NANA SARFO KANTANKA & ANOR VRS YAW BADU & 2 ORS (C1/08/2020) [2024] GHAHC 400 (26 November 2024)

1 28/11/2024 IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT NKAWKAW – EASTERN REGION ON THURSDAY THE 28TH DAY OF NOVEMBER 2024: BEFORE HER LADYSHIP JUSTICE CYNTHIA MARTINSON (MRS), HIGH COURT JUDGE ________________________________________________ SUIT NO. C1/08/2020 NANA SARFO KANTANKA & ANOR - PLAINTIFFS VRS. 1. YAW BADU DEFENDANTS 2. MADAM YAA AKWAA 3. OSABARIMA NANA YEBOAH AFARI OBUAGYAN II PARTIES: 1st Plaintiff present. 2nd Plaintiff present. 1st Defendant present 2nd and 3rd Defendants absent. LEGAL REPRESENTATION: Vladimir Nikoi Kotey Esq. holding brief for Frank Nikoi Esq. for the Plaintiffs present. David Osei Asare Esq. for the Defendants present. ------------------------------------------------------------------------- JUDGEMENT 2 The evidence in this case was taken by this court differently constituted, Coram: Justice N.K.E Osam who is presently on retirement. By a letter dated 20th of October 2022, the Honourable Chief Justice of the Republic of Ghana, Chief Justice Anin Yeboah [Retired] clothed me with the mandate to elect to start this case de novo or to adopt the proceedings and deliver judgement. I opted for the later. Therefore evidence on record in this case was adopted with the consent of lawyers on both sides. However, judgement in this case stalled due to the survey report which came late. The Plaintiffs caused a writ of summons to be issued at the High Court on 26th March, 2020 against the Defendants claiming the following reliefs: a) Declaration of title to Land described in paragraph 4 of the statement of claim. b) An order of Perpetual Injunction restraining the Defendants, either by themselves, their assigns, privies, personal representatives, successor in title etc. from in anyway interfering with or frustrating the plaintiffs family allodial ownership and occupation of their said land. c) Recovery of possession. d) Special Damages of GH¢100,000.00 for trespassing on the plaintiffs‟ family land and using same for farming and other activities. e) General Damages of GH¢50,000 for trespassing on the plaintiff‟s land. f) Cost including lawyer‟s fees. g) Any further order or orders as the honorable court may deem fit and /or just. The Defendants entered appearance on the 1/4/2020. The 1st defendant later filed his defence on 21-5-2020 and resisted the Plaintiff‟s claim and counterclaimed as follows: a] A Declaration that the 1st defendant is the rightful owner of the land being disputed by the plaintiffs. 3 b] An order directed at the plaintiffs to vacate every bit of 1st defendant land that they have trespassed or taken over by the plaintiffs. c] An order of perpetual injunction to restrain the plaintiffs, their assigns, privies personal representatives, successors in title and agents from interfering with the peaceful enjoyment of 1st defendant‟s land legally acquired from the stool of obo Kwahu. d] Cost for defending the action on full recovery basis including solicitor‟s cost. The 3rd defendant filed a separate Defence and counterclaim on the 21-5-2020, even though in principle he did not counterclaim. The plaintiffs filed a Reply on the 27/7/2020. At the close of pleadings, the following issues were set down in the application for directions: 1. Whether or not plaintiffs are entitled to their claim. 2. Whether or not defendants are entitled to their counterclaim. 3. Whether or not all Obo Kwahu lands are stool lands and for that matter no family owns land there. 4. Whether or not parties are litigating over the same land. 5. Whether or not plaintiffs‟ family represented by Beatrice Efua Tanor and 1st defendant litigated over the disputed land at 3rd defendant‟s palace and the 3rd defendant found in her favor. 6. Whether or not 3rd defendant has leased a portion of the disputed land to 1st defendant. 7. Whether or not 1st defendant made a farm on a large portion of disputed land since 2016. 4 In spite of the above, on the 13th day of August 2020, this court differently constituted set out only two issues from the Application for Directions filed by the Plaintiffs for determination. These are: [i] Whether the plaintiffs are entitled to their claim [ii] Whether the defendants are entitled to their counterclaim However, these issues are reprehensible and ought to be discouraged. l say so based on the Apex Court decision of Dalex Finance & Leasing Company Ltd. V. Ebenezer Denzel Amanor & 2 Others [2021] 172 GMJ 256 @ 304 per Pwamang JSC. His Lordship said: “I take this opportunity to deprecate the emerging wrong practice where setting down issues for trial in a civil case „ whether or not the plaintiff is entitled to his claim‟ is put down as an issue for trial. The whole trial is aimed at determining whether or not the plaintiff is entitled to the Reliefs claimed so how can that be a distinct issue? This practice is a product of lazy work and a stop must be put to it. This case also serves as a reminder to all lawyers of the first principle we learn in civil procedure to always ascertain the cause of action that arises on the fact of the case before drafting our claim.‟‟ I earnestly believe that Counsel for the plaintiffs who enlisted these issues is not being lazy but only displaying a vestige of what was handed down to him when he joined the bar. However, in the case of Fatal V. Wolley (2013-2014) 2 SCGLR 1070 at page 1076, Georgina Wood CJ (as she then was) said as follows: “Admittedly, it is indeed sound basic learning that courts are not tied down to only the issues identified and agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot, or even not germane to the action under trial, there is no duty cast upon the court to receive evidence and adjudicate upon it. The converse is equally true. If a crucial issue is 5 left out, but emanates at the trial from the pleadings or the evidence, the court cannot refuse to address it on the ground that it is not included in the agreed issues”. See also Environmental Development Group Ltd. V. Provident Insurance Co. Ltd & 2 Others [2020] 165 GMJ 1 SC The law allows a court not to restrict itself to the resolution of all the issues set down in the application for directions. The law is that a court of law is not bound to consider every conceivable issue arising from the pleadings and the evidence. See: Vincentia Mensah V. Numo Adjei Kwanko II (2018) 117 GMJ 76 SC. In the estimation of this court the relevant issues that will assist the court to resolve the entirety of this dispute are: A] Whether there was a binding or valid Arbitration between the plaintiff’s family and the 1st defendant. B] Whether All Obo Lands are Stool land. C] Whether the plaintiffs’ family land has been encroached upon by the defendants and that title to the said encroached land be declared to plaintiffs instead of the 1st defendant as part of their Family land. D] Whether any of the parties is entitled to Damages both specific and general. I wish to summarize the evidence of the parties. PLAINTIFFS’ CASE When the matter came up for hearing 1st Plaintiff testified on his own behalf and on behalf of the second plaintiff with his consent by his witness statement as follows: He is Nana Sarfo Kantanka. His private name is Daniel Sarfo. He is a member of the Akwaa family, a branch of the Aduana Royal Family and a Managing Director of Nyakoaba Motors. The 2nd Plaintiff is the head of the Akwaa family and a farmer. According to him, 1st defendant trespassed unto the Akwaa family land about 11 6 acres and he is farming on same. He has caused 2nd defendant to take care of the farm on his behalf. 3rd defendant purports to have granted the land to 1st defendant. He said the Akwaa family owns the land in dispute which is lying and being at an area called Adumanya, Obo-Kwahu. The size of the entire land is 29.01 acres (or 11.88 hectares) and is bounded on the North by Nana Okrah Badu‟s land; on the East by Nana Okrah Badu and Opanyin Attaku‟s land; on the South by the land of Opanyin Kwesi Asiamah; and on the West by the lands of Nana Ankobeahene, Agamajo and Nana Okrah Badu. It is his further case that, their family came by the disputed land by conquest and settlement more than one hundred (100) years ago and have since exercised overt acts of ownership over same without any opposition, let or hindrance from any quarters whatsoever. He continued that, in or about 2016, their family noticed that the 1st defendant whom the family has no transaction whatsoever with in respect of the said land, has trespassed on the land and had begun demarcating certain portions for farming. He placed 2nd defendant on the land as caretaker. When this development came to the notice of the family, the 1st defendant was invited to the family house to explain the reasons why he trespassed on the family land but he refused to honour the said invitation. It is his further case that, he was not satisfied with the behaviour of the 1st defendant, and so the family represented by Obaapanyin Efua Tanoah reported the matter to the 3rd defendant who is also the Chief of Obo-Kwahu and the Nifahene of Kwahu Traditional Area for adjudication. It is his case that the 3rd defendant, Osabarima Obuagyan II and his elders invited Obaapanyin Efua Tanoah and 1st defendant arbitrated on the matter and decided in favour of the Akwaa family. The 1st defendant was ordered to share the food crops 7 on the land with the family and to vacate the land upon harvesting their crops. The 1st defendant was also fined and ordered to compensate the Akwaa family with GH¢1,000.00. However, contrary to the specific instructions of 3rd defendant and his elders, the 1st defendant harvested the food crops on the land but failed and/or refused to share the food crops with the family. He also refused to pay the compensation. He again added that, contrary to the specific instructions of the 3rd defendant and his elders, the 1st defendant has refused to vacate the land but instead has mounted pillars on certain portions of the land with the intention of illegally allocating the said portions to himself. He has also made a farm on a large portion of the land and has engaged 2nd defendant as his caretaker of the farm. It is his case that, they also had information that the defendants are negotiating with a telecommunication company to lease a portion of the disputed land to them for the mounting of their mast. He said, the 1st defendant has exhibited gross insubordination to 3rd defendant and his elders, and has exhibited clear intentions to unlawfully arrogate to himself the family land without the consent of the family. 