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AWORO v. BUOR


  • appeal
  • 1962-11-12
  • SUPREME COURT
  • 2 GLR 128132
  • Print

SARKODEE-ADOO, MILLS-ODOI AND OLLENNU, JJ.S.C.


Summary

Courts?-Appeals?-Out of time?-Appeal to High Court from judgment of Asantehene's "A2" Court dismissing application for leave to appeal out of time?-Jurisdiction of High Court?-Native Courts (Ashanti) Ordinance, Cap. 99 (1951 Rev.), ss. 25 (2) and 29.

Trespass?-Land, to?-Title not in issue?-Plaintiff need only establish possession.

Courts?-Native courts?-Practice and procedure?-Absence of record of inspection of locus in quo?-Whether fatal.

Headnotes

A. sued B. in the native court for damages for trespass to land. After hearing evidence and inspecting the locus in quo, the native court entered judgment for A. for "full title of the farm in dispute." B.'s appeal from this judgment to the [p.129] Asantehene?'s ?"A2?" Court was not filed within the 30-day period allowed by Cap. 99, s. 25 (2), and acting under Cap. 99, s. 29, B. therefore applied to the Asantehene?'s ?"A2?" Court for special leave to appeal out of time. This was refused. B. then applied to the High Court, Sunyani which granted leave to appeal. The case proceeded in the Asantehene?'s Court and from there again to the Land Court, Sunyani, which reversed the judgment of the trial local court. A. appealed to the Supreme Court.

Judgement

APPEAL from a judgment of the Land Court, Sunyani, reversing a judgment of the Bechem Native Court in an action by the plaintiff-appellant to recover from the defendant-respondent damages for trespass to land. The facts are more fully set out in the judgment of the Supreme Court.

JUDGMENT OF MILLS-ODOI J.S.C.

This cause of action arose through the entry by the defendant?'s labourers upon the plaintiff?'s cocoa farm situate at Abomenaso on Bechem stool land, the weeding of the said farm and plucking 24 pods of cocoa therefrom. The farm in dispute is a small area containing about 30 cocoa trees. To substantiate his claim, the plaintiff and his witnesses gave evidence that the land at Abomenaso was cultivated by the plaintiff 35 years prior to the date of the writ and that the plaintiff had been in possession thereof ever since. About 20 days prior to the issue of his writ, the plaintiff went to the farm and found that the defendant?'s labourers had weeded the farm and had plucked 24 cocoa pods therefrom.

The defendant in his evidence admitted that at the request of the plaintiff, Kwasi Bio cultivated a farm at Bechem for the plaintiff 35 years ago, which farm forms a boundary with the farm of his (defendant?'s) uncle, whom he has succeeded. He also admitted sending his labourers to the farm in dispute. [p.130]

Upon the evidence the issue which the trial native court had to determine was whether the defendant?'s land covered the area where the cocoa pods were plucked. After hearing evidence the trial native court inspected the area in dispute and delivered judgment in favour of the plaintiff. The defendant being aggrieved by the decision of the trial native court decided to appeal against that decision to the Asantehene's "A2" Court as Bechem at that time was within the Ashanti Confederacy and the cocoa farm in dispute was situate within the jurisdiction of the Confederacy; but the defendant's appeal was not filed within the statutory period of 30 days as required by section 25 (2) of Native Courts (Ashanti) Ordinance.1 His right of appeal would therefore have been lost (see Nii Kpakpo Muffat v. Nii Tetteh Kpeshie II2) but for the provision of section 29 of the Native Courts (Ashanti) Ordinance, which gave discretion to a court to which appeal lies to grant leave to appeal out of time: this in effect amounts to special leave.

Acting upon section 29 the defendant appealed to the Asantehene's "A2" Court which was vested with jurisdiction to hear appeals from any order or decision of the trial native court and which appellate court dismissed the defendant's application for leave to appeal out of time on the 5th November, 1958. Although there is no provision in the Native Courts (Ashanti) Ordinance giving a right of appeal from the refusal of a court to grant leave to appeal out of time under section 29, the defendant applied to the Land Court, Sunyani, and was granted leave to appeal from the said refusal. The order granting the defendant leave to appeal reads as follows: "Motion for application for leave to appeal out of time granted. Remaining condition to be fulfilled within fourteen days?-Costs seven guineas to respondent." I am of the opinion, therefore, that the proceedings before the Land Court, Sunyani, and the order of the learned judge granting the defendant leave to appeal out of time are null and void as the said court had no jurisdiction to entertain the application?- see Asare Koranteng v. Opanin Kwame Ayim.3

Having obtained the void order for leave to appeal from the order of the Asantehene's "A2" Court (native appeal court) the defendant fulfilled the condition and the Land Court purported to hear and allow the appeal and granted leave to appeal on the 18th February, 1960. A fortiori, these appeal proceedings and the order of the Land Court are themselves null and void, see Asare Koranteng v. Opanin Ayim, supra.

