IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
OPANYIN YAW ESSAMPONG - (Plaintiff/Appellant)
EBUSUAPANYIN KWAME ATTA AND NANA ACQUAH IV - (Defendants/Respondents)
DATE: 25 TH JULY , 2018
CIVIL APPEAL NO: H1/37/18
JUDGES: IRENE CHARITY LARBI MRS. J.A (PRESIDING), L. L. MENSAH (J.A), ANGELINA M. DOMAKYAAREH MRS. (J.A)
DANIEL ARTHUR (FOR PLAINTIFF/APPELLANT)
SAMUEL AGBOTTAH WITH HIM EMMANUELLA ASMAH (FOR DEFENDANTS/RESPONDENTS)
Irene Charity Larbi (Mrs.) J.A.
(1) This is an appeal in a land dispute decided by the High Court, Cape Coast in a judgment delivered on 30th July, 2014.
(2) The Plaintiff/Appellant sued as regent of the Royal Brom-Entsi Aboradze Stool Family of Edumadze Mankessim. The reliefs sought in the writ of summons are the following:-
1) A declaration that, the allodial title to all that piece or parcel of land lying and being situate at Edumadzie in the Mfantsiman District Area, Central Region, of Ghana, which is bounded on the North, by the property of the Takyina Family of Twafo street of Mankessim and on the South by the property of the Amoana Family of Abonko, and on the East by the property of the Oduma Family of Biddan and on the West by the property of the Aboradzi Family of Amaafo street of Mankessim, rest with the Plaintiff’s Original Royal Brom-Entsi Aboradzie Family of Edumadzie
…………who hails from the lineage of the late Nana Brom-Entsi (deceased) of Edumadzie.
2) A declaration that neither the 1st nor 2nd Defendants have any lawful right to alienate or make any grant whatsoever of any portion of the disputed land described supra, without reference to the Plaintiff’s Brom-Entsi Aboradzie Family of Edumadzie.
3) A declaration that any purported grant or alienation, hitherto made by any or all the Defendants, of any portion of the disputed land to anybody is illegal and same be so declared null and void.
4) General damages for trespass.
5) An order for the recovery of the disputed property and/or in the alternative, an order that the 1st Defendant and members of his family and anybody claiming title to any portion of the disputed property must attorn tenancy to the Plaintiff.
6) An order for account of mesne profit and/or an order for account of proceeds accruing from the grant of any portion of the disputed land made by the Defendants to anybody.
7) Perpetual Injunction restraining the Defendants their agents, servants, assigns and anybody claiming through them from alienating or making a grant of any portion of the disputed land.
(3) A summary of the case of the Plaintiff/Appellant and the Defendants/Respondents is well captured by the High Court (Trial Court) in the judgment as follows:-
The gist of the Plaintiff on the pleadings is that he is the regent of the Royal Brom Entsi Aboradzie Stool Family of Edumadzie-Mankessim and brings the action for himself and on behalf of other members of the said family. It was his story that his three (3) ancestors, the late Kofi Edumadzie, the late Assan and the late Brom-Entsi first broke the virgin forest and founded the village “Edumadzie”. His ancestors created their Black Stool and the two senior brothers Edumadzie and Assan placed their junior brother Brom-Entsi on the Black Stool and gave him a horn which is blown as “Tata-Mpeyin-Tu” (meaning he is after the two brothers) whilst the village of Edumadzie was also named after the elder brother Edumadzie. He contended that his two other ancestor subsequently left Edumadzie to found two other villages Edumafar and Asaafar. The disputed property which is in the Mfantsiman Division Area of Central Region of Ghana acceding to him, has boundaries as clearly shown in relief 1 endorsed on the writ of summons.
