Division: IN THE COURT OF APPEAL
Date: 25TH JUNE, 1959.
Before: KORSAH C.J., VAN LARE J.A. AND OLLENNU J.
JUDGMENT OF VAN LARE , J.A.
The plaintiff, by his writ of summons issued on the 19th day of June, 1948 in the Asin Confederacy Native Court “A,” claimed damages for trespass, and an injunction restraining the defendant,
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his agents and servants, from entering upon, or in any way interfering with the plaintiff in his ownership, possession and occupation of his stool land known as and called Basofi land, situate in the Asin Apimanim State. The suit was transferred to the Land Court.
The plaintiff filed a statement of claim averring ownership of the said land by original settlement on it by his ancestors. The cause of action, as given both in the writ of summons and in the statement of claim, is that the defendant by his agents and servants entered upon a portion of the said land in May, 1948, and constructed a motor road thereon from a village called Nduaso, thereby damaging existing motorable roads and bridges thereon, and consequently obstructing the plaintiff s tenants, James Brodie Apprey and others, engaged in timber business on that portion of the land.
In a statement of defence the defendant admitted committing the acts which the plaintiff complained of, but pleaded that he committed those acts in the exercise of his right as owner in possession of the said land acquired by his ancestors by original settlement.
The trial-Judge directed himself that upon the pleadings the issue raised for trial was one of title. In his judgment he found, upon the evidence before him, that the plaintiff s ancestors were the first to settle on the land in dispute, and became by native custom the owners of the land. The assessor who sat with the learned Judge agreed with the Judge’s findings as to original settlement, and the effect, according to native law and custom, of that original settlement.
Upon those findings of fact, and the declaration of native law and custom, the learned Judge entered judgment for the plaintiff for declaration of his title to the land, and damages for trespass.
The three main grounds of appeal argued before us are:
(1) the learned Judge was wrong in making a declaration of title to the land in favour of the plaintiff when no such relief was asked for or sought;
(2) the plaintiff s action was misconceived in that not being in possession of the land in dispute, and his reversionary interest in the land (if any) not having been infringed, he could not maintain an action for trespass, and
(3) the judgment was against the weight of evidence.
In support of the first ground, learned Counsel submitted that trespass is a wrong against possession or right to possession, and in law a person in possession or entitled to possession can successfully maintain an action for trespass against the whole world except the true owner.
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The proper statement of the law is that “mere possession is sufficient to maintain an action for trespass against any one who cannot prove a better title.” What the expression “one who cannot prove a better title” means is, “one who cannot avoid the effect of the plaintiff s possession by showing that notwithstanding the actual possession by the plaintiff, he (the defendant) had a better right to the land” – per Denman, C.J., in Whittington v. Boxall ((1843) 12 L.J.Q.B. 318, 114 E.R,. 1201 at 1203), cited with approval in England v. Palmer (14 W.A.C.A. 659).
“The true owner” must therefore be interpreted to include a defendant who claims a right to possession as a grantee, a tenant, a licensee, or one having permission of the person in whom it is shown, upon the evidence, that the legal title in the land is vested. It is only a defendant pleading jus tertia (,i.e. that title is vested in neither the plaintiff nor himself, but in some third party through whom he does not claim) who cannot resist the effect of proof of the plaintiff s possession. It is in such cases, and such cases only, that a claim in trespass puts nothing more than possession in issue:
Thus where in an action for trespass a defendant, as in this case, pleads ownership of the land (i.e. that he has a better right to possession of the land than the plaintiff has) the plaintiff s title is put in issue; and the plaintiff cannot succeed unless he proves a right to possession which is superior to that of the defendant. Consequently, in an action for trespass, if it is proved that the plaintiff has no title at all to the land, and that the defendant’s entry is upon permission of the true owner, the plaintiff s claim must fail.
Again, where in addition to a claim for damages for trespass the plaintiff claims an injunction, title is automatically put in issue, because that claim postulates that the plaintiff is either the owner of the land in dispute, or has had (prior to the trespass complained of) exclusive possession of it. The principle was stated in a very graphic and clear style by the Judicial Committee of the Privy Council in their judgment delivered in the case of Kponuglo and ors. v. Kodadja (2 W.AC.A. 24).
Their Lordships said:
“It is not in dispute between the parties that in the year 1927, the appellants or their representatives cut down an Odum tree within Bunya land, and that, accordingly, if the title to that land is in the respondent, as he claims, a trespass was committed by the appellants.
“The respondent’s claimed being one of damages for trespass, and for an injunction against further trespass, it follows that he has
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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 appellants say—Nay, the respondent says -Aye.”
We can see no difference between that case and the present one. In our opinion the trial-Judge properly directed himself that the main issue raised on the pleadings was one of title. However, following the practice laid down in the case of England v. Palmer, we granted leave to the plaintiff to amend his claim by adding a claim for declaration of title. This amendment did not raise any issue on which evidence had not already been taken, consequently no injustice could be done by granting the amendment.
On the second ground learned Counsel submitted that, as between an owner of land and his tenant in possession, the tenant and not the owner is the person entitled in law to maintain an action for trespass, which is a remedy for invasion of the right of possession. He submitted, therefore, that upon his own pleadings the plaintiff was not in possession of the land at the date of the alleged trespass, but that one Apprey had physical possession of the land, and so the plaintiff s claim should have been dismissed.
It is correct that the plaintiff pleaded that Apprey was his tenant, and that Apprey’s timber business on the land had been obstructed by the acts the defendant complained of. But it is unfair to lay so much emphasis upon the pleadings in utter disregard of the evidence led on that issue. The pleadings must be taken together with the following evidence led by the plaintiff on the subject: “We brought this action because of defendant’s interference with Apprey’s timber rights.” That evidence, taken together with the pleadings, may show some ambiguity as to Apprey’s real position with respect to the land, but it certainly does not show that Apprey was in possession of the land in contradistinction from having a mere right to go upon the land to cut and take timber. To remove the ambiguity, the Court by consent of the parties admitted in evidence, and marked as Exhibit “CAI,” the agreement which was subsisting between the plaintiff s Stool and the said Apprey at the date of the trespass. The document is dated 17th May, 1947. That document is an agreement to sell standing trees on the land, not a demise of land to tenants. It does not show that Apprey was a tenant in exclusive
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possession; but it does show that he was a person with some interest in the land. .Apprey was a mere licensee, empowered to enter upon the land to cut and carry away timber growing on the land. The submission of learned Counsel on the second ground, therefore, is not supported by the evidence.
The submissions made to the Court on the ground of weight of evidence amount to no more than this, that the trial-Judge should have preferred the defendant’s evidence of tradition, and of original settlement on the land, to that of the plaintiff. The duty of choosing which witness to believe, and which not to believe, is that of a trial-Court, not of an Appeal Court. Where there is evidence which, if believed, supports the finding of fact of a trial-Court, a Court of Appeal is generally reluctant to interfere with that finding, because to do so would mean that the Court of Appeal was substituting itself for the trial-Court. In the present suit we are satisfied that the evidence proving the plaintiff s title and possession of the land is so overwhelming that our conclusions on the facts are not different from those reached by the trial-Judge.
DECISION
For these reasons we dismiss the appeal, with costs fixed at £60 2s. 10d.
