Appeal Court 24th Feb. 1940. Appeal from decision of the Chief Commis­sioner of Ashanti's Court.

Judgments of Chief Commissioner and Asantehene's Court" A " set aside-Judgment of Asantehene's Court" B " restored.

The facts are sufficiently set out in the judgment.

A. S. Evelyn Brown for Appellant.

E. C. Quist for Respondent.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, C.]., GOLD COAST AND BANNERMAN, J.

This case has had a very chequered career. It is not necessary for the purposes of this judgment to go otherwise than briefly into the various stages which have resulted in this appeal being again heard by this Court.

Plaintiff commenced proceedings in the Asantehene's Court " B" held at Kumasi by swearing the great Oath to the effect that he is the owner of that parcel of land situate and lying on " Kyim Kwayem " and the Defendant also responded to the effect that he and the Plaintiff own the land. As was stated in the judgment of this Court dated the 24th April, 1937, it is clear from the proceedings that by his response the Defendant did not mean that he and Plaintiff were joint owners of the whole land, but that they each owned part of it with a boundary between them; there is no dispute that part of the land Kyim Kwayem belongs to the Plaintiff.

After hearing evidence the Asantehene's Court "B," in accordance with native custom, deputed five of its members to view the area in dispute and submit a report. They did so. Their report however was impossible to follow upon the plans which were available when this appeal last came before this Court. Hence an Order was made for a proper plan of the area in dispute to be prepared. Exhibit L is the result and with it the inspection report is easy to follow. It shows indeed that the deputation carried out their duties with great care and in an exemplary manner.

From the report it will be seen that the Plaintiff and the Defendant showed the deputation what they claimed to be their respective boundaries. The Defendant's claim met with no dispute from any third party. In the case of the Plaintiff, however, his original claim was for the whole of the area edged green on Plan " L," and whilst he was showing what he alleged was his land in the southern part of this area, Kwame Mosi, the Odikro of Aku, swore the great Oath that the land Plaintiff was claiming in that part was not the Paintiff's but belonged to his people; again when the Plaintiff was pointing out what he claimed to b2 his land north of the source of the Ahiresu stream the Ohene of Kwarso also swore the great Oath that the land indicated did not belong to the Plaintiff but to Kwarso.

The Plaintiff did not respond to either oath. The land claimed by the Odikro of Aku is edged pink, while that claimed by tne Ohene of Kwarso is edged brown in Plan " L ".

The deputation, having eliminated these two areas, proceeded to consider who was the owner of the land claimed by the Defendant. This land is edged yellow on Plan " L " and is hereinafter referred to as the land in dispute. There is some dispute ;JS to whether the Plaintiff produced one or two plans to the deputation. We are satisfied that he produced one only. The Defendant also produced a plan. The Plaintiff's plan is marked Exhibit "C" and the Defendant's Exhibit" D ".

The proceedings in this Court were conducted until after the Court had reserved judgment on the assumption that the plan produced by Plaintiff to Court " B " had been lost. It was only thereafter that Counsel for Plaintiff informed the Court that the plan in question was that marked" c." That plan, as hereinafter appear~, is of great importance.

The deputation found that Plaintiff's plan showed a pillar marked B.V.A.21 128 /13 near Boadjiwa Nkwanta as the head boundary between Ejisu, Plaintiff's and another Stool, the name of which was not mentioned on the plan. This plan, they stated, showed that all lands on the left side of the road from the pillar near Hoadjiwa Nkwanta to stream Wunwa was a Stool property and from stream 'Wunwa going towards Odumasi all lands on the left hand side of the road was Plaintiff's land. After examining the Defendant's plan they came to the conclusion that the un-named Stool, which owned the land shown on Plaintiff's plan, was in fact the Defendant's Stool and that the Defendant owned the land in dispute.

The Asantehene's Court "B" after considering this report gave judgment for the Defendant stating that they were satisfied that the land in dispute was the property of the Defendant.

The Asantehene's Court" A " on appeal after hearing further evidence reversed the judgment of the Asantehene's Court" B " .•

From this judgment the Defendant appealed to the Court of the Chief Commissioner of Ashanti which dismissed that appeal on the ground that it was bound by an executive decision given by Captain Hobart, District Commissioner on the 19th February, 1907, and validated by Ashanti Ordinance No. 7 of 1929 section 3 (1).

On appeal this Court held, for the reasons given in its judgment, that the Hobart decision fixed a boundary not between Ejisu and the. Plaintiff alone but between Ejisu and both Plaintiff and Defendant, leaving open the question of boundary as between Plaintiff and Defendant and that the Court of the Chief Commissioner of Ashanti was not bound by this executive decision to find for Plaintiff, and remitted the case for it to be heard on its merits.

The Court of the Chief Commissioner of Ashanti reheard the case and again upheld the judgment of the Asantehene's Court" A." The case again came before this Court on appeal and this Court finding that the land claimed appeared to be far more extensive than the land actually awarded to the Plaintiff by the judgment of the Chief Commissioner's Court and that the absence of a proper plan to scale made it impossible to follow the inspection report in the original trial Court or, indeed, to ascertain more than roughly the position of the land awarded or its area, adjourned the hearing of the appeal to enable a proper plan to be made and for the Chief Commissioner's Court to amend its judgment by reference to the new plan.

The Chief Commissioner's Court caused plan marked "L" to be made and after reconsidering its judgment in the light of this plan again confirmed the judgment of the Asantehene's Court ." A."

In the judgment of Asantehene's Court" A " it is stated that the appellant based his appeal upon a series of judgments of the English Courts in respect of the land of which the portion in dispute formed part. That Court gave no reason for its judgment but seems to have been impressed by the action Omanhene Kwabena Wusu versus Chief Yaw Nimo, to which we shall refer later.

