For exercise of any acts of ownership to sustain occupation and possession of land, they must be shown to be open, effective, undisturbed, and unchallenged; a casual or solitary act is insufficient; and an act which met with resistance or opposition has no evidential value to sustain occupation. One of the matters the plaintiff alleged to show use and occupation of the area in dispute was an attempt she made to allow her brother to construct a garage on the area, as preparatory to which her said brother drove his vehicle across the land. The evidence shows that the second defendant reacted very promptly to this solitary attempt by causing his father to construct the fence which was the cause of the plaintiff’s action. This isolated act of driving a vehicle over the land, which was immediately resisted and stopped, is not of the nature of user of land which in law may be regarded as evidence of possession and occupation of land as by an owner.
Onus of proving a right to possession once the owner proves title
The first respondent is in possession of the land in dispute under title alleged by the second respondent. The appellant, as the learned Judge of the Land Court in our view rightly held, derived title from the Korley family who had “established title to a larger area of land which included the whole of the land claimed” by the appellant. It seems to us to follow that the appellant proved that she was the true owner, and that following upon such proof the onus of proof of their right to possession shifted to the respondents (see Oloto v. Administrator General etc 12., W.A.C.A.76).
This is a case where neither the plaintiff nor the defendants can establish title; but the law protects a plaintiff who is in actual possession against a defendant also without title or a better right to possession trying to interfere. Trespass to land is an entry upon or any direct act of interference with actual possession of land. Possession has long been held as prima facie evidence of the right to possession, and it being good against all the world except the true owner, it is in law sufficient to maintain an action for trespass against another person entering or interfering with that right to possession unless that other person can show a better right or authority under a better title.
But as between plaintiff and defendant, we are clearly of the opinion that the party who first obtained possession of the land can maintain an action for recovery of possession against the other, who wilfully broke down the former occupant’s pillars in order to occupy the land.
While I must admit that the defendant’s legal interest in the land may be defective, it is nevertheless not necessary for me to go into the details, as she is a defendant in possession and does not counterclaim any right of title or interest against the plaintiff, on whom rather the onus lies to establish his title in support of his claim to recovery of possession and for mesne profits”. With respect, we are unable to agree with this view of the case, for if this were to be accepted as the principle of law, then a person who is in possession of a piece of land could be dispossessed by another through the latter’s merely entering upon the land forcibly, and then saying to the original occupant, “I am now in possession, therefore you must prove your title.” Clearly as against all the world (except the Government) the plaintiff, who had been in possession since 1939, could maintain an action for recovery of possession, and evict the defendant as an intruder.
The simple question is whether this action is maintainable. I think that it clearly is. At the date of the first defendant’s entry the plaintiff had been in possession for three years, even if it is to be assumed that she did not enter into possession until the deed of 1945. It is true that at any time during that period the Chief Secretary, in whom was vested title to the land, could have ejected her but otherwise as against all the world the plaintiff was entitled to maintain her possession, and if dispossessed to evict the intruder. This principle has been long established, but perhaps I may cite the words of Cockburn C.J. in Asher v. Whitlock (1865) L.R. 1 Q.B.1.), “I take it as clearly established that possession is good against all the world except the person who can show a good title; and it would be mischievous to change this established doctrine’, and again at p.6...'if the lord has acquiesced and does not interfere, can it be at the mere will of any stranger to disturb the person in possession?”
The presumption under Section 48(2) thus: “A person who exercises acts of ownership over property is presumed to be the owner of it” avails him and in the absence of a rebuttal evidence from the Plaintiff, the law recognizes his ownership in the face of which the Plaintiff’s collapsed case of title must fly.
