Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJSC
JUDGMENT OF ADUMUA-BOSSMAN JSC
This appeal is against a judgment dated 13 April 1962 of the High Court, Kumasi, (Djabanor J.) by which, upon the plaintiff’s claim “for the court to cause the correct boundary between the plaintiff and the defendant to be fixed in terms of an executive decision dated 19 April 1909 whereby the boundary between the plaintiff and the defendant was fixed by Captain Armitage and approved by Sir Francis Fuller, then Chief Commissioner of Ashanti, on 13 May 1909,” the judge gave a particular interpretation to the said executive decision and proceeded to fix the boundary between the parties according to that interpretation. He expressly declared that he was acting under section 3 (3) of the Boundary, Land, Tribute, and Fishery Disputes (Executive Decisions Validation) Ordinance of Ashanti,1 which he set out as follows:
“If in any case relating to the boundary of any land any doubt or question shall arise as to the correct interpretation or application of any such executive decision as aforesaid, the Court (which expression does not include a Native Court) may cause the boundary concerned to be fixed to the best of its ability, guided always by the principle of applying such decision as closely and with as much precision as the Court shall consider practicable. Where a boundary is, either as of first instance or on appeal, so fixed by the Supreme Court, no appeal shall lie from the Court’s judgment with respect to such fixing.”
By reason of the said provisions excluding or prohibiting an appeal from “the Court’s judgment with respect to such fixing,” it seems to me that in the matter before this court, the court is, strictly speaking, restricted to ascertaining whether or not the circumstances were such as to entitle or justify the learned trial judge to proceed to adjudicate on the only issue capable of being tried under section 3 (3) of Cap. 144 above set out; for if the circumstances were such as to give rise to the special jurisdiction under the aforesaid subsection and entitle the learned trial judge to proceed to an adjudication, then, no matter how palpably wrong he may be in his interpretation of the material executive decision, his conclusions on relevant subsidiary issues of fact or law, and his ultimate main judgment fixing a boundary, the said judgment would be immune from impugnment because no appeal lies. If, however, the circumstances of the case make it to fall outside the four corners of an appropriate and proper case under the aforesaid
subsection, but nevertheless the learned trial judge proceeded to deal with it under the said subsection, then, of course, it would be the question of his right to adjudicate on the case at all, not his decision with respect to the fixing of a boundary, which would be really the main, and possibly, the only, point in the appeal which therefore would lie and be properly before this court.
So in Konadu v. Akwasi2 the plaintiff claimed that an executive decision demarcated a boundary line between two points and claimed an order for the fixing of the boundary, and his claim was upheld. The defendant who resisted the claim on the ground that the executive decision in question did not fix a boundary as claimed, appealed against the judgment against him. At the hearing of the appeal the provisions prohibiting appeal were invoked by way of preliminary objection. The objection was resisted on the ground, which was the substantial defence to the plaintiff’s claim, namely, that the executive decision did not fix a boundary and had not to be interpreted to determine the course of a boundary between two points as claimed by the plaintiff. The appeal court upon examination of the instrument was satisfied that it did not fix a boundary and that the defendant’s contention was right, and over-ruled the preliminary objection as the case was not one that came under the aforesaid subsection, but was a case of ownership of land outside the scope of the aforesaid subsection.
Now when, then, may a case concerning a boundary, and the decision of which is dependent on the interpretation or application of a validated executive decision, be said properly to fall within the four corners of an appropriate and fit case under section 3 (3) of Cap. 144? In the state of the decisions in the relatively few cases decided by the now defunct West African Court of Appeal as to the meaning and scope of the provisions of that section 3 (3), the answer to the question posed cannot be said to be “dead easy.” However, a fairly acceptable answer is—a case may be said to be properly within the contemplation of section 3 (3) of Cap. 144 when there is really outstanding for the determination a real issue of, or as to, conflict of views concerning the proper interpretation or application of the terms of the executive decision on which the determination of the boundary depends.
Is the instant case one in which such a real issue of conflict of views concerning the proper interpretation of the executive decision existed or could have legally existed? Let us examine the indisputable facts and circumstances leading to the institution of the action, which are these. On 19 April 1909 the predecessors-in-title of the parties with their respective subchiefs and elders signed an agreement whereby they acknowledged, recognised, and accepted certain natural features set out and specified in the agreement, as constituting or forming the boundary between their contiguous stool lands on the right bank of the River Adra (or Oda). They had been disputing about what was the proper boundary between their said contiguous stool lands, and Captain Armitage, then Commissioner of what was the Southern Province of Ashanti, upon being directed to take steps to settle the dispute between them, proceeded
firstly to study earlier inspection reports by other commissioners concerning the area in dispute, and then secondly to re-inspect the whole area, accompanied by the representatives of the parties. He ultimately decided on the features which should constitute the boundary between them, persuaded them to accept the same, and reduced the same into the agreement which they signed before him on 19 April 1909.
It was subsequently affirmed or approved by Sir Francis Fuller, Chief Commissioner, on 30 May 1909. It is exhibit C in the record of appeal. When the settlement of the boundary was reported to the Colonial Secretary he expressly requested that the boundary should be “beaconed” (pillars fixed along it) without delay (see exhibit E), and this appears to have been undertaken some time during November 1909 (see exhibit G). Thereafter nothing of any great significance appears to have happened for a very long time. On 16 July 1935 however, the Chief Commissioner addressed a letter to the District Commissioner, Bekwai, (exhibit H) in which he wrote:
“Re Denyase-Land Dispute⎯An allegation had been made by Denyasehene that the subjects of Bekwaihene have cultivated farms on Denyase portion of the land in dispute, and a similar complaint has also been made by Bekwaihene against Denyasehene. I am informed that the boundary between these two chiefs has already been demarcated with cement pillars; and I shall be glad if you will inspect the land in question, and if you find that the followers of either party have committed trespass, you will please instruct the chief concerned to turn his people off the land.”
It seems clear therefore that by July 1935 the parties were in dispute as to the executive decision. All the records about this new dispute in 1935 are not available, but there is exhibit 4, a letter dated 20 February 1936 from the District Commissioner, Bekwai, to the Chief Commissioner in the following terms:
“Bekwai-Denyase Boundary
With further reference to Your Honour’s letter No. 3612/15/07 dated 14 December 1935 I now have to report that I have completed the work on the above boundary.
2. I have placed five additional concrete pillars along each of the sections A-B and C-D, and E-F (vide paragraph 4 of my letter No. 689/38/35 dated 22 August 1935) and I feel justified in reporting that the boundary as settled by Sir C. Armitage is now safely fixed.
3. I have been especially careful to place an adequate number of pillars near farming areas and at each ‘starting point.’
4. Finally, Your Honour will wish to know that representatives of both stools accompanied me while I was carrying out all the above operations and on all occasions expressed satisfaction at the points fixed.
