MENSAH v.

PENIANA [1972] 1 GLR 337-346

IN THE COURT OF APPEAL

20 MARCH 1972

AZU CRABBE J.S.C., LASSEY AND ARCHER JJ.A.

Trespass—Land, to—Defence of ownership—Claim for damages for trespass and interim

injunction—Evidence by plaintiff as to ownership—Whether plaintiff bound to prove his title
or permission of real owner—Failure by plaintiff to prove possession.

HEADNOTES

The plaintiff sued the defendant in a local magistrate's court for damages for trespass to
farms commonly known as "Wenyime" and an interim injunction. The defendant in his
defence claimed the farms as his bona fide property. Even though the plaintiff did not
claim ownership of the disputed farms, evidence as to ownership was led by him at the
trial. The defendant, however, gave a detailed account of the root of his title to the disputed
farms. The local court magistrate held that even though the plaintiff's claim was founded
on trespass, his claim must fail because he failed to discharge the burden of proving
ownership which had been conclusively proved by the defendant. On appeal by the
plaintiff to the High Court, Ho, Francois J. confirmed the decision of the local court
magistrate. On further appeal to the Court of Appeal:

Held, dismissing the appeal:

(1) where a plaintiff sues a defendant for damages for trespass to land, and he is met with
a defence by the defendant that he owns the trespassed land, the plaintiff is deemed to
have put his title in issue only where he also claims permanent injunction as an additional
relief. Since the plaintiff did not include a claim for permanent injunction but merely an
application for interim injunction, his title was not put in issue and he was therefore not
bound to prove it. Kponuglo v. Kodadja (1933) 2 W.A.C.A. 24, P.C. distinguished.

[p.338]

(2) Proof of possession by a plaintiff is sufficient to maintain an action for trespass against
a defendant who cannot prove a better title. Therefore a claim of absolute ownership by a
defendant does not automatically put the plaintiff to proof of his title. He must, however,
fail if the defendant is able to establish his title to ownership or that he went on the land
with the permission of the real owner. Dicta of Coussey J.A. in England v. Palmer (1955)
14 W.A.C.A. 659 at p. 660; of van Lare J.A. in Nkyi XI v. Kumah [1959] G.L.R. 281 at p.
284, C.A.; of Azu Crabbe J.S.C. in Summey v. Yohuno [1962] 1 G.L.R. 160 at p. 165 and
of Anin J.A. (as he then was) in Kusi v. Benyarde, Court of Appeal, 29 March 1971,
unreported, applied.

(3) Even though the plaintiff at the trial led evidence as to his title to ownership, that did
not cast upon him the onus of proving his title to ownership in a claim founded on
trespass. Therefore the trial local court magistrate and the High Court judge misdirected
themselves in dismissing the plaintiff's claim on the grounds that he had not successfully
proved his title as to ownership. Dicta of Coussey J.A. in England v. Palmer (supra)
applied.

(4) The plaintiff, however, must fail in his claim on two different grounds, namely: (a) that
he did not prove sufficient possession, and (b) the defendant proved beyond all reasonable
doubt that he was the owner of the area in dispute.

CASES REFERRED TO

(1) Kusi v. Benyarde, Court of Appeal, 29 March 1971, unreported.

(2) Kponuglo v. Kodadja (1933) 2 W.A.C.A. 24, P.C.

(3) Summey v. Yohuno [1962] 1 G.L.R. 160, S.C.

(4) England v. Palmer (1955) 14 W.A.C.A. 659.

(5) Nkyi XI v. Kumah [1959] G.L.R. 281, C.A.

(6) Bucknor v. Essien [1963] 1 G.L.R. 426, S.C.

NATURE OF PROCEEDINGS

APPEAL from the judgment of Francois J. delivered in the High Court, Ho, wherein he
confirmed the decision of a local court magistrate in an action for damages for trespass to
land and for interim injunction. The facts are sufficiently set out in the judgment of Azu
Crabbe J.S.C.

COUNSEL

E. D. Kom for the appellant.

Michael Atadika for the respondent.

JUDGMENT OF AZU CRABBE J.S.C.

