Appeal Court. 21 Dec. , 1935. Appeal from Judgment of Supreme Court.

Trespass to land-Previous judgments admissible to show acts of possession as distinct from the establishing of estoppel or Res judicata- Weight of Evidence.

Held: Appeal dismissed.

The facts are sufficiently set out in the judgment.

W. Ward Brew (with him F. Awoonor Williams and E. C. Quist) for Appellants.

W. E. Gwira Sekyi for Respondents.

The following judgment was delivered: ­BANNERMAN, J.

This is an appeal from the judgment of Strother-Stewart, J. delivered in the Divisional Court at Cape Coast on the 14th March, 1935.

Originally, the first defendant was the only defendant before the Court but the second defendant was, on his own application, made a co-defendant and the case was heard and determined by Yates, J. who gave judgment in favour of the plaintiffs respondents. From this judgment the defendants-appellants appealed to the West African Court of Appeal.

The Appeal Court remitted the case to the Divisional Court for re-hearing with a direction that it should be re-heard by another Judge.

The case was re-heard before Strother-Stewart, J. and he gave judgment for the plaintiffs-respondents for £25 damages and also granted an injunction restraining the defendants, their agents, workmen or servants from continuing the trespass.

The appeal was argued before this Court on the following grounds: -

(1) Because the Court below wrongly received irrelevant inadmissible evidence considered and based its judgment thereon.

(2) Because the Court below wrongly rejected relevant admissible evidence.

            (3) Proceedings irregular.

(4) Because the traditional evidence and facts adduced proved that the Ampenyi people were the first Ampenyi Division for over 500 years.

(5) Because the facts proved showed that the Brenu Akyinm people settled by permission of Chief of Ampenyi at Brenu Akyinm about 100 years ago for the purpose of manufacturing salts and were the domestics of Kwanin Mensah and Brompon Abaka of Elmina.

(6) Because it is against native customary law.

(7) Because the judgment of the Court below is wholly or entirely against the weight of evidence.

(8) Because the judgment of the Court below is contrary to law and equity.

(9) Because the judgment of the Court below is otherwise erroneous. (10) Because the judgment should have been entered for the defendants.

(11) Because the plaintiff was not entitled to judgment.

Before this Court Mr. Williams, on behalf of the defendants­ appellants, abandoned Ground 9 and argued the appeal mainly on Grounds 1, 2, 4, 5 and 7.

As to Ground 1:-

It was strenuously contended by learned counsel on behalf of the appellants that the judgments which were received in evidence before the learned trial Judge on behalf of the respondents (plaintiffs) were inadmissible inasmuch as the appellants' predecessors in title were not parties to the proceedings. On this point Mr. Williams cited several authorities to show that these judgments cannot establish estoppel or res judicata against the appellants. I have considered these authorities and am of the opinion that they have no bearing on the points involved in this case. The judgments were tendered and received in evidence not to establish estoppel or res judicata but to show acts of possession.

About thirty-four years ago one Ambah Amissah, the stool­holder of Brenu Akyinm, and one of her elders, Tekyi Mensah, brou!5ht an action against one Kobina Painin, whose stool the second defendant now occupies. It was an action for trespass on Ebutukul lands. The case came before Nicol, J. and he gave judgment for the plaintiff and the judgment was upheld on appeal. Now, it is clear from the proceedings that the action before Mr. Justice Nicol related to the same lands as are the subject of this appeal. It is true that in that case there was no plan before the learned Judge, but according to the boundaries described in the plan (Exhibit " K ") it is beyond doubt that the boundaries are practically identical. Besides, Mr. Justice Strother-Stewart inspected the land and came to the conclusion that they. are practically identical.

In 1901, the same Ambah Amissah and Tekyi Mensah brought an action against one Kwamina Busumprah and nineteen others 'of Ampenyi for trespass on the same lands. In that action the lands were described as Abutuku lands and the case was heard by Purcell, .T. who gave judgment for the defeIH1ants. '1'his judgment was set aside by the Full Court and the ease was remitted to the Court below for re-hearing. Seven years elapsed before the case was re-heard by Earnshaw, J  . who adopted the judgment of Nicol, J. and gave judgment in favour of the plaintiffs. It is significant that Eccuah Amissah, one of the defendants in that ease, was an ancestress of the second defendant in this case.