(Sgd.) Malcolm Miln
Acting District Commissioner.”
Now what is the full import and significance of this letter? The Chief Commissioner’s letter dated 14 December 1935 mentioned in it is, unfortunately, not available to throw the fullest possible light on the letter exhibit 4, but even so, it seems to me to be sufficiently clear that in accordance with the instructions of the Chief Commissioner, the new dispute as to the actual application of the Armitage Agreement of 1909 to demonstrate clearly the course of the boundary, had been settled by Miln, Assistant District Commissioner, by his fixing additional
pillars between those fixed immediately after the 1909 settlement, so that the assistant district
commissioner felt “justified in reporting that the boundary as settled by Sir C. Armitage [who had apparently become a Knight by that time] is now safely fixed.” I shall return again to this subject of what I propose to refer to as “the Miln Settlement of the dispute in 1936 as to the actual application of the Armitage executive decision” to consider its legal effect in relation to the rights of the parties in the land in dispute.
Meanwhile, continuing with the outlining of the main events, it appears that after the fixing of the Miln pillars, although there were from time to time minor complaints from both sides of crossings of the boundary, there was no major outburst of conflict between the parties up to 1936. On 5 November 1956, however, the occupant of the Denyase stool for whom the defendant has been substituted filed a writ in the Asantehene’s Grade A1 Court claiming:
“Judicial relief from the defendant to show cause why, without the knowledge and consent of the plaintiff, the defendant and some of his subjects have trespassed and are farming on Denyase stool land beyond the official boundary laid down by Captain Armitage and traversed by Mr. Miln, then District Commissioner, Bekwai, the existing boundaries between the plaintiff’s land and defendant’s being the particulars of the boundary set out in the Armitage Agreement between the parties, exhibit C.”
It is not clear whether the defendant was served with this writ or not, but about sixteen days after the filing thereof the defendant (now the plaintiff in the instant proceedings) instead of appearing in the Asantehene’s Court to meet the challenge of the writ issued there, with the obvious object of stultifying the hearing of that summons, went to file in the Supreme Court on 21 November 1956 the writ of summons which originated the proceedings resulting in this appeal. The pretext was that by the terms of section 3 (3) of Cap 144, the local court was dependent on the interpretation of a validated executive decision. But as to this, Lord Asquith in Chief Kofi Owusu v. Dapaah3 has pointed out that it is only when an executive decision turns out to be, or is, “hard of interpretation [that] then it may be construed by the Chief Commissioner or the Supreme Court.” So that the case could have proceeded in the Asantehene’s Court until the court found it hard or difficult to interprete or apply the validated executive decision when, upon the court making announcement of its difficulty, the plaintiff could have applied for adjournment of the case pending prosecution of proceedings in the Chief Commissioner’s or the Supreme Court to secure the construction of the executive decision on which he was relying. As it happened, however, there was, in fact, no difficulty of interpretation or application about the executive decision, in the particular circumstances of the case.
Now why do I say so? Before answering, I would return, as promised, to the matter of “Miln’s Settlement of the dispute in 1936 as to the actual interpretation or application of the 1909 executive decision.” On returning to that matter, let us first remind ourselves about the circumstances, which are these: Captain Armitage settled the principal boundary features or marks which were to constitute the boundary between the parties and had five pillars fixed along the said boundary in 1909. Yet the gaps between the pillars were such as to cause uncertainty and misunderstanding about the boundary between the parties, and by 1935 dispute between them as to the proper course of the said boundary came to a head. By July 1935 a report concerning the said dispute reached the Chief Commissioner, and it became necessary to send along an officer to look into and effect settlement, more or less in the same way as Captain Armitage had gone to effect settlement in 1909, and, indeed, in the usual way in which these boundary disputes among the chiefs were dealt with by the administration in Ashanti.
In this particular instance, having regard to the Armitage settlement and the pillars fixed in consequence of it in 1909, the obvious manner or mode of dealing with the new situation which presented itself was—to re-inspect the boundary as “beaconed” or “pillared” from 1909, and take steps to clarify it or trace its course in such a practical way as to make the whole course clearer, more easily seen, and better understood by both parties and their subjects. To Miln, Assistant District Commissioner, fell the lot of taking the necessary and appropriate steps towards the ultimate settlement of the dispute in the manner indicated. We have his report, exhibit 4, and know therefrom how he went about the work. It appears that the boundary was divided into three sections A—B, C—D, E—F, though by whom and when, we are unable to ascertain. The solution of the problem presented itself to him as fixing more pillars between
each section whereby the whole course of the boundary may become more clearly marked and more conspicuous. In the end he felt “justified in reporting that the boundary as settled by Sir C. Armitage is now safely fixed.”
The most important part of the whole operation, however, for our purposes, is that he did everything in the presence of representatives of the parties, and, as he states in his report, “on all occasions [they] expressed satisfaction at the points fixed.” After the completion of his operations, the representative of the plaintiff, no doubt at his (the commissioner’s) request, certified in the Provincial Boundary Book, Western Province, Ashanti, as follows: “I was personally present throughout the two occasions when the district commissioner demarcated Bekwai-Denyase boundary, and I was perfectly satisfied the boundary as marked by the district commissioner was correct.” The representative of the defendant signed a similar certificate in the same boundary book (see exhibits 3, 8 and 9). In the circumstances outlined above, what is the full import and significance of the Miln operations? Surely, the answer is that the operations constituted a settlement of the then subsisting boundary dispute between the parties, which settlement was effected by the practical interpretation or application of the executive decision in, or to, an actual demarcation of the boundary which was agreed or consented to and accepted as accurate and correct. And having been so agreed as correct between the parties, it is, in my view, binding on them, especially when a long period of twenty years (from 1936 to the date of the filing of the writ in the Asantehene’s Court) elapsed without any step being taken on the part of the plaintiff to set aside the said demarcation.
If authority be required as to the binding effect of such an agreement as to, or acknowledgement of, a boundary whereby a boundary dispute is terminated, the same is available in the case of Kofi III v. Gyeabour II. In the joint judgment of the court (Kingdon, Petrides and Graham Paul C.JJ.) the following appears4:
“There are two points which arise for decision in this case, one is the effect of Exhibit ‘A’ upon the rights of the parties . . .
As to the first point, Exhibit ‘A’ is a record of an executive enquiry held in 1913 by Mr. Fell, Commissioner of the Western Province of Ashanti, into a claim by the chief of Nkwanta against the chief of Bechem in which the chief of Nkwanta claimed ‘land from where Obukrakura River crosses the Kumasi Road till it joins the Kosu River.’ The dispute then terminated in an agreement being reached between the parties and signed in the presence of Mr. Norris, Acting District Commissioner, whereby it was agreed — ‘1. The boundary between Bechem and Nkwanta to be the Thalweg of the Obukruwa-su to where it joins the Adingkra-su thence to the Boa-su following the thalweg of the Boa to the point where the Kosu joins it’.”
