SUPREME COURT, ACCRA
DATE: 29TH JUNE, 1962
BEFORE: KORSAH, C.J., SARKODEE-ADOO AND CRABBE, JJ.S.C.
CASES REFERRED TO
(1) Dua III v. Tandoh (1927) P.C. ‘74—’28, 109
(2) Colonial Securities Trust Co. Ltd. v. Massey [1896] 1 Q.B. 38, C.A.
(3) Smith v. Land and House Property Corporation (1885) 28 Ch. D. 7, C. A.
(4) Savage v. Adam [1895] W.N. 109
(5) Busu v. Shardow (1929) F.C. ‘26—’29, 357
(6) Quaye v. Mariamu [1961] G.L.R. 93, S.C.
(7) Bruce v. Attorney-General, Court of Appeal, July—December, 1957, unreported
(8) Nubuor v. Ampadu, Court of Appeal, May 31, 1960, unreported
(9) Craven v. Craven (1957) 107 L.J. 505, C.A.
(10) Asante v. Sarkis, Supreme Court, November 29, 1960 unreported
(11) Sheldon v. Goodrich (1803) 8 Ves. Jun. 497
(12) British Launderers’ Research Association v. Borough of Hendon Rating Authority [1949] 1 K. B. 462
(13) Benmax v. Austin Motor Co. Ltd. [1955] A. C. 370
(14) Velasques Ltd. v. Inland Revenue Commissioners [1914] 3 K.B. 458
(15) Young v. British Aeroplane Co., Ltd. [1944] 1 K.B. 718
(16) Olympia Oil and Cake Co., Lid. v. Produce Brokers Ltd. (1915) 112 L.T. 744
(17) Stringer v. Automatic Co. [1956] 1 All E.R. 327
(18) Mersey Docks and Harbour Board v. Proctor [1923] A.C. 253
(19) Riekmann v. Thierry (1896) 14 R. P.C. 105
(20) Carmarthenshire C.C. v. Lewis [1955] A.C. 549
(21) Morris v. West Hartlepool Steam Navigation Co. Ltd. [1956] A.C. 552
NATURE OF PROCEEDINGS
APPEAL from a judgment of D. E. Gwira, Esq., Commissioner of Assize and Civil Pleas delivered in the Land Court, Accra, in an action for declaration of title to land, injunction and damages. The facts are sufficiently set out in the judgment of the Supreme Court.
COUNSEL
Hayfron-Benjamin (with him G.S. Lassey) for the appellants.
B. J. da Rocha for the respondent.
J. Reindorf for the co-respondent.
JUDGMENT OF KORSAH C.J.
This is an appeal from the judgment of D.E Gwira, Esq., Commissioner of Assize and Civil Pleas sitting in the Land Court, in a suit originally instituted by Nii Akrama Nukpa as head of Onamrokor family against Amadu and Braimah as defendants, in the Ga Native ‘B’ Court. The claim reads: “The defendants are licensees working a quarry on a portion of the plaintiff’s family land at Apenkwa subject to the payment of monthly toll or rent of £G5.
The defendant has not paid such monthly rent for the past six months (six months inclusive) and plaintiff therefore claims the sum of £G30 arrears of rents or tolls due and (2) perpetual injunction to stop the defendants from further working on the plaintiff’s land for failing to pay his tolls aforesaid.”
By an order of Jackson, J., the case was transferred from the Ga Native ‘B’ Court to the Lands Division of the High Court. While the case was pending in the High Court, Dr. C. E. Reindorf was substituted for Nii Akrama Nukpa who died during the case; also Nii Arday Ankrah acting head and representative of Manche Ankrah family was upon his application joined as co-plaintiff on the ground that during the survey ordered by !he court in connection with the case, the co-defendants had included portion of land the property of the Manche Ankrah family in the said co-defendant’s counter-claim. Nikoi O’Lai Amassa, head of the Nikoi O’Lai family of Asere Djorshie, on whose
death Nii Amon Kotey was substituted, was joined as co-defendant. Thereafter, the claim was amended to read:
“(1) The plaintiffs claim declaration of title of the plaintiff’s family of the quarry site.
(2) Perpetual injunction against both the original defendant and the codefendant from further entering upon the said land.
(3) £G100 damages for trespass.”
By the statement of claim, the Onamrokor—Adang family of Abola, Accra claim to be owners of a larger piece of land known as Dome situate by and along the new main Accra—Nsawam road of which the subject-matter of this dispute is a portion; that they acquired it through their ancestor Ayai Pekoe to whom the land had been granted by the Korle Webii (i.e. Korle priests) many generations ago; that since the grant their ancestors have been in undisputed possession and occupation thereof, and have at all times exercised rights of ownership thereon, and have successfully maintained several actions in respect of portions of the said Dome land whenever there had been any encroachment upon their said rights; that the co-defendants are estopped from denying the plaintiffs’ title by virtue of several acquisition claims they, the plaintiffs, have successfully maintained when the government had acquired portions of the said Dome land immediately abutting the area in dispute. The plaintiffs therefore claim (a) declaration of title, (b) perpetual injunction, and (c) £G100 damages.
