Nyarkowa v Ofosu Yeboah and Others (C11/3/2023) [2024] GHAHC 526 (10 December 2024)

_IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE AGONA SWEDRU HELD ON TUESDAY THE 10TH DAY OF DECEMBER 2024 PRESIDED OVER BY HIS LORDSIP JUSTICE KWAME POLLEY- (JUSTICE OF THE HIGH COURT)._ _C./S. NO C11/3/2023_ ___BETWEEN;_ ADWOA NYARKOWA OF H/NAP30APAGYA, BREMANASIKUMA … PLT./J.CDTR. /RESPONDENT (SUING FOR HERSELF AND HER BROTHER) VRS. 1. OFOSU YEBOAH @ YAWBADU … 1ST AND 4TH DEFTS. /J. DRS./APPTS 2. CHRISTIAN EGHAN 3. MICHAEL APPIAH 4. ISAAC OFOSU MARFO _**JUDGMENT**_ This is an appeal by the 1st and 4th defendants/judgment debtors/appellants against the judgment of the District Court Breman Asikuma presided over by Her Worship Eunice A. Apaliwin on the 21st July 2022. The appellants’ grounds of appeal are the following;__ 1. The magistrate erred in holding that the land in dispute formed part of House Number AP 30 and for that matter the property of the late Kofi Donkor. 2. The magistrate erred in not declaring the 1st and 4th defendant’s family as the owners of the subject matter which is the adjoining land to House number AP 30. 3. The magistrate erred in making an order for perpetual injunction against the defendants and all who may deal with the land on their behalf. 4. The magistrate erred in declaring the lease agreement entered between the 1st defendant, and 2nd defendant and 3rd defendants void and invalid. 5. The magistrate erred in not upholding the 1st and 4th defendant’s counterclaim. 6. The judgment is unsupported by the evidence on record. 7. Further grounds may be filed upon receipt of the record of appeal. __ Premised on the grounds of appeal the appellants in their relief sought for setting-aside of the judgment of the Honourable trial court and upholding 1st and 4th defendants’ counterclaim. The plaintiff/judgment creditor/respondent at the trial court claimed against the defendants/judgment debtors jointly and severally the following reliefs; 1. Declaration of title and ownership of a piece of land adjourning House Number AP 30, located at Apagya, Breman Asikuma in the Central Region and bounded by Asikuma-Brakwa Road, House Number AP 30, Desberk Catering Service and Mr. Akwasi’s plot; in favor of the plaintiffs. 2. Order of recovery of possession of the disputed land herein. 3. Perpetual injunction restraining the defendants, their assigns, privies, agents, relatives, and all those claiming authority through them from accessing or using the land without the express consent and approval of the plaintiffs. 4. Cost. The trial court entered judgment in favour of the plaintiffs/respondents with the declaration that the plaintiffs/respondents are entitled to title to the adjoining land to house number AP30 per the established boundaries by the plaintiffs. The trial court also held in favour of the plaintiffs/respondents by holding that; house number AP30 is the property of the late Kofi Donkor, the plaintiffs/judgment creditors therein and respondents herein are entitled to the house, and the adjoining land in dispute. The trial court also declared that the 1st and 4th defendants appellants’ family are only entitled to the rooms in H/NO. AP 30 agreed upon at the mediation before the church elders and same affirmed by CHRAJ. The rooms are chamber and a hall, and two single rooms for the maternal family of the respondents’ late father- Kofi Donkor. The trial court further held that the 1st and 4th defendants/appellants could not prove their title of the house in dispute as well as the adjoining land. Consequently, court held that their counterclaim and same was dismissed. The following consequential orders were made by the trial court: 1. The rent or lease agreement entered between the 1st defendant on one side, and 2nd and 3rd defendants on other side, was void and of no effect. The 2nd and 3rd defendants were ordered to give vacant possession to the plaintiffs/judgment creditors on or before the end of the agreed period. 2. The 1st and 4th defendants are to refund all rent received for the 5 years from the 2nd and 3rd defendants to the plaintiffs who are the children of Kofi Donkor the owner of the land. 3. Perpetual injunction imposed on the defendants, their family members, agents, privies, assigns and all who may deal with the land on their behalf from doing so. Cost of GHC, 10,000.00 was awarded against the 1st and 4th defendants in favour of the plaintiffs/respondents. __ The summary of the case that culminated in the present appeal is that the 1st plaintiff therein and 1st respondent herein is a trader and resident of Apagya, Breman Asikuma. She instituted the action for herself and on behalf of her brother Kofi Donkor. 