This is an appeal from a
judgment of the West African
Court of Appeal (Gold Coast
Session) which allowed an appeal
from a judgment of the Supreme
Court of the Gold Coast Colony
(Eastern Province) pronounced in
two consolidated actions. Each
of these actions was instituted
in the tribunal of the Omanhene
of the State of Akyem Abuakwa.
The first in point of time (the
writ being dated the 29th March,
1933) was an action in which one
Christian Yao Kisiedu was
plaintiff and one Kwao Dompreh
was defendant, and in which the
plaintiff claimed damages ·for
trespass on the plaintiff's land
and an injunction to restrain
further trespass. In the second
action (in which the writ is
dated the 28th April, 1933) the
said Dompreh as plaintiff
claimed against the said Kisiedu
as defendant damages for
trespass on his land and an
injunction. The two actions were
consolidated and by an order of
the Supreme Court dated the 22nd
.Pune, 1933 were transferred for
hearing and determination to the
Divisional Court, Accra.
The dispute between Kisiedu and
Dompreh was not a dispute as to
boundaries between two grantees
claiming under the same grantor.
Each claimed his land under a
different grantor. Kisiedu
derived title to his parcel of
land by purchase in 1907 from
the Stool of Tafo and its
subordinate Stool of Adjapoma.
Dompreh derived title to his
land, which was a portion of the
larger parcel claimed by Kisiedu,
by purchase in 1918 from the
Stool of Asafo. Obviously the'
litigation involved bigger
questions than the mere
questions of damages for
tresp6ss between individuals. It
involved questions of title as
between different Stools. ]'or
this reason orders were made
joining as parties to the two
actions representatives of the
Stools concerned. By an order of
the said Divisional Court of the
13th March, 1934 it was ordered
that a representative of the
Stool of Asafo be joined as a
co-defendant in the first action
and as a co-plaintiff in the
second action, and that the
necessary amendments in the
proceedings be made.
By an order of the same Court of
the same date it was ordered
that representatives of the
Stools of Tafo and Adjapoma
respectively be joined as
co-plaintiffs in the, first
action and as co-defendants in
the second action and that the
necessary
amendments in the proceedings be
made. In consequence of the
death of Kwao Dompreh an order
was made on the 29th June, 1934,
entering the name of his legal
representative (Djorbua Dompreh)
in the place of Kwao Dompreh as
a defendant in the first action
and as a plaintiff in the second
action.
The consolidated actions were
heard by Deane C.J. (Gold Coast
Colony), the trial lasting some
SHen days. He decided in favour
of Kisiedu awarding him £100
damages for trespass and
granting an injunction against
the defendants in the first
action. In the second action he
gave judgment for the defendants
with costs. In other words the
learned Chief Justice held upon
the evidence adduced, that the
title to the land which had been
sold to Dompreh lay not in the
Stool of Asafo but in the Stool
of Tafo, and had therefore been
effectively sold to Kisiedu by
the Ohene of Tafo and the Odikro
of Adjapoma.
On appeal this decision was held
by Kingdon C. J. (Nigeria) and
Webber C .• I. (Sierra Leone) to
be against the weight of
evidence. 'they entered judgment
for the defendants in the first
action, and in the second action
they awarded £10 damages for
trespass and an injunction
against the defendants in the
second action.
From this it will be seen that
the findings of fact of the
trial judge, based upon his
consideration of the evidence
given by the witnesses who were
called before him, were
dissented from and reversed by
the Appellate Tribunal. That to
do so is within their power
cannot be doubted, but in order
to ascertain whether they were
justified in the present case in
reversing the trial judge upon a
question of fact largely
dependant upon oral evidence,
necessitates a consideration of
that evidence, of the respective
judgments and of the reasons
given by the Appellate Tribunal
for differing from the trial
judge on questions of fact.
One question must be mentioned
at the outset. Evidence was
given, and was cross-examined to
in some detail, as to the exact
boundaries of ~he property which
had been purchased by Kisiedu,
and suggestions were made that
as a result of the evidence he
had not proved his parcels with
sufficient certainty to
establish that his purchase in
fact included any portion of the
land purchased by Dompreh. A
plan (exhibit A) was put in
evidence. This had been prepared
as the result of a survey made
in 1927 by a licensed surveyor
named Kwantreng. It shows the
land claimed by Kisiedu
surrounded by a yellow edging,
and (as part thereof) the land
claimed by Dompreh surrounded by
a green edging. It will be
convenient to refer to the
former as the yellow land, and
to the latter as the green land.
