CHIEF KWEKU ASSAMPONG
1932
WEST AFRICAN COURT OF APPEAL
GHANA
Areas of Law
- Alternative dispute resolution
- Evidence Law
- Civil Procedure
1932
WEST AFRICAN COURT OF APPEAL
GHANA
AI Generated Summary
This case involves a claim by a plaintiff for damages for trespass on land and a burial grove at Framase. The defendants countered with claims of long possession and res judicata based on a 1894 decision. The Divisional Court ruled in favor of the plaintiff, but upon appeal, the West African Court of Appeal overturned the decision based on the principles of res judicata. The higher court found that the 1894 judgment by a competent customary tribunal did indeed settle the boundary dispute and thus barred the plaintiff from re-litigating the matter. The appeal was allowed, and judgment entered for the defendants with costs awarded.
The following judgments were delivered ;KINGDON, C.J. NIGERIA.
This is an appeal from the judgment of Gardiner Smith, J. delivered in the Divisional Court at Cape Coast on the 26th August, 1931. The case was started in February, 1927, in the Native Tribunal of the Omanhin of Assin Attandase at Fanti Nyankumasie by the plaintiff claiming against the first three defendants "£25 damages for trespass and cultivate on plaintiff's land and burial grove at Framase within the division of Assin Attandase."
Upon defendants claiming that the land in dispute lay within the State of Assin Apimanyin the case was transferred to the Divisional Court, and thereafter the fourth defendant, who claimed that the land was within his sub-division and that the other defendants were his tenants, was joined as a defendant. Prior to the hearing of the action a survey was ordered and a plan was filed. There were no formal pleadings but in accordance with the provisions of Order 35 rule' 13 of the Supreme Court Rules the defendants stated their respective defences to the action immediately after the plaintiff had opened his case at the hearing. The first three defendants pleaded (1) non-liability for trespass, and (2) long undisturbed possession at least as against the plaintiff. The fourth defendant pleaded "ownership and all the incidents of ownership." He also alleged ;-
"In respect of this same land, about 35 years ago, ancestors of plaintiff--Gaitua and Efilfa's ancestors--got a dispute. The Oaths of Nkyi and Tsibu were sworn by C-hief Efilfa's ancestor who was called Efilfa I that the land was his. Omanhin Nkyi and Omanhin Tsibu deputed their Chiefs and linguists to meet at Damang. They sat over the case and judgment was given in favour of Efilfa I."
The Court, rightly I think, treated this as a plea of res judicata and dealt with it accordingly.
After an exhaustive hearing and an inspection of the land lasting two days the Judge gave judgment in these terms:-
"There will be judgment against all the defendants jointly and severally in the sum of £25 with costs to be taxed, and I have marked and initialled the boundary as I have found it, and recommend that it be surveyed."
Although on the wording of the claim the alleged trespass occurred at Framase, it early appeared in the course of the case that the acts of trespass (if any) were committed at Brisiase, where the alleged burial grove is situate, and not at Framase. Indeed in the whole case there was really no dispute i