KINGDON, C.J., NIGERIA.
This is an appeal from the judgment of the learned Chief Justice sitting in the Divisional Court at Accra in two suits which were consolidated.
The parties are, on the one hand, Christian Yao Kisiedu of Amanokrom with whom are joined Barima Kofi Peasa Ababio and Kofi Mane, and, on the other Djorbuah Dompreh, Jarkwa and Kokotse Ahulu all of Asafo with whom is joined Yao Apia-Kra.
In the first suit Kisiedu claimed £100 damages from Dompreh, Jarkwa and Kokotse jointly and severally for trespass committed on his land at Ajapoma by entering upon the same and making farms thereon, and an injunction to restrain them from entering upon the land and from committing further acts of trespass.
In the second suit Dompreh and Jarkwa claimed from Kisiedu £100 damages for trespass committed upon their land situate at Atenkesu by entering upon the land cultivating a portion thereof and removing foodstuffs and other crops therefrom, and an injunction to restrain him, his workmen or agents from entering upon the land and cultivating any portion thereof or removing any foodstuffs or crops therefrom.
Barima Kofi Peasa Ababio is the Ohene of Tafo and Kofi Mane is the Odikro of Ajapoma. They were added in their respective capacities to the suits on Kisiedu’s side as being interested in the dispute since Kisiedu rests his claim to the land in dispute upon a purchase of it from them. In a similar way Yao Apia-Kra was joined on Dompreh's side as acting Odikro of Asafo because Dompreh claims to have purchased the land from the Odikro of Asafo, on behalf of himself and Jarkwa and Kokotse.
The land claimed by the respective sides, on which they say the other has trespassed, is not identical, but that claimed by Kisiedu's side is the larger and includes all that claimed by Dompreh's side. The respective claims are shown on a plan Exhibit “A” in the case, Kisiedu's claim being edged green and Dompreh's yellow. The trial Judge decided in favour of Kisiedu's side and gave him £100 damages with costs to him and his associates, and granted an injunction against Dompreh and his associates, their agents or servants trespassing on the land.
Against that judgment Dompreh and his associates appeal to this Court on four grounds, namely:- (1) The judgment was against the weight of evidence. (2) The judgment was contrary to law. (3) The judgment was inequitable. (4) Inadmissible evidence was misreceived.
The learned counsel for the appellants dealt with these grounds in reverse order and I will do the same.
As to Ground 4, the evidence alleged to be inadmissible and misreceived is Exhibit “D” which consists of the claim and judgment in the case of Ohene Kwadjo Peasa per Linnguist Kwadjo which Ado v. Odikro Kwabena Gyasi decided in the Native Tribunal of the Omanhene of Akyem Abuakwa on the 29th August, 1919.
When this document was tendered by the respondents the appellants objected to it on the grounds “(1) that it does not relate to same an so is irrelevant, “and
“(2) as far as defendants Dompreh and others are “concerned they would not be affected as the “judgment was obtained after they bought against “the vendor and they were not parties to it.”
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The respondents contended it was admissible on the grounds that “the Asafo Stool is a party to this action now and whole “dispute whether this land Dompreh claims to have “bought from Asafo really belonged to Asafo when “he bought.” The trial Judge admitted the evidence, recording “it is “admissible according to the view I take of the truthfulness of “Mane or of the witnesses that will be called to rebut his “evidence."
From this it looks as if he meant to give a final decision later as to the admissibility or otherwise of the document, but the point is not mentioned again.
In his judgment, however, he treated as an issue in the case the question whether or not Exhibit “D” operated as an estoppel per rem judicata against Dompreh. This brings out the extra- ordinarily unsatisfactory nature of the system of pleading by verbal opening of counsel in a case which is at all complicated. It is an ordinary rule that estoppel per rem judicata must be expressly pleaded; but in the opening of counsel for the respondents there is no plea of estoppel; nevertheless it seems to have become an issue in the case, and the trial Judge; treating it as such, decided in Dompreh's favour that there was no estoppel. He was clearly right. But since it became an issue in the case, the document Exhibit “D” had obviously to be admitted as evidence. It is possible that the trial Judge attached undue weight to the decision in that case, but this is a matter for consideration under Ground 1. As a ground for reversing the judgment Ground 4, in my opinion, fails.
Turning to Ground 3---that the judgment was inequitable---the reason submitted is that the first respondent, Kisiedu, was estopped by his conduct from any claim in trespass as against Kwao Dompreh or his successor, and apart from the question of title he had stood by and allowed Kwao Dompreh and Jarkwa to cultivate, occupy and improve the land coloured green in Exhibit “A” and there was such laches on the part of, Kisiedu as to compel the Court to give effect to the equitable rights of Dompreh and Jarkwa. Here, again, we have a contention of estoppel which was not set up by counsel for respondents in his opening statement but apparently became an issue in the case. At any rate the question of whether or not Dompreh had acquired any equitable rights owing to laches or acquiescence by Kisiedu was expressly considered in the judgment and decided in the negative, on the ground that Dompreh must have known all along that his right to the land was challenged by Kisiedu. Whilst agreeing, in so far as the years from 1925 and onwards are concerned, I do not think the same can be said for the years 1919-1925, when Dompreh and Jarkwa made their first farms. But such laches and acquiescence
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as there may have been on the part of Kisiedu during those earlier years do not appear to me to be such as to have created any equitable right against him. Though, here again, they must be considered under Ground 1. This Ground 3, therefore, fails as a reason for reversing the judgment.
