Chief Kwabena Agyare Of Asakraka V. Chief Kofi Kwakye Of Nteso (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

The action was commenced in the year 1936 by a civil summons
which related only to a small portion of the land which afterwards
already alopute pu it pending d tween the parties, which mas
been commenced by proceedings on oath.

What was the exact
nature of that dispute their Lordships have not been told ; but
they do know that by consent of the parties that pending proceeding
was consolidated with the summons relating to the smaller claim.
and with the consent of both parties the two actions proceeded
together.

It appears to their Lordships, as it did, they think, to the
West African Court of Appeal, to be fairly obvious that both parties
must at that time have been in a position, as they thought, to deal
with both cases or they would not have consented to go on at the
time that they did go on.

The case proceeded before the Native Tribunal for some day:
and eventually the Native Tribunal, after having directed
surveyor to mark out what were the disputed boundaries between
the parties, in 1938 came to a conclusion, by which they delimiter
the boundaries over the whole of the land which was then in dispute
That decision was reversed by the Court of the Provincia Commissioner, but was restored by the West African Court o
Appeal.

The Court of Appeal, as their Lordships think quite rightly.
founded itself upon a passage in the judgment of this Board in Abakah Nthah v. Anguah Bennieh (1931) A.C.75.
The passage which they cited and which their Lordships repeat was this :-

“By Colonial legislation all suits relating to the ownership of land hek
under mave of Native unless satisfactory reason to.
It appears to their Lordships that
decisons of the is shown Native Tribunal on are poculiarly MATe MOT
knowledge,arrived such after should not clear proot that they ant evide and bonit Dord hip turbo an holt press
in the present case.

Applying those principles, the West African Court of Appeal
allowed the appeal and in their Lordships’ opinion they were quite
right in so doing.

The two points that were urged before that Court and were urged before their Lordships were these :
First of all, it was said
that the Native Tribunal had refused leave to the defendant, who
is the appellant before their Lordships, to issue subpoenas for the
purpose of calling two witnesses,
the Native Tribunal holding
that, in their opinion, the application was made too late.

The actual hearing had been proceeding for three days; the proceedings
had been before the Court for a very long time and apparently
the Native Tribunal saw no reason why the defendant should not
have taken steps to have had the witnesses present, if he had wished
to call them, before that late date in the hearing.

That appears to their Lordships to be entirely a matter for
the discretion of the Native Tribunal.
There is nothing that their
Lordships can find that is in any way contrary to natural justice
in their decision.

It has to be remembered that the case had been proceeding for a long time and that several adjournments had
been made at the early stages of the smaller claim for the express
Pier likely that the Natives,
Their Lordships think
that that the Native Tribunal were a little tired of adjournments for the purpose of subpoenaing witnesses, but they were perfectly entitled to come to the conclusion to which they
did come.

As is pointed out by the Court of Appeal, there was no material before them, and there is no material before their
Lordships, to show that the evidence of those witnesses was even
material, but certainly none to show that it would be conclusive.

Further, it is not irrelevant to remember that, while this decision
Chief Kwabena Agyare of Asakraka v. Chief Koft Kwakye of Nteso
was given on the 7th May, 1937, the defendant, having called some
Chief Kwa- evidence, then elected
not to call further evidence and the
benanear. of Asakraka proceedings were adjourned sine die and were not resumed until September, during which time, if the defendant had wished to
Chiet Kof do so, he could have appealed against the refusal to allow him to
Kwakye of Nteso call witnesses. Lord Atkin
The other point arises on a suggestion that the Native Tribunal
erred in drawing the boundary line which they did draw, on the
ground that it was arbitrary and not based upon evidence andthat it merely indicated that that was what the Native Tribunal
thought would be a fair division between the parties.

Their Lordships are far from saying that, if the Native Tribunal
had not purported to proceed
upon evidence at all, but were
merely proceeding on what they
thought to be a reasonable
settlement between the parties, that would not be outside their
duty; but in this case it appears from a survey of the record, as
was considered by the Court of Appeal, that the Tribunal founded
themselves on the evidence before them and came to a right
conclusion.

At any rate, there is no evidence before their Lordships that they came to a wrong conclusion or that they acted in any respect otherwise than as they conceived to be in accordance with
the evidence.
If that is so, this is exactly a case within the rule as laid down
previously by the Board.
It is a decision of a Native Tribunal,
on a matter peculiarly within its knowledge, arrived at after a
fair hearing on relevant evidence and without any demonstration that it is wrong.
In those circumstances, it appears to their Lordships that this appeal must be dismissed with the usual consequences. Their Lordship will humbly advice his majesty accordingly.