(4) It was his case that as the town of Edumadzie grew one other group of Aboradzie Family from Biddau came to Edumadzie and joined his ancestors Nana Brom Entsi. The Aboradzie family thus shared funeral expenses together and continued to hold meetings at “Piemu” the house of Nana Brom Entsi. He traced the line of succession after the death of Nana Brom Entsi and maintained that his ancestors ruled Edumadzie as “Odikrofo” of Edumadzie. According to him in 1932 his deceased ancestor the late Nana Kweku Yami instituted an action against the Defendants ancestor Kobina Mbora and Kojo Appiatse before the Native Tribunal and Ebiram Ekumfi state and before Omanhene Akyin III and his councilors and sought for a declaration that he Kweku Yami as the heir and successor of the estate of Entsi and Stool holder of Mankessim Edumadzie Clan be so declared as the rightful head of the said Royal Aboradzie of Edumadzie. He maintained that the judgment in that case went in favour of his ancestor. That the Native Tribunal confirmed his position at Edumadzie as the occupier of the Black Stool and successor to Brom-Entsi and Stool head of the Royal Aboradzie Family of Edumadzie and the fact that he and his ancestors are the allodial owners of Edumadzie lands and occupy the Odikro position as the occupant of the Royal Aboradzie Family of Edumadzie cannot thus alienate any portion of the Edumadzie lands without reference to him and his family. He contended that the Defendants have recently been alienating portions of Edumadzie Lands to other people when they have no legal or equitable right to do so.
(5) The Defendants pleadings were to the effect that whilst Ebusuapaying Kwame Atta is the head of the Royal Aboradzie Stool Family, Nana Acquah IV. is the Odikro of Edumadzie.
According to the Defendants, Edumadzie was founded by their ancestors called Edumadzie who was an Entsii man. He first broke the virgin forest and established a village on it, which grew to be Edumadzie. The Plaintiff’s ancestor Brom-Entsi alias Kojo Entsi came from Dwendwen-Abadze in the Anomabo traditional area and settled at Edumadzie in the late 1860 and he was made Asafo Captain in Bobikuma war of 1863. They contended that it is rather Brom-Entsi who came to join their family. As he was an Aboradzie man, he joined their family but separated after the 1932 litigation over an alleged debt.
(6) They conceded therefore that the two families went their separate ways after the said litigation. They contended further that Edumafar and Asaafar are not part of Edumadzie and maintained that the Plaintiff does not know the portion of the land he is claiming.
According to them, “Tata-Mpenyin Tu” which literally means “following the tail of elders” exactly explains the position of the Plaintiff. They maintained that a careful reading of the judgment shows that their family stool was not in issue and that what was in issue was the succession to the Brom-Entsi so called stool. They claimed that the Plaintiff completely misread the judgment and that there is no black stool called Brom-Entsi in Edumadze.
(7) They stated further that Kwa Aduba litigated over this land in the case of KWA ADUBA VRS. KWEKU MBIR AND KWEKU EGYIR TRANS L/S 14/1957 in the High Court, Cape Coast and lost. The Plaintiff, according to them is thus estopped by this judgment from laying claim to any land at Edumadzie. They concluded that any claim of the Plaintiff if genuine died with the Kwa Aduba case cited.
After a full trial, the High Court gave its judgment which is the subject matter of this appeal. On the issue of estoppel raised by the Plaintiff in respect of the case between Kweku Yami Vrs. Kobina Imburah & Kojo Appiatse delivered on 24th November 1932 which Plaintiff contends the judgment (Exhibit ‘A’) in that case went in favour of his ancestors, the High Court held that the issue that was determined was the succession to Brom-Entsi Stool in which the Native Tribunal declared Kweku Yami as Stool occupier and successor to Brom-Entsi head of Aburadzie and entered judgment with costs for Kweku Yami. The High Court found further that Exhibit ‘A’ however did not confirm that the Plaintiff’s predecessors owned the land. The court again found that the parties herein are privies to the original parties in Exhibit ‘A’.
