AMAH v. KAIFIO

JUDGMENT OF OLLENNU J.

On the question of the headship of the family, the evidence given by the plaintiff and by his second witness (one Comfort Korkoi Otto) that he is the head of the family was contradicted y his 4th witness. The latter said that the plaintiff is the head of the family, but he also said later in his evidence-in-chief that he and the plaintiff were appointed by the family only to collect rents from the family property. The plaintiff was also contradicted by his 7th witness, an old man, one Emmanuel Henry Amoo, who deposed in-chief that he is the present head of the family, but has appointed the plaintiff to look after the family property.

Upon that evidence the plaintiff failed to satisfy me that he is the present head of his family. I am, however, satisfied upon the evidence that the plaintiff has the authority of the family to take care of the family property, from which may be implied authority of the family to litigate the family’s title to the property.

Therefore, upon the authority of Koran v. Dokyi and ors. (7 W.A.C.A. 78), as interpreted by me in a judgment I delivered on the 29th November, 1958 in the case of Cobblah v. Bannerman, I hold that the plaintiff is entitled to institute this action for and on behalf of the family.

I find that the plaintiff has failed to prove that the defendant is, or has ever been, his tenant. I accept the evidence of the defendant that she has occupied that room for as long a time as she can remember, and has not at any time paid any rents to the plaintiff (or to any member of his family) in respect of the room.

The only issue left is the question to title; that is to say, Is the plaintiff the owner of the property in dispute? Upon the pleadings, issue was joined on this.

Learned Counsel for the plaintiff submitted that by reason of the cross-examination of the plaintiff by Counsel for the defendant, on the footing that the land was granted by the plaintiff’s predecessor-in-title (the late R.Q. Ashley) to the defendant’s grandmother (Madam Ashong), the onus rested upon the defendant to prove the extent of the grant so made to her family. With this proposition I am unable to agree.

The principle of law is that “the burden of proof rests upon the party who would fail if no evidence at all, or no more evidence, as the case may be, were given on either side - i.e. it rests, before evidence is gone into, upon the party asserting the affirmative of the issue; and it rests, after evidence is gone int