CHRISTIAN YAO KISIEDU Vs. DJORBUA DOMPREH

JUDGEMENT

(1.) This is an appeal from a judgment of the West African Court of Appeal (Gold Coast Session) which allowed an appeal from a judgment of the Supreme Court of the Gold Coast Colony (Eastern Province) pronounced in two consolidated actions. Each of these actions was instituted in the tribunal of the Omanhene of the State of Akyem Abuakwa. The first in point of time (the writ being dated 29 March 1933) was an action in which one Christian Yao Kisiedu was plaintiff and one Kwao Dompreh was defendant, and in which the plaintiff claimed damages for trespass on the plaintiff's land and an injunction to restrain further trespass. In the second action (in which the writ is dated 28 April 1933) the said Dompreh as plaintiff claimed against the said Kisiedu as defendant damages for trespass on his land and an injunction. The two actions were consolidated and by an order of the Supreme Court dated 22 June, 1933, were transferred for hearing and determination to the Divisional Court, Accra. The dispute between Kisiedu and Dompreh was not a dispute as to boundaries between two grantees claiming under the same grantor. Each claimed his land under a different grantor. Kisiedu derived title to his parcel of land by purchase in 1907 from the Stool of Tafo and its subordinate Stool of Adjapoma. Dompreh derived title to his land, which was a portion of the larger parcel claimed by Kisiedu, by purchase in 1918 from the Stool of Asafo. Obviously the litigation involved bigger questions than the mere questions of damages for trespass between individuals. It involved questions of title as between different Stools. For this reason, orders were made joining as parties to the two actions representatives of the Stools concerned. By an order of the said Divisional Court of 13 March 1934, it was ordered that a representative of the Stool of Asafo be joined as a co-defendant in the first action and as a co- plaintiff in the second action, and that the necessary amendments in the proceedings be made. By an order of the same Court of the same date it was ordered that representatives of the Stools of Tafo and Adjapoma respectively be joined as co-plaintiffs in the first action and as co-defendants in the second action and that the necessary amendments in the proceedings be made. In consequence of the death of Kwao Dompreh an order was made on 29 June 1934 entering the name of his legal representative (Djorbua Dompreh) in the place of Kwao Dompreh as a defendant in the first action and as a plaintiff in the second action.

(2.) The consolidated actions were heard by Deane, C.J. (Gold Coast Colony), the trial lasting some seven days. He decided in favour of Kisiedu awarding him ?100 damages for trespass and granting an injunction against the defendants in the first action. In the second action he gave judgment for the defendants with costs. In other words the learned Chief Justice held, upon the evidence adduced, that the title to the land which had been sold to Dompreh lay not in the Stool of Asafo but in the Stool of Tafo, and had therefore been effectively sold to Kisiedu by the Ohene of Tafo and the Odikro of Adjapoma. On appeal this decision was held by Kingdon, C. J. (Nigeria) and Webber, C.J., (Sierra Leone) to be against the weight of evidence. They entered judgment for the defendants in the first action, and in the second action they awarded ?10 damages for trespass and an injunction against the defendants in the second action. Prom this it will be seen that the findings of fact of the trial Judge based upon his consideration of the evidence given by the witnesses who were called before him, were dissented from and reversed by the appellate tribunal. That to do so is within their power cannot be doubted, but in order to ascertain whether they were justified in the present case in reversing the trial Judge upon a question of fact largely dependent upon oral evidence, necessitates a consideration of that evidence of the respective judgments and of the reasons given by the appellate Tribunal for differing from the trial Judge or questions of fact.

(3.) One question must be mentioned at the outset. Evidence was given, and was cross- examined to in some detail, as to the exact boundaries of the property which had been purchased by Kisiedu, and suggestions were made that as a result of the evidence he had not proved his parcels with sufficient certainty to establish that his purchase in fact included any portion of the land purchased by Dompreh. A plan (Ex. A) was put in evidence. This had been prepared as the result of a survey made in 1927 by a licensed surveyor named Kwantreng. It shows the land claimed by Kisiedu surrounded by a yellow edging, and (as part thereof) the land claimed by Dompreh surrounded by a green edging. It will be convenient to refer to the former as the yellow land, and to the latter as the green land. The trial Judge took the view that in the result the question of parcels and boundaries was immaterial to his decision of the case. What he said was this :