TAABAZUING VRS BOLAMPU (UW/WA/CT/A1/07/2020.) [2024] GHACC 266 (10 June 2024)

IN THE UPPER WEST CIRCUIT HELD AT WA ON MONDAY THE 10TH DAY OF JUNE 2024 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE -------------------------------------------------------------------- SUIT NO. UW/WA/CT/A1/07/2020. DANIEL TAABAZUING …………………………. PLAINTIFF SUING AS HEAD OF THE TAABAZUING FAMILY OF VAPUO-JIRAPA H/NO JR-VA021. VRS ALFRED BOLAMPU …………………………DEFENDANT AS HEAD OF THE BORI-URO FAMILY OF VAPUO-JIRAPA Substituted by Soorongerema B. Atta JUDGMENT Introduction This is a civil suit that begun before the present constitution of this court. The defendant happened to have passed on leading to the substitution of a different Plaintiff who fortunately was a witness for the defendant and being brought on as a defendant, the matter continued with a fresh counsel for the fresh Defendant and trial ended in close to four (4) years since the filling of the suit and this decision is rendered before the fourth anniversary of the suit. It is a matter fought hugely on traditional evidence and the judgment below will painstakingly address the issues and apply the law and evidence for a satisfactory decision. 1 It also worth mentioning that counsel for the defendant attempted ‘arresting this judgment’ when he made an application for the matter to be settled out of court at a point when he was to have filed his address for judgment but instead used the opportunity to make that request. The request however failed because counsel for the Plaintiff responded that he had firm instructions from his client not to yield to a settlement at this point. Reliefs sought by the parties The Plaintiff commenced the action seeking the following reliefs: a. Declaration that Plaintiff family is the owner of ALL that piece or parcel of land being a section or portion of TAABAZUING LAND situated and lying at Vapuo-Jirapa which is bounded as follows: to the south by the Cooperative Society Building, (up to a road behind its southern rear running west to east towards Jirapa new market); to the North by Mango seedlings transplanted by the Plaintiff family as the boundary line with the land Plaintiff family granted to the Defendants; to the East (in part) by a south-to-north footpath marking boundary with Nawong and passing behind uncle Bassey’s house within Plaintiff’s Family land for the other part and to the West (in part) by a parallel south-to-north footpath towards Blackman’s house with the remaining part bordering land plaintiff family gave defendant's family (Borisana). b. An order of perpetual injunction restraining the Defendant, his agents, servants, assigns, or persons claiming through him from interfering in whatever manner with the Plaintiff’s family possession, ownership and use of the disputed land as described above. c. A declaration that the Defendant and his family are caught up by estoppel in pais for denying the title of the Plaintiff Family being their landlord or grantor of the Defendants and for which reason Defendant family stands to lose its land to its landlord being the Plaintiff family. 2 d. Damages for trespass to the land. e. Cost including legal fees The Defendant however counterclaimed praying for the following reliefs: a. A declaration of title in all that piece or parcel of land situate and lying at Vapuo bounded at the East by an un-tarred road separating it from the house of one Bassey, on the North by To-ang Blackman house and on the south and west by undeveloped family lands of Defendant. b. Recovery of possession c. An order of perpetual injunction restraining the plaintiff’s family or their agents, assigns, workmen or any person claiming through them from interfering with Defendant’s family ownership, occupation and development of the land in dispute. d. And any other reliefs as the Honourable Court may deem fit. Issues Set Down for Trial. The court together with counsels agreed on the following for trial: i. Whether or not the Plaintiff family is the owner of ALL that piece or parcel of land being particularized in the description of the land. ii. Whether or not it was Plaintiff’s grandfather who settled the Defendant’s grandfather Borisana at Vapuo on a portion of plaintiff’s family land. iii. Whether or not the Plaintiff’s family are landlords of the Defendant’s family. 