COURT OF APPEAL
DATE: 25 NOVEMBER 1957
BEFORE: VAN LARE AG.C.J., GRANVILLE SHARP J.A. AND
ADUMUA-BOSSMAN J.
CASES REFERRED TO
(1) Payin II v. Anquandah (1947) 12 W.A.C.A. 284.
(2) Angu v. Attah (1961) P:C. ‘74 – ‘28, 43.
(3) Ankrah v. Ankrah, Privy Council (No. 1 of 1952), 2 October 1957, unreported.
(4) Newton v. Belcher (1848) 12 Q.B. 921; 6 Ry. & Can. Cas. 38; 18 L.J.O.B. 53; 12 L.T. (o.s.) 213;
13 Jur. 253.
(5) Lyell v. Kennedy (1889) 14 App.Cas. 437: 59 L.J.Q.B. 268; 62 L.T. 77; 38 W.R. 353, H.L.
(6) R. v. Brailsford [1905] 2 K.B. 730; 75 L.J.K.B. 64; 93 L.T. 401; 69 J.P. 370; 54 W.R. 283; 21
T.L.R. 727; 49 S.J. 701; 21 Cox C.C. 16.
(7) Robertson v. Minister of Pensions [1949] 1 K.B. 227; [1948] 2 All E.R. 767; [1949] L.J.R. 323; 64 T.L.R. 526; 92 S.J. 603.
(8) De Geer v. Stone (1882) 22 Ch.D. 243.
(9) Simpson v. Simpson [1951] P. 320; [1951] 1 All E.R. 955; 115 J.P. 286; [1951] 1 T.LR. 1019, D.C
(10) Craven v. Craven [1957] 107 L.J. 505, C.A.
(11) Cooper v. Slade (1858) 6 H.L. Cas. 746; 27 L.J.Q.B. 449; 31 L.T (o.s.) 334; 22 J.P. 511; 4 Jur.
(N.S.) 791; 6 W.R. 461.
NATURE OF PROCEEDINGS
Appeal from a judgment of Smith Ag. J. wherein he dismissed the plaintiff’s claim for a declaration that he was not an alien but a British subject and that his deportation from the then Gold Coast under the Aliens Ordinance, Cap. 43 (1936 Rev.), was null and void.
COUNSEL
Benjamin (Djabanor with him) for the appellant.
Gavin Scott, Senior Crown Counsel, for the respondent.[p.173] of [1967] GLR 170
JUDGMENT OF ADUMUA-BOSSMAN J.
This appeal is against a decision given on 18 January 1956 by Smith Ag. J. (as he then was) whereby he gave judgment for the defendant-respondent (hereafter referred to as the defendant) against the plaintiff-appellant (hereafter referred to as the plaintiff) upon the latter’s claim, as follows:
“That the Deportation Order No. 29 of 1944 dated 25 September 1944 made by Order in Council and purported to have been made under sections 3 and 7 (2) of the Aliens Ordinance, Cap. 43 of 1936 edition of the Laws of the Gold Coast is null and void and the said deportation order be revoked, on the grounds:
(a) that the powers conferred under these sections of the Aliens Ordinance apply only to aliens, but the said Emmanuel Bruce, plaintiff herein, is a native of the Gold Coast, and is not an alien, and the powers aforementioned had been exercised ultra vires;
(b) that the legislature was wrong in giving its approval to the said deportation order.”
The short statement of claim filed on behalf of the said plaintiff averred as follows:
“The plaintiff is a British subject by birth in that he was born at Abolove, near Anyako in the Keta district on 27 March 1887. His father and grandfather are natives of the Gold Coast.” The equally short statement of defence filed on behalf of the defendant denied “that the plaintiff is a British subject as alleged in the particulars or at all, or that the plaintiff is entitled to the declaration [sought] or at all.”
