Appeal Court, 6th June, 1940.  

        Proceedings . originally commenced in Native Tribunal of Ada-appeal Provincial commissioners court in which Provincial Commissioner's judgment set aside and  Native Tribunal's judgment restored--on appeal to Privy Council Court. case remitted to this Court for rehearing. Sec. 77 (1) of No. 18 of 1927 considered-Appeal allowed-Case sent back to Provincial Commissioner's Court for hearing de novo.

       Held: Decision of original Native Tribunal remains set aside. Decision of Provincial Commissioner's Court and set aside, the Commissioner having overruled the trial Court on the facts upon evidence some of which he had not heard himself. Such action is an abuse of the powers given under Sec. 83 (1) of the N.A. Ordinance.

       Disapproval expressed obite,. of the practice in Native Tribunals of allowing one person to be sworn in the name of another and to give evidence as though he were the other person speaking.

       There is no need to set out the facts.

              E. C. Quist (with him K. A. Bossman) for Appellants.

             Ofei Awere for Respondent.

The following joint judgment was delivered :-

KINGDON, C.]., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

          The proceedings in this case began as long ago as 4th June, 1928, on which date a Writ of Summons was issued in the Native Tribunal of Ada at the instance of one Afianu on behalf of himself and all other members of the Anyigbe Tribe of Aggravey Plaintiff against Gbevlo Agama and others of Frevieh and Avegomeh Defendants. The claim in that writ was as follows :-

" Plaintiff claims declaration of title as ownership of land with creeks known as Taidjen and Akah, thence the eastern boundary of which runs from the Akolivey Valley to the river Volta on the south western direction, from the same to the Tordjen river, on the north, (b) also an injunction restraining the defendants their agents or representatives from the use of the said land and creeks and (c) a mesne profit of £300 from the defendants for working and trespassing on the said land and creeks, commonly known as the real property of the plaintiff by ancestral rights, such property lying and situate ill the Aggravey Division of the Ada District."
 

      The case was tried in the Native Tribunal of Ada which gave judgment on 18th January, 1929, non-suiting the Plaintiff a ordering each party to pay its own costs. Against that judgment the Plaintiff appealed to the Provincial Commissioner's Court. That Court took additional evidence in Court, viewed 'the land in dispute and took evidence of witnesses on the land, and had a pland made by a surveyor which was received in evidence. The Provincial Commissioner's Court reversed the judgment of the Native Tribunal entering judgment for the Plaintiff for the declaration of title an injunction claimed and for £125 6s. mesne profits.

From this judgment the defendants appealed to this Court which allowed the appeal, setting aside the judgment of t Provincial Commissioner's Court and restoring the judgment ~ the Native Tribunal, on the grounds (1) that the proceedings before the Provincial Commissioner's Court were a nullity since t provisions of section 77 (1) of the Native Administration Ordinance (No. 18 of 1927) making the obtaining of leave to appeal from t Tribunal a condition precedent to the bringing of the appeal, ha not been complied with, and (2) that the proviso added to section 77 (2) of that Ordinance by Ordinance No. 18 of 1935 did not enable: this Court to hear and determine the appeal on its merits, and that even if it did, this was not a case in which the discretion given b that proviso should be exercised.

The Plaintiff appealed from this decision to the Judicial Committee of the Privy Council which held that this Court ha jurisdiction to hear and determine the appeal on its merits if in its discretion it thought proper to do so, and that this Court ha hypothetically used its discretion on wrong grounds. It accordingly remitted the appeal to this Court for rehearing observing that :-

On such rehearing, if and when satisfied that the provisions of section 77 (1) have not been observed, the discretion conferred by the proviso in question should be exercised after a consideration of the relevant fact subsequent to the original judgment including. their Lordships would suggest the question whether the omission to apply to the Paramount Chief's Tribunal for leave to appeal, was deliberate or accidental or the result of a bona fide mistake. If the Court decides to exercise the discretion in favour of hearing the appeal, it will do so on such terms and conditions as it may deem just."

This Court having caused further enquiries to be made satisfied itself that an application for leave to appeal to the Provincial Commissioner's Court was in fact made to and granted by this Paramount Chief and that this Court had therefore jurisdiction to entertain this appeal.

We now turn to the Record of the proceedings in the Native; Tribunal. The Tribunal appointed viewers to visit the land i dispute. It is quite clear that they visited the locus in quo for Daniel Narh Holmah one of their number gave evidence as to the visit. We are bound to assume that in accordance with well, established native practice, they furnished a Report of what the found. No such Report appears in that part of the Record which deals with the proceedings before the Native Tribunal nor is there any reference in their judgment to the Report. The absence of the Report or any reference to it renders the trial before the Native Tribunal a most unsatisfactory one. That a Report was made by the viewers we have no doubt. The Record of the proceedings before the Provincial Commissioner's Court shows that such a Report was put in in the proceedings in that Court. The findings in the Report are entirely in favour of the plaintiff for the viewers state that they found that all boundaries shown by the plaintiff and his people on both sides are quite correct, but all boundaries shown by the defendants and their people are quite wrong and that therefore the land and creeks belong to the plaintiff. It is not clear from the Record how these findings were put in evidence in the Provincial Commissioner's Court but there is no objection in the grounds of appeal that this Report was wrongly admitted nor has there been any suggestion that this is not a bona fide report of the viewers.

      The question involved was a boundary dispute which, as everyone with experience of land cases in this country knows, could not be decided satisfactorily without either a plan or a view of the land or both. That this was recognised by the trial Tribunal is shown by the fact that they directed a view, but since they neither had before them a plan, nor themselves viewed the locus in quo, and since the report of their viewers was ignored 'by them without any explanation, we feel bound to hold that the trial in the Native Tribunal was not a fair hearing and the judgment cannot be allowed to stand. The hearing of the appeal and partial retrial in the Provincial Commissioner's Court is also such that the judgment cannot be allowed to stand, for the Provincial Commissioner over­ruled the trial Court on the facts upon evidence some of which he had not heard himself. In particular he discredited the views expressed by the trial Tribunal in regard to the tradition. And here we wish to say that we regard with disfavour the practice which seems to obtain of an appellate Court partly rehearing a case and then giving judgment in accordance with its own views. We are aware that section 83 (1) of the Native Administration Ordinance expressly gives power to rehear the cause or matter in whole or in part and to admit such further evidence as it shall consider fit and to reverse, vary" or confirm the decision of the Tribunal.

This, of course, includes the Rower to hear fresh evidence; that power can and should be used to clear up doubtful points by way of explanation, but it is, in our view, a misuse of the power partly to rehear the case and then to give judgment based on evidence some of which has been heard by the Court and some not. That is a proceeding contrary to fundamental principles. Partial rehearing by the Provincial Commissioner's Court is simply fresh evidence being taken on appeal by an Appeal Court a practice found to be so unsatisfactory that it is only adopted by English Courts of Appeal in very exceptional circumstances. Where the Provincial Commissioner's Court finds, as it could rightly find in this case, that trial in the Court below was fundamentally unsatisfactory the should in our opinion either be sent back to the Court below remedy the defects in the trial or completely heard de novo by Provincial Commissioner's Court.