3rd defendant contrary to his own decision for 1st defendant to give vacant possession of the land to the Akwaa family, has himself leased a portion of the same land to 1st defendant. It is his further case that, 3rd defendant does not have the capacity to grant lands that belong to the Akwaa family. It is also not true that all Obo-Kwahu lands are stool lands. Any purported grant of their family land to 1st defendant by 3rd defendant does not cloth 1st defendant with any legal interest in the land as 3rd defendant could not give what he does not have and it amounts to trespass. He also noted in his supplementary witness statement that, Akua Obaa though married to a chief of Obo was not given any land to cultivate and the disputed land 8 is not a gift to 1st defendant‟s family. He said, the schedule of the 1st defendant lease does not belong to him. He further noted that, Akua Obaa hails from Bepong. He denied that the disputed land has ever been cultivated with cocoa. According to him, until recently the disputed land has never been cultivated by 1st defendant‟s family. No boundary trees were burnt as alleged. He is said to have tendered Exhibit „A‟ site plan of Opanin Adjei Family Land though same does not appear to have been tendered in the record. In cross examination, he asserted that he has been the head of Aduana family since 2 years ago to the Knowledge of the Obohene since his introduction in 2019. He is aware that the Obo chief is also a member of the Aduana Royal family. He shares boundaries with Opanin Attaku but does not know whether Yaa Obiyaa and Akosua Ntoniwah are related to him or are his cousins. He denied the destruction of Ntome serving as boundaries between the late Abena Korang‟s land and Attaku‟s land. He admitted that Abena Korang is his grandmother and that his site plan is the same as Abena korang‟s land. He denies he has no knowledge about the history of Obo. He does not know which group of people his family conquered to acquire the land. He admitted not being present during the Arbitration between the 1st defendant and Efua Tanoah. He insisted the Arbitration went in favour of the Akwaa family. He maintained that the 1st defendant was found to have trespassed unto their land at the Arbitration. He admitted that he has no capacity to sell or lease land in Obo. He denied that all lands in Obo are considered as stool lands. He admitted that he knows Opanin Attaku but does not know whether he is related to the 1st defendant. He admitted that Akua Obaa the great grandmother of the 1st defendant got married to a chief of Obo. PW1 testified [out of turn] via her witness statement as follows: 9 Her name is Obaapanyin Efua Tanoah. She lives at unnumbered house at Obo- Kwahu. She knows the Plaintiffs. 1st Plaintiff is the Head of the Aduana Royal Family whilst the 2nd Plaintiff is the head of the Akwaa Family of the Aduana Royal Family. She also knows 3rd defendant is the chief of Obo-Kwahu. She got to know the 1st and 2nd defendants through the subject matter of the instant suit when it was litigated between them at the 3rd defendant‟s palace. She added that, she belongs to the Aduana Royal Family of OboKwahu specifically to the Akwaa branch of the Aduana Royal Family. The Aduana Royal Family comprises of five families. She continued that the disputed land is owned by her family, which is the Akwaa family. It is located at Adumanya, a village of Obo- Kwahu. She narrated that, she was born and bred on the land and her parents farmed on the land. Her parents before them also farmed on the land. It is her case that, their family has been in possession of the land for over a century. It is her further case that, their ancestors included those who founded the Obo town. By virtue of that, they became part of the Aduana Royal Family. Any member of the family farmed on the land with permission of the head of family. Non-members of the family are also allowed to farm on the land with permission of the head of family. Farm proceeds of non-family members are shared in agreed proportions. She said, about five (5) years ago, 1st defendant trespassed on the disputed land and started farming on it. When he did not cease his trespassory activities after confronting him, she personally summoned him before the Obo-Kwahu Traditional Council with the 3rd defendant presiding. Other members of the Committee who sat on the matter are the Apedwahene and the Wirempihene. 10 In the course of the hearing, a fact finding committee comprising the Apedwahene and Wirempihene and one Kofi Kissi visited the disputed land in the presence of the parties or their representatives. They reported their findings to the Committee. After hearing both parties and considering the report of those who visited the land, the Committee decided in her favour that her family owns the land. It is her further case that, the Committee also ruled that since 1st defendant had already planted food crops on the land, it should be left to mature for him to harvest it. 1st defendant was also to compensate their family with GH¢1,000.00. She said, he has since not paid the compensation. He did not also share the farm produce with her family. But he gave vacant possession of the land to them. She narrated that not long after, it came to their notice that 1st defendant has trespassed on the disputed land again and had placed 2nd defendant on it as caretaker. 1st defendant has farmed on a large part of the land. When they confronted him, 1st defendant said the land has been leased to him by 3rd defendant, the very land that 3rd defendant presided over together with a Committee of the Obo- Kwahu Traditional Council and decided in favour of their family. All efforts by her family to get defendants to give vacant possession of their land was futile. She concluded that, the claim by defendants that all Obo-Kwahu lands are stool lands is not true. All families including the family of the 3rd defendant own land. In cross examination, she admitted that a similar matter was before the Mpraeso Circuit court in 2018, but has been withdrawn. She admitted this case was before the Chief of Obo for arbitration but denies that it was found against her. She said Abena korang was her mother. She admitted knowing Akosua Ntoniwah, Ama Abuni and Yaa obiyaa and that the three are from the same womb and they farmed on the disputed land for years. She does not however agree that they share boundaries with Ohemaa Korang. She admitted being present at the locus during 11 the Abitration and that the Ntome is on their land which has been used as boundaries. She asserted the 1st defendant has no land there and that he was to pay GH¢1,000.00 after the arbitration. She maintained that the land in dispute is not a stool land. Pw2 testified via his witness statement as follows: His name is Kofi Kissi a.k.a. Adjingo. He knows the Plaintiffs. He got to know the 1st Defendant in a dispute between the Akwaa family represented by Obaapanyin Efua Tanoah when he appeared before the Obo-Kwahu Traditional Council for Arbitation. He said, he takes care of the farm lands that share boundary with the Akwaa family land on behalf of his family, the Obo Djasehene family. When he sees trespassers and encroachers on Plaintiff‟s family land, he informs them. He knows the Akwaa family land. It is about 29 acres. He also knows all the boundary owners. He continued that he testified for the Akwaa family when Obaapanyin Efua Tanoah summoned the 1st defendant before the Obo-Kwahu Traditional Council. Plaintiffs‟ family was declared owner of the land. It is his further case that, the 3rd defendant arbitrated the matter with other chiefs. The 3rd defendant was the chairman of the committee. Other members are the Wirempihene, Kyidomhene, Nifahene and the Linguist, Asamang. In the course of the hearing, the 3rd defendant hired a vehicle for the Apedwahene, the Wirempihene and the Secretary to the stool to visit the land, together with 1st defendant and Obaapanyin Efua Tanoah. He also joined them to