November 21, 1951
HIGH COURT
GHANA
CORAM
AI Generated Summary
Benson, Ag. J. dismissed an appeal arising from a long-standing dispute over the Savuleh lands in Eastern Nzima State. The farming tenant sought £50 damages and an injunction, alleging the landowners cut palm trees and damaged land. The controversy depends partly on the Attuaboe Native Court’s 23 October 1923 judgment, affirmed by the Privy Council in 1930, and examined by the West African Court of Appeal in 1950. The judge found the appellant was not the owner but had limited rights to retain existing farms and bore the burden to prove the palm-tree cutting occurred within farms retained in 1923; no evidence showed the location or extent. Even assuming the location, under Fanti customary law (as explained in Sabah on Fanti Law), an owner may cut palm trees and gather nuts, so trespass does not lie. Emphasizing finality and res judicata, the court affirmed the lower court’s decision and dismissed the appeal with costs.
Judgment:
This is an appeal from the judgment of the Native Court " B " of Eastern Nzima State which gave judgment in favour of the defendants-respondents.
The claim is one of £50 damages for trespass by respondents to "Savuleh" lands in the possession of the appellants, by cutting down palm-trees and doing damage to the land, also for an Injunction.
The parties have litigated over the land intermittently since the year 1923 and this case depends to a certain extent on the interpretation of the judgment of the Native Court at Attuaboe delivered on 23rd October, 1923 and affirmed by the Privy Council in 1930 (1). The judgment of the Court of Attuaboe was considered by the West African Court of Appeal in their judgment of the 10th Feb. 1950, Civil Appeal No. 63/1948 (2); the Appeal Court found some difficulty in giving an exact meaning to the somewhat ambiguous judgment of the Court of Attuaboe, but made a definite finding.
The present Plaintiff-Appellant sued as possessor of Savuleh Lands; in his evidence he says he is the owner of the land which is his bona fide property; that is obviously wrong; it is clear that since 1923 the plaintiff-appellant was never considered the owner of the land, but merely had the right to retain farms on the land, of which the defendant is the owner, or one of the owners.
The plaintiff-appellant, in order to succeed in the court below, had to prove that the land alleged to have been trespassed on was part of the land over which he has the right to farm according to the judgment of the Native Court in 1923; he also had to prove the trespass and damages.
According to the judgment of 1923 the plaintiff-appellant was found entitled to retain the farms he then had; there was no evidence in the court below to prove that the place where defendant-respondent cut down palmtrees was on the farms which he possessed in 1923; there is no evidence as to the extent of the farms held in 1923 or their present extent; this was also found in the judgment of West African Court of Appeal of 10th February, 1950. It was for the plaintiff-appellant to prove that fact, and in my view he failed to do so. That alone would have been sufficient for the court below to give a finding in favour of the defendants-respondents, but I think there are other reasons also.
The plaintiff-appellant claims damages for trespass by cutting down palm-trees and causing considerable damage to his farm; in his evidence he states not only that the defendant-respondent