Coming to Ground 2---Judgment contrary to law---the reasons alleged are “(1) that the Court whilst admitting and contrasting “the evidence of one Anim contained in previous proceedings “which were held in the judgment to be irrelevant, declined to “consider other contradictory evidence given by the same person “Anim in previous proceedings on the same issue; and (2) that “the Court gave effect to the evidence of the said Anim in the “irrelevant proceedings referred to without proof of those “proceedings.”
That is the way that counsel for the appellants set out his reasons for this ground when called upon by the Court for particulars, but in argument it appeared that his real ground of complaint was that he was stopped by the trial Judge from putting questions to a witness in re-examination which properly arose out of the cross-examination. What happened apparently was this:--- The appellants called a witness named Kwesi Kromo who was the stool father of Asiakwa. He gave evidence, as the representative of the Chief of Asiakwa, to the effect that it was from the Chief of Asafo that the Chief of Asiakwa obtained the land (including that in dispute) for the hunter Koyo. In cross-examination it was put to him that in a previous dispute one Kwabena Anim had stood in his shoes as the representative of the Chief of Asiakwa and had then given diametrically opposite evidence. Then follows this note in the record:---
“(Cf. evidence of Anim pages 5 and 6 of proceedings ‘D’).” Now Exhibit “D” consists only of the writ and judgment in the case of Peasa v. Gyasi already referred to, there is no reference in the Judge's notes to the tender and admission in evidence of the proceedings in that case. But there is an Exhibit “F” which consists of the evidence of Kwabena Anim in Peasa v. Gyasi and is marked by the Registrar of the Court as “tendered by the “plaintiff Mr. Awere not objected to admitted in evidence and “marked ‘F’.” We must take it therefore that this evidence was properly before the Court and there is nothing in the second reason for this ground. But I may remark in passing that the evidence of Anim in Peasa v. Gyasi does not appear to me to be necessarily diametrically opposite to that of Kwesi Kromo in this case. Upon re-examining Kwesi Kromo, counsel for the appellant sought to show that, though in the case of Peasa v. Gyasi Kwabena Anim might have given evidence differing from Kwesi Kromo's, yet in another case Kwabena Anim had given evidence to the same effect as Kwesi Kromo's. With this object he started to put questions as to what Kwabena Anim had said in the case of Odikro Djasi of Asafo v. Odikro Kofi Mane of Adjapoma on the
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31st March, 1925. But, although there was no objection raised on behalf of the respondents, he was stopped from doing so by the trial Judge who recorded “ruled that not in evidence cannot be “referred to now.” It is of this stoppage that he complains and I think that his complaint is a legitimate one. If the respondents had objected to the questions argument would have resulted as to their admissibility, and I think they ought to have been allowed as directly arising out of the cross-examination and as directed to re-establishing the credit of the witness on a point upon which it had been shaken in cross-examination. But even if the questions had been allowed and had resulted in proceedings being admitted which proved that Kwabena Anim had said in Gyasi v. Kofi Mane the same as Kwesi Kromo was now saying, though it would help the appellants a little it would not help them very much. For treating, for the sake of this argument, Kwesi Kromo and Kwabena Anim as one, when it is shown that a man has blown both hot and cold, it does not prove that “hot” is right because he has blown hot twice and cold only once. I am of opinion therefore that this ground of appeal is not sufficient to justify this Court in upsetting the judgment.
Coming now to the first ground---that the judgment was against the weight of evidence---I find that there is much more of substance to consider. An Appeal Court is naturally reluctant to reverse on this ground the findings of the trial Judge who has had the advantage of seeing and hearing the witnesses; at the same time it is the duty of the Court to form and give effect to its own independent opinion upon the evidence, more especially when, as here, the question turns not so much upon the truthfulness of particular witnesses as upon the proper deductions to be made from the evidence as a whole. Here the real point in issue is short and clear---did the original title to the land in dispute rest in the stool of Tafo or in the stool of Asafo?
The respondents’ case is that it originally rested in the stool of Tafo which owns all the land at Ajapoma and that in 1907 Tafo and Ajapoma joined in selling to Kisiedu for £160 the land edged yellow in Exhibit “A” and that Kisiedu entered into effective possession of it. The respondents do not deny that in 1907 such a sale of some land in the neighbourhood took place. Their case is that in 1919 the stool of Asafo sold to Dompreh and Jarkwa and Kokotse for £356 the land edged green in Exhibit “A”, and that the purchasers entered into effective possession of it. The respondents do not deny that this sale took place. But each side impeaches the validity of the other's transactions on the ground that the respective vendors had no right to sell the land in dispute.
After hearing the arguments of counsel on both sides and carefully weighing the evidence upon the record, I have formed the opinion that the weight of evidence in this case is in favour of the appellants. Those are the main considerations which have influenced me.
