Duah v Owusu-Manu and Others (A1/45/22) [2025] GHACC 59 (29 May 2025)

IN THE CIRCUIT COURT OF GHANA HELD IN THE EASTERN REGION (NSAWAM) ON TUESDAY 29TH MAY, 2025 BEFORE HER HONOUR MS. DIANA ADU-ANANE SUITNO.A1/45/22 DESMONDDUAH ……………. PLAINTIFF AND 1.SAMUELKWAKU OWUSU-MANU 2.FRANCIS DAGBA 3.FRANCIS AGYEIKUFFOUR ……………. DEFENDANTS 4.KWAKUADJEI JUDGMENT PLAINTIFFPRESENT. 1ST,2ND, AND4TH, DEFENDANTSPRESENT. 3RDDEFENDANT–ABSENT ANDREPRESENTEDBY2NDDEFENDANT. KOFI KOHLAN ESQ HOLDING THE BRIEF OF LEONARD SEDZRO ESQ FOR THEPLQINTIFF LOUIS KOOMSON ESQ HOLDING THE BRIEF OF JOHN DARKO ESQ FOR THEDEFENDANTS The plaintiff caused a writ of summons to issue against the 1st to 3rd defendants on the7th ofSeptember 2021. 1 Pursuant to the grant of an application for joinder of the 4th defendant, the plaintiff onthe 8th ofJune 2022filed anamended writ ofsummonsfor the following reliefs: a. Declaration of title to all that piece or parcel of land lying situate at Pampanso near Nsawam in the former Akuapem South District now Nsawam – Adoagyiri Municipality of the Eastern Region of Ghana and bounded on the North East by Among Pampanso and Nkrabea Among’s property and measuring on that side a distance of 1,165.0 feet more or less, on the South East by Akuffo family property and measuring on that side a distance of 650 feet more or less on the North West by Akosua Kutorkor Yeboah’s property and measuring on that side a distance of 715 feet more or less, on the South West by Kumasi main motor road to Accra and measuring on that side a distance of 940 feet more or less and containing an approximate area of 14.22 acresmoreorless. b. Recoveryofpossession. c. Damagesfor trespass. d. Perpetual injunction restraining the defendants, their agents, assigns, servants, workmen, privies, personal representatives or all and any persons claiming throughandunder the defendants fromlaying adverseclaim tothe said land. ThePlaintiff’s Case In the accompanying statement of claim the plaintiff averred that he is the owner of the disputed land having acquired same through purchase in April 2000 from Nii Mankata V a.k.a Edward Asomaning Mankata, then head and lawful representative of the Ntikora Family of Pampanso near Nsawam for a consideration of Twenty Million Old cedis ( C 20,000,000.00), went into immediate possession by erecting boundary pillars and had same stamped and registered as LVB/ER/687/2004 with the Lands Registry No. 1402/2004 and document No. RE1364/2003. 2 Plaintiff averred that in April 2006, two individuals by name Kofi Atsu and Teacher Anane trespassed unto his land and he instituted a legal action against them at the Koforidua High Court in suit No. E1/86/06 for declaration of title and judgmentwas delivered inhis favour. The plaintiff continued that due to ill health and not residing in the Eastern Region, the 1st defendant took advantage and trespassed unto his land in 2015. Upon confrontation, the 1st defendant acknowledged plaintiff as the owner and offered to buy 1.66 acres of the land at a cost of GHC 360,000.00. 1st defendant then made a part payment of GHC 80,000.00 leaving an outstanding balance of GHC 280,000.00. That upon demand for the balance the 1st defendant denounced plaintiff as the owner and in June 2021, when plaintiff had a potential buyer and asked 1st defendant to vacate the land, the 1st defendant rather fenced about 4 acresoftheland, claiming ownershipofsame. It is the claim of plaintiff that the 2nd and 3rd defendants are also putting a buildingonportion ofthe land anddenies plaintiff’s title tothe land. That the defendants will not desist fromtheir acts oftrespass unless restrained by thecourt, hence this suit. TheDefendants Case The defendants entered appearance through their lawyer and on the 24th of August 2022 filed a joint defence. In their defence the defendants denied the avermentsofthe plaintiff. The 1st defendant averred that in 2011 he purchased 6.34 acres of land from Lawyer Adu Kofi Djin and registered it the same year. That he purchased another1.66acresfromAttaa Maame and started workonthe landin2015. It was averred that the 1st defendant never acknowledged plaintiff as the owner of the land, but only agreed to pay GHC 80,000.00 to plaintiff when plaintiff 3 claimed there has been an overlap between the land he bought from Attaa Maame and since he had invested in his land and wanted to prevent any delays in the development and for plaintiff to cease his consistent pester. That as the ownerofthe land, nothing preventshimfromfencing same. The 2nd and 3rd defendants asserted that they purchased their land from KOANS Building Solutions and doesnotrecognise the title ofplaintiff. That the 2nd defendant’s land does not fall within the parcel of land claimed by plaintiff as 2nd defendant has been in open possession having erected a two-bedroom propertyand currentlybuilding astorybuilding. It was further averred that the 3rd defendant has also built a three-bedroom residential property which he currently occupies and has enjoyed peaceful open possession of the land until plaintiff served the writ of summons claiming ownership. The defendants pleaded thatthe plaintiff isnot entitled tohis reliefs. The 1stdefendant counterclaimed forthe following reliefs: a. Recovery of the GHC 80,000.00unlawfully takenfrom the 1st defendant by the plaintiff. b. Interest onthe said sum atthe prevailing bank rate. c. Costsincluding legalfees. The plaintiff on the 8th of November 2022 field a reply and a defence to the counterclaimtherebyjoining issues withthe defendants. The plaintiff averred that the 1st defendant is not entitled to any interest on the GHC 80,000.00 because it was a breach on the part of the 1st defendant that terminated the contract. Thus, the 1st defendant must relinquish the land for a refund of his GHC 80,000.00havingdenied plaintiff’sownership oftheland. 4 These are the issues that wereadoptedfor determinationat theclose ofpleadings: 1. Whetherornot theplaintiff is theregistered owner ofthe disputed land? 2. Whether or not the plaintiff in 2008 obtained a judgment from the Koforidua HighCourtoverthe disputed land? 3. Whether or not the fenced land of the 1st defendant forms part of the registeredland oftheplaintiff? 4. Whetherornot thedefendants aretrespassers tothedisputed land? Additionalissues: 5. Whetherornot theplaintiff’sgrantorswerethe ownersofthedisputed land? 6. Whether or not plaintiff had interest in 1st defendant’s land when he received theamount ofGHC 80,000.00fromthe1stdefendant? 