WUTA-OFEI v. DANQUAH

Lord Guest delivered the judgment of their Lordships. [After stating the facts as set out in the headnote he continued.:] In order to maintain an action for trespass the respondent must have been in possession at the date of the appellant's entry on the land in 1948. This is very largely a question of fact upon which the Board do not have the benefit of much evidence. Nor do they have the assistance of the courts below. The reason is that at the stage when evidence was being led and the appeal being heard the parties and the court were concentrating on the question of title and the question of possession was not closely examined.

The appellant maintained that there was not sufficient evidence to establish that the respondent was in possession at the critical period. It was argued, first, that assuming she was in possession before the 26th October, 1940, the date of the Ordinance, her possession was determined either under section 2(1) or section 5(4) of the Ordinance. So far as section 2(1) is concerned, this no doubt determined her right to possession, but did not affect the factual aspect of possession. In other words, if the respondent was in actual possession of the land as at the 26th October, 1940, the section did not change that state of facts. So far as section 5(4) is concerned, their Lordships adopt the reasoning of Verity, Ag. J.A. of the West African Court of Appeal when he held that the determination of rights under that section only affected rights which might entitle a person to claim for compensation against the Chief Secretary. It is accordingly irrelevant to consider this subsection in an issue between competing claimants to possession of land.

Their Lordships now turn to the central issue in the case whether the respondent has proved that she was in possession in 1948. The appellant agued that the respondent would require to have taken some active step to re-assert her possession after 1940. This was said to follow from the decision in Brown v. Notley1 where Parke, B. said:

"The question is, whether, after his interest ceased, He could be presumed to be in possession. Now, if he continued in possession after that time, he would be a wrongdoer; and therefore he must be presumed not to have continued in possession, unless an intention to the contrary be clearly shewn. If he had kept his cattle on the close, or the gate locked with a key which he kept, the case might have been different. But though there was nothing to indicate the giv