Tweretwie & Anor V Boamah (C1/100/17) [2024] GHAHC 431 (12 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ASHANTI REGION KUMASI HELD ON THURSDAY THE 12TH DAY OF DECEMBER,2024BEFORE HERLADYSHIP HANNAH TAYLOR(MRS) J. SUITNO: C1/100/17 1.NANA SEIAKWASI TWERETWIE …PLAINTIFFS 2.YVONNE AMATWERETWIE SUINGPERTHEIRLAWFULATTORNEY KWAKUMENKAHOF H/NO. PLOT1,BLOCK K DICHEMSO. VRS. ROBERT BOAMAH …DEFENDANT OF KUMASI _____________________________________________________ JUDGMENT _____________________________________________________ The plaintiffs lay a claim of title to the Plots 6 and 7 Block I, Hwereso and thus seek for thefollowing reliefs against the defendant: - a) Adeclaration oftitle toplots6and 7BlockI, Hwereso, Ejisu Municipality. 1 b) Recoveryofpossession. c) Damagesfor trespass d) An order of perpetual injunction restraining the defendant, his assigns, agents, servants etc from interfering with the plaintiffs’ right of ownership and possession. e) Anyfurther orderthat this Honourable Courtmaydeem fit. The defendant upon the service of the writ of summons on him filed an appearance, a statementofdefence and counterclaimed for the following reliefs: - a) Declaration of title to plots numbered 11 and 12 Block I Nyaatase Daatano within theEjisu TraditionalArea. b) Anorderfor recoveryofpossession c) Damagesfor trespass. d) An order of perpetual injunction restraining the plaintiffs, their grantors, servants,agentsand workmenfromhaving anything todo withthe subject plots. PLAINTIFFS’CASE The plaintiffs state that sometime in the year 1997, they acquired Plots 6 and 7 Block I, Hwereso, Ejisu for valuable consideration from Hwereso stool and a lease was subsequently engrossed in their names and same concurred by the Ejisumanhene. Thereafter,theytook possessionofthe plotsand placed themunder the caretakership of 2 a relation. They then started making preparations to develop same but the defendant trespassed unto the disputed plots without any justification. With all attempts to abate his trespassory actsfailing, the presentaction wascommenced. DEFENDANT’SCASE The gist of the defendant’s case is that the disputed land is at a place commonly known and called Daatano which belongs to the Daatano stool which falls with the Ejisu Traditional Area. In 2002, he acquired the Plots numbered 11 and 12 Block I Nyaatase Daataano from Nana Kwaku Asamoah, the odikro of Nyaatase Stool and his elders and wasgiven anallocation noteand asite plan. Upon the acquisition, he went into immediate possession and has constructed a building to the lintel level. The plots allocated to him has been trespassed by the Hwereso stool and has been allocated to the plaintiffs as Plots numbers 5 and 6 Block I Hwereso. He denied title to the disputed plots by the Hwereso stool and averred that the Hwereso stool has since time immemorial laid claim to Daatano land and in 2003 Hwereso stool continued its adverse claim to Daatano land and instituted an action against one Frimpong who had been allocated 10 acres of land by the Nyaatase stool in theyear 1997. 3 In the said suit numbered LS 5/24/03, the Hwereso stool represented by Nana Kwame Boateng, the Hwereso stool described the Daatano lands as forming part of the Hwereso land. The High Court in its judgement dated 25th November, 2009 declared title to Daatano land within the Ejisu Traditional areato be the property of the Nyaatase stool. During the pendency of the suit LS 5/24/03 an order of injunction was placed on the land which order affected the defendant and only resumed work on his building after thejudgment. Aside, the High Court suit, there was an arbitration before the Ejisuhene the over lord of both Hwereso and Nyaatase stools involving the Daatano land and it was decreed that Daatano land is the property of the Nyaatase stool and not the property of Hwereso stool. Also, defendant did contend that in an earlier suit before the Supreme Court between Nyaatase stool and Hwereso stool involving the Daatano land, Daatano land was decreed tobe the propertyoftheNyaatase stool. With, the foregoing decisions, the Hwereso stool has no authority over the disputed land. Therefore, the Ejisuhene, Nana Afranie Okesse who concurred the grant of a lease infavour oftheplaintiffs erred ashis predecessor had in an arbitrationdecreed Daatano 4 lands for the Nyaatase stool family. The plaintiffs are not entitled to their claim in the circumstance, the defendant concluded. REPLY,DEFENCETOCOUNTERCLAIM ANDISSUES FORTRIAL Plaintiffs joined issues with the