EBUSUAPANYIN KWAME ATTA VRS EBUSUAPANYIN KWAKU AMOESI (J4/22/2024) [2024] GHASC 22 (24 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A.D. 2024 CORAM: OWUSU (MS.) JSC (PRESIDING) AMADU JSC KULENDI JSC KOOMSON JSC KWOFIE JSC CIVIL APPEAL NO. J4/22/2024 24TH APRIL, 2024 EBUSUAPANYIN KWAME ATTA ….. PLAINTIFF/RESPONDENT/APPELLANT (SUBST. BY EBUSUAPANYIN KOFI KWA DUA) VRS EBUSUAPANYIN KWAKU AMOESI ……….. DEFENDANT/APPELLANT/ RESPONDENT JUDGMENT KULENDI JSC: INTRODUCTION 1. We have before us an appeal against the judgment of the Court of Appeal, Cape Coast, delivered on the 29th of June 2022 which reversed the judgment of the High Court dated 22nd October 2020. Per the notice of Appeal filed on the 19th of July 2022, the Appellant seeks an order setting aside the Judgment of the Court of Appeal and a further order restoring the judgment of the trial High Court. For ease of reference and for the purposes of this Appeal, we shall refer to the Plaintiff as the Appellant, and the Defendant as the Respondent. Page 1 of 28 BACKGROUND: 2. The backdrop against which the instant appeal was mounted are as follows: The Appellant, in his capacity as Head of the Aboradze family of Akatakyiwa, filed a Writ of Summons and Statement of Claim on 28th October 2009. This was then subjected to several amendments culminating in an “Amended Amended Statement of Claim” filed on the 6th of February 2015. In reaction to this, the Respondent, also suing in his capacity as Head of the Aboradze family of Akatakyiwa, filed an Amended Amended Statement of Defence on the 2nd of November 2017. On the 10th of November 2017, the Appellant then filed a Reply to the Amended Statement of Defence’ 3. The reliefs sought per the amended amended writ of summons were as follows: 1. A declaration of title to all that piece or parcel of land lying at Akatakyiwa in the Mfantseman District Assembly Area in the Central Region of the Republic of Ghana, which shares boundaries with Ebu. Kow Afful, Nsona family of Akatakyiwa, Opanyin Nana Kyerede of Kona family of (Biriwa), Nana Nta Akotsen Asafora (Twidan), Nana Ogyentsi of Waakrom (Twidan), Nana Acquah of Yamoransa Kojokrom (Nsona), Opanyin Kofi Atta of Yamoransa (Anona), Opanyin Kweku Addo of Twidan No. 2 family of Yamoransa, Ebu. Tanoa of Nsona family of Yamoransa, Ebu. Kofi Atta of Nsona family of Yamoransa Kokwaado, Opanyin Morgan of Twidan Royal family of Yamoransa, Nana Amenye of Anona family of Moree and Ebu. Kwame Nyarkoh of Abadze family of Akatakyiwa. 2. Recovery of property. 3. General damages for trespass. 4. Perpetual injunction restraining the Defendant, his workers, assigns and servants and anybody claiming through the Defendant from dealing Page 2 of 28 with the land in anyway adverse to the interest of the Plaintiff and/or without the Plaintiff's express consent and permission. This can be found at page 267 of Volume 1 of the Record of Appeal. THE APPELLANT’S CASE: 4. The Appellant, in the Amended statement of Claim, asserts that the Akatakyiwa village originated from the initial discovery, settlement and cultivation efforts of his ancestor, Nana Afful Kwasi Matta, a member of the Aboradze family. According to the Appellant, Nana Afful Kwasi Matta, accompanied by his wife, sister, nephews, and nieces, were part of the original Fanti people who migrated from Takyiman to Mankessim in the 14th Century. 5. The Appellant alleges that Nana Afful Kwasi Matta then led his family, comprising his sister, his nephews and his wife from Mankessim to establish a settlement and engage in farming on a piece of virgin land, eventually named Akatakyiwa. After this, Nana Afful Kwesi Matta assumed the role of the founding Head of the family, Chief, and consequently, the customary owner of the land. The Appellant further contends that after the Nana Afful Kwesi Matta family of Akatakyiwa had settled on the land, three female ancestors of the Respondent, who belonged to the Aboradze family of Ekumfi Abuakwa, sought refuge at Akatakyiwa after being banished from their village. 6. The Appellant alleges that like the Respondent, his family hails from the Aboradze clan and therefore, due to this familial relationship, his ancestor accepted these three women and, allowed them to settle within Akatakyiwa. Continuing the narrative, the Appellant states that a son of Nana Afful Kwesi Mattah married one of the three women who came from Ekumfi Abuakwa. 7. In the passage of time, the Appellant claims that these women were subsequently joined by three of their uncles who had come to seek reprieve from a famine that had devastated their hometown. Upon their arrival, those Page 3 of 28 three uncles petitioned Nana Afful Kwesi Mattah for land on which they could farm and he offered them a piece of land known as Yaaduku. 8. The Appellant alleges that Nana Kwesi Mattah was the first chief of Akatakyiwa, and further that after his demise he was succeeded by ancestors of the Appellant, however, after the demise of the third successor of Nana Kwesi Mattah, there were no elderly males competent to ascend the Akatakyiwa stool and therefore, due to common family descent and intermarriages, members of the Respondent’s section were appointed as regents of Akatakyiwa by the Appellant’s family to “sit on the lap of a very old person of the Appellants family”. 9. The Appellant alleges that upon the death of the head of the Akatakyiwa family by name Opanyin Kwaku Arhin, one Abrewa Ekuafua was selected as family head and during her headship, litigation was commenced against the Akatakyiwa family over the title of Akatakyiwa lands. According to the Appellant’s, the said Abrewa Ekuafua selected Safohene Kwamina Akwaah, who was a member of the Respondent’s family to ‘stand in’ as Nana Kwa Dua II, Chief of the Akatakyiwa stool and requested for one ‘Ngyedu’ to act as overall head of family for Akatakyiwa. The Appellants admit that this Nygedu also hailed from the Respondent’s family. The Appellant concludes the case by asserting that a rift between the two Aboradze family sections occurred in 1960 after the death Ngyedu. This disagreement led to a split in their familial relationship, resulting in the appointment of separate Heads of families for each section. 