Verity, C.J. In this case the appellant, who represents the Stool of Bansu, claimed possession of certain land as the property of the Stool, damages for trespass and an injunction. The area of land claimed is delineated on a plan and the boundaries as given by the appellant and as shown on the plan are: On the North by the Fura river till it reaches the Wassaw boundary; on the East the Ankobra river; on the South the Anwiasu stream; and on the West the Wassaw Amanfie lands. The respondents, who represent or claim through the Stool of Tomento, allege that the land in dispute is the property of that Stool.
It is admitted that no Bansus live or farm on the disputed area and that people of the Tomento clan do so. It is further admitted that, from time to time, options for concessions within the area were granted by the Tormentors, but it appears that none of these options was taken up and that there was no occasion therefore for the Bansus to enter opposition thereto. The Bansus have also from time to time granted concessions within the area at least one of which is found by the learned trial Judge to have been taken up and worked and in regard to another the right of the Bansus to grant the concession was upheld by the Court in 1943 after due enquiry into opposition entered by the Tomentos.
The appellant adduced evidence as to the traditional settlement of lands in this region by the Bansus and the Tomentos, the former to the west and the latter to the east of the Ankobra river. The respondents tendered no traditional evidence but relied upon evidence of acts of occupation extending over many years and of such acts of ownership as the granting of timber-cutting and farming rights to strangers upon payment of tribute. The Bansus and the Tomentos are clans of the Gwira State and in explanation of the occupation of lands west of the river by individual Tomentos the appellant gave evidence of an alleged custom of the Gwira State whereby members of one clan thereof may occupy and farm lands of any other clan by the tacit or express permission of the latter without payment of tribute or other form of toll. This custom the respondents denied.
The learned trial Judge dismissed the appellant’s claim for damages on the grounds that “the Bansus are not in occupation of the disputed area while the Tomentos are “and that he “failed to see how the owner of land can give permission to others to be in possession of their land and at the same time allege that they are trespassers”. In regard to the explanation of that possession tendered by the appellant he came to the conclusion that it would be unsafe on the conflicting evidence before him to decide that the custom of the Gwiras is that Gwiras of one division can move into and occupy lands of another without any acknowledgment, and generally in regard to the appellant’s claim to ownership he found that, in view of the conflicting evidence, it was unnecessary and indeed impossible to decide what are the precise geographical boundaries separating the Tomentos from the Bansus and had not anything like sufficiently” reliable evidence to enable him to do so.
Passing for the moment the learned Judge's dismissal of the appellant’s claim for damages, with which we will deal at a later stage, it will be convenient in the first place to consider the claim for possession based on evidence of ownership.
The evidence of the appellant in this regard fell into two parts; that which went to show the root and continuance of the appellant’s title and that which went to explain the respondents’ occupation.
In regard to the formed; there is, in the first place, the traditional evidence adduced by the appellants. As is inevitable in such matters there is in this evidence neither precision nor freedom from discrepancy, but it is clear that it goes to show how the land in the neighbourhood came to be occupied by the Bansus and Tomentos and that in early days the Ankobra river formed the main boundary between them, the Bansus to the west and the Tomentos to the east. No evidence was adduced by the respondents in contradiction of this evidence of tradition and it is not easy to see on what grounds it can be rejected prima facie. Similar evidence appears to have been given at the hearing of the Concession Enquiry No. 2059 in 1943 and was then considered to be common ground. It was in any event adopted by M’Carthy, J., who held the Enquiry, and who found that all settled first on the west bank of the Ankobra river, but in course of time the Barmiankors and the Tomentos settled on the opposite bank”. There is also the evidence of the Chief of Amuni, Wassaw Amanfie, to the effect that his lands meet those of the Bansus and that he has no boundary with the Tomentos at all, as they are on the other side of the Ankobra river. There is then evidence of a suit in 1890 relating to land on the west bank of the Ankobra, north of the Anwiasu stream, that is to say, within the