On the issue of estoppel raised by the Defendants in this action that by the judgment (Exhibit ‘B’) delivered on 24th September, 1960 by Adumua Bossman J. in the case of KWA ADUBA & ORS. VRS. KWEKU MBIR & ORS. at the High Court Cape Coast, the Plaintiff herein are prohibited by law from maintaining the present action. In other words the Plaintiff is estopped per rem judicatam. The High Court found that the case of KWA ADUBA VRS. KWEKU MBIR, KOBINA OTAN-NYI EDU & ORS. is caught by the doctrine of res judicata and the Plaintiff herein is therefore estopped from re-litigating the present suit.
(9) On the evidence of fact adduced by the Plaintiff and witnesses as well as Defendants and witnesses, the Trial High Court held that after evaluating the conflicting stories the court found the Defendant’s traditional story more probable and therefore refused to declare allodial title to the disputed land in the Plaintiff.
(10) The Plaintiff/Appellant, dissatisfied with the above mentioned decisions of the Trial High Court filed an appeal on the omnibus grounds:-
“a) That the judgment is against the weight of the evidence adduced at the trial”.
The Plaintiff indicated that he would file other grounds on receipt of the record of appeal which he did pursuant to leave granted him by this court on 19th March, 2018.
(11) The additional grounds of appeal are as follows:-
1) The Learned Trial Judge failed to properly assess the impact of the decision in the 1932 suit by Plaintiff’s ancestor the late Kweku Yemi against the Defendant’s ancestors Kobina Imburah and Kojo Appiatsi before the native Tribunal of Ebiram Ekumfi State which suit operated as an estoppel in favour of the Plaintiff’s family.
2) That the Learned Trial Judge erred in holding that the judgment in the case of KWA ADOBA VRS. KWEKU MBIR AND KWEKU EGYIR- TRANS L/S 14/1957 in the High Court, Cape Coast dated 24th September, 1960 operated as an estoppel in favour of the Defendants/ Respondents against the Plaintiff/Appellant although they were not parties or privies in that case.
3) That the Learned Trial Judge erred in holding that the Plaintiff/ Appellant family was not in effective possession of the disputed land and as such their claim should fail.
4) That the Learned Trial Judge finally erred in holding that the Plaintiff/Appellant failed to discharge the onus which lay upon him contrary to sufficient evidence Plaintiff/Appellant adduced at the trial.
(12) The well-established estoppel rule is that if a court of competent jurisdiction had determined a case, the parties and their privies cannot subsequently re-litigate the same claims or issues. The rule is not limited to matters that properly belong to that litigation and could have been brought up for consideration but were not raised: See DAHABIEH VRS.S.A TURQUI & BROS. [2001-2002] SC GLR 498; GYIMAH & BROWN VRS. NTIRI (Williams Claimant) [2005-2006] SC GLR 247 at 267-268.
Thus a party who intends to rely on the plea of estoppel per rem judicatam must do so expressly and make full disclosure of all the material facts on which it is anchored.
In ATTORNEY-GENERAL VRS. SWEATER AND SOCKS FACTORY LIMITED  74 GMJ I at 31 Wood C.J explaining the principle of rule of estoppel per rem judicatam stated that:-
“The primary object of this sound and high public policy driven rule has also been discussed in many decisions of this court. It is in the interest of justice and the public at large that finality should attach to binding judgments and decisions of courts and tribunals of competent jurisdiction. Also parties should not be vexed twice or more over the same matters in litigation. The rationale for the rule that a party who intends to rely on the plea must expressly plead same is, to prevent the other party being taken by surprise by offering him or her full opportunity to prepare adequately to meet the plea”.
In considering the Additional Ground (1) which counsel for the Plaintiff argued first, we have taken pains to read carefully the judgment in the 1932 suit (Exhibit ‘A’) which is at page 217 of the Record of Appeal (ROA). The claim of Kweku Yami against Kobina Imburah and Appeatsi in that case was:
“For Defendants to show why Kwaku Yami Plaintiff herein Heir and successor to the estate of Brom Entsi Stool holder of Mankessim Edumadzi Aboradze Tribe should not be declared and known as the rightful head of the same Tribe or Family”.