10. On this historical background, the Appellant asserts that over the years, members from this migrant Aboradze family, had overstepped the boundaries of the Yaaduku lands allocated to them and had begun trespassing onto other lands and even disposing portions of to third parties. The Appelant identified some of the affected lands as Ndzeba, Out-Anor Boko,Twerkwu, Egyaakor, Ohonto, Ekyir Asaba etc. Page 4 of 28 11. In this regard, the Appellants have argued that even the land that was allocated the Respondent’s family for farming, was not meant to be sold off by the Respondent. The Appellant further claims that the Respondent is currently involved in the unauthorized and unlawful sale of portions of the Akatakyiwa land for personal enjoyment. THE RESPONDENT’S CASE: 12. The Respondent refutes each significant claim put forth by the Appellant, asserting a complete denial of all material factual allegations. Specifically, the Respondent contests the existence of any individual named Afful Kwesi Matta in the history of Akatakyiwa. Instead, the Respondent maintains that it was the Respondent’s section of the Aboradze family that established the Akatakyiwa settlement during their migration from Takyiman (Bono East) as part of the "Bor-Bor Mfantsi Migrants." 13. Furthermore, the Respondent contends that the Appellant’s family migrated from Ekuase near Sekondi (Western Region) to join the Respondent’s family at Akatakyiwa. The Respondent argues that its family occupied the Akatakyiwa lands and have since exercised obvious and overts acts of control and possession over same without interference or challenge from any person, faction or family. The Respondent supports this claim with documents, including judgments and proceedings, which confirm the ascendancy of several male members of his family to the Royal Stool of Akatakyiwa. 14. According to the Respondent, this lineage extends from his ancestor Nana Pima Kwa Dua I, the founder of the Akatakyiwa settlement, through to Nana Kwa Dua II to Nana Kwa Dua XVIII, who currently holds the position of Chief of Akatakyiwa. The Responndent also asserts documented ownership of the Akatakyiwa land, including the disputed parcel. The Respondent however stopped short of counterclaiming for a declaration of title over the disputed land. Page 5 of 28 THE JUDGMENT OF THE HIGH COURT: 15. By a judgment delivered on the 22nd Day of October 2020, by the High Court Cape Coast, coram: Her Ladyship, Patience Mills-Tetteh J, the Court determined the case in favor of the Appellant and granted all the reliefs sought. 16. In the said judgment, the learned High Court Judge stated, in part, as follows, “The main issue which must be determined to resolve their differences is to find which groups lineage first migrated with the Fante tribe from Takyiman to Mankessim and thence to the new settlement by name Akatakyiwa village.” [sic] 17. In resolving this all important question, the Trial High Court Judge continued at page 12 of her judgment thus: “The two groups represented by the parties herein claim to have been the Aboradze family that migrated from Takyiman to Mankessim. From their two historical narrations on the movement of the two groups, the Plaintiffs version is more probable than that of the defendant.[sic]” 18. The version of the plaintiff on the origin of the name of the village after settlement is more logical, reasonable and probable than that of the defendant. The myth surrounding the origins of the name Akatakyiwa is clear from the narration of the plaintiff that defendant’s ancestors came to meet the plaintiff already settled at Akatakyiwa mounding ‘aketekyiwa’ for sale. The defendant’s version of the origins from the name ‘Takyiwa’ is not quite authentic.” 19. The defendants want this court to believe that an old lady by name Takyiwa carried their stool on her back throughout the journey to settle in Akatakyiwa hence the name. The name Takyiwa however is not synonymous with the name Akatakyiwa … In this instant case the plaintiff’s historical evidence deriving the name Akakyiwa from an old lady’s moulding of a pot for sale is preferred to an old lady whose name is Takyiwa and who carried a stool so many miles in a Page 6 of 28 journey, The round receptacle produced from a gourd for storing drinks is called in Fante language, ‘akatakyewa’ and according to the narration customers who often tracked that rout to buy this pot said they were going to Akatakyiwa to buy pot and this is more probable … “ (emphasis ours) 20. Further, at page 21 of the judge of the Trial High Court, the judge opined that: “Assuming the defendants really own the land in dispute, they would not have assessed their victory through the quality of the representatives of the plaintiffs but by the evidence the defendants have. The defendants do not have evidence to convince this Court that they own the land in dispute and that it why they thought of how they court overcome their opponents not by their evidence but by some other means against their opponents before the Nkusukum Council.” 21. In concluding, the learned Trial High Court judge said at pages 27 and 28 of the judgment as follows: “Explaining further the origins of the name Akatakyiwa, there are two Folklore narratives in the history of that town which is similar to the narratives of the parties herein; according to the representative of the defendant, the name Akatakyiwa is derived from the name Takyiwa, an old lady who carried the unifying stool to the village, however, "Takyiwa" is not the same as "Akatakyiwa." The folklore story explains the name as "Aka Takyiwa" when translated from the Fante language, means "it is left with Takyiwa." Which also suggest that for a reason unknown either Takyiwa was left behind or when the defendant group arrived at the village of Akatakyiwa there were some settlers there and they had to explain to them that they were left with Takyiwa. It is not known how these two explanations would form the basis of a name of the village, except perhaps the explanation from the evidence by the defendant that he had heard the name Artwewa and Artwewa moved from Akatakyiwa to Abuakwa because of marriage to a husband from Abuakwa. Page 7 of 28 If Takyiwa carried the unifying stool to the village as narrated by the defendants, then the village should be named after Takyiwa and not "Akatakyiwa" or translated from the Fante language, "It is left with Takyiwa." The plaintiff's narrative of the origins of the name of the village which is more probable is that when they