Trespass to land-The unrecorded decision of a body of persons who were neither members of a Court of Justice nor Arbitrators may constitute a res judicata in such a case.

In an act on for trespass to land, the Court below held that the unrecorded decision of a body of persons appointed some 35 years ago by two Paramount Chiefs to adjudicate upon a dispute about the ownership of the land in question did not create an estoppel by way of res judicata.

Held, on appeal, that such a decision, though never recorded in writing and though the body of persons so appointed could not be regarded as either a Court of Law or as arbitrators, could and did create an estoppel by way of •• res judicata •• on proof that it was pronounced as alleged and that it affected the predecessors in title of the Plaintiff and the fourth defendant. In the opinion of the West African Court of Appeal the persons who give that decision were persons exercising judicial functions by native custom, and duly authorised to adjudicate upon the dispute referred to them for decision.

K. A. Korsah and H. A. Hayfron Benjamin for the Defendants Appellants.

F. Awonor-Williams for the Plaintiff-Respondent.

The following judgments were delivered ;­KINGDON, C.J. NIGERIA.

This is an appeal from the judgment of Gardiner Smith, J. delivered in the Divisional Court at Cape Coast on the 26th August, 1931. The case was started in February, 1927, in the Native Tribunal of the Omanhin of Assin Attandase at Fanti Nyankumasie by the plaintiff claiming against the first three defendants "£25 damages for trespass and cultivate on plaintiff's land and burial grove at Framase within the division of Assin Attandase."

Upon defendants claiming that the land in dispute lay within the State of Assin Apimanyin the case was transferred to the Divisional Court, and thereafter the fourth defendant, who claimed that the land was within his sub-division and that the other defendants were his tenants, was joined as a defendant. Prior to the hearing of the action a survey was ordered and a plan was filed. There were no formal pleadings but in accordance with the provisions of Order 35 rule' 13 of the Supreme Court Rules the defendants stated their respective defences to the action immediately after the plaintiff had opened his case at the hearing. The first three defendants pleaded (1) non-liability for trespass, and (2) long undisturbed possession at least as against the plaintiff. The fourth defendant pleaded "ownership and all the incidents of ownership." He also alleged ;-

"In respect of this same land, about 35 years ago, ancestors of plaintiff--Gaitua and Efilfa's ancestors--got a dispute. The Oaths of Nkyi and Tsibu were sworn by C-hief Efilfa's ancestor who was called Efilfa I that the land was his. Omanhin Nkyi and Omanhin Tsibu deputed their Chiefs and linguists to meet at Damang. They sat over the case and judgment was given in favour of Efilfa I."

The Court, rightly I think, treated this as a plea of res judicata and dealt with it accordingly.

After an exhaustive hearing and an inspection of the land lasting two days the Judge gave judgment in these terms:-

"There will be judgment against all the defendants jointly and severally in the sum of £25 with costs to be taxed, and I have marked and initialled the boundary as I have found it, and recommend that it be surveyed."

Although on the wording of the claim the alleged trespass occurred at Framase, it early appeared in the course of the case that the acts of trespass (if any) were committed at Brisiase, where the alleged burial grove is situate, and not at Framase. Indeed in the whole case there was really no dispute in regard to Framase. The writ should have been amended in the Court below by substituting "Bisiase" for "Framase':; both sides fought the case as if this had, in fact, been done. This Court accordingly, acting under the powers conferred upon it by rule 96 of the West African Court of Appeal Rules, has made the necessary amendment.

The defendants now appeal to this Court against the judgment nominally on seven grounds, but in reality on two only :-

1.Judgment against the weight of evidence.

2. Estoppel per rem judicatam.

I will deal with the second ground first.

The plea of the fourth defendant upon the issue of res judicata is already set out above. Elaborated the contention is that in the year 1894 the respective ancestors of the plaintiff and the fourth defendant had a dispute as to the ownership of land including

. that area where the trespass (if any) in this case occurred. Since they were under different Amanhin the recognised procedure by native custom was for the two Amanhin jointly to set up a tribunal consisting of deputees from each to hear and decide the issue. This was duly done, and the tribunal so constituted heard the case and gave a decision, fixing such a boundary between the disputants as gave to the fourth defendant's ancestor the area now in dispute.