7. Whetheror notthe disputed land in case withsuit No. E1/86/06 wasin respect ofthe disputed land in thepresent suit? 8. Whether or not the judgment given in the case with suit no. E1/86/06 is bindingonthe defendants? Counsel for the parties filed respective written addresses at the close of hearing whichwere duly considered inthis judgment. ANALYSIS “Proof in civil matters does not require absolute certainty. In civil matters, the standard is on the balance of probabilities. This implies that a party must demonstrate that his claim is more probable than that of the other to succeed. In evaluating whether or not a case is more probable that its rival version, all the evidence, beit thatofthePlaintifforthe Defendant must be 5 considered and the party in whose favour the balance tilts is the person whose case is more probable than the rival version and is therefore deserving of a favourable verdict. See Tarkoradi Flour Mills Ltd vrs. Samir Faris (2005-2006) SCGLR 882 @ page900. Section 14 of the Evidence Act, 1975 (NRCD 323) provides that: “except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which it is essential to the claim or defence heis asserting” The standard of proof required in Civil Cases has found judicial expression in a plethora of cases including the case of Bisi vrs. Tabiri alias Asare [1987-1988] 1 GLR 360atpage 361where theSupreme Court held asfollows. “The standard of proof required of a Plaintiff in a Civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to mean a call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier's belief in the preponderance of probability. But ‘probability’ denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected wasmoreprobablethanthechoice rejected...” In land suits, the Plaintiff is supposed to lead evidence in proof of his root of title. The Supreme Court held in the case of Ogbarmey-Tetteh v. Ogbarmey–Tetteh (1993-94) 1 GLR 353 as follows: “…In an action for a declaration of title, a plaintiff who failed to establish the root of his title must fail because such default was fatal tohiscase”. Also, the Supreme Court speaking per Adinyira JSC in the case of Yehans International Ltd. v. Martey Tsuru Family and 1 Or., [2018] DLSC 2488 at page 8 6 held: “It is settled that a person claiming title has to prove: i) his root of title, ii) mode of acquisition and iii) various acts of possession exercised over the land … This can be proved by either by traditional evidence or by overt acts of ownership in respect of theland in dispute. A party who relies on a derivativetitle must prove the title of his grantor. Awuku v. Tetteh [2011] 1 SCGLR 366. Further, to prove ownership through possession, the possession must be long, peaceful and uninterrupted…” Iwill proceed toaddressissues 2,7,and 8jointlyas follows: Whether or not the plaintiff in 2008 obtained a judgment from the Koforidua High Courtover the disputed land? Whether or not the disputed land in case with suit No. E1/86/06 was in respect of the disputed land inthe presentsuit? Whether or not the judgment given in the case with suit no. E1/86/06 is binding on thedefendants? The doctrine of res judicata is to prevent the relitigating of a matter that has been determined by a court of competent jurisdiction, tribunal or arbitration among the same parties ortheir privies. In the case of In Re Sekyedumase Stool; Nyame vrs. Kese ‘Alias’ Konto [1998-99] SCGLR 478, @ page 479, the Supreme Court per Acquah JSC (as he then was) held that: “Theplea ofRes Judicatacan beinvoked in respect ofanyfinaljudgment delivered on the merits by a judicial tribunal of a competent jurisdiction. Such a judgment is conclusive as to the rights of the parties and their privies and as to them, constitutes an absolute bar to a subsequent action involving the same claim, demandor causeofaction”. 7 Relatedly, Supreme Court in the case of In Re Kwabeng Stool; Karikari vrs. Ababio 11 [2001-2002] SCGLR 515 at page 530, held concerning the plea of res judicata as follows: -: “The doctrine or principle of estoppel is founded on the maxim interest reipublicae ut sit finis litium, meaning ‘it concerns the State that lawsuits be not protracted’. Also, ‘no man ought to be twice vexed, if it be found to the court that it be for one and the same cause’ (nemo debet bis vexari, si constat veriae quod sit pro una et eadem causa). If an action is brought, and the merits of the question are determined between the parties, and a final judgment is obtained by either, the parties are precluded and cannot canvass the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial which wouldhave led to adifferent judgment.” Deduced from the case law, a party relying on the plea of res judicata must prove that: 1. The parties in the instant case are the same parties in the earlier case or their privies. 2.The subject matter in the instant case is the same as the subject matter in the earlier case. 3.The issue in theinstant case has beendecided in the earlier case. 4. The decision or judgment in the earlier case was final and not interlocutory in nature. Therefore, to the extent that the judgment in Exhibit ‘A’ did not involve the Defendants or their predecessors, they cannot be bound by it. It may only serve the purpose of demonstrating the plaintiff’s interest in the land, but not as an estoppel against thedefendants, who arestrangers tothis judgment. Issue 8 is resolved to the effect that the judgment given in the case with suit no. E1/86/06 isnot binding onthe present defendants. 8 The main contention however is whether the subject matter in the instant case is the same as the subject matterin theearlier case before theHigh CourtKoforidua? The Supreme Court in the consolidated case of NANA KWATA YAMOAH (SUBSTITUTED BY NANA KOJO ENYAN VRS EBUSUAPAYIN K YEBOAH (SUBSTITUTED BY EBUSUAPANYIN YAW ANSAH AND NANA KWATA YAMOAH (SUBSTITUTED BY NANA KOJO ENYAN VRS EBUSUAPAYIN K YEBOAH (SUBSTITUTED BY EBUSUAPANYIN YAW ANSAH; Unreported; Suit No. J4/53/2022; delivered on the 5th of July 2022 when faced with a similar issue whether or not the subject matter of the judgments in the earlier cases was the same as the subject matter in an instant suit. In other words, whether the identity of the land adjudicated in the earlier judgments is the same as the land in dispute in the instant case. Kulendi JSC, delivering the lead judgment held as follows: “We wish to emphasize that the requirement of proof of identity of land is one which cannot be ignored in land disputes. However, this requirement of proof of identity of land does not impose a greater burden of proof on a party. The identity of land need not be proven to mathematical precision or absolute certainty. Proof of identity of land does not require proofto perfection but thatwhich will enablethe court, theparties andthird parties to know the very land which is being adjudicated on. Authorities abound for the legal proposition that identity of a land is a sine qua non for the grant of an order for declaration of title. The judicial policy for this rule was explained by Ollenu JSC in the case of Anane vrs. Donkor (1965) GLR 188, which was cited by this Court in a judgment dated 29th June 2016 in Suit No. J4/4/2016 entitled Aku- Brownvrs. Lanquayeper PwamangJSC,asfollows: “Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order of possession can be executed without difficulty and also 9 if the order for injunction is violated, the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgement or order of the court will be in vain. Again, a judgement for declaration of title to land should operate asres judicata to prevent the parties relitigating the same issue in respect of the identical subject matter but it cannot so operate unless the subject matter thereofis clearly identified.” Similarly,in Sah v.Darku [1987-88] I GLR123CA,it was held as follows: “Admittedly, the courts have consistently refused to declare title in any claim for land when the land cannot or has not been clearly identified. But as a matter of fact, the contention that a party must prove the identity of the land in a land suit with certainty to enable a court decree title does not mean mathematical identity or precision”. His Lordship further