3 iv. Whether or not Plaintiff’s family’s ancestor co-granted the land on which the Catholic Church Mission and Church buildings are located? v. Whether or not Plaintiff Plaintiff’s family is the Tendaana of Veveri and Vapuo. vi. Whether or not the Defendant and his family are caught up by estoppel in pais for denying the title of the Plaintiff family being their landlord of the Defendant and his family. vii. Whether or not the Plaintiff’s family made grants of section of Vapuo land to other persons including the Farmers’ Cooperative Society? viii. Whether or not Plaintiff family sometime in 1990 granted a licence to Kundaabie Kpeizagr a member of the Defendant family to farm on a portion of the disputed land to feed his family. ix. Whether or not the Defendant has trespassed unto the Plaintiff’s family land. x. Whether or not plaintiff’s family perpetuated fraud in registering Plaintiff’s family land at Vapuo. xi. Whether or not Defendant is entitled to his counterclaim ADDITIONAL ISSUES The additional issues the Defendant want the court to address are: 1. Whether or not the Defendant’s ancestors were first settlers at Vapuo. 4 2. whether or not the Plaintiff’s family first came to settle at vapuo about 70 years ago as a result of a grant of a portion of the Defendant'’ family land made to Plaintiff’s father by the paternal granduncle of Defendant by name Nankye. 3. Whether or not the Tendaana of Vapuo is usually elected from among members of the Defendant’s family. 4. Whether or not Defendant’s family has exercised any acts of ownership over Vapuo lands since their ancestors acquired same by discovery and settlement. 5. Whether or not the Plaintiff’s family trespassed on the land in dispute and were resisted and chased out by the Defendant’s family. I reckon the tall list of issues and I want to belief each party adopted to have the issues as they are for a reason and I will not disturb the issues formulated though the law is that a court is not bound to consider every conceivable issue arising from the pleadings and the evidence, if in the opinion of the court, few of the issues could legally settle the case in accordance with the law See: Vicentia Mensah V Numo Adjei Kwanko II (128) GMJ 117 GMJ 76 SC Respective cases of the parties Plaintiff’s Case The Plaintiff Daniel Taabazuing testified through his Lawful Attorney his younger brother Martin Tabazuing and went ahead to tendered in evidence the following exhibits: Exhibit A: power of attorney, B:Plan depicting land occupied by plaintiff’s family as family land of plaintiff at Vapuo within the Jirapa Municipality, C: picture of surviving flower planted as a boundary demarcation, D series pictures of dismantled block fence by the Defendant, E: picture of a Mango tree planted by Bassey (a member of Plaintiff’s family) found on the disputed land, F series pictures of a well and a borehole also located within the disputed land, G series documents evidencing grant of a portion of disputed land to Farmer’s Cooperative Society by Plaintiff’s 5 family, also in these series are pictures of a pigsty, a warehouse and grinding mill structure of the Cooperative Society on the land granted to the Society by plaintiff family, H: letter evidencing the reversion of the land earlier granted to the Farmers’ Cooperative Society back to Plaintiff’s family, K series pictures of sand, blocks and stones deposited on disputed land by member of plaintiff family, L series copies of relevant pages of “Great Things happened” a book authored by a renowned missionary credited for planting the Catholic Church in the upper west Region, M series response to request for layout and general layout of vapuo lands and N picture of a grave or burial site of Plaintiff’s father within the larger track of Vapuo land. After Plaintiff’s case was a witness statement in the name of NUOBE KUMASI (PW1), who tendered in evidence exhibit labeled as Exhibit “P” a picture of the earth shrine where PW1 and members of Plaintiff family are seen pouring libation. He equally spoke to how the entire Jirapa has just two tendanbas serving the traditional community over the years and Plaintiff’s grandfather presided over spiritual rites at Vapuo-Veveri at a shrine call “Tantuo Tengan Tie” the same shrine he PW1 currently superintends over. PW2 Kogli –Yir Ponpou a surviving member of the Jirapa Farmers’ Cooperative Society when his evidence was taken at locus because he had become old and frail and could not be brought to court gave evidence that Timothy Taabazuing was the one who