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Evidence – Fresh evidence – Stool Lands Boundaries Settlement Appeal Tribunal – Principles on which tribunal may admit fresh evidence.

The Stool Lands Boundaries Commissioner in a boundary dispute upheld the boundary claimed by the Apori stool. At the hearing of the appeal against the decision at the Stool Lands Boundaries Appeal Tribunal, the appellant sought leave to tender a plan that was admitted in a previous case between the parties. The judgment in that case had been admitted in the proceeding before the commission. The appeal tribunal admitted the plan but at the hearing of a further appeal to the Supreme Court it was argued that the plan was wrongfully admitted as it was available at all times.

Held, the principles upon which a court would allow fresh evidence were that (a) the evidence must be evidence which was not available at the trial; (b) it must be relevant (c) credible and (d) if the court was of the view that there might be reasonable doubt as to the guilt of the appellant if the evidence had been offered with other evidence at the trial. The fact that the exhibit was available at all material times defeated the first principle above. Although the commissioner was not fettered by technicalities or principles or rules of law for civil proceedings, stool boundaries adjudication being essentially a fact-finding enquiry, the admission of the plan would prejudice the other side as it had no opportunity to cross-examine on the fresh evidence. Dombo v Narh (1970) CC 147, CA referred to.

Cases referred to:

Azametsi v Republic [1974] 1 GLR 228, CA.

Dombo v Narh (1970) CC 147, CA.

APPEAL against the decision of the Stool Lands Boundaries Settlement Appeal Tribunal to the Supreme Court.

Dr Seth Twum for the appellant.

E D Kom for the respondent.

AIKINS JSC. This is an appeal against the judgment of the Stool Lands Boundaries Appeal Tribunal overturning the decision of the Stool Lands Boundaries Settlement Commissioner in two consolidated actions by two different plaintiffs, Nartey Akwertey and others of Apori Akim and Ohene Kwasi and others of Aduasa Akim against the same defendant, Nana Fretwie Andam, chief of Worakese by the Stool Lands Boundaries Settlement Commissioner. By the order of the Commissioner the stool of Apori was joined in the first case No 1/80 entitled: Nartey Akwertey and others versus Nana Fretwie Andam of Worakese, and the stool of Aduasa was joined in the second case No 2/80 entitled: Ohene Kwasi and others versus Nana Fretwie Andam of Worakese. The two cases were referred to the Settlement Commissioner by the Ministry of Lands and Natural Resources. A surveyor of the Survey Department attached to the Commission, Mr Okai Lartey, was appointed to survey and draw up a plan of the boundary in dispute with the relevant features thereon. The boundaries relatives to the claims by the parties were delineated and edged in different colours.

After considering in very great detail the claim put up by each of the three claimants coupled with the evidence led by their witnesses in support of their respective claims the commissioner found the boundary of Apori stool proved and rejected that of Worakese. As between Aduasa and Worakese stools, the Commissioner found the boundary of Aduasa stool proved and rejected that of Worakese as unproved.

Only the Aduasa stool appealed to this court. Arguments centred on the four additional grounds filed by the appellant and the first of the original grounds - the weight of evidence. The four additional grounds are:

“(i) The learned appeal tribunal erred in law when it granted the Worakese application to lead fresh evidence in the terms sought.

(ii) The learned appeal tribunal erred in law by proceeding to order a super-imposition of the plan without it being formally tendered by the Worakese stool to give the Apori and Aduasa stools the opportunity to cross-examine to show that it should not be admitted.

(iii) The learned appeal tribunal erred in law and in fact by basing its judgment in a substantial respect on an alleged certificate of validity of the Awurabo Concession when there was no proof of the existence of such a certificate.

(iv) The learned appeal tribunal erred in law by raising suo motu, the defence of “exercise of overt acts over the land since 1929” for the Worakese stool.”

Arguing ground 1 of the additional grounds of appeal learned counsel for the appellant stool criticised the admission of the plan, exhibit X by the appeal tribunal contending that there was clear evidence that the plan was available at all material times and that the omission to tender it at the trial was due to “sheer inattentiveness” on the part of counsel, and that the application before the appeal tribunal did not satisfy one of the cardinal principles of law “that a party would only be given leave to adduce fresh or further evidence in the appeal court if he could satisfy the court that the further evidence could not be obtained after a careful and diligent search or that it came into existence after the trial, and that it was material.”

