TSRIFO
vs.
DUA VIII
[HIGH COURT (LANDS DIVISION), ACCRA]
[1959] GLR 63
DATE: 18TH FEBRUARY 1959.
COUNSEL:
APPELLANT IN PERSON.
DA ROCHA FOR RESPONDENT.
CORAM:
OLLENNU J.
JUDGMENT OF OLLENNU J.
(His lordship stated the history of the case, and proceeded;—) In their judgment the
native trial-Court made the following findings of fact:
“The witnesses in this case supported plaintiff in their evidence in respect of the case
heard and determined in respect of the land in dispute . Except defence witness Kwami,
all of them mentioned the “Have” stream as the recognised boundary mark between both
parties land which came in conjunction with the arbitration.”
In other words, the native trial-Court found the plaintiff’s claim (that the Have stream is
the boundary between his land and that of the defendant) confirmed by all his
witnesses, and by all but one of the witnesses for the defendant.
Where the evidence of one party on an issue in a suit is corroborated by witnesses of his
opponent, whilst that of his opponent on the same issue stands uncorroborated even by
his own witnesses, a Court ought not to accept the uncorroborated version in preference
to the corroborated one, unless for some good reason (which must appear on the face of
the judgment) the Court finds the corroborated version incredible or impossible. In this
case there is nothing in the judgment which justified the native trial-Court’s rejection of
the plaintiff’s evidence, which on the record was corroborated both by his own
witnesses and those of the defendant.
Before delivering their judgment, the native trial-Court inspected the land in dispute
and upon their return recorded their report of the inspection. On appeal, the Kpandu
District Appeal Court also inspected the land, saw most of the things which the native
trial-Court had seen, and they too recorded a report of what they had seen. They then
drew their own inferences from the things they had seen, and upon those inferences
(coupled with other facts in the case) they delivered their judgment, reversing the
decision of the native-trial-Court.
Counsel for the Appellant referred the Court to a judgment of the Court of Appeal,
delivered on the 29th October, 1958, confirming a judgment delivered by me on the 28 th
of May, 1957. In that judgment I held:
“that as the case rested mainly upon what the trial-Court saw at the inspection of the
boundary, and there being nothing to indicate that the Native Appeal Court were shown
something different from what the trial-Court saw, it was not open to the Native Appeal
Court to interfere with the findings of fact made by the native trial-Court simply because,
if they had heard the case at first instance, they would have formed an opinion upon the
evidence (including what they saw at the inspection of the locus in quo) different from
what the trial-Court formed.”
Counsel submitted that what I condemned in the Native Appeal Court in that case is
precisely what the Kpandu Native Appeal Court has done in the present case.
The case cited, however, is distinguishable from the instant case, because nothing in the
judgment of the trial-Court in the instant case turned upon the inspection of the land in
dispute. The contention of learned Counsel that the judgment of the native trial-Court
was based mainly on what they saw at the inspection is not borne out by the
proceedings. The operative part of the trial-Court’s judgment reads as follows:-
“The evidence received in this case are weighed and scrutinized by this Court. It is noted
by this Court that for purposes of discarding such disputes in respect of lands belonging
to divisions the Germans in the year 1905, during their reign over this district
surveyed the whole area and drawn up its sketch map in which the divisional boundaries
were stated or marked with reference to the divisional boundaries between Plaintiff and
Defendants lands in the map and it was seen that the boundary ended in stream
Forlorforlor mentioned by Defendant in evidence on record which was also visible in the
field. The Court found out that it was rather the Plaintiff who caused trespass into
Defendant’s land.”
Thus the decision of the trial-Court was based upon evidence of what the Germans did
in 1905 to settle a boundary dispute between the plaintiff and the defendant, as
indicated on a plan dated 1st June, 1905 which was alleged to have been made in
consequence of a survey of the boundary. The only reference which the trial-Court
made (in their judgment) to the inspection was that what appears on the plan, viz., the
Forlorforlor stream, was also visible in the field.
There was, in fact, no evidence that any dispute between the plaintiff and the defendant
was settled by the Germans in 1905, nor was there any evidence that a survey was made
in 1905 of the boundary between the lands of the plaintiff and those of the defendant,
and a plan made of such survey. Again, nowhere on the plan (Exhibit “C”) dated 1st
June, 1905, is any boundary shown between the lands of the parties. The trial-Court
itself had this observation to make about the plan:
“The exhibit is carefully studied by the Court and the Divisional Boundaries of Sovie,
Gbefi, Tafi and Kpandu were seen.”
Whilst the trial-Court made no use of the facts which it observed at the inspection of the
land, namely, homia trees of varying ages (“some old and some young”) and planted in
a certain manner, the Native Appeal Court drew from those facts the inference that the
trees had been planted to mark boundaries between individual holders, not divisional
tribal boundaries. In deciding facts based upon the credibility of witnesses, a trial-Court
(which sees and hears the witnesses) is in a unique position, but in respect of inferences
to be drawn from accepted facts a trial-Court has no special advantage over an Appeal
Court, and, consequently, enjoys no special privilege in that field. An appellate Court is
quite as competent to draw inferences as a trial-Court is.
The judgment of the trial-Court, then, was based upon no evidence at all. Indeed, it
contradicted the only cogent evidence on the record, namely, the evidence of the
plaintiff, which the trial-Court itself found was supported even by witnesses for the
defence. The findings of fact made by the trial-Court can only be described as perverse.
It was the duty of the Native Appeal Court to reverse them. The grounds for the
decision of the Appeal Court were sound, and its judgment should not be disturbed.