It was held that this agreement which terminated the dispute was binding — although the proceedings were never approved or confirmed by the Chief Commissioner nor officially recorded in the Boundary Book to constitute it an executive decision under section 3 (1) of Cap. 144. The West African Court of Appeal stated, “We unhesitatingly uphold the view of the Asantehene’s ‘B’ Court that the 1913 agreement stopped at where the Boa and Kosu Rivers join.”5 But, perhaps, the argument may be advanced that the part which the representatives of the parties played in the Miln operations is not sufficiently clear and precise to warrant the conclusion of an agreement between themselves, clearly understood by themselves, the said representatives of the parties. Should such argument be put forward, although there would not be much substance in it, there would, at any rate, be available the indisputable admissions, expressly made in the matter certified in the Boundary Book of the Western Province—see exhibit 3—as well as impliedly by conduct in taking no steps for a long period of twenty years to set aside the Miln demarcation, which will be equally and conclusively against the plaintiff.
Turning now to answer the question posed earlier, namely, why did I say earlier that no question of difficulty of interpretation of the 1909 executive decision existed or could have arisen at the trial of the action in the Asantehene’s Court, the answer is that by reason of the acceptance by the parties of the Miln demarcation as correct, no question of a further interpretation or application of the said executive decision contrary to Miln’s demarcation could legally arise at all. In short the parties were estopped or precluded from raising the contention that the said executive decision should be interpreted or applied contrary to the Miln interpretation or application of it and the consequential demarcation according to it. In those circumstances, it seems to me that the Asantehene’s Court was properly seised of, and possessed full and plenary jurisdiction over, the case instituted by the present defendant before it, not only for the reason above indicated that the parties were estopped from applying for an interpretation and a consequential demarcation contrary to the Miln demarcation but for the further reason that in any event the question whether the Miln demarcation operates as estoppel against the parties fell to be considered as a vital preliminary issue before the court
could, assuming it is able to hold that the Miln demarcation does not operate as estoppel, proceed to exercise the very narrow and limited jurisdiction conferred upon it of interpreting the executive decision and then fixing the boundary according to that interpretation.
But it appears to me that the court, when exercising only this very limited jurisdiction conferred by section 3 (3) and having power only to “cause the boundary concerned to be fixed to the best of its ability,” has not even the jurisdiction to investigate if a matter is within its competence, and that it is only in the plainest possible case where interpretation of an executive decision is necessary, that is to say, where no other subsidiary issue arises and it is a clear, unambiguous, and indisputably plain case where an executive instrument, by reason of its being “hard of interpretation,” needs to be construed, that the court will be entitled to exercise jurisdiction. I find support for my view in the only judgment which is envisaged to be given, i.e. a “judgment with respect to such fixing,” against which no appeal shall lie. It appears to me, therefore, that when in the course of the trial the issue of estoppel was expressly raised by an amended defence in the following terms:
“The defendant will contend that the Armitage boundary was traversed with the consent of both parties … in 1936, and additional pillars erected by District Commissioner Miln and both parties issued certificates acknowledging the Miln boundary as correct interpretation of the Armitage boundary. In the premises plaintiff is estopped from denying that the boundary as traversed by Miln is the correct interpretation and demarcation of the Armitage boundary”;
the judge should have stopped further progress of the enquiry under section 3 (3); and having then, in March 1962, plenary powers to hear what in substance was a claim to ownership and possession of land by virtue of section 29 of the Courts Act, 1960,6 (see also Gyapon v. Kwabena 7) caused, not only the case before him but also that which was pending in the Asantehene’s Court, to be transferred to himself as exercising the ordinary jurisdiction of a judge of the High Court hearing a case relating to ownership of land, and tried both cases consolidated as ordinary land cases. He did not do that, however, but went on with the enquiry under section 3 (3), and in the end did not deal with the issue of estoppel raised at all, for which reason alone, apart from others, his judgment in my opinion cannot be supported. That the defendant was entitled to raise the question of estoppel is beyond doubt, and that is borne out by the court allowing it. Moreover in his general submissions on the case, the defendant’s counsel pressed and stressed the point as follows:
“In 1935 District Commissioner Miln fixed pillars along the Armitage decision [demarcation]. Parties agreed that the Miln demarcation was satisfactory [correct]. The district commissioner interpreted the Armitage decision and neither party can re-open the matter again. Plaintiffs have waited too long to challenge the district commissioner’s demarcation.”
To appreciate the force of this last submission, reference might be made to “the principle of presumption of regularity” which the Privy Council invoked in Chief Oloto v. Attorney General.8 In that case the Oloto family of Lagos whose lands were acquired by the Government of Nigeria by certificates of title dated 1910 and 1937 respectively issued after acquisition proceedings under the Public Lands Ordinance claimed in 1948 compensation alleging that the same had not been previously paid as provided under the Ordinance. The Board held that on the principle that, after the lapse of so long a time, there was a presumption that everything had been done regularly in accordance with the Ordinance, the appellant had failed to displace the presumption and his claim failed. Lord Hodson delivering the judgment said this9: “In their Lordships’ opinion the presumption of regularity is strong as to all the lands [acquired]. They would adopt the language of Knight-Bruce, V.C. in Delarue v. Church ((1851) 20 L.J.Ch. 183 at p. 185) when speaking of a grant of annuity made in 1817 under an Act of Parliament passed in 1816: ‘It is sufficient to say that almost anything ought to be presumed, after such a length of enjoyment, capable of supporting the grant’.”
In the case referred to by the learned Lord, where trustees acting under an Act of Parliament, after granting an annuity and making payments in accordance with its terms from 1817 to 1848, took the view that the Act did not authorise the grant and the same was therefore void and therefore declined to continue payment, whereupon the annuitant filed her bill in Chancery praying for declaration of her right to receive the annuity, the full text of Knight-Bruce V.C.’s statement culminating in his enunciation of the “principle of presumption of regularity,” is the following10: “. . . this annuity . . . was granted as far back as May 1817. From the month of May 1817, the annuity was regularly paid up to the year 1848, a period of more than thirty years, without opposition or observation, during which time those who have received it have regulated their habits and mode of life upon the faith of this provision. Now, considering that there are thirty years during which this property has been peaceably enjoyed, it is consistent with the whole course of authority and with all the analogies of our law, to presume almost anything capable of supporting such a grant . . . It is sufficient to go the length to which the Courts [of Common Law] go in some instances and to which they went in Lord Mansfield’s time. It is sufficient to say that almost anything ought to be presumed, after such a length o f enjoyment.”
