Judgment:
The claim by the plaintiff in the Ahafo Native Court was that the defendant had trespassed by farming in front of the land which she had already farmed and thus preventing her extending her farm. It is recognized custom that when a person has staked a claim to land and is farming in a particular direction that the land immediately to the fore is regarded as being reserved for the next extension of that farm.
It was quite clear upon the evidence and admitted by the respondent that there had been a former dispute regarding the respondent's farming in this area and that the Odikro had adjudged her to be in the wrong. The Court members after hearing the evidence of the respondent and her one witness (a labourer employed by her to clear the farm) and the appellant and her witness, viewed the land in dispute and found that there had been no trespass but that on the contrary the plaintiff had encroached upon the farming rights of the defendant.
The plaintiff then appealed to the Asantehene's Court who after hearing the submissions made by the parties, but without hearing their evidence again, decided to view the land. The Court was constituted by Nana Agyei Twum II, Yaw Dabanka and Kwasi Brentuo IV. Only two members of the Appeal Court viewed the land; Yaw Dabanka did not. If a court decides to view the land then all the members who constituted the court must go, if one fails to go, or if one goes in substitution for another then the court viewing the land is not properly constituted and the proceedings are a nullity, in precisely the same degree as if at one stage of the trial in court two only of the members were present to hear the evidence. Courts of Appeal should be slow to upset a court of first instance who have had the advantage of seeing and hearing the witnesses, and even though it might feel disposed to have given a different judgment had it been the court of first instance, it will not reverse a decision unless it is clearly wrong. The Appeal Court neither saw nor heard the witnesses, and the inspection of the land by two only of the sitting members was irregular and of no effect. A ground of appeal has however been argued before me which was not taken at the Native Appeal Court and for this reason it seems that the ground was then unknown to the plaintiff and it is that subsequent to the decision of the Ahafo Native Court the president Kwadwo Aworo married the defendant. The fact was frankly admitted by the defendant who tells me that it