area now in dispute. That this is so and that the suit resulted in favour of the Bansus appears to be admitted by the respondents, who plead, however, that any claim there- under is now barred by the Real Property Limitation Act, 1833, a statute of very doubtful aid in relation to land held by native law and custom. In the Concession Enquiry to which we have referred M'Carthy, J., while holding that this suit had no direct bearing on the issues then before him observed, But it has this significance: it establishes that at the time Bansus held land north of the Anwiasu “. There is also the evidence of Concessions granted by the Bansus in exercise of their claim to ownership of the land in dispute, and more particularly that in regard to which the Enquiry was held in 1943. The judgment then given although confined to the limited area covered by the concession is entitled to careful consideration in relation to the present dispute. It definitely establishes the Bansus’ title to an area of land within the area now claimed by them and comprising a strip of land 600 yards deep along the west bank of the Ankobra river between its junction with the Fura river and the Angoramani stream, which is south of the Anwiasu stream, the southerly boundary of the disputed area.This strip of land lies, therefore, on the eastern side of the land now claimed by the appellant and is interposed between the land admittedly owned by the Tomentos and the area which they now claim west of the Ankobra river. There is no evidence as to how the Bansus came to acquire ownership of this strip of land save that of the appellant that it forms part of the larger area claimed in the present action. It would be extraordinary were one to conclude that, of all this land west of the river, the Bansus had acquired by some undisclosed means ownership of the precise strip the subject of the Concession proceedings and of that strip alone, more especially as the western boundary thereof is determined solely by measurement from the centre line of the river. The more reasonable presumption would be that this strip of land formed part of a larger area, the determination of which was not then before the Court, but which in the present action is delineated and claimed by the appellant.
It is true that M’Carthy, J., in those proceedings observed that it was unnecessary for him to decide any question as to the rights of the Bansus and Tomentos over adjacent land, and added ,. this might be difficult” and this brings us to consideration of the evidence adduced by the respondents in support of their claim for it is in relation to this evidence that the difficulty envisaged by that learned Judge arises. It goes to show that for” many years, in some instances for several generations, members of the Tomento clan have farmed areas of land within the disputed area and have in certain cases established farming villages there; that they have admitted strangers to certain rights therein upon payment of toll and have granted certain options for concessions within the area, These acts of occupation and of assertions of ownership are not denied by the appellant. Indeed, certain of these acts are the causes of the present complaint. In this country where land may be in the occupation of persons who are not the owners but who for generations may have had rights of occupation as licensees or , customary tenants or under other conditions known to local custom, the reversion nevertheless being in the owner, it is essential that the nature and origin of the tenure of the occupiers should be determined. Mere occupation even for long periods is not in itself sufficient to establish ownership. In Abotche Kponuglo v. Adja Kodadja (1) the Judicial Committee of the Privy Council expressed the view that in such cases “the first question logically and chronologically to consider “is the traditional evidence regarding the acquisition of a title to the disputed territory” and in that case their Lordships expressed themselves as being unable to agree with the Court of Appeal that the evidence of farming of parts of the disputed land is evidence of title to the whole land. In Kuma v. Kuma (2) their Lordships, in regard to a similar dispute, observed:-
“It appears therefore that among the natives occupation of land is frequently allowed for the purpose of cultivation but without ownership of the land being parted with. The owner of the land being willing to allow such occupation so long as no adverse claim is made by the occupier; the occupier knowing that he can use the land as long as he likes provided he recognises the title of the owner.”
Their Lordships proceeded:-
“If the evidence as to occupation be considered with the caution which has been deemed essential by the Board in such cases as the present, it is in the opinion of their Lordships not inconsistent with the title of the plaintiff and it is by no means conclusive of the defendant’s title.”