opined that: “In proving the identity of the land, the law does not lend itself to a one-way, straight jacketed approach. In some instances, the mere tendering of a site plan or an indenture may be enough. In other instances, the mere statement of a house number could be considered adequate description or identity of land. Also, the recitation of boundary owners or other forms of identity may be enough so far as it aids in identifying the specific land to achieve the judicial policy reasonsfor therule. In the Nana Kwata Yamoah case (supra), the Supreme Court, affirming the decision of the Court of Appeal that the disputed land had been identified, based its decision on an admission of the appellant that the land in dispute was litigated over by his ancestorand thathis ancestorlost the case to theancestor oftherespondent. In NYAN V. AMIHERE (1964) GLR 162, the Supreme Court held: “To ascertain the subject matter of a judgment forming the basis of a plea of res judicata the matters to be considered by the court are, inter alia, the judgment itself and the whole of the record especially the evidence of the parties in Court substantially forming the basis 10 of the adjudication.” (See also ADUMUA OKWEI VRS ASHIETEYE LARYEA [2011] 1 SCGLR 319 & A.G.’S DEPT VRS SWEATER & SOCKS FACTORY LIMITED [2014] 74 G.M.J. 1 @ 10). In the instant suit, when it came to light that the judgment of the Koforidua intituled Suit No. E1/86/06; Desmond Duah vrs Kofi Atsu & Teacher Anane presided over by his Lordship Justice W.H.K Addo, Court of Appeal Judge sitting as an additional High Court Judge dated the 21st of July 2008 and tendered in evidence by the plaintiff as Exhibit B, did not contain a description of the land, in agreement with respective counsel for the parties, this court requested the Registrar of the High Court Koforidua to furnish this Court with the processes filed in respect of that suit and same complied with and admitted in evidence as Exhibit C series. In the statement of claim in respect of Suit No. E1/86/06, the land was described in relief 1 as : “Declaration of title to all that piece or parcel of land situate at Pampanso bounded on the North-East by the properties of Nkrabea Among and Among Pampanso, on the South-East by Akuffo Family Land, on the North-West by Akosua Kutorkor Yeboah’s land and on the South-West by Kumasi-Accra Road”. It must be noted that though the same boundaries were reproduced in the current suit, in the current suit some dimensions were included which were not included in the suit before the High Court, Koforidua. Under cross examination on these discrepanciesthis was what was elicited fromplaintiff: Q.You rightly informed this court that you obtained judgmentwhich declared you the owner of the land the subjectmatter of dispute? A. Yes, thatis so. Q. Take a look at Exhibit C, the writ of summons issued at the high Court, Koforidua, kindly read out to the court the description of the land in your statement of claim? What is in 11 paragraph 5 of your statement of claim is the description of your land as you gave in the suit inKoforidua? A. Yes. Q. Is it the same as the description of land provided in Exhibit A as attached to your witness statementinthis court? A. Yes, itis the same. Q. I suggest to you that per paragraph 5 of your statement of claim in Exhibit C, the land as describedhere does nothave any dimensions, butonly showboundaries? A. The size of the land is 14.22acres, and ithas been stated inthe writ? Q. If what is in the statement of claim is exactly what is in the writ then where is the 14.22 acres? A. What is in the writ of summons is that one side is 7.15 feet to the West, on the South 940 feet, on the East is650feetand on the North is1165feet. Q. I suggest to you that the description of the land in Exhibit C is not the same as the descriptionof the land in ExhibitA? A. What Iknow is that the land was sold to meby the Ntikora familyis 14.22acres. Q. I suggest to you that the judgment you secured in Koforidua High Court in your favour was in respectof a differentland and notthe land the subjectmatter before this court? A. It isthe same land. Based on the case of NYAN V. AMIHERE (supra), I would have concluded that the land litigated before the High Court in Suit No. E1/86/06 is the same subject matter before this court since plaintiff’s indenture was admitted in evidence as Exhibit B in that suit. However, there was no site plan attached to the said indenture admitted in evidence. A request to the Registrar of the High Court for the site plan if same was not attached due to inadvertence was met with a response that no site plan was attached to the indenture admitted in evidence. It must be emphasised that the plaintiff’s site plan is fraught with severaldiscrepancies which thoughin the opinion 12 of this court did not measure up to fraud, same could also not be ignored as it raised issuesas totheidentity oftheland. Due to the discrepancies which will be discussed in detail in this judgment, this court is unable to hold that the land litigated before the High Court is the same as thesubject matterbeforethis court. I therefore resolve issues 2 and 7 to the effect that though the plaintiff in 2008 obtained a judgment fromthe Koforidua HighCourtover aparcelof land in suit No. E1/86/06, thatjudgment was notinrespect ofthe disputed land in the presentsuit. Concerning issue 1, whetherthe plaintiff is the registered owner ofthe disputed land? Counsel for defendants though admitting in her address that the disputed land is registered in the name of the plaintiff, she opines that same is tainted with fraud and since fraud vitiates everything, this court should order for the cancellation of the registrationoftheland in favourofthe plaintiff. The following cases were cited by counsel insupport.  BrownvrsQuashigah[2003-2004] SCGLR930.  Appea vrsAsamoah [2003-2004] 1SCGLR226@243  Amuzu vrsOklikah[1998-99] SCGLR141.  OkofohEstatesLtdvrs ModernSignLtd. [1996-97] SCGLR233  ComfortOffooley&AnorvrsRichard Maxwell[2018] JELR108091.  Tawiah SenyoAmeyiborvrs Grace Boateng [2013]JELR991904(CA). The main grounds canvassed by counsel for the defendants in support of fraud on the part of the plaintiff in registering his documents were stated as discrepancies in his indenture and site plan. Although, counsel for the defendants could not establish fraud as would be later discussed, she was able to punch holes in the indenture of theplaintiff. 13 Counsel stated: “there are many discrepancies in the said indenture proving his title which he exhibited as Exhibit A. These discrepancies alluded to the fact that fraud had been perpetuated, thus the indenture that was initially given to plaintiff by his grantors had been subsequently tampered with. Plaintiff under cross examination on the 11th day of July 2023(page 4)testified asfollows: Q.You have told this courtyou were givenan indenture when you purchased the land? A. Yes. Q.And you have exhibited itas ExhibitA? A. It isso. Q.The indenture contains asite plan? A. That isso. Q. Is it your case before this court that the recital which forms the indenture, and the site planwere givento you atthe same time? A. Yes, the site plan was prepared first and after based on that, the indenture was prepared and together given tome. Counsel for the defendants continued that: “it is trite that site plans attached to indentures are often prepared before and used in the preparation of the (schedule in the) indenture. This was affirmed by the court’s witness 1 (CW1) Augustine Kyeremeh of the Lands Commission, Koforidua, when he testified on the 19th of November 2024 (pages 5 and 6ofthe court notes): Q. In your professional opinion, is it the case that you will need a site plan to prepare a schedulefor an indenture? A. That isso, you willneed asite plan to prepare aschedule. Q.Can you kindly referto the plaintiff’s indenture, the date on which itwas executed? A. The documentI have here isdated 22ndApril 2000. Q. Can you kindly produce the plaintiff’s site plan and kindly refer to the date on which the surveyorprepared the site plan? A. The site plan isdated 19thJuly 2000. 