JELR 67087 (CA) 1

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V.
MOSES
(1985) JELR 67087 (CA)

COURT OF APPEAL · JULY 15, 1985 · GHANA

CORAM

APALOO C.J.,MENSA BOISON JA,ABBAN J.A.

APALOO C.J.

In the north-east of Accra lies a suburban building land. It is called Mamobi. The title to that land is
vested in the Osu stool. It is the occupant of that stool acting with the consent and concurrence of
the stool elders that can make a valid alienation of any portion of that land.

On 17 March 1960 that stool by a deed, conveyed a portion of the land approximately 85 feet by
90 feet to a man named Abudulai Kotokoli in consideration of the payment by him of the sum of
twelve guineas. To the deed was attached a site plan which more or less identified the land. By a
law passed in 1962, the grant could not be accorded legal effect until it was registered. It is the
Land Registry Act, 1962 (Act 122). In apparent compliance with section 24 of that legislation,
Kotokoli registered the deed in 1968. The estate sought to be conveyed to him was described in
the recital as “an absolute grant and conveyance” but by the words of the habendum, he was “To
have and to hold the said land and hereditaments hereby granted or expressed to be and every
part thereof unto and to the use of the grantee his heirs, successors and assigns forever.”

There then followed the usual covenant for title and one for quiet enjoyment. There is no
reservation of any sort to the Osu stool and there can be little doubt that the interest conveyed was
absolute title. The stool divested itself of its ownership in favour of Kotokoli. One of the normal
incidents of ownership, is the right of alienation. Kotokoli for his part, exercised that right. By a

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deed dated 10 March 1976, he conveyed the identical plot of land to one Hamidu for a like estate
in consideration of the sum of ¢500. It was a conveyance on sale and Hamidu was therein
described as a purchaser. He also complied with Act 122 and registered his title deed in the same
year, that is 1976. On 5 August 1981, the said Hamidu as vendor, conveyed the self-same plot to
the second appellant in consideration of the sum of ¢6,000. It was also an absolute sale and
conveyance of the self-same title he had himself obtained from his vendor, Kotokoli. The second
appellant, as his predecessors before him, also duly registered that deed in the Deeds Registry.

The evidence shows that before the second appellant bought the land from Hamidu, it was vacant
and unoccupied. So the second appellant was parking cars belonging to the first appellant
company there. Hamidu challenged his right to do so, and laid claim to the land. Shortly
afterwards, he offered to sell the plot to the second appellant. After conducting a search in the
Deeds Registry and apparently feeling satisfied that Hamidu had a good title to the plot, the
second appellant agreed to buy and proceeded to purchase the land from Hamidu. The evidence
of the second appellant shows that there was no structure of any sort on the land when he
purchased it. But after acquiring title, he deposited gravels on it.

The exercise of this act of ownership was noticed by the respondent, and it is this that provoked
this litigation. On 5 June 1984 the respondent (hereafter called the plaintiff) issued out of the circuit
court, a writ in which he sought against both appellants (hereafter called the defendants)
“declaration of title to the ownership and possession” of a land he then described and damages for
trespass. As clearly the plaintiff was not in possession of the land at the time, but conceived
himself as having a better right to possession than the second defendant, he also sought “an order
for recovery of possession and a perpetual injunction ...” The plaintiff bases his title on a customary
grant made to him by a man named Adokwei Saka. This grant was made on 20 January 1955, and
was evidenced in writing (exhibit A). It reads:

“I the undersigned Adokwei Saka of Mamobi (accredited caretaker of Mamobi lands) have
this day received from C.A. Moses the sum of £45 ... being customary rum for a plot of land
measuring 100 feet by 100 feet more or less granted to him.”

The boundaries of the land were then given. They did not relate those boundaries to any physical
features, but persons who were named as boundary owners. There was no site plan of this land.
The document was marked by Adokwei Saka who was described as accredited caretaker.

