Division: IN THE SUPREME COURT
Date: 29 JUNE 1964
Before: OLLENNU, ACOLATSE AND APALOO JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. This is an appeal from a judgment of Bruce-Lyle J. delivered at Sunyani on 24 January 1963 which reversed a judgment of the Brong/Ahafo Central Local Court Division II. The proceedings commenced with a claim filed in the local court by the plaintiff, hereinafter called the appellant, for trespass to a portion of a farm situate at Mampong, Nkwanta, but the whole issue boiled down to a boundary dispute between a farm of the appellant and an adjoining farm owned by the defendant, hereinafter called the respondent.
The facts are very simple. The respondent was the wife of one Kwame Dapaah deceased. She and her said husband made separate farms which formed boundary with each other. Kwame Dapaah died about five years prior to the commencement of the dispute and was succeeded by one Kwadwo Nsiah, the first witness for the respondent. After Dapaah’s death, the respondent together with the said Kwadwo Nsiah, Dapaah’s successor, and other members of Dapaah’s family went over all the boundaries of Dapaah’s farm and she agreed with the family on the boundary between her farm and the farm of Dapaah which Kwadwo Nsiah had inherited. Kwadwo Nsiah later pledged the farm he had succeeded to to one Amma Donkor, the second witness for the appellant, and took the said pledgee Amma Donkor to the farm and pointed out all the boundaries of it to her. Kwadwo failed to repay the loan at the agreed time and in due course Amma sued and recovered judgment against him; she then attached and sold the farm at a public auction under a writ of fi. fa. in execution of her said judgment. The appellant was declared the purchaser at the sale; he went into possession of the farm thereafter, and was in possession at the date he issued the writ of summons.
Some time ago, the respondent laid claim to a small portion of the farm in the appellant’s possession; this, according to the appellant, happened about three years before the proceedings in the local court. The appellant resisted the claim, and continued to harvest cocoa from the farm as a whole; in consequence of that, the respondent lodged a complaint with the local council police against the appellant that he had stolen cocoa from her farm. The local council police investigated the matter but did not prosecute the appellant. Finding that the local council police could not help her, the respondent entered upon the portion she claims, and plucked some cocoa therefrom; that action of hers constituted the cause of action in the instant case.
The appellant gave evidence of the boundary shown to him by Amma Donkor, his second witness, the execution creditor; this was corroborated by the said Amma Donkor. The respondent also gave evidence of the boundary and called Kwadwo Nsiah to support her, but unfortunately for her, the evidence of Kwadwo Nsiah did not corroborate the respondent’s evidence. The local court magistrate inspected the farm. While at the inspection the appellant and his witnesses were able to point out to the local court magistrate the one boundary they each gave evidence of, and pointed out distinctive features on it; the said Nsiah and the respondent on the other hand disagreed; in fact Nsiah was unable to point out any intelligible boundary.
The boundary which the local court was called upon to determine is the boundary which existed between the farm made by Kwame Dapaah now owned by the appellant on the one hand and the farm made by the respondent on the other. Upon the evidence the decision involved two stages, (1) whether the boundary described by Amma Donkor, the second witness for the appellant, is the one which Kwadwo Nsiah, the respondent’s first witness, pointed out to her at the time of the pledge which took place shortly after he had succeeded to the farm, and if the answer to (1) is in the affirmative, (2) whether that is the boundary which the respondent and Kwadwo Nsiah agreed upon soon after the death of Kwame Dapaah.
The first point is a question of oath of Amma Donkor and the oath of Kwadwo Nsiah. The local court magistrate, for good reasons which are apparent on the face of the record, was not at all impressed with the credibility of Kwadwo Nsiah. He was however satisfied with Amma Donkor as a witness of truth so he accepted her evidence on that point, and impliedly held that the boundary which Amma Donkor described in her evidence and which she pointed out at the inspection is the one which Kwadwo Nsiah showed her on the occasion of the pledge.
The second point involved a choice between the evidence of the respondent on the one hand and Kwadwo Nsiah’s knowledge at the date of the pledge on the other, or a determination whether both of them were unreliable. Could it be that Kwadwo Nsiah forgot the boundary so soon after he and the respondent had agreed upon it or could it be that he made a mistake when he was pointing out the agreed boundary to Amma Donkor. Upon the evidence the local court magistrate had no difficulty whatsoever in rejecting the evidence of both the respondent and her said witness, and in coming to the conclusion that the boundary which Kwadwo Nsiah pointed out to Amma Donkor is the identical boundary agreed upon between the respondent and the said Kwadwo Nsiah.
The High Court reversed those findings made by the local court. It is true that an appeal is by way of rehearing, and therefore the appellate court is entitled to make up its own mind on the facts and to draw inferences from them to the same extent as the trial court could; but where the decision on the facts depends upon credibility of witnesses, the appeal court ought not to interfere with findings of fact except where they are clearly shown to be wrong, or where those facts are wrong inferences drawn from admitted facts or from the facts found by the trial court. Therefore if in the exercise of its powers, an appeal court feels itself obliged to reverse findings of fact made by the trial court, it is incumbent upon it to show clearly in its judgment where it thinks the trial court went wrong. It goes without saying that if an appeal court sets aside the findings of a trial court without good ground, or upon grounds which do not warrant such interference with the findings made by the trial court, a higher court will set that judgment
aside.
The reasons which the learned judge gave for his decision are as follows:
“The question now is whether or not the evidence of plaintiff and his witness Amma Donkor should have been accepted. The plaintiff in his evidence gave the description of the boundary as given him by Amma Donkor and Amma Donkor gave the boundaries as given her by Nsiah. The plaintiff did not call Nsiah as a witness so that the evidence of plaintiff and his witness was relay of hearsay evidence which had its source in Nsiah. In the absence of evidence by Nsiah for the plaintiff and in view of the fact that evidence given by Nsiah, as a witness for the defendant differed from the boundary mentioned by plaintiff and Amma Donkor—there was no substantial evidence to amount to proof of the boundary which should have been accepted by the trial court. I find that the trial court’s discrediting of Nsiah cannot be sufficient grounds for
accepting the hearsay evidence of plaintiff and Amma Donkor as proof of plaintiff ‘s claim.
I therefore consider the finding of fact of the trial court without any foundation.”
This judgment shows that the learned judge misdirected himself on the evidence of the history of the land given by Amma Donkor as related to her by Nsiah. He also erred in his view that “in the absence of evidence by Nsiah for the plaintiff and in view of the fact that evidence given by Nsiah, as a witness for the defendant differed from the boundary mentioned by the plaintiff and Amma Donkor—there was no substantial evidence to amount to proof of the boundary which should have been accepted by the trial court.”
It should be pointed out that the learned judge did not find anything wrong with the opinion which the local magistrate formed of the credibility of the appellant and his principal witness on the one hand and of the respondent and her principal witness on the other. That being the case there are no bases for his interfering with findings which were based materially upon the credibility of the witnesses. In the circumstances there is no justification for his reversing the judgment of the trial court, which findings are fully supported by the evidence on the record.
For these reasons I would allow the appeal set aside the judgment of the High Court including the order as to costs; any costs paid to be refunded. The judgment of the trial local court is restored
The appellant will have his costs in the court below assessed at £G18 18s. and his costs in this court fixed at £G45 1s. 6d.
DECISION
Appeal allowed.
S. A. B.
