GOLIGHTLY vs. ASHRIFI [1960]DLSC10233

Date	1960-12-19
Suit No.	G L R 28 – 33
Citation No.	[1960]DLSC10233

LORD COHEN

LORD KEITH OF AVONHOLM

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]DLSC10233
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													<main id="main" class="content" style="min-height: 60rem" >GOLIGHTLY<o:p></o:p>vs.<o:p></o:p>ASHRIFI<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:150%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">G L
R 28 – 33&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:&nbsp; 19TH DECEMBER, 1960<o:p></o:p>

</div>COUNSEL:<o:p></o:p>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.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

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="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

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

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;LORD
DENNING<o:p></o:p>&nbsp;Lord Denning delivered the judgment of their
Lordships. [He set out the history of the Korle people and of the previous
litigation.&nbsp; 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. &nbsp;In each case the decision
of the trial judge and the West African Court of Appeal was affirmed.&nbsp; His Lordship continued:] Suit No. 15 of 1943:
A family named Okaikor Churu had been in possession of land at Kokomlemle ever
since 1875.&nbsp; They had been given the
right to farm it by the Gbese stool.&nbsp;
Distinguished members of the Gbese stool were buried on the land.&nbsp; When the trial judge visited it he found a
tomb with a headstone showing that in 1932 a priest was buried there.&nbsp; In 1942, however, the Atukpai family claimed
to be the owners of the land.&nbsp; They sold
it to purchasers who put up buildings on it.&nbsp;
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.&nbsp; 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.&nbsp; His order was as follows:—<o:p></o:p>&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.<o:p></o:p>&nbsp;"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.<o:p></o:p>&nbsp;"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>&nbsp;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.&nbsp; Their
Lordships read the word "allodial" as meaning that the three stools
are owners free of external control.&nbsp;
They do not hold of anyone else.&nbsp;
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".&nbsp; 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>&nbsp;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.&nbsp;
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.&nbsp; The question was, he said, res judicata.<o:p></o:p>&nbsp;Mr. Dingle Foot took a preliminary objection.&nbsp; He said that it was not open to Mr. Khambatta
to take this point of res judicata.&nbsp;
Their Lordships ruled in favour of Mr. Foot’s submission.&nbsp; 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.&nbsp; And it had not been
raised in the West African Court of Appeal.&nbsp;
The appellants at that time apparently acquiesced in the view that there
was no res judicata.&nbsp; In these
circumstances their Lordships held that they would not allow it to be raised
before them.&nbsp; Only in the most
exceptional circumstances would their Lordships allow a point to be taken
before them which had not been taken in the Court of Appeal.&nbsp; And there were no such exceptional
circumstances here.<o:p></o:p>&nbsp;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.&nbsp;
In the previous action, No. 12 of 1943, th</main>