In support of this contention he calls one of the persons who gave the decision alleged, viz :-Kweku Baa, one of the Councillors of Nkyi, Omanhin of Assin Apimanyim. He says :-

 I remember litigation between Efilfa I and Gaitua •• (i.e. the ancestors of the parties in this case) .• The case was tried one year before Prempeh's expedition" (i.e. in 1894) .•• It was about land-the land in dispute now.

          I was not present when the dispute arose but I was present at the trial. Efilfa I and Gaitua swore oaths. Efilfa swore oath of Omanhin Nkyi and Gaitua swore oath of Omanhin of Fanti Nyankumasi." ... Gaitua's case was tried at Darmang. Omanhin Nkyi deputed his elders, linguists, Safohene sitting on stools and myself to try the case. The Omanhin was not present. Omanhin Tsibu of Fanti Nyankumasie also deputed people to try the case but did not attend personally. I was then one of Amanhin's elders. The case was about land. Judgment was given. I can't give all the details of the judgment but can give the gist of it. Gaitua opened his case by saying land from Damang to stream Wonkoa, getting to lower part of stream called Adobun belonged to him. Efilfa said this was not correct and that the land belonged to him and was called Etsi Dadi ( = Etsi people's land), and that he had a boundary with Gaitua which started from stream Wura Ekwia and ran to Pranbenkesi and that the land on the right belonged to him. Both Gaitua and Efilfa called Buatin as their witness. Buaten was Chief of Atobiase. He gave evidence, and Efilfa got judgment that the land on the right of the stream from Wura Ekwia t·) Prabonkesi belonged to him. After the judgment Gaitua pacified Efilfa by giving him a binda (£7) and a flask of rum."

And in cross-examination :-

             I can't tell if Omanhin of Nyankumasie knows the history of these cases. It was not written down. The land in dispute was not inspected. I have never been on the land in dispute. I did not hear Gaitua give the land a name. Efilfa called it Etsie Dada. Gaitua said he was an Etsi. Apart from Efilfa calling the land Etsi Dadi I don't know the and now in dispute."

And then in answer to the Court :-

           It was decided at Damang that the boundary between Efilfa and Gaitua was Wura Ekwia. Representatives of both states agreed to this. It was the decision of a Court, not an arbitration. The customary way to settle disputes between two States is by a joint Court from the two States"

The fourth defendant's own evidence upon the point is :-

         Litigation arose between Efilfa I and Gaitua plaintiff's predecessor about this land. Gaitua claimed the land. Efilfa swore oath of Omanhin Nkyi of Assin Apomanyirn (Mansu). Gaitua swore oath of Omanhin Tsibu of Assin Attandase (Nyankumasi). This was about 35 years ago. The two Amanhin met at Damang with their linguists, chiefs and company captains and tried the case and heard evidence and gave judgment against Gaitua. The judgment was verbal. At that time no records were made.'

At this point, upon the objection of plaintiff's Counsel, he was not allowed to give hearsay evidence of the nature of the judgment. He continued :-

 I was not present at the trial. I was told about it by Efilfa I. He said he was present. The two Omanhin made their two linguists deliver the judgment. Nkyi's linguist was Kweku Tsia. The Yankumasi linguist was Boadi. Kweku Tsia I know is dead. I don't know if Boadi is dead. Kweku Baah whom Efilfa I said was present at the trial is alive. It was found the land belonged to Efilfa and thereafter he occupied the land."

In further support of his contention the fourth defendant points to the evidence of one of plaintiff's own witnesses, Kobina Aduakwa .

•• He said as oaths of two Amanhin had been sworn they should meet to settle the case."

This it is suggested, though spoken of a different case, bears out the evidence of Kweku Baa as to the customary way of settling such disputes.

And the fourth defendant further points to the evidence of another of plaintiff's own witnesses, Yaw Adadi :-

I heard of litigation between Gaitua and Efilfa in connection with this land dispute as corroborating his own evidence up to the point at any rate that Kingdon. in fact there was such litigation. It is, perhaps, not without .. significance that at this point plaintiff's Counsel objected to his witness being asked in cross-examination what the litigation was about, on the ground that such evidence would be hearsay, and the objection was (wrongly, I think) upheld.

