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TWIMAHENE ADJEIBI KOJO II
V.
OPANIN KWADWO BONSIE AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
9TH DAY OF JANUARY, 1953
APPEAL NO. 44/52
2PLR/1953/37 (WACA)
OTHER CITATION(S)
2PLR/1953/37 (WACA)
(1953) XIV WACA PP. 242 – 243
LEX (1953) – XIV WACA 242 – 243
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
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BETWEEN:
TWIMAHENE ADJEIBI KOJO II – Appellant
AND
1. OPANIN KWADWO BONSIE
2. ODIKRO KWAKU MANUH
ALL OF NEREBEHI – Respondents
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ORIGINATING COURT(S)
Appeal from the Supreme Court
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REPRESENTATION
N. A. Ollennu with Siriboe — for Appellant
Kofi Adumua-Bossman — for Respondents
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ISSUE(S) OF THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim for a declaration of title to certain stool land – Where land had been given in pledge as security for a loan – How treated
PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in Civil Cases – Findings of trial Court – Presumption in its favour – Onus to displace presumption on losing side
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CASE SUMMARY
The appellant sued claiming redemption of land which he alleged had been pledged; defendants denied his title. Both sides claimed an original grant from the same grantor. The trial Court found in defendants’ favour on the evidence, the first Court of Appeal decided in favour of the plaintiff by majority, but on the second appeal the trial Court’s judgment was restored, and the plaintiff appealed further arguing that the trial Court should not have accepted the defendants’ case.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. The onus of proof was not on the defendants but on the plaintiff;
2. Moreover, the presumption is that the trial Court which saw and heard the witnesses decided rightly on the facts; and
3. a Court of Appeal would not interfere with that Court’s finding unless it came to an affirmative conclusion that the finding was wrong; but the plaintiff did not succeed in showing that it was.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
The appellant sued the respondents claiming a declaration of title to certain land situate at Bonkwaso in the Kumasi District of Ashanti. The case came for trial before the Asantehene’s Divisional Court “B1” which gave judgment for the respondents.
Shortly put the appellant’s case was that the land in dispute was his Stool land, but that it had been given in pledge as security for a loan of £6 made to his predecessor in title by a predecessor in title of the first respondent some eighty years ago, and that when he sought to redeem the pledge the respondents had wrongfully denied his title.
The trial Court, after reviewing the facts and indicating that it did not accept the case put forward by the appellant, concluded its judgment by saying: “… In view of the above reasons the Court has no hesitation in finding for defendants “.
The appellant then appealed to the Asantehene’s “A” Court which, by a majority judgment, reversed the decision of the “B” Court, and entered judgment for the appellant.
The respondents then appealed to the Supreme Court which restored the judgment of the Asantehene’s Court “B” and in doing so the learned appellate Judge quoted the following passage from the minority judgment of the Asantehene’s Court “A”:-
“I need not over-emphasise the fact that the members of the Court of first instance had the opportunity of hearing the evidence of the witnesses for both parties and watching their demeanour and they (Court members) were in a better position to believe or disbelieve the respective evidences. Being satisfied with the truth in the statements of defendants-respondents and their witnesses did arrive at a conclusion of finding of facts by disallowing the claim of plaintiff-appellant. Judgment therefore having been given on points of facts by the Court below I am of the opinion that this Appellate Court should not interfere with it.”
Both sides alleged that the land in dispute had been granted to their ancestors as a reward after battle, and what is now usually referred to as traditional evidence was tendered by both sides in support of their contentions.
The Bantamahene who both sides claim made the grant to them gave evidence for the defendants, and his evidence, which contradicted the plaintiff’s assertion that the land had been granted to his predecessors, no doubt carried considerable weight with the trial Court.
Counsel for the appellant has put forward a number of reasons why he says the trial Court should not have accepted the respondents’ case, among them being that the Bantamahene had an interest in the land in dispute which coincides with that of the respondents’ and should not, therefore, have been relied upon.
It seems to me, however, that the arguments adduced ignore the fact that the appellant was the person who was seeking relief at the hands of the Court and that the onus of proof was upon him and not upon the respondents.
Moreover, the trial Court had the advantage of seeing and hearing the witnesses. In these circumstances it has consistently been held that before a Court of Appeal interferes with a decision of a trial Court it must come to an affirmative conclusion that the finding is wrong. The presumption is that the decision of the trial Court on the facts was right, and in order to succeed, the appellant must displace that presumption. In my view he has not succeeded in so doing. I would, therefore, dismiss this appeal with costs, fixed at £36.
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COUSSEY, J. A.
I concur.
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KORSAH, J.
I concur.
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Appeal dismissed.
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