Kofi Badoo & Ors V. Ohene Kwesi Ampung & Ors (1949)

LawGlobal Hub Judgment Report – West African Court of Appeal

Native Court Procedure—No necessity for details of inspection of locus to berecorded as evidence.

It is not a necessary part of the procedure of Native Courts that the details of an inspection of a. site by the Court must always be recorded as evidence.

Case referred to:

(1) Sampson v. Ocquaye, W.A.C.A., 28th May, 1932 (unreported). Appeal from the Supreme Court of the Gold Coast.

Abbensetts for Appellants (defendants below).

Williams for Respondents (plaintiffs below).

The following judgment was delivered:

Lewey, J.A. This was an appeal by the defendants in the original action in which the plaintiffs were asking, in effect, for a definition of the boundaries between the two Stools of Ayinabirem and Assundua. The plaintiffs were successful before the Native Grade ” B ” Court, and also on the subsequent appeal to the Land Court, where Hooper, J., upheld the decision of the Native Court.

The defendants now appeal on a number of grounds. I wish to say at once that, after considering those grounds, I find no difficulty in coming to the conclusion that they contain nothing which would justify this Court in interfering with the decisions of the Courts below. That is particularly so having regard to the fact that the grounds of appeal relate, for the most part, to matters which a Native Court is peculiarly qualified to decide.

I desire, however, to refer in more detail to the first of the grounds of appeal, which is based on the criticism that there is nothing on the record to show that any inspection had been made of the area in dispute. Mr. Abbensetts, who appeared for the appellants, devoted a considerable part of his argument to this aspect of the case, and went on to argue that it was a fatal defect that the proceedings did not include the report of any inspection carried out by the Native Court.

I am unable to accept that contention. There is a clear indication on the record that members of the Native Court did inspect the locus and that they gave detailed attention to the disputed boundaries and carefully considered, in that connexion, the contents of the document referred to as Exhibit ” E “. In my view, therefore, it cannot be said, in this case, that there is any serious defect in the proceedings on the record of the Native Court in relation to their inspection of the area concerned. It may be thought desirable in certain cases that a record of the result of an inspection should be available, but it seems to me to be going much too far to say that it is necessary in every case, or that the absence of such a record is a fatal defect. No legislation or authority has been cited to us to establish Mr. Abbensetts’ contention, nor have we anything before us to show that there are any Native Court procedural regulations dealing with the point.

We were referred, on behalf of the appellants, to the case of Sampson v. Ocquaye (1). An examination of the recorded judgments in that case does not, however, support the argument that it is an authority for the proposition that it is a necessary part of the procedure of Native Courts that the details of an inspection of a site by the Court must always be recorded as evidence. Sampson v. Ocquaye (1) was an appeal from the judgment of a Provincial Commissioner, and the only relevant reference occurs in the judgment of Macquarrie, J., and is no more than an obiter dictum by the Judge as to the desirability, in his view, of recording as a matter of evidence the results of an inspection of a site with the parties.

In my view, therefore, this appeal fails and must be dismissed.

Blackall, P. I concur. With great respect I do not agree with the obiter of Macquarrie, J., in Sampson v. Ocquaye (1). A view of the locus in quo by Judge and jury is a common feature of trial by jury but it is not the practice to record anything more than the fact that there had been a view. In the absence of any native law and custom to the contrary I see no reason therefore why Native Courts should be required to go further in this regard than the Supreme Court.

Appeal dismissed.