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First of all there is the position of the land. It is situated very much nearer to Asafo than to Tafo. This, of course, is not conclusive, but it does affect the probabilities. Then there are the respective areas of the land claimed and the respective prices paid. In this connection I think the trial Judge under-estimated the importance of the question of boundaries. He says:- “A lot of evidence has been given in the course of the “case as to the boundaries of the land shown to the “respective parties when they acquired the lands “and what they did subsequent to the purchase. All “that evidence in my opinion is beside the point “since at the end neither Kisiedu nor Dompreh and “Jarkwa seriously contest a bona fide purchase by “their opponents of the lands claimed by each. It “must I think be taken as proved that in the year “1907 Kisiedu acquired from the Ohene of Tafo and “the Odikro of Ajapoma all that parcel of land “delineated in yellow shown on plan “A” and “that in the year 1919 Dompreh and Jarkwa “acquired by purchase from the stool of Asafo all “that parcel of land delineated in green in the same “plan ‘A’.”
I agree so far as Dompreh and Jarkwa are concerned, but not as regards Kisiedu. I agree it was proved that in 1907 Kisiedu acquired some land from Tafo and Ajapoma, but it was far from admitted or proved that the boundaries thereof are as shown in yellow on plan “A.” It seems to me far more likely from the amount of the purchase price that the south-eastern boundary of the grant to Kisiedu was the Ajapoma-Anyinasin road i.e. the claimed by the appellants as their north-western boundary. Why should Dompreh and Jarkwa pay £356 for an area considerably smaller than that which Kisiedu says he got for £160? True there is a difference of twelve years in the date of purchase, but that will not account for such a big difference in price. There are many points which bear out this view that the area of Kisiedu's grant did not overlap the area claimed by appellants. The most striking is that Kisiedu's settlement and cultivation were entirely north of the road. South of the road was thick virgin forest and he made not the slightest attempt to do anything within this large area until the acts complained of in the appellants' writ i.e. for some twenty-six years. Another significant point is the marking of the boundaries. Kisiedu got out from England four name-plates marked with his brother's name B. F. Yirenchi. The natural thing would have been to place these at the four corners of the area the granted.
The plan shows two only: one at the north-western corner and one at the south-western. For reasons which I shall state hereafter I do not believe in the genuineness of this latter. But why is there none at the all-important south-eastern corner?
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Again, it is noteworthy that, whilst there is an Onyachereng tree marked “B” on the south-western corner of the smaller area which is not claimed by Dompreh, there is, with the exception of what I regard as the faked mark on the Odupon tree, not a single mark proved to be Kisiedu's throughout the boundaries of the disputed area. For the most part these boundaries follow natural-features, but there is one part where they do not, .viz;-- the southern part of the eastern boundary from the “Esia tree “with gin bottle” to the “Pampramah tree with gin bottle.” Admittedly those trees are not marked by Kisiedu; the line between them is a cutting through the forest marked by blazed trees. Admittedly it was Dompreh who blazed these trees. How did Kisiedu know his alleged boundary at this point where it left the Aderumusu stream and joined the Atenkesu stream and how it ran in between? And isn't it a remarkable coincidence that this identical boundary, not a natural one, should have been hit upon for both grants?
I now come to deal with what have referred to as the faked name-plate and that necessitates dealing with the whole evidence of Amah Kwantreng, the Surveyor who prepared the plan “A.” I regard him not only as an unsatisfactory witness but as definitely untruthful. He was unsatisfactory because his field- books were not available and his memory was unreliable; apart from this he was proved untruthful in several respects. Referring to the line between the Esia tree and the Pampramah tree he said, “I blazed the trees to mark my line.” But in cross-examination he admitted, “I made no note that I blazed the trees but I am “under the impression I did---to locate a boundary we often blaze “trees. I won’t swear positively I blazed the trees, even although “a track already existed I would blaze the trees along the line to “mark my line.”
It is inconceivable that he should not know definitely one way or the other whether or not he blazed those trees.
It was clearly proved by the evidence of Dompreh and the admission of Kisiedu that it was Dompreh and not Kwantreng who blazed the trees. Again, he alleged, “All the neighbours” were invited and all said they formed boundary with Kisiedu; “none of them said he bounded with Dompreh.” But two of these neighbours were called by the appellants to say that they bounded with Dompreh, thus giving the lie direct to Kwantreng’s evidence. Throughout, this man's evidence bears the stamp of prejudice in Kisiedu's favour and for this reason it is impossible to accept his far-fetched explanation about the name-plate on the Odupon tree at the south-western corner of the land claimed by Kisiedu. The appellants contend in regard to this that when the Surveyor first went on the land there was no name-plate on this tree and this is borne out by the fact that in the copy of the plan supplied by Kwantreng to Dompreh in 1927 the Odupon tree is not
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marked as bearing a name-plate. The suggestion is that the name-plate was put up between the Surveyor's two visits and that the original plan was altered after the second visit. Kwantreng denies this and attempts to explain away the absence of the mark on the copy as an omission of his assistant who traced it from the original. In view of his prejudice and untruthfulness I don't believe his explanation and I think the contention of the appellants that the name-plate was not on the tree at the time of the original survey must be accepted.
Turning now to the relative probabilities of the tradition set up by each side there is, I think, this point in the appellant's favour. In regard to Ajapoma lands, the respondents say that Asiakwa went to Tafo to get a grant for Koyo (Ajapoma's husband) for mining purposes-working gold; whereas the appellants say that Asafo granted the land to Asiakwa for Koyo for hunting purposes. The appellant's story seems the more probable first, because Koyo was a hunter and not a miner; and, secondly, because the area, whilst a reasonable size for hunting, is far larger than would be granted for mining.
