pg 222 Appeal Court, 24th Dec., 1941. Appeal from Court of Provincial Commis­sioners exercising appellate Jurisdiction.

 Trespass-Land held under native tenure-Suit subject to exclusive original jurisdiction of native tribunal -Family property and self-acquired individual property-Finding of native tribunal reversed by Appeal Court of P·r01Jinclal Commissioner restored on this Appeal.

Claim for £50 damages for trespass on plaintiff's cocoa plantation:

First defendant admitted removing 240 Ibs of cocoa on instructions of second defendant who claimed that the plantation was family property: plaintiff was in possession at the time of the alleged trespass.

The Native tribunal held that:-

(a) Plaintiff had established that his father was the personal owner of the farm in dispute j

(b) That the disputed farm was the one mentioned in the Will, and (c) Plaintiff was proved to be the rightful owner of that farm;

(d) The assistance of domestics of the Acquah family did not prevent plaintiff's father from being regarded as right owner and disposing of it by Will  and

(e) That the defendants had knowingly trespassed on plaintiff's right as devisee of the plantation. This was set aside on appeal in the Provincial Commissioner's Court on the ground that

(a) Plaintiff did not show his father to have been the personal owner of the farm in dispute.

(b) That the disputed farm is not proved to be the farm mentioned in the Will.

(c) Plaintiff was not proved to be the rightful owner of the disputed farm.

Held: The finding of fact in the Native Tribunal had not been shown to be wrong and that there was ample evidence on which that tribunal could come to the conclusion it did, and that it not having been clearly established that the Court was wrong in the conclusion it came to the Provincial Commissioner's Court was not justified in reversing the decision.

Privy Council judgment in Ahakah Nthah v. Anguah Bennieh, 2 W.A.C.A. I quoted.

Araba Tsetsewa v J. D. Acquah and another. (Same session- Unreported) distinguished. pg 223

The following joint judgment was delivered:-
 

D. M. Abadoo (with him Dr J. W. de Craft-Johnson) for S. G. Appellant

. K. A; Korsah for Respondents.

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND BANNERMAN, J.

These proceedings were commenced in the Native Tribunal of the Paramount Chief of Abura by writ which reads:-

" The plaintiff'~ claim is against the defendant for the " sum of £50 being damages for trespass committed on the " plaintiff's cocoa plantation on the land known and called "Nkonhu-Nakwam situate, lying and being at Asuantsi in " Abura state. That the defendant on the 28th day of October, " 1940, by his workmen did trespass by plucking and carrying " away cocoa crops from the said plantation in respect of which " the plaintiff on the said date swore oath namely, Aburahene " Gyandlla against the said workmen of the defendant stopping  them from plucking and carrying away the said cocoa which " the defendant in turn swore the same oath on the 29th day " of October, 1940, in response to counter-act the plaintiff and " claiming ownership of the said plantation."

It was admitted that the first defendant caused cocoa to be plucked and removed 240 lbs from the plantation the subject matter of the action on the instructions of the second defendant who claimed that the Plantation was family property and could not be devised to the plaintiff. It was not disputed that the plaintiff was in possession at the time of the alleged trespass.

The plaintiff gave evidence. He stated that thirty-three years ago his father ,Joseph Acquah applied to the Chief of Assuantai to sell him some land. The Chief said that he would not sell him land but, because they were related, " he would give him land to work on it freely". Joseph agreed to contribute towards stool debts and gave the Chief a " dash" and the chief showed him a site to farm and or live on. Joseph employed a number of labourers and made a farm which consisted of two cocoa plantations. Plaintiff stated "The domestic servants of the late C. W. Acquah and " brothers worked on the farm in consideration of the land allotted "to them for farming later Joseph's elder brother C. ,V. Acquah arrived from the Ivory Coast and asked Joseph for and was granted a portion of the land Joseph had obtained from the chief of Assuantsi for farming. Three years later C. W. Acquah died and Joseph handed over the cocoa farm Charles had cultivated to his children, including the first defendant. Plaintiff says his cocoa farm and that of Charles were " joined to be one but they have pg 224 boundary marks shown with pine-apples ". When Joseph grew old he placed plaintiff's brother, Abaka Acquah, in charge of the farm.

