Appeal Court. 18th June, 1938. Appeal from Supreme Court.

        In the second action Kudsu v. Na-Ansa, plaintiff claims £200 damages from Na-Ansa for trespassing upon his land and taking  and foodstuffs, and pleads ownership and possession of the land in dispute.  It is as well here to set out the material parts of the certificate of purchase which was granted to Na-Ansa by the Divisional Court on 3rd July, 1935:

       All that piece or parcel of land situate lying and being " at Kwabia with buildings, cocoa trees and palm " trees thereon and bounded on the North by Akohia " land on the South by Kofi's land on the East by " Gano (Kumakuma) land and on the West by Tetter Kwadjo (Korkormah) land, which said messuages " lands and tenements were sold in execution of a " decree by Order of this Court dated 27th September, " 1934 ".

        These boundaries correspond with those set out in the writ of Fi Fa and in the notice of sale and it is somewhat extraordinary, but it is admitted by both sides that in each of these documents the points of the compass are wrong and the proper boundaries should 00:-

       On the North by Gano or Kumakuma land on the South " by Tetter Kwadjo Akorkorma land on the West by " Akohia land and on the East by Kofi's land".

          On May 5th, 1936, this Court ordered a plan showing the boundaries of the land set out in the certificate of purchase be made, and by agreement Mr. Young was appointed surveyor, and he prepared one which was put in evidence. Upon it the land claimed by Na-Ansa, i.e., the land set out in the certificate of purchase, is shown edged in pink, and the land claimed by Tettey Kuds'l edged in green.

          In the course of the trial, l1iz.: on 11th December, 1936, Mr. Dove asked that a second survey be made showing what land Tettey Kudsu alleges was sold to N a-Ansa that comes within the boundaries as set out in the certificate of purchase which is not shown on Young's plan, and I thereupon ordered this to be done, and Mr. Laryea was appointed surveyor and he made a plan which was produced in evidence on 27th September, 1937. On referring to this plan it will be seen the land alleged to be described in the certificate of purchase and not shown on Young's plan is a long narrow strip to the East, stretching from a point on the Jaketi­Akohia road near Kofi's village on the North to an Okumnadue tree on the South. As a result of this survey-apart from the fact that it led to serious disturbance during which a man was killed this additional land was claimed by seven other persons who had to be joined as defendants in the second action, and the particular areas they claim are shown on a further plan superimposed on Young's plan and put in and marked Exhibit " 17 ".

         From the above plans it will be seen that what is in dispute is this-whether the southern boundary of the land sold in execution to Na-Ansa is the line marked pink in Young's plan, or whether, as alleged by Tettey Kudsu, this boundary runs along a line of pillars erected by him along the Bissa track and referred to during the trial as the T.K. track, from pillar T.K. 12 on the South to pillar T .K. 28 on the North and e11- passant. I say I take no notice of pillars T.K. 29 and T.K. 30 shown on Laryea's plan as they were not there when Young's plan was prepared. In other words the land lD dispute is substantially the area marked green on Young's plan and blue on Laryea's plan, though the area marked blue goes a little further North than it does on the green.

    It now becomes necessary to deal with the history of the land and the evidence. There are two large tracts of land in' the vicinity-Kwabia land and Akohia land. Akohia land was purchased about sixty years ago by Tettey Kudsu's father and he succeeded. According to the evidence of Tettey Kudsu in the case d Kudsu v. Nyawahe and Others about nine years ago he had a dispute with one Oklah then the head of the Kwabia people about the boundary and Oklah sued him before the Konor. At the trial councillors were sent to cut the boundary, and it was agreed that the boundary they cut was the boundary between them j and in view of what transpired later it is most important to see where· this boundary was, and I am satisfied from the evidence and find as a fact that this boundary started at an Osa tree near pillar T.R. 24 and ran in a S.W. direction to an Adongba tree shown in the S;.W. corner of the land marked pink in Young's plan, and not as contended now by Tettey Kudsu in a S.E. direction.

