<p>GRAHAM PAUL, C.J., SIERRA LEONE, PETRIDES, C.J., GOLD COAST (KINGDON C.J. NIGERIA concurring). GRAHAM PAUL, C.J., SIERRA LEONE.</p><p>The plaintiff-appellant took action in the Native Tribunal of Ajumako State for and on behalf of Nsona Family of Brakwa against Robina Fosu of Brakwa claiming £50 damages for trespass committed by him “on plaintiff’s family lands know as Nimua “and Kokowodwen lands situate at Brakwa” , the trespass alleged being that the defendant” without the knowledge and consent of “plaintiff’s family has allowed Akwapim Farmers to build on the “said lands and that defendant, after due notice to quit from “the said land had been given to him by the plaintiff, has refused “to comply with the said notice”.</p><p>The writ was amended so that the description of the plaintiff was “K wamin Boadu for and on behalf of himself as the head “and other members of Dansu’s Family, Branch of Nsona Family “of Brakwa.” </p><p>Subsequent to this amendment the Tribunal (of its own motion) joined Yebuah Ababio, Odikro of Brakwa as a co-defendant as it appeared to the Tribunal that he had an interest in the suit.</p><p>The trial of the suit proceeded and judgment was reserved on 6th December, 1940. At this stage Nkyidomhene Kwesi Brakyi moved the Tribunal for an order joining the Oman of Brakwa, as represented by him as co-defendants, the ground of the application being that the land in question was not the property of the plaintiffs nor of the Stool Family of Brakwa but the property of the Oman of Brakwa with the stool of Brakwa exercising sovereignty over it.This motion was opposed by the plaintiff-appellant but after hearing parties the Tribunal made the order as prayed joining the Oman of Brakwa as represented by Nkyidomhene Kwesi Brakyi of Brakwa as co-defendants. The evidence in the case was read over to the new co-defendant. Certain witnesses for the plaintiff were recalled for cross-examination by the new co-defendant who then gave his own evidence and called his witnesses. The plaintiffs were allowed to call further evidence after the new co-defendant had closed his case.</p><p>The Tribunal gave judgment as follows:- “(a) That the land commonly known as Nimua and Kokowodwen “lands, the subject matter in dispute, form part of the lands, commonly “known as ‘Brakwa lands’ and are held under the system of village “community, whereby all the inhabitants of Brakwa village, divided “into clans or families, have each of them a proportionate share in “the said lands, as common property, without any possession of or title “to distinct portions of the said lands. “(b) Nimua and Kokowodwen lands, are therefore, not the family “ property of the plaintiffs neither are they the family property of the “Odikro of Brakwa, who, on his own authority, cannot place first “defendant, a stranger, on the said lands as his family property. </p><p>“(c) Nimua and Kokowodwen lands are the property of the Oman Kwamin “of Brakwa. The term ‘Oman of Brakwa’ includes plaintiff and his “family as well as the first co-defendant and his family. Whatever “farms that have been made by the plaintiffs and his family or by any “other native of Brakwa on Nimua and Kokowodwen lands must be “retain by those who made them, but such part of Nimua and “Kokowodwen lands, as remain today uncultivated, that is to say, any “forest land on Nimua and Kokowodwen lands, must be used in common “by all native of Brakwa.</p><p>“Thus both the plaintiffs and the 1st co-defendant have failed to “prove their title to the lands in dispute as family property. We “accordingly non-suit the plaintiffs and order them to pay the taxed “costs of the 2nd co-defendant, Nkyidomhene Kwesi Brakyi as “ representative of the Oman of Brakwn, who have satisfactorily proved “their title to the said lands.”</p><p>From that judgment the plaintiffs appealed to the Provincial Commissioner's Court of the Central Province. While the appeal was pending in that Court the name of Kwesi Bondah was by order of that Court substituted for that of Odikro Yebua Ababio who had been destooled.</p><p>The Provincial Commissioner’s Court upheld the findings of the Tribunal but varied the judgment of the Tribunal by substituting judgment for the defendants for the judgment of non-suit which the Tribunal had given.</p><p>The plaintiff-appellant has appealed to this Court from the judgment of the Provincial Commissioner's Court.</p><p>The first and main ground of appeal is that a previous judgment (Exhibit “G”) in favour of the plaintiff-appellant constituted Tes judicata in this suit and that judgment in this suit should accordingly have been in favour of the plaintiff-appellant.</p><p>That previous suit was one taken by the present plaintiff-appellant in 1939 in the same Native Tribunal against one Opanyin Kwesi Anokwa. According to the summons in that case the plaintiff sued the defendant “to prove the title of the Oman of Brakwa” to all that piece or parcel of land known as Nimua and Kokowodwen land “which said land is the property of the plaintiff's family and which defendant asserts is the property of the Oman of “Brakwa.”</p><p>The defendant in that case gave evidence that all the lands at Brakwa were attached to the Stool of Brakwa that all revenues from Brakwa land go to the Stool of Brakwa; that the Stool of Brakwa had given permission to all and sundry to farm where they like; and that the land lying between Nimua and Kokowodwen villages belonged to the Stool of Brakwa. At the close of his evidence he said:-</p><p>“All the other councillors have since recanted that the land in “dispute is stool land, I alone still say that the land in dispute is “stool land. Mankradu Amissah has a bigger say in matters affecting “Oman property than I. I do not belong to the Stool family of Brakwa.</p><p>“I do not work on the land in dispute. I do not know how the land in “dispute came to be stool land. I say that the land in dispute is stool “land because I heard this is. I cannot prove how the land in dispute “became stool land."</p><p>Upon that evidence the Tribunal gave judgment as follows:- “Defendant herein having admitted that he does not know how “the land in dispute became stool land and that he cannot, therefore, “prove the statement made by him that the land in dispute is the “property of the Oman, this tribunal gives judgment in favour of the “plaintiff with costs assessed at £18 10s 6d.”