ANTWI vs. AMPONSAH AND ANOTHER [1964]DLHC1867

Date	1964-10-14
Suit No.
Citation No.	[1964]DLHC1867

HAYFRON-BENJAMIN J.

DR. DE-GRAFT JOHNSON FOR THE PLAINTIFF.

G. AMPAW FOR THE DEFENDANTS.

[1964]DLHC1867
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													<main id="main" class="content" style="min-height: 60rem" >ANTWI<o:p></o:p>&nbsp;vs. <o:p></o:p>AMPONSAH AND ANOTHER <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1964] GLR 531<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
14 OCTOBER 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DR. DE-GRAFT JOHNSON FOR THE PLAINTIFF.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

HAYFRON-BENJAMIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF HAYFRON-BENJAMIN J.<o:p></o:p>The
plaintiff by his writ of summons issued on 9 December 1960 claims an order of
this court declaring his title to a house at Sagyimase in the Akim Abuakwa
Traditional Area, an order for recovery of possession of the said house, £G300
damages for trespass, an injunction to restrain the defendants, and
compensation for mesne profits. The land on which the said house is built is
bounded on the north by Opanin Kwasi Tutu’s house, on the south by Opanin Kofi
Mabreh’s house, on the east by Opanin Yaw Akyiano’s house, and on the west by
Opanin Kwame Yeboah’s house.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s statement of claim filed on 10 February 1961 does not repeat the
claim for mesne profits. On the authority of Cargill v. Bower1 he is deemed to
have elected to abandon it. Nothing further need be said about this part of the
claim.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s case as appearing on his pleading is that he was for seventeen
years the odikro of Sagyimase. He abdicated in 1959 after he had been served
with destoolment charges. While on the stool, he was at first in receipt of £G4
a month salary, this was later increased to £G8 per month. Ten years after he
had ascended the stool, he started erecting the building which is the
subject-matter of this dispute, on a vacant plot, to the knowledge of his
elders. With their consent he borrowed some corrugated iron sheets which had
been removed from the ruins of the Antwere fetish house. At the time of his
abdication he had completed only one room, which he had let out at a monthly
rental of seven shillings. Since his abdication the defendants have taken
possession of the house, driven out the tenant after collecting some rents from
him and used the house as an ahenfie for the new odikro, Bafour Kwesi Koramoah.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants by their defence do not specifically deny that the plaintiff built
the house, but they contend that he built it on the tacit understanding that
the house would be used as an ahenfie. On the basis of this tacit understanding
the oman allowed the plaintiff to use the corrugated iron sheets from the old
fetish house, which he had previously occupied as an ahenfie. They also
provided him with the board used in roofing the building. They contend further
that the house was built on the site of the old fetish house, which the
plaintiff had, with the consent of the elders, pulled down to make room for the
new house. They deny that the plaintiff was ever in receipt of a salary.
According to them they have never collected rent from any tenant, and have not
unlawfully dispossessed the plaintiff of any house. The plaintiff, they say,
voluntarily gave up possession of the house on abdication. They deny the
plaintiff’s right to let out the house. The defendants by an amendment to their
statement of defence set up a plea of estoppel per rem judicatam. They pleaded,
“The plaintiff is estopped per rem judicatam from bringing this action on the
grounds that the plaintiff’s mother had litigated with the odikro of Sagyimase
on the same subject-matter on 23 June 1960 at Kibi.” The defence, so vaguely
pleaded was traversed by the plaintiff in his reply in no uncertain terms. He
said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
plaintiff will contend that the alleged ‘court’ which heard the dispute was not
a court of competent jurisdiction. No final decision was given and the trial
was also irregular. None of the parties in that so-called ‘trial’ was
authorised by the plaintiff to sue on his behalf and the house was not
specifically claimed in the previous action.”<o:p></o:p><o:p>&nbsp;</o:p>The plea
was doomed to failure. The defendants did not succeed in establishing even one
essential condition for a successful plea of estoppel per rem judicatam. The
first defendant who gave evidence did not even mention it. I hold therefore
that the plaintiff is not estopped by res judicata from maintaining this suit.<o:p></o:p><o:p>&nbsp;</o:p>