defendant on his statement of defence. However, in the replyand defence tocounterclaimno defence was provided forthe counterclaim. The most essential issue set down for determination is whether or not the plaintiffs acquired the disputed plots in the year 1997. Equally falling for determination is whetherthe disputed land falls within Daatano lands The issues of whether the plaintiff is entitled to his claim or defendant is entitled to his counterclaim will invariably be resolved in determining whether the plaintiff had acquired the disputed plots in 1997 and whether the disputed land falls within the Daataanolands. BURDENOF PROOF From the plaintiffs pleaded case, their claims rest solely ownership of the disputed properties by the Hwereso Stool and a grant made to them in 1997 which is denied by the defendant. This denial cast a burden on the plaintiffs to prove their claims in accordance with settled principles of law and provisions relating to the burden of proof in civil suits as spelt out in the Evidence Act of 1975, (NRCD 323). The plaintiffs have the initial burden to discharge by adducing the required evidence in support of their 5 assertions on the preponderance of probabilities. Unless and until the plaintiffs are able to produce evidence of the relevant facts in issue that has the quality of credibility from which it can be said that they have established a prima facie case, the burden remains onthem. See the case ofOSEI VS ADJEIFIO[2008] SCGLR 149. Where the plaintiffs have led such evidence, the defendant is required to adduce such evidence offactsessential tothe defence. In TAKORADI FLOUR MILLS VS. SAMIR [2005-2006] SCGLR 882 at 900, the SupremeCourtspeaking throughAnsah JSCstated the lawasfollows; ‘’To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on the preponderance of probabilities, as defined in section 12 (2) of the Evidence Decree (NRCD 323). Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and isdeserving ofafavourable verdict.’’ In this case, the defendant has a counterclaim. It is required of him as a counterclaimant to discharge the same burden so placed on the plaintiffs. Thus, the defendant must succeed in his counterclaim on the strength of his evidence. A counterclaim being a separate and independent action tried together with the original claim of the plaintiff. 6 The cases of FOSUHENE v WUSU [2011] 32 GMJ 163 at 178-179; [2011] 1 SCGLR 273 and SAVIOUR CHURCH OF GHANA V. ABRAHAM KWAKU ADUSEI & 4 ORS [2021]174GMJ 1Supreme Courtdirections tothis effect. As observed, the plaintiffs filed no defence to the counterclaim. This does not lesson the burden placed on defendant. For the reliefs he seeks puts his title in issue and can be granted onlyaftercredible evidence isled. DETERMINATION OFISSUES Whether or not the plaintiffs acquired the disputed plots in 1997. The plaintiffs testified throughanattorney KwakuMenkah. His evidence is per his witness statement filed. He tendered a Notarial Certificate and Power of Attorney which were admitted into evidence and marked as Exhibits “A” and “AI” respectively to support the fact of his appointment bythe plaintiffs who areinthe United Kingdom. The testimony of Kwaku Minkah in his witness statement, reflected the pleaded case of the plaintiffs. He tendered a lease engrossed in the names of the plaintiffs with Nana Kwakye Acheampong, Hwereso Kyeame as the lessor and same marked as Exhibit “C”. In Exhibit “C” dated 16th October, 2014, the subject of the lease Plots 6 and 7 Block I situate at Hwereso for a term of 99 years commencing from 1st day of January, 2014. In thelease is asite plan delineating the Plots6and 7Block I Hwereso. As pointed out, from Exhibit “C”, the lease was executed on 16th October, 2014 and effective from 1st January, 2014. On the face of Exhibit “C”, the grant does not disclose 7 that the lands were acquired by the plaintiffs in 1997. Nothing was provided to support anacquisition in 1997. Inhis book, Land Law, Practice and Conveyancing in Ghana, 2nd Edition at page 205 the eminent jurist, Dennis Dominic Adjei stated that “In the Ashanti Region and other parts of Ghana, any grant of a building plot and in limited cases agricultural farmlands are commenced by the issuance of an allocation paper. The stools issue to a future lessee an allocation paper as the first step in acquiring a lease. On allocation notes or paper, the Supreme Courtin the case ofBoateng (No. 2) v.Manu (No. 2)and Another [2007 –2008] 2 SCGLR 1117, held that allocation paper cannot by itself represent a land acquisition but it is admissible as evidence to show some transaction that has taken place towards the acquisition of a plot or land, that is the owners of land purported to give the land to some individual. Thensame is followed with alease. As it stands, there is no document to support a claim that valuable consideration was paid foragrantofthe plotsdescribed as plots“6”and“7”Block IHwereso in1997. Undercrossexamination, Plaintiffs Attorneyanswered asfollows:- Q. Do you have the allocation note that was purportedly issued to the plaintiffs by theHwereso stool. A. Itiswith my lawyer. 