GOLIGHTLY v. ASHRIFI [1960]DLHC5388

Date	1960-12-19
Suit No.
Citation No.	[1960]DLHC5388

LORD COHEN LORD KEITH OF AVONHOLM AND LORD DENNING

S. P. KHAMBATTA Q.C.

JOHN PLATT-MILLS MISS ROSINA HARE AND J. W.

MCDONALD (FOR MR. PLATT-MILLS

ON THE 15TH AND 16TH NOVEMBER 1960) FOR THE APPELLANTS.

DINGLE FOOT Q. C. J.G. LE QUESNE AND JOHN BAKER FOR THE RESPONDENTS

[1960]DLHC5388
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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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">GOLIGHTLY<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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;v. <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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">ASHRIFI<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[JUDICIAL COMMITTEE OF THE PRIVY COUNCIL]<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">

<p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">[1961] GLR 28&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;DATE:<span style="font-size:10.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0"> 19TH DECEMBER, 1960.<o:p></o:p>

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

S.
P. KHAMBATTA, Q.C., JOHN PLATT-MILLS, MISS ROSINA HARE AND J. W. MCDONALD (FOR
MR. PLATT-MILLS<o:p></o:p>

ON
THE 15TH AND 16TH NOVEMBER, 1960) FOR THE APPELLANTS.<o:p></o:p>

DINGLE
FOOT, Q. C., J.G. LE QUESNE AND JOHN BAKER FOR THE RESPONDENTS.<o:p></o:p>

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

LORD COHEN LORD KEITH OF
AVONHOLM AND LORD DENNING<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
LORD DENNING<o:p></o:p>Lord Denning delivered the judgment of their Lordships. [He set
out the history of the Korle people and of the previous litigation. His
Lordship then dealt with suits Nos. 11 of 1943, 7 of 1944, 5 of 1949, 39 of
1950, 2 of 1944, 46 of 1950 and 7 of 1951. In each case the decision of the
trial judge and the West African Court of Appeal was affirmed. His Lordship
continued:] Suit No. 15 of 1943: A family named Okaikor Churu had been in
possession of land at Kokomlemle ever since 1875. They had been given the right
to farm it by the Gbese stool. Distinguished members of the Gbese stool were
buried on the land. When the trial judge visited it he found a tomb with a
headstone showing that in 1932 a priest was buried there. In 1942, however, the
Atukpai family claimed to be the owners of the land. They sold it to purchasers
who put up buildings on it. In 1943, the head of the Okaikor Churu family
brought an action against the Atukpai family claiming a declaration of title,
£G100 damages for trespass and an injunction. Later on the Korle priest was
apparently joined as co-plaintiff. At the trial in 1951, the learned judge
decided in favour of the plaintiffs and made a declaration which does decide
the essential issues in this appeal. His order was as follows:—<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">&nbsp;“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 authorising this building of a house
[described] the nature of the trespass was one which has destroyed the
character of the land 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)”.<o:p></o:p><o:p>&nbsp;</o:p>Their Lordships 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?<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>