EDUFUL AND ANOTHER v. PANTSIL [1966] GLR 27

Division: SUPREME COURT

Date: 17 JANUARY, 1966

Before: OLLENNU, APALOO AND LASSEY JJ.S.C.

CASE REFERRED TO Nthan v. Bennieh (1930) 2 W.A.C.A. 1, P.C.

NATURE OF PROCEEDINGS

APPEAL from the judgment of the High Court, Cape Coast, reversing the decision of Gomoa Assin Local Court in an action for trespass and perpetual injunction.

COUNSEL

C. F. Hayfron-Benjamin for the appellants.

T. D. Brodie-Mends for the respondent.

JUDGMENT OF APALOO J.S.C.

This is an appeal from the judgment of the High Court which set aside a decision of the Gomoa Assin Local Court in a land matter. The appellants claimed that a piece of land which was said to be situate at a place called Gomoa Hwida and commonly referred to as Osibum belonged to their ancestors. They complained that the respondent trespassed onto that land and removed therefrom ancestral stones called “Apimii.” Accordingly, they sought against him in the local court, damages for trespass and a perpetual injunction. The appellants gave the boundaries of the land.

The respondent denied that the land belonged to the appellants’ ancestors and for his part, claimed that it was land part of which his ancestors settled upon for about 200 years. He said he, and his forbears before him, had lived on the land undisturbed for many years. With regard to the ancestral stones which sparked off the present litigation, the respondent claimed them as his own. He admitted removing them but said their removal became necessary as their ancient repository was affected by a proposed road and it became necessary to remove them to a place of safety.

Accordingly, notwithstanding the form of the plaint, the issue which the local court was called upon to determine was: Which of the two families own the land in dispute and hence the ancestral stones in question? Both sides gave evidence in support of their claims and called witnesses. The appellants were in no position to dispute the long undisturbed possession of the respondent on the disputed land. They sought to explain it away by evidence that their ancestors permitted the respondent’s ancestors to occupy a portion of their

[p.29] of [1966] GLR 27 land. The appellants claimed that even a year before the action, the respondent sought and obtained the permission of their caretaker before farming on a portion of the land. All these averments were denied by the respondent.

On the conclusion of evidence, the local court magistrate conducted an inspection of the locus and thereafter made written notes of his observations. Most of this is unhelpful and nothing emerged from the inspection decisive of this case. Shortly after the inspection, the magistrate delivered his judgment. A substantial portion of it is a reproduction of the appellants’ evidence. The local court magistrate made no attempt to assess the value of the oral evidence and clearly did not express acceptance of the appellants’ claim that the respondent’s family came on the land by their leave and licence. He made no more than a most cursory reference to the respondent’s case. He however felt able to conclude the case in favour of the appellants, on the ground, in so far as it is possible to determine this from his judgment, that he accepted the evidence of the appellants’ second witness, a man by the name of Kwa Okwasie. Holding therefore that the land belonged to the appellants’ ancestors, the magistrate held that the trespass was proved and proceeded to award damages against the respondent. This judgment was appealed against to the High Court which reversed it. The learned judge was of opinion that the judgment of the local court did not resolve the facts in issue and was based principally on the court’s view of the locus and the evidence of Okwasie who gave no evidence of the boundaries. The judge also thought the magistrate gave inadequate consideration to the respondent’s case and was in any event influenced by extraneous matters. The reason for this appears to be that the magistrate gave great prominence in his judgment to an incident between the parties in which the respondent was said to have threatened the first appellant with a gun and had, before the action, been convicted before the district court of threatening.

The appellants claiming to be aggrieved by the allowance of the appeal by the High Court, appealed to this court on the ground that the learned judge of the High Court was wrong in reversing the decision of the local court as that court made, what their counsel claimed, were stark findings of fact. Counsel referred us to the case of Nthan v. Bennieh,1 and submitted that findings of fact arrived at by local courts should not be disturbed unless there is clear proof that they are wrong.

[p.30] of [1966] GLR 27

For myself, I cannot see that the magistrate made any findings of fact. The evidence revealed many controverted issues which the magistrate on a proper evaluation of the evidence could have determined. For example, whether or not the disputed land was first settled upon by the appellants’ or the respondent’s ancestors; if it was settled upon by the former, whether the respondent’s long possession was satisfactorily explained; whether the appellants’ claim that recent farms were made on the land by the respondent with their leave and licence was established; and whether the documents tendered by the respondent proved helpful in determining the issue of title raised between the parties. For the resolution of these issues, I fail to see how a visual inspection of the locus can afford much assistance. But nevertheless the magistrate based his decision almost wholly on his view of the locus and as he said the “surrounding circumstances of the whole case.” The magistrate seemed to have placed great reliance on the evidence of the plaintiffs’ second witness Okwasie but as the learned judge rightly observed, this witness did not even give the boundaries of the land. Except for the incident involving the gun, his evidence was almost entirely traditional. Had the magistrate properly evaluated the evidence of both sides, keeping in mind the principle that the defendant was entitled to remain in possession until the plaintiff established a superior title, he would have felt himself constrained to say that the plaintiffs failed to make out their case. That would entitle the defendant to a verdict.

In my opinion, the learned judge’s criticism of the appellants’ case is well merited and I agree that the judgment of the local court ought not to be allowed to stand. But I cannot share his view that there are any grounds to justify a retrial nor am I able to discover what rule of law entitled him to nonsuit the plaintiffs who had failed to make out their case and to give them liberty to harass the defendant with a fresh action. I think that part of the order is wrong and I would expunge it from the judgment. For it, I would substitute an order dismissing the plaintiffs’ claim and entering judgment for the defendant.

Subject to that I would dismiss this appeal with costs.

JUDGMENT OF OLLENNU J.S.C.

I agree.

JUDGMENT OF LASSEY J.S.C. I also agree.

DECISION

Appeal dismissed.

E. D. K.