The trial judge took the view
that in the result the question
of parcels and boundaries was
immaterial to his decision of
the
case. What he said was this:
--
A lot of evidence has been given
in the course of the case
as to
the boundaries of the of the
lane shown to the respective
parties when they
·
acquired the lands and what they
did subsequent to the purchase.
All that evidence in my opinion
is beside the point since at the
end neither Kisiedu or Dompreh
and Jarkwa seriously contest a
bona fide
purchase by their opponents of
the lands claimed by each. It
must I think be taken as proved
that in the year 1907 Kisiedu
acquired from the Ohene of Tafo
and the Odikro of Adjapoma . all
that parcel of land delineated
in yellow shown on plan
"A"
and that in the year 1919
Dompreh and Jarkwa acquired
by purchase from the stool of
Asafo all that parcel of land
delineated in green on the same
plan U A."
Their Lordships think that this
view of the learned judge was
correct. There was really no
dispute between the parties as
to the fact that two different
grantors had purported to grant
the green land, and the question
for decision was which grantor
had the title to grant the green
land. That this was so was made
abundantly clear by counsel for
Dompreh upon the application
which resulted in the orders of
the 13th March, 1934. The
following is an extract from the
judge's note-
Mr. Quist states the question
really to be decided is whether
the Odikro of Asafo or the
Odikro of Adjapoma had the title
in the land to sell-The same
piece of land has been sold to
the respective parties by these
2 stools. It will be therefore
necessary to join these stools
in order that their title may be
investigated.
The Court of Appeal took a
different, and as their
Lordships think, a wrong view as
to this. They argued from the
price paid by Kisiedu, from the
fact that the green land
remained uncultivated by him,
and from the absence of any name
plate on a certain tree at the
south-eastern corner of the
green land,
that Kisiedu
had only purchased the yellow
land which is situate to the
north of the green land. They
went further and discredited, as
their Lordships think without
justification, the evidence of
Kwantreng, the licensed
surveyor, who was an independent
witness, and who testified to
the fact that a tree at the
south-western corner of the
green land had borne one of
Kisiedu's name plates. In view
of counsel's language, already
cited, and of the trial judge's
statement set out above, the
case must necessarily have
proceeded upon the footing that
the green land had purported to
have been conveyed to both; and
in their Lordships'· opinion the
question whether the green land
was included in the conveyance
to Kisiedu was not open to doubt
or question in the Court of
AppeaL
Nevertheless the learned judges
in the Court of Appeal
investigated this question, and
came to the conclusion that
Kisiedu has failed to prove that
the land conveyed to him
included any of the green land.
That in itself, if true, would
have been fatal to Kisiedu in
the litigation, but it would in
no way have affected the larger
question as between the rival
Stools. As already indicated
their lordships think that the
Court of Appeal ought not to
have reached that conclusion,
and they fear moreover that that
Court's view of the case has
been to some extent coloured by
its view of this matter.
Although four points were argued
in the Court of Appeal as
grounds for reversing the
decision of the trial judge,
only one succeeded, viz.: that
the judgment was against the
weight of evidence; and before
their Lordships, counsel for the
respondents rightly based his
claim to succeed on the appeal,
upon that point alone.
It is necessary now to explain
the point to which the evidence
was directed, and the question
of fact upon which the case
depended. The case turned upon
the question whether the lands
which the Odikro of Adjapoma
held in IH04 (the reason for the
selection of that date will
appear later and with which he
served the Stool of the Ohene of
Asiakwa had originally belonged
to the Stool of Tafo or to the
Stool of Asafo. This in turn
depended upon tradition, as to
what had happened in the dim and
distant past. Up to a point the
traditions deposed to, were in
agreement. Long ago the Chief of
Asiakwa, one of the Ashanti
invaders; obtained permission
for his servant (one Koyo a
hunter) and his wife, Adjapoma,
to settle and hunt on lands
subsequently and now known as
the Adjapoma lands. :From this
beginning had sprung the Stool
and lands of Adjaporna. The
point upon which the evidence of
tradition given on behalf of
Kisiedu and his side, differs
from that, given on behalf of
Dompreh and his side, is as to
the Stool from which the~ Chief
of Asiakwa had sought and
obtained the aforesaid
permission; in other words to
which Stool the Adjapoma lands
then belonged. Kisiedu's
witnesses said that according to
tradition the Stool of Tafo was
applied to and gave permission;
Tafo supplied the land for Koyo
and Adjapoma to occupy; the
Adjapoma lands belonged to Tafo.
