Appeal Court, 23rd May, 1940.

. Defendants-Respondent Appeal against decision of Provincial Commissioner dismissing appeal from the tribunal of a Paramount Chief-claim damages for trespass-better title to possession of the land all, by the Defendants-Appeal  allowed.

Head: Although the claim is in trespass the real issue is one of title, is' title to be proved.

(2) As there had been substantial misdirection with regard to several on the part of the original tribunal, the case to be sent back for re-hearing de with direction from this Court as to those points.

There is no need to set out the facts.

Bossman for Appellant. Benjamin for Respondents.

The following joint judgment was delivered :­KINGDON, C.J., NIGERIA, PETRIDES, C,.J., GOLD COAST AND GRAHAM PAUL, C.]., SIERRA .LEONE.

This is an appeal by the Plaintiff against the judgment of Provincial Commissioner's Court which upheld the judgment given by the the Tribunal of the Paramount Chief of the Ga State The judgment of the Provincial Commissioner's Court dismissing the appeal which the Plaintiff had taken against the Ga Tribunal judgment but, unfortunately, the judgment of the Provencal Commissioner's Court did not deal with any of the lengthy argument adduced before it except in the following words: "I have b unable to find any clear proof that the judgment of the Tribunal below should be disturbed." This Court therefore, in considering the present appeal, must at once consider the judgment of the Tribunal in the light of the grounds of appeal filed and arguments adduced in this Court.

In their judgment the Ga Tribunal expressly relied upon t documents, Exhibits " B ", "C ", and " F ", and the broad in contention of the Appellant's Counsel is that the Tribunal serious and materially misdirected itself in regard to each one of the: documents; that if it had not so misdirected itself it would might have arrived at a different judgment in favour of Appellant; and that the, case should be sent back to the Ga Tribunal for re-hearing with adequate directions as to the correct mean and effect of the documents in question.

The Plaintiff-Appellant claimed damages for trespass by the Respondents on his land. The Appellant's case 'Was that he acquired the land in question by purchase from one Isaac Cobblah Fiscian, Head of the Aruna Family, in 1920 at a price of £100 ; that  he received an Indenture of Conveyance of the land and entered 'and into possession. It is perhaps unfortunate that he did not put in Graham evidence this conveyance but, of course, his action being in trespass, was based on possession and not on title, and that may be the reason why the Plaintiff did not produce his title deed.

The original Defendant in the suit was one Ammah. Later it appears that the 2nd Respondent, Yawa Aruna, was added before. the trial began. The record of appeal does not disclose exactly when or how she was added as a Defendant.

The position of each Respondent is quite different. That of the first Respondent may be considered first. He purchased certain land from Isaac Cobblah Fiscian. The land he purchased was a portion of what Fiscian had previously sold to the Appellant, but at Fiscian's request the Appellant had agreed to Fiscian selling this portion on condition that Fiscian later replaced it with another portion. Fiscian granted a conveyance to the 1st Respondent and told him he must get it executed by the Appellant as 'Well. The first Respondent approached the Appellant who agreed on] receipt of 10s. to execute the conveyance and he did so.

The Appellant's case is that he later found the first Respondent putting cement blocks on a portion of land not included in the portion sold. He spoke about it to the first Respondent who at first promised to remove the blocks but afterwards claimed to have got a conveyance of the land from someone else and refused to remove the' blocks. The Appellant thereupon brought this action against the first Respondent, and the second Respondent was afterwards joined as the person who had granted the coiweyance of the land in question to the first Respondent.

There appears to be no dispute that the land in question originally belonged to the late Aruna, or that at the time the Appellant bought it (in 1920) it formed part of Aruna Family land. The Respondents do not appear to dispute the facts that the Appellant did buy the land from Fiscian in 1920 ; that he did take possession of it ; or that they interfered with that possession. Their case is that they had a better title to possession than the Appellant and were, for that reason, entitled to do what they liked on the land. It was .in these circumstances for the Respondents to prove their. superior title and the real issue in the case was whether they had done so.

