Next: About this document ...

Robertson v. Nii Akramah II and Others (CONSOLIDATED)
[1973] 1 GLR 445.
Court of Appeal
22 February 1973

Appeal from a decision of Bannerman J. wherein he gave judgment for the defendants in an action for recovery of land and damages for trespass. The facts are fully set out in the judgment of Apaloo J. A.

delivered the judgment of the court. About four miles north-east of the centre of Accra, is a fairly large tract of land said to be of poor agricultural value. It is situate on an eminence. With the rapid growth in the population of Accra and the consequent scramble for suburan building areas, it has become valuable building land. It is known as the Mukose lands. This land was the subject-matter of the litigation which culminated in this appeal. Rival claims to it were made by the Nikoi Olai family on one side and the Asere stool and its grantees on the other. This is not the first time that a dispute about its ownership has come before the courts, and we suspect, unhappily, that this is not likely to be the last.

The Nikoi Olai family belongs to the Asere Djorshie division of Accra. It has a stool named the Nikoi Olai stool. It was claimed that stool was properly the Paramount stool of Asere. With that aspect of the matter, we are not concerned. What we feel bound to acknowledge, is that Nii Akramah II is the Paramount Chief of the Asere division. He occupies a stool other than the plaintiffs stool. It is called the Akotia Oworsika stool. Accordingly, the plaintiffs stool is sub-servient, at any rate, as at present, to that stool. It follows from this, that the plaintiff's family qua family, are subjects of the Asere Paramount stool.

The being the constitutional position as we see it, the present litigation can be regarded as a domestic difference between the Asere mantse and some of his subjects--an entirely Asere matter. These is evidence that in the past, part of the Mukose lands have been the subject of litigation between the Asere stool and some other stools or their subjects. The judgments given in those other cases or the position taken by either the Asere stool or the plaintiff's family have been said to be of some legal relevance in determining the rights of the parties in this case. To that aspect of the matter we will return.

As far as we are able to judge, the first time that there was any straight contest between the Asere stool and the plaintiff's family about the ownership of the Mukose lands, was in 1948, in In re Public Lands Ordinance; Wireless Station Acquistion (1948) D.C. (Land) '48-'51, 34. It was not the ordinary adversary suit with which one is familiar in these courts.The government had acquired, under the Public Lands ordinance, Cap. 113 (1951 Rev.), a piece of land situate at a place called Bubiashie for a wireless station. The latter became liable to pay compensation to such persons as ``were in possession of such land as the owners thereof.'' The plaintiff's family asserted that it was entitled to compensation under the statutory criterion.The Asere stool made a similar assertion. The Supreme Court was thus faced with the task of determining as between the Asere stool and the plaintiff's family, who was the owner of the land and the person entitled to receive such compensation. Jackson J. who rendered a decision in that case, formulated the issue at p. 35 as follows: ``Does the land belong to the Asere stool (4th claimant) or to the Djani Kofi family (5th claimant)?'' The latter was of the plaintiff's family. Both sides were thus obliged to relate the origin of their titles. It would seem from the judgment giben in that case that the plaintiff's family claimed that the ancient village of Mukose was founded and settled upon by one of the descendants of Nikoi Olai and that thereafter the village and its surrounding lands were peopled by members of the plaintiff's family. It therefore claimed it to be its ancestral family land. The Asere stool's tradition seems to have been that land was founded and settled upon by hunters and other stool functionaries who were commissioned by the stool to farm in named areas including Mukose and after the final eviction of the Akwamus who had often fought them, the whole land between Accra and Ayawaso has been in the common use of all Asere subjects. The stool asserted that there was no such thing as family land in the Asere division. The learned judge was thus faced with the task of deciding which of the rival traditional stories was true. He found that it was the plaintiff's. He found against the Asere stool's claim that landed property cannot be owned by a family in the Asere division. He preferred the traditional story proffered on behalf of the plaintiff's family and said it was on firmer g round particularly when he recalled the fact that the Mukose lands were not carved out of land belonging to the Asere Paramount Stool but were settled upon by the plaintiff's family with the consent of the aboriginal owners, ``and from that day to the date of the notice of acquisition has been in the exclusive possession of the 5th claimant's [meaning the plaintiff's] family.'' (see p. 39 of the report). The position therefore was that when the evidence of the origin of the plaintiff's family's title was placed in juxtaposition to that of the Asere Paramount stool, the former's was preferred.

In the Wireless Station Acquisition enquiry (supra), the learned judge found that two person farmed on the east and west of that land having been placed there by unspecified headmen.These two paid tolls to the Asere stool was obviously going to lose these tolls by reason of the acquisition. The judge accordingly awarded one-eighth of the compensation to the stool. The rest was adjudged to be paid to the plaintiff's family. Whatever else this judgment decided, it established at least two things, that the Mukose lands were originally founded and settled upon by members of the plaintiff's family and secondly, that Bubiashie was part and parcel of Mukose. Indeed it is in this case that the original founding of Mukose was explored.

