Kwamina Kuma V. Kofi Kuma (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

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

Appeal Held: Plaintiff should have been non-suited at trial for failure to from adduce evidence sufficient for defendant to be called on to r(ply. judgment The facts are sufficiently set out in the judgment. of Divisional D. Myles Ahadoo Jnr. for Appellant. Court. C. I. Hayfron-Benjamin for Respondent. The following judgment was delivered:— YATES, ACTING C.J., 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 transfeired by the Provincial Commissioner on 8th February, 1932, to the Divisional Court of the Central Province under the paovisions 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.