The main part of the case for the Respondents is that the conveyance by Fiscian to the Appellant was of no effect as Fiscian had no right or power to sell and convey Arona Family land. The Tribunal upheld that contention and based their judgment in the main upon what they considered to be the meaning and effect of three documents, Exhibits "B", "C", and "F". These ma be considered in their order :--

Exhibit" R " is a very curious, stupid, and possibly a rather suspicious document. It purports to be signed by some twenty people calling themselves, "Children, Grandchildren and Descendants d Aruna·'. It is more than doubtful if a single on of them was actually a descendant of Aruna. This curiously and inexplicably ex post facto document is dated 3rd February, 1934) and it contains a number of resolutions supposed to have bee~ passed at a family gathering in 1931, which are as follows :-

"1. That we do hereby declare and state that Madam Yawah Arunah of Accra being the present head of the family is forthwith appointed Trustee of all Brazilian properties belonging to the Aruna Family, in Accra and District, from the 23rd day of July, 1930, till her death when this power now conferred on her shall cease to be in force.

"2. That she is hereby fully empowered to administer and do all lawful acts and deeds in respect of the said properties till her death.

"3. That from the 23rd day of July, 1930, Mr. J. E. Maslino is remove absolutely from his position as Caretaker of the said properties.

"4. That all acts and deeds done and made since the 23rd day of July, 1930, on or before by the said J. E. Maslino or by any other person 0 persons besides the said Madam Yawah Arunah in respect of the said properties without the knowledge, concurrence and agreement of us the said Arunah Family is hereby declared null and void".

In their judgment the Tribunal say in regard to Exhibi ' B" :_

" Howbeit witness Fiscian could not challenge the validity of the paper signed by the members of the family appointing co-defendant as Head of Family".

It is certainly a serious and material misdirection to say that Exhibit "B" appointed co-defendant as Head of Family. An~ of course, if it did, it could not affect transactions or status of Head9 of Family, or of people acting as such, before its date. It therefor, could have no bearing whatever on the validity or otherwise of in document executed in 1920-14 years before its date.

Exhibit " C " is a judgment of the Divisional Court of 11th! July, 1931, in a suit brought by I. C. Fiscian against the second Respondent. In regard to that judgment the Tribunal say:-

" This is a matter between members of the same family and it was for Fiscian and co-defendant to fight for their respective positions in the said, family with regard as to who is the right person to inherit the properties in' dispute. And this has already been adjudged by the High Court declaring the co-defendant (Yawa Aruna as the right and proper person to inherit the properties of Nii Aruna in her capacity as Head of the Family of the said Nii Aruna ".

This was a reference to Exhibit" C ". That is to say the Tribunal directed itself that Exhibit" C " constituted res judicata as between Fiscian and the second Respondent and therefore between Appellant and second Respondent as regards status in the family and therefore, as regards title to this land in question.

Apart altogether from the fact-and the legal consequences of the fact-that Exhibit" C " is a judgment 11 years later in date than the conveyance by Fissian to Appellant, it is clear that the Tribunal misdirected itself as to Exhibit "C". Exhibit" C " expressly did not decide the question as to headships of Aruna Family even at its date. The Judge in that case held that the property in question was the private property· of the second Respondent and not family property, and added:-

" That being the conclusion at which I have arrived it is not necessary for me to deal with the question whether or not the plaintiff (i.e. the present Appellant) is the head of the Fatuma-Aruna Family".

The Tribunal misdirected itself in regarding Exhibit .. C " as res judicata in the question before it in the present case.

Exhibit" F" is a judgment in a suit Johnson and Another v. Johnson, which is referred to in the judgment of the Tribunal " as proving that she (2nd Respondent) being the domestic maid-servant of Nii Aruna is the right person to inherit the property in dispute."

