Appeal Court. 16th Dec.,19:18. Appeal from Court of Chief Commissioner exercising appellate jurisdiction.

                                              Boundary dispute.

The  plaintiff sued the defendant in the native tribunal and on issues or fact was unsuccessful. He appealed to the Court of the Chief Commissioner, again on issues of fact, and was successful. His opponent appealed to the Appeal Court.

Held: (Kingdon, C.J., dissenting), on the issues of fact the native tribunal was plainly wrong, judgment of Chief Commissioner affirmed, and appeal dismissed.

Frans Dove for Appellant.

E. O. Asafu-Adjaye  (E. P. Asafu-Adjaye with him) for Respondent ..

The following judgments were delivered:-

WEBB, C.J., SIERRA LEONE.

This action commenced in the native tribunal where the claim and defence are thus set out: "Plaintiff swore the general "oath that the defendant's subjects have encroached upon his "land known as Nkwantanan and the defendant replied that " Nkwantanan land is his stool property." the record continues, "Both parties admit that the boundary between them on the " disputed area had been demarcated by Captain Armitage .... " and accordingly the Court sent out " four messengers to go with " certified copies of the boundary and find out as to which of the " parties has encroached upon the boundary and entered on the " land of the other."

The demarcation, which was made by Captain Armitage in W07, was a demarcation of the boundary between the lands of Bekwai (which iududed the lands of the appellant) and Adansi (which included the lands of the respondent) and it sets out the boundary, so far as material to the present dispute, as follows: " The boundary follows the thalweg of the Dankrang river to its " junction with the Agugu river. Then it follows the thalweg " of the Agugu river to the point where the path from Jidiedema " to Meduma crosses it. Thence it follows the said path to the  point where it is crossed by the Subontina stream ....and Captain Armitage directed that boundary posts were to be erected (inter alia) "2. At the point of junction of the Dankrang "and Agugu rivers. 3. At the point where the path from " Jidiedema to Meduma crosses the Agugu river. 4. At the point " where the said path crosses the Subontina stream."

The "messengers," accompanied by representatives of the parties, went over the ground and their report makes clear what is the dispute. The boundary between the parties at the place in dispute runs roughly East and West the appellants being to the North and the respondents to the South of it. 'the Agugu river runs roughly North and South (the flow is to the North into the Dankrang and at the junction was found a "packed stone pillar "); to the South, where the path said by the respondents to be that leading from .1 idiedema to Meduma (i.e. from East to \Vest) crossed the Agugu, there was found "a heap of pile stones." At this point a stream, the Kukra, flowing from the South joins the Agugu, and the appellant's case is thus put in the report: ' , We asked Amoafulhene to show us the path " leading to Meduma and he was not able and said we should not " talk about the path; and instead of the path he took the course " of stream Kukra to be his boundary and on arriving at a certain " place getting to the source Amoafulhene branched on the right " on dry ground and walked to stream Abu where there is a pile "of stone pillar." The report concludes: "This boundary of "Amoafulhene does not appear anywhere in the boundary " demarcated by Captain Armitage between Adansi and Bekwai. " So we find out that Amoaful people have trespassed on Adansi " lands."

Before the native tribunal the appellant said that the report did not indicate the correct boundary and the tribunal decided to hear evidence about the erection of the boundary pORtS. In fact only three witnesses gave any material evidence. Boaman was asked: "Do you know that Jidiedema road to Meduma is tbe " boundary between Adansi and Bekwai?" to which he answerpd " No." Kofi Darkwa, who claimed to have been a representative of Bekwai on the demarcation described the boundary" " to the point where River Argu joins River Dankrang. Here " one pillar was put up. Thence through Argu stream to a village " Gyedu-gyima on west of River Argu. Thence River Kukurah, " thence on a straight line to the source of Kukurah stream and " thence to Meduma village  and he said in cross- examination that the road from Gyedu-gyima to Meduma' was not the boundary between Bekwai and Adansi. Kwame Apetenteng (linguist to the AdansiheIlle) on the other band said: "The " boundary started from River Agugu thence to the path where " Agugu crossed it, thence through the path to River Abu."

Upon this the native tribunal was " satisfied that the defend­" ant has not encroached upon the boundary demarcated between " Adansi and Bekwai."

An appeal was taken to the Court of the Chief Commissioner for the purpose of which a plan was preparetl showing the alter­native lines of the boundary, and the surveyor said in his evidence that " there are two bush paths, one going along the yellow line " (the boundary according to the respondent) and one going' on the " red line" (the boundary according to the appellant) " following " more or less the Kokora and Akwaben ·streams. None of the " boundary pillars between the junction of Agogo and Meduma " bush path and Abu stream could be found     Both the bush paths I have mentioned above eventually lead towards " Meduma."

