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3PLR/1935/11 (DC-CPL)



2 [WACA] 380.





KOBINA ABABIO II, OHENE of BRENU – Plaintiff-Respondent.





  1. Ward Brew (with him F. Awoonor Williams and E. C. Quist) for Appellants.
  2. E. G’wira Sekyi for Respondents.


REAL ESTATE/LAND LAW:- Trespass to land – Land proceedings – Whether Previous judgments admissible to show acts of possession as distinct from establishing of estoppel or Res Judicata


The following judgment was delivered:-


This is an appeal from the judgment of Strother-Stewart, J. delivered in the Divisional Court at Cape Coast on the 14th March, 1935.


Originally, the first defendant was the only defendant before the Court but the second defendant was, on his own application, made a co-defendant and the case was heard and determined by Yates, J. who gave judgment in favour of the plaintiffs-respondents. From this judgment the defendants-appellants appealed to the West African Court of Appeal.


The Appeal Court remitted the case to the Divisional Court for re-hearing with a direction that it should be re-heard by another Judge.


The case was re-heard before Strother-Stewart, J. and he gave judgment for the plaintiffs-respondents for ₤25 damages and also granted an injunction restraining the defendants, their agents, workmen or servants from continuing the trespass.


The appeal was argued before this Court on the following grounds:

(1)     Because the Court below wrongly received irrelevant inadmissible evidence considered and based its judgment thereon.

(2)     Because the Court below wrongly rejected relevant admissible evidence.

(3)     Proceedings irregular.

(4)     Because the traditional evidence and facts adduced in evidence proved that the Ampenyi people were the first settlers at Ampenyi Division for over 500 years.

(5)     Because the facts proved showed that the Brenu Akyinm people settled by permission o₤ Chief of Ampenyi at Brenu Akyinm about 100 years ago for the purpose of manufacturing salts and were the domestics of Kwanin Menaah and Brompon Abaka of Elmina.

(6)     Because it is against native customary law.

(7)     Because the judgment of the Court below is wholly or entirely against the weight of evidence.

(8)     Because the judgment of the Court below is contrary to law and equity,

(9)     Because the judgment of the Court below is otherwise erroneous.

(10)   Because the judgment should have been entered for the defendants.

(11)   Because the plaintiff was not entitled to judgment.


Before this Court Mr. Williams, on behalf of the defendants-appellants, abandoned Ground 9 and argued the appeal mainly on Grounds 1, 2, 4, 5 and 7.


As to Ground I:-

It was strenuously contended by learned counsel on behalf of the appellants that the judgments which were received in evidence before the learned trial Judge on behalf of the respondents (plaintiffs) were inadmissible inasmuch as the appellants’ predecessors in title were riot parties to the proceedings. On this point Mr. Williams cited several authorities to show that these judgments cannot establish estoppel or res judicata against the appellants. I have considered these authorities and am of the opinion that they have no bearing on the points involved in this case. The judgments were tendered and received in evidence not to establish estoppel or res judicata but to show acts of possession.


About thirty-four years ago one Ambah Amissah, the stool-holder of Brenu Akyinm, and one of her elders, Tekyi Mensah, brought an action against one Kobina Painin, whose stool the second defendant now occupies. It was an action for trespass on Ebutukul lands. The case came before Nicol, J. and he gave judgment for the plaintiff and the judgment was upheld on appeal. Now, it is clear from the proceedings that the action before Mr. Justice Nicol related to the same lands as are the subject of this appeal. It is true that in that case there was no plan before the learned Judge, but according to the boundaries described in the plan (Exhibit “ K “) it is beyond doubt that the boundaries are practically identical. Besides, Mr. Justice- Strother-Stewart inspected the land and came to the conclusion that they are practically identical.


In 1901, the same Arnbah Aroissah and Tekyi Ilensah brought an action against one Kwarnina Busurnprab and nineteen others of Ampenyi for trespass on the same lands. In that action the lands were described as Abutuku lands and the case was heard by Purcell, J. who gave judgment for the defendants. This judgment was set aside by the Full Court and the case was remitted to the Court below for re-hearing. Seven years elapsed before the case was re-heard by Earnshaw, J. olio adopted the judgment of Nicol, J. and gave judgment in favour of the plaintiffs. It is significant that Eccualr Amissah, one of the defendants in that case, wan an ancestress of the second defendant in this case.


