H. M. Darko V. Agyakwa (1943)
LawGlobal Hub Judgment Report – West African Court of Appeal
Declaration of Title to land—Burden of proof—Plan not drawn to scale or orientated—Material witness not called—Vague and contradictory evidence—Impossible to determine rights and wrongs of case—Non-suit.
Plaintiff’s claim in a Native Tribunal was for a declaration of title, trespass, and an account. His case was that the defendant, who owned land to the south of his, had encroached on his land.
A plan was used in the Native Tribunal, but it was not drawn to scale or orientated. This fact, together with the vagueness of the plaintiff’s evidence and inconsistencies between it and the Statement of claim, made it impossible to determine the position or boundaries of the land or to decide the rights and wrongs of the dispute.
The plaintiff called only one witness, and omitted to call two others who could have given material evidence.
The Tribunal in its judgment said ” The Tribunal is therefore not convinced by the defendant’s evidence and therefore give judgment in favour of the plaintiff “.
That the onus of proof being on the plaintiff to establish title, which he had not done, the Tribunal was wrong in giving judgment in his favour.Held: further, that plaintiff’s claim should not be dismissed, but that he should be non-suited with liberty to bring a fresh action.