Native Customary Law-Pledge of land o~! sale thereof-Lapse of time no bar to recovery of land pledged in accordance with native customary law-Concurrent findings of fact in a Native Tribunal and a Provincial Commissioner's Court.

In or about the year 1869 A's ancestor pledged certain lands known as the Dove lands with B's ancestor as security for the sum of os. 6d.

Held. that A, was entitled to recover those lands on repayment of the 6s. 6d. notwithstanding the long continued possession of B and his ancestors and the lapse of time.

Held also that concurrent findings of fact in a Native Tribunal and a Provincial Commissioner's Court, where there is sufficient evidence to support them, should not be disturbed.

Ofei Awere for the Defenrlant-Appellant.

E. O. Asafu-Adjaye for the Plaintiff-Respondent.

The following judgments were delivered :-

HORNE, J.

This is an appeal from a judgment of the Provincial Commissioner Eastern Province upholding a judgment of the Fiaga of Peki Tribunal that the Dove lands were pledged many years ago by the ancestor of the plaintiff to the ancestor of the defendant for the sum of 6s. 6d. and ordering that on the sum of 6s. 6d. being paid by the plaintiff to the defendant the land should be released from the pledge.

Before this Court, it was submitted on the defendant's behalf that the plaintiff has not proved the pledge and that the Tribunal refused to admit evidence of a previous suit in an inferior Court on the same matter.

On behalf of the plaintiff it was submitted that the defendant had cross-claimed at the trial that the land was sold by the ancestor of the plaintiff, and that as the defendant had failed to produce the requisite evidence of sale according to native customary law, the Tribunal was right in finding for the plaintiff.

The Provincial Commissioner in his judgmel1t states there is no evidence of either sale or pledge. I take that to mean evidence according to English law. Nevertheless, he confirms, on the ground of native customary law, the finding of the Tribunal of the Fiaga that no sale took place.

If this Court were bound to apply the principles of English law to this matter, then the arguments of Mr. Awere relating to possession would have force, if not compelling force.

But the reasons of the Tribunal in coming to the conclusion that there was no sale according to native customary law appear from the authorities, Redwar and Sarbah, to be sufficient. There was no evidence of tradition as to the price paid, whether as guaha Agbo Kofi or as ntrimma. All that the defendant could set up was possession Add;'Kofi which, in customary law, is consistent with either sale or pledge.

In my opinion the rejection of the evidence of the proceedings .before the inferior Tribunal, which has been referred to as the 1927 case, though an unnecessary rejection, has not affected the decision of the Fiaga's Tribunal.

It has been submitted by Mr. Awere that though the judgment in the 1927 case is not sufficient to establish a plea of res judicata, nevertheless an estoppel arises because the matter in issue in the 1929 case was determined with certainty in the 1927 case. Now an estoppel must be certain to every intent. (See Halsbury volume 13 page 330 paragraph 463 note (L) quoting Coke on Littleton). But the suit in the 1927 case was, putting it at its highest, between a privy of the defendant as plaintiff and the plaintiff himself as defendant. It related only to a part of the land now claimed. It was decided upon the ground that one of the witness for the defendant in the suit had given contradictory evidence. The judgment could Hot be said to be certain to every intent.

It has already been held in this Court that that judgment does not establish a plea of res judicata, and in my opinion it is not sufficient to cause an estoppel to arise. There is no rule, applicable to the procedure of Native Tribunals, which precludes the evidence of former proceedings of other Native Tribunals being given in evidence for what they are worth; and judging from the records of various~ Native Tribunals which have come before me in this Court, it appears to be a common practice to receive such evidence. It could have been admitted here but its rejection has had, in my opinion, no effect upon the judgment of the Tribunal, for the decision in the 1927 case was given on a subsidiary point and not upon the matter in issue in the 1927 case. That is to say the ownership of the Dove lands was not, in my opinion, distinctly put in issue in the 1927 ca~e and found solemnly against the present plaintiff. I would like to add that in my opinion it is regrettable, though perhaps unavoidable, that the questions of estoppel and res judicata should be imported into arguments upon the proceedings before Native Tribunals.

The fact of pledge has been found by two Courts: the Fiaga's and that of the Provincial Commissioner. I am therefore of opinion the appeal should be dismissed. A word may be said as to the position of Addo Kofi the defendant, who has according to the judgment of the Fiaga's Tribunal" cocoa farm in some parts of the Dove lands." There is authority for making an order in this Court protecting his right thereto, but as the Tribunal of the Fiaga has ordered that this matter be settled amicably between the parties, there appears to be no necessity for such an order.