Claim for damages for trespass and declaration. of ownership-  interpretation of an executive decision-Appeal dismissed.

         Held: The Chief Commissioner rightly interpreted the executive decision the Chief .of 1913 as one fixing the boundary between the lands of Acherensua and Kwesiasi and as the trespass occurred on the Acherensua side of that boundary the plaintiffs. respondents were entitled to succeed.

The facts are fully set out in the judgment.

R. E. Phipps (with him A. G. Heward-Mills) for Appellants.

H. A. H. Benjamin for Respondents.

The following judgment was delivered

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

The plaintiffs started proceedings in the Asantehene's Court .. B," Kumasi, Ashanti, claiming £25 general and £45 special damages for trespass on plaintiffs' land in Ahafo by cutting down thirty palm trees and denuding part of the land of its timber and trees.

The plaintiffs' case was that, after the .. Abinimuro" had been defeated in battle, the Otumfuor Asantehene gave the first 'Plaintiff's stool a large piece of land. of which the first -pla'intiff. retained a portion and gave another portion to the Kwesiasi whose descendants are the defendants in these proceedings. The plaintiffs contended that the boundary of their land, which is hereinafter referred to as Acherensua land, marching with that of the Kwesiasi land is the Kosu River from the junction with the Tano River up to where it crosses the Subonpom-Boma Road. They say that the second plaintiff was appointed .. Caretaker" of this land by the first plaintiff's Stool and that there was a dispute between Acherensua (second plaintiffs) and the Kwasiasi as to their respective boundaries which was settled by Sir Francis Fuller, then Chief Commissioner of Ashanti, who, after hearing the Chief of Acherensua and Kwasiasi and the Chief of Mabang, who claimed land in the neighbourhood but said he had no boundary with Acherensua, decided that the boundary between the Acherensua and the Kwasiasi should be that which the plaintiffs claim to be the boundary.

The defendants do not dispute that on the 9th December, J 913, Sir Francis Fuller gave an Executive Decision in a dispute relating to the land now in dispute and that this was duly recorded in the Boundary Book in pursuance of section 3 of the Ordinance shortly entitled "The Boundary, Land, Tribute, and Fishery Disputes (Executive Decisions Validation) Ordinance" (Cap. 120). Their contention is that the boundary fixed by this decision was not that between the land of the Acherensua and the Kwasiasi but a divisional or political boundary between the Ahafos and the Odumasis.

The dispute between the parties therefore resolves itself into the question whether the Executive Decision decided the land boundaries of the parties or the divisional or political boundary between the Ahafos and Odumasis.

The validated Executive Decision and proceedings were produced in evidence in the Chief Commissioner's Court and marked Exhibit" D." The material part of this Executive Decision is as follows :-

                        "DISPUTE ABOUT THE OWNERSHIP OF ACHERENSUA LAND

                    "KWASIASE-AcHERENSUA LANDS

                     " Enquiry held at Kwesiase on the 8th December, 1913

                                                                DECISION

•. The Kwesiase claim to this large tract of country is based on vague tradition handed down from generation to generation as are likewise the counter-claims of Acherensua and Mabang-and therefore, none of these claims call for serious consideration.

•. The most feasible as well as equitable boundary between the Odumasis on the one side and the Ahafos on the other is the Kosu River and this River shall be the boundary from its junction with the Tano River up to where it crosses the Subonpon-Boma Road-without prejudice, however, to any claim that may be advanced by Boma-a Wam village.

•• Any Odumasi owners of plantations to the West of the Kosu will have to obtain permission from the Chief of Acherensua to continue culti­vation-in the absence of which they will have to evacuate their plantations. •. A similar arrangement to hold good in regard to any Ahafo plantations East of the Kosu River .

•• The same will apply to all Rubber collecting, Game and Snails-£5 for ferry and £5 for ferry dues to be paid by the Chief of Acherensua to Chief of Kwesiase.

" Fishing rights on the Kosu to be mutual.

•• (Sgd.). F. C. FULLER

•• Chief Commissioner, Ashanti."

In the present proceedings the Chief Commissioner's Court in its judgment examined the contentions of the parties and considered the political organisations of certain Ashanti States and their mutations and came to the conclusion that the only possible interpretation that could be put on Sir Francis Fuller;s Decision was that it laid down the boundary of the lands of Acherensua and Kwasiasi and not the divisional or political boundaries between the Ahafos and the Odumasis. In the course of that judgment the Acting Assistant Chief Commissioner, who constituted the Court, said :-

•• Let us examine Ex 'D: the validated executive decision. It is headed 'Kwasiasi-Acherensua Lands-not Ahafo-Odumase lands. The decision commences,-' The Kwasiasi claim to this large tract of country is based on vague tradition handed down from generation to generation as are likewise the counter-claim of Acherensua and Mabang-and therefore none of these claims call for serious consideration' .

•• Now if the Chief Commissioner was as alleged by the defendants, merely holding an enquiry for the purpose of making a boundary between the two Divisions it appears to me strange that he should mention the claims of these individual villages and that there should be no mention of the Head Chiefs of the Divisions. The only interpretation that I consider can be put on paragraph 2 of the decision is that Odumases refers to the people of Kwasiase and the Ahafos to the people of Acherensua .

.•• Again if this boundary was only a divisional boundary and not a land one why in paragraph 3 does the Commissioner say that Odumase owners of plantations to the west of Kosu will have to obtain the permission of the Chief of Acherensua to continue cultivation-in the absence of which they will have to evacuate their plantations .

•• Surely if the contention of the defendants is to hold good it should have been the Omanhene of Ahafo's permission which should have been sought .

•• I can come to no other conclusion that so far as Acherensua and Kwesiasi is concerned this dispute is governed by the executive decision.

We are in entire agreement with the conclusion arrived at by the Chief 6om.missioner's Court and the reasons therefor; and we may point out that above the heading" Kwasiasi--Acherensua Lands" quoted by the Acting Assistant Chief Commissioner there are the other very significant words" Dispute about the ownership of Acherensua Land." It is abundantly clear that the exhibit is exactly what it purports to be, namely, a decision in a dispute about the ownership of Acherensua Land, which is precisely the dispute in the present proceedings.

The boundary fixed by Sir Francis Fuller having been duly recorded in the Boundary Book is therefore, by reason of Cap. 120, Section 3, the boundary between the lands of Acherensua and Kwesiasi, subject to any claim that Boma village may have.

It is clear that the Asantehene's Courts" A " and" B " did not appreciate that, if it appeared that the validated derision of Sir Francis Fuller determined the boundary between the lands of the Acherensua and Kwesiasi in the sense that the plaintiffs claimed that it did, then that boundary was fixed by law and the question was, in effect, res judicata, so that if the trespass complained of occurred on the Acherensua side of that boundary, as it clearly did, then the first plaintiff who was suing as the overlord of the Acherensua and the second plaintiff as his "Caretaker" were· entitled to succeed. This aspect was not considered by those Tribunals and their judgments cannot therefore stand.