      It is now necessary to refer to the case of Kudsu v. Nyawahe and Others which is the fons et origo of these present actions j and the question is, where did Nyawahe trespass? Nyawahe in giving f'vidence said he thought his boundary extended to an Odum tree which is not shown in any of the plans but which it 'is agreed is further to the West than the Adongba tree, but the Court found against him in Kudsu v. Nyawahe. I believe when he said this, Nyawahe was telling the truth so the locus in quo of the trespass in that case was well to the West of the land in dispute in this case and not upon any of the land in dispute in this case as is suggested by Tettey Kudsu.

        I will now deal with the present cases, and the question is, what was the land Na-Ansa purchased at the auction on December 29th, 1934. The boundaries are described firstly in the writ of Fi Fa and secondly in the notice of sale. Now before the sale intending purchasers asked Tettey Kudsu, who was present, 'to show the boundaries of the land to be sold. Tettey Kudsu agreed and what happened is best described in the evidence of Na-Ansa himself: "We started from Kumakuma corner and walked towards Kofi's land-then to Kofi's village to call him to show " his boundary. He came. We walked with him from N.E. to " S. Kofi showed his b~undary at the corner of Tettey Kwadjo's "land-there were no pillars at this time. Tettey Kudsu  then " begged Kofi to come along with him and show Tetteh Kwadjo's " boundary up to Akohia boundary. We went as far as Adongba. "tree. On the right hand we were told waB Nyawahe's land " which was to be Bold. When we reached the Adongba tree and " faced N., Kudsu said the land on the right is the land to be "Bold. My land Akohia land is on the left".

After this evidence was given Tettey Kudsu realised that he was in a serious quandary, for the evidence of Na-Ansa if believed, and I do believe' it, shows that the boundaries shown by Kudsu agreed with the boundaries Bet out in the certificate of purchase and notice of sale, viz;- that the S. boundary of the land Bold to N a-Ansa was Akokormah land and not the T .K. line which he asserted, BO he applied to the Court for a further survey to be made, and the Court ordered a survey to be made, showing what land Tettey Kudsu alleges was Bold to N a-Ansa that comes within the boundaries of the certificate of purchase which is not shown on Young's plan. On January 5th, 1937, Mr. Laryea, Burveyor, went to make a survey, and it must be remembered it was essential to Tettey Kudsu's case to show that Na-Ansa had a southern boundary with Akokormah land, and he was shown an Okumnadue tree to the East of the boundary at T.K. 12 on Young's plan. The surveyor started cutting a line N. towards the Jaketi road, but met with construction from very angry people who claimed the land as theirs; and it was only after police protection was afforded the survey was possible. The people who claim the land are seven in number and some of them have given evidence, and I am satisfied beyond all doubt that their claims are correct and this additional strip as shown on Laryea's plan never belonged to Nyawahe. He never claimed it and it never was Bold to N a-Ansa. In my view the evidence is overwhelming. I am satisfied that the land purchased by Na-Ansa was the land marked pink on Young's plan, and 8ince the purchase on 29th December, 1934, he has been the owner in possession; and further that Tettey Kudsu never owned any land to the East of the Adongba tree. It therefore follows that serious trespass on this land has been committed by Tettey Kudsu and much damage has been done as a direct outcome of that treBpaB8 and, therefore, N a-Ansa is entitled to damages which I aBBe88 a8 follows; --400 cocoa trees destroyed at ten shillings each, .£200; but I am satisfied that the further claim, viz; 200 toads of cocoa taken, valued at .£120 has not been proved.

In the first case therefore, Na-Anaa v. Tettey Kudsu, I give judgment for the plaintiff for .£200 with costs to be taxed; and in the second case, Tettey Kudsu v. Na-Ansa, I give judgment for the defendant with costs  to be taxed.

The following judgment was delivered by the appeal Court:­

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND STROTHER-STEWART, J.

