MAJOLAGBE v. LARBI & ORS.

JUDGMENT OF OLLENNU J.

(His lordship stated the facts, and proceeded:-_)

It has been submitted by Counsel for the plaintiff that this is a case of trespass pure and simple, and that upon proof that the plaintiff was in possession of the land on the date on which the trespass complained of took place, in law the onus shifted to the defendants to prove their authority for entering upon the land, i.e. to prove superior title.

The law as to trespass is that if a person proves merely that he is in possession of land, that is sufficient to enable him to maintain trespass against anyone who cannot show a better title. Upon that [p.192] principle, granting for the moment that the case is trespass and nothing more, the onus is upon the plaintiff to prove that he was in possession of the land at the date when he alleged the defendants entered thereon.

Proof, in law , is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.

Here I may repeat what I stated in the case of Khoury and anor. V. Richter on this question of proof. That judgment was delivered on the 8th December, 1958, and the passage in question is as follows:-

“Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.”

In this case the averment by the plaintiff is that he was in possession of the land in April, 1956, and owned an uncompleted building on it. That averment was denied by all three defendants in their statements of defence. Applying the principle which I have just stated, it thereupon became incumbent upon the plaintiff to produce evidence of fact and circumstances from which the Court could be satisfied that he was ind