KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE. (Read by the President). In an oath case commenced in the Tribunal of the Omanhene of Akyem Abuakwa the plaintiffs claimed against the defendant-
“(a) A declaration of title to all that piece or parcel of land situate “lying and being at Akanteng near Begoro in Akyem Abuakwa State “and bounded on the North by land belonging to Asafoatse Kofi Toh, “on the South by land belonging to Gyangwaste, on the East by “Begoro Stool land and on the west by land belonging to the plaintiff.
“(b) £100 damages for trespass committed by the defendant, his “agents or servants on the said land.
“( c) An injunction to restrain the defendant, his agents or servants “from entering the said land”.
The case was transferred to the Divisional Court, Accra, by order of the Provincial Commissioner’s Court, Eastern Province. Judgment was given in the Divisional Court granting the plaintiffs a declaration of title to the land in dispute and an injunction as prayed. No damages were granted. Against that judgment the defendant has appealed to this Court upon two main grounds, namely (1) Estopple by res judicata and by admissions; and (2) weight of evidence.
As to the first the proceedings relied upon to establish estopple be res judicata are those appearing in Exhibit “B”. This was an oath case tried in 1927 in the Highest Native Tribuknal of Manya Krobo. The present defendant was compliant, and of the three accused in the 1927 case states “the complainant swore the “Krobo National Oath (Kromo Ho) upon the accused not “to go and demarcate the boundary between them in the absence “of the complainant and his people”. The Tribunal found the accused guilty and sentenced them to pay a fine of “six sheep “each with two bottles” and to pay the costs of the complainant.
The appellant contends that case was in reality a civil case concerning the same piece of land as that now in dispute and that since it was decided in favour of the present defendant and against the present plaintiffs or their privies it operates as an estoppel by res judicata.
But it is abundantly clear that the 1927 case was not a civil case at all and did not purport to decide anything as regards any land, it was purely a criminal case in which the accused were charged with neglecting or ignoring the national oath. The case clearly could not operate as an estopple by res judicata to prevent the question of the ownership of land in dispute being fought out in the proper Tribunal. Nor do we find anything in the record of that case which could estop the plaintiffs from setting up the case which they did in the Court below.
As to the weight of evidence the learned trial Judge found that the defendant’s case was fictitious and we seen no reason to doubt that this was so.
The defendant alleges that he bought his land (including the area now in dispute) from the Begoro Stool long before the plaintiffs bought theirs an were told to cultivate in an eastward direction towards the defendant’s land; that when the plaintiffs bought their land the defendant’s boundaries had already been demarcated for many years and the western boundary was as shown and edged green in Exhibit 1; but (1) his story conflicts with the admitted custom. The custom is that, after the bargain of sale and purchase is complete, the purchaser s bottom boundary (in this case the defendant’s eastern boundary) is demarcated and the direction of the two side boundaries indicated but the points to which they respectively extend are not fixed then; when payment of the purchase price has been completed the “top” boundary (in this case the western boundary) is demarcated between two points ,,-hich are then fixed, and Guaha is then cut, and that has the effect of passing ownership. Although it is admitted that this is the custom, the defendant himself says that the boundary of the fourth (“ top”) side of his land was cut by one Bwedu “about one year after we bought the land” (1891) and “this was before we had finished paying purchase price"; and that Guaha had been cut before the “ last two stones were cut “, (i.e., the northern and southern boundary points fixed). (2) His witness Nakabo’s story is altogether different from his own. Nakabo says “When we finished paying our purchase price the Begoro Chief was Thompson (i.e., Antwi Awah I) “. But Antwi Awah I sat upon the stool alter the plaintiffs had bought their land, i.e. many years after 1891. (3) It is significant that defendant did not call a single witness from the vendor stool to speak to the demarcation of his" top" boundary or the cutting of Guaha.
On the other hand the plaintiffs' story is consistent and in accordance with the established custom. We agree with the learned trial Judge’s findings upon the facts.
Grounds 6 and 7 of the Grounds of Appeal attack an Exhibit (N O. 2) put in by the respondents at the trial namely the case of Odikro Kwame Mensah v. Akuatse Tenor tried in the Tribunal of the Omanhene of Akyem Abuakwa in 1928. The only significance of this case is that plaintiffs suggest that it shows that the Begoro Stool successfully sued the defendant’s predecessor in respect of land to the East of the land now in dispute, thus indicating that the defendant had not got a good title (working from west to east) even up to the red line in Exhibit 1, still less up to the green line. We find no substance in these grounds.
We think however that the judgment of the Court below requires amendment in a matter of detail. The plan Exhibit 1 should be referred to in the .judgment, and should be appended to it and form part of it. Moreover reference to the plan shows that actually there are two pieces of land (one comparatively large and the other very small) in dispute. It is ordered, therefore, that the judgment be amended so that the relief granted shall read as follows: - The plaintiffs are granted- (1) A declaration of title to all those two pieces or parcels of land situate, lying and being at Akanteng near Begoro in Akyem Abuakwa State more particularly delineated on the plan Exhibit 1 in this case, which plan is annexed to and forms part of this judgment, and thereon, as to the northernmost piece or parcel, edged green on the north-eastern and western sides and red on the eastern side (the western and eastern sides meeting in a point in the south) and, as to the southernmost piece or parcel, edged green on the north-western and western sides and red on the south-eastern side (the two sides meeting at a point both in the north-east and south-west), and
(2) An injunction to restrain the defendant, his agents or servants from entering the said land.
Apart from this amendment the appeal is dismissed with costs assessed at £61 19s 3d.