The plaintiff's claim in this case was for £G100 (¢240.00) "substantial" damages against
the defendant for "destruction" and "damage" to his properties. Giving particulars of his
claim in his writ the plaintiff stated that he was the owner of cocoa and coffee farms, and
within these farms he had also cultivated palm trees. These farms were lying and situated
at Wenyime-Awudome and known as and commonly called "Wenyime." The plaintiff further
stated as follows:

“The defendant about three weeks ago did without plaintiff's permission, consent and or
knowledge fell down about 45 (forty-five) of those palm trees for the purpose of
tapping. The defendant during the course of such unlawful act did cause damage also to
plaintiff's cocoa and coffee trees much to the detriment of the plaintiff."

[p.339]

The plaintiff also claimed an order of injunction against the defendant, his agents and
labourers from continuing the act of trespass and from tapping the palm trees already felled
by the defendant, "pending final hearing and determination of the matter in issue."

It seems to me that looking at the writ very closely the claim for an order of injunction was
really an application for an interlocutory order for injunction. The local court magistrate
who heard the case also treated the plaintiff's second claim as such, for after taking the
defendant's plea, he recorded as follows:

"Court: As it is I am satisfied that interim injunction order as sought is necessary for the
preservation of the peace . . .

Both parties are hereby restrained from entering into the disputed land until the final
determination of the case at issue."

Subsequently, the defendant filed a statement of defence which he called a "counterclaim,"

and for a clear appreciation of the issues raised in this case I reproduce in full the so-called
"counterclaim":

"COUNTERCLAIM:

The Deft./Counter Claimant claims from the Plaintiff herein the sum of £100/-/- (¢240.00)
being damages of counter claim for unlawful claims laid by the Plaintiff on the Deft./Counter
Claimant's palm trees, cocoa farm and coffee.

To wit: That the Deft./Counter Claimant has been in possession of a land commonly known
and called Wenyime containing palm trees, and planted cocoa and coffee thereon, which
land lying situated and being at Tsito Awudome District; and bounded on the North by my
own property; on the South by my own property; on the East by my own property; a place
where my village lying situated and being within the jurisdiction of Awudome. On the West
by my own property.

That the land Wenyime is a bona fide property of Deft./Counter Claimant's Ancestor by
name Dever Klu of Tsito Awudome. After the death of the Deft./Counter Claimant's
predecessors namely: Klu Kofi, Peniana Kwase and Togbe Adzati. the immediate
descendants of Dever Klu, the said land had descended into the possession of the
Deft./Counter Claimant as heritage which land inherited by the Deft./Counter Claimant and
his family and are farming on the said land for a long considerable time.

In the life time of the Deft./Counter Claimant's predecessors, there had no dispute being
raised up by the Plaintiff's grandfather against palm trees, cocoa and coffee planted on the
said land by the Deft./Counter Claimant's grandfathers.

That the Plaintiff 's summons issued and served upon the Deft./ Counter Claimant proved
to be a cheat and extortion. The Pltff. only depriving the Deft./Counter Claimant's palm
trees, cocoa farms and coffee without a reasonable cause."

[p.340]

The local court magistrate regarded the "counterclaim" as a separate action, and,
therefore, made a note that he was consolidating the plaintiff's original claim and the
"counterclaim" for hearing and determination.

At the hearing the plaintiff gave evidence and said that he had made the farms since 1923,
and that the defendant, without his consent and permission, went onto the farms and
committed acts of trespass as described in the particulars of his claim. He continued his
evidence and said inter alia as follows, "I am not arguing the ownership of that land with
the defendant. I am solely concerned with the cultivated plants planted by myself on
'Wenyime' land." This passage, in my view, clearly emphasizes that the plaintiff regarded
his claim as one for trespass only. Under cross-examination, the plaintiff confessed that,
though his father told him that "Wenyime" land belonged to him (his father), he could not
say how his father acquired the land.

The evidence of the plaintiff's only witness was confused and contradictory and did not
advance the plaintiff's case. This witness said that he was a farmer and had lived at
"Wenyime" village for about 40 years. He said that he was brought on the land by one
Minka, but he later said that he planted cocoa for the plaintiff on part of "Wenyime"
land. Continuing his evidence, the witness said, "Not long ago I saw that the defendant
went and felled palm trees in the plaintiff's cocoa farm I made for him and destroyed a lot
of cocoa." When the witness was under cross-examination by the defendant he said:

"No, you have no farm in 'Wenyime' land. I have never seen you in 'Wenyime' land. Yes,
when you were tapping palm wine there I came and drank palm wine in your palm wine
village. You were tapping palm wine in 'Tsiyi' land and not on Wenyime land. I do not
know who is the owner of 'Tsiyi' land."