</p><p>It is this 1939 judgment (Exhibit “G” ) upon which the present appellant founds as res judicata of the present suit, but it is quite clear that the parties to the 1939 case are not the same as the parties in the present suit. The plaintiff in the 1939 case was the same as in the present suit and the land in question was apparently the same but the defendant in the 1939 suit is not a party to the present suit. None of the defendants in the present , suit was a party to the 1939 suit. The defendant in the 1939 suit was not sued in any representative capacity; in the 1939 suit he certainly could not and did not represent the present defendants or any of them. In these circumstances to hold that the 1939 judgment was res judicata in the present case would be manifestly contrary to the elementary principles of res judicata and the refusal of the Tribunal to treat the 1939 judgment as res judicata was obviously right. </p><p>As regards the other grounds of appeal the Tribunal had a discretion as to joinder of the additional defendant and there is no ground for saying that they failed to exercise that discretion properly and judicially so this Court will not interfere on that ground. </p><p>As to the remaining grounds, that the judgment is against the weight of evidence and contrary to native custom I can find no reason for questioning the conclusions reached by the Native Tribunal which is obviously in a better position than this Court to arrive at a correct view of the evidence and the custom. </p><p>As to the custom affecting Brakwa lands I may say that the judgment of the Tribunal appears to me to be in conformity with established and general custom as stated m Sarbah’s Fanti Customary Laws at pages 63-64, as follows: -</p><p>“Under the system of village community, the land belonging to “the village is so held, that all the inhabitants of the village have each “of them a proportionate share in it as common properly, without any “possession of, or title to, distinct portions of it. Each person is “entitled to cultivate any portion of it, and during such cultivation he “has an absolute right to his crops.”</p><p>I think that the appeal should be dismissed and the judgment of the Native Tribunal as varied by the Provincial Commissioner’s Court upheld. </p><p>I have had the advantage of perusing the judgment which has just been delivered with concur.</p><p>In accordance with the well established practice of this Court on appeals from Native Tribunals it is necessary to look at the substance of the claim rather than at the form of the writ.</p><p>Plaintiff claims that an area of land, which is admittedly a large area and includes the villages of Nimua and Kokowodwen, commonly known as Nimua and Kokowodwen lands, is the family property of the plaintiff and that these lands have long been in possession of his ancestors, He brought his action in the Native Tribunal of Ajumako. That Tribunal was presided over by the Omanhene of Ajumako State. In the course of his evidence plaintiff stated that Nimua and Kokowodwen lands are the joint property of the Omanhene of Ajumako and the Stool of Amanfupong-his ancestors came under the Stool of Ajumako and worked the lands as subjects of the Stool-they did not buy the land in dispute but claimed them, as subjects of the Ajumako Stool, by right of first cultivation. He complained that the Stool family of Brakwa had placed the first defendant, a stranger from Kwahu, between thee two villages.</p><p>The second co-defendant represented the Oman of Brakwa which admittedly includes several families. The Tribunal held that- (1) the lands in dispute were the property of the “Oman of Brakwa”, which term includes plaintiff and his family as well as the first co-defendant and his family: (2) these lands, common known as “Brakwa Lands” are held under the system of village community, whereby all the inhabitants of Brakwa village, divided into clans or families, have each of them a proportionate share in the said lands, as common property, without any possession of or title to distinct portions of the said lands: (3) the lands are therefore not the family property of the plaintiff nor the family property of the Odikro of Brakwa who on his authority cannot place first defendant a stranger on these lands as his family property: (4) farms made by the plaintiff and his family or by any other native of Brakwa on the lands in dispute must be retained by them but such parts as remained uncultivated must be used in common by all natives of Brakwa: (5) both the plaintiff and the first co-defendant have failed to prove their title to the lands in dispute as family property,</p><p>It results from the above findings that the plaintiff is entitled to occupation only of the farms cultivated by him or his family but that he is not the owner of any of the lands in dispute.</p><p>The plaintiff has not attempted to prove that the defendant has trespassed on any farm cultivated by him or his family. He claims that he is the owner of the whole land and in possession thereof as owner. He has made no attempt to establish that the first defendant has trespassed on land in physical possession of himself or his family. It having been established that the Oman is the owner of the whole land in dispute it is clear that the plaintiff was not entitled to maintain an action for trespass even against a stranger without first establishing that his own occupation had been disturbed: this he has not done.</p><p>The action appears to have been a bold bid by the plaintiff to be recognised by a judicial decision of the Paramount Stool to be the owner in possession of the broad acres in dispute. It is clear that if the plaintiff had succeeded in obtaining a judgment in this action, before the second co-defendant was made a party, the latter who had been present in Court throughout, would have been estopped from ever disputing plaintiff’s right to possession, qua owner, to the land in dispute.</p><p>As to the contention of plaintiff’s counsel that the judgment, Exhibit “G” , estopped all the defendants from defending this action, I have nothing to add to what has been stated in the judgment just delivered except to emphasize that the Oman of Brakwa was not a party to the proceedings which gave rise to that judgment and that that judgment cannot be regarded as determining the rights of Natives of Brakwa whose families constituted the Oman and as such are entitled to the ownership in common of the whole property. </p><p>KINGDON, C.J., NIGERIA. I concur.</p><p>ORDER:- The appeal is dismissed with costs assessed at £43 13s 9d. The judgment of the Native Tribunal, as varied by the Provincial Commissioner’s Court is upheld.</p>