WUTA-OFEI v. DANQUAH [1961] GLR 487

DIVISION: JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

DATE: 24TH JULY, 1961

BEFORE: LORD TUCKER, LORD HODSON AND LORD GUEST

CASES REFERRED TO

(1) Brown v. Notley (1848) 3 Ex. 219; 154 E.R. 823

(2) Bristow v. Cormican (1878) 3 App. Cas. 641

ALSO REFERRED TO IN ARGUMENT

Moore v. Tayee (1934) 2 W.A.C.A. 43

Sundar v. Parbati (1889) L.R. 16 I.A. 186; 5 T.L.R. 683, P.C. Doedem Watt v. Morris (1835) 2 Bing N.C. 189

Emmerson v. Maddison [1906] A.C. 569; 22 T.L.R. 748, P.C. Asher v. Whitlock (1865) L.R. 1. Q.B. 1.

NATURE OF PROCEEDINGS

APPEAL (No. 25 of 1960) from an order of the West African Court of Appeal (Coussey, P., Korsah, C.J. and Verity, Ag. J.A.) made on the 29th November, 1956 (reported sub nom. Danquah v. Wuta-Ofei and Bonne at (1956) 2 W.A.L.R. 185) on an appeal from a decision of van Lare, J. in [p.490] of [1961] GLR 487 the Land Court, Eastern Judicial Division, granting a declaration of title to land to the plaintiff (respondent herein) recovery of possession, injunction and mesne profits. The West African Court of Appeal substantially affirmed the decision of van Lare, but held the plaintiff was not entitled to a declaration of title. The facts, taken from the judgment of the Privy Council are set out in the headnote.

COUNSEL

Gilbert Dold and Dick Taverne for the appellant.

J. G. Le Quesne for the respondent.

JUDGMENT OF LORD GUEST

Lord Guest delivered the judgment of their Lordships. [After stating the facts as set out in the headnote he continued.:] In order to maintain an action for trespass the respondent must have been in possession at the date of the appellant’s entry on the land in 1948. This is very largely a question of fact upon which the Board do not have the benefit of much evidence. Nor do they have the assistance of the courts below. The reason is that at the stage when evidence was being led and the appeal being heard the parties and the court were concentrating on the question of title and the question of possession was not closely examined. The appellant maintained that there was not sufficient evidence to establish that the respondent was in possession at the critical period. It was argued, first, that assuming she was in possession before the 26th October, 1940, the date of the Ordinance, her possession was determined either under section 2(1) or section 5(4) of the Ordinance. So far as section 2(1) is concerned, this no doubt determined her right to possession, but did not affect the factual aspect of possession. In other words, if the respondent was in actual possession of the land as at the 26th October, 1940, the section did not change that state of facts. So far as section 5(4) is concerned, their Lordships adopt the reasoning of Verity, Ag. J.A. of the West African Court of Appeal when he held that the determination of rights under that section only affected rights which might entitle a person to claim for compensation against the Chief Secretary. It is accordingly irrelevant to consider this subsection in an issue between competing claimants to possession of land. Their Lordships now turn to the central issue in the case whether the respondent has proved that she was in possession in 1948. The appellant agued that the respondent would require to have taken some active step to re-assert her possession after 1940. This was said to follow from the decision in Brown v. Notley1(9) where Parke, B. said:

“The question is, whether, after his interest ceased, He could be presumed to be in possession. Now, if he continued in possession after that time, he would be a wrongdoer; and therefore he must be presumed not to have continued in possession, unless an intention to the contrary be clearly shewn. If he had kept his cattle on the close, or the gate locked with a key which he kept, the case might have been different. But though there was nothing to indicate the giving up of possession, there was no evidence of an intention to remain after the term ended, so that the possession was in a neutral state. He must, therefore, be considered to have been out of possession; if not, the consequence would be, that he would be liable to an action of trespass, or to an action on the implied contract to deliver [p.491] of [1961] GLR 487 up possession at the end of the term. Unless some act be done indicating an intention to the contrary, possession ceases as soon as the interest [ceases]”2(10)

Their Lordships do not consider that in order to establish possession it is necessary for a claimant to take some active step in relation to the land such as enclosing the land or cultivating it. The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which is not being cultivated there is little which can be done on the land to indicate possession. Moreover, the possession which the respondent seeks to maintain is against the appellant who never had any title to the land. In these circumstances the slightest amount of possession would be sufficient. In Bristow v. Cormican3(11) Lord Hatherley said:

“There can be no doubt whatever that mere possession is sufficient, against a person invading that possession without himself having any title whatever,—as a mere stranger; that is to say, it is sufficient as against a wrongdoer. The slightest amount of possession would be sufficient to entitle the person who is so in possession, or claims under those who have been or are in such possession, to recover as against a mere trespasser.” There is no evidence that the respondent ever abandoned her possession which in virtue of her grant in 1939 she obtained. Therefore, if there is evidence after 1940 of an intention to retain possession, that would in their Lordships’ view be sufficient to entitle her to maintain an action for trespass. It was said that her conduct was neutral. Their Lordships do not agree. It is true there is no evidence when the pillars were erected. But if they were erected after 1940, that would be a definite act indicating possession. Even if erected before 1940, their continuance is some evidence of the respondent’s state of mind as affecting possession. In the indenture of 1945, which was registered, the respondent declared that she had entered into possession of the land and been in possession ever since. The only reasonable inference from her evidence is that up to 1948 the date of the appellant’s entry on the land she deputed her mother to look after the plot and that she was keeping watch on the land to see that no one intruded. At any rate, when she did notice the appellant’s blocks on the land she took prompt action to warn the appellant off the land. The evidence is exiguous, but in their Lordships’ opinion it is sufficient to satisfy the test and is adequate proof of the respondent’s intention to continue her possession after 1940 and establishes that when the appellant entered the land in 1948, she was in possession. She is therefore entitled to maintain an action for trespass. Their Lordships consider that the order of the West African Court of Appeal is well founded, but for different reasons from those advanced by Verity, Ag. J.A

DECISION

Their Lordships will therefore report to the President of Ghana as their opinion that the appeal ought to be dismissed and the appellant ought to pay the respondent’s costs of the appeal.