The next forensic contest that brought the plaintiff's family face to face with Asere stool was in 1951, in Nikoi Olai v. Adams, Land Court, 22 November 1951, unreported. A large portion of what the plaintiff's claimed to be Mukose lands was sold to a Lebanese called Captan. These sales were evidenced by two deeds executed in October and December 1947 respectively. The sales were made by one of the indigenous families of Asere called the Abbetsewe. They were endorsed by the Asere stool which received a handsome part of the consideration money. When the plaintiff's family got wind of it, it instituted pro ceedings in the native court seeking a declaration of title to that land, damages for trespass and a perpetual injunction. That action was taken against named members of the Abbetsewe family relied on a gift of the land rom the Asere stool, and as that stool was itself a concurring party to the sale, the learned judge thought that the stool should be joined to that action as co-defendant and he made an order to that effect on his own motion. The stool made no issue of this and indeed took opportunity in this later action to reassert its failed tradition about the original founding of Mukose. It is plain that the real object of the plaintiff's family in lunching this litigation was to set at nought the sale of the land to Captan or as one of its witnesses put it to ``quash the sale.''

The result of this case shows that it was successful in achieving that object. Although the sale was not formally set aside, the judge held that sale passed no interest in the land to the vendee. The learned judge came out heavily against the sale and was particularly outspoken in his condemnation of the Asere mantse for being a party to what the judge stigmatized as ``a wicked and reckless disregard of the trusts imposed upon occupant of the stool.'' The judge also granted an injunction on certain conditions. The plaintiff's victory was a victory of a sort, because the judge proceeded to hold that the latter's family only ``possess rights of farming in the area edged pink, subject only to such rights as may have been granted to strangers for farming by the Asere stool.'' That holding equates the plaintiff's family with any other subject of the Asere stool who is entitled to enter and farm on stool land. The reason for this holding, in so far as it is possible to extract it from the judgment, appears from the following pronouncement of the learned judge:

``Quite clearly, this land in issue was occupied very many years ago by some members of the plaintiff's family and who farmed it to some degree.

It is equally clear that whatever villages they abandoned for very many years, the last one Mukose in 1926, and by the ordinary practice of customary law whatever character of the family land it may then have possessed disappeared with its abandonment, and the land was free for any subject of the Asere stool to farm upon and was equally open to strangers who had received the permission of the Manche or headmen to farm upon payment of an annual toll and so the evidence proves they did farm.''

The plaintiff's family was understandably aggrieved at this considerable curtailing of its rights to the Mukose lands and it sought to have such limitation set aside by the West African Court of Appeal, in Kotei v. Asere Stool, West African Court of Appeal, 4 March 1955, unreported. It failed. It is perhaps indicative of the belief it had in the rightness of its cause that it is appealed this matter to then highest tribunal--the Privy Council: see Kotei v. Asere Stool, [1961] GLR 492, P.C. That court decided that in so far as Jackson J. held that the paramount title to the Mukose lands was vested in the Asere stool, that conclusion cannot be faulted but it refused to support that part of the judgment which held that plaintiff's family possessed only farming rights in the Mukose lands. It held that the family possessed in an area edged green on the supporting plan, the rights of a subject in possession of stool land. That court held it to be an estate and defined at great length the incidents and rights attached to that estate. In differing from Jackson J. on the question of the plaintiff's entitlement to a usufructuary title, the Privy Council dissented from the learned judge's view, that because the ancient village of Mukose was abandoned by the plaintiff's family, that resulted in the abandonment by it of the land as well. On the contrary, said the Privy Council at p. 495 ``they have vigilantly upheld their rights.''

In the suits which culminated in this appeal, the plaintiff's family founded itself squarely on that judgment. It again sought the coercive power of the courts to award damages against the Asere stool and certain named individuals because it claimed that the stool and these individuals encroached on the rights conferred on it by the Privy Council judgment. It in fact instituted four separate suits and as the three persons who were independently sued relied on the title of the Asere stool, all these four suits were consolidated and heard together. The first suit was taken against the Asere Mantse and his linguist called Boye because the plaintiff complains that since 1947, the two defendants have been granted away portions of the Mukose lands in the vicinity of the village of Abeka. It produced in evidence ten deeds executed by the Asere stool in vafour of various grantees in the area edged green--that being the area where the plaintiff's family was adjudged to have a usufructuary title. All but one of these documents were executed in 1959. the plaintiff sought it declared that it was rightful entity to make alienations of that land and asked that the defendants be enjoined from making similar alienations in the future.

