PAINTSIL v. NYARKOWA AND OTHERS

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.

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 [p.389] “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."

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.

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:

"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 Kutus