1st defendant therein and 1st appellant herein is a farmer and a supposed landlord to the 2nd and 3rd defendants who are tenants on the disputed land. 2nd and 3rd defendants are occupants of the disputed land as tenants of the 1st defendant. The subject matter of the action is a piece of land adjourning House Number AP 30, located at Apagya, Breman Asikuma in the Central Region and bounded by Asikuma-Brakwa Road, House Number AP 30, Desberk Catering Services and Mr. Akwasi’s plot. It is the case of the plaintiffs/respondents that the disputed land forms part of H/No. AP 30 that was gifted to the 1st plaintiff and her brother Kofi Donkor by their father late Kofi Donkor. A deed of gift was executed on the 10th day of October 1973. Exhibit ‘A’ contains details of the deed of gift. On the 20th of November 1986, plaintiffs/respondents presented to their father one life sheep, cloth, bottle of schnapps and sandals as acceptance of the gift in the presence of some family members as witnesses. Presentation of the items was to seal the gift as custom demands. 1st and 4th defendants/appellants who are family members of the plaintiffs/respondents’ father’s maternal family according to plaintiffs/respondents unlawfully took over the disputed land and rented same to the 2nd and 3rd defendants. 1st appellant has been enjoying proceeds from the land over 26 years after the demise of plaintiffs/respondents’ father. Several efforts have been made to have the matter resolved without success, hence the action before the District Court, Breman Asikuma which is the subject-matter in the present appeal. In defence the 1st appellant - Ofosu Yeboah @ Yaw Badu in his statement of defence on his own behalf and 4th defendant/appellant averred that the 2nd and 3rd defendants/appellants are tenants of the 4th defendant/appellant. The 1st and 4th defendants/appellants contended that the disputed land and house identified as H/No. AP30 are properties of their Nana Ansela Family of Breman Asikuma. The appellants also denied that there was any valid gift or deed of gift between the respondents and their late father Kofi Donkor. They argued that the attempted presentation of items as thanks giving or acceptance by plaintiffs/respondents of the alleged gift was protested by the 4th defendant’s mother and other members of their family. The protest was on two grounds; first that the land is a family property and same could not be gifted by the plaintiff’s father. The second ground was that when the house was about to be auctioned to defray judgment debt incurred by the plaintiff’s father it was the late Kojo Kontoh a nephew of the respondents’ father, who paid the judgment debt to redeem the house from the auction sale. For that reason, their family had a stake in the house. The appellants further contended that following protest by Kojo Kontoh, before demise of the plaintiff’s father – Kofi Donkor, he petitioned the Presbyterian Church of Breman Asikuma for mediation and redistribution of the properties of Kofi Donkor. The proceedings by the church mediation were recorded in a book of the church known as the Chronicle. This is the averment in paragraph 9 of their statement of defence; “Paragraph _10 is denied. 1_ _st_ _and 4_ _th_ _defendants say that before the demise of late Kofi Donkor and after the protest against the gifting and Deed of Gift (Exhibit A) the late Kojo Kontoh sent the matter to the Presbyterian Church at Breman Asikuma for mediation since he was opposed to the gifting of the house by the late Kojo Kontoh. It was the Asikuma Presbyterian Church mediation forum that the late Kofi Donkor redistributed his properties and same was recorded in a book called Asikuma Presby Church Chronicle.”