HIGH COURT, KOFORIDUA
18 MARCH 1975
QUASHIE-SAM J
CASES REFERRED TO
(1) Boohene v. Ofei [1959] G.L.R. 101.
(2) Nwizuk v. Eneyok (1953) 14 W.A.C.A. 354.
NATURE OF PROCEEDINGS
APPEAL from the decision of a district court giving judgment for the respondents in an action for the declaration of title to land. The facts are fully stated in the judgment.
COUNSEL
Djabatey for the appellant.
Narh for the respondents.
JUDGMENT OF QUASHIE-SAM J.
This is an appeal from the judgment of the District Court Grade II, Odumase, dated 29 June 1973 in which the appellant lost to the respondents. The claim was for: (a) declaration of title to land at Ofuase-Korlenya, fully described in the writ of summons, and (b ¢100.00 damages for trespass.
Briefly the case of the appellant was that he acquired ownership of the land in dispute by inheritance from his predecessors whose names he mentioned in his evidence: that he so inherited the land about 37 years ago during which time he has been farming the land with members of his family; that for a period of four years he was in Upper Krobo and returned only to find that the respondents had been clearing the land for farming and fixing boundaries; that the matter was by the police referred to one chief Baah for a settlement to which he refused to submit himself and he thus brought this action.
Briefly the first respondent’s case was that when he grew up his father and one other showed him the land in dispute and for twenty years he had been in possession thereof, farming on it with his father without interruption; that five months after his father’s death he discovered that certain people were harvesting his cassava from the land and he caused their arrest by the police; that the case was withdrawn for settlement; that he and the appellant have each paid ¢12.00 for the arbitrators to view the disputed land, but the appellant refused the inspection and brought this action.
Briefly the case of the second respondent also is that he inherited his land from his father, his late brother being his immediate predecessor; that he has been in occupation and possession for the past 28 years without interruption and shares boundary with the first respondent; like the first respondent he gave evidence about the matter being referred by the police to Asafoatse Baah for settlement, adding that evidence before the arbitration had been concluded and a day fixed for the inspection of the land when the
appellant brought this action.
[p.419] of [1975] 1 GLR 417
Both parties called witnesses in support of their respective cases at the close of which the court recorded that the land should be viewed. On the resumed date, the assistant registrar and clerk of the court gave evidence that upon the direction of the trial magistrate he inspected the land in dispute with all the parties and their witnesses and he read a report of what transpired; after this the parties were given the opportunity to cross-examine this man whom the court called “the reporter.” The court then found against the appellant and gave judgment for the respondents.
The appeal against that judgment was mounted originally on the grounds that the judgment was against the weight of the evidence and also that the trial magistrate failed to understand the issues joined between the parties. Additional grounds of appeal were filed, namely:
“(1) the trial lay magistrate erred in law when he said ‘Plaintiff failed to establish his ownership of the land. He must therefore be non-suited’;
(2) the trial lay magistrate erred in law in failing to make his findings of fact on the evidence of the witnesses of the plaintiff and the defendants;
(3) the trial lay magistrate failed to consider the evidence given by the witnesses of the plaintiff and the defendants;
(4) the trial lay magistrate used meaningless expressions in his judgment, i.e. ‘Plaintiff, in the whole evidence before the court, failed to discharge efficiently his case for the court to consider his case of any credence’;
(5) the trial lay magistrate erred in law in saying that the plaintiff must necessarily call his boundary owners in order to discharge the burden of proof on him;
(6) the judgment cannot be supported by evidence on record.”
Further additional grounds of appeal are:
“The trial magistrate failed to appreciate the meaning and significance of traditional symbols and lead-marks which were mentioned in the trial and which he recorded and thus ignored their effect and weight on the evidence led before him. The trial magistrate erred in ignoring completely the evidence before him relating to the visit to the locus in quo which he himself ordered and in so doing gave a judgment which is not in consonance with the totality of the evidence adduced.”
Taking additional grounds (1) and (2) together, learned counsel for the appellant submitted that though the trial magistrate indicated the sort of evidence to look for in such a claim, yet he made no findings of fact throughout his whole judgment.
On additional ground (6) he submitted that there appeared to be two different properties, one claimed by the appellant and the other by the respondent as could be seen from the boundaries as described respectively by them. He submitted that the statement by the oldman, one Okyeame
[p.420] of [1975] 1 GLR 417
Numo, in the inspection report that the appellant had common boundary with Baah supported the appellant’s case. He submitted that the confusion occasioned at the trial as to which was the real property in dispute must have led the trial magistrate to send his clerk to the locus in quo for a report yet he made no use of the report by way of making any findings on it in relation to the evidence before the court.
