BAWA & ANOTHER VRS DAMBA & 4 OTHERS (NR/TL/HC/E1/4/17) [2024] GHAHC 334 (22 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE TAMALE, NORTHERN REGION Suit No: NR/TL/HC/E1/4/17 Delivered on 22nd July 2024 1. NANTON NAA BABA MAHAMADU BAWA 2. JANJORI-KUKUO NAA, MOHAMMED-YAKUBU V 1. ABDUL-RAZAK DAMBA 2. IDDRISU WALDOO 3. IDDRISU ABUBAKARI 4. ALIDU SULEMANA 5. GULKPEGU NAA ALHASSAN ABDULAI COUNSEL IAN AKANTUE ADAGWINE BEING LED BY SHEIKH-ARIF ABDULLAH FOR PLAINTIFFS RASHID MUHAMMAD MUMUNI FOR DEFENDANTS CORAM SIR JUSTICE ERIC ANSAH ANKOMAH JUDGMENT 1.0. INTRODUCTION 1.1. This case has a checked history and it is appropriate that I set out in detail the state of affairs leading to this judgment. The 2nd plaintiff and the then Regent of Nanton on 8th February 2017, instituted action against the 1st , 2nd, 3rd and 4th 1 defendants and one other person who is deceased for declaration of title to the land in dispute. The 1st plaintiff at the time of the institution of the action was not the paramount chief of Nanton. The 2ndplaintiff is the Chief of Janjori- Kukuo which is a sub-skin under the paramountcy of Nanton Traditional Area. The then defendants were described as farmers and natives of Kogni Community in the Savelugu-Nanton municipality. 1.2. Before evidence could be taken, the Regent of Nanton lost his title as Regent when the 1st plaintiff herein was enskinned as the paramount chief of Nanton. The Regent’s name was struck out from the writ of summons by the court on the application of counsel for the plaintiffs on 16th July 2019. The matter continued with the 2nd plaintiff as the sole plaintiff after the court granted leave to the plaintiff to amend the writ of summons. The defendants were granted leave to also amend their statement of defence if they so wish upon being served with the amended writ of summons and the other processes. The 2nd plaintiff herein filed the amended writ of summons on 19/07/2019 making him the only plaintiff to the action. 1.3. On 24/10/2019 the court conducted case management conference and hearing of the case started on 4th December 2019. The 2nd plaintiff as the sole plaintiff then testified through his lawful attorney. The attorney was cross-examined thereafter. The attorney tendered some documents but the trial judge rejected some of the documents. 1.4. In the course of the hearing of the case, the 1st plaintiff herein who had then been enskinned as the Nanton Naa applied to be joined to the suit and the court granted the application and ordered that Nanton Naa Mahamadu Bawa be 2 joined as 1st plaintiff and Janjori Kukuo Naa Mohammed Yakubu be referred to as 2nd plaintiff. The plaintiffs filed amended writ of summons pursuant to leave of court on 4th March 2020 with the statement of claim of the 1st plaintiff filed by a different lawyer. The then defendants filed amended statement of defence and counterclaim on 25th March 2020 without raising the anomalies on the amended writ of summons and statement of claim. Hearing of the case continued by the court differently constituted. 1.5. The 5th defendant (Gulkpe Naa Alhassan Abdulai) on 2/3/2023, applied to be joined to the suit as a defendant and the application was granted on 16th March 2023. The amended writ of summons was subsequently amended on 22nd March 2023 to correct all the anomalies pointed out to the parties by the court and also to include the 5th defendant as a party in the case. The plaintiffs complied with the order of the court and duly serve the amended writ of summons on the defendants. The defendants filed amended statement of defence and a counterclaim on 5th April 2023 which shall be set out in the course of this judgment. The plaintiff reply to the amended statement of defence was filed on 3rd May 2023 and on 23/5/2023 the plaintiff filed application for directions. The case was set down for trial to continue after the court adopted the proceedings. 2.0. RELIEFS BEING SOUGHT 2.1. From this history the last amended writ of summons filed on 22nd March 2023, is what is before this court for determination as well as the counterclaim of the defendants. 3 The plaintiff is seeking for the following reliefs; 1. A declaration of title to the 1st plaintiff of all that parcel of land lying and situate in Janjori-Kukuo in the Savelugu-Nanton Municipality of the Northern region bounded to the North by land belonging to the Chief of Savelugu (Yoo Naa); to the South by Nanton Skin land; to the West by the Tamale-Bolgatanga Road and to East by Nanton Skin land. 2. A declaration that the 2nd plaintiff is the proper person to manage, divest and grant Janjori-Kukuo lands to any person for and on behalf of the Nanton Paramount Skin land. 3. An order for recovery of possession to the plaintiffs of the said lands described under relief 1 supra. 4. An order directed to the defendants to demolish and remove all the buildings and structures constructed by them on the land and carry all debris thereafter or else the plaintiff be at liberty to demolish, remove the said buildings and carry away the debris therein and the cost of demolition, removal and carting away be surcharged on the defendants. 5. An order of perpetual injunction restraining the defendants, their agents, assigns, workmen, customary successors, privies and any person claiming through them from interfering with plaintiffs’ possession, occupation and use of the disputed land. 4 6. General damages for trespass to the said land. 7. Costs. 2.2. The defendants counter-claimed in the amended statement of defence against the plaintiffs for the following reliefs: a) A declaration that the parcel of land described as situate and bounded to the East by the Wayaayo hill, to the West by Kogni Block “C” Residential Area, to the North by the Yilonayili planning scheme and to the South by Janjuri Kukuo falls within the Territory of the 5th defendant and the Kogandana is the rightful allocator of same. b) An order of perpetual injunction restraining plaintiffs, their agents, assigns, workmen, customary successors, privies and any persons claiming through them from interfering with defendants possession, occupation and use of the disputed plots. c) Damages for trespass. 3.0. BURDEN OF PROOF 3.1. In a claim for title to land, the plaintiff bears the burden of proof to produce sufficient evidence on preponderance of probabilities in order to succeed but where the defendants also counterclaim for title, the same standard of 5 proof on the plaintiff would be used on the defendants counterclaim as well. See the case of; JASS CO LTD & ANOR v. APPAU & ANOR [2009] SCGLR 265 at 270-271 The Supreme Court stated the law as follows; We wish to observe that the burden of proof is always on the plaintiff to satisfy the court on the balance of probabilities in cases like this. Thus, where in a situation, the defendant has not counterclaimed; and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claim would be dismissed. See Odarmetey v Clocuh [1989-90] 1 GLR 15 holding 1...