On the other side the plaintiff's reply is simply a denial that any such litigation took place. He says :-

•• I am not aware that there was a case between Gaitua and Efilfa.

I have heard that there was some litigation at which Gaitua was present. I was not present. If there had been. litigation between Gaitua and Efilfa I would know."

His denial is supported by his witness Kobina Aduakwa who says:-

" I know of a case between Gaitua and Efilfa in respect of same land in dispute. That case too was not tried. I am not aware it was tried at Damang. I did not hear judgment went against Gaitua."

Upon this evidence the learned trial Judge found (rightly, I think) that such litigation did in fact take place. Unfortunately he recorded no finding of facts as to whether a decision was given and, if so, what it was. Instead he overruled the plea of res judicata on five grounds-(a), (b), (c), (d) and (e), everyone of which is, in my opinion, bad. As to (a) and (b), the judge seems to have thought that res judicata must be founded on either a judgment of a competent Court or an award in an arbitration. But in my view, this is not so; res judicata must be founded on a judicial decision and there are other kinds of judicial decisions besides the two named. I deal with this point more fully later in this judgment. In any case the reason (a) for putting aside the idea of an award, viz :-that Kweku Baa said" It was the decision of a Court, not an arbitration," is inadequate. What value can be attached to the statement of an illiterate native witness upon a technical point of this nature?

Ground (c) is that" there is no record of it." If the Judge thought it necessary for a written record to be produced, he was confusing the plea in this case with a plea of estoppel by record.

Ground (d) is that " there is no evidence that it was cited in the subsequent case between the same parties' successors at Anamabu." As to this I may remark that there was also no evidence that it was not so cited. The reason why no evidence one way or the other was produced is obvious, viz :-that the subsequent case was admitted to have had no conclusion and so reference to it was almost pointless.

Ground (e) is that " it is improbable that the Amanhin came to an agreement, especially as it was not a compromise, but was adverse to one of them." But it is not suggested that the Amanhin came to an agreemeut. It is suggested that they set up a tribunal which gave a decision. Moreover the dispute was not between the Amanhin themselves so that the decision could not have been " adverse to one of them."

Now the principle of estoppel for res judicata is this :-Where a final judicial decision has been pronounced by either an English, or (with certain exceptions) a foreign judicial tribunal of competent jurisdiction over the parties to, and the subject matter of, the litigation, any party or privy to such litigation, as against any other party or privy thereto, is estopped in any subsequent litigation from disputing or questioning such decision on the merits. (See Spencer Bower on Res Judicata page 3). And the constituent elements which any party setting up res judicata by way of estoppel must establish are six in number (id. page 9). I propose to take each in turn and examine the question whether or not it has been established in the present case.

First-It must be established that the alleged judicial decision was what in law is deemed as such.

A judicial decision is a decision of some question of law or fact pronounced by a judicial tribunal, and the meaning of that term is very wide. It is most certainly not confined to Courts and Arbitrators. "It is enough" (says Spencer Bower at p. 11 of his treatise) " if the alleged judicial tribunal can properly be described as a person, or body of persons, exercising judicial functions by common law, statute, patent, charter, custom or otherwise in accordance with the law of England, or, in the case of a foreign tribunal, the law of the particular foreign state, whether he, or they, be invested with permanent jurisdiction to determine all causes of a certain class as and when submitted, or be clothed by the State, or the disputants, with merely temporary authority to adjudicate on a particular dispute, or group of disputes."

Does the tribunal whose decision is relied upon in this case come within the scope of this definition? I am of opinion that it does. I think that the evidence establishes that the tribunal consisted of a body of persons exercising judicial functions by custom, and duly invested with authority to adjudicate upon the dispute. In loose language; its proceedings might be spoken of as an arbitration, but there was no arbitration in the technical English sense, and all the arguments of Counsel for the plaintiff based on the assumption that such was the contention are beside the point.

If this (as I hold) judicial tribunal gave a decision upon a question of fact that decision is a " judicial decision," and this brings me to the second constituent element which must be established.

