APPEAL (No. 31 of 1958) from the judgment of the west Africa Court of Appeal (Foster-Sutton P., Smith C.J. (Nigeria) and coussey J.A.) reported at (1955) 14 W.A.C.A. 676. The actions under appeal formed part of 25 consolidated actions, the first of which was commenced early in 1940 and the last on the 27th July, 1950. They were tried before Jacson J., and judgment was given on the 31st May, 1951. In sixteen out of the 25 actions appeals were taken to the West African court of appeal which on the 4th March, 1955, affirmed the decision of Jacson J. on all issues. In the sixteen actions appeals were taken to the Privy Council. The actions dealt with in this appeal were suits Nos. 11 and 15 of 1943, 2 and 7 of 1944, 5 of 1949, 39 and 46 of 1950 and 7 of 1951. This report is concerned only with suit No. 15 of 1943. The facts are sufficiently set out in the judgment of the Privy Council.
S. P. Khambatta, Q. C., John Platt-Mills, Miss Rosina Hare and J. W. McDonald (for Mr. Platt-Mills on the 15th November, 1960)for the appellants.
Dingle Foot, Q. C., J. G. Le Quesne and John Baker for the respondents.
``The plaintiff, Afiyie, is granted a declaration that she and the other members of the Okaikor Churu family are possessory owners of that portion of land [here it is described] which they are entitled to use for purposes of farming and residence by the members of their family, subject to the rights of the Ga and Gbese and Korle Stools who are recognized by customary law as being the allodial owners of that land.
``In respect of the trespass by authorizing this building of a house [described] the nature of the trespass was one which has destroyed the character of theland as farming land and was persisted in despite protest ...I assess the general damages at £G100.
``The plaintiff is granted the injunction prayed for (that is to say, a perpetual injunction restraining the Atukpai people from entering upon the land or dealing with it in any manner whatsoever)''.
Their Lordship are clearly of opinion that this declaration and injunction does decide the rights of these families in a manner which is binding on them. Their Lordships read the word ``allodial'' as meaning that the three stools are owners free of external control. They do not hold of anyone else. The declaration in that suit, therefore, is similar to the declaration in suit No. 33 of 1950 (which is not subject to appeal to their Lordships) where the judge granted to the Korle priest ``a declaration that he is the `caretaker' of stool lands on behalf of the Ga, Gbese and Korle stools and of which lands described in the writ they are the owners''. It appears to their Lordships that, by appealing in suit No. 15 of 1943 against the declaration, the Atukpai people are entitled to have resolved the question they desire: what is the position of the Korle priest?
Mr. Khambatta for the Atukpai family argued that the question was concluded by the action (suit No. 12 of 1943) decided by McCarthy J., in 1947, which was affirmed by the West African Court of Appeal, to which their Lordships have already referred. He said that in that action the Korle priest claimed to be the owner of the Kokomlemle lands, and having failed in his claim, he must abide by that failure and could not claim any interest in the Kokomlemle lands now. The question was, he said, res judicata.
Mr. Dingle Foot took a preliminary objection. He said that it was not open to Mr. Khambatta to take this point of res judicata. Their Lordships ruled in favour of Mr. Foot's submission. True it is that the point had been pleaded in one of the consolidated actions (suit No. 33 of 1950) but the trial judge decided against it. And it had not been raised in the West African Court of Appeal. The appellants at that time apparently acquiesced in the view that there was no res judicata. In these circumstances their Lordships held that they woudl not allow it to be raised before them. Only in the most exceptional circumstances would their Lordships allow a point to be taken before them which had not been taken to the court of Appeal. And there were no such exceptional circumstances here.
Now that their Lordships have heard all the case, they would like to say that there is no foundation whatever for the suggestion that the question was res judicata. In the previous action, No. 12 of 1943, the Korle priest claimed to be absolute owner of the land free of any control by the Ga or Gbese stools. The Ga stool and the Gbese stool had applied to come in as parties and had been refused. Whereas in the 25 consolidated suit the Korle priest no longer claimed to be the absolute owner. He sued and was sued as the ``Korle priest for and behalf of the Korle stool, Gbese stool and Ga Mantse stool.'' The trial judge especially amended the proceedings in the consolidated suits so as to enable him to be so described. At the trial the three stools were represented by counsel. Mr. Hutton-Mills appeared for the Ga Mantse stool and Mr. Lamptey for the Korle and Gbese stools: and at the hearing before their Lordships Mr. Dingle Foot expressly stated that he appeared for all three stools. It is quite apparent therefore that the Korle priest sued in different capacities in the two proceedings. In the previous proceedings he claimed on behalf of the Korle family or solely as absolute owners of the land. In the present proceedings he claimed on behalf of the three stools as owners together. Both McCarthy, J. and the West African Court of Appeal made it quite clear that the decision in the previous proceedings was not to prejudice such a claim as that made in the present proceedings.
Mr. Khambatta, defeated on his plead of res judicata, then sought to say that the decision of the judge was wrong in so far as he held that the three stools were the owners of the Kokomlemle lands. Mr. Khambatta argued that the Korle stool was a mere caretaker, that is to say, a person who takes acre of the property on behalf of another but has no right or interest in the lands himself. Their Lordships cannot accept this view. There are some cases where under customary law a caretaker may correspond to a caretaker in English Law, see Yawah v. Maslieno1. But there are many others where he may be a person who not only takes care of the land but also has a right or interest in it himself. In the present case the learned trial judge said of the Korle family:--
``Today they are described as being the `caretakers' of these lands for the Ga, Gbese and Korle Stools. But it must be clearly understood that the word `caretaker' does not mean simply one who looks after land for another, but connotes one who has an interest in the land.''
What then is the position of the Korle priest? This is a question of native customary law which:
``has to be proved in the first instance by calling witnesses acquainted with it until the particular customs have by frequent proof in the Courts become so notorious that the Courts take judicial notice of them.''
See Kobina Angu v. Cudjoe Attah.2 In the present case it was found by the West African Court of Appeal on a careful consideration of all the evidence:--
In making these findings the West African Court of Appeal was affirming the findings of the trial judge save in one respect. He had held that the land could not be sold outright except to satisfy a stool dept. The West African Court of Appeal, as their Lordships think rightly, disagreed with him in this: but all other respects affirmed his findings. There are therefore two concurrent findings on the points their Lordships have mentioned and they think they should be accepted.
Their Lordships will therefore report to the President of Ghana as their opinion that the appeals should be dismissed and that the appellants should pay the costs.