KANO vs. ATAKPLA [1959]DLHC2017

Date	1959-11-20
Suit No.
Citation No.	[1959]DLHC2017

OLLENNU J.

PLAINTIFF (KANO) IN PERSON.

DE GRAFT JOHNSON FOR DEFENDANT (ATAKPLA).

[1959]DLHC2017
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">KANO <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">ATAKPLA<o:p></o:p>&nbsp;[HIGH COURT (LANDS DIVISION), ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1959] GLR 387<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
20TH NOVEMBER, 1959.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

PLAINTIFF
(KANO) IN PERSON.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.<o:p></o:p>(His
lordship reviewed the history of the matter, and continued:—<o:p></o:p>The
Native Court gave judgment on the 11th March, 1958, in the first action
(Atakpla v. Kano) in the following terms:—<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“In this
case Atakpla sued Kano to show before the Court Narteh whom he Kano referred to
in a letter Exhibit “A” giving him a portion of land situate at Ayikuma. The
Court has heard the evidence given by parties, and the witness called by Kano
who had told the Court the agreement reached between them when the land was
given. From the evidence of that witness it is clear that it was not Narteh who
gave the land to Kano and who gave the land should be mentioned and not Narteh
who only acted as a Linguist, and in that case Kano’s letter Exhibit “A” is
uncalled for. Judgment therefore for Atakpla against Kano with costs.”<o:p></o:p><o:p>&nbsp;</o:p>In this
Court it has been submitted on behalf of Atakpla that that judgment operates as
res judicata, since it declares Atakpla the owner of the land. Upon the clear
wording of the judgment (which I have quoted in extenso) I am unable to see how
a decision of that nature can operate as res judicata in the present dispute.
All that that judgment decided was that if Atakpla was the grantee of the land,
on any matter arising which affected that land the proper person for Atakpla to
mention would be his grantor (not Narteh, who merely acted as a Linguist at the
grant). In effect, therefore, that judgment upheld the contention which Kano
put up in the instant case—that he is a grantee, entitled to quiet possession
of the land. It does not, in my opinion, hold (as Counsel would wish the Court
to accept) that Kano had no interest in the land. There is no substance in the
submission of Counsel that the dispute is res judicata by reason of that
judgment.<o:p></o:p><o:p>&nbsp;</o:p>It was
submitted further on behalf of Atakpla that the judgment of the Native Court
was against the weight of evidence, because the judgment cited had led him to
believe that he was the owner of the land, and that he was entitled to give
notice to Kano to quit the land at his will. With respect to learned Counsel, I
must say that this submission is contradicted by the letter which Atakpla wrote
to Kano, and which necessitated this action. In that letter Atakpla expressly
states that he was giving the notice, not in his personal capacity, but as an
agent of Kwami Larkotey, the present owner of the land and son of the original
owner. In the face of that, I fail to see how it can be suggested that Atakpla
was misled by the judgment to believe that he was declared to be the owner of
the land, and could therefore molest the plaintiff and request him to quit the
land. If he fell under any misapprehension, it was by his own fault.<o:p></o:p><o:p>&nbsp;</o:p>Again,
learned Counsel referred to the following passage in the judgment of the Native
Court whose proceedings are the subject of the present appeal (Kano v.
Atakpla).<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“According
to custom, if land is given to another to build and settle on it, and he has
doneso and settled, and later you require your land back, you will either pay
for his building on the land, or help him to build on another site if the
relationship is good, but you cannot eject him by force as it is being done in
this ca</main>