Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 9TH MARCH, 1959.
Before: OLLENNU J.
JUDGMENT OF OLLENNU J.
The proceedings in this case show that prior, to the institution of the suit, there had been litigation between the. appellant on the one hand, and the respondent and others on the other hand. The judgment in the last of these suits was admitted in evidence in the present proceedings, and marked Exhibit “B”; it was delivered by the Akwapim Native Court (Grade “A”) on the 17th January, 1956.
The case of the appellant is that the respondent has been trespassing on his portion of the family land since the date of that judgment. The case of the respondent is that he has not committed any further trespass on the portion of the family land which is in the possession of the appellant. The respondent contended that it was in respect of the same acts which resulted in the judgment (Exhibit “B”) that the appellant instituted the present action, not in respect of any fresh entry. His plea in substance, therefore, is that the matter is res judicata.
The native trial-Court, after hearing evidence, inspected the land, and came to the conclusion that the respondent had taken advantage of the absence of a clearly demarcated boundary between his farm and that of the appellant. They accepted the appellant’s evidence that he had fenced his land before the last suit (which in fact arose precisely because respondent and others had destroyed the fence), and it was upon that previously fenced land that the respondent had now committed a further trespass.
The Native Court did not record any report of what they saw at the inspection; they merely stated in their judgment that they were satisfied from what they saw at the inspection that the respondent had committed the trespass as alleged by the appellant. In other words, they believed the evidence of the appellant and rejected that of the respondent.
On appeal, the Native Appeal Court of Akwapim, at Akropong, reversed the findings of the trial Native Court “B” on the grounds that
(1) there was no evidence of fresh trespass committed by the respondent after the judgment of the 17th January, 1956;
[p.103] of [1959] GLR 101
(2) the native trial-Court had failed to include in the proceedings a report of their inspection; and
(3) they believed the respondent’s evidence that he did not commit any further acts of trespass after the judgment of the 17th January, 1956.
In my opinion the Native Appeal Court misdirected themselves on each of the three grounds upon which they reversed the judgment of the trial-Court.
As to the first ground of reversal, the appellant did lead evidence of trespass committed by the respondent after the judgment of 1956. Among other things he said in his evidence-in-chief:-
“Three days afterwards I met defendant in the farm. I lodged a complaint to the Local Authority Police, Mampong, and I was directed to take action against the defendant. I did, and he was found guilty, and I was awarded damages of £10, plus my costs. Defendant after this took action against me for £100 damages for trespass on his farm; Yaa Nyamfiwa and Afua Adobea joined as co-plaintiffs. It happened that the claim was withdrawn, and I was awarded costs of 18s. Defendant continued his trespass on my farm, and each time I lodged a complaint against him I was told to institute civil action. This brought about this action against defendant”.
The Native Appeal Court were therefore wrong when they said that there was no evidence of fresh trespass.
As to the second ground of reversal, it is not necessary that a report of inspection should always be recorded as part of the proceedings when a Native Court inspects land, the subject-matter of a suit being tried by them. (See the judgment of this Court delivered on 6th June, 1956, in Abado & anor. v. Kwesi & anor, which followed the judgment of the West African Court of Appeal in Badoo v. Ampung (12 W.A.C.A. 439)). If at the inspection a party or witness points out anything, or gives information which is vital for the decision of the case, that party or witness should be called into the witness-box to give that information on oath, and to be available for cross-examination by the other side.
The practice of the members of a Native Court going into the witness-box to give a report of an inspection, and to be subjected to cross-examination, is to be condemned, not merely because of its impropriety, but particularly because
(1) the Court becomes improperly constituted at the time when a member thereof goes into the witness-box to give evidence, and
[p.104] of [1959] GLR 101
(2) because the member or members of the Court who so give evidence become witnesses and judge in the same cause. No one can play this double role in the administration of justice. A person who is in a position to be a witness in a cause is disqualified from being a judge in that cause, for his decision might well be based not upon the evidence of the witnesses, but upon something known to him which might be other than the evidence before the Court.
The judgment of the Court of Appeal, delivered on the 29th October, 1958, in Adzornu & 2 ors. v. Kwami and anor., lays down the procedure to be followed.
As to the third ground of reversal, it cannot be over-emphasized that the question of credibility of witnesses is one primarily and principally for the trial-Court, who are privileged to see the witnesses, hear them giving their evidence, and watch their demeanour. It is not open to an Appeal Court except for very good reasons, which must appear in their judgment, to say they believe a witness whom the trial-Court disbelieved, and disbelieve a witness whom the trial- Court believed.
The Native Appeal Court were therefore wrong in reversing the decision of the trial-Court and their judgment must be set aside. Now, although the trial-Court found the respondent had trespassed on the appellant’s farm, made on a portion of the family land upon which both he and the respondent are entitled to farm separately, they did not award any damages against him. In this they erred. Trespass is a wrong which renders the offender liable to damages. The quantum of damages, of course, is in the discretion of the trial-Court; it may be nominal, it may be substantial. But once a trial-Court finds that trespass has been committed, it should award some damages. The omission must be rectified. But as it appears that the native trial-court did not take a serious view of the trespass committed, I award only nominal damages of 20s.
For the reasons given above, I allow the appeal, set aside the judgment of the Native Appeal Court, including their order as to costs, any costs paid to be refunded’. The judgment of the Native Court “B” is restored, except their order that no damages are allowed; for that order I substitute the following: “The plaintiff will have damages assessed at 20s.” The appellant will have his costs in this Court fixed at £5. 8s. and his costs in the Native Appeal Court fixed at 32s.
DECISION
Native Appeal Court to carry out.