By their statement of defence, the defendants and co-defendant deny that the several judgments upon which plaintiffs rely in any way affected the rights of the Nikoi O’Lai family of Asere Djorshie and Nii Ashare family of both of which the co-defendant is the head, with respect to their family land known as and called Mukose land, part of which is claimed by the plaintiffs. The co-defendant further pleaded estoppel against the plaintiff by virtue of a judgment in a case entitled Nikoi O’Lai v. James Adams & Ors. in which judgment was delivered on the 22nd November, 1951, in favour of the plaintiff. The last paragraph of the statement of defence
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reads: “The co-defendant claims: A declaration of title to such portion of the said Mukose land as may be included in the area claimed by the plaintiff.”
It will be observed that although the original claim related to the quarry only, the subject-matter of the suit was extended to embrace a much larger area of land which the plaintiffs claim their ancestor had acquired over two hundred years ago; as the result, the evidence adduced by the plaintiffs was partly of tradition and partly of occupation and possession by members of the family and tenants or licensees. The defendants also adduced evidence of tradition and of occupation and possession by members of their family and tenants or licensees.
Apart from the oral evidence both parties tendered in evidence judgments which each claimed operated as estoppel against the other in previous litigations with regard to portions of the land which the plaintiff called “Dome” and the defendant called “Mukose”.
By the order of the trial court, a plan of the land subject-matter of the dispute was made by George Hansen, a licensed surveyor and tendered in evidence marked exhibit C on which has been superimposed two plans of portions of the said land made in previous litigations relating to the respective claims of the parties.
Martin Williams Jacobson was upon his application made second co-defendant upon the allegation made by him, that portion of the land in dispute had been granted by the plaintiff-family to him and that he had been in possession of that portion since 1920; he however admitted that in a suit No. 1660/48 Nii Akramah Nukpa as head of and lawful representative of the Onamrokor We Family versus Martin William Jacobson and Others, wherein the plaintiff-family claimed recovery of possession and damages in respect of a portion of the land in dispute in this case, judgment was delivered in September, 1948, in favour of the plaintiff family. This judgment has a particular reference to the appeal before this court because it relates to the site of the quarry where the defendants Amadu and Braimah were engaged in breaking stones and which is the immediate cause of the present litigation.
With regard to the site of the quarry the evidence of Amadu Zabrama, the first defendant-appellant here in clearly shows that he and his co-workers obtained permission from Jacobson. I quote the relevant parts: “I first obtained permission from Jacobson. There was nothing there but there was another quarry at Apenkwa. Three of us had permission. Myself, Blackman Busanga, and Braimah Dagomba. All of us had permission from Jacobson. I was then living at Akweteman with Atta Kwamin. I knew Dorman. I knew his son, we were to pay rent of £G5 to Jacobson.”
“I was sued because I was found quarrying on this land. There was one Blackman Busanga among us, I did not know him before. I started together with him. Busanga and Braimah asked permission on our behalf. I saw some Tigari people in the area. I went to Jacobson because Braimah knew him. I did not know Jacobson before. It was not more than a year after he had given us permission to quarry there: we collect the rent and give it to Busanga, but Jacobson comes and we pay it to him. I do not know Nii Tetteh Quarcoo. Jacobson did not tell us he had been sued by the owners he told us he will not come for the money again, but the owners will come. I saw the man the second time who came to collect money: it was not Quarcoo. All of us are present when Busanga pays the money: up till the time that we were summoned we never paid anything to plaintiffs. Busanga never paid any tolls to plaintiff. Jacobson told us his master will come and collect the money: his master is Manche Webiiye. We did not understand him so we stopped work. We never paid tolls to the co-defendant family until Tackie Tawiah II had been buried there.”
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It is observed that the village Akweteman where the defendant, said he, Busanga and Braimah lived when they obtained permission to work at the said quarry, is shown on the plan exhibit C to be outside the area claimed by the co-defendants. This village almost immediately abuts what the co-defendants claim to be the eastern boundary separating what the co-defendants claim to be their land from what they say is the plaintiffs’ land. This line which co-defendants say is their eastern boundary is in fact a line dividing the area claimed by plaintiffs as one piece of family land, part of the Dome land contiguous with the portions acquired by the government from the plaintiffs in the acquisition claims in which the plaintiffs were declared to be owners of the pieces or parcels of land acquired for the railways, police depot, police training school and posts and telecommunications respectively.
With respect to the several acquisition cases, in which the court declared the plaintiff-family to be owners of the portion of Dome land acquired by the government for the purposes above stated, it is significant that the Asere Djorshie family, the co-defendants, do not appear to have been interested in any portion of the land in that area. In any case they do not suggest that they filed any claim during the various enquiries. If the co-defendants’ eastern boundary had been the western boundary of the plaintiffs’ land, as it is now being suggested by the co-defendants, it is, to say the least, surprising that there is no evidence whatsoever that during any of the enquiries the co-defendants were ever cited or referred to as having a common boundary with the plaintiffs in any part of Dome land. The first judgment of the said acquisition claims was decided in 1930, when Hall, J. in judgment said: “There
is no doubt that the family of which Tettey Kojo is the representative now before me have been in possession of the land in the land in question for a considerable period of time …. I accordingly hold that Tettey Kojo the opposer is entitled to receive the compensation money”. The last of the acquisition claims was decided in 1948 in favour of the plaintiff family.