arrived there was no name for the settlement. Afful Kwesi Matta's wife Okoma and his sister Aba Eku used to mould palm wine pots and people came to the location of the settlement to buy the pots. Those who went to buy the pots referred to the sale point as "akatakyiwa," and that was the origin of the name of the village. The folk lore related to this also stated that the gourds which are emptied and used for storage of drinks including palm wine was sold by an old lady in that village and potential buyers of the pots called the village "aketekyiwa" when they were going to purchase the pot for palm wine. The name of a gourd (calabash-like pot) in Fante language is "akatekyiwa," same name and same spelling but different pronunciation. I find plaintiff's version by preponderance of probabilities credible.” APPEAL TO THE COURT OF APPEAL: 22. Dissatisfied with the decision of the High Court, the Respondent lodged an appeal with the Court of Appeal, this culminated in the overturning of the decision of the High Court. 23. In reaching this conclusion, the Court of Appeal was of the opinion that the High Court judge was overly fixated on the fluency, logical coherence and delivery of the Appellant’s traditional evidence and failed to adequately balance these acts against recent acts in living memory. 24. The Court of Appeal argued that the High Court also failed to properly appreciate the conflicting burdens of proof which the various parties bore in Page 8 of 28 respect of proving their cases. Even though the Respondent did not have a counterclaim, the appellate Court noted that the trial High Court judge kept insisting that the Respondent had failed to adduce sufficient evidence in proof of his case. In the estimation of the appellate Court, this was a misapprehension of the evidential burden that the Respondent carried. The Court of Appeal found that since the Respondent had failed to counterclaim for any remedies, he was not required under law to prove a superior title to that of the Appellant. 25. Furthermore, the Court of Appeal was of the opinion that the Appellant had admitted that the Respondent’s family had exercised overt acts of possession but failed to adduce evidence in recent memory to displace the presumption that those acts of possession were evidence of ownership. 26. In conclusion, the Court of Appeal centered their judgment on three main heads, evidence of occupation and possession by members of the Respondent’s family, evidence of occupation of the Akatakyiwa Stool by members of the rival families and evidence of litigation over ownership of Akatakyiwa lands by members of the rival families. The Court of Appeal relied on these three heads as constituting facts in recent memory which categorically militated against the claim that the Appellant’s family were the sole and exclusive owners of all Akatakyiwa lands. 27. On the evidence of litigation by members of the rival families for example, the Court of Appeal found that not only were suits in relation to Akatakyiwa lands commenced by members of the Respondent’s family, in other instances, such members for the Respondent’s families were joined as Defendants to suits bordering on disputes over Akatakyiwa lands. 28. In departing from the position reached by the Trial High Court, the appellate court said thus: “ By failing therefore to allow the incontrovertible evidence of possession to be her safest guide in resolving the rival traditional histories she was confronted with, the learned trial judge, with all due deference, failed to Page 9 of 28 properly direct herself as to the proper approach for resolving the raging controversy that presented itself before her in this litigation. She allowed herself to be carried away solely by the impressive manner in which the Plaintiff narrated his version of traditional history, and in the process made too much of what was clearly a false demonstration. She was, in our respectful opinion, in error in that. Her conclusions we are afraid, cannot remain unscathed.” 29. The Court of Appeal thereby overturned the decision of the High Court and entered judgment for the Respondent. GROUNDS OF APPEAL: 30. Aggrieved by the Decision of the Court of Appeal, the Appellant filed a Notice of Appeal on the 19th of July 2022, on the following grounds: 1. The Judgment is against the weight of the evidence and the law. 1(a) Their Lordships of the Court of Appeal erred in purporting to enter Judgment for the Defendant (Respondent) who had not made any claim or counterclaim for any relief in all the proceedings. 1(b) Their Lordships of the Court of Appeal misconstrued and misapplied the principle of possession and occupation by an adversary as a defence to the facts and evidence of the case on Appeal without consideration of the peculiar background and circumstances of the parties; being from different lineages of a common traditional Aboradze family then fused by the common bond. 1(c) Their Lordships of the Court of Appeal erroneously got themselves engrossed with the critique of the Judge of the trial Court to the detriment of a fair consideration of the case of the Appellant upon the record of the appeal before the Court. 1(d) Their Lordships of the Court of Appeal fell in error of making findings and endorsing statements touching on causes or matters Page 10 of 28 affecting Chieftaincy between the parties pending before the proper and appropriate forum, and applying those findings and declarations made without jurisdiction to support their Judgment in the Appeal before them which was simply over title to land. 1(e) Their Lordships of the Court of Appeal unjustly and unfairly refused to accept the undisputed fact that the two lineages of the Aboradze family of the parties to the dispute were at some period in time fused into one common family with its corresponding incidents until the family land gained monetary value and the Respondents began selling portions without recourse to Appellant; thus occasioning conflicts and the legal action. 31. By means of preliminary submissions before this Court, the Respondent argues that the Appellants grounds of Appeal, specifically grounds 1(a), (b), (c), (d) and (e) fell afoul of Rule 6 (2), (4), and (5) of the Supreme Court Rules, 1996 (C. I. 16) as the said grounds did not, “specify the particulars of errors of law or misdirection that they alleged and/or were couched in vague, argumentative and narrative terms.” Ultimately, he urges this Honorable Court to strike out these grounds on grounds of non-compliance with mandatory provisions of the Rules of Court. 