KOBINA ABABIO II & ANOR V. PRIEST-IN-CHARGE & 3 ORS

BANNERMAN, J. This is an appeal from the judgment of Strother-Stewart, J. delivered in the Divisional Court at Cape Coast on the 14th March, 1935.

Originally, the first defendant was the only defendant before the Court but the second defendant was, on his own application, made a co-defendant and the case was heard and determined by Yates, J. who gave judgment in favour of the plaintiffs- respondents. From this judgment the defendants-appellants appealed to the West African Court of Appeal.

The Appeal Court remitted the case to the Divisional Court for re-hearing with a direction that it should be re-heard by another Judge.

The case was re-heard before Strother-Stewart, J. and he gave judgment for the plaintiffs-respondents for £25 damages and also granted an injunction restraining the defendants, their agents, workmen or servants from continuing the trespass.

The appeal was argued before this Court on the following grounds:- (1) Because the Court below wrongly received irrelevant inadmissible evidence considered and based its judgment thereon.

(2) Because the Court below wrongly rejected relevant admissible evidence.

(3) Proceedings irregular.

(4) Because the traditional evidence and facts adduced in evidence proved that the Ampenyi people were the first settlers at Ampenyi Division for over 500 years.

(5) Because the facts proved showed that the Brenu Akymm people settled by permission of Chief of Ampenyi at Brenu Akyinm about 100 years ago for the purpose of manufacturing salts and were the domestics of Kwanin Mensah and Brompon Abaka of Elmina.

(6) Because it is against native customary law.

(7) Because the judgment of the Court below is wholly or entirely against the weight of evidence.

(8) Because the judgment of the Court below is contrary to law and equity.

(9) Because the judgment of the Court below is otherwise erroneous.

(10) Because the judgment should have been entered for the defendants.

(11) Because the plaintiff was not entitled to judgment.

Before this Court Mr. Williams, on behalf of the defendants –appellants, abandoned Ground 9 and argued the appeal mainly on Grounds 1,2,4,5, and 7.

As to Ground 1;-

It was strenuously contended by learned counsel on behalf of the appellants that the judgments which were received in evidence before the learned trial Judge on behalf of the respondents (plaintiffs) were inadmissible inasmuch as the appellants’ predecessors in title were not parties to the proceedings. On this point Mr. Williams cited several authorities to show that these judgments cannot establish estoppel or res judicata against the appellants. I have considered these authorities and am of the opinion that they have no bearing on the points involved in this case. The judgments were tendered and received in evidence not to establish estoppel or res judicata but to show acts of possession.

About thirty-four years ago one Ambah Amissah, the stool-holder of Brenu Akyinm, and one of her elders, Tekyi Mensah, brought an action against one Kobina Painin, whose stool the second defendant now occupies. It was an action for trespass on Ebutukul lands. The case came before Nicol, J. and he gave judgment for the plaintiff and the judgment was upheld on appeal. Now, it is clear from the proceedings that the action before Mr. Justice Nicol related to the same lands as are the subject of this appeal. It is true that in that case there was no plan before the learned Judge, but according to the boundaries described in the plan (Exhibit “K”) it is beyond doubt that the boundaries are practically the land and came to the conclusion that they are practically indentcal.

In 1901, the same Ambah Amissah and Tekyi Mensah brought an action against one Kwamina Busumprah and nineteen others of Ampenyi for trespass on the same lands. In that action the lands were described as Abutuku lands and the case was heard by Purcell, J. who gave judgment for the defendants. This judgment was set aside by the Full Court and the case was remitted to the Court below for re-hearing. Seven years elapsed before the case was re-heard by Earnshaw, J. who adopted the judgment of Nicol, J. and gave judgment in favour of the plaintiffs. It is significant that Eccuch Amissah, one of the defendants in that case, was an ancestress of the second defendant in this case.

These judgments show that for some years the people of Brenu-Akyinm have claimed these lands as their property. Apart from these judgments which, in my opinion, show definite acts of possession, another important fact may be mentioned.