In the second suit, the plaintiff's complaint was that the defendant Dimson who held himself out as the land agent of the Asere stool, has not only himself built on portions of the land but has been granting various portions on the north west to strangers for the founding of a Zongo. In addition to damages, the plaintiff sought the court's aid to recover such portions and also an injunction against such future acts. A man called E. C. Otoo leased two plots of the land at Bubishie to a limited liability building company called E. Borio & Co. Ltd. The plaintiff says that was part of its Mukose lands and that Otoo had no right to grant such a lease. It therefore sought recovery of that land and damages. It is this that gave rise to the third suit. The fourth action was taken because a Madam Victoria Dede Otoo also granted a lease of an area measuring 300 feet by 200 feet to the eforesaid company. This land is also situate at Bubilashie. The plaintiff makes precisely the same complaint and sought recovery of the land and damages against both the grantor and the company jointly.

The defendants, Dimson and Mr. And Madam Otoo admitted the acts which the plaintiff alleged but contented that they were within their rights to do so and for their part, relied on the title of the Asere stool. They sheltered themselves behind the Asere mantse and swam or sank with him. The stool itself jointed all these three suits but its own answer somewhat ambivalent. Between 18 January 1962 and 7 January 1966, it filed no fewer than three statements of defence and three amended statements of defence in which it wavered from denying the plaintiff's claim in its entirely of the Privy Council judgment, to admitted its effect and confining it to the area edged green. In its last amended defence, it averred that ``the judgment pleaded does not affect Abeka village and the lands around it.'' It also itself pleaded against the plaintiff's family a number of alleged admissions said to be by its predecessors and two judgments. The plaintiff answered that those judgments were between itself and strangers to this action and were inter alios acta. The plaintiff also averred that by reason of the Privy Council judgment, the Asere stool ought not to be admitted to say that it had no title to the Mukose lands and that it was estopped per rem judicatam from so averring. No new issue were settles as the defence vacillated, indeed the last statement of defence was filed some time after the plaintiff commenced giving evidence and was done without leave.

When the trial opened, the plaintiff's evidence was comparatively brief and was in the main confined to identifying the area of trespass as forming part of the Mukose lands and of acts of ownership performed on portions of Bubiashie land. The Asere stool took the opportunity in this action to reassert its complete ownership of the Mukose lands and produced a succession of witnesses to relate the tradition of the original founding and present ownership of villages which it claimed it owned. It also tendered no less than 29 exhibits, four of which are judgments. None of these judgments is particular helpful and are all anterior in date to the Privy Council judgment relied on by the plaintiff. Notwithstanding the complication of the issues engendered by the Asere stool's never-ending amendments, the main issues on which the court's decision was invited were relatively clear, namely, first, whether the Asere stool and its privies were estopped by the Privy Council judgment from asserting that plaintiff's family had no usufructuary title to the Mukose lands, second, if it was so estopped, as between the plaintiff's family and the Asere stool, which entity was entitled, whether the proved alienations of that land made by the Asere mantse amounted to trespass and fourth, if it amounted to that wrong, whether the plaintiff's family was entitled to all and if not which of the remedies it sought.

The reception of evidence concluded on 24 June 1966 and the learned trial judge, Bannermn J. took time to reflect over this matter. His judgment was read on 12 November 1966. A substantial part of it was a précis of the evidence of the witness. Nowhere in his eleven-page judgment did he make any reasoned findings nor did he express any conclusions of his own on the many legal questions debated before him. The most vital of the remaining three depended for their success or failure on that suit. That case hinges to a large extent on the interpretation of the Privy Council judgment on which the plaintiff's family took its stand. The learned judge himself seemed to have appreciated as much and he himself said. ``Dealing first with suit No. L232/1961, the claim is directly against Nii Akramah Asere mantse and it depends upon the construction and interpretation of the judgment of the Judicial Committee of the Privy Council'' But the jduge did not even begin to ``construe and interpret'' it. The furtherest he went was to recite some of its holdings. In so far as he attempted any independent factual conclusion of his own, it is: ``on the evidence as a whole the paramount title of the Asere stool over these lands stands undisputed as asserted in the Privy Council judgment.'' But there was no question of the Asere stool. That was the holding in the Privy Council judgment on which the plaintiff's family relied. The judgment concluded with the omnibus holding that: ``On the evidence as a whole, the plaintiff cannot succeed in his claim against the defendants as per his writ of summons filed.''

In the circumstances, it did not surprise us that the plaintiff's family should have appealed, against that judgment on not less than eleven grounds most of which were weighty. The Asere stool has not appealed, because abviously, it is quite happy with the judgment in its favour although many of the matters it argued in support of its case and its counterclaim were not pronounced upon nor was any order made on them. We remark this because at a certain stage of the argument, its counsel invited us to exercise our powers under rule 32 of the Supreme Court Rules, 1962 (L.I. 218) and enter judgment in its favour on the merits and on the counterclaim. This we declined to do and for the reasons which we will hereafter give.

As we said, the judgment appealed from was sought to be contested on eleven grounds. But two of these were abandoned, namely, grounds (6) and (8). These read as follows:

`` The learned judge failed to make his own findings of fact on the issue in the case.
The learned judge made a tendious recital of the evidence-especially the evidence led for and on behalf of the Asere stool without himself making any evaluation whatsoever of the said evidence.''