Another point made in favour of the respondents' version is that when pressed for debt the Odikro of Ajapoma after applying to and getting some, but insufficient, financial assistance from the Ohene of Asiakwa, made application to the Ohene of Tafo, and not to the Odikro of Asafo, for further assistance which was forth-coming; and that since that time (about 1904), according to the respondents, the stool of Ajapoma has been serving the stool of Tafo direct and not the stool of Asiakwa, and that neither Asiakwa nor Asafo have raised any objection. This, it is argued, shows clearly that from the beginning it was in Tafo, and not in Asafo, that the ultimate title to the land rested. I admit this is a strong point; it is the only one which has caused me doubt in the case. But I do not think it is conclusive and the explanation given by the appellants that Ajapoma turned to Tafo for financial assistance because Tafo was the wealthy neighbour who was able to the give it is a possible one. Moreover, they contend that there has been no transfer of allegiance, which could only have been effected with the consent of the Paramount Chief, and it is not suggested that that was sought or obtained.
Looking at some of the other evidence I am of opinion that the trial Judge attached undue weight to the evidence both of Yao of Kyereko and of Kofi Addo. As to the former, an examination of his evidence shows that it is a mass of contradictions and it is impossible to make out what he really means. He says:---“We “saw the Odikro of Asafo, Kofi Chum present when we were the “cutting Kisiedu's boundaries for him-he passed going from a “village to Asafor--passing by--we saw him when we reached the “main road cutting the boundaries.” And “when I say I saw “Kofi Chum on the main road I mean the road from Ajapoma to
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“Asiakwa and Asafo--we had cut the boundaries and got to the “road--we crossed the road--the road between Ajapoma and “Asafo--we did not sell land up to the road. The people who cut the boundaries divided into two parties, one party of which I “was one took the top portion, the other took the lower protion. I was m the portion which crossed the road from Anyinasin to “to Ajapoma . . . . . Kofi Chum had three boys with him. He “was on the Ajapoma-Asafo road and called to us when we were “in the forest and we came out to him on the road--the road we “crossed in cutting the boundaries was the Ajapoma-Anyinasin “road. When he called to us we were on the way to cut the “boundaries, had not done so yet.”
There is hopeless confusion between the Ajapoma-Asafo and Ajapoma-Anyinasin roads, and a direct conflict as to the time of the alleged occurrence whether before or during the cutting; of the boundaries. I think this man's evidence is worthless and proves nothing at all. If it did prove anything it would be a very damning admission against interest on the part of the appellants, and if it did that, why is there no mention of it in the respondents' opening?
As to Kofi Addo., Mankralo of Maase, I think the value of his evidence was entirely discounted by his admission that it was only what he was told to say by the parties who called him. He says:-- “The traditions I have stated are what I was told. Nana “Bosumpim sent for me at his house and I met the Ohene of Tafo “and the Odikro of Ajapoma there--the tradition was told me in “their presence and I was instructed to give that evidence at “Kibi.” He appears to have been perfectly frank and truthful, but has his evidence any value at all in face of that admission?
For a similar reason to the one I have just given the trial Judge discredited the evidence of Kwami Armo, one of the appellants' witnesses. But here the position is rather different. K wami Armo was the linguist and representative of the Odikro of Asafo one of the parties to the proceedings. It is common practice for a Chief to send his linguist to give his evidence as his mouth- piece and, rightly or wrongly, it is an accepted practice of the Courts to receive such evidence for what it is worth. In fact he is doing little more than stating upon oath the case of the party he represents. Naturally the linguist is instructed as to what the case is and states it accordingly. This is rather different from the case of an outsider being called as a witness and coached in his evidence beforehand.
The trial Judge also discounted the evidence of Opanyin Kwesi Kromo for the reason that it was diametrically opposed to evidence given in another case by Kwabena Anim, another mouth- piece of the Asiakwa Stool. But I do not regard the two sets of evidence as necessarily contradictory. As pointed out by appellants' counsel the pivotal stool in this dispute is the stool of
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Asiakwa. The whole question is: from whom did Asiakwa get permission to give the land to Koyo, Tafo or Asafo? And here is the representative of Asiakwa coming to the Court and testifying that it was from Asafo and not from Tafo. Surely, such evidence must be accorded very great weight in reaching a decision.
There is only one other point which I will mention on this question of weight of evidence: it is the effect of the evidence in regard to two leases to Europeans. The first is Exhibit “H”, a lease dated 30th of April, 1901, from the stool of Asafo to a European company, A. Dumas and Cie of an area which clearly included the land in dispute. The second is Exhibit “I”, a lease dated the 24th November, 1899, from the stool of Ajapoma of to a European company called The Gold Fie1d of Eastern Akim Limited, of an area covering all or some of the land in dispute. The trial Judge set one against the other and declared honours even in this respect. But it seems to me that the honours should be accorded to the appellants. The all-important point is that Dumas went and worked on the land and lived at Ajapoma and the Ajapomas worked on the land for him. They accepted, without protest, the fact of the lease to a European of land which they now claim as theirs. On the other hand the lease relied upon by the respondents appears to have been nothing more than a paper transaction. There is no evidence that the lessee company ever entered upon the land to work it, or that the execution of the lease was ever known to the Asafo stool. The trial Judge conjectures that it was; it seems to me more likely that it was not.