the land. At the site, 1st defendant could not show his boundaries as well as the boundary owners. The sub-committee that visited the land reported that 1st defendant could not identify his land as well as the boundary owners. He said, the committee presided over by the 3rd defendant gave verdict in favour of Obaapanyin Efua Tanoah. It also made an order for 1st 12 defendant to share the farm produce with the Akwaa family represented by Obaapanyin Efua Tanoah and awarded cost against 1st defendant. It is his further case that, it is strange to hear that the very land that was ruled in favour of the Akwaa family represented by Obaapanyin Efua Tanoah has been leased to the 1st defendant by 3rd defendant. He concluded that, it is not true as claimed by defendants that all OboKwahu lands are stool lands which could be leased by 3rd defendant. In cross examination, he insisted that he shares boundaries with the land in dispute and that he has been farming in the area since 1970.He said it is the first defendant who cultivated the land in dispute and when he saw him trespass on the disputed land, he informed Afua Obi. He cannot tell whether Efua Tanaoh is the same as Efua Obi. He knows Opanin Attaku. He admitted that, Opanin Attaku shares boundary with the land in dispute but did not farm on the land. He does not know Yaa Obiyaa,Ama Abuni and Akosua Ntoniwaa. He does not know the acreage of Attaku‟s land but he knows where it lies. He asserted that, he knows all the boundaries of the Akwaa family land. He knows that the Akwaa family shares boundary with Maama Efua Obi.He again asserted that the committee did not find in favour of the 1st defendant. He admitted that they are Ntome trees along the border of the land in dispute. He did not see any destruction of the Ntombe trees. He maintained that, Obo lands are stool lands but every family has a gate and so he can sell his land .He said the 1st defendant secretly went to cultivate the land that is why they are in court. It should be noted that even though the plaintiff filed witness statement for 3 witnesses he called only two of the witnesses. DEFENDANTS CASE On the part of the defendants the 1st defendant testified via his witness statement as follows: 13 I wish to summarize the evidence of the 1st Defendant: His name is Joseph Badu Danquah. He is a Quantity Surveyor and a citizen of Obo- Kwahu with his ancestry from the Aduana Royal Family of Bepong. He said the Plaintiffs are not known to him save that 1st Plaintiff who is said to be a son of the old woman, Afua Tanoah who filed a writ against him at the Mpraeso Circuit Court on same land but later withdrew it. He continued that, their land is well defined by the Schedule incorporated in the Deed of Lease between himself and the chief of Obo, Osabarima Afari Yeboah Obuagyan II. They share boundary with Gyaasehene on the eastern side where there are still some old boundary trees (Ntome) growing. On the same eastern side, they also share boundary with Safohene Kwame Antwi and Komfo Dedaa‟s family. On the northern side they share boundary again with Gyaasehene and finally on the western side they share boundary with the late Ohemaa Abena Korang, where the boundary trees (Ntome) have been visibly tampered with. According to him, his maternal lineage or family has occupied the land in dispute for nearly 170 years. According to him, one of his greatgreat grandmothers from Bepong known as Akua Obaa got married to one of the earlier chiefs of Obo in the 1800s. This great grandmother was gifted this land and some other lands in Obo by the Stool to farm on, and indeed the land has been occupied and used as farmland for more than five generations, i.e. over 150 years. He added that, the descendants of this woman have continuously lived as citizens of Obo for years spanning over five (5) generations, with his mother, Akua Boansi, who also farmed on the land as part of the fifth (5th) generation. He said, the descendants of this great grandmother have since the 1800s used this land for agricultural purposes. At one time, there was cocoa farm on a portion of the 14 land but the cocoa farm got burnt in or around 1968 and since then, the land has been used mainly for the production of food crops. It is his further case that, apart from the generation of his great grandparents and grandparents, his generation, the 6th one, all born in Obo including his siblings and cousins have farmed on this land. Some of the elderly family members whom they met and who also farmed on the land included Akosua Ntoniwaa, Ataaku, Kwasi Adiyia, Amma Aburi, Yaa Obiyaa. They have farmed on this land unhindered and unimpeded till now. Again he said, It is the main argument of the said Efua Tanoah that having their origins from Bepong they did not bring any land to Obo and therefore cannot lay claim to any land in Obo. He said, in January 2016 having noticed the construction of a building on the adjoining land to the land in dispute on which they have been farming for some time now, he engaged some persons to clear portions of the land. This was to ward off any trespassers, as it were. Later, he got the information that someone had gone to the farm and tied red banners over the area that he had instructed to be cleared. Following this, he came from Accra and got these red banners removed. He added that, it was after this event that he was informed that one Efua Tanoah had lodged a complaint against him at the Obohene‟s Palace claiming ownership of part of the land on which he is farming. He continued that, he was invited to the Palace of the Obohene and before the Committee for Land Affairs. After lengthy deliberations, the said Afua Tanoah admitted that she knew my grandparents who farmed on the land, some of whom are Amma Aburi, Yaa Obiyaa, Atta Kwaku (Attaaku), Akosua Ntoniwaa, Afua Mansah, Kwame Appah, etc. 15 According to him before the committee, it was made clear that the land in issue, like any other land in Obo is part of Obo Stool Lands and that, any person occupying such land was at the pleasure of the Stool who alone could alienate it and that, as subjects of the Stool, they have the right to farm and use the land for any other purpose subject to their atonement of ownership to the Stool. It is not true that he was fined GH¢1,000.00 and there was no order for him to share any proceeds from the farm with anybody. He further narrated that, after the arbitration at the Nifahene‟s Palace, he was informed by the 2nd defendant that the said Afua Tanoah had gone to beat gong-gong asking him to vacate the land and admonishing the general public not to enter the land. He reported this matter to the Committee and the parties again were called to appear before the Committee. Again after deliberations, he was asked to continue with his farming activities, the Committee having found the conduct of Efua Tanoah reprehensible. Not satisfied with the decision of the Committee, PW1 Efua Tanoah later went to the house of the 2nd defendant and threatened her with death if she did not stop assisting him on the land. She later denied ever making such threats when she was summoned to the Palace when he reported her threats to the Palace. Again, she was reprimanded and was asked to go and continue with his farming activities. This did not stop Afua Tanoah from continuing with her harassment of his workers on the farm. It is his case that, still not satisfied with the decision of the Palace, the said Efua Tanoah filed a suit against him at the Mpraeso Circuit Court. When he entered appearance, her lawyer later withdrew the case and a cost of GH¢1,000.00 was awarded against her, which cost she has refused, failed or neglected to pay up till now. 16 He said, While the case was pending at the Circuit Court, he noticed the destruction (cutting and burning) of some of the boundary trees (known as Ntome) separating their land from that of the late Ohemaa Korang. He again reported this destruction to the Obohene, who detailed one of his linguists and a sub-chief to verify the situation and report their finding to him. It is his case that considering all the threats to the farmland, he took a decision to formally register the land which is a Stool land and which only the occupant of the Stool, Osabarima Nana Yeboah Afari Obuagyan II, with the consent and concurrence of his elders can lease out. The land has since been duly registered and annual rent payment to the Administrator of Stool Lands have been made for the period from 2017 to 2020. He added that, the Plaintiffs witness by name Kofi Kissi has been economical with the truth when he says that he was not able to show the boundaries of his land. According to the 1st defendant, he has deliberately twisted the truth to suit his paymasters. This is not supported by the findings of the subcommittee. Again the statement by Efua Tanoah to the effect that he “gave vacant possession of the land to them ” is not true. His position is very clear on this issue, that his maternal family having occupied the land over five (5) generations, it is not for him to repudiate ownership of the land, neither will he sit unconcerned for the land to be expropriated from him and his maternal family by another person or group of persons. He maintained that, the land is part of the Stool lands of Obo. His maternal lineage has occupied the land with the consent of the Stool over five (5) generations. This does not change the status of the Stool land to family land. According to him, if the Stool in its considered wisdom and within its capacity has decided to lease the land, the said lease cannot be said to be null and void. He tendered in evidence a lease received and marked Exhibit YB3 without objection. 