32. It must be emphasized that it is the fundamental duty of a party prosecuting his or her case before a Court. whether personally or through the service of retained Counsel, to ensure strict adherence to the Rules of Court, especially where such party appears before no less a Court than the apex Court of the land. These Rules are the non-negotiable yardsticks which regulate the conduct of cases before the Court and ought to be treated with due regard. 33. In the case of the Republic v Central Regional House of Chiefs Judicial Committee: Ex parte: Aaba (2001-2002) 1 GLR 221, this Court per Adzoe JSC stated at pp 229-230 thus; Page 11 of 28 “The rules of the Supreme Court (and all other Courts) are there to be observed. They form an important component in the machinery of the administration of justice and the courts must not, as a general rule, take lightly any non-compliance with them ...” 34. The consequences of non-compliance with the Rules of the Supreme Court are dire and unless such non-compliance is waived, a violation of the rules of this Court shall fatally injure a party’s opportunity to prosecute its case before the Court. 35. Rule 70 of the Supreme Court Rules, 1996 (C.I. 16) provides as follows: “Where a party to any proceedings before the Court fails to comply with any provision of these Rules or with the tenl1s of any order or,direction given or with any rule of practice or procedure directed or determined by the Court, the failure to comply shall be a bar to further prosecution of proceedings unless tile Court considers that the non-compliance should be waived. ” 36. Where such an unfortunate consequence is occasioned by reason of non- compliance with the Rules of Court, this Court may, where the party affected is represented by a lawyer, award cost personally against the said lawyer whose non-observance of the Rules has caused the striking out or dismissal of the parties case. 37. We shall now address the specific allegations made by the Respondent in respect of the grounds of Appeal raised by the Appellant. The purpose the rationale behind Rule 6 of the Supreme Court Rules, 1996, CI. 16 was expounded on by this Court in Dahabieh v. Turquoi & Bros [2001 – 2002] SCGLR 498 holding as follows: “The intention behind rule 6 of the Supreme Court Rules, 1996 (C. I. 16) is to narrow the issues on appeal and shorten the hearing by specifying the error made by the lower court or by disclosing whether or not a point at issue had been raised. By that way, both the court Page 12 of 28 and counsel for the respondent would be enabled to concentrate on the relevant parts of the evidence in the record of proceedings and not waste time on irrelevant parts of the evidences with respect to questions of law, it is necessary that the respondent and his lawyers know well in advance what points of law are being raised so that they may prepare their case and marshall their authorities; whilst an indication that the point of law was or was not raised in the court below may help the court resolve the issue faster. In the instant case, ground (1) of the grounds of appeal alleging that the judgment is wrong in law is in effect saying that there is an error of law in the judgment. If so, then rule 6 (2) required the appellate court to specify in the ground of appeal that particular complaint amounting to an error of law. Having failed to do so, ground (1) of the grounds of appeal is inadmissible” 38. Grounds 1(a) to (d) of the Appellant’s grounds of appeal all allege errors of law. Contrary to Rule 6(2)(f) none of these grounds have been particularized, in consequence, these grounds are struck out for non-compliance with the rules of Court. 39. Similarly, Rule 6(4) of the Rules of this Court provides as follows: “The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal, without any argument. or narrative and shall be numbered seriatim; and where a ground of appeal is one of law the appellant shall indicate the stage of the proceedings at which it was first raised.” 40. A ground of appeal shall be described as narrative where it is presented in the form of a narration or story. Such grounds often resemble a story or a chronological account of events rather than a concise enumeration of legal issues implicated by the party’s appeal. Instead of focusing on specific legal points, the appellant may delve into detailed descriptions of the facts or Page 13 of 28 procedural history of the case. The policy that underlies the proscription of narrative grounds of appeal is that such presentation obscures the legal issues and makes it difficult for the court or the other party to identify the precise basis of the appeal lodged. 41. Similarly, grounds of appeal become argumentative when they include discussions, explanations, or justifications for the appellant's position. Rather than simply stating the legal issues without any argument, the appellant may attempt to persuade the court by providing reasoning or analysis supporting their grounds of appeal. While presenting arguments is essential in legal proceedings, Rule 6 requires that grounds of appeal be stated without any argument, emphasizing a clear and concise enumeration of the legal issues to be considered by the court. 42. Ground 1(e) of the Appellant’s appeal states: “ 1(e) Their Lordships of the Court of Appeal unjustly and unfairly refused to accept the undisputed fact that the two lineages of the Aboradze family of the parties to the dispute were at some period in time fused into one common family with its corresponding incidents until the family land gained monetary value and the Respondents began selling portions without recourse to Appellant; thus occasioning conflicts and the legal action. ” 43. Clearly, this ground violates Rule 6(4) as it is both narrative and argumentative and offers absolutely no insight into the error alleged to have been committed by the Court of Appeal to warrant an overturning of the decision. On the basis of the foregoing, the above ground is struck out. 44. In consequence of the above, it would seem that only ground 1 of the Appellant’s ground survive for consideration by this Court. The said ground states: “The Judgment is against the weight of the evidence and the law.” Page 14 of 28 45. It will be noted that the conventional phrasing of the omnibus ground of appeal, as contemplated by Rule 6(5) is: “That the judgment is against the weight of the evidence”. 