Obeng Akesse V. Odikro Takie Ababio (1935)
LawGlobal Hub Judgment Report – West African Court of Appeal
Cross actions for declaration of title and injunction consolidated—Weight of evidence—Duty of Appeal Court discussed.
Held : Appeal dismissed.
The facts are sufficiently set out in the judgment.
A. Caseley Hayford (with him Korsah) for Appellant.
J. Henley Coussey (with him J. Bannerman-Hyde) for
Respondent.
The following judgment was delivered:—
KINGDON, C.J., NIGERIA.
This is an appeal from a judgment of Michelin, J. sitting in the Divisional Court at Cape Coast. There were cross actions which were consolidated.
The parties are, on the one hand, the people of Otwereso represented by their Odauhene, who became plaintiff in the consolidated action, and, on the other hand, the people of Edubia (or Adjobue) represented by their Odikro, who became defendant in the consolidated action. The dispute is as to a large part of the land lying between the two villages, and is of more than parochial importance because the two villages are under different Paramount Chiefs and consequently the area of jurisdiction of these Paramount Chiefs is affected. The plan (Exhibit ” A “) put in evidence in the case shows clearly the respective claims. The plaintiff claimed a declaration of title and an injunction to restrain the defendant from alienating or in any wise interfering with the plaintiff’s title to the land. The boundaries of the area to which he claimed title
are set out in the writ, and the boundaries he claims to be the Oben* correct one as between his people and the defendant’s is edged Akesse green in the plan. The defendant claimed that the boundary (Odanhen, between the respective parties should be declared to be as shown of
edged yellow in the plan.Otwereee)
v.
Apparently the dispute had been in existence for a number Odikro of years without either aide taking action in the Courts, but Takie matters were brought to a head by each party seeking to alienate Ababio. some of the land in the disputed area. Then the parties issued their respective writs, both of which bear date the 9th August, Kingd°113 1927. C.J.
The Court below found in favour of the plaintiff and granted him the declaration and injunction which he sought. In appealing against that judgment the defendant has only seriously put forward one ground, viz :—that the judgment is against the weight of evidence.
In dealing with this ground the duties of this Court are clear. Whilst it has the right to form its own opinion even as to the credibility of the respective evidence it should be very chary about differing from. the trial Judge in that respect, but if the question is the proper inference to be drawn from facts proved then this Court should form its own independent opinion. I may say at once that whenever the Judge has expressed his opinion as to the credibility of the evidence I accept his view without reserve, I can see no possible reason to differ from it. Nor do I see any reason to differ from him in his finding upon the evidence in favour of ,the plaintiff. On the contrary it appears to me that the plaintiff abundantly made out his claim and that the defendant lamentably failed to substantiate his.
The main point made before this Court in defendant’s favour was that some of his people had made cocoa farms at various places upon the disputed area and had not been disturbed in their possession for a very long time. This point would be a very strong one if there was no answer to it. The plaintiff’s answer is that these farms have all been made during the last twenty years t.e. since the dispute started and an Oath was sworn and such occupation by defendant’s people has never been acquiesced in by plaintiff; and the explanation as to why the plaintiff took no active step during all that time rests on the fact that •the villages being wader different Paramount Chiefs there was no Native Tribunal with jurisdiction to decide the case created by the swearing of the ath, and pending the settlement of the dispute the plaintiff’s Paramount Chief forbade his people to risk bloodshed by going on
the land.
The trial Judge believed the evidence as to the swearing of the Oath and accepted the plaintiff’s explanation of the defendant’s °Jong occupation of the cocoa farms. It appears a perfectly,
reasonable one and I see no cause to differ. It is obvious that if the title to the land was in the plaintiff’s people at the tinte the Oath was sworn, the subsequent making of cocoa farms- by defendant’s people was a mere trespass and such a trespass, no matter how persistent, could never give the defendant’s people title to the land as communal land, though the trial Judge was careful, in his judgment, to conserve any individual rights which might have accrued by long possession.
