AMAH vs. KAIFIO [1959]DLHC1985

Date	1959-01-22
Suit No.
Citation No.	[1959]DLHC1985

OLLENNU J.

BENTSI-ENCHILL FOR PLAINTIFF.

AMOO LAMPTEY FOR DEFENDANT.

[1959]DLHC1985
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">AMAH <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">&nbsp;KAIFIO<o:p></o:p>&nbsp;[HIGH COURT (LANDS DIVISION), ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1959] GLR 23<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
22ND JANUARY, 1959..<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

BENTSI-ENCHILL
FOR PLAINTIFF.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.<o:p></o:p>On the
question of the headship of the family, the evidence given by the plaintiff and
by his second witness (one Comfort Korkoi Otto) that he is the head of the
family was contradicted y his 4th witness. The latter said that the plaintiff
is the head of the family, but he also said later in his evidence-in-chief that
he and the plaintiff were appointed by the family only to collect rents from
the family property. The plaintiff was also contradicted by his 7th witness, an
old man, one Emmanuel Henry Amoo, who deposed in-chief that he is the present
head of the family, but has appointed the plaintiff to look after the family
property.<o:p></o:p><o:p>&nbsp;</o:p>Upon that
evidence the plaintiff failed to satisfy me that he is the present head of his
family. I am, however, satisfied upon the evidence that the plaintiff has the
authority of the family to take care of the family property, from which may be
implied authority of the family to litigate the family’s title to the property.<o:p></o:p><o:p>&nbsp;</o:p>Therefore,
upon the authority of Koran v. Dokyi and ors. (7 W.A.C.A. 78), as interpreted
by me in a judgment I delivered on the 29th November, 1958 in the case of
Cobblah v. Bannerman, I hold that the plaintiff is entitled to institute this
action for and on behalf of the family.<o:p></o:p><o:p>&nbsp;</o:p>I find
that the plaintiff has failed to prove that the defendant is, or has ever been,
his tenant. I accept the evidence of the defendant that she has occupied that
room for as long a time as she can remember, and has not at any time paid any
rents to the plaintiff (or to any member of his family) in respect of the room.<o:p></o:p>The only
issue left is the question to title; that is to say, Is the plaintiff the owner
of the property in dispute? Upon the pleadings, issue was joined on this.<o:p></o:p><o:p>&nbsp;</o:p>Learned
Counsel for the plaintiff submitted that by reason of the cross-examination of
the plaintiff by Counsel for the defendant, on the footing that the land was
granted by the plaintiff’s predecessor-in-title (the late R.Q. Ashley) to the
defendant’s grandmother (Madam Ashong), the onus rested upon the defendant to
prove the extent of the grant so made to her family. With this proposition I am
unable to agree.<o:p></o:p><o:p>&nbsp;</o:p>The
principle of law is that “the burden of proof rests upon the party who would
fail if no evidence at all, or no more evidence, as the case may be, were given
on either side - i.e. it rests, before evidence is gone into, upon the party
asserting the affirmative of the issue; and it rests, after evidence is gone
into, upon the party against whom the tribunal, at the time the question
arises, would give judgment if no further evidence were adduced” (Phipson on
Evidence, 7th ed. at p.31; a</main>