(13) The Native Tribunal in its judgment held thus:-
“It appears that Defendants having no blood stool in accordance with Native Custom entitling them as stool occupiers but ordinary stool. Appearing the Plaintiff is occupying the blood stool as it were admitted by the Defendant Kobina Mburah or Imburah the first Defendant. The Tribunal finds no reason why Plaintiff Kweku Yami should not be declared as stool occupier and successor to Brom Esti, Head of Aboradzie Family of Edumadzie. The Tribunal is of one mind together to enter judgment for Plaintiff with costs”.
(14) It is thus obvious that Kweku Yami as the Plaintiff won his claim in the 1932 suit before the Native Tribunal. Defence counsel in arguing Ground (1) is urging this court to depart from the finding of the Trial High Court that the Exhibit ‘A’ “………………….disclosed an internal family dispute between members of the Edumadzi Aburadzi Family and in my considered opinion did not confirm that the Plaintiffs predecessors owned the land”.
(15) Counsel for the Plaintiff based his argument on a portion of the evidence of Kweku Yami in Exhibit ‘A’ which reads as follows:-
“Kweku Yami swore in God. I live at Edumadzie, I am occupying the Family Stool of Aboradzei Family. It is about one month ago Nana Kofi Okwam sent on me by Kwa Edu and Kwaku Aba saying that the outskirts lands and house lands and all the lands thereto would be declared as town lands. And any one wishes to lend lands at Edumadzie must apply to him (Kofi Okwan) because I have been collecting tributes from the people and I must stop it. I told Kofi Okwan’s Messengers that I would not do that because it is my ancestral property”.
(16) Counsel for the Plaintiff argued further that a careful reading of Exhibit ‘A’ reveals that the issue in contention was which stool constituted the blood stool of the Aboradzie Family of Edumadzie and the occupant thereof being the head of Aboradzie Family. He argued again that as the parties were both contending the ownership of the blood stool of Edumadzie which invariably establishes supremacy over Edumadzie township, then the ownership of Edumadzie lands was invariably tied to the ownership of the blood stool.
(17) Counsel for the Plaintiff submitted that had the Trial Judge paid critical attention to the Exhibit ‘A’, she would have come to the conclusion that the issue was not the succession to Brom Entsi Stool but as to whether Brom Entsi Stool constituted the blood stool of the Aboradzie Family of Edumadzie with its occupant being the head of family and the custodian and ownership of the Edumadzie land.
We are unable to go along with the submission of counsel for the Plaintiff in that Nana Kofi Okwan who sent Kwa Edu and Kwaku Atta to Kwaku Yami to stop collecting tributes from the people on the land in dispute were not made Defendants in the suit neither was Kwa Adu nor Kwaku Atta.
(18) Secondly, it seems Counsel for the Plaintiff lost the reason why Kobina Imburah and Kojo Appeatsi were sued as Defendants by Kwaku Yami in Exhibit ‘A’. For a better appreciation of the claim of Kwaku Yami in Exhibit ‘A’, against Kobina Imburah whom he described as his elder brother in Aboradzie Family and Kojo Appeatsi it is pertinent to quote his evidence in Exhibit ‘A’ as follows:-
“………………..I received affidavit from Kobina Imburah and Appeatsi against me that he Kobina Imburah is the head of Aburadzi Family at Edumazie. And I swore this Affidavit without the knowledge of (him) Kobina Imburah for I am nothing in the family of Aboradzie at Edumadzie. And I took this action against Defendant and Kobina Imburah was present and had joined the family and placed me on the Stool of Brom Entsi and now he says I am not concerned with the Stool of Nana Brom Entsi”. (Emphasis ours).
(19) In Exhibit ‘A’ the issue for determination by the Native Tribunal had nothing to do with ownership of any land but as to who was the proper person to be declared as the rightful head of the Mankessim Edumadzei Aboradzei Family or tribe and therefore entitled to occupy the Brom-Entsi Stool. Obviously the struggle over the stool between some of the members of the family would create a dispute and even if it did not, is not germain to the matter for determination. The Trial High Court Judge’s conclusion in respect of the import of the action in the Exhibit ‘A’ in our view cannot be faulted.
