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Appeal from Deputy Provincial Commissioner setting aside judgment Appeal from of Native Tribunal Definition of word" creek "-Land covered by it finding of fact in Court below - Matters of procedure in Native Tribunals

 judgment of the Native Tribunal awarding damages for trespass in a creek  was set aside by the Deputy Provincial Commissioner on ground that no land was . mentioned IN  connection with the creek.

Held on appeal :-

Too narrow a view of what was included in the word" creek" (the amount of land included being that normally covered between lowest ebb and highest flow) was taken by the Deputy Provincial Commissioner who was not justified in over­riding the facts arrived at by the Native Tribunal who had the advantage of hearing witnesses cognizant of the facts and having knowledge of the locality.

Held also-the principle established in dealing with appeals from Native Tribunals is that Court must not be too strict h regard to matters of procedure. Arrhie Kwow' v. Ohene Essien Eku II (2 W.A.C.A. 180) followed.

There is no need to set out the facts.

E. C. Quist for Appellants.

R. E. Phipps for Respondent.

The following judgments were delivered:­

STROTHER-STEWART, AG. C.]., GOLD COAST.

This is an appeal against a judgment of the Acting Deputy Provincial Commissioner of the Eastern Province setting aside a judgment of the Native Tribunal of Osudoku Manche awarding damages in favour of K. C. Dinsey and others against the defendants Yaw Ossei and Korleu and their co-defendant Tei Wayoe, who are the appellants, for trespass. It relates to a creek called Lubu. It is a creek from the River Volta.

It is admitted that the respondents are the owners of the creek.

The whole case revolves upon the question as to what is included in the word" creek," and what land is covered by such word. A creek whether it be that formed by the sea, or by a river, varies in size from time to time by the water covered by it. It is a question of ebb and flow, and must have a common sense definition applied to it. It cannot be confined to the amount of land covered by it at its lowest ebb, any more than it can be intended to the amount of land covered by abnormal flooding.

It must be the usual amount of land covered between its lowest ebb, and its highest flow, under normal conditions.

The grounds of appeal relating to documents considered by the Acting Deputy Provincial Commissioner of the Eastern Province, who heard the appeal from the Native Tribunal, do not, in the opinion of this Court, affect the decision we have to arrive at. They simply dealt with the question, already raised, that it was the creek Lubu, which ,vas originally granted to the predecessor of appellants with no mention of land, and whether they were properly, or improperly, considered by the Acting Deputy Provincial Commissioner, does not affect the merits of the appeal. The Acting Deputy Provincial Commissioner of the Eastern Province based his decision upon the fact that no land was mentioned in connection with the creek in any of the documents relating to it. He does not attempt to define what is included in the ""ord creek. The question was gone into in a very practical manner by the Tribunal. They appointed delegates to view the land on which the trespass was alleged to have taken place. All parties were present, and the delegates found that the village complained about was built-to use the naive language of the report-" too close" to appe11ants' creek, and that "at any time the creek overflows it covers the village altogether." The judgment of the Tribunal set out that appellants were claiming the surrounding land of their creek "to the extent where the creek reaches at the time of the high tide," and they found the evidence of appellants to be more weighty than that of respondents. They gave judgment for appellants for £2 and costs to be taxed.

This Court considers that the Acting Deputy Provincial Commissioner took too narrow a view of what was included in the word" creek," and was not justified in over-riding the facts arrived at by the Native Tribunal who had the advantage of hearing witnesses who were cognizant of the facts, and had knowledge of the locality.

It is to be noted that, although plaintiffs sued for trespass, the original defendants made no defence other than to rely on the permission given to them by their co-defendant to occupy the land in dispute. As soon as they did this, the action became one as for title between the plaintiffs and the co-defendant. Seeing that the first two defendants were in physical possession of the land, and that there was little evidence to prove prior possession on the part of the plaintiffs, it may be that the action for trespass did not lie; but the whole case has been tried as an action for title between plaintiffs and the co-defendant and the decision of the Tribunal is based on their finding that plaintiffs have proved title as against the co-defendant.

It is a principle well established in these Courts, that, in dealing with appeals from Native Tribunals, this Court must not be too strict in regard to matters of procedure, that the whole object of such a trial is that the real dispute between the parties should be adjudicated upon and, as is said in the judgment in Archie Kwow v. Ohene Essien Eku II (2 \V.A.C.A. 180), " the real issue between the parties must be the test, and not merely the wording of the suit."