Held, per Warne JSC, allowing the appeal:
1. There was abundant evidence that the identity of the land was never in doubt, including from
the survey plans and evidence of the surveyor. There was no basis for the Court of Appeal to
overturn the trial judge’s finding of fact that Kai had validly re-conveyed the land to Tamba,
after Tamba had refunded the money paid to purchase it. The Court of Appeal failed to follow
the guidelines as to when it was appropriate for an appellate court to disturb the findings of fact
by a trial judge. Powell v Streatham Manor Nursing Home [1935] All ER 58, Clarke v
Edinburgh and District Tramways Co Ltd [1914] SLR 681 and Dr CJ Seymour-Wilson v Musa
Abess (Supreme Court Civil Appeal No 5/79, 17 June 1981) applied.
2. In order to prove trespass, Tamba needed to show evidence that he was in possession of the land.
Actual possession is a question of fact which consists of an intention to possess the land in
question and exercise control over the land. The type of control which should be exercised over
the land varies with the nature of the land and the use made of the land in question. The standard
of proof required in a case of trespass based on title to land is much higher than that based on
possession. In this case, Tamba had proved he was in possession by virtue of the fact that he was
the legal owner of the land based upon validity of the 1976 re-conveyance Sesay v Kargbo &
Ors (Supreme Court Civil Appeal No 1/82, 31 December 1984) and John & Anor v Stafford
and Ors (Supreme Court Civil Appeal No 1/75, 13 July 1976) applied.