COBBLAH vs. OKRAKU [1961]DLHC875

Date	1961-11-20
Suit No.
Citation No.	[1961]DLHC875

OLLENNU J

G. KORANTENG-ADDOW FOR THE PLAINTIFF

S. M. CODJOE FOR THE DEFENDANT.

[1961]DLHC875
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 679

DATE: 20TH NOVEMBER, 1961.

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COUNSEL:&nbsp;&nbsp;

G.
KORANTENG-ADDOW FOR THE PLAINTIFF.

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OLLENNU, J.

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&nbsp;

The claim of the plaintiff is for damages for trespass and
injunction, and the subject-matter of the suit is a piece of land situate in an
area west of Accra town, popularly known as Lartebiokorshie and south of a
settlement known as Sarbon Zongo. The plaintiff who is a subject of Sempe stool
claims that the land in dispute was granted and conveyed to him by the Sempe
stool in 1947 by deed of gift dated the 8th December, 1947, and he was placed
in possession of the same. He pleaded that his possession of the land was
invaded in 1952 by one Bruno, who in spite of all warnings built on a portion
of the land upon the authority of one Modua Abrahams; in consequence of that
trespass the plaintiff sued the said Bruno and the said Modua Abrahams and
recovered judgment against them for declaration of his title, and for recovery
of possession of the land with the buildings thereon. He pleaded further that
in May, 1960 the defendant also trespassed upon a portion of his said land and
fixed pillars thereon, claiming it to be her property.

The defence is that the area of land in dispute forms part of an
area of land owned by the Alata stool of James Town, and that the defendant and
her predecessors in title, i.e. her father-in-law, one Teiko have been in quiet
possession of the same for over 50 years as a portion of land granted to her
father-in-law by the said Alata stool. The defendant therefore put the
plaintiff to strict proof of his title to the land. It was further pleaded for
the defence that the dispute is res judicata by reason of a judgment of the
Privy Council1(1) which confirmed concurrent judgments of the Divisional
Court2(2) and the Full Court3(3) in a suit entitled Mantse Anege Akwei v.
Mantse Kojo Ababio, Mantse Anege Akwei being the occupant of the Sempe stool,
the plaintiff’s grantor, and Mantse Kojo Ababio, occupant of the Alata stool,
the defendant’s grantor. The defendant further pleaded that the plaintiff and
his grantor, the Sempe stool, are estopped by the conduct of the Sempe stool in
supporting Mantse D. P. Hammond, Asere Mantse, in an unsuccessful claim he made
to the land against the Alata stool in suit entitled Mantse D. P. Hammond v.
Mantse Kojo Ababio and Another.4(4)

It was submitted by counsel for the defendant that the plaintiff,
as privy in estate to the Sempe stool who lost in that suit, is estopped from
asserting title to the land in dispute. One of the most essential elements of
estoppel per rem judicatam is that the subject-matter of the subsequent suit is
identical with and comprised in the subject-matter of the former suit. The
subject-matter of the suit upon which the plea is based is land situate at
Wedjeian, some miles away from the land in dispute in this case, acquired by
Government under the Public Lands Ordinance5(5) for water works. That land is
miles away from the land now in dispute and has no connection whatsoever with
the land the subject-matter of the present suit. Therefore the judgment in that
former case cannot operate as res judicata to estop the Sempe stool or the plaintiff
in this suit. The significance of the judgment of the Privy Council in that
suit, Mantse Anege Akwei v. Mantse Kojo Ababio, is that it emphasised one of
the basic principles of the common law of Ghana with relation to land, namely,
that land, urban or rural, exclusively used by the subjects of a particular
quarter of a town, belong exclusively to that quarter, and land exclusively
used by subjects of a particular sub-stool belong exclusively to that
sub-stool. In other words, the management and control of such land is vested in
the quarter or in the sub-stool as the case may be and not in the paramount or
head stool, subject only to the jurisdictional authority of the paramount or
head stool in whom is vested the absolute title of all the lands, together
occupied and owned by all the quarters of the town or all the sub-stools under
that head or paramount stool.

It is only land within the area of authority of a paramount or
head stool which is not occupied by subjects of any quarter or subjects of any
sub-stool, which comes under the direct control of the paramount or head stool:
Wiapa v. Solomon.6(6)

The importance therefore of the case of Mantse Anege Akwei v.
Mantse Kojo Ababio as far as this case is concerned, as would appear presently,
lies in the emphasis it lays on the aforesaid principle of our land law, and
not in the res judicata pleaded.

On the plea that the Sempe stool, and its grantee, the plaintiff
are estopped by the conduct of the Sempe stool in the case of Mantse D. P.
Hammond v. Mantse Kojo Ababio, counsel relied upon the following cases:
Wilkinson v. Blades7(7), Marbell v. Akwei8(8) and Nana Ofori Atta II v. Nana
Bonsra Adjei.9(9)