NORQUAYE-TETTEH (EMMANUEL) v. MALM & ANOR. AND NORQUAYE-TETTEH (DAVID QUAO) v. MALM & ANOR. (CONSOLIDATED)

JUDGMENT OF OLLENNU J.

(His lordship stated the facts and continued:-)

It is admitted by the plaintiffs that Nii Abose Okai was a competent authority to convey Akumadjaye Stool land, and that consequently Exhibit "1" executed by him is a valid document. And, of course, it is admitted by the defendants too, that Nii Ayikai being the occupant of the said Akumadjaye Stool is a competent authority to alienate lands of the stool, and that, in consequence, Exhibit "B" and Exhibit "C," executed by him, are both valid documents.

Counsel for the plaintiffs submitted, however, that the land in dispute could not be the identical land which Nii Abose Okai had granted and conveyed to the late Henerike Cornelius Malm, because

(1) there are no data on the plan attached to Exhibit "1" which identify the land subject matter of that deed, with the land in dispute,

(2) the report Exhibit "A" issued by the Registrar of Deed, when a search was made in his registry against the lands subject matter of the suit, showed that it was affected only by the deeds of the two plaintiffs Exhibit "B" and Exhibit "C", which means that Exhibit "1" and Exhibit "2" which are registered, are not deeds in respect of the identical land, for if they were the report Exhibit "A" would have so indicated, and

(3) that Nii Ayikai, the occupant of the Akumadjaye Stool, had himself given evidence identifying the land in dispute as that in respect of which he had executed the deeds Exhibit "B" and Exhibit "C".

Counsel submitted that in these circumstances the onus was upon the defendants to prove by positive evidence of occupation that the land in dispute was the identical land which the stool by the deed Exhibit.

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"1" (which is prior in time to Exhibits "B" and "C") had granted to the defendants' predecessor in title.

Upon the assumption that the onus is upon the defendants, Counsel for the plaintiffs submitted that the defendants had failed to discharge that onus, because the only evidence which they led of their occupation of the land was evidence of the existence of three mango trees on the land, the fruits of which they allege they have been harvesting. Counsel submitted that harvesting of the fruits of the mango trees on the land is not sufficient evidence to show that the land is in the possession of the defendants. In support of that submission, Counsel referred the Court to the opinion expressed by Jackson J. in his judgment of the 31 st May, 1951, in the Kokomlemle Consolidate