Trespass to land in Ghana case law.

It must be pointed out, however, that actual possession is a necessary prerequisite upon which to ground an action for trespass where there is no title in the plaintiff, because where the plaintiff relies upon a mere right of property without actual possession the law permits a defendant to rebut an entitlement by pleading a jus tertii.

SUMMEY v. YOHUNO AND OTHERS [1962] 1 GLR 160 [1962] SLR (SC) 8 · Supreme Court · 1962 · CRABBE JSC

“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.

NKYI XI v. KUMAH (BEDU SUBST.) [1959] GLR 281 [1959] SLR (CA) 25 · Court of Appeal · 1959 · VAN LARE JA

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.

SUMMEY v. YOHUNO AND OTHERS [1962] 1 GLR 160 [1962] SLR (SC) 8 · Supreme Court · 1962 · CRABBE JSC

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).

NKYI XI v. KUMAH (BEDU SUBST.) [1959] GLR 281 [1959] SLR (CA) 25 · Court of Appeal · 1959 · VAN LARE JA

As the respondent alleged trespass outside the area edged green, he could not rely on res judicata. He should have led evidence of elective occupation and possession of the area before the trespass was committed.

NII AKRAMAH II AND OTHERS v. ROBERTSON (CONSOLIDATED) [1975] 2 GLR 301 [1975] SLR (CA) 23 · Court of Appeal · 1975 · AZU CRABBE CJ

It would be a monstrous principle that a plaintiff in continued and undisturbed possession of land can be ousted by a defendant who merely sets up a fictitious and bogus title to the same land; it would, indeed, set at nought the legal maxim melior est conditio possidentis ubi neuter ius habet or the time-honoured phrase possession is nine points of the law”. In my opinion the real test in each case in an action such as the present one is whether a bona fide issue of title was raised or could genuinely be raised by the defendants at the trial

SUMMEY v. YOHUNO AND OTHERS [1962] 1 GLR 160 [1962] SLR (SC) 8 · Supreme Court · 1962 · CRABBE JSC

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.

NKYI XI v. KUMAH (BEDU SUBST.) [1959] GLR 281 [1959] SLR (CA) 25 · Court of Appeal · 1959 · VAN LARE JA