The description of Saka as caretaker shows that he did not claim, ex facie, title to the land in his
own right. He was apparently looking after the land for some person or entity he did not then
disclose. He did not say what was the nature of the grant to the plaintiff for which he received the
customary rum, nor is there anything to show that he put the plaintiff in possession of the land. The
pleadings filed on behalf of the plaintiff in this suit shows that the entity for which he claimed to be
the caretaker was the Osu stool. That was another way of saying that the title of the land was
vested in the Osu stool. At the date of the instrument, exhibit A, the Land Registry Ordinance, Cap.
133 (1951 Rev.), made provision for registration of instruments affecting land. But section 6 of that
law forbade the registration of instruments “unless it contains a description which shall include a
statement of the boundaries, extent, and situation of the land affected by it ...” In view of the
description of the land shown in exhibit A, it is an open question whether such a document could
have been registered under that legislation.

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As the plaintiff claimed ownership and recovery of possession of the land on the strength of the
grant from Saka, the second defendant, for his part, set against him his own title and possession.
He traced his title from his immediate vendor, Hamidu, through Kotokoli to the original conveyance
from the Osu stool. As that stool was undoubtedly the owner of the land on the showing of both
parties and as the second defendant but not the plaintiff traced his title by successive conveyances
to that stool, there should all things being equal, be no difficulty in holding that the second
defendant showed a good title to the land and the plaintiff showed none.

But the plaintiff says the second defendant ought not to be admitted to rely on title obtained
through Kotokoli because as against him, he had been adjudged by the circuit court to be the
owner of the land. The plaintiff therefore argued that as the second defendant was privy to Kotokoli
against whom he had obtained judgment in respect of the identical land, the matter was res
judicata and he was estopped thereby. The learned trial circuit judge, his Honour Sepenu, seems
to have sustained this plea although he did not speak clearly. The judge asked himself the
question whether Kotokoli had any valid title to the land which he could transmit to Hamidu, the
second defendant’s vendor. He held that he did not because the plaintiff had “sued Kotokoli in an
Accra Circuit Court and obtained judgment ex parte against him.” The judge did not say in respect
of what the plaintiff had obtained the judgment but he held that as the second defendant did not
appeal to have the ex parte judgment set aside, it stood against him. The judge was of the opinion
that had Kotokoli successfully taken either of these courses, he would have adjudged his title valid.
But in point of fact, Kotokoli sought to have the ex parte judgment against him set aside because
he claimed that he was not served with the writ. But on this, the then trial circuit judge, his Honour
Ansah-Twum, held against him.

The trial judge then concluded that the said Kotokoli had practised fraud on the plaintiff by a
process of reasoning which is not easy to follow. There was no encounter between the plaintiff and
Kotokoli beyond the ex parte judgment which the former had obtained against the latter. When
Kotokoli tried but failed to have that judgment set aside, he then proceeded to alienate the land to
Hamidu. It is possible to say that Kotokoli’s conduct in disposing of the land to Hamidu well
knowing that there was an ex parte judgment of a sort against him in respect of the land without
disclosing this to him could be open to question on ethical grounds. But it is difficult to see how this
can be said to be a “practice of fraud” on the plaintiff. Yet the judge held that this fraud disabled
Kotokoli’s deed of sale from enjoying priority “over the plaintiff’s earlier customary tenancy
agreement.”

From this somewhat distorted reasoning, the judge concluded that, “on the totality of the evidence
the plaintiff has proved his claim.” Judgment is accordingly awarded in his favour for the reliefs
claimed. That conclusion is curious, since the plaintiff’s claim was for “title to ownership and
possession” of the land in dispute. The judge found his grant was a “customary tenancy
agreement”, yet entered judgment for him on the “reliefs claimed.” He also awarded damages in his
favour for trespass although the judge did not find that the plaintiff was in possession. The
judgment contained so many unsatisfactory features that it did not surprise me that two days after
its delivery, the defendants appealed to this court to have it set aside.

