FOLI AND OTHERS vs. AGYA-ATTA AND OTHERS (CONSOLIDATED) [1975]DLCA385

Date	1975-12-04
Suit No.
Citation No.	[1975]DLCA385

AMISSAH J.A

KINGSLEY-NYINAH J.A

ANNAN J.A.

DR. A. K. P. KLUDZE FOR THE APPELLANTS.

E. D. KOM FOR THE RESPONDENT.

[1975]DLCA385
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													<main id="main" class="content" style="min-height: 60rem" >FOLI AND OTHERS <o:p></o:p>vs. <o:p></o:p>AGYA-ATTA AND OTHERS (CONSOLIDATED)<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 1 GLR 194<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
4 DECEMBER 1975.<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. A. K. P. KLUDZE FOR THE APPELLANTS.<o:p></o:p>

E. D. KOM FOR THE 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">

AMISSAH, KINGSLEY-NYINAH AND ANNAN
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>The
plaintiff and the defendants in these consolidated cases are neighbours. The
plaintiff and his people are from Nkonya Tayi. The defendants are from Alavanyo
Kpeme. The plaintiff and the defendants are separated by a now famous historical
boundary. It is the Grunner boundary, so called after Dr. H. Grunner, a German
administrator in Togo before the first World War, who drew it on a map showing
the extent of British and German territorial interests in the area in 1913. The
parties have always accepted that the boundary separating their lands was
demarcated by Dr. Grunner. Their dispute has been over which map the authentic
Grunner boundary could be found on, a matter that was settled some twenty years
ago, and how this documentary demarcation is actually reflected on the land
itself.<o:p></o:p><o:p>&nbsp;</o:p>The writs
in these actions were issued in 1961 by the then regent of Nkonya Tayi for and
on behalf of his subjects. In each, he claimed:<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">&nbsp;“(1) Recovery of possession of land lying on
the Nkonya side of Dr. Grunner’s boundary in respect of which the Ghana Supreme
Court has declared the plaintiff’s stool to be the owner, but on part of which
the defendant with the Regent Mensah Aniaabor’s encouragement continues to make
new farms and has refused to come to terms with the plaintiff’s stool. <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">(2)
Perpetual injunction restraining the defendant and his workmen or labourers
from further trespass upon the plaintiff’s said stool land.”<o:p></o:p><o:p>&nbsp;</o:p>The cases
were eventually disposed of by Francois J. (as he then was) in 1970. He gave
judgment in favour of the plaintiff. It is from that judgment that this present
appeal is brought.<o:p></o:p>By far
the most important question raised before us is that of estoppel. Dr. Kludze for
the defendants has asked us to reverse the judgment of the court below on the
ground that the plaintiff was prohibited by law from maintaining this action as
there was a previous valid judgment between the parties on the point now
brought by him. In other words, the plaintiff is estopped per rem judicatam. It
is a well-known rule of law that a person cannot bring an action where the
cause of his claim or the issue which he seeks to have determined has as
between the parties or their privies already been disposed of by a competent
court. This is a salutary rule intended to prevent the harassment of people by
a multiplicity of law suits. Accordingly, the rule is framed widely enough to
cover not only matters which are actually dealt with in the previous judgment
but those as well which ought to have been brought up then but which were not.
Thus, in the most famous statement of that aspect of the principle, Wigram
V.-C. in Henderson v. Henderson (1843) 3 Hare 100 at pp. 114-115 puts the point
this way:<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">“I believe
I state the rule of the court correctly, when I say that, where a given matter
becomes the subject of litigation in, and of adjudication by, a court of
competent jurisdiction, the court requires the parties to that litigation to
bring forward their whole case, and will not (except under special
circumstances) permit the same parties to open the same subject of litigation
in respect of matter which might have been brought forward as part of the
subject in contest, but which was not brought forward only because they have,
from negligence, inadvertence, or even accident, omitted part of their case.
The plea of res judicata applies, except in special cases, not only to points
upon which the court was actually required by the parties to form an opinion and
pronounce a judgment, but to every point which properly belonged to the subject
of litigation and which the parties, exercising reasonable diligence, might
have brought forward at the time.”<o:p></o:p><o:p>&nbsp;</o:p>