Secondly, it must be established that the particular judicial decision relied upon was in fact pronounced as alleged.

This is a question of fact, and as I have already mentioned the trial Judge omitted to record any finding upon the point. If it were practicable I consider the proper course would be to send this case back to him to do so. But he has finally retired from the service and such a reference would be abortive. The only course open is for this Court to come to a decision upon the evidence given. The fact is that the decision was pronounced and its substance must be proved by the best evidence available. Obviously it could not be expected that a written record should be produced. In the absence of record I consider the evidence of Kweku Baa, one of the persons who actually pronounced the decision, was the best available.

His evidence (which I have already quoted) is clear and definite that a decision was given, and that it decided that the boundary between Efilfa and Gaitua was Wura Ekwia. Against this there an' the denials of the plaintiff himself and his witness Kobina Aduakwa. The trial Judge regarded plaintiff's own denial as " suspicious," and disbelieved his evidence that there was no such litigation. I have no hesitation in accepting Kweku Baa's evidence as true and holding that the judicial decision relied upon was in fact pronounced, as alleged.

Thirdly, it must be established that the judicial tribunal pronouncing the decision had competent jurisdiction in that behalf. The evidence already quoted shows that when, as in this case, a dispute arose between some of the people of two neighbouring Amanhin, it was in accordance with native custom for the two Amanhin jointly to set up a tribunal consisting of deputees of each of them to hear and adjudicate upon the dispute. Each disputant apparently" swore oath of" his own Omanhin, and then the tribunal became seised of the dispute and invested by custom with power to decide it. That course was followed in this case, and in my opinion it was sufficiently established that the tribunal pronouncing the decision had competent jurisdiction in that behalf.

Fourthly, it must be established that the judicial decision was final, i.e. (a) that it left nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution and was absolute, complete and certain; and (b) that it was not lawfully subject to subsequent rescission, review or modification by the tribunal which pronounced it: (See Spencer Bower p. 91). As to (a), I think the, evidence of Kweku Baa establishes the necessary constituents, and as to (b) there is no suggestion that review by the tribunal itself was allowable; indeed in the case of a tribunal constituted as this was, ad hoc, such a review would be impracticable. I think finality is established.

Fifthly, it must be established that the judicial decision was, or involved, a determination of the same question as that sought to be controverter in the litigation in which the estoppel is raised.

    One of the questions in issue in the present litigation is the ownership of the land upon which the trespass is alleged, Le. the· land and burial grove at Bisiase. To establish his claim the plaintiff must prove his title. The fourth defendant Efilfa pleads ownership in himself. Each claims title through his prectecessor. Did the 1894 decision involve a determination of the ownership of the land and burial grove in dispute at Bisiase? I think it is clear that it did. It is somewhat difficult to follow K weku Baa's evidence of places upon the map produced, but the dispute in 1894 was evidently about the land on the north-east of the Wura Ekwia from the south east corner of the map to Prabonkesi on the north­west corner, and the decision was that the Wura Ekwia was the boundary, i.e. the land on the north-east of it was Afilfa's and that on the south-west Gaitua's. This clearly gives Bisiase and the burial grove or " old cemetery" to Afilfa.

Sixthly, it must be established that the parties to the judicial decision, or their privies, were the same persons as the parties to the proceeding in which the estoppel is raised, or their privies, or that the decision was conclusive in rem.

It is not suggested that there was a decision in rem. But the 1894 dispute was between the respective predecessors of the present plaintiff and fourth defendant. The fourth defendant gives evidence as to the succession and it is not disputed. This element is established.

I am of opinion, therefore, that the fourth defendant has succeeded in establishing all the constituent elements of an estoppel per rem judicatam, and that the plaintiff is accordingly estopped from disputing or questioning the fourth defendant's title to the land upon which the trespass is alleged to have taken place. Having come to that conclusion it becomes unnecessary for me to examine in detail the other ground of appeal, viz :-that the judgment is against the weight of evidence; but I think I should say, in fairness to the plaintiff, that I should not have been prepared to disturb the trial Judge's findings of fact upon the evidence adduced before him.