[Page 271].Thus, whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as was used to evaluate and assess the case of the plaintiff against the defendant. In the instant appeal, the defendants counterclaimed and that meant that they also assumed the position of plaintiff in respect of their counterclaim. Having thus dismissed the claim of the plaintiffs, the learned trial judge, rightly, in our view, proceeded to evaluate the case of the defendants in respect of their counterclaim, using the time tested principles as to burden of proof enunciated in Majolagbe v Larbi [1959] 1GLR 190 at 191. See also OSEI v. KORANG [2013] 58 GMJ 1 at 22-23 & 32 where the Supreme Court held; “Where in an action, the parties claim and counterclaim for declaration of title to the same piece of land, each party bears the onus of proof as to which side has a better claim of title against his/her adversary, for a counter claimant is as good as a plaintiff in respect of a property which should he 6 assays to make his/ her own. In this wise, it might be useful to state that the approach adopted and approved for resolving disputes as to title of land has been stated repeatedly in several judicial dicta in our Reports and I wish to cite only one for example, namely: Yorkwa v Duah [1982-83] GBR 278 CA, at p. 281, where the learned Brobbey JA, (as he then was) stated: “Firstly, this is a land case and therefore the plaintiff/ respondent must succeed on the strength of her own case… then there was the case of Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-988] 2 GLR 314 in which Adade JSC stated that a person who comes to court, no matter what the claim is, must be able to make a good case for the court to Chapter 7 | Land law and conveyancing 155 consider, otherwise he must fail…..Lastly, in Odametey v Clocuh [1989- 90] 1 GLR 14, it was held that if the plaintiff totally failed to make out a case for title to land, he could not rely on the weakness in the defence.”… [Page 23] A party in an action bears a standard of proof which is the degree which the party must discharge the burden of persuasion on him defined in Section 10 (1) of the Evidence Act, 1975, NRCD 323, as: “(1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. Section 12 (1) of the Act provided generally as follows” [page 24] “(1) except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities”. 3.2. I will therefore proceed to assess the plaintiff case on its merits per the standard of proof as required under sections 11, 12 and 14 of the Evidence 7 Act 1975 (NRCD 323) and evaluate the defendants counterclaim per the same standard of proof before making a final pronouncement on the case. 4.0. SUMMARY OF THE PLAINTIFFS CASE 4.1. The plaintiffs case is that, all that parcel of land lying and situate in Janjori- Kukuo in the Savelugu-Nanton Municipality of the Northern region bounded to the North by land belonging to the Chief of Savelugu (Yoo Naa); to the South by Nanton Skin land; to the West by the Tamale- Bolgatanga Road and to East by Nanton Skin land is the property of the Nanton skin and the 2nd plaintiff as a sub-stool has the authority of the 1st plaintiff to administer and manage the said land for and on behalf of the 1st plaintiff. 4.2. The plaintiffs’ aver that, there was a path where Tamale to Bolgatanga trunk road has been constructed and the path used to be the boundary between the Gulkpegu skin and the Nanton skin. With the construction of the trunk road through the path the road now serves as the boundary between the said two paramount skins. It is the plaintiffs case that where Yilonayili, Kogni, Nyesie and Damakoyili communities are presently situate belongs to the Nanton skin because these communities were resettled there when they were moved from where the Tamale International Airport is situate to enable the government construct the Tamale Airport in 1964. 4.3. That the people of Kogni owe allegiance to the Gulkpegu skin and it was at the request of the Gulpkegu Naa to the Nanton Naa that the people of Kogni who were affected by the Airport Development were resettled at 8 portion of Janjori-Kukuo land as licensees. According to the plaintiffs, the defendants were not allowed to build houses beyond the high tension pole. That in the 1990s some of the inhabitants of Kogni begun encroachment on the land in dispute without authority from the plaintiffs. The plaintiffs say that, the defendants since 2016 have been the worst offenders of the encroachers and are building houses on portions of the disputed land. 4.4. The plaintiffs’ case is that all attempts to resolve the matter amicably have been met with threats of physical violence and death. That the Gulkpegu skin abandoned its claim to the land in dispute in 1999 after Ya-Na declared the land in dispute in favour of the 1st plaintiff. Thus the defendants are statute barred in contesting the ownership of the land in dispute. The plaintiffs say that, in 2001 the Ya-Na through the Dagbon Traditional Council instructed the various land agencies to demarcate the disputed lands in favour of the 1st plaintiff. 5.0. SUMMARY OF DEFENDANTS CASE 5.1. The defendants vehemently denied the 1st plaintiff skin ownership of the land in dispute and added that the area in dispute falls under the territory of the Gulkpegu Skin (5th Defendant) and it is the Kugandana a sub chief of the 5th defendant who makes allocation of land within Kogni area and such allocations are confirmed by the 5th defendant. 5.2. The defendants denied that the then footpath and the current Tamale to Bolgatanga trunk road was/is the boundary between the 1st plaintiff and the 5th defendant. The defendants’ case is that, Kogni community was formerly 9 at the current location of Bawa Barracks and in 1964, the inhabitants were moved across the street to the land in the territory of the 5th defendant and they built the new Kogni settlement there. 5.3. The defendants deny that the land on which the people of Kogni are currently staying on was licensed to them by the Nanton skin. They assert that no Nanton Naa has ever exercised act of authority over the land in dispute. That the 1st to 4th defendants have since exercised acts of ownership and have been in undisturbed possession since the land was allocated to them until they were served with the writ of summons. 5.4. The defendants denied paragraphs 20, 21 and 22 of the amended statement of claim and added that the Ya-Na Yakubu Andani II and the Kampakuya do not have the power to make such directives. The defendants however admit that Ya-Na Yakubu Andani formed a committee to look at the boundary between the Nanton Naa and the Gulkpegu Naa but to them, the committee never completed its work. Further the purported directives from the Ya-Na cannot be binding on them. 5.5. The defendants case is that they have been in long and undisturbed possession of the land in dispute since their occupation from 1964 until 1996 that the plaintiffs started laying claim to their land. It is the defendants’ case that the disputed land falls under the Gulkpegu skin and not the Nanton skin. 6.0. IDENTITY OF LAND IN DISPUTE 10 6.1. The position of the law is that where the parties are ad idem on the identity of the land in dispute no issues are joined and as such the plaintiff is relieved to further prove the identity of the land in dispute. See the case of Tafali v Yakubu (J4/32/2013) [2014] GHSC 122 (15 January 2014) where the Supreme Court quoted with approval the ratio in the case of In Re Ashalley Botwe Lands [2003-2004] SCGLR 420. This is what the Apex Court said: “It is trite learning that issues set down for trial are determined by the pleadings of the parties to the dispute. In the instant case, the defendant never challenged the plaintiff’s description of the disputed land endorsed on his writ and statement of claim, hence, the trial courts failure to add the identity of the land as part of the issues set for trial. In Re Ashalley Botwe Lands [2003-2004] SCGLR 420, the Supreme Court in holding 4 held as follows: ‘Although the general principle that a claim for declaration of title or an order for injunction should always fail if the plaintiff failed to establish positively the identity of the land claimed with the land in dispute was sound law, its application was not mandatory where the identity or boundaries of the land claimed was undisputed. Where the identity or the boundaries of the land in dispute as pleaded by the plaintiff was admitted or not denied by the defendant, the applicable principle was that since no issue had been joined, no evidence needed to be led on the identity of the land. In the instant case, however, even though the defendants failed to specifically deny the detailed description of the land as pleaded by the plaintiffs in the statement of claim and therefore the plaintiffs were not enjoined to prove the identity of the land, yet on the evidence they succeeded in discharging that burden through their statutory declaration, exhibit A, which contained a 11 detailed description of the land with full bearings and distances and with an attached plan. Since not a single issue was raised under cross- examination of the first plaintiff witness with regard to the exhibit and its contents, the rule of implied admission for failure to deny by cross- examination would be applicable. Accordingly, the plaintiffs were not bound to produce other witnesses on the same issue of the identification. Accordingly, the Court of Appeal was wrong in its conclusion that the plaintiffs had failed to prove the identity of the land in dispute. Fori v Ayirebi [1966] GLR 627, SC and Mantey v Botwe [1989-90] 1 GLR 479, SC applied’. The failure of the respondent in this case to challenge the appellant’s description of the land in his statement of defence on the strength of In Re Ashalley Botwe Lands was fatal.” 