46. The formulation adopted by the Appellant is fractionally different from the traditional couching of the ground and it would seem that this change did not go unnoticed by the Respondent. In fact, the Respondent contends that having introduced the phrase “the law” into the wording of the omnibus ground of appeal, the Appellant assumed an obligation to particularize the error or misdirection of law claimed, and having failed to do same, the said ground breached the statutory prescriptions of Rule 6(2)(f). 47. Rule 6(5) of the Supreme Court Rules provides as follows: “ No ground of appeal which is vague or general in terms or discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of evidence; and any ground of appeal or any part of it which is not permitted under this rule may be struck out by the Court on its own motion or on application by the respondent.” (emphasis ours) 48. Quite clearly, the wording of the omnibus ground of appeal admits of no variation or alteration. Its text is immutably cast in statute and no party has the discretion to tinker with the manner in which it is couched. In the circumstances, the phrase “and the law” constitutes a superfluous addition. In exercise of our power Rule 6(5), we strike out the words “and the law” which constitute the offending portion of the said ground and shall proceed to determine the appeal on the omnibus ground alone. 49. The classical formulation on the duty imposed on an appellant who raises the omnibus ground of appeal is found in the case of Djin v. Musa Baako 2007- 2008 SCGLR 636 where this Court held that: Page 15 of 28 "Where as in the instant case an appellant complains that a judgment is against the weight of evidence, he is implying that there are certain pieces of evidence on record which if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against." 50. Recent developments in the law have expanded on the scope of arguments that can now be canvassed under the omnibus ground. Under the original application of the principles governing the omnibus ground, the appellant who lodged an appeal solely on the basis of the omnibus ground was solely confined to arguments on factual lapses and inconsistencies occasioned at the Court below, however in the case of Owusu Domena v. Amoah [2015-2016] 1 SCGLR 790 this Supreme Court held: “Where the appeal was based on the omnibus ground that the judgment was against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters”. 51. The venerable Twum JSC in delivering this Court’s decision in the case of Attorney General v. Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271, affirmed this view where he said as follows: “Admittedly, it is most prudent, as indeed, it is mandated by rule 6(4) of CI 16 that, where a party intends to raise an issue of law, the ground upon which he intends to rely, must, among other things, be set out concisely and under a distinct head. But, the argument that this constitutional issue and for that matter a legal issue cannot be addressed under an omnibus ground is untenable. It seems to me that in strictness, this common ground of appeal is one of law, for in essence, what it means, inter alia, is that, having regard to the facts available, the Page 16 of 28 conclusion reached, which invariably is the legal result drawn from the concluded facts, is incorrect. The general ground of appeal is therefore not limited exclusively to issues of fact. Legal issues are within its purview.” 52. On this basis therefore, in an instance such as this, where an appeal is mounted solely on the basis of the omnibus ground, it behooves the Appellant to persuade this Court, by reference to relevant evidence on record or applicable legal rules and principles which if applied or properly construed, would have tilted the scales of justice in his favor. The onus lies on the Appellant to proffer compelling arguments, fortified by the evidence on record and reinforced by the appropriate legal norms and principles that highlights the deficiencies in the impugned ruling and simultaneously illuminates a path towards rectifying these mistakes occasioned by the Court below, in alignment with the principles of fairness and equity. APPELLANT’S SUBMISSIONS: 53. In a Statement of Case filed on 25th April 2023, the Appellant argues that the Respondent failed to make any counterclaim in their defence, and that this fact was further acknowledged by the Court of Appeal in their judgment. However the Court of Appeal proceeded to enter judgment in their favor. The Appellant argues that having failed to expressly counterclaim for title in the Respondent, the Respondent had failed to make claim to the Akatakyiwa land and therefore, the position adopted by the Court of Appeal, threw the case up for a fresh consideration. The Appellant further argues that the Respondent never led any evidence touching on any claim of right to the land or any relief. 54. The Appellant then rehashes the narrative that until 1960, both the Nana Afful Kwesi Matta of Akatakyiwa and the Ekumfi Abuakwa families of Aboradze were fused as one. And that a member of the Respondent’s family had been selected to head the joint family or act as Regents of the Akatakyiwa stool. Therefore, Page 17 of 28 where a regent asserted control over the land and even sold same, this was done in his capacity as reagent of both families and therefore had the blessing of the Nana Afful Kwesi Matta family of Akatakyiwa. Consequently, the Appellant argues that the Court of Appeal erred in construing such acts as being adverse to the ownership of the Akatakyiwa family. 55. Similarly, the Appellant took issue with the fact that the Court of Appeal in their judgment had suggested that the Appellants had failed to indicate when the Respondent had started encroaching on land that had not been granted to their ancestors as part of the Yaaduku lands. The Appellant argues that the Respondent was able to extend their farming activities to other portions of Akatakyiwa lands because of the fusion and unity that prevailed between the families for centuries until the 1960’s. 56. The Appellant further argues that the trial High Court was not wrong to have been swayed by his perception of the dearth in reason or logic in the evidence presented by the Respondent. He argues further that in any case, the evidence of occupation and possession of portions of the Akatakyiwa lands by the Respondents did not constitute acts of ownership and possession as appears to have been the premise and conclusion of the Court of Appeal. 