BARTHOLOMEW FOSO
V.
SIR TSIBU DARKU IX

JELR 81360 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
 · 
Other Citations
1952 14 WACA 438-441
CORAM
FOSTER-SUTTON, P., COUSSEY, J.A., AND WINDSOR-AUBREY, J.
Core Terms Beta
boundary
judgment
party
title
court
land
sub-chiefs
appeal
issue
sub-chief
cape coast
chief kurankyi minta iii
concession enquiry
omanhene of assin atandasu state
chief kurankyi minta
concessions division of the land court
grant of the concession
grantors of land
grantor stools
necessary steps
ohene of assin yankumasi
omanhene of assin apimanim state
opposer's stool
reason of the judgment of hall
such agreement
support of the appeal

Coussey, I.A. This Concession Enquiry raises an issue as to title to land between the Omanhene of Assin Atandasu State and two of his sub-chiefs, the Ohene of Assin Yankumasi and the Ohene of Foso, as grantors of land at Foso, and the Omanhene of Assin Apimanim State as opposer, who opposed the grant of the Concession on the ground that the land granted Included an area a portion of which is attached to the Opposer's Stool and that the grantor Stools” are not the only persons entitled in law to grant the Concession”.

At the hearing of the enquiry in the Concessions Division of the Land Court, at Cape Coast in the Central Judicial Division, two issues for decision were, by consent, settled by Counsel for the parties, namely:- (i) whether or not the opposer, the Omanhene on behalf of the Stool or State of Assin Apimanim, is estopped from opposing the grant by reason of the judgment of Hall, J., in 1924 in the suit of Chief Katurka Yardom v. Chief Kurankyi Minta III;

(ii) whether or not the land, the subject of the Concession, is within the Foso and Yankumasi side and, incidentally, of the Assin Atandasu side, of the boundary demarcated by the judgment of Hall, J., or within the Assin Apimanim side of that boundary.

To determine these issues a copy of proceedings and judgment in the Divisional Cape Coast, in Chief Katurka Yardom v. Chief Kurankyi Minta III, and showing the boundary between the two States which had been surveyed demarcated by Government as a result of the decision in the suit referred were put in evidence.

After hearing the evidence of the grantors' witnesses and inspecting the land Court held, in effect, that the land granted fell on the Kurankyi Minta-Assin Atandasu side and not on the Katurka Yardom-Assin Apimanim side of the boundary demarcated as aforesaid and that the opposer, the Stool or State of Apimanim, was therefore estopped, by virtue of the judgment referred to, was upheld on appeal, from laying claim to the area granted by the Concession.

From this decision, the opposer has appealed on numerous grounds, the substance of which may be summarised as follows:-

That the Court below was wrong in law in holding that the judgment of Hall, J. created an estoppel by record against the opposer appellant as he is not a privy of Chief Katurka Yardom or a party to the action before Hall, J., in 1924:-

(i) that judgment decided only the boundary between sub-chiefs Katurka Yardom and Kurankyi Minta III and was therefore not binding upon the opposer, the Paramount Stool or State of Assin Apimanim, which was not party to the agreement between the sub-chiefs which is referred to in the judgment appealed from and that in law such agreement does not bind the opposer;

(ii) because the judgment of Hall, J., could not and did not define any boundary, as such, between the States of Assin Atandasu and Assin Apimanim, that not being an issue in the suit of' Katurka Yardom v. KurankyiMinta III. support of the appeal it was argued that the appellant's Paramount Stool his predecessor's representative in 1916 and 1921, when taking part in the boundary settlement, did not assert for the Stool of Assin Apimanim a claim of title to land to the west of the agreed boundary line. (iii) He is further estopped because his interests, if any, as has been demonstrated are coterminous with those of the Ohene of Assin Akropong represented in the 1924 suit by Katurka Yardom. A person may be bound by a judgment though not a party to it, if he is in the same interest as a party and might, if he had chosen to take the necessary steps under Order 3, rule 5 of the Rules of Court, have been admitted as a party- Farquharson v. Seton (1) and In re Lart: Wilkinson v. Blades (2). As Lord Penzance said in Wytcherley v. Andrews (3), “That principle is founded on justice and common sense”. It is observed also that the Opposer-appellant did not call evidence and did not prove at the enquiry any title in his Paramount Stool upon which his ground of opposition that part of the land is attached to his Stool could be founded. The issues were therefore rightly decided and I would therefore dismiss this appeal with costs allowed at £42 11s. 0d.

Foster-Sutton, P. I concur. Windsor-Aubrey, J. I concur.

Appeal dismissed.