The co-defendants however also pleaded estoppel against the plaintiffs thus: “In the Suit No. 31/1948, entitled Nii Amasa Nikoi O’Lai versus James Adams and others and determined on the 22nd day of November, 1951, in the Land Court, Accra, in favour of the plaintiff herein, the said plaintiff did not intervene although the case involved a part of the land claimed by him.”
In the course of the proceedings in the instant case the judgment of Jackson, J. in suit No. 31/1948 Nii Amasa Nikoi O’Lai versus James Adams & 5 Others was tendered and marked exhibit M2. I have had the advantage of reading the judgment which states it was a dispute between two Asere families over a piece of land which both parties admitted was land attached to the stool of the Asere Manche, their overlord. I quote material paragraphs in the said judgment: “The evidence shows that wherever villages of any size have been established on that land, that a headman or Onukpa has been appointed by the Asere Manche, and whose duty it was to collect tolls from any strangers who might receive permission to farm upon that land. The permission was sought and obtained from the headman , the tolls collected were taken by the headman to the Asere Manche, and which became then a part of his private or stool revenue, i.e. until the 1st April, 1945, when such profits became one of the sources of revenue of the Native Authority (section 32 (1) (b) of Ordinance No. 21 of 1944).”
“I am satisfied that the tolls collected were paid by the collector to the Asere Manche and of that fact there appears to be no dispute.”
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“The evidence is perfectly clear that the land at the date of the issue of the writ was Asere stool land and had been Asere stool land for very many years before the issue of that writ.”
“I do accordingly dismiss the claim in trespass for damages. Costs to be taxed. (Fees for plaintiff’s counsel I assess at 80 guineas.) These are the costs payable by the defendants to the plaintiff.”
As the plaintiff’s claim in that case was for a declaration of title to the land in question, and the final order having dimissed that claim, I fail to see by what principle of law the plaintiff in that case, now co-defendant herein could rely on that judgment to support his plea of estoppel against the plaintiff in the instant case, who was not a party in that suit, and is not privy to any of the parties in that case of Nii Amasa Nikoi O’Lai versus James Adams & Others. The co-defendants’ plea of estoppel against the plaintiffs must therefore fail.
The root of title of both parties is based largely on the tradition of their respective families and the traditional history of the Ga State. I would here refer to the opinion expressed by Lord Buckmaster in the judgment of the Privy Council in Omanhene Kwaku Dua III v. Omanhene Kwamin Tandoh1(1) “The evidence was traditional, handed down by one chief linguist to another, and as tradition there is no reason to think it was not fairly given. But tradition though of great value when supported by action and facts, becomes of lessened consequence when brought into collision with a series of definite incidents inexplicable if the tradition be regarded as accurate.”
After the conclusion of the evidence and inspection of the land in this case the learned commissioner delivered his judgment in which he said, inter alia: “I will say off-hand that I am more impressed by the evidence led by the plaintiffs and their witnesses.
That they have proved that they are owners of all that land known as Dome land as shown on exhibit C by their possession and occupation, and trespass has been committed. The traditional evidence led by the co-defendants and their witnesses is inconsistent and unreliable and in my view does not show any evidence of possession and occupation. I visited and inspected the land in dispute and the report is exhibit 18 and the physical features as the pillar marks support the case for the plaintiffs.”
This portion of the judgment has been the basis of this appeal. Counsel for appellant has urged that it was the duty of the learned commissioner to have made specific findings of fact on all the matters upon which the defendant had adduced evidence, and as that has not been done the case should be remitted to the court below for re-trial.
I am unable to accede to this request, for the simple reason that the passage in the judgment clearly shows that the court accepted the evidence of plaintiffs and their witnesses, and found “That they (plaintiffs) have proved that they are owners of all the land known as Dome land as shown in exhibit C by their possession and occupation, and trespass has been committed”. With regard to the defendants’ case, the learned commissioner having come to the conclusion that the traditional evidence led by the co-defendants and their witnesses is inconsistent and unreliable, also that it does not show evidence of possession and occupation, there was no need for him to discuss in detail what each witness said. In my view having found that the plaintiffs are in possession and occupation, and having accepted their traditional evidence he had made the basic
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findings upon which he came to the conclusion that the plaintiffs are entitled to the declaration sought. In Colonial Securities Trust Company Ltd. v. Massey & Others2(2) Lord Esher, M.R. said: “I have frequently stated this rule; and I think it is well expressed by Lopes L. J. in Savage v. Adam. The matter is thus stated: ‘Where a case tried by a judge without a jury comes to the Court of Appeal, the presumption is that the decision of the Court below on the facts was right, and that presumption must be displaced by the appellant. If he satisfactorily makes out that the judge below was wrong, then inasmuch as the appeal is in the nature of a rehearing, the decision should be reversed: if the case is left in doubt, it is clearly the duty of the Court of Appeal not to disturb the decision of the Court below.’ With the rule so stated I entirely agree.”
