APAU II v. DWUMAA III

JUDGMENT OF KORSAH C.J.

(His lordship stated the facts, and proceeded)-:

It is obvious that the defendant’s case in answer to the plaintiff’s claims in both cases is based almost exclusively on the issues of law raised in his defence, none of which can be said to be likely to deprive the plaintiff of the benefits derived from the validated judgment of 7th February, 1913 by virtue of section 3 of the Boundary, Land, Tribute and Fishery Disputes (Executive Decisions Validation) Ordinance.

(His lordship read the section as in the headnote, and proceeded:)

With regard to the first of the two suits, viz. No. 2/1952, wherein the claim is for an order for the defendant to carry out the order made on 7th February, 1913, to erect pillars at the defendant’s charge, the learned Judge held that the claim is misconceived. The sentence in the validated judgment reads as follows: “Concrete boundary pillars to be erected at the following points at the charge of Inyinahin.” I agree with the views expressed by the learned Judge, that the sentence merely directed boundary pillars to be erected, the cost of which was to be charged to the defendant; that there being nothing in the order to show who should erect the pillars, if the defendant refused to erect the pillars the plaintiff could have erected them, and demanded the cost from defendant; and that it might also have been contemplated at the time that an administrative officer in the area would see to it that defendant carried out the directions of the Court. The Judge finally held that he could not agree that the defendant could be held liable by virtue of the validated decision, and thereby compelled to erect the pillars. This, in my view, is a reasonable interpretation of the sentence contained in the said decision.

The learned Judge held, therefore, that suit No. 2/1952 was misconceived and therefore failed. This, in my view, is a correct conclusion which should not be disturbed. But the learned Judge did not apparently consider the question of costs with respect to this suit No. 2/1952. In view of the fact that there were two separate claims, which were consolidated for purposes of trial, the question of costs should have been considered separately in each of them [p.145] and unless there was good reason to the contrary the successful party in either of them could not be deprived of his costs. No reasons have been stated, and I can find none, why in suit No. 2/1952 the defendant, who is the successful party, s