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KWAMIN AKYIN
V.
ESSIE EGYMAH
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
15TH DAY OF MAY, 1936
LEX (1936) – III WACA PP. 65 – 67
OTHER CITATION(S)
2PLR/1936/49 (WACA)
(1936) III WACA PP. 65 – 67
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BEFORE THEIR LORDSHIPS:
PETRIDES, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
YATES, J.
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BETWEEN:
KWAMIN AKYIN — Plaintiff-Respondent-Appellant
AND
ESSIE EGYMAH — Defendant-Appellant-Respondent
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ORIGINATING COURT(S)
Appeal from Deputy Commissioner, exercising Appellate Jurisdiction
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REPRESENTATION
C. F. Hayfron-Benjamin — for Respondent
W. E. Gwira — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Trespass to land — Tribunal considered question of ownership and found for plaintiff — Court below allowed appeal and reversed decision as being against weight of evidence — Form of action in native Tribunal not to be stressed where issue involved is clear — Decisions on such issues not to be disturbed without very clear proof that they are wrong
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: (Allowing the appeal and restoring the judgment of Tribunal)
1. That the native Tribunal treated the issue, as one of ownership disregarding the claim for damages for trespass, no damages having been given, although the case was decided by the Tribunal in the plaintiff’s favour. It is the manner in which the Court below dealt with the second ground of appeal, namely, that judgment was against the weight of evidence which has brought me to the conclusion that the judgment of the native Tribunal should be upheld.
2. That the Commissioner states that there is some evidence of possession and occupation by the defendant, and he says there is no evidence of either possession or occupation by the plaintiff and therefore overlooked what he has himself expressed, namely, that the native Tribunal treated the case on the issue of ownership and not possession – an action which only the person in possession can maintain.
3. That there is some evidence of constructive possession by plaintiff and the evidence of the plaintiff that he violated Nana Amonu VIII’s oath against defendant to show cause why she wilfully cut down his palm trees without his power is an act of ownership.
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MAIN JUDGMENT
The following judgment was delivered: WEBBER, C.J., SIERRA LEONE.
This is an appeal from the judgment of L. W. Judd, Acting Deputy Commissioner, Central Province, who allowed an appeal with costs to be taxed from the native Tribunal of Anamabu in a claim in which the plaintiff claimed £25 damages from the defendant for trespass of land known as Kwabor Kudu.
The grounds of appeal are:
1. Because the judgment was contrary to the weight of evidence.
2. Because the judgment was contrary to native law and custom.
3. Because the judgment was wrong in law in that the Court below had not any fresh evidence.
4. Because the judgment was otherwise erroneous.
The grounds were argued together, Counsel for appellant submitting that the Commissioner was not justified in allowing the appeal. For the respondent it was contended that there was no evidence of ownership or possession by the plaintiff and that the Commissioner was right in reversing the judgment of the Tribunal.
Now, when examining the judgment of the Commissioner I find that he supported the judgment of the Tribunal on all the grounds of appeal before him except one ground, namely, that the judgment was against the weight of evidence, and in this respect he referred to an informal arbitration arranged between the parties for the purpose of settling matters amicably, and he laid special stress on the evidence of Rockson in a previous case between the parties and about the same land, which evidence was the best evidence the defendant could obtain having held that although there was evidence of possession by the defendant-appellant, it was doubtful if all of his evidence relates to the land in dispute.
Now dealing with the grounds of appeal before the Commissioner, I agree with him that the fact that there was no report of inspection by the Tribunal was not a vital defect in the record. I agree with him also that the question of possession stressed by Counsel for the defendant-appellant was of no vital importance as the Tribunal determined the question of ownership rather than the question of trespass. He was no doubt mindful of the dictum of P.C. Smyly, C.J., in his judgment in the case Ohene Kwesi Abrugyi II v. Ohene Amua Gyebri, when he said:
“Personally, I do not lay any stress on the form in which an action is brought before the native Tribunal so long as the issue involved is clear.”
It is obvious to my mind that the native Tribunal in this case treated the issue, as one of ownership disregarding the claim for damages for trespass, no damages having been given, although the case was decided by the Tribunal in the plaintiff’s favour. It is the manner in which the Court below dealt with the second ground of appeal, namely, that judgment was against the weight of evidence which has brought me to the conclusion that the judgment of the native Tribunal should be upheld. The Commissioner states that there is some evidence of possession and occupation by the defendant, and he says there is no evidence of either possession or occupation by the plaintiff. Here he has forgotten what he has himself expressed, namely, that the native Tribunal treated the case on the issue of ownership and not possession – an action which only the person in possession can maintain — but there is some evidence of constructive possession as pointed out by Counsel for appellant and the evidence of the plaintiff that he violated Nana Amonu VIII’s oath against defendant to show cause why she wilfully cut down his palm trees without his power is an act of ownership.
Then the Commissioner seems to have turned the scales in defendant’s favour, because she was able to produce the witness Rockson on the facts of a previous case.
The native Tribunal discarded his evidence, and if one reads it one is not surprised, and also the whole of the evidence given by the defendant and his witnesses on the ground that the witnesses were false. Is this Court going to interfere with the finding of facts by a Tribunal who, the Commissioner admits, have taken pains over the case? In the case Nthah v. Bennieh which came before the Privy Council in 1930, their Lordships stated as follows:
Decisions of the Native Tribunal on such matters which are peculiarly within their knowledge arrived at after a fair hearing on relevant evidence should not be disturbed without very clear proof that they are wrong.
I think this dictum might be applied here and that the decision of the Commissioner should be reversed and the decision of the native Tribunal restored.
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PETRIDES, C.J., GOLD COAST.
I concur.
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YATES, J.
I concur.
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