MANCHE KOJO ABABIO IV v. QUARTEY AND ANOTHER

[Delivered by The Lord Chancellor.]

Their Lordships greatly regret that in this case they are compelled to send the parties away empty-handed, without a decision on the real merits of the controversy; but the form of the judgment which is the subject of appeal, and the position in which this action stands, prevent their Lordships being able to deal confidently with the actual substance of the dispute. Inthese circumstances it would be unfair to the parties that this matter should be finally determined before their Lordships have received the advantage of a full statement of the findings of facts upon which, in part at all events, the judgment of the Court of Appeal must depend, and also of a statement of the local customs, the local laws, and the principles by which their judgment must have been guided. In all cases these matters are very material for the consideration and determination of an appeal, but in a case of this kind they are of essential importance.

The action is one which, in form, is nothing but an action for trespass. It is brought by the appellant, who styles himself the Manche of James Town, Accra, on behalf of himself and the people of James Town, Accra, against certain defendants, claiming damages for trespass. The land in respect of which the trespass is said to have been committed is certain land near Oblogo, and a ferry that runs across the river at that spot. The original defence to the action does not in actual terms deny the title of the plaintiff, but sets up a rival title on the part of the defendants themselves; this, however, was amended, and by the amendment a further defence was raised, stating that the plaintiff was not in possession of the land. This only raised the question of the plaintiff's title inferentially. If a wrong-doer is in actual possession, the real form of action at common law should be one of ejectment, though the difference between such an action and one of trespass is now of no practical importance if the facts are properly alleged; if, however, no one is in actual possession, the person who can prove his title is deemed to be in possession sufficiently to maintain an action of trespass, while again, as against a person having no title, actual possession alone unsupported by evidence of title is sufficient. This informality in the form of the pleadings, however, need not have embarrassed the Court which tried the case in determining the question which appears to have been the real question in controver