In Smith v. Land and House Property Corporation3(3) it was held: “also, that, as the positive testimony of the chairman, that but for this representation the company would not have bought, was not shaken on cross examination, and was believed by the Judge who saw and heard the witness, the Court of Appeal would not disturb the finding that the representation had induced the company to enter into the contract, and that the appeal must be dismissed.”
In Savage v. Adam4(4) Lopes L.J. said: “Where a case tried by a judge without a jury comes to the Court of Appeal, the presumption is that the decision of the Court below on the facts was right, and that presumption must be displaced by the appellant. If he satisfactorily makes out that the judge below was wrong, then , inasmuch as the appeal is in the nature of a rehearing, the decision should be reversed; if the case is left in doubt, it is clearly the
duty of the Court of Appeal not to disturb the decision of the Court below.”
I have accordingly examined the evidence on record to see if the judgment of the learned commissioner can be supported by evidence on record, and I have come to the conclusion that apart from the fact that the learned commissioner did not believe the co-defendant and his witnesses, the plaintiff was entitled to succeed also on the plea of estoppel. Indeed had the learned commissioner discussed the various judgments I have no doubt that he would have found sufficient evidence to sustain the plaintiff’s plea of estoppel.
The learned commissioner’s finding “That they [plaintiffs] have proved that they are owners of all that land known as Dome land as shown on exhibit C by their possession and occupation, and trespass has been committed”, is in my view supported by evidence on the record; furthermore the presumption that the decision of the court below on the facts was right has not been displaced by counsel in this court.
Counsel for appellants’ contention that no trespass was proved is not borne out by the record and the plan of the area in dispute. There is also the evidence of the original defendant, Amadu, which clearly proves that rents due to the plaintiffs have been appropriated by defendants ever since the action was instituted. The learned commissioner was therefore entitled to award the general damages claimed by the plaintiffs. It is, however, observed that £G50 damages have also been awarded to the co-plaintiffs even though they did not claim any damages. This is an error which should be rectified, and I would accordingly amend the judgment by deleting the words and figures “for £G50 damages” in the portion of the judgment for the co-plaintiffs against the co-defendants. Subject to this amendment I would dismiss this appeal with costs.
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JUDGMENT OF SARKODEE-ADDO J.S.C.
I agree.
JUDGMENT OF CRABBE J.S.C.
I have had the advantage of reading the judgment of the learned Chief Justice, and I agree that subject to the rectification of the award of £G50 damages this appeal should be dismissed so far as the judgment in favour of the co-plaintiff is concerned. With respect to the appeal against the judgment in favour of the plaintiff, however, the questions which arise in this appeal are of great and general interest, and I need hardly say that it is with diffidence and hesitation that I differ from the Chief Justice and my brother Sarkodee-Adoo. But notwithstanding the respect and deference which I feel for their opinions, I am unable, after a very careful and anxious consideration, to come to the conclusion that the learned Commissioner of Assize and Civil Pleas in the court below properly performed his judicial functions. I feel bound, therefore, to give my reasons for disagreement at considerable, but I hope not undue, length.
The plaintiff-respondent’s predecessor in title brought a suit against the defendants in the Ga Native ‘B’ Court, Accra, claiming (a) the sum of £G30 being arrears of rents and tolls for working a quarry at Apenkwa, the plaintiff’s family land, and (b) perpetual injunction to restrain the defendants from further operation on the land.
On the application of the co-defendant-appellant (hereinafter referred to as the co-defendant) he was joined to the proceedings, and the plaintiff respondent then amended his claim.
The suit was thereafter transferred to the Land Court and pleadings were ordered and filed, and the present plaintiff-respondent (hereinafter called the plaintiff) was subsequently substituted as representative of the Onamrokor-Adang Family.
The evidence on the whole was largely of tradition and each side also relied on judgments of various courts of competent jurisdiction as creating estoppel per rem judicatam and also estoppel by conduct.
After a trial lasting six months the learned Commissioner of Assize and Civil Pleas gave judgment in which he briefly traced the chequered course of the case and then referred cursorily to the nature of the traditional evidence adduced at the trial. The material parts of this judgment are as follows: “I will say off-hand that I am more impressed by the evidence led by the plaintiffs and their witnesses.
That they have proved that they are owners of all that land known as Dome land as shown on exhibit C by their possession and occupation, and trespass has been committed. The traditional evidence led by the co-defendant and their witnesses is inconsistent and unreliable and in my view does not show any evidence of possession and occupation. I visited and inspected the land in dispute and the report is exhibit 18 and the physical features as the pillar marks support the case for the plaintiffs.
As regards the case of the co-plaintiff, the co-defendant has admitted that he does not dispute the title of the co-plaintiff but he alleges that he has not committed trespass on the co-plaintiff’s land. Exhibit C clearly shows that some trespass was committed which later sought to be rectified by exhibit 13, that being so he is entitled to some damages.”
The learned Commissioner of Assize and Civil Pleas then granted reliefs to the plaintiff and co-plaintiff.