6.2. From the plaintiff writ of summons and the defendants counterclaim and upon hearing the parties in court, it appears that the parties’ description of the land in dispute was not properly represented in their pleadings. What is certain from the pleadings is that the land in dispute covers the following villages; Damankonyili, Nyeshie, Kogni, Yilonayili, Dimakal and Ba’inga Gbuni and parts of Janjori-Kukuo. These communities spread on the right hand side of the Tamale to Bolgatanga road starting from Dungu community. 6.3. The parties filed survey instructions and the survey report and map of the area in dispute from the Lands Commission was tendered in evidence and marked as exhibits CW7 and CW 8 respectively. The parties did not challenge the map of the area in dispute through cross-examination. The 12 said exhibit CW8 clearly shows the land in dispute as covering the communities mentioned supra. Thus the description of the land in dispute by the plaintiff covers these villages as mentioned supra. On the part of the defendants, the description dealt with boundary features but on exhibit CW 8 the identity of the land as shown to the surveyor by the defendants involves these communities mentioned supra as well. 6.4. From the base map (CW8), there seem to be no controversy as to the identity of the land in dispute since the area shown by the parties as to the extent of their land are virtually the same with that of the plaintiffs a little bigger than that of the defendants but not very significant in the determination of this matter. The land in dispute abut the Tamale to Bolgatanga main road from Dungu to Yilonayile village as the last village within the disputed area along the Tamale – Bolgatanga road. In fact the land in dispute covers all the villages that were resettled at the area in dispute in 1964 namely; Damankonyili, Nyeshie, Kogni, and Yilonayili. The defendants’ description of the land in dispute on exhibit CW8 covers portion of Janjori- Kukuo community. 6.5. From exhibit CW 8 the land in dispute covers approximate area of 3, 972.02 acres or 1, 607.5 hectors. The size of the land in dispute as represented on exhibit CW 8 was not challenged by the parties. I must state that exhibits CW 7 and CW8 are expert evidence which ordinarily have no binding effect on the court. The position of the law when it comes to expert evidence is that, it is of persuasive effect and the court is not bound by expert opinion. However in rejecting same, the court must assign reasons for its rejection. See; Tetteh v. Hayford [2012] 1 SCGLR 417 at 423-424 DOTSE JSC @ 423. 13 It is generally understood that a court is not bound by the evidence given by an expert such as the surveyor, in this case; see case of Sasu v White Cross Insurance Co. Chapter 5 | Law of evidence 95 Ltd [1960] GLR 4 and Darbah v Ampah [1989-90] 1 GLR 598 at 606, CA where Wuaku JA (as he then was), speaking for the court, also reiterated the point that a trial judge need not accept evidence given by an expert. But the law is equally clear that a trial court must give good reasons why expert evidence is to be rejected. We believe that the court should have compelled the surveyor to give an opinion on the survey plan, exhibit 2 which he himself prepared. Secondly, what we have also deduced from this case is that, the failure by the parties to file survey instructions prevented the [page 424] surveyor from dealing with the issues germane to the case when he went onto the land. 6.6. In the instant case before, I have no reason to reject the expert evidence of CW 1 who tendered the survey report and the map drawn when the parties led him to the disputed land. In fact, none of the parties raised any challenge to the accuracy of the report and the drawings. I have also gone through exhibit CW7 and CW8 and I see it as well prepared and plotted which has clearly identified the land in dispute. I hereby adopt same as true reflection of the identity and extent of the land in dispute. Having determined the identity of the land in dispute, I will now proceed to set down the issues that were filed in the application for directions and adopted as issues for trial. 7.0. ISSUES SET DOWN FOR TRIAL 14 a. Whether or not the area in dispute falls under the jurisdiction of the 1st plaintiff. b. Whether or not the area in dispute falls under the jurisdiction of the 5th defendant. c. Whether or not Ya-Na’s directives are binding on the parties to the suit. d. Whether or not the plaintiffs are entitled to their reliefs. 8.0. UNCONTROVERTED FACTS 8.1. From the pleadings and the evidence led by the parties and their witnesses, the following facts are not in dispute and as such no issues were joined for the court to determine. a. The 1st plaintiff and 5th defendants are all paramount chiefs who owe allegiance to the Overlord of the Dagbon Traditional Area, the Ya-Na. b. The land in dispute falls under the Dagbon Traditional Area of which the Ya-Na is the allodial title holder. c. That the 2nd plaintiff is one of the sub-chiefs of the 1st plaintiff. d. That traditionally Kogni community owe allegiance to the 5th defendant. e. That until 1964, Damankonyili, Nyeshei, Kogni and Yilonnayili communities and their people were not staying or living on the land in dispute. They were settled there in 1964 when they were moved from their old settlement area to pave way for the construction of the Tamale Airport. 15 f. Where Damankonyili, Nyeshei, Kogni and Yilonayili communities were situate prior to their resettlement is on the left hand side of the road when travelling from Tamale to Bolgatanga. g. The land in dispute is on the right hand side when travelling from Tamale to Bolgatanga right after Dungu village. h. That the defendants through the Kogni chief petitioned the Ya Na to resolve the dispute between the parties on the land. i. That there is forest reserve at where Kogni Community is situate. 9.0. DETERMINATION OF THE MAIN ISSUE IN CONTROVERSY 9.1. In resolving this dispute, it is important for the court to have a careful look at one central issue a resolution of which may settle this case. After all in an actions the court is not bound to consider all issues if one or two of the issues can settle the entire matter. See Fatal v Wolley [2013-2014] 2SCGLR 1070 See also Vincentia Mensah v Numoo Adjei Kwanko II [2018] 117 GMJ 76 9.2. I will address issue c which I hereby rephrase as follows: Whether or not the then occupant of the Dagbon Skin Ya-Na Yakubu Andani II (dec) resolved the dispute as to the ownership of the land in dispute and if so whether the resolution is binding on the parties. 16 9.3. The plaintiffs evidence on this issue is captured in the revised witness statement filed by the 2nd plaintiff attorney on 19/07/2019 particularly paragraphs 23 to 28 and I hereby reproduce the said evidence-in-chief as well as the answers the plaintiff attorney gave in cross-examination. 