_ In paragragh 18 of the statement of defence the appellants contrary to their averment in paragraph 9 averred that the land on which the disputed house was built is a family property. For that reason, the 4th defendant is the rightful owner and manager of the properties including the disputed land. The root of their family ownership of the property was traced to Nana Ansela and successor to the turn of Efua Gyapomaah who they claim cultivated cocoa on the land. The late Efua Gyapomaah was succeeded by the plaintiffs’ father Kofi Donkor. Kofi Donkor was succeeded by the 4th defendant. The appellants relied on their contention that the properties in dispute are family properties and for that matter renting same to the 2nd and 3rd defendants by 1st and 4th defendants/appellants is valid. On the basis of their averments in the statement of defence the 1st and 4th defendants/appellants counterclaimed as follows; “1. Declaration of title and ownership of the disputed land described as a piece of land adjoining House Number AP 30 located at Apagya within the vicinity of Breman Asikuma in the Central Region of Ghana and bounded by House Number AP 30, Desberk Catering Services, Asikuma-to-Brakwa Road and Mr. Akwasi’s plot in favour of the ISAAC OFOSU MARFO (4TH Defendant). 2\. An order of perpetual injunction restraining the Plaintiffs, their agents, privies, relatives and all those claiming authority through them from interfering with the land. 3\. Declaration that the rent or lease agreement between the 1st Defendant and 2nd & 3rd Defendants are valid for all purposes.” The Supreme Court in the case of **Ackah v Pergah Transport Ltd &ors [2010] SCGLR 728** inter-alia held: “ _It is the basic principle of law that a party who bears the burden of proof is to provide the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. It is trite that the matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence.”_ In the present appeal the land on which the house is situate according to the plaintiffs/respondents is self-acquired property of their father-Kofi Donkor. It is their claim that their father acquired that land from the then chief of Breman Asikuma, Nana Amoakwa Boadu. It is also the contention of the plaintiffs/respondents that their father after acquisition of the land he built H./No. AP 30 on it with his own financial resources. Respondents further argued that no member of the appellants’ family including the appellants contributed towards the construction of the house. In collaboration with the respondents’ claim that the house was built by their father the two witnesses they called testified to that effect. The second witness (PW2) for the respondents - Emmanuel Quayson in his evidence said he knows the parties, house and land in dispute. PW2 commenced his evidence with the assertion that the respondents’ father was his friend till his demise. According to him the land was acquired by the respondents’ father around 1955 from Nana Amoakwa Boadu. The house was put up by the respondents’ father. He said he witnessed the respondents’ father put up the house. He also said he had lived in the vicinity where the house and land in dispute are situate for more than 60 years. It is his evidence that the respondents’ father also informed him that he gifted the house to his children. He was informed on the reason that he was a friend to the respondent’s father. He maintained the position that the house is not a family property of the defendants/appellants’ family. The appellants whose claim in the action was for their family gave their evidence per the 1st defendant. The two filed one statement of defence and relied on same as their evidence in chief. In paragraph 5 of their statement of defence they traced their family’s root of title to the land and house to their predecessor late Nana Ansela family of Breman Asikuma. In paragraph 20 they specifically mentioned their ancestor Nana Ansela as the first person that owned the land. In paragraph 14 of the statement of defence they again attributed ownership of the disputed house to their family, referred to the decision by CHRAJ and contended that it was to the effect that the house is for their family. This is what they inter-alia averred; “ _Paragraph 16 is denied. At CHRAJ it was affirmed that each of the children be given a chamber and hall room. There was no mention of the disputed land or any land as part of what was gifted to the plaintiffs. This is because the land is a family land.”_ The Court of Appeal in the case of**Amonoo vrs. Dee (1975) GLR 305 C.A.** held in holding one as follows; “ _A court would be expecting too much of land owner whose predecessor over a very long period without any disturbance whatsoever to know the persons and recite those who were the original boundary owners of the land or how the present boundary became possessed of their land. It was sufficient if the present persons on the land could say with whom they formed boundaries, without knowing the nature of the estate held by their neighbours.”