(20) It appears that counsel for the Plaintiff missed the Trial High Court’s finding at page 10 of the judgment (page 201 of R.O.A) that the parties are bound by the decision in Exhibit ‘A’. The Additional Ground (1) therefore fails.
(21) The complaint of the Plaintiff in Additional Ground (2) is that the High Court Judge erred in holding that the 1960 judgment (Exhibit ‘B’) operated as an estoppel against the Plaintiff when it is clear that the Defendants were not parties or privies to the said judgment.
(22) It is trite learning that for a judgment to operate as an estoppel against the parties, the subject matter in the judgment must be the same as was held in the case of COBBLAH VRS. OKRAKU  GLR 679 and that only parties or privies to the parties can be affected by the estoppel. Besides, if the judgment was given in respect of a specific area of the land, it is only that piece of land the estoppel will operate. See the case of OKOE VRS. HORHOMENO III [1987-1988]1 GLR 438 SC.
(23) In arguing the Ground (2) of the Additional Grounds of appeal, counsel contended that the Defendants were silent in their statement of defence as to their relationship with the Defendants in the 1960 case entitled KWA ADUBA VRS. KWEKU MBIR (Substituted) for KWESI ARHIN (Deceased) & 2 ORS. (Transferred Land Suit No.14/1957). Counsel for the Plaintiff argued further that to make matters worse, the evidence of the substituted Defendant, Kow Narkwa and his two witnesses, namely DW1 and DW2 even muddied the waters.
He contended that Kow Narkwa in his Evidence-In-Chief at page 139 of the Record of Appeal indicated that he knew one Kweku Mbir and that when the Plaintiff/Appellant’s elder sued, he was one of those who testified in the suit. However it is clear that the said Kweku Mbir was not a witness but was the 1st Defendant who was sued by Kwa Aduba in the 1960 suit. He contended further that DW1 was emphatic that Kobina Otan-Nyi-Edur in the 1960 case did not belong to their family he was on the other hard emphatic he knew the 2nd Defendant well.
(24) In respect of the evidence of DW2 counsel argued that DW2’s evidence seemed to have established some connection been the Defendants in this case and the Defendants in the 1960 case but a critical analysis of his evidence showed some inaccuracies. He pointed out that it is not factually accurate that Kow Adubah sued Obaatan of Edumadzie, instead Kow Aduba sued Kwesi Arhin who was substituted by Kweku Mbir and Otan-Nyi-Edur. However, the Obaatan of Ekumfi State, Nana Ampiah applied and was joined and after his demise, he was substituted by Kweku Egyir.
(25) Counsel for the Plaintiff argued again, that the Defendants herein have no links with the 1st and 2nd Defendants in the 1960 suit. The closest link was when the Co-Defendant elevated them to the position of Gyaasehene.
Counsel contended that the right of the Defendants as privies of the Co-Defendant in the 1960 case if any, became extinguished and or compromised when the head of family of the
Defendants sued the successors of the Obaatan of Ekumfi (the 3rd Defendant in the 1960 case) before the Judicial Committee of Ekumfi Tradition Council over ownership of the same Edumadzie land which their predecessors lost in the 1932 case. So as at the time the Plaintiff sued the Defendants in the instant case in 1999, the Defendants had no links either as party, a witness or privy with the 1960 judgment, therefore the claim of estoppel which had been made with regard to the judgment was wrong in law.