The issue which emerged for determination therefore was whether or not the plaintiff was a British subject, and the burden or onus of proving the affirmative clearly lay on the said plaintiff. The learned judge after a detailed examination and consideration of the whole of the evidence made available to him by the parties, came to a conclusion adverse to the plaintiff, that he had not discharged the burden or onus which lay upon him, which conclusion he expressed in his judgment in the following words: “I do not think the plaintiff has established his case. I appreciate the difficulties which his counsel has had in the proof of facts of some 60 years and more ago … In view of the uncertainty of the evidence I do not think the plaintiff has established his claim, although it is all very borderline. There will be judgment for the defendant,” That conclusion of the learned judge is now sought to be impeached, substantially on the ground that the judgment is against the weight of the evidence, and it is therefore the main point in the
[p.174] of [1967] GLR 170
appeal to determine whether or not upon proper and careful consideration and assessment of the evidence available before the learned judge, his conclusion aforesaid can be properly held to be against the weight of the evidence.
In approaching the task of making that determination it seems necessary to remind one’s self of the cardinal principles which were appropriately referred to by Verity C.J. in the case of Payin II v. Anquandah (1947) 12 W.A.C.A. 284 at pp. 287-288 as follows: “[W]e would bear in mind the well established principles regarding the functions of an appellate Court in relation to the findings of fact by a trial Judge sitting without a jury, principles which were examined and affirmed by the House of Lords in Powell v. Streatham Manor Nursing Home ([1935] A.C. 243). In that case the Lord Chancellor … approved the dictum of Lord Shaw when he said in Clarke v. Edinburgh Tramways Co. ((1919) S.C. (H.L. 35)): – ‘When a Judge hears and sees the witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to greatrespect and that quite irrespective of whether the Judge makes any observation with regard to credibility or not.’ Lord Wright observed that the case then before the House was of general importance because of the discussion which had taken place on the proper functions of the Court of Appeal where the case is purely one of fact and the trial Judge has based his judgment on the conclusions he has formed as to which of the witnesses whom he has seen and heard are trust-worthy and which are not. His Lordship proceeded to quote the opinion of Lord Sumner in Hontestroom (Owners) v. Sagaporack (Owners) ([1927] A.C. 37). In that case His Lordship said:— ‘Of course there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witnesses . . . It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and judicial obligation. None the less, not to have seen the witnesses puts the appellate court in a permanent position of disadvantage as against the trial Judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. While we are bound to observe these principles we must not overlook the judicial obligation referred to by Lord Summer and referred to by this Court in Cudjoe & Others v.
[p.175] of [1967] GLR 170
Kwatchey & Others ((1935) 2 W.A.C.A. 371), at p. 374, where it was said:-’The Appeal Court is not debarred, however, from coming to its own conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the appeal court can make up its own mind on the evidence not disregarding the judgment appealed from but carefully weighing it and considering it and not shrinking from overruling it if on full consideration it comes to the conclusion that the judgment is wrong’.” Bearing in mind the principles so lucidly expressed as above-it is now necessary to consider and examine the respective cases of the parties.
Dealing firstly with the defendant’s case, I would observe that it is aptly and fittingly summed-up in the words of learned counsel appearing on his behalf in the trial court who, in his address to the court after the respective cases of both sides had closed, said as follows-: “Fact in issue-either place of birth of Emmanuel Mensah Bruce or that of his father. These events 1850-1887. The defendants have no idea of place of birth-can only rely on statements.” The words above set out very appropriately indeed described the kind of case submitted to the court on behalf of the defendant- a case in which no effort was made to disprove the plaintiff’s case with clear and definite evidence that he and his father were respectively born at such-and-such a place or places different from the places alleged by the plaintiff, but a case based solely on the fact that some time about 1944 inquiries were made concerning the plaintiff from certain relatives and other persons, and they made certain statements-which were tendered in evidence on behalf of the defendant. It is necessary now to turn to and examine the plaintiff’s case as submitted to the learned trial judge. The plaintiff who is in Lome in French Togoland outside the jurisdiction and was unable to attend to give evidence at the trial, in his effort to establish his case, adduced before the court:
(a) oral testimony of three relatives, to wit, his last surviving uncle by name Ussher Bruce resident in Anecho, his paternal elder sister Paulina Bruce resident in Keta and his cousin: Edward John Bruce, merchant of Accra; and
(b) documentary evidence, firstly, a copy of his certificate of baptism and secondly, a passport issued to him in 1920, the period of validity of which had elapsed, but which had up to date not been cancelled.