_ In the instant appeal the appellants in paragraph 14 of their statement of defence averred that the plaintiffs/respondents and other children of their father were given one chamber and hall each. This brings into sharp focus the contention of family character of the house and the land by the appellants and acts of family ownership by their predecessors before succession of the 4th defendant/appellant. The question is if the house is a family property and by virtue of customary law that in matrilineal inheritance societies matrilineal properties are inherited by matrilineal successors and not paternal successors then upon what customary law were the children of the plaintiffs/respondents’ father who are patrilineal children in their father Kofi Donkor’s family given part of the acclaimed matrilineal house? The appellants in their statement of defence offered no answer to this unavoidable enquiry. This is clear evidence that validates the conclusive presumption that the predecessors of the appellants raised no objection on the reasoning that the house is self-acquired property of the respondents’ late father Kofi Donkor. The conduct of the predecessors of the appellants within the context of the question herein raised breeds binding effect on the appellants as provided in section 26 of the Evidence Act (NRCD 323/75) on estoppel by statement or conduct. It provides; “ _Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between (a) that party or the successors in interest of that party, and (b) the relying person or successors in interest of that person.”_ From the evidence of the appellants their predecessors raised no objection in respect of their claim that part of the rooms be given to the children of Kofi Donkor. It is valid to infer and arrive at the cogent conclusion that the appellants’ predecessors raised no objection on ground of customary laws that govern traditional matrilineal societies which excludes self-acquired properties as part of inheritance by successors. It is the circumstance the holding of this court that the disputed house and the adjoining land are not part of the appellants’ family inherited properties which were inherited by the respondents’ father in his life time. This was endorsed by their predecessors before the Presbyterian Arbitration Committee. That is to say before the arbitration committee the predecessors of the appellants by their conduct of not raising any issue about the land in dispute amounts to implied admission and recognition that it is self-acquired property of the late Kofi Donkor. This court in the circumstance is obliged to uphold the plaintiffs/respondents’ version. That been the conclusion this court holds that the house and adjoining land were self-acquired properties of the plaintiffs/respondents’ father – Opanin Kofi Donkor. The appellants adduced no documentary evidence of the decision by CHRAJ that the children of the plaintiffs’ father were each given a chamber and hall in the house. The appellants’ exhibits 1-5 contain no evidence that CHRAJ held that the children be given a chamber and hall each. It is unambiguous from exhibit 3 in particular that CHRAJ in a letter dated 20th November 1995 in paragraph 4 made reference to 1988 chronicle of the Presbyterian church arbitration committee as referenced in this judgment. The Commission inter-alia in the said letter requested as follows; “ _This commission is inviting a representative of the said 1988 Presbyterian church to the said sitting for questioning on the said arbitration. The representative is being requested to produce the chronicle of the committee in accordance with section 8(1) (a) of Act 456.”_ The church chronicle, from the evidence available before this court, was applied by the appellants and same tendered as exhibit 5(a). It is an extraction from pages 46-49 of the chronicle. It is dated 21st August 1988. At page 46 of the chronicle precisely at line 10 the plaintiffs’ father’s nephew – S.E. Yeboah subsequent to his testimony that he paid an amount of C348.50 to redeem the house from been auctioned further testified; “ _I rushed home and with several discussions with my uncle, I raised a loan somewhere to pay the debt to enable my uncle to regain_ _**his**_ _House.”