In an earlier case Nicholls v. Leeson11 where an annuity given by will to a relation for his life was regularly paid from 1728 to 1744 without any deduction of land tax, but after 1744 it was claimed that it was subject to such deduction, and it was argued that, “Persons are entitled to be relieved against a mistake in law and equity, as well as a mistake in fact.” Hardwicke L.C. held12:
“There is no just ground to decree back an account of these arrears, or a refunding, and it would be of a mischievous consequence to do it … I go upon the reason of other cases, and on this general rule, that where the annuity is given to a relation for life … if it has been paid for any length of years, and no deduction has been made on account of land tax, nor was it owing to any fraud or imposition on the receiver, I will presume it has been so paid by the mutual
consent of both sides, and if there should arise any quarrel between the payer and receiver afterwards, the payer is not entitled to be relieved.”
The cases indicated the wide range of circumstances in which the principle of presumption of regularity can or may be applied; and so in the circumstances of this case, where the plaintiff accepted the Miln demarcation as far back as 1936 and the defendant and his subjects on the faith and strength of that acceptance of the Miln boundary as correct for the long period of twenty years (up to the time of the action in the Asantehene’s Court) have regulated their farming activities and the economic affairs of their stool accordingly (note, for example, a timber felling agreement granted even to the plaintiff when he was a contractor), it seems to me there is a strong case of estoppel against the plaintiff, which it is manifestly contrary to the elementary principles of fairness and justice to disregard.
The learned trial judge when he came to consider the Miln demarcation observed as follows:
“I indicated earlier on that I am disregarding the Miln demarcation, if demarcation it was. I do so because Miln when he did so, did not intend to make a fresh settlement of the boundary between the parties. He was only trying to interpret the decision of Captain Armitage as validated. If his interpretation is what was described by the caretaker of Denyase lands—then he erred.”
Pausing here and commenting on the above observations of the learned judge, in the first place, his remarks that, “Miln did not intend to make a fresh settlement of the boundary between the parties” rather gives the impression that he (the learned judge) did not fully appreciate what I may describe as the Miln intervention in the Armitage boundary demarcation between Bekwai and Denyase, for, undoubtedly, Miln did go to make a fresh settlement. A careful study of his report to the Chief Commissioner, exhibit 4, explains the whole situation. The Armitage demarcation was clear to everybody at the points where the five or six pillars fixed in 1909 were located. The connections, however, between those pillars, i.e. how the course or line of the boundary should pass or go along in the gaps made by those principal boundary pillars had come to be a problem, because both sides were complaining that their respective boundaries
had been crossed by the other side. Miln went to settle that fresh dispute so that each side may recognise the proper or true course or line of the Armitage boundary, particularly, where the said boundary line passed between the gaps made by the original pillars, accept it, and keep to its side of the boundary. It is, of course, an interpretation of the original Armitage demarcation, but the most important thing about it was that it was done in the presence of and, in effect, with the co-operation of both sides so that they might have the chance to express their disapproval, if they had any, and they did not express disapproval but rather approval and satisfaction.
In the second place, one cannot help expressing some measure of surprise that the learned trial judge should have felt so assured and confident as to declare so categorically that “Miln erred.” Miln, after all, was deputed by the Chief Commissioner and was, therefore, virtually the representative of the Ashanti governmental administration which in reality was the authority responsible for all the administrative settlements of boundary disputes between the local chiefs. Accordingly, he would have at his disposal the whole of the resources of the administration, e.g. files containing reports not only of other administrative officers but of survey officers who had dealt with any aspect of the particular boundary dispute at any time; also drawings, sketches and plans having any bearing on that boundary dispute; possibly old
officers who worked under Armitage when he carried out his operations from whom further information could be obtained, and every conceivable information which could be expected to be available in a department which had once been engaged in demarcating a particular boundary. In these circumstances, it does seem rather surprising that one who had none of these advantages and who appears to have gone on so much conjecture and assumption as did the learned judge, should so confidently declare that Miln erred, thereby implying that he has not erred. The learned judge after confidently declaring that “Miln erred” went on to say: “In any case it is not necessary for me to find out exactly what his demarcation (orctraverse) was, for the parties before me have not asked me to do so. What they have asked for is the correct interpretation of the validated decision of Captain Armitage.”
This last statement would appear to be a misconception on the part of the learned judge, for the defendant filed no counterclaim claiming interpretation of the executive decision and fixing of the boundary according to such interpretation. What the defendant did was to plead, in answer or reply to the plaintiff’s statement of claim, that:
“(3) By an order of the Asantehene’s Court Al made in the case of Nana Akosa Yiadom II v. Nana Kwaku Ankrah III & others, a plan was made by licensed surveyor Mr. N. Aidoo showing the boundary between the plaintiff and the defendant herein in terms of the validated executive decision. The plaintiff herein approved of the said plan.
(4) The defendant will contend that the Armitage boundary was traversed with consent of both parties (plaintiff and defendant) in 1936 and additional pillars erected by District Commissioner Miln, and both parties issued certificates acknowledging the Miln boundary as correct interpretation of the Armitage boundary. In the premises plaintiff is estopped from denying that the boundary as traversed by Miln is the correct interpretation and (consequential) demarcation of the Armitage boundary. The defendant does not oppose the plaintiff ‘s claim for the fixing of the boundary between the plaintiff and the defendant as described in the said validated executive decision.”
The defence in terms as above can only mean that the defendant does not oppose a demarcation of the validated executive decision of Captain Armitage according to the Miln interpretation of it, which it is pleaded that the plaintiff is estopped from denying as being the correct interpretation. When therefore the learned trial judge stated that “it is not necessary for me to find out exactly what his [Miln’s] demarcation (or traverse) was, for the parties before me have not asked me to do so,” he (the learned judge) clearly and undoubtedly mis-directed himself as to the defendant’s defence in such a grave and serious manner as to vitiate his whole judgment.
This last point as to the learned judge’s grave and serious misdirection of himself as to the very nature and substance of the defendant’s defence is one of many other defects about the learned judge’s judgment which could be discussed in detail and pointed out, if the merits of the case, such as the manner in which the learned judge interpreted the executive decision, contrary even to the expert opinion of the regional surveyor whom he himself called, were open for discussion and criticism in this appeal. As I have indicated, however, by reason of the statutory provisions governing appeals against or from judgments purporting to be given in, or as a result of, proceedings under section 3 (3) of Cap. 144, the appeal court is confined to ascertaining whether the circumstances make it a case properly cognisable under that section
or not. In the instant case, the substantial issue was whether the Miln operations in 1936 which purported to interpret the Armitage executive decision and indicated the course or line of the boundary as that boundary passed between the five or six pillars fixed in 1909, and which was accepted as correct by both sides, operates as an estoppel to any further claim for interpretation of the executive decision. That issue I am satisfied the court could not decide under its powers under section 3 (3) of Cap. 144, and indeed, the learned judge has not
dealt with it.
