Ohene Tekyi Akyin II & Ors V. Kobina Abaka II & Ors (1937)

LawGlobal Hub Judgment Report – West African Court of Appeal

[Delivered by SIR LANCELOT SANDERSON]

Facts

This is an appeal by the defendant in the suit from the judgment of the West African Court of Appeal, dated the 21st of December, 1935, which affirmed a judgment dated the 14th of March, 1935, of Strother-Stewart J. sitting as a Divisional Court of the Supreme Court of the Gold Coast.

The suit was brought on the 5th January, 1931, by Kwamin Mensal’, the Ohene of Brenu Akyinm Stool, against the Priest-in-charge of the Catholic Mission, Ampenyi, claiming damages for trespass alleged to have been committed on certain property belonging to the Stool of Brenu Akyinm and an injunction to restrain the defendant and his servants from continuing the said trespass.

On the 29th January, 1931, the appellant was joined as a defendant and on the 7th March, 1933, the respondent Kobina Abaka II was substituted as the successor of the original plaintiff who had died.

The Priest-in-charge of the Mission was only a nominal defendant, and he is not a party to this appeal.

The real dispute was between the plaintiff, the chief of Brenu Akyinm, and the defendant, Tekyi Akyin III, the chief of Ampenyi, as to the ownership of certain lands called ” Botokul ” or Abutuku “, which are on the west side of the Brenu Lagoon and are delineated upon the plan, which was exhibit A in the suit. The lands, which are the subject-matter of the action, are marked on the said plan as being within the red line thereon.

Held

The suit was first tried in 1931 by Yates J., who entered judgment for the plaintiff. There was an appeal, and for reasons which need not be referred to, the Court of Appeal ordered that there should be a new trial ” de novo.”

The new trial began before Michelin J. on the 15th March, 1934 ; but the learned judge heard the opening statements of counsel and the examination and cross-examination of the plaintiff only.

The trial was resumed before Strother-Stewart J. on the 19th March, 1934, and it was then treated as if. a claim and counterclaim for the delimitation of the boundaries of Botokul and a declaration of title were on the record. The learned Judge found that the boundaries of the present village of Ampenyi are from the mouth of the Brenu Lagoon along the course of Eduardu stream and thence in a more or less straight line to the mouth of the Inkani stream as marked by the yellow line on exhibit A.

He was satisfied that Eduardu Hill on which the Catholic Church was being built is outside such boundary and is land belonging to the Brenu Akyinm people.

He held further that the land within the red line on the plan exhibit A belongs to the Brenu Akyinm people and not to the Ampenyi people and is the land commonly known as Abutuku land.

He therefore held that a trespass had been committed by the Priest-in-charge of the Catholic Mission building and that such trespass was in consequence of permission to build the church given by the defendant appellant, who had no right to give such permission. He assessed the damages at £25 and granted an injunction to restrain the defendants, their agents, workmen or servants from continuing the said trespass.

The defendants appealed to the West African Court of Appeal.

The appeal was heard by the Chief Justice of Nigeria the Chief Justice of Sierra Leone and Bannerman J., whc affirmed the judgment of Strother-Stewart J. and dismisse

the appeal. It is against this judgment that the defendant, the Ohene Tekyi Akyin III, representing the Stool of Ampenyi, has appealed to His Majesty in Council.

They will humbly advice his majesty accordingly.