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ATE KWADZO
V.
ROBERT KWASI ADJEI
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
14TH DAY OF NOVEMBER, 1944
2PLR/1944/25 (WACA)
OTHER CITATION(S)
2PLR/1944/25 (WACA)
(1944) X WACA PP. 274 – 275
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
COUSSEY, J.
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BETWEEN:
ATE KWADZO — Defendant-Appellant
AND
ROBERT KWASI ADJEI — Respondent-Plaintiff
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ORIGINATING COURT(S)
APPEAL FROM THE PROVINCIAL COMMISSIONER’S COURT (ON APPEAL FROM THE AVATIME STATE COUNCIL, ON APPEAL FROM THE AKOME NATIVE TRIBUNAL)
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REPRESENTATION
N. A. Ollennu — for Appellant
K. A. Bossman with S. Sakyi Djan — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Claim for declaration of title to land — Demarcation of boundary line — Proof of — Survey plan — When would be deemed necessary
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CASE SUMMARY
There was a double hearing before the Native Court and two intermediate appeals but the boundaries of the land in dispute to which plaintiff was declared to be entitled remained uncertain.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal):
That before a declaration of title is given the land to which it relates must be ascertained with certainty, the test being whether a surveyor can from the record produce an accurate plan of such land.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:-
Although this case has been twice heard in the Native Tribunal of Akome and has passed on appeal through the Courts of the Avatime State Council and the Provincial Commissioner of the Eastern Province till it has eventually reached this Court, it is impossible even at this stage to ascertain with any degree of accuracy the boundaries of the land in dispute to which the Plaintiff has been given a declaration of title. The acid test is whether a surveyor, taking the record could produce a plan showing accurately the land to which title has been given. We are quite certain that no surveyor could do that in this case. This Court has repeatedly pointed out that before a declaration of title should be given the area of land to which it relates must be ascertained with certainty. That has not been done here.
The Appeal is accordingly allowed, the judgment of the Provincial Commissioner’s Court, including the order as to costs, is set aside and it is ordered that if any sum has been paid in pursuance thereof it shall be refunded; the case is remitted to the Provincial Commissioner’s Court with the direction that that Court shall rehear the case entirely de novo with the assistance of a proper plan showing the land in dispute.
The judgments in both the Native Tribunal of Akome and the Avatime judgment in the case will be delivered by the Provincial Commissioner’s Court after the rehearing. At the rehearing all costs incurred in any Court except this Court will be in the discretion of the Provincial Commissioner.
The Appellant is awarded costs in this Court assessed at £28 17s. 9d.
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