23. My Lord, the ownership by the Nanton Naa of the land is known to well-meaning people in Dagbon including the Allodial owner of lands in Dabgon, the Ya-Naa. In 1999, the then Ya-Naa, Yakubu II wrote to the Town and Country Planning Department in Savelugu-Nanton with copies to other agencies clearly stipulating the boundaries of lands being held by the Nanton Naa. 24. The land in contention was the Janjori Kukuo lands. The said letter clearly indicated that the Gulkpe-Naa through whom the defendants are claiming title here have no land there. This letter is titled “Suspension of Janjori-Kukuo Layout” with Ref. No. DTC/41/SF.1/117 and dated 7/1/1999. I have attached same to my witness statement and wish to mark same as Exhibit NA8. 25. Therefore by the map, Kogni village has no lands of its own. 26. Following the death of Ya-Naa Yakubu II, this land boundary issue went before the then Kampakuya/Regent of Dagbon and he in a letter addressed to the then Regents of Gulkpegu and Savelugu and the Nanton Naa (1st plaintiff) Ref. No. GTC/REGT/VOL.2/5 of 28/4/2008 made reference to these correspondences of the Ya-Naa and urged the various chiefs to abide by the ruling of the Ya-Naa. This letter is attached as exhibit NA9. 17 27. My Lord, it is obvious therefore that the defendants are challenging the directives of the overlord, but the important thing to know is that they have no land. 9.4. On 2nd January 2020, counsel for the defendants admitted in cross- examination that Ya-Na made a decision concerning the land in dispute thereby putting to rest the issue that there was no resolution of the land in dispute by the Ya-Na in favour of the Nanton skin because the committee set up did not complete its work. Hear him. Q: You say that Ya-Na made a decision concerning this issue. A: Yes. Q: That decision by the Ya-Na is not legitimate and proper. A: It is legitimate and proper. Q: Why. A: Because he is the overlord of Dagbon. It was not only him who took the decision. It was the paramountcy of both the conflict communities i.e. Janjori Kukuo and Kogni. They came out with the findings or ruling and it was served on the paramountcy to that effect. 18 Q: The Ya-Na does not have the power to take one community’s land and give it to another community. A: The Ya-Na can do so by consulting those who are affected and come out with the final judgment. Q: The Committee you said the Ya-Na formed could not have settled the matter. A: They can settle it because the Gulkpegu Regent by then which the Kogni people owe allegiance to was a member of the Committee so there will be a serious consultation before the ruling of the late Ya-Na. Q: The said Committee never finished its work before the Ya-Na came with his pronouncement. A: It is not true. The Committee finished it work before the ruling and he served them with notice. Q: The Committee was prevented by rain when they tried to locate the traditional boundaries and they stopped their work. A: It is not true. 9.5. From these engagement there is no doubt that the land in dispute appeared before the Ya-Na for resolution and in hearing the parties, a committee was set up to look at the boundaries between the Nanton Skin and the Gulkpegu 19 skin. What is more on this issue is the admission made by the defendants at paragraph 13 of their statement of defence to the effect that, the Ya-Na Yakubu Andani II formed a committee to look into the matter but they claim the committee never completed its work because when they came to the area in dispute some parts of the traditional boundary was waterlog so they left with the promise to come back in the dry season. So for now there is corroborative evidence before this court that, the dispute on the land appeared before the late Ya-Na Yakubu Andani II for resolution and as part of the hearing of the matter he formed a committee which included the representatives of the Nanton Na (1st plaintiff) and the then Regent of Gulkpegu (5th defendant) to look at the boundary between the two paramount chiefs and report to him. The plaintiffs’ evidence is that the Regent of the Gulkpegu skin at that time was part of the committee. 9.6. Again, the defendants admit that the Committee that was formed included the representatives of the occupants of the two paramountcies who are claiming ownership of the land in dispute and as such there was a fair representation. There is evidence that the committee met at the area in dispute in looking at the boundary between the 1st and 5th defendants herein. Hear DW1 in his witness statement filed on 27th June 2019 and same adopted as his evidence-in-chief by this court on 15th November 2023. “7. We remained undisturbed at our present settlement until 1994/95 when the people of Janjuri Kukuo, a nearby village in the territory of the plaintiff to whom the inhabitants owe allegiance came claiming our land. This move was resisted by the people of Kogni and this resulted in 20 some disturbances. The matter was reported to the then Yaa Naa Yakubu Andani II. 8. At the Yaa Naa’s palace, Yaa Naa decided to set up a committee to look into the matter to determine the real traditional boundaries as they were. 9. The committee came and I, together with Zogyuri naa Tia, the Wayamba Kukuo Naa, the Nyeshie Kukuo Naa, Afa Salifu of Kogni and Yilo Botin Naa went with them to inspect the boundaries. They drew the boundary from Gbanyamli all the way to Saakpaligu through a place called “Naa tuhi ma shee. From here, the team could not proceed as the land in that area had become marshy and inaccessible due to the rainy season. 10. The team told us that they had to suspend the exercise and that when the dry season sets in and the area becomes accessible, they will come back and continue past the villages of Kogni, Yilonaayili, Yilshee and Janjuri Kukuo. 11. The dry season had not set in when we were called to Yendi. They gave letters to Gulkpe Naa, Naton Naa and Savelugu Naa and told them not to open them until they got home. When we went home and the letters were read, we were informed that the committee had decided on the matter. 21 9.7. From this piece of evidence, the defendants have admitted that the land in dispute appeared before the Ya Na Yakubu Andani II the allodial title holder of Dagbon lands including the land in dispute. In resolving the matter the Ya Na Yakubu Andani II appointed a committee to go unto the land in dispute for locus inspection with the representatives of the feuding parties. The committee had members from the 1st defendant skin and the 5th defendant skin. From the evidence of DW1, the committee in fact visited the locus in quo and inspected the boundaries of the land in dispute but could not finish the inspection because the place was waterlog. The plaintiffs’ case is that the committee completed its work. 9.8. Having admitted that the Committee was appointed and indeed moved to the land in dispute and inspected some of the boundaries the only outstanding issue on the Committees work is whether the committee finished its work or not before it presented its report to the Ya Na Yakubu Andani II. In fact the defendants throughout their pleadings to evidence- in-chief and questions asked by their counsel admit that the Ya-Na committee set up on the disputed land went to the area in dispute and did some work. The defendants plaint is that due to the waterlog nature of some of the boundary areas, the Committee could not finished its work. Hear Counsel for the defendants in cross-examination of the plaintiff witness PW1 on 18th May, 2022 before the court differently constituted. Q: The decision of the Committee was not valid because they never finished with the work. A: The answer is no. they finished their work. 22 Q: They did not finish their work because they could not access the routes to the traditional boundaries because of rains so they never visited the boundaries. A: It is not true. They finished the work and gave notice to the parties to that effect. Q: And they only relied on Danenale stole stuck road as the boundary because it was paved and accessible. A: It is not true because every boundary has its course and they followed the base map which include the Tamale Bolgatanga road after Dungu. Q: And their reliance on the Tamale/Bolga road as boundary was erroneous because the road is a recent development brought by the white man. A: It was a path which was indicated in the base map and because it is now road that is why reference is being made to it. 9.9. From the line of cross-examination of the 2nd plaintiff attorney, the defendants have now admitted that the Committee did some work on the inspection of the boundary though they claim due to the waterlog nature of parts of the boundary, the Committee did not complete its work. The defendants further admit that the committee relied on the Tamale to Bolgatanga road as the boundary between the Gulkpegu skin and the Nanton skin. The defendants again admit that the Committee pronounced 23 on the matter. The onus of proof as to whether the Committee finished its work or not now falls squarely on the defendants who are claiming that the Committee did not finish its work before its decision. 