(26) In the instant case, and as was rightly observed by the Trial High Court Judge, there is no dispute about the identity of the subject matter because the parties are ad idem about that. In his evidence-in-chief at page 66 of the Record of Appeal the Plaintiff agreed that the land he is claiming in the instant case is what his predecessor Kwa Adubah claimed in the 1960 suit as follows:-
Q. Do you know Kow Adubah?
A. I know him.
Q. Did he ever litigate with anybody over Edumadzie lands?
Q. Who was that?
A. He litigated with Kweku Imbere, Kwabena Otanyeddro, Kweku Egai and Kweku Essel (Twafohene of Ekumfi State).
(27) The Plaintiff continued his evidence-in-chief as follows:-
Q. What was the outcome of the litigation between Kow Adubah and Kweku Imbire & Ors.?
A. Kow Adubah lost the litigation and the Ekumfi State said the land belongs to them so they took over the property.
Q. Did it include the Edumadzie lands?
A. Yes everything was part of it.
(28) On the identity of the land, the Defendants and witnesses referred to the suit commenced by the Plaintiff’s predecessor Kow Edubah against Kweku Mbir & Others in which Kow Edubah lost in 1960 in respect of the alleged Edumadzie lands.
(29) There is equally sufficient and cogent evidence on the record to support the contention that the Defendants are indeed privy to the victorious party in the judgment contained in Exhibit ‘B’. The Plaintiff’s own answers in cross-examination is very much revealing on the issue of privity Some excerpts are reproduced below from page 66 of the Record of Appeal;
Q. Your Evidence-In-Chief is simply a repetition of what Kow Adubah said in that case?
A: Yes, he (Adubah) was my elder so that is exactly what I said.
Q. And you yourself know that land that Kow Adubah claimed, the very land that you are claiming now?
A. Yes, My Lord.
(30) At Page 70:-
Q. In paragraph 12 of that Affidavit in support, you said during the case between Nana Kow Adubah and others, Aburadzie II joined the Oman and fought the case which went in their favour”.
A. The Aburadzie No.II do not have any position in the family. They are only meddling in the affairs of the original family. So, they align themselves with the original family.
Q. My question is that you stated in your affidavit that they joined your man (‘man’ should read ‘Oman’) and fought the case?
A. It is true they aligned themselves with the Oman but they do not have any position in the family.
Q. In the same affidavit, paragraph 13 says after the case, Nana Obaatan raised the status of the Aboradzie No.2 Family of Gyasihene?
A. It is true but I would like to explain. After the litigation they went and pleaded with the Obaatan that they should be given a position. And that is why the Obaatan gave them the Gyasihene and that was in 1972.
Q. So I am suggesting to you that because the Defendants (whom you describe as Abradzie No.2) supported your man during the trial of Kow Adubah’s case, you have no right to resurface this old litigation.
A. I have right.
(31) At page 82 of the Record of Appeal, PW2 also gave the following answers under cross-examination:-
“Q: Do you know the outcome of the case?
A. Kow Adubah lost the case.
Q. And the land was no longer for him (Kow Adubah)?
A. The land became the property of the town.
Q. Are you aware that during the litigation Kow Adubah, the Defendant Family actively supported the Oman?
A. Everybody was among”.
(32) Exhibit ‘1’ at page 277 of the Record of Appeal is the affidavit sworn to by the Plaintiff himself in a matter before the Judicial Committee of the Ekumfi Traditional Council. In paragraphs 12 and 13 of the Exhibit ‘1’, the Plaintiff deposed as follows:-
“12. That during the case between Nana Kow Adoba and Nana Obatan and others, Aboradzie No.2 joined the Oman and fought the case which went in their favour”.
13. That after the case, Nana Obaatan raised the status of Aboradzie No.2 Family to Gyaasehen”.
(33) In the present case, the evidence clearly shows that the land in dispute is the same land which was the subject matter in dispute in the 1960 case which was decided by Adumua-Bossman J. tendered as Exhibit ‘B’.
(34) On the issue raised in the submission of counsel for the Plaintiff that the Defendants and their witnesses evidence contained inconsistencies and discrepancies which cast doubt in their veracity, the dictum of Lord Denning in TWIMAHENE ADJEIBI KOJO II VRS. OPANIN KWADWO BONSIE & ANOR.  I.W.L.R. page 1223 at page 1227 is relevant as follows:-
“The dispute was all as to traditional history which had been handed down by word of mouth from their forefathers.