One of the witnesses for the appellants (J.J. Smith) who was a Bailiff attached to the Divisional Court, Cape Coast, admitted in evidence under cross-examination that some years ago he executed a writ of possession for Botoku land after the case heard before Mr. Justice Nicol. It is impossible to believe that the representatives of the Ampenyi State.

Mr. Williams contends that the State of Ampenyi was never a party to any of the proceedings and that, therefore, it could not be affected by these judgments. In this connection it may be mentioned that the defendants in the case which was heard before Mr. Justice Nicol over thirty-four years ago was Kobina Painin who, according to the evidence of Kofi Karikari, was authorized to defend any action in respect of Ampenyi Stool, and it is worthy of note that the second defendant in this case now occupies the Stool of Kobina Painin as already pointed out.

In my opinion the proceedings (Exhibit “Q”) were wrongly admitted in evidence in view of the fact that they had no been certified as “true copy” of the original Tribunal Record. Furthermore, these proceeding were tendered in evidence through a clerk of the Divisional Court. True they were received in evidence before Yates, J. in the former case, but on that occasion they were tendered in evidence through a Tribunal Registrar who was acquitted with the signature of the deceased Registrar Essilfie who had witnesses the marks of the Councillors.

I may mention at this state that, apart from Exhibit “Q” which I have held was wrongly admitted in evidence, the learned Judge in the Court below had abundant evidence-oral and documentary-before him to support his judgment.

As regards the proceedings (Exhibit “V”) in the oath case, I hold that they were properly admitted in evidence as being relevant to the issues before the Divisional Court. Strother-Stewart, J. has given full reasons in his judgment to show that these proceedings were relevant and admissible and I entirely agree with him.

In my opinion Ground 1 fails.

Ground 2:-

In my view the learned trial Judge properly rejected the statement of Kwamin Conua. Pages 41 and 42 of the Appeal Record show that the statement of Kwamin Conua does not relate to the land in dispute. The title of that case is Etrue of Efuaffo v. Quamin Accom of Commenda, and on page 33 of the Appeal Record witness Kobina Abaka states that the land in dispute in that action is eight miles away from the land the subject-matter of this action. I therefore hold that Ground 2 fails.

Grounds 4 and 5:- From the judgment it is abundantly clear that the learned Judge in the Court below very carefully considered the traditional evidence led on behalf of both parties and came to the conclusion he did. These two grounds relate to questions of fact and it was for the trial Judge to determine the question of credibility. I am satisfied that overwhelming facts exist to sustain the finding of Strother-Stewart, J.

I will now deal with seventh ground-namely-judgment against weight of evidence. In this connection I can only refer to the recent judgment of Webber, C.,J., Sierra Leone in the case of Martin Nortei Codjoe etc. v. Emmanuel Kwatchey and Others which came before the Court of Appeal. The learned Chief Justice there said: “An “Appeal Court will not interest with the decision of Court on “fact unless such decision is show to be perverse or not the “result of a proper exercise of discretion (Chief Ntiaro and Others “v. Ibok Etok Akpam and Others, Nigeria Law Reports Vol.3 “ p.9). The Appeal Court is not debarred however from coming “to its own conclusion on the facts and where a judgment has been “appealed from on the ground of the weight of evidence; the “Appeal Court can make up its own mind on the evidence; not “ disregarding the judgment appealed from but carefully weighing “and considering it and not shrinking from overruling it if on “full considering it comes to the conclusion that the judgment “is wrong . . . . .” In the present case I am satisfied that the learned Judge in the Court below went carefully into the case and reached a conclusion on the evidence before him.

This ground also fails.

Note-See page 374 ante.

The statement of Joseph Charles Ghanbin on page 264 of the appeal record is contradicted by him in his capacity as Kobina Abaka II. The original of the statement was not signed and was not produced before the trial Judge. It is obvious, therefore, that no credence can be attached to this statement. In my opinion the appeal should be dismissed.

KINGDON, C,J., NIGERIA. I concur.

WEBBER, C. J., SIERRA LEONE. I concur.