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The evidence of his said relatives as to his place of birth as well as the place of birth of his late father, Francis Kwaku Bruce was strongly challenged in and by the cross-examination on behalf of the defendant on the ground that some time in 1944, upon inquiry made of them by the French Police authorities in Anecho in Togoland as to what they knew about the life of the plaintiff, each had then made and signed a statement which was inconsistent with his or her present testimony, as regards the important question of the birth place of the plaintiff and his father now the subject of inquiry before the court.
The learned judge in his judgment referred, one after the other, to the evidence of the said two relatives of the plaintiff as follows: “On the question of the birth place of the plaintiff, there is a complete divergence on whether he was born at Abolove or Anecho. Ussher Bruce, the plaintiff’s uncle said the plaintiff was born at Abolove and the plaintiff’s father, Francis K. Bruce (his brother) was also born there. This is ‘hearsay’- he says his nephew’s birth was reported to him in Accra by the father, his brother.” I would pause here awhile and make this observation – that the learned judge in discrediting the crucial evidence of Ussher Bruce as to the birth place of the plaintiff on the ground that it was “hearsay’ “ would appear to have lost sight of the fact that the Supreme Court from its earliest days, has allowed much greater latitude in the matter of hearsay evidence given by natives of the country in proceedings before the court, for the reasons stated by Redwar in his Comments on Some of the Ordinances of the Gold Coast Colony 1909 at p. 87 as follows: “because of the absence of written memorials in a country where everything, the Native law itself included, depends on oral tradition. Besides evidence as to declarations of deceased members of a family, hearsay statements of Linguists and of other persons with presumable knowledge of the matters in dispute, were admitted.”
It is not saying too much to state that this practice by the Supreme Court of admitting what by the strict legal conception of English law is “hearsay” evidence, particularly in the class of cases which Redwar at p. 86 has referred to as “cases relating to pedigree, inheritance, boundaries of the land” and the like has now become “notorious” as the term was used by the Privy Council in the case of Angu v. Attah (1916) P.C. ‘74 -’28, 43 at p. 45, that is to say “crystalised” into a definite principle of practice: see per Mr. De
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Silva in Ankrah v. Ankrah, Privy Council (No. I of 1952), 2 October 1957, unreported. It is my view therefore that the learned judge in the court below, approached the matter of this crucial evidence given by the witness Ussher Bruce as to the birth place of the plaintiff from a completely wrong angle or point of view, which very gravely and seriously affected his assessment of that evidence. “The learned judge thereafter continued his criticism of the evidence of Ussher Bruce, as follows: “This witness also said he was born in Accra and changed it to Aflao. I cannot rely on his evidence.” As to the above criticism, it seems to me, with the utmost respect to the learned trial judge, that prevarication by the witness on an entirely irrelevant matter as that mentioned by the judge-irrelevant in the sense that whether born in Accra or Aflao, the witness was indisputably a natural born British subject by birth (and it is noteworthy that counsel for the defendant did not suggest the contrary) and in any event the witness’s own place of birth and nationality was immaterial to the question of the place of birth of the plaintiff which was the subject of inquiry-could not alone constitute adequate or sufficient ground for rejecting the whole of the testimony of the witness, especially when, on the material question which was the subject of inquiry, there was circumstantial evidence tending to confirm the testimony of the witness, as will be pointed out later in this judgment.
The learned judge next dealt with the evidence of Paulina Bruce and said as follows:“Similarly the evidence of Paulina Bruce (the plaintiff’s sister or cousin) is difficult to reconcile. I do not know how much older she is than her brother. Again on oath her evidence was that the plaintiff was born at Abolove, their father she knew not where. In her statement of 12 July 1944, she refers to Francis K. Bruce as a native of Anyako and the plaintiff as being conceived in Abolove and born in Anecho. Considering that the plaintiff’s mother Akweley was of Anecho, this is quite likely so. Francis Kwaku Bruce to the knowledge of this witness moved about between Anecho and Abolove.”