In this regard, it must be recognized that in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the almost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history one side or the other must be mistaken, yet both may be honest in their belief”.
(35) We do not think that a witness is entitled to be disbelieved merely because in narrating his accounts of events which happened before he was born (family history) and which has been passed down from generation to generation or an event that happened some years ago before he gave evidence in court some inconsistencies occur in the narration. The witness is bound to make slips and it is the duty of the court to decide whether the inconsistencies or discrepancies are of such material importance as to render the evidence improbable when viewed against the background of the matter in dispute.
Similarly, the fact that a party denies knowing one of the parties in the suit does not necessarily make the witness untruthful.
(36) In the ADJEIBI KOJO II VRS. BONSIE case supra, the court held the view that the best way to test traditional history is by reference to the facts in recent years.
By the Plaintiff’s own admission, under cross-examination, his ancestor Nana Kow Adubah lost the case he instituted against the Oman. There is also the admission by the Plaintiff that the Defendants family actively supported the Oman (Ekumfi State) who won that case and as a result the Defendants family was given or ‘honoured’ as it were with the Gyaase Stool (Gyaasehene) Plaintiff further admitted that when his ancestor lost the case in the 1960 suit, the Edumadzie Family also lost the land which was taken over by the Ekumfi Stool (Oman). There is no evidence that Kwa Adubah appealed against the 1960 decision.
(37) On the evidence, we are of the view that the Plaintiff is caught by the doctrine of estoppel per rem judicatam as found by the High Court. This is so because the 1960 suit was given by a court of competent jurisdiction and the issue of ownership of the land the subject matter which is the same subject matter in the present dispute was conclusively determined between the parties in the 1960 suit.
The estoppel therefore does not operate only against the actual parties in the 1960 suit but extend to their privies. The term privies in law, in the context of litigation includes someone who controls a lawsuit though not a party to it or someone whose interests are represented by a party to the lawsuit and a successor in interest to anyone having a derivative claim in the litigation.
(38) The Defendants ancestors might not have had any blood relation to the Defendants in the 1960 suit; However by the conduct of the present Defendants’ ancestors in supporting the Co-Defendant Nana Ampiah III Obaatan of Ekumfi State (on whose demise Kweku Egyir was substituted) and had judgment in his favour, the Defendants herein became privies and are bound by the 1960 judgment. We are therefore in agreement with the Trial High Court Judge decision that this action is caught by the doctrine of res judicata. The Additional Ground 2 accordingly fails.
(39) We will now proceed to determine the Additional Ground 3. The grievance of the Plaintiff in this ground is that the Learned Trial Judge erred in holding that the Plaintiff Family was not in effective possession of the disputed land and as such their claim should fail. In our view, the Trial Judge’s holding was supported by ample evidence on the Record. At page 63 of the Record of Appeal, the Plaintiff in Evidence-In-Chief had the following to say:-
Q. Had the Defendants alienated any portion of the land in issue?
A. When we were in possession they were not selling the lands but now that it is not in our possession they are selling. (Emphasis is ours).
(40) At page 72, the Plaintiff gave the following answers:-
Q. Since Exhibit ‘B’ (judgment was given in 1960, your Family had left the land and lost everything on the land.
A. We were children by then and if we lost the case, they lost to Ekumfi State but not to the Gyaase.
Q. And since 1960 you never availed yourself and did nothing until 1999?
A.. It was when we grew up that we learnt that we have a property that we need to claim.
(41) PW2 Kwabena Ekumafu under cross-examination at page 83 of the Record of Appeal, confirmed the position of the Plaintiff’s family that they are not in effective possession of the land following the judgment contained in Exhibit ‘B’ as follows:-
Q. Do you know of the outcome of the case?
A: Kow Adubah lost the case.
Q. And the land was no longer for him (Kow Adubah)?
A. The land became the property of the town.
We do not find any reason to depart from the Trial Judge’s findings based upon the cogent evidence led by the Plaintiff and his witness against his own interest. This ground of appeal also fails.
