Published online by Cambridge University Press: 28 July 2009
In Ghana most land cases are determined according to Ghanaian customary law. One question, however, has since early colonial times always been decided by common-law principles: the question whether a party is estopped by previous litigation from making a claim.2 Thus a court often applies common law to determine whether an issue may be raised, and then, having given an affirmative answer, applies customary law to determine its validity. The courts have never stated any legal justification for this application of common-law rules in essentially customary-law cases. The early colonial judges, perhaps because they were British lawyers, seem to have regarded the matter as self-evident. Later judges followed the earlier decisions, and since 1960 statute law has for convenience confirmed the practice.3
2 The term “common law” is used here, as in the statute law of Ghana, to include equity and English “statutes of general application” in force on July 24, 1874, as well as common law in the narrow sense: Interpretation Act, 1960 (C.A. 4), s. 17; Courts Decree, 1966 (N.L.C.D. 84), para. 93 (2). See Bennion, The constitutional law of Ghana (1962), Chap. 10 for further details.
3 Courts Act, 1960 (C.A. 9), s. 66 (3), now re-enacted in the Courts Decree, 1966 (N.L.C.D. 84), para. 64 (2).
4 Many of the Ghanaian cases are reviewed in Kom, “Res judicata through the cases”, (1967) Current Cases, No. 5, viii.
5 Matson, “The Supreme Court and the customary judicial process in the Gold Coast”, (1953) I.C.L.Q..47, at pp. 53–4.
6 Angu v. Attah (1916) P.C. 1874–1928, 43. See also Kujo v. Akogram (1898) Ren. 139, at p. 141.
page 81 note 1 It is unnecessary to discuss judgments in rem, to which different considerations apply: see Spencer, Bower, The Doctrine of Res Judicata (1924), paras. 209–50;Google Scholar, Halsbury, Laws of England (3rd ed. 1956), Vol. 15, paras. 366–71. Only two customary-law cases have been found in which estoppel in rem as applied: Tamakloe v. Nunoo  G.L.R. 115; Abrahams v. Akwei  G.L.R. 676. Two Ghanaian cases stating the basic principle for judgments in personam are: Angu v. Attah, above; Amissah v. Krabah (1936) 2 W.A.C.A. 30.Google Scholar
page 81 note 2 OforiAtta Hv. Boateng (1957) 3 W.A.L.R. 38; Taw v. Atta  G.L.R. 513.
page 81 note 3 Teboah v. Kwame, Land Ct., December 18, 1957. In a previous dispute judgment had been given against a family (a corporate person) represented by a member appointed to take charge of the property on their behalf. In the present dispute this decision was held to estop the properly appointed head of the family. Cf. Amissah v. Krabah (1936) 2 W.A.C.A. 30, where the previous litigants had not been proper representatives.
page 81 note 4 See e.g.: Bediaku v. Krakue (1924) D.C. ‘21-’25, 92 (on the representation of a stool); Amissah v. Krabah, above (on the representation of a family); Biei v. Assah Land Ct., November 9, 1950 (on the representation of a customary-law company).
page 81 note 5 Angu v. Attah (1916) P.C. 1874–1928, 34.
page 81 note 6 Kwao v. Coker (1931) 1 W.A.C.A. 162; Abbey v. Ollennu (1954) 14 W.A.C.A. 567. Both decisions rely on the English case Mercantile Investment v. River Plate Trust Co.  1 Ch. 578.
page 81 note 7 Neltey v. Odjidja  G.L.R. 261. The relevant facts were as follows: in 1920 I.F. purported to sell the land to N; in 1921 I.F. purported to sell it to the 2nd defendant; in 1936 the N.K. Family obtained a declaration of title against I.F., the judgment being binding on N by estoppel by standing by during litigation (for which see the next section). The successor in title of the N.K. Family now sued the 2nd defendant and the 2nd defendant's successor in title. It was held that the defendants were not estopped by the 1936 judgment because it was after the sale to the 2nd defendant. But it was held (at p. 267) that the judgment stood in proof of the N.K. Family's ownership, and could be defeated only by proof of a superior title in the defendants. This they failed to establish. See also Ababio IIv. Catholic Mission (1935) 2 W.A.C.A. 380, upheld sub nom. Akyin III v. Ababka II (1939) 5 W.A.C.A. 49.
page 81 note 8 Ababio v. Kanga (1932) 1 W.A.C.A. 253. See also e.g. Jones v. Lewis  1 K.B. 328, 345.
