Appeal Court 21st May, 1935. Appeal from Judgment of Supreme Court

. Trespass to Land-Action by owner before entry-Act-ion by Co­ owners and their tenants for trespass in respect of undivided .shares-Uncertm:nty as to vesting -of interest as between Co-Plaintiffs-Onus on Plaint1:ffs to prove title.

Held: Action not maintainable and appeal dismissed.

The facts of the case are sufficiently set out in the judgment.

A wooner Renner in person.

D. Myles-Abadoo, J nr. for Respondents.

The following judgment was delivered:-

DEANE, C .. J.

This is an appeal against a decision of Strother-8tewart, .J. who gave judgment for defendants on a claim against them for damages for ". trespass in the years 1932 and 1933 on a portion of "plaintiffs' land situate at Cape Coast commonly known as " Prospect Hill which said piece or parcel of land is bounded on all " sides by plaintiffs' land being part of Prospect Hill aforesaid" and for an injunction.

The plaintiffs are Mr. P. A. Renner a practitioner in this Court of over fifty years standing and his wife; the defendant Annan is the person who claims to have bought the piece of land aforedescribed in the year 1904 and to have been in possession of it ever since; and the other defendants are his agents and servants who have acted under his orders.

A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing a trespass is to say that the defendant broke and entered the plaintiffs' close and' did damage, and it follows that in order to maintain an action for trespass the plaintiff must have a present possessory title-an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry (Wallis v. Hands, 1893, 2 Ch. 75). "Where indeed both parties are in a field claiming possession the possession being disputed, trespass will be at the suit of that one who can show that the title is in him-but that so far as I have been able to follow the evidence is not the case here. As we have seen the writ is for trespass to a specific portion of land, which is said to be surrounded by other parts of plaintiffs' land known as Prospect Hill; the evidence shows clearly that the contest is about a parcel of land 64 x 110 which came into the possession of defendant in 1904 and of which he has been in possession from that time up to to-day-and the fact that plaintiffs were later put into possession of adjoining land even if it surrounds the defendants' land does not enable them to say that they are in possession of the piece of land with regard to which the trespass is alleged. The plaintiffs' remedy was in my opinion by an action for ejectment if he could not get possession of this parcel of land and the action for trespass will not lie.

Suppose however I am wrong in this view of the "facts and the law applicable to them, and that it be held that plaintiffs' possession of adjoining land gives them the right to bring an action for trespass, then the position would be that the onus would be upon the plaintiffs, in view of the disputed possession, to prove their title to the close. They would in fact have to prove that they were owners of the close to enable them to succeed, and they can only succeed by the strength of their title and not by weakness of the defendants'. Can it be said they have established a title in this case? The root of the plaintiffs' title is a deed of mortgage dated 25th August, 1905, between Charles Arthur Albert Barnes of the one part and Peter Awoonor Renner (one of the Co-plaintiffs) of the other part registered on 9th August, 1907, and a foreclosure order absolute made by Hall, J. dated -4th September, 1924. A reference to the mortgage, Exhibit " A ", will show that by it Charles Arthur Barnes purported to convey to the said Peter Awoonor Renner" his undivided moiety or half part of the estate "property lands and hereditaments of Mary Barnes late of " Prospect Hill Cape Coast under the last Will and Testaments " bearing date 27th May, 1874, of. the said Mary Barnes granted " bequeathed or demised and being an those pieces, and parcels " of land, messuage dwelling house herenitaments and premises " in the said will named and described and hereby set out in the " schedule hereto attached, being the premises and hereditaments " now held and enjoyed by virtue of and under the Will of the " said Mary Barnes by Christiana Mary Selby and Charles Arthur " Albert Barnes the mortgagor aforesaid as the said Will provided " and being now particularly described in the plans hereto and " being situate at Cape Coast in the Gold Coast Colony aforesaid " and known as Prospect Hill, De Graft Hall, Sunnyside and Topp's Yard" to secure repayment of a loan of £250.

The verbiage is somewhat complicated but it is pretty clear that all that it can be made to mean is that Barnes as the owner of an undivided moiety of certain properties bequeathed to his wife and Christiana Selby by the 'Will of "Mary Barnes, which properties are named and described in the will and described in the schedule attached to the deed, mortgaged his half share in them as security to P. A. Renner.

Now if we examine the deed the first thing that is apparent is that at the most Mr. Renner has only the position of a co-tenant with respect to the Prospect Hill land-he could only acquire by foreclosure, and in fact has only acquired an undivided moiety in the land. But a co-tenant of land cannot bring action for trespass against another who establishes a right to be on the land through the owner of the other undivided half. From the evidence given by Mr. Kuofie, a witness for Mr. Renner, it is clear that defendant was put into possession by him acting as agent. for both Barnes and Mrs. Selby-so that it follows this action would not lie even if Mr. Renner can show that 1le acquired a half share in the same land as the defendant occupies.

