ANYIRA II vs. CONSTRUCTION COIGNENT TOGO AND OTHERS [1960]DLHC23

Date	1960-05-12
Suit No.
Citation No.	[1960]DLHC23

OLLENNU J.

PUPLAMPU FOR PLAINTIFF.

ACQUAH FOR DEFENDANTS.

NO APPEARANCE BY OR FOR CO-DEFENDANT.

[1960]DLHC23
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													<main id="main" class="content" style="min-height: 60rem" >ANYIRA II <o:p></o:p>vs. <o:p></o:p>CONSTRUCTION COIGNENT TOGO AND OTHERS<o:p></o:p>&nbsp;[HIGH
COURT ACCRA]<o:p></o:p>[1960] GLR 121<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
12TH MAY, 1960..<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">

PUPLAMPU 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>(His lordship
referred to the pleadings and continued):<o:p></o:p>The
action before the court is one for trespass, a wrong to possession of land. The
only person entitled in law to a relief for trespass is the person in
possession of the land at the date of the trespass or the person in whom is
vested the right to immediate possession of the land. Now it is admitted by the
defendants in their statement of defence and the letter exhibit “I”, that the
plaintiff and his family were in possession and occupation of the land. It is
also admitted by the co-defendant, as shown in his statement of defence, that
the plaintiff and members of this family are the persons in possession and
occupation of the land. Again it is admitted by the defendants as well as by
the co-defendants that the defendants entered upon the land without the
permission of the plaintiff who is in possession of the land. Therefore even
upon the pleadings the plaintiff is entitled to the relief he seeks and the
only matter which becomes outstanding is, the quantum of damages.<o:p></o:p><o:p>&nbsp;</o:p>Now as
between the plaintiff and the co-defendant, the co-defendant raised the issue
of his title as allodial owner of the land alleging that the plaintiff and
members of his family are his licensees vested with determinable interests only
in the land. The onus of establishing as between him who is not in possession
of the land, and the plaintiff and members of the family who are in possession
of the land, that he, the co-defendant, is the person in possession whom title
to or freehold interest in the land is vested, is upon the co-defendant. But
even if the co-defendant were to succeed in establishing that the freehold of
the land is vested in him, and that the plaintiff and members of his family are
his licensees having only a determinable interest, he still cannot prevent the
plaintiff from pursuing his relief against an invader of his possession and
occupation, and the plaintiff would be entitled all the same to damages for
trespass against any person who disturbs his said possession and occupation
without authority.<o:p></o:p><o:p>&nbsp;</o:p>The case
came before the court on the 6th of May, 1960, when all the parties were either
present or represented and it was adjourned by consent to yesterday, 11th May,
1960, for trial. The co-defendant did not appear and was not represented at the
trial. The plaintiff and a witness called by him gave evidence which
established that the plaintiff is the head of his family and that he and
members of his family are in possession. That evidence I would say is
absolutely redundant in view of the admissions already made by defendants and
co-defendant. That evidence went further to show that the land was acquired by
the plaintiff’s ancestors many generations ago from the people of Aperede, and
that the family have been in continuous possession and occupation since the
date of its acquisition. That evidence given by the plaintiff stands
unchallenged and I am bound to accept it.<o:p></o:p>(His
lordship then said that he accepted the evidence as to the defendants’ entry on
the land and the destruction of a number of palm and mango trees and foodstuff
farms and continued).<o:p></o:p><o:p>&nbsp;</o:p>As stated
earlier, the onus of proving that the freehold of the land is vested in the
co-defendant and not in the plaintiff is upon the co-defendant. The
co-defendant has not appeared to lead evidence of his said title to the land
and the evidence of title led by the plaintiff, as I have already pointed out,
had not been challenged in any way. I am bound, therefore, to hold that as
between plaintiff and the co-defendant, the plaintiff is the owner of the fee
simple interest in the land trespassed upon by the defendants, and the only
person entitled to relief against the trespassers.<o:p></o:p>