page 82 note 1 Information on this institution is given in: Field, “The agricultural system of the Manya-Krobo of the Gold Coast”, (1943–4) 14 Africa 54, which has been stated by the Manya Krobo Paramount Chief to be a correct description; Nene Azu Mate, Kole, “Historical Background of Krobo Customs”, Transactions of the Gold Coast and Togoland Historical Society (1952–5) Vol. I, 133;Google Scholar, Manshard, “Afrikanische Waldhufen und Waldstreifenfluren”, 1961 Die Erie 246;Google Scholar, Hill, The migrant cocoa farmers of Southern Ghana (1963) passim;Google Scholar, Huber, The Krobo (1963), pp. 39–40.Google Scholar
page 82 note 2 , Manoukian, The Ewe-Speaking People of Togoland and the Gold Coast (1952), pp. 16–17.Google Scholar
page 82 note 4 It apparently does not exist among groups following a matrilineal system of succession: Hill, op. cit., pp. 52–53, 199–200.
page 82 note 5 Manshard, p. 246; Hill, op. cit., p. 39.
page 82 note 6 The system is described in Baah v. Sackitey (1950) D.C. (Land) ‘48-‘51, 284.
page 83 note 1 See e.g. Kwao v. Coker (1931) 1 W.A.C.A. 162, judgment of Sawrey-Cookson, J. It is not clear whether the company was a Krobo company. However, even if it was not, it is clear that it was constituted on the same principles as Krobo companies. See also Biei v. Assah, Land Ct., November 9, 1950, reversed on a different point (1953) 14 W.A.C.A. 303, in which the relevant facts were the same.
page 83 note 2 See further Woodman, “The allodial title to land”, (1968) 5 U.G.L.J. 79.
page 83 note 3 This grouping does not necessarily coincide with the hierarchy for political purposes.
page 83 note 4 (1952) 14 W.A.C.A. 149. The decision was upheld on a different ground subnom. Ofori Atta II v. Abu Bonsra II (1957) 3 W.A.L.R. 171,  A.C. 95. The case is discussed by , Allott, Essays in African Law (1960) 285–8, and will be discussed further below.Google Scholar
page 84 note 1 Thus in Osu, “rural” land (i.e., land not yet developed as part of the town) is vested in the Osu head stool alone, and not in any subordinate or “quarter” stools: R.E. Acquisition (1954) 14 W.A.C.A. 492; Akwei v. Awuletey  G.L.R. 231. Cf. contra , Ollennu, Principles of customary land law in Ghana (1962) 21–6.Google Scholar
page 84 note 2 In Kwao v. Coker (1931) 1 W.A.C.A. 162, Deane, C.J., preferred this approach; Coussey, J., who decided Biei v. Assah, Land Ct., November 9, 1950, relied on the other doctrine in Baah v. Sackitey (1950) D.G. (Land) ‘48-’51, 284, an identical case the following month; Atta v. Agyei (1952) 14 W.A.C.A. 149, was upheld on appeal on the ground of standing by during litigation. In most cases to which res judicata might have been extended, the courts have ignored it and applied the other doctrine: see e.g. Nkyi XI v. Darku IX (1954) 14 W.A.C.A. 438; all the cases discussed in the main text of the next section illustrate this. In more recent decisions where earlier suits were pleaded as estoppel, the courts have considered only the other doctrine, even when they have held it inapplicable: see e.g. Aryitey v. Ayeley  G.L.R. 225.
page 84 note 3 In Kwao v. Coker, above, Sawrey-Cookson, J., mentioned this point, but did not explain fully why it was inapplicable. Deane, C.J., gave it as a reason for preferring the doctrine of standing by during litigation.
page 85 note 1  G.L.R. 7.
page 85 note 2 (1947) D.C. (Land) ‘38-’47, 283, upheld sub nom. Kwasi v. Nkansah II (1948) 12 W.A.C.A. 303, and on a further appeal sub nom. Kwasi v. Twum (1953) 12 W.A.C.A. 309.