There is another point to which I wish to refer. This was an action claiming damages for trespass. It was not a suit asking for a delimitation of a boundary, still less for a declaration of title. For the purpose of ascertaining if there had been a trespass, a survey of the land upon which the trespass was alleged to have been committed was ordered, and in the plan produced the total area claimed by each party surrounding the land was shown. It was natural that each party, in order to show his title to the area of the alleged trespass, should seek to prove the correctness of the boundaries he alleged to be his, and it was proper that the trial Judge should record findings of fact in respect of other parts of the area than that actually alleged to be trespassed upon as they would have bearing upon the issue of ownership of the area of alleged trespass. But the question of what was the proper boundary between the parties never became one of the issues in the case which called for a finding of the Court. I can find no power which enabled the Judge to make a declaration of boundaries in this case or to fix an arbitrary boundary conforming to no natural features.

If the delimitation of the boundary had become one of the issues in the case so that it was proper to include such a delimitation in the judgment, it is difficult to understand why the plaintiff was awarded full costs of the suit when he was only partially successful, the defendants being also partially successful.

I hold the view that, if it were possible to uphold the finding as to trespass, the judgment should be amended by deleting the words" and I have marked and initialled the boundary as I have found it, and recommend that it be surveyed and cut."

In my opinion this appeal must succeed upon the ground of estoppel per rem judicatam, and the judgment of the Court below must be reversed and judgment entered for the defendants with costs in this Court and the Court below.

DEANE, C.]. THE GOLD COAST COLONY.

In this matter the plaintiff sued the first three defendants for damages for trespassing on and cultivating his land and burial grove at Framase within the division of Assin Attobease. The suit was instituted in the Native Tribunal of Nyankumasi, but was by an order of the Acting Commissioner of the Central Province dated 21st June, 1927, transferred for hearing before a Divisional Court. The order as drawn up purported to be made by virtue of section 22 Cap. 82, but as Cap. 82 deals with Liquor Traffic and contains only 11 sections the reference is clearly wrong and the order was in fact made under section 71 (2) of the Native Adminis­tration Ordinance Cap. 111. Subsequently by order of the Divisional Court dated 8th December, 1927, the fourth defendant was, on his own application, made a party to the suit.

The plaintiff is a Chief under the Omanhene of Nyankumasi ; Efilfa V, the last joined defendant, is a Chief under the Omanhene of Assin Apamanyim. The other defendants claim through Efilfa V, and the contest is really between the plaintiff and Efilfa and through them between the two Amanhene as to the boundary of their two States. The fact that there is no prayer for a declaration as to title of the land in dispute is not unusual, since the regular way of raising the question of title to land in a Native Tribunal (and this suit originated as we have seen in a Native Tribunal) is by action for trespass. That it was well understood between the parties that they were fighting not as to more or less important trespass in a very restricted area but as to the whole area in dispute between them is clear from the fact that as early as 7th September, 1927, an order was made by Hall,]. with the consent of both parties for a survey of the area in dispute; and in pursuance thereof a plan was prepared showing exactly what land was claimed by the parties. At the hearing of the case the trial was conducted on these lines, and so well was it understood that the contest was about the whole area marked on the map as the disputed area, that it was completely overlooked that Framase, the place where the alleged trespass was laid, is in territory of the plaintiff, far to the west of the disputed territory. It is agreed by both sides that there has been no dispute as to ownership and no encroachment at Framase while Bisiase, the place within the disputed territory where the learned Judge found the treapass to have occurred and for which he gave damages without amendment of the writ, as ordered by this Court, was merely an undistinguished point on the route taken by the learned Judge during the two days he traversed the disputed territory.