Joseph Acquah died on the 14th June, 1940, leaving a Will of which probate was granted to two of the executors named in the Will. Plaintiff claims to be entitled to the cocoa farm under the clause in the Will which reads:-

"I give and bequeath to my wife Elizabeth A. Acquah and my " children Joseph Dobson Acquah, Isaac Newton Acquah, Samuel Gabriel "Acquah, David A.baka Acquah, Jacob Oppon Acquah, Mrs. Elizabeth "Christian, Mrs Sophia A. Graves and Mrs Charlotte Aubyn jointly my "cocoa farm and land attached".

Plaintiff said that he does not know of any cocoa farm with land belonging to the testator, Joseph, other than the one in dispute in these proceedings; he stated that after probate was granted he and his other brothers went to Assuantsi and informed the chief and his elders of the gift and renewed the arrangements his father had with them in connection with his occupation of the land and gave them a " dash" which they accepted. Abaka Acquah continued to look after the farm with the two labourers already engaged on the farm.

The defendants' case is set out in an affidavit sworn to by the second defendant on the 1st November, 1940, in answer to a claim for an interim injunction. Shortly it is as follows:-

The second defendant is the head of Akosuah Fuabah Twidan Family of Anamaboe and Cape Coast. The late Charles, John and Joseph Acquah were members of this family. About 1907 the stool of Assuantsi granted a portion of the stool lands to the said Acquah brothers for the purpose of making a plantation. When Charles returned from the Ivory Coast he built a house on the plantation: Charles provided funds for the expenses of the plantation and recruited labourers from the Ivory Coast to work on the plantation After the death of Charles the surviving brothers, John and Joseph, continued to enjoy the benefits of the plantation together with other members of the family. From 1907 members of the family worked on the plantation and they and their descendants are still working there. Joseph could not dispose of the Cocoa plantation etc. by Will as it was family property of which family the second defendant is the head.

The Tribunal gave judgment for the plaintiff for £5 damages and costs. In that judgment the Tribunal set out the evidence of both sides at some length and then gave its conclusions which are as follows: -

" The Tribunal will deal first with the question of the " ownership of the cocoa plantation the subject of this case. " The evidence of the defendant that Charles Winslow Acquah " remitted money to .Joseph Dobson Acquah to start the cocoa " plantation the subject of this case is not certain. George pg 225 Howard Amoo says Charles Winslow Acquah told him that ~ G. h "the money he had remitted had been squandered. Chiefe Kobina Kurantsir also says Charles Winslow Acquah told  him in the Ivory Coast that £40 had been remitted to his brothers for purpose of cocoa plantation-all is hearsay and  cannot be relied upon-the domestics of Acquah brothers "assisted Joseph Dobson by labour does not deprive (Joseph Dobson Acquah) from being the rightful owner to "dispose of the farm by Will-Charles Winslow Acquah " recruited labourers from Ivory Coast and helped to extend " the farm already cultivated by Joseph Dobson Acquah, and died after three years, does not deprive the said Joseph Dobson Acquah from being the rightful owner to dispose of the farm by Will.

" The Tribunal finds as a fact that individual property ., becomes family property by omission of its owner to make a " Will-in this case Joseph Dobson Acquah (deceased) made a " Will devising the farm the subject of this case to his wife " married under Ordinance, and children, that is to say, the " wife and children would have interest in the properties of " the said Joseph Dobson Acquah if even he had died intestate.

" Now, dealing with the question of the trespass: the " defendants admit that the Will of the testator Joseph Doh6on " Acquah was signed by himself. The defence is that it is not " disclosed in the Will that cocoa plantation devised to the " plaintiff is the one in dispute herein, otherwise an action "would have been instituted against the Will as had been "done in the case of other properties vide the Writ of " Summons tendered in evidence by the plaintiff and marked " " D" herein. But what about the challenge by the 1st " defendant championing his course against the warning of the " plaintiff to the workmen (Domestics) in the cottage before " the plaintiff instituted this action-it appears evident that " the defendant knew that the Will referred to the farm the " subject of this case so that the defendants have knowingly " trespassed on the plaintiff's right as devisees of the cocoa •• plantation the subject of this case".

On appeal to the Provincial Commissioner's Court, Central Province, the Deputy Commissioner set aside the judgment of the Tribunal. At the conclusion of his judgment he said:-

" To sum up, I find that

" (a) Plaintiff did not show his father to have been the " personal owner of the farm in dispute.

" (b) That the disputed farm is not proved to be the " farm mentioned in the Will.

" (c) Plaintiff was not proved to be the rightful owner " of the disputed farm".

