Division: IN THE SUPREME COURT
Date: 30 JUNE 1964
Before: SARKODEE-ADOO CJ, OLLENNU AND ACOLATSE JJSC
JUDGMENT OF ACOLATSE JSC
His lordship recited the facts and set out the issues which were based mainly on conflicting traditional history and continued:] This is not a claim for recovery of possession. It is a claim by the plaintiffs seeking the relief for a declaration of title to the land at Mepe in dispute against the defendants. The plaintiffs alleged that the land was founded by their ancestor Whulor about 500 years ago. The defendants say their ancestors were on the land before they, the plaintiffs, arrived. We are thrown back from the nineteenth century to the fifteenth century on verbal tradition transmitted from one generation to generation. The possession of the area in dispute by the defendants is admitted by the plaintiffs though they sought to neutralize the admission by claiming that they, the plaintiffs, put the defendants’ ancestors on the land as caretakers. In my view the presumption of title raised by the defendants’ possession increased by length of time and absence of interruption and conduct of the person seeking the relief of title against the person in possession without any acknowledgement of ownership of the other person. Where a case depends entirely upon facts as in the present case, the principle to be applied on appeal is stated in Phipson on Evidence (10th ed.), under the heading “Weight of Evidence” at p. 835, paras. 201-12
“Questions of the admissibility of evidence belong … to the judge, those of its weight, credibility and sufficiency, to the jury. An appellate tribunal is not always entitled to review decisions of fact … But in many cases, as in an appeal from the High Court in a non-jury case, the appellate tribunal has jurisdiction to review the finding of fact. In such case the judge’s finding, made after hearing witnesses and observing their demeanour is entitled to great weight and should not be disturbed unless it is clear that it is unsound.”
And in Abudulai v. Manue1 it was stated as follows:
“It is fully appreciated that although the reversal of a finding of fact of a Judge who sat without the assistance of a jury is within the competence of a Court of Appeal the presumption is that the decision of the trial Judge on the facts was right and that presumption must be displaced by the appellant.”
The learned judge in my opinion made a thorough and critical analysis of the evidence in the light of the issues raised before him. It appears to me that the decision the learned trial judge arrived at is correct and should not be disturbed without very clear proof that it is wrong and I fail to find any proof in the instant case that it is wrong. The evidence was conflicting but the trial judge sifted it carefully and came to a definite conclusion as to which of the two conflicting histories is the more probable. Adjeibi-Kojo v. Bonsie.2 In my opinion even if the conflict was not clearly resolved by the trial judge, the evidence is so unsatisfactory that I would apply the well-established principle that:
“Where the evidence is unsatisfactory the Judgment should be in defendant’s favour on the ground that it is the plaintiff who seeks relief but has failed to prove that he is entitled to what he claims.”
See the headnote in Frempong II v. Brempong II3
[His lordship here referred to grounds 2 and 4 of the appeal which he found contained no merit and continued:]
In my opinion the appeal cannot succeed on any of the grounds of appeal, and I would dismiss the appeal, with costs fixed at £G87 0s. 0d.
JUDGMENT OF SARKODEE-ADOO CJ
I agree.
JUDGMENT OF OLLENNU JSC
I also agree.
DECISION
Appeal dismissed.
N.A.Y.