In this appeal no less than 29 grounds of appeal have been filed on behalf of the co-defendant. His counsel, Mr. Hayfron-Benjamin, first argued ground three of the grounds of appeal and this reads as follows: “That the whole trial is unsatisfactory in the absence of definite findings of
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fact on relevant important issues involved.” He submitted that issues of estoppel and res judicata were raised, and that both being questions of fact and law it was incumbent on the learned Commissioner of Assize and Civil Pleas to rule on them and to say in what way he was influenced by these questions in coming to his conclusion. Mr. Hayfron-Benjamin relied on the case of Ali Busu v. S. Shardoiv and Another,5(5) and submitted, rather confidently, that on this point alone the appeal ought to be allowed and the case sent back for re-trial. The headnote in Ali Busu v. S. Shardow and Another (supra) reads as follows: “Where no findings of fact had been made by the court below, it was ordered that the case be sent back to be reheard and that the respondents should pay to the appellant one-half of the cost of the judge’s records in the Appeal Court, the cost of the first trial in the court below to abide the result of the second hearing.”
This principle appears to have been accepted and confirmed by the Supreme Court in many cases, the most recent of which is Robert Tettey Quaye v. Madam Mariamu.6(6) (Korsah, C.J., van Lare and Akiwumi. JJ. S.C.) The judgment appealed from in that case was a short one, and there the learned trial judge without giving any reasons simply expressed the opinion that the plaintiff had not been able to discharge the onus which lay on him, and he was also of the opinion that the deed of gift to the plaintiff did not confer title as claimed by him. The defendant’s counter-claim was also dismissed summarily “as there is no evidence whatsoever in proof of the trespass alleged and to be granted an order for perpetual injunction she must prove that she is in possession as owner thereof”. It is obvious that the learned trial judge did not record any findings of the primary facts or the issues raised at the trial.
In delivering judgment in the Supreme Court, van Lare, J.S.C., said7(7): “The sole matter of complaint in this appeal is that the learned trial judge had not found the primary facts and that the judgment is vague. I think there is great force and substance in this contention. This court can only do justice between the parties if it is satisfied that the foundation has been laid by the trial judge whose duty it is to resolve the primary facts. Once the facts are found an appellate court is in as good a position as a trial judge to draw inferences or conclusions from those facts; but it cannot embark on this task unless the facts are resolved. This court has often expressed the opinion that if the question “What are the facts found? Cannot be answered with precision and particularity the judgment ought to be held unsatisfactory and a new trial ordered because the judicial process had not been applied.
There is no doubt in my mind that before writing his judgment the learned trial judge must have directed his mind to the matters in issue to which I have already referred before coming to the conclusion which he reached but unfortunately the written judgment appealed from is only the bare conclusion reached which in my view falls short of a reasoned judgment required by law. While it is safe for this court to conjecture the exercise that went on in the mind of the trial judge before he wrote his judgment it is impossible on the other hand to conjecture the trial judge’s findings on the several facts which he must arrive at but unhappily sub silentis. It is a trial judge’s duty to make up his mind one way or the other on the primary facts and when he has made up his mind he should state his findings and then proceed to apply the law. It is only then that this court can properly adjudicate as to whether the facts are properly found or the inferences properly drawn or the law properly applied.
Although this court is not debarred from coming to its own conclusion on the facts, it cannot in this present case resolve the matters in controversy between the parties one way or the other in the absence of findings of the primary
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or the material facts, I am therefore impelled to the view that the trial of the case was unsatisfactory and there must be a re-trial, and I would therefore allow the appeal and set aside the judgment appealed from, but remit the case to the court below for a re-trial.”
Both Korsah, C.J., and Akiwumi, J.S.C., agreed entirely with this comprehensive and, seemingly accurate statement of the law.
The principle appears to have been first applied after Independence by the Ghana Court of Appeal in Emmanuel Bruce alias Emmanuel Mensah Bruce v. Attorney-General.8(8) (van Lare, Acting C.J., G. Sharp, J. A., Adumua-Bossman, J.). It was again applied in the joint-judgment of the Ghana Court of Appeal in Tetteh Nubuor v. K. A. Ampadu9(9) (Korsah, C.J., van Lare and G. Sharp, JJ.A.)
In Tetteh Nubuor v. K. A. Ampadu the claim was for damages for the negligent driving of the defendant and for loss of earnings arising from such negligence. The judgment of the trial court was a detailed summary of the entire facts adduced at the trial except for the concluding paragraph which reads as follows: “From the evidence it appears the plaintiff was driving on Rowe Road at about 7 p.m. as he was going in the direction of the lorry station. At the Barnes Road and Rowe Road junction the defendant’s car knocked him and his car went off the road and stood over the gutter and was damaged. The defence on the other hand contends that plaintiff was drunk and was careless. The question of drunkenness has not been proved and I am not satisfied that he was to blame for the accident. I therefore give judgment for the plaintiff against the defendants jointly and severally for £G608 19s. 10d. with costs, £G22 10s. inclusive. I dismiss the defendant’s counterclaim.”
To my mind this judgment is a model as compared with the judgment in the present case. The defendant appealed against this decision and the joint judgment of the Ghana Court of Appeal is as follows: “In this case, the plaintiff claimed the sum of £G608 19s. 10d. on the ground that defendant drove his car without due care in consequence of which the plaintiff suffered loss to the amount claimed.