As to the above-mentioned observations of the learned trial judge-I would concede that it was of course justifiable criticism that the witness had made a former statement on the material question, inconsistent with her present testimony. In such a case, where the full details of and concerning the occasion and circumstances in which the former statement was made, were also made available to and placed before the trial judge so that he could be in
[p.178] of [1967] GLR 170
a position to determine that the former statement was necessarily and fairly obviously the true one and the new testimony the false one, then an appellant judge would, and should, hesitate to question the trial judge’s conclusion rejecting the new testimony as inconsistent with a former statement. As was observed in the case of Newton v. Belcher (1848) 12 Q.B. 921, “In all cases of this nature, the jury with the view of estimating the effect due to an admission will be justified in considering the circumstances under which it was made.” In the case before us, however, the full details of the circumstances under which the former statements came to be taken are by no means clear. A striking instance of the general unreliability of the statements taken in 1944 appears to be – by way of example – that in exhibit 7, the statement of the witness Paulina Yodepedu Bruce, she was recorded as having said: “I know Mr. Emmanuel Bruce alias Mensah. He is my cousin.” But in the proceedings before the trial court it was accepted and admitted without question, that she is a sister, the elder sister of Emmanuel Bruce, the plaintiff.
However that may be-if the oral testimony of the plaintiff ‘s witnesses as to the place of birth of himself and his father, had been all that he was able to place before the trial court and which the trial judge had to go on, then having regard to the fact that a certain degree of doubt appears to have been created in the trial judge’s mind by the former statements taken in 1944, I would not be disposed to question his conclusions on that evidence.
But that was not so. There was also the more important documentary evidence of (a) the baptismal certificate and (b) the passport; and it is my view that it was in the manner in which the said baptismal certificate and passport were dealt with and considered by the learned judge, that his final decision on the case as a whole has become seriously open to question. Dealing then firstly with the baptismal certificate, the material evidence concerning the same was given by one who cannot but be regarded as a completely neutral, credible and reliable witness, General Police Constable Emmanuel Lotsu Blavo attached to the Aflao Police, who deposed that on the instructions of his superior officer, Superintendent Fynn-Williams, he went to Anecho to make investigations about the plaintiff and who continued his evidence as follows: “I interviewed the Rev. Minister, Rev. Lassey about the date of the baptism of Emmanuel Mensah Bruce and the date of his birth. He produced an old German baptismal book. I examined the German baptismal book. I asked the Minister, Rev. Lassey,
[p.179] of [1967] GLR 170
to give me a copy. He did. I reported to my superior officers; therefore I gave them a certified copy of thecertificate given me by Mr. Lassey. I also collected the passport, exhibit B. It shows date and place of birth. I saw on the register at Anecho the place of birth and the date of birth of Emmanuel Mensah Bruce. They were the same as on the passport.”
The last two sentences of the above-recited evidence of the police witness have been emphasised by me because in my view they are of supreme importance and significance in this case. It is also worthy of note that this crucial evidence given by the police officer on behalf of the plaintiff was not in the least challenged. Learned counsel for the defendant resisted the tender of the copy of the certificate of baptism relying on the case of Lyell v. Kennedy (1889) 14 App.Cas. 437, H.L. and the learned judge sustained his objection. But Lyell v. Kennedy in which it was decided (as stated in the headnote at p. 437) that: “Scotch parish registers or certified extracts from them, receivable in Scotch Courts as kept under the sanction of public authority, are receivable in English Courts as to matters properly and regularly recorded in them,” is clearly distinguishable and does not appear to be any authority warranting the exclusion of the certificate of baptism.
At any rate under Order 37, r. 60 of the Supreme [High] Court (Civil Procedure) Rules, 1954. (L.N. 140A), our own rules of court, on which learned counsel for the defendant himself relied to put in evidence several statements taken in 1944 from persons dead as well as living who were not before the court, the copy of the certificate of baptism was clearly admissible, and as charged in one of the grounds of appeal, was wrongly rejected.
In any case, the material evidence that the contents of the said baptismal certificate, so far as date of birth and place of birth are concerned, were the same as in the passport, exhibit B, was admitted without objection on the part of learned counsel for the defendant and was accordingly on record unchallenged and unquestioned before the learned trial judge, and it is to my mind the decisive evidence in this case, that on the occasion of the baptism of the plaintiff the date and place of his birth were given, no doubt by his father, and recorded, exactly as deposed to by his uncle, Ussher Bruce, and is conspicuously confirmatory of the latter’s oral testimony as well as that of Paulina Bruce, before the trial court. The learned judge said of the baptismal certificate as follows: “Phipson on Evidence (9th ed.) at p 355. Registers of baptism are evidence of date and place of baptism . . . but not of the
[p.180] of [1967] GLR 170
date or place of birth . . . though if it were proved aliunde that the child was very young at the former date, the register might afford presumptive proof of its birth in the parish in which it was baptised.”