Then when he was cross-examined by the court he also said:

"No, I do not know the boundaries of 'Wenyime' land and I do not know how big the land
is. No, my landlord did not show me the boundaries of 'Wenyime' land. I do not know how
my landlord possessed that land, I am a stranger. No, I did not see the defendant when
he was felling the palm trees in plaintiff's cocoa farm, it was the plaintiff who told me that it
was the defendant who felled the palm trees in the cocoa farm."

The defendant next mounted the witness-box, and gave a detailed account of the root of
his title to the land in dispute. He said "Wenyime" land originally belonged to his great-
great-grandfather, Dever Klu ' and that the land has become his property by
inheritance. He admitted felling palm trees in the cocoa and coffee farms on the disputed
land and narrated the circumstances as to how the plaintiff's predecessors had the chance
to occupy part of the land in dispute. In short, the defendant claimed ownership of the
disputed land, and he said that he had no common boundary with the plaintiff. He led
evidence to show that his farms were about three-quarters of a mile from the plaintiff's
farm.

[p.341]

After the conclusion of the evidence, the local court magistrate inspected the land in
dispute upon an application by the parties, and the report of the inspection has been
incorporated in the record of proceedings. In a lengthy judgment, in the course of which
the evidence was fully examined, the local court magistrate made the following findings:

"Though the plaintiff established his long possession on this ‘Wenyime' land by making
farms on the land he could not succeed against the defendant as the owner of the
'Wenyime' land. Whatever the case may be it is evidently clear that the ownership of
'Wenyime' land now in dispute is in the defendant's family.

... It is clear that once the plaintiff said he is not arguing the ownership of the land with the
defendant, it means he knows that the ownership is in the hands of defendant.

It is also clear that the farms in which the palm trees were felled were made by the
defendant."

On the question of onus of proof the local court magistrate said, "In my opinion the plaintiff
must fail because he failed to discharge his onus of ownership so could not succeed on
the question of long occupation in spite of the defendant's felling palm trees in plaintiff 's
farm and destroyed seven cocoa trees and two coffee trees." And again he said, "The
plaintiff fails by the onus which lies on his shoulder to meet the strong case made by the
defendant counterclaimant for ownership. In the circumstance I must hold that the plaintiff
must fail in his ownership of 'Wenyime' land." Finally, the local court magistrate held that
once it was shown that neither the defendant nor any of his predecessors had sold,
transferred, leased or made any gift of "Wenyime" land to the plaintiff, the ownership, title,
right, interest in and of the said land were fully vested in the defendant. Before concluding
his judgment, however, the local court magistrate had earlier said:

"I had already made it clear that the wording of the plaintiff's claim does not mean claim
for ownership, title and right of 'Wenyime' land but by the test it shows that the plaintiff was
aiming at ownership, title and right. Which the plaintiff forgets that he has failed by the
1925 judgment, and had failed to establish in his evidence."

It seems to me from this last passage of the judgment of the local court magistrate that the
trial court fully appreciated that the plaintiff's claim was founded on trespass, even though
in his evidence the plaintiff made some feeble effort to establish his ownership to the land
in dispute. The important question that arose, therefore, was whether this slender piece
of evidence as to ownership so completely changed the fundamental nature of his claim,
that he at once assumed the burden of proving that ownership of the disputed land was in
him? And the second question was whether his failure to discharge this burden would be
fatal to his claim. The local court magistrate gave affirmative answers to both questions,
and his decision was confirmed by Francois J. in the High Court, Ho. In his judgment the
learned judge said:

[p.342]

"This is an appeal completely devoid of merit. The plaintiff failed to prove any title to
'Wenyime' land or the palm trees he alleged were destroyed thereon. He showed an
abysmal ignorance of the history of the land and demonstrated insufficient possession to
found title in him.”