The Chief Commissioner reversed the decision of. the native tribunal. After quoting Captain Armitage's description of the boundary (given above) he said: If Captain Armitage had" intended that the bush path (if there ever was one which I doubt) " which indicated the boundary was that which follows the course " of Kokorah stream and the Akwaben stream it seems curious " that no mention of these streams is made in his decision. I " think therefore it would be unreasonable to accept Amoaful's " description of where the boundary runs, and I agree with the " report of the Inspectors sent out by the Court below."

I agree with the decision of the Chief Commissioner. I recognise that he, sitting as an Appellate Court, was reversing the decision of the native tribunal on a question of fact, and I reeognise further that an Appellate Court is only at liberty to do this when it is satisfied that the decision of the trial Court is plainly wrong. But. in this case I think that the decision of the native tribunal was plainly wrong. In the first place if, as the respondent contends, the boundary followed first the Agugu river, then its tributary the Kukra i.e. from north to south) and then turned along a path (running from east to west), it is inconceivable, to my mind, that the Kukra stream would not have been mentioned as the boundary. Then; it appears that, what­ever other boundary pillars may have been erected, those dirt'ctecl by Captain Armitage to be set up are, as one would imagine, at points where the boundary turns off in a new direction, or' leaves some natural feature. So we get a pillar at the junction of the Agugu river and the path to Meduma, which is also where the Kukra stream joins the Agugu. This would be the natural place for a pillar if the boundary leaves the river there and turns to the west along the path. But if the boundary continued on to the south along the Kukra stream there would have been no object in putting a pillar there; where the pillar would be wanted was where the boundary left the Kukra and followed the other path to Meduma. But no one says there is or ever was any pillar there. Finally the two witnesses who gave evidence before the native tribunal in favour of the appellant's case both said, not that the respondent . was trying to indicate the wrong path of two as' the boundary, but that the path from Jidiedema to Meduma was not the boundary. This evidence, in my opinion, ought not to have been acted upon because it is contrary to Captain Armitage's demarcation which definitely states that this path, wherever it is, forms the boundary. It seems to me that this is a case which turns, not so much upon direct evidence, as "upon inferences " from facts which are not in doubt," namely, the description of the boundary by Captain Armitage and the place where he directed the boundary post (at the place where the path crossed the Agugu) to be erected j and in such a case " the Appellate Court "is in as good a position to decide as the trial Judge." Powell v. Streatham Manor Nursing Home, 1935 A.C. per Lord Wright at p. 267).

I am therefore of opinion that the decision of the Chief Commissioner should be affirmed, with the addition to it of a declaration that the boundary between the lands of the appellants and those of the respondent follows the line marked yellow on the plan (Exhibit " D ").

PETRIDES, C.J., GOLD COAST.

If the judgment of the native tribunal could be regarded merely as a dismissal of the plaintiff's claim on the ground that he had failed to establish his claim, I should hold that the judgment of the native tribunal should not be disturbed.

Although in substance' the action before the tribunal was one of trespass there can be no doubt that the judgment will hence­forth be regarded as amounting to a declaration of title to Nkwantanan land in favour of Amoaful. The record leaves me in no doubt that the defendant set up a claim to this land based, not on the boundaries laid down by Captain Armitage, but on what the defendant contended were the boundaries demarcated in consequence of the validated decision of that very experienced Commissioner, Captain Armitage ..

The native tribunal adopted a very unusual procedure after the four messengers had ··reported in favour of the plaintiff. It decided to call witnesses instead of leaving it to the parties to do so. These witnesses were to prove that pillars or posts were put on the points indicated by Oaptain Armitage. It called a number of witnesses and examined them. I cannot find that the tribunal :lskeo these witnesses any question. directed to the crucial question, " Where did the Jidiedema to Meduma path go after it crossed the Agugu River?"

I can not escape the conclusion that the tribunal based its judgment not on the question of where this path ran but where the parties said that pillars had been erected by surveyors subsequent to the validated decision.

In my opinion it has been affirmatively shown that the finding of the native tribunal was wrong.

I entirely concur with the judgment that has just been read by the Chief Justice of Sierra Leone.

KINGDON, C.J., NIGERIA.

