PAINTSIL vs. NYARKOWA AND OTHERS [1976]DLCA419

Date	1976-02-24
Suit No.
Citation No.	[1976]DLCA419

APALOO J.A

ANIN J.A

FRANCOIS J.A.

J. B. SHORT FOR THE APPELLANT.

SACKEYFIO (R. A. KESSON WITH HIM) FOR THE RESPONDENTS.

[1976]DLCA419
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													<main id="main" class="content" style="min-height: 60rem" >PAINTSIL<o:p></o:p>&nbsp;vs. <o:p></o:p>NYARKOWA AND OTHERS<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 1 GLR 387<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:
24 FEBRUARY 1976.<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">

J. B. SHORT FOR THE APPELLANT.<o:p></o:p>

SACKEYFIO (R. A. KESSON WITH HIM) FOR THE
RESPONDENTS.<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">

APALOO, ANIN AND FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.A.<o:p></o:p>In an
action in the High Court, Cape Coast, the appellant sued for trespass to his
family land described as “Okuntan-Osubun situate at Gomoa Hwida . . . bounded
on the north by Obofu-Annan, in another direction by the same Obofu-Annan, on
the south by Komfu Dadzie and on the west by Obuafu.” He pleaded that the issue
as to title had been determined and finally settled in his favour by a judgment
of the Supreme Court of 17 January 1966 in suit reported as Eduful v. Pantsil
[1966] G.L.R. 27 which had ultimately reversed an earlier judgment of the Gomoa
Asin Local Court. He urged therefore that the respondents who were privies to
that suit were forever barred from re-litigating the issue. The question posed
for determination was consequently one of estoppel per rem judicatam.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants-respondents in answer urged long, uninterrupted possession covering
a period of over 40 years, by themselves and 200 years by their grantors,
Ebusuapanyin Kofi Eduful and the Twidan family of Hwida. The family described
its land as bounded<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;“on the north by Osuban land, on the south by
Kuana-Aburadzi family land, on the east by (Dago) family land, Kuana Hwida
family land and Twidan family land and on the west by Otuam Twidan family land
and Amuanda Etsibodu family land.”<o:p></o:p><o:p>&nbsp;</o:p>In this
judgment, the defendants and co-defendants-respondents who have an identical
interest will be referred to as the respondents, and the plaintiff as the
appellant.<o:p></o:p>It must
be observed that the parties are ad idem as to the confines of the area
presently in dispute but not of the former or earlier litigation. Indeed it is
the respondents’ case in resisting the application of the doctrine of estoppel
to this action that there is a lack of identity between the land in dispute and
that of the earlier suit. They claim the subject-matter of the earlier action
was “Assibum” land and the present “Kutusaremu.” They urge that the
distinctiveness of the two parcels of land even on a juridical basis, ousts any
plea of estoppel. This claim of distinctiveness, however, is patently without
foundation when examined against the evidence of the respondents themselves,
and their description of the land presently in dispute as bounded “on the ‘
north by Osubun land.” The fifth respondent, Kofi Kwainu, testifying on behalf
of the other respondents 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">“I know
the land which formed the subject-matter of the previous action between the
parties. Its name is commonly known as Assibum. Only farms are on Kutusaremu
land. Assibum land lies on the north of Kutusaremu land, and the two lands have
a common boundary between them ... Okomfo Dadzie has land which forms boundary
with the co-defendant’s land. It was Nana Ewusi who gave the land to Okomfo
Dadzie to take care of ... I am at the moment the caretaker of both Okomfo
Dadzie land as well as the land of the co-defendant which lands are contiguous
to each other.”<o:p></o:p><o:p>&nbsp;</o:p>It is now
trite learning that in the consideration of res judicata a smaller area might
include the larger in a juridical sense. Thus in Kyei v. Otu IX, Supreme Court,
Cyclostyled Judgments (Civil), January –June 1960, p. 1 at p. 8 unreported, the
Court of Appeal endorsed the statement of Adumua-Bossman J. (as he then was) in
Kyei v. Otu IX, High Court, Cape Coast, 31 October 1958, unreported, that:<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">“It is
also true that the area affected by the Reserve Commissioner’s judgment is only
a portion of the whole area now in dispute; but it is settled law, I think,
that a jud</main>