PWAMANG, JSC:-

This appeal is against the judgment of the Stool Lands Boundaries Appeals Tribunal dated 16th June, 1993. In that judgment the Appeals Tribunal dismissed an appeal by Pitiko Stool, hereinafter referred to as the appellant, against the decision of the Stool Lands Boundaries Settlement Commissioner, to be called the Commissioner, dated 25th January, 1991 and varied the said decision by granting a larger land to the Abetifi Stool, which shall be referred to as the respondent. The disputed land lies roughly between the Obosom river which is along the boundary between the Ashanti and Eastern Regions of Ghana to the north, Dede river to the East and the Afram river to the west. At the enquiry the parties relied on traditional evidence and also testified on acts of possession within the disputed land in proof of their boundary claims. A surveyor was appointed by the trial Commissioner who prepared and tendered a plan on which he indicated the respective boundaries claimed by the parties and their villages, farms, shrines and other features of possession.

In this final appeal the appellant filed one ground of appeal and seven additional grounds and argued all of them. We have reviewed the record of the appeal, as we are enjoined to do since an appeal is a rehearing, and have identified four main objections taken by the appellant against the judgments of the two lower courts.

The first main objection is the appellant's complaint that the trial Commissioner erred by relying on the endorsement on the writ of summons they filed in the High Court, Koforidua to hold that it admitted a common boundary with the respondent whereas those pleadings were not part of the evidence led at the enquiry. The appellant is so complaining because whereas they admitted a common boundary with the respondent in the writ of summons and statement of claim they filed in 1980 which commenced this litigation it subsequently denied in their evidence at the hearing that the respondent had land in the area and are aggrieved that the trial Commissioner accepted their earlier position on the issue of common boundary and rejected their evidence to the contrary. From the record this case was started by the appellant filing a writ of summons accompanied by a statement of claim in the High Court, Koforidua claiming title to the land in dispute which was described in the endorsement on the writ of summons and statement of claim as having the respondent stool land as their boundary owner and that its land adjoined respondent's land on the south with respondent's land to its north. It was alleged that subjects of the respondent had encroached on appellant's land without their consent so it claimed declaration of title and related reliefs. When the respondent was served with the writ and statement of claim it objected to the jurisdiction of the court on the ground that by the provisions of the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172) exclusive jurisdiction in disputes concerning boundaries of stool lands was conferred on the Commissioner. The High Court in upholding the objection stayed proceedings and transmitted the case docket with all processes filed to the Commission so they became part of the processes before the Commission. But the case the appellant is making on this ground is that subsequent to the writ of summons it filed an affidavit on 5/12/1988 in support of a motion to relist the enquiry before the Commissioner and in it stated its disagreement about the boundaries of its land but the respondent did not react to that affidavit so it meant the boundaries were at large without any admission of a common boundary. The affidavit referred to which was deposed to by a new Pitikohene different from the one who filed the writ in 1980 is found at page 7 of the record and at paragraph 7 of it he deposed as follows;

"Unfortunately I differed, on the insistence(sic) and advise of my own Stool Elders, from the Omanhene as to the boundaries of the Pitiko stool land which shares a common boundary with Bukuruwa Kwahu (ie. River Dede on the East) and with Kumawu Ashanti (ie. River Obosom on the North). Consequently the attempted settlement proved abortive, and the Omanhene wrote to inform Commissioner Amorin accordingly on 28th May, 1987."

We have quoted from the affidavit to show that the difference stated by the appellant was not as to its boundaries as described on the writ of summons in the High Court but between the new Pitiko chief and the Kwahu Omanhene who was attempting settlement of the case after the dispute had gone to court. In our view if in 1988 the new Pitiko chief seriously believed that he had no common boundary with the respondents then the dispute was not one within the jurisdiction of the Commissioner who was to determine stool land boundaries cases and he should not have gone back to the Commission. By applying to relist the enquiry the appellant thereby endorsed the description of its land stated on its writ of summons as having a common boundary with the Respondent otherwise the Commissioner would not have had jurisdiction to determine the dispute it sought to relist before him. The volt-face made by the appellant on its common boundary with the respondent and the legal objection herein appear to us to be afterthoughts and would therefore be dismissed. In making findings of fact in the course of a judgment a court is entitled to make use of admissions in pleadings and any divergence between a party's pleadings and his evidence in coming to a conclusion whether to accept or reject the case of that party.

The second objection is in respect of the reference made by the trial Commissioner to the plan depicting the respective claims of the parties during the first attempt at settlement of their dispute by their Omanhene before the case went to court. It was signed by the Pitiko chief at the time and tendered in evidence without objection as Exhibit '1'. The appellant has argued before us that the plan was used by the trial commissioner in his judgment as an earlier inconsistent statement as against its evidence at the enquiry and that the law requires that it ought to have been given the opportunity through cross examination to explain the earlier inconsistent statement before the court could use it as evidence against it. Here the appellant stated the rule of evidence on earlier inconsistent statement correctly and as is provided in Section 76 of the Evidence Act, 1975 (NRCD 323). However, on the facts in this case the appellant's evidence at the enquiry was not inconsistent with what was depicted on Exhibit'1'. This is what the trial commissioner said in his judgment;

"On that plan Pitiko restricted its claim to the south of the Obosom river just as it claims in its traditional evidence and in consonance with its concession that that was the boundary fixed by its uncle (Kumawuhene). But Abetifi claimed lands beyond the Obosom river thus disputing Kumawu's claim that the Obosom river is the boundary between Pitiko and Kumawu lands.......I am accordingly convinced and satisfied on the evidence that the Okwahus mentioned in Exhibit 'J' by Chief Commissioner F.G.Fuller, to have claimed lands up to the Sene river" but were only granted the "tract of country up to the Obosom" and for that reason "have more ground of complaint" (as the Chief Commissioner put it) were not and could not have been the Pitikos."

