[1957] 1 W.L.E.

1223

be retrospective if the Act provided t h a t anything done before 1957

the Act came into force or before the order was made should A
be void or voidable, or if a penalty were inflicted for having SOLICITOR'S
CLEBK,
acted in this or any other capacity before the Act came into force In re.
or before the order was made. This Act simply enables a dis-
Lord Goddard
qualification to be imposed for the future which in no way affects C.J.,
anything done by the appellant in the past. Accordingly, in
our opinion, the committee had jurisdiction to make the order
complained of and the appeal fails.

BARRY J . I agree, and have nothing t o add.

HAVERS J. I agree.
Appeal dismissed.

Solicitors: Linsley-Thomas & Joslin; Hempsons.

E . M. W .

[PRIVY COUNCIL.]

*TWIMAHENE ADJEIBI KOJO II . APPELLANT; J. C.f

AND
1957
O P A N I N K W A D W O B O N S I E AND ANOTHER RESPONDENTS. Dec. 2.

ON APPEAL FROM THE WEST AFRICAN COURT OF APPEAL.

West Africa — Land — Evidence — Conflicting traditional evidence —

Demeanour of witnesses little guide to truth—Traditional history
to be tested by recent facts established by evidence—Duty of appellate
court.
Court of Appeal—Fact, question of.
In a suit concerning title to certain land in the Kumasi district
of Ashanti traditional evidence was given by each side in support
of its claim that the land in dispute had been awarded to his
ancestor as a reward for the part played by him in a war. The
Supreme Court of the Gold Coast (Land Court), affirmed by the
West African Court of Appeal, reversed the decision of the
Asantehene's A Court and upheld the decision of the lower Asante-
hene's B Court in favour of the defendant on the ground, inter
alia, that it was a decision of fact depending on the demeanour
> of the witnesses and almost inviolable on that account: —
Held, that that was not a correct approach. Where there is a
conflict of traditional history, which has been handed down by word
of mouth, one side or the other must be mistaken, yet both may
be honest in their belief. In such a case the demeanour of wit-
nesses is little guide to the truth. The best way is to test the
traditional history by reference to the facts in recent years as
established by evidence, and by seeing which of the two competing
histories is the more probable.

+ Present: LORD REID, LORD DENNING, THE R T . HON. L. M. D. DE

SILVA.
1224 THE WEEKLY LAW KEPOBTS DEO. 20, 1957

J. C. When, as here, the native courts differ, the Supreme Court

must review the evidence and draw its own inferences ; it should
1957
not start with the presumption that the lower native court (the
ADJBIBI B Court) is correct because it saw and heard the witnesses, but
KOJO I I should rather give weight to the views of the native appeal court
V. (the A Court). In the end, however, it must reach its own
BONSIB.
conclusion on inferences of fact.
Judgment of the West African Court of Appeal affirmed in the
result.

APPEAL (NO. 4 of 1954) from a judgment of the West African

Court of Appeal (January 9, 1953) affirming a judgment of the
Supreme Court of the Gold Coast (Land Court), Ashanti (Novem-
ber 15, 1951), which had reversed a majority judgment of the
Asantehene's A Court (December 9, 1950), reversing a judgment
of the Asantehene's B Court (August 4, 1950), which had dis-
missed the present appellant's claim for a declaration of title to
certain stool land.
The following facts are taken from the judgment of the
Judicial Committee: This appeal concerned the title to a piece of
land at Bonkwaso in the Kumasi district of Ashanti. It appeared
to be a tract of forest land a few square miles in area. The
present caretaker was one Kwadwo Bonsie, but he did not live on
the land. He lived about 10 miles away at Nerebehi, but he had
a cottage at Bonkwaso and visited it from time to time. He
took all the profits from the land and handed them to his superior,
the Odikro (Chief) of Nerebehi. Those profits consisted of tribute
in the shape of rubber, gold dust, snails, big game and cocoa.
The Odikro of Nerebehi in turn paid over a share of that tribute
to his overlord, the Bantamahene (Head Chief of Bantama) whom
he served. Such was the, present position and, indeed, for some
time past Bonsie and his ancestors had been caretakers who had
paid tribute to the Odikro of Nerebehi who in turn had paid a
proportion to the Bantamahene. •
Despite that long enjoyment by the present occupants, the
Atwimahene (Head Chief of Atwima) now laid claim to the land.
He lived many miles away at Kumasi: but he said that that piece
of land at Bonkwaso was given to his ancestor as a reward for his
services in the war against Abrimoro some 200 years ago. The
Atwimahene gave evidence by way of traditional history about the
war, identifying himself with his ancestors, and speaking as though
he himself was present in person. He told how the Bantamahene
appointed him with other chiefs to chase Abrimoro and he got as"
far as Bonkwaso when he was stricken with smallpox and got no
further. He was given that land at Bonkwaso as a reward for
his services in that campaign. Three other chiefs, the Hiahene,
the Akwaboahene, and the Besiasihene, supported his evidence,
describing the campaign as if they themselves were there and it
only happened yesterday. The Atwimahene said that, after the
war, he gave a portion of the land away, but that he kept the rest
(the part he claimed in this action) and his hunters brought him
venison, snails and fish from it. About 80 years ago, however,
 [1957] 1 W.L.E. 1225