Although it was rather obscurely expressed, the main ground on which the judgment against the
defendants was rested, was that of estoppel per rem judicatam. That holding was seriously
contested in this court. It was said that the judge’s holding on this issue was wrong and this error

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occasioned a substantial failure of justice. It was argued that default judgment of the type entered
against the second defendant’s predecessor-in-title could not preclude him or his privy from
establishing their title to the land and that at all events, the trial judge had no jurisdiction to adjudge
title to the land in the plaintiff’s favour and his ex parte judgment which purported to do so, was
void ab initio.

The plea of res judicata is part of our received law. The principle on which it is based, its subtleties
and refinements have been debated in our courts times without number. It is said to be based on
two policy grounds: first, that it is in the public interest that there should be an end to litigation and
secondly, that nobody should be vexed twice on the same matter. In view of the repetitive and
sometimes harrassing nature of litigation in this country, a rule of law which seeks to avoid this is
one of abiding value. But in a sense, the principle of estoppel confers mixed blessings. In some of
the older cases, estoppel was said to be odious because it prevented a suitor from relating the
truth. In Nokes, Introduction to Evidence (4th ed.) at p.213, the author says:

“Estoppel is a rule by which a party to litigation is stopped from asserting or denying a fact ...
It is thus a rule of exclusion, making evidence in proof or disproof of a relevant fact
inadmissible. An estoppel has been so described because a man’s own act or acceptance
stoppeth or closeth up his mouth to allege or plead the truth.”

In this particular case, there is hardly any basis for saying that either Kotokoli or his mediate
successor-in-title, the second defendant, had said or done any act why either of them should be
precluded from showing that they obtained their title to the land in dispute either directly or
mediately from the true owner, namely the Osu stool.

The particular species of estoppel set up against the defendants, is said to be by record. In
Spencer-Bower and Turner, Res Judicata (2nd ed.) at p. 9, para. 9 the rule is stated in these terms:

“The rule of estoppel by res judicata ... is a rule of evidence, and may thus be stated: where a
final judicial decision has been pronounced by ... a judicial tribunal of competent jurisdiction
over the parties to, and the subject-matter of, the litigation, any party or privy to such
litigation, as against any other party or privy thereto, ... is estopped in any subsequent
litigation from disputing or questioning such decision on the merit, whether it be used as the
foundation of an action or relied upon as a bar to any claim ...”

That is the sense in which the plaintiff set up this plea against the defendants. He averred in
paragraph 7 of the statement of reply that:

“... the said Abudulai Kotokoli being predecessor-in-title of the second defendant in this
present action in respect of the same piece of land which was the subject-matter of two circuit
court judgments, the issue or question of the plaintiff’s title to the same piece of land in this
present action is res judicata as between the plaintiff and the second defendant ...”

It is this plea that the learned circuit judge, in a not particularly enlightening judgment, sustained.
Ordinarily, this plea is available only after the issue has been determined in a contested action in
which both parties have been heard. But it has been held to apply even in cases where the
decision was reached in default of either of the parties.

In the older cases, it was consistently held that estoppel applied to default judgments whether the

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default was in appearance or pleading, once a valid decision was reached. Thus in the old case of
Aslin v. Parkin (1758) 97 E.R. 501 at 502, Lord Mansfield is reported to have said:

“That there is no distinction between a judgment in ejectment upon a verdict; and a judgment
by default. In the first place, the right of plaintiff is tried and determined against the defendant;
in the last, it is conferred.”

Accordingly, in an action for mesne profits, the defendant was held concluded by a default
judgment. All the older cases on this subject were to the same effect: see for instance Nosbit v.
Rishtou (1839) 113 E.R. 408; Kerr v. Williams (1885) 29 S.J. 681 and Lockyer v. Ferryman (1877) 2
App. Cas. 519, H.L.

