Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 16TH APRIL 1959
Before: OLLENNU J.
Proof requisite in trespass—Proof requisite for injunction—Nature and method of proof—Vendor’s position in action for title by or against his purchaser.
JUDGMENT OF OLLENNU J.
(His lordship stated the facts, and proceeded:-_)
It has been submitted by Counsel for the plaintiff that this is a case of trespass pure and simple, and that upon proof that the plaintiff was in possession of the land on the date on which the trespass complained of took place, in law the onus shifted to the defendants to prove their authority for entering upon the land, i.e. to prove superior title.
The law as to trespass is that if a person proves merely that he is in possession of land, that is sufficient to enable him to maintain trespass against anyone who cannot show a better title. Upon that
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principle, granting for the moment that the case is trespass and nothing more, the onus is upon the plaintiff to prove that he was in possession of the land at the date when he alleged the defendants entered thereon.
Proof, in law , is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.
Here I may repeat what I stated in the case of Khoury and anor. V. Richter on this question of proof. That judgment was delivered on the 8th December, 1958, and the passage in question is as follows:-“Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.”
In this case the averment by the plaintiff is that he was in possession of the land in April, 1956, and owned an uncompleted building on it. That averment was denied by all three defendants in their statements of defence. Applying the principle which I have just stated, it thereupon became incumbent upon the plaintiff to produce evidence of fact and circumstances from which the Court could be satisfied that he was indeed in such possession, and did own such a building on the land. This the plaintiff could have done by producing witnesses who were present when Hanza Brimah transferred the building to him, and by producing documents on the transfer. He could have called bricklayers and other workmen whom he engaged to complete the finished walls. He could have called people who could show that for some time before April, 1956 he had been on the land, supervising or directing or doing some work on the land, or exercising some overt acts of ownership, indicating that he was in possession of the land. Yet all that the plaintiff has done in this case is to go into the witness-box and repeat precisely what he averred in his statement of claim, that one Hanza Brimah erected a building on this land up to a certain height, that the said Brimah sold the uncompleted building to him, that he (plaintiff) completed the
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erection of the walls, remaining a roof. And all that the only witness whom he called could say was that the building belonged to the plaintiff, but he was unable to say how it became plaintiff s.
Therefore, even if the case depended entirely on the question of the plaintiff s possession, the plaintiff failed to satisfy the Court that he was in possession of the land and any building thereon, or that any buildings of his on the land were demolished by the defendants or by anybody. There was no prima facie case of trespass for the defendants to answer.
But that is not all. The submission by learned Counsel that this is a case of trespass pure and simple, and nothing more, is misconceived. Where a plaintiff sues not only in trespass but also for an injunction, and his claim is denied, the legal position is that he has put his title in issue; he cannot succeed unless he is able to establish his title. The Privy Council have set out the principle in the following words:
“The Respondent’s claim being one of damages for trespass and for an injunction against further trespass, it follows that he has put his title in issue. His claim postulates, in their Lordships’ opinion, that he is either the owner of Bunya land, or has had, prior to the trespass complained of, exclusive possession of it. The principal question to be decided in the appeal would accordingly seem to be – Has the respondent discharged the onus which rests upon him of demonstrating beyond reasonable doubt that the title to the disputed land is in him? The appellant says – Nay; the respondent says -Aye.” (Kponuglo & Ors. v. Kodadja (2 W.A.C.A. 24)).
This observation of their lordships applies equally to this case. As already pointed out, the plaintiff made two claims: one for trespass, the other for an injunction restraining the defendants from committing further trespass. The question to be decided therefore is: Is the plaintiff the owner of the land? The plaintiff says Aye, the defendants say Nay. What evidence, then, has the plaintiff adduced to establish this right of exclusive possession which he claims, to make it incumbent upon the defendants to prove superior title? None whatsoever. In fact, the legal position was misconceived by learned Counsel, and therefore no effort was made to lead any evidence of any sort as to title. Having thus failed to prove that he was in possession of the land in April, 1956 (or at anytime), having put in issue his title to the land in dispute and having failed to lead any evidence whatsoever to establish that title, the plaintiff is bound to fail.
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It has been contended by learned Counsel for the plaintiff that the 3rd defendant has no locus standi in this case, because his statement of defence, together with the evidence led by the 1st defendant, show that he has alienated his title in the land to the 1st defendant.
There would have been some force in this submission if the decision in this case were dependent solely upon English law. But Sec. 87(1) of the Courts Ordinance provides, inter alia:
“Nothing in this Ordinance shall deprive the courts of the right to observe and enforce the observance, or shall deprive any person of the benefit, of any native law or custom existing in Ghana, such law or custom not being repugnant to natural justice, equity and good conscience, nor incompatible either directly or by necessary implication with any ordinance for the time being in force. Such laws and customs shall be deemed applicable in causes and matters where the parties thereto are natives, and particularly, but without derogating from their application in other cases, in causes and matters relating to the tenure and transfer of real and personal property” etc.
The parties hereto are natives, and the particular matter in respect of which the submission aforesaid is made by Counsel relates to tenure and transfer of real property. Therefore, unless the contrary is shown, I am bound to apply the provisions of native law or custom in that behalf.
On this issue, I would refer to a decision on the point made by Petrides C. J., which was upheld by the West African Court of Appeal (Odonkor and anor. v. Allotey and anor. (7 W.A.C.A 160)). That was a case in which the Presbyterian Church, which had purchased land from A.B. Nartey, by their pastor (the Rev. S. S. Odonkor sued E. P. Allotey, who had purchased the same land from Yaotele Yartey. A. B. Nartey, the vendor to the Church, joined as co-plaintiff to litigate his title in, and his right to sell, the land, while Yaotele joined as co-defendant to litigate her title, and her right to sell. In the course of his judgment the learned Chief Justice said:
“It has been contended that A. B. Nartey is not entitled to maintain an action for declaration of title in respect of land he sold before action was brought. I am satisfied, after listening to the evidence of the Asere Mantse, he can do so according to Native Law and custom. There is evidence which I accept that Nartey was asked by his purchasers to sue for a declaration of title. I hold that Nartery can, in the circumstances, sue in respect of the plots he sold before action. That Nartey can sue for a declaration of title in respect of land that he has bought and still owns is quite clear
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under English Law. It has not been relied upon as a defence that he cannot do so, but, as the Asere Mantse has stated that this is not so under Native Law and Custom because he must leave it to his vendor to sue, I desire to state that if this were so it would be repugnant to natural justice to prevent a purchaser from suing a person who disputes his title. In these circumstances I am unable to hold that the purchaser cannot sue. In my view either the original owner of the property or the purchaser can maintain an action in respect of it.”
The principle of native law is that the vendor must establish his title, i.e. his right to sell to the purchaser and to give him possession; he must therefore join his purchaser to prosecute an action for title, or to defend that title. The co-plaintiff was interested in the suit, and was therefore properly joined.
Further, it has been held by the West African Court of Appeal on many occasions that when a vendor sits by, and allows his purchaser to litigate his title to the land purchased without his (the vendor’s) joining in the suit, and the purchaser fails, the vendor would afterwards be estopped from litigating his own title to the said land (Akwei v. Cofie & ors. (14 W.A.C. A. 143); Fiscian v. Tetteh (2 W.A.L.R. 192)).
DECISION
For the reasons given above the plaintiff s claims must fail. It is dismissed, and judgment is entered for the defendants and co-defendant, with costs fixed at 60 guineas inclusive.