8 Q. I am putting it to you that the plaintiffs did not acquire the plots in dispute in the year1997asyouhavestated inyourwitness statement? A. They acquired the plotsatthe stated date. Q. Exhibit “C”isdated 16thOctober, 2014? A. Itiscorrect as writtenonExhibit “C”. Q. And theeffective date ofthe lease is1stJanuary, 2014. A. WhateverExhibit “C”says is correct. Q. The plaintiffs acquired the plots in dispute from the Hwereso stool in the year 2014and not beforethattime. A. Verywell. From the answers offered by plaintiffs’ attorney they do not support the claim of plaintiffs that the plots were acquired in 1997. At best it is suggestive that it is from 1st January, 2014 that an interest was acquired. The claim that there is an allocation note which is with the lawyer adds no value. Why would one’s lawyer keep away an allocation notewhichwill give credence tothe pleaded case ofhis client? The law frowns on bare assertions without more and the oft-cited case Majolagbe v. Larbi and ors [1959] GLR 190 stress this point. The Supreme Court in the case of Klah v. Phoenix Insurance [2012] 2 SCGLR 1139, reiterated that where a party makes an averment capable of proof in some positive way e.g. by producing documents, 9 description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he aversistrue”. In this case, the plaintiffs in their pleaded case did not allude to being issued with an allocation note. Plaintiffs called, Okyeame Kwakye Acheampong, named in the Exhibit “C” as their grantor as PW1. PW1 testified that plaintiffs approached Nana Oppongkesse IIIfor agrant ofland at Hwereso in 1997and upona consideration for the grantashe puts it in paragraph7ofhis witness statement:- “The late Nana Oppongkesse III issued the plaintiffs with an allocation note and a site plancovering the land”. Ifindeed, there is an allocation issued in 1997then there should be a deep reason for the plaintiffs not pleading it and their lawyer aiding them not to produce it to support their claim, though same has been given to him as testified by plaintiffs’ attorney. The claim that plaintiffs acquired Plots 6 and 7 Block 1 in 1997 is not proved with sufficient evidence. The defendant on the other hand has pleaded and testified on a grant in 2002. Defendant tendered Exhibit “1” on allocation note and Exhibit “1A” a site plan. The Exhibit “1” discloses an allocation made to Robert Boamah of Plots 11 and 12 Block 1, 10 oneacre ofEjisu Stoolland situated at Nyaatase Daatano,executed byT. K. Badufamily head and Nana Kwaku Asamoah. A site plan tendered and marked as Exhibit “1A” to delineates these Plots 11 and 12 Block 1Nyaatase Daatano. The allocation note, asearlier stated signifies that the owners of the land purported to give the land to an individual and in this case the defendant. This will also mean that defendant had an allocation in 2002 earlier in time than the lease to plaintiff in 2014. Where the parties had laid title through a common grantor thenthedefendant’s claim would have received the Court’sconcurrence. WHETHER OR NOTTHE DISPUTED PLOTS FALLWITHINDAATANO LANDS? Obviously, from the pleaded case and testimonies, the description given by the parties of the disputed Plots are different. Whiles the plaintiffs state the land are Plots 6 and 7 Hwereso, thedefendant state theyare Plots11and12at NyaataaseDataano. The defendant denies the claim of Hwereso possessing the disputed land and emphasizes that there is Dataano land at Hwereso. PW1, in his evidence tendered the layout of Hwereso, admitted into evidence as Exhibit “D” and Hwereso Planning Scheme, certified on2ndOctober, 2018 and marked asExhibit “E”. Interestingly, PW1 under cross examination denied that the disputed land falls within the Hwereso Planning Scheme. However, under further cross examination he admitted that Plots 6 and 7 Block 1 per the site plan in Exhibit “C”, the lease falls within the Planning Scheme