WUO vs. KWARKU [1961]DLSC1392

Date	1961-05-15
Suit No.
Citation No.	[1961]DLSC1392

KORSAH JSC

C.J. JSC

VAN LARE JSC

SARKODEE-ADOO JSC

G. KORANTENG-ADDOW FOR THE APPELLANT

J. D. REINDORF FOR THE RESPONDENT.

[1961]DLSC1392
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&nbsp;[SUPREME COURT]

[1961] GLR 235

DATE: 15TH MAY, 1961.

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COUNSEL:&nbsp;&nbsp;

G.
KORANTENG-ADDOW FOR THE APPELLANT.

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KORSAH, C.J., VAN LARE AND
SARKODEE-ADOO, JJ.S.C.

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&nbsp;

Sarkodee-Adoo J.S.C. delivered the judgment of the court. [His
lordship referred to the facts and continued:] The learned Commissioner of
Assize and Civil Pleas in his judgment held that on the evidence he did not
think that the plea of estoppel could prevail against the plaintiff even though
she stood by without asserting her title and gave evidence in the litigation in
support of Kojo Dei’s claim to the property in dispute. He therefore gave
judgment for the plaintiff but awarded no damages being of the opinion that no
damage had been done; he further held that he also felt that as the plaintiff
and the defendant were closely related and also related to late Amankwa, who it
is said was succeeded partially by the plaintiff and generally by Kojo Dei, the
defendant should have one-third interest in the cocoa farm as both plaintiff
and defendant are very old and infirm people.

Upon perusal of the record and after careful consideration of the
issues involved, we concluded that the learned Commissioner of Assize and Civil
Pleas erred in holding that the plea of estoppel could not prevail against the
plaintiff; counsel for the respondent was therefore called upon to support the
judgment from which this appeal has been lodged. Whereupon counsel stated that
he admitted the plaintiff could not sue as successor, but contended that
although the title of the case shows that the plaintiff sued as successor, it
is clear from the pleadings and the evidence that this should not be construed
as meaning successor under customary law, and the use of the word successor
should not be fatal to the plaintiff’s claim merely because she is not
successor in the strict sense of customary law. He further contended that
plaintiff being co-owner with Amankwa during the latter’s life-time could sue
in respect of the cocoa farm; that he should not support that part of the
judgment which granted one-third of the cocoa farm to the defendant on the
ground that the defendant is old and infirm. He added that the property in
dispute was given to the plaintiff by the family after the death of Amankwa.

&nbsp;

On the question of estoppel counsel contended that until it was
proved that the plaintiff is privy to Kojo Dei, any judgment entered against
Kojo Dei in the proceedings between Kojo Dei and the defendant of which she was
cognisant and in which she gave evidence for Kojo Dei against the defendant,
could not operate as estoppel against the plaintiff; he however agreed that the
plaintiff is privy to Amankwa (deceased) and that the cocoa farm in dispute had
been the subject-matter of dispute between Kojo Dei and the defendant in all
the previous litigation between the same parties.

It is a settled principle of law and the authorities thereon are
numerous that where an issue has been once taken and found, between the parties
taking it and their privies, such finding is conclusive, so as to create
estoppel.

“A person taking some part in the proceedings in which the
judgment was given is estopped and so is a person not a party if he is
cognizant of the proceedings and had a right to intervene. Similarly a person
may estop himself by his conduct in standing by, from afterwards questioning a
judgment for inasmuch as he was in the same interest, he might, if he had
chosen to take the necessary steps, have been admitted as a party. And upon the
same rule, where the parties are numerous, a judgment against a few selected
representatives may bind the rest”.

In the case of Wytcherley v. Andrews1(9) it was held that a next
of kin, although not cited in the proceedings, and not having intervened, is
bound by a decree in a suit in which a will is contested by other next of kin,
if he was cognisant of the suit and had an opportunity of intervening. But this
rule does not apply to a case where the parties to the suit compromise it, and
the decree is founded on the compromise, although cognisant of the suit.