Now this, as I have pointed out, is a dispute between neighbouring states as to a boundary, both sides claiming that tract of country on the map which lies between the pink line which marks the utmost limit of plaintiff's boundary to the east and the green line which marks the utmost limit of defendants' claim to the west. It is indeed only to be expected, in view of the fact that peoples of neighbouring states are often sprung from a common origin (it is agreed that plaintiff and Efilfa are both of the Etsi or Otim tribe), speak the same language and intermarry freely, and that there is no organisation to prevent encroachment over the boundary, that people from both states are apt to settle over what I may describe as border territory with the result that in some places the farms of the subjects of one state predominate, in other places the subjects of the other side hold the numerical predominance. Tribute is thus paid sometimes to one side and sometimes to the other, sometimes to both claimants. All of these characteristics are pre!oent in this case: so we find the learned trial Judge in his judgment admitting that both sides were receiving tribute in respect of land within the disputed area, that the subjects of both were settled in it, and that in some places the defendants' subjects held a practical monopoly of the cocoa farms. It is obvious that in such circumstances it becomes a very difficult matter to decide as to the ownership of the disputed territory, and that whatever decision is arrived at it must be open to destructive criticism in detail. The rule that the Court of Appeal, provided there is evidence enough to support them, should not interfere with the findings of a trial Judge who has had the advantage of hearing the witnesses and seeing the terrain, is a sound one. I should be loth to disregard it in this case, although I confess I should uphold the decision with grave doubts in view of the fact that in coming to his decision the learned Judge has felt bound to compromise by drawing an arbitrary line from east to west across the disputed area cutting it into a northern and southern portion when neither side has ever suggested such a boundary between them. It seems to me, however, that the learned spared the necessity of cutting the Gordian knot in manner to which he has had resort.

On page 36 of the record in the opening statement of defendants' Counsel which, under the practice obtaining in the Gold Coast where pleadings have not been ordered serves in place of a pleading, J find the following :-

" In respect of this same land about 35 years ago ancestors of plaintiff-Gaitua and Efilfa's ancestors got a dispute. The oaths of Nkyi and Tsibu were sworn by Chief Efilfa's ancestor who was called Efilfa I, that the land was his. Omanhene Nkyi and Omanhene Tsibu deputed these Chiefs and linguists to meet at Damang. They sat over the case and judgment was given in favour of Efilfa 1."

This has evidently been noted down hurriedly, but I think the meaning is sufficiently clear, and it amounts to a plea that 35 years ago there was a dispute between plaintiff's ancestor Gaitua and Efilfa's ancestor Efilfa I about the same land now in dispute; that each of them swore the oath of his Omanhene-a recognised native way of instituting a suit-and that thereafter the dispute was referred by the Omanhene to a body of persons who duly heard the parties and gave a decision in the dispute. The fourth defendant was, in fact, setting up an estoppel by res judicata, and I think that if he could establish the facts pleaded he would thereby become entitled to judgment.

It has frequently been laid down in the Courts of this Colon} that where matters in dispute between parties are, by mutual consent, investigated by arbitrators at a meeting held in accordance with native customary law, and a decision is given, it is bindinl5 on the parties and the Supreme Court will enforce such decision (Ekua Ayafie v. Kwamina Banyea, Sarbah's Fanti L.R. 38, and Okyeame Kwasi M1:re v. Kwesi Danso, Div. Ct. 1921-192595.)

Now in this case evidence has been given by K waku Baa, one of the Councillors of Nkyi Omanhene of Assin A pimanyim that one year before Prempeh's expedition which event occurred in 1894, in accordance with native customary law by which disputes which exist between subjects of different Amanhene and which are not therefore justiciable by either of them separately are referred to a body ch03en by agreement between the two Amanhene, a dispute about land-the same land as is in dispute now-between Gaitua and Efilfa I, the predecessors in title respectively of the present plaintiff and the present defendant Efilfa V, was referred to a body of men chosen by the Amanhene to decide the issue between them, and that that body, of which witness himself wa'.> a member, after hearing the evidence of a witness by name Buatin the Chief of Atobiase, who was relied on by both sides, found in favour of Efilfa 1. From his evidence it is clear that then, as now, the question was as to the boundary between the two parties and the witness made it clear that " Efilfa got judgment that the land on the right of the stream from Wura Ekwia to Prabonkesi belonged to him."

