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TSRIFO v. DUA VIII


  • New
  • 1959-02-18
  • HIGH COURT
  • GLR 63-67
  • Print

OLLENNU J.


Summary

Boundaries between Stools?-Corroborated and uncorroborated version?-Appellate Court as competent to draw inferences as trial?-Court.

Headnotes

The Divisional Sub-chief of Kudjra, and the Divisional Sub-chief of Gbefi joined issue on the determination of the boundary between the lands of their two stools.The Kudjra case was that a boundary dispute, which arose between them and the Gbefi in 1913, was settled by a German Commissioner then in charge of the area, and the Have river was fixed as the boundary. In 1937 the Gbefis began to trespass into the Kudjra stool lands. Both stools then submitted their dispute to Chief Dagadu IV for arbitration, and the award of that arbitration confirmed the boundary which the German Commissioner had fixed in 1913, viz., the Have river.The Gbefi admitted that boundary disputes did arise in 1913 and in 1937, as alleged by the Kudjra, but they said that the decision which the German Commissioner gave in 1913 was that the Kudjras had crossed the boundary. To avoid future such trespass, the Commissioner set out the boundaries on a map of that area. The people of Gbefi decided to secure that map, and had done so. As to the arbitration presided over by Dagadu IV, in 1937, although the proceedings were concluded, no award was published. There were ?"homia?" trees marking the boundary between the two lands.The dispute was submitted to the Akpini Native Court B in 1958, with the Divisional Sub-Chief of Kudjra as plaintiff and the Divisional Sub-Chief of Gbefi as defendant. In support of the Gbefi case a map, dated the 1st June, 1905 was tendered in evidence as the map marked by the German Commissioner in 1913. The Court examined the map, and made the following note in their record: [p.64]?"The exhibit is carefully studied by the Court, and the Divisional boundaries of Dovie, Gbefi, Tafi and Kpandu are seen.?"The Court inspected the land in dispute, and gave judgment for the defendant. The unsuccessful plaintiff appealed to the Kpandu District.. Native Appeal Court, which also inspected the land. The appeal Court reversed the decision of the trial-Court. The now unsuccessful defendant appealed to the Land Court (Land Appeal No. 94/58).

Judgement

(His lordship stated the history of the case, and proceeded;?-) In their judgment the native trial-Court made the following findings of fact:

?"The witnesses in this case supported plaintiff in their evidence in respect of the case heard and determined in respect of the land in dispute . Except defence witness Kwami, all of them mentioned the ?"Have?" stream as the recognised boundary mark between both parties land which came in conjunction with the arbitration.?" In other words, the native trial-Court found the plaintiff?'s claim (that the Have stream is the boundary between his land and that of the defendant) confirmed by all his witnesses, and by all but one of the witnesses for the defendant.

Where the evidence of one party on an issue in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a Court ought not to accept the uncorroborated version in preference to the corroborated one, unless for some good reason (which must [p.65] appear on the face of the judgment) the Court finds the corroborated version incredible or impossible. In this case there is nothing in the judgment which justified the native trial-Court?'s rejection of the plaintiff?'s evidence, which on the record was corroborated both by his own witnesses and those of the defendant.

Before delivering their judgment, the native trial-Court inspected the land in dispute and upon their return recorded their report of the inspection. On appeal, the Kpandu District Appeal Court also inspected the land, saw most of the things which the native trial-Court had seen, and they too recorded a report of what they had seen. They then drew their own inferences from the things they had seen, and upon those inferences (coupled with other facts in the case) they delivered their judgment, reversing the decision of the native-trial-Court.

Counsel for the Appellant referred the Court to a judgment of the Court of Appeal, delivered on the 29th October, 1958, confirming a judgment delivered by me on the 28th of May, 1957. In that judgment I held:

?"that as the case rested mainly upon what the trial-Court saw at the inspection of the boundary, and there being nothing to indicate that the Native Appeal Court were shown something different from what the trial-Court saw, it was not open to the Native Appeal Court to interfere with the findings of fact made by the native trial-Court simply because, if they had heard the case at first instance, they would have formed an opinion upon the evidence (including what they saw at the inspection of the locus in quo) different from what the trial-Court formed.?"

Counsel submitted that what I condemned in the Native Appeal Court in that case is precisely what the Kpandu Native Appeal Court has done in the present case.

The case cited, however, is distinguishable from the instant case, because nothing in the judgment of the trial-Court in the instant case turned upon the inspection of the land in dispute. The contention of learned Counsel that the judgment of the native trial-Court was based mainly on what they saw at the inspection is not borne out by the proceedings. The operative part of the trial-Court?'s judgment reads as follows:-

?"The evidence received in this case are weighed and scrutinized by this Court. It is noted by this Court that for purposes of discarding such disputes in respect of lands belonging to divisions the Germans in the year 1905, during their reign over this district [p.66] surveyed the whole area and drawn up its sketch map in which the divisional boundaries were stated or marked with reference to the divisional boundaries between Plaintiff and Defendants lands in the map and it was seen that the boundary ended in stream Forlorforlor mentioned by Defendant in evidence on record which was also visible in the field. The Court found out that it was rather the Plaintiff who caused trespass into Defendant?'s land.?"

Thus the decision of the trial-Court was based upon evidence of what the Germans did in 1905 to settle a boundary dispute between the plaintiff and the defendant, as indicated on a plan dated 1st June, 1905 which was alleged to have been made in consequence of a survey of the boundary. The only reference which the trial-Court made (in their judgment) to the inspection was that what appears on the plan, viz., the Forlorforlor stream, was also visible in the field.

There was, in fact, no evidence that any dispute between the plaintiff and the defendant was settled by the Germans in 1905, nor was there any evidence that a survey was made in 1905 of the boundary between the lands of the plaintiff and those of the defendant, and a plan made of such survey. Again, nowhere on the plan (Exhibit ?"C?") dated 1st June, 1905, is any boundary shown between the lands of the parties. The trial-Court itself had this observation to make about the plan:

?"The exhibit is carefully studied by the Court and the Divisional Boundaries of Sovie, Gbefi, Tafi and Kpandu were seen.?"

Whilst the trial-Court made no use of the facts which it observed at the inspection of the land, namely, homia trees of varying ages (?"some old and some young?") and planted in a certain manner, the Native Appeal Court drew from those facts the inference that the trees had been planted to mark boundaries between individual holders, not divisional tribal boundaries. In deciding facts based upon the credibility of witnesses, a trial-Court (which sees and hears the witnesses) is in a unique position, but in respect of inferences to be drawn from accepted facts a trial-Court has no special advantage over an Appeal Court, and, consequently, enjoys no special privilege in that field. An appellate Court is quite as competent to draw inferences as a trial-Court is.

The judgment of the trial-Court, then, was based upon no evidence at all. Indeed, it contradicted the only cogent evidence on the record, namely, the evidence of the plaintiff, which the trial-Court itself found was supported even by witnesses for the defence. The findings of fact made by the trial-Court can only be described as perverse. [p.67]

It was the duty of the Native Appeal Court to reverse them. The grounds for the decision of the Appeal Court were sound, and its judgment should not be disturbed.

Decision

<P>The appeal is dismissed, with costs fixed at £17 12s. 6d., including 10 guineas Counselís costs.</P>

Plaintiff / Appellant

In person.

Defendant / Respondent

da Rocha

Referals

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