After hearing the evidence, the learned judge merely gave a precis of the evidence of the various witnesses without making any findings as to the facts upon which he based his judgment.
The case of Craven v. Craven, C.A. (England) reported in The Times, June 5, 1957, is in point. It was held ‘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. If the question:—what were the facts found? could not be answered with precision and particularity the judgment ought to be held to be unsatisfactory.’
In my view the case of Tetteh Nubuor v. K. A. Ampadu (supra) is much stronger than this present one, because there even though the learned Commissioner of Assize and Civil Pleas failed to make any findings as to the relevant facts in issue yet he made the supreme effort of giving a summary of the evidence of the various witnesses before stating his conclusions. But in spite of this effort the Ghana Court of Appeal relying solely on Craven v. Craven10(10) said: “In that case a re-trial was ordered and we adopt this practice in the interest of justice.”
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The first case in which the principle in Craven v. Craven (supra) was applied on Ghana becoming a Republic is C. K. Asante v. Sarkis11(11) (van Lare, G. Sharp, Sarkodee-Adoo, JJ.S.C.) This court relied on the previous case of Tetteh Nubuor v. K. A. Ampadu (supra) and said in its joint judgment as follows: “We have not the facts, nor facts relevant to the issue which the commissioner decided and there can be no question that the trial is unsatisfactory.
In the result we are of the opinion that there was no proper trial and we have no alternative but to set aside the judgment appealed from. The case is remitted to the court below for a re-trial in whole.” I have referred to these cases in order to show that the principle that if in any particular case the question what are the facts found cannot be answered with precision and Particularity the judgment might be held to be unsatisfactory, has been followed during the past years with such consistency by the highest tribunal in this country that it cannot now be departed from. “It is better”, said Lord Eldon, “the laws should be certain, than that every judge should speculate upon improvements in it”: see Sheldon v. Goodrich.12(12)It is always important in any particular case to draw a distinction between a finding of fact and the inference drawn from a finding of fact. The two questions in every case are: (1) what are the primary facts, and (2) what are the conclusions from them. In the words of Denning, L.J., in British Launderers’ Research Association v. Borough of Hendon Rating Authority13(13): “Primary facts are facts which are observed by witnesses and proved by oral testimony or facts proved by the production of a thing itself, such as original documents. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from the primary facts are, however, inferences deduced by a process of reasoning from them. If, and in so far as, those conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact: and the only questions of law which can arise on them are whether there was a proper direction in point of law; and whether the conclusion is one which could reasonably be drawn from the primary facts: see Bracegirdle v. Oxley. If, and in so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness, determination by a trained lawyer—as, for instance, because it involves the interpretation of documents or because the law on the point cannot properly be understood or applied except by a trained lawyer—the conclusion is a conclusion of law on which an appellate tribunal is as competent to form an opinion as the tribunal of first instance.”
The primary facts which a trial judge may find as having been proved to his satisfaction are those necessary to establish the claim of a party, or in some cases the defence, and which have been alleged on the one side and controverted on the other.
Applying these principles to this case it seems to me that the primary facts, or some of the primary facts, which ought to have been found by the learned Commissioner of Assize and Civil Pleas before arriving at his conclusions are:
(1) whether on the evidence the plaintiffs, the Onamrokor-Adang family as distinct from the traditional Onamrokor family of which the Korle Priest is the head can rightly sue in respect of Dome lands;
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(2) whether there was a grant of Dome land to Ayi Pekoe by the Korle Webii according to native custom and if so the nature of such grant:
(3) whether the western boundary of Dome lands is with Asere stool lands or is with the eastern boundary of the co-defendants’ land which they call Mantseman Mukose;
(4) whether Mantseman is on Dome land and if so what is the extent of Mantseman;
(5) whether the “quarry site” which is only some few feet from the area where Mantse Tackie Tawiah II was buried and is claimed by the co-defendants’ family could on the evidence belong to Onamrokor-Adang family of the plaintiff or Onamrokor Korle We family as shown by exhibit C or the co-defendant’s family who occupied the surrounding area;
(6) whether the lands on which the villages of Akweteman, Subila, Sariki Kramo, all of which are within the whole of the area claimed by the plaintiffs, were in fact granted by the plaintiffs or co-defendants’ predecessors, and if so who have been and still are in actual occupation of these villages;
(7) whether the plaintiffs can reclaim Mantseman which on their own admission they gave as a gift to King Tackie Tawiah I;
(8) whether the plaintiffs are not estopped by their conduct after the burial in 1947 of Mantse Tackie Tawiah II in or near the quarry site in dispute, from claiming the quarry site and the burial ground;
(9) whether the Ofankor-Abeka footpath had ever been agreed upon by the parties as the western boundary of their respective land, if so, whether the present co-defendant is bound by any such agreement or demarcation;
(10) whether or not the lawsuits pleaded by both plaintiffs and co-defendants show that the parties or their privies are the same and the subject-matter or identity of the land is the same.