17 In cross examination, he asserted that he does not know the families that constitute the Aduana stool. He insisted that, he is the member of the Aduana family. He said his ancestors have been on the disputed land for 150 years. He however maintained that, the land is a stool land even though it belongs to his family. He asserted that, the land in dispute does not belong to Nana Abena Korang, the former queenmother but his family shares boundaries with her. He is unaware that Efua Tanoah is the daughter of Nana Abena Korang. He maintained that, the land he has registered is 11.31 acres. He asserted that, his grandmother married into the Aduana family. He insisted he can farm on the land since it belongs to his family but he cannot lease or give it out, that is why he went for the lease from 3rd defendant. He asserted that the arbitration ended in his favour. He again admitted that, he acquired the land from 3rd defendant in 2016 as a form of security. He maintained that, there is a boundary between his land and that of the Plaintiffs. He does not know the size of his family land but can speak to the registered one which is within the boundaries of his family land. He knows the boundaries of his ancestral land. He asserted that, Opanin Attaku is one of the grandparents they met on the land. He admitted that, he hails from Bepong. DW1 testified via her witness statement akin to the 1st defendant as follows: Her name is Elizabeth Abena Adofoa. She lives at Suhum. She is from the Aduana Royal Family of Bepong-Kwahu of the Nifa Division of the Kwahu Traditional Area. The 1st defendant is her younger brother from the same mother Akua Boansi, who passed on in 2010. She said, the land in issue and other lands were given to her great grandmother, Akua Oduraa also known as Akua Obaa, who got married to an earlier Obohene in the 1800s. Some of the other lands are found at Odenko, Beposo, Atwedieso, Asana, Asubone and Akuase. As an Oheneyere, these lands which are part of the Obo Stool lands were gifted to her great grant mother to cultivate. Her 18 descendants spanning over five generations have farmed on this land without any hindrance. When she was a young girl attending school at Obo, she used to follow her grandmothers Yaa Obiyaa, Akosua Ntoniwaa and Amma Aburi who all farmed on this parcel of land. Having farmed on this land in her youthful days staying at Obo, she knows that they share boundaries with first; the Gyaasehene of Obo on the eastern side where they still have the boundary trees called Ntome, on the same eastern side they also share boundary with Safohene Kwame Antwi and Komfor Dedaa.On the northern side they again share boundary with the Gyaasehene‟s family. On the western side they share boundary with the late Ohemaa Abenaa Korang. It is on this side that the Ntome trees have been willfully destroyed. After, completing Form 4, she stayed in Obo and continued to farm on the land with his grandparents till about 1974 when she left to join her husband at Akyem Oda. They later settled at Suhum. She was at Obo in the late 60s when the cocoa farm on part of the land got burnt. After that, they continued to use the land for the farming of food crops and have had no problem from anybody working on the land till now. She continued that with this background, she is surprised that the Plaintiffs in this suit are laying claim to part of their land. Having said this, she pleaded with the Honourable court to give no credence to the claim of the Plaintiffs. In cross-examination, she admitted that she knows the land that the 1st plaintiff is claiming and it is the same as the land the defendants are claiming. She admitted that, she does not know the size of the land the plaintiffs and the 1st defendant are claiming. She is unaware that the 1st defendant has taken a lease from the 3rd defendant. She is also not aware of the arbitration but asserted that the land belongs to their ancestors. She is however unperturbed that she was not informed about the 19 lease, because it is the 1st defendant who is on the land. She insisted that since 1960s her ancestors have worked on the land. She asserted that she does not know the acreage of their ancestral land but there are Ntome planted at the boundary. She maintained that, she does not know the Obo chief who gifted the land to her great- grandmother, Akua Oduraa also known as Akua Obaa. She insisted that there was a cocoa farm on her family land that got burnt and she knows the boundaries of her family land. She said the Obo chief has capacity to grant land out to anybody. Evidence of the 3rd defendant as contained in his witness statement filed: He is Osabarima Yeboah Afari Obuagyan II. He is the Obohene and Nifahene of Kwahu Traditional Area. He knows the 1st Plaintiff as a member of the Aduana Royal Family but not as Abusuapanin of the Aduana Royal Family, hence the capacity on which he litigates the instant suit is suspicious or doubtful. He says on authority that as Obohene and Nifahene of Kwahu Traditional Area, all land in Obo form part of the Obo Stool Lands. It is his further case that, lands in Obo include the other towns and villages under Obohene. He has the topographical map of Obo Stool lands. He stated that, as Nifahene of Kwahu Traditional Area, he can say on authority that all lands in Obo and other towns and villages headed by sub-chiefs and Odikrofo under the jurisdiction of Obohene constitute the Obo Stool Lands. He said these Stool Lands can only be alienated, leased out or given out only by the Chief of Obo acting with the consent and concurrence of the Elders of the Stool. It is his further case that as custodian of the Obo stool Lands, he knows that subjects of the Stool or citizens of Obo can occupy part of the Stool lands and make use of such lands for their benefits. However, they still require the consent of the Stool because the ownership still resides with the Stool. 20 He stated that, irrespective of how long a subject of the Stool or any other person occupies and makes use of a portion of the Stool land, it does not change its status or character of being a Stool land. He said the Stool has the prerogative to deal with the land under its jurisdiction the way it considers good. According to him, one Afua Tanoah lodged a complaint at the Palace against the 1st Defendant. The matter was arbitrated upon but the Committee found no wrong doing against the 1st defendant and therefore he was asked to continue with his farming activities. It is his case that, the 1st defendant later sought the consent of the Stool to enable him register the farmland. The Stool agreed after 1st defendant has fully satisfied the necessary requirements of the stool. He noted that, 1st defendant has legitimately acquired and registered the land which his ancestors have occupied and used for well over five generations. He has the plan of Obo stool land. It is interesting to note that, 3rd Defendant filed the above witness statement which was wrongly adopted by the court through his lawful Attorney Nana Owusu Appiah II. His Attorney did not file his own witness statement instead, he chose to rely on the statement of his principal contrary to rules governing witness statement in CI 87, which requires that one ought to depose to his statement as a statement of truth. However, Counsel for the other side did not object to the practice and allowed same to be adopted. I will therefore expunge the cross-examination of Nana Owusu Appiah II, the Attorney for the 3rd defendant on record because he cannot be cross-examined on the evidence of the 3rd defendant. The evidence of the 3rd defendant can at best be regarded as hearsay. Also in the Supreme Court case of Edward Nasser & Co. Ltd. vrs. McVroom [1996-97] 468 SCGLR Acquah JSC had this to say: 21 “A distinction can be made between evidence which is per se inadmissible and evidence which would have been rejected as inadmissible upon an objection being taken at the trial… Unless the evidence sought to be excluded is the type which is inadmissible per se, this court will not allow a party to the proceedings to complain when he had every opportunity to raise formal objection to it at the time when questions were being asked‟‟. As to which type of Evidence are inadmissible per se, the West African Court of Appeal in Abowaba vrs. Adeshina [1946] 12 WACA 18 explained: “There are certain types of Evidence such as hearsay and unstamped or unregistered documents which are inadmissible per se, they cannot form the basis of a decision and objection to them may be taken at any stage of the trial or on appeal‟‟. Therefore, based on the above reasoning as earlier intimated, I will consider the Evidence of the 3rd defendant as hearsay and since it was not formally put in as hearsay in line with C .I 87, I will not attach any weight to it. I will also expunge the cross examination of the Attorney for the 3rd defendant from the record since he ought not