ANANE AND OTHERS vs. KRAH [1966]DLHC1649

Date	1966-12-09
Suit No.
Citation No.	[1966]DLHC1649

FRANCOIS J.

PREMPEH FOR JOE PREMPEH FOR THE APPELLANT.

OWUSU AFRIYIE FOR THE RESPONDENT.

[1966]DLHC1649
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													<main id="main" class="content" style="min-height: 60rem" >ANANE AND OTHERS<o:p></o:p>&nbsp;vs. <o:p></o:p>KRAH <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1966] GLR 782<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:
9 DECEMBER 1966.<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">

PREMPEH FOR JOE PREMPEH FOR THE APPELLANT.<o:p></o:p>

OWUSU AFRIYIE 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;
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FRANCOIS J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.<o:p></o:p>This
appeal is solely to determine whether the viewing of the land in dispute was so
incompetently done as to vitiate the entire proceedings. Learned counsel for
the appellant conceded from the start that on the facts, there was everything
against him but he urged that since the procedural requirements laid down in
Gblevi Family v. Amanie,1 upon a local court’s viewing of the locus in quo, had
not been observed the appeal should be allowed and a trial de novo ordered so
that a proper inquiry at the locus in quo could be made. I do not think this
will serve a useful end for the following reasons.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff gave a detailed account of the history relating to the acquisition of
the land, its cultivation when a virgin forest, the parties to whom some parts
were apportioned and other evidence about her occupation thereof. The plaintiff
further called witnesses who formed boundary with her and the cumulative effect
of their evidence was an impressive proof of the plaintiff’s title. On the
other hand the defendant admitted he was shown his boundary when the
plaintiff’s predecessor, a neighbour, was not present. The defendant’s first
witness could only state he was permitted by both the plaintiff and the
defendant to tap palm wine. The defendant’s second witness merely accompanied
the parties to the land to check on the boundaries, but as the parties could
not meet, the boundaries were not investigated. The defendant’s third witness
claimed to have a boundary with the plaintiff but stated as follows, “I do not
know the boundary of the first defendant’s land and the plaintiff.” In those
circumstances a view of the locus in quo was superfluous.<o:p></o:p>The
magistrate has painstakingly considered the evidence and I agree with the
conclusion he arrived at as to the plaintiff’s title and I am not disposed to
vary it. Though it may be preferable to have witnesses on a locus re-sworn to
narrate their evidence in court upon re-assembling, I hold that it’s
non-observance is not always fatal.<o:p></o:p>In the
case of Keteku v. Dzogbenuku2 Lingley J. laid down the principle as follows:
“If the viewer is a member of the court it is sufficient if he makes a report
that can be attached to the proceedings in writing. It is unnecessary for the
report to be given on oath.”<o:p></o:p><o:p>&nbsp;</o:p>The
principle was quoted with approval in the case of Kwami and Kofi v. Adzonu.3 It
should be noted that it was in that case that van Lare J.A. first enunciated
the principle adopting the criminal practice contained in R. v. Dogbe4 that
witnesses at a locus in quo should be sworn on their return to court to give
evidence on oath of what they had seen. Although the practice as enunciated in
the case was strongly recommended for adoption by local courts a failure to do
so is not necessarily fatal. The Gblevi case expounded the practice in detail,
but in a review of the authorities on visits to the locus in quo by the Court
of Appeal in Chief Deabedy III v. Hayford5 the Court of Appeal stated, “While
this court does not approve of any laxity in relation to these matters we
nonetheless do not regard what happened in the Native Municipal Court, Sekondi,
as in any way invalidating the proceedings.”<o:p></o:p><o:p>&nbsp;</o:p>In the
circumstances I have no hesitation in confirming the judgment of the Local
Court, Nsutah, and in dismissing this appeal with costs of ¢60.00 to the
respondent.<o:p></o:p>

<o:p>&nbsp;</o:p></main>