From the above passage the trial Commissioner based his finding on the consistency of Pitikos claims in Exhibit '1' and in its evidence at the enquiry so the rules on inconsistent earlier statement in Section 76 of the Evidence Act are not applicable here and no error of law was committed by the Commissioner in relying on Exhibit '1'.

The third objection appeared to be the crux of the appellant's case in this appeal which is that the documents tendered at the enquiry largely corroborated their traditional evidence to the effect that Abetifi was not part of the war in 1697 which defeated Ataara Firam, took over his lands, which are the lands in dispute here, and shared them among the stools that contributed troops to the campaign. In arguing this ground the appellant placed almost total reliance on Exhibit 'D' which contained the testimony of a Kwahu Chief Linguist called Asabere during proceedings in a land dispute between the Kwahus and the Agogos before Commissioner E.H. Robert in 1910. In his evidence Asabere testified as to the land boundary between the Kwahus and the Agogos and also the history of the Kwahus from Ayiwase in Denkyira to their location at the time he was testifying. Among the things Asabere said was that at the time the Kwahus arrived in the area between the Afram River and the Volta river they met only the people of Bukuruwa who had fought and defeated Ataara Firam. Their chief called Baadu invited the Kwahus to serve him but they refused and rather fought him. Initially he defeated them however, they retreated, remobilised and conquered him some years later.

In the appellant's view, this evidence in effect means that the Kwahus did not take part in the conquest of Ataara Firam contrary to the traditional evidence led at the enquiry by the respondent that the land they claimed was their share of Ataara Firam's land taken by the Kwahus upon defeating Ataara Firam. It argued that since the evidence was given by the Kwahu Omanhene's linguist it represents the truth and so the traditional evidence of Abetifi could not be true. The appellant went further in its statement of case in this court and filed two other judgments from the archives in which it was held that Ataara Firam was defeated by a combined force of Kumawu, Kwaman and Agogo who subsequently occupied portions of his lands for themselves. But if even that were so, do the documents corroborate the traditional evidence of the appellant that it fought together with its uncle Kumawu in the Ataara Firam war and thereafter Kumawu gave it the disputed land to settle on? In any event, some of the documents tendered by the appellant's chief witness, particularly Exhibit 'F' also mentioned Odiawuo, King of Okwahu alongside Pitikohene as some of those who fought in the Ataara Firam war of 1697. Exhibit 'F' is "History of Ajade." That part of Exhibit 'F' conflicts with the testimony of Okyeame Asabere in Exhibit 'D' and appears to support the traditional evidence of the respondents that they fought in the Ataara Firam war on the orders of their king Nana Diawuo and obtained the land in dispute upon conquering Ataara Firam. We are therefore surprised that in the face of these conflicts in the documents tendered by the appellant's chief witness it continued to hammer on the testimony of Okyeame Asabere claiming it completely destroyed the traditional evidence of the respondent.

We have noted the oral testimonies by the witnesses of the appellant in support of their claim to be nephews of the Kumawu stool which gave the land to them after the Ataara Firam war but we have compared that with the oral testimonies of the respondent's witnesses which included Bukuruwa, a boundary owner, to the contrary. In such circumstances, the well-settled position of the law in several cases referred to by the appellant is to test the traditional evidence by reference to facts of possession and ownership in recent years established by the evidence. So on the last ground of appeal argued by the appellant where it said the judgment was against the weight of the evidence, we expected it to show us from the evidence on record facts in recent years that supported its case. We were however disappointed because it did not point out for our consideration any recent acts of possession and ownership established by the evidence but which the trial Commissioner and the Appellate Tribunal failed to apply in its favour. It rather spent its effort under that ground discounting the relevance of Exhibit 'J' which was the 1906 letter by the Colonial government demarcating the boundary between Ashanti and the Eastern provinces and repeating its arguments which we have discussed and rejected above. Meanwhile there is evidence of possession through villages established on the disputed land as shown on the preliminary enquiry plan tendered by the enquiry appointed surveyor as Exhibit 'A' but appellant had no comments on those recent acts in its statement of case. The trial Commissioner as well as the Appellate Tribunal have concurrently found that the recent acts established by the evidence on record make the case of the respondent more probable than that of the appellant and we have not been given any compelling reason to reverse that finding.

We noticed from the grounds of appeal and the statement of case that the appellant did not complain about the variation by the Court of Appeal of the boundary that was determined by the trial Commissioner and which was more favourable to the appellant. The law accepts alternative claims and defences by parties and if appellant could justify the boundary by the trial Commissioner it should have argued that before us so its silence can only mean that it is unable to support that boundary either. It is apparent from the evidence on record that the appellant failed to lead sufficient evidence of recent facts so as to avoid a finding against it on the disputed boundary but unfortunately for it that is what the law requires of parties relying on traditional evidence that tend to conflict as in this case. The respondent’s evidence of recent acts of possession on the whole outweighed that of the appellants so they were entitled to judgment in their favour.

In the circumstances we find no merit in the appeal and we dismiss same.

G. PWAMANG

(JUSTICE OF THE SUPREME COURT)

ANIN YEBOAH

(JUSTICE OF THE SUPREME COURT)

P. BAFFOE-BONNIE

(JUSTICE OF THE SUPREME COURT)

A.A. BENIN

(JUSTICE OF THE SUPREME COURT)

Y. APPAU

(JUSTICE OF THE SUPREME COURT)