he became in need of money and borrowed £6 in gold dust from J. C.

one Kwabena Tenteng of Nerebehi—who was not his subject but 1957
was staying on the land—and he said that he pledged this piece of ~
land with Kwabena Tenteng to secure repayment, giving to KOJO II
Kwabena Tenteng the right to enjoy the profits of the land until BONSIE.
the loan was repaid. When Kwabena Tenteng died, however,
nothing was said to his relatives about the pledge. The successors
of Kwabena Tenteng had continued to be caretakers on this land
until in due course it came to the hands of the present caretaker
Kwadwo Bonsie. In 1948 the Atwimahene sent bearers with £6 in
money to be paid to Kwadwo Bonsie in redemption of the pledge:
but Bonsie denied there was any such pledge. Thereupon the
Atwimahene brought this action against Bonsie claiming a
declaration of title to the land and an injunction. The Odikro of
Nerebehi applied to become a party because he claimed to have an
interest in the land and he was made a defendant.
The defendants said that the land never belonged to the
plaintiff but was given to the Odikro of Nerebehi at the end of the
Abrimoro war. The Odikro of Nerebehi gave evidence, by way of
traditional history, saying that he did not go with the first
contingent (Hiahene, Akwaboahene and the other warrior chiefs)
to chase Abrimoro, but that he was sent later to search for the
first contingent. He met them on the Supong stream as they
were returning victorious. Afterwards he was given the land up
to the Supong stream, which included the land at Bonkwaso now
in dispute. The Bantamahene (the head clan chief of both the
contestants) supported the traditional history of the Odikro of
Nerebehi. He said that at the end of the war " I called Nerebehi
" Dikro and told him to take and possess the land up to the
" Supong stream where he reached . . . and to bring me any
" valuables on the land to be given a share thereof." Kwadjo
Bonsie said that he and his ancestors had been caretakers of the
land from time immemorial for the Odikro of Nerebehi.
The case was tried at first instance in the Asantehene's B
Court, consisting of three chiefs. They heard evidence on several
days from February 27, 1950, to July 28, 1950, and eventually on
August 4, 1950, found in favour of the defendants in a unanimous
judgment delivered by the President, Nana Mensah Yiadom,
Amakomhene. The plaintiff appealed to the Native Appeal Court
(the Asantehene's A Court), consisting of three head chiefs, who
heard the case on several days and examined the parties in
person. In the result, on December 9, 1950, the appeal was
allowed by a majority of two to one, the Ankobiahene and the
Akyempimhene being in favour of the plaintiff; and the Nkwanta-
hene (the President of the court) in favour of the defendants. The
defendants appealed to the Supreme Court (Land Court) at
Kumasi (Windsor-Aubrey J.), who, on November 15, 1951, allowed
the appeal and restored the decision of the Asantehene's B
Court in favour of the defendants. The plaintiff then appealed to
1226 THE W E E K L Y LAW BEPOKTS DEO. 20, 1957

J. C. the W e s t African Court of Appeal (Foster Sutton P . , Coussey

1957 J.A. and Korsah J . ) , who, on J a n u a r y 9, 1953, dismissed t h e
ADJEIBI
appeal. The plaintiff now appealed to H e r Majesty in Council.
KOJO I I
v. 1957. Oct. 10, 14. Joseph Dean for t h e appellant.
BONSIE.
The respondents did not appear and were n o t represented.