That a default judgment has the same potency as estoppel as a judgment after a contested
hearing, was the beaten track of the eighteenth and nineteenth century decisions. In recent times,
judges have sought to limit the binding efficacy of estoppel in default judgments. Thus in New
Brunswick Railway Co. v. British and French Trust Corporation Ltd. [1939] A.C. 1, H.L. the House of
Lords refused to sustain a plea of estoppel by a previous default judgment obtained against the
respondents. In that case, Lord Maugham who delivered the leading speech said at 21:

“...an estoppel based on a default judgment must be very carefully limited. The true principle
in such a case would seem to be that the defendant is estopped from setting up in a
subsequent action a defence which was necessarily, and with complete precision, decided by
the previous judgment.”

The court held that the previous judgment which was set up as precluding the defendant company
was not so decided. This decision was given in 1938. More recently, the Privy Council in the
Malaysian case of Kok Hoong v. Leong Cheong Kweng Mines Ltd. [1964] 1 All E.R. 300, P.C.,
decided in 1964, followed the limiting effect of default judgment articulated by the House of Lords.
Lord Radcliffe, who spoke for the board on this subject said at 305:

“...a judgment by default speaks of nothing but the fact that a defendant for unascertained
reasons, negligence, ignorance or indifference, has suffered judgment to go against him in
the particular suit in question. There is obvious and, indeed, grave danger in permitting such
a judgment to preclude the parties from ever re-opening before the court on another occasion
... whatever issues can be discerned as having been involved in the judgment so obtained by
default.”

I have tried but failed to locate any local case in which this court or the Supreme Court has
pronounced upon the scope of an estoppel in a judgment obtained by default. In Fosu v. Kramo
[1965] G.L.R. 629, Hayfron-Benjamin J. (as he then was) sitting at the High Court, Sunyani refused
to permit a judgment obtained by default in a mortgage suit precluding from the defendant in a
subsequent action and in the process took his stand firmly on the principle enunciated on this
subject by Lord Radcliffe in the Kok Hoong case (supra).

I think the modern approach to judgment by default which the New Brunswick and Kok Hoong
cases typify, is a more suitable weapon for achieving the ends of justice and should be followed in
this country. If a judgment by default does not necessarily preclude the parties in a highly literate
and sophisticated society like England because the defendant may have been ignorant or negligent
or indifferent in the former action it must be an a fortiori in this country where the level of literacy

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and sophistication is much less than in England.

In the present case, Kotokoli, against whom the default judgment was obtained and which
judgment is said to estop his successors-in-title, was illiterate. This is shown by the fact that his
thumbprint was affixed to the vendee’s portion of the deed of conveyance executed in his favour by
the Osu stool. What would he understand by a formal document which commands him to “cause
an appearance to be entered” or suffer judgment in default? Even if he was capable of appreciating
the matter, he might well be indifferent about the whole process in the sure knowledge that he had
bought and obtained an unimpeachable title to the land from the true owner, i.e. the Osu stool. An
attempt by him to have the suit reopened so that his side of the matter may be heard, was refused.
In these circumstances, it ill-accords with one’s notions of justice that he should be forever barred
from showing that, as against the plaintiff, he had a valid title to the land. It would be a little
surprising if at the present day, a rational system of jurisprudence completely denied any hearing to
a person in Kotokoli’s position who could easily demonstrate that he has a perfect answer to his
opponent’s case.

In Spencer-Bower and Turner on Res Judicata (2nd ed.) at p. 48, para. 53 the learned authors
extracted the principle from the modern decisions on default judgment. They put it in these words:

“8. It seems clear from the judgments ... that while a default judgment will certainly estop the
defendant from denying that the plaintiff is not entitled to the relief which it has awarded to
him, it cannot be invoked to estop him by way of issue estoppel as to any question which is
not eadem questio ... But if the identical question arising in the second action actually arose
in the first, and has been or must necessarily be deemed to have been decided with
complete precision one way or the other as the foundation of the default judgment signed by
the plaintiff, then, at least while that judgment stands, that question is concluded between the
parties.”