14 Q. In your professional opinion, can there be a situation where the indenture was rather prepared and predates the site plan? A. In my opinion, the dates on the site plans attached to indentures mostly predates the date on the indenture. Q. You will therefore agree with me that the plaintiff’s indenture being prepared 4 months before the site plan clearlyindicates the site plan was procured byfraud? A. Icannottell whether the siteplan was procuredby fraud. All Iknow is that the date on the site plan succeedsthe date indicated on the indenture. Q. In your professional opinion, can you confirm to the hearing of the court if plaintiff’s site planwas approved and checked by Survey and Mapping Division, Koforidua? A. The site plan of the plaintiff was not approved and checked by the Survey and Mapping Division,Koforidua. Whereas, the indenture was executed in April 2000, the attached site planis dated on 19th July 2000, when it is common knowledge that the plan of a land that is being usually conveyed is prepared before the instrument is latter prepared and executed, but not otherwise. Further, the absence of the signature of the Survey Director’s on the indenture, Unfortunately, this is a legal requirement which cannot be disregarded. Akamba JSC in the case of Nortey No. 2 v. African Institute of Journalism and Communication No 2 [2013-2014] 1 SCGLR 703 at 717; [2014] 77 G.M.J. 1 at page 10 decided: “Exhibit ‘which is a site plan … is not dated and not signed by the Director of Survey or his representative. Indeed, the omission by the plaintiff is contrary to section 3 (1) of L.I. 1444, the Survey (Supervision and Approval of Plan Regulations, 1989 which makes it mandatory for plans of any parcel of land attached to any instrument for registration of such instruments to be approved by the Director of Survey or any official surveyor authorized in the behalf. As a result of this stark infringement of the statutory requirement, exhibit ‘A’ is rendered of no probative value as rightly determined by the Court of Appeal. Notwithstanding that the exhibit ‘A’ was accepted in evidence without objection, it 15 could not constitute evidence for the purpose for which it was tendered since it infringed the instrument. This is so because the courts have a duty to ensure compliancewith statutesincluding subsidiary legislationslikeLI 1444. Again, though the Lands Commission accepted the documents for processing, that cannot settle the matter, because where the Lands Commission is negligent and failed to ensure compliance of the law, the Court has a duty to do so. In the case of General Emmanuel A. Erskine & Another v. Victoria Okpoti & Another [2018] DLSC 189, the Supreme Court rejected a document that was negligently accepted by theLands Commission when it was not conformable tothe law. Apart from the site plan post-dating the indenture and also not signed by the Director of Survey, the identity of land conveyed to the Plaintiff by his grantor in the instant suit is uncertain. It is common knowledge that for a Plaintiff to succeed in title declaration claims, he must satisfactorily describe the identity of his land. See the cases of Kpakpo Brown v. Bosomtwi and Co.Ltd. (2001-02) SCGLR 876; Amuzu v. Oklika (1998-99) SCGLR 141 & Aryeh and Akakpo v. Ayaa Iddrisu (2010) SCGLR891. The plaintiff’s grantor’s successor in title who testified for the defendants denied his family sold the place claimed to plaintiff, rather the land sold to the plaintiff lies elsewhere. That the disputed land belongs to the defendants. The plaintiff denied having his land situate elsewhere. There was thus an issue with the determination of boundaries, hence a composite plan was drawn up. The court’s expert’s (i.e. the Surveyor’s) report clearly showed that the land granted to the Plaintiff as described on the attached site plan was at variance with the land he is claiming on the ground. The expert’s report and composite plan was admitted in evidence without objection asExhibit CW 1. Under cross examination by counsel for plaintiff as to why the plaintiff’s land as shown byhis site plan hasshifted, this iswhat waselicited. 16 Q. Take a look at the plaintiff’s survey instructions and attached site plan from the site plan of the plaintiff attached to his survey instructions, plaintiff’s land lies along the Accra KumasiRoad, not so? A. That isso. Q. Will you agree with me that plaintiff’s land as shown on the ground lies along the Accra Kumasimain road? A. Iagree. Q.You used the plaintiff’s site planas partof this survey work, notso? A. That isso. Q.And the Accra Kumasi Road has notshifted, correct? A. The position of Accra-Kumasi Road as on the ground is what has been indicated on the composite plan? Q. I am suggesting to you that the plaintiff’s land which shares boundary with the Accra- KumasiRoad has remained sosince his site plan was drawn in 2000? A. I still stand by what I said earlier that the position of the Accra Kumasi Road, as it is on ground has been indicated on the composite plan and the position as per the plaintiff’s site planhas beenindicated on the composite plan accordingly. Q. Can you explain to this court, how plaintiff’s site plan used for the survey work has shifted fromthe main Kumasi-Accra Road? A. Respectfully, the site plan submitted by the plaintiff was produced by license surveyor N.K.S. Aryeekoi, hence I cannot tell this court why the site plan had differed from the plaintiff’s land on ground. Additionally, the coordinates of the boundary points of the plaintiff’s site plan have been indicated on the composite plan. The following was elicited under cross examination of CW 1 by Counsel for the defendants. 