EDUFUL AND ANOTHER vs. PANTSIL [1966]DLSC1684

Date	1966-01-17
Suit No.
Citation No.	[1966]DLSC1684

OLLENNU JSC

APALOO JSC

LASSEY J.S.C.

C. F. HAYFRON-BENJAMIN FOR THE APPELLANTS.

T. D. BRODIE-MENDS FOR THE RESPONDENT.

[1966]DLSC1684
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													<main id="main" class="content" style="min-height: 60rem" >EDUFUL AND ANOTHER <o:p></o:p>vs.<o:p></o:p>&nbsp;PANTSIL <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1966] GLR 27<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:
17 JANUARY, 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">

C. F. HAYFRON-BENJAMIN FOR THE APPELLANTS.<o:p></o:p>

T. D. BRODIE-MENDS 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">

OLLENNU, APALOO AND LASSEY JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>This is
an appeal from the judgment of the High Court which set aside a decision of the
Gomoa Assin Local Court in a land matter. The appellants claimed that a piece
of land which was said to be situate at a place called Gomoa Hwida and commonly
referred to as Osibum belonged to their ancestors. They complained that the
respondent trespassed onto that land and removed therefrom ancestral stones
called “Apimii.” Accordingly, they sought against him in the local court,
damages for trespass and a perpetual injunction. The appellants gave the
boundaries of the land.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent denied that the land belonged to the appellants’ ancestors and for
his part, claimed that it was land part of which his ancestors settled upon for
about 200 years. He said he, and his forbears before him, had lived on the land
undisturbed for many years. With regard to the ancestral stones which sparked
off the present litigation, the respondent claimed them as his own. He admitted
removing them but said their removal became necessary as their ancient
repository was affected by a proposed road and it became necessary to remove
them to a place of safety.<o:p></o:p><o:p>&nbsp;</o:p>Accordingly,
notwithstanding the form of the plaint, the issue which the local court was
called upon to determine was: Which of the two families own the land in dispute
and hence the ancestral stones in question? Both sides gave evidence in support
of their claims and called witnesses. The appellants were in no position to
dispute the long undisturbed possession of the respondent on the disputed land.
They sought to explain it away by evidence that their ancestors permitted the
respondent’s ancestors to occupy a portion of their land. The appellants
claimed that even a year before the action, the respondent sought and obtained
the permission of their caretaker before farming on a portion of the land. All
these averments were denied by the respondent.<o:p></o:p><o:p>&nbsp;</o:p>On the
conclusion of evidence, the local court magistrate conducted an inspection of
the locus and thereafter made written notes of his observations. Most of this
is unhelpful and nothing emerged from the inspection decisive of this case.
Shortly after the inspection, the magistrate delivered his judgment. A
substantial portion of it is a reproduction of the appellants’ evidence. The
local court magistrate made no attempt to assess the value of the oral evidence
and clearly did not express acceptance of the appellants’ claim that the
respondent’s family came on the land by their leave and licence. He made no
more than a most cursory reference to the respondent’s case. He however felt
able to conclude the case in favour of the appellants, on the ground, in so far
as it is possible to determine this from his judgment, that he accepted the
evidence of the appellants’ second witness, a man by the name of Kwa Okwasie.
Holding therefore that the land belonged to the appellants’ ancestors, the
magistrate held that the trespass was proved and proceeded to award damages
against the respondent.<o:p></o:p><o:p>&nbsp;</o:p>This
judgment was appealed against to the High Court which reversed it. The learned
judge was of opinion that the judgment of the local court did not resolve the
facts in issue and was based principally on the court’s view of the locus and
the evidence of Okwasie who gave no evidence of the boundaries. The judge also
thought the magistrate gave inadequate consideration to the respondent’s case
and was in any event influenced by extraneous matters. The reason for this
appears to be that the magistrate gave great prominence in his judgment to an
incident between the parties in which the respondent was said to have
threatened the first appellant with a gun and had, before the action, been
convicted before the district court of threatening.<o:p></o:p><o:p>&nbsp;</o:p>The
appellants claiming to be aggrieved by the allowance of the appeal by the High
Court, appealed to this court on the ground that the learned </main>