Appeal Court.

Appeal from judgment of Divisional Court.

Claim for a declaration of title to land-Burden of Proof was on Plaintiff-Evidence not sufficient.

Held: Plaintiff should have been non-suited at trial for failure to adduce evidence sufficient for defendant to be called on to f( ply.

The facts arc sufficiently set out in the judgment.

D. Myles Abadoo Jnr. for Appellant.

C. F. Hayfron-Benjamin for Respondent.

The following judgment was delivered:-

YATES, ACTING C .. T., GOLD COAST.

This is an appeal from the judgment of Strother-Stewart, J. dated 24th July, 1934. The plaintiff's claim is for a declaration of title for a certain piece or parcel of land known as Tenkyirem, the boundaries of which are set out in the 'Writ of Summons, and for an injunction. The suit was originally brought in the Native Tribunal of Cape Coast, but was subsequently transferred by the Provincial Commissioner on 8th February, 1932, to the Divisional Court of the Central Province under the provisions of section 71 (1) (c) of the Native Administration Ordinance.

It appears from the evidence that very many years ago there was a war between two tribes, the Aburas and Asebus, both of which tribes occupied land in the vicinity. The Asebus were defeated and driven off, and it is from a time just subsequent to this war that both parties say their ancestors occupied the land in dispute, and from them derive their title. The plaintiff claims through one Acquah Boafu, who, it is alleged, came from Cape Coast with her people, cleared the virgin forest and lived there, and her descendants have done so ever since. The defendant claims through one Apentsin, a Supi i.e. Captain of the victorious Aburas, who cleared virgin forest at a place called Wenua, and then sent out various sub-captains to clear other tracts of lands in the vicinity, one of these was Kweku Andoh, who cleared the land in dispute and the present defendant is the fifth descendant of Kweku Andoh, and since that time the defendant and his ancestors have been in undisputed possession. The plaintiff in his evidence admits that Apentsin fouuded Wenua, and that he was an Abura, but says Apentsin built Wenua with the permission of one Duku, the successor to Acquah Brafu, and that the defendant and his ancestors have farmed upon the land in dispute only with the permission of plaintiff and his ancestors who have always exercised rights of ownership.

In support of this the plaintiff called several witnesses, who said they received permission from plaintiff to farm, but their evidence is extremely vague as to the loci ,in quibus they farmed, and none of the farms are demarcated on the plan of the disputed land. Also it is most important to observe that each of them admits having given plaintiff" Drink" for permission to do so. Two other acts of ownership by the plaintiff are alleged. Firstly in 1899 one Chief Coker attempted to purchase Wenua village from an ancestor of defendant called Bekwi but was stopped. As Wenua village is not situate on the land in dispute I attach no importance to this evidence. The other act of ownership alleged by the plaintiff is, the defendant about six years ago tried to sell the land in dispute to one Sekyi, that he, the plaintiff, caused a letter to be written to Sekyi and the sale was not completed. The defendant in reply to this says when the plaintiff wrote this letter he brought an action against him in the Abakrampa Tribunal claiming the land, but the plaintiff did not appear saying- he preferred Cape Coast to Abakrampa. This action seems to have been abortive and no judgment was given.

In an action for Declaration of Title the onus of proof is upon the plaintiff to "how clear title, and I am of opinion the learned Judge should have non-suited the plaintiff at the close of his case, on the ground that there was not sufficient evidence of title to grant a Declaration of title; be that as it may, it was in my opinion clearly proved by the defendant and his witnesses, that he and his ancestors have been in occupation of the disputed land for six generations without let or hindrance by the plaintiff or }'is ancestors, that they have never paid tribute, performed acts of fealty, or given" drink" to the plaintiff for permission to farm.

For the above reasons I am satisfied the plaintiff failed to discharge the onus of proof of title which it was his duty to do, and the learned Judge was wrong' in finding' that he had The appeal must be allowed and judgment of not-suit enter'3d with costs in this Court and the Court .below.

KINGDON, C .. I., NIGERIA.

I concur.

GRAHAM PAUL, .J.

I concur.