Coussey, J. This is an appeal by the defendants against a judgment of the Lands Division of the Supreme Court (M'Carthy, Acting C.J.) in a suit in which the plaintiffs obtained a declaration of title to a large area of land, about twenty square miles in extent, having as its eastern boundary the river Volta, the principal river in the Gold Coast Colony and which, until the expulsion of the Germans about the year 1915, was the international boundary between British territory and German Togo land.
The plaintiffs on the writ of summons as finally amended, are the Omanhene or Paramount Chief of Kwahu and his subordinate Chief the Dsasehene of Bukuruwa. The Kwahus are one of the large Akan States of the Gold Coast.
The third defendant is the Chief of Wusuta, one of a large tribe known as the Ewe whose lands e.xtend eastward from the eastern bank of the Volta.
The action was originally brought by the plaintiffs against Chief Tawia of Atipradaa. a sub-chief of the Stool of Wusuta and the second defendant Akuamoa a subject of the Aveme Stool, both Ewes to whom the plaintiffs allege they gave permission to live and work on portions of the disputed area.
According to the plaintiffs' case, after many years' occupation by the first and second defendants and, in the case of the first defendant, of his predecessor also during which period they had rendered tribute to the plaintiffs, about the year 1940 on the authority of the third defendant their superior Chief they disputed the plaintiffs' title, hence the third defendant was joined on the plaintiffs' application and a declaration of title is sought against him also.
The immediate cause of the litigation is that the first and second defendants had refused further to recognise the plaintiffs' title in the circumstances above stated. Both parties relied upon their traditional history and also upon evidence of present occupation of the land in dispute. To explain why their occupation had not been so full as the title they claim warranted, the defendants suggest that the declaration of the river Volta as the Anglo-German boundary in the year 1886 prevented their exercise of full dominion over the land from that time, because as German subjects they were not allowed to cross the frontier. In spite of this, however, they say that a connection was maintained between them and the Ewes settled on the land.
Reviewing the rival traditions the trial Judge, supported by recorded history, found that the Ashantis, a powerful nation from the north, in one of their wars, 1866-1869. fought and drove the Krepis, led by the Peki Stool and with them the Wusutas, from the land in dispute to the east of the Volta river. In that war the Kwahus were allies of the Ashantis. When the Ashanti army receded the Kwahus, as allies of the Ashantis, remained in possession of the land in dispute as owners, the Ashantis advancing no claim thereto.
The learned Judge summed up the situation, after the Ashanti war referred to, as follows:- “It seems probable that any Wusutas then settled on the west bank of the Volta on the land in dispute would have fled before the enemy, and that for sometime at any rate there could have been no question of the Kwahus serving Wusuta or any other Ewe Stool. Conditions in those parts continued to be unsettled for a number of years. It is likely though that at least some of the Wusutas who fled before the enemy resettled on the land in dispute after the withdrawal of the Ashantis. The Wusuta. case is that the Wusutas regained dominion over the land.”
This accords with the methods by which one tribe by conquest acquired ownership of the territory of another. In such circumstances when conditions became settled it is within native concepts that the new owners would allow the conquered Wusuta and other Ewe peoples to occupy parts of the land for cultivation so long as no adverse claim was made (see Kuma v. Kuma (1) ).
In our view the learned Judge drew a fair and proper conclusion from the rival traditions presented by the parties.
In the course of the trial, the proceedings and award of a Travelling Commissioner in an Enquiry relating to the disputed land in which certain Ewe Chiefs, including the third defendant’s predecessor on the one part and the plaintiffs represented by the Chief of Nkami on the other part were admitted in evidence as part of the plaintiffs' case, although they had not been pleaded by them. After reviewing the state of affairs at the time of that Enquiry, the trial Judge found that the award referred to supported the plaintiffs' case. We set this out in his own words:-
“It seems to me highly relevant that the Travelling Commissioner, who dealt with the dispute in a town on the land in dispute, and heard a large number of witnesses who could speak as to relevant matters within their own knowledge, should have decided in favour of Kwahus. He obviously was in a far better position than I to find out the truth of the matter.
“Having regard to the nature of the pleadings, should, if of opinion on the evidence before me that the Commissioner came to a wrong decision, give effect to that opinion. But having weighed the evidence outside the award my view is that the balance is slightly in favour of the Kwahu Stools.”
At the end of his judgment the learned Judge declared that he had been influenced by the award in his final conclusion.
The judgment appealed from is criticized on two main grounds: (1) That the onus was on the plaintiffs to establish a right to a declaration of title and that the plaintiffs' evidence did not destroy the defendants’ case that they were the original Krepi or Ewe settlers on the land who had always maintained possession without acknowledging the title of the Kwahus. (2) That the arbitration proceedings and award were not admissible in evidence against the defendants.
Dealing firstly with the second objection, in our view the proceedings at the Enquiry were not in fact admitted in evidence for the purpose of forming part of the plaintiffs' case. Looking at the record we observe that the proceedings were tendered to enable the Court to see the scope of the Enquiry in order to rule as to the admissibility of the award. The defendants’ Counsel did not object to their admission for this purpose, but it is clear on general principles that the notes of evidence given at that Enquiry could not be used as evidence of the facts then shown to exist; that evidence was not admitted on the ground that some or all of the witnesses were dead, or on any other exceptional ground which would ;have rendered it admissible.