Then the question arises how far did the learned Judge accept the evidence of Kweku Baa? At the beginning of his judgment he states: "About 1894 (according to defendants' witness Kweku Baa) there was a dispute between plaintiff's predecessor Gaitua and defendant Efilfa's predecessor Efilfa 1. about land which, according to the evidence of plaintiff's witness Kobina Aduakwa and defendants' witnesses Efilfa himself and Kweku Baa, appears to have been the land between the Wura Ekwia and the Wonkobima. Plaintiff called rebutting evidence to deny that there was any such litigation, but as his witnesses Kobina Aduakwa and Yaw Adadi knew of it, it may be taken to be a fact." Here is a finding that about 1894 there was a dispute between plaintiff's and defendants' predecessors in title about land, which a glance at the map will show to be the land now in question between the parties to this suit, a dispute which the learned Judge also found proceeded to litigation. Then one would have expected the learned Judge to refer to the nature of the body before which this dispute was litigated. and to say whether or not he accepted Kweku Baa's statement as to its being referred to a body chosen by agreement of the Amanhene to decide it in accordance with native customary law. No such finding was made. The learned Judge after finding, as I have already stated, goes on "Efilfa and Kweku Baa said that the decision was in favour of Efilfa that the Wura Ekwia was the boundary and Kweku Baa said he was present at the hearing." The learned Judge has retired from the service and it is impossible now to ask him to elucidate the position a little better than he has done, but inasmuch as he here refers to a hearing and a decision I think it is fair to argue that he must have believed Kweku Baa to the extent that he accepted the fact that some kind of judicial body sat to adjudicate upon the matter at issue. Now inasmuch as Kweku Baa's account of the nature of the body that adjudicated is the only one that we have, the plaintiff having contended himself with a denial that there was any dispute, a contention which was rejected by the Court, Kweku Baa's account holds the field, and we ought to accept it unless upon the face of it it is unworthy of credence. But as a matter of fact it was admitted on plaintiff's side that a tribunal of the nature spoken to by K weku Baa was in the circumstances usual and recognised by native custom, and I do not understand that that is challenged now. That being so we have it that by consent a body was set up in accordance with native customary law to decide a dispute between two parties; that that body sat and heard both sides and gave a decision on the question referred to it. Such a decision is in my opinion enforceable. The learned Judge has, however, given various reasons for rejecting it. Let us examine them.

The first (a) is " Kweku Baa says definitely it was the decision of a court not an arbitrator," therefore the idea of an award may be put aside.

Now while this touching reliance upon what Kweku Baa says is of interest as affording some indication of the high value placed by the learned Judge on Kweku Baa's evidence, I cannot help remarking that I find it difficult to imagine, with the utmost respect to the learned Judge, how anyone could so absolutely surrender his intellect to a mere shadow as he has done. After all it was not what Kweku Baa, an illiterate person, thought or said that ought to have been decisive with the learned Judge in a matter of this kind, bu t the inference of the Court drawn from a consideration of the facts stated by K weku Baa as to the nature of the body set up to deal with the dispute If Kweku Baa so described a civil dispute as to leave no doubt in the mind of any person competent to decide as to its nature, that person surely should not, merely because a person of Kweku Baa's attainments spoke of it as a criminal case, come to the conclusion that it was not a civil case. For my part I have no hesitation in holding that the body described by Kweku Baa was a competent authority by native customary law to decide the dispute referred to it, and that whatever its decision is called, whether judgment, award or decision, it is good. It is the substance that matters, not the name.

(b) It is not proved that it was the judgment of a competent Court: I think this objection has been answered already.

(c) There is no record of it.

This does not seem to be a good reason for rejecting the decision. Once it is proved, that is enough. One can only remark that the fact that there is no record is nonnal: it would be abnonnal and a matter for suspicion if there was one.

(d) There is no evidence that it was cited in the subsequent case between the same parties' successors at Anamabu.

Now so far as I can understand the position the proceedings at Anamabu were cited, not by the defendant but by the plaintiff, in an attempt to establish a res judicata on his side. As soon, therefore, as it was shown bv defendant that the decision obtained by the plaintiff in the mat1~er was set aside on appeal, his point was established-there was no judgment operating in favour of plaintiff. Why should he go further and prove something which there was no need for him to prove? There is, moreover, no record 01 evidence in the case to show whether defendant referred to the previous decision in his favour or not: so that the defendant may well say if there is no evidence that I cited it, there is also no evidence that I did not cite it.

(e) It is improbable that the Amanhene came to an agreement, especially as it was not a compromise but was adverse to one of them.