On the 28th June, 1960, the Asantehene's "A2" Court, acting upon the void order of the Land Court made on the 18th February, 1960, purported to grant leave to appeal from the decision of the trial native court. Consequently I hold that the order of the Asantehene's "A2" Court is also null and void. In the result there was no appeal before the Land Court, Sunyani, which could be heard by the learned judge. It follows therefore that the judgment of the Land Court against which the appeal is brought to this court is null and void. This disposes of the appeal. However there are other aspects of the appeal which I think require some comment. [p.131]

The grounds upon which the learned judge of the Land Court purported to allow the appeal are very difficult to appreciate: they are

?"(a) The plaintiff?'s claim in this case was for 25 damages for trespass on his land known as Abomenaso. To this claim the defendant pleaded not liable and he also claimed ownership of the land in dispute. This adverse claim by the defendant naturally put the title of the plaintiff in issue, and the onus was therefore thrown on the plaintiff to show the limits of the land which he claimed, and further he must satisfy the court beyond all reasonable doubt that he was entitled to a declaration of title in his favour.?"

?"(b) The judgment of the trial native court is based in part on the impressions formed at the locus in quo whereas there is no inspection report on the record. This aspect of the case completely makes the judgment of the trial native court utterly unsatisfactory.?"

In respect of (a) the learned judge after holding (rightly in my view) that the plaintiff?'s claim was for damages for trespass on his land erred by saying that the adverse claim of the defendant put the title of the plaintiff in issue. Nowhere in the proceedings did the defendant counterclaim for title to the farm, the subject-matter in dispute. The mere fact that the defendant pleaded not liable to the plaintiff?'s claim did not alter that claim to a claim for declaration of title to land. The claim was for damages for trespass to land simpliciter; in fact title to the farm in dispute was never put in issue. It is a settled rule of law that where from the general nature of a case involving land, it is apparent that title is not in fact put in issue, a plaintiff need not prove title. In an action the true nature of which is damages for trespass to land, for recovery of possession of land, it is sufficient for the plaintiff to establish possession. It is only where there is specific or general denial of his title that a plaintiff cannot succeed without proving his root of title; see Anto v. Mensah.4

In proof of his case, the plaintiff and his witnesses gave evidence that the land in dispute was cultivated for the plaintiff 35 years prior to the date of institution of his action and that he had been in possession ever since. Possession in itself is a good title as against everyone except the true owner, and a party must prove that he has better title to land in order to enable him to recover that land as against the person in possession.

The onus of proof on the plaintiff in civil case is not the same as the onus of proof on the prosecution in a criminal case. It is only in criminal cases that the prosecution must prove the case beyond all reasonable doubt. The learned judge of the Land Court therefore erred by saying that the plaintiff ?"must satisfy the court beyond all reasonable doubt that he was entitled to a declaration of title in his favour.?" The plaintiff?'s claim was in damages for trespass to a farm described in his writ and said to be situate at Abomenaso. It is sufficient therefore for him to establish possession.

In the case of Nana Juaben Serwah v. Nana Akyea Kesse,5 van Lare, J.S.C. had this to say:

?"I am not in agreement with the proposition of law advanced on behalf of the appellant that a plaintiff in a suit for a declaration of title must prove his case beyond all reasonable doubt . . . The principle of law which the courts in this country have always followed is that ?'the onus lies on the [p.132] plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff this case must rely on the strength of his own case and not on the weakness of the defendant?'s case. If this onus is not discharged, the weakness of the defendant?'s case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration . . .?' Per Webber, C.J. in Kodilinye v. Odu (2 W.A.C.A. at p. 337).?"

In respect of (b) it is sufficient to say that the absence of a record of the inspection is not fatal; a statement by the court in a solemn judgment must be taken as a correct account of what occurred and is therefore final. ?"It may be thought desirable in certain cases that a record of the result of an inspection should be available, but it seems to me to be going much too far to say that it is necessary in every case, or that the absence of such a record is a fatal defect?" see Kofi Badoo v. Ohene Kwesi Ampung6 per Lewey, J.A., Blackall, P. agreeing with the views expressed by Lewey, J.A. stated as follows7:

"A view of the locus in quo by judge and jury is a common feature of trial by jury but it is not the practice to record anything more than the fact that there had been a view. In the absence of any native law and custom to the contrary I see no reason therefore why Native Courts should be required to go further in this regard than the Supreme Court."

See also the case of Chief Aaron Nwizuk v. Chief Eneyok.8

The trial native court entered judgment for the plaintiff against the defendant "for full title of the farm in dispute plus costs to be taxed. No damages allowed.?" I have already clearly indicated that the plaintiff?'s claim was for damages for trespass to his cocoa farm and not for a declaration of title. It was not incumbent therefore upon the trial native court to give to the plaintiff anything which he did not ask for.

In the result I would allow the appeal, set aside the judgment of the Land Court and restore the judgment of the trial native court which is hereby amended by deleting the last paragraph thereof and substituting therefor the following: ?"In the light of the above reasons judgment is entered for the plaintiff against the defendant plus costs to be taxed. Plaintiff is entitled to five guineas nominal damages.?"

JUDGMENT OF SARKODEE-ADOO J.S.C.

I agree.

JUDGMENT OF OLLENNU J.S.C.

I also agree.

Decision

<P>Appeal allowed.</P> <P>Judgment of trial local court amended and restored.</P>

Plaintiff / Appellant

Wiredu

Defendant / Respondent

Pepra

Referals

(1) Muffat v. Kpeshie II (1952) 14 W.A.C.A. 44

(2) Koranteng v. Ayim (1953) 13 W.A.C.A. 301

(3) Anto v. Mensah (1957) 3 W.A.L.R. 218

(4) Serwah v. Kesse [1960] G.L.R. 227, S.C.

(5) Badoo v. Ampung (1949) 12 W.A.C.A. 439

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

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