9.10. The plaintiffs have vehemently denied the defendants assertion that the committee never finished it work. The plaintiffs evidence is that the Committee finished its work and based on the maps drawn the Ya Na ruled that the Tamale Bolgatanga road is the boundary between the Gulkpegu skin and the Nanton skin. The plaintiffs evidence on the completion of the Committees work was corroborated by PW1 the former Registrar of the Dagbon Traditional Council. 9.11. It is the defendants who are now asserting that the Committee did not complete its work and as such the onus of proof is on them especially where the plaintiffs have denied that assertion. The position of the law is that, a denied averment must be proved positively by evidence and not by bare repetition of the denied averment. See Majolagbe v Larbi and Others [1959] GLR 190. See also section 17 of the Act 323. 17 (1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding of the fact would be required in the absence of further proof. 24 (2) Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. 9.12. When the defendant witness mounted the witness box, he tendered letters written by the Duun Naa Alhassan as well as another letter written by the following chiefs; Kogni, Yilonayili, Nyeshie and Wayamba which were admitted in evidence and marked as exhibits 5 and 6 respectively. The first paragraph of exhibit 5 states as follows; “The villages of Kogni, Yilonayili, Nyeshie and Wayamba from the Tamale District want to petition to your high throne, that the verdict reached by the committee that was appointed to look into the land in dispute between the villages of Kogni, Yilonayili, Nyeshie and Wayamba from Tamale District on one side, and the villages of Kukuo and Duko from Savelugu/Nanton District on the other side, will not be accepted…” 9.13. This exhibit 5 dated 31st July, 2001 binds the defendants since the letter was signed/thumb printed by Kogni chief, Yilonayili chief, Nyeshie chief and Wayamba chief. The said chiefs are in actual occupation of the lands in dispute. Besides the 1st to 4th defendants are tracing their grant through the Kogni Chief (The petitioner). In exhibit 5 the defendants’ grantors and the other affected communities chiefs did not protest that the Committee did not finish its work. Their protest was that the Committee did not follow the traditional boundaries but created their own boundaries. Per the contents of exhibit 5, the Committee reached a verdict only that the defendants say they will not accept the verdict. This letter (exhibit 5) written at the instance 25 of the chiefs is a documentary evidence and it corroborates the plaintiff evidence that the Committee finished its work and presented a report. This piece of evidence contradicts the defendants’ oral evidence that, the Committee did not finish its work. The law is clear that documentary evidence override oral evidence unless there are other compelling reasons given by the court. See the following cases; Fosua and Adu Poku v Dufie (Dec) [2009] SCGLR 310 Koranteng v Tamakloe and Derban [2007-2008]. 9.14. It must be noted that where the evidence of your adversary corroborate the case of the opponent whilst his is not corroborated, the corroborated evidence is preferred unless the court finds a reason to reject the corroborated evidence. See; Chou Sen Lin v. Tonado Enterprises LTD [2007-2008] 1 SCGLR 135 at 140 per BROBBEY J.S.C. [Page 140] “One point that devastated the case of the defendants was the evidence given by their own witness, the second defendant witness. His testimony was clearly against them to the extent that he even described the acquisition of the third plot to them as an error. Rather, his testimony supported the case of the plaintiff. The law on this issue is settled and it is this: When the evidence of a party remains uncorroborated but that of his opponent is corroborated even by the witness of his opponent, the court ought not to accept the uncorroborated version in preference to the corroborated one. The 26 only exception to this rule is where the court has [page 141] or finds reason to reject the corroborated evidence.” See also; Agyeiwaa v. P & T Corporation [2007-2008] 2 SCGLR 985 at 990- 991 Per WOOD CJ as she then was. 9.15. As it stands now the plaintiff assertion that the Committee appointed by the Ya Na went to inspect the boundary of the two paramount chiefs (1st plaintiff and 5th Defendant) with representatives of the two paramount chiefs and thereafter produced it’s a report to the Ya Na has been corroborated by the defendants witnesses by virtue of defendants own exhibits 5 and 6. I have no cogent reason to reject this piece of evidence and I so hold. 9.16. Again, the defendants’ evidence is that, it was the Kogni chief who petitioned the Ya Na to look into the dispute. The defendants further admit that because the dispute involved two paramount chiefs, they petitioned the Ya Na for resolution. There is evidence on record that the Committee formed to look into the boundary between the paramount chiefs included the Gulkpegu Regent at that time as well as other representatives of the Gulkpegu Skin. With such a representation, I have no doubt in my mind that the decision of the Committee was fair and candid since it included the defendants’ representatives and the plaintiffs’ representatives as well. If that was not the case, the 5th defendant Regent would have protested vehemently at that time. In fact this matter started in 2017 but it was only in 2023 that the 5th defendant who is alleged to be the grantor of the land in dispute to the defendants applied to join the suit as 5th defendant when hearing had reached advanced stage. I therefore reject the evidence of DW3 27 that the Committee had no knowledge of the land in dispute and hold that the Ya Na’s Committee inspected the land in dispute with the active participation of the parties as well as their representatives and thereafter gave a verdict that the boundary between the 1st plaintiff skin and the 5th defendant skin is the Tamale to Bolgatanga road starting from Dungu. 9.17. I will now proceed on the other leg of the issue raised supra to find out the nature of the proceedings that was conducted before the Ya Na and the Committee formed to look at the boundary dispute between the chiefs on the land in dispute and whether the outcome binds the parties or not. This is so important because, the plaintiffs’ evidence is that, there was a hearing and a ruling/judgment made by the Ya Na which has a binding effect on the defendants. The defendants however dispute this and say that the Committee appointed by the Ya Na did not finish its work and thus the ruling of the Ya Na that the land in dispute falls under the territory of Nanton Naa has no binding effect on the defendants. 