Claim to set aside sale of land and for perpetual injunction to restrain interference with possession and occupation-By Native Law and C1lBtom a Sub-chief cannot alienate land under h1',~ control without consent of his overlord-Onus of proof on purchasers and not on overlord.

The facts of the case are sufficiently set out in the judgments.

K. A. Korsah for Appellant.

Ofei Awere for Respondents.

The following judgments were delivered:­ YATES, ACTING C.J.

This is an appeal from the judgment of the Acting Provincial Commissioner of the Central Province dated 8th of August, 1934, reversing the decision of the Paramount 'Tribunal of Akim Kotoku State dated 9th August, 1933, who found for the plaintiff. The plaintiff's claim was on behalf of himself and his subjects to set aside the alleged sale of a piece or parcel of land by the ex-chief of Akroso to the defendants and a perpetual injunction restraining the defendants, their agents, servants and workmen from interfering with the possession and occupation of the land by the plaintiff, his subjects, tenants and workmen.

The plaintiff-appellant is the Divisional Chief of Mansu, one of the divisions of the Akim Kotoku State, and as such he exercises an overlordship over the sub-chiefs of his division, and it is esta­blished Native law and custom that no sub-chief or Odikro can aleniate land under his control without the knowledge and consent of his overlord, the Divisional Chief and his Councillors. What was contended in this case was, that in 1920, one Ofori, the then Odikro of Akroso, and one of the plaintiff-appellant's sub-chiefs, without his knowledge and consent, sold to the defendants certain lands, admittedly subject to the overlordship of the stool of Mansu to the defendants-respondents, and it was this sale that the plaintiff-appellant sought to set aside before the Tribunal of the Paramount Chief. It is admitted that at the time of the sale the plaintiff-appellant occupied the stool of Mansu, and that at the same time he authorised the sale of certain stool lands within the control of the Odikro of Akroso to two men, Pety Botwe and Kwesi Baah, and that these lands were conveyed to the said persons, but it is contended by the defendants-respondents that at the same time as these two persons successfully purchased their lands' the defendants were also in negotiation for the purchase by them of the lands in dispute, that a purchase was also effected by them with the full knowledge and consent of the plaintiff­ appellant, who sent his representatives to conduct the sale and which was completed according to native customary law.

The sole question at issue in this case is this-were these lands, the subject matter of the dispute, sold to the respondents with the knowledge and consent of the appellant? for it is recognised customary law that no lands which are subservient to the dominant stool can be sold without the consent of the Paramount Chief and his elders.

It follows that' the onus of proof rests with the respondents, and on this point I am of opinion the learned Provincial Commis­sioner erred, as in his judgment, set out on page 103 of the record, he says the onus of proof is on the appellant. Learned Counsel for the respondents admits this, but says that although the learned Commissioner was wrong in holding as he did, yet the respondents have discharged that duty, and the evidence shows knowledge and consent by the appellant of the sale. To this proposition. I cannot agree. Firstly I am of opinion that th2re is lack of evidence to show that the persons, alleged to have been present when the sale was purported to have taken place, were--de facto-the accredited agents of the appellant for the conduct of the sale by native customary law, without· whose presence the sale could not have been legally completed. Secondly the receipt for the purchase price was not signed by the appellant, and was only given four years after the alleged sale was completed, and was apparently signed by Chief Kobina Ofori, the Odikro of Akroso, of the sub­servient stool and witnessed by no person or persons holding office under the dominant stool, and thirdly that no conveyance of the land in question. to the respondents has ever been made, though in the cases of the other two sales, this has been done.

For the above reasons I hold that as the learned Provincial Commissioner misdirected himself as to the onus of proof, and as the respondents have failed to discharge that onus, this appeal must be allowed. The judgment therefore of the Provincial Commissioner is reversed, and the decision of the Native Tribunal restored. Costs in this Court assessed at £53 13s. to be paid by the respondents. The appellants to have their costs in the Provincial Commissioner's Court and in the Native Tribunal.

GRAHAM PAUL, J.

In this appeal I have had the opportunity of reading the judgment of my learned brother, the Acting Chief Justice of this Colony, with which I concur in every respect. It is only because the effect of the judgment of this Court is to reverse the decision of the Acting Commissioner of the Central Province, an officer with experience of local conditions who gave the most careful consideration to the appeal before him, that I find it incumbent upon me to add a few comments of my own.

It appears clearly from the judgment of the Native Tribunal what their attitude was towards the evidence put before them at the trial. They say: "We find the bone of contention lies with " the proof of the validity (of the sale) which is incumbent upon " the defendants to do ". In my view that was the correct angle from which to study the evidence in this case. The plaintiff attacked the validity of the sale on. the ground that his consent was necessary to its validity and had not been obtained. Like any other plaintiff he started with the onus of proof upon him, but whenever it was admitted-as by the defendants it waE admitted-that the plaintiff's consent was necessary to the validity of the sale the onus of proof of consent ipso facto of that admission passed to the defendants

The Native Tribunal was correct in its attitude to the evidence.

The .evidence related to matters the significance of which the Native Tribunal was better equipped to understand than this Court can claim to be. Upon their consideration of that evidence the Native Tribunal came to the conclusion of fact that the sale in question was unauthorised by the plaintiff and therefore wrong.

The defendants appealed to the Court of the Commissioner of the Province, and after an exhaustive hearing of Counsel on the appeal the Acting Commissioner came to the conclusion that it was impossible to sustain the decision of the Native Tribunal. He reversed the judgment of the Native Tribunal aud entered judgment for the defendants.

The very full judgment of the Acting Commissioner, review­ing in detail as it does the whole evidence in the case, was entitled to receive at our hands-and has received-the greatest respect. Speaking for myself I should have had the greatest reluctance to interfere with his conclusion on the evidence but for one sentence in his judgment which, to my mind, indicates quite clearly that he was considering the evidence from quite a wrong angle.

After referring to the case for the plaintiff at length, he says: -

" That is the plaintiff's case, and the question is whether " he has proved that the sale was made without his " concurrence and authority".

That sentence shows that the Acting Commissioner placed upon the plaintiff an onus of proof which was not upon him at all once the defendants had admitted that the plaintiff's concurrence and authority were necessary to the validity of the sale. And it was an onus of proving a negative.

It is obvious that-other things being equal-two tribunals studying the same evidence with different views as to the onus of proof as between the parties are likely to arrive at different conclusions. The Native Tribunal and the Acting Commissioner did examine the evidence with different views as to the onus of proof, and in my opinion the view of the Native 'Tribunal was the correct one. That, to my mind, discounts almost entirely the value of the conclusion at which the Acting Commissioner arrived and leaves this Court in the present appeal much in the same position as if it had been an appeal direct to this Court from the decision of the Native Tribunal.

That being so, the question for this Court in the appeal seems to me to be: -Are we satisfied that there was not evidence before the Native Tribunal upon which they could reasonably have arrived at the conclusion which is embodied in their judgment? After careful consideration I am not satisfied that there was not such evidence before them, and for that reason I consider that this appeal must be allowed and the judgment of the Native Tribunal restored.

KINGDON, C.J., NIGERIA.

I concur with both the judgments which have been delivered by my learned brethren.

Note.-The judgment of the Privy Council follows at pages 201-206.