The learned judge thereafter completely disregarded the evidence afforded by the baptismal certificate. Therein I think he gravely erred. The passage in Phipson on Evidence referred to above may be strictly applicable in England where provision was made from early times for the registration of births of children. It should obviously not be applied too strictly in a country in which, in the words of Redwar already referred to” everything, the Native Law itself included, depends on oral tradition.” The evidence of the baptismal certificate should not have been so completely disregarded or excluded as it was. It was certainly more dependable and reliable than the questionable statements taken in 1944 tendered in evidence on behalf of the defendant and on which the learned judge appeared to have placed so muchbreliance.
There remains next to be considered the passport, concerning which the learned trial judge in his judgment made the following observations: “This was issued on 29 March 1920 and renewed at various times until I think about 1930. This also has theplaintiff’s birth place as Abolove (Gold Coast); but as to proving place of birth I do not consider that a passport affords any conclusive evidence.”
After making the above observation the learned trial judge would appear thereafter to have dismissed the passport from further consideration in the case. Here also, with great respect to the learned trial judge, I think he erred gravely. The passport, if not “affording any conclusive evidence” as he observed, was at any rate evidence quantum valeat establishing such a prima facie case as to cast upon the defendant the onus of disproving or rebutting it. Learned counsel for the plaintiff has appropriately called the court’s attention to what Lord Alverstone C.J. in the case of R. v. Brailsford [1905] 2 K.B. 730 at p. 745, said of the significance of a passport as follows:
“It will be well to consider what a passport really is. It is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual’s protection as a British subject in foreign countries, and it depends for its validity upon the
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fact that the Foreign Office in an official document vouches the respectability of the person named. Passports have been known and recognised as official documents for more than three centuries…”
Learned counsel for the plaintiff also referred the court to the case of Robertson v. Minister of Pensions (1948) 2 All E.R. 767 in which Denning J. (as he then was) held that a letter from the War Office whereby the War Office wrote that the plaintiff’s disability had been accepted as attributable to war service, was on the face of it an authoritative decision intended to be binding and to be acted on, and that as the War Office was an agent for the Crown, the Crown was bound by the letter and therefore other government departments being also agents of the Crown were also bound including the Minister of Pensions so as to honour all assurances given by or on behalf of the Crown.
In the course of his judgment Denning J. said at p.769 as follows: “What then is the result in law? If this was a question between subjects, a person who gave such an assurance as that contained in the War Office letter would be held bound by it unless he could show that it was made under the influence of a mistake or induced by a misrepresentation or the like, none of which appears here.”
It appears to me therefore, applying the principle of the above authority to the facts of our case under consideration, that the “official acceptance” of the plaintiff’s place of birth as being in a British territory and of the resulting position that he is a natural born British subject was binding on the defendant until, in the words of Denning J. above referred to, “he could show that it was made under the influence of a mistake or induced by a misrepresentation or the like . . . “ If that be so, clearly the learned trial judge appears to have gravely erred in presuming, quite wrongly in my view, that the contents of the passport are false. Learned counsel for the defendant before us conceded, the position that the production of the passport would of necessity shift the evidential burden onto the Crown, but went on to argue that there was evidence that passports were obtainable on false statements. The fallacy in the argument however-if, with due deference to learned counsel, I may point it out-appears to me to be that general evidence that some passports are obtained on false statements, does not establish that the one under consideration was so obtained on any false statement. A careful and thorough examination of the evidence adduced on behalf of the defendant satisfies me that no evidence was adduced to establish that the passport was obtained by[p.182] of [1967] GLR 170 means of any false statement or statements made at the material time to the passport authorities and I am further satisfied that the learned trial judge wrongly assumed that such was the case. In connection with the passport, the complaint of’ learned counsel for the plaintiff is that the learned judged misdirected himself in the view he took of the plaintiff ‘s passport. In my view as indicated above, that complaint is well-founded. That leads me to a final reference to the learned judge’s conclusion rejecting the case of the plaintiff that he was born at Abolove as not having been sufficiently established.
