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Land dispute decided in Plaintiffs favour in original Native Tribunal, in defendant's favour in State Council, and in Plaintiff's favour in Provincial Commissioner's Court.

Held: The Provincial Commissioner's Court was wrong to allow plaintiff to set out a case entirely different from that set up in the Courts below. Appeal allowed and judgment of State Council restored.

There is no need to set out the facts.

K. A. Bossman for Appellants.

C. S. Acolatse for Respondent.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, c.J., GOLD COAST, AND YATES, J.

In this case the plaintiff sued the defendants in the Omanhene's Tribunal of Borada Buem State, the claim being as follows :-

•• Plaintiff claims from the Defendants reasonable cause why Defendants got to sell Plaintiff's land known as Lefweba inherited customarily after the Defendant's immigration to New Ayoma. The present boundary with the Defendants being the road-cleaning limit, New Ayoma and Old Ayoma Road a place known as Leyuoso."

The defendants pleaded" not liable," and, after hearing the parties and their witnesses, and sending a deputation to view the land, the Tribunal gave judgment for the plaintiff against the defendants, finding " that the place near the town has been wrongly sold by defendants. That the place sold should be left to be used by him and his subjects Old Ayoma to farm on." No reasons are given for this decision and no specific findings of fact are recorded. The defendants appealed to the State Council of Buem, which, after giving reasons, allowed the appeal, recording its opinion that " appellant has right to sell that land at Old Ayoma which is his property." The plaintiff thereupon appealed to the Court of the Provincial Com­missioner, Eastern Province, which after hearing both parties and taking fresh evidence from the plaintiff only, set aside the judgment of the State Council and restored the judgment of the Omanhene's Tribunal, declaring " the land to be family land and vested in both parties, and that the sale of the land near Old Ayoma was not in accordance with custom."

      • The difference of opinion between the State Council and the Provincial Commissioner is accounted for entirely by their different conception of the plaintiff's case. The State Council regarded the plaintiff as claiming that, though the land sold had once belonged to defendants, defendants by moving to New Ayoma had abandoned it and it had reverted to and become the property of plaintiff. The Provincial Commissioner on the other hand treated the case as though the plaintiff claimed that the land was family land and as such vested in both parties, neither having the right to sell. We are of opinion that the view which the State Council took was correct in regard to the case as presented to them and to the Omanhene's Tribunal, and that the Provincial Commissioner was wrong to allow the plaintiff to make out a new and different case in his Court.

Although too much attention need not be paid to the actual form of a writ in a Native Tribunal when the issues between the parties and the relief claimed are clea.r, neverthelt'!ss when views differ, the first thing to look at is the writ and then the cases made out by the respective parties. An examination of the writ in this case shows that there is not a suggestion of the plaintiff and defendant's owning land jointly as family land, on the contrary the contention is clearly that the land is plaintiff's own " inherited" after defendants had left it, and there is a mention of a "boundary" between the respective parties' land. In other words the writ exactly bears out the State Council's view of the claim. And when the proceedings before the Omanhene's Tribunal are examined the correctness of the view is even more clearly demonstrated. For though in one place plaintiff answers " yes" to the question whether the lands under Old A yoma belonged to plaintiff and defendants jointly, and at another place he says, " each of us have no right to put any land into sale," the refer­ences bearing out the contrary view are numerous, in fact they run through the whole case. He says, " Myself and def~ndants were the two principal families staying at this place Old Ayoma and as they removed down and left me there only one of the families and its subjects are keeping Old Ayoma." Surely this must mean that the contention is that the two families were separate, and when defen­dants moved away plaintiff became owner of the whole area. More­over, as the State Council pointed out, the plaintiff was forced to admit specifically that each party had the right to sell his own land. He was also forced to admit that a portion of land had actually been sold by a member of his family. The plaintiff's case was in fact disproved out of his own mouth. The State Council were clearly satisfied that defendants had not lost their land by moving away from it, and on this point the Provincial Commissioner agrees. In the absence of any reason given for the decision of the Omanhene's Tribunal and in view of the very good reasons given by the State Council we have no hesitation in upholding the State Council's view of the case as presented up to the time it left them.

 As already stated we think it was wrong that the plaintiff, after attempting to make out the case he did in the Native Tribunal, should be allowed to turn round completely in the Provincial Commissioner's Court and make out a different case, viz. that the parties were all members of one family and all their land was communal family land so that neither party could sell any, at any rate without the permission of the head of the family. The administration of Justice becomes impossible if a plaintiff can. try to make out one case in the trial Court and failing to do so, eat his own words, and succeed on inconsistent contentions in the Appeal Court.

For these reasons the appeal is allowed, the judgment of the Provincial Commissioner's Court is set aside, and the judgment of the State Council is restored. The appellants are awarded costs in his Court assessed at £22 7s. 3d. and in the Provincial Commis­sioner's Court to be taxed.