong views of Smith J. in Sappor v. Narnor (1949) D.C. (Land) '48-'51, 197, on a similar problem to draw inspiration from. I am of the opinion Owusu J. was right and must be upheld. This aspect of the appeal fails.

Turning to the second consolidated suit and the effect of the judgment of Charles J. ordering Essuman to attorn tenant to the appellants, I am of the view that this cannot sustain a plea of res judicata against Essuman and his grantor, the respondent, in view of the existence of the earlier judgment of Adumua-Bossman J. It must be remembered that the judgment was one of many judgments in favour of the appellants against tenant farmers of the respondent. Quite apart from any legal inference that may be invoked by the earlier judgment of Adumua-Bossman J., the subordinate and restricted title of a tenant cannot delimit a paramount title: see Ababio v. Kanga (supra).

It is urged with some force that the effect of the judgment of Charles J. was to render ineffective the earlier judgment of Adumua-Bossman J. This is not to say that the judgment of Charles J. was given per incuriam as urged by counsel but rather that Charles J. erred in effectively setting aside a judgment of a court of co-ordinate jurisdiction, and that constitutional proprieties forbid this, as was said in the following unanimous judgment of the West African Court of Appeal in Anane v. Efriyea (1940) 6 W.A.C.A. 169 at p. 171:

``And equally absurd it seems to us that a Court's solemn judgment on a definite issue--specifically by both parties referred to the Court for decision separately and distinctly form the rest of the case--should, by reason of the particulars Judge's departure to another Division, become set aside tacitly and without the intervention of any tribunal having power to set it aside. This is quite different from a case where a competent Court of Appeal sets aside the judgments of a lower Court final or interlocutory and orders a complete new trial.''

In my view Charles J. completely misconstrued the 1961 judgment of Adumua-Bossman J. when he failed to distinguish the distinct strands of the claim before the learned judge and their respective resolution. The claim for title did end in the appellants' favour; the respondent failed in his bid to establish a grant because his grantees were not clothed with sufficient authority to dispose of stool land. The court however found that the respondent had genuinely been misled into thinking his document of title conferred proprietary rights. In those circumstances he could not be said to have asserted adverse title to be visited with the sanction of forfeiture.

But there was the other strand. That was the claim for injunction which Adumua-Bossman J. rejected and in the resolution of which he examine at considerable length and with respect very masterfully, the extent of the respondent's usufructuary interest. It is this consideration that led him to hold that that usufructuary title could not be impeached [98] upon the evidence led. Charles J. further failed to note that the very issue of alienation to strangers had been raised before Adumua-Bossman J. as this judgment has been at pains to show. Adumua-Bossman J.'s decision was not appealed against and was consequently decisive of the rights of the parties. This is what led Owusu J. to hold as follows as p. 175:

``Kwame Essumang, the defendant in this suit is a stranger farmer who derived his title from th Bedum stool, He was on the land prior to the commencement of the action before Adumua-Bossman J. which declared a possessory title in the Bedum stool. Since the Adumua-Bossman decision in 1961 estops the Ewumaso and the Breman-Asikuma stools form denying the possessory tights or the Bedum stool, the judgment in the Asikuma-Ajumako-Enyan Local Court on 29 March 1962, ordering the defendant to approach the plaintiffs for the purpose of entering into a tenancy agreement and the subsequent appeal No. 16/62 before Charles J. on 18 December 1962 are null and void''.

This conclusion of Owusu J. is right and must also be upheld. The appeals in the consolidated suits fail and are hereby dismissed.

I agree.

I also agree.

Appeals dismissed.

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Josh DuBois 2004-12-01