57. The Appellant argues that the Court of Appeal diverted its attention rather to issues of Chieftaincy and occupation of the Akatakyiwa stool, which is according to the Appellant, purely family land. According to the Appellant, the relevant question to be answered, as had been urged by the trial High Court, was who, between the ancestors of either of the parties was the first to settle at Akatakyiwa. 58. The Appellant argues that the various witnesses presented at the trial all corroborated the Appellant’s narration both of the source of the name Akatakyiwa and also of the first settlors on the Akatakyiwa land. The Appellant in turn discredits the testimony of the witnesses presented by the Respondent, indicating that of the 6 witnesses, 3 of them had claimed to have an interest in a part of the Akatakyiwa lands and indeed one of the said parties had gone Page 18 of 28 ahead to commence an action against the Appellant which was ultimately settled in the Appellant’s favor. Of the remaining three witnesses, the Appellant argues that one of the witnesses, DW3, one Ebusuapanyin Kow Afful, only came to testify that he was unsure about which of the two sections of the Aboradze family was the royal family. And that though he had heard of Nana Afful Kwesi Matta, he only knew that the said individual was a member of the Aboradze family. 59. According to the Appellant, DW4, Ebusuapanyin Kobina Tawiah, similarly admitted under cross examination that his predecessors in title had lost a case for declaration of title to the land which he had alleged to be holding as a boundary neighbour of the Respondent. On this basis therefore, the Appellant argues that little to no probative weight ought to be placed on their testimony. RESPONDENT’S SUBMISSIONS: 60. In addressing the substantive heads of the Appellant’s appeal against the judgment of the Court of Appeal, the Respondent reaffirms the fundamental legal position, which has received overwhelmingly affirmation by this Court in a plethora of cases, that where the resolution of a legal dispute turns on the preference of differing versions of traditional evidence, the Court ought to compare the rival versions or narrations of the parties, with relevant acts in recent or living memory and prefer the version that better aligns with the more recent acts. 61. The Respondent contends that, as pertains to this case, the primary act in living or recent memory which this Court ought to give premium to, were the overt and undisputed and uninterrupted acts of possession and occupation by the Respondent over copious portions of Akatakyiwa lands without challenge by the Appellants. According to the Respondent, such clear acts created a presumption of ownership over the land and in the absence of recent evidence rebutting the said presumption, ought to establish the traditional evidence of the Respondent as being more probable than that of the Appellant. Page 19 of 28 62. In support of this position, the Respondent cites the case of Adjei v. Acquah (1991) 1 GLR 13 where this Court said as follows, “Facts established by matters and events within living memory, especially evidence of acts of ownership and possession must take place over traditional evidence.” 63. The Respondent argues that his family’s possession of the disputed land or at least substantial portions thereof, constitutes prima facie title to the said lands and consequently created a presumption of ownership which could only be rebutted by proof of better title. The Respondent urges that these acts of possession, being acts in recent and living memory, lead to the irresistible conclusion that the Respondent’s claims to the land ought to be preferred against that of the Appellant. 64. The Respondent further asserts that contrary to the position urged by the Appellant, no evidence was led to establish any acts of possession whatsoever by the Appellant over any parts of the land, the subject matter of the dispute. 65. The Respondent avers that the extract from the National Register of Chiefs, which confirmed that several members of his family had occupied the Akatakyiwa stool, was yet another piece of evidence in recent memory which established their claim as the more preferred version of the two positions. Furthermore, the Respondent argues that the very fact that members of his family had litigated over Akatakyiwa lands for several years underscored the veracity of their claims as being more probable than that of the Appellant. 66. In reaction to the Appellant’s argument that the Court of Appeal ought not have entered judgment for the Respondent because the Respondent did not have any counterclaim seeking any such relief, the Respondent argues that the Court of Appeal was empowered by the landmark case of Hanna Assi (No.2) v. GIHOC Refrigeration & Household Products Ltd. (No.2) [2007-2008] SCGLR 16, where this Court even in the express absence of a counterclaim by Page 20 of 28 the Applicant therein granted reliefs of declaration of title and recovery of possession. RESOLUTION 67. We reproduce extensively from the judgment of the Trial High Court to reflect what we consider to be a fundamental defect in the position taken by the trial High Court judge, which in our view was properly rectified by the appellate Court below. Evidently, the trial High Court judge rested her decision on her impressions of which of the conflicting accounts of traditional evidence was more persuasive and logically sound in her estimation. With due respect to the learned High Court judge, this position was fundamentally erroneous and was at odds with the rules underpinning reliance on traditional evidence. 