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ABONO v. SUNKWA


  • appeal
  • 1962-03-12
  • SUPREME COURT
  • 1 GLR 154-157
  • Print

KORSAH C.J., VAN LARE AND ADUMUA-BOSSMAN, JJ.S.C.


Summary

Native courts?-Procedure?-Visit by trial native court to locus in quo?-Trial court satisfied that defendant unable to identify land in dispute?-Whether Asantehene's Appeal Court can upset this finding of fact by judgment based on second visit to locus.

Headnotes

The plaintiff successfully established that her late father had made a gift inter vivos to her of his farm. The defendant contended that only a portion of the [p.155] farm was given to the plaintiff. He was not present to witness what in fact was given to the plaintiff and his assertion was discredited by the trial native court since at a visit to the locus in quo he could not identify the alleged portion of farm. On appeal to the Asantehene's Appeal Court a fresh visit to the locus was ordered as a result of which the judgment of the native court was set aside. The Land Court, Kumasi, affirmed the judgment of the Asantehene's Appeal Court. On further appeal to the Supreme Court.

Judgement

APPEAL by special leave from the judgment of the Land Court, Kumasi, delivered on the 2nd June 1959 by Howard J. Christian, Esquire, Commissioner of Assize and Civil Pleas confirming a decision of the Asantehene's "Al" Native Appeal Court which reversed a judgment in favour of the plaintiff given by the Agona Ashanti Native Court ?"B?" in a suit for ownership and possession of a piece of land described in the writ of summons.

JUDGMENT OF VAN LARE J.S.C.

It is common ground that the land in dispute is a cocoa farm which was originally the property of one Kwasi Boateng who died a few years before the institution of this suit in March, 1958. The defendant was the nephew and is now the duly appointed successor of the late Kwasi Boateng and in that capacity came to lay claim to this farm in the possession and occupation of the plaintiff, a daughter of the late Kwasi Boateng. Apart from this farm at Kotosu the late Kwasi Boateng owned other properties at other places, but this was the only property which he owned at Kotosu. The case of the plaintiff is that her late father during his life-time made a gift to her of this farm at Kotosu, and that therefore the said farm ceased to be part of the estate which the defendant inherited by reason of becoming the successor of her late father. It appears that this action was brought because the defendant challenged the plaintiff's title and interest in this farm by interfering with her right to pluck the farm, apparently on the assumption that the said farm belongs to the estate which he inherited from his late uncle. That the action was instituted in respect of the whole farm at Kotosu appears to be clear from the beginning and the particulars of the boundaries of the farm as a whole were not put in issue. What the plaintiff set out to establish and which she did successfully in my view was that her late father made a gift inter vivos to her of his whole farm at Kotosu. It became plain therefore that the disputed farm could not belong to the estate which the defendant inherited after his uncle's death. In the cross-examination of the plaintiff and her witnesses the defendant never suggested that he conceded to any gift by his late uncle of any portion of the farm in dispute, but in stating his case, however, he asserted unexpectedly that it was not the whole of the farm but only a portion which his late uncle presented to the plaintiff. In his evidence the defendant agreed that he was not present when the gift was made except that [p.156] his late uncle had told him of it. Though not present to witness what was in fact given to the plaintiff, the defendant attempted to describe a portion of the farm which he alleged had been given to the plaintiff. Before the trial court the defendant lamentably failed to discharge the onus which shifted on him to establish with certainty the exact portion which he conceded his late uncle gave to the plaintiff. The inspection report of the trial court is that "even in the farm defendant was not able to direct the portion of the farm presented to the plaintiff by his predecessor. The right side of the farm as described by defendant that it was given to plaintiff by his deceased uncle, there are no cocoa trees". To put it shortly the trial native court discredited the defendant's assertion. It is not surprising therefore that upon the evidence and especially in view of the proceedings at the inspection, judgment was entered for the plaintiff.

On appeal, however, to the Asantehene's Native Appeal Court another visit to the farm was made when the defendant apparently put up another show this time as to what portion of the farm in his opinion his late uncle presented to the plaintiff. Apart from the visit to the land and what the defendant pointed out there was no other additional evidence. I am unable to see any new discovery of evidence to enable the defendant to point out an area which the donor himself never pointed out to him. Evidence is lacking to corroborate the show which the defendant put up when the Asantehene's Appeal Court visited the land.

The point which in my view has been successfully argued in this appeal is that the Asantehene's Appeal Court, which was faced with a finding of fact based on the credibility of witnesses particularly that of the defendant's failure to satisfy the trial native court as to what portion of the farm he alleged was given to the plaintiff by his predecessor in title, erred in giving the defendant a second chance of reiterating his case and of contradicting the evidence already given by him at the second inspection which was uncalled for and for which the said Asantehene's Appeal Court gave no reason.

It is not a function of a Court of Appeal to disturb a finding where credibility of witnesses had been in question. In this case there is a solemn declaration in the viewers' report that the defendant was not able to show the portion of the farm which he alleged his predecessor gave to the plaintiff. Following the case of Chief Aaron Nwizuk v. Chief Warribo Eneyok1 it can be properly said that such finding of fact must be taken as a correct account of what occurred at the inspection by the trial court and therefore final, and I am, therefore, at a loss to understand why the Asantehene's Appeal Court found a second visit necessary, for neither the location nor the area of the land nor indeed its boundaries were in doubt, and it is difficult to see how that appeal court could by their visit ascertain whether the defendant had in fact failed to show the portion except to give him a chance of inventing something new which can have no corroboration whatever on the evidence. This exactly appears to be what the Asantehene's Appeal Court has done. An appeal court must not substitute itself for the trial court and the judgment based solely on the second visit cannot stand and should have been set aside on the further appeal to the Land Court, Kumasi.

For the reasons given I would allow the appeal, and set aside the judgments of both the Land Court, Kumasi, and the Asantehene's [p.157] "Al" Native Appeal Court, Kumasi, and restore the judgment of the Native Court "B" of Agona, Ashanti, for a declaration of ownership and possession of the whole of the farm subject-matter of the suit in favour of the plaintiff.

JUDGMENT OF KORSAH C.J.

I agree.

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

I also agree.

Decision

<P>Appeal allowed. </P> <P>Judgment of trial native court restored.</P>

Plaintiff / Appellant

Hayfron-Benjamin

Defendant / Respondent

J. D. Reindorf

Referals

Nwizuk v. Eneyok (1953) 14 W.A.C.A. 354
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