These complaints are perfectly valid and are apparent on the face of the judgment. But as accession to these grounds would not determine the main issues in this case, counsel's decision not to pursue them, was in our judgment, a wise one.

There were also two grounds which made complaints of a more or less formal nature. Argument on them was brief and to the point. While we consider the complaints well-merited, they do not actually impinge on the eventual result of this case. Accordingly, we do no more than mention them. They are grounds (5) and (7) and which were formulated as follows:

`` The learned judge confused the issue raised for trial before him and / or did not appreciate the issues.
As the suits for trial were consolidated and each suit asked for specific reliefs the learned judge should have made specific findings in each suit.''

Leading counsel for the Asere stool sought to answer these complaints but the argument by which he sought to do so was not at all attractive and in the end, the conceded to them.

That brings us to the more serious questions debated in the case. It was complained in ground (4) that, ``The learned judge made no effort whatsoever to interpret the judgment of the Privy Council in transfer suit No. 31/1948 and to apply the interpretation and / or ratio thereof to the facts of this case.'' That the judgment was defective in this sense is plain beyond the possibility of controversy. Again this wholly unanswerable complaint was sought to be answered by the wholly untenable contention that the judge did make some attempt at interpretation. Whatever that can mean, we are satisfied that he did not in fact construe the Privy Council judgment nor did he attempt to discuss what rights and obligations in the Mukose lands the parties acquired by that judgment. We have been invited to make good the learned judge's omission by ourselves interpreting that judgment and thereafter using it to determine the rights of the parties. To that invitation, we readily respond. We cannot see how we can decide this case otherwise.

The Privy Council in Kotei v. Asere Stool [1961] G.L.R. 492 at p. 496. P.C held, differing on this point from Jackson J., that the ``plaintiffs [are entitled to] a declaration that they possess such rights in the area edged in green, on the plan, exhibit 1, as are conferred by law on a subject of a stool who is in possession.'' That court held that such rights are not mere farming rights as Jackson J. thought but an 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 of the paramount stool to its customary services. The Privy Council proceeded to spell out further the rights attached to a subject by that estate. It says at p 495:

``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 descent to his family as family land except in so far as he has disposed of it by will, which in some circumstances he lawfully may do.''

In so stating the incidents, the Privy Council was not propounding any novel principles of law. Its holdings are merely an affirmation of what both the domestic courts of this country and textbook writes have always regarded as the true customary law on the matter. See on this Thompson v. Mensah (1957) 3 W.A.L.R. 240, C.A, Ohimen v. Adjei (1957) 2 W.A.L.R. 275, Ashiemoa v. Bani [1959] G.L.R. 130 and Donkor v. Danso [1959] G.L.R. 147. At p 57 of his Customary Land Law in Ghana, Ollennu states that position in almost the same language as the Privy Council. He says:

``An outstanding incident of the determinable estate is that it is inheritable and alienable, either by transfer inter vivos or by testamentary disposition. This principle is not in conflict with the principle that the owner of the usufructuary title cannot transfer that title without previous consent and concurrence of the absolute owner Golightly v. Ashrifie (Kokomlemle Consolidated cases. (1955) 14 W.A.C.A. 676). The correct opinion is that the owner of the title can alienate his said title without the prior consent and concurrence of the absolute owner so long as the alienation carries with it an obligation upon the transferee to recognize the title of the absolute owner, and to perform all the customary services due from the subject to the stool, or to the community at large when called upon.''

We think that as a pure legal question both the courts and textbook writers are ad idem. We must conclude from this that the plaintiff's family who has been adjudged to have the determinable or unsufructuary estate in the Mukose lands is the proper entity to alienate that land or portions of it. It is necessary to pose the question what is the resultant position if an alienation is made not by the owner of the determinable title but by the holder of paramount title. On this, Ollennu provides a self-evident answer. He says at p. 56 of his book.

``Having regard to the very superior nature of the determinable title, customary law prohibits the absolute owner from alienating that land, or dealing with in any without the prior consent of the subject-owner. Any grant which the stool (or the head of family) purports to make, either to a subject or to a stranger, cannot affect the title of a subject in possession. The purchaser upon such alienation cannot obtain possession, and he and his grantors commit trespass if they enter upon the land for the purpose, or in pursuance, of the alleged grant.''

He quotes a number of decided cases to support this.

We think that view accurately reflects the law. It is not in dispute that the Asere stool made grants of portions of Mukose lands. It is also equally clear that those grants were made without the prior consent of the plaintiff's family and indeed in the face of objection by it. It must follow that such grant were invalid.

