Appeal Court. 30th Dec., 1988. Appeal from Provincial Commissioner exercising appellate jurisdiction.

Claim to Possession of Land, for an account and for an injunction.

The plaintiff sued in the Native Tribunal and lost. He appealed to the Court of the Provincial Commissioner and was successful but that Court's judgment was inadequate in particulars. The defendant appealed to the Appeal Court.

Held: Findings of fact of the Native Tribunal should not have been

disturbed and appeal allowed.

Ofei A were for Appellant.

A. O. Larbi for Respondent.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AN)) WEBR, C.J., SIERRA LEONE.

In this case the plaintiff instituted a suit against the defend­ant in the Supreme Tribunal of the Omanhene of New Juaben claiming :-

" (1) Possession of all that piece or parcel of land with cocoa farm "thereon, situate lying and being at Akwadum in the New " Juaben District and bounded on all directions by the properties " of late Kwaku Duro, Kofi Atakora, and Kwadjo Sarfo which "was unlawfully and wrongly alleged to have been sold or " alienated by plaintiff's elder brother (Kofi Atakora) without " plaintiff's knowledge and consent to defendant.

" (2) Specific accounts of the proceeds of the cocoa farm in question, " for the past ten years at 100 loads of cocoa per annum.

" (3) Injunction restraining defendant, his agents, labourers, " servants, wives and members of his family from entering upon " the said cocoa farm, pending final determination of the above  cause."

From the evidence given at the trial it appeared that plaintiff's brother sold the land to the defendant without the prior knowledge or consent of the plaintiff who had cultivated it from virgin forest; so the plaintiff called the defendant before the tribunal of theOdekro of Akwadum. There the dispute was settled on terms recorded in the record book of the tribunal as follows: -

"Chief Amponsa Tandoh proofed his case by swearing an oath "proofing the fact that Kwadjo Sarfo did not gainsay the "statement of Chief Tandoh and Chief Tandoh voluntarily  agreed that Kwadjo Sarfo should take possession of the said Amponsa " property, and an amount of £2 8s. was given to Chief Tandoh Tandoh "as thanksgiven.

This was on the 9th June, 1921.

Plaintiff's contention at the tribunal was that this settlement amounted to no more than this-that he made the defendant caretaker of the farm. The defendant on the other hand contended that the settlement recorded the consent of the plaintiff to the sale of the farm by his brother for which he was paid £2. 8s. 0d.

The tribunal accepted the defendant's contention and rejected the plaintiff's, and recorded the following finding:-

" It is abundantly clear that the plaintiff had lost his title to the " property in dispute since his own brother Atakora sold it to " defendant and plaintiff accepted £2 8s. from defendant at the " Akwadum Tribunal as a mark of his consent. Plaintiff cannot "deny knowledge and consent of the sale of the farm by his " brother. There has been shown on record sufficient proof that " plaintiff acquiesced in the transaction. The Tribunal is led "to disbelieve the evidence of plaintiff that he planted cocoa "in the farm and the alleged terms on which defendant was " made caretaker. Now from 1921 no apparent effort has been " put forward by plaintiff to recover his lost property if his " conviction was that his brother unlawfully sold it to defendant. "The only deterrent was that this dispute ended with the "settlement at the Akwadum Tribunal in 1921 as to Exhibit " " C" quoted above, to which plaintiff had agreed. Plaintiff " has no right in Native Customary Law to sue for the property " in dispute. Judgment is given for defendant as against the " plaintiff with costs to be taxed.

 On appeal to the Provincial Commissioner's Court of the Eastern Province the Acting Deputy Commissioner who heard the appeal delivered a judgment in which he said:-

        " The Tribunal in its judgment says that no effort to recover the " land in dispute was made from 1921 to 1937 and that the 1934 "judgment (Exhibit "C") ended this dispute. These statements are contradictory. Exhibit "c" to the Tribunal "proceedings clearly shows that as early as 1934 plaintiff­" appellant was trying to re-gain possession of this land."

        We confess that we are quite unable to understand this passage, more particularly the two references to "1934." Exhibit "c" is dated 1921 not 1934. We can see nothing contradictory in the tribunal's judgment which appears to be accurate.

The Acting Deputy Commissioner goes on:-

" Further there appears to be no question that the land originally " belonged to plaintiff-appellant. The long occupation and usage ., thereof by respondent Kwadjo Sarfo does not give him any "claim to ownership."

We agree that the original title of the plaintiff is not disputed. But it is not contended that defendant has acquired any claim to ownership by long occupation and usage. The contention is that plaintiff acquiesced ex post facto in the transaction by which defendant went into possession and that the plaintiff received the customary" thanksgiving" for granting his acquiescence.

After referring to some evidence the Acting Deputy Commissioner concludes his judgment:-

"The appeal succeeds. Costs to be taxed and the costs in the " Tribunal to be paid by defendant-respondent."

It is not clear what effect is intended by the words The appeal succeeds," i.e. whether the plaintiff was to be granted all or any of the three forms of relief claimed in the writ; and if we were going to uphold the judgment of the Provincial] Commissioner's Court we should have to elaborate it. But this is not necessary since we are quite satisfied that there was no justification for reversing the finding of the Native Tribunal that " plaintiff has no right in native customary law to sue for the " property in dispute." This is a typical case where the words of Lord Atkin in Abaka Nthah v. Anguah Bennieh- apply:-

" 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."

The appeal is accordingly allowed. The judgment of the Provincial Commissioner's Court, including the order as to costs, is set aside and the judgment of the Native Tribunal is restored. The appellant is awarded costs in this Court assessed at £19 17s. 3d. and in the Provincial Commissioner's Court to be taxed.

• Reported at 2 W.A.C.A. p. 1.