I think that the local court magistrate was right in holding that the plaintiff’s claim was one
of trespass, for as the plaintiff himself said in his evidence, "I am not arguing the ownership
of that land with the defendant. I am solely concerned with the cultivated plants planted by
myself on 'Wenyime' land." In his defence, the defendant claimed ownership of the
disputed land.

In this court, counsel for the plaintiff, Mr. Kom. has contended that both the local court
magistrate and the learned judge erred in casting upon the plaintiff the onus of proving title
of ownership, when his claim was purely for trespass. Counsel submitted that the facts of
this case are on all fours with the case of Kusi v. Benyarde, Court of Appeal, 29 March
1971, unreported. Counsel for the defendant argued the contrary, and said that that case
was a claim only for damages for trespass, whereas the present case is not only an action
for trespass, but includes a claim for injunction, and he relied on the oft-quoted case of
Kponuglo v. Kodadja (1933) 2 W.A.C.A. 24, P.C., for the proposition that where a plaintiff
sues not only for trespass but also for an injunction, and his claim is denied, he is deemed
to have put his title in issue; he cannot succeed unless he is able to establish his title. Mr.
Atadika further submitted that the principle that possession is the only requirement for a
plaintiff to prove where the claim is for trespass is only valid against third parties, but not
against true owners of the property or their privies.

I think that the real issue raised in this appeal can be better appreciated and resolved after
an examination of some of the leading cases on the matter. I will first cite the 1933 case
of Kponuglo v. Kodadja (supra) upon which counsel for defendant, Mr. Atadika, relies. In
that case, Lord Alness, in delivering the opinion of the Judicial Committee of the Privy
Council said at pp. 24-25:

"It is not in dispute between the parties that, in the year 1927, the appellants or their
representatives cut down an odum tree within Bunya land, and that, accordingly, if the title
to that land is in the respondent, as he claims, a trespass was committed by the appellants.

The respondent's claim being one of damages for trespass, and for an injunction against
further trespass, it follows that he has put his title in issue. His claim postulates, in their
Lordships' opinion that he is either the owner of Bunya land, or has had, prior to the
trespass complained of, exclusive possession of it. The principal question to be decided
in the appeal would accordingly seem to be — Has the respondent discharged the onus
which rests upon him of demonstrating beyond reasonable doubt that the title to the
disputed land is in him? The appellants say — Nay; the respondent says — Aye."

[p.343]

And in the concluding paragraph of this opinion. Lord Alness observed at p. 29 that, "In
the circumstances stated, their Lordships are of opinion that the respondent has failed to
discharge the onus of establishing beyond reasonable doubt that the title to the disputed
area, i.e. Bunya land, is his, either by gift or by exclusive possession."

In Summey v. Yohuno [1962] 1G.L.R. 160, S.C. I explained the case of Kponuglo v.
Kodadja (supra) in these words at p. 165:

"It was therefore submitted by Mr. Hayfron-Benjamin, no doubt on the authority of

Kponuglo & Ors. Y. Kodadja (supra), that the plaintiff having failed to prove a title in her,
the defendants were entitled to judgment. But in my view the Principle in Kponuglo & Ors.
v. Kodadja (supra) always postulates that the defendant who puts the plaintiff's title in issue
in an action for trespass must himself on his evidence be able to make a bona fide claim
of title. It would be a monstrous principle that a plaintiff in continued and undisturbed
possession of land can be ousted by a defendant who merely sets up a fictitious and bogus
title to the same land; it would, indeed, set at nought the legal maxim melior est conditio
possidentis ubi neuter ius habet or the time-honoured phrase ‘possession is nine points of
the law’. In my opinion the real test in each case in an action such as the present one is
whether a bona fide issue of title was raised or could genuinely be raised by the defendants
at the trial (see Laode Matonmi v. Bakare Ibiyemi & 4 Ors. ((1953) 14 W.A.C.A. 390 at p.
392) per Coussey, J.A.)”

It seems to me, therefore, that the conditions necessary for the application of the principle
in Kponuglo v. Kodadja (supra) are:

(1) That the plaintiff’s claim is for:

(a) damages for trespass,

(b) an injunction restraining the defendant or his agents or servants from entering the land
or area in dispute or in any way interfering with the plaintiff’s possession of it.

