OPPONG KOFI AND ANOTHER vs. FOFIE [1964]DLSC1938

Date	1964-02-29
Suit No.
Citation No.	[1964]DLSC1938

ADUMUA-BOSSMAN JSC

MILLS-ODOI JSC

OLLENNU J.S.C.

N. Y. B. ADADE FOR THE APPELLANTS.

PREMPEH FOR THE RESPONDENT

[1964]DLSC1938
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													<main id="main" class="content" style="min-height: 60rem" >OPPONG KOFI AND ANOTHER <o:p></o:p>vs. <o:p></o:p>FOFIE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 174<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:
29 FEBRUARY 1964.<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">

N. Y. B. ADADE FOR THE APPELLANTS.<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">

ADUMUA-BOSSMAN, MILLS-ODOI AND OLLENNU JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADUMUA-BOSSMAN J.S.C.<o:p></o:p>This
appeal is against a judgment dated 11 May 1962 of the High Court, Sunyani,
whereby the respondent’s claim was upheld, the substance of which was that two
cocoa farms described in the writ and statement of claim were the properties of
the respondent’s late uncle, Oppong Yaw, which, on the latter’s death, devolved
upon the respondent as successor to hold as family properties; and that the
sale by public auction of the said farms by the second appellant, a licensed
auctioneer, at the instance of the first appellant, a moneylender, was wrongful
and illegal.<o:p></o:p><o:p>&nbsp;</o:p>In form
the writ of summons, as amended, was a claim for (1) a declaration that the two
cocoa farms are the respondent’s family properties; (2) an order for
possession; and (3) £G800 damages for the unlawful sale of the said farms. The
action being, therefore, for recovery of possession of land, the observations
of their lordships Blackburn and FitzGerald in the House of Lords’ case of
Danford v. McAnulty1 become peculiarly and appropriately applicable to it. Lord
Blackburn stated,2<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“For a
long time an action for the recovery of land at law was brought by Ejectment,
and it was so established as to be trite law ... a common-place expression of
law ... that in ejectment, where a person is in possession those who sought to
turn him out were to recover upon the strength of their own title”; and Lord
FitzGerald observed,3<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
plaintiff could succeed only on the strength of his own title and could not
found his claim on the weakness of the defendant’s, for the law respected
possession and deemed it lawful until some claimant established in proof that
he had a title to the land and a right of entry to oust the defendant. The
party who sought to change the possession should first shew a legal title to it
in himself.”<o:p></o:p><o:p>&nbsp;</o:p>Furthermore,
as established by the principle of pleading exemplified by that case, and
expressly provided by the Supreme [High] Court (Civil Procedure) Rules, Order
21, r. 21,4 the first and principal appellant in the instant case who is in
possession and from whom possession is sought, did not need to “plead his title
... but it shall be sufficient to state by way of defence that he is so in
possession, or does not admit the allegations of fact contained in the
plaintiff’s statement of claim”; so that the respondent was thereby put to
strict proof of his alleged title.<o:p></o:p><o:p>&nbsp;</o:p>The
principal issue which seems to emerge for determination in the appeal,
therefore, is whether the respondent sufficiently and satisfactorily proved the
title which he claimed, bearing in mind that the standard of proof imposed by
the law upon him is that of “demonstrating beyond reasonable doubt that the
title to the disputed area [of cocoa farms] ... is his.” (See per Lord Alness
in Kponuglo v. Kodadja.)5<o:p></o:p><o:p>&nbsp;</o:p>From the
evidence of the respondent and his three witnesses, the case set-up was that
the respondent’s late uncle acquired the two farms in dispute by cultivation or
farming on Abisim stool land. As will be seen later by reference to the
statement of claim and the respondent’s evidence, the alleged fact of
cultivation or farming was not disclosed in the said statement of claim and the
respondent’s evidence, but it came out in the evidence of the respondent’s
witnesses. The further case put forward was that the cultivation or farming by
the respondent’s uncle started fifteen years ago, after which he died twelve
years ago, reckoning from the date of trial of the instant case in April 1962,
whereupon the farms devolved upon the respondent as successor to hold as family
properties in accordance with customary law.<o:p></o:p>