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NANA KWABENA KONADU AND ANOTHER
V.
NANA AKYEAMPONG AKWASI II
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
11TH DAY FEBRUARY, 1954
APPEAL NO. 14/53
2PLR/1954/59 (WACA)
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OTHER CITATION(S)
2PLR/1954/59 (WACA)
(1954) XIV WACA PP. 417 – 418
LEX (1954) – XIV WACA 417 – 418
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
1. NANA KWABENA KONADU, ASAMANHENE
2. NANA KWAME GYIMA, NSUTAHENE – Appellants
AND
NANA AKYEAMPONG AKWASI II, AGONAHENE – Respondent
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ORIGINATING COURT(S)/MOTION
Appeal by defendants:
Objection by plaintiff that the appeal did not lie.
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REPRESENTATION
Akufo-Addo — for the Plaintiff-Respondent
Ollennu — for the Defendants-Appellants
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- The Boundary, Land, Tribute, and Fishery Disputes (Executive Decisions Validation) Ordinance (Cap. 120), section 3 – Demarcation of boundary between land – What constitutes
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CASE SUMMARY
There were two executive decisions fixing the boundary to a Pillar No. 5; the third decision stated that the boundary so far “decided up to the point marked X shall thence run in a direct line to the Abutansu Rock on the Dosija-Aguna Road”: X was admittedly the Pillar AX.18/26/3. The plaintiff claimed that the boundary was thus demarcated as being a certain line between the two pillars shown on the plan; he won, and the defendants, who had contended that the third decision did not demarcate the boundary between those pillars, appealed; whereupon the plaintiff objected that no appeal lay, relying on section 3(3) of the Ordinance (Cap. 120).
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DECISION(S) OF THE WEST ACOURT OF APPEAL
Held (overruling the Objection) that:
There was nothing to indicate in the third decision that the line was to commence at the point it was left at by the first two decisions or the direction the line should take on its way to X, and the third decision could therefore not be held as demarcating the boundary between the two points in question; nor was there anything in the record indicating that there was a validated executive decision within the meaning of Chapter 120.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This is an appeal from a judgment of Quashie-Idun, J., in a suit brought by the plaintiff-respondent claiming a declaration that by three executive decisions, exhibits “A”, “B” and “C”, duly validated under The Boundary, Land, Tribute, and Fishery Disputes (Executive Decisions Validation) Ordinance, Chapter 120, the boundary between Agona and Nsuta had been fixed in the manner indicated on the plan exhibit “D” by the line edged pink running from concrete pillar No. 5 south to concrete pillar AX.18/26/3.
The defendants admitted that executive decisions “A” and “B” had fixed the boundary up to the point marked by concrete pillar No. 5, but denied that the executive decision “C” fixed the boundary in the manner alleged by the plaintiff and contended that the true boundary runs as indicated on the plan, exhibit “D”, by the line edged green.
The learned trial Judge held that the boundary between the two cement pillars had been demarcated by the executive decision “C” and, acting under the provisions of section 3(3) of Chapter 120, he fixed the boundary along the line contended for by the plainti11, and it is against that decision that the defendants have appealed.
The respondents filed notice of a preliminary objection to the hearing of the appeal on the ground that section 3(3) of Chapter 120 expressly provides that no appeal shall lie from the Courts’ decisions in such cases.
Mr. Ollennu, on behalf of the appellants, submitted that the issue in the case was not in fact the interpretation of any executive decision, but a dispute as to the ownership of land. He contended that exhibit “C” does not purport to demarcate the boundary between the two pillars concerned and that there was therefore nothing for the Court to interpret under Chapter 120.
The relevant portion of exhibit “C” reads as follows:-
“The Aguna-Nsuta-Juaban Boundary which has, so far, been decided up to the point marked X shall thence run in a direct line to the Abutansu Rock on the Dosija-Aguna Road.”
I am unable to accede to the view that exhibit “C” is an executive decision fixing the boundary between the two points indicated by cement pillars on the plan. Both sides agreed that X is represented on the plan by the pillar marked as AX.18/26/3, but there is nothing to indicate where the line is to commence or the direction it should take on its way to the point referred to as “X”. There is nothing to show that the line is intended to commence at the point at which it is left by exhibits “A” and “B”.
Mr. Akufo-Addo, for the respondent, contended that the whole object of Chapter 120 was, firstly to validate executive decisions on boundary disputes, and, secondly, to provide machinery for their interpretation when they are vague and uncertain. This is, no doubt, so, but it seems to me that to hold that “C” demarcates a boundary between the two points in question necessitates a flight into the realm of speculation. It does demarcate a boundary from X to the Abutansu Rock on the Dosija-Aguna Road-but not other; although it would appear from the wording of “C” as if there has been an executive decision demarcating the boundary down to X, but there is nothing in the record before us indicating that there is a validated executive decision within the meaning of Chapter 120.
For these reasons I am of the opinion that the preliminary objection fails, and I would accordingly hold that this appeal is properly before us.
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COUSSEY, J. A.
I concur.
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WINDSOR-AUBREY, J.
I concur.
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Objection overruled.
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