of Hwereso. PW1 also denied the existence of the Daatanoo lands 11 lying within the Hwereso Planning Scheme. However, in respect of land sold to one Nana Kwame BoatengPW1 answered: - Q. And finally, it is part of the Daatano land at Hwereso which your stool that is the Hwereso stoolsold toone Nana Kwame Boateng. A. Istated incourt thatI soldit toNana Kwame Boateng. Q. And youstill believethat it is partofthe Hwereso land. A. Itispart ofit and it is inthe layout. It has been the case of the defendant the land sold to Nana Kwame Boateng is Daatano land which lies within Ejisu and within Hwereso and being the subject of a litigation beforethe HighCourt. PW1,ofthis case answered as follows: - Q. Do you know of a matter that came before this court, this same room involving oneNana Kwame BoatengandFrimpong. A. Iknow. Q. This Kwame Boateng claimed to have acquired his land from Hwereso Stool, yourstoolareyouaware ofthat. A. That isso. Q. Frimpong also toldthe court ortraced his title tothe Nyataanostool. A. That isso. 12 Q. Can you tell the court the outcome of that cause between Nana Kwame Boateng and Frimpong. A. Iwas not coming toCourt, so I donot knowwhat happened. Q. In that matter, Nana Oppong Kesse whom you succeeded testified for Nana Kwame Boateng,the plaintiffin thatcase. A. Iknow Q. The chief ofNyataase atthat time also testified for Frimpong. A. Iwas not coming toCourt, so I donot knowwho testified onbehalf ofFrimpong. Q. The land that Nana Kwame Boateng was claiming measured 10 acres which the Hwereso stoolallocated tohim. A. Itwas 10plotsnot10acres. I allocated theland tohim. Q. This High Court held that the Hwereso stool which you represented had no land toallocate toNana Kwame Boateng. A. Iwas not presentat Court. So, I donot knowwhat happened. Q. As a regent of Hwereso stool, you want this court to believe that you have not bothered to find out of a matter involving a parcel of land you have said you allocated. A. Idid notgotocourt, so I donot knowwhat happened. Q. On the 25th day of November, 2009, the High Court declared that the land which you allocated to Nana Kwame Boateng formed part of the Daatano land belong tothe Nyataasestool. 13 A. Iwas not going tocourt. Observably, the grant made to Nana Kwame Boateng was the subject of litigation before the High Court. The High Court judgement under the sport light was tendered by the defendant as Exhibit “3”.The title ofthe suit is givenas Nana Kwame Boateng v. Frimpong Suit No. LS/24/03 and the judgement was delivered on 25th of November, 2009. In the judgement, the plaintiff therein had laid a claim to a 10-acre land within Hwereso and the Court observed that no allocation paper was produced by the plaintiff. Thoughone was fused with asite plan. The Court also noted that plaintiff therein stated the land carved for him is on Hwereso land and not Nyantaase land as claimed by the defendant. At the end of it all, the Court dismissed the claims of Nana Kwame Boateng and up held the claim of the defendant which invariably suggests that the defendant (therein)’s land is at Daatano land and there is Daatano land at Hwereso under the control ofNana Kwaku Asamoah, the Nyataase Odikro. This observation is fortified by PW1, who testified that he sold the disputed land to Nana Kwaku Boateng and admitted that the said land is at Hwereso. The land, the High Court found for Frimpong as per the Exhibit “3” was 10 acres ofland and not 10 plotsofland that PW1would want the court tobelieve. 14 I find it strange, that having land and same has become the subject of litigation with one’s predecessor,PW1 claims he doesnot knowthe outcomeofthe case. Also, per the Exhibit “3”, the land which the Court found for Frimpong is Daatano land and whichPW1 statesis within the layout. Nana Obeng Panin II (DW1), the occupant of the Nyaatase stool testified as succeeding Nana KwakuAsamoahin theyear2005. DW1, agreed that in2002,his predecessorallocated two plotsofland Plotsnumbered 11 and 12 Block I Nyaatase Daatano to the defendant herein and an allocation note and site plan offered. He therefore emphasized that defendant is the legitimate allottee of the two plots which are at a place commonly known as Daatano which belongs to the Nyaatasestooland falls withinthe Ejisu Traditional area. He testified on Suit LS/24/03 before the High Court as per the Exhibit 3, a Supreme Court judgement involving Nyaatase Stool and Hwereso Stool over Daatano land which decreed the property for the Nyaatase stool as well as an arbitration in