(42) Finally, we will consider the Ground (a) of the original Ground of Appeal and the Additional Ground 4 together.
The Plaintiffs complaints against the decision under these two grounds are that the judgment is against the weight of evidence adduced at the trial and that the Trial Judge erred in holding that the Plaintiff failed to discharge the onus which lay upon him contrary to sufficient evidence Plaintiff adduced at the trial. It is trite law that an appeal is by way of re-hearing See Rule 8(1) of C.I.19. It is also well-established that where an Appellant invokes the omnibus ground the Appellate Court has the primary obligation to examine the record of proceedings critically in order to satisfy itself that the findings of fact are supported by the evidence on record. This obligation places the Appellate Court in the same position as a Trial Court.
(43) We have considered these two grounds of appeal and we are of the view that these are not legitimate complaints in view of the ample, cogent pieces of evidence on the record some of which we have previously referred to in this judgment which support the definite findings of fact made by the Trial High Court.
(44) Thus in DOKU VRS. DOKU [1992-1993]GBR 367, the Court of Appeal stated the settled principles governing appeals that all issues of facts are for the Trial Judge to determine as follows:-
“The generally accepted principle of law is that findings of fact made by a Trial Judge should not be disturbed unless they are pervese or not supported by the evidence on record. In BRUCE VRS. ATTORNEY GENERAL  GLR 170, it was held, inter alia, that an Appellate Court should not disturb findings of fact made by a Trial Judge, but it was equally true that an Appellate Court was not precluded from doing so”.
(45) In BISI VRS. TABIRI @ ASARE, [1987-1988] 1 GLR 360, the Supreme Court reiterated this principle when it held per Osei. Where J.A (as he then was) at page 368 of the report that:
“I cannot believe that it was ever intended that the Court of Appeal (or any other Appellate Court for that matter) should move into a new era of regular questioning of decisions of Trial Judges on issue of fact, as distinct from law, which are supportable. For this reason there could be no ground for caviling at the judge’s exercise of discretion or duty in selection to believe or in stating his findings of fact”.
(46) See FOSUA & ADU-POKU VRS. DUFIE (DECEASED) & ADU POKU-MENSAH 
SC GLR 310.
Again in ACHORO VRS. AKANFELA [1996-1997] SC GLR 209, the Supreme Court re-emphasized the principle when it stated that it would not interfere with (concurrent) findings of the two lower courts unless;
“It was established with absolute clearness that some blunder or error resulting in a miscarriage of justice was apparent in the way in which the lower tribunals dealt with facts”. See; JASS CO. LTD. & ANOR. VRS. APPAU & ANOR.  SC GLR 265 at 275.
Section 17(1) of the Evidence Act, 1975 (NRCD 323) states the position clearly as follows:-
“17(1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof”.
(47) In this case the Defendants did not counter claim and therefore since it was the Plaintiff who asserted allodial title to the land in dispute, he singularly bore the onerous burden of proof placed on him to cogently prove to the court that his assertion was true and deserved judgment in his favour. It is also the law that in a civil case proof is based on the preponderance of probabilities. Section 12(2) of the Evidence Act  NRCD 323 defines “preponderance of probabilities” as; “(2)Preponderance of probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”.
(48) In the instant case, the evidence was clear that the Plaintiff’s ancestors lost the land as far back as 1960’s when judgment was given against them and had since given up possession of the land without appealing against the judgment until they commenced this action in 1999 in an attempt to reclaim same. We are thus unable to set aside the findings of facts made by the High Court in this case. For these reasons the appeal is hereby dismissed in its entirety. Accordingly, we affirm the decision of the High Court Cape- Coast dated 30th July, 2014.
IRENE C. LARBI (MRS).
(Justice of Appeal)
I agree L. L. MENSAH
(Justice of Appeal)
I also agree ANGELINA M. DOMAKYAAREH (MRS).
(Justice of Appeal)