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EHURAN v. ATTA


  • appeal
  • 1960-11-28
  • COURT OF APPEAL
  • GLR 224-226
  • Print

VAN LARE, GRANVILLE SHARP AND SARKODEE-ADOO, JJ.S.C.


Summary

Land?-Trespass?-Action effectively one of title to land?-Whether long possession can establish title to land?-Burden of proof in title to land cases.

Headnotes

The plaintiff brought an action in the Municipal Court at Cape Coast against the defendant claiming damages for trespass to land. In effect, the issue was one as to title and the action was tried on that basis. The evidence showed that both parties were in possession and farming on portions of the land in dispute. It was also established that the root of title in the land resided in one Kofi Tor and his descendants and that neither plaintiff nor defendant could lay claim to be a descendant of Tor. The trial court, therefore, gave judgment in favour of the defendant. This decision was reversed on appeal by the Commissioner of Assize and Civil Pleas, who held that there was evidence of possession by the plaintiff and his family and that as the defendant had no interest in Tor's land he was trespassing if he entered on the land while the plaintiff was in possession. The defendant appealed to the Supreme Court.The defendant (appellant) argued that the plaintiff (respondent) could not succeed unless he could prove that his title derived from Kofi Tor, the root of title to the land.The plaintiff (respondent) in reply admitted that he had no root of title but relied on long possession of the land.

Judgement

APPEAL from a decision of the Commissioner of Assize and Civil Pleas (S. A. Attoh, Esquire) sitting in the Land Court, at Cape Coast on September 29, 1959, reversing a decision of the Municipal Court "B", Cape Coast, given on May 14, 1959 in favour of the defendant in an action for damages for trespass to land.

JUDGMENT OF GRANVILLE SHARP J.S.C.

Granveille Sharp, J.S.C. delivered the judgment of the court: The action in connection with which this appeal arises was brought by the respondent ostensibly to recover damages for trespass from the appellant.

The summons was in the following terms:?-

?"The plaintiff herein claims from the defendant herein the sum of G50 being damages for trespass committed by defendant on [p.225] plaintiff 's family land known as and called 'Abaka Ekyir' situate lying and being at Ekon in Cape Coast District of the Western Region of Ghana and bounded on one side by the land belonging to Kwamin Dadzie's family on another side by the land belonging to Kofi Buranyi's family on another side by land belonging to Kweku Donkor's family and on another side by land belonging to Tutu Dadzie's family.

And for injunction restraining the said Kweku Ehuran the defendant herein from entering on the said land or for having anything to do on the said land in dispute herein pending the hearing and determination of the above case."

The land described in the summons was depicted on a plan which was exhibited in the course of the hearing before the municipal court. It is a tract of land of considerable extent and nowhere on the plan and nowhere in the evidence that was adduced at the hearing is the place upon which trespass was alleged to have taken place identified either by description or by delineation. In fact it is apparent from the oral testimony, and from the exhibits which comprise a number of judgments in previous litigations about the same land, that the issue raised by the action for trespass was in reality an issue as to title and the general effect of the judgment of the municipal court was that on a review of the evidence it was clear that the plaintiff had failed to establish a title superior to that of the defendant in the action.

In this court the plaintiff was the respondent seeking to support the judgment of Mr. Commissioner S. A. Attoh which reversed the decision of the municipal court and entered judgment in his favour, but, significantly did not award to him any damages in respect of the alleged, but unidentified trespass. From this latter circumstance and from the judgment generally it seems clear that the learned commissioner himself treated the matter as involving a claim for title to the land.

The series of previous judgments to which we have referred were found in both courts below to establish that the root of title to the land described in the summons resided in one Kofi Tor and his descendants and that neither the plaintiff nor the defendant in the action could lay claim to be a descendant of Kofi Tor.

Mr. Benjamin for the appellant before us, justifiably on the evidence, emphasised the fact that both the appellant and the respondent, each of whom was claiming title to the whole of the Abaka Ekyir lands, were occupying portions of it and contended that the respondent who was the plaintiff could not succeed unless he could prove that his title derived from Kofi Tor, the root of title to the land.

Mr. Short's argument in reply to this may be fairly summarised as follows: "we do not in fact have any title which is in Tor, but we have been in possession for a long time and appellants tried to interfere with our possession. They are not descendants of Tor, although it is admitted we also are not descendants of Tor. We have no root of title in fact, but we brought this action which raised the question of title. We relied on our long possession." [p.226]

It is true that a person in possession of land is entitled to protection against interference from anyone save one who can prove himself to be the true owner of the land, but this is not to say that title to land can be established by proof of long possession particularly when two persons each of whom can prove long possession of land are contesting title to own the whole of the land on which they have jointly lived and farmed.

It is a commonplace that a plaintiff in an action for title to land must succeed on the strength of his own case and not on the weakness of the case for the defendant.

In the instant case the learned commissioner, it seems to us overlooked this legal truism. He found that neither the plaintiff nor the defendant derived any title from Kofi Tor, neither of them being descendant of Tor. He then concluded: "It is clear from the record that there is sufficient evidence of use and occupation by plaintiff appellant and his family. It is also clear from the record that the defendant respondent has no interest in Tor's land. He is therefore a trespasser if he interferes with or enters the land while plaintiff appellant is in possession and occupation of it . . . For these reasons I set aside the judgment of the native trial court" (meaning we suppose "the municipal court").

The learned commissioner in the passage which we quote appears to have placed the burden of proof on the shoulders of the defendant whereas in law it rested upon the plaintiff.

The plaintiff was in no better position than the defendant. In the action for title he was under the same handicap as the defendant for it was also clear on the record that he had no interest in Tor's land, and could not prove descendancy from Tor to support title.

In a case such as the present whoever is the plaintiff must fail, and the learned commissioner in our opinion erred when he dealt with the matter in a way that placed the defendant in the situation of the plaintiff. Had he in fact been the plaintiff he too would have had to rest his chance of success on the strength of his own case and prove title through Tor which he could not do. The respondent was in fact the plaintiff who failed to prove title and it was for this reason that we allowed the appeal with the usual order as to costs.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

C.F. Hayfron-Benjamin

Defendant / Respondent

Short

Referals

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