Ohene of Agogo V. Omanhene of Kumawu & Anor (1940)
LawGlobal Hub Judgment Report – West African Court of Appeal
Appeal arising out of the granting of a Concession—Issue of estoppel not raised before cannot be .raised in Appeal Court.
Held : (1) As issue of estoppel was not set out in the pleadings or raised in the lower Court, the Appeal Court will not now allow it.
(2) Although admissible evidence was wrongfully rejected, yet if the Appellant’s case is not thereby prejudiced, the Court will not interfere.
The facts are sufficiently set out in the judgment.
I?: C. Quist (B. K. Tatnakloe and E. P. Asafu-Adjaye with him) for Appellants.
Hon. K. A. Korsah for Claimant.
E. 0. Asafii-Adjaye for Respondent.
The following judgments were delivered :—
KINGDON, C.J., NIGERIA, PETRIDES, C,J., GOLD COAST AND TURBETT, J.
KINGDON, C.J., NIGERIA.
This appeal arises out of a concession granted by the Grantor-Respondent, the Ohene of Agogo, to the Claimant’ William Arthur Thornton. The Opposers-Appellants, the Omanhene of Kurnavtu and the Ohene of Kwaman, opposed the grant of a certificate of validity in respect of the concession on the ground that the area covered by it was held not by the Agogos alone but by the Agogos, the Kurnawus and the Kwamans in common.
The learned trial Judge held that the Opposers had failed to prove their case and gave judgment for the Grantor with costs.
• The Opposers now appeal, against that judgment.
It will be convenient to deal with the second ground of appeal first. This is-
” Because the Grantor is estopped from denying the Opposers’ right as joint owners of Agogo lands with the Grantors.”
Now it is fundamental that if a party to proceedings intends to rely upon estoppel he must set it up in his pleadings. In this country unfortunately there are, as a general rule, no pleadings,
fat it is recognised that the openings of Counsel take the place of pleadings. In the present proceedings there were both pleadings and openings. The Opposers’ statement of their case is dated the lith February, 1939. In this there is not one word about estoppel or to suggest that the Opposers intended to set up estoppel. Nor again when Counsel for the Opposers opened their case on the 15th June, 1939, did he give the slightest indication that he intended to rely upon estoppel. It is true that in argument as to the admissibility of the evidence which Kojo Agyekum, a predecessor of the Grantor upon the stool of Agogo, gave in a previous case the Opposers’ Counsel submitted ” the Agogohene is estopped from denying the evidence given by his predecessor.” But when the Opposers’ Counsel came to make his final address to the Court he was again completely silent upon the question of estoppel. It must be taken then that the Opposers did not set up estoppel in the Court below as part of their case, and it would, in my opinion, be wrong for this Court to allow such an issue to be raised as one of the issues in the case for the first time in this Court. This ground of appeal therefore fails.
The first ground of appeal, and the one mainly relied upon by the Appellants, is-
” Because the learned trial Judge was wrong in refusing to admit into evidence the admissions made by Kojo Adjekum of Agogo in the case Omanhene Kofi Boateng of Kwahu versus Ohene Kojo Adjekum of Agogo, Omanhene Kwami Afram of Kumawu and Ohene Kwesi Yamoah of Kwaman before H. E. G. Bartlett in January, 1928.”
As has been stated, this man Kojo Adjekum was a predecessor on the stool of Agogo of the present Grantor and when Agogohene in 1928 he gave evidence in the case mentioned which evidence it was alleged, supported the Opposers’ case and negatived the Grantor’s. He had also been called as a witness in the present proceedings before his evidence in the previous case was tendered. His evidence in the present case was to the same effect as his previous evidence and did support the Opposers’ case.
The evidence which he gave in the previous case was tendered not as evidence of the alleged facts therein stated but as evidence of the single fact that he, as Agogohene, had made these statements which amounted to admissions. This single fact had already been proved by his own parol evidence, and it was not disputed. Counsel for the Appellants submitted in this Court that the rejection of the previous evidence was wrong and that his case was vitally prejudiced by the rejection. He argued that the evidence oufht to have been admitted in order to found an estoppel, which the evidence already given did not do. There are two fallacies in this argument ; the first is that, as has already been pointed out, he had not set up estoppel as part of his case, and therefore the possibility that the
estoppel was not a good
No. 46reason for making it admissible. The second is that if the evidence
(Ashanti) : were allowed to create an estoppel, the parol evidence already given
Kumawu-was equally effective to do so, for it was to the effect that, as
Agogohene, he had made the statements alleged to amount to.
admissions. I think therefore that the question of whether or not Ohene ofthe evidence would create an estoppel makes no difference in
v.considering its admissibility. I am of opinion, however, that the
Omanhene evidence was in any case admissible as evidence of an admission
of Kumawu against interest by a predecessor in title of the Grantor (Woolway v.
Rowe (1834) 3 L. J. K.B. 121 1 A. & E. 121) and therefore as going
Kingdon,to the credibility of the respective stories told by the parties.
C.J. Moreover I think that the fact that Kojo Agyekum had previously
given evidence made no difference, strictly speaking, to the admissibility. The evidence could have been put in without calling the deponent to be subjected to cross-examination. But I do think that the fact that Kojo Agyekum had already been called and given evidence to the same effect as that rejected and also to the effect that he had said the same when Agogohene makes all the difference to the effect of the rejection of the evidence. If the parol evidence had not been given the rejection of the previous evidence might have been vital and necessitated the ordering of a new trial, but since the parol evidence was given, the rejection of the previous evidence made, in my view, no difference at all, and is not a sufficient ground for allowing this appeal or ordering a new trial. Its tender was, as has already been mentioned, merely to prove one single fact, that fact had already been proved and was not disputed. It could help the Opposers’ case not at all to prove the fact twice instead of once. Moreover there is no reason to suppose that the learned trial Judge failed to notice and give due weight to the significance of the admission.
This leads to the consideration of the sixth ground of appeal, namely that the judgment is against the weight of evidence. As to this it is sufficient to say that I see no reason to disturb any of the findings of fact recorded by the Judge in the Court below.
Six other grounds of appeal were filed, but I can find no substance in any of them.
For the reasons given I am of opinion that the appeal should be dismissed.
PETRIDES, C.J., GOLD COAST.
In 1934 the Ohene of Agogo together with his Sub-Chiefs and Elders granted a concession of five square miles at Agogo in Ashanti to the Claimant.
The opposers alleged that this concession was granted on land not held exclusively by the Agogos but on land owned in common by the Agogos, Kumawu and Kwaman stools.