That, as a general statement of the modern judicial approach to default judgment, makes good
sense and is broadly accepted.

The matter for consideration is: what question fell for determination in the 1968 suit between the
plaintiff and Kotokoli? That question was, as between the plaintiff and Kotokoli, who was the true
owner of the land in dispute? Was that question decided? A determination would involve a
reasoned consideration of the case put forward by both or either side. It is clear beyond the
possibility of controversy that that issue was not decided by the trial circuit judge. He did not even
profess to do so. Yet he decreed title and possession in favour of the plaintiff because he
conceived that he had legislative power derived from the rules of court to do so.

His power to make that “decision” was questioned before us and it was urged that on a proper
appreciation of the relevant procedure rules, he had no jurisdiction to adjudge ownership of the plot
in the plaintiff. The first rule of any relevance to this issue, is Order 13, r. 8 of the High Court (Civil,
Procedure) Rules, 1954 (L.N. 140A), and is in the following terms:

“8. In case no appearance shall be entered in an action for the recovery of land, within the
time limited by the writ for appearance, ...the plaintiff shall be at liberty to enter judgment that
the person whose title is asserted in the writ shall recover possession of the land ...”

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The writ and statement of claim in the 1968 suit were tendered in these proceedings (exhibit B).
The plaintiff asserted in that writ his “title to the ownership and possession of the land then in
dispute.” So as the then defendant, Kotokoli, made default of appearance, the court is empowered
by the clear provision of this rule to make an order granting him recovery of possession of the land.
The rule clearly designed, omitted to clothe the court with any power to make a declaration of title
in the plaintiff’s favour. In that suit, the judge did not, in terms, make a declaration of title but he did
so by necessary implication. The claim indorsed on the writ, in so far as material to this point,
reads:

“The plaintiff claims from the defendant as follows: (a) Declaration of the plaintiff’s title to the
ownership and possession of all that piece or parcel of land...”

There was indorsed on the writ, claims for other incidental reliefs. The judgment as recorded, reads
as follows,

“Upon reading the affidavit filed in support of motion ... judgment is hereby entered for the
plaintiff for the piece of land described in the writ of summons ...”

Since ownership and possession were reliefs indorsed on the writ and a global judgment was
given for the plaintiff, it stood to reason that the judgment granted both the ownership and
possession sought. At all events, that is how the plaintiff understood it and that is why he averred
in his reply that his title to the land was concluded by the judgment given against Kotokoli in the
1968 action.

But as legal concepts, ownership and possession are not one and the same thing. Honore in his
essay on “Ownership” at p. 108 of Oxford Essays in Jurisprudence, defined ownership as “the
greatest possible interest in a thing which a mature system of law recognises.” It is clearly superior
to possession. At p. 293 of Salmond on Jurisprudence, (12th ed.), the author contrasts the two
concepts in these words:

“These two concepts of ownership and possession, therefore, may be used to distinguish
between the de facto possessor of an object and the de jure owner, between the man who
actually has it and the man who ought to have it. They serve also to contrast the position of
one whose rights are ultimate, permanent and residual with that of one whose rights are only
of a temporary nature.”

That these are not mere academic concepts, is shown by the case of Emegwara v. Nwaimo (1953)
14 W.A.C.A. 347 where though the West African Court of Appeal was prepared to affirm a
judgment in favour of the respondents for possession and damages for trespass, it declined to
affirm a declaration of title which the court below also awarded in their favour. In that case Verity
C.J. who spoke for the court, inter alia said at 348:

“It is as well that it should always be borne in mind that the making of such a declaration is
discretionary and in the exercise of the Court’s equitable jurisdiction. A declaration of title will
only be made when the Court is fully assured first as to the precise nature of the title in
respect of which a declaration is sought and secondly that there is evidence by which the
Court is satisfied that a title of the nature claimed has been established.”