Dompreh's witnesses asserted
that according to tradition the
Stool of Asafo was applied to
and gave permission; the
Adjapoma lands belonged to Asafo.
If the Adjapoma lands belonged
to '1'afo, the title in the
green land had passed to Kisiedu.
If the Adjapoma lands belonged
to Asafo the title in the green
land had passed to Dornpreh.
The trial judge heard the
witnesses, and although it is
true that the acceptance of one
version of the tradition does
not necessarily involve that a
man who deposed' to a different
version was testifying to
something which he knew to be
untrue, it is none the less true
that
prima facie
a trial judge who hears and sees
how the witnesses give their
evidence as to tradition, is
better qualified to form an
opinion as to which is the
accurate version, than those who
have not that advantage.
In this case the trial judge
after a long trial and a close
and careful examination of the
evidence, came to the conclusion
that the version of the
tradition which gave Tafo as the
owner of the lands was the
correct one and ,decided
accordingly. In reaching this
conclusion he based himself on
corroborative. matters of
different kinds. Rut first and
foremost he fastened upon one
matter which was undisputed and
indisputable, to which their
Lordships now refer.
In or about the year 1904 the
Odikro of Adjapoma became
indebted under a judgment to a
neighbouring chief (the Chief of
Okoko), in a conSIderable sum.
He applied to his over-chief the
Ohene of Asiakwa for assistance
to pay the debt. The Ohene of
Asiakwa was unable to find the
necessary money, and told the
Odikro of Adjapoma to apply to
the Ohene of Tafo, as the
Adjapoma lands had been given by
the Ohene of Tafo. That evidence
was given by Kofi Peasah who was
the Ohene of Tafo at the time of
the trial, and the nephew of
Kwadjo Peasah, who who was on
the Stool of Tafo in 1904. His'
evidence runs thus:-
The Odikro of Adjapoma owed
about £750 expenses in the
dispute. The Adjapoma Odikro
went to the Ohene of Asiakwa and
asked him to help him to pay the
debt. The Ohene of Asiakwa
refused to pay more than £30 but
said that Adjapoma land was
given to him by the Ohene of
Tafo, so they should go to him
to pay. The Odikro came to my
uncle and my uncle sent
messengers to the Ohene of
Asiakwa to· ask him if what the
Odikra of Adjapoma said was
true. The Chief . sent back by
the messengers to say yes it was
true. Then my uncle paid the
debt and the Chief of Adjapoma
served him.
Their Lordships appreciate ~hat
this is evidence given by an
interested witness, but the
truth of it is, they think,
established, and the weight of
it placed beyond doubt by the
undisputed facts that Adjapoma
did
apply to Tafo for the money and
obtained it from Tafo, and by
the evidence which was given by
an important witness called on
the other side, viz., Kwesi
Kromo the representative of the
Ohene of Asiakwa, who made the
following statement: -
The Chief of Asiakwa gave £30
and that was· not sufficient so
Adjapoma refused to take it.
The~ went to the Ohene of Tafo
and obtained the loan. I have
not heard if the Ohene of Tafo
sent to the Ohene of Asiakwa
about the matter. I know since
then the Odikro of Adjapoma has
served the Ohene of Tafo and not
the Ohene of Asiakwa, but I
don't know why or of any
arrangement. It is the custom if
a man gets into debt to go to
the man on whose land he is
living for help. I can't explain
why the Adjapoma people went to
Tafo and not to Asafo.
Here at all events is a solid
fact upon which a trial judge
might well rely, in arriving at
a decision in a case in which
vague and uncertain evidence
abounds. There were no doubt
many other matters deposed to
which gave indications pointing
some in one direction, some in
the other, and from which
inferences could be drawn
favourable to one view of the
facts or the other. Their
Lordships do not think it
necessary to go through these
other matters in detail. Suffice
it to say that Deane C.J.
considered them, weighed them,
and came to the conclusion that
the title to the green land was
in Tafo, when Tafo and the
Odikro of Adjapoma sold it to
Kisiedu, with the result that
Dompreh had acquired no title to
the green land and was a
trespasser thereon.