AZAGBA AND OTHERS vs. NEGOV AND OTHERS [1964]DLSC1872

Date	1964-06-30
Suit No.
Citation No.	[1964]DLSC1872

SARKODEE-ADOO C.J.

OLLENNU JSC

ACOLATSE J.S.C.

S. M. CODJOE FOR THE APPELLANTS.

E. D. KOM FOR THE RESPONDENTS.

[1964]DLSC1872
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													<main id="main" class="content" style="min-height: 60rem" >AZAGBA AND OTHERS <o:p></o:p>vs. <o:p></o:p>NEGOV AND OTHERS <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 450<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
30 JUNE 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

S. M. CODJOE FOR THE APPELLANTS.<o:p></o:p>

E. D. KOM FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SARKODEE-ADOO C.J., OLLENNU AND
ACOLATSE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ACOLATSE J.S.C.<o:p></o:p>His
lordship recited the facts and set out the issues which were based mainly on
conflicting traditional history and continued:] This is not a claim for
recovery of possession. It is a claim by the plaintiffs seeking the relief for
a declaration of title to the land at Mepe in dispute against the defendants.
The plaintiffs alleged that the land was founded by their ancestor Whulor about
500 years ago. The defendants say their ancestors were on the land before they,
the plaintiffs, arrived. We are thrown back from the nineteenth century to the
fifteenth century on verbal tradition transmitted from one generation to
generation. The possession of the area in dispute by the defendants is admitted
by the plaintiffs though they sought to neutralize the admission by claiming
that they, the plaintiffs, put the defendants’ ancestors on the land as
caretakers. In my view the presumption of title raised by the defendants’
possession increased by length of time and absence of interruption and conduct
of the person seeking the relief of title against the person in possession
without any acknowledgement of ownership of the other person. Where a case
depends entirely upon facts as in the present case, the principle to be applied
on appeal is stated in Phipson on Evidence (10th ed.), under the heading
“Weight of Evidence” at p. 835, paras. 201-12<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Questions
of the admissibility of evidence belong ... to the judge, those of its weight,
credibility and sufficiency, to the jury. An appellate tribunal is not always
entitled to review decisions of fact ... But in many cases, as in an appeal
from the High Court in a non-jury case, the appellate tribunal has jurisdiction
to review the finding of fact. In such case the judge’s finding, made after
hearing witnesses and observing their demeanour is entitled to great weight and
should not be disturbed unless it is clear that it is unsound.”<o:p></o:p>And in
Abudulai v. Manue1 it was stated as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“It is
fully appreciated that although the reversal of a finding of fact of a Judge
who sat without the assistance of a jury is within the competence of a Court of
Appeal the presumption is that the decision of the trial Judge on the facts was
right and that presumption must be displaced by the appellant.”<o:p></o:p><o:p>&nbsp;</o:p>The
learned judge in my opinion made a thorough and critical analysis of the
evidence in the light of the issues raised before him. It appears to me that
the decision the learned trial judge arrived at is correct and should not be
disturbed without very clear proof that it is wrong and I fail to find any
proof in the instant case that it is wrong. The evidence was conflicting but
the trial judge sifted it carefully and came to a definite conclusion as to
which of the two conflicting histories is the more probable. Adjeibi-Kojo v.
Bonsie.2 In my opinion even if the conflict was not clearly resolved by the
trial judge, the evidence is so unsatisfactory that I would apply the
well-established principle that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Where
the evidence is unsatisfactory the Judgment should be in defendant’s favour on
the ground that it is the plaintiff who seeks relief but has failed to prove
that he is entitled to what he claims.”<o:p></o:p><o:p>&nbsp;</o:p>See the
headnote in Frempong II v. Brempong II3<o:p></o:p>[His
lordship here referred to grounds 2 and 4 of the appeal which he found
contained no merit and continued:]<o:p></o:p>In my
opinion the appeal cannot succeed on any of the grounds of appeal, and I would
dismiss the appeal, with costs fixed at £G87 0s. 0d.<o:p></o:p>