to be cross examined on a witness statement deposed to and signed by the 3rd defendant. I acknowledge that, lawyers from both sides filed written submissions and even additional written submissions. I have thoroughly read through all the submissions and their contentions are noted. On the 13th of August 2020, this court differently constituted in its wisdom ordered the Regional Surveyor to survey the disputed land and report to the court. The Report was received 25/06/2024 and marked Exhibit C.E1 From the cross examination of the surveyor by both counsel for the parties and the court, the surveyor disclosed the following: • That the parties are litigating over the same piece of land • That the land in dispute falls within the site plan of both parties 22 • The common area claimed by both parties has been cultivated and they all claimed to have cultivated same. BURDEN OF PROOF The law has been settled that, this case being a civil one where no crime has been alleged by either party against the other, the standard of proof is on the preponderance of probabilities as stated under section 11 (4) and 12 (1) of the Evidence Act, 1975 (NRCD 323). See: Yorkwa V. Duah [1992-1993] GBR 278 CA. This standard of proof carries with it a burden on a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude the existence of the fact is more probable than its nonexistence. See: Ackah V. Pergah Transport Ltd & Ors [2010] SCGLR 728 Gihoc Refrigeration & Household Products Ltd V Hanna Assi [2005-2006] SCGLR 458. In most cases, the burden to prove a case may rest on the Plaintiff who took the matter to court. However, where a Defendant files a counterclaim to the Plaintiff‟s action, then he also has a burden to prove his counterclaim on the preponderance of probabilities if he did not allege any crime. This is because, a counterclaim is a separate and distinct claim by the Defendant against the Plaintiff. See: Gbedema V. AwoonorWilliams (1970) CC 12, SC. A counterclaim stands on its own. Therefore, even if the Plaintiff action is stayed, struck out, discontinued, or dismissed, the Defendant can proceed to prosecute his counterclaim. See: • Fosuhene V. Atta Wusu [2011] 1 SCGLR 273 23 • In Re Will of Bremansu; Akonu-Baffoe & Ors V. Buaku & Vandyke (Substituted by) Bremansu [2012] 2 SCGLR 1313 • Veronica Opoku V. Mary Lartey [2018] 119 GMJ 244 SC • Nortey (No.2) V. African Institute of Journalism Communication & Others (NO. 2) [2013-2014] 1 SCGLR 703 In this case, the 1st Defendant has a counterclaim against the Plaintiffs. Therefore, they both bear the onus to prove their respective claims on a preponderance of probabilities. Again in this case, the Plaintiffs pleaded in paragraphs 7, 8,9 and 10 of their statement of claim filed on 26st March, 2020 that the issue as to who owns the land in dispute was arbitrated upon between the 1st Defendant and the Plaintiffs‟ Aduana family represented by Efua Tanoah and an award was published in her favour. Plaintiffs further led evidence on it. The issue of arbitration was admitted by the 1st defendant save according to him, it was decided in his favour. Therefore they all bear equal burden to prove their respective claims. The issue regarding the arbitration which the Plaintiff pleaded and led evidence on in my opinion, is to be determined as a preliminary legal issue. The law is settled that if there is a legal point of law which is evident from the record of proceedings, and it involves a substantial point of law, which can dispose of the matter in one way or the other, then it should be decided first. It can even be determined in some cases where it was not even specifically pleaded but is evident from the record as in the case of fraud. In this case however, it has been specifically pleaded by the Plaintiffs and the 1st plaintiff led evidence on it. See: • Kwaku V. Serwaa and Others [1993-1994] 1 GLR 429 SC • Attorney-General V. Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271 • Kowus Motors V. Check Point Ltd. and Others (2009) SCGLR 230. 24 In my view, the legal issue for determination in this case is as to whether there was a valid arbitration over the disputed land. All the other issues are tangential to this main issue. Again, if it is successful, the court would not have capacity to determine the other issues, depending on where the axe falls. It should be noted that there are undisputed facts on record which I wish to note; Firstly, it is undisputed by all sides that the Representative of the Plaintiff‟s family called Efua Tanoah summoned the 1st defendant to the Palace of the 3rd defendant [chief of Obo Kwahu] for a customary arbitration over the land in dispute. Secondly, it is also not in dispute that the 1st defendant and his family hail from Kwahu Bepong whilst the Plaintiffs are from the Aduana family of Obo Kwahu. Thirdly, it is not in dispute that PW1 Efua Tanoah initiated the same action at the Circuit court Mpraeso, but discontinued same for the present action. Finally, it is also not in dispute that both the family of the Plaintiffs and family of the 1st defendant have some lands in their possession around the area in dispute. ANALYSIS: ISSUE ‘A’ Whether there was a binding or valid Arbitration between the plaintiff’s family and the 1st defendant. May it be reiterated that, the issue as to whether there was arbitration over the disputed land between the parties was pleaded and evidence led on it by both sides. It would therefore be in consonance with settled law, equity, and good conscience for it to be determined as a preliminary legal point which is required by law. In the celebrated case of Pong V. Mante IV and Others (1964) GLR 593. 25 Arbitration was defined as follows: “The practice whereby natives of this country constitute themselves into an ad hoc tribunals, popularly known and called arbitrations for the purpose of amicably settling disputes informally between themselves or their neighbours, has long been recognized as an essential part of our legal systems, provided all the essential characteristics of holding a valid arbitration are present, the courts will undoubtedly enforce any valid awards published by such ad hoc bodies” The essential requirements of a valid customary arbitration are as follows: a) Voluntary submission to the arbitration b) Prior agreement to accept the award c) Publication of the award See the following cases: • Mansah & Others V Adutwumwaa & Others [2013-2014] 1 SCGLR 38. • Ankrah V. Dabra (1956) 1 WALR 89 WACA • Manu And Another V Kontre [1965] GLR 375 SC • Nyaasemhwe And Another V Afibiyesan [1977] 1 GLR 27 CA Customary arbitration need not follow any formal procedure as to how it is initiated or heard. However, the rules of natural justice should be followed. This means, each party must be given the opportunity to present his or her case before the arbitrators. See: Mansah & Others V. Adutwumwaa and Others (SUPRA) Dzasimatu & Ors V. Dokosi and Others [1993-1994] 1 GLR 463 SC. In this case, the 1st Plaintiff led evidence that there was an arbitration between the 1st defendant and representative of their family in respect of the disputed land which was presided over by the Obohene who is also the Nifahene of Kwahu Traditional 26 Area, Osabarima Nana Yeboah Afari Obuagyan. The 1st Defendant also admitted that there was arbitration save that the award was in his favour. Again, PW1 testified that she lodged the complaint before Obohene and his elders for and on behalf of her family when 1st defendant did not listen to her warning to stay away from her land, and he refused to turn up when she invited him. PW2 also led evidence that there was a valid arbitration over the disputed land and he was a witness for PW1 and was part of the group that visited the locus. He added that, an award was published in favour of the Plaintiffs‟ family represented by Efua Obi aka Efua Tanoah. According to the Plaintiffs, they are therefore entitled to the disputed land which is the land in dispute. The Defendants especially the 1st defendant contended that, there was a valid arbitration which instead went in his favor and denied the plaintiffs‟ claim. It is worth noting that, mere recital of evidence is not proof if it is still being denied. See the case of Majolarbi v. Larbi [1959] GLR 190. There is no doubt that both PW1 and the 1st Defendant submitted to the arbitration. Both parties herein testified that there was an arbitration which led to a locus inspection. However, the bone of contention is the verdict reached before the panel and when the parties paid a visit to the locus. Surprisingly enough, the plaintiffs who seem to be relying on the Arbitration could not call any panel member to attest to the verdict reached at the Arbitration, save their own witness at the arbitration PW2, whose evidence was denied by the defendants. In fact, none of the parties was able to invite any independent panel member to speak to the arbitration. The Attorney for the 3rd defendant who said he was part of the panel did not file any witness statement to testify to this arbitration. In principle, he did not testify because he could not have testified by relying on the witness 27 statement of another person be it his Attorney or otherwise. His cross-examination has been expunged from the record by this court because he did not testify viva voce or file