As already indicated, it is my view that the learned judge wrongly excluded the evidence afforded by the baptismal certificate and the passport both of which conspicuously support the oral testimony on that point, and I am of the opinion that the learned judge’s conclusion cannot be sustained and should be set aside and replaced with a finding that the plaintiff has established that he was born at Abolove near Anyako in the Keta District within the limits of the former Gold Coast and is therefore a British subject. Although that, strictly speaking, makes it unnecessary to deal with the other ground on which the plaintiff claimed to be a British subject, namely, that his father and grandfather were natives of the Gold Coast, I think it is desirable to deal with that ground also. By virtue of section 83 of the Courts Ordinance, Cap. 4 (1951 Rev), which provides that “the common law, the doctrines of, equity, and the statutes of general application which were in force in England on the 24th day of July, 1874, shall be in force within the jurisdiction of the Courts.” that issue of mixed law and fact, whether the plaintiff’s father and grandfather were natives of the Gold Coast and therefore natural born British subjects so that the plaintiff also, as son or grandson would become a British subject even if not- born within the limits of the former Gold Coast, falls to be determined by the provisions of the common law and the provisions of those statutes relating to British nationality which were in force in England on 24 July 1874. Among the said statutes should be mentioned two Acts which are pertinent and relevant to the determination of the case under consideration by us as will appear later in this judgment, namely, the British Nationality Act, 1730 (4 Geo. 2, c. 21), s. 1, and the British Nationality Act, 1773 (13 Geo. 3, c. 21), s. 1, the combined effect of which was to settle the law, as stated by Kay J. in De Geer v. Stone (1882) 22 Ch.D. 243 at P. 253, “that the grandchild born abroad, whose father was also born abroad, being respectively -grandchild and child of a man who
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was by the common law a natural-born British subject, would be himself a natural-born British subject . . .” On the question of the nationality of the father and the grand-father of the plaintiff, the learned judge in his judgment said as follows: “There is almost an equal inconsistency about the birth place of the plaintiff’s father, Francis Kwaku Bruce, which is given variously as Keta, Abolove and Anecho). He. married an Anecho Woman. I do not think the evidence is sufficient to hold that at the time of the plaintiff’s birth, he was a natural born British subject. It is true that three witnesses-Ussher Bruce, Emmanuel George Bruce and Edward Kwavie Bruce gave Accra as the birth place of the plaintiff’s paternal grandfather. I do not place much reliance on Ussher Bruce’s evidence. Emmanuel George Bruce could not know and Edward Kwavie Bruce’s statement was not the same as that he gave the police in 1944. According to the statements of Sesi Kwashie, Paulina Tay and Janet Tay, they indicated that the grandfather and father of the plaintiff were natives of Anecho. If someone in evidence says without personal knowledge or access to family records that A., e.g. was born in Accra, especially inview of the confusion to nearer relations, I should hesitate to accept that as conclusive.”
It becomes necessary to examine the evidence adduced about the plaintiff’s father and grandfather to determine whether the learned judge’s conclusions were justified or not. The material evidence of Ussher Bruce concerning the father and grandfather of the plaintiff was as follows:
“I know Emmanuel Mensah Bruce. Today he is in Lome. I know his father – he is my brother. My father’s name is James Kwamena Bruce. I and my brother have the same father. My brother’s name is Francis Kwaku Bruce; he is Emmanuel Bruce’s father. My father James Kwamena Bruce was born in Accra. Francis Kwaku Bruce was born in Abolove.”The witness’s evidence as to his father James Kwamena Bruce having been born in Accra was never challenged in cross-examination. In respect of the evidence that Francis Kwaku Bruce was born at Abolove, however, the witness was recalled and cross-examined as follows: “Did you say yesterday that Francis Kwaku Bruce was born in Accra?” To this the witness answered, “No, at Keta” and the matter was not carried or pressed further.
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Paulina Bruce, the next witness, in relation to her father and grandfather, gave the following evidence: I know Emmanuel Mensah Bruce- he is my father’s son My father was Kwaku Francis Bruce. My grandfather came from Accra and my father was born I do not know where.” She was also recalled and cross-examined and she gave answers as hereunder: “Q. You remember yesterday you talked about your father Francis Kwaku Bruce?