17 Q.Can you interpret your findings as seenon CW2and as written on CW1 in relation to the plaintiff’s siteplan? A. The plaintiff’s boundary as per the submitted site plan has been indicated with broken red lines. The plaintiff’s boundary as shown on the ground has been indicated with red lines and also point P1-P5. In terms of acreage, the plaintiff’s site plan occupies 14.22 acres whiles the boundaries shown on ground occupies 16.63 acres. The distances from P1 to P2 is 41.5 feet. That of P2-P3 is 30097.9 feet. From P3 to P4 is 44.6 feet. From P4 to P5 690.4 feet and from P5-P6 784.6 feet. The area in dispute is the area overlap between the plaintiffs claim on the groundand the respectiveclaimsof the defendants. Q. You will therefore agree with me that the plaintiff’s boundaries as shown on his site plan is notthe same as what is on ground,is that notso? A. That isso. The evidence of the expert surveyor in this case cannot be glossed over. The law is that although the evidence of a Court expert is only of persuasive effect and not binding, there must be very good reasons by the Court to reject it. In the case of Tetteh v. Hayford (2012) 44 GMJ 11, Dotse JSC held at page17 thus: “It is generally understood that a court is not bound by the evidence given by an expert such as the surveyor in this case. But the law is equally clear that a trial court must give good reasonswhyexpert evidence is toberejected”. Ironically, the Defendants site plans are substantially conformable to their respective lands on the ground. In fact, the 4th defendant’s land does not fall within the plaintiff’s site plan, rather his land as shown on the ground. It is only the 2nd and 3rd defendants whose land per their site plan and land on the ground falls within the plaintiff’s landbothonground and site plan. The first defendant also has portions of his land falling outside plaintiff’s site plan. Though, such discrepancies in site plans are expected due to the various instruments used, the Lands Act, 2020 (Act 1036) specifically section 232 makes room for the 18 court to order for corrections to be made in some of these instances, however, it is only in respect of site plans approved by the Director of Survey, which is not the case in theinstant suit. In the instant suit with a difference of over 2 acres, and the plaintiff’s insistence that his land shares boundary with the Accra Kumasi Road, while his site plan and coordinates do not support same, which land would the court declare title over, the land as per his site plan or as shown on the ground? And each significantly imparts the defendants respective lands. This makes the identity of the plaintiff’s land not clearlydefined andan orderforpossessiondifficult toexecute. It must be emphasised that the plaintiff never explained these inconsistencies in his documents and on the land. In Obeng vrs Bempoma (1992-93) Ghana Bar Law Reports, 1029, Lamptey J remarked that: “Inconsistencies though colourless may cumulatively discredit the claimoftheproponent oftheevidence”. On the issue of fraud, fraud is a crime, and it has been held that fraud is criminal in nature even where it is clothed in civil garbs. In Section 13 (1) of the Evidence Act, 1975 (NRCD 323) the degree or standard of proof of fraud in both civil and criminal mattersis thereforestatedas follows: “In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.” Indeed, in the case ofNana Asumadu II (Deceased)&Anor vs. Agya Ameyaw [Unreported; Civil Appeal No J4/01/2018; 15 May 2019; SC], the Supreme Court held asfollows: “In law, fraud is a deliberate deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. It is both a civil wrong and a criminal wrong. Fraud, be it civil or criminal, has one connotation. It connotes the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, andin fact, does rely to theharm ofthevictim. It is therefore criminal 19 in nature even where it is clothed in civil garbs. Having pleaded fraud, …which connotes imputation of crime on the part of the Defendant in obtaining the judgment, the law required Plaintiffs to establish that allegation clearly and convincinglyandbeyond reasonabledoubt.”(Emphasis added) Clarity of what fraud is in civil cases was given in the judgment of the Supreme Court in Good Shepherd Mission vs Sykes & others [1997-98] 1 GLR 978. Wood JSC (as she then was), defining fraud as pertains in civil case said: D L Mcdonnel and J G Monroe, two distinguished English text writers in their "Treaties on the Law of Fraud" which is found in their invaluable book Kerr on Fraud and Mistake (7th ed), p 1havespelt out whatamounts toor constitutes fraudin the eyes ofthecivil court. They write: [pg 991] "Fraud in the contemplation of a civil court of justice may be said to include properly all acts, omissions, and concealment which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconsent advantage is taken of another. All surprise, trick, cunning, dissembling and other unfair way that is used to cheat anyone is considered as fraud. Fraud in all cases implies a wilful act on the part of any one whereby another is sought to be deprived, by illegal or inequitable meansofwhatis entitled to.” A site plan post-dating an indenture can be a factor in a claim offraud; however, it is not a guarantee. If the site plan is inaccurate or misleading and used to induce anotherpartytoenterinto anagreement,it could be evidence offraud. In the instant suit, the site plan post-dates the indenture. The indenture is dated April 2000, and the site plan is dated 19th July 2000, the plaintiff did not offer any explanation as to the discrepancies. He however under cross examination contradicted his documentation that the site plan even predated the indenture, when clearlythat is not the case. This is what plaintiffsaid under crossexamination: 20 Q.You have told this courtyou were givenan indenture when you purchased the land? A. Yes. Q.And you have exhibited itas ExhibitA? A. It isso. Q.The indenture contains asite plan? A. That isso. Q. Is it your case before this court that the recital which forms the indenture, and the site planwere givento you atthe same time? A. Yes, the site plan was prepared first and after based on that, the indenture was prepared and together given tome. Merely stating the site plan postdates the indenture without any corresponding unfair advantage gained and injury suffered by any unsuspecting party would not amount tofraud inmy opinion. The fraudulent misrepresentation alleged which must be proved beyond reasonable doubt must also be distinctly alleged and distinctly proved as held in the case of Davyv Garret(1877) 7Ch D473at489,CA: “In the Common Law Courts no rule was more clearly settled than that fraud must be distinctly alleged and as distinctly proved, and that it was not allowable to leavefraudto beinferred fromthefacts.”(Emphasis added). The case of Davy v Garret (supra) was cited with approval by the Supreme Court in the case of Republic vs High Court, Accra; Ex Parte Aryeetey [2003-2005] 1 GLR, 537 in which the Supreme Court held that “As a matter of practice and procedure… it is a requirement that a judgment can be impeached on grounds of fraud only by a fresh action where the necessary particulars of the fraud must be distinctly stated in the pleadings. The proponent must not only distinctly specify the alleged fraud, but also strictly prove same because it is not permissible to infer fraud from general situationsor facts.”(Emphasisadded). 