_ It is explicit that the petition before CHRAJ was in the personal capacity of S.E. Yeboah and not on behalf of his family and/or the appellants’ family. It is also instructive to place on record that there is no evidence that appellants’ family filed caveat when the notice of auction of the house came to their attention to assert their family’s ownership of the house. It is also undisputed that use of the pronoun ‘ _his’_ in its grammatical and legal effect per ordinary rule of interpretation refers to no other person than the plaintiff’s father Kofi Donkor. It is incumbent based on this piece of evidence to hold that at the arbitration it was established that the plaintiffs/appellants’ father was the owner of the house. The appellants’ counter-claim in the opinion of this court is additional evidence that it was only on the adjoining land not in respect of H/NO AP 30. By necessary implication it settles the fact that the appellants per their counter-claim before the trial court were only interested in the adjoining land and not the house. For purposes of clarity and consistency it is imperative to re-state relief 1 of the counter claim. It reads; “ _1\. Declaration of title and ownership of the disputed land described as a piece of land adjoining House Number AP 30 located at Apagya within the vicinity of Breman Asikuma in the Central Region of Ghana and bounded by House Number AP 30, Desberk Catering Services, Asikuma-to-Brakwa Road and Mr. Akwasi’s plot in favour of the ISAAC OFOSU MARFO (4_ _TH_ _Defendant_).” The remaining reliefs in the counter claim are for consequential orders dependent on relief one. From the counter claim it is explicit that the appellants before the trial court did not contest ownership of the house at all. It is the circumstance, besides the respondents’ successful prove of their father’s ownership of house as herein established, justified to affirm the trial court’s holding that house which was one the subject-matters in dispute before it was self-acquired property of the respondents’ father. The law is settled that a defendant/counter-claimant in civil actions assumes the evidential obligation of a plaintiff. The evidential obligations entail establishing the rudiments of the counter claim including capacity. In the present action relief 1 of the counter claim, in the opinion of this court, is the litmus paper for test of capacity of the counter claimants; 1st and 4th defendants/appellants. As settled in this judgment the invitation to this court is for determination of the adjoining land as ownership of the house is settled in favour of the respondents’ father. In **Amissah- Abadoo v. Abadoo [1974] GLR 110** it was held inter-alia; “ _The law imposed a duty on a plaintiff for a declaration of title who sued in a particular capacity to show by evidence brought by him or on his behalf that he was entitled to the declaration sought in that capacity.”_ Relief one of the counterclaim raises foundamental issue on capacity of the defendants/counter claimants and appellants herein. Premising on the averments in their statement of defence they contended that the land is a family property with the root of title in their ancestor Nana Ansela. The inference that emerges on the face of their first counterclaim is that declaration of title be made by the trial court in favour of the 4th defendant/counter claimant. This leads to the conclusive presumption that the counter claim was initiated in the name of the 4th defendant/appellant alone. The valid derivation herein is that the counter-claim is in the personal interest of the 4th defendant/counter claimant/appellant and not their Ansela family. It is in the circumstance the holding of this court that the 4th defendant/counter claimant/appellant had no mandate and/or cloth with capacity of his Ansela family to initiate the counter claim within the confines of their contention that the land is a family land. In arriving at this conclusion this court was mindful of the appellants’ averment that the 4th defendant/appellant is the current successor in the line of succession in the same succession position earlier occupied by the respondents’ father in the family of the appellants. Be that as it may, failure by the appellants in their counterclaim to categorically anchor relief one in the name of their Ansela family but in the name of the 4th defendant/counterclaimant/appellant excluding the 1st defendant/appellant is additional evidence that the counterclaim is not in the name of the family. In the case of **GIHOC Refrigeration & Household Vrs. Jean Hanna Assi (2005-2006) SCGLR 458** it was held inter-alia that claim includes counterclaim where the defendant counterclaims. The Supreme Court’s decision herein reinforces the position that a counter claimant becomes the plaintiff in the counter claim. A counter claimant assuming the