As we said, it was also serious submitted to the court below that the Asere stool and all the defendants claiming through it were estopped by the Privy Council judgment from averring that the plaintiff's family has no title to the Mukose lands. We do not think it necessary for us to engage in a discussion of the policy reason behind the rule, that once a given fact has been put in issue and decided between the parties, it will preclude them and their privies from relitigating such fact in subsequent proceeding. It is sufficient to say that whatever its origin, it is firmly part of our law. The plaintiff invokes it and says, that the Asere stool and its grantees should be precluded from raising the question whether or not it has any title or estate to the Mukose lands. The parties to the Privy Council judgment are the same, the question which was decided between them, namely, the quality of their ownership of Mukose lands is the same. The subject-matter appears the same namely the Mukose lands. It was denied on behalf of the Asere stool that the plaintiff's family was entitled to have this plea invoked in its favour but the argument by which this contention is supported is anything but clear. In the end, it was said even if such doctrine could property be invoked in its favour, it must be limited to the area edged green--that being the area in respect of which the plaintiff's family obtained relief.

The answer to this submission can only be provided in considering the purely legal question whether the doctrine of estoppel can be limited in the manner contended for on behalf of Asere stool. The land which the plaintiff called Mukose and in respect of which he litigated in the Privy Council case was described in the evidence and its eastern boundary, at any rate was set out in the plan exhibit Q. The area of the immediate trespass was clearly smaller and is shown on the plan exhibit C and edged green. The judgment of the Privy Council proceeded on the clear basis that the land in dispute was much larger than the green area and that court considered the case not in fragments but on the whole of Mukose. It limited its relief to the green area because that happened to have been the portion sold to Captan which occasioned the litigation. In that sense, it is factually accurate to say that the judgment covered the smaller area edged green. One of the fundamental requirements for a successful plea of estoppel, is that the subject-matter in the former suit must be identical with the subject-matter in the instant suit.

The question therefore is: whether the green area can be said to be identical with the larger Mukose lands. We are glad to think that in determing this question, we have the assistance of respectable authority. This problem arose in an acute form in Aperade Stool v. Achiase Stool (1957) 3 W.A.L.R. 204, C.A. The former sued the latter stool for a piece of land and succeeded. On appeal to the West African Court of Appeal, the trial court's decision was reversed. The Aperade stool appealed to the Privy Council and lost. Subsequently a question of ownership arose between the same parties before the Reserve Settlement Commissioner involving a small portion of that land. The latter held that Aperade stool was estopped by the Privy Council judgment from asserting a claim to any portion of that land. On appeal to the Court of Appeal, the question was whether the lands were identical. Quite clearly, the one in the immediate dispute was smaller than the former one. In a split decision, the court held that the two lands were not identical.

Granville Sharp J.A. who read the leading judgment of the majority of the court could not agree that because a part was included in the whole the two were one and the same thing. He at p. 213 had recourse to dictionary to ascertain the meaning of the world identical, and felt himself unable ``to condescend to the fallacy of asserting that the smaller part is the same as the greater whole, or the equal fallacy, elementary in each case ...that merely because the part is included within the whole the two are one and the same thing.'' That argument is flawless logic but it does not further the sound policy reason behind the principle that once an issue had been decided between the parties, the public interest requires that it should be laid to rest.

Ollennu J. (as he then was) did not feel himself inhibited by the constraint of logic from holding that a part was equal to the whole in the juridical sense. He argued that any other interpretation would be subversive of the principle on which the doctrine of res judicata was based. He demonstrated the absurd results which would ensure if the narrower interpration prevailed. That view in fact prevailed only to be disestablished by the Privy Council. When this case returned to that court, sub nom. Frempong II v. Effah [1961] G.L.R. 205, P.C. the view of Ollenu J. was held right. Legal problems like history have a habit of recurring. The problem which the submission of the Asere stool posed was posed and answered by this court in the recent case of Robertson v. Reindorf [1971] 2 G.L.R. 289, C.A. That case, by a strange coincidence also involved the plaintiff's family and it's Mukose lands. The plaintiff found itself in litigation with the Reindorf family on a quarry site. The plaintiff averred that the land was part of Mukose, its opponent claimed it was part of its ancestral land, Dome. Thus the extent of these two lands was put in issue and the plaintiff lost. But as the remedy sought was limited to the quarry site, the operative part of the judgment limited to relief to the area. In subsequent litigation between the parties, the plaintiff took opportunity to reopen the litigation in respect of the whole area. When met by a plea of res judicata, it answered that the plea should be limited only to the quarry site inasmuch as that was the area that gave rise to the litigation and in respect of which relief was granted. This content found favour with the learned judge of the High Court who held that the plaintiff's family was estoppel only in relation to the quarry site. On appeal, this court in its judgment delivered as recently as 20 March 1971 held the judge wrong. It held that the plea ought not to be confined to the quarry site but extended to the whole land put in issue. See also Re Kujani Bush Forest Reserve; Atakora v. Acheampong, Court of Appeal, 17 July 1967, unreported; digested in (1968) C.C. 27.

