APORI STOOL AND ANOTHER vs. WORAKESI STOOL [1995]DLSC5207

Date	1995-07-18
Suit No.	[1994 - 95] 2 G B R 629 – 632 S C
Citation No.	[1995]DLSC5207

ADADE JSC

AMUA-SEKYI JSC

AIKINS JSC

WIREDU JSC

HAYFRON-BENJAMIN JSC

DR SETH TWUM FOR THE APPELLANT.

E D KOM FOR THE RESPONDENT.

[1995]DLSC5207
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													<main id="main" class="content" style="min-height: 60rem" >APORI STOOL AND ANOTHER<o:p></o:p>vs.<o:p></o:p>WORAKESI STOOL<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1994 - 95] 2 G B R 629 – 632 S C&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 18 JULY 1995<o:p></o:p>

E
D KOM 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 1.0pt 0in">

</div>AIKINS JSC. <o:p></o:p>This
is an appeal against the judgment of the Stool Lands Boundaries Appeal Tribunal
overturning the decision of the Stool Lands Boundaries Settlement Commissioner
in two consolidated actions by two different plaintiffs, Nartey Akwertey and
others of Apori Akim and Ohene Kwasi and others of Aduasa Akim against the same
defendant, Nana Fretwie Andam, chief of Worakese by the Stool Lands Boundaries Settlement
Commissioner. By the order of the Commissioner the stool of Apori was joined in
the first case No 1/80 entitled: Nartey Akwertey and others versus Nana Fretwie
Andam of Worakese, and the stool of Aduasa was joined in the second case No
2/80 entitled: Ohene Kwasi and others versus Nana Fretwie Andam of Worakese.
The two cases were referred to the Settlement Commissioner by the Ministry of
Lands and Natural Resources. A surveyor of the Survey Department attached to
the Commission, Mr Okai Lartey, was appointed to survey and draw up a plan of
the boundary in dispute with the relevant features thereon. The boundaries
relatives to the claims by the parties were delineated and edged in different
colours.<o:p></o:p>After
considering in very great detail the claim put up by each of the three
claimants coupled with the evidence led by their witnesses in support of their
respective claims the commissioner found the boundary of Apori stool proved and
rejected that of Worakese. As between Aduasa and Worakese stools, the
Commissioner found the boundary of Aduasa stool proved and rejected that of
Worakese as unproved.<o:p></o:p>Only
the Aduasa stool appealed to this court. Arguments centred on the four
additional grounds filed by the appellant and the first of the original grounds
- the weight of evidence. The four additional grounds are:<o:p></o:p>“(i)&nbsp;&nbsp;&nbsp;&nbsp; The learned appeal tribunal erred in law
when it granted the Worakese application to lead fresh evidence in the terms
sought.<o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned appeal tribunal erred in law
by proceeding to order a super-imposition of the plan without it being formally
tendered by the Worakese stool to give the Apori and Aduasa stools the
opportunity to cross-examine to show that it should not be admitted.<o:p></o:p>(iii)&nbsp;&nbsp;&nbsp;&nbsp; The learned appeal tribunal erred in law
and in fact by basing its judgment in a substantial respect on an alleged
certificate of validity of the Awurabo Concession when there was no proof of
the existence of such a certificate.<o:p></o:p>(iv)&nbsp;&nbsp;
The learned appeal tribunal erred in law by raising suo motu, the
defence of “exercise of overt acts over the land since 1929” for the Worakese
stool.”<o:p></o:p>Arguing
ground 1 of the additional grounds of appeal learned counsel for the appellant
stool criticised the admission of the plan, exhibit X by the appeal tribunal
contending that there was clear evidence that the plan was available at all
material times and that the omission to tender it at the trial was due to
“sheer inattentiveness” on the part of counsel, and that the application before
the appeal tribunal did not satisfy one of the cardinal principles of law “that
a party would only be given leave to adduce fresh or further evidence in the
appeal court if he could satisfy the court that the further evidence could not
be obtained after a careful and diligent search or that it came into existence
after the trial, and that it was material.”<o:p></o:p>These
principles of law were re-echoed in Dombo v Narh (1970) CC 147, CA and applied
in Azametsi v Republic [1974] 1 GLR 228 at p 237-238 where Azu Crabbe CJ,
delivering the judgment of the court, gave four principles upon which the court
exercised its discretion to allow fresh or further evidence to be called. These
are:<o:p></o:p>&nbsp;(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
the evidence must be evidence which was not available at the trial;<o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; it must be evidence relevant to the
issues;<o:p></o:p>(iii)&nbsp;&nbsp;&nbsp;&nbsp; it must be credible evidence, ie well
capable of belief; and<o:p></o:p>(iv)&nbsp;&nbsp;&nbsp;&nbsp; if the evidence were admitted, the court
would, after considering it, go on to consider whether there might have been a
reasonable doubt as to the guilt of the appellant if that evidence had been
given together with the other evidence at the trial.<o:p></o:p>True,
the fact that the plan exhibit X was at all material times available defeats
the first of the four principles enunciated above, but it must be noted that
under section 6 of the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172)
the Commissioner is empowered to enquire into the boundaries of other stool
lands as may be necessary for the determination of the dispute or question
before him. In this respect he is not fettered by undue obedience to
technicalities or the adoption of principles or rules of law evolved for the
purposes of solving ordinary land and civil suits because the trial of disputes
involving stool lands boundaries is essentially a fact-finding enquiry.<o:p></o:p>Be
that as it may, there is nothing on record to show that the plan was formally
tendered in evidence by the Worakese stool to enable the Aduasa stool to
cross-exa</main>