These judgments show that for some years the people o₤ Brenu-AkSinur have claimed these lands as their property.


Apart from these judgments which, in opinion, show definite acts of possession, another important fact may be mentioned.


One of the witness for the appellants (J. J. Smith) who was a Bailiff attached to the Divisional Court, Cape Coast, admitted in evidence      under cross-examination that   some  years ago    he executed a writ of pohessioa for Botoku land after the case heard before Mr. Justice Nicol. It is impossible to believe that the representatives of the Ampenyi State were not aware of this attachment or of the judgments given against important members of the Ampenyi State.


Mr. Mlliams contend., that the State of Ampenyi was never a party to any of the proceedings and that, therefore, it could not be affected by these judgments. In this connection it may be mentioned ilral Ow defendant in the case which was heard before Mr. Justice Nieol over thirty-four years ago was Kobina Yainin wlm, according to lire evidence of Kofi Karikari, was authorised to defend any action in respect of Ampenyi Stool, and it is worthy of note that the second defendant in this case now occupies the Stool of Kobina Yainin as already pointed out.


In my opinion the proceedings (Exhibit “ Q “) were wrongly admitted in evidence in view of the fact that. they had not been certified as “ true copy” of the original Tribunal Record. Furthermore, these proceedings were tendered in evidence through a clerk of the Divisional Court. True they were received in evidence before Yates, J. in the former case, but on that occasion they were tendered in evidence through a Tribunal Registrar who was acquitted with the signature of the deceased Registrar Essilfie who had witnessed the marks of the Councillors.


I may mention at this stage that, apart from Exhibit “ Q “ which I have held was wrongly admitted in evidence, the learned Judge in the Court below had abundant evidence—oral and documentary-before him to support his judgment.


As regards the, proceedings (Exhibit “ V “) in the out[[ case, I hold that they were properly₤ admitted in evidence a₤ being relevant to the issues before the Divisional Court. Strother Stewart, J. has given full reasons in his judgment to show that these proceedings were relevant and admissible and I entirely agree with him.


In my opinion Ground 1 fails.


Ground 2:-

In my view the learned trial Judge properly rejected the statement of Kwamin Conua. Pages 41 and 42 of the Appeal Record show that the statement of Kwamin Coma does not relate to the land in dispute. The title of that case is Etrue of Efuaffo v. Quamin Accout of Commenda, and on page 33 of the Appeal Record witness Kobina Abaka states that the land in dispute in that action is eight miles away from the land the subject-matter of this action. I therefore hold that Ground 2 fails.


Grounds 4 and j:-

From the judgment it is abundantly clear that the learned Judge in the Court below very carefully considered the traditional evidence led on behalf of both parties and came to the conclusion he did. These two grounds relate to questions of fact anal it was for the trial Judge to determine the question of credibility. I am satisfied that overwhelming facts exist to sustain the finding” of Strother-Stewart, J.


I will now deal with seventh ground namely Judgement against weight of evidence.


In this connection I can only refer to the recent judgment of Webber, C.J., Sierra Leone in the case of Martin Xortei Codjoc etc. v. Emmanuel Kwatchey and Others” which came before the Court of Appeal. The learned Chief Justioc there said: “Au “ Appeal Court will not interfere with the decision of Court on “ facts unless such decision is shown to be perverse or not the “ result of a proper exercise of discretion (Chief Ytia:.o  Others “ v. Ibok Etok Akpan & Others. Nigeria Law Reports Vol. 3 “ p. 9). The Appeal Court is not debarred however from coming “ to its own conclusion on the facts and where a judgment has liven “ appealed from on the ground of the weight of evidence the “ Appeal Court can make up its own mind on the evidence; not “ disregarding; the judgment appealed from but carefully weighing “ and considering it and not shrinking from overruling it. if on “ full consideration it comes to the conclusion that the judgment “ is wrong .  . ‘       In the present case I am satisfied that the learned Judge in the Court below went carefully into the case and reached a conclusion on the evidence before him.


This ground also fails.

The statement of Joseph Charles Ghanbin on page 264 of the appeal record is contradicted by him in his capacity as Kobina Abaka II.         The original of the statement was not signed and was not produced before the trial Judge.   It is obvious, therefore, that no credence can be attached to this statement.


In my opinion the appeal should be dismissed.





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