In so far as he purported to ignore that issue and proceeded to a demarcation contrary to it, I am satisfied his decision is appealable to this court and is plainly wrong. I would therefore allow the appeal and set aside the learned judge’s judgment interpreting the Armitage validated executive decision of 1909 in complete disregard to the Miln interpretation thereof accepted as correct by both parties, and the consequential fixing of boundary which he made after that interpretation.
I think the ends of justice will best be served by sending back the writ with directions that it should be dealt with by another judge as an ordinary claim for ownership of land together with civil summons No. Crt. A/C. 5/56 entitled Nana Akosa Yiadom II v. Nana Kwame Poku IV filed on 5 November 1956 in the Asantehene’s Grade Al Court which is still pending undetermined, and which should be transferred to the High Court and consolidated with the writ of summons (L.C. No. 62/56) by which the proceedings resulting in this appeal was commenced.
I would award the defendant-appellant the costs of this appeal assessed at £G144 14s. 0d. and the costs of the proceedings in the court below. The costs of the new trial hereby ordered will abide the event.
JUDGMENT OF BLAY J.S.C.
In this appeal learned counsel for the respondent has raised a preliminary objection as to the propriety of the appeal to this court. He bases his objection on the provisions of section 3 (3) of the Boundary, Land, Tribute and Fishery Disputes (Executive Decisions) Ordinance.13 The subsection reads as follows:
“If in any case relating to the boundary of any land any doubt or question shall arise as to the correct interpretation or application of any such executive decision as aforesaid, the Court (which expression does not include a Native Court) may cause the boundary concerned to be fixed to the best of its ability, guided always by the principle of applying such decision as closely and with as much precision as the Court shall consider practicable. Where a boundary is, either as of first instance or on appeal, so fixed by the Supreme Court, no appeal shall lie from the Court’s judgment with respect to such fixing.”
I would have had no hesitation in upholding counsel’s objection had the case proceeded in the court below within the four corners of the pleadings originally filed in the suit. But at a later stage in the proceedings the court allowed an amendment of the statement of defence by the addition of the following averment:
“The defendant will contend that the Armitage boundary was traversed with consent of both parties (plaintiff and defendant) in 1936 and additional pillars erected by District Commissioner Miln and both parties issued certificates acknowledging the Miln boundary as correct interpretation of the Armitage boundary.
In the premises plaintiff is estopped from denying that the boundary as traversed by Miln is the correct interpretation and demarcation of Armitage boundary.”
It seems to me, therefore, that not only was the court called upon to interpret the executive decision simpliciter, but also to decide the further question as to whether the plaintiff was estopped from seeking the interpretation at all. The court having determined the two issues together in the same suit I am of the view that an appeal from its decision cannot be shut out by reliance on section 3 (3) of Cap. 144. A person dissatisfied with a decision on a plea of estoppel has in my view the unfettered right to test the correctness of that decision by appeal. Perhaps it would have been more satisfactory if the court had decided the question of estoppel as a preliminary issue before proceeding to the interpretation of the executive decision should it hold that the plaintiff was not estopped from seeking the interpretation. A party dissatisfied with the decision on the preliminary issue could then have appealed therefrom without waiting for a final interpretation of the executive decision from which no appeal lies. That procedure not having been adopted, I am of the view that an appeal lies from the judgment of the court except that in the event of the appeal court holding that the plea of estoppel failing it would then have no jurisdiction over the executive decision by reason of section 3 (3) of Cap. 144. 1 am therefore of the view that the appeal is properly before this court and the preliminary objection fails. I am furthermore of the opinion that the appeal should be allowed on the merits for the reasons stated in the judgment delivered by my brother Adumua-Bossman.
JUDGMENT OF OLLENNU J.S.C.
This is an appeal from a judgment of the High Court, Kumasi. The main dispute between the two parties is the correct interpretation of application of an executive decision given by Captain Armitage on 19 April 1909 confirmed by Sir Francis C. Fuller, Chief Commissioner of Ashanti, and thereby validated by virtue of section 3 of the Boundary, Land, Tribute, and Fishery Disputes Ordinance,14 now repealed. A certified copy of the said decision was annexed to the writ of summons. As to the cause of action the plaintiff pleaded in paragraph 6 of his statement of claim that:
“… of late a doubt has arisen between him and the defendant as to the correct interpretation of the said validated executive decision concerning the boundary”;
and in paragraph 7, he set out his claim as follows:
“7. Wherefore the plaintiff ‘s claim against the defendant is for the court to cause the correct boundary between the two stools to be fixed in terms of the said executive decision”
which is a restatement of his claim as appears on the writ of summons, to conform with the language of section 3 (3) of the Ordinance the material part of which is as follows:
“(3) If in any case relating to the boundary of any land any doubt or question shall arise as to the correct interpretation or application of any such executive decision as aforesaid, the Court (which expression does not include a Native Court) may cause the boundary concerned to be fixed to the best of its ability, guided always by the principle of applying such decision as closely and with as much precision as the Court shall consider practicable.”
In answer to paragraph 6 of the statement of claim the defendant pleaded in paragraph 2 of his statement of defence as follows:
“2. In answer to paragraph 6 of the statement of claim the defendant says that the boundary between the plaintiff and the defendant is properly described by the executive decision a copy of which is attached to the statement of claim.”
And as to the claim made by the plaintiff in the writ of summons and repeated in paragraph 7 of the statement of claim, the defendant pleaded in paragraph 4 of his statement of defence as follows:
“4. The defendant does not oppose the plaintiff’s claim for the fixing of the boundary between the plaintiff and the defendant as described in the said validated executive decision.”
The plaintiff joined issue with the defendant on his defence, and in reply to paragraph 2 of the statement of defence, he gave further particulars of the doubt which had arisen as to the correct interpretation or application of the said executive decision, and of the case in which the said doubt had arisen. He said:
“2. In further reply to paragraph 2 thereof, the plaintiff says that though the boundary appears to be properly described in the executive decision referred to in the statement of claim and statement of defence, yet there is a doubt now between the defendant and the plaintiff as to its correct interpretation, and this, in fact, has given rise to an action taken by the defendant against the plaintiff in the Asantehene’s Court.”
He finally pleaded in paragraph 3 of his reply as follows:
“3. The plaintiff says that having regard to the provisions of the Boundary Ordinance Cap. 144 such doubt about the correct interpretation of the aforesaid executive decision in respect of the boundary between the parties can only be resolved by the Land Court.”
At a later stage of the proceedings the defendant, with leave of the court, amended his statement of defence by renumbering the original paragraph 4 as paragraph 5, and adding a new paragraph 4 which reads as follows:
“4. The defendant will contend that the Armitage boundary was traversed with consent of both parties (plaintiff and defendant) in 1936 and additional pillars erected by District Commissioner Miln and both parties issued certificates acknowledging the Miln boundary as correct interpretation of the Armitage boundary.