witness statement. He could not rely on the testimony of his attorney to testify as he could not vouch for same as a statement of truth. Moreover, the 3rd defendant was not present in court to attest to the arbitration held and his evidence could not be subjected to crossexamination as it appears on record as same is a hearsay. On this issue of Arbitration, the evidence of an independent panel member who has no interest in the outcome of this case would have assisted the court in this regard. The evidence of the 3rddefendant himself or even the Attorney of the 3rd defendant [if any] cannot be said to be an evidence of an independent person since they are also interested in the outcome of the case. The courts have held the evidence of such independent witnesses in high esteem. In the case of Boateng V. Boateng [2009] 5 GMJ 58 at 64 the Court of Appeal held that “where the evidence of the only independent witness on a vital issue corroborates the evidence of one party or the other, a court is bound to accept the case of the party so corroborated by the independent witness (emphasis mine) unless, there are good reasons for discrediting the independent witness. In which case, the reasons must be clearly stated in the judgment”. See also; Asare V. Donkor And Serwah II [1962]2 GLR 176 SC and Manukure V. Agyekum & Others [1992-93] 2 GBR 888 CA. It should be mentioned that none of the plaintiffs was present at the arbitration. PW2 cannot be regarded as an independent witness since he was a witness for one of the parties to the arbitration. DW1 did not even know about the arbitration. I find no independent person testifying to an arbitral award published in favour of any of the parties. 28 In my candid opinion, the proceedings before the arbitral panel at Obohene Palace did not satisfy all the requirements of a valid customary arbitration as was held in the case of Mansah & Ors V. Adutwumwaa & Ors (supra). What is therefore is the effect of successful customary arbitration? a) Its award is final. And nobody or any court can re-litigate over it. b) It operates as estoppel by conduct and resjudicata. c) The parties and their privies are bound by the award. d) It should be dealt with before the merits of the case are determined. e) The rule is that, once there is a valid customary arbitration, the parties are estopped from raising the same issue subsequently by any action in court. The principle is that you take your arbitrators for better or for worse. See: Appiah V. Addai [1962] 1 GLR 345 SC Vado V. Sempede (1958) 3 WALR 35 Therefore, I find as a fact that Representative of the plaintiffs‟ family and the 1st defendant were engaged in a customary Arbitration. The parties were heard in a judicial manner, locus inspection was conducted but there was no prove of an award published in favor of the plaintiffs against the 1st Defendant or vice versa. There was no valid customary Arbitration between the Plaintiffs‟ family and the 1st Defendant. ISSUE ‘B’ Whether Obo Kwahu lands are all stool lands. On this issue, the 1st plaintiff made it known to the court that their family land was acquired by Conquest and settlement, the land is about 29 acres. That the 1st defendant has trespassed on about 11 acres. He stated the boundary of the family 29 land in paragraph 4 of his statement of claim and repeated it in his testimony that his family members have been cultivating the land from time immemorial. Plaintiffs deny that all Obo lands are stool lands and as such, their family land should not be carved out or lease to the 1st defendant by Obo chief. On the side of the 1st defendant his story is that, his family has a vast tract of land with the boundary as stated in paragraph 3 of his witness statement. However, to protect his title from encroachers, he has taken a lease of about 11 acres of his family land from the Obo stool. In the statement of Defence both the 1st defendant and the 3rd defendant also maintained that, all Obo lands are stool lands as the plaintiffs also contended otherwise. It should be noted that, Section 9 of the Lands Act, Act 1036 identifies various types of interest in lands. The Act states as follows: “9 [1] A stool or Skin, Clan or family land shall vest in the appropriate stool or skin or members of a clan or family in accordance with customary law or usage. [2] a person shall not create an interest in, or right over,any stool or skin land or clan or family which vest in that person or another person or a body of persons freehold interest in that land however described [3] Subsection [2] does not take away the inherent right of subject of a stool or skin or a member of a clan or family to the usufructuary interest in a vacant portion of the stool or skin or family land.” It should be noted that Freehold Interest is an interest in land which is not time bound see pg. 6 of Justice Denis Adjei‟s Land Law Practice and Conveyancing in Ghana. Again, Land Act, 2020 (Act 1036) provides under Section 5 (1) (c) that the usufruct is an interest in land which is inheritable and alienable. The alienation may be subject to certain conditions. Thus, section 5 (2) of the Land Act, 2020 (Act 1036) provides that: 30 Where alienation of a the usufruct is to a person who „[a] is not a member of the stool or skin, or clan or family which holds the allodial title: or ( b ) is not a non - indigene or from the group of non - indigenes who hold the usufructuary interest as provided in paragraph [b] of subsection ( 1 ) in the land in respect of which the usufruct is to be alienated, the alienation is subject to the written consent of the stool, orskin or clan or family or group and the performance of established customary obligations‟. A stranger-alienee is also liable to perform customary services, but such performance may be commuted to periodical money payments. See Thompson v. Mensah [1957] 3 WALR 240. In brief, per the laws of Ghana families just like the stools can own lands. However, it must not be lost that in most part of the Eastern Region including Kwahu just like the Ashanti Region of Ghana their lands are all stool lands, thus allodial title in those lands are vested in the paramount stools in those areas. See pg. 8 of Justice Dennis Adjei‟s Book, The Land Law Practice and Conveyancing in Ghana [2nd ed]. If the plaintiffs are alleging that they have a family land which is not attained as a usufruct from a stool land but acquired through conquest or by settlement, the onus is on the said family to prove. I say so because even though the 3rd defendant filed a defence and so called counterclaim [even though his defence has no counterclaim] he did not testify, and so the onus is on the plaintiffs who are alleging that their family owns a family allodial title to prove that. It should also be noted that, the 1st defendant also filed a counterclaim asserting that the land is a stool land, therefore he also has to demonstrate why he asserts that the land in contention is a stool land. As earlier stated, the 1st Plaintiff was quick to testify that, his family acquired their land through settlement and conquest. However, when a question was posed to the 31 1st plaintiff as which group of people the family conquered this is what transpired; see pg. 21 of the proceedings: Q] By stating that your ancestors or family acquired land by conquest can you tell the court which group of people you conquered? A] I do not know. Besides, both witnesses called by plaintiffs told the court that even though they can sell their family land, they have no capacity to sign any documentation to that effect. On the part of the defendants, the 1st defendant testified that their family has been in possession of a large tract of land and they trace their root of title to a gift made to their great grandmother one Akua Obaa. He continued that, 5 to 6 generations have kept the said land. To consolidate his title, he approached the chief of Obo and his elders to take a lease of a portion exhibited by YB3 the lease herein. According to him, the chief is the only one who has capacity to lease out stool lands in Obo. As noted in the submission of counsel for the 1st defendant, as part of the requirement for the grant and registration of the lease on the stool land, 1st defendant sought the consent and concurrence of the chairman of the Regional Lands Commission as required for the registration of the lease document. In the case of the 1st defendant, this concurrence was duly granted with certificate no. *KD36/207/19. Counsel emphasized that the preceding requirement will not be needed if the land is not a stool land. With the endorsement and registration of Exhibit YB3 by the Lands Commission, it is my take that the omnia praesumuntur rite esse acta applies here as stated in Section 37 of the Evidence Act NRCD 323. It is presumed that, official duty has been regularly performed. On usufractuary ownership, the correct opinion is that, the owner of a usufructuary title can alienate his said title without the prior consent and concurrence of the absolute owner so long as the alienation carries with it, an obligation upon the 32 transfer to recognize the title of the absolute owner, and to perform all the customary services due from the subject to the stool, or to the community at large when called upon. See Awulae Attibrukusu III V. Oppong Kofi & Ors. [2011] 1 SCGLR 176. It is necessary to pose the question, what is the resultant position if alienation is made not by the owner of the determinable title but by the holder of paramount title? On this, Ollennu provides a self - evident answer. He states that: "Having regard to the very superior nature of the usufructuary title , customary law prohibits the absolute owner from alienating that land , or dealing with it in any way without the prior consent of the subject - owner. Any grant which the stool (or the head of family) purports to make, either to a subject or to a stranger, cannot affect the title of a subject in possession. The purchaser upon such alienation cannot obtain possession, and he and his grantors commit trespass if they enter upon the land for the purpose, or in pursuance, of the alleged grant." See; Subunor Agorvor V. J.K Kwao & Aaron Narh Achia [2019] DLS C6259. Therefore aside the mere assertion that the plaintiffs‟ allodial family title was attained through Conquest and Settlement as canvassed by the plaintiffs, same was not proved and remains mere assertion. see Majolarbi vrs. Larbi [supra] where proof was defined. However, the evidence has it that the plaintiffs‟ family are in possession of lands in Kwahu area which has not been disputed. As to whether the land owned by the plaintiffs‟ family is by an Allodial ownership has not been proved as of now. Again, since the 3rd defendant did not counterclaim in law, it is incumbent on the plaintiffs and the 1st defendant to proffer evidence in relation to this issue to prove their various assertions. On the part of the Plaintiffs, what is proffered which has been denied by the 1st defendant put his family‟s land being allodial or attained through conquest and settlement still hanging and remained unproven. See Akuffo –Addo v. Catheline & Another [1992] 1 GLR 37 33 As to whether the land in possession of the family of the plaintiffs extends to the land in dispute that has been encroached upon, will be discussed in the next issue. On the part of the 1st defendant who testified, he made it known to the court that his family is in possession of lands in Obo through gift made to his ancestors many years ago by the Obo Stool. He said he hails from Bepong and not being an Indigene of Obo with the chief‟s consent, a portion of land has been leased out to him, as all the lands in Obo are stool lands. He was able to establish this assertion through exhibit YB3 and through admission from the Plaintiffs that his predecessor Attaku indeed has land sharing boundaries with the plaintiffs at the area in dispute and that indeed his great grandmother was an Ohenyere at Obo Kwahu. May I reiterate as noted earlier in Justice Dennis Adjei‟s book, almost all lands in the Eastern Region except a few are all Stool lands and it is trite that Kwahu lands have always been recognized as stool lands with families holding usufractuary title or titles. Unless it is proved beyond a balance of probabilities that a particular family holds an allodial Family title to lands in Obo, which Plaintiffs have been unable to prove, I hold that Obo lands are all stool lands with families holding usufructuary interest which can be alienated within the Lands Act, Act 1036] ISSUE ‘C’ Whether the plaintiffs’ family land has been encroached upon by the defendants, and that title to the said encroached land be declared to plaintiffs as part of their Family land instead of the 1st defendant. Having decided the two main issues, another contentious issue to be decided is as to whether the Plaintiffs have or the 1st Defendant has been able to establish that any person has trespassed on the land as described in the plaintiffs Statement of Claim or the 1st Defendant‟s Counterclaim. It is settled and trite law that, a person claiming title to land has to prove: 34 [a] his root of title [b] Mode of Acquisition and [c] Various acts of possession exercised over the disputed land See; • Yehans International Ltd V Martey Tsuru Family and Another [2018] Civil Suit No. J4/34/2018 dated 24TH Oct. 2018 Adinyira JSC. • Fosua & Adu-Poku V. Dufie [2009] SCGLR 310. It is also the law that to successfully maintain an action for declaration of title to land, the plaintiff must prove with certainty the identity or the boundaries or limit of the land he is claiming. See the case of Nyikplorkpo v. Agbedotor [1987-88] 1 GLR65 at pg. 171, Awuku v. Tetteh [2011]1 SCGLR 366. May I reiterate that, 1st plaintiff testifying for himself and the other plaintiff traced their root of title through settlement and conquest. According to him, several members of their family have been cultivating the land for over a century. In Cross examination, he also traced their root of title to one Ohemaa Abena Korang who was his grandmother. It is his case that 1st defendant has trespassed unto their land. To buttress their case the plaintiff called PW1, Efua Tanoah who disclosed to the court that indeed the 1st defendant has trespassed unto their family land which led to an Arbitration. Conversely, it has been decided by this court that there was no valid customary Arbitration with an award published in favour of any of the parties. Therefore, there is the need for this court to check if there are other evidence existing on record that will assist the case of the plaintiffs. It is the further case of 1st Plaintiff that among those they share boundary include One Opanin Attaku. PW1 also confirmed that one Yaa Obiyaa , Akosua Ntoniwaah and Ama Aburi are from one womb and that they all cultivated the disputed land 35 ,ironically she also said, they do not share Boundary with Ohema Abena Korang her mother. She further indicated that, she does not know the size of her family land but knows the boundaries. To further prove her claim, Plaintiffs also called PW2 who claims to be an adjoining land owner to the land in dispute and has been close to the land since 1970s. PW2 claims he is the one who alerted PW1 of the trespass. PW2 who was a witness for PW1 during the arbitration also insisted that, the 1st defendant does not know his boundary, but also admitted that the plaintiffs share boundaries with the Opanin Attaku a relation of the 1st defendant. When PW2 was asked whether he knows the size of Attaku‟s land he answered in the negative. PW2 admitted that there is Ntome along the borders of the land in dispute but paradoxically PW1 disclosed that the said Ntome is on her land. The 1st Defendant also filed a counterclaim for a declaration of title and so, there is the need for him to prove his counterclaim just like the plaintiffs. On the side of the 1st defendant, he traced his root of title to the late Oheneyere Akua Obaa who was gifted the land many many years ago. He further traced his root of title to members of his family who cultivated the land these are; Akosua Ntoniwaa, Opanin Ataaku, Yaa obiyaa and others. According to the 1st defendant, in the bid to protect his title, he went to the chief to take a lease on a portion that he is developing see Exhibit YB3. 1st Defendant and his witnesses just like PW1 do not know the size of their entire family land. However, 1st defendant indicated that he knows the boundaries of the land which he claims has Ntome as a boundary feature line separating his land from the plaintiffs land which he refers to as Ohemaa Korang‟s land. He also stated that this ntome boundary line has been partially cut down by PW1 herein. The court witness tendered Exhibit CE1 - the composite site plan and the accompanying notes. The area hatched red is the area in dispute. He was cross examined by both lawyers and the court. 36 A look at some questions and answers between the court and the surveyor which was also raised in the submissions all sides will be of interest: Q] What was the outcome of the superimposition? A] There was a common area claimed by both parties both on site plan and on ground Q] Has that common area been cultivated? A] Yes it was cultivated with teak trees and some Acheampong herbs. Q] Which side claim to have cultivated those trees? A] Both parties. Q] The side hatched red, which of the site plan do you find this? A] It falls entirely within the plan of the plaintiff and partially within the plan of the defendant. The common area shown on ground is directly on the limit of the plaintiff claim bound to the East which also cedes to the rest of the defendants claim. From the above, there is no doubt that part of either party‟s land falls into that of the other somehow within the area hatched red, depending on the size of the various site plans superimposed. All said and done, the area in dispute was identified by the surveyor. Reading the drawings, each party is claiming a portion of another‟s alleged land as his own. According to the surveyor, each party claimed the cultivated area as their own. I have detected that, the site plan of the plaintiffs used by the surveyor bears the name Opanin Kwame Adjei‟s family land. There is no evidence on record that the site plan was tendered at the trial. One turn to wonder how Opanin Kwame Adjei relates this case. That notwithstanding, the Defendants did not object to same when same was remitted to the surveyor to undertake the survey work and so per the ratio in Edward Nassar Case [supra], this court will still consider the Report of the surveyor and the site plan for what they are worth. In fact, the boundaries as claimed by the plaintiffs are what is seen on the said site plan used for the exercise. 