It is clear that the Tribunal misdirected itself in holding that Exhibit" F" (which though put in as an exhibit was really only quoted as an authority) established that the second Respondent as a domestic maid-servant of Nii AnuJa was the right person to inherit the property in dispute. Exhibit" F " was a judgment in an administration suit in regard to property of a deceased person. In that case it was admitted that there were no blood relatives and a slave was therefore found entitled to inherit.

Here there were surviving at the material time-i.e. the date of the conveyance in 1920-and at the date of the trial, blood relatives of Aruna. That is not in dispute. Isaac Cobblah Fiscian is alive and so is Joseph Edward Maslino and they are both blood relatives, great grandson and grandson respectively, of Aruna. The sale and conveyance by Fiscian to Appellant were known to Joseph Edward Maslino at the time or soon after.

Moreover, Exhibit" F " was a judgment in a Cape Coast case where the native law of succession differs from the Ga law of succession. It is Ga law of succession which applies to the present case. The Tribunal never considered the question whether a judgment based on the Cape Coast law of succession governed this question under the Ga law of succession. The Tribunal appeared to consider that Exhibit " F " being a judgment of the Supreme Court bound them, and the Tribunal acted accordingly, not considering and deciding the question with their own minds and their own knowledge of Ga customary law, but accepting the Supreme Court judgment as binding. This was wrong and goes to the root of the judgment of the Tribunal.

The Tribunal appear to have lost sight of the importance of Exhibit" G " which is a copy of proceedings regarding Government acquisition of Aruna land. In those proceedings the second Respondent claimed as against Issac Cobblah Fiscian the compensation due for Arona Family land, She claimed, according to her evidence, as Head of the Family and called as her witnessth Senior Asafoiatse of Gbese, Accra, to give evidence in support her claim,. as an expert witness on Ga custom. His evidence so and so definite and so destructive of the claim which the Defendant put:  forward then-the same claim as she puts forward now she had to withdraw her claim.

       It is clear that a fresh and careful enquiry by the Ga Tribunal is necessary into the material facts of this case, and the Ga native law as applicable to these facts and the second Respondent's  , of title.

The proper course appears· to be to send the case back to the. Ga Mantse's Tribunal to be re-heard de novo with definite direction~ that Exhibit "C" is not res judicata in this case: that Exhibit: " F" does not preclude the Tribunal from considering the fact£ of this -case as proved before them and applying thereto the G laws of succession: and that Exhibit "B" did not appoint the second Respondent as Head of the Family as at its date or at any: other date. It is also necessary to point out, in view of the apparent opinion of the Tribunal to the' contrary, that it was not, and is not; necessary for the Plaintiff to join, as Co-Plaintiff with him, lsaa, Cobblah Fiscian.

It is now obvious that although the claim is in trespass, an therefore based on the Plaintift's possession, the real issue between the parties is one of title, and at the re-hearing the Plaintiff's conveyance should be put . in evidence. Also there should be some enquiry as to what was done with the £100 received by Fiscian from the Plaintiff. Was it applied to Aruna Family purposes or did Fiscian treat it as his own money?· The questions whether. there was passive acquiescence by the family m Fiscian dealiI18 with this family property as he did in 1920, and for a long time thereafter, and, if so, what effect that acquiescence would have under Ga customary law on the rights of strangers buying in good faith from Fiscian, also require to be considered.         

The appeal is accordingly allowed and the judgments of the Ga Mantse's Tribunal (including the order as to costs) and of the Provincial Commissioner's Court (including the order as to costs) are set aside. The case is sent back for re-hearing de novo by the Ga Mantse's Tribunal in the light of this Court's rulings as to Exhibits " B ", "C", and " F" and the directions given in the last two preceding paragraphs of this judgment. It is further ordered that any sums paid by the Appellant to the Respondents by way of costs whether in the Ga Mantse's Tribunal or in the Provincial Commissioner's Court shall be refunded. The Appellant is awarded costs in this Court assessed at £34 12s. and in the Provincial Commissioner's Court to be taxed. The costs hitherto incurred in the Ga Mantse's Tribunal are to abide the ultimate issue and be in the discretion of that Tribunal.