WUTA-OFEI vs. DANQUAH [1961]DLSC10241

Date	1961-07-24
Suit No.	G L R 487 – 491
Citation No.	[1961]DLSC10241

LORD TUCKER

LORD HODSON

LORD GUEST

GILBERT DOLD AND DICK TAVERNE FOR THE APPELLANT.

J. G. LE QUESNE FOR THE RESPONDENT.

[1961]DLSC10241
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													<main id="main" class="content" style="min-height: 60rem" >WUTA-OFEI<o:p></o:p>vs.<o:p></o:p>DANQUAH<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL:<o:p></o:p>GILBERT DOLD AND DICK TAVERNE FOR THE
APPELLANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

J. G. LE QUESNE FOR
THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

LORD TUCKER, LORD
HODSON AND LORD GUEST<o:p></o:p>

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;<o:p></o:p>LORD
GUEST<o:p></o:p>&nbsp;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.<o:p></o:p>&nbsp;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.<o:p></o:p>&nbsp;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 where Parke, B. said:<o:p></o:p>&nbsp;"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]
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<o:p></o:p>&nbsp;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 Lord Hatherley said:<o:p></o:p>&nbsp;"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."<o:p></o:p>&nbsp;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, th</main>