The facts are sufficiently set
out in the judgments.
P. A. Renner
(with him
F. Awoonor Willliams
for Appellant)
K.A.
Korsah
for Respondent.
The following judgments were
delivered:-
KINGDON, C.J., NIGERIA.
This is an appeal from the
Divisional Court of the Central
Province sitting at Cape Coast.
The plaintiff's claim was for
£100 damages for trespass upon
his land at Agona Swedru. The
trespass complained of was the
building by the defendant of a
portion of his house upon the
plaintiff's land. '['he learned
Judge in the Court below after
pointing out that the burden of
proof was on the plaintiff, held
that the plaintiff had not
proved that defendant had built
on any portion of the
plaintiff's land and entered
judgment for the defendant. From
that judgment the plaintiff
appeals.
The first ground of appeal is
misreception of inadmissible
evidence. The evidence alleged
to be misreceived is the whole
of the evidence of the witness
Abba Assaniwah. The reason it is
suggested that her evidence was
inadmissible is that in cross
examination she was asked a
number of questions about the
sale of her land and after
answering them said " All I know
about the " sale of the land I
learnt from my husband". '['he
contention that all her evidence
is inadmissible because in
answering certain questions in
cross-examination she was
speaking from hearing need
hardly be taken seriously and
there is no substance in this
ground.
The second ground of appeal is
"Error in law", it being
contended that the Court was
bound by a consent order made on
the 1st March, 1933, to abide by
the Surveyor's report and so had
no jurisdiction except to
ascertain the extent of the
damage (if any) suffered by
plaintiff. The order referred to
is in the following terms:-
"The two conveyances to be sent
to the Provincial Surveyor' for
.• report of this Court, as to
whether the land shewn in the
conveyance "dated 15th April,
1932, encroaches upon the land
shewn in the "conveyance dated
10th August, 1930. Parties
agreed to abide by his " report
".
If. the Provincial Surveyor had
been able to make a definite
report upon the point referred
to him, there might be something
in the contention, but as he did
not and could not do so, it
becomes a two-edged weapon and
cut» the ground right from under
the plaintiff's case. The two
conveyances referred to are
those relied upon by the
plaintiff and defendant
respectively for their title to
the land they claim.
In making his report the
Provincial Surveyor forwarded a
plan (Exhibit " C ") on which
the area claimed by the
plaintiff is edged green and
that claimed by defendant is
edged brown. 'the two areas
partly overlap.
If the Provincial Surveyor had
reported that the area edged
green corresponded either with
the area shown in the plan on
the plaintiff's' conveyance or
with the description of the area
in the body of the conveyance,
the plaintiff would have had
something to go upon. But the
Provincial Surveyor was very far
from making a report in that
sense. The nearest he gets to
it. is in paragraph 4 of his
report, upon which the plaintiff
relies and which reads:-
" If you examine the plan on
plaintiff's conveyance and turn
it so " that the north shewn
becomes the west and the east
shewn becomes the north, there
is a considerable similarity
between this area shewn " on the
conveyance, and the area pointed
out by him on the ground. "The
buildings called Abbah
Assaniwah's on the plan could
not. be " identified at the time
of survey, as they have been
demolished, but "the Town Survey
Sheet, sent to you, will show
that some building " did exist
previously, and that it abutted
on to the western boundary
" of the area claimed ".
The plaintiff asked the Court
below, and now asks this Court,
to find as a fact that two areas
are identical upon a surveyor's
report that if one of them is
turned round there is " a
considerable similarity" between
them. Of course no Court court
possibly make such a finding.
In addition to furnishing a
report the Provincial Surveyor
gave evidence upon commission as
a result of an application in
that behalf by the plaintiff. In
··the course of his evidence he
stated that, from a survey point
of view, it was impossible for
anybody to locate the area shown
in the plan on plaintiff's
conveyance unless the site of
Abba Assaniwah's building was
located on Exhibit "C"; and
further that Abba Assamiwah's
buildings did not exist at the
time of the survey. It is more
than ever clear from this that
the Provincial Surveyor must not
be taken as reporting that the
area edged green on Exhibit" C "
is identical with the area of
the plan in the plaintiff's
conveyance.