In the premises plaintiff is estopped from denying that the boundary as traversed by Miln is the correct interpretation and demarcation of Armitage boundary.”
This amendment to the statement of defence did not in my view change or add anything to the issue joined between the parties, and the obligation which devolved upon the court therefrom, namely, to interpret the executive decision made by Armitage on 19 April 1909 and to cause the said boundary “to be fixed to the best of its ability, guided by the principle of applying such decision as closely and with such precision as the court shall consider practicable.”
It is significant that in the amendment to his statement of defence, the defendant did not plead that Miln fixed a new boundary between the parties, different from the one fixed by the executive decision of Armitage; rather, he pleaded that “the Armitage boundary was traversed with consent of both parties … by District Commissioner Miln”; meaning that the Armitage boundary has not been changed in any way; and that is exactly what was pleaded by him in paragraph 2 of his statement of defence where he averred as follows: “the defendant says that the boundary between the plaintiff and the defendant is properly described by the executive decision a copy of which is attached to the statement of claim.”
A validated executive decision has the force of a judgment. The law as I understand it is that if after a court of competent jurisdiction has adjudicated upon a dispute between parties and given a decision, both parties happen not to be satisfied with that decision, the said parties may submit their dispute to arbitration for re-adjudication; in such a case if the arbitration is proved to be valid, the award thereof would be binding on the parties and would supersede the judgment of the court, and that judgment will cease to have effect, it can no longer be binding on the parties, and cannot be enforced by one of the parties against the other: Yardom v. Minta III.15 The law on the point is discussed at some length in a ruling of the High Court in Akwei v. Akwei.16 As earlier observed, it is the case of the defendant, as it is that of the plaintiff, that the Armitage decision is binding upon each of them and that the only dispute or doubt they have, is the proper interpretation of that executive decision; that doubt is what the plaintiff called upon the High Court to resolve, to which request of the plaintiff, the defendant by his defence agreed. The decision of the High Court might or might not follow the Miln traverse, i.e. the defendant’s
interpretation, and in fact it did not; it is nevertheless the court’s own interpretation of the validated decision.
Three grounds of appeal were filed originally; eight others were substituted for those with leave of the court; and of those eight only four were argued; those four in effect substantially comprised the other grounds. The four grounds argued are as follows:
“2. The Court erred and misdirected itself when it said ‘In any case it is not necessary for me to find exactly what his demarcation (i.e., Miln) or traverse was; for the parties before me have not asked me to do so.’ The defendant by his amended defence (page 44 of the record) granted (page 54) asked the learned judge to decide on the Miln boundary and hold the parties to it by way of estoppel. By the misdirection above quoted the judge failed to decide one of the major issues posed for determination.
3. The plaintiff’s action as framed was misconceived because upon a proper interpretation of section 3(3) of Cap. 144 the court’s interpretation of a validated decision simpliciter could not ground a cause of action. The section envisages an ordinary and regular land suit pending in a court of competent jurisdiction (which may be a local court or a High Court) and in the course of that suit the question of the interpretation of a validated decision arises. Then and then alone do the provisions of section 3 (3) of Cap. 144 come into effect.
In this case without showing that there was a pending case in which the interpretation of a validated decision was essential to its determination, the plaintiff just asked the court to interpret a validated decision …
5. Whatever was the original Armitage boundary, the parties having extra-judicially accepted the interpretation of it by Miln were bound by such interpretation and were estopped from seeking a Court interpretation of the Armitage boundary. The plaintiffs not only accepted the Miln boundary but even protested against alleged violations of it by defendants (See Exhibit 5) …
8. The learned judge erred in ignoring evidence of ownership and acts of ownership and possession led particularly those relating to the period after the Armitage boundary in view of the sharp conflict as to where exactly the boundary ran after the fourth point. These acts of ownership could clearly have assisted the judge in deciding which of the two versions was true.”
The plaintiff too filed notice of preliminary objection contending that the court “has no jurisdiction to entertain the appeal and that no appeal lies from the judgment of the High Court in this matter.”
It was submitted on behalf of the defendant in support of grounds 2 and 5, that the learned judge of the High Court misdirected himself in not determining the boundary as traversed by Miln, and also erred in not holding that having consented to Miln traversing the boundary, the plaintiff must be deemed to have accepted the boundary so traversed by Miln as the correct interpretation of the Armitage’s executive decision and is estopped from denying that it is. It was submitted therefore that the only boundary which the- High Court could have been called upon to interpret is the one traversed by Miln, because that is an interpretation of, and has superseded, the Armitage decision. I do not agree with this submission. As the learned High Court judge stated: “Miln, when he did so (i.e., when he traversed the boundary) did not intend to make a fresh settlement of the boundary between the parties. He was only trying to interpret the decision of Armitage as validated.” The alleged Miln’s interpretation is not binding on the court.
Before proceeding further I should emphasise two important points, namely: (i) according to both parties there is one and only one validated decision with respect to the boundary between their two lands, and that one decision is the Armitage decision of 1909, and (ii) Miln never purported by what he did in 1936, to interpret and the parties never understood him to have interpreted the said Armitage decision of 1909.
As regards the first point the defendant’s second witness, the Krontihene of Denyase said in
cross-examination as follows:
“I agree that the Armitage boundary is the real boundary between us and Bekwai. Armitage actually fixed pillars on the boundary. The distance between them was too long and so other pillars were fixed by Miln.”
With respect to the second point, Miln himself, in exhibit 7, his report to the Chief Commissioner of Ashanti upon whose instructions he carried out the operations, said:
“With further reference to Your Honour’s letter No. 3612/15/07 dated 14 December 1935 I now have to report that I have completed the work on the above boundary.
2. I have placed five additional concrete pillars along each of the sections A-B and C-D and E-F (vide paragraph 4 of my letter No. 689/38/35 dated 22 August 1935) and I feel justified in reporting that the boundary as settled by Sir C. Armitage is now safely fixed.”
Again in a letter dated 13 September 1940 written to the defendant by the Acting District Commissioner, Bekwai, the Commissioner stated:
“I enclose herewith a copy of an agreement signed before Captain Armitage, C.S.P.A., on 19 April 1909.
2. I enclose also a copy of your letter of 11 March 1936. You will remember that the boundary as cut in 1936, was the boundary laid down by Captain Armitage in 1909, but that additional pillars were added to clarify the line.”
If it had been the defendant’s case either (i) that Miln made a new decision apart from the Armitage decision or (ii) that Miln interpreted Armitage’s decision, the principle of presumption of regularity of his action could be invoked and the question of estoppel would necessarily have arisen. But neither of these is alleged by the defendant.