There are two passages from recent judgments of the Privy Council which I regard as the guide to the duties of this Court in considering appeals which come before it and to the duties of the Court of the Chief Commissioner in Ashanti and the Courts of the Provincial Commissioners in the Colony in hearing appeals which come before them from native tribunals. In Abakah Nthah v. A.nguah Bennieh (Privy Council Appeal No. 165 of 1927) Lord Atkin said:-

" By colonial legislation all suits relating to the owner­" ship of land held under native tenure are placed within the "exclusive original jurisdiction of native tribunals, unless " satisfactory reason to the contrary is shown. It appears to " their Lordships that decisions of the native tribunal on such "matters which are peculiarly within their knowledge, " arrived at after a fair hearing on relevant evidence, should " not be disturbed without very clear proof that they are " wrong, and their Lordships fail to find such proof in the " present case,"

and in Kisiedu and Others v. Dompreh and Others (Privy Council Appeal No. 59 of 1936 (not yet reported) Lord Russell of Killowen said:-

" No doubt an appeal in a case tried by a Judge alone is " not governed by the same rules which apply to an appeal " after a trial and verdict by a jury. It is a rehearing. " Nevertheless before an Appellate Court can properly reverse " a finding of fact by a trial Judge who has seen and heard "the witnesses, and can best judge not merely of their " intention and desire to speak the truth, but of their accuracy " in fact, it must come to an affirmative conclusion that the " finding is wrong. There is a presumption in favour of its " correctness which must be displaced. As Lon] Esher, M.R. "said in Colonial Securdies Trust Co. v. Massey (1896) " 1 Q.B. 38) , Where a case tried by a Judge without a jury " , comes to the Court of Appeal, the presumption is that the " , decision of the Court below on facts was right., and that " , presumption must be displaced by the appellant. their " Lordships must, they think, apply the same test and ask

* Reported at 2 W.A.C.A. p. 1.  Now reported at 2 W.A.C.A, p. 281.

"themselves whether in their opinion the presumption in " favour of the findings of the trial Judge has been displaced j " and they feel bound to answer this question in the negative.

          " In the present case it is clear, I think, that the Acting

Assistant Chief Commissioner, who heard the appeal from the Asantehene's "A" Court, did not follow the guidance of the above quotations. He had a plan of the area concerning the dispute made by a licensed surveyor and heard evidence. This was perfectly proper in order to enable the questions in issue to be understood. But having done this he went further and proceeded to form his own opinion upon the merits of the case partly from the evidence given in the native tribunal and partly on that given before him and to give effect to that opinion, thus constituting himself a Court of first instance V1:ce the native tribunal, 'instead of confining himself to the two questions-(l) 'Vas there evidence upon which the native tribunal could find as it did? and (2) Had it been affirmatively shown that the finding of the native tribunal was wrong?

    As I conceive the duties of this Court now they are to answer these two questions and decide the appeal accordingly, not to seek to form an opinion which view is the correct one, that of the native tribunal or that of the Chief Commissioner.

     As to the first question it is admitted by counsel for the plaintiff-appellant-respondent that the evidence 01 the two witnesses Kyeame Akwasi Boaman and Kofi Darkwa was in favour of the defendant-respondent-appellant. This evidence, if believed as it must have been, justified the two findings" The Court .... "is satisfied that the defendant has not encroached upon the " boundary demarcated between Adansi and Bekwai since August " I909 by Sir Armitage" and The balance of evidence is in " favour of the defendant.

      " In my opinion, therefore, this question must be answered in the affirmative.

        As to the second question  in disputes of this nature it is nearly always impossible to say that one party or the other has conclusively proved his case, it usua11,v must remain to the end a matter ·of opinion one way or the other. and this ease is, I think. no exception to the rule. I concede that the balance of probability is in favour of the view taken by the Chief Commissioner's Court being correct, especially having regard to the question of the foot­path from Gyeduagyima (Jidiedema) to Meduma, although it must not be forgotten that in this country foot-paths have a hahit of changing their location over a period of thirty years. However this may be, I feel it quite impossible to -come to an affirmative conclusion that the finding of the native tribunal was wrong.

      :For these reasons, I am of opinion that the appeal should be followed, the judgment of the Chief Commissioner's Court set aside, and the judgment of the native' tribunal restored.

The following Order was made:-

KINGDON, P.

The appeal is dismissed with costs assessed at £39 8s. 6d.­'rhe judgment of the Court of the Chief Commissiol1er is upheld with the addition of an order that the plaintiff is entitled to a declaration that the boundary between the parties follows the yellow line in the map marked Exhibit" D " in the appeal before the Chief Commissioner's' Court.