pg 82

Appeal Court, 3rd June, 1941.Appeal from Court of Chief Commis­sioner of Ashanti exercising Appellate jurisdiction.

Dispute as to ownership of land-Appeal from Asantehene.~ Divisional Court "B" to .Asantehene's Court "A" and thence to Court of Chief Commissioner-Effect of record of enquiry terminating ,in an agreement-Effect of agreement extended beyond what appeared on the face of it by Court of Chief Commissioner-Limitations of agreement shown by Appellant-Question of fact as to the ownership of the land upon evidence given--Court "B" found against Plaintiff whose judgment should not be re'versed unless it can be affirmatively shown to be wrong.

Held: (i) No justification for going beyond record of enquiry which terminated in agreement.

(ii) No sufficient evidence to reverse finding of Court "B". Appeal allowed.

There is no need to set out the facts.

K. A. Bossman (with him E. Prempeh) for Appellant.

E. O. Asafu Adjaye for Respondent.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

It is common ground that this is a dispute between the Nkwantahene and the Bechemhene as to the ownership of the area of land edged yellow in the plan Exhibit "B 1" which was made for the purpose of the case when it was before the Asantehene's Divisional Court "A." The plaintiff claims that it is Nkwanta land, and the defendant that it is Bechem land.

The original trial Court was the Asantehene's Divisional Court" B." That Court being" satisfied that the parcel of the "land in dispute should not belong to the plaintiff" gave judgment in favour of the defendant with costs. On appeal to the Asantehene's Court" A " that Court allowed the appeal and set aside the judgment of the "B" Court. The defendant appealed to the Court of the Chief Commissioner of Ashanti, which dismissed the appeal with costs. The defendant now appeals to this Court asking for' the judgment of the " B " Court to be restored.

There are two points which arise for decision in this case, one is the effect of Exhibit " A " upon the rights of the parties and the other is what are the respective rights upon the evidence given.

As to the first point, Exhibit "A" is a record of an executive enquiry held in 1913 by Mr .Fell, Commissioner of the Western Province of Ashanti, into a claim by the chief of Nkwanta against the chief of Bechem in which the chief of Nkwanta claimed "land from where Obukrakura River crosses " the Kumasi Road till it joins the Kosu River." The dispute then terminated in an agreement being reached between the parties and signed in the presence of Mr Norris, Acting District Commissioner" whereby it was agreed-

" 1. The boundary between Bechem and Nkwanta to be "the Thalweg of the Obukruwa-su to where it joins the " Adingkrasu thence to the Boasu following the thalweg of " the Boa to the point where the Kosu joins it.

" Bechim people to have full use of all farms and hunting huts at present used by them on Nkwanta land without " tribute, from any rubber or cocoa grown or manufactured " on that land.

" 2. The only claim Nkwanta reserves is-if any Gold " or other mineral is found thereon, or a concession of any " sort granted."

On the face of it therefore it is evident that the agreement which ended the dispute in 1913 related only to the boundary north east of the point where the Boa and Kosu rivers meet and did not extend to the boundary south 'west of that point. The plaintiff now contends that the boundary between the parties continues south west along the Kosu (or Kwasu) River as shown in the plan and that all land to the north west of that river as edged yellow in the plan is for Nkwanta. The defendant on the other hand contends that from the point of confluence of the Kosu and Boa Rivers the boundary goes off almost at right angles ill a north westerly direction and following the yellow line shown in the plan eventually rejoins the Kosu River at the south western extremity of the land in dispute, thus giving the whole of the area enclosed within the yellow line to Bechem. The plaintiff contended in all three lower Courts that the agreement made in 1!Jl3 (Exhibit" A ") inclu(1ed the south eastern boundary of the land now in dispute namely that it was the Kosu River, As to pg 83  this the "B" Court' found "the demarcation by the Commissioner twenty-five years ago stopped at where the Boa and " Kwasu rivers join and did not go beyond and so the question "arose, who' owned the area beyond the junction of these 'two '! rivers.'"

On appeal to "A" Court that Court based its decision mainly on inferences to be drawn from Exhibit "A." It recorded-

"This Court holds that if the disputed area belonged ., to Bechem Stool, the Commissioner would certainly not " have embodied in Exhibit ' A ' that Bechem people should " have full use of all farms and hunting huts at present used "by them on Nkwanta land. Naturally, Bechem would "have raised a protest to this clause in Exhibit 'A.' " Though Bechemhene (respondent) contends that the names " of the villages referred to in the supplement (1) are not <" correct names, the Court finds itself unable to accept this "contention, seeing that it cannot safely be accommodated " to the names of the villages in supplements (I) and (II) to " the Exhibit ' A' ".

On further appeal to the Chief Commissioner of Ashanti's Court the Acting Assistant Chief Commissioner specifically considered the ,extent of the boundary with which Exhibit" A " dealt and actually decided the appeal in the following terms:-

, " I am of the opinion that the agreement Exhibit ' A ' " was intended by the parties at the time to apply not only " to that area immediately north of Bua River hut also that . " area now in dispute and that the defendant is bound by " it."

We can find no justification for this opinion of the Acting Assistant 'Chief Commissioner of Ashanti extending the scope of the 1913 agreement beyond what appears on the face of it, nor do we agree with the reasoning of the Asantehene's " A " Court. It is significant that in this Court after appellant's counsel had shown the. limitations of the 1913 agreement, counsel for the respondent had not one word to say in support of the Acting Assistant Chief Commissioner of Ashanti's finding about the agreement.. We unhesitatingly uphold the view of the Asantehene's "B" Court that the 1913 agreement stopped at where the Boa and Kosu Rivers join. The case then turns on the question of fact as to the ownership of the land upon the evidence given. The members of the "B" Court had not the advantage of having a plan before them, but they sent five messengers to view the land and the messengers were accompanied on the land by the parties and heard what they' had to say; there is no reason to suppose that the members of the Court were under any misapprehension as to the area i~ dispute or the questions

    In Issue. The viewers were unanimously of opinion that "the " plaintiff's claim is not correct." The Court gave full consideration to this report and carefully weighed the other evidence more particularly as to occupation and the testimony of the occupiers of neighbouring land. In a well-reasoned judgment it decided against the plaintiff. That being so, its judgment should not be reversed unless it can be affirmatively shown to be wrong. So far from this being the case, three out of the five messengers sent by the Asantehene's Court" A " to view the land were in favour of Bechem, and the judgments of both the Asantehene's Court" A " and of the Chief Commissioner of Ashanti's Court are based, not on the relevant evidence given in this case, but on misconceptions of the effect of Exhibit" A." There was ample evidence before the" B " Court to justify its finding, and that finding must be restored '.

The appeal is allowed, the judgments of the Asantehene's Court "A" and of the Chief Commissioner's Court, including the orders as to costs which, if paid, must be refunded, are set aside; the judgment of the Asantehene's Court " B " is restored with this addendum namely that it is declared that the land in dispute is that shown in Exhibit "B 1" in the Asantehene's " A " Court. The appellant is awarded costs in this Court assessed at £60 5s 2J and in the Chief Commissioner of Ashanti'8 Court and t.he ASRntehene's " A" Court to be taxed.