Richardson Per Chief Thomas W. Richardson V. Thomas Eshun Alias Kwa Ifeanyi (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appeal from a judgment of Provincial Commissioner setting aside award of Paramount Trauma’ of the Agona State—proceedings in both lower Courts unsatisfactoriy–Constitution of Commis. slogger’ s Court altered during hearing–case sent back for rehearing to the Native Tribunal with a strong recommendation for trot*? to Divisional Court.

Held :The trial in the Native Tribunal was unsatisfactory because

(a) difficult questions arose upon -documentsis Eoglisk form and (b) the question turned largely upon exact measurements.

2. The appeal in the Provincial Commissioner’s Court was unsatisfactory. as having been heard partly by one individual and partly by another, and for other reasons.
3. Both judgments are at amide, sad the case reenitted to the Native Tribunal for hearing de sew. Strong nx:oninsendatiort for transfer to Divisional Court Amder Section 75 of the N.A. Ordinance (Cap. 76).

There is no need to set out the facts.

()fel Awere for Plaintiff.

K. A. Korsah for Defendant.

The following joint judgment was delivered :–

KINGDON, C.J., NIGERIA, GRAHAM PAUL, C.J., SIERRA LEONE AND STROTHER-STEWART, J., GOLD COAST.

By Civil Summons No. 93 issued in the Paramount Tribunal of the Agona State, J. W. Richardson – per Chief Thomas W. Richardson made the following claim against Thomas Eshun : —

” The Plaintiff claims the sum of £25 damages from the Defendant for trespass on Plaintiff’s land situate at Agona Swedru Akura Ekyir bounded on the North by H. C. Anoff’s land on the South by Kobina Nyarku’s land on the East by Nsaba Road and on the West by. Kwesi Manwell’s and Kwesi Agyim’s land.”

And by Civil Summons No. 94 issued in the same Tribunal Thomas Eshun made the following claim against J. W. Richardson :—

” Plaintiff’s claim is for the demarcation of boundaries between the Plaintiff’s land called Manku-ahundwi situate and being at Agona Swedro in the Agona State, Central Province of the Gold Coast Winnebah District, -and bounded on one side by the property of Messrs. John Walkden and Company Limited branch of U.A.C. Ltd., and measuring 71 feet more or less, on the other side by the property of the late Henry Van Hien and measuring 245 feet more or less, on the 3rd side b_y the property of S.C.O.A. and

measuring 106 feet more or less and on 4th side by the Road to Nyakroni and measuring 168 feet more or less, the said laud having been sold and bought by the Plaintiff herein from Kwamin Bernie Sub-Chief of Nkubiasi on or about the 6th day of November, 1923 that is about 13 years ago.”

Since it appeared that both suits concerned the same piece of land they were consolidated, Richardson being referred to throughout as Plaintiff and Eshun as Defendant. After hearing the evidence and inspecting the land the Tribunal gave judgment for the Defendant with costs to be taxed. Against that judgment the Plaintiff appealed to the Court of the Provincial Commissioner, Central Province. That appeal came on for hearing before Pay Commander S. W. Saxton, Deputy Commissioner, who, after hearing argument from both parties, inspected the land with a surveyor named ” Wood ” and, then appointed Wood to make a survey of the land in dispute. Having made a plan, No. C.P. 6/38, Wood produced it before the Provincial Commissioner’s Court and gave sworn evidence in regard to it. The Defendant, however, disputed the plan as being ” not consonant, with the boundaries inspected by the Native Tribunal.” Thereupon he was given the opportunity to have another plan made at his own cost. This he did employing a surveyor named ” Ocran” for the purpose. After that plan mas prepared the appeal came on again in the Provincial Commissioner’s Court but with that Court constituted differently, namely by Deputy Commissioner T. R. O.’ Mangin. No fresh evidence was called before him, but he heard. Counsel on behalf of the respective parties and examined both plans. In the result he allowed the appeal and reversed the judgment of the Tribunal ; he awarded the Plaintiff is. damages and the costs of the appeal. From that judgment of the Provincial Commissioner’s Court the Defendant now appeals to this Court.

We are of opinion that both the original trial before the Native Tributial and the appeal in the Provincial Commissioner’s Court are so unsatisfactory that they cannot be allowed to stand. The trial in the Native Tribunal was unsatisfactory because—

1. Difficult questions arose upon several documents in English form, questions which were quite unsuitable for decision by a Native Tribunal.
2. The question in dispute turned largely upon exact measurements, which could only be ascertained by a proper survey. The Tribunal had not the assistance of any survey or plan and consequently its judgment is of little value. This can be seen from the obvious confusion in the Tribunal’s judgment when they attempt to deal with questions of measurements and to arrive at conclusions based on measurements. Neither the Provincial Commissioner nor the Surveyor Ocran could make sense out of the Tribunal’s judgment as to measurements ; nor can we, The appeal. in the Provincial Commissioner’s Cowit is un- Richards” satisfactory because

(a) It was heard partly by one individual and partly by

another, in particular the Deputy Provincial Commissioner who heard the evidence of the Surveyor Wood wu trot the Provincial Commissioner who gave judgment ; and

2. The Provincial Commissioner overruled the decision of the Native Tribunal on the facts, without, in our opinion, sufficient justification ; and
3. Ocran was not examined at all, and Wood only inadequately toncerning their respective plans.

The case • must therefore be sent back to be retried 4_.ttiovo. The difficulty to decide which Court shoubl -try it again:^— The Native Tribunal, as has already been pointed out is not a suitable Tribunal to hear it ; and we are also of opinion that thi difficult questions of law involved in connection with the aforementioned doCuments in English form (questions which have been argued at some length before us, but which in our opinion cannot be decided satisfactorily until all the facts of the case are more clearly ascertained), make the case unsuitable for trial in the Provincial Commissioner’s Court and that really the proper Court to hear the case is the Divisional Court. But we have no power to order the retrial to be before the Divisional Court. If however thecNative Tribunal again becomes seized of the case, it will be competent to the Provincial Commissioner’s Court to transfer-it to the Divisional Court under section 75 of the Native Administration Ordinance (Cap. 76).

We therefore make the following formal order:

The appeal is allowed ; the judgment of the Provincial. Commissioner’s Court, including the order as to costs is set Vide, but not ,so as to revive the judgment of the Native Tribunal, which, including the order -as to costs, remains set aside ; and the case is remitted to the. Native Tribunal to be heard de novo. Each party will bear his own costs in this Court and in the Provincial Commissioner’s Court. The costs up to date in the Native Tribunal will abide the ultimate issue.

To that formil grder we add the strong recommendation that the Provincial Commissioner’s Court should transfer the case for trial to the Divisional Court. If that Court decides to act upon this recommendation care should be taken that before transfer the exact question in issue between the parties is ascertained. We are further of opinion that..if the case eventually reaches the Divisiongli Court, it is one in which pleadings should be ordered,