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Land-Onus of Proof of Possession on Action for Trespass to Plaintiff.

Held: Onus not discharged and appeal dismissed. There is no need to set out the facts.

P. A1f1oonor Williams for Appellant.

R. S. Blay for Respondent.

The following judgments were delivered:-

KINGDON, C.J., NIGERIA.

This is an appeal from the judgment of the Divisional Court sitting at Sekondi. The claim was for £100 damages for trespass to the plaintiff's lanel. described as Ailoinee Borfuezu, but in fact there is much more at stake in the case than merely the sum of £100, since the right to possession of a considerable and valuable area of land is involved. The learned trial Judge found as a fact that the plaintiff had failed to prove possession of the land upon which the alleged trespass took place and entered judgment for the defendant. The plaintiff now appeals to this Court having filed ten grounds of appeal. Of these the last five have not been argued and I am only concerned with the first five. The fifth is "Because the judgment of the Court below was wholly and " entirely against the weight of evidence", and the first four are merely details enlarging upon this. Really then the only ground of appeal is that the judgment was against the weight of evidence. A perusal of the record shows that there was considerable hard swearing on each side, and that the undoubted facts tell some one way and some the other. The most significant fact, however, viz., that both parties received a share of the tolls exacted for the use of the ferry across the river which the defendant claims to be the boundary betw~en the parties, tells very strongly in favour of the defendant's version.

As the trial Judge pointed out, the onus was on the plaintiff to prove possession and, having carefully examined the evidence and listened to the argument of counsel for the appellant, I think the Judge was right to hold that that onus had not been discharged.

In my opinion the appeal should be dismissed.

Appeal Court. 15 May, 1934.

Appeal from !)ivisional Court·

The facts which seem to me to swing the balance in favour of the defendant in this case are the following:-

1. One-third of the tolls paid for the use of the ferry were allotted by the Omanhene to the defendants. One of plaintiff's witnesses admitted that he had never heard of persons whose lands did not touch a river receiving tolls for a ferry -over the river, and in my opinion it is to say the least most unlikely if plaintiff's boundary reached, as he alleged, right up to defendant's vi11age, a distance of about i mile beyond the river, that the defendant would have been called upon to search for the bodies of persons drowned in the river or have been given tolls.

2. The boundary alleged by plaintiff between himself and defendant actually cut through some of defendant's village lots.

3. The burying places of defendant's family are within the land claimed by plaintiff.

4. The line of cocoanut trees planted all along the foreshore of the disputed land has admittedly been planted by, and is in the possession of, the defendants.