GH - SUMMEY v. YOHUNO AND OTHERS

JUDGMENT OF OLLENNU J.

The appellant sued in the Manya Krobo Native Court “A”, claiming damages for trespass to, and injunction in respect of, a piece of land measuring one rope and situate at Akatawia in the Manya Krobo State. The respondent resisted the claim, contending that their entry upon the land was in exercise of rights vested in them as owners of the land.

Trespass is a wrong against possession, and therefore the main fact which a plaintiff in an action for trespass must prove in order to succeed is possession. But where the defendant to an action in trespass pleads ownership, he puts the plaintiff's title in issue; in such a case the plaintiff cannot succeed on his claim, unless he is able to prove his title to the land, or unless he proves that as between him and the defendant a better right to immediate possession is vested in him (the plaintiff) —see the judgment of the Court of Appeal in Nkyi XI v. Kumah ([1959] G.L.R. 281). Thus the defence set up by the defendants put the plaintiff to proof either of her title to the land, or of a better right vested in her to immediate possession of the land in dispute.

The plaintiff claimed title through her grandmother, one Maku, deceased. The proof of plaintiff's title therefore involved two processes; first, proof of her root of title; secondly, proof of her own title. It is common ground between the parties that the one rope of land in dispute was originally part of 15 ropes of land purchased by one Tetteh Djokobri, a common ancestor of the parties. The said Djokobri was the father Maku, and also of Tetteh Yohuno, father and uncle of the defendants, through whom the defendants claim. But while the plaintiff's case is that Tetteh Djokobri made a gift of this land to his daughter Maku, the defendants on the other hand say that the land in dispute is one rope out of three ropes of land which Djokobri gave to his son Tetteh Yohuno as a gift, and that Maku occupied that land as a licensee of her brother Tetteh Yohuno.

The native court held that the plaintiff had failed to prove that Tetteh Djokobri made a gift of the land in dispute to her grandmother Maku. Nothing could be more obvious than that the said finding of fact made by the native court was hopelessly against the weight of evidence; apart altogether from the oral evidence led by the plaintiff and her witnesses (which is supported, inferentially, by the evidence of the defendants and their witnesses) there are two pieces of documentary evide

JUDGMENT OF OLLENNU J.

SUMMEY v. YOHUNO AND OTHERS

Areas of Law

JUDGMENT