It is therefore tolerably clear that the court had no power on an application for judgment in default

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of appearance under Order 13, r. 8 to make more than an order for recovery of possession in the
applicant’s favour. Since no express provision is made by the other rules of Order 13 where title as
distinct from possession can be granted, the proper applicable rule is rule 12 of that Order. That
rule says:

12 “In all actions not by the rules of this Order otherwise specially provided for, in case the
party served with the writ does not appear within the time limited for appearance, upon the
filing by the plaintiff of a proper affidavit of service,... the action may proceed as if such party
had appeared ...”

That is another way of stating that the case should take its normal course. And in our adversary
system, the plaintiff who seeks a declaration of title must establish this by clear and acceptable
evidence whether or not the defendant against whom he seeks the relief was present or absent.
That is why it is trite learning that in a suit for declaration of title, the plaintiff must succeed on the
strength of his own case and not on the weakness of the defendant’s. It is plain on the record
exhibited in this case that the plaintiff led no evidence of title. The upshot of this is that the learned
circuit judge had no jurisdiction in the 1968 suit either under rule 8 or 12 of Order 13 to adjudge
title in the plaintiff’s favour. In the circumstances, the legal consequence of his making an order
which he had no power to make as settled quite clearly by the well-known and off-cited case of
Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C. is that the order is void.

Counsel for the plaintiff sought to avoid this result by a contention that if the granting of title to the
plaintiff in the 1968 action was irregular, it was the type that was curable under Order 70, r. 1 of
L.N. 140A and that we should not void it. I cannot agree. So far as the proceedings in the 1968
action went, the plaintiff did not take any step which was procedurally faulty. The writ was regularly
issued. To it, was attached a statement of claim. These documents were allegedly regularly served.
It was shown that Kotokoli, the then defendant, failed to enter appearance within the time limited by
the rules. The plaintiff was therefore entitled to move for judgment in default of appearance and he
regularly did so. What went wrong, was the relief that the court gave him. It was this that went
amiss, because in the exercise of its judicial power, the court proceeded to grant the plaintiff a relief
which it had no power to grant, namely declaration of title. In my opinion, there can be no escape
from it; the judgment of the circuit court dated 19 August 1968, and exhibited in these proceedings
as exhibit C, in so far as it purported to grant a declaration of title to the plaintiff in respect of the
land in dispute against Kotokoli, was absolutely void. It cannot be a valid foundation for a plea of
estoppel against the latter on an issue of ownership in the present action. It follows that if Kotokoli
was not estopped by that judgment, neither was his successor-in-title, the second defendant.

If that view is right, the case in the court below must be considered on the footing that no estoppel
applied. That only means that the evidence produced by the plaintiff must be looked at to decide
whether that evidence entitled him to the declaration of title which he sought.

The evidence of the plaintiff was given by his son who said he was representing his father.
According to him, his father bought the land in 1955 from one Saka whom he claimed was the
accredited representative of the Osu stool. He then gave the names of the boundary owners. He
did not call any of them. He said he did not have any site plan in respect of the land. He said Saka
was dead. He was challenged in cross-examination that Saka had no authority to sell Osu stool
land. He said he had; but he produced no representative of the Osu stool to support him on this.
He could not say why since 1955, his father did not seek to have the so-called sale regularised by

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obtaining proper document from the Osu stool. He did not say that Saka put his father in
possession of the land nor had he himself entered into possession of the disputed land at any time.
He produced the receipt his father was given when he allegedly bought the land. The receipt did
not say the land was sold to him and no evidence was led to show if any customary ceremony was
performed to indicate the sale.