If the plaintiff relies upon the
Provincial Surveyor's report, by
which he now contends that the
Court below was bound, it is
obvious that that report failed
completely to establish any sort
of case on the plaintiff's
behalf and the claim was
properly dismissed.
The third ground of appeal is
that the judgment was against
the weight of evidence. Except
for evidence relying upon the
assumption (which. has already
been shown to be false) that the
area edged green on Exhibit" C "
is the same as the area shown in
the plan on the plaintiff's
conveyance, there is hardly any
evidence of trespass; on the
other hand there is evidence,
which the ,Judge believed, to
show the probability that the
defendant's contention in regard
to the disputed area is correct.
It is not, of course, necessary
for the defendant to prove his
contention coned. In this case
he succeeds by the weakness of
the plaintiff's case. The weight
of evidence such as it is, is
all in favour of the defendant
and this ground fails.
The remaining grounds of appeal
are idle repetition and were not
separately argued.
In my opinion the appeal fails
on all points and should be
dismissed with costs.
AITKEN, J.
In this case the plaintiff's
conveyance is quite useless for
the purpose of fixing the
boundaries of his land at Swedru,
even if one makes the
assumption, which is directly
contrary to his own evidence,
that his draughtsman has
mistaken the points of the
compass in addition to making
quite considerable errors in
regard to linear measurements.
He is therefore driven to rely
on user and occupation of the
area in dispute, and the only
evidence in that respect that I
have been able to discover in
the record i., the following
passage in the plaintiff's own
evidence:-
" I took possession of the land
by clearing weeds off it. I
fenced "and made a portion of
the land a vegetable garden. I
erected an " iron sheets shed. I
put a woman in the shed. I did
not enclose the "whole of the
land. I then went to Ashanti on
business. Whilst I " was away
there, I received a report from
the woman I had put in " the
iron sheet shed. Her name is
Essie Gyanbah. This was in 1932.
" I went down to Swedru, and
discovered two huts which had
been put "up by Abba Assaniwah
had been demolished. When the
land was " measured to me, these
two huts had been included in
it. There was "a third hut
occupied by Abba Assaniwah,
which was part of my " boundary.
Abba Assaniwah is alive. She had
permission from me " to use the
two huts until I started
building on the land. I went to
"look for Abba Assaniwah. I had
a conversation. with her. In "
consequence of what she said I
went to see the defendant".
This very meagre evidence of
user and occupation is
contradicted by Abba Assaniwah
herself, and the learned trial
Judge, who saw and heard her,
states that he believed her
evidence. I can see no reason
why we should differ from the
learned Judge's view of her
credibility, especially as it is
borne out by what he himself
found on the
locus in quo
when he went to view it. The
following passage from his
judgment seems to be very much
in point:" A significant thing
to my mind is that plaintiff, in
the plan "prepared by the said
Government surveyor to show the
area " claimed by him, starts
his measurements, when measuring
up "to and into defendant's
building, from points within the
garden "and iron sheet shed
enclosure already referred to.
This is "obviously done to
enable him to get a measurement
which "reached into defendant's
buildings. These measurements "
appear to me purely arbitrary
and cannot be reconciled with
any "points of identification
set out in the plan on his deed
of "conveyance. On the other
hand, if plaintiff measure the "
distances from the concrete
foundation in the opposite
direction, " he would get a
piece of land more or less in
accordance with the "
measurements of his plan, by
taking in the bank of land
sloping " to the trodden road to
the east of his land.
"I had the advantage of
inspecting the
locus in quo,
and " the contour of the land
itself, which such measurements
as I " have just mentioned would
give to the defendant, appears
most " likely to be that
originally conveyed to plaintiff
as it is all Oil a " raised
portion of land ".
To my mind from whatever angle
one views the plaintiff's case
it is hopeless, and even if we
acceded to Mr. Williams's
proposition that the Court below
could consider nothing but Mr.
Gemmel's Report and his evidence
in explanation thereof, the
result would be just the same
since the defendant is in
undoubted possession of the area
in dispute and there is nothing
whatever to show that the
plaintiff is entitled to any
part of it. I agree that this
appeal must be dismissed with
costs.
GRAHAM PAUL, J.
I concur with both the judgments
delivered by the learned
President and by my brother
Aitken.