ABRAHAMS v. AKWEI [1961]DLHC509

Date	1961-11-16
Suit No.
Citation No.	[1961]DLHC509

OLLENNU

J. AMOO-LAMPTEY FOR THE DEFENDANT-APPELLANT

PLAINTIFF-RESPONDENT IN PERSON

[1961]DLHC509
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 676

DATE: 16TH NOVEMBER, 1961.

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COUNSEL:&nbsp;&nbsp;

J.
AMOO-LAMPTEY FOR THE DEFENDANT-APPELLANT.

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OLLENNU, J.

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&nbsp;

The respondent, plaintiff in the Accra West Local Court, claimed
declaration of title as owner to the whole of Sempe stool lands in Accra. The
immediate cause of action as disclosed in paragraph 1 of his writ of summons is
a judgment of this court (unreported) delivered on November 4, 1960 by
Adumua-Bossman, J., as he then was, in favour of the appellant, Richard Akwei,
against one Ashirifie Nunoo, for declaration of title and damages for trespass.
The subject-matter of that suit is a portion of Sempe stool land. The said land
was granted to the appellant by Nii Tetteh Kpeshie II, Sempe Mantse, in
accordance with customary law. The identical land was sold and conveyed to the
said Ashirifie Nunoo by the respondent who claims to be the proper authority to
alienate Sempe stool land. Thinking he had acquired good title from the
respondent, Ashirifie Nunoo went upon the land to possess it, but his attempt
was successfully resisted by the appellant who sued him in this court and
obtained judgment against him as stated above. The respondent did not apply to
join Nunoo to litigate his title to the land. He, however, instituted this
action against the appellant after the appellant had successfully litigated his
title against the said Nunoo.

At the trial before the local court, the appellant tendered in
evidence a certified copy of the judgment he obtained in this court against
Nunoo, and submitted that the respondent was estopped by reason of that
judgment from laying claim to the identical land. The local court magistrate
rejected the appellant’s submission in the following words:

“In the said judgment exhibit A there is nothing to show that the
subject-matter is the subject herein, the court in that case in exhibit A
herein bestows no judicial examination on the merits of the question. With
great respect I quote the following from the very learned judges of the West
African Court of Appeal. It reads: ‘In the case of Jonkins v. Robertson, it was
held that a decree obtained by arrangement between the contending parties, the
Court bestowing no judicial examination on the merits of the question, can
never be res judicata’ (see selected judgments West African Court of Appeal
1930-33, Vol. 1 (page 60). Plaintiff herein as the stool father of Sempe, is
suing in this action as the paramount title”.

It is not clear what the local court magistrate was talking about.
Unfortunately for him he was dealing with legal problems which, undoubtedly,
were beyond him, namely the principle of estoppel by conduct, which is quite
different thing from estoppel per rem judicatam. That principle is that where a
person was vitally interested in a previous case between a person to whom he
has sold land and a third party, the validity of the title he has conveyed
being in issue, did not apply to be joined as a party to that suit, but was
content to stand by and see his battle fought by that person in the same right,
he would be bound by the result in that case, and would be estopped from
re-opening the issue determined in that case. See Marbell v. Akwei
(Consolidated)1(1) and Fiscian v. Tetteh.2(2) In that case Fiscian sold land to
T, who built on it; Tetteh sued T and obtained judgment against her for
declaration of title, and recovered possession of the land with the buildings
thereon; the main issue litigated was Fiscian’s right to convey the land.
Fiscian afterwards sued Tetteh and claimed title to, and recovery of possession
of the land. It was held that the estate or interest of Fiscian had, to his
knowledge been put in issue by his grantee, and as a declaration of title had
been obtained by Tetteh against Fiscian’s said grantee, in respect of that
estate or interest, Fiscian was thereby estopped from denying the title of the
defendant. That is exactly the position in this case. The local court magistrate
was therefore wrong in rejecting the submission of the appellant.

When the local court magistrate overruled the appellant’s
submission and ordered the case to proceed, the respondent offered no oral
evidence, he simply tendered the record of proceedings in two other cases
previously tried by the said local court magistrate and rested his case
entirely upon those two records and the averments in his writ of summons. The
appellant objected to the admission of those proceedings, but his objection was
overruled by the local court magistrate. In this also the local court
magistrate erred greviously. Proceedings taken in one case are not admissible
in evidence in a subsequent suit unless in very special circumstances, e.g.
when evidence given by a witness on a previous occasion is tendered to
contradict the same person when he gives evidence to the contrary in a
subsequent suit, or where the person who gave the evidence in the previous case
has since died, or is not available to give evidence in the subsequent suit;
but even in such a case, the evidence will not be admissible unless it is
proved that the party against whom that evidence is sought to be tendered in
the subsequent suit had opportunity to cross-examine the witness in that former
suit when he gave the said evidence. None of those conditions are present in
this case. Therefore those proceedings were wrongly admitted. They must be
completely disregarded in the consideration of this appeal. With the rejecti</main>