ATIAFU AND ANOTHER v. DZAKA
[HIGH COURT, HO]
DATE: 17TH APRIL, 1962
COUNSEL
F. T. C. Amorin for the defendant-appellant.
G. S. Lassey for the plaintiffs-respondents.
JUDGMENT OF PREMPEH J.
The claim of the plaintiff-respondents in this matter was as follows:
“That plaintiffs jointly and severally claim from the defendant the right title of ownership to all the piece
or parcel of farming land with palm groves situate and lying at Sesekpe known and called
Kewuitakpodzi the bona fide property of the plaintiff’s late great-grandfather by name Atsiafu. The first
plaintiff went and hewed 18 palm trees when defendant caused the arrest of the first plaintiff for hewing
his (defendant’s) eleven (11) palm trees.”
They then gave boundaries of the land and proceeded:
“First plaintiff therefore claims from the defendant the sum of £G50 compensatory damages from
defendant for the arrest caused.”
The trial court heard the parties and their witnesses, and in the penultimate paragraph of its judgment
it recorded as follows:
“Plaintiffs on the whole have established their title of ownership to the farm land defined in the claim
before me; I accordingly found defendant liable; judgment entered for the plaintiffs for £G20 damages
with costs to be taxed against the defendant.”
Upon the appeal coming up for hearing, counsel for the appellant took a preliminary point that the
procedure adopted at the trial was such that this court should regard the trial as unsatisfactory.
Counsel pointed out that the trial court erred in hearing together the respondents’ claim of title to the
land and also the claim in tort. To substantiate that argument he referred to passages in the appeal
record to show that these issues were actually adjudicated upon.
In answer to that argument counsel for the respondents maintained that the real issue which the trial
court adjudicated upon was one as to ownership of the land; that the form of the writ was not to be
looked at, and that this court has power to expunge from the judgment the award of damages made in
favour of the respondents. This argument was said to follow from the decision of the Supreme Court,
Ghana, in the case of Sedzro and Ors. v. Bidigor and Anor.1(1)
[p.282] of [1962] 1 GLR 280
I think that this is an interesting point. I have considered the case of Kwamin Akyin v. Essie
Egymah2(2) the effect of which is that an appellate court shall look to the real issue involved between
the parties in the case and not to the form in which an action is brought before a native trial court. It is
to be observed though that the trial court herein is not a native court or tribunal.
The second remedy which the respondents sought in the particulars of their claim is clearly one in tort
for £G50 damages for unlawful arrest, and in their evidence they made it quite clear that they were
claiming not only title to land, but also for damages for the unlawful arrest. The award of £G20
damages follows from the claim and the evidence adduced by the respondents, and in those
circumstances I am unable to accept the respondents’ contention that the only issue tried and
considered by the trial court was one as to title to the land.
In the case of Solomon Jonah v. Kojo Owu,3(3) the plaintiff claimed as follows:
“Plaintiff claims the sum of £25 damages from the defendant to show cause why if the plaintiff promised
to show him boundary of land of forest on his own wish and has not got the chance to do so, the
defendant seized the plaintiff from entering into the said land of forest in which farms are made for
foodstuffs.”
The particulars of claim in that case although couched in different words are strikingly like paragraph
2 of the particulars of the respondents’ claim herein, and in that case their lordships held that the
cause of action was not one relating to land, and accordingly set aside the judgment of the Provincial
Commissioner’s Court which purported wrongly to entertain an appeal from the native court and the native appeal court on that issue.
As I have already indicated, on the evidence, the trial court dealt with and considered both claims as
to title to land and as to the tort, and it is my view that that court could not have been properly seised
with both these claims, and should not have adjudicated upon both together at the same time, because
since the appeal is against both the decision given as to title to the land and as to damages for the
unlawful arrest, the appeal against the award for damages for the tort cannot lie to this Land Court.
I think that the circumstances of this case can be distinguished from those in Sedzro and Ors. v.
Bidigor and Anor. above referred to, because it can properly be inferred from the finding in that case
that the real issue which the native court tried and considered between the parties was only as to
ownership of land and consequently it made no award for damages on the claim for the alleged
unlawful arrest.
For these reasons it is my view that the trial was unsatisfactory, and I think that it will be in the
interest of justice if a re-trial were ordered for those claims to be heard separately. Accordingly I do
allow the appeal and set aside the judgment of the trial court, but order the case to be remitted to the
trial court to be by it tried de novo with directions that the claims should be heard separately. I award
the appellants 10 guineas costs in this court. Costs of the abortive hearing to abide the results of the
rehearing.
DECISION
Appeal allowed;
case remitted for re-trial.
