Appeal Court.4 May, 1936    Appeal from Provincial Com­missioner exercising Appellate Jurisdiction.

 Trespass-Disputed boundary-Appeal from Paramount Chief's Tribunal to Provincial Commissioner-Leave must first be sought from Tribunal-When leave granted by Tribunal conditions may be laid down by Provincial Commissioner's Court-In appeals from decisions of native Tribunals concerning ownership of land, Court should not disturb them without very clear proof that they are wrong-Proceedings a nullity because certain members who gave judgment in Tribunal were not present during the whole of the proceedings.

Held: Appeal allowed. Case to be reheard de novo by Tribunal.

The facts of this case are sufficiently set out in the judgment.

 R. S. Blay for Appellant.

C. F. Hayfron-Benjamin for Respondent.

The following judgment was delivered :-

KINGDON, C.J., NIGERIA.

In this case the plaintiff took action in the Tribunal of the Paramount Chief of Gomoa Assin against the defendant. He suc­ceeded, but the defendant appealed to the Court of the Provincial Commissioner of the Central Province, which allowed the appeal, and the plaintiff now appeals against that decision to this Court.

The case as it reached the Provincial Commissioner's Court is explained thus by the Provincial Commissioner in his judgment :-

The claim before the Tribunal as amended reads :-

" The plaintiff seeks Tribunal relief for defendant to assign reason for having trespassed by placing people on plaintiff's family land, i.e. to farm on the said land which land situating and lying at Gomoa Adzintem in the District of Winnebah and which land is bounded on the north by Budu's land on the south by Kwasi Taa's land on the east by Kwamin Mensa or Kojo Andorful's land and on the west by Kwa Adufrachi's land respectively.

"2. That plaintiff seeks further relief for the defendant to produce before this Tribunal all documents and papers if any, purported to have been signed marked or witnessed by plaintiff or his ancestor as deed of gift or otherwise to defendant or his ancestors relating to' APASEM ' land in dispute.

" It is difficult to understand the meaning to the second part of the claim, and this was ignored by the Tribunal in the judg­ment except in so far as the reference therein to APASEM land. which is stated to be the land in dispute. The land set out in the. first part of the claim is not the land in dispute but is pre­sumably all the land claimed by plaintiff.

" Although the original action was one for trespass it is clear that both parties and the Tribunal regarded the case as one of a disputed boundary, since no evidence has been called as regards the alleged trespass, and the judgment of the Tribunal was as regards boundaries rather than as regards the alleged trespass.

"The Tribunal gave judgment for the plaintiff on the grounds that 'almost all the lands covering        P ANFUKROM VILLAGE,' was given to Barima Panfu by 'Barima Odoom,' ancestor of Nana ' Essell Tawia, the plaintiff herein.'

" The Tribunal further went on to lay down as the boundary between the parties' the main street from Adzintem to Winneba passing through the middle of Panfukrom Village,' and further ordered that the land on the left (Le. the east) of this road should belong to plaintiff and that the chief of Panfukrom is the custodian of this land on the left, but for how far the Tribunal does not say."

Before the Provincial Commissioner the grounds of appeal were: (1) Estoppel; (2) Judgment against the weight of evidence; (3) Judgment contrary to law and equity. The Provincial Commissioner after hearing argument overruled the submission as to estoppel, but upheld the submission that the judgment was against the weight of evidence; and so without discussing the third ground (which in any case is too vague to be of any value) allowed the appeal.

On appeal to this Court, two principal grounds were put for­ward on behalf of the appellant, viz. : (1) that the Court (i.e. the Court of the Provincial Commissioner) had no jurisdiction to enter­tain the appeal, the appeal not having been properly brought before it, and (2) that the Provincial Commissioner ought not to have reversed the finding of the Tribunal on the facts. As to the first point the contention was that there had been no compliance with paragraph 77 (1) of the Native Administration Ordinance (Cap. 111), which reads as follows :-

