M’Carthy, Ag. C.J. This is an appeal from a judgment of the Land Court, Cape Coast, dated the 16th October, 1945, awarding the plaintiff £25 damages against the defendant for trespass over the plaintiffs eastern boundary as claimed by him and shown in the plan marked Exhibit “A” in the suit.
Although the plaintiff sued in trespass, the case in effect a boundary dispute.
The plaintiff sued in his capacity as Adontenhene of Andoe and claimed that the land to the west of the said boundary is attached to his Stool and lies within the territory of the Asin Apimanim State.
A number of grounds of appeal were argued before us, but it is only necessary to refer to ground 8, which is as follows:- “Because in view of the decision of the learned trial Judge as to the lawfulness of the oath sworn by the plaintiff-respondent on the tenants of Brainua whereby the latter were compelled to enter into agreements with him to save their crops, the trial ought to have been conducted with the aid of assessors.”
It is complained that a reference to what the Judge held to be a lawful oath imported into the case a question of native customary law, and that as he was sitting as a Land Judge without an assessor, the proceedings were thereby rendered null and void, having regard to the provisions of section 20B of the Courts Ordinance as amended by section 2 of Ordinance No.2 of 1945.
The Judge found with regard to evidence for the appellant as to interference by the plaintiff with Branuah’s tenants, that the conduct of Branuah (a predecessor in title of the appellant) weighed heavily against her. He stated as follows:-
“It suggests that perfectly aware of the old boundary she covertly instigated others to encroach over it but was unprepared herself for a trial of strength with the plaintiff's predecessor. A lawful oath had been sworn not for an unlawful purpose. It was a natural step for a Chief to take in the assertion of his title. Branuah would reasonably be expected to swear a counter oath or sue him to raise the issue. It was to be expected that she should keep her men in suspense by telling them not to make the agreements and that the case was not at an end, but she did nothing until her , trespass in December, 1943, which gave rise to the action in the Assin Mansu Tribunal and the subsequent execution sale which is the subject of this case.”
The whole incident, the alleged lawful oath and the reactions thereto of Branuah and her tenants constituted an issue involving native customary law. An oath is mentioned in section 48 (1) of Cap. 76, and the procedure in connection with it is part of native custom and unknown to those who have not some knowledge of native custom. It is sufficient to say that if one disputant takes appropriate steps in respect of an oath, the dispute is brought before a tribunal for determination, and if he does not he is held to have admitted the other’s claim.
The learned Judge stated at the outset of the trial that no new question of native customary law was involved, and at the beginning of his judgment that there was no question of such law. It is difficult to see how he could have made the latter statement, except in the sense that there was no such “new” question. If he did so, in our opinion he erred because section 20B does not distinguish between new and old questions of native customary law.
The evidence in question may be reduced to this, that the plaintiff took action in respect of the land, as a result of which the tenants came to terms with him, and Branuah in face of this took no action against the plaintiff. These are the bare facts, and it might be said that the evidence as to the procedure employed by the plaintiff is of secondary importance. But it is obvious that stripped of this latter evidence, this part of the plaintiff’s case is materially weakened, and tells less heavily against the defendant.
The learned Judge primarily based his decision on the documents in the case and the evidence relating thereto, but it is impossible to lay with any degree of certainty that but for the evidence admitted by him ultra vires he would have arrived at the same conclusion. In these circumstances the fact that he exceeded his jurisdiction cannot be overlooked, and we have no alternative to holding that the proceedings were thereby rendered null and void.
It is ordered that the case be tried de novo by a Land Judge sitting with one or more assessors, the appellant to have his costs in this Court assessed at £82 16s. 0d. and those in the Court below to be taxed.
Appeal allowed and new trial ordered.