That is the beaten track of the decisions and we will loyally follow it. In our judgment, the plea of estopped cannot properly be limited only to the green area. We hold that that area being part of the larger Mukose lands, is identical with it in the juridical sense. And as the whole of the Mukose lands was put in issue in the former case we must sustain the plea of the plaintiff's family that the Asere stool and all its grantees were estopped per rem judicatam from disputing that the plaintiff's family has a determinable estate in the whole of the Mukose lands.

Leading counsel for the Asere stool in what we regard as a last ditch attempt to avoid the interpretation and application of the Privy Council judgment, submitted that judgment was given in excess of jurisdiction and was void on that account. The reason proffered for this bold contention was that in the suit which culminated in that judgment, the plaintiff's family sued not qua family but as the ``Mantse of Asere Djorshie for himself and represnting the stool and subjects of Asere Djorshie.'' It was said therefore that the Privy Council was in excess of jurisdiction in granting relief in favour of the plaintiff's family rather than the stool of Djorshie, But in point of fact, the plaintiff's family is at the same time a stool family. The evidence bears that out. And although the way in which it sued, suggests that it was seeking the relief on behalf of the stool, both the pleadings and evidence in that case showed that the action was intended for the benefit of the family. It is plain that the Asere stool so regarded it and the whole case was fought on that basis. Jackson J. who gave judgment as of first instance, thought it was a claim by a subordinate stool family against the paramount stool . It is not suggested that the Asere stool was prejudiced by it. We cannot see how it can have neen. This prolonged litigation traveled through the High Court right up to the Privy Council. No issue was made of the capacity in which the plaintiff's sued.

Had the Asere stool taken this point even as late as at the Privy Council, we think their lordships would, if they thought the point to be other than arid legalism, have granted leave to the plaintiff's family to amend the writ so that the real issues between the parties, as revealed by the evidence, could be pronounced upon. That plainly was the course which substantial justice demanded. The basic attitude of the Privy Council in this matter, is we think, exemplified by its 19 16 decision in the Accra land case of Ababio v. Quartey (1916) P.C. '74-'28, 40. There, the Privy Council held that if the plaintiff sued in a wrong capacity but that some capacity is disclosed which would have enabled him to maintain the suit, he should not be non-suited but that the court should allow all amendments necessary for the purpose of settling the real controversy between the parties . The same philosoghy informs the judgment of our domestic courts and this is evidenced by such cases as Appiah v. Addai (1940) 6 W.A.C.A. 242, Chief Gbogboulu v. Chief Hodo (1941) 7 W.A.C.A. 164, England v. Palmer (1955) 14 W.A.C.A. 659 and Wuta Ofei v. Dove, Supreme Court, 18 April 1966, unreported; digested in (1966) C.C. 102.

Indeed in Akyirefie v. Breman-Esiam Stool (1951) 13 W.A.C.A. 331, the facts bear a close similarity to the instant case. There, the litigation was fought and defended in the right of the Breman-Esiam , stool and judgment was given in favour of the stool qua stool. It appeared on appeal that the title to the land was vested in the stool family not in the stool was such. The West African Court of Appeal, of its own motion amended the title of the suit by adding to the word ``stool'' in the plaintiff's description in the writ, the word ``family.'' Its avowed object was to avoid multiplicity of suits and settle finally the matter in controversy between the parties. It thereafter to affirm the judgment.

In the instant suit, it was obvious that the plaintiff's family based its right to relief on that judgment. In not one of its multifarious defences did the Asere stool plead that judgment was other than perfectly valid. Indeed in paragraph (6) of its last amended defence, it impliedly acknowledged the validity and binding effect of that judgment but sought to escape from its vinculum. It pleaded:

``In answer to paragraphs (4),(5) and (6) of the statement of claim, the first and second defendants say that the judgment pleaded in the paragraphs does not affect Abeka village and the lands around it.''

We think the point a barren one and even if it can be said to have any semblance of merit, it would be unjust to allow the Asere stool to raise it at this eleventh hour. Accordingly, we hold that the Privy Council judgment pleaded by the plaintiff's family, is of full force and effectively estops the Asere stool and its grantees from disputing the plaintiff's title to the Mukose lands.

It was next submitted that even if that plea be good, it does not affect Abeka village and the lands around it. It was said this must be so because the plaintiff's evidence shows that the land in issue is near Abeka and it therefore must, as a matter of sound reasoning, exclude Abeka. We think this an insubstantial argument on words. Abeka village itself was said to be about 200 yards from the ancient village of Mukose. The land bearing that name is far in excess of 900 acres and it seems plain that the village of Abeka must have been founded on it. The evidence shows that Mukose and Abeka are sometimes used interchangeably. Three receipts bearing the signature of the defendant Boye acknowledging sums he received from grantees of a quarry on the land described the area as ``Abeka Mokoseh'' (see exhibit T1-T2, T3). We do not feel ourselves called upon to determine and declare the exact extent of the huge piece of land called Mukose. Whatever its extent, we are satisfied that the Asere stool cannot be heard to deny that the plaintiff's family is in possession of that land as stool subject with all the rights and obligations that concept entails. What we conceive ourselves called upon to do, is to consider whether the evidence, on balance, satisfies us that the Asere stool and its grantees committed trespass on the various areas described in the different suits.

