NUNEKPEKU AND OTHERS v. AMETEPE [1966] GLR 249

Division: SUPREME COURT

Date: 21 MARCH 1966

Before: SARKODEE-ADOO C.J., MILLS-ODOI AND

BRUCE-LYLE JJ.S.C.

CASE REFERRED TO

Aworo v. Buor [1962] 2 G.L.R. 128, S.C. NATURE OF PROCEEDINGS APPEAL from the judgment of the High Court, Ho, delivered on 6 June 1961 in exercise of its jurisdiction as an appellate court from the Judgment of the South Anlo Local Court A in an action for recovery

[p.250] of [1966] GLR 249 of possession of land and damages for trespass. The facts are set out in the judgment.

COUNSEL

Ofori-Atta for the appellants.

Arthur for the respondent.

JUDGMENT OF MILLS-ODOI J.S.C.

Mills Odoi J.S.C. delivered the judgment of the court. This is an appeal from the judgment of the High Court, Ho, dated 6 June 1961 in exercise of its jurisdiction as an appellate court from the judgment of the South Anlo Local Court A. The High Court allowed the appeal, and set aside the judgment of the local court which had given judgment for the plaintiffs who are now the appellants before this court. It is the case for the plaintiffs that by a judgment of the Anlo Native Court A delivered on 24 August 1959, in an action brought by them against one Kwashie Bohlibo Akpalu, the first plaintiff was declared head, and the second and third plaintiffs were also declared principal members of the Agbeve family of Anloga and Woe and that it was in pursuance of that judgment and in their respective capacities that this action was brought against the defendant in the South Anlo Local Court A claiming:

“(a) recovery of possession of a portion of Bawe land;

(b) an order upon the defendant, his agents, servants and labourers to vacate any other portion of Agbeve family land known and called Bawe land, Aborme land and Aveglo land wrongfully and unlawfully occupied and/or cultivated by the defendant; and

(c) one hundred pounds (£G100) damages for wrongful occupation and possession of the said Agbeve family land.”

They contended that the defendant is not a member of the Agbeve family and therefore he is not entitled to occupy any portion of Agbeve lands which comprise Bawe land, Aborme land and Aveglo land. The case for the defendant on the other hand is that the land in dispute was cultivated by his grandfather, Agbeliti, who occupied it for many years; that upon Agbeliti’s death members of the deceased’s immediate family, namely, Kpoha and Kofi Ahli Agbeliti, remained in possession of the land, and that he (the defendant) is now in possession of the said land in his capacity as a member of the immediate family of Agbeliti. The defendant further contended that he is also a member of the Agbeve family and therefore entitled to occupy and cultivate Agbeve family lands.

The local court accepted the case of the plaintiffs and entered judgment for them in terms of their claim and awarded them £G50

[p.251] of [1966] GLR 249 damages. The defendant appealed from that judgment to the High Court at Ho. The High Court allowed the defendant’s appeal on two main grounds: (1) that the plaintiffs were not competent to bring this action against the defendant because they failed to discharge the onus which lay upon them to prove that they were entitled to recovery of possession of the land in dispute; and (2) that the plaintiffs’ action against the defendant was not maintainable.

Before us, the judgment of the High Court was attacked on the main ground that it is against the weight of evidence. In support of his ground on the question of weight of evidence counsel for the plaintiffs submitted that there is evidence which proved that the absolute ownership of the land in dispute is vested in the plaintiffs’ family. He contended that the plaintiffs are entitled to possession and therefore entitled to institute this action. He further contended that the plaintiffs discharged the onus which lay upon them to prove that they are entitled to recover possession of the land in dispute from the defendant. The question therefore is, is there or is there not proof that the decision of the High Court is right? Differently put, did the plaintiffs satisfy the court that they are entitled on the evidence brought by them to a recovery of possession of the land in dispute? In setting out to find an answer to this question, it is to be remembered first and foremost that in the instant case title to the land in dispute is not in fact put in issue. It is trite law that where from the general nature of a case involving land, it is apparent from the record that title is not in fact put in issue, a plaintiff need not prove title. Therefore, in an action the true nature of which is damages for trespass to land, or for recovery of possession of land, it is sufficient for the plaintiff to establish possession. It is only where there is specific or general denial of his title that a plaintiff cannot succeed without proving his title: see Aworo v. Buor.1 An action for recovery of possession is a wrong against possession, and therefore the main fact which a plaintiff must prove in order to succeed is possession. But where, as in the instant case, a defendant pleads possession then it is incumbent upon the plaintiff to prove that he was in possession at the time the defendant entered upon the land and wrongfully dispossessed him of it.

