KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND YATES, J.
In this case the plaintiff-appellant was let into possession by the respondents of a portion of land which they held under a concession after signing a written agreement and on payment of five shillings a month. He had bought from a previous occupier for £30 a house on the land and improved it. He was in occupation for about seven years. He then received notice to quit under the terms of the agreement. He then brought this claim asking for an injunction to prevent respondents from demolishing the house or in the alternative compensation.
At the trial the appellant set up that he did not understand the agreement which was therefore void and the learned trial Judge found that the respondents had failed to discharge the onus which was upon them to prove that he did understand it.
Counsel for the respondents has intimated that he intended to attack this finding, and if he did so successfully the appeal must fail; but we have not heard argument on this point and do not decide one way or the other whether the Court below was right in this respect, because we are satisfied that accepting the contention that the appellant did not understand the document, Areas, the appellant must fall, but on grounds different from those given by the trial Judge.
Having ruled out the written agreement, the trial Judge assumed that there was a verbal tenancy and considered the case Petrides’ further on this basis and eventually dismissed the claim. But in our view that was a wrong basis, if the written agreement was void as not being understood by the appellant then the true position is that there was no agreement at all between the parties. They were never ad idem. The respondents let the appellant into possession under a mistake of fact, viz., that he had signed a binding agreement with them; and the appellant obtained possession by signing a written agreement which he did nut understand and the terms of which he subsequently repudiated. The appellant is thus in possession under a mutual mistake and the respondents are entitled to oust him and to recover possession, though the appellant is entitled by native law and custom to remove his building. This he has not been prevented from doing but has not done.
The onus of proof lay on the appellant to satisfy the Court below that he was entitled to compensation. Appellant contended that he was entitled to compensation by native law and custom. The trial Judge held that native law and custom did not apply as appellant knew he could remove his house and therefore he had not suffered any substantial injustice. He held further that, even if native law and custom did apply, the appellant failed to establish the custom on which he relied.
It is not necessary to consider whether native law and custom as to compensation did apply as we see no reason to disagree with the conclusion of the trial Judge that the appellant failed to establish the native custom on which he relied.
The appeal is dismissed with costs which are assessed at. £18 6s. 0d.