For these reasons I am of opinion that the finding in favour of the respondents is against the weight of evidence, and that a finding in favour of the appellants' contentions should be recorded.
But the trespass alleged to have been perpetrated by Kisiedu is not of a very serious nature and I think that damages in respect of it may fairly be set at £10 instead of the £100 claimed.
It is also to be noted that Kokotse has never been formally joined as a plaintiff in the second suit.
I am of opinion that this appeal should be allowed, and the judgment of the Court below set aside, and that judgment should be entered in the first suit for the defendants and in the second suit for Dompreh and Jarkwa against Kisiedu for £10 damages; and that the plaintiffs in the second suit should also be granted an injunction against the defendants in that suit to restrain them or any of them or their workmen or agents from entering upon the land edged green in Exhibit “A”, cultivating any portion thereof or removing any foodstuffs or crops therefrom; and that the respondents should be ordered to pay all the costs of the appellants in this Court and in the Court below.
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WEBBER, C.J., SIERRA LEONE.
I concur with 'the judgment of the learned President on my left. I wish to add my views on the first ground, namely, the weight of evidence. I agree that the weight of evidence preponderates in favour of the defendants in the first action and the plaintiffs in the second action.
The dispute is over a particular piece of land shown on plan “A.” It is of some significance to say that the land in dispute is much nearer to Asafo than to Tafo. The plan does not show Tafo but on reference to the cadastral plan “B” it will be seen that such is the case.
I come now to that part of the learned Chief Justice's judgment with which I must disagree. He says;-- “Did the land belong to the Ohene of Tafo and the “Odikro of Ajapoma when they sold to Kisiedu in 1907 or “has it always been the property of the Odikro of Asafo so “that his sale in 1919 to Dompreh effectually passed the “property to him? . . . . 1. A lot of evidence has been “ given in the course of the case as to the boundaries of the “land shown to the respective parties when they acquired the “lands and what they did subsequent to the purchase. All “that evidence in, my opinion is beside the point since at the “end neither Kisiedu nor Dompreh and Jarkwa seriously “contest a bona fide purchase by their opponents of the lands “claimed by each. It must I think be taken as proved that “in the year 1907 Kisiedu acquired from the Ohene of Tafo “and the Odikro of Ajapoma all that parcel of land delineated “in yellow on plan ‘A’ and that in the year 1919 Dompreh “and Jarkwa acquired by purchase from the stool of Asafo “all that parcel of land delineated in green on the same “plan.”
Now I disagree with the learned Chief Justice's statement that the evidence as to boundaries is beside the point and I am not satisfied that it is proved that in 1907 Kisiedu acquired the land delineated in green.
It is clear beyond doubt, and it is not disputed, that the Ohene of Tafo sold land to Kisiedu--he sold land north of the Ajapoma- Anyinasin road-and it is the fact that Asafo sold land to Dompreh, namely, the land delineated in green. The question as to the boundaries of the lands purchased in my opinion goes to the root of the whole case. What were the boundaries of the land purchased by Kisiedu? He marked his boundaries by trees and he mentions the Onyachereng, the Onyah and Anchie trees and several Ntome trees and says that bottles were put at the trees. When I look on the plan at the eastern boundary I can see no mark except at the south-east where Pampramah tree with gin bottle is shown. How did Kisiedu get from Esia to this Pampramah tree?
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The Surveyor who visited the land in 1927, or twenty years after the purchase, said when leaving the Adurewusu stream to the Pampramah stream he had to cut the bush to reach Pampramah Tree--and when Kisiedu had name-plates imported, he had no name-plates fixed up along the eastern boundary, and from the general unsatisfactory nature of the Surveyor’s evidence it is very likely that there was never any name-plate at the Odupon tree. If there was a name-plate there, why were not name-plates fixed on the eastern boundary? The Surveyor states that he was under the impression that when locating the boundary between Esia and Pampramah tree he blazed the trees. Kisiedu, however, removed all doubt in the matter by admitting that Dompreh blazed the trees.
But apart from the indefiniteness of Kisiedu's alleged boundary, is there any evidence of any value that Kisiedu at any time before Dompreh's advent to the land occupied or took possession of any portion of the land south of the Ajapoma-Anyinasin road? The plan shows no such occupation and, with the exception of the name-plate at the Odupon tree, the fixing of which at that particular spot and at the time the survey was made is very doubtful, there is not a single farm or habitation or ruin to indicate a present or past occupation by Kisiedu of this portion of the land he alleged he purchased.
There is not a single farmer on the east side who can say that Kisiedu was at any time his neighbour. On the south side of the land Larte states that the land north of his belongs to Kisiedu. But it is the custom when land is bought for the vendor to call together the neighbours, and strange to say Kisiedu was never present.