In view of the traditional evidence as to the original settlement of this land it is indeed necessary that the evidence of occupation should in this case be considered with caution and the evidence as to the origin of this occupation must be considered with care. No such evidence was tendered on behalf of the respondents but the appellant attempts to account for the possession by reference to the custom of the Gwiras to which we have referred, a custom which is, however, denied by the respondent and his witnesses. The existence of this custom appears to have been accepted by M’Carthy, J., in the concession proceedings and, indeed, its existence does not appear then to have been contested for the first respondent admits that in those proceedings he himself said that “ the Tomentos can farm Bansu land and vice versa without question”. He now states that this was " a slip of the tongue " but so grave an admission coupled with so facile an excuse might well weigh heavily against his present contention. The evidence in favour of the custom is that of the appellant who is a chief of one of the clans of the Gwira State, his first witness who is the chief of another of such clans, and the second witness who is the head of the Stool family of the Bansus and at one time occupier of that Stool. The evidence against it is that of the first respondent, in contradiction of his admission in previous proceedings, his fourth witness, the Linguist of the Stool family of Lower Axim, who testifies as to the native custom of the Gold Coast generally, his twelfth witness who is an ex-Chief of Tomento, and the thirteenth witness who both testify that in order to farm on the land of another division express permission must first be obtained.
Consideration of the whole of this evidence would lead, we think, to the inevitable conclusion that had the learned trial Judge accepted the evidence for the appellant in regard to each of the main divisions in which that evidence fell, it would have been impossible for this Court to have held otherwise than that he was fully justified in so doing. In this case, however, the learned Judge did not so find and it must be considered what is the attitude which this Court should adopt in relation to the appeal which has been brought against his dismissal of the appellant's claims. In so doing we would bear in mind the well established principles regarding the functions of an appellate Court in relation to the findings of fact by a trial Judge sitting without a jury, principles which were examined and affirmed by the House of Lords in Powell v. Streatham Manor Nursing Home (3). In that case the Lord Chancellor said:-
“The Court of Appeal will not set aside the judgment unless the appellant satisfies the Court that the Judge was wrong and that his decision ought to have been the other way” and approved the dictum of Lord Shaw when he said in Clarke v. Edinburgh Tramways Co. (4):-
“When a Judge hears and sees the witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect and that quite irrespective of whether the Judge makes any observation with regard to credibility or not.”
Lord Wright observed that the case then before the House was of general importance because of the discussion which had taken place on the proper functions of the Court of Appeal where the case is purely one of fact and the trial Judge has based his judgment on the conclusions he has formed as to which of the witnesses whom he has seen and heard are trustworthy and which are not. His Lordship proceeded to quote the opinion of Lord Sumner in Hontestroom (Owners) v. Sagaporack (Owners) (5). In that case His Lordship said:-
“Of course there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witness it is not however a matter of discretion to remember and take account of this fact it is a matter of justice and judicial obligation. None the less, not to have seen the witnesses puts the appreciate court in a permanent position of disadvantage as against the trial Judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.”
While we are bound to observe these principles we must not overlook the judicial obligation referred to by Lord Sumner and referred to by this Court in Cudjoe and - Others v. Kwatchey and - Others (6), at p. 374, where it was said:-
“The Appeal Court is not debarred, however, from coming to its own conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the appeal court can make up its own mind on the evidence not disregarding the judgment appealed from but carefully weighing it and considering it and not shrinking from overruling it if on full consideration it comes to the conclusion that the judgment is wrong.”
What then were the conclusions of the trial Judge in the present case in regard to the evidence before him and upon what did he base those conclusions? It is not easy to determine from his judgment whether in regard to either of the phases of the case in so far as the facts are concerned he made any findings of fact or whether he came to any conclusion as to the credibility of the evidence before him or drew any conclusion or inference with regard to what is the weight on balance of the evidence of the witnesses whom he saw and heard. In regard to the evidence adduced by the appellant as to the facts of the case he says no more than that:-
“In view of the conflicting evidence I have before me and of the general conclusions to which I have come I find it unnecessary and indeed impossible to decide what are the precise geographical boundaries separating the Tomento from the Bansu. In any event I have not anything like sufficiently reliable evidence before me to enable me to do so.” and again:-
“In any case I find the evidence led by and on behalf of the plaintiff to be of such an inconclusive nature that I cannot consider his claim to be in any way substantiated.”