favour of Nyaatase stool to the effect that Daatano land is the property of Nyaatase stool and not thepropertyofthe Hwereso stool. DW1, concluded that the disputed land forms part of the Nyaatase stool land which the Hwereso stool has no power or authority to alienate. Therefore, where the present Ejisuhene, Nana Afranie Okesse concurred the grant of a lease in favour of the plaintiffs 15 he erred as his predecessor had in an arbitration decreed Daatano lands in Nyaatase stoolfamily. On the case before the Supreme Court, PW1 testified as follows under cross examination; - Q. Have you ever heard that there was a land dispute between the Nyaatase stool represented by Nana Kwaku Asamoah and Hwereso stool represented by Nana OppongKesse whichmatter endedat the SupremeCourt? A. Yes, Ihave heard. Q. To your knowledge in that dispute, Nana Kesse representing the Hwereso stool lostthe case at theSupreme Court. A. I know it was not Nana Oppong Kesse but rather Nana Kwame Aduenin and the said dispute was in respect ofAdiepana land ofwhichwe lost. PW1 admitted the existence of a Supreme Court decision that went against Hwereso but the subject matter was the Adiepana land. It therefore, behoves on the defendant to satisfy the Court that the judgment of the Supreme Court was in respect of Daatano land. Defendant tendered Exhibit “6” the judgment in which Nana Oppong Kessie was the Defendant/Appellant/Respondent. It is gathered from the Exhibit “6” that on the declaration of title of the disputed land therein, the trial Court found for the Plaintiff/Respondent/Appellant. On appeal by the defendant, the decision was over turned and judgement entered for the defendant. However, on further appeal by Kwaku Asamoah, the decision of the trial Court was re-instated. Of the land which was 16 the subject matter of Exhibit “6”, little is disclosed, but it is stated that “plaintiff was the owner of the land subject to the overlordship of the Ejisuhene and the defendant hold the land by license of the plaintiff.” Yes, from Exhibit “6” DW1’s predecessor had judgment over the land the subject in the suit with PW1’s predecessor, but the land which is the subject matter is not discernable as to whether it is Daatano land or Adiepana land per the Exhibit “6”. Onthesubject ofarbitration, PW1testified undercross examination: - Q. Are you also aware that in respect of the same Daatano land there was an arbitrationbefore theEjisuhene betweenthe Nyataasoand Hwereso Stools. A. I know very well. The matter was before the Ejisuhene and Boankrahene caveatedthat allthelands belong tohim. After the arbitration it went in favour of Boankrahene, there are documents to that effect. Q. I am putting it to you that the arbitration that went before the Ejisu stool was betweenNyataase stooland Hwereso stool. A. It is not correct. There are documents to that effect. The arbitration was in favour ofthe Boankrahene. Q. The arbitration award waspublished in favourofNyataase stool. A. Itisnot correct. I waspresent at thepalace. 17 Q. The arbitration award was to the effect that Daatano land located in Hwereso layoutisthe propertyofNyataasostool. A. That isnot correct. Ihave the layout withme. When DW1 testified and was cross examined, he denied a knowledge of any matter between Nana Kwabena Dwomoh II and Nyantaase Odikro and another over claims of Nyataase land. Looking at Exhibit “3”, the High Court decision, one of the issues determined was whether or not as a result of the Ejisuhene’s arbitration the ownership ofthe disputed land is vestedin Nyantaasestool. The High Court then observed that evidence of an arbitration has been established by the parties and their witnesses. This arbitration was before the Ejisu chief in respect of Daatano lands. The arbitration terminated in favour of Nyantaase stool as against the Hwereso stool. The Exhibit “3” therefore alludes to the fact that PW1’s predecessor has admitted to an arbitration before the Ejisuhene between Hwereso stool and Nyaataso stool over Daatano land. Yet PW1 denies the existence of such an arbitration. I find that indeed there has been an arbitration before the Ejisuhene between Hwereso and Nyaatase stool inwhichan arbitralawardwasmade in favourofthe Nyataasestool. Defendant also tendered Exhibits “4” and “5”. Exhibits “4” is on the subject Hwereso stool inventory, checked and certified on 1st day of June, 1984 and the same discloses 18 that the checking exercise was conducted in the presence of all members and Kingmakers of Oppong Kesse III