In the first suit, namely, L232/61, the plaintiff's complaint was, that the Asere mantse and his linguist Boye entered the Mukose lands at Abeka and have been granting or selling portions thereof. The plaintiff procured a surveyor to show by reference to the deeds of grant the various plots granted. They all fell neatly in the area edged green in the plan exhibit. Q. That was the area adjudged in favour of the plaintiff's family in the Privy Council suit. The defendants did not deny the grants but set up averse title thereto. In our opinion, the plaintiff's family has made out its case in this suit and ought to get the reliefs it seeks.

In the second suit, that is L79/62, the plaintiff complained that the defendant Dimson purporting to be acting on the authority of the Asere mantse, has been making grants to strangers in north west Mukose for the purpose of founding a Zongo. The principal witness for the plaintiff identified the area as follows:

``The land the subject of that suit falls within the area edged green in the plan exhibit C. A. very large portion of this land is within the green area. The portion which falls outside the green area on the west is part of the Mukose land.''

The defendant did not dispute the area nor deny making the grants. He freely admitted them and gleefully boasted of even destroying the foundation of a building of the plaintiff on the land. He pinned his faith wholly on the success of the Asere mantse and said:

``I am following my chief. I worked together with Taylor Woodrow for three years without any trouble. It was later that the Djorshie people laid claim, but I do believe them. We were on the land before, and later we heard the Djorshie people are claiming the area edged green. I cannot decide their ownership until the case has been decided by the court.''

This defendant having tied his fortunes to those of the Asere mantse must suffer the same fate as the former. He is liable to damages to the plaintiff.

In the third suit, that is L605/62, the plaintiff's claims two well defined plots of land leased to E. Borio & Co, Ltd, by Mr. E.C.Otoo. Like the rest, the latter also shelters himself behind the Asere mantse. These plots are in Bubiashie. Admittedly, these plots do not lie in the area edged green. This is however immaterial if it can be shown that it is part of the Mukose lands. We have already observed that our interpretation of the judgment in the Wireless Acquisition case (supra) (exhibit F1) leads us to conclude that Bubiashie is part of Mukose. In that case, not only did the plaintiff's family give evidence about the founding of Mukose village but also of the origin of the word Bubiashie itself. The learned judge was impressed with that evidence. Furthermore, the composite plan exhibit 25 shows that the area adjudged to the plaintiff edged green is contiguous to the area acquired by government for the wireless site and indeed overlaps it. It cannot be disputed that the area acquired for the wireless station is Bubiashie. From our amatecuish attempt to collate the plans by an examination and comparision of the grid lines in exhibit25and exhibit Q the two plots leased to the Borio company cannot be too great a distance from the wireless station. It would strain credence to be told that while the wireless station is at Bubiashie in Mukose, the two plots leased to Borio were not and have an entirely different origin and root of title.

In any case, the plaintiff family by its principal witness Ashalley Okoe led inherently credible evidence which identifies the plots leased to Borio not only as Bubiashie but as part of the larger Mukose land. It is in evidence that the Borio company fixed sign boards on one of the plots and erected a temporary structure on the other. Ashalley Okoe swore that these plots were in the occupation of the plaintiff's family before the last war but were taken over by the Army which built huts in the area. There were surrendered to the family at the conclusion of the war when the Army were about to quit the land. He produced in evidence a series of letters exchanged between the then head of the plaintiff's family Nii Amassah Nikoi Olai and the Army authorities. See exhibits H. J. K and L. Of these letters, three were dated at varying periods in 1943 and the last one from the commissioner of lands, bore the date 4 April 1944. this struck us as acts of ownership ante litem motam and is we think, weighty evidence in support of the plaintiff's family. We do not need to go into any further details. We believe we have said enough to indicate the process of reasoning which leads us to the firm conclusion that not only are the two plots leased to the Borio company by the defendant E.C Otoo part of Bubiashie but also part of Mukose lands. The alleged grant of those plots by the Asere mantse to Otoo passed on title to him. He in turn transmitted none to the Borio company. It follows that the plaintiff's family must succeed against both defendants in this suit.

In the fourth suit, namely, suit L.607/ 62, the plaintiff claims against Victoria Otoo and the Borio company a plot of land 300 feet by 200 feet said to be situate at Bubiashie. That plot is quite close to one of the two plots leased to that company by the defendant E. C Otoo. Victoria Otoo like her father E. C. Otoo, granted a 50-year lease of the land to that company and authorized them to enter into possession. When her right to make this lease was questioned, she relied on a deed of gift executed in her favour by the Akwashong mantse and later confirmed by the Asere mantse. We find that, that area is situate in Bubiashie and is within the Mukose lands. The observations we have made and the basis of our finding in the last suit apply with equal force to this case. She has rendered herself liable in damages to the plaintiff's family and she and the Borio company will have to give up that land to the true owners.