The following cases were cited in a r g u m e n t : Abakah Nthah

v. Anguah Bennich1; Gariba v . Ibrahimah2; Agbo Kofi v . Addo
Kofi3; Chief Ebiassah v . Ababio4-; Stool of Abinabina v . Chief
Kojo Enyimadu."

Dec. 2. T h e judgment of their Lordships was delivered by

LORD D E N N I N G , who s t a t e d t h e facts set out above, and con-
tinued: I t is plain t h a t each side claimed t h e land to have been
awarded to his ancestor by virtue of t h e p a r t played by h i m in
the Abrimoro w a r : and t h e main issue in t h e case was, who
was right about the history of t h e m a t t e r ? If the land was
originally given to Atwimahene for his p a r t in t h e war, nothing
since would have deprived h i m of it. H e would not lose it by
pledging it and doing nothing about t h e pledge for 80 years. B u t
he had, of course, to account for the fact t h a t he h a d not received
any of t h e profits for many years, and h e did this by saying t h a t
he had parted with it by way of pledge only. H e sought to
refute the case of t h e defendants by saying t h a t the Odikro of
Nerebehi admittedly did n o t take p a r t in t h e active campaign
but only followed u p afterwards, and t h a t would n o t be a
sufficient reason for rewarding h i m with a grant of land.
Their Lordships notice that t h e judges in t h e appeal courts,
who were in favour of upholding t h e decision of the Asantehene's
B Court, did so on two grounds: first, t h a t it was a decision of
fact depending on the demeanour of t h e witnesses and almost
inviolable on t h a t account: second, t h a t on a review of t h e
evidence it was the correct decision.
So far as the first ground is concerned, their Lordships do n o t
think it was t h e correct approach to this case. Their Lordships
notice t h a t there was no dispute as to t h e primary facts, t h a t is,
the facts which t h e witnesses actually observed with their own
eyes or knew of their own knowledge in their own lifetime. T h e
dispute was all as to the traditional history which h a d been
handed down by word of mouth from their forefathers. I n this
regard it m u s t be recognized that, in t h e course of transmission
from generation to generation, mistakes m a y occur without any
dishonest motives whatever. Witnesses of t h e utmost veracity
may speak honestly b u t erroneously as to what took place a
hundred or more years ago. Where there is a conflict of

1
[1931] A.C. 72. * (1946) 12 W.A.C.A. 106.
M1951) 13 W.A.C.A. 171, 179. s [1953] A.C. 207; [1953] 2
a (1933) 1 W.A.C.A. 284. W.L.E.. 261.
 [1957] 1 W.L.R. 1227

traditional history, one side or the other must be mistaken, yet J- C.

both may be honest in their belief. In such a case demeanour 1957
is little guide to the truth. The best way is to test the traditional 77
history by reference to the facts in recent years as established by KOJO II
evidence and by seeing which of two competing histories is the BONSIB.
more probable. That is how both the native courts approached
the matter and their Lordships think they were right in so
doing. If both the native courts had come to the same con-
clusion, the Supreme Court would naturally be slow to disturb
it. But when the native courts differ, as they did in the present
case, the Supreme Court is necessarily called upon to review the
evidence and draw its own inferences. I t should not start with the
presumption that the lowest native court (here the B Court) is
correct because it saw and heard the witnesses, but should rather
give weight to the views of the native appeal court (here the A
Court). In the end, however, it must reach its own conclusion,
just as a court of appeal in England must do, on inferences of
fact: see Benmax v. Austin Motor Co. Ltd.1
So far as the second ground is concerned, their Lordships
have themselves reviewed the evidence. Two facts stand out as
established: The first is that the defendants have enjoyed the
profits of the land without interruption for 80 years. Three or
four generations have passed and no suggestion has been made
that it was the subject of a pledge. The evidence shows that, if
there had been a pledge, it is customary on the death of the
pledgee for a reminder to be given to his successors, whereas none
such was given. Even if the custom were the other way round
(as was suggested), still no reminder was given: and surely, if
no reminder was given, the plaintiff ought to have taken steps
long since to draw the defendants' attention to his claim. The
failure of the plaintiff and his predecessors to do this goes far to
negative his claim.
The second is that in 1919, in the Chief Commissioner's
Court for Ashanti, the Odikro of Nerebehi succeeded in an action
for trespass to his land next to the Supong stream. This is not
the land in dispute, but it is in fact several miles forward beyond
Bonkwaso. This is strong support for the defendants' traditional
history, for it shows that he did get land as far forward as the
Supong. The plaintiff says that the defendant did not take part
in the Abrimoro campaign at all, but if that were so, how did he
get this piece of land up by the Supong?
Those two facts are so cogent that, in the opinion of their
Lordships, they turn the scale in favour of the defendants. Their
Lordships appreciate the force of the arguments of the majority
of the Asantehene's A Court, but on balance they think the
decision of the Asantehene's B Court was correct. In so doing
they find themselves, on this second ground, in agreement with
the President of the A Court, and the judges of the Supreme