21 Therefore, merely claiming that the plaintiff’s site plan postdated his indenture, so thecourt should infer fraudwould not ground anallegationoffraud. I am, however, unable to hold that plaintiff is the registered owner of the disputed landbecause ofthe following: To begin with, no search report was tendered in evidence to confirm that the plaintiff is the registered owner of the disputed land. However, the 4th defendant under cross examination claimed he conducted a search, and the search revealed his portion of the land is registered in the name of plaintiff. The said search was not tenderedin evidence. Surprisingly, per the composite plan, the 4th defendant’s land as claimed on the ground and per his site plan does not fall within the plaintiff’s land per plaintiff’s site plan, rather plaintiff’s land as shown on the ground. Therefore, if plaintiff’s land is registered per his attached site plan, then which site plan was attached to plaintiff’s indenture for registration for which a search revealed 4th defendant’s land falls withinplaintiff’sregistered land? Secondly, the 2nd defendant claims he also conducted a search before purchasing the land and his search did not confirm the plaintiff’s registered interest in the disputed land. The search reportby the 2nddefendant was alsonot tendered in evidence. Thirdly, the 1st defendant also testified that his interest in the land is registered. In fact, he claims his grantor registered his interest in the land in 1994, even before the plaintiff purchased the land in 2000. Again, not to sound repetitive, the plaintiff also did not tender in evidence his search conducted prior to purchase of the land. Counsel for the plaintiff under cross examination of the alluded to the registration of the 1st defendant. This is what was elicited under cross examination of the 1st defendant. Q.The land the subjectmatter of disputedo you knowthe boundaries? A. Yes. Q.Give the courtthe boundaries? 22 A. As far as I know I purchased a land of 6.34 acres from Adu Kofi Djin and the boundaries are as per the site plan attached to the lease dated 20th of September 2011 between Adu Kofi Djin and Real Impact Energy Limited. This was duly executed and registered under E.A 11268,serial No16382011. Q.Can Ilook at the original of the siteplan in yourdeed? A. Yes please. Q. I put it to you that, you were on the land of the plaintiff, and you knew that as a fact that was why you made partpaymentto himin respectof the land? A. No, at the time plaintiff approached me I had a registered document which indicated I was on the land, and I had title to the land... I paid the compensation to stop the interruptions. At the time he cameto me Ihad title tothe land. Q. I put it to you that, the fact that your registration went through does not negate the fact that plaintiffhad prior registration of hisinterestinthe portion you occupied? A. No, my grantor registered his land in 1994 that confirms that plaintiff cannot register same in2004. Q. You agree that we will need the Lands Commission to help resolve the issues between you and plaintiff? A. It isup to the courttodecide. Q. Will you be surprised if I tell you that per the root of title of the plaintiff, the land was registeredlong before Kofi Djinpurported to registerthe landin 1994? A. Icannotallude tothat. Q.What doyou mean by Icannotallude to that? A. What you are asking aboutthe plaintiff’sroot of title. Unfortunately, the plaintiff’s indenture does not provide any evidence of a registeredtitle ofhis grantoras counsel soughttoportray. Further, the plaintiff has indicated on his document, Exhibit A, LVB/ER 687/2004; RE 1402/2004. The 1st defendant also has on his document, Exhibit D, LVB 2633/2011; RE 1822/2011. 23 This courttakesjudicial notice ofthe fact that EasternRegion doesnot have land title registrationand registered indenturesnormallyhave the prefix RE. The question is if the 1st defendant’s grantor purportedly registered his interest in the land in 1994, how did the plaintiff’s purported registration in 2004 go through and further how did the 1st defendant’s purported registration affecting portions of plaintiff’s purportedregistered land in 2011,gothrough? However, though counsel for the plaintiff intimated it was for the Lands Commission to assist resolve this issue, none of the survey instructions requested for the registered details of the disputed land. Further, no search report was tendered by any of the parties to confirm the registered status. Again, the plaintiff’s site plan is notendorsed by theDirectorofSurvey. Therefore, with all these unsolved issues, I cannot hold that the plaintiff is the registeredowner ofthedisputed land. Assuming without admitting plaintiff is the registered owner of the disputed land, the registration of land per se does not by itself render the title of the person in whose name the land has been registered unimpeachable. In the case of Osae vrs Adjeifio [2008-09] I GLR 606, it was decided at holding 5 as follows: “it was settled that the registration of an instrument per se did not confer an unimpeachable title ontheholderoftheregistered instrument”. Pwamang JSC made a similar point in the case of John Kwadwo Bobie vrs 21st Century Construction Co. Ltd. & Others.; Civil Appeal No. J4/5/2014, dated 9th March, 2016, SC (Unreported) thus: “The settled law is that registration of instruments affecting land under the Land Registry Act, 1962 (Act 122) is not guarantee of title of the land where the person who is registered is not the true ownerof theland”. Is the plaintiff, the bona fide owner of the disputed land? We will soon find out. In land suits, the plaintiff is required to establish the root of title, the mode of his acquisition and identity of the land among others. The Supreme Court in the case of 24 Yehans International Ltd. Vrs Martey Tsuru Family and one other [2018] DLSC 2488held: “It is settled thata person claiming titlehastoprove: i) Hisroottitle ii) Modeofacquisitionand iii) Variousactsofpossession exercised overtheland …This can be provided either by traditional evidence or by overt acts of ownership in respect of the land in dispute. A party who relies on a derivative title must provethetitle ofhis grantor. AwukuvrsTetteh [2011] 1SCGLR366”. On his root of title, the plaintiff testified that: “I acquired this piece of land, 14.22 acres in April of the year 2000 from Nii Mankata V a.k.a Edaward Asomaning Mankata, the then head and lawful representative of the Ntikora family of Pampanso near Nsawam for a consideration of Twenty Million cedis (C 20,000,000.00) which is equivalent to Two Thousand Ghana Cedis (GHC 2,000.00) in today’s currency terms. I was issued with an indenture to evidence the transaction. (Attached is the indenture dated 22-04-2000 between NiiMankata V. and myselfmarked as ExhibitA). The plaintiff’s claim that he acquired his land from the Nii Mankata V. ak.a Nii Asomaning Mankata was denied by the defendants, who stated they will put plaintiff tostrict proof. Since the title of the Plaintiff’s grantor was challenged, the Plaintiff had a duty to prove that his grantor had title to the land the subject matter of this suit before he could grant same. He therefore needed the help of his grantor to be able to leap over this hurdle. The Supreme Court in the case of Salomey Shorme Tetteh & Nii Amon Tafo v. Mary Korkor Hayford Substituted By Stella Larbi & Comfort Decker; unreported; Civil Appeal NO: J4/34/2011;22nd February 2012decided; “There is an obligation on a grantor, lessor or owner of land to ensure that any grant he purports to convey to any grantee, or lessee is guaranteed and that he will stand by to defend theinterest so conveyed toanygranteeorlessee …”. 