position of a plaintiff must prove the counter claim not on the weakness in the defendant’s case but on the strength of his own case as in the substantive action. The next derivation in the case of the 1st defendant/appellant is that none inclusion of his name in the declaration of title in the counter claim is evidence that he cannot be considered as a party in the counter claim. He was, in the opinion of this court joined to the counterclaim in view of the fact that he was the representative/agent of the 4th defendant/appellant. On the contrary, this court holds the view that joinder of the 1st defendant/appellant in his capacity as the agent of 4th defendant/appellant as they averred rendered his involvement in the counterclaim before trial court as an abuse of court process save to protect and justify his interest as an agent who directly enjoyed from the rent paid by the 2nd and 3rd defendants to him. His involvement in the counter claim has no justification. At best he could be described as a busy body who offered himself as a morale booster to the 4th defendant/counter claimant/appellant. In the circumstance it is the position of this court that it is 4th defendant/appellant alone who is deemed/considered the counter claimant. The appellant/claimant as established in this judgment traced his root of title of ownership of the land to his ancestor Nana Ansela as the one who first acquired it for cultivation of cocoa. He produced no documentary evidence to prove his claim. The valid and conclusive presumption from the evidence before this court is that, the named ancestor; Nana Ansela was a native of Breman Asikuma. It cannot be contradicted that he acquired the land at the time by customary land law. The question that arises is from who did the 4th defendant/appellant’s ancestor- Nana Ansela or family acquire the land from. In other words, who were the allodial owners/grantors of the said land that was granted to the appellant’s ancestor? The 4th defendant/appellant appeared packaging answer to that question in the course of cross examining PW1 that is the mother of the defendants /respondents. It reads (i.e. page at 100 of ROA): “Q: Do you know Maame Efua Abbam? A: Yes. Q: What is her relationship with your husband? A: She was a sister. Q: Do you know that, where the disputed house is built was a cocoa farm of Efua Abbam? A: That is not true. When Efua Abbam left the house she never came back home until she became old and could not do anything.” In the same context, the 4th defendant/appellant pursuant to an order of the trial court following his application called the 3rd witness (DW3) to proof grant of the land to their Aborade family. DW3 in his witness statement averred that, the land in dispute was granted to ancestors of the appellant’s Aborade family by his Asona royal family. This is what DW3 said in paragraphs 4, 5 and 8 of his witness statement; Paragraph 4 “ _Among them all, the Aborade family headed by Ebusuapanyin Yaw Adutwum stood tall among them. They were very loyal and faithful in service._ Paragraph 5:_As custom deems it fit, my elders always reward a family who renders unlimited service to the Asona Royal family, a portion of land to either work or live on.”_ Paragraph 8 _: “It is in this glimpse that, the Abrade family headed by Ebusuapanyin Yaw Adutwum were rewarded with the said lands in dispute from House No. AP 30 of the late Obaatan Kofi Donkor to the Dam site of GWSC of Apagya, in the Breman Asikuma, for their services from my elders; Ebusuapanyin Yaw Owiredu, Wofa Yaw Amfosah, Ebusuapanyin Kofi Eduful all of blessed memory.”_ The averment by DW3 coupled with cross examination of PW1 on the acquisition of the land by their family raises the question about the root of title of the appellants’ family’s acquisition or grant of the land by DW3’s Asona family. The evidence of DW3 appears to identify the land in terms of its present state by way of boundaries. It cannot be disputed, however, that the land was not granted to the appellants ancestor by DW3’s family in its present residential status or the structures on it. It is explicit from the evidence of DW3 that, if the land was granted to the appellants’ family by DW3’s Asona family at all it was for agricultural or farming purpose. The purpose was not for residential use as it is in its present state. It was therefore incumbent on DW3 to adduce evidence of adjoining land or farm owners at the time it was granted to the defendants’ family as he claims. Failure by DW3 to adduce evidence to that effect renders his evidence as an total after thought of a witness who took advantage of the present structures on the land to adduce misleading traditional evidence before the trial court. In**Fosua & Adu-Poku vrs Dufie (dcd.) & Adu Poku Mensah (2009) SCGLR 310 **it was inter-alia held; “… _, it is be noted that the law is firmly settled that for a family or stool to succeed in an action for a declaration of title to properties, it must prove its method of acquisition beyond reasonable doubt either by traditional evidence, documents of title or by event or acts of ownership exercised over the properties.”