ANANE AND OTHERS v. KRAH [1966] GLR 782
9 December 1966 · FRANCOIS J · ≈ 4 min read
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Division: HIGH COURT, KUMASI
Date: 9 DECEMBER 1966
Before: FRANCOIS J.
CASES REFERRED TO
(1) Gblevi Family v. Amanie (Practice Note) [1961] G.L.R. 1, C.A.
(2) Keteku v. Dzogbenuku (1956) 1 W.A.L.R. 134.
(3) Kwami and Kofi v. Adzonu (Practice Note) [1961] G.L.R. 1,C.A.
(4) R. v. Dogbe (1947) 12 W.A.C.A. 184.
(5) Chief Deabedy III v. Hayford, Court of Appeal, Cyclostyled Judgments, July-December 1959, p. 47, unreported.
[p.783] of [1966] GLR 782
NATURE OF PROCEEDINGS
APPEAL against the judgment of a local court by the defendants. The facts are sufficiently set out in the judgment. COUNSEL
Prempeh for Joe Prempeh for the appellant.
Owusu Afriyie for the respondent.
JUDGMENT OF FRANCOIS J.
This appeal is solely to determine whether the viewing of the land in dispute was so incompetently done as to vitiate the entire proceedings. Learned counsel for the appellant conceded from the start that on the facts, there was everything against him but he urged that since the procedural requirements laid down in Gblevi Family v. Amanie,1 upon a local court’s viewing of the locus in quo, had not been observed the appeal should be allowed and a trial de novo ordered so that a proper inquiry at the locus in quo could be made. I do not think this will serve a useful end for the following reasons.
The plaintiff gave a detailed account of the history relating to the acquisition of the land, its cultivation when a virgin forest, the parties to whom some parts were apportioned and other evidence about her occupation thereof. The plaintiff further called witnesses who formed boundary with her and the cumulative effect of their evidence was an impressive proof of the plaintiff’s title. On the other hand the defendant admitted he was shown his boundary when the plaintiff’s predecessor, a neighbour, was not present. The defendant’s first witness could only state he was permitted by both the plaintiff and the defendant to tap palm wine. The defendant’s second witness merely accompanied the parties to the land to check on the boundaries, but as the parties could not meet, the boundaries were not investigated. The defendant’s third witness claimed to have a boundary with the plaintiff but stated as follows, “I do not know the boundary of the first defendant’s land and the plaintiff.” In those circumstances a view of the locus in quo was superfluous.
The magistrate has painstakingly considered the evidence and I agree with the conclusion he arrived at as to the plaintiff’s title and I am not disposed to vary it. Though it may be preferable to have witnesses on a locus re-sworn to narrate their evidence in court upon re-assembling, I hold that it’s non-observance is not always fatal.
In the case of Keteku v. Dzogbenuku2 Lingley J. laid down the principle as follows: “If the viewer is a member of the court it is sufficient if he makes a report that can be attached to the proceedings in writing. It is unnecessary for the report to be given on oath.”
[p.784] of [1966] GLR 782
The principle was quoted with approval in the case of Kwami and Kofi v. Adzonu.3 It should be noted that it was in that case that van Lare J.A. first enunciated the principle adopting the criminal practice contained in R. v. Dogbe4 that witnesses at a locus in quo should be sworn on their return to court to give evidence on oath of what they had seen. Although the practice as enunciated in the case was strongly recommended for adoption by local courts a failure to do so is not necessarily fatal. The Gblevi case expounded the practice in detail, but in a review of the authorities on visits to the locus in quo by the Court of Appeal in Chief Deabedy III v. Hayford5 the Court of Appeal stated, “While this court does not approve of any laxity in relation to these matters we nonetheless do not regard what happened in the Native Municipal Court, Sekondi, as in any way invalidating the proceedings.”
In the circumstances I have no hesitation in confirming the judgment of the Local Court, Nsutah, and in dismissing this appeal with costs of ¢60.00 to the respondent. DECISION Appeal dismissed.
S. K. T.
