Appeal from Provincial Commis­sioner exercising appellate jurisdiction

Claim to land and building thereon alleged to have been granted 1Jnder Native Customary Law-Law governing such grant­ Findings of fact by the Native Tribunal set aside by the Court of the Provincial Commissioner.

Held: Findings of the Native Tribunal should not have been

disturbed and appeal allowed.

There is no need to set out the facts.

C. F. Hayfron-Benjamin for Appellant.

K. A. Korsah for Respondent.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOIJD COAST AND WEBB, C.J., SIERRA LEONE.

The plaintiff sued the defendant before the Native Tribunal of Yamoransa, Omanhene of Nkusukum State, claiming a piece of land and a building thereon.

From the judgment of the Native Tribunal it will be seen that the plaintiff's case was that she rendered monetary and other assistance to her late husband Kwamin Assimaku, during the course of the erection of the building the subject matter of the action, while they were living together as husband and wife, and because of this Assimaku, in his lifetime, gave her a part of the building as a gift and the other part to his sister and his nieces.

The Native Tribunal gave judgment for the defendant with costs assessed at £5. In its judgment the Native Tribunal stated that: -

" The Tribunal find that, although it might be that A8Simaku " intended to make a gift of a portion of his building to plaintiff, " his wife, the course adopted seems to have been improper; it is " tantamount to private transaction or dealing; gifts of this kind •• must be made public, that is: relatives of both the donor and the •• donee and some outside persons must be present to act as " witne8Ses, and the donee in accordance with custom acknowledges " or accepts the gift by giving some present or presents in return "as a thanksgiving. This is not so in this case and it cannot " therefore be said that the gift is valid in accordance with Native " Customary Law. The claim of the plaintiff fails, and the building " left by Kobina A8Simaku on his death automatically goes to his •• family.

" In view of the apparently good services rendered by plaintiff .• to her late husband Assimaku, the Tribunal recommend to the " defendant that plaintiff, who is already in occupation of one of " the rooms in her late husband Assimaku's building, be allowed to " continue in occupation for the time being until such time as she •• would again be married to another man when she should quit."

On appeal the Court of the Provincial Commissioner, Central Province, reversed this decision. The material part of the judgment of that Court is as follows:-

"The Tribunal in its judgment sums up the evidence quite " correctly, namely that the appellant assisted her husband during "his lifetime to build a house and for services so rendered he " presented her with a portion of it and the rest to his sister and •• nieces.

" This statement is supported by evidence which is good and " is not rebutted.

"Respondent's statement is simply a blunt denial of these " facts but supports it with no evidence. The Tribunal then goes " on to say that this gift of a portion of the house to appellant " was contrary to Native Custom and finds in favour of the mother " i.e. the respondent in this case.

" It is recognised Native Custom that a person can dispose of "self-acquired property i.e. property which he has bought or "constructed during his lifetime. It is contended by the "respondent that even so his mother ought to have been told. " There is unrebutted evidence in the record to show that she was " told.

"The Court finds that the Tribunal wrongly interpreted " Native Custom in this respect and this Court therefore, in view "of the fact that the evidence is strongly in favour of plaintiff­ appellant and Native Customary Law is also in her favour, " allows the appeal with costs to be taxed."

The Privy Council in the course of its judgment in the case of A.bakah Nthah v. A.nguah BennieP said:-

" 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, and their Lordships fail to find such " proof in the present case."

In Christian Yao Kisiedu and Others v. Djorbuah Dompreh and Others the Privy Council stated:-

" No doubt an appeal in a case tried by Judge alone, is " not governed by the same rules which apply to an appeal " after a trial and verdict by a jury. It is a rehearing.

* Reported at 2 W.A.C.A. p. 1.

 Reported at '1 W.A.C.A. p. 281.