pg 86 

Appeal Court, 7th June, 1941. Appeal from Court of Chief Commis­sioner exercising Appellate Jurisdiction.

Declaration of title in .Asantehene's Native Court "A"­ Persons deputed to view land with parties and 'report-­Plaintiff failed to prove his case but as it had some substance land in question divided between parties by Court " A "­Appeal to Court of Chief Commissioner-Appellant requested that judgment be set aside and case sent back for re-trial­ Plaintiff failed to put his case fully before Native Court-­Defendant neither appealed nor asked West African Court of .Appeal to exercise its powers unDer Rule 31 of its ,.Rule.

Held: Appeal dismissed.

There is no need to set out the facts. C. F. H. Benjamin for Appellant.

K. A. Korsah for Respondent.

The following judgments were delivered:-

BRAHAM PAUL, C.L, RIERR.A LEONE.

This suit began in the Asantehene's Native Court " A" in which the appellant sued the respondent claiming a declaration of title to certain land in Assachere described in the Writ of Summons. After hearing the evidence of the parties the Native Court in accordance with the usual practice deputed certain persons to view the disputed lands with the parties and to submit u rt'port. The deputation duly visited the land with the parties a nd submitted a report which both parties accepted as correct. ()n the evidence of the parties and the report of its deputation the Native Court gave judgment the important part of which is :\s follows:-

" There are certain points in favour of either side. In " yiew of this fad, the Court feels that the only way by " whil'lI justice and equity could bl~ met in the case is to

Ohene of Assachere v. Ohene of Dadiase

" divide the land between the two stools. The Court there­" fore sets the following boundaries between them and orders " that each party should bear his own costs."

 

 

81

Ohene of Assachere

v.

t>hene of Dadiase.

 

The boundaries so set out by the Native Court had the effect of G ah dividing the disputed land into two parts, the larger part going to P:ul, C\ the respondent.

From that judgment the' appellant appealed to the Court of the Chief Commissioner where further evidence was led in the course of which two validated executive decisions were put in evidence by the appellant. It will be necessary later to refer to these two decisions. The Chief Commissioner's Court dismissed the appellant's appeal and confirmed the judgment of the Native Court.

It may be mentioned that the respondent also appealed to the Court of the Chief Commissioner but only on the question of costs. His appeal was dismissed by the Chief Commissioner'" Court and it is of no further consequence.

From the judgment of the Chief Commissioner's Court the appellant has appealed to this Court. The only grounds of appeal with whieh I find it lIecessary to deal are Ground (1) (d) and Grounds 2, 3, 4, [) and tL Ground 1 (b) is in substance included under Ground 2.

Ground 1 (d) is "Error in Law. That Exhibits 'I' and , .J' are binding on Dadiasihene."

These two exhibitli were Validated Executive Decisions whieh in my opinion are under section 3 (1) of Chapter 120 given the effect of judgments in rem except ony as against the Crown. They are therefore " binding on Dadiasihene " and in my opinion the Chief Commissioner's Court was wrong in holding as it did that Exhibits "I" and "J " were not binding on Dadiasi as he was not a party to those cases. But the appellant in my opinion failed to establish that these Validated Decisions referred to the land in dispute as he was bound to do if he wished to found upon them in this case. N either in the Native Court, nor to the inspecting messengers did the appellant suggest that these decisions related to the land in dispute. N either he nor any of his witnesses even mentioned them until the case came on appeal to the Chief Commissioner's Court. It appears from the indications iu the exhibits that they do not in fact relate to the land now in dispute or any part of it, but even if it were by the plaintiff's evidence left only uncertain whether they related to the land in dispute they could not be treated as binding on Dadiasi in this suit so that for another reason than that given by the Commissioner he was right in finding that these exhibits were not binding on Dadiasi 1'n th1·.~ SU1:t.

 

 

 

"""

 

 

=

88

Ohene of Assachere

v.

Ohene of • Dadiase.

Graham Paul, C.].

 

 

Ohene of A.ssachere v. Ohene of Dadiase

It will be convenient to deal with Grounds 2, 3, 4, 5 and 6 together. They are as follows:-

2.     Judgment against the weight of evidence.

(a) A comparison of the evidence of the representative of Dadiasihene with Exhibit " B" pages 60-63 and also with the evidence on oath of the representative of Dadiasihene at the Kokofu Native Court shows that the defendant's story is not worthy of credence.

(b) The plaintiff has all along been consistent with the history of his ownership of the lands claimed.

3.     Because both the Asantehene's Court "A" and the Court of the Chief Commissioner, Ashanti, were wrong in not deciding the title to the disputed lands.

4.     Because the Asantehene's Court "A" and the Court of the Chief Commissioner, Ashanti, did not direct theii' minds to the question of original title.

5.     Because title being in the plaintiff-appellant, judgment ought to have been given in his favour.

6.     Because the judgment of both the Asantehene's Court "A" and the Court of the Chief Commissioner of Ashanti were arbitrary and therefore wrong in law.

