NKANSAH II vs. YIADOM III [1960]DLSC10235

Date	1960-03-21
Suit No.	G L R 7 - 11
Citation No.	[1960]DLSC10235

VISCOUNT SIMONDS

LORD JENKINS

THE RT. HON. MR. L. M. D. DE SILVA

SIR FRANK SOSKICE Q.C. AND MARK SMITH FOR THE APPELLANT.

R. WALTON AND R. F. SOLOMAN FOR THE RESPONDENT.

[1960]DLSC10235
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >NKANSAH II<o:p></o:p>vs.<o:p></o:p>YIADOM III<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 7 - 11&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:&nbsp;
21ST MARCH, 1960<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SIR FRANK SOSKICE, Q.C. AND MARK SMITH FOR
THE APPELLANT.<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;">

R. WALTON AND R. F.
SOLOMAN FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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;">

VISCOUNT SIMONDS,
LORD JENKINS AND THE RT.&nbsp; HON.&nbsp; MR. L. M. D. DE SILVA<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;MR.
M.L.D. DE SILVA<o:p></o:p>&nbsp;M.L.D. De Silva delivered the judgment of
their Lordships.&nbsp; The only point in
dispute between parties in this appeal and the only point for decision by their
Lordships is whether or not the plea of estoppel is entitled to succeed.&nbsp; It is agreed by the parties that if the plea
of estoppel succeeds the appeal ought to be allowed and that if it fails it
should be dismissed.&nbsp; Their Lordships
will now examine the judgment and proceedings in the 1940 action upon which the
plea is based.<o:p></o:p>&nbsp;That action was begun in 1940 in the Tribunal
of the Paramount Chief of Kwahu between Bukuruwa stool as plaintiff and the
Chief of Atipradaa and one of his subjects as defendants for a declaration of
title to the land.&nbsp; The suit was
thereafter transferred to the Supreme Court of the Gold Coast in March, 1942.&nbsp; There was some dispute as to whether the land
which was the subject-matter of that action was identical with the land claimed
by the present appellant but in view of what follows it is not necessary for
their Lordships to decide that point.&nbsp;
Their Lordships will assume without deciding against the respondent (who
succeeds on the appeal) that it was identical.<o:p></o:p>&nbsp;In July, 1942, on the application of the
Burukuwa stool, the Chief of Wusuta was added as a defendant on the ground that
the original defendants were his subjects and claimed to occupy the land under
his authority.&nbsp; The Bukuruwa stool in its
statement of claim (in the 1940 action) pleaded that the predecessor of the
Chief of Atipradaa had been permitted by the [p.9] Bukuruwa to hunt, reside and
make farms on payment of tolls but now refused to pay tribute and, in concert
with the Chief of Wusuta, claimed the property as part of the stool property of
the Wusuta stool.<o:p></o:p>&nbsp;In 1943, a surveyor and the parties visited
the land in order to prepare a plan for the purposes of the case.&nbsp; In January, 1944, the respondent made an
application to be joined as a defendant on the ground that when the surveyor
visited the land the elders of his stool had been invited to be present and had
discovered that a large part of the land claimed in the action was the respondent's
stool land.&nbsp; On the 11th February, 1944,
this application, though opposed was granted.&nbsp;
An appeal against the order for joinder was dismissed on the 22nd
November, 1944, by the Court of Appeal.<o:p></o:p>&nbsp;On the 25th August, 1945, on an application
made by the present appellant (plaintiff in the 1940 action), the Paramount
Chief of Kwahu was joined as co-plaintiff on the ground that he had an interest
in all Kwahu lands and that the lands in dispute were a portion of the lands
held under him.<o:p></o:p>&nbsp;Thereafter the respondent took no further
part in the 1940 action.&nbsp; It has been
said on his behalf in this action that he did so because of an arrangement with
the Paramount Chief in order not to embarrass him in the proceedings against
the Wusutas.&nbsp; But he took no steps to
have himself discharged from the action.&nbsp;
It is argued for the appellant that the respondent was a party to the
1940 action and is consequently bound by the result of the case, namely a
declaration of title in favour of the plaintiffs.&nbsp; It is to be observed that the declaration was
not in favour of Bukuruwa alone; it was in favour of the Bukuruwa and the
Paramount Chief of Kwahu.&nbsp; Their
Lordships do not find it necessary to go into the question how far this fact
would affect a plea of res judicata by the Bukuruwa alone if the plea was
otherwise valid because they find it fails on other grounds.<o:p></o:p>&nbsp;In holding that the plea of estoppel failed
the President of the Court of Appeal with whom the other judges concurred
said:—<o:p></o:p>&nbsp;“there are points which, in my view, strongly
support the appellant's [respondent on the appeal to their Lordships]
contention that there was an understanding that his predecessor should drop out
of the action when the Omanhene had been joined as a co-plaintiff and it became
clear that the battle was really between the Kwahu and the Wusuta (Ewes).<o:p></o:p>&nbsp;Firstly, it seems odd that he should after
strenuous efforts to be joined as a defendant, for no apparent reason unless it
was for the one alleged, suddenly drop out of the case.&nbsp; In this connection I think it</main>