KINGDON, C.J., NIGERIA.
This is an appeal from the Divisional Court of the Central Province sitting at Cape Coast. The plaintiff's claim was for £100 damages for trespass upon his land at Agona Swedru. The trespass complained of was the building by the defendant of a portion of his house upon the plaintiff's land. The learned Judge in the Court below after pointing out that the burden of proof was on the plaintiff, held that the plaintiff had not proved that defendant had built on any portion of the plaintiff's land and entered judgment for the defendant. From that judgment the plaintiff appeals.
The first ground of appeal is misreception of inadmissible evidence. The evidence alleged to be misreceived is the whole of the evidence of the witness .Abba Assaniwah. The reason it is suggested that her evidence was inadmissible is that in cross-examination she was asked a number of questions about the sale of her land and after answering them said “All I know about the “sale of the land I learnt from my husband”. The contention that all her evidence is inadmissible because in answering certain questions in cross-examination she was speaking from hearing need hardly be taken seriously and there is no substance in this ground.
The second ground of appeal is “Error in law”, it being contended that the Court was bound by a consent order made on the 1st March, 1933, to abide by the Surveyor's report and so had no jurisdiction except to ascertain the extent of the damage (if any) suffered by plaintiff. The order referred to is in the following terms:--
“The two conveyances to be sent to the Provincial Surveyor for “report of this Court, as to whether the land shewn in the conveyance “dated 15th April, 1932, encroaches upon the land shewn in the “conveyance dated l0th August, 1930. Parties agree to abide by his “report”.
If the Provincial Surveyor had been able to make a definite report upon the point referred to him, there might be something in the contention, but as he did not and could not do so, it becomes a two-edged weapon and cuts the ground right from under the plaintiff's case. The two conveyances referred to are those relied upon by the plaintiff and defendant respectively for their title to the land they claim.
In making his report the Provincial Surveyor forwarded a plan (Exhibit "C ") on which the area claimed by the plaintiff is edged green and that claimed by defendant is edged brown. The two areas partly overlap.
If the Provincial Surveyor had reported that the area edged green corresponded either with the area shown in the plan on the plaintiff's conveyance or with the description of the area in the body of the conveyance, the plaintiff would have had something to go upon. But the Provincial Surveyor was very far from making a report in that sense. The nearest he gets to it is in paragraph 4 of his report, upon which the plaintiff relies and which reads:
“If you examine the plan on plaintiff's conveyance, and turn it so “that the north shewn becomes the west and the east shewn becomes “the north, there is a considerable similarity between this area shewn “on the conveyance, and the area pointed out by him on the ground. “The buildings called Abbah Assaniwah's on the plan could not be “identified at the time of survey, as they have been demolished, but “the Town Survey Sheet sent to you, will show that some building “did exist previously, and that it abutted on to the western boundary “of the area claimed”.
The plaintiff asked the Court below, and now asks this Court, to find as a fact that two areas are identical upon a surveyor's report that if one of them is turned round there is “a considerable similarity” between them. Of course no Court could possibly make such a finding.
In addition to furnishing a report the Provincial Surveyor gave evidence upon commission as a result of an application in that behalf by the plaintiff. In the course of his evidence he stated that, from a survey point of view, it was impossible for anybody to locate the area shown in the plan on plaintiff's conveyance unless the site of Abba Assaniwah's building was located on Exhibit "C"; and further that Abba Assaniwah's buildings did not exist at the time of the survey. It is more than ever clear from this that the Provincial Surveyor must not be taken as reporting that the area edged green on Exhibit " C " is identical with the area of the plan in the plaintiff's conveyance. If the plaintiff relies upon the Provincial Surveyor's report, by which he now contends that the Court below was bound, it is obvious that that report failed completely to establish any sort of case on the plaintiff's behalf and the claim was properly dismissed.
The third ground of appeal is that the judgment was against the weight of evidence. Except for evidence relying upon the assumption (which. Has already been shown to be false) that the area edged green on Exhibit " C " is the same as the area shown in the plan un the plaintiff's conveyance, there is hardly any evidence of trespass; on the other hand there is evidence, which the Judge believed, to show the probability that the defendant's contention in regard to the disputed area is correct. It is not, of course, necessary for the defendant to prove his contention correct. In this case he succeeds by the weakness of the plaintiff's case. The weight of evidence such as it is, is all in favour of the defendant and this ground fails.
The remaining grounds of appeal are idle repetition and were not separately argued.
In my opinion the appeal fails on all points and should be dismissed with costs.
In this case the plaintiff's conveyance is quite useless for the purpose of fixing the boundaries of his land at Swedru, even if one makes the assumption, which is directly contrary to his own evidence, that his draughtsman has mistaken the points of the compass in addition to making quite considerable errors in regard to linear measurements. He is therefore driven to rely on user and occupation of the area in dispute, and the only evidence in that respect that I have been able to discover in the record is the following passage in the plaintiff's own evidence:---
“I took possession of the land by clearing weeds off it. I fenced “and made a portion of the land a vegetable garden. I erected an “iron sheets shed. I put a woman in the shed. I did not enclose the “whole of the land. I then went to Ashanti on business. Whilst I “was away there, I received a report from the woman I had put in “the iron sheet shed. Her name is Essie Gyanbah. This was in 1932. “I went down to Swedru, and discovered two huts which had been put “up by Abba Assaniwah had been demolished. When the land was “measured to me, these two huts had been included in it. There was “a third hut occupied by Abba Assaniwah, which was part of my “boundary. Abba Assaniwah is alive. She had permission from me “to use the two huts until I started building on the land. I went to “look for Abba Assaniwah. I had a conversation with her. In “consequence of what she said I went to see the defendant”.
This very meagre evidence of user and occupation is contradicted by Abba Assaniwah herself, and the learned trial Judge, who saw and heard her, states that he believed her evidence. I can see no reason why we should differ from the learned Judge's view of her credibility, especially as it is borne out by what he himself found on the locus in quo when he went to view it. The following passage from his judgment seems to be very much in point:---
“A significant thing to my mind is that plaintiff, in the plan “prepared by the said Government surveyor to show the area “claimed by him, starts his measurements, when measuring up “to and into defendant's building, from points within the garden “and iron sheet shed enclosure already referred to. This is “obviously done to enable him to get a measurement which “reached into defendant's buildings. These measurements “appear to me purely arbitrary and cannot be reconciled with any “points of identification set out in the plan on his deed of “conveyance. On the other hand, if plaintiff measured the “distances from the concrete foundation in the opposite direction, “he would get a piece of land more or less in accordance with the “measurements of his plan, by taking in the bank of land sloping “to the trodden road to the east of his land.
“I had the advantage of inspecting the locus in quo, and “the contour of the land itself, which such measurements as I “have just mentioned would give to the defendant, appears most “likely to be that originally conveyed to plaintiff as it is all on a “raised portion of land”.
To my mind from whatever angle one views the plaintiff's case it is hopeless, and even if we acceded to Mr. Williams's proposition that the Court below could consider nothing but Mr. Gemmel's Report and his evidence in explanation thereof, the result would be just the same since the defendant is in undoubted possession of the area in dispute and there is nothing whatever to show that the plaintiff is entitled to any part of it. I agree that this appeal must be dismissed with costs.
GRAHAM PAUL, J. I concur with both the judgments delivered by the learned President and by my brother Aitken.