Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 22ND JANUARY, 1959.
Before: OLLENNU J.
JUDGMENT OF OLLENNU J.
On the question of the headship of the family, the evidence given by the plaintiff and by his second witness (one Comfort Korkoi Otto) that he is the head of the family was contradicted his 4th witness. The latter said that the plaintiff is the head of the family, but he also said later in his evidence-in-chief that he and the plaintiff were appointed by the family only to collect rents from the family property. The plaintiff was also contradicted by his 7th witness, an old man, one Emmanuel Henry Amoo, who deposed in-chief that he is the present head of the family but has appointed the plaintiff to look after the family property.
Upon that evidence the plaintiff failed to satisfy me that he is the present head of his family. I am, however, satisfied upon the evidence that the plaintiff has the authority of the family to take care of the family property, from which may be implied authority of the family to litigate the family’s title to the property.
Therefore, upon the authority of Koran v. Dokyi and ors. (7 W.A.C.A. 78), as interpreted by me in a judgment I delivered on the 29th November, 1958 in the case of Cobblah v. Bannerman, I hold that the plaintiff is entitled to institute this action for and on behalf of the family.
I find that the plaintiff has failed to prove that the defendant is, or has ever been, his tenant. I accept the evidence of the defendant that she has occupied that room for as long a time as she can remember, and has not at any time paid any rents to the plaintiff (or to any member of his family) in respect of the room.
The only issue left is the question to title; that is to say, Is the plaintiff the owner of the property in dispute? Upon the pleadings, issue was joined on this.
Learned Counsel for the plaintiff submitted that by reason of the cross-examination of the plaintiff by Counsel for the defendant, on the footing that the land was granted by the plaintiff s predecessor-in-title (the late R.Q. Ashley) to the defendant’s grandmother (Madam Ashong), the onus rested upon the defendant to prove the extent of the grant so made to her family. With this proposition I am unable to agree.
The principle of law is that “the burden of proof rests upon the party who would fail if no evidence at all, or no more evidence, as the case may be, were given on either side – i.e. it rests, before evidence is gone into, upon the party asserting the affirmative of the issue; and it rests, after evidence is gone into, upon the party
[p.26] of [1959] GLR 23
against whom the tribunal, at the time the question arises, would give judgment if no further evidence were adduced” (Phipson on Evidence, 7th ed. at p.31; and see Abrath v. North Eastern Railway Company (11 Q.B.D. 440), and Wakelin v. London and South Western Railway Co. [1896] 1 Q.B.D. 189n, 196.)
As already pointed out, the case was transferred to this Court from the District Magistrate’s Court because the defendant had put the plaintiff s title in issue. Again, in paragraph 7 of his Statement of Claim filed in this Court, the plaintiff pleaded specifically as follows:-
“Plaintiff says that the land on which the said room stands is the property of the family of R.Q. Ashley, and that the said room was built by the said Ashley.”
The defendant specifically denied this averment in paragraph 2 of her Statement of Defence, where she said:-
“The defendant denies paragraphs 2, 3, 4, 7 and 8 of the Statement of Claim.”
To this denial, the plaintiff replied:-
“The plaintiff joins issued with the defendant on paragraphs 1, 2, and 4 of her Statement of Defence.” (The underlinings are mine).
Applying the principle stated above, the person who would fail if no evidence at all were led after the close of the pleadings on that issue of ownership is the plaintiff. He is therefore the person upon whom the burden lies first to prove that the building in dispute was erected by the late R.Q. Ashley, and that the land on which the latter erected it was his property, or that of his family.