page 85 note 3 Other cases illustrating the problems which can arise from customary-law decisions are: Sappor v. Narnor (1949) D.C. (Land) ‘48-‘51, 197; Djokoto IV v. Saba III (1950) D.C. (Land) ‘48-‘51, 245; Bassil v. Honger (1954) 14 W.A.C.A. 569; Okadjokrom v. Atonkor (1956) 1 W.A.L.R. 162; Yiboe v. Duedu (1957) 2 W.A.L.R. 294, reversed C.A., November 4, 1957, a further appeal being dismissed  G.L.R. 347,  1 W.L.R. 1040; Aperade Stool v. Achiasi Stool (1957) 3 W.A.L.R. 204, reversed sub nom. Frempong v. Effa  G.L.R. 205; Anhrah v. Ankrah (1966) C.C. 50.
page 86 note 2 Kwaku v. Sacker (1912) D. & F. ‘II-‘16, 37, reversed for lack of jurisdiction (1912) Ren. 755; Asenso v. Nkyidwuo (1956) 1 W.A.L.R. 243; Amoabimaa v. Badu(1956) 1 W.A.L.R. 277, upheld  G.L.R. 506.
page 86 note 3 Akomea v. Bin (1958) Ollennu, supra, p. 186; Egyin v. Aye, S.C., December 2, 1962, on estoppel by standing by during litigation; Ankrah v. Ankrah (1966) C.C. 50. But cf. Du v. Yaw, C.A., November 11, 1957 (where in the lower court a copy of certain criminal proceedings had been accepted as evidence of a statement of a deceased person against his own interest; held, the English authorities showed that such declarations were admissible only on proof that the declarant was occupier of the land, and the record should have been excluded); Kannin v. Kumah  G.L.R. 54.
page 86 note 4 Odonkor v. Allotey, D.C., July 1, 1941, upheld (1941) 7 W.A.C.A. 160 (holding that if a person sued for a declaration of title to Blackacre, but described the boundaries of Whiteacre, and was given judgment in these terms, the case gave him title to neither plot). See also Serwah v. Kesse (1959) Ollennu, supra, p. 201, upheld id. 208, [i960] G.L.R. 227 (where it was difficult to discover the point decided by a previous case). The question is discussed by Spencer Bower, op. cit.
page 86 note 5 Yiboe v. Duedu, supra; per Van Lare, Ag.C.J., in the Court of Appeal, and by the Privy Council, citing Shoe Machinery Co. v. Cutlan  1 Ch. 667.
page 86 note 6 Yiboe v. Duedu, per Van Lare, Ag.C.J., in the Court of Appeal, citing Everest and Strode, Estoppel (2nd ed. 1923), 91. See also on this point Sappor v. Nanor (1949) D.C. (Land) ‘48-‘51, 197.
page 86 note 7 Sintim v. Kwantreng, W.A.C.A., February 5, 1953 (where after an adjournment the case had been continued by an improperly constituted court). For English authorities, see Spencer Bower, op. cit., Chap. IV; Halsbury, op. cit., para. 384.
page 86 note 8 Allotey v. Abrahams (1957) 3 W.A.L.R. 280. For English authorities, see the preceding note.
page 86 note 9 Sasraku v. Okine (1930) I W.A.C.A. 49, citing English cases and Spencer Bower, loc. cit. See also Fosu v. Kramo (1966) C.C. 33, relying on a recent Privy Council decision on the effect of default judgments.
page 87 note 1 Cap. 139, Laws of the Gold Coast (1951 ed.), now repealed. See Shai Hills Acquisition (1957) Ollennu, op. cit., p. 177, upheld C.A., June 25, 1959. Under the Forests Ordinance, cap. 157, s. 10, the Reserve Settlement Commissioner is constituted a court when hearing claims to title to land. Thus his decision also can support a plea of res judicata: Inkum v. Otu IX, Land Ct., October 31, 1958, upheld sub nom. Kyei v. Otu, C.A., January 11, 1960.
page 87 note 2 See e.g. Kwasi v. Larbi (1952) 13 W.A.C.A. 76,  A.C. 164; see also Assampong v. Amuaku (1932) 1 W.A.C.A. 192.
page 87 note 3 Djaka v. Amemadokpor (1954) D.C. (Land) ”52–”55, 191; Matson, supra; Hannigan, “The impact of English law upon existing Gold Coast custom”, (1956) J.A.A. 126; Allott, op. cit., Chap. 6. Cf. Ollennu, “The structure of African judicial authority and problems of evidence and proof in traditional courts”, Gluckman (ed.), Ideas and Procedures in African Customary Law (1969), 110 at pp. 112–117.
page 87 note 4 (1871) L.R. 2 P. & M. 327. See also the leading case In re Lart, Wilkinson v. Blades  2 Ch. 788.
