AMAH v.

KAIFIO
[1959] GLR 23

Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA

Date: 22ND JANUARY, 1959.
Before: OLLENNU J.

Family property—Plaintiff not head of family—Implied authority of family to sue—Onus of proof of

issues after pleadings.

HEADNOTES
This suit was commenced by Amah in the District Magistrate’s Court, Accra, by a writ in which
Amah claimed recovery of possession and arrears of rents in respect of a room alleged to be in House
No. D. 518/1, Hansen Road, Accra, which Amah said had been let by his predecessor to Kaifio.
By her defence Kaifio denied the allegation that she was, or had even been a tenant of Amah’s family,
or that the room she occupied was part of House No. D.518/1, or that it belonged to Amah’s family.
In an affidavit sworn to by her and filed in the District Magistrate’s Court, Kaifio deposed that the
room she occupied was on land belonging to her family, and not on land belonging to Amah’s family.
When the matter came before the learned District Magistrate on the 29th January, 1958, Mr.
Bentsi-Enchill, Counsel for the plaintiff Amah, submitted that the defendant Kaifio’s affidavit raised
the question of title to land. He said he would support an application for transfer to the Land Court.
The District Magistrate accordingly reported the pendency and circumstances of the case to the Chief
Justice, who, made an order transferring the suit to the Land Court, Accra. Upon the transfer of the
case further pleadings were filed in compliance with an order of the Land Court.

[p.24] of [1959] GLR 23

The plaintiff’s Statement of Claim included the following averments:-

(1) that he was the present head of the family of the late R. Q. Ashley, original owner of House No.
D. 518/1, Hansen Road, Accra;
(2) that the defendant was a tenant of a room in the said house paying rent of 6s. 0d. a month;
(3) that the defendant was put in possession of the room by plaintiff’s caretaker one Q. K. Quartey;
(4) that the defendant had defaulted with her rents since May, 1956;
(5) that the defendant claimed the room in dispute as on her family land;
(6) that the plaintiff claimed the said land to be his family property, and
(7) that the defendant was estopped from asserting title to the said land or room.
In a short Statement of Defence the plaintiff filed by her, the defendant put plaintiff to strict proof of
his claim to headship of the Ashley family. She specifically denied the averments of the plaintiff
numbered 1,2,3, 6 & 7 above, and repeated her claim that that the property in dispute belonged to her
family.
To that Statement of Defence filed a reply joining issue with the defendant on all the important issues,
including the plaintiff’s claim to ownership of the premises.
The case was determined by the learned Judge in favour of the defendant, after a lengthy examination
of the evidence. It is reported only in respect of those parts of the judgment which determined issues
of law, viz.,
(1) was the plaintiff, though not head of the family entitled to institute this action for and on behalf
of the family?
(2) did the burden of proof in the instant case rest upon the plaintiff or upon the defendant?
(Transferred Land Suit No. 5/58 [Accra]).
Held
(1) though the plaintiff was not head of his family, the evidence was that he had the family’s
authority to take care of the family property. From this fact might be implied the family’s
authority to litigate the family’s title to the family property;
(2) the plaintiff having pleaded ownership of the land, the defendant having denied that averment
in her Statement of Defence and the plaintiff having joined issue with the defendant thereon,
the onus of proof lay on the plaintiff, for it was he who would fail if no evidence were led after
the close of the pleadings.

CASES REFERRED TO
(1) Koran v. Dokyi & Ors. (7 W.A.C.A 78);
(2) Cobblah v. Bannerman (Unreported; judgment delivered by Ollennu J. On 29th November,
1958);
(3) Abrath v. North Eastern Railway Co. (11. Q.B.D. 440);
(4) Wakelin v. London and South Western Railway Co. ([1896] 1 Q.B.D. 189 n., 196).

COUNSEL
Bentsi-Enchill for plaintiff.
Amoo Lamptey for defendant.

[p.25] of [1959] GLR 23-26

JUDGMENT OF OLLENNU J.
On the question of the headship of the family, the evidence given by the plaintiff and by his second
witness (one Comfort Korkoi Otto) that he is the head of the family was contradicted y his 4th
witness. The latter said that the plaintiff is the head of the family, but he also said later in his
evidence-in-chief that he and the plaintiff were appointed by the family only to collect rents from the
family property. The plaintiff was also contradicted by his 7th witness, an old man, one Emmanuel
Henry Amoo, who deposed in-chief that he is the present head of the family, but has appointed the
plaintiff to look after the family property.
Upon that evidence the plaintiff failed to satisfy me that he is the present head of his family. I am,
however, satisfied upon the evidence that the plaintiff has the authority of the family to take care of
the family property, from which may be implied authority of the family to litigate the family’s title to
the property.
Therefore, upon the authority of Koran v. Dokyi and ors. (7 W.A.C.A. 78), as interpreted by me in a
judgment I delivered on the 29th November, 1958 in the case of Cobblah v. Bannerman, I hold that
the plaintiff is entitled to institute this action for and on behalf of the family.
I find that the plaintiff has failed to prove that the defendant is, or has ever been, his tenant. I accept
the evidence of the defendant that she has occupied that room for as long a time as she can remember,
and has not at any time paid any rents to the plaintiff (or to any member of his family) in respect of
the room.
The only issue left is the question to title; that is to say, Is the plaintiff the owner of the property in
dispute? Upon the pleadings, issue was joined on this.
Learned Counsel for the plaintiff submitted that by reason of the cross-examination of the plaintiff by
Counsel for the defendant, on the footing that the land was granted by the plaintiff’s
predecessor-in-title (the late R.Q. Ashley) to the defendant’s grandmother (Madam Ashong), the onus
rested upon the defendant to prove the extent of the grant so made to her family. With this proposition
I am unable to agree.
The principle of law is that “the burden of proof rests upon the party who would fail if no evidence at
all, or no more evidence, as the case may be, were given on either side - i.e. it rests, before evidence is
gone into, upon the party asserting the affirmative of the issue; and it rests, after evidence is gone into,
upon the party

[p.26] of [1959] GLR 23

against whom the tribunal, at the time the question arises, would give judgment if no further evidence
were adduced” (Phipson on Evidence, 7th ed. at p.31; and see Abrath v. North Eastern Railway
Company (11 Q.B.D. 440), and Wakelin v. London and South Western Railway Co. [1896] 1 Q.B.D.
189n, 196.)
As already pointed out, the case was transferred to this Court from the District Magistrate’s Court
because the defendant had put the plaintiff’s title in issue. Again, in paragraph 7 of his Statement of
Claim filed in this Court, the plaintiff pleaded specifically as follows:-
“Plaintiff says that the land on which the said room stands is the property of the family of R.Q. Ashley,
and that the said room was built by the said Ashley.”

The defendant specifically denied this averment in paragraph 2 of her Statement of Defence, where
she said:-
“The defendant denies paragraphs 2, 3, 4, 7 and 8 of the Statement of Claim.”

To this denial, the plaintiff replied:-

“The plaintiff joins issued with the defendant on paragraphs 1, 2, and 4 of her Statement of Defence.”

(The underlinings are mine).

Applying the principle stated above, the person who would fail if no evidence at all were led after the
close of the pleadings on that issue of ownership is the plaintiff. He is therefore the person upon
whom the burden lies first to prove that the building in dispute was erected by the late R.Q. Ashley,
and that the land on which the latter erected it was his property, or that of his family.