–
OBED YAO BANSAH
V.
ALFRED YAO KUMA KWADJO
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
7TH DAY OF MARCH, 1944
2PLR/1944/65 (WACA)
OTHER CITATION(S)
2PLR/1944/65 (WACA)
(1944) X WACA PP. 132 – 134
LEX (1944) – X WACA PP. 132 – 134
–
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
DOORLY, AG. C.J.
–
BETWEEN:
OBED YAO BANSAH – Defendant-Appellant
AND
ALFRED YAO KUMA KWADJO PER OSCAR KPE – Plaintiff-Respondent
–
ORIGINATING COURT(S)
Appeal by Defendant from the decision of the Provincial Commissioner’s Court (given on appeal from a Native Tribunal)
–
REPRESENTATION
N. A. Olennu – for Appellant
A. O. Larbi – for Respondent
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim to land – Burden of proof – Proper treatment of
–
CASE SUMMARY
Plaintiff sued Defendant in Native Tribunal, unsuccessfully, for a piece of land. He appealed to the Provincial Commissioner’s Court, which reversed the Tribunal’s judgment without recording what parties put forward; but it was clear from its decision that that Court considered whether Defendant had proved his title. Defendant then appealed to the West African Court of Appeal. As an afterthought Plaintiff’s Counsel argued that some witnesses gave evidence without being sworn before the Native Tribunal and therefore the case should be remitted for retrial.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that,
(1) the absence of a note that witnesses had been sworn before the Native Tribunal was no proof that they had not been sworn, and seeing that nothing was said about it in the intermediate appeal, no weight could be given to the objection.
(2) the burden of proof in the suit claiming the land lay on the Plaintiff, who had failed to discharge it before the Native Tribunal.
–
–
MAIN JUDGMENT
The judgment of the Court was delivered by Graham Paul, C.J. (Sierra Leone):
This case started in the Native Tribunal of Fiaga of Peki State, the Respondent in this appeal being the Plaintiff and the Appellant the Defendant. The claim in the case was as follows:
”Plaintiff claims from Defendant all that piece or parcel of land lying and being at Agata and bounded as follows:-
“On the North by Anyomi
“On the South by Amoa Kwadjo
“On the East by Alfred Yao Kuma Kwadjo
“On the West by Denteh,
and of which Defendant covertiously taken same for his own.”
The Tribunal, after hearing the evidence of both parties, and viewing the land, gave judgment against the Plaintiff with costs. From that judgment the Plaintiff appealed to the Provincial Commissioner’s Court which, according to the record before us, ”heard both parties and read the copy of the proceedings in the Tribunal”, allowed the appeal, and reversed the judgment of the Tribunal. There is no record vouchsafed to us of what the parties put before the Provincial Commissioner’s Court, which is perhaps unfortunate.
We have, however, considered carefully the evidence given by and for, the Plaintiff in the Tribunal, and we have not the slightest doubt that the Tribunal was right in refusing to entertain the claim of the Plaintiff on the evidence adduced in support of it. The Plaintiff most certainly failed to discharge the onus of proof upon him in making his claim to the land in question. The Tribunal is better qualified to weigh the evidence than either the Provincial Commissioner’s Court or this Court, and we are certainly unable to hold that the Judgment of the Tribunal was wrong.
From the grounds of appeal filed by the Plaintiff in his appeal to the Provincial Commissioner’s Court, and from the judgment of the Provincial Commissioner’s Court, it seems perfectly clear that it was not understood that the onus of proof at the trial was upon the Plaintiff. The Judgment of the Provincial Commissioner’s Court shows that what he considered on the grounds of appeal before him was whether the Defendant had proved that he was entitled to a declaration of his title. That this was the position, and that it was indefensible, was put to the Respondent’s Counsel in this Court, and he did not attempt to uphold the judgment of the Provincial Commissioner’s Court. His only contention was that the case must be sent back for retrial because some of the witnesses at the trial had given evidence unsworn. It would be more accurate to say that in the case of some statements made to the Tribunal the letters “S.A.R.B.’ (meaning “sworn according to his religious belief “) did not appear in the record after the names of some people making statements. In so far as these statements were by the parties to the suit, no exception could be taken that the parties were allowed to state their respective cases to the trial Court without being first sworn.
From our judicial experience of records in these Courts, we are by no means satisfied that the mere omission of the usual letters “S.A.R.B.” means that the witness in question was not in fact sworn. For a witness other than a party to the suit to give a statement to a trial Court without being sworn would be so unusual as to call for a protest or objection from the other side. There was no such protest or objection. Furthermore, in the elaborate Grounds of Appeal filed in the appeal to the Provincial Commissioner’s Court there was not the slightest suggestion of the kind now made by the Respondent’s Counsel. If there had been anything in these Grounds of Appeal about this point, the Commissioner’s Court could have made enquiry from the Tribunal as to the accuracy of the record on the point, and such enquiry would probably have disposed of the point altogether.
As it is, the point is raised for the first time in this Court, and we do not think we can treat it seriously. It was quite obviously an eleventh hour afterthought of Respondent’s Counsel faced in this Court with the unanswerable case of the Appellant on the merits of the appeal.
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 any costs paid under that judgment are to be refunded. The judgment of the Tribunal is restored and the Appellant is awarded costs in the Provincial Commissioner’s
Court to be taxed, and in this Court assessed at £29 14s. 6d.
–