AQUAH vs. COFIE [1961]DLHC608

Date	1961-07-06
Suit No.
Citation No.	[1961]DLHC608

ADUMUA-BOSSMAN J

PLAINTIFF IN PERSON

AMOO-LAMPTEY FOR THE DEFENDANT

[1961]DLHC608
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 475

DATE: 6TH JULY, 1961.

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COUNSEL:&nbsp;&nbsp;

PLAINTIFF
IN PERSON.

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ADUMUA-BOSSMAN, J.

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&nbsp;

By his writ of summons the plaintiff claims a declaration of
title, recovery of possession, damages for trespass and an order of injunction
against the defendant in respect of a building plot situate at West Korle Gonno
described in detail in the said writ. By his statement of claim he disclosed
that he claims under and by virtue of an indenture of conveyance dated the 1st
December, 1948, made between Nii Tetteh Kpeshie, Sempe Manche as vendor and
himself, the plaintiff as purchaser; and that he entered into possession
immediately after the sale and fixed concrete cement pillars “to mark the area
of his occupation” and was occupying virtually undisturbed until some time in
November, 1958, when the defendant unlawfully entered upon the land and
commenced building operations thereon.

The defence disclosed in the statement of defence was that the
plot was granted and conveyed to the defendant by an indenture of conveyance
dated the 2nd January, 1956, made between Nii Kofi Akrashie II, James Town
Manche, as donor and the defendant as donee, and the defendant relies on the
grant contained in that indenture to justify his entry upon the plot in
dispute.

The plaintiff has filed a copy of topo sheet No. 219 (admitted as
exhibit Z) with the plot in dispute shown edged red or pink thereon. The
parties are agreed that the plot on the sheet is the one in dispute.

The straightforward issue which emerges from the pleadings is
whether the plot in dispute formed part of Sempe stool land so that good and
valid title was granted and conveyed to the plaintiff under his indenture of
conveyance (admitted as exhibit A), or whether on the contrary it formed part
of James Town (Alata) stool land so that it was rather the defendant who
acquired good and valid title thereto by virtue of his indenture of conveyance
(admitted as exhibit 1).

It is unnecessary to point out, as indeed was conceded by his
counsel, that the plaintiff suing in declaration of title, assumed the onus of
establishing the title which he claims by the strength of his case not by any
weakness in the case of the defendant. To borrow the classic words of Webber
C.J. (Sierra Leone) in Kodilinye v. Odu:

“The onus lies on the plaintiff to satisfy the Court that he is
entitled on the evidence brought by him to a declaration of title. The
plaintiff in this case must rely on the strength of his own case and not on the
weakness of the defendant’s case. If this onus is not discharged, the weakness
of the defendant’s case will not help him and the proper judgment is for the defendant.
Such a judgment decrees no title to the defendant, he not having sought the
declaration. So if the whole evidence in the case be conflicting and somewhat
confused, and there is little to choose between the rival traditional stories
the plaintiff fails in the decree he seeks and judgment must be entered for the
defendant.”1(1)

See also Nkwabisi &amp; Anor. v. Idigo &amp; Anor.2(2) in which
Lord Jenkins cites and adopts an earlier dictum of Webber J. (as he then was)
in the case of Ekpo v. Ita as follows:

The primary question therefore is whether or not this onus has
been adequately and/or sufficiently discharged. It falls firstly to examine the
evidence adduced by and on behalf of the said plaintiff.