It seems plain therefore that in order to succeed in their claim for recovery of possession in the instant case the plaintiffs must prove that the Agbeve family were in lawful possession of the land in dispute and that the entry thereon by the defendant constituted trespass. Bearing this in mind we shall therefore proceed to an

[p.252] of [1966] GLR 249 examination of the plaintiffs’ case. Upon a critical examination of the evidence adduced by the second plaintiff on behalf of all of them and by their witnesses, it will be found that the allegation which is the foundation of the case, namely, that they are entitled to recovery of possession, was not only unproved and unsubstantiated by the evidence of the second plaintiff, but was decisively discredited by the evidence of the witnesses. The second plaintiff’s evidence revealed that he had never been in possession of any portion of the land in dispute; and he was unable to prove that the other plaintiffs or the Agbeve family or both were in possession of the land at the time the defendant and his predecessors entered thereon and started to cultivate it.

The defendant having taken note of the weakness of the plaintiffs’ case, in duo course during his cross-examination o f the second plaintiff, asked him the questions and received the answers hereunder: Q. Have you a cultivated portion on the land?

A. No.

Q. Are you a descendant in the female line of Agbeve?

A. Female descendants, that is why I know how to act.

Q. How many years now I am on the Agbeve family land?

A. From your early age.” It seems unnecessary to point out what a grave contradiction of the plaintiffs’ case this evidence of the second plaintiff undoubtedly was. However, it would not be superfluous to say that from the witness’s own narrative it would seem that the defendant, and not the plaintiffs, was in possession of Agbeve land, which includes the land in dispute, from the defendant’s early age.

A second witness, Agbedzeke Abusa, was called and lis evidence material to this issue contains the following passage:

“My father has a cultivated portion in the Bawe land. He died 22 years ago. I succeeded him to the land. After that a case arose about it. That is I cleared the place, carried sand on to it and turned it into onion farm beds to plant onions on it. The defendant sued me for cultivating his grandfather’s, Agbeliti’s land. The case was not heard, as the plaintiffs sent for the withdrawal of the case to be heard at home. When the case was brought home for settlement, Kwasi Bohlibo came to say they are also members of the Woe family or branch and will have the case home to decide between us. The first plaintiff agreed. There it was decided that the defendant has no right to sue in the name of his grandfather Agbeliti to claim what is for my father Abusa. They stated his uncle at Gbadagli must come before the matter is heard. That is all. I left for Abidjan three [p.253] of [1966] GLR 249 years after my return, I saw the defendant cultivating it. I asked who gave the defendant the farm, he said Kwesi Bohlibo Akpalu. I had wanted to take steps when the actual case started. Six years now the defendant is on that land. He did not render account to me.”

It is plain the plaintiffs’ case was not in any way advanced by the evidence of the second witness. This evidence however was in substantial conflict with, and completely destroyed, the claim of the plaintiffs. A third and last witness was called who disclosed that he was a member of the Agbeve family through the female line, and testified that the defendant went on the land in dispute about eight years prior to the date when this action was instituted; that when the defendant proceeded to cultivate it a case arose between him and Agbedzeke Abusa, the second witness for the plaintiffs. Continuing his evidence-in-chief this witness stated as follows:

“I know a case between the defendant and Agbedzeke about Abusa’s farm. The case came to this court, then to the head of Agbeve family and later to Woe Agbeve family. It was withdrawn by Kwesi Bohlibo to the house.

We did not finally decide the case, the action was suspended until the uncle Kofi Ahli should come. I was present, also Kudzodzi and Denu.

Kwesi Bohlibo later gave that farm to the defendant without our knowledge. I questioned his action for him alone to give the firm to the defendant. He stood and picked quarrel with me.

The farm is bounded with Akpalu on the north, now in my possession south with Denu Kese, cast with street, and west with Tsigui but for Akpalu. The defendant went on the land about eight years now. He cultivated it for his own use. In that case the defendant stated the farm is for his grandfather Agbeliti. Agbedzeke stated the farm is for his father Abusa.”

Like the previous witnesses, the evidence of the third witness in so far as this issue is concerned, is full of sound and fury.

It is abundantly clear from the foregoing detailed examination of the evidence of the plaintiffs, that the allegation that they are entitled to recovery of possession of the land in dispute was not proved, and that the evidence of their witnesses discredited it. In our opinion the conclusion arrived at by the learned judge of the High Court that the plaintiffs failed to discharge the onus of proof which lay upon them is amply supported by the evidence. [p.254] of [1966] GLR 249 It seems plain from the record that the learned judge of the High Court carefully analysed the relevant issues raised before the local court and came to the conclusion which is warranted by the evidence that the plaintiffs’ action against the defendant was not maintainable. The judgment should therefore not be disturbed.

In the result, we would dismiss the appeal.

DECISION

Appeal dismissed.

G. N.