In regard to the first of these observations we are unable to appreciate the difficulty experienced by the learned Judge in deciding what are the precise geographical boundaries separating the Tomentos from the Bansus. This does not indeed appear to us to be the matter in issue. The precise geographical boundaries of the area in dispute appear to us to be unquestioned. The issue is whether the area belongs to the Bansus or the Tomentos, and where a plan has been accepted by both parties as defining the boundaries of the land claimed “by both and the only boundary with a third party appears also to be by that third party, we are unable to find the basis for the trial Judge’s conclusion that there is not “anything like sufficiently reliable evidence “to enable him to determine what are those boundaries. In regard to the second of the observations of the learned Judge upon the question of the evidence as to the facts of the case they appear to be addressed rather to the cogency of the evidence than to the credibility thereof. Upon the evidence before him and before us, and in the absence of any specific finding by him as to the weight on balance of that evidence, it appears to us that this evidence is anything but inconclusive. The weight on balance appears to show beyond doubt that the original settlement of the land west of the Ankobra river was by the Bansus, that therefrom the Bansus acquired ownership of those lands, the boundary between them and the Tomentos being the river.. The sole difficulty which arises from the evidence is the conclusion that is to be drawn from the present occupation of farming lands within the area west of the river by the Tomentos. The fact of this occupation is not in dispute. The inference to be drawn from it depends upon the weight that is to be attached to the conflicting evidence as to the custom of the Gwiras in relation to the use of land the property of one section by members of another.
On this question the conclusions of the trial Judge are hardly more satisfactory. After reviewing the evidence on this point and considering the observations of M’Carthy, J., in regard thereto, the learned Judge proceeds:-
“Upon consideration of the question of native custom I have come to the conclusion that it would be unsafe for me, on the conflicting evidence before me to decide that the native custom of the Gwira is that the Gwiras of one division can move into and occupy lands of another without any acknowledgment of any sort. In the writ it is stated that the second, third and fourth defendants are in occupation by tacit consent of the plaintiff, but no evidence or at least no cogent evidence has been put forward by the plaintiff to show that any such permission was ever given; and it has not been stated what precisely is meant by tacit consent .”
In regard to these observations we are, in the first place, unable to share the difficulty experienced by the learned Judge in deciding what is meant by” tacit consent”. It is for the Court and not for the parties or their witnesses to determine precisely what is meant by” tacit consent”, and if, as in the present case, the weight of the evidence goes to show that the Bansus by right of settlement were the original owners of the land and if, as there is evidence, they were aware of the occupation of certain parts of the land by the Tomentos for purposes of farming and raised no objection thereto so long as the Tomentos did not dispute their ownership, then “tacit consent” may be taken to have been proved.
In the second place there appears to us to have been a certain confusion of thought in the conclusion of the learned Judge that, having as it would appear accepted the view of M’Carthy, J., that:- “one Gwira Stool allows members of another Gwira Stool to make very free use of its lands, much as though they were members of the Stool owning the land” subject to that learned Judge’s proviso that:- “he may not use the other's land without permission, tacit or express” he appears to have added thereto, at the instance it may be of the assessor, a further proviso that there must also be some acknowledgment by the user of the owners title at the insistence of the owner, a condition which. is surely inconsistent with tacit consent. We think, therefore, that the learned Judge erred in his appreciation of the real nature of the custom set up by the appellant and accepted by M’Carthy, J., in the previous proceedings as one of the bases of his decision.
