Nana Ofori Atta II v Nana Abu Bonsra II
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1957 |
| Date | 1957 |
| Court | Privy Council |
Estoppel - Conduct, by - Standing by judicial proceedings - Rival claims to stool lands - Previous suits between parties' subordinates in same interest - Knowingly standing by - Estopped by conduct from litigating same issue - West Africa (Gold Coast). - West Africa (Gold Coast).
On a claim by the appellant stool against the neighbouring respondent stool to certain lands in Ghana the respondent alleged that in proceedings 16 years previously a subordinate stool of the appellant had failed to establish title to the lands now in dispute as against a subordinate stool of the respondent, and that the appellant, having knowingly stood by while the title was fought out by its subordinate in the same interest in the earlier suit — in which the appellant and respondent were not parties — was estopped by conduct from litigating the question of title again against the respondent:—
Held, that the principle stated by Lord Penzance in Wytcherley v. Andrews (
was not limited to wills and representative actions, and while it might have been found appropriate in England only in special conditions, there was no reason why in West Africa it should not be applied to conditions which were found appropriate for it there. The principle was, in the absence of technical legal reasons to the contrary, applicable in the present case, and accordingly the appellant stool, having knowingly stood by while its subordinate fought the question of title in the same interest, was estopped from litigating the matter afresh“if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to reopen the case,”
APPEAL (No. 43 of 1953) from a judgment of the West African Court of Appeal (Gold Coast Session) (July 9, 1952) affirming a judgment of the Supreme Court of the Gold Coast (November 12, 1949) dismissing a claim by the appellants for a declaration of title to land and an injunction.
The following facts are taken from the judgment of the Judicial Committee: This case was a dispute about the title to certain lands in Ghana called the Nsuakwate or Anungya lands (hereinafter called “the lands in dispute”). The principal parties who appeared before the Board to claim title to them were, on the one hand, the plaintiff, the Stool of Akyem Abuakwa, which was represented by the Omanhene or head chief Nana Ofori Atta II (hereinafter called “Akim Abuakwa”), and, on the other hand, the defendant, the Stool of Adanse, which was represented by the Adansehene or head chief Nana Abu Bonsra II (hereinafter called “Adansi”).
The plaintiff Akim Abuakwa was a paramount stool and said that the lands in dispute were under its paramountcy and in particular that they were part of the Muronam lands which were subject to it. The Odikro or sub-chief of Muronam was joined as a co-plaintiff with Akim Abuakwa. (He is hereinafter called “Muronam.”)
The defendant Adansi was a neighbouring stool which claimed that the lands in dispute formed part of the Adansi stool but were under the immediate custody of the Stool of Banka, which was represented by the Ohene or Chief Brako Ababio II (hereinafter called “Banka”). Adansi said that Banka was caretaker of the lands in dispute for Adansi. In the Courts of West Africa Banka applied to be joined as co-defendants with Adansi and were joined accordingly, but they were not represented before the Board.
The question in this appeal was whether it was open to Akim Abuakwa and Muronam to litigate in this action the title to the lands in dispute. Adansi said that the title to the lands in dispute was fought out 16 years ago in proceedings between Muronam and Banka. In that earlier case Muronam failed to establish its title to the lands in dispute. The question was whether that finding precluded the paramount stool of Akim Abuakwa from now claiming title against Adansi. Adansi said that Akim Abuakwa were so precluded on one or other of two grounds: (1) estoppel by res judicata on the ground that Muronam was a party to the previous proceedings and Akim Abuakwa was a privy to them; or, alternatively, (2) estoppel by conduct on the ground that the Akim Abuakwa knowingly stood by whilst the title was fought out by their subordinate in the previous proceedings and it would be inequitable to allow them to bring up the question again. Jackson J. upheld the contention of Adansi on the second ground. The West African Court of Appeal (Foster Sutton P., Coussey J.A. and Manyo-Plange J.) upheld the contention of Adansi on both grounds. The result was that the claim of Akim Abuakwa and Muronam had been dismissed. They appealed to Her Majesty in Council.
1957. July 2, 3, 4, 10. Phineas Quass Q.C. and Gilbert Dold for the appellants.
Ralph Millner for the first respondent.
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