It follows that (i) there can be no estoppel by reason of the plaintiff’s acquiescence in a new boundary demarcated by Miln because no such boundary was demarcated other than the Armitage boundary; and
(ii) there can be no estoppel by reason of the plaintiff’s acquiescence in an interpretation of the Armitage boundary by Miln, because there has been no such interpretation.
As shown already, the parties never discarded the validated Armitage decision; therefore the only thing which the court can be called upon to do in a dispute between the parties over their boundary is to interpret the Armitage decision itself as recorded in the Boundary Book, and not any purported extra judicial interpretation of it. In fairness to the learned judge it must be pointed out that he gave due consideration to the urge by the defendant upon him to accept and adopt the Miln traverse as the correct interpretation of the Armitage decision, and having done so, he came to the conclusion that the interpretation which Miln sought to place upon the validated decision is wrong. He said: “If his interpretation [meaning Miln’s] is what was described by the caretaker of the Denyase lands—then he erred.” He went on, “In any case it is not necessary for me to find exactly what his demarcation (or traverse) was, for the parties before me have not asked me to do so. What they have asked me for is the correct interpretation of the validated decision of Captain Armitage dated 19 April 1909.” In my opinion the learned judge was quite right in so directing himself.
I would repeat that from the evidence on the record, what Miln is alleged to have done cannot be called a validated executive decision binding upon the parties to this appeal, neither can it be an award of a valid arbitration held in accordance with customary law; in that sense also, even when viewed as an interpretation of the validated Armitage decision, it cannot operate to estop the plaintiff from seeking judicial interpretation of the sole existing validated decision, as provided in section 3 (3) of the Ordinance.
Arguing ground 3 counsel for the defendant submitted that the High Court was incompetent to entertain the suit because upon a proper interpretation of section 3 (3) of Cap. 144, it is a condition precedent for instituting action for an interpretation of a validated decision, that there should be a land suit pending in a court of competent jurisdiction, and that the need to interpret a validated decision cannot ground a cause of action; counsel cited Gyapon v. Kwabena II,17 with particular reference to an obiter of the report where the West African Court of Appeal said that the opening words of section 3 (3) of the Ordinance18 “seem to pre-suppose the existence of a ‘case’ in a Court and that the doubt or question arises in regard to the exact boundary in that case. They do not appear to authorise the filing of an action in a Court not exercising jurisdiction in land cases for the express purpose of answering such question or of resolving such doubt.”
I would say at this stage, that even if that interpretation of section 3 (3) of the Ordinance is correct, the submission of counsel on this point would fail, because the plaintiff not only pleaded but also proved by conclusive documentary evidence, exhibit K, that at the date he instituted the present suit, there was pending in the Asantehene’s Court Al a case in which doubt had arisen as to the correct interpretation or application of the said executive decision. Therefore, the condition precedent, according to the said section 3 (3), as interpreted in the obiter in Gyapon v. Kwabena II, supra, was fulfilled to give a cause of action.
Again if that interpretation is correct, then it must follow logically that one and only one issue may be raised in an action instituted under section 3 of the Ordinance in consequence of a pending land suit, and that one only issue is the correct interpretation and application of the validated executive decision; and what other issues there may be must be left to the suit the pendency of which occasioned the suit for the resolution of the doubt as to the interpretation or application. Any other possible issue or issues there may be, may be litigated in that other suit in the normal way, but the suit for the interpretation of the executive decision must terminate with the decision of the court other than a native court in which it was instituted at first instance or in which it was raised on appeal.
But in my view the said interpretation which the West African Court of Appeal placed upon section 3 (3) of Cap. 144 in Gyapon v. Kwabena II, (supra), is not the sole interpretation which the section is capable of. The whole ordinance deals with dispute between two adjoining landowners as to their boundary which dispute has been settled by executive decision as distinguished from judicial decision and recorded in a Boundary Book. In the former Colony of the Gold Coast, provision was made in section 3 of the Boundaries Ascertainment Ordinance,19 for judicial determination of such disputed boundary; while in Ashanti, provision was made for their determination by executive decision. But in Ashanti, although the boundary is so settled and described in a validated decision, the interpretation which one side may place upon the description in the Boundary Book may conflict with the interpretation which the other party may place upon that same description, e.g., names of streams or other natural features may be used in describing the said boundary, and there may be more than one stream or such feature known by that name, or one party may know such a stream or feature by another name; therefore instances or cases may arise where the exercise by one party of rights he believes are vested in him in the land, based upon his interpretation of the executive decision, may conflict with those exercised by the other party based upon his own interpretation of the very same executive decision. It is for the purpose of settling such conflict of opinion as to the proper interpretation and application, judicially, that section 3 of Cap. 144 was enacted. In my opinion such conflict in the exercise by the parties of such rights, is a case relating to boundary of land in which doubt or question has arisen as to the correct interpretation or application of an executive decision.
Indeed, as distinct from a case in which the boundary has never been fixed, or is in doubt, to which, in Southern Ghana, Cap. 142 would have applied, a conflict between parties as to a boundary fixed by a validated decision is one solely in respect of a correct interpretation or application of the executive decision. Therefore the case which may go to court between parties to a validated executive decision is a dispute as to the correct interpretation or application of the said decision. Since by section 3 (3) of the said Cap. 144, the court which can entertain such a suit must be one other than a native court, and since at the date of the trial of this suit, the court of the Chief Commissioner of Ashanti, which was the only non-native court besides the High Court vested with jurisdiction in land causes, had ceased to exist, the High Court is the only court vested with jurisdiction to entertain the suit. Further, I am of opinion that since the main issue to be resolved in such a conflict is the correct interpretation or application of the validated executive decision, it will be unnecessary for a person to go, say, first to a local court and sue for a declaration of title or for trespass, plead there as the cause of action that an
interpretation placed by the defendant upon the validated executive decision is in conflict with his, the plaintiff’s, own interpretation, and thereafter hearing of the case in the local court be suspended for either party to institute fresh action in the High Court for interpretation of the said validated executive decision.
That is exactly what has happened in this case, for, as borne out by exhibit K, the writ of summons filed in the Asantehene’s Court Al, the defendant, plaintiff in that suit, sued the plaintiff, defendant therein, alleging that “the defendant and some of his subjects have trespassed and are farming on Denyase stool land beyond the official boundary laid down by Captain Armitage and traversed by Mr. Miln.” He then set out the said boundary as described in the validated executive decision, and upon that plea he claimed an order for injunction against the defendant, plaintiff in the present suit. The sole question which the Asantehene’s Court Al is called upon to decide in order to determine whether or not to grant the injunction sought, is the correct interpretation of the said validated executive decision. But by section 3
(3) of Cap. 144, the Asantehene’s Court Al being a native court, has no jurisdiction to make such interpretation.