In the third place, the learned Judge appears to have based his rejection of the custom upon the fact that there was conflicting evidence, without having attempted to resolve that conflict, or at any rate to record in his judgment the conclusions he arrived at as to the weight of the evidence on balance in making that attempt. Such conflicts are usual, if not inevitable, and it is fo1' the trial Judge to weigh the evidence and determine either that the balance falls upon one side or the other or that there is so even a balance that he is unable to say which he should accept. The learned Judge appears to have reached the latter conclusion, and, as he gives no indication as to his belief or disbelief of the evidence upon one side or the other, it appears that this inability to reach a conclusion is based rather upon his adoption of the assessor's view as to the necessity for some form of acknowledgment and upon his own doubt as to the meaning of tacit consent than upon anything intrinsic in the nature of the evidence he was called upon to consider. In such case this Court is entitled to reconsider the conclusions of the trial Judge in the light of our own comparisons and criticisms of the witnesses and our own yiew as to the probabilities of the case, for the trial Judge has failed to use the advantage he possessed of having heard and seen the witnesses, Upon this' basis we can have no doubt that the weight of the evidence on- balance lies on the side of the appellant and we are fortified in the view that upon this evidence the learned trial Judge should have accepted the appellant's contention as to the local custom, by the view of M’Carthy, J., in the earlier proceedings and the apparent acceptance of that view by the parties to those proceedings, of whom the first respondent was one.
We have dealt at some considerable length with these matters for we wish to make clear the circumstances in which we feel that in the discharge of what , Lord Sumner has described as a ,. judicial obligation” it is our duty not to shrink from overruling the judgment of the Court below if on full consideration we come to the conclusion that the judgment is wrong. That is, indeed, the conclusion to which we have come after the fullest consideration. We are of the opinion that had the learned trial Judge approached the consideration of the issues before him: from the right angle, had he appreciated the real nature of the issues, then unless he felt himself impelled by the impression made upon him as the result of seeing and hearing the witnesses to reject the evidence tendered by the appellant, he would have come to conclusions favourable to the appellant. Upon our own consideration of the evidence we have reached the conclusion that the appellant has established as against the respondents that the Bansus are the owners of the land described in the writ of summons and delineated upon the plan put in evidence and that, in so far as the Tomentos are in occupation of portions of that land, they are so in occupation by the tacit consent of the Bansus in accordance with the law and custom of the people of the Gwira State, and not by virtue of any right of ownership.
Before stating the order which must follow upon these conclusions we would wish to make it clear’ that they relate solely to the facts of the case before us; that our acceptance of the custom put forward by the appellant is acceptance only of what has been proved to be the peculiar custom of a particular people and is not to be construed an adoption of this custom as applicable generally to the peoples of the Gold Coast as a whole or to any people other than .those of the Gwira State; that even in relation to these latter the custom will only operate in favour of those who claim to be the owners of the land in cases where they succeed in establishing their own title to ownership and either that those who occupy portions of the land do so with their express permission or that they have been aware of the occupation without raising any objection thereto so long as the occupation did not involve any denial of their own rights as owners and have resisted any attempt on the part of the occupiers to make such denial either by word or conduct. In the present case we are satisfied that the appellant’s evidence properly considered does fulfil these conditions and that it is not substantially affected by any evidence put forward by the respondents.
The appellant was therefore entitled to a declaration that, as between himself and the Tomentos, represented by the respondents, the land described in the writ is the property of the Bansu Stool, and we make the declaration accordingly. It is true that from the form of the writ it would appear that the appellant seeks an order for possession, an order which would mean the wholesale eviction of the Tomentos from land which they admittedly occupy by the consent of the Bansu owners. The whole case has been fought out, however, upon the single issue as to ownership and it is obvious that no order for possession involving such eviction can be made against the numerous individuals who are in occupation by reason of such consent, many if no the majority of whom are not before the Court.
In regard to the claim for damages for trespass, it may well be that according to native law and custom there is some sanction which may be applied and some relief granted in respect of breach of the conditions of occupation but there is no evidence that such relief would sound in damages. Nor is there any such evidence as to the precise limitations of the rights of occupancy as would enable this Court to grant an injunction to prohibit breaches thereof.
The appeal must be allowed and in determination of the real issue between the parties, that of ownership of these lands, the judgment of the Court below will be set aside and in lieu thereof there will be substituted the declaration we have made above. The appellant is entitled to his costs in the Court below to be taxed and to his costs of this appeal assessed at £142 3s. 0d.
Appeal allowed.