In my opinion therefore there is nothing in this principal point made on defendant’s behalf.
A few minor points were made and can be dealt with briefly.
The defendant pointed out that none of his people have ever paid tribute to Otwereso. Admitted, but it doesn’t. help the case at all. He also attempted to show that other people had paid tribute to him in respect of part of the land. The trial Judge refused to accept this evidence on the ground that it was too general and vague in character. He deliberately made no finding in, favour of either party on the question of tribute and I think he was right so to do.
On the question of the clearing of the road between the two villages the defendant argued that, since each village clears the road within its own land, so that clearing is evidence of title, and since his people had cleared right up to a point on the boundary he claims, that boundary must therefore be the correct one. But an examination of the evidence on this question of clearing the road shows that it is overwhelmingly in favour of the plaintiff’s story.
Originally each side cleared as far as Odum-na-dam which is on the boundary alleged by plaintiff. Then the defendant’s people cleared as far as Odum-sisea, which is about half way into the disputed area. The plaintiff at once protested and the then Odikro of Edubia acknowledged he was in the wrong saying ” I did not ” direct the people to go beyond Odum-na-dam. It was a ” mistake ” ; and he pacified the plaintiff with a flask of rum, and resumed clearing only as far as Odum-na-dam. But the next Odikro again cleared beyond Odum-na-dam, this time right up to Dentu Nkwanta, which is on the boundary claimed by defendant ; and it was when he made it plain that he was doing this not by mistake but under claim of right that the plaintiff swore the Oath which put the question in issue.
How can such a history establish any right in the defendant? On the contrary it appears to me to put him completely out of Court.
Another point made by the defendant was ” Why, in such a large area, are there so few settlements by plaintiff’s people and most of what there are all mere ruins, whereas the defendant’s people have many recent and live settlements? “
I think this point has already been covered by the answer of the plaintiff as to why he did not turn the defendant’s people out of their farms. The point of occupation by the plaintiff’s people, ruins and otherwise, are sufficient to bear out the plaintiff’s story as to the tradition.
On this question of tradition, which the trial. Judge properly treated as of first importance, be found unreservedly in favour of the plaintiff’s story and ‘against the defendant’s. I need only say that I entirely agree wiYth his view. The appellant has not been so keen on attacking the Judge’s finding as to tradition as on contending that the Judge paid too much attention to tradition and not enough to present occupation.
But perhaps the weakest point of all in the defendant’s case is the manner in which he was compelled to shift his ground during the course of the case. The point concerned is the extreme eastern portion of the disputed area. The boundary originally claimed by defendant as shown by the yellow line in Exhibit ” A-” included the villages of Asamyechi, Kobina Yeboa’s farmstead, Kojo Mensa’s farmstead, and Nimo ruins. In the course of the case the defendant was compelled to abandon his claim to quite a substantial area including these places and in this Court the defendant’s counsel has indicated roughly on, the plan where defendant now contends the boundary should run.
Now every one may make a mistake, but where a man deliberately includes in his claim an area which he has to admit is not his, the fact does tend to throw serious doubt on the bona fides of his whole claim. Seeing this, perhaps, defendant’s counsel asked this Court to believe that defendant had never claimed the area in question, but here is his evidence about it:— “.I know the village of Asamyechi. This is my village. It is ” now inhabited by Ayinasi people. The land belongs to me but ” the village belongs to the Ayinasi people. They pay me tribute ” by giving me game whenever they kill some. I knoW Kobina ” Yeboa’s farmstead and Kojo Mensa’s farmstead. These people
are Ayinasi people. These two farmsteads belong to the Ayinasi ” people but the land belongs to me. My predecessor Apaw gave ” these two people’s ancestors permission to farm there.”
What could be plainer than that?
After careful consideration of the whole evidence, therefore, I am of opinion that the contention that the judgment is against the weight of evidence fails, and that this appeal should be dismissed with costs assessed at £57 2s. 6d.
DEANE, C.J., GOLD COAST. I concur.
WEBBER, C.J., SIERRA LEONE. I concur.