68. In the early case of In Re Adjancote Acquisition; Klu v Agyemang II [1982-83] 2 GLR 852 at 857 the Court of Appeal per Edward Wiredu JA (as he then was) outlined the salient guiding principles to be employed in cases bordering on conflicting versions of traditional evidence: (1) Oral evidence of tradition may be relied upon to discharge the onus of proof if it is supported by the evidence of living people of facts within their own knowledge. (2) Where it appears that the evidence as to title is mainly traditional in character on each side and there is little to choose between the rival conflicting stories the person on whom the onus of proof rests must fail in the decree he seeks. (3) Where there is a conflict of traditional history, the best way to find out which side is probably right is by reference to recent acts in relation to the land. Page 21 of 28 (4) Where claims of parties to an action are based upon traditional history which conflict with each other, the best way of resolving the conflict is by paying due regard to the accepted facts in the case which are not in dispute, and the traditional evidence supported by the accepted facts is the most probable. (5) Where the whole evidence in a case is based on oral tradition not within living memory, it is unsafe to rely on the demeanour of the witnesses to resolve conflicts in the case. (6) Where the admission of one party establishes that the other party has been in long undisturbed possession and occupation of the disputed land, the party making the admission assumes the onus to prove that such possession is inconsistent with ownership. The law is that such a person in possession and occupation is entitled to the protection of the law against the whole world except the true owner or someone who can prove a better title. (7) In a claim for title to land where none is able to show title because of want of evidence, or that the evidence is confusing and conflicting, the safest guide to determining the rights of the parties is by reference to possession.” 69. This position was affirmed in the classical case of Re Taahyen & Asaago Stools; Kumanini II (Substituted) Opon vrs. Anin (1998-99) SCGLR 399 where this Court said as follows: "in assessing rival traditional evidence, the Court must not allow itself to be carried away solely by the impressive manner in which one party narrated his version, and how coherent that version is; it must rather examine the events and acts within living memory established by the evidence, paying particular attention to undisputed acts of ownership and possession on record, and then see which version of the traditional evidence, whether coherent or incoherent, is rendered more probable Page 22 of 28 by the established acts and events. The party whose traditional evidence such established acts and events support or render more probable, must succeed unless there exists on the record of proceedings, a very cogent reason to the contrary".(emphasis ours) 70. Similarly, in the case of Ago Sai & Others v Kpobi Tetteh Tsuru III 2010 SCGLR 762 at 825 this court reiterated the long standing principle that where title to land is premised on traditional history that is disputed, the testimony has to be weighed in the light of more recent facts as can be confirmed from evidence before the court. 71. The record before this Court is replete with evidence proving the acts of possession and ownership exercised by the Respondent’s family since the 14th century up until the 1960’s and beyond, when division broke out between the families. 72. We note that both parties admit that, at least, up until the 1960, both parties occupied portions of the Akatakyiwa lands, in fact at pages 16 and 17 of the statement of case filed by the Appellant on the 25th of April 2024, Counsel for the Appellant summarized the crux of the Appellants narrative as follows: “My Lords, indeed the fact that the two sections of the Aboradze family (Appellant and the Respondent’s) for a considerable period in their history did all things in common as the united family was confirmed by the Respondent himself under cross examination on the 19th of February, 2019 on pages 557, Vol 2 of the Record of Appeal … Infact ownership ownership and occupation of the entire Akatakyiwa lands for farming were during the period enjoyed in common among the Aboradze family as an entity.”[sic] 73. Similarly, the Appellant’s attorney, in delivering his evidence in chief, at page 220 and 222 of Volume 1 of the Record of Appeal alleged that the Respondent had, since the separation of the two families, extended beyond the area that Page 23 of 28 had been allocated to their ancestors, being the Yaaduku lands and had begun to sell off portions of these lands. 74. We find that these averments, made by none other than the Appellant’s Attorney while testifying and re-iterated by Appellant’s Counsel in his statement of case, constitute plausible evidence of possession and thereby supports the presumption of ownership in favor of the Respondent. This admission by the Appellant lends credence to the holding of the Court of Appeal that Appellant was caught by acquiescence and laches and was thereby estopped from disputing the title of the Respondent. 75. The Appellant has argued strenuously that the Respondent’s possession of Yaaduku land, and in fact any other lands, during the periods of amity between the two families, was at the sufferance of the Appellant’s family; and further that the said possession, after 1960 when the families separated, was trespassory. However, the fact remains that the possession of portions of Akatakyiwa land by members of the Respondent family remains actions in recent and living memory and therefore, carry greater weight and probative value than the mere assertions or reaffirmations of the same traditional evidence by the Appellant and his witnesses. 76. In the case of George Kwadwo Asante &Amp; Ors v. Madam Abena Amponsah &Amp; [2022] GHASC 39 this Court, in rehashed the premium to be placed on the fact of possession in a legal dispute concerning land as follows: “Now in law, possession is nine-tenths of the law and a plaintiff in possession has a good title against the whole world except one with a better title. It is the law that possession is prima facie evidence of the right of ownership and it being good against the whole world except the true owner he cannot be ousted of it.” 77. Again, Appellant from pages 272 to 286 of Volume 1 of the Record of Appeal admitted that members of the Respondent’s family had, for long periods occupied the stool of Akatakyiwa and that at certain points in the history of Page 24 of 28 both family members of the Respondent’s family had been selected as family head for the unified Akatakyiwa family. In support of this claim, the Respondent tendered Exhibit 8 which contained a list of about 17 successive chiefs who occupied the stool of Akatakyiwa, some of whom the Appellants admit were members of the Respondent family. 