_ The court in the circumstance treats DW3’s evidence as lacking the desired credibility to be relied on by any court and for that matter the trial court. The court holds this view on the reasoning that the 4th defendant/counterclaimant/appellant adduced no evidence of acts of ownership and possession exercised by his predecessors on the land in dispute before demise of the respondents’ late father Kofi Donkor. DW3 in his evidence also failed to adduce same evidence expected of the counterclaimant on his own or in corroboration. DW3’s evidence in the circumstance is rejected on grounds of speculation, after thought, and evidence from a witness who was programmed by the 1st and 4th defendants/appellants. In the same manner, DW1 and DW2 who are members of the appellants’ family in their respective evidence did not make reference to any boundary features of the land they claim was granted to their ancestors and for that matter their Abrade royal family. This is a lacuna in the appellants’ claim that their ancestors were granted the land by the Asona family as contended by DW3. On the converse, the plaintiffs/respondents and their witnesses: PW1 and PW2 were consistent that the land was acquired by the plaintiff’s father from Nana Amoakwa Boadu IV. The appellants in their statement of defence in paragraphs 20 and 21 made unreasonable averments in respect of root of title of the land and same repeated by the 2nd and 3rd defendants. The said averments are herein referenced; “ _Paragraph 20: “2nd and 3_ _rd_ _defendants say that the land was first owned by late Nana Ansela who was succeeded to by late Opanyin Kwaku Amoakwa and then by Efua Gyapomaah who cultivated cocoa on the land._ _Paragraph 21: “The late Efua Gyapomaah was succeeded to by late Kofi Donkor (plaintiff’s father) who was also succeeded to by late Kojo Donkor. 4th defendant succeeded the late Kojo Kontoh and is the current head of family and owner/manager of the disputed properties.”_ There is also undisputed evidence that the 2nd and 3rd defendants’ attempt to resort to the limitation decree against the 1st plaintiff could not be sustained. This court holds this position on the reasoning that, the 2nd and 3rd defendants did not in the course of cross examination of the 1st plaintiff deny her assertion that at the time the land was granted to them she was not in Breman Asikuma. This implies that the plaintiffs/respondents could not be placed under the legal constraint on the defence of acquiesce and laches as contemplated by the 2nd and 3rd defendants. In any event, the 1st and 4th defendants’ failure to plead acquiesce and laches in their defence renders contemplation of same by the 2nd and 3rd defendants unjustified and without any legal or evidential foundation by the appellants before the trial court. The plaintiffs/respondents’ evidence which is collaborated by PW1 and PW2 on the balance of the probabilities obliges this court to affirm the decision of the trial court in entering judgment in favor of the plaintiffs against the defendants therein and appellants herein. It is the holding of this court as established in this judgment that the counter-claimant lacked the capacity in mounting the counter claim also failed to proof his family’s title of ownership and possession of the disputed land. The court dismisses the counterclaim. The judgment of the trial court is accordingly affirmed. The appellants’ appeal is accordingly dismissed. Cost of GH₵ 10,000.00 is awarded against each appellant totaling GH₵ 20,000.00 in favour of the plaintiffs /respondents. ………………………………. H./L. Kwame Polley (Justice of the High Court) _CASES CITED_ 1. Ackah v Pergah Transport Ltd &ors [2010] SCGLR 728 2. Amonoo vrs. Dee (1975) GLR 305 C.A 3. GIHOC Refegiration & Household Vrs. Jean Hanna Assi (2005-2006) SCGLR 458 4. Fosua & Adu-Poku vrs Dufie (dcd.) & Adu Poku Mensah (2009) SCGLR 310 5