The trial of these consolidated suits was unsatisfactory in several respects. First of all they were tried without pleadings and the questions involved were of such a nature that it was desirable that both sides should be required to state at the outset very clearly their respective contentions and should be bound by them. In point of fact the defendant, Tettey Kudsu, was allowed to make a very material change in ~is case half way through the proceedings when on the 11th December, 1936, his counsel suggested for the first time that there was a mistake in the plan in evidence known as " Young's plan". The plans throughout. are difficult to follow and the understanding of them is not made easier by the fact that they are not all to the same scale or set at the same angle. It was a case in which all available information by plan which was properly admissible should be before the Court, but the plaintiff N a-Ansa succeeded in excluding some of the plans tendered by the defendant, Tettey Kudsu. The rejection of this evidence is one of the main grounds of appeal. As to this it is sufficient to say that in our view the learned trial ,Judge rightly rejected the two plans marked for identification " B " and " C " respectively, at the time when they were first tendered, but that when the plan "C" was tendered again after the defendant Tettey Kudsu had been allowed to alter his case it should have been admitted. As to the third plan tendered and rejected, it purported to be made by order of the Court but it included the superimpo­sition of plans which had been tendered and rejected. Although, as we have already indicated, one of those plans should, in our view, have been admitted, both had, in fact, been rejected, and unless and until they had been admitted it was wrong for the surveyor to include in his new plan the superimpositions in question and we think that the Court was right in rejecting the plan and ordering a new one to be made complying with but not going beyond its original order. In the result the Court was deprived of the advantage of having before it the full contentions of all the parties. A further unsatisfactory feature is that to which exception is taken in ground 2 of the grounds of appeal. The learned trial Judge admitted a further copy of Young's plan merely for a witness to show a spot marked upon it with a cross, but in his judgment he refereed to other additions which had been made to the original Young's plan 'and never properly proved.

Another ground of appeal is the alleged improper joinder of the seven co-defendants in the second action; as to this our views are as follows:-

By Order 3 Rule 5 of Schedule 3 of the Supreme Court Rules it is provided that where it shall appear to the Court at or before the hearing of a suit that all the parties who may be likely to be Henry affected by the result have not been made parties the Court may direct that such parties shall be made either plaintiffs or defendants as the case may be.

            Strictly speaking none of those who were joined by the order of joinder could be affected by a judgment for trespass as no such relief was claimed against them. This would not be clear, how­ever, to the native mind and the fact that they had stood by and done nothing might be regarded by a native tribunal, should there be litigation about the land~ which those who were joined claimed, as some sort of admission that they did not set up a claim to the land. In the circumstances, we do not think that the Judge was wrong in allowing them to be joined ex: abundante cautela.

      A further ground of appeal is that the judgment against . defendant Frank Herman Shang Simpson was wrong in law.

          This led us to examine the judgment to see if judgment was in fact given against Simpson and we find it impossible to say. Indeed the whole final judgment given is lacking in clarity.

It reads:-

" In the first case therefore, Na Ansa v. Tettey Kudsu, "I give judgment for the plaintiff for .£200 with " costs to be taxed; and in the second case, Tettey Kudsu v. Na Ansa, I give judgment for the " defendant with costs to be taxed."

        Now the first case is not Na Ansa v. Tettey Kudsu, it is Henry A. Na Ansa v. Tettey Kudsu, Chief Stephen Kakri Appo II, Huno Kwablah, Tetteh Kudsu, Isaac K. Apo .Anoh; Adjriabersa, all of Akohia, Frank H. Simpson .

          It is impossible to say what judgment (if any ) in respect of the defendants other than Tettey Kudsu Again second case is not Tettey Kudsu v. Na Ansa; it is Tettey Kudsu v. (1) Henry A. No. Ansa, (2) Nyawahe, (3) Kwao NUll, (4) Opata, (5) Djagbo, (6) Kupler, (7) Tetter Bana, (8) Anulu ann (9) Ametordji all of Kwabia, (10) Odonkor Kofi, (11) Ninawa Nartey, (12) Nadutey, (13) Asare Wayo, (14) Tei Asafo, (15) Nomo Nwa and (16) Ogbodjor. And again it is impossible to say what judgment (if any) has been given in respect of the defendants other than N a-Ansa.

         A further ground of appeal is that the damages were excessive, and this in any case must succeed because the damages claimed were .£400 general damage and £100 special damage" being the value of 400 cocoa trees cut down and destroyed on the plaintiff's land by the defendants." The learned trial Judge awarded no general damages but awarded special damages "400 cocoa trees destroyed at l0s. each, .£200." Without an amendment of the claim in the writ he could not award special damages in excess of that claimed.