page 87 note 5 1 W.A.C.A. 162.
page 88 note 1 Ollennu, op. cit., Chap. 4; Woodman, “The scheme of subordinate tenures of land in Ghana”, (1966–7) 15 Am. J. Comp. L. 457.
page 88 note 2 1 W.A.C.A. 253.
page 89 note 1 See also Sasraku v. Okine (1930) 1 W.A.C.A. 49, stating that a chief might on behalf of all citizens with an interest in stool lands.
page 89 note 2 Land Ct., November 9, 1950.
page 89 note 3 (1950) D.C. (Land) ”48–”51, 284.
page 89 note 4 Supra, p. 83, n. 4.
page 89 note 5 (1957) 3 W.A.L.R. 171,  A.C. 95.
page 89 note 6 Allott, op. cit., pp. 287–8, suggests that it would have been simpler for the Privy Council to base its decision on the doctrine of res judicata. However, as suggested above, it is questionable whether res judicata should apply here. Even if it did, it may have been more helpful of the court to use the opportunity to explain more fully the developing doctrine of estoppel by standing by during litigation.
page 90 note 1 See also the similar case Nkyi XI v. Darku IX (1954) 14 W.A.C.A. 438.
page 90 note 2 (1958) 3 W.A.L.R. 389, remitted for re-hearing because of lack of evidence, 3 W.A.L.R. 392 n. It was not clearly stated that the present doctrine was in issue, but it seems more likely to have been this than the doctrine of res judicata.
page 90 note 3 (1932) 1 W.A.C.A. 253, discussed above.
page 90 note 4  G.L.R. 305.
page 90 note 5 The case was somewhat different from others, in that the subordinate stool was admitted to have a right to possession. The question was whether it held as a licensee of another head stool, paying tribute, or as an owner of the allodial title together with its own head stool. The subordinate stool having supported the other head stool in the previous litigation, it had weakened its own position further than it would have done by mere inaction. Ofori Atta II v. Abu Bonsra II was followed in a recent case where the material facts were the same: Kyei v. Otu IX, C.A., January 11, 1960. See also the Nigerian case Esiaku v. Obiasogwa (1952) 14 W.A.C.A. 178, where it was held that a customary-law pledgor might be bound by litigation by his pledgee.
page 90 note 6 Woodman, “The formalities and incidents of conveyances in Ghana”, (1967) 4 U.G.L.J. 1, 6–9.
page 90 note 7 (1951) D.G. (Land) ”48–”51, 393.
page 91 note 1 14 W.A.C.A. 143.
page 91 note 2 (1871) L.R. 2 P. & M. 327.
page 91 note 3 See further below.
page 91 note 4 Akpaku v. Gabienu (1953) D.C. (Land) ”52–”55, 167. The parties were stools. In a previous case a purchaser from a citizen of the plaintiff stool had sued a person claiming through the defendant stool. The defendant stool was joined as a co-defendant. The decision of the native court which determined the case was:
“It is ordered that plaintiff to see his vendors for his purchase money, and if his vendors think, they are owners of the land, to take action against the co-defendant.”
In the present case it was held that the plaintiff stool was not bound by that decision, since it did not derive title from the plaintiff, nor take part in the proceedings. The court held that Akwei v. Cofie could be distinguished on the ground that in the present instance the stool had taken no part in the previous litigation. The previous decision seems in any case to have been indecisive. Probably the native court felt that it could not properly decide the question unless the plaintiff stool was a party, and so made an order designed to promote conciliation. Other cases are: Amegbletor v. Gokah (1954) D.C. (Land) ”52–”55, 235, Ollennu, op. cit., p. 175; Abrahams v. Akwei  G.L.R. 676; Poku v. Amoah (1965) C.C. 109.
page 91 note 5 (1956) 2 W.A.L.R. 192.
page 91 note 6 (1947) D.C. (Land) ”38–”47, 344, reversed on grounds not now relevant, W.A.C.A., January 11, 1949.
page 92 note 1  G.L.R. 261.
page 92 note 2 At p. 266.
page 92 note 3 Poku v. Amoah (1965) C.C. 109. There the defendant mortgaged the property, and it was sold to the plaintiff under a purported exercise of the mortgagee's power of sale. The defendant then successfully sued the mortgagee for a declaration that the sale was unlawful, the plaintiff participating in the litigation. It was held that the plaintiff was bound by the decision, although not strictly a party. The mortgagee was not a vendor in the strict sense, since he did not purport to convey a title vested in himself. However, this distinction does not seem to be material. If the implication in Akwei v. Cofie were correct, it is difficult to see how the plaintiff could have been estopped.