If the transaction was not a sale, the plaintiff’s evidence failed to show what was the precise nature
of the interest that Saka passed to him. If an authorised agent of the Osu stool was alienating stool
land in 1955 to a non-subject of the stool, it is hard to believe that it would not be covered by a
proper registrable deed and a plan clearly identifying the land. The evidence led by the plaintiff in
proof of his title is so tenuous that no court, however charitable, can feel satisfied that he had
proved a sale of the land in dispute to himself. Because of the vagueness of the interest he
established in the court below, the trial judge thought he obtained a “parol customary tenancy
agreement.”

Quite apart from not leading any cogent evidence of title, the plaintiff could not lead any reliable
evidence to identify the land or to show its exact boundaries. He had no plan and apparently none
of his boundary owners was prepared to assist him identify the exact boundaries of the land shown
in his receipt. One of the acts which he claimed constituted trespass and for which the judge below
awarded him ¢6,000 damages was the erection by the second defendant of a wooden structure on
part of the land. The plaintiff said in evidence,

“I know the first defendant company. The structure of that company has taken a little part of
my land ... They have erected a wooden structure.”

The court visited the locus, apparently to verify this act of trespass. The court’s visit to the site
disproved this because the judge said,

“Upon the inspection of the land on 10 January 1985, it was found that the second defendant
has not erected any structure thereon.”

The plaintiff’s inability to show the exact land allegedly sold to him, is not surprising since he had
not entered into possession since 1955 nor obtained a site plan which identified the land. The
cases of Bedu v. Agbi [1972] 2 G.L.R. 238, C.A. and Akyem v. Adu [1976] 2 G.L.R. 63, C.A. show
that the onus is on the plaintiff to show the exact boundaries of the land in respect of which he
seeks a declaration. It seems plain that the plaintiff has entirely failed to discharge the onus of
proving not only the land in dispute was sold to him by the Osu stool, but has also failed to show
the boundaries of that land.

In contrast to the plaintiff’s tenuous case, the defendants produced documentary evidence which
showed a good root of title, that is little from the admitted previous owner—the Osu stool and the
various legal documents by which the legal estate was transmitted by the stool to Kotokoli, and
from him to Hamidu and from the latter to the second defendant.

All these documents were regularly stamped and registered. They all had attached to them, site
plans which identified the land. I think it a fair conclusion that the second defendant has shown as
good a title to the land in dispute as anyone may in this country. Accordingly, the judgment of the
court below adjudging the plaintiff the owner of the land and mulcting the defendants in damages

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for trespass, was wrong and ought to be reversed.

The second defendant by counsel invited us to make a declaration of title in his clients favour if we
should hold that the evidence justified this. I do not think we should accede to this plea. The
second defendant obtained full professional assistance in the court below and could have, if he had
been so advised, entered a counterclaim for title. He did not do so and his legal adviser may well
have thought it better tactics not to make a counterclaim and put himself under an obligation to
prove title with its attendant risks. In their appeal to this court, the only relief they seek in their
notice of appeal was put as follows,

“That the judgment of the court below be reversed and judgment entered for the defendant-
appellants.”

That relief, they should have and nothing more. Although this judgment proceeds on the clear and
unmistakable basis that the second defendant has proved that he is the true owner of the land and
indeed can meet a subsequent claim to the land against him by the plaintiff or his privy, by a plea
of res judicata, they should, for present purposes, content themselves with an order dismissing the
plaintiff’s claim and entering judgment for them. This difficulty is of their own making or more
accurately, their former legal adviser’s. It is a difficulty the respondents met in the well-known case
of Duedu v. Yiboe [1961] G.L.R. 346, P.C.

In view of what I have said in the foregoing paragraphs of this long judgment, the appeal succeeds.
I would set aside the judgment of the court below, dismiss the plaintiff’s claim and enter judgment
for the defendants with costs here and below.

MENSA BOISON J.A.

I concur.

ABBAN J.A.

I also entirely concur.

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JELR 67087 (CA) 11

APPEARANCES

NANA AKUFO-ADDO (WITH HIM J. TETE-DONKOR (MISS)) FOR THE APPELLANT; AKO
ADJEI FOR THE RESPONDENT.

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