DZOTEPE vs. HAHORMENE III AND OTHERS [1984]DLCA909

Date	1984-12-11
Suit No.
Citation No.	[1984]DLCA909

APALOO C.J.

EDWARD WIREDU JA

OSEI-HWERE J.A.

ARMSTRONG ACKUAKU (WITH HIM DOTSE) FOR THE APPLICANT.

SENAYA FOR THE RESPONDENTS.

[1984]DLCA909
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DZOTEPE <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 289<o:p></o:p>

DATE:
11 DECEMBER 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

ARMSTRONG ACKUAKU (WITH HIM DOTSE) FOR THE
APPLICANT. <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 C.J., EDWARD WIREDU AND OSEI-HWERE JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>Apaloo
C.J. delivered the ruling of the court. The applicant’s predecessor-in-title,
one Agbemabiese, obtained judgment against one Dzisam and four other persons in
the Anloga Native Court B on 14 May 1953. The defendants were sued “for
themselves and on behalf of the Tovie tribe of Tegbi.” The claim then was for
title to a piece of land which was described by reference to adjoining land
said to be bounded by natural features or named persons. The applicant’s
predecessor also obtained an injunction “restraining
the then defendants, their servants or agents from meddling with the land and
the trees thereon.”<o:p></o:p><o:p>&nbsp;</o:p>What
appears to be the question in controversy was whether the applicant’s
predecessor who ex concessis bought or redeemed the land from Chief Tamakloe,
did so in his own right or did so on behalf of the Tovie tribe. The applicant’s
predecessor’s position was that he did so in his own right and vis-à-vis the
tribe, was the legal and beneficial owner. The Tovie tribe said that could not
be because it was tribal land which Chief Tamakloe bought and the tribe raised
contributions from members of the tribe and it was with this money that the
applicant’s predecessor redeemed the land.<o:p></o:p><o:p>&nbsp;</o:p>So the
issue raised before the native court was a simple one of fact. If Agbemabiese
redeemed this land with tribal money on behalf of the tribe, it would be
stamped with the character of tribal land, if he did so with his own funds and
in his own right, it would be his individual property.<o:p></o:p>The native
court held that the applicant’s predecessor bought in his own right and
rejected the claim that it was bought with tribal money or on its behalf. That
was why they found for the applicant’s predecessor-in-title. It is clear that
no issue was joined on the identity of the land. Both parties must have been ad
idem on the land then in dispute. That, this must be so, is shown by what
happened since this case was decided in the High Court.<o:p></o:p><o:p>&nbsp;</o:p>The judge
of the High Court set aside that judgment on the ground of fraud. Apparently,
the respondents did not seek by appeal to have that judgment vacated in their
favour on the merits. When judgment was set aside on the ground of fraud, the
respondents proceeded to ask the court to grant them a writ of possession. But in
doing so, they had to describe the land in respect of which they sought the
order. They described it as bounded on the south with Tegbi beach and the sea,
on the north with Tegbi Lawe tribal land, on the east with Ashornu, Vuvor and
Ashornu’s properties and on the west by Chief Tamakloe’s land. This was
precisely the boundary Agbemabiese, the applicant’s predecessor, gave of the
land then in dispute in the 1953 action. This shows that if anything was in
issue in that case, it was not the identity of the land. But it would seem that
in further identification of the land, the appellant’s predecessor also
tendered a plan of the land whose identity was not in issue. The basis of the
allegation of fraud against the applicant’s predecessor and which was accepted
by the High Court, is that the plan produced, allegedly copied from a 1906
judgment, was, altered. What possible impact could this be on an issue of
whether or not the land then in dispute and whose boundaries and description
were known to the parties was bought by the applicant’s predecessor in his own
right or on behalf of the Tovie tribe? On the central issue in the case before
the court, the question of the plan could, at best, only be a collateral issue.
On this, the law is 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">“In an
action [to set aside a judgment on the ground of fraud, the fraud] . . . must
relate to matters which prima facie would be a reason setting the judgment
aside if they were established by proof and not to matters which are merely
collateral.”<o:p></o:p>