KANKAM vs. BUACHI III [1964]DLSC1915

Date	1964-02-29
Suit No.
Citation No.	[1964]DLSC1915

ADUMUA-BOSSMAN JSC

OLLENNU JSC

BLAY J.S.C.

VICTOR OWUSU FOR THE APPELLANT.

N. Y. B. ADADE FOR THE RESPONDENT.

[1964]DLSC1915
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													<main id="main" class="content" style="min-height: 60rem" >KANKAM <o:p></o:p>vs. <o:p></o:p>BUACHI III <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 138<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:
29 FEBRUARY 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">

VICTOR OWUSU FOR THE APPELLANT.<o:p></o:p>

N. Y. B. ADADE FOR THE RESPONDENT.<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">

ADUMUA-BOSSMAN, OLLENNU AND BLAY
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADUMUA-BOSSMAN J.S.C.<o:p></o:p>This
appeal is against a judgment dated 13 April 1962 of the High Court, Kumasi,
(Djabanor J.) by which, upon the plaintiff’s claim “for the court to cause the
correct boundary between the plaintiff and the defendant to be fixed in terms
of an executive decision dated 19 April 1909 whereby the boundary between the
plaintiff and the defendant was fixed by Captain Armitage and approved by Sir
Francis Fuller, then Chief Commissioner of Ashanti, on 13 May 1909,” the judge
gave a particular interpretation to the said executive decision and proceeded
to fix the boundary between the parties according to that interpretation. He
expressly declared that he was acting under section 3 (3) of the Boundary,
Land, Tribute, and Fishery Disputes (Executive Decisions Validation) Ordinance
of Ashanti,1 which he set out 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">“If in
any case relating to the boundary of any land any doubt or question shall arise
as to the correct interpretation or application of any such executive decision
as aforesaid, the Court (which expression does not include a Native Court) may
cause the boundary concerned to be fixed to the best of its ability, guided
always by the principle of applying such decision as closely and with as much
precision as the Court shall consider practicable. Where a boundary is, either
as of first instance or on appeal, so fixed by the Supreme Court, no appeal
shall lie from the Court’s judgment with respect to such fixing.”<o:p></o:p><o:p>&nbsp;</o:p>By reason
of the said provisions excluding or prohibiting an appeal from “the Court’s
judgment with respect to such fixing,” it seems to me that in the matter before
this court, the court is, strictly speaking, restricted to ascertaining whether
or not the circumstances were such as to entitle or justify the learned trial
judge to proceed to adjudicate on the only issue capable of being tried under
section 3 (3) of Cap. 144 above set out; for if the circumstances were such as
to give rise to the special jurisdiction under the aforesaid subsection and
entitle the learned trial judge to proceed to an adjudication, then, no matter
how palpably wrong he may be in his interpretation of the material executive
decision, his conclusions on relevant subsidiary issues of fact or law, and his
ultimate main judgment fixing a boundary, the said judgment would be immune
from impugnment because no appeal lies. If, however, the circumstances of the
case make it to fall outside the four corners of an appropriate and proper case
under the aforesaid subsection, but nevertheless the learned trial judge
proceeded to deal with it under the said subsection, then, of course, it would
be the question of his right to adjudicate on the case at all, not his decision
with respect to the fixing of a boundary, which would be really the main, and
possibly, the only, point in the appeal which therefore would lie and be
properly before this court.<o:p></o:p><o:p>&nbsp;</o:p>So in
Konadu v. Akwasi2 the plaintiff claimed that an executive decision demarcated a
boundary line between two points and claimed an order for the fixing of the
boundary, and his claim was upheld. The defendant who resisted the claim on the
ground that the executive decision in question did not fix a boundary as
claimed, appealed against the judgment against him. At the hearing of the
appeal the provisions prohibiting appeal were invoked by way of preliminary
objection. The objection was resisted on the ground, which was the substantial
defence to the plaintiff’s claim, namely, that the executive decision did not
fix a boundary and had not to be interpreted to determine the course of a boundary
between two points as claimed by the plaintiff. The appeal court upon
examination of the instrument was satisfied that it did not fix a boundary and
that the defendant’s contention was right, and over-ruled the preliminary
objection as the case was not one that came under the aforesaid subsection, but
was a case of ownership of land outside the scope of the aforesaid subsection.<o:p></o:p><o:p>&nbsp;</o:p>Now when,
then, may a case concerning a boundary, and the decision of which is dependent
on the interpretation or application of a validated executive decision, be said
properly to fall within the four corners of an appropriate and fit case under
section 3 (3) of Cap. 144? In the state of the decisions in the relatively few
cases decided by the now defunct West African Court of Appeal as to the meaning
and scope of the provisions of that section 3 (3), the answer to the question
posed cannot be said to be “dead easy.” However, a fairly acceptable answer
is—a case may be said to be properly within the contemplation of section 3 (3)
of Cap. 144 when there is really outstanding for the determination a real issue
of, or as to, conflict of views concerning the proper interpretation or</main>