KWESI YAW v. KWAW ATTA

JUDGMENT OF ADUMUA-BOSSMAN J.

By the writ of summons which was issued in the Native Court "B" of Abura but transferred to be dealt with in the Land Court, Cape Coast, the plaintiff claimed declaration of title to an area of land designated Edukromelands described by boundaries in the said writ, and also an order of injunction to restrain the defendant, his agents, servants, and workmen, from trespassing on the said land.

By the statement of claim filed in support of the said writ, it was alleged that the said area of land was attached to the plaintiff's family stool located at Edukrome (or Adukrome) in the Abura state, and that from time immemorial the plaintiff's family and other inhabitants of Edukrome have been in occupation and possession of the said land, and the family have granted permission to some strangers also who have occupied and are working on portions of the said land; that the defendant when giving evidence in a case between one Kwamin Guare as plaintiff and the plaintiff in this action as defendant in the Asebu Native Court "B" at Moree, asserted title to the said land, wherefore the plaintiff has been obliged to sue for declaration of his family's title to the land.

The statement of defence filed on behalf of the defendant denied the plaintiff's family stool's alleged ownership of the land in dispute and proceeded to set up the case that:

“Plaintiff is a mere caretaker of the land. Plaintiff's occupation of the land has always been at the will of the defendant; and defendant will at the hearing adduce evidence in support of his claim to ownership of the land."

The statement of claim and defence therefore disclose a straightforward and clear-cut issue between the parties as to which of them has the ownership of the land in dispute. In respect of that issue, it seems unnecessary to remind ourselves of the legal position that the plaintiff having sought the declaration, assumes the onus of satisfying the court: "that he is entitled on the evidence brought by him to a declaration of title." (See per Webber, C.J. in Kodilinye v. Odu1). Before turning however to consider how far the evidence adduced by and on behalf of the plaintiff succeeds or fails to discharge that onus, which is the main matter for consideration in this, as indeed in every other action for declaration of title, let us turn to make a cursory examination of the plans prepared for the trial of the case.

In this matter of a plan, the initial order of the court appointed M