stool of Hwereso and the registrar of Ejisu Traditional Counsil. Exhibit 4 was addressed to the Ejisu Traditional Council and among the signatorieswere Nana OppongKesse III,the officer taking overand the Registrar. The Exhibit “5” is on Nyantaase stool properties in the custody of Nana Kwaku Asamoah, the Ex-Nyantaase Dikro/Ejisu Gyasewahene handed over to Nana Obeng Panin in the presence of the Nananom at Nyantaase on 10th February 2005. Among the propertiesis Nyantaase stoollands which includes Daatanosituate at Hwereso. From Exhibit “4” and “5” both disclose that in Exhibit “4” there was no mentioned of land for Hwereso and in Exhibit “5” Daatano lands were indicated as part of the inventory for the inventory of Nyantaase. DW1, testified that the inventory of propertiesgiven himonhis enstooledper Exhibit “5”include Daatano land. From the evidence, beyond the Exhibit “5”, the High Court decision offers cogent evidence on the existence of Daatano land and a declaration of control over same by Nyantaase stool. Within this context, the Ejisuhene is equally bound by the arbitral award of his predecessor. With regard to the fact that the High Court decision was delivered in 2009 acknowledging the arbitral award in favour of Nyantaase stool, he could not confirmagrantofthe Dataanolands being granted by Hwereso stoolin 2014. 19 Exhibit “E”, the Planning Scheme for Hwereso was prepared in November, 1998 and it is certified by the Municipal Planning officer. Exhibit “E” discloses that Plots 6 and 7 in form and shape are the same as the Plots 6 and 7 asfound in the site plan in Exhibit “C”. With regard to the defendant’s Plots 11 and 12 Nyantaase in shape and form described are not the same in Exhibit “E”. Exhibit “1A” and “E” are not the same nor do they fall within the same area designated as Plots 6 and 7, within Exhibit E, the approved Hwereso Planning Scheme and plotsforwhichan interlocutoryinjunction wasgranted. Under cross examination, the defendant answered when shown Exhibits “C”, “1A” and “E”. Q. Kindly look at your Exhibit “1A”, you would agree with me that the two site plans “1A” and “C” are different in appearance and shape in terms of plots indicated. A. Yes, my plot number is 11 and 12 and in Exhibit “C” plots6 and 7,so they cannot be at thesame place. Q. Kindly look at Exhibit “E” at the first quarter of that plan layout close to longitude 729000, you would agree with me that there are Plots 6 and 7 in the approved layoutsofHwereso. A. Yes, Ido not compete. On Exhibit “E” there is no indication of any land within the layout suggesting Hwereso Daatanoor Nyantaase. 20 Under cross examination, defendant was shown the Exhibit “E” and he testified as follows: - Q. Have a look at Exhibit “E” you will agree with me that there is no indication of any land called HweresoDaatano orNyantaase onthe approvedplan. A. There is nothing. I have struggled to locate the Plots 11 and 12 Nyantaase – Daatano within the Exhibit “E”. What is shown as Plot 11 is lying in the same block as Plots 6 and 7 with Plot 12 lying severalplotsaway fromPlot11. Also, it is observable that the subject matter of litigation per the Exhibit “3”, the Daatano land as found for Frimpong – Nyantaase stool for that matter, is described as “building plots unnumbered lying and being at a place called Hwereso on Ejisu stool landand measuring anapproximate areaof10acres”. Looking at Exhibit “E”as awhole it encompasses a landarea more than10 acres. Where are these unnumbered building plots within the 10-acre land now numbered within Exhibit “E”, the Planning Scheme of Hwereso? From the line of questions put to DW1 under cross examination they suggest that there are, other lands for other stools within theHwereso Planning. Inorderto appreciate this point, the following questionsput to DW1 arereproduced: - Q. Plots numbers 6 and 7 Block 1 which is attached to the plaintiffs’ lease fall within theapproved Planning Scheme ofHwereso. 21 A. Yes. Q. And it is these plotsthatare thesubject oflitigation beforethis honourable court. A. That isso. Q. You will agree with me that the plots, the subject matter before this honourable courtfallwithin the Hwereso Planning Scheme. A. Itiswithin it. Q. IsJamia land withinthe Hwereso Planning Scheme. A. Itisnot within it. It is at Ampabame. Q. Whatabout Nkwanta land. Isit within the Planning Scheme ofHwereso? A. Ido not knowofany Nkwanta land butI knowofJamia which is atAmpabame. Q. Isthe Adiepena land within the HweresoPlanning Scheme? A. No.It is far fromtheHwereso Planning Scheme. It is at theback oftherailway. Q. Isthe Daatanoland withinthe Hwereso Planning Scheme. A. Ido not knowany towncalled Daatano. Q. I am putting it to you that Hwereso Planning Scheme encompasses parcels of land belonging to Hwereso stool and other parcels of land belonging to other stoolsincluding the Nyantaase stoolwhich is also located atHwereso. A. What I know is Hwereso because we founded the town. So, I do not know of any Daatano. 