The submission to arbitration is in writing. It does not provide that an award shall be in writing and therefore a parol award is not excluded, although a written award is more usual.
According to the report of the Commissioner it appears that a parol award was in fact made. The fact that a parol award appears to have been made, in our view, rules out Exhibit “F” as the award of the Commissioner; it is in fact a report to the Governor of the effect of the award delivered. There is no evidence, therefore, before the Court as to the terms of the actual award made, although there is evidence in the plaintiffs’ case that it was in favour of the Chief of Nkami and the Kwahus.
Before proceeding.. further we shall refer to three Exhibits “M” , “N” and “O”, letters said to have been written by Cudjoe Dei, Ewe Chief of Fasu village on the land in dispute to the Nkwatia Chief of Kwahu. These letters were tendered by the plaintiffs as containing admissions of their title. Cudjoe Dei is illiterate and the letters are said to bear his mark. Containing admissions as they are said to do of the co-plaintiffs' title through his sub-chief of Nkwatia who had withdrawn from the suit as a co-defendant we are not satisfied that they were strictly, proved to convey what Cudjoe Dei intended so that they might be admitted in evidence to weigh against the defence. It was open to the plaintiffs as Cudjoe Dei is alive, to have called him as a witness and to put the letters to him as a foundation for their admission in evidence. In dealing therefore with the other main ground of appeal we have excluded from our consideration the proceedings and the so-called award and the three letters referred to. We have now to consider the following finding of the trial Judge which has already been referred to. We set it out again:-
“Having regard to the nature of the pleadings I should, if of opinion on the evidence before me that the Commissioner came to a wrong decision, give effect to that opinion. But having weighed the evidence outside the award my view is that the balance is slightly in favour of the Kwahu Stools.”
This is a general finding of fact in the plaintiffs' favour on the evidence before the Court, and we propose to examine the evidence to see how far this can be supported. It is unfortunate that, in a case which occupied the trial Court for a considerable time, there was not a full analysis of the evidence. In a great measure this appears to be due to the attitude adopted by Counsel for the defence in his final address to the Court and indeed to the general conduct of the defence. We feel it is our duty, therefore, in this appeal under the general powers of this Court provided for by rule 31 of the Rules of the West African Court of Appeal to examine the evidence fully to arrive at our judgment. In doing so we keep before us the principles which have been urged very forcibly for the defendants-appellants, namely that the onus is on the plaintiffs to satisfy the Court that they are entitled on the evidence brought by them to a declaration of title and that they must rely on the strength of their own case and not on the weakness of the defendants’ case, and further that if the whole evidence in the case be conflicting and confused and there is little to choose between the rival stories the plaintiffs fail.
During the four days that this appeal has been argued before us, it has been increasingly clear to us that the evidence is far from slightly in favour of the plaintiffs’ Stools as the learned Judge found. We are satisfied upon a review of all the evidence that the plaintiffs are entitled to the declaration. The traditional evidence as found by the trial Court is consistent in our view with the conditions , existing today. Taking first the plaintiffs’ case as to the grant of occupation of a portion of the land at Atipradaa near Asabi to Adom the predecessor of the first defendant and the acknowledgment by the original first defendant and his predecessor of the plaintiffs' title, in our view, this is proved by the plaintiffs' witnesses Yaw Nkansa II and Kweku Dumfe. We do not overlook the fact that when Counsel came into the case for the defendants, although Kweku Dumfe was recalled into the witness-box Counsel for the defendants did not cross- examine him on the important evidence the witness had given and Counsel stated further that he did not wish to cross-examine other witnesses who had been called up to that stage in proof of the grants to the second defendant Akuamoa and to the first defendant's predecessors Chief Tawia and Adom. The evidence of Robert Kojo Kaaning, the plaintiffs' fifth witness, must be referred to. He gave material evidence to the effect that he obtained from the Chief of Asabi, a Kwahu sub-chief, a portion of the land in dispute near Asabi and near to Chief Tawia and that he lived on and farmed his land. He says that in the year 1932, when he found that some sawyers had trespassed on his land, he spoke about it to Chief Tawia the second plaintiff's predecessor in the presence of his sons and that Chief Tawia told him to report to the Chief of Asabi the owner of the land. This evidence, unchallenged as it was, is an important admission of the plaintiffs’ title because the plaintiffs' case is that Chief Tawia was also occupying the plaintiffs’ land. It was not cross-examined to. Similarly as to the plaintiffs case against the second defendant Akuamoa. In his statement of claim the first plaintiff averred that David Akuamoa obtained permission about the year 1933 to farm on the land and that he paid tribute to this plaintiff until the year 1938 when he refused to pay further tribute. The defendants denied by their defence that any such permission had been obtained from the plaintiff, or that any such tolls had been paid. Evidence was given by the plaintiffs' representative Yaw Nkansah and also by Thomas Sampon, a Presbyter, in support of the grant to Akuamoa, and in the course of the proceedings when the actual memoranda made by Akuamoa at the time of the grant were tendered in evidence, the defendant Akuamoa, through his Counsel, admitted the documents evidencing the grant to him, whereas in the pleadings filed he had categorica1ly denied any such permission. Akuamoa did not give evidence.
