Christian Yao Kesiedu & Ors V. Djorbuah Domprey & Ors (1935)

LawGlobal Hub Judgment Report – West African Court of Appeal

Action for Trespass and Injunction consolidated—Weight of evidence—Duty of Appeal Court discussed.

Held : Appeal allowed.

The facts are sufficiently set out in the judgments.

E. C. Quist (with him J. H. Coussey) for Appellants. Ofei Aivere for Respondents.

The following judgments were delivered :— KINGDON, C.J., NIGERIA.

This is an appeal from the judgment of the learned Chief Justice sitting in the Divisional Court at Accra in two suits which were consolidated.

The parties are, on the one hand, Christian Yao Kisiedu of Amanokrom with whom are joined Barima Kofi Peasa Ababio and Kofi Mane, and, on the other Djorbuah Dompreh, Jarkwa and Kokotse Ahulu all of Asafo with whom is joined Yao Apia-Kra.

In the first suit Kisiedu claimed £100 damages from Dompreh, Jarkwa and Kokotse jointly and severally for trespass committed on his land at Ajapoma by entering upon the same and making farms thereon, and an injunction to restrain them from entering upon the land and from committing further acts of trespass.

In the second suit Dompreh and Jarkwa claimed from Kisiedu £100 damages for trespass committed upon their land situate at Atenkesu by entering upon the land cultivating a portion thereof and removing foodstuffs and other crops therefrom, and an injunction to restrain him, his workmen or agents from entering upon the land and cultivating any portion thereof or removing any foodstuffs or crops therefrom.

Barima Kofi Peasa Ababio is the Ohene of Tafo and Kofi Mane is the Odikro of Ajapoma. They were added in their respective capacities to the suits on Kisiedu’s side as being interested in the dispute since Kisiedu rests his claim to the land in dispute upon a purchase of it from them. In a similar way Yao Apia-Kra was joined on Dompreh’s side as acting Odikro of Asafo because Dompreh claims to have purchased the land from the Odikro of Asafo, on behalf of himself and Jarkwa and Kokotse.

The land claimed by the respective sides, on which they say the other has trespassed, is not identical, but that claimed by Kisiedu’s side is the larger and includes all that claimed by Dompreh’s side. The respective claims are shown on a plan Exhibit ” A ” in the case, Kisiedu’s claim being edged green and Dompreh’s yellow. The trial Judge decided in favour of Kisiedu’s side and gave him £100 damages with costs to him and his associates, and granted an injunction against Dompreh and his associates, their agents or servants trespassing on the land.

Against that judgment Dompreh and his associates appeal to this Court on four grounds, namely :—

1. The judgment was against the weight of evidence.
2. The judgment was contrary to law.
3. The judgment was inequitable.
4. Inadmissible evidence was misreceived.

The learned counsel for the appellants dealt with these grounds in reverse order and I will do the same.

As to Ground 4, the evidence alleged to be inadmissible and misreceived is Exhibit ” D ” which consists of the claim and judgment in the case of Ohene Kwadjo Peasa per Linguist Kwadjo Ado v. Odikro Kwabena Gyasi decided in the Native Tribunal of the Omanhene of Akyem Abuakwa on the 29th August, 1919.

When this document was tendered by the respondents the appellants objected to it on the grounds

1. that it does not relate to same and so is irrelevant, ” and
2. as far. as defendants Dompreh and others are ” concerned they would not be affected as the ” judgment was obtained after they bought against ” the vendor and they were not parties to it.”