9.18. What was the nature of the dispute, was it a negotiated settlement, mediation or arbitration. I am particularly making reference to the type of settlement used because arbitration outcomes are more potent and have compelling and binding effect on the parties than negotiated settlement or mediation. 9.19. There is evidence on record that, it was the defendants who petitioned the Ya Na leading to the formation of the Committee. The parties are ad idem that there was fair representation on the Committee appointed to resolve the boundary dispute hence none of the parties raised any issue of bias or 28 unfair representation on the Committee. Again, there is also no dispute of the fact that the Committee met and set a date for the locus inspection and actually proceeded to the area in dispute to inspect the boundary. That on the day of the inspection both parties and their representatives took part in the exercise. The evidence-in-chief of DW2 and DW3 confirm that the Committee did some work. 9.20. Counsel for the defendants in his written address at page 12 admitted that both parties agreed that the matter was sent before the Ya Na Yakubu Andani II for a resolution. Counsel rightly submitted that the applicable law in Ghana is that, for there to be valid customary arbitration, there must be a voluntary submission to the arbitration, the parties must agree to be bound by the decision of the arbitration, the rules of natural justice must be observed, the arbitrator acted within the jurisdiction and the decision or the award is made known. Counsel further cited the case of Budu v Ceaser [1959] GLR 410 as well as the case of Dzasimatu and Others v Dokosi and Others [1993-94] I GLR 463 in support of his claim of what makes a customary arbitration binding. 9.21. Counsel for the plaintiffs also made reference to these authorities and further submitted that what took place before Ya Na Yakubu and the Committee was arbitration that binds the parties in this case. 9.22. In the case of Dzasimatu and Others v Dokosi and Others supra, the Supreme Court stated the law on what would make customary arbitration have binding effect on the parties as follow; 29 The law on this may be briefly restated: A purported arbitration is binding if (a) the submission of the dispute was voluntary: see Asare v Donkor [1962] 2 GLR 176, SC and Paul v Kokoo [1962] 2 GLR 213, SC; (b) the parties agreed to be bound by the decision whichever way it went: see Ankrah v Dabra and Olaga (1956) 1 WALR 89, WACA; Twumasi v Badu (1957) 1 WALR 204, WACA and Mosi v Fordjuor [1962] 2 GLR 74, SC; (c) the rules of natural justice were observed: see Akakyie II v Ediyie [1977] 2 GLR 70, CA : although the arbitrator need not follow any formal procedures: see Akunor v Okan [1977] 1 GLR 173, CA; (d) the arbitrator acted within jurisdiction: see Foli v Akesse (1934) 2 WACA 46, PC; and (e) the decision or award was made known: see Yaw v Amobie (1958) 3 WALR 406, CA. Although there is no right in the parties to resile from an arbitration: see Kwasi v Larbi (1952) 13 WACA 76, PC: affirming (1950) 13 WACA 81: the parties may, after the award, resubmit the whole, or a part, of the dispute to a further arbitration, just as they may do after a judgment: see Tetteh v Ndamquaye (1947) DC (Land) ‘38-47, 261 and Yardom v Minta III (1926) FC ‘26-’29, 76. Where the proceedings fall short of an arbitration, but meet the requirements of a negotiated or amicable settlement, the decision becomes binding only if it is accepted by the parties: see Mensah v Esah [1976] 1 GLR 424, CA. Thereafter, neither party can resile from the compromise: see Zogli v Ganyo [1977] 1 GLR 297, CA. (Emphasis supplied.) 30 9.23. It is significant to note that Counsel for the defendants was the first person who introduced the term arbitration in the case when he was cross- examining PW2. At the time PW2 filed his witness statement, he was the Registrar of the Dagbon Traditional Council but currently the Registrar of the Northern Region House of Chiefs. The answers given by PW2 was that there was arbitration and a verdict pronounced by the Ya-Na. Here counsel for the defendants on 17th October 2023. Q: Per paragraph 4 of your evidence in chief you stated that the documentation per your records shows that the land in dispute falls under the territory of Nanton and not Gulkpegu. A: The land is for Nanton Na by the records from the Registry of the Dagbon Traditional Council. Q: These records of which you speak, does it include the records of the purported arbitration which plaintiff claims determined the land in dispute in their favour. A: Yes. Q: You have not exhibited or tendered any record of the purported arbitration. A: Yes. 31 Q: I am putting it to you that there is no record of arbitration because no arbitration took place. A: The fact that there is no record of arbitration does not mean that the arbitration did not take place. The Ya-Na called all the parties involved in the matter including the Naa Yaba of Gulkpegu who was the Regent at the time and now the Lamashegu chief were all present at the traditional arbitration. It was after the hearing of the arbitration that the letters in evidence were issued. Q: You agree with me that the Ya-Na Yakubu II (Dec) set up a committee to arbitrate on the disputed land. A: Not correct. The committee was set up to show the boundaries between Nanton and Gulkpegu. Q: I am putting it to you that the committee was set up to arbitrate but they never completed their work. (Emphasis supplied) A: The committee was set up to determine the boundaries of the Nanton and Gulkpegu and after which the drawings were done and submitted to the Ya- Na Yakubu Andani II (Dec). Q: I am suggesting to you that the committee set up never went to the traditional boundaries between the Gulkpe Naa and Nanton-Naa because it was a rainy season and the land was inaccessible. 32 A: Not correct. They did. Q: I am suggesting to you that the purported arbitration was invalid and had no binding effect. A: Not correct. 9.24. From the line of cross-examination and the answers given, the plaintiff evidence is that there was customary arbitration of which the Ya-Na heard the parties and appointed a committee to look at the boundaries of the land of the two paramount skins. After the committee presented its work to the Ya Na, he ruled that the land in dispute is for the Nanton skin. Though the plaintiffs in their pleadings did not categorically mentioned arbitration, they stated that, Ya Na declared the 1st plaintiff skin as the owner of the land in dispute and that the defendants are statute barred in contesting the ownership of the disputed lands since they have not contested the Ya Na’s declaration since 1999. It is this piece of evidence that has caused this court to look at the nature of the dispute and how it was resolved. 9.25. The 2nd plaintiff attorney in answering questions by counsel for the defendants in cross-examination stated that, Ya Na gave a ruling when the land in dispute between the parties appeared before the Ya Na Yakubu Andani II. I hereby reproduce what ensued on 2nd January, 2020 when PW1 was being cross-examined. Q: You say that Ya Na made a decision concerning this issue. A: Yes. 33 Q: That decision by the Ya Na is not legitimate and proper. A: It is legitimate and proper. Q: Why. A: Because he is the overlord of Dagbon. It was not only him who took the decision. It was the paramountcy of both the conflict communities i.e. Janjori Kukuo and Kogni. The paramountcy. They came out with the findings or ruling and it was served on the paramountcy to that effect. Q: The Ya Na does not have the power to take one community’s land and give it to another community. A: The Ya Na can do so by consulting those who are affected and come out with the final judgment. Q: The Committee you said Ya Na formed could not have settled the matter. A: They can settle it because the Gulkpegu Regent by then which the Kogni people owe allegiance to was a member of the Committee so there will be a serious consultation before