The question arises: if the land in dispute were in the ownership of the defendants and other Ewe Stools, why should Adorn and Akuamoa apply to a Kwahu Chief for permission to farm portions of the land on tribute? The defendants say they were prevented from exercising control over the land owing to the German occupation. At the longest estimate German hindrance ceased at the conclusion of the 1914-18 war when the former German territory to the east of the Volta river in these parts came under British Mandate. To our mind that in 1933 Akuamoa should obtain a grant evidenced in writing long after German restriction had ceased is strong support of the plaintiffs' title. It is inconsistent with the case of the defendants and of the ownership claimed by the defendant Stools.
Robert Prah, the defendants’ twelfth witness, who was Chief of Wusuta before the present co-defendant, states that he found the defendant Akuamoa working on the land and that on learning that he was allowed to farm there by the Chief of Bukuruwa, he ordered him to stop paying tribute to the Bukuruwa Chief and consequently, as already stated, these proceedings were instituted by the plaintiffs. He fixes the date of this incident at the year 1940 which coincides with the institution of these proceedings. The defendants called as their fifth witness John Tonu Yao, Nifahene to Ghazari III, Head Chief of Aveme, who no”, claims the northern area of the land in dispute up to the river Obosum. In the course of his evidence he claimed that Nkami on the west bank of the Volta river and its lands belong to his Stool. He was confronted with an Agreement, admittedly made by Chief Ghazari (Exhibits “H” and “J” ) who, however, when called to give evidence some six months later, endeavoured to explain away the effect of the Agreement.
That Agreement provides evidence that the Head Chief of Aveme did “beg” for some land from the Kwahu Chief of Nkami, the land being situate at Offram Aboma: The place referred to is deep in the land in dispute. The evidence of Chief Ghazari given at the conclusion of the defendants' case is in itself expressive of the plaintiffs' title. He says “Exhibits ‘H’ and ‘J’ bear my signature. One day I visited the Chief of Nkami at Nkami privately. I told him that my subjects were farming on his side and that we should arrange to tax them and share the proceeds”.
In our view, this is an admission that the Chief of Aveme's subjects were farming on Kwahu land in the control of the Chief of Nkami namely land on the western side of the river Volta as opposed to Aveme or Ewe land on the eastern side of the river and that, if Chief Ghazari's account of the arrangement can be accepted but as to which we express no opinion, the Kwahus were to receive tribute for occupation of their land whilst part of the money collected would go to the Ewe Chief of Aveme not in right of the land, but because the Ewe people were his subjects. This affords in our opinion strong support of the plaintiffs' case. We have no doubt that it was considered by the learned Judge in arriving at his general finding.
Then there is the Akroso Chief, a neighboring owner called by the plaintiffs, who testifies’ that the land to the south of the Obosum river which is the northern limit of the disputed land belongs to the plaintiff, the Chief of Bukuruwa.
Apart from traditional evidence and evidence of occupation the defendants relied upon an alleged admission made by Kofi Bekoe, a former Chief of Nkami, to the effect that the Nkami people in the course of their migrations crossed the Volta river to a place called Dukludja and that later the Chief of Aveme gave the Nkami people permission to settle at the site of the present Nkami. In support of this the transcript of evidence of Kofi Bekoe in certain proceedings between Head Chief Gazeri III v. Head Chief Dagadu III before a District Com- missioner was put in evidence. We are unable to find that this record supports the defendant contention. Reviewing that evidence it is not possible to say with certainty what land was then in dispute. If the claim in the suit had been put in evidence it might have assisted the Court. Nowhere in the evidence do we find a statement that the Chief of Aveme granted the site of the present Nkami to the Nkami Chief or that he granted any land whatever finally to the Nkamis on the western bank of the river Volta. Mention is made of a clay pit and that the people of Aveme would take the soil of the pit, presumably as proof of title to the land, but it is not clear to us where the clay pit was or is or that it is anywhere on the land now in issue.
Viewing that evidence as a whole and noting the frequent references in it to Kpandu, the witness may well have been speaking of other land far away on the eastern side of the Volta which admittedly is in the ownership of Ewe tribes. We note that most of the older villages on the land bear Akan names; some of the more recent villages claimed by the defendants also bear Akan names. Most of the streams on the land bear Akan names also, all indicating Kwahu occupation. Taking therefore the evidence as a whole and giving due weight to the documentary evidence admissible, we have come to the conclusion that the plaintiffs are the owners of the land claimed; that they did discharge the onus of proof; that the plaintiffs’ case was not answered satisfactorily by the evidence offered by the defence and that there is therefore no reason for interfering with the decision arrived at by the trial Judge after a patient hearing during which he must have formed his own estimate of the various witnesses.
The appeal is dismissed with costs assessed at £71 15s. 6d.