Another circumstance which considerably turns the scale in favour of Dompreh and the other defendants is the granting of a concession lease to Dumas by Asafo. This lease was granted in 1901 over all of what is claimed to be Ajapoma land by the Odikro of Asafo. It was not only granted with the full knowledge of the Odikro Ajapoma, but the evidence shows that all the neigbbours including the Ajapoma worked on the land taken over by the grantee. Not so with the 1899 concession to The Gold Fields of Eastern Akim which was granted without the knowledge of the Asafo Stool the grantees never having entered upon the land and the worked there.
Also one might ask, if the Tafo Stool exercises ownership over all this land, what about the occupation and user of the land east of the Adurewusu stream by Dedjie Kwashie and Quarshie Kra? The former bought from Asafo over sixteen years ago and the latter also bought from Asafo over ten years ago and they have never been disturbed. The area of their lands is approximately the same as that of Kisiedu’s land north of the road-they paid £120 and £150 respectively, and Kisiedu paid £160---the area of
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Dompreh's land is much greater and he paid £356. I have no reason to believe that the value of land in 1919 was greater than land in 1907--the value of the land had probably increased after the concession to Dumas in 1901, and if the Tafo Stool sold the whole of the land edged yellow to Kisiedu one would have expected the purchase price to be much larger than £160, some-where near £500.
I am of opinion on the whole of the case that the action brought by Kisiedu and others should have been dismissed and judgment should have been entered in favour of Dompreh and others. Evidence of trespass was proved by Dompreh and I agree with the learned President on my left that the damages be assessed at £10.
Note.-The Judgment of the Privy Council follows at pages 281-286.
JUDGMENT OF THE PRIVY COUNCIL, DELIVERED THE 22ND JUNE, 1937.
Present at the Hearing: LORD RUSSELL OF KILLOWEN. LORD ROCHE. SIR LANCELOT SANDERSON.
[Delivered by LORD RUSSELL OF KILLOWEN.]
This is an appeal from a judgment of the West African Court of Appeal (Gold Coast Session) which allowed an appeal from a judgment of the Supreme Court of the Gold Coast Colony (Eastern Province) pronounced in two consolidated actions. Each of these actions was instituted in the tribunal of the Omanhene of the State of Akyem Abuakwa. The first in point of time (the writ being dated the 29th March, 1933) was an action in which one Christian Yao Kisiedu was plaintiff and one Kwao Dompreh was defendant, and in which the plaintiff claimed damages for trespass on the plaintiff's land and an injunction to restrain further trespass. In the second action (in which the writ is dated the 28th April, 1933) the said Dompreh as plaintiff claimed against the said Kisiedu as defendant damages for trespass on his land and an injunction. The two actions were consolidated and by an order of the Supreme Court dated the 22nd June, 1933 were transferred for hearing and determination to the Divisional Court, Accra.
The dispute between Kisiedu and Dompreh was not a dispute as to boundaries between two grantees claiming under the same grantor. Each claimed his land under a different grantor. Kisiedu derived title to his parcel of land by purchase in 1907 from the Stool of Tafo and its subordinate Stool of Adjapoma. Dompreh derived title to his land, which was a portion of the larger parcel claimed by Kisiedu, by purchase in 1918 from the Stool of Asafo. Obviously the litigation involved bigger questions than the mere questions of damages for trespass between individuals. It involved questions of title as between different Stools. For this reason orders were made joining as parties to the two actions representatives of the Stools concerned. By an order of the said Divisional Court of the 13th March, 1934 it was ordered that a representative of the Stool of Asafo be joined as a co-defendant in the first action and as a co-plaintiff in the second action, and that the necessary amendments in the proceedings be made. By an order of the same Court of the same date it was ordered that representatives of the Stools of Tafo and Adjapoma respectively be joined as co-plaintiffs in the first action and as co-defendants in the second action and that the necessary
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amendments in the proceedings be made. In consequence of the death of Kwao Dompreh an order was made on the 29th June, 1934, entering the name of his legal representative (Djorbua Dompreh) in the place of Kwao Dompreh as a defendant in the first action and as a plaintiff in the second action.
The consolidated actions were heard by Deane C.J. (Gold Coast Colony), the trial lasting some seven days. He decided in favour of Kisiedu awarding him £100 damages for trespass and granting an injunction against the defendants in the first action. In the second action he gave judgment for the defendants with costs. In other words the learned Chief Justice held upon the evidence adduced, that the title to the land which had been sold to Dompreh lay not in the Stool of Asafo but in the Stool of Tafo, and had therefore been effectively sold to Kisiedu by the Ohene of Tafo and the Odikro of Adjapoma.
On appeal this decision was held by Kingdon C. J. (Nigeria) and Webber C.J. (Sierra Leone) to be against the weight of evidence. They entered judgment for the defendants in the first action, and in the second action they awarded £10 damages for trespass and an injunction against the defendant in the second action.
From this it will be seen that the findings of fact of the trial judge, based upon his consideration of the evidence given by the witnesses who were called before him, were dissented from and reversed by the Appellate Tribunal. That to do so is within their power cannot be doubted, but in order to ascertain whether they were justified in the present case in reversing the trial judge upon a question of fact largely dependant upon oral evidence, necessitates a consideration of that evidence, of the respective judgments and of the reasons given by the Appellate Tribunal for differing from the trial judge on questions of fact.