78. The Appellant however aver that whenever members of the Respondent occupied the stool, they did so as regents and not as substantive chiefs as only the members of the Nana Kwaku Afful Matta family of Akatakyiwa could properly be enstooled as chief. 79. At page 285 of the Record of Appeal however, the Appellant’s attorney, by his own testimony, admitted that a member of the Respondent family was made a chief and conferred on him a stool name. “My ancestors mentioned the name of Nana Kwamina Akwaa to me. I was told he was a Safohen. At a time, the people of Yamoransa led by Nana Yando Kessie II engaged the people of Aketekyiwa in a litigation. Nana Nkweifua was the Head of Family of Nana Afful Kwesi Matta's Aboradze family. The Stool at the time was vacant and so Nana Nkweifua called a meeting of the descendants of Nana Afful Kwesi Matta and the migrants from Ekumfi Abuakwa and told them that since the stool was vacant and her descendants were all young, she had decided to appoint a member of the said Ekumfi Abuakwa migrants to lead them as a Chief. She for that matter appointed Nana Kwamina Akwaa from the migrant section as the Chief. Nana Nkweifua then conferred the stool name Nana Kwa Dua II on him to lead the people in the litigation.” 80. It is salient to note that it is this Nana Kwa Dua, together with one Kobina Ngyedu, who at the time was head of family for the unified Akatakyiwa clan, who defended the action instituted by Nana Yandoh Kessi II suing in his capacity as Omanhene of Yamoransa which judgment can be found at page 56 of Volume 1 of the Record of Appeal. Page 25 of 28 81. This constitutes acts in living memory which align more with the position urged by the Respondent. We find impressive the narration urged by the Appellant that the elevation of the said Nana Kwamina Akwaa to the position of Chief was so as to defend an impending case that was about to be instituted by the Omanhene of Yamoransa. 82. Further, the Appellant’s narration that the members who occupied the stool for the Respondent’s family were reagents and not chiefs is not supported by the facts in recent or living memory as there is no evidence of there being any limitations of any sort on the exercise of the chieftaincy powers by a reagent as opposed to a chief. 83. We therefore find from the evidence adduced of acts in recent and living memory that the Appellant has failed to prove its exclusive title to all of Akatakyiwa land against the Respondent and therefore decline the Appellant’s invitation to overturn the judgment of the Court of Appeal. 84. We note that though the Respondent’s case disclosed no counterclaim, the Court of Appeal proceeded to enter judgment in its favor. The Respondent has argued that this position is consistent with the decision of the Court in the Hanna Assi case cited supra. 85. This court on the 6th day of April, in a case with Civil Appeal No. J4/68/2021 entitled Kamaru Jaji vrs. Paul Boateng provide the context within which a Court could proceed to grant a relief not claimed by a party as follows: "Under the circumstances we conclude that a court can only consider granting a counterclaim not pleaded only where it is clearly established from the evidence before the court. Where a party such as the Defendant herein was not successful in leading evidence to prove his case, then there will be no basis for a court to consider the question of a counterclaim. It was only after a court has Page 26 of 28 found a party's case to be clearly established on the evidence, and the only thing absent in doing justice in the case is the counterclaim, that a court in doing substantial justice will grant a counterclaim not pleaded for." 86. The pertinence of this caveat is underscored in the fact that invocation of this equitable jurisdiction of the Court to grant reliefs even where not expressly sought, is based on the demands of justice implicated in each case. For such a course to be sanctioned a party ought to establish by the adduction of relevant evidence and the application of applicable legal rules, that he is entitled to such a relief. 87. In the instant case however, we find that neither the Appellant nor the Respondent proved that they had title to the entire Akatakyiwa lands. Acts in recent history clearly evinced that members of both families had at various points occupied the stool and had at various points exercised acts of possession and control over portions of the Akatakyiwa lands. Therefore, the Respondent cannot, on the strength of the available evidence, be said to have proven their title to the entire stretch of land known as Akatakyiwa land. In these premises, their case failed to meet the evidentiary threshold requisite to warrant a favorable exercise of the Court’s discretion to grant a relief that was not prayed. 88. In the circumstances, we find that the Court of Appeal erred in entering judgment in favor of the Respondent and thereby granting his family title to the entire expanse of Akatakyiwa lands and same is hereby set aside. 89. Save the foregoing, we find no reason, given the evidence on record and the law to interfere with the findings and conclusions of the Court of Appeal. Accordingly, we hereby affirm the said judgment of the Court of Appeal dated 29th June 2022, subject to the variation above and dismiss the appeal 90. It is for the foregoing reasons that we delivered our final orders dismissing the appeal and affirming the judgment of the Court of Appeal aforesaid subject to a variation on Wednesday, 24th April 2024, awarded cost of Twenty Thousand Page 27 of 28 Ghana Cedis(Ghs20,000.00) in favour of the Respondent against the Appellant and reserved our full reasons to be filed on or before Monday, the 29th day of April 2024. E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) I.O. TANKO AMADU (JUSTICE OF THE SUPREME COURT) G. K. KOOMSON (JUSTICE OF THE SUPREME COURT) H. KWOFIE (JUSTICE OF THE SUPREME COURT) COUNSEL ISAAC AGGREY-FYNN ESQ. FOR THE PLAINTIFF/RESPONDENT/ APPELLANT. PHILIP M. YOUNG ESQ. FOR THE DEFENDANT/APPELLANT/RESPONDENT. Page 28 of 28