37 On the part of the 1st defendant, his site plan tendered as part of Exhibit YB3 was the one used by the Surveyor‟s in his work. The law is that; a court is not bound by the evidence or opinion given by an expert such as a surveyor. However, it is equally the law that, a court should give good reasons why an expert evidence or opinion is to be rejected. See: • Tetteh & Anor V. Hayford (2012) 1 SCGLR 417. • Sasu V. White Cross Insurance Co. Ltd (1960) GLR 4 CA. The court has also identified from both site plans of the Plaintiffs in the name of Kwame Adjei, and from the 1st defendant site plan as well as the Composite Plan CE1 that, the plaintiffs or the late Ohemaa Abena Korang land indeed shares boundary with the family land of the 1st defendants family believed to have been cultivated by the late Opanin Attaku and other relations of the 1st defendant such as Akosua Ntoniwaa, Ama Aburi and Yaa Obiyaa. In fact, from the cross examination of PW1, she admitted that relations of the 1st defendant cultivated the disputed land. See the proceedings below: Q. Do you know one Ohemaa Abena Korang (deceased)? A. Yes. She was my mother. Q. What about Yaa Obiyaa? A. Yes. Q. Do you know Akosua Ntoniwaa? A. Yes. Q. Do you know Ama Abuni? A. Yes. 38 Q. Are you aware that these three among others farmed on the disputed land for years? A. Yes. See pg. 12 of the proceedings. Moreover, 1st plaintiff and his witnesses also attested that between their land and Opanin Attaku they share boundaries. However when PW1 was quizzed as to the Ntome that separates their land from the 1st defendant family land this is what transpired at pg. 13 of the proceedings: Q] Are you aware that we have ntome demarcating the land over there? A] It is on our land that the ntome has been used as boundaries. Q] Are you aware that between Ohemaa Abena Korang‟s land and part of the first Defendant‟s land these Ntome have been destroyed cut and burnt whilst the other parts are still there? A. The first Defendant has no land there. When the PW2, who claims to be an adjoining land owner had the chance to speak in cross examination, he was emphatic that there is Ntome separating the borders of the land in dispute, see pg. 27. He is however not aware that the Ntome has been destroyed. Q] Do you have Ntome trees along the borders of the land in issue? A] Yes. Q] Do you also Notice that at one front the Ntome had been deliberately cut down and destroyed? A] No. I did not see that. Now it has been established that at least plaintiffs family shares boundary with the family land of 1st defendant. This is contrary to the later assertion by PW2 that the PW1 shares boundary with the Akwaa family as he wants the court to believe. See the following cross examination at pg. 26: 39 Q] Can you mention some of the Boundary owners? A ] All that I know is that the Akwaa family land shares boundary with Efua Obi[ that is the PW1]. It is startling that PW2 who disclosed that there is Ntome separating the land in dispute now says that plaintiffs‟ land share boundaries with PW1‟s land. This will be contrary to the evidence of the 1st plaintiff who testified that they share boundaries with Attaku among others. PW2 also asserts that Attaku‟s land shares boundaries with the plaintiffs land. See pg. 25 of the proceedings below. Q] Do you agree that Attaku farmed on the land in issue whilst he was alive? A] No. It is not so, he shares boundary with the land in dispute. My take is that if indeed, the ntome that was planted separates other members of the plaintiff‟s family from the land of PW1, that person should have been called to testify instead of PW2. Besides PW1 was evasive when she was asked questions on the destruction of Ntome. If the Ntome on the land serves as a boundary on the borders of her land and that of another person‟s land then why should it be cut down even though same has been denied?. As for PW2 I do not see him as a credible witness .At one point he said the land in dispute shares boundaries with the Akwaa family [see pg. 25 and 26] at another point he said it shares boundary with Opanin Attaku whom the 1st defendant derives title from. With the above, I am not convinced that the plaintiffs as claimants for a declaration of title to land have been able to lead sufficient evidence as to title of the disputed land and again as to the identity and limits of the land claimed by them. See Jass Co. Ltd V. Appau [2009] SCGLR 265. On the part of the 1st defendant, he filed a counterclaim and so he equally bears the burden to prove title. He traced his root of title to a gift made several generations 40 ago to his Great grandmother Oheneyere Akua Obaa. This traditional family history can only be established through evidence in the light of recent acts. See Kusi & Kusi vrs. Bonsu [2010] SCGLR 60 at 73 Wood. This, the 1st defendant did by establishing his case through more recent generations who have ever cultivated the land in dispute. These are Opanin Attaku and others like Akosua Ntoniwaa, Yaa Obiyaa Aburi and the mother of the 1st defendant and Dw1, One Mary Boansi. It is not in dispute that Opanin Attaku‟s land shares boundaries with the 1st Plaintiff. Besides, PW1 admitted that the 3 women Ntoniwaa, Obiyaa and Aburi cultivated the disputed land only for her to deny later that they do not share boundaries with her late mother. However, per the evidence, these women cultivated the same land of Opanin Attaku. At least, it is not in dispute that the Late Oheneyere Akua Obaa who hails from Bepong indeed married a chief of Obo in his lifetime, the traditional history of gift surrounding the land claimed by 1st defendant was established by the cultivation of the land by more recent genealogy of relations of the 1st defendant mentioned above who cultivated the land including DW1 and her mother Mary Boansi which has not been denied save the claim that the land is not the one in dispute. 1st defendant who is not an indigene of Obo but Bepong took steps to take a lease exhibited by YB3 with precise site plan to further protect his title. Having concluded that the entire dispute borders on boundary, l am satisfied that the Ntome in issue is the boundary line of the 1st defendant family land. It should be noted that, 1st defendant‟s caretaker, the 2nd defendant was the one in possession cultivating the land before the alleged trespass. The above notwithstanding, I have no reason to doubt the documentary Evidence Exhibit YB3 and its contents. Given the high evidential potency of documentary evidence in the eyes of the law, this court ought to give cogent reasons for doubting the veracity of exhibit YB3 being a lease granted to the 1st defendant by the Obo Kwahu stool and its elders. See the 41 case of Fosua & AduPoku v. Dufie [Deceased] & Adu-Poku-Mensah [2009] SCGLR 310 at 317-318 & 345. I am highly persuaded that, the above suit is a purely boundary dispute. Amidst the confusion, it was established by PW2 that there was Ntome clearly demarcating the disputed land. “The law is that where the evidence of a party on a point is corroborated by the witnesses of his opponent whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good and apparent reason the court finds the corroborated version incredible, impossible or unacceptable‟‟. See, Griffith Sowah Osekre & Regsma Vrs. Abdul Latif Karoum & Eric Osei Kwaku [2020] Unreported Court of Appeal Suit No. H1/65/2015. It is also trite that, customarily among the Akans, Ntome is used to demarcate boundaries. PW1‟s evasive answer to the tampering with the Ntome leaves much to be desired. I am unable to declare title of the disputed land to the plaintiffs herein. I am however convinced that the 1st defendant herein, has been able to prove his counterclaim. I therefore declare title of the disputed land of 11.31 acres as in Exhibit YB3 to the 1st defendant herein. It should be noted that, the 3rd defendant in principle did not counterclaim even though the title of his Defence is „Defence and counterclaim‟. The second defendant is a caretaker of the 1st defendant. The law is that, a party who does not counterclaim for a declaration of title has no burden upon him to establish anything but to raise doubt even though the burden of proof is not static. See Asante-Appiah V. Amponsah alias Mansah [2009] SCGLR 90. 42 On the issue of General and Special damages claimed by the plaintiffs in this case, as a result of the determination of the 2nd and 3rd issues against the plaintiffs herein, same become moot. For the avoidance of doubt, I hereby declare that the 1st defendant has not trespassed unto the family land of the Plaintiffs‟. Hence, the plaintiffs‟ family is not entitled to both general and special Damages. The court hereby settles all the issues raised in favour of the 1st defendant save issue one which was settled against all parties. The implication is that, reliefs a, b, c, d, e, and g of the plaintiffs’ claim are dismissed as against the Defendants. The 1St defendant reliefs a, b, c and d of his counterclaim are hereby upheld. Cost of GH¢12,000.00 against the plaintiffs in favour of the defendants herein. (SGD.) JUSTICE CYNTHIA MARTINSON (MRS) HIGH COURT JUDGE