Taking the two further additional grounds of appeal learned counsel for the appellant submitted that sending the court clerk to view the locus in quo was a wrong procedure, and, worse still, it was wrong for the trial magistrate to so completely ignore that report in his judgment, a report which was so manifestly in favour of the appellant. He finally submitted that on the totality of the evidence, judgment should have been given for the appellant but if this court is of the opinion that the procedural inspection irregularity
goes to the root, it should order a trial de novo.
In his reply learned counsel for the respondents could not pinpoint one instance of a finding of fact made by the trial magistrate. He rather submitted that even if there were no such findings, this court, as an appellate court, has jurisdiction generally to make such findings from the evidence by reason of Order 58, r. 18 (2) of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), which reads:
“The Court may draw all inferences of fact which might have been drawn in the Court below and may give any judgment or decision or make any order which ought to have been given or made by the Court below.”
Learned counsel’s submission that there was no evidence on which the court could make findings is not supported on the evidence and especially the report.
On the irregularity in the procedure adopted by the court for the inspection of the locus in quo, learned counsel for the respondents has submitted that however wrongful it might have been it did not occasion any miscarriage of justice. From the case of Boohene v. Ofei [1959] G.L.R. 101 which he referred to, I think the proper view is that it is only the court or in the case of an arbitration, the members of the arbitration who in law and procedure ought to inspect the locus in quo, and when that has been carried out only a party to, or a witness in the case, who has said or pointed out anything at the inspection which is vital to the case ought to go into the witness-box to give his information on oath for him to be cross-examined. For the reasons that a man cannot be a judge and witness in the same case, and also that it renders the court being improperly constituted, the courts condemn any practice or procedure whereby, members of the court go into the witness-box to give evidence on an inspection, to be cross-examined by the parties in a case.
In this instant case, Mr. F. D. Amooh, the assistant registrar and court clerk, was not a party to the suit, nor was he a witness in the case or at the inspection; viewed from that perspective his evidence ought to have no place in the proceedings; it is my view that his commission to inspect the land in dispute was nothing but an attempt to constitute him
[p.421] of [1975] 1 GLR 417
into a court, for the purpose of an inspection, in place of the trial magistrate or the court; this is an irregularity which cannot be cured as it goes to the very root of the trial and the judgment, for its practical effect has been to make the court (duly constituted by the trial magistrate) look and view the case and assess evidence with and through the eyes of its court officer who was neither the court nor a member of the court as constituted. When a court embarks upon an inspection of the locus in quo it does so as part of the process in the hearing of the case; it is a continuation of the hearing by substitution of its eye for the ear in the reception of evidence. In the case of Nwizuk v. Eneyok (1953) 14 W.A.C.A. 354 the judge heard evidence after which he went to inspect the land in dispute; both sides admitted that some of the evidence given for their sides were untrue and false; in his judgment dismissing the plaintiff’s claim the judge gave an account of his inspection and mentioned these admissions. When the plaintiff appealed arguing that it was a mistake of law for the judge to take into account statements made at the inspection; that the judge ought to have recalled those concerned for further examination; and also that there ought to have been a separate note on the inspection, the West African Court of Appeal held that the court did not cease to be a court when on inspection and the statement were as much oral admissions by a party in court as if they had been made in a court room, and could be taken into account; further that court held that the absence of a record of the inspection was not fatal as statements by the judge in a solemn judgment must be taken as a correct account of what occurred and therefore be final.
The emphasis which I discern in that judgment is the continuity with which the same judge heard evidence in the court room and heard and saw evidence outside the court room on inspection. There was no transfer of functions of the court or judge. In this instant case, Mr. Amooh purported to function as a court on inspection and read out a report containing his own observations and assessments, some of which amounted to findings of fact made without jurisdiction which the trial court wrongly accepted and based its judgment on.
In summarising therefore I would say that the whole trial was unsatisfactory, the trial magistrate having made no findings of fact and the proceedings being vitiated by other intervening functions or proceedings not warranted by law or practice.
I therefore allow the appeal, set aside the judgment of the lower court and order a trial de novo by the court below differently constituted. The appellant shall have costs at ¢120.00
DECISION
Appeal allowed.
Retrial ordered.
S.O.