Another important point is that the Asantehene’s Court Al was not competent to grant the relief sought, i.e. perpetual injunction the same being equitable relief, and not relief provided under customary law. Therefore what is the purpose of instituting that action in that court? I cannot see. The proper thing to do in such a case to save time and expense is for the action to be instituted in the High Court which is vested with jurisdiction to entertain any land suit and to grant any relief which might be claimed therein including the jurisdiction to interpret the validated decision. And of course it goes without saying that in any such suit the interpretation of the decision will be the main issue; any others will be ancillary and consequential; e.g., if the defendant is sued for trespass or for injunction on a plea that he has crossed the correct boundary, and the court’s interpretation agrees with the defendant’s interpretation, it will
necessarily follow that no trespass has been committed, and consequently no damages can be awarded, and no order for injunction can be made; but if the court should accept the plaintiff’s interpretation, then it will grant those ancillary reliefs.
In my opinion, therefore, the pendency of a land cause in a court is not an invariable condition precedent to the institution of an action under section 3 of the Ordinance, Cap. 144; a conflict of views on the correct interpretation or application of a validated executive decision is, in my view, a case which under the said section 3 constitutes a cause of action; that conflict or doubt may arise in the course of a case pending in court; it may also arise otherwise.
Arguing ground 8, counsel submitted that the judge of the High Court erred in not determining other issues raised in the case, particularly the issue of estoppel, and in that regard, he erred in ignoring evidence led by the defence of acts of ownership and power exercised by the defendant and his subjects on portions of the land, subsequent to the Armitage decision. This submission is misconceived; the defendant, in spite of his amendment, retained the new paragraph 5 of his statement of defence where he too agreed with the plaintiff in his claim that the court should fix the boundary “as described in the validated executive decision.” Thus the only issue joined between the parties is one for the interpretation and application of the validated Armitage decision; evidence of user of the land made by the defendant of portion of the land based upon his unilateral interpretation of the decision cannot assist the court in its task of interpreting that decision; it is only where the language of the decision proves to be uncertain or ambiguous that the court may seek aid outside the words themselves. In this case the court had no difficulty with the language. In the discharge of his duty in that regard, the learned judge said:
“This is not a claim for declaration of title to land. It is a claim for the interpretation of a boundary already laid down. Consequently in compliance with the well known cannons of construction I did not depart from the wording of the decision and the common sense everyday meaning of it except where it is necessary to do so in order to resolve an ambiguity.”
My view is that in this regard, the learned judge properly directed himself on the issue and on the material he was entitled to use in coming to his findings.
In this regard as also with regard to the preliminary objection reference was made by counsel to Konadu v. Akwasi II.20 In that case there were two executive decisions, one fixing a boundary up to a certain point; another fixing a boundary from the opposite direction to another point; there was an alleged third decision which purported to continue the boundary between the said two points. The plaintiff sued claiming a declaration that the three executive decisions had fixed the boundary between his land and that of the defendant. The defendant admitted that the first validated executive decision fixed portions of the boundary but denied that the third fixed the boundary in the manner claimed by the plaintiff. The court agreed with the contention of counsel for the plaintiff-respondent that the whole object of the Ordinance, Cap. 144 (then Cap. 120), was firstly, to validate executive decisions on boundary disputes, and, secondly, to provide machinery for their interpretation when they are vague and uncertain; but it held that
the third decision relied upon did not demarcate a boundary as alleged by the plaintiff, and consequently there was no executive decision within the meaning of the Ordinance; therefore the issue in the case was not interpretation and application of an executive decision, but that the suit was an ordinary land suit, and the section prohibiting appeal under section 3 (3) of the Ordinance did not apply. I am of opinion that the decision would have been different if the main issue in the case had been interpretation and application of an executive decision.
In support of the preliminary objection filed for the plaintiff, counsel for the plaintiff referred the court t0 the provision in section 3 (3) of Cap. 144, which prohibits appeal from a decision of the High Court exercising jurisdiction under the Ordinance, Cap. 144; the said provision is imperative and it is as follows:
“Where a boundary is, either as of first instance or on appeal, so fixed by the Supreme [High] Court, no appeal shall lie from the Court’s judgment with respect to such fixing.”
Counsel therefore submitted that the defendant has no right of appeal and the court has no jurisdiction to entertain the appeal. Counsel for the appellant on the other hand referred the court to section 8 (1) (a) and (c) of the Courts Act, 1960,21 which say:
“8. (1) The jurisdiction of the Supreme Court shall consist of—
(a) the hearing of appeals from any judgment of the High Court in any civil cause; …
(c) the hearing of appeals from any decision given by the High Court in any other matter whatsoever”; and submitted that since the said Act is subsequent to Cap. 144, it must be deemed to have impliedly repealed the provision in section 3 (3) of the Ordinance, Cap. 144 with regard to appeal, and to have provided a general right of appeal from any decision of the High Court given in any case.
I do not agree with the submission that the prohibition on appeal as contained in section 3 (3) of Cap. 144 was impliedly repealed by section 8 (1) (a) and (c). Section 8 (1) (a) and (c) merely lay down the jurisdiction of the Supreme Court as regards appeals from decisions of the High Court in civil causes and matters, it does not give a right of appeal; similarly the said section 8 (1) (b) also lays down the jurisdiction of the Supreme Court to entertain appeals from a decision of the High Court or circuit court in criminal matters, it does not thereby give a right of appeal to any person dissatisfied with a decision of the High Court in a criminal matter to appeal to this court; the right of appeal in such a case is provided in section 14 of the said Courts Act, 1960, and in other enactments. Thus in C.O.P. v. Akyeampong22 this court held that the jurisdiction given to the Supreme Court in criminal cases, by section 8 (1) (b) of the Courts Act, 1960, namely, “the hearing of appeals from any decision of a High or Circuit Court in a criminal matter exercised in accordance with the provisions of this Act or any other enactment,” can only be exercised in favour of a person who is specially given a right to appeal by the said Courts Act, 1960, and therefore the prosecution could not by reason of section 14 of the Courts Act, 1960, before its amendment by the Courts (Amendment) Act, 1962,23 appeal from a decision of the High Court or circui court in a criminal case.
Upon the same principle, the proper interpretation to be placed on section 8 of the Courts Act, 1960, is that the Supreme Court has jurisdiction to hear appeals brought to it from a decision of the High Court except in cases where the right to appeal is expressly taken away by statute. A decision given by the High Court exercising jurisdiction under section 3 of Cap. 144 is one such case.
As earlier observed, the only issue the High Court was called upon to decide, and the only one it decided is the proper interpretation of the validated Armitage decision. From such a decision there can be no appeal as laid down by law, i.e., in section 3, subsection (3) of the Ordinance.
For the reasons stated above, I would dismiss the appeal.
DECISION
Appeal allowed.
S. A. B.