One question must be mentioned at the outset. Evidence was given, and was cross-examined to in some detail, as to the exact boundaries of the property which had been purchased by Kisiedu, and suggestions were made that as a result of the evidence he had not proved his parcels with sufficient certainty to establish that his purchase in fact included any portion of the land purchased by Dompreh. A plan (exhibit A) was put in evidence. This had been prepared as the result of a survey made in 1927 by a licensed surveyor named Kwantreng. It shows the land claimed by Kisiedu surrounded by a yellow edging, and (as part thereof) the land claimed by Dompreh surrounded by a green edging. It will be convenient to refer to the former as the yellow land, and to the latter as the green land.
The trial judge took the view that in the result the question of parcels and boundaries was immaterial to his decision of the case. What he said was this: --
A lot of evidence has been given in the course of the case as to the boundaries of the land shown to the respective parties when they
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acquired the lands and what they did subsequent to the purchase. All that evidence in my opinion is beside the point since at the end neither Kisiedu or Dompreh and Jarkwa seriously contest a bona fide purchase by their opponents of the lands claimed by each. It must I think be taken as proved that in the year 1907 Kisiedu acquired from the Ohene of Tafo and the Odikro of Adjapoma all that parcel of land delineated in yellow shown on plan “A” and that in the year 1919 Dompreh and Jarkwa acquired by purchase from the stool of Asafo all that parcel of land delineated in green on the same plan “A.”
Their Lordships think that this view of the learned judge was correct. There was really no dispute between the parties as to the fact that two different grantors had purported to grant the green land, and the question for decision was which grantor had the title to grant the green land. That this was so was made abundantly clear by counsel for Dompreh upon the application which resulted in the orders of the 13th March, 1934. The following is an extract from the judge's note-
Mr. Quist states the question really to be decided is whether the Odikro of Asafo or the Odikro of Adjapoma had the title in the land to sell--The same piece of land has been sold to the respective parties by these 2 stools. It will be therefore necessary to join these stools in order that their title may be investigated.
The Court of Appeal took a different, and as their Lordships think, a wrong view as to this. They argued from the price paid by Kisiedu, from the fact that the green land remained uncultivated by him, and from the absence of any name plate on a certain tree at the south-eastern corner of the green land, that Kisiedu had only purchased the yellow land which is situate to the north of the green land. They went further and discredited, as their Lordships think without justification, the evidence of Kwantreng, the licensed surveyor, who was an independent witness, and who testified to the fact that a tree at the south-western corner of the green land had borne one of Kisiedu's name plates. In view of counsel's language, already cited, and of the trial judge's statement set out above, the case must necessarily have proceeded upon the footing that the green land had purported to have been conveyed to both; and in their Lordships' opinion the question whether the green land was included in the conveyance to Kisiedu was not open to doubt or question in the Court of Appeal.
Nevertheless the learned judges in the Court of Appeal investigated this question, and came to the conclusion that Kisiedu has failed to prove that the land conveyed to him included any of the green land. That in itself, if true, would have been fatal to Kisiedu in the litigation, but it would in no way have affected the larger question as between the rival Stools. As already indicated their Lordships think that the Court of Appea1
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ought not to have reached that conclusion, and they fear moreover that that Court's view of the case has been to some extent coloured by its view of this matter.
Although four points were argued in the Court of Appeal as grounds for reversing the decision of the trial judge, only one succeeded, viz.: that the judgment was against the weight of evidence; and before their Lordships, counsel for the respondents rightly based his claim to succeed on the appeal, upon that point alone.
It is necessary now to explain the point to which the evidence was directed, and the question of fact upon which the case depended. The case turned upon the question whether the lands which the Odikro of Adjapoma held in 1904 (the reason for the selection of that date will appear later) and with which he served the Stool of the Ohene of Asiakwa had originally belonged to the Stool of Tafo or to the Stool of Asafo. This in turn depended upon tradition, as to what had happened in the dim and distant past. Up to a point the traditions deposed to, were in agreement. Long ago the Chief of Asiakwa, one of the Ashanti invaders, obtained permission for his servant (one Koyo a hunter) and his wife, Adjapoma, to settle and hunt on lands subsequently and now known as the Adjapoma lands. From this beginning had sprung the Stool and lands of Adjapoma. The point upon which the evidence of tradition given on behalf of Kisiedu and his side, differs from that given on behalf of Dompreh and his side, is as to the Stool from which the Chief of Asiakwa had sought and obtained the aforesaid permission; in other words to which Stool the Adjapoma lands then belonged. Kisiedu's witnesses said that according to tradition the Stool of Tafo was applied to and gave permission; Tafo supplied the land for Koyo and Adjapoma to occupy; the Adjapoma lands belonged to Tafo. Dompreh's witnesses asserted that according to tradition the Stool of Asato was applied to and gave permission; the Adjapoma lands belonged to Asafo. If the Adjapoma lands belonged to Tafo, the title in the green land had passed to Kisiedu. If the Adjapoma lands belonged to Asafo the title in the green land had passed to Dompreh.
The trial judge heard the witnesses, and although it is true that the acceptance of one version of the tradition does not necessarily involve that a man who deposed to a different version was testifying to something which he knew to be untrue, it is none the less true that prima facie a trial judge who hears and sees how the witnesses give their evidence as to tradition, is better qualified to form an opinion as to which is the accurate version, , than those who have not that advantage.