22 The critical question to ask is where is Dataano land located at Hwereso. The identity of Dataano land within Exhibit “E” is essential to conclude that the plots of land granted by Hwereso stool as per the lease document falls within the area delineated as Dataano lands. This is because in Exhibit “C”, it has not been stated that Plots 6 and 7 Block 1 is situated at Daatano. The challenge is compounded by the questions asked DW1 to wit thatotherstoolshavetheir land within theHwereso Planning Scheme. I have considered the case of the parties and observed that each party’s grantor in succession testified to support claims made by them. Parties are to be mindful of their respective statutory burdens in the suit to prove their respective positions on the preponderance of probabilities to satisfy the court that they are entitled to the claim and counterclaim. In the case of Kwabena v. Atuahene [1981] GLR 136 – 144, it was held that; the onus of proof required by law as regards the identity of land would be dischargedby meeting these conditions: - (a) The plaintiff had to establish positively the identity of the land to which he claimed title withthe land the subjectmatterofthe suit. (b) The plaintiff also had to establish allhis boundaries. (c) Where there was no properly orientated plan drawn to the scale, which made compass bearings, vague and uncertain, the court would hold that the plaintiff had not discharged theonus ofproofofhistitle. 23 This position of the law was restated in Nortey (No. 2) v African Institute of Journalism and Communication & others (No. 2) [2013 – 2014] SCGLR 705, wherein the Supreme Court held that: - since the plaintiff had sought at the trial High Court a declaration of title to disputed land, he must establish the identity and the limits of the land. The onus of proof required by law regarding the identity of the land would be discharged by meeting the following conditions. The plaintiff must establish the identity of the land and all his boundaries, and where there was no properly oriented plan bearings drawn to scale which made compass bearing vague and uncertain the courtwould holdthat plaintiff had notdischarged the onusofproofofhis title. The case of Gladys Ohenewaa Afari v. Nana Donkor Manianor II & 2 ors. [2022] 179 GMJ 253 is equally instructive on the foregoing subject. Observably, the site plan tendered by defendant, the Exhibit “1A” discloses no properly oriented plan drawn to scale anditslocation withinthe Hwereso Planning Scheme is achallenge. Also, there is no disclosure of where Dataano land lies within the Hwereso Planning Scheme. The boundaries of the Dataano land is not made known to the Court. In the absence of any cogent evidence to identity the Daatano land within the Exhibit “E”, defendant’sburdenofpersuasion isnot discharged. In this case, plaintiff’s Exhibit “D” series amply corroborates defendant’s evidence that he has put up structures on the disputed land. Section 48 (2) of the Evidence Act, 1975, 24 NRCD 323, provides that “a person who exercises acts of ownership over property is presumed to bethe owner ofit”The ownershipherein ispresumptive. In the face of the challenge to the title and inability to locate Daatano land at Hwereso weighed against the defendant’s claims. With plaintiff’s claim, Plots 6 and 7 Hwereso is located in thePlanning Scheme, the sale tiltsin favour oftheplaintiff’sclaims. CONCLUSION The claims of the plaintiff upheld. The judgement entered for the plaintiffs as prayed by granting thefollowing: - a. A declaration of title to Plots 6 and 7 Block 1, Hwereso – Ejisu in the Ejisu Municipality. b. Recoveryofpossession. c. GHS 5,000.00asdamages fortrespass. d. An order of perpetual injunction restraining the defendants, his assigns, agents, servantsetc. frominterfering withPlaintiffs’ title. CostofGHS 10,000.00awarded against the defendant. The counterclaimis accordingly dismissed. [SGD] JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT 25 LAWYERS ENOCHKWABENAAMOAHFORTHE PLAINTIFFS K.A.ASANTE KROBEA FORTHE DEFENDANT 26