the ruing of the Ya Na. 9.26. These answers corroborate the evidence of PW2 that, the Committee set up by the Ya Na on the boundary between the 1st plaintiff skin and the 5th Defendant skin came out with its findings. Again the answers provided by the 2nd plaintiff attorney (PW1) suggest that, the late Nanton Naa Alhaji Sulley Saaka, Regent of Gulkpegu Mohammed Ziblim who is the current chief of Lamashegu and Regent of Savelugu by then were part of the committee that took the decision that the boundary between the 1st plaintiff 34 and the 5th plaintiff skin lands is the Tamale Bolgatanga road. The defendants have not denied that the two paramount chiefs were part of the committee set up by the Ya Na to determine the boundary of the 1st Plaintiff and the 5th Defendant. This undeniable fact that the Gulkpegu Regent was part of the Committee corroborates the plaintiff case that the decision of the Committee was taken with the approval of the Gulkpegu Regent and the other representatives from the defendant side. 9.27. On 18th May 2022, PW1 further gave evidence in answers in cross examination that, the lands of the effected villages including Kogni were all part of land in dispute that appeared before the Ya Na and indeed the ruling by the Ya Na binds them as well. Here PW1: Q: The decision the Ya Na came to was without the key involvement of the communities along the boundaries including Kogni and Nyeshe, Jeto Naa Jebe and Wayyamba. A: They were fully involved and I can mention the communities Wayamba is not part of the communities on that stretch. The communities along the stretch start from Damankoyili, Nile, Warishe, Kogni, Kalumanga, Jeto Naa Yele. Initially Damankonyili and Nile said they had no land there but that they were settled there. Nyieshie said the land belonged to them but now they have returned the land to Janjori Kukuo chief, Kuluanga also said they were settled there but have no land there. The communities herein mentioned are included in the letters written by the late Yaa Na and the Regent currently Savelugu Naa. 35 9.28. The defendant witness DW3 admitted in court that it was the people of Kogni who petitioned the Ya Na for the resolution of the matter. He further agreed that the paramount chief of Nanton and the Regent of Gulkpegu at the time of the resolution of the matter knew of the Committee and had representatives on the Committee. The witness further admitted that, the Committee visited the land in dispute and inspected the boundary but to him they could not finish and they agreed to come back during the dry season. The witness further admits that the Ya Na ruled that the land in dispute is for the Nanton Naa but the people of Kogni did not agree. He further admitted that after the Committee left the Ya Na’s palace, the Ya Na later invited the parties and handed over the ruling to them in 1999. 9.29. The answers given by DW3 in cross-examination defeat the defendants’ assertion that the affected communities on the land in dispute did not know of the dispute and did not take part in the arbitration. In fact it was the Kogni people who petitioned the Ya Na to look into the matter. Hear DW3 in cross-examination: Q: Are you aware of the first petition made to the Ya Na in 1998 was by Kogni Chief in respect of the land in dispute. A: Yes. Q: Are you aware that Gulkpegu skin was aware of this body set up by the Ya Na and indeed had his representatives on the said body. A: Yes, I was one of the representatives of the Gulkpegu Naa. It is not that we the representatives were part of body. 36 Q: Did the Over Lord of the land that is the Ya Na Yakubu Andani II make pronouncement on the land in dispute to your knowledge. A: Yes but when the body set up by the Ya Na came, the body asked the factions to present three elderly people in various communities, the Gulpkegu Naa and the Nanton Naa each presented three representatives as ordered by the body… Q: Are you aware of the petition the chief of Kogni made in 2001 to the Ya Na. A: Yes. Q: Do you know of the outcome of that petition from the Kogni Chief. A: Yes, after the petition in 2001 the Ya Na Andani II asked as to hold on for him to make consultations and unfortunately in March 2002 the Ya Na was killed. Q: Are you aware that in 2008 exhibit 6 which is another petition from Dunna Naa who is deceased was sent to Gbewa palace in respect of this land. A: Yes. Q: What was the outcome of the petition from Dunna Naa to the Regent of Dagbon at that time? A: The Regent at that time who is currently Yoo Naa (Savelugu Chief) said he was a stranger on the land and that whatever his father the late Ya Na Andani Yakubu II agreed with the parties we should try to abide by it and that whoever is not satisfied with what he said may come back for redress. (Emphasis supplied) 37 9.30. From the answers given by DW3, there is no doubt that it was the 1st to 4th defendants’ grantor, the Kogni Chief acting on behalf of the Gulkpegu Chief who petitioned the Ya Na to hear the parties. From the evidence before me, the defendants who petitioned Ya Na Yakubu Andani II lost the case at the Gbewa Palace when the Ya Na ruled in favour of the 1st plaintiff that, the land in dispute falls under the 1st plaintiff territory. 9.31. It is also significant to note that exhibit 6 which is a letter written by Duun Naa for himself and the affected chiefs to the then Regent of Dagbon was for a review of the decisions made in respect of the land in dispute. By this exhibit 6, the 1st to 4th defendants by themselves recognize that there was hearing of the case and final decision made. This exhibit 5 and exhibit 6 if read together demonstrates that what took place at the Ya Na’s palace on the land in dispute was not negotiated settlement but rather traditional arbitration where evidence was taken and a committee set up to look at the boundary between the feuding parties. From a close look at the defendants’ exhibits 5 and 6 and the answers given by their witnesses, the import is that the defendants were not happy with the outcome of the Committees report and the ruling by the Ya Na because it did not favour them. They had to find means to impugn the work of the Committee hence the lame excuse that the Committee did not complete its work before a verdict pronounced. The defendants did not call the then Regent of Gulkpegu who is alive to testify. Even the 5th defendant did not testify in this case. 9.32. In fact Counsel for the defendant in cross-examination of PW2 stated categorically that, the Ya-Na set up a Committee to arbitrate the dispute on 38 the disputed land. The defendant plaint is that the Committee did not complete its work before the determination of the case. Hear Counsel for the defendant in cross examination of DW2 on 17/10/2023. Q: You agree with me that the Ya Na Yakubu Andani II (Deceased) set up a committee to arbitrate on the disputed land. A: Not correct. The Committee was set up to show the boundaries between Nanton and Gulpkegu. Q: I am suggesting to you that the Committee was set up to arbitrate but they never completed their work. A: The Committee was set up to determine the boundaries of the Nanton and Gulkpegu and after which the drawings were done and submitted to the Ya Na Yakubu II (Deceased). 9.33. From the line of cross-examination which is binding on the defendants, what appeared before the Committee was part of the arbitration proceedings and as such any outcome of the Committee’s work would have binding effect on the parties. 9.34. The position of the law on traditional arbitration is that it need not follow any laid down procedure once it is fair. In Akunnor v Okan [1977] 1 GLR 173 the court per Amissah J.A at 177 said: 39 An arbitration need not follow any formal procedure. Both parties must be heard and given the fullest opportunity to state their case. If the learned trial judge believed that evidence, and he must believe it to have come to the conclusion that there was a valid customary arbitration, then thus in my view should end the matter. The rule is that once there had been a valid customary arbitration the parties are estopped from raising the same issue subsequently in an action in court. 