Yes
Q. Did you say where he was born?
A. I cannot remember
Q. Born at Anecho?
A. I do not know.
Q. Did you not say your father was a native of Anecho?
A. No.
Edward John Bruce, the next witness concerning the father and grandfather of the plaintiff gave the following evidence:
“I know Emmanuel Mensah Bruce-my cousin Francis Kwaku Bruce is Emmanuel Mensah Bruce’s father. My grandfather was James Kwamena Bruce-popularly known as ‘King Bruce’ – Our home was on High Street, Accra Francis Kwaku Bruce was born in Accra.”In addition to the above-mentioned witness for the plaintiff, two witnesses of the defendant also gave material evidence. Emmanuel George Kwadwo Bruce, son of the plaintiff, was cross-examined and gave answers as follows:
“Q. Your grandfather’s name?
A. Francis Kwaku Bruce.
Q. He was born in Keta?
A. I was told so. I have been told of my family history.”
Then Edward Kwavie Bruce, son of Francis Kwaku Bruce and the brother of he plaintiff, was also cross-examined and gave answers as follows: “Q. You know Francis Kwaku Bruce?A. Yes. My father.
Q. He was born in Keta ?
A. Yes
Q. Your grandfather is James Kwamena Bruce?
A. Yes
Q. Born where?
A. Accra.
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No evidence was adduced on behalf of the defendant to contradict the evidence above set out adduced on behalf of the plaintiff; on the contrary, as already indicated earlier in this judgment, learned counsel for the defendant in his address to the court below had said that the defendant had no idea of the place of birth and it seems to me that the learned judge’s conclusions or findings with particular reference to the birth place of the plaintiff’s grandfather, “James Kwamena Bruce-popularly known as ‘King Bruce’,” were unwarranted. Ussher Bruce’s evidence that James Kwamena Bruce, his father, was born in Accra was unchallenged by any cross-examination, and the learned judge has given no reasons why he does not “place much reliance on Ussher Bruce’s evidence” on that particular point, namely, the birth place of his father. Moreover it seems to me the evidence on that particular point was confirmed by the evidence of (1) Paulina Bruce, to the effect that her grandfather came from Accra; (2) Edward John Bruce, to the effect that his father was “James Kwamena Bruce-popularly known as King Bruce -Our home was on High Street, Accra,” and (3) Edward Kwavie Bruce, that his grandfather was born at Accra-all of which evidence was not challenged by any cross-examination.
For the reasons above given I am of the opinion that the available evidence sufficiently established that fact that James Kwamena Bruce, grandfather of the plaintiff, was born in Accra within the jurisdiction and was a natural born British subject from which it follows as settled by De Geer v. Stone (supra) that the benefit of his British nationality ensures to his grandson, the plaintiff, even assuming he was born in Anecho outside the former Gold Coast as suggested by the defendant.
I am of the opinion therefore that, for the reasons above indicated, the plaintiff was entitled to his claim for a declaration that he was a British subject in and about 1944 when the Order-in-Council (No. 29 of 1944) dated 25 September 1944 was made against him, on both of the grounds relied on by him, i.e. that he himself was born at Abolove in the Keta District and that both his father and grandfather were natural born British subjects.
I would therefore allow the appeal, set aside the judgment of the trial court in favour of the defendant and instead substitute a judgment in favour of the plaintiff granting him the declaration claimed in terms of his writ.
JUDGEMENT OF VAN LARE Ag. C.J.