" A party desiring to appeal from a Paramount Chief's Tribunal shall first obtain the leave of such Tribunal so to do ; provided that, if the said Tribunal shall have refused such leave, the Provincial Commissioner's Court or a Magistrate's Court constituted by the District Commissioner may nevertheless grant leave to appeal," and consequently the Provincial Commissioner's Court lacked jurisdiction. I agree that if section 77 (1) was not complied with, the Provincial Commissioner had no jurisdiction. But in this case the defendant-appellant-respondent followed what appears to have been the usual practice, i.e. he went to the Tribunal on a motion for conditional leave to appeal and on that motion the Tribunal made the following order :-:-

" The Tribunal orders that in accordance with the pro­visions of section 77 (1) and (2) of the Native Administration Ordinance as amended, the appeal as prayed for by the defen­dant-appellant is hereby granted accordingly.

" Execution stayed."

Thereupon the defendant-appellant-respondent made a redun­dant application to the Provincial Commissioner's Court for conditional leave to appeal whereby he got the conditions laid down. He duly complied with the conditions and then got final leave to appeal from the Provincial Commissioner's Court.

The question is whether the order made by the Tribunal in the terms quoted above constitutes compliance with section 77 (1) of Chapter 111. I am of the opinion that it does. It is abundantly clear that all concerned, defendant-appellant-respondent, the Tribunal and the Provincial Commissioner intended it for such compliance and regarded it as complying. It is reasonable that once the Tribunal has granted leave the formalities as to conditions and compliance therewith should be controlled by the Provincial Commissioner. This ground of appeal accordingly fails.

As to the second ground, the appellant's Counsel very aptly drew attention to the following passage from the judgment of Lord Atkin in the Privy Council in the case of Abakah Nthah v. Anguah Bennieh (not yet reported)· :-

" By colonial legislation all suits relating to the ownership of land held under native tenure are placed within the exclusive original jurisdiction of native tribunals, unless satisfactory reason to the contrary is shown. It appears to their Lordships that 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 proof that they are wrong, and their Lordships fail to find such proof in the present case."

This quotation clearly lays down the duty of a Provincial Commis­sioner's Court on appeals from native tribunals in land cases and should be carefully observed in all Provincial Commissioner's Courts.

It is unnecessary for me now to go in detail into the merits of the case on the facts, owing to the submission which the defendant- appellant-respondent's Counsel made to the Court at the last moment when he realised that he had little hope of successfully resisting the plaintiff-respondent-appellant's contention that the Provincial Commissioner ought not to have reversed the Tribunal  on the facts.             (* Note: now reported in 2 W.A.C.A., p. 1).

    This was to the effect that the whole proceedings before the c.]. Tribunal were a nullity, because all the members who sat upon the case and gave judgment were not present throughout the hearing. I am reluctantly compelled to uphold this contention. In two recent cases, viz. W. A. Hanson v. Mary A. Ashun and Kojo Twerebu for himself and other members of Akonna family of Akitakyi v. Kobina Baa (not yet reported) this Court has upheld a similar contention. In the present case it is clear that at least two of the Tribunal members who gave judgment were not present throughout the pro­ceedings, and did not hear all the evidence. This vitiates the whole trial, and in my opinion this Court has no option but to declare the whole proceedings before the Tribunal and the Provincial Commis­sioner's Court a nullity, and to direct that the case be heard de novo in the Tribunal.

    As to costs, the plaintiff-respondent-appellant having succeeded in this Court, although upon a point taken by the defendant ­appellant-respondent, is entitled to his costs in this Court, and since the defendant-appellant-respondent never took in the Provincial Commissioner's Court the point he has now taken, I am of opinion that the plaintiff-respondent-appellant should get his costs in the Provincial Commissioner's Court also. The costs in the Tribunal both of the first abortive trial and of the new trial should abide the ultimate issue ..

 

PETRIDES, C.J., GOLD COAST.

I concur.

WEBBER, C.J., SIERRA LEONE.

I concur.

The following Order was made :-

The appeal is allowed and the judgments of the Court below and of the native Tribunal are set aside and the case is referred back for retrial by the Tribunal of the Paramount Chief of Gomoa Assin. The appellant is awarded costs in this Court assessed at £82 12s. and in the Court below to be taxed. The costs to date in the native Tribunal are to abide the ultimate Issue.