page 92 note 4 Agbade v. Awuma (1953) D.C. (Land) ”52–”55, 135; Allotey v. Essien (1958) 3 W.A.L.R. 527.
page 92 note 5 This aspect of Nettey v. Odjidja was followed in Ngmati v. Adetsia  G.L.R. 323, Ollennu, op. cit., p. 217, reversed on a different point  G.L.R. 33. The judge was Ollennu, J., who decided Allotey v. Essien.
page 93 note 1 Ababio II v. Catholic Mission, supra.
page 93 note 2 For “in the same interest” statements, see e.g.: Wytcherley v. Andrews (1871) L.R. 2 P. & M. 327; Akwei v. Cofie (1952) 14 W.A.C.A. 143; Atta v. Agyei (1952) 14 W.A.C.A. 149; Ofori Atta II v. Abu Bonsra II (1957) 3 W.A.L.R. 171,  A.C. 95 (on appeal from the previous case); Nettey v. Odjidja  G.L.R. 261. For the “co-terminous interest” statements, see e.g.: Kwao v. Coker (1931) 1 W.A.C.A. 162; Nkyi XIv. Darku IX (1954) 14 W.A.C.A. 438.
page 93 note 3 This test was referred to expressly in: Wytcherley v. Andrews, supra; In re Lart, Wilkinson v. Blades  2 Ch. 788; Akwei v. Cofie, supra; Atta v. Agvei, supra; Nkyi XI v. Darku IX, supra; Yaw v. Atta  G.L.R. 513.
page 93 note 4 Courts Ordinance (cap. 4, Laws of the Gold Coast (1951 ed.)), Second Schedule, Order 3, Rule 5 (in force until 1954); Supreme Court (Civil Procedure) Rules, 1954 (L.N. 140A) Order 16, Rules 1, 4. For the application of the latter rules in the cases, see: Majolagbe v. Larbi  G.L.R. 190; Akwei v. Awuletey  G.L.R. 231; Amoako Atta II v. Osei Kofi II  1 G.L.R. 384.
page 94 note 1 Supra
page 94 note 2 Supra
page 94 note 3 (1950) D.C. (Land) ”48–”51, 284.
page 95 note 1 (1952) 14 W.A.C.A. 143.
page 95 note 2 Kwao v. Coker (1931) 1 W.A.C.A. 162 (implied by Deane, C.J.); Cobblah v. Okraku  G.L.R. 679.
page 95 note 3  2 G.L.R. 187.
page 95 note 4 There had also been a dispute in 1920, but it was not of great importance: the present appellant's predecessor had given evidence, and had not asserted the title now claimed by the appellant, although such an assertion might have been expected, if true.
page 96 note 1 See e.g.: Nkyi XI v. Darku IX (1954) 14 W.A.C.A. 438; Egyin v. Aye,  2 G.L.R. 187.
page 96 note 2 See e.g.: Ofori Atta II v. Abu Bonsra II (1957) 3 W.A.L.R. 171,  A.C. 95.
page 96 note 3 Amegbletor v. Gokah, supra, raises, but does not discuss, the question of imputed knowledge.
page 96 note 4 (1871) L.R. 2 P. & M.327.
page 96 note 5 Uwalaka v. Agba (1955) 15 W.A.C.A. 63.
page 96 note 6 See supra, p. 86, n. 3. Egyin v. Aye  2 G.L.R. 187, was a case on the present doctrine.
page 96 note 7 See e.g. Atta v. Agyei, supra, where both were applied.
page 96 note 8 By Adumua-Bossman, J.: Inkum v. Otu IX, supra; Panyin v. Asani II  G.L.R. 305. The distinction between the doctrines was emphasised by Ollennu, J., in Abrahams v. Akwei  G.L.R. 676.
page 97 note 1 S.C., December 2, 1962. In re Lart, Wilkinson v. Blades  2 Ch. 788, is another example of this distinction. The case concerned a different annuity fund from that involved in the previous dispute, and therefore did not have the same subject-matter.
page 97 note 2 It may be added also that estoppel by record is a doctrine of common law, as distinct from equity. Estoppel by standing by during litigation is by origin a doctrine of the probate courts and of equity. However, this does not seem to have any practical significance in Ghana.