ADORKOR AND OTHERS v. GATSI AND OTHERS [1966] GLR 31

Division: SUPREME COURT

Date: 17 JANUARY 1966

Before: OLLENNU, AKAINYAH AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Bazu v. Shardow (1929) F.C. ‘26–’29, 357.

(2) Holm v. Hage, Court of Appeal, Cyclostyled Judgments, July-December 1958, p. 8.

(3) Watt (or Thomas) v. Thomas [1947] A.C. 484; [1947] 1 All E.R. 582; [1948] L.J.R. 515; 176 L.T. 498; 63 T.L.R. 314, H.L.

(4) Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370; [1955] 2 W.L.R. 418; [1955] 1 All E.R. 326; 99 S.J. 129; 72 R.P.C. 39, H.L.

[p.32] of [1966] GLR 31 NATURE OF PROCEEDINGS

APPEAL from the judgment of the High Court dismissing the appeal of the plaintiffs. The facts are sufficiently set out in the judgment of the court.

COUNSEL

Hayfron-Benjamin (Kwaku with him) for the appellants.

B. J. da Rocha for the respondents.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The appellants, hereinafter referred to as the plaintiffs, sued in their capacity as heads and representatives of the Adorkor Agbeshie family of Dzelukope, Keta, claiming declaration of title to two pieces or parcels of land. The respondents, hereinafter called the defendants, defended the suit also in their representative capacity, that is on behalf of their family, the Titilili family.

The plaintiffs based their root of title upon their ancestor one Dzogbedor who they alleged was the founder of a large area of land called Vui lands, of which the two pieces in dispute are small portions. Dzogbedor they said, gratuitously gave a portion of the land he so founded to his brother Titilili the ancestor of the defendants, and laid a boundary between the portion he so gave and the portion he retained, Titilili’s portion being on the north, and his portion being on the south. According to them the portion given to Titilili, i.e. the northern portion, did not include the two pieces of land in dispute. The defendants denied that Dzogbedor, the ancestor of the plaintiffs, was the founder of the Vui lands. Their case is that the whole Vui lands were acquired by one Honi, a common ancestor of the plaintiffs and the defendants. Honi they said acquired the lands from his uncle Adjoka. Upon Honi’s death they said, the land became the property of his family, and his two sons Boe and Boeshie divided it among themselves by a line running from north to south, Boe taking the western half, and Boeshie the eastern half. Boe, it is admitted, is the father of Dzogbedor and Titilili the grandfathers respectively of the plaintiffs and the defendants. Therefore the defendants said, the western portion of the large area became the common property of the plaintiffs and the defendants upon the death of their great grandfather the said Boe. They said that some 38 or more years ago, the plaintiffs’ and the defendants’ families divided the land by a boundary running from east to west, by a path running from the sea on the east through the town of Vui and on the Keta Lagoon on the west, the two pieces of land, the subject-matter of the suit, falling within the northern portion of the land property of the defendants.

The trial native court after hearing evidence in the case inspected the land; they thereafter gave judgment dismissing the plaintiffs’ claim. Among other things they rejected the root of title relied upon [p.33] of [1966] GLR 31 by the plaintiffs and their alleged gratuitous grant to the defendants, and accepted the root title put up by the defendants. They also held that the plaintiffs were estopped by their conduct in standing by and not intervening, but rather giving evidence for one party while some members of the defendants’ family litigated their title over one of the two pieces of land now in dispute.

