BARIMA GYAMFI AND ANOTHER v. AMA BADU

JUDGMENT OF OLLENNU J.S.C.

The respondent, hereafter called the plaintiff, a subject of the Osino stool, and a sister to a former occupant of the said stool, obtained judgment in the High Court against the Osino stool and the receiver of the Akim Abuakwa stool revenue for a declaration of title to a certain cocoa farm, damages for trespass to, account of proceeds from, and recovery of possession of the said farm. Her case is that the said farm was cultivated by a stranger, one Amma Afreh, as a foodstuff farm, with the permission of the stool. Amma Afreh, with the consent of the stool made a gift of it, then a fallow, to her (the plaintiff's) sister one Oforiwaah. The said Oforiwaah in turn subsequently, that is 25 years ago, made a gift of the same farm to her; she alleged that she has been in [p.598] possession of the said farm since then, and has improved and developed it from a fallow foodstuff farm to a flourishing cocoa farm. The appellants, hereafter called the defendants, agreed that Amma Afreh once occupied the farm; their case however is that Amma Afreh inherited the same from a brother of hers, one Owurapa. They denied that Amma Afreh made a gift of the farm to Oforiwaah or to the plaintiff. The defence however did not dispute the fact that the plaintiff has been in possession and occupation of the farm for 25 years or more; they gave two explanations for it: one was that Amma Afreh died possessed of the farm, and the same became vested in the stool by customary law as Amma Afreh, a stranger, left no successor, and thereupon, the plaintiff's brother, the then occupant of the stool, secretly gave the farm to the plaintiff without the knowledge of the elders of the stool; that this fraud on the stool was only discovered in 1959, and made the subject of one of a number of charges upon which the elders deposed the plaintiff's brother. Another explanation they gave was that Amma Afreh made a gift of the farm to someone without obtaining the consent of the stool, whereupon she forfeited her right to the farm, to the stool, and the plaintiff thereafter occupied the same as an abusa tenant of the stool, and had been paying rents for the same ever since.

The defendants appealed against the judgment of the High Court. It must be observed from the outset that there is no onus upon the defendant to disprove a claim made by a plaintiff, so that, however, conflicting or unsatisfactory his evidence may be, the same cannot avail the plaintiff; evidence given