ROBERTSON vs. REINDOR [1971]DLCA2158

Date	1971-03-29
Suit No.
Citation No.	[1971]DLCA2158

AZU CRABBE JA

AMISSAH JA

ANIN J.A.

A. E. AKUOKO (DR. SETH TWUM WITH HIM) FOR THE APPELLANT.

NELSON-COFIE FOR THE FIRST RESPONDENT.

JOE REINDORF FOR THE SECOND RESPONDENT.

[1971]DLCA2158
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													<main id="main" class="content" style="min-height: 60rem" >ROBERTSON<o:p></o:p>&nbsp;vs. <o:p></o:p>REINDOR <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&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;&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;[1971] 2 GLR 289<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:
29 MARCH 1971.<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">

A. E. AKUOKO (DR. SETH TWUM WITH HIM) FOR THE
APPELLANT.<o:p></o:p>

NELSON-COFIE FOR THE FIRST RESPONDENT.<o:p></o:p>

JOE REINDORF FOR THE SECOND RESPONDENT.<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">

AZU CRABBE, AMISSAH AND ANIN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>It is not
disputed that the plaintiff’s family, the Nikoi Olai stool family (hereafter
called the “Nikoi Olai family” for short) are the owners of a tract of land
called Mukose lands. It is also not disputed that adjacent to the Mukose lands
is another tract, known as Dome lands, owned by the Onamrokor Adain family
(hereafter called the “Onamrokor family”) of which the defendant, now respondent,
was the head. The real controversy in this case is as to the proper boundary
which demarcates these respective lands. The plaintiff, now appellant, draws
his relevant boundary at a place which the respondent says eats into their Dome
lands while the respondent takes a boundary which the appellant says lies
within their Mukose lands. Thus we have the all too familiar situation in
disputes of this kind where each of the parties lays claim to a parcel of land
lying in between undisputed properties belonging to them. The question for the
trial court was whether the appellant’s claim to that parcel of land was
sustainable. The court found that it was not. From that decision the appellant
now appeals to us on a number of grounds.<o:p></o:p><o:p>&nbsp;</o:p>Before
the merits of the appellant’s case on the evidence can be discussed, however,
one hurdle needs to be cleared. That is, whether the issue for determination
raised by this case is not res judicata. It was pleaded in the defence to the
plaintiff’s claim that in an earlier suit, Reindorf v. Amadu [1962] 1 G.L.R.
508, S.C. between the respondent and the Manche Ankrah family of Accra as
plaintiffs against Amadu and Braimah, which the appellant’s predecessor in
title, Nii Amasah Nikoi Olai (later substituted by Nii Amon Kotei) as the head
and lawful representative of the King Tackie family of Asere Djorshie joined as
co-defendant (hereafter referred to as the Amadu case), the land now claimed as
part of the Mukose lands by the appellant was the subject of the dispute
between the parties. According to the pleadings, that same land was then
claimed by the appellant’s predecessor in title who then represented the King
Tackie family of Asere Djorshie, a branch of the Nikoi Olai family. Judgment
was given in that case for the present respondent by the High Court and was
affirmed by the then Supreme Court. And the effect of that judgments said the
respondent, was to estop the appellant’s family from laying claim to that same
land ever again.<o:p></o:p><o:p>&nbsp;</o:p>The reply
by the appellant to this pleading was twofold. First, he pleaded that in the
earlier case referred to, the present respondent, then as plaintiff, sought a
declaration of title and ancillary relief only in respect of a quarry site in
the area. Therefore any estoppel per rem judicatam, if at all operative, should
be limited to the quarry site and not be enlarged in effect to cover the
greater area now claimed. Secondly, the appellant stated that the parties in
the Amadu case were not indentical with those in the present case, in that Nii
Amon Kotei, the original plaintiff in the present case, and the predecessor in
title to the appellant, who as acting head and representative of the Nikoi Olai
family brought this action, acted not in that capacity in the Amadu case, but
represented the interests of the Tackie Tawiah family, an entity whose interest
was not identical with the Nikoi Olai family. And to support this point, it was
alleged that the Nikoi Olai family had applied to be separately joined in the
Amadu case, but had been turned down.<o:p></o:p><o:p>&nbsp;</o:p>The learned
trial judge carefully examined these contentions. With regard to the question
as to identity of the parties, she found that the Tackie Tawiah family for whom
Nii Amon Kotei had acted in the Amadu case was a smaller unit within the larger
Nikoi Olai family and that in the defence filed by his predecessor, Nikoi Olai
Amasah as co-defendant, he was described as “Head of the Nikoi Olai family of
Asere Djorshie, Accra.” The traditional evidence given in the Amadu case as to
how the co-defendants came to acquire title to the land was the same</main>