Now it is my view that the Native Court" A " and the Court of the Chief Commissioner did " decide the title to the disputed lands." The Native Court" A " with a claim for a declaration of title before it, and nothing else, divided the land between the appellant and respondent. It is quite clear from their judgment that in so doing they intended to give, and in effect did give, the plaintiff a declaration of title to the land claimed but only up to the dividing line which they fixed. It was bound to be, and, in effect, isa dividing line between owners. In my view the Native Court with a claim by a plaintiff for a declaration of title to a certain piece of land was entitled, if the evidence justified it, to give the. plaintiff a declaration of title as regards the land claimed only up to a certain line and dismiss the claim as regards the balance of the land claimed. That is the f.orm which their judgment would have taken according to English rules of practice which would not justify a Court in giving a declaration of title to a defendant who had not counter-claimed for it. Instead of giving a declaration of title to the plaintiff up to a certain line and dismissing the claim as regards the balance the Native Court has laid down a boundary between the parties. Their view apparently was that the proved occupation and acts of ownership by the defendant's people on the other side of the line were inconsistent with the plaintiff being the titular owner of the land there. They had therefore to refuse his declaration of title as regards that part so they considered that inter partes the dividing line should be definitely fixed between the two people as the boundary between owners. That is nota judgment in rem but only 'inter partes, and the difference between it and the judgment which

Ohene of :4$.wchere v.()hcne of Dadia:s-e

under English practice would have been pr<wer is not in my opinion sufficient to justify this ('ourt in interIering with such, a .common sense judgment.

It would of course have been quite different if either party on appeal had satisfied this Coutt thatrupon the evidence'the dividing ¥rtc J line had to his prejudice been wrongly placed. The Dadiasi people _ au, .. haye accepted tha~ line though it gives them less than they considered they were entitled to. The Assachere people have appealed to this Court but they have failed to show this) Court that

~n the evidence the Native Court was wrong i~ not giving them

more of the land in dispute. It is more than doubtful whether

the Native Court was justified in giving the Assachere people as

much 'as they did. At the close of i;he hearing before this Court

the appellant's counsel did not seriously contend that this -Court

would be justified on the evidence in altering the Native Court's judgment so as to give his clients more land. His suggestion was

that the Native Court's jv.dgment should be set aside and the case

sent back for re-trial by the Native Co~rt with a proper plan and-

for further evidence to be given by his client as to Exhibits" I "

and "J." I consider that the Native Court made a very full investigation into the case and gave each party ample opportunity

to put before it any evidence which they considered advisable.

If the-plaintiff, 'without any adequate reason given, failed to take

the opportunity given to him to put his case fully before the Native

COllrt, that does not, in my opinion, justify this Court in causing

a very busy Native Court to do all their work over again about a litigation which according to the Chief Commissioner has been

going on for twelve years.

I c<:msider that it is a matter for congratulatiqn that a final decision has at last been given in this lengthy litigation, and the appella,nt has in my opinion failed to show any reason why this Court should give him another opportunity to re-open it.

In my opinion the appeal should be dismissed.

KINGDON, C.J., NIGERIA.

It seems to me clear from the passage in' the judgment of the Asantehene's Court" A " which has been quoted by my learned brother that that Court found that the plaintiff had failed to prove his case. That being so the Court should, in my opinion, have dismissed the plaintiff's claim. Instead of doing that the Court divided the land between the parties fixing an arbitrary boundary. In the result the plaintiff got what amounts to a declaration of title inter partes to part of the land, a declaration to which he was not entitled since he had tried but failed to prove his right to it, whilst the defendant got what amounted to a declaration of tit~e inter partes to the other part of the land, a declaration for which he had not asked, and to which he also had not proved his right.

 

 

89

':

I

ff

II

, I

Ii

'I

I,

, I

II

I,

 

 

90

Ohcnc of Assachere

v.

Ohenc of Dadiase

Kingdon, C.].

 

 

Ohene of Assachere 'v. Ohene uf1Jadia.~e

But since the defendant has neither appealed nor asked this Court to exercise in his favour the powers conferred upon it by Rule 31 of its rules, there is no need to alter the judgment of the Asantehene's Court" A " in his favour. And since to substitute for the judgment given the judgment which I have indicated above should, in my view, have been given would result in the plaintiff being worse off than he is, and have the further dis­advantage of leaving a long standing dispute still unsettled, I agree that the judgment of the Asantehene's Court "A", con£rmed by the Qhief Commissioner of Ashanti, should be upheld and the appeal dismissed.

PETRIDES, C.J., GOLD COAS'l'.

I have had the advantage of reading the judgments just delivered.

I think it is quite clear, looking at the evidence as a whole anrl listening to the arguments of appellant's counsel, that the evidence was not such as would have justified Asantehene's Native Court " A" in holding that appellant has discharged the onus of proof of ownership entitling him to the declaration sought.

Native Court" A " apparently appreciated that difficulty and refrained from granting the appellant a declaration of title to the whole land. 'l'hey however granted him a declaration as to part. In my opinion they were wrong in doing so but as there has been no cross-appeal that part of the judgment need not be varied by this Court.

It must be borne in mind that Court" A " is a Native Court and its members have not the same power of expressing themselves accurately as a trained lawyer.

It seems to me that the Court meant to convey that the plaintiff had not made out a case for a declaration of title to the land claimed but that he had established some good points and that justice and equity would be satisfied by granting him a rleclaration of title to that part awarded to him.

I agree that the appeal should be dismissed.

ORDER

The appeal is dismissed with costs assessell at .£5~ l;3s. !ld.