Trespass to land-Tribunal
considered question of ownership
and
Appeal from
found for Plaintiff-Court below
allowed appeal and reversed
decision as being against weight
of evidence-Form of action in
.
native Tribunal not to be
stressed where issue involved
is
clear-
exercising
Decisions on such issues not to
be disturbed without very clear
proof that they are wrong.
Held: Appeal allowed. Judgment
of Tribunal restored.
The facts are sufficiently set
out in the judgment.
C.
F. Hayfron-Benjamin
for Respondent.
W. E. Gwira
for Appellant.
The following judgment was
delivered :WEBBER, C.J., SIERRA
LEONE.
This is an appeal from the
judgment of L. W. Judd, Acting
Deputy Commissioner, Central
Province, who allowed an appeal
with costs to be taxed from the
native Tribunal of Anamabu in a
claim in which the plaintiff
claimed £25 damages from the
defendant for trespass of land
known as Kwabor Kudu.
The grounds of appeal are :-
1.
Because the judgment was
contrary to the weight of
evidence.
2.
Because the judgment was
contrary to native law and
custom.
3. Because the judgment was
wrong in law in that the Court
below had not any fresh
evidence.
4. Because the judgment was
otherwise erroneous.
The grounds were argued
together, Counsel for appellant
submitting that the
Commissioner was not justified
in allowing the appeal. For the
respondent it was contended that
there was no evidence of
ownership or possession by the
plaintiff and that the
Commissioner was right in
reversing the judgment of the
Tribunal. Now, when examining
the judgment of the Commissioner
I find that he supported the
judgment of the Tribunal on all
the grounds of appeal before him
except one ground, namely, that
the judgment was against the
weight of evidence, and in this
respect he referred to an
informal arbitration arranged
between the parties for the
purpose of settling matters
amicably, and he laid special
stress or the evidence of
Rockson in a previous case
between the parties and about
the same land, which evidence he
said was the best evidence the
defendant could obtain having
held that although there was
some evidence of possession by
the defendant-appellant, it was
doubtful if all of his evidence
related to the land in dispute.
Now dealing with the grounds of
appeal before the Commissioner,
I agree with him that the fact
that there was no report of
inspection by the Tribunal was
not a vital defect in the
record. I agree with him also
that the question of possession
stressed by Counsel for the
defendant-appellant was of no
vital. importance as the
Tribunal determined the question
of ownership rather than the
question of trespass. He was no
doubt mindful of the dictum of
P. C. Smyly, C.]., in his
judgment in the case
Ohene Kwesi Abuagyi 11 v. Ohene
Amua Gyebu,
when he said: "Personally I do
not lay any stress on the form
in which an action is brought
before the native Tribunal so
long as the issue involved is
clear." It is obvious to my mind
that the native Tribunal in this
case treated the issue as one of
ownership disregarding the claim
for damages for trespass, no
damages having been given,
although the case was decided by
the Tribunal in the plaintiff's
favour. It is the manner in
which the Court below dealt with
the second ground of appeal,
namely, that judgment was
against the weight of evidence
which has brought me to the
conclusion that the judgment of
the native Tribunal should be
upheld. The Commissioner states
that there is some evidence of
possession and occupation by the
defendant, and he says there is
no evidence of either possession
or occupation by the plaintiff.
Here he has forgotten what he
has himself expressed, namely,
that the native Tribunal treated
the case on the issue of
ownership and not possession-an
action which only the person in
possession can maintain-but
there is some evidence of
constructive possession as
pointed out by Counsel for
appellant and the evidence of
the plaintiff that he violated
Nana Amonu VIII's oath against
defendant to show cause why she
wilfully cut down his palm trees
without his power is an act of
ownership.
Then the Commissioner seems to
have turned the scales in
defendant's favour, because she
was able to produce the witness
Rockson on the facts of a
previous case.
The native Tribunal discarded
his evidence, and if one reads
it one is not surprised, and
also the whole of the evidence
given by the defendant and his
witnesses on the ground that the
witnesses were false. Is this
Court going to interfere with
the finding of facts by a
Tribunal who, the Commissioner
admits, have taken pains over
the case? In the case
Nthah v. Bennieh
which came before the Privy
Council in 1930, their Lordships
stated as follows :-
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
I think this dictum might be
applied here and that the
decision of the Commissioner
should be reversed and the
decision of the native Tribunal
restored. proof that they
are wrong.