We find it necessary ~ repeat as we have 80 often stated before that in their judgment in Abakah Nthah v .• Anguah Bennieh, 2 W.A.C.A. p. 1, the Privy Council said:-

" 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 the are wrong . "

Sarbah, at page 61 of the 2nd Edition, states" In this country joint property is the rule, and must be presumed to exist in each individual case until the contrary is proved" and at page 89 "Property is designated self-acquired or private where it is acquired by a person by means of his own personal exertions, without any unremunerated help or assistance from any member of his family; or without any advance or contribution from the ancestral or family p08sessions of his family '.'.

We accept both these propositions as being correct and we see no reason to assume that the Tribunal was ignorant of or ignored them.

Although the conclusions of the' Tribunal were very briefly stated they appear to cover the whole ground. It seems to us to result from those conclusions that they accepted the evidence of the plaintiff and his witnesses and rejected that of the defendants.

They first examined the. defendants' contention that £40 had been remitted by Charles from the Ivory Coast and found that they could not accept this evidence because it was hearsay and could not be relied upon. 'l'hey were clearly entitled so to do. There was thus no evidence before the Court, which the Court accepted, that. Charles had contributed money for the making of the plantation which plaintiff claims.

They next examined the suggestion that the fact that the domestics of the Acquah family assisted Joseph by labour rendered the plantation family property. It appears that it was in an8wer to a question put by the Tribunal that the defendant stated:-

" Yes the domestic servants of late C. W. Acquah and  brothers worked on the farm of my late father in consideration " of the land allotted to them for farming ".

We find it impossible to hold, especially having regard to this evidence I that the Tribunal was wrong in holding that the assistance of the. domestics of the Acquah brothers did not prevent Joseph being regarded as the rightful owner and disposing of it by ·Will . pg 227

The Tribunal also held that the fact that Charles recruited labourers from the Ivory Coast and helped to extend the farm already cultivated by Joseph did not affect Joseph's title. The Tribunal had before them the plaintiff's evidence that the plantation he had made was separated by that made by Charles by a row of pine-apples. We are unable to hold that the Tribunal was wrong in the conclusion they came to on this point.

Turning to the findings of the Deputy Commissioner, Central Province, it is difficult to understand his finding that the farm was not proved to ~ the one mentioned in the Will. This was not one of the grounds of appeal from the Tribunal. In native parlance two plantations are alternately called one farm or two farms . •• Farm" is used in bath senses by the plaintiff and the first defendant. :For instance first defendant at one place said that two farms having boundary marks by path-way were cultivated under the 8upervision of Joseph before Charles returned from the Ivory Coast and at another" I do not know that your father J. D. Acquah has cocoa farm of his own exclusive of the one in dispute herein anywhere".

We find in the evidence of the plaintiff, if believed, ample evidence to enable the Tribunal to come to the conclusion it did, that (a) Plaintiff had established that his father was the personal owner of the farm in dispute;

(b) that the di8puted farm was the one mentioned in the Will, and

(c) Plaintiff was proved to be the rightful owner of that farm.

The Tribunal had the advantage of seeing the witnesses in the witness box. They put a number of pertinent questions to the' plaintiff and were apparently satisfied with his answers and explanations.

In our opinion, it not having' been clearly established that the Tribunal was wrong in the conclusion it came to, the Provincial Commissioner's Court was not justified in reversing the decision of the Tribunal.

We may perhaps point out that this case is essentially different from the other case in which we have just delivered judgment. namely,

Araba Tsetsewa head of her family for herself and on behalf of all other members of her family of Cape Coast. plaintiff­ appellant

                                                            versus

Joseph Dobson Acquah and Samuel Gabriel Aequah as Executors and Beneficiaries under the Will of .T oseph Dobson Acquah (deceased) both of Cape Coast, defendants­ respondents pg228

in that in the present case there is what amounts to a finding of fact by the trial Tribunal that the property in dispute was the self­ acquired individual property of Joseph and 80 could be disposed of by him by Will and never became family property.

We allow the appeal with costs which we assess at .£54 16s 9d; we set aside the judgment of the Provincial Commissioner's Court, including the order as to costs, and order that if any sum has been paid by the plaintiff-respondent-appellant to. the defendants­appellants-respondents in pursuance of that judgment it shall be refunded. We restore the judgment of the native Tribunal, and we award the appellant costs in the Court of the Provincial Commissioner, to be taxed.