In this case the trial judge after a long trial and a close and careful examination of the evidence, came to the conclusion that the version of the tradition which gave Tafo as the owner of the
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lands was the correct one and decided accordingly. In reaching this conclusion he based himself on corroborative matters of different kinds. But first and foremost he fastened upon one matter which was undisputed and indisputable, to which their Lordships now refer.
In or about the year 1904 the Odikro of Adjapoma became indebted under a judgment to a neighbouring chief (the Chief of Okoko), in a considerable sum. He applied to his over-chief the Ohene of Asiakwa for assistance to pay the debt. The Ohene of Asiakwa was unable to find the necessary money, and told the Odikro of Adjapoma to apply to the Ohene of Tafo, as the Adjapoma lands had been given by the Ohene of Tafo. That evidence was given by Kofi Peasah who was the Ohene of Tafo at the time of the trial, and the nephew of Kwadjo Peasah, who was on the Stool of Tafo in 1904. His evidence runs thus:--
The Odikro of Adjapoma owed about £750 expenses in the dispute. The Adjapoma Odikro went to the Ohene of Asiakwa and asked him to help him to pay the debt. The Ohene of Asiakwa refused to pay more than £30 but said that Adjapoma land was given to him by the Ohene of Tafo, so they should go to him to pay. The Odikro came to my uncle and my uncle sent messengers to the Ohene of Asiakwa to ask him if what the Odikra of Adjapoma said was true. The Chief sent back by the messengers to say yes it was true. Then my uncle paid the debt and the Chief of Adjapoma served him.
Their Lordships appreciate that this is evidence given by an interested witness, but the truth of it is, they think, established, and the weight of it placed beyond doubt by the undisputed facts that Adjapoma did apply to Tafo for the money and obtained it from Tafo, and by the evidence which was given by an important witness called on the other side, viz., Kwesi Kromo the representative of the Ohene of Asiakwa, who made the following statement:-
The Chief of Asiakwa gave £30 and that was not sufficient so Adjapoma refused to take it. They went to the Ohene of Tafo and obtained the loan. I have not heard if the Ohene of Tafo sent to the Ohene of Asiakwa about the matter. I know since then the Odikro of Adjapoma has served the Ohene of Tafo and not the Ohene of Asiakwa, but I don't know why or of any arrangement. It is the custom if a man gets into debt to go to the man on whose land he is living for help. I can't explain why the Adjapoma people went to Tafo and not to Asafo.
Here at all events is a solid fact upon which a trial judge might well rely, in arriving at a decision in a case in which vague and uncertain evidence abounds. There were no doubt many other matters deposed to which gave indications pointing some in one direction, some in the other, and from which inferences could be drawn favourable to one view of the facts or the other. Their Lordships do not think it necessary to go through these other matters in detail. Suffice it to say that Deane C.J. considered them, weighed them, and came to the
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conclusion that the title to the green land was in Tafo, when Tafo and the Odikro of Adjapoma sold it to Kisiedu, with the result that Dompreh had acquired no title to the green land and was a trespasser thereon. Their Lordships find it impossible to say that the Court of Appeal could, on the materials before them, properly be satisfied that this finding of fact by the trial judge must be erroneous. No doubt an appeal in a case tried by a judge alone, is not governed by the same rules which apply to an appeal after a trial and verdict by a jury. It is a rehearing. Nevertheless before an Appellate Court can properly reverse a finding of fact by a trial judge, who has seen and heard the witnesses, and can best judge not merely of their intention and desire to speak the truth, but of their accuracy in fact, it must come to an affirmative conclusion that the finding is wrong. There is a presumption in favour of its correctness which must be displaced. As Lord Esher, M.R. said in Colonial Securities Trust Co. v. Massey ([1896.] 1. Q.B. 38.) “Where a case tried by a judge without a jury comes to the Court of Appeal, the presumption is that the decision of the Court below on facts was right, and that presumption must be displaced by the appellant.” Their Lordships must, they think, apply the same test, and ask themselves whether in their opinion the presumption in favour of the findings of the trial judge has been displaced; and they feel bound to answer this question in the negative.
In the Appellate Court the importance of Kwesi Kromo's evidence, as bearing on the incident of 1904, appears to have been overlooked. The whole incident is disposed of by Kingdon C.J. with the observation that “the explanation given by the appellants that Adjapoma turned to Tafo for financial assistance because Tafo was the wealthy neighbour who was able to give it, is a possible one.” This appears to their Lordships to be an unsatisfactory treatment of a crucial piece of evidence. Webber C.J. does not even refer to it, but devotes the greater part of his judgment to the question whether Kisiedu had proved that his parcels included the green land.
Their Lordships are unable to discern in these judgments any solid grounds for displacing the presumption which properly exists in favour of the correctness of the facts which have been found by the trial judge; and dealing with the matter as though it came before them directly on appeal from his decision, they find no reason either for displacing that presumption, or for disagreeing with the judgment which he pronounced.
Their Lordships are of opinion that the appeal should be allowed and the judgment of Deane C.J. restored, and they will humbly advise His Majesty accordingly. The respondents must pay the appellants' costs of the appeal to His Majesty in Council, and to the West African Court of Appeal.