25 Surprisingly, the plaintiff’s grantor’s successor in title opted to testify against the plaintiff and in favourofthe defendants. The 4th defendant called, the successor in title of plaintiff’s grantor, who is the current head of the Ntikora Family. He testified that the plaintiff did not directly purchased land from the Ntikora Family but purchased land at Number One, Teshie Pampanso from two elderly women namely Tsotsoo and Atteh. That his grantors did not have legal documentation and thus went to see Emmanuel A. Mankata who redirected them to Nii Ansah Mankata V (alias Edward Asomaning Mankata) the then Head of the Ntikora family to assist them with the necessary documentation to sell the land, which the latter agreed and provided. That the land given to the defendants are nowhere near the land givento the plaintiffs by these elderly women. The plaintiff’s land given to him for farming is located at Teshie Pampanso, whiles the defendant’s lands are located at Kwafokrom near Nsawam. He concluded his evidence by praying the court to prevent the plaintiff from trespassing onto the landsofthe defendants. Under cross examination of DW1 SAMUEL NII MANKATA by counsel for the plaintiff, this iswhat transpired: Q. You are aware the plaintiff Desmond Duah has various parcels of land in or around the areain dispute,notso? A. DesmondDuah’s landis at Teshie. Q. I put it to you that Desmond Duah has 4 different parcels of land in and around the disputedarea? A. That isnot so. Q. Looking at your entire evidence you admit your family signed document for Desmond Duahin respectof aparcel of land? 26 A. It was 14 acres of land at Teshie, signed by Nii Mankata IV, our chief now deceased. But the land inissuebelong to Tsotsoo and Atteh. Q. So according to your evidence the ownership of Desmond Duah is not in doubt, what is in doubt isthe location? A. Yes, hehas land there. Q.I putitto you that you knownothing about the land the subjectmatter indispute? A. I know the land in dispute, Desmond Duah came to see me to testify for him and that any money Idemand hewill pay, butI refused. Q. If this case is adjourned can you produce the document confirming your case that DesmondDuah bought14.something acres of land at Teshie,signed by your family? A. Yes, I can but I am not well, so if I am unable to come, I will give it to my brother to bring it. Q. Desmond Duah has had a hell of time getting you to testify for him and what he offered you when hecame to you was transportation tocourt? A. That is not true, where he claims his land is, is not that is why I refused to come to court totestify for him.What he offered mewas nottransportation but bribe. One of the principal members of the Ntikora Family, in the person of Ishmael Asamani Macarthy who witnessed the execution of the indenture of the plaintiff’s evidence corroborated the evidence of DW1, that the Ntikora Family did not directly sell the land to plaintiff and further where plaintiff is claiming was sold to him is different from where his family executed an indenture for plaintiff. This is what he said under crossexamination: Q.Take a look at ExhibitA;canyou identify it? A. Yes, Ican. Q.You signedExhibit Anotso? A. Yes. Q.Sowe take itthat ExhibitAis authentic? 27 A. Ican identifymy signature,but the site plan,I am notan expert, and I cannot speakto it. Q.Go to the penultimate paragraph what is the approximate area? A. 14.22 Q.Take a look at the top of the siteplan what is the acreage there? A. 14.22. Q.The facts contained in ExhibitAare correct, not so? A. In the paragraph 4 of Exhibit A, there are boundary names which I do not know of, I know Tsootsoand the sister sold land to him. Q. Between the facts recited in Exhibit A and any other contrary facts which of them would you sayrepresents the truth of what you signedto inExhibitA? A. Icannotattest to other facts. Q.Soyou will prefer the facts inExhibitA, the written document? A. In paragraph 4there are some names mentionedwhich Idonot knowof. Q. It is not in doubt that you signed a land document which Desmond Duah acquired measuring 14.22 acres? A. Yes. It is surprising at after almost 25 years, the Ntikora Family are in court claiming the land they executed documents for the plaintiff does not belong to their family, but they only executed the document out of benevolence. Clearly, if this was done without the knowledge of plaintiff, then, the Ntikora Family perpetuated fraud on theplaintiff. Being a derivative title, the plaintiff ought to prove the title of his grantors and in the instant suit where his grantors are testifying against him, plaintiff faces a very tall order,if notanimpossible task. It regrettable that in this case, the plaintiff’s lease does not give any narration in the recitals of his grantor’s root of title. Further, the plaintiff claimed prior to purchase he conducted a search which revealed the land belonged to the Ntikora Family before purchased. The said search report which would have confirmed the 28 ownership of the Ntikora family and expose any possible collusion between the Ntikora family and the defendants to deny the obvious was never tendered in evidence by theplaintiff. This what the plaintiffsaid under crossexamination: Q.Do you knowthe ownersof the land you have purchased? A. Yes, as I earlier mentioned when I expressed interest in purchasing the land, I conducted a search at the Deeds Registry and the Lands Commission Koforidua, and they all showed the landbelonged tothe Ntikorafamily. Q. Is ityour casethat, atthe timeof purchase, the land was ownedby the Ntikora Family? A. Yes, I had a friend at the Supreme Court who advised that before I buy a land, I have to conduct a search to ascertain the ownership, so I did a thorough search at both the Deeds Registryand the LandsCommission. Q.Is ityour casethat you purchased the land and thus made paymenttothe Ntikora family? A. Yes, I purchased the land from them and paid the money to them as well to the Ntikora familyand this took placeat the chief’s palace. Q.I putitto you that the land does notbelong to the Ntikora family? A. According to the search I conducted at the Deeds Registry and the Lands Commission Koforiduaitall shows the land belonged to the Ntikora Family. Q.I suggesttoyou that; the land belongs to the AsonaFamily? A. That isnot true,per the search Iconducted itbelongs tothe Ntikora Family. In the case of Bousiako Co. Ltd v. Cocoa Marketing Board (1982-83) 2 GLR 824, it was held at page 839 that If a party had in his possession certain documents to establish his case, but fails to produce them, then the proper inference to be drawn is that the document never existed or if it did, it did not contain all the averments mentionedor testified about. 29 Further, the plaintiff who assumed the burden to establish the root of title of his grantors could have called his adjourning boundary neighbours to corroborate his evidence thatthe disputed landbelongedto theNtikora Family The purported principal member of the Ntikora family in the person of Maxwell Gyaben Quaye who plaintiff called as a witness, under cross examination was found wanting. This is what transpired under crossexamination ofPW1. Q.What familydo you belongto? A. Iam from the Akonobeafamily. Q. In paragraph 2 of your witness statement, you have stated that, you belong to the Ntikora familyof which you are a principalmember, I putit toyou that you were nottruthful? A. I am truthful to the court. I have an explanation, the same person who gave birth to Ntikora is the same person who gave birth to Akonobea, and they are from the same parents, soIcan say I am from the Ntikora familyor fromthe AkonobeaFamily. Q. I am putting it to you that contrary to what you are telling the court the Ntikora family is differentfromthe Akonobeafamily? A. That isnot true. Q.Do you knowthe principal membersof the Ntikora family? A. I can mention one who was part of those who sold the land to Mr. Duah, E.A. Mankata aka Ansah Tse, who Icame tomeet. Q.Were you presentduring the said alienation of the land toplaintiff? A. Iwas notpresentbutE.A. Mankata made me aware they have sold the land to Mr. Duah. Q.Can you mentionany landmark on the said land? A. Icannot. Obviously, PW1, is not a principal member of the Ntikora family, because how can one alternate between families and further how can a principal member of a family notknowthe namesofthe otherprincipal membersofthe said family? 