(2) That the defendant claims ownership of the land or area in dispute.

The injunction (1) (b) above must be a permanent injunction against the defendant or his
agents or servants, and not merely an application by the plaintiff for an order for interim
injunction. In the instant case, the plaintiff's claim did not include a claim for permanent
injunction, and, therefore, in my judgment, the principle in Kponuglo v. Kodadja (supra)
would not apply.

The next case is England v. Palmer (1955) 14 W.A.C.A. 659. There the plaintiff sued for
trespass, alleging that he was the owner of certain land and that the defendant had
trespassed on it. The defendant denied every allegation of fact in the plaintiff's claim,
though he did not specifically traverse the plaintiff's averment that he was the owner of the
land. The trial judge found that the plaintiff had sufficient possession to support an action
for trespass. The defendant appealed on the ground that although the plaintiff had not
averred possession, the trial court had allowed him [p.344] to prove possession and had
found possession in his favour. The West African Court of Appeal allowed the plaintiff to
amend his pleadings by adding the words "and in possession" after the word “owner" in
his statement of claim. The defendant's appeal was dismissed, and reading his judgment,
in which the other members of the court concurred, Coussey J.A. said at p. 660:

"In a trespass action an averment of ownership is consistent with and in my view amounts
to an averment of possession, for ownership may be proved by proof of possession. 'As
mere possession is sufficient to maintain trespass against any one who cannot show a
better title, the plaintiff's allegation that the defendant broke the close of the plaintiff, (the
use of the word 'close' being an averment of ownership), 'is satisfied prima facie by proof
that the defendant broke a close in the possession of the plaintiff; and this is not only prima
facie, but ultimately, sufficient against any one who cannot avoid the effect of it by shewing
that, notwithstanding the actual possession by the plaintiff, he the defendant has a better
right to it’— per Lord Denman C.J., in Whittington v. Boxall ((1843) 12 L.J.Q.B. 318; 114
E.R. 1201, 1203) — a proposition which is not affected by the later case of Jones v.
Chapman ((1847) 2 Ex. 812.)

It follows that as far as concerns him an allegation that the plaintiff is owner puts
possession and not ownership in issue, for it cannot be supposed that the plaintiff means
to take upon himself a larger amount of proof than the law requires for the purpose of an
action in trespass — Heath v. Milward (132 E.R. 39). And that is how this issue stood in
the Court below when the action went to trial."

In Nkyi XI v. Kumah [1959] G.L.R. 281, C.A., van Lare J.A. explained the law in the
following passage of his judgment at p. 284:

"The proper statement of the law is that 'mere possession is sufficient to maintain an action
for trespass against any one who cannot prove a better title.' What the expression 'one
who cannot prove a better title' means is, 'one who cannot avoid the effect of the plaintiff's
possession by showing that notwithstanding the actual possession by the plaintiff, he (the
defendant) had a better right to the land' — per Denman, C.J., in Whittington v. Boxall
((1843) 12 L.J.Q.B. 318, 114 E.R. 1201 at 1203): cited with approval in England v. Palmer
(14 W.A.C.A. 659).

'The true owner' must therefore be interpreted to include a defendant who claims a right to
possession as a grantee, a tenant, a licensee, or one having permission of the person in
whom it is shown, upon the evidence, that the legal title in the land is vested. It is only a
defendant pleading jus tertia (i.e. that title is vested in neither the plaintiff nor himself, but
in some third party through whom he does not claim) who cannot resist the effect of proof
of the plaintiff's possession. It is in such cases and such cases only, that a claim in
trespass puts nothing more than possession in issue.

[p.345]

Thus where in an action for trespass a defendant, as in this case, pleads ownership of the
land (i.e. that he has a better right to possession of the land than the plaintiff has) the
plaintiff's title is put in issue; and the plaintiff cannot succeed unless he proves a right to
possession which is superior to that of the defendant. Consequently, in an action for
trespass, if it is proved that the plaintiff has no title at all to the land, and that the defendant's
entry is upon permission of the true owner, the plaintiff 's claim must fail."

