Henry A. Na-ansa V. Tettey Hudsu & Ors (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Cross-actions, consolidated, for general and special damages for Court. trespass to land and injunctions—no pleadings—material change by one party in his case—admissible evidence rejected —joinder of Defendants in second action was proper—special damages awarded in excess of those claimed were improper.

Held: Trial being generally unsatisfactory and judgment of trial Judge lacking clarity a re-trial ordered with pleadings.

The facts are sufficiently set out in the judgment of the trial Judge to be found below.

Frans Dove for Appellants.

J. H. Coussey for Respondents.

The following is the judgment of the trial Judge :— YATES, J.

These are cross actions for damages for trespass.

In the first action, the claim is for £500 damages for trespass. In 1934, Kudsu brought action against Nyawahe in native tribunal which was transferred to Divisional Court where he obtained judgment with costs, and attached Nyawahe’s land in execution, and on 29th December, 1934, the land, the particulars of which were given by Kudsu, was sold to Na-Ansa. Kudsu was present at the sale. Later, the Divisional Court gave a certificate of purchase to Na-Ansa, and it is alleged he was in possession nearly two years, when he found a surveyor, one Simpson, cutting a track diagonally across the land, erecting pillars and cutting down cocoa trees and destroying crops.

For the defence, Mr. Frans Dove says that the surveyor was sent on the land by Tettey Kudsu to demarcate the boundary between his land and Ansa’s land in consequence of the trespass which was being committed by Na-Ansa; and he denies the surveyor cut down cocoa trees.

In the second action Kudsu v. Na-Ansa, plaintiff claims £200 damages from Na-Ansa for trespassing upon his land and taking cocoa and foodstuffs, and pleads ownership and possession of the land in dispute.

It is as well here to set out the material parts of the certificate of purchase which was granted to Na-Ansa by the Divisional Court on 3rd July, 1935:

” All that piece or parcel of land situate lying and being ” at Swabia with buildings, cocoa trees and palm ” trees thereon and bounded on the North by Akohia ” land on the South by Kofi’s land on the East by ” Gano (Kumakuma) land and on the West by Tetter ” Kwadjo (Korkormah) land, which said messuages ” lands and tenements were sold in execution of a ” decree by Order of this Court dated 27th September, ” 1934 “.

These boundaries correspond with those set out in the writ of Fi Fa and in the notice of sale and it is somewhat extraordinary, but it is admitted by both sides that in each of these documents the points of the compass are wrong and the proper boundaries should be:–

” On the North by Gano or Kumakuma land on the South ” by Tetter Kwadjo Akorkorma land on the West by ” Akohia land and on the East by Kofi’s land “.

On May 5th, 1936, this Court ordered a plan showing the boundaries of the land set out in the certificate of purchase be made, and by agreement Mr. Young was appointed surveyor, and he prepared one which was put in evidence. Upon it. the land claimed by Na-Ansa, i.e., the land set out in the certificate of purchase, is shown edged in pink, and the land claimed by Tettey Kuds’i edged in green.

In the course of the trial, viz. : on 11th December, 1936, Mr. Dove asked that a second survey be made showing what land Tettey Kudsu alleges was sold to Na-Ansa that comes within the boundaries as set out in the certificate of purchase which is not shown on Young’s plan, and I thereupon ordered this to be done, and Mr. Laryea was appointed surveyor and he made a plan which was produced in evidence on 27th September, 1937. On referring to this plan it will be seen the land alleged to be described in the certificate of purchase and not shown on Young’s plan is a long narrow strip to the East, stretching from a point on the JaketiAkohia road near Kofi’s village on the North to an Okumnadue tree on the South. As a result of this survey—apart from the fact that it led to serious disturbance during which a man was killed—this additional land was claimed by seven other persons who had to be joined as defendants in the second action, and the particular areas they claim are shown on a further plan superimposed on Young’s plan and put in and marked Exhibit ” 17 “.