9.35. From the evidence before me, the defendant could not substantiate the allegation that the Committee did not complete its work. The defendants’ witnesses only repeated the denied averments that the Committee did not finish its work on inspection of the boundary between the Nanton Skin and the Gulpkegu skin. I have made a finding of fact that the Committee completed its work. That being the case, the outcome of the Committees work as part of the arbitration proceedings at the Gbewa palace has binding effect on the parties and the parties are estopped from re-litigating the matter. 9.36. The fact is that the defendants caused the Petition to be filed at Gbewa Palace for resolution. The plaintiffs took part in the hearing of the case. That is to say they voluntarily submitted to the hearing of the case. The parties by their overt acts agreed to be bound by the decision hence their agreement to be part of the Committee that was set up to look at the boundary between them. None of the parties at the hearing of the case raised any issue of bias or unfair representation on the part of the Committee or any issue of bias on the part of the then Over Lord of Dagbon, Ya Na Andani II who heard the parties and caused the Committee to look at the boundary between the 40 parties. It must also be emphasized that the Ya Na published the decision on the matter to the knowledge of the parties. From the contents of the defendants’ exhibit 5 and 6, the defendants by themselves acknowledged that there was publication of the award. The 5th defendant is estopped from counterclaiming for the determination of the boundary dispute that has already been determined by the Ya Na and the Committee of which the former Regent of Gulkpegu was a member. 9.37. It must be noted that the defendants through the Duun Naa filed a second petition to the then Regent of Dagbon in 2008. In response to the petition, the Yoo Naa who was then the Regent of Dagbon informed the defendants to abide by the ruling of the Ya Na Yakubu Andani which was agreed on by the parties. By this decision of the Yoo Naa, the parties in 1999 agreed to the ruling of the Ya Na of which exhibit NA 7 was issued. The defendants after the Yoo Naa’s response rather resorted to deal with the disputed land in their own way by allocating portions thereof to the 1st to 4th defendants to construct their houses. This compelled the plaintiffs herein to institute this action. It appears to me that the defendant through their agents in not less than three occasions petitioned the Ya Na and the then Regent of Dagbon and in each occasion, the outcome was against the defendants. 9.38. It is clear from the proceedings that the answers given by DW3 in cross- examination clearly shows that after the hearing of the case, the Ya Na ruled that the land in dispute is for the 1st Plaintiff skin. Again for the fact that the parties submitted to the hearing of the case and actually had representation on the Committee that came out with a finding that the boundary between the 1st defendant and the 5th defendant is the Tamale to Bolgatanga main 41 road the parties are bound by the Committee’s report and the ruling by the Ya Na. The defendants are thus estopped from resiling from the decision of the Committee that looked into the boundary dispute between the parties and which said decision was forwarded to the Ya-Na before the verdict was given. 9.39. That being the case the determination by the the Ya Na Yakubu Andani II and the Committee he set with the active participation of the parties that the disputed land is for the 1st plaintiff skin would defeat the defendants counterclaim and to a large extent the claim by the following communities, Damankonayili, Nyeshie, Kogni and Yilonayili that the land on which they are staying on falls under the authority of the 5th defendant. 9.40. For the fact that the Ya Na and the Committee determined that the boundary between the 1st plaintiff and the 5th plaintiff is the Tamale to Bolgatanga road and the lands where these communities are situate belong to Nanton Skin, Damankonayili, Nyeshie, Kogni and Yilonayili communities are estopped from denying the title of the 1st plaintiff to the land in dispute. 9.41. I have carefully refrained from relying on exhibits NA 12 in view of the controversy surrounding it. This court differently constituted rejected the compressed map which to me seem to be the same exhibit that was tendered in evidence by PW2 without objection. I am of the firm view that, exhibit CW8 better describe the land in dispute as existed before the arbitration and now and as such, there is no need to further comment on the rejected exhibits and the controversies surrounding them. 42 9.42. Having determined that the land in dispute as specifically described on exhibit CW8 and edged green falls under the skin of the 1st defendant, there is the need for the court to make consequential orders in view of the fact that the affected communities have lived on the land in dispute since 1964 that they were moved to stay on. Again the entire stretch of the land in dispute on the road side has developed into dwelling houses as well as other commercial activities to the knowledge of the plaintiffs. Any attempt to dispossess the affected communities of the developed lands in their possession would only cause chaos and would not serve any useful purpose. After all, the plaintiffs’ evidence is that they permitted the people of Kogni community to construct their house but not beyond the high tension poles. 9.43. The plaintiffs cannot recover possession of the already developed areas of the land in dispute from the affected communities, however, any fresh allocation, grant or alienation of any vacant land at the area in dispute, shall be at the instance of the 2nd plaintiff for the endorsement of the 1st plaintiff before any lease is prepared by the Overlord of Dagbon, the Ya-Na. 9.44. In effect the defendants, their agents, assigns, sub chiefs or anybody claiming title through the 5th defendant are restrained from making any fresh allocation of any undeveloped portion of the land in dispute to prospective developers. Any allocation made by the defendants, their agents, assigns, privies, sub chiefs before the commencement of this suit but which said land has not been developed into buildings or any form of construction shall be regularized by the plaintiffs. 43 9.45. In view of the fact that the 1st, 2nd, 3rd and 4th defendants houses on portion of the land in dispute has reached appreciable levels of development, the plaintiffs cannot recover possession from them. The 1st to 4th defendants are however restrained from expanding their houses on any vacant land unless expressly permitted by the plaintiffs. 9.46. I hereby proceed to dismiss the defendants counter claim and same is hereby dismissed. 9.47. In summary, I grant the plaintiffs reliefs 1 and 2. I grant relief 3 in part as expressed in this judgment. I refuse plaintiff reliefs 4 and 6. In respect of the plaintiff relief 5, the defendants, their agents, assigns, sub chiefs or anybody claiming title through the 5th defendant are perpetually restrained from making any allocation of any undeveloped portion of the land in dispute to prospective developers. Any allocation made by the defendants, their agents, assigns, privies, sub chiefs before the commencement of this suit but which said land has not been developed into buildings or any form of permanent structure or construction shall be regularized by the plaintiffs. 9.48. I assess the plaintiff cost at Thirty Thousand Ghana Cedis (GHs 30,000.00) against the defendants jointly and severally. SGN HIS LORDSHIP SIR JUSTICE ERIC ANSAH ANKOMAH 44 JUSTICE OF THE HIGH COURT TAMALE. 45 46