It is clear that a claim of absolute ownership by a defendant who has invaded the plaintiff's
land does not automatically put the plaintiff to proof of his title to ownership, especially
where the plaintiff was in possession at the time of the trespass. The plaintiff can rely on
his possession as a good title as good against the whole world, except the true owner. In
Halsbury's Laws of England (3rd ed.), Vol. 32, p. 375, para. 602, it is stated:

"The plaintiff must prove that he is entitled to recover the land as against the person in
possession. He recovers on the strength of his own title, not on the weakness of the
defendant's. This, however, does not mean that he is bound to show a title good against
all the world. Possession in itself is a good title as against every one except the true owner,
and, if one who has been in possession is wrongly dispossessed, he is entitled to recover
possession against the wrongdoer, notwithstanding that the true title may be shown to be
in a third person."

This statement of the law appears to have been approved by the court, though in slightly
different language, in Kusi v. Benyarde (supra), upon which Mr. Kom places so much
reliance. Reading the judgment of the court in that case, Anin J.A. (as he then was) said:

"The general principle of law is that a party must prove that he is entitled to recover the
land as against the person in possession. He recovers on the strength of his own title, not
on the weakness of his opponent. Possession in itself is a good title as against everyone
except the true owner: see Asher v. Whitlock (1863) L.R. 1 Q.B. 1, and Perry v. Clissold
[1907] A.C. 73. Consequently, if one who has been in possession has been wrongfully
dispossessed, he is entitled to recover possession against the wrongdoer, notwithstanding
that the true title may be shown to be in a third party. Where the plaintiff seeks damages
for trespass and is met, as in this instant case, with a claim to the ownership of the trespass
area, the onus is on the defendant to establish his own title to these trespass areas. If the
plaintiff demonstrates his possession, he is entitled to succeed."

See also Bucknor v. Essien [1963] 1 G.L.R. 426, S.C.

I concur entirely in this statement of the law, and, if I may be permitted, I will, for the purpose
of elucidation, state the position briefly thus: Where the plaintiff seeks damages for
trespass and is met with a claim to the ownership of the trespassed area by the defendant,
and the [p.346] defendant fails to establish his own title to the area, then the plaintiff is
entitled to succeed in his claim, provided he satisfactorily proves possession, for against a
wrongdoer possession is good title. But if the defendant is able to establish his title of
ownership, or that he went on the land with the permission of the real owner, the plaintiff
ought to fail.

Applying the above principle to this case, I think that the local court magistrate misdirected
himself when he said that the plaintiff’s claim ought to fail because he had not successfully
discharge the onus of proving his ownership to the area in dispute. True, the plaintiff in his
evidence claimed that “Wenyime” land belonged to his father, though his evidence appears
very unconvincing. Nevertheless, this claim of ownership in an action for damages for
trespass, would not, in my view, cast upon him the onus of proving title to ownership of the
land in dispute: see England v. Palmer (supra).

I think that the learned judge also, with all due respect, misdirected himself by holding that
the plaintiff failed to prove any title to “Wenyime” land, because the plaintiff “showed an
abysmal ignorance of the history of the land.” In an action for trespass, evidence of history
of the land trespassed upon is not essential; it is sufficient if the plaintiff can establish that
he was in possession of the land at the time of the trespass he complains of. I agree,
however, with the learned judge that the plaintiff did not prove sufficient possession to
found title in him.

It seems to me, therefore, that the misdirections by both the local court magistrate and the
learned judge had not prejudiced the plaintiff’s chances of success in his claim. Moreover,
the defendant was able to prove beyond reasonable doubt his title to ownership to the area
in dispute. Consequently, I would dismiss this appeal, not on the ground that the plaintiff
failed to prove his title to ownership, but on two different grounds, namely, (1) that the
plaintiff failed to demonstrate his possession, and (2) that the defendant proved beyond all
reasonable doubt that he was the owner of the area in dispute. Judgment should in all the
circumstances have been entered for the defendant, and I do enter judgment for the
defendant on the two grounds already stated: (see rule 32 of the Supreme Court Rules,
1962 (L.I. 218)).

JUDGMENT OF LASSEY J.A.

I agree.

JUDGMENT OF ARCHER J.A.

I also agree.

DECISION

Appeal dismissed.

Judgment for the defendant.

S.Y.B.-B.