30 Gleaned from the evidence on record, I hold that the plaintiff failed to establish that his grantorsarethe ownersofthedisputed land. In the absence of any search report confirming that the plaintiff is the registered owner ofthe disputed land and in the face of possible double registration of portions of the disputed to different individuals and entities, it is established that the portion of land fenced by the 1st defendant is not part of the registered land of the plaintiff. This is grounded in the fact that a larger portion of the wall as shown on the composite plan does not fall within the plaintiff’s land both per his site plan and as shown onthe ground. Also, the plaintiff having failed to prove his title to the disputed land, I further hold that at the time he received the sum of GHC 80,000.00 from the 1st defendant, he had no interest in that portion of land claimed. The 1st defendant is therefore entitled to recoveryofthesaid sum. The 1st defendant however, maintained throughout the trial that he only paid the money to plaintiff for peace to prevail and not to purchase the land from plaintiff as he neveracknowledged plaintiff’s ownership ofthe land. Thus, if the money was paid by the 1st defendant on his own volution for peace to prevail, I do not consider same as a debt to attract interest. The 1st defendant is accordinglyentitled tothe recoveryofhis money without anyinterest. Onthelast issue whetherthe defendantsare trespassersonthe plaintiff’s land. The plaintiff in the instant suit having failed to prove his root of title and his documentation fraught with several unexplained discrepancies, what would have helped resuscitated his case would have been possessory acts exercised over the disputed land. Regrettably, the defendants rather according to the evidence on record arein effectivepossession. 31 In Majolagbe vrs Larbi and others [1959] GLR 190-195, Ollennu J (as he then was) held that: “The law as to trespass is that if a person proves merely that he is in possession of land, that is sufficient to enable him to maintain trespass against anyone who cannot show a better title. Upon that principle, granting for the moment that the case is trespass and nothing more, the onus is upon the plaintiff to prove that he was in possession of the land at the date when he alleged the defendantsentered thereon”. Exhibit A, per the evidence on record was discredited. The question therefore is who isin effective possessionofthe land in dispute? The Plaintiff in his evidence to theCourtstatedthat uponthe acquisition ofthe landindispute he erectedboundary pillarsonthe land. The defendants on the hand testified about various possessory acts exercised over theland. The 1st defendant per the evidence on record has walled the portion of the disputed landhe claims. The 2nd defendant on the other hand testified that upon acquisition of his portion of the land in 2015, he openly occupied and enjoyed peaceful possession, having built a two-bedroom house and commenced a storey building on the land. Exhibits 2D2 series being picturesofthe said houses were tenderedin support. The 3rd defendant also testified that he acquired his portion of the land in 2021 and has built a three-bedroom house on the land. Exhibit 3D1 of the said house was tenderedin evidence. The 4th defendant on the other hand as shown per the composite plan has a dwarf wallonthe portion oflandhe claims It must be noted that though the defendants have not been on the land long enough for an adverse claim to lie, regardless, the Evidence Act, 1975 (NRCD 323) gives statutoryrecognitiontopossessionasamark ofownership. Section 48(1)of the Act 323states:- 32 1)“The things which aperson possesses are presumed to be owned by thatperson. 2) “A person who exercises acts of ownership over property is presumed to be the owner ofit” Aside the bare assertionofthe Plaintiff thatupon theacquisition ofthe disputed land he erected a corner pillar to secure the land, which assertion the defendants denied, saying they acquired the land when it was vacant, the Plaintiff did not lead any cogent evidence to prove that in fact he was in possession of the disputed land. The law is settled thatapersonin possessionoflandhas good title against the whole world exceptone withasuperiortitle. The plaintiff having failed toadduce credible and cogentevidence torebut the presumption of ownership in favour of the defendants, that is, 1st, 2nd, 3rd and 4th defendants to portions of the disputed land, this Court cannot make any declaration forhim asbeing the owner ofthedisputed land. A person who comes to Court, no matter what the claim is must be able to make a case for the court to consider otherwise he fails. However, having succeeded in establishing some case he can take advantage of conflicts, admissions and other weaknesses in the defendant’s case. See the case of Nartey v. Mechanical Lloyds Assembly Plant Ltd. (1987)2GLR 314decided atpage 344. Also, in the case of Edith v. Keelson [2012] 37 MLRG 127 at pages 176-177, their Lordships held: “If the plaintiff in a civil suit, fails to discharge the onus on him and thus completely fails to make a case for the claim for which he seeks relief, then he cannot rely on the weakness in the defendant’s case to ask for relief. If however, hemakes a case which would entitle him to relief if thedefendant offers no evidence, then if the case offered by the defendant when he does give evidence discloses any weakness which tends to support the plaintiff’s claim, then in such a situation the 33 plaintiff is entitled to rely on the weakness of the defendant’s case to strengthen his case”. The burden to be established by a Plaintiff under the law is double-edged. Akamba JA (As he then was) in the case of Kwaku Mensah Gyan & I Or. V. Madam Mary Armah Amangala Buzuma & 4 Ors. (Unreported) Suit No. LS: 794/92 dated 11 March 2005 explained: What is required is credible evidence which must satisfy the two-fold burdens stipulated by our rules of evidence, N.R.C.D. 323. The first is a burden to produce the required evidence and the second, that of persuasion. Section 10 & 11 of N.R.C.D. 323 are the relevant section … This burden is not met merely by tendering the exhibit A in evidence with all its ambiguities, lingering doubts and lack ofexplanation. Since the plaintiff could not lead credible and satisfactory evidence in this case to establish his title and the trespass complained of, he is not entitled to the reliefs he seeks. The plaintiff’sclaim is accordinglydismissed. The plaintiff is ordered to refund to the 1st defendant, the amount of GHC 80,000.00 received fromthe1stdefendant. CostofGHC 20,000.00against theplaintiff infavour ofthedefendants. (SGD) H/HDIANA ADU-ANANE CIRCUIT COURTJUDGE 34