Martin Nortei Codjoe & Ors V. Emmanuel Kwatchey & Ors (1935)
LawGlobal Hub Judgment Report – West African Court of Appeal
Declaration of title to land and buildings—Influence of previous proceedings and judgments on mind of trial Judge—Weight of evidenec—Function of Appeal Court in respect of facts found by Court below—Distinction between family and personal land and buildings—Requirements in Native Law and Custom to convert one into the other—” Redwar’s Comments ” discussed—Inspection without the presence of the parties.
Held:No reason shown to interfere with judgment, and appeal dismissed.
The facts are fully set out in the judgments.
A. Sawyerr (with him Wei .were) for Appellants. J. H. Conssey for Respondents.
The following judgments were delivered :— WEBBER, C.J., SIERRA LEONE.
Two actions were brought in the Tribunal of the Paramount Chief of Akwapim Akropong and of the Paramount Chief of Ga State respectively by the plaintiffs against the defendants in which
Martina declaration of title to two pieces of land with buildings was
Norteisought. It is here convenient to set out in full the writ in each
Codjoecase:
& ors.” The plaintiff as Head of the Family of the late Awo
EmmanuelAfieye of Accra claims for a declaration of his title to all
Kwatehey” that piece or parcel of land– with buildings thereon situate
ors.at Nsawam in the Akwapim District and bounded on one
” side by the Lorry Park; on one side by the Kibbi Road, on
Webber,” one side by the Store occupied by The Swiss African Trading
0.3.” Company, and on the fourth side by the property of George
” Owoo; and for the defendants to show cause why they ” caused their lawyer to write letters to the tenants in the ” stores on the said property not to pay rents in respect of the ” stores and claiming the said property as the property of ” their late father J. W. Kwatchey.
” Dated at Akropong the 6th day of July, 1934.”
” The plaintiff (b, as Head of the Family of the late
Awo Afieye of Accra claims for a declaration of his title to Ci all that piece or parcel of land with buildings thereon CC situate at Achimota in the Accra District and bounded on
one side by the property of Susuana Armah, on one side by
the property of Nathaniel Mensah, on one side by Accra-
Nsawam Road and on one side by Adieuagya Quash’s
property and for the defendants to show cause why they CC claim the said property to belong to their late father C4 J. W. Kwatchey. The plaintiff also claims for a declaration CC of title to thirty-five mango trees standing on land of the
Gbese Stool and for the defendants to show cause why they
claim those mango trees to belong to their late father CC J. W. Kwatchey.
” Issued at Accra the 12th day of July, 1934.”
These two actions were transferred to the Supreme Court by an Order of the Acting Provincial Commissioner dated 15th September, 1934.
When the two actions came before the Supreme Court Aitken, J. made an Order consolidating these two suits on the ground that substantially the same questions of law and fact would arise in regard to each plot of land. This was on the 4th March, 1935.
After a hearing which lasted twenty-four days the learned Judge reserved his judgment and on the 2nd April, delivered his decision dismissing both actions. From this decision the plaintiffs-appellants appealed under five grounds, namely :—
- Reception of inadmissible and rejection of admissible evidence
- The Judge was influenced by the proceedings and judgment in the case of Irwatch,ey and Others versus Bright Davies and Others which was not in evidence in the case, and did not form part of the proceedings.
- Judgment against the weight of evidence.
- Judgment contrary to native law and custom.
- Judgment otherwise erroneous.
The first ground of appeal was not supported by any argument, nor was it dealt with by appellants’ counsel during his argument on this appeal.
The second ground that the Judge was influenced by the proceedings and judgment in the case of Kwatchey and Others versus Bright Davies and Others which was not in evidence in the case and did not form part of the proceedings was argued at considerable length by counsel for the appellants. It was contended that the proceedings as distinct from the judgment were not before the Court and were read by the Judge who was influenced by them, that Lanchoe one of the co-plaintiffs was the mother of Bright Davies and that the atmosphere of the case was that she was shielding him and that this case was only a ruse to save Bright Davies and consequently it was extremely difficult for any Judge under such circumstances to do justice to his clients’ case. He quoted the case of Tantatey v. Mate Kole, P.C. 1926-29 p. 178.
Counsel for respondents pointed out that the judgment of the case Kwatchey and Others v. Bright Davies and Others was properly before the Court because it was exhibited to an affidavit filed in the Provincial Commissioner’s Court upon which the Provincial Commissioner acted in transferring the case to the Supreme Court which Court became seised of it and properly had before it all the previous papers. As to the proceedings in that case it was pointed out that counsel for appellants himself had a copy of same in Court and was on several occasions referring to them in his cross-examination. This fact appears to be so if one looks at pages 77, 79, 83, 108, 114 and 115 of our record.
Now I do not think it can be denied that the learned Judge had before him the proceedings and the judgment in this case and it is perhaps true that he read them and as a result he intimated to counsel on both sides that both Nelson and Bright Davies were rogues. I cannot however hold that the learned Judge was so affected by them as to prejudice him in the fair conduct of the trial. In the case quoted by counsel for appellants, it was rightly poi4ed out that in that case the Judge referred to the former r:eoceedings in his judgment but in this case the learned Judge based his findings upon the oral evidence before him. Our attention has been called to Woodroffe and Ameer Ali’s Civil Procedure in. British India, p. 382, in support of the contention of counsel for respondents that if counsel for the appellants thought that the Judge was prejudiced he should have applied to have the case heard by another Judge. The releirant passage from this authority reads as follows :—
” If a party desires or intends– to make misconduct of a ” Judge a ground of appeal to the High Court he ought
” always to draw the Judge’s attention to that matter either
” by presenting a petitidn or otherwise so that a proper record
” may be at once made of the fact which he desires to establish
in appeal.”
With this proposition I entirely agree but in any case I am unable to find that the learned Judge was in the slightest degree influenced by these proceedings and judgment. The judgment now appealed from stressed the anxiety felt by the writer in endeavouring to arrive at the true findings of facts in the case, findings, not on any previous case but on the relevant facts before him, and in his conclusions lie supported the plaintiffs in at least two of their allegations namely (1) as to the wood, corrugated iron and gate removed from the old family house after it was demolished and (2) as to the erection by Lanc►oe of two small swish rooms with corrugated iron roofs on the Nsawam property during her stay there. In my opinion there is no substance in appellants’ second ground and it therefore fails.
I now come to the third ground of appeal, namely :—
(3) Judgment against the weight of evidence.
Counsel for appellants stated that the evidence brought by the plaintiffs was overwhelming but counsel for respondents said there was no independent corroboration of the evidence given by the co-plaintiffs. Now in all cases of this kind where a declaration of title is sought, before any question of native law and custom can be applied, it is necessary to arrive at the facts and the onus is on the plaintiffs to satisfy the Court as to the facts they allege. An Appeal Court will not interfere with the decision of Court on facts unless such decision is shown 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 wli ere 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 consideration it comes to the conclusion that the judgment is wrong, but if the Appeal Court is in doubt the appeal must be dismissed, since the burden of proof is on the appellant. (Per Griffith in Macaulay v. Tukuru, Full Court Judgment, N.L.R. Vol. 1, p. 37 quoting Lord Esher in The Colonial Secariiy Trust Co. v. Massey L.R. 1896, 1 Q.B.D.). I have carefully read through the whole of the record and am not prepared to hold that the learned Judge was wrong in his findings of facts on the evidence before him. I have considered the authorities quoted and I am satisfied that the third ground of appeal, namely, that the judgment is against the weight of evidence fails.
Now I come to a very important ground, namely, that the judgment. is contrary to native law and custom.