These judgments show that for some years the people of Brenu-Akyinm have claimed these lands as their property.

Apart from these judgments which, in my opinion, show definite acts of. possession, another important fact may be mentioned.

One of the witnesses for the appellants (J. J. Smith) who was a Bailiff attached to the Divisional Court, Cape Coast, admitted in evidence under cross-examination that some years ago he executed a writ of possession for Botoku land after the case heard before Mr. ,Justice Nico1. It is impossible to be1ieve that the representatives of the Ampenyi State were not aware of this attachment or of the judgments given against important members of the Ampenyi State.

Mr. Williams contend" that the State of Ampenyi was never a party to any of the proceedings and that, therefore, it could not be affected by these judgments. In this connection it may be mentioned that the defendant in the case which was heard. before Mr. Justice Nicol over thirty-four years ago was Kobina Painin who, according to the evidence of Kofi Karikari, was authorised to defend any action in respect of Ampenyi Stool, and it is worthy of note that the second defendant in this case now occupies the Stool of Kobina· Painin as already pointed out.

In my opinion the proceedings (Exhibit " Q ") were wrongly admitted in evidence in view of the fact that they had not been certified as "true copy" of the original Tribunal Record-. Furthermore, these proceedings were tendered in evidence through a clerk of the Divisional Court. True they were received in' evidence before Yates, J. in the former case, but on that occasion they were tendered in evidence through a Tribunal Registrar who was acquitted with the signature of the deceased Registrar Essilfie who had witnessed the marks of the Councillors.

I may mention at this -stage that, apart from Exhibit " Q " which I have held was wrongly admitted in evidence, the learned ,Judge in the Court below had abundant evidence-oral and documentary-before him to support his judgment.

   As regards the proceedings (Exhibit" V ") in the oath case, I hold that they were properly admitted in evidence a~ being relevant to the issues before the Divisional Court. Strother­Stewart, J. has given full reasons in his judgment to show that these proceedings were relevant and admissible and I entirely agree with him.

In my opinion Ground 1 fails

. Ground 2:-

In my view the learned trial Judge properly rejected the state­ment of Kwamin Conua. Pages 41 and 42 of the Appeal Record show that the statement of Kwamin Conua does not relate to the land in dispute. The title of that case is Etrue of Efllaffo v. Quamin A,ccom of Comrnenda, and on page 33 of the Appeal Record witness Kobina Abaka states that the land in dispute in that action is eight miles away from the land the subject-matter of this action. I therefore hold that Ground 2 fails.

Ground. - 4 and 5:-

From the judgment it is abundantly clear that the learned Judge in the Court below very carefully considered the traditional evidence led on behalf of both parties and came to the conclusion he did. These two grounds relate to questions of fact and it was for the trial Judge to determine the question of credibility. I, am satisfied that overwhelming facts exist to sustain the finding of Strother-Stewart, J.

I will now deal with seventh ground--namely- judgment against weight of evidence.

In this connection I can only refer to the recent judgment of Webber, C.,J., Sierra Leone in the case of Martin Nortei Codjoe etc. 17. Emuwnuel Kwatchey and Others* which came before the, Court of Appeal. The learned Chief .Justice there said: "An " Appeal Court will not interfere with the decision of Come on " facts unless such decision is shown to be perverse or not the " result of a proper exercise of discretion (Chief Ntiaro') &. Others v. lbok Etok Akpam & Others) Nigeria Law Reports Vol. 3 " p. 9). The Appeal Court is not debarred however from coming " to its own conclusion on the facts and where a judgment has been "appealed from on the ground of the weight of eyidence the " Appeal Court can make up its own mind on the evidence; not " disregarding the judgment appealed from but carefully weighing " and considering it and not shrinking from overruling it if on " full consideration it comes to the conclusion that the judgment " is wrong .... " In the present case I am satisfied that the learned Judge in the Court below went carefully into the case and reached a conclusion on the evidence before him.

This ground also fails.