The Stool Of Abinabina V. Chief Ko Jo Enyimadu (On Behalf Of The Stool Of Nkasawura) (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land—Claim to declaration of title—Proof by traditional evidence—Point oflaw not taken below—Exception to rule as to concurrent findings of fact.

Facts

On a claim by the appellants for a declaration of their title to certain lands, known as Nkasawura lands, to which the respondents, who had admittedly been in possession of them for many years, claimed to be entitled, the appellants alleged that tribute had been paid to them by the respondents for a number of years in respect of the lands, and that whether or not tribute was proved to have been paid the respondents were only in occupation of the lands by the appellants’ leave and licence. The evidence called on both sides was partly traditional—as to rights alleged to have existed beyond living memory—and partly factual as to events within living memory.

The trial Judge, in summing up his conclusion, in favour of the respondents, said that in claims for a declaration of title the plaintiff ” must evidence such positive and numerous acts within living memory sufficiently frequent and positive to justify the inference that he is the exclusive owner “, and he held that the appellants had failed to satisfy that test. On appeal by the appellants to the West African Court of Appeal the decision of the trial Judge was affirmed without qualification, and they made no observations as to the nature of the evidence required to establish title.

On appeal by the appellants on the ground, inter alia, that the trial Judge was wrong in holding that sufficient and frequent positive and numerous acts within living memory were necessary to establish title and, inferentially, that such title could not be supported by traditional evidence alone:—

Held

First, that although that point was not taken before the West African Court of Appeal, it involved a substantial substantive point of law and it was plain that no further evidence could have been adduced which would affect it, and the Board would therefore entertain it.

Held: Secondly, that the opinion of the trial Judge that frequent and positive numerous acts within living memory were essential to justify the inference of exclusive ownership, with which opinion the West African Court of Appeal must be taken to have agreed, was not well founded.

Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu (4) and Kwamina Kuma v. Kofi Kuma (5) applied.

Further, the appellants had satisfied the conditions which brought into operation the exception to the rule as to concurrent findings of fact which, as stated in Srimati Bibkabati Devi v. Kumar Ramendra Narayan Roy (3) is that ” in order to obviate the practice, there must be some . . . violation of some principle of law or procedure ” as therein defined.

Appeal allowed and case remitted for new trial.