The plaintiffs appealed from that judgment to the Anlo Native Court A, an appeal court, but were unsuccessful; the native appeal court dismissed the appeal on the grounds that the plaintiffs were estopped by their conduct in the litigation referred to above between members of the defendants’ family in respect of one of the two pieces of land, subject-matter of the present suit. From that judgment the plaintiffs’ unsuccessfully appealed to the High Court, Ho. For the determination of the appeal in the High Court, a plan of the area was made showing the respective claims of the parties. In his judgment the learned judge of the High Court expressed the view that the litigation between members of the defendants’ family could not operate as estoppel against the plaintiffs’ family even though the plaintiffs were aware of it, and even though the second plaintiff gave evidence in that case; but he dismissed the appeal on the grounds that the trial native court had accepted the boundary claimed by the defendants, and that according to that boundary, the two pieces of land, subject-matter of the suit, fell within the land owned by the defendants. Dissatisfied with that third judgment against them, the plaintiffs appealed to this court upon special leave. First, it was argued on behalf of the appellants that the trial native court failed to make any findings of fact on the issues joined, and consequently the High Court misdirected itself in saying that, “the trial court found on the facts that the existing boundary between the appellants and the respondents is the Vui path, and that the northern portion of this dividing line which includes the two areas in dispute belonged to the respondents.” Counsel further argued that in so far as the statement quoted amounts to findings of fact made by the High Court, the same is wrong because not having seen and heard the witnesses the High Court had no material before it which should justify it preferring one of the two versions to the other, and particularly so as the High Court did not take additional evidence. Counsel submitted that in such a case the duty of the High Court, as an appellate court, is to remit the case to the trial court to be heard de novo; in support of this proposition counsel cited Bazu v. Shardow1 and Holm v. Hage.2 [p.34] of [1966] GLR 31

Secondly, it was submitted that since the evidence shows that both parties are in possession of the land, the trial court should have determined which of them has the radical title therein vested in him, and that if it had properly directed itself it would have resolved the issue in favour of the plaintiffs. These submissions of learned counsel for the appellants are based upon the assumption that the trial court made no findings of fact of any kind.

The main issues joined between the parties are: (1) whether the large area of land, the Vui lands, which comprises the two pieces of land in dispute was founded by Dzogbedor, the ancestor of the plaintiffs, and if the answer is yes; then (2) whether he gratuitously gave a portion of it to his brother Titilili, the ancestor of the defendants, and if the answer to that too is yes; then (3) whether the area he so gave to Titilili comprised the areas in dispute.

The trial native court made a definite finding on the first issue; it rejected the plaintiffs’ tradition that the land was founded by Dzogbedor, and accepted that of the defendants that the Vui land was acquired by Honi, the grandfather of Dzogbedor and Titilili, and that the portion of it in dispute between the parties became in course of time vested in the plaintiffs’ and the defendants’ families together. It said:

“Judging from the trend of evidence before us, we were satisfied that the disputed Vui land belonged to the Dzogbedor and Titilili families. We accept the evidence that the northern portion was in possession and occupied by the Titilili family. We also believed the evidence of the parties that the Dzogbedor family is in possession and occupation of the southern portion of the disputed Vui land.”

In view of these specific findings and in view of the fact that the High Court had before it a plan of the area showing the respective conflicting claims of the parties which the trial court resolved, the criticism that it was incompetent for the High Court, as a court of appeal, to lay down the boundary is misconceived, because the findings so made are an inference which the High Court drew from the specific findings of fact made by the trial court. The law governing this is that while findings of specific facts are within the competency of the trial court alone, a finding of fact which is an inference to be drawn from specific facts found is within the competency of an appeal court no less than the trial court; in other words, an appeal court is in as good a position as the trial court to draw inferences from specific facts which the trial court may find. The law on this point is so well set out in two judgments of the House of Lords, that we cannot do

[p.35] of [1966] GLR 31 better than cite those cases: These are Watt (or Thomas) v. Thomas3 and Benmax v. Austin Motor Co. Ltd.4

It has not been contended that the specific findings of fact made by the trial native court are against the weight of evidence, in fact it cannot be so contended, because not only did the plaintiffs fail to prove the root of title they set up, but even the evidence they led completely defeated their claim as to the portion of the land to which they are entitled. Just two examples will illustrate this: While they alleged that they are entitled to the southern portion of the Vui land, the boundary they described which they later pointed out to the surveyor, runs from north to south and so divides the land into eastern and western portions. Secondly the boundary they so claimed placed them on the horns of a dilemma, because it so divided the area as to put the two pieces of land in dispute on either side of the boundary, one on the east and the other on the west, so that even if their boundary is accepted they would be put to their election and be compelled to limit their claim to the one or the other of the pieces of land in dispute but certainly not both, and they must therefore lose in any event.

It follows that the criticisms levelled against the judgments of the two native courts and of the High Court, are not sustainable. There is therefore no substance in the appeal. The appeal is accordingly dismissed with costs fixed at ¢175. 32.

DECISION

Appeal dismissed.

S. K. T.