But that is by no means proved. The deed of mortgage for the description of the land refers to the Will: the Will has not been exhibited. It also refers to certain plans in the schedule attached to it: when we turn to the schedule we find a rough sketch with no scale and no measurements of any kind. Then we have Mr. Renner telling us that after the mortgage deed was made Mr. Barnes--, who was a Surveyor, pointed out to him what land had been mortgaged, and made a plan showing the area for him. That plan has not been produced. when cross-examined about its non­ production Mr. Renner admitted that he should produce it but stated that lie thought it was with the Court; that it had been put in evidence in the foreclosure proceedings and he had not been able to get it back. All that need be said as to this is that there is no mention of any such plan in the foreclosure proceedings which merely des<'1'ibcs the land according to the description in the mortgage deed. The failure to produce this plan or even a copy must tell heavily against the plaintiffs. The very fact that after the mortgage deed was made Mr. Renner had to get Barnes to show him what land had been mortgaged and to make a plan defining the area mortgaged supports a strong inference that before that he had no idea what land was conveyed by the deed under which he claims-while the tact that the plan is not now produced supports the inference that if produced it would not support plaintiffs' contention that this' land in dispute was included in the mortgage deed.

This inference is moreover strengthened by the evidence of Halm and of Kuofie both witnesses for the plaintiffs. The former, who was Mrs. Renner's agent and took over for her after the fore­closure, makes it clear that when taking over he was shown plots n Prospect Hill by Acquah, the caretaker, which had been sold to outsiders and on which there were erections, while the latter, who was Barnes and Mrs. Selby's caretaker, makes it clear that the land on which defendant has his building was never included in the mortgage

Now it will be observed that throughout the argument so far it is always of Mr. Renner's rights that mention has been made: he however is only one plaintiff-what of his co-plaintiff his wife?

If we turn to the writ we find her figuring as first plaintiff while Mr. Renner occupies second place. The matter goes even Deane, further: the proceedings show that the writ was first of all taken out in the name of Mrs. Renner alone through her representative P. A. Henner, and that it was some time after the proceedings had been going on in her name that an amendment to the writ must have been made by which he became a co-plaintiff. I say must have been made because there is no note on the proceedings to show when the actual amendment was made, but that it was made at some time after the proceedings were started is clear from a note on page 16 of the record. On the 2nd December the matter was brought before the Court under the caption P. A. Renner representative of F. H. Awoonor Renner verS1LS J. E. Annan and Others.

Mr. Hayfron Benjamin entered appearance for Mr. Renner­ Mr. Abadoo on behalf of the defendants thereupon wished to be enlightened as to who actually was plaintiff-Mr. or Mrs. Renner. Then we find this note "Mr. Benjamin submits that the real " plaintiff i8 disclosed on the face of the writ namely, F. B. " Awoonor Rcnner (Mrs. Renner)." But if Mrs. Renner was at that time sole plaintiff it follows that Mr. Renner who admittedly file a the action on her behalf must have considered her at that time to be the sole owner of the land the subject of the trespass. It was a matter of importance, as he by his long legal experience well knew, that the per80n suing should be able to show at least a right to possession and we cannot therefore treat the fact that the suit was first laid in the name, of his wife alone as being without significance especially as his wife was away from the Colony and so might be called on to give security for costs. On page 14 more­over in an affidavit filed by Mr. Renner while the suit was proceeding under the caption P. A. Renner representative of F. B. Awoonor Renner verses  .T. E. Annan and Others we find Mr. Renner deposing

"5. That Peter Awoonor Renner and F. B. Awoonor Renner " are man and wife, the latter residing at Freetown, but now " absent and residing in England, the former in the Gold Coast " having the managing control of the properties of the latter; and " the subject matter of this suit is one of the said properties", so that the matter goes beyond being a matter of inference as to what Mr. Renner believed at that date and becomes a matter of certainty when we find him actually swearing that the land was his wife's while he himself was in the comparatively humble position of her manager.

Then on page In of the record we find Mr. Renner, who asked leave to supplement his evidence which had been closed, leaving his title so far only that shown by the deed of mortgage and fore­closure, stating that in or about 1928 while he was at Sierra Leone he became ill and executed an instrument in favour of his wife and children. 'that deed, he says, was sent to this Colony by one Porter for stamping and registration. Mr. Renner says he is not sure if it was registered but he produces a receipt showing payment of a sum of money by way of penalty for late stamping. The deed itself he does not produce although he says he believes it is in one of his safes in Sierra Leone, nor has he made any attempt to produce a certified copy from the registry-he does not in fact, he says, know if it has been registered. Then having by this evidence given the impression that being in indifferent health he transferred the property to his wife and children, under cross-examination he further stated" I think my co-plaintiff was given an interest and "made trustee for my children. I did not convey my whole "interest under the mortgage, only a 'qualified portion.' My " co-plaintiff's right to the property will depend upon my own "title." \Vhen asked in Court about this Mr. Renner developed this line of thought by inviting the Court to give judgment against his wife and decide the case upon the title conferred on him by the mortgage deed of the 25th August and the foreclosure, apparently quite oblivious of the fact that a deed once signed and delivered takes effect, and that his having originally entered the suit in the name of his wife as sole plaintiff pointed to his belief that the land was vested in her solely.

The position that results of course is. that this Court is left in the most complete fog as to the person or persons in whom the half share of the land mortgaged by Barnes is at present vested, whether it is vested in Mr. Renner, Mrs. Renner, their children or in any combination of two or more of the three.

It cannot act on the deed of mortgage and foreclosure because Mr. Renner has shown that his title under them is affected by a subsequent deed signed and delivered by him; it cannot act upon the later deed because it has not been produced in evidence, there is no proof that it has been lost, no certified copy of it is forth­coming and no reliable secondary evidence of the contents is before the Court.

The learned trial Judge in his judgment devoted a great deal of time and attention to sati\3fying himself that the defendant had acquired a good title to the land by a native sale which was unaffected by Mr. Renner's subsequent registration of the mortgage deed, and being so satisfied gave judgment for defendant.