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  • appeal
  • 1959-11-02
  • GLR 362-365
  • Print



The plaintiff family claimed damages for trespass to land which they called Muaminmu,?" their ancestral land. They claimed that some ninety years ago their ancestors had cultivated a virgin forest, upon which the family had lived ever since. Later, as they said, the ancestors of the defendant family came and asked for a piece of the ancestral land on which to live, and they were given a piece of the land at ?"Mbibadu.?" The plaintiffs said that the defendants?' ancestors were allowed by the plaintiffs?' ancestors pieces of land for building purposes, but the land remained the ancestral property of the plaintiff family when the houses became broken down. The plaintiffs referred particularly to a house of one Beyeden, a member of the defendant family, which had become broken down, and plaintiffs?' contention was that a ruined building of the defendant family should not be re-built without the permission of the plaintiff family. The plaintiff family thus put in issue the title to that portion of land on which the defendant family resided. [p.363].The defendants?' answer to this was that the portion of land on which they resided was one which over 150 years ago had been cultivated by their ancestors out of virgin forest, and was named ?"Wonkyire.?" Members of the family had built their several houses upon this land, with the permission of the head of the family from time to time. It was one of these houses which fell into disrepair, and, about two months before this action commenced, the defendant family permitted one of their members to put up a building in its place. It was this that aroused the intervention of the plaintiff family, who asserted title, and (contrary to the defendant?'s contention) said there was no boundary between the portions of land which the two families occupied.The Native trial-Court held that the plaintiffs had failed to establish their case, and the Court found for the defendants. On appeal to the Land Court, Sarkodee-Addo J. reversed this decision, and found for the plaintiffs. The now unsuccessful defendants appealed to the Court of Appeal (Civ. App. No. 23/1959).


Land?-Long undisturbed possession?-Protection against all save better titles?-Conflict and confusion in plaintiff?'s evidence of tradition.



Baidoo for defendants (appellants).

In discharging the onus of proof, which lay upon the plaintiff family, the latter relied solely on traditional evidence, and their evidence was in conflict with tradition evidence given by the defendant-family. The Native Court heard the respective witnesses, observed their demeanour and preferred the evidence led by the defendant-family. Since the Native Court disbelieved the evidence of the plaintiff-family, it follows that the plaintiff-family had not discharged the onus of proof, and the Land Court erred in reversing the trial-Court?'s finding of fact. The plaintiff-family failed to prove even a single act of ownership exercised by them, whereas the defendant-family established that they had been in possession for more than 150 years, during which time they had exercised various act of ownership.


No appearance for plaintiffs (respondents).


On the 27th October, 1959 we allowed this appeal from a judgment of the Judge of the Land Court, Sekondi, by which he set aside a decision in favour of the defendant in the Shama Native Court ?"B?".

(His lordship stated the history of the case, and continued.)

We think that this can be regarded as being in the nature of a boundary dispute between two adjoining land owners, and the [p.364] burden therefore rested upon the plaintiffs to establish with particularity the extent of the land which they claimed and the boundaries of it. This the plaintiffs lamentably failed to do.

On the plaintiff?'s own admission it was established that the defendants had been in long undisturbed possession and occupation of the land, including that portion of the land on which the controversial house had been built, and were therefore entitled to the full protection of the law against anyone except a person who could affirmatively prove a better title. It is clear that the onus upon the plaintiffs in this case was heavy in the extreme.

The evidence as to title was mainly of a traditional character on each side, and we ourselves cannot find much to choose between the two conflicting stories. Following the decision in Kodilinye v. Mbanefo Odu (2 W.A.C.A. 336 at p. 338) we must emphasise that if the whole evidence in a case be conflicting and somewhat confused, and there is little to choose between the rival traditional stories, the plaintiff fails in the decree he seeks, and judgment must be entered for the defendant.

We observe that the Native trial-Court proceeded to their decision upon an application of these principles. They concluded their judgment as follows:

?"Examining the whole record carefully on its merits and demerits and the inspection, the court is satisfied beyond any shadow of doubt that the plaintiffs have not been able to establish any case against the defendants.?"

The Native trial-Court accordingly entered judgment in favour of the defendants.

In these circumstances, surprisingly (as it seems to us) the learned Judge of the Land Court called upon Counsel for the successful defendants to show cause why the judgment of the Native trial-Court should not be set aside, and judgment entered for the plaintiffs. In response to this invitation leaned Counsel, as it appears on the record, gave a full and satisfactory enunciation of the law to which we have referred, in relation to the facts of the case. Despite this the learned Judge, without calling upon learned Counsel for the plaintiff, concluded by expressing his opinion ?"that the plaintiffs satisfactorily proved their case and discharged the onus of proof which lay on them.?" The only reason appearing in his judgment is that in his view the evidence given on behalf of the plaintiff family was conclusive. [p.365]

We cannot agree that such evidence was conclusive, and we ought to add that the learned Judge appears to have failed to give any consideration to the evidence as a whole, which (as we have already indicated) was in conflict, and in some confusion as to tradition. Had he given due consideration to the matter he would have been led to the conclusion that judgment must be given against the plaintiffs, who in such circumstances had failed to discharge the burden of proof that rested upon them.


In our opinion, therefore, the learned Judge of the Land Court erred in reversing the decision of the Native trial-Court.

Plaintiff / Appellant


Defendant / Respondent



Kodilinye v. Odu (2 W.A.C.A. 336).

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