One can look in vain for a finding on any one of the facts mentioned above in the vague judgment appealed from. This tendency of arriving at decisions without findings of specific facts was castigated recently by Viscount Simonds in Benmax v. Austin Motor Company14(14) in these words: “A judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact. . . This is a simple illustration of a process in which it may often be difficult to say what is simple fact and what is inference from fact, or, to repeat what I have said, what is perception, what evaluation.”
In reaching a decision a judge sitting without a jury has a dual function to perform. The first function is the establishment of particular facts, that is the perceptive function. The second consists in an evaluation of the actual facts which have been found.
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It is obvious on the face of the judgment of the court below that the learned commissioner of Assize and civil Pleas failed completely to perform his perceptive function.
In my view the judgment of the learned Commissioner of Assize and Civil Pleas is wholly unsatisfactory because it failed to assess the evidence and make definite findings of facts. There is no indication whatsoever in the judgment as to what part of the oral or documentary evidence the court accepted, and what part it rejected and the reasons for such acceptance or rejection, and the weight the court attached to it. Trial by a judge alone “means of course the substitution of a reasoned judgment for a verdict: but it means more than that” — see Trial by Jury by Sir Patrick Devlin at page 134. It is not enough for a judge sitting without a jury merely to say that he believes the evidence of the plaintiff or that he is impressed by his evidence and then to decide in his favour. It is of the utmost
importance that he should indicate the considerations which influence him in deciding whether or not he should believe him. In the course of the argument in Craven v. Craven (supra) Hodson, L.J. said: “It is very often a matter of complaint in this court that there are not sufficient precise findings of fact”.15(15) To this counsel for the respondent replied: “If a judge in general terms expresses a view as to what facts he does or does not accept, it is not necessary to go through each particular,” and Hodson, L.J. said: “I agree, but he must surely do something”. He should give a written judgment from which it will be obvious to all who read it that he has in arriving at his decision instructed himself as fully as his duty would require him to instruct a jury if he had in fact been sitting with a jury.
It is important not only for the purposes of appellate work, but also that justice may appear to be done that litigants, especially unsuccessful litigants, should know precisely what are the findings of fact on which a judge has based his decision.
The primary task of the court in actual litigation is to discover the material facts of the case, to declare the rule of law that is applicable, and then to make a specific order which is the result of the application of the law to such facts as are considered relevant. It seems to me that this task was not performed in the trial of this case and if the question: “what were the facts founds?” is asked it cannot be answered in this present case with any precision and particularity.
The Supreme Court is bound to follow its own previous decisions on questions of law. In Velasques Ltd. v. Inland Revenue Commissioners16(16) Cozens-Hardy, M.R. said: “But there is a rule by which of course, we are bound to abide—that when there has been a decision of this court upon a question of principle it is not right for this court, whatever its own views may be, to depart from that decision. There would otherwise be no finality in the law.”
The only exceptions to this rule so far as we are concerned are two of those mentioned by Lord Greene, M.R. in Young v. British Aeroplatie Co. Ltd.17(17): (1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.
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In my opinion this instant case does not fall within the exceptions to the general rule and therefore we are bound to follow Robert Tettey Quaye v. Madam Mariamu18(18) (supra).
I am unable to see any rational distinction between the instant case and the previous cases of Tetteh Nubuor v. K. A. Ampadu (supra) and Robert Tettey Quaye v. Madam Mariamu (supra). Even if we are beginning to have second thoughts about the principles enunciated in these two cases all we can do is to express our regret, but we are bound to follow the principles established by these cases. Thus in Olympia Oil and Cake Co. Ltd. v. Produce Brokers Ltd.19(19) where the Court of Appeal in England was confronted with the difficulty of having to follow a previous unsatisfactory judgment which bound them, Buckley, L.J. said: “I am unable to adduce any reason to show that the decision which I am about to pronounce is right . . . But I am bound by authority which, of course it is my duty to follow”. Phillimore, L.J. also lamented20(20): “With reluctance—I might almost say with sorrow—I concur in the view that this appeal must be dismissed. I trust that the case will proceed to the House of Lords”.
I think therefore that there is great force in Mr. Hayfron-Benjamin’s submission on this point and it must be upheld.
But even if it is conceded that the few words which the learned Commissioner of Assize and Civil Pleas wrote amounted to a finding of specific facts I still think that this appeal ought to succeed. The so—called findings of facts would be only on the traditional evidence; there was nothing whatsoever on the vital issues of estoppel raised by the parties, both on the pleadings and in the evidence. In the case of Stringer v. Automatic Co.21(21) the statement of claim alleged both negligence and breach of statutory duty; Oliver, J. held that there was a breach of statutory duty and made no finding with regard to negligence. The Court of Appeal in England held that there was no breach of statutory duty and ordered a new trial of the issue of negligence. In my view the failure of the Commissioner of Assize and Civil Pleas to make a finding on the vital issue of estoppel makes the trial unsatisfactory.
It has been said that what the learned Commissioner of Assize and Civil Pleas wrote amounts to findings of facts; but in the words of Viscount Simonds in Benmax v. Austin Motor Company Ltd.22(22) “some confusion may have arisen from the failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts”. An appellate court will be reluctant to reject a finding of specific facts which may be founded on the credibility of witnesses, but it will not hesitate to form an independent opinion concerning the proper inference from a specific fact.
