ABRAHAMS v. AKWEI

JUDGMENT OF OLLENNU J.

The respondent, plaintiff in the Accra West Local Court, claimed declaration of title as owner to the whole of Sempe stool lands in Accra. The immediate cause of action as disclosed in paragraph 1 of his writ of summons is a judgment of this court (unreported) delivered on November 4, 1960 by Adumua-Bossman, J., as he then was, in favour of the appellant, Richard Akwei, against one Ashirifie Nunoo, for declaration of title and damages for trespass. The subject-matter of that suit is a portion of Sempe stool land. The said land was granted to the appellant by Nii Tetteh Kpeshie II, Sempe Mantse, in accordance with customary law. The identical land was sold and conveyed to the said Ashirifie Nunoo by the respondent who claims to be the proper authority to alienate Sempe stool land. Thinking he had acquired good title from the respondent, Ashirifie Nunoo went upon the land to possess it, but his attempt was successfully resisted by the appellant who sued him in this court and obtained judgment against him as stated above. The respondent did not apply to join Nunoo to litigate his title to the land. He, however, instituted this action against the appellant after the appellant had successfully litigated his title against the said Nunoo.

At the trial before the local court, the appellant tendered in evidence a certified copy of the judgment he obtained in this court against Nunoo, and submitted that the respondent was estopped by reason of that judgment from laying claim to the identical land. The local court magistrate rejected the appellant's submission in the following words:

“In the said judgment exhibit A there is nothing to show that the subject-matter is the subject herein, the court in that case in exhibit A herein bestows no judicial examination on the merits of the question. With great respect I quote the following from the very learned judges of the West African Court of Appeal. It reads: 'In the case of Jonkins v. Robertson, it was held that a decree obtained by arrangement between the contending parties, the Court bestowing no judicial examination on the merits of the question, can never be res judicata’ (see selected judgments West African Court of Appeal 1930-33, Vol. 1 (page 60). Plaintiff herein as the stool father of Sempe, is suing in this action as the paramount title”.

It is not clear what the local court magistrate was talking about. Unfortunately for him he was dealing with legal problems which, undoubtedly, were