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  • appeal
  • 1961-07-18
  • GLR 481-487
  • Print



Land?-Boundary dispute?-Whether judgment purporting to fix boundary still valid or whether superseded by a settlement between the parties. [p.482]Practice and procedure?-Native court gave judgment when preliminary point only disposed of?-whether plaintiff had opportunity of pleading to general issue?-Whether miscarriage of justice?-Native Courts (Southern Togoland) Procedure Regulations (No. 23 of 1949) regs. 15, 17, 18, and 34.


In a dispute of long standing between the stool and people of Asatu (the respondent) and the stool and people of Apesokubi (the appellant) as to the right to possession of certain land, a judgment was delivered on the 3rd March, 1931, by the native tribunal fixing the boundary between the parties and holding that the land belonged to the respondent. On the 12th July, 1939, while an appeal on behalf of the appellant was pending before the Buem State Council, a settlement was reached between the parties. This settlement, which was in writing stated inter alia, that the boundary between the parties ?"should remain as traditionally known?" (para. 2) and that ?"the Committee as appointed by both parties will carry out the preliminary investigation as to the extension of the traditional boundary right across the forest if any (sic)?" (Para. 3). On the same day both parties sent notice of the discontinuance of the appeal to the Buem State Council. Thereafter abortive attempts were made to fix the ?"traditional boundary?" under the arrangements envisaged in paragraph 3 of the settlement.Subsequently, the respondent instituted proceedings in the native court for recovery of possession of lands wrongly occupied by the appellant or any of his subjects. The respondent relied upon the judgment of 3rd March, 1931 and identified the land by a plan prepared by a surveyor for the parties on the 15th June, 1932 (exhibit N). The appellant took the preliminary point that the judgment of 1931 had been superseded by the settlement of 1939, (the terms of which were exhibited) and set out the history of the case in an affidavit.The record of the hearing of the motion by the appellant showed the following note: ?"After having studied mover?'s and opposer?'s motion and affidavits the court orders that the parties do give statement under regulation 17 of the [Native Courts (Southern Togoland) Procedure] Regulations, No. 23 of 1949 to enable it to give fair judgment?". The respondent?'s representative was then sworn and gave evidence in support of his claim, he was not questioned by the appellant who stated ?"I have nothing to say again in regard to making a statement apart from the explanation given in support of my motion.?" Judgment was given in favour of the respondent.Before the Privy Council it was again argued on behalf of the appellant that the judgment of 1931 had been superseded by the settlement of 1939, paragraph 2 of which fixed a new boundary, ?"the traditional boundary?", which notwithstanding the provisions of paragraph 3 was enforceable. It was also contended that there had been a miscarriage of justice in that the native court gave judgment when the preliminary point only had been disposed of and the respondent had no opportunity of pleading to the general issue under regulation 15 of the Native Courts (Southern Togoland) Procedure Regulations.


CONSOLIDATED APPEALS (No. 47 of 1959 and No. 24 of 1960) from Judgments of the West African Court of Appeal given on the 20th February, 1956 and the 13th February, 1956 respectively. This report is concerned only with the second appeal (No. 24 of 1960) in which the West African Court of Appeal affirmed the judgment of Wilson, C.J. sitting in the Land Court, reversing the judgment of the Buem Native Appeal Court and restoring that of the Akan Native Court ?"B?" at Kadjebi dated the 2nd September, 1953. The plaintiff (respondent) claimed possession of an area of land, based upon a judgment delivered by the native tribunal in 1931, which judgment the defendant (appellant) contended had been superseded by a settlement in 1939. The facts are sufficiently set out in the judgment of the Privy Council, which held that the judgment of 1931 had not been superseded. The first appeal (No. 47 of 1959) which concerned substantially the same land arose out of a decision by the Reserve Settlement Commissioner, who acting pursuant to section 9(6) of the Forest Ordinance Cap. 157 (1951 Rev.) had accepted the judgment of 1931 and recorded the boundary between the parties accordingly. In consequence of the Board?'s earlier findings this appeal was also dismissed.


<P>[Their lordships then considered the other appeal (No. 47 of 1959) which they advised should also be dismissed.]</P>

Plaintiff / Appellant

E.F.N. Gratiaen and G. Dold

Defendant / Respondent

P. Quass, Q.C. and A. Garfitt


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