JUDGMENT OF APALOO J.A.
This appeal is from the judgment of the High Court, Accra, which Ollennu J. (as he then was) delivered on 7 May 1962. By that judgment, the court dismissed a claim by the appellant for recovery of possession and damages for trespass to two plots of land said to be situate at Opete Kpakpo (Abossey Okai) and sustained a counterclaim by the respondent for a declaration of title to a portion of that land.
The parties derived title from two rival grantors, the appellant from the Akumadjey stool, while the respondent obtained his from Korkoi Abossey who herself relied on a deed of gift made in her favour by Nii Abossey Okai in October 1929. But the parties themselves relied on deeds of conveyance, the appellant's dating back from 1947 while the respondent's bore the date September 1960.
The evidence shows that soon after obtaining the two plots of land in 1947, the appellant caused them to be fenced. He then put a watchman in charge of them. At some time before the writ issued, the respondent entered a portion of the land, broke down the fence and commenced building operation on the land. It is this conduct of the respondent which occasioned this litigation.
In view of the position taken up by the parties, it was necessary to decide as between the rival grantors, who was the owner of the land and who thus had good right to convey. But for the fact that the judgment of the court below was overlaid with claims of customary possession and the like, the decision on title should not have presented any problem. This is because the ownership of the whole of the Opete Kpakpo lands has already been thrashed out between the rival grantors and the courts have found squarely for the Akumadjey stool — the appellant's grantor. Indeed, at the date when Korkoi Abossey conveyed the land to the respondent, there was a valid and subsisting order of the court restraining her from dealing with the land (exhibit K).
The learned judge, however, was able to find for the respondent not on the purely legal and sometimes unsatisfactory ground that the onus probandi was not discharged, but on the ground that the respondent's vendor had acquired a usufructuary title which availed against the stool itself and that the alienation of that interest by her was good and passed a good title to the purchaser whereas a similar and earlier alienation of title by the stool — the rightful owner — was void and of no effect. In order to be able to come to this conclusion, the