These principles of law were re-echoed in Dombo v Narh (1970) CC 147, CA and applied in Azametsi v Republic [1974] 1 GLR 228 at p 237-238 where Azu Crabbe CJ, delivering the judgment of the court, gave four principles upon which the court exercised its discretion to allow fresh or further evidence to be called. These are:

(iv) if the evidence were admitted, the court would, after considering it, go on to consider whether there might have been a reasonable doubt as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial.

True, the fact that the plan exhibit X was at all material times available defeats the first of the four principles enunciated above, but it must be noted that under section 6 of the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172) the Commissioner is empowered to enquire into the boundaries of other stool lands as may be necessary for the determination of the dispute or question before him. In this respect he is not fettered by undue obedience to technicalities or the adoption of principles or rules of law evolved for the purposes of solving ordinary land and civil suits because the trial of disputes involving stool lands boundaries is essentially a fact-finding enquiry.

Be that as it may, there is nothing on record to show that the plan was formally tendered in evidence by the Worakese stool to enable the Aduasa stool to cross-examine with a view to its exclusion. The motion was for leave to adduce fresh or further evidence, and it was moved by learned counsel for the applicant, Mr E D Kom, who, during the course of his argument, submitted that “this evidence would have helped the commissioner to resolve more properly the issue before him.” Immediately after this submission the appeal tribunal recorded:

“Moves the court for leave to admit this plan. Plan admitted without objection and marked exhibit X.”

It may well be that the plan was admitted without objection. If this were so it is puzzling why shortly thereafter learned counsel for the respondent before the appeal tribunal should submit that the application was lacking in substance and bad in law and so it should not be entertained because the litigation was between the Worakesi stool and Akomfodu stool, and that neither Apori stool nor Aduasa stool was party in that action. The appeal tribunal, however, recorded as follows:

“By Court: We have seriously considered the application and we are satisfied that in the interest of justice and also to bring finality to this stool litigation, the plan used in the previous case should be admitted. The judgment of the previous case tendered in evidence and the evidence of these proceedings show that a plan was used. The boundaries in that plan have been given and admitted in the present case. It is only fair that this court should have a look at that plan vis-à-vis the present plan in that judgment”.

The tribunal, no doubt, wanted to see that justice was done, but as rightly pointed out by the learned counsel for the respondent the proper procedure to adopt would have been for the Worakese stool to subpoena the registrar of the Court of Appeal to appear as a witness before the appeal tribunal and tender the plan alleged to be in his custody. This would have enabled counsel for the respondent to cross-examine the registrar on it. As counsel stressed, there is nothing on the face of exhibit X to show that it had ever been used in an earlier case, neither is that plan a signed copy or photocopy of the original plan alleged to have been signed by the surveyor Henry Hagan on 20 November 1929. What is on record is that the plan was produced by the appellant stool. This was revealed by the surveyor when he was questioned by the tribunal as to who produced the plan, and his answer was: “It is supposed to have been prepared by Mr Hagan and was produced by the appellant stool for super-imposition on the orders of this court.” In a situation like this there was the need for a representative of the stool to go into the witness-box to lead evidence as to how he came by the plan.

It seems to me that the admission of the plan was a somewhat irregular (as it was not properly tendered). The tribunal should have satisfied itself that the admission of the fresh or further evidence did not overreach the other party. Indeed the plan was alleged to have been drawn in 1929 and used by parties other than the Aduasa stool, and this clearly prejudices the Aduasa stool as there was no opportunity for it to cross-examine on that evidence.

Even if the plan had been properly admitted the evidence of Mr Lartey, the surveyor who did the super-imposition for the appeal tribunal shows that the boundary claimed by Aduasa stool is affected by the boundary claimed by the Worakese stool by virtue of exhibit X.

In my judgment there has been substantial miscarriage of justice. Justice would seem to be properly done if this case were remitted back to the commissioner for the case to be gone into de novo.