In my opinion this is manifestly a case in which the burden cast on the plaintiff should be even less as heavy as on a plaintiff in an ordinary suit, because it is a suit brought to remove
[p.186] of [1967] GLR 170
a penal imposition upon a Person treated as an alien under the repealed Aliens Ordinance, and who hasbeen denied British nationality, to which status he had previously been held by the government to be entitled and which he had enjoyed by reason of a British passport granted to him on 29 March 1920 and exhibited in the proceedings. It is significant to observe that section 3 (2) of the Deportation Act, 1957 (No. 14 of 1957), which places the burden of proof upon the person claiming nationality of this country had no equivalent in the provisions of repealed Aliens Ordinance, Cap. 43 (1936 Rev.), under which the appellant had been deported. It is not established that the appellant ever lost his status as a British subject. As the order deporting him being penal comes to be considered in a court of law it is usual in such matters to assume an attitude which is favourable and would not involve the imposition of the penalty. I am of course aware that it is the duty of a judge to make a construction as would suppress mischief and advance a remedy. In this case however, it is not clear to me what the mischief is which the order purported to suppress, but in view of the time, that is to say, during the war, when the order was made, if I may be permitted to conjecture, I would say that the presence of an alien in the country might be deemed not to be conducive to the public good. If my guess is right I should also be permitted to say that the circumstances have now changed; the war ended over ten years ago and even the en himself is now welcome to the country.
However, I should not proceed out of any feeling of compassion in forming an opinion in this case, but it is my duty to apply the law and proceed on legal principles. It has been argued that the decision in this appeal is based on a question of fact. It is a general rule that an appellate court should not disturb a finding of fact, but it is also equally true that an appellate court is not precluded from so doing. In the words attributed to Lord Merriman P. in the headnote to Simpson v. Simpson [1951] 1 All E.R. 955, D.C.: “There is an essential distinction between an appellate court finding that the evidence ought not to have been accepted by the tribunal which saw and heard the witnesses, and an appellate court accepting the totality of the facts found by the trial court, but holding nevertheless that in law those facts do not suffice to constitute the offence charged [or entitle the plaintiff for the declaration he seeks]. It makes the task of an appellate court very difficult if it is precluded from expressing an opinion about the conclusion, taking the evidence at its most favourable for the complainant for the plaintiff].”
[p.187] of [1967] GLR 170
In this appeal in which the primary issue is whether or not the appellant was born in this country we have the prima facie evidence supplied by a British passport, and from a baptismal register that the appellant was born in this country. In addition there is enough oral evidence to the same effect although there is some conflict in that respect. But on the balance of probabilities it is reasonable to conclude that the appellant had been born in this country. The learned trial judge however appeared to have had some difficulty and therefore concluded as follows: “In view of the uncertainty of the evidence, I do not think the plaintiff has established his claim, although it is all very borderline. There will be judgment for the defendant with costs.”
It would appear that the learned judge entertained a doubt in his mind on the material issue which he ought to have resolved in favour of the appellant in an action instituted to remove a penal order in respect of him. On the other hand, from the conclusion reached by the judge, I am not able to say that the court below made findings of a material fact with precision and particularity. The judicial process is a duty to resolve the facts in issue and facts relevant to the issue and then to apply the law to the facts found. Where a judge says, “it is all very borderline” I am afraid he cannot be taken to have made up his mind one way or the other with a degree of certainty. Following the case of Craven v. Craven (1957) 107 L.J. 505, C.A., it was the learned judge’s duty to make up his mind one way or the other where the appellant was born. Unless he did so on this primary issue this court is quite unable to say that the judgment delivered against the plaintiff was reached upon an issue which depended on findings of fact. Under the circumstances this court is left to decide for itself the point in dispute from the proper inference to be drawn from the evidence as a whole. In the result this court is in as good a position to evaluate the evidence as the trial judge, and entitled to reverse the decision in a case in which it considers that the trial judge has not resolved the essential facts.
I have already indicated my opinion that in a case such as this the primary issue should be decided by a probability or preponderance of probability. The judge should have directed himself on a line that if he thought the balance of probability to be in favour of the plaintiff he should sustain it; if, on the other hand he could not find on the evidence laid before him material to justify the conclusion that the balance of probability was in plaintiff’s favour then, and only then, should he find for the defendant. As in my view, the balance of probability in the case appears to favour the plaintiff he should have been entitled to the declaration he seeks. Cooper v. Slade (1858) 6 H.L. Cas. 746 is authority for the proposition that in
[p.188] of [1967] GLR 170a
civil cases preponderance of probability may constitute sufficient ground for a verdict. I am disposed to think that had the learned trial judge warned himself correctly his decision would have been otherwise, and I would therefore also allow the appeal.
JUDGMENT OF GRANVILLE SHARP J.A.
I agree.
DECISION
Appeal allowed.
S.Y.B.-B.