Before considering what reliefs the plaintiff's family is entitled to, it is necessary to answer a submission of law made on behalf of the Asere stool and also consider a belated request made on its behalf. In the last amended statement of defence submitted on behalf of the Asere stool, two judgments were pleaded as estopping the plaintiff's family from pursuing the present claim. The first of these was said to be Robertson v. Reindorf, High Court 31 March 1964, unreported and is supposed to relate to a part of Abeka. The second judgment pleaded is said to have been given in Reindorf v. Amadu [1962] G.L.R. 508, S.C. and is said to relate to the village of ``Abeka and the lands around Abeka.'' The plaintiff denies that it was estopped by any of these judgments.

It was not suggested that the Asere stool or any party deriving title from it was a party to this action. There was, in those actions, no conflict between the plaintiff's family and that stool which the court resolved. It seems entirely to have been litigation fought between the plaintiff's family and strangers to this action. It therefore completely passes our understanding how these judgments can be said in law to estop the plaintiff's family in this action. We think this plea wholly unmeritorious. In our opinion, neither the judgments pleaded as estoppel nor the others produced as evidencing prior litigation on Mukose lands contribute anything to the solution of the problems posed in the present case.

As we said, the Asere stool itself by its pleadings raised a number of issues which the learned judge omitted to pronounce upon including its counterclaim. This was obvious on a most cursory perusal of the judgment. If the Asere stool had desired to make any issue of this, rule 16 (1) of the Supreme Court Rules, 1962 (L. I. 218) provides a machinery by which it may ventilate its own grievances. It chose not to. At a last stage of the hearing of this appeal, its counsel pleaded with us to exercise the plenary discretionary powers conferred on us by rule 32 to vary the judgment by pronouncing in its favour. Though we thought this an undeserving plea, we have in fact given consideration to the matters sought to be pronounces upon, namely, the estoppels the stool raised. As we have held that the Asere stool was estopped from disputing the plaintiff's determinable title and which the trial judge omitted to pass upon, was largely irrelevant. In view of our finding for the plaintiff, the claim for forfeiture must go. It would indeed be strange if we were to hold that the plaintiff's family lost its title to the Mukose lands because it sought to do what the courts have held it entitled to do, namely, make alienations of portions of Mukose. We have listened to an exhaustive canvassing of this case for several days and on the evidence, we are certain of one thing, namely, that Asere stool's claim for forfeiture of the plaintiff's interest has no merit whatsoever. Although we were at one stage tempted to express our opinion as to when and under what circumstances the discretionary powers given to this court under rule 32 may properly be served in doing so. Such holding would be wholly unnecessary for our judgment and must await decision at an appropriate time.

In view of what we have said in the foregoing paragraphs of this long judgment, the plaintiff's family succeeds in each and every one of the four suits. In the first suit, it claims a declaration that as owner in possession of Mukose lands, it is entitle to make alienation of that land. Had the declaration sought been so worded, we would have acceded to the prayer but it is limited to Abeka village and the lands around it without furnishing an accurate description of it. That description made it somewhat uncertain for the enforcement of a perpetual injunction. For that reason and that reason only, we decline to make the Asere stool by its agents entered on that part of Mukose land edged green and made alienations of it. For this undoubted trespass, we award the plaintiff's family against the defendants in suit L. 232/61 jointed and severally 1,000.00 damages.

In suit L.605/62 the plaintiff described with precision the area in respect of which the order for possession is sought. We make such order in the terms sought. There is also a claim against both defendants jointly and severally, 500 damages. The plaintiff also claims against the first defendant company rental in respect of the use of the plots. As this is not a contractual tenancy, the question of rent does not arise. But the plaintiff is entitled to mesne profits for the use of the plots. The rent reserved in the lease between the company and the second defendant is £G277 per year. That seems a reasonable yardstick for computing the mesne profits. At £G277 per annum, this should aggregate £G831 or 1,662 in three years. The plaintiff is awarded that sum against the first defendant company being mesne profits for the period claimed.

In suit L607/62, the plaintiff described with particularity the area in respect of which he seeks an order for recovery of possession. We make such an order. We award against both defendants jointly and severally 200 damages for trespass. The rent reserved in the lease works out at £G110 per annum. Using that as a basis for mesne profits, the plaintiff should receive £G330 or 660 for the period claimed. We award that sum as damages against the first defendant company.

The plaintiff's family was entitled to its costs in the court below. We assess counsel's cost in that court at 1,000. Other costs in that court to be taxed. It is also entitled to costs in this court fixed at 1,500.00.

Application dismissed with costs.
S. E. K.

Next: About this document ...
Josh DuBois 2004-12-01