Burden and standard of proof in a claim for declaration of title
The question of allocation of burden of proof is one of law. In many types of civil proceedings, case law or statute has prescription for the assumption of the burdens. One such litigation is an action for declaration of title to land. In such actions, the law prescribes that a claimant, be it Plaintiff or Defendant must prove title. As a general rule, not an inflexible one, a claimant does so on the strength of his own case and the proof is on a balance of probabilities.
What has to be proved when a party seeks a declaration of title to land has been stated in several decisions of this court. A party has to lead traditional evidence of acquisition, especially where there are conflicting versions of traditional evidence as to the ownership of a disputed land, such evidence needs to be supported by with proven recent acts of possession in support of the claim.
Declaration of ownership in favour of a defendant who has not counter-claimed
Unfortunately the trial-Court did not enter judgment for the defendants simply, but decreed that the property in dispute belonged to the defendants. Since they had not counter-claimed, this part of the judgment is improper and must be expunged.
We will hold that in the absence of the evidence of the surveyor who ‘rediscovered’ the Plaintiff’s ‘missing’ land and given all the circumstances of the case, including the varied descriptions the Plaintiff failed to prove the identity of her land. A key legal requirement of proof of title to warrant a declaration of title to land by a Court of law was not met.
Effect of a judgment in favour of the owner on a person in possession under an earlier title
The judgement in favour of the Nah Korley family in the Ga Gbese’s Court does not estop the respondent in possession by some prior alleged title. But this is not the equivalent of a setting aside of that judgment. The judgment stands in proof of the right to ownership of the appellant vested in her by those in whose favour it was given, and can be defeated only by proof given on behalf of the respondents that they have some superior valid title. In this on all the evidence the respondents must fail. No title said to derive from grants by Fiscian can succeed in defeating a title derived from the Nah Korley family, and the learned Judge, we think, erred when he held that the appellant’s title was invalid.
Effect of uncertain identity on the documents of title
The substantial measure of uncertainty about the identity of the Plaintiff’s land was to erode the probative value of the documents she tendered to prove her title. Put in another way, by the confusion generated by the Plaintiff’s own showing, over the identity of her land, there is disconnect between the receipts showing the payment of the rent to the Administrator of Stool Lands and her search results on one hand, and the land the Defendant occupies on the other.
Entitlement to a declaration of title and possession
We are of opinion that the real question posed by the facts and pleadings in the Land Court was whether the plaintiff there, having a valid title, was by the conduct of her predecessors, and/or herself, estopped from claiming the discretionary relief of a declaration of title. The learned Judge seemed so to hold, but went further when he declared the appellant’s title invalid. The appellant’s situation is that she is entitled to declaration and to possession unless either a better title can be shown by those in possession, or she is estopped from asserting her title as owner to possession as against them.
In assessing rival, traditional evidence, the court… must rather examine the events and acts within living memory, established by the evidence, paying particular attention to undisputed acts of ownership, and possession on record; and then see which version of the traditional evidence, whether coherent or incoherent is rendered more probable by the established acts or events. The party whose traditional evidence such established act, or event supports or is more probable should succeed, unless there exists on the record of proceedings a very cogent reason to the contrary.
It is urged and in my view, rightly, that a plaintiff who does not know his property, has not attained the threshold from which he can launch a claim to property let alone succeed thereon. He certainly should not be aided by a court to wrest title from those who claim the said property as a gift and support their claim with evidence including possession and admissions even from the plaintiff.
Now the plaintiff pleaded a gift of the land made to her by customary law five years before the dispute arose. To establish a gift by customary law, the plaintiff should prove, among other things: (i) the identity of the land satisfactorily, by giving the correct description thereof; (ii) that the gift was made in the presence of witnesses; and (iii) that owners of adjoining lands who were present at the inspection agreed on the boundaries demarcated or shown by the donor or grantor. We cite with approval the following statement of the law as to the essentials of a grant of land by customary law as appears in the Land Court judgment in Asare v. Teing1 which is as follows: “The essentials of a valid gift made in accordance with customary law are: publicity, acceptance, and placing the donee in possession. The way to give publicity to a gift of land is to make the gift in the presence of witnesses, particularly members of the family of the donor who would succeed to the property upon the donor’s death intestate; and the acceptance must be evidenced by the presentation of ‘drink’ or some small amount of money to the donor, part of which is served to or shared among the witnesses to the transaction. Possession is given by taking the donee to the land, owners of the adjoining lands having been given previous information to stand on their boundaries and the donee is taken round the said boundaries.”
Certainly, the burden of proof of identity of the land could not be discharged by a lay opinion. The expert had to come into the box to demonstrate how his conclusion was reached and avail himself for cross-examination if found necessary. It occurs to us that the statutory condition to call for the adduction of evidence pursuant to Section 122 of the Evidence Act (NRCD 323) was triggered. The provision states: “If the subject of the testimony is sufficiently beyond common experience that the opinion or inference of an expert will assist the court or tribunal of fact in understanding evidence in the action or in determining any issue, a witness may give testimony in the form of an opinion on inference concerning any subject on which the witness is qualified to give expert testimony.
The identity of the land in dispute need not assume mathematical precision. Indeed, in the case of Jass Co Ltd & Anor vrs Appau and Anor [2009] SCGLR 265 at 275 it was held by this Court that proof of identity of land need not be made with mathematical precision.