In this case it is difficult to say that the conclusions of learned Commissioner of Assize and Civil Pleas amount to a “finding of fact” because he made no “specific findings of fact” from which an inference can be
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drawn. But granted that he did, I think that the proper function of this court is that expressed in clear terms by Viscount Cave, L.C. in Mersey Docks and Harbour Board v. Procter23(23): “The procedure on an appeal from a judge sitting without a jury is not governed by the rules applicable to a motion for a new trial after a verdict of a jury. In such a case it is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted and to decide accordingly.”
This view of Viscount Cave, L.C. appears to be in conflict with a number of dicta in other cases which seems to suggest that the decision of the trial judge should be “equivalent to a verdict of a jury on a question of fact”. But the matter appears to have been put beyond doubt by the recent case of Benmax v. Austin Motor Co. Ltd. (supra). In that case the trial judge had found that the appellant’s letters patent were valid on the ground that the invention was new, but his judgment was reversed by the Court of Appeal. It was argued for the appellant in the House of Lords that the Court of Appeal ought to have held itself bound by the trial judge’s finding of fact, but their Lordships held that there was no such limitation on the powers of the appellate court.
In delivering his judgment in that case Lord Somervell of Harrow made the following observations.24(24) “I would wish to add a few sentences on the point dealt with by my noble and learned friend, Lord Simonds. I would, as does he, respectfully differ from those who have suggested that an appeal on fact from a judge sitting alone is the same as, or should be assimilated to, an appeal from a jury. Apart from the fact that in the former case the appeal is a rehearing, juries do not, and judges in varying degrees do, give reasons for their conclusions. In a negligence action it may be clear on appeal from a judge alone how he has found what have been conveniently called the primary facts. An appellate court must be free to consider whether the judge, who has, I will assume, found for the plaintiff, applied the standard of the reasonable man, as our law prescribes, or the standard of a man of exceptional care and prescience.”
The functions of the appellate tribunal have again been described by another distinguished judge in these words: “Thus on the issues of primary fact a trial judge is now placed in much the same position as a jury. If one has regard to the fact that trials by judge alone are far more frequent than trials by jury, I do not suppose that a finding based on credibility is more frequently interfered with. On matters of inference, however, the Court of Appeal regards itself as free to form its own conclusions and in as good a position as the trial judge to do so; they do not begin their review with any presumption that in such matters the judgment appealed from is right.” See Trial by Jury by Sir Patrick Devlin, page 137. In another passage this distinguished author writes (page 138): “In the Court of Appeal the work of the judge below is not discarded. His finding of the primary facts is the raw material on which the court works. Because he has had the advantage of seeing the witnesses, he is accepted as the
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better tribunal for the determination of the primary facts; but the appellate court has a complementary advantage, which makes it the better tribunal — at any rate in a case of any length or complexity — for the determination of the secondary evidence, that is, the drawing of inference.”
In Riekmann v. Thierry25(25) Lord Halsbury also expressed his views about the functions of the appeal court and said: “The hearing upon appeal is rehearing, and I do not think there is any presumption that the judgment in the court below is right.” The principle that an appeal court is generally in as good a position to evaluate the evidence as the trial judge seems to have been acted upon by the House of Lords in the two subsequent cases of Carmarthenshire C. C. v. Lewis26(26) and Morris v. West Hartlepool Steam Navigation Co. Ltd.27(27)
It is clear therefore that while accepting the specific facts as found by the trial judge, this court has the full liberty to evaluate them for itself. The first question therefore to ask in this appeal is: Has the learned Commissioner of Assize and Civil Pleas in the court below found any specific facts or the primary facts on the issues which this appeal court can itself evaluate? If the answer to this question is in the negative, and I think it must be so in this case, then it is impossible for this court to embark upon the task of evaluating facts which do not appear in the judgment appealed from. It is by the reasons given by the trial judge that the appellate court will know whether or not he has taken a proper advantage of his having seen and heard the witnesses. In this case the judgment appealed from is so bare and lacking in reasons that this appeal court cannot say whether or not the learned Commissioner of Assize and Civil Pleas took proper advantage of his having seen or heard the witnesses. The raw materials on which this court can work are not in the judgment.
“While it is safe for this court to conjecture the exercise that went on in the mind of the trial judge before he wrote his judgment it is impossible on the other hand to conjecture the trial judge’s findings on the several facts which the must arrive at but unhappily sub silentio. It is a trial judge’s duty to make up his mind one way or the other on the primary facts and when he has made up his mind he should state his findings and then proceed to apply the law. It is only then that this court can properly adjudicate as to whether the facts are properly found or the inferences properly drawn or the law properly applied.” Per van Lare J.S.C. in Robert Tettey Quaye v. Madam Mariamu.28(28)
In my view the written judgment appealed from falls short of a reasoned judgment as required by law, and I have therefore come to the conclusion that the trial of the case was unsatisfactory and there must be a re-trial.
I would therefore allow the appeal against the decision in favour of the plaintiff and set aside that portion of the judgment appealed from, but remit the case to the court below for a re-trial.
DECISION
Appeal dismissed (Crabbe, J.S.C. dissenting).