1 [195S] A.C. 370; [1955] 2 W.L.R. 418; [1955] 1 All E.R. 326.
1228 THE WEEKLY LAW KEPOBTS DEO. 20, 1957

J. C. Court and the West African Court of Appeal. Their Lordships

1957 will accordingly humbly advise Her Majesty that the appeal
should be dismissed.
ADJBIDI
KOJO I I Solicitors: A. L. Bryden & Williams.
V.
BONSIE; C. C.

[QUEEN'S BENCH D I V I S I O N . ]

1957 * A G E I M P E X H U N G A R I A N T R A D I N G COMPANY F O R
Oct. 21, 22, A G R I C U L T U R A L P R O D U C T S v. SOCIEDAD F I N A N C I E R A
. 23, 24, 25;
D E B I E N E S R A I C E S S.A.
JVoo. 6, 7,
8, 18. T H E AELLO.
Ashworth J.
[1955 A. No. 1170.]

Shipping—Charterparty—Arrived ship—Ship awaiting cargo of maize

compelled to wait in Buenos Aires Roads—Ships excluded from dock
area unless cargo immediately available—Commercial area of port—
Relevance of type of cargo—Roads not place where ships waiting
delivery of grain usually lay—Roads not within commercial area
of port.
Shipping—Charterparty—Cargo, obligation of charterer to provide—
Ship unable to become an arrived ship unless cargo immediately
available—Charterers' failure to have cargo available—Liability of
charterers for breach of contract.
By a charterparty dated August 27, 1954, the steamship Aello
was chartered to proceed as ordered by the charterers to receive a
cargo of wheat and/or maize and/or rye in bulk " at one or two
"safe loading ports or places in the River Parana . . . and the
" balance of the cargo in the port of Buenos Aires." The charterers
had contracted to buy a quantity of maize and in accordance with
their orders the Aello loaded a part cargo at Rosario and proceeded
to Buenos Aires to load the balance of cargo. The vessel reached
Buenos Aires Roads on October 12, 1954, and anchored, and was
compelled to wait there until October 29. At all material times
in 1954 the sale and export of maize from the Argentine was con-
trolled by the Argentine Government, but, a large quantity having
been sold, supplies were coming forward slowly and by August,
1954, vessels awaiting delivery at Buenos Aires were being delayed.
For some time waiting vessels were allowed to wait in one of the
basins or alongside loading ships, but that led to confusion and
delay, and on September 1, 1954, the Grain Board decided that
ships for which a cargo of maize was not immediately available at
Buenos Aires should wait in the Roads. Before a vessel could
proceed further for the purpose of loading, a berthing permit
known as a " g i r o " was required; application for a giro would
only be entertained if it was accompanied by a certificate issued
by the Grain Board that the required cargo was available, and the
shippers were the proper parties to apply to the Grain Board for
the certificate. In addition, a vessel was not permitted to take on
board any cargo unless a police permit, following on some form of
police inspection, had been issued, but in the case of vessels which
had already loaded a part cargo at an up-river port the police
inspection at Buenos Aires was little more than a formality and
compliance with this reqiiirement would not normally hold up
loading operations. When the Aello reached Buenos Aires on