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December 4, 1939
WEST AFRICAN COURT OF APPEAL
GHANA
CORAM
The following judgments were delivered:
STROTHER-STEWART, AG. C.]., GOLD COAST.
This is an appeal against a judgment of the Acting Deputy Provincial Commissioner of the Eastern Province setting aside a judgment of the Native Tribunal of Osudoku Manche awarding damages in favour of K. C. Dinsey and others against the defendants Yaw Ossei and Korleu and their co-defendant Tei Wayoe, who are the appellants, for trespass. It relates to a creek called Lubu. It is a creek from the River Volta.
It is admitted that the respondents are the owners of the creek.
The whole case revolves upon the question as to what is included in the word" creek," and what land is covered by such word. A creek whether it be that formed by the sea, or by a river, varies in size from time to time by the water covered by it. It is a question of ebb and flow, and must have a common sense definition applied to it. It cannot be confined to the amount of land covered by it at its lowest ebb, any more than it can be intended to the amount of land covered by abnormal flooding.
It must be the usual amount of land covered between its lowest ebb, and its highest flow, under normal conditions.
The grounds of appeal relating to documents considered by the Acting Deputy Provincial Commissioner of the Eastern Province, who heard the appeal from the Native Tribunal, do not, in the opinion of this Court, affect the decision we have to arrive at. They simply dealt with the question, already raised, that it was the creek Lubu, which ,vas originally granted to the predecessor of appellants with no mention of land, and whether they were properly, or improperly, considered by the Acting Deputy Provincial Commissioner, does not affect the merits of the appeal. The Acting Deputy Provincial Commissioner of the Eastern Province based his decision upon the fact that no land was mentioned in connection with the creek in any of the documents relating to it. He does not attempt to define what is included in the ""ord creek. The question was gone into in a very practical manner by the Tribunal. They appointed delegates to view the land on which the trespass was alleged to have taken place. All parties were present, and the delegates found that the village complained about was built-to use the naive language of the report-" too close" to appe11ants' creek, and that "at any time the creek overflows it covers the village altogether." The judgment of the Tribunal set out that appellants were claiming the surroun
AI Generated Summary
The Supreme Court of the Gold Coast, per Acting Chief Justice Strother‑Stewart, allowed an appeal in a land dispute concerning Lubu creek, a branch of the River Volta. K. C. Dinsey and others had obtained damages before the Native Tribunal of Osudoku Manche against Yaw Ossei, Korleu, and co‑defendant Tei Wayoe for constructing a village on land within the creek’s ordinary overflow. The Acting Deputy Provincial Commissioner of the Eastern Province set aside that judgment on the basis that the grant referred only to a “creek” and did not mention land. Emphasizing the ebb‑and‑flow nature of creeks and the Tribunal’s practical site inspection and findings, the Court adopted a common‑sense definition: “creek” includes the land usually covered between normal lowest ebb and highest flow. The Court refused to disturb the Tribunal’s treatment of the suit as one for title and upheld damages for unlawful use and occupation. The appeal was allowed with costs.