That Court held that the land in dispute was the property of the Plaintiff and that the land edged pink in plan " L" was land originally owned by the Defendant and sold to the Odikro of Aku over 90 years before.

The Chief Commissioner of Ashanti's Court in its judgment of the 16th August, 1937, stated that the evidence was" almost wholly confined to that of the various disputes which have raged concerning ownership of the land in that vicinity and it is note­worthy that with the exception of that with K warso that the name of Dumfeh does not appear as a party."

The disputes that concerned the land in dispute and the neighbouring land are the following :-

 1. Boundary dispute between Kumasi and Ejisu.

II. Sub-Chief Kwabena Dumfeh versus Sub-Chief Kojo Ntaka.

III. Chief Yaw Nimo versus Omanhene Kojo Buateng. IV. Omanhene Kwabena Wusu versus Chief Yaw Nimo.

As to I it suffices to say that this was a boundary dispute which resulted in what has been referred to as the Hobart decision in which Captain Hobart laid down the boundaries between Ejisu on one side and the Plaintiff's and Deiendant's predecessors (Kumasi) on the other. Captain Hobart did not define the r~spective lands of the Plaintiff's and the Defendant's predecessors who were both parties to the proceedings.

As to II. This was an action by the present Defendant against the Omanl1ene of Kwarso. It concerned a piece of land marked A. 10/29 on plan" E " which is adjacent to the land in dispute. In that. action a plan " ]) " was produced. According to that plan the land in dispute in the present case was shown as claimed by the present Defendant and Ejisu while that to the north-west as claimed by Kwarso and the parties to this action. It was this plan that was produced to the deputation by the Defendant. There is nothing in this plan which tells against the Defendant; . on the contrary it shows, for what it is worth, the consistency of his claim to the area now in dispute.,

As to. III. This was a dispute by the present Plaintiff, as Plaintiff, against Ejisu about land which lay north of the land in dispute in the present proceedings. A plan (Exhibit" C ") drawn by Messrs. Anoff and Gimmel was put in by the Plaintiff. This is the plan which the present Plaintiff produced to the deputation.

As to IV. This was an action by the Ejisuhere against the pre­sent Plaintiff in which the Ejisuhene sued the present Plaintiff for 'unlawful entry and trespass on his lands containing the hamlets of Amancesi, Brosankro, Bushyen and Ahyiresu. These hamlets are on the land in dispute. If that action had gone to trial and the present Defendant had known about the action and not intervened it might well have been regarded as an admission that the land in dispute was not his. That action did not go to trial for the Ejisuhene discovered that the hamlets were outside his land and he withdrew his claim.

It will thus be seen that the Defendant was a party to disputes I and II. In, our opinion no significance can be attached to the fact that the present Defendant was not a party to disputes III and IV.

Plan "c" which was produced by the present Plaintiff in dispute III and to the deputation is of great importance. It will be seen that on this plan the land directly north of the land in dispute is boldly marked "DOYEN" While the land -which lay south of the Wunwa and on the left of the path from the pillar at Boadjo Nkwanta to Odumasi, i.e. the land in dispute, was merely marked " Stool land" in small letters. Comparison of this plan with the plan " D ", which .the Defendant produced to the deputation and which he had used in dispute II, greatly influenced the deputation a~d the Asantehene's Court" B'''' in coming to the conclusion that the land in dispute belonged to the Defendant. No doubt the deputation and the Court were also impressed by the clear demonstration of his claim which the Defendant gave on the land.

There can be no doubt, also, that the fact that the Plaintiff claimed areas edged pink and brown respectively and did not respond to the Oaths of Aku and Kwarso respectively must have carried great weight with the Asantehene's Court "B." It certainly does with this Court.

Great stress has been laid by Plaintiff's Counsel on the fact that pillar A.I0 /29 /2 has been admitted by the Plaintiff and the Defendant and Kwarso to be their common boundary and that fact supports the Plaintiff's claim and is certainly difficult to reconcile with the Defendant's. A possible explanation is that Exhibit" L " shows too much land as K warso's and that Plaintiff has land running down to that pillar between Kwarso's and Defendant's land, but it is no part of the duty of this Court on this appeal to consider whether the Kwarso claim to the whole of the area edged brown is well founded. In any event this one point is not sufficient to out­weigh the other very strong points in Defendant's favour. It was not the ratio decidendi in either the Asantehene's Court " A " or the Court of the Chief Commissioner. There is one other point which should be mentioned to avoid confusion. In its judgment dated 27th April; 1937 this Court mentioned a line between the pillars marked "10/29/2" and "v: 21/28/1." The line re­ferred to is not an imaginary straight line drawn between those points but the irregular line shown on Exhibit" A ", passing partly along the Wunwa stream and subsequently through Duponase. The so-called line is edged partly brown and partly yellow on Exhibit ." L "

The trial of land cases in Ashanti as in the Gold Coast Colony is entrusted by law to Native Tribunals. These Tribunals have their own methods of ascertaining where the truth lies. The Asantehene's Court" B " has decided this case upon an inspection in situ and upon plans not made for the purpose of this action but upon plans whichh each party had produced in other proceedings.

Until the new plan " L " was made it was difficult to follow the reasoning, but with that plan it is easy to follow the inspection report and the judgment in the Asantehene's Court "B." They appear to us to be clear and reasonable and founded upon good sense .. Nothing in the proceedings of the- Asantehene's Court " A " or of the Court of the Chief Commissioner has shown the judgment of the original trial Court to be wrong. On the con­trary, now that plan" L " is available, the more the plans and the evidence are examined the dearer does it become that the decision of the trial Court was correct.