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NANA DARKU FREMPONG II, OHENE OF TARKWA ACHIASE
V.
NANA OWUDU ASEKU BREMPONG II AND ANOTHER
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
11TH DAY OF JANUARY, 1952
W.A.C.A. NO. 39/51
2PLR/1952/64 (WACA)
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OTHER CITATION(S)
2PLR/1952/64 (WACA)
(1952) XIV WACA PP. 13-14
LEX (1952) – XIV WACA 13 – 14
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.
MANYO-PLANGE, J.
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BETWEEN:
NANA DARKU “FREMPONG II, OHENE OF TARKWA ACHIASE IN THE AKIM ABUAKWA STATE FOR HIMSELF AND ON BEHALF OF THE STOOL OF TARKWA ACHIASI AND PEOPLE – Appellants
AND
1. NANA OWUDU ASEKU BREMPONG II, ALIAS ALBERT ROBERTSON MICAH KORSAH, AND
2. NANA AGYEIKU AFARE, OHENE OF APERADE
FOR THEMSELVES AND ON BEHALF OF THEIR RESPECTIVE STOOLS – Respondents
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ORIGINATING COURT(S)
Appeal from the Supreme Court by the defendant
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REPRESENTATION
C. F. Hayfron-Bnajamiti, with J. B. Danquah — for Appellants
J. Bannerman-Hyde — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim for declaration of title to certain land – Evidence of “traditional history” deemed on the whole unsatisfactory but on balance favourable to the defendant – Proper order for court to make where defendant did not counter-claim for declaration of title
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PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE:- Evidence in the case unsatisfactory – Onus of proof on plaintiff
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CASE SUMMARY
In the Court below the respondents as plaintiffs claimed a declaration of title to certain land; there was evidence of “traditional history”, on the whole unsatisfactory but on balance favourable to the defendant; but the trial Judge thought he had been somnolent in that he had never sought a declaration of title whilst the plaintiff had been vigilant in that they had brought two cases and therefore were entitled to the declaration they sought.
The defendant appealed on the ground of misdirection in the trial Judge: he ought to have asked himself whether the plaintiffs had discharged the duty they had of proving their claim before they could have that declaration.
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DECISION BY THE WEST AFRICANCOURT OF APPEAL
Held (allowing the appeal and setting aside the Judgment) that:
Where the evidence is unsatisfactory the judgment should be in defendant’s favour on the ground that it is the plaintiff who seeks relief but has failed to prove that he is entitled to what he claims.
Cases cited:-
(1) Nchirahene Kojo Addo v. Buoyemhene Kwadwo,Wusu, 4 W.A.C.A. 96.
(2) Kodilinye v. Odu, 2 W.A.C.A. 336.
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MAIN JUDGMENT
The following judgment was delivered:
FOSTER-SUTTON, P.
The plaintiffs-respondents in this case claimed for a “Declaration of Title” to land which is commonly known as Amanfupong and Aperade Stool land, situated in the Western Akim District, Cape Coast, and £500 damages for mesne profits.
In the Court below a considerable amount of evidence, usually described as “traditional history”, was led by both parties, and although the learned trial Judge says in his judgment “I would not care to have to decide a case on such evidence”, I think it is clear that he regarded it, on balance, as in favour of the defendants-appellants. He also found as a fact that both parties are in actual possession of parts of the area of land in dispute, and that the appellants have made grants of land in the area to various concerns and that only one of such grants has been contested by the respondents.
Having arrived at these conclusions the learned trial Judge went on to say:- “The Court of Appeal for Western Africa have in many cases laid it down that a person with a right or interest in land must act timeously; I refer especially to the case of Nchirahene Kojo Addo v. Buoyemhene Kwadwo Wusu in 4 W.A.C.A. page 96 and the case therein referred to at page 100.
I intend to approach this case, as I have done in other similar cases, from this very equitable position of the law. Litigants who let others occupy and improve their land and take no account until the value of the produce of the land has risen, as have the prices of cocoa and timber in this Colony, can expect no sympathy from this Court.
“In this case both parties have slept on their rights and I have to consider who is the worse offender.”
He concluded his judgment by saying:-
“By reason of the two cases filed by the plaintiffs in respect of this land, and having regard to the fact that the defendants have never sought a declaration of title, I am satisfied that of the two parties it is the plaintiffs only who can be said to have acted timeously in asserting their rights, this being so the plaintiffs are entitled to the declaration sought and I so order.”
And he awarded the respondents a nominal sum of £5 in respect of their claim for mesne profits.
On behalf of the appellants Mr. Bossman argued that the learned trial Judge misdirected himself as to the real issue in the case, that the respondents were the parties who were claiming a declaration of title to the land in dispute and that the onus of proof was, therefore, upon them. He submitted that the question which ought to have been asked was” the burden of proving their title to the land is upon the plaintiffs, have they in fact. discharged it?”, and that the principles enunciated by Webber, C.J., in the case of Kodilinye v. Odu (2), are applicable to the case before us, and not those laid down in the case of Addo v. Wusu (1).
The relevant portion of the former judgment is to be found at pages 337 and 338, and reads as follows:-
“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.”
In applying the principles laid down in the case of Addo v. Wusu the trial Judge appears to have lost to sight the fact that the respondents were the persons seeking relief at the hands of the Court, not the appellants. The former were asking for a Declaration of Title, and the onus of proving that they were entitled to such relief was clearly upon them. In order to succeed they had to prove that they were entitled to be declared the owners of the land in question. I agree with the submission made by Counsel for the appellants that the proper test to apply in a case such as this is that laid down in the judgment of Webber, C.J ., to which I have already referred. Applying that test I am of the opinion that the respondents signally failed to discharge the onus which was upon them. That being so it follows that, in my view, this appeal should be allowed and the judgment of the Court below be set aside. ‘I would fix the costs of the appeal at £42 7s. 6d.
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COUSSEY, J.
I concur.
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MANYO-PLANGE, J.
I concur.
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Appeal allowed: Judgment set aside.
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