TSOME v. GALE AND ANOTHER [1961] GLR 692

DIVISION: IN THE HIGH COURT, HO

DATE: 21ST NOVEMBER, 1961

BEFORE: PREMPEH, J.

CASES REFERRED TO

(1) Practice Note (Gblevie Family etc. v. John Amanie) [1961] G.L.R. 1, C.A.

(2) Obeng Kissiedu v. Mark Ankrah, West African Court of Appeal, February 25, 1956, unreported.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the Ho Local Court Division II, given in favour of the plaintiff in an action relating to land.

COUNSEL E. Kom for the defendants-appellants.

F. T. C. Amorin for the plaintiff-respondent.

JUDGMENT OF PREMPEH J.

This is an appeal from the judgment of the Ho Local Court Division II delivered in favour of the plaintiff-respondent herein. The respondent’s claim against the appellant was for a declaration of title to a portion of land commonly known as and called Ketikpome land, the boundaries of which are set out in the writ of summons, and he also claimed damages for trespass. The defendant-appellant counterclaimed for a declaration of title to a portion on land known as Kpetotoe land and he also gave the boundaries thereof which were different from those set out by the respondent. It was the case of the plaintiff-respondent that the Kpetotoe land for which the defendant-appellant had counterclaimed was acquired by his (respondent’s) grandmother, that he had inherited the said land for the last ten years, and that he held no objection to the defendant-appellant [p.693] of [1961] GLR 692 occupying or using any part of the said Kpetotoe land, as the appellant was a descendant of his grandmother, but he resisted the appellant’s claim for title to the said land. The respondent maintained that the Ketikpome land which he claimed by his writ was acquired by his grandfather and that it had passed to him by succession, he having succeeded his father Kwadzo Komla, deceased; that the said Ketikpome land is distinct from Kpetotoe land, and that since the appellant is not related to him paternally, he is not entitled to enjoy as of right any portion of the said Ketikpome land.

The appellant on the other hand denied that there is any division on the land. He denied further that any portion of the said land is known as Ketikpome land, and he claimed that the entire area of land was known as Kpetotoe land. The appellant maintained that the said Kpetotoe land was acquired by his grandmother, the late Amedzohe, by purchase, and that somehow it came into the possession of Kwadzo Komla, whom as already indicated was the respondent’s father, and whom also the respondent succeeded. After hearing the parties and their witnesses, the trial court visited the locus in quo and it gave judgment for the respondent on his claim, and dismissed the appellant’s counterclaim.

Several grounds of appeal were filed, and among those forcefully argued on behalf of the appellant and which in my view must prevail are the following:

(a) the magistrate erred in law in accepting the traditional evidence of P.W.1 Joseph Ablang Koku, without enquiring whether he was competent to give the same or not;

(b) the plaintiff-respondent failed to discharge the onus of proof that lay on him as a person seeking for declaration of title;

(c) the local court magistrate erred in law in taking and accepting evidence from one Dzansi at the locus in quo when he was not at all called as a witness for the plaintiff-respondent, nor was the evidence given on oath.

Having regard to ground (c), clearly the proper procedure for the trial court to have adopted after hearing a statement from a boundaryman by name Dzansi at the inspection was to have called him into the witness-box on the resumption of the court’s sitting, and to have obtained his evidence on oath, as to what he said at the inspection: see the Practice Note (Gblevie Family etc. v. John Amanie)1(9).

The statement made by this boundaryman was important in so far as it strongly supported the respondent’s case as to the existing boundary between Ketikpome land and Kpetotoe land, and since the judgment of the trial court is partly based on the statement of the said Dzansi which was wrongly received, that judgment in my view is erroneous. With regard to grounds (a) and (b), upon a close reading of the evidence of P.W. 1, I feel bound to accept counsel’s contention, and to hold

[p.694] of [1961] GLR 692 that the traditional evidence by P.W.1 is clearly inadmissible, and should be disregarded.

Having so held, and that being the only witness called by the plaintiff-respondent, I now have the task of considering whether there was a fair and proper adjudication of the suit with the evidence that remained which could justify the judgment of the trial court: see Obeng Kissiedu etc. v Mark David Adjabeng Ankrah etc.2(10) After a full consideration, in my opinion there was not, because the evidence of P.W.1 having been eliminated, that of the plaintiff-respondent left to itself is not such as in my opinion could entitle him to judgment in a claim for declaration of title.

As to the counterclaim, as I have already indicated, the trial court wrongly allowed itself to be persuaded by the statement of Dzansi the boundaryman, which consequently must effect its judgment in dismissing the said counterclaim. The course which I consider right to adopt is to set aside the judgment of the trial court and to direct a new trial by the Ho Local Court Division II. Accordingly I do allow this appeal and set aside the judgment of the Ho Local Court Division II. I remit the case back to the trial court to be heard de novo by a magistrate other than one who heard this case. The parties will bear their own costs in this appeal. Costs of the abortive hearing to abide the result of the rehearing.

DECISION

Appeal allowed; case remitted for rehearing.