This was an action for recovery of possession of land on which stands a valuable building.
At the close of his judgment the trial Judge in dismissing the action stated:-
“I am of opinion that it would be wholly inequitable to deprive the defendants of a valuable property ,which the plaintiffs stood by and saw erected by defendants some twelve years ago on land which they knew to their own and which defendants have had undisputed possession of until the launching of this action.”
No evidence was led at the trial by either side and it can only be supposed that the learned Judge based his findings of fact on the evidence given in Suit No. 301 of 1942 between substantially the same parties, in which the same plaintiff sued for a declaration of title to the property now in question, and for recovery of possession. The Judge in that suit granted a declaration of title, but on the ground that there was no satisfactory evidence upon which to decide who was entitled to possession, non-suited the plaintiff on this part of his claim.
The present plaintiff-appellant in the Court below in the subsequent suit, assuming that upon proof of ownership the onus of proving that their possession was lawful rested on the defendants-respondents, called no evidence, his ownership being undisputed.
He now appeals against the judgment on the ground that in absence of evidence it was unwarranted, particularly as the learned Judge had held in Suit No. 301 of 1942 that there was insufficient evidence upon which to decide the question as to possession.
It has been alleged on behalf of the respondents that, according to native customary law, proof of possession casts upon the owner not in possession the onus of proving that he is entitled to possession. No authority has been adduced to support this surprising proposition, and our impression is that the authorities point the other way. Only clear authority would dispose this Court to believe that native customary law is so unreasonable as to require the owner to disprove the case for the person in possession without first having notice of what that case consists. We have no doubt that in this case the onus of proving the right to possession was on the defendants.
In all the circumstances the judgment in the Court below will be set aside, and the case remitted to the Court below for retrial by another Judge, with the direction that the onus of proof as to right of possession lies on the defendants.
The appellants will be allowed their costs of the appeal; those in the Court below to abide the event, any costs paid by the appellants to be refunded.
Appeal allowed and new trial ordered.