pioneered the formation of the cooperative society he was a member and he arranged for the release of the land to the cooperative. He told the court the land was where they built a pigsty and a warehouse where the reared pigs and stored farm produce in a storage on the land that all that while the cooperative had no dealing with anyone with regards to the use of the land but with Plaintiff family. PW3 Kyele Ekuu Languon the Tendana of Veveri and Vapuo who tendered in evidence Exhibit “O” a picture depicting the witness, the plaintiff and a member of their family before the earth shrine of Veveri Vapuo was also emphatic that they have known no Defendant family as part of the tendanbas of the community and as a descendant of Taabe he oversees the shrine “Pari Tengan Tie” and dared Defendant to mention the name of 6 his shrine if he has one. PW3 ended his evidence by rebuking the Defendant when he told him he could not be tendanba when he had no shrine to pour libation to the Gods. By the case of the Plaintiff and the four (4) witnesses Plaintiff closed his case on behalf of his family and the Defendant took to the witness box and gave the following as his case which I will itemize for clarity. Defendant’s case 1. The defendant averred that he is the head of the Boowura/Boosuro-Naa family and that all lands within vapuo falls within his family. 2. As head of family, he claimed that his ancestors by name Boosuro-Naa and Doonyuo acquired vapuo lands by discovery some 600 years ago and therefore became the first settlers of vapuo. 3. Boowura/Boosuro-Naa family being owners of the entire vapuo land has granted portions of the land to other families including the Plaintiff family. 4. The Plaintiff’s family land in vapuo was granted to them by Nankye, who is a son of the Defendant paternal uncle named Ganaa (first chief of Jirapa). 5. That the grant was specifically made to the Plaintiff father who was a catechist from Tizaa Mwofor and has no trace of ancestry to any family in Vapuo before the grant and that Plaintiff father was the first member of the Plaintiff’s family to settle at vapuo some 70 years ago. 6. The Defendant claimed that Jirapa lands were zoned and demarcated only in 2012 and Vapuo lands were labeled as Naayiri/Yiripaala residential area. Therefore, at the time the Plaintiff purportedly registered the land, the entire Jirapa township was not zoned and demarcated into plots. The defendant therefore contends that 7 any purported registration of the plot in issue by the Plaintiff’s family is fraudulent. Evidence of DW1 Obviously, the Defendant made very serious claims against the case of Plaintiff and went ahead to question his very ancestry to being a son of Vapou after which he called Sooongerema B. Atta (Substituted Defendant) as his witness where he also re- emphasized the assertion that Plaintiff family was not an original Vapuo descendant but that of Veveri a further suburb of Jirapa. He told the court it was one Nakye of Zukyiere family who 70 years ago granted a portion of the land to Plaintiff family to settle on and that their portion of the land was opposite Defendant family land separated by a footpath. He ended his evidence when he told the court that the entire land of the Defendant has always been under their possession and control till in the year 2020 when the Plaintiff Attorney trespassed unto the land but was resisted by the Defendant. On the tendanaship of the community, DW1 claims the tendana has always come from Defendant family and the last was one Bavuuloyelle Boosuro-Naa who died in 2019. When DW1 finished his evidence and the case was adjourned to 18/02/23 the icy hands of death took the life of Defendant and processes were filed seeking to substitute the 1st Defendant witness as Defendant for the case to continue. Evidence of DW2 In a few paragraph witness statement, DW2 To-Ang Blackman Kofi who also certainly supported the case that the entire lands belong to Defendant family and barely corroborated the evidence of all Defendant witnesses and counsel got his client’s case closed at this juncture and addresses were ordered ahead of a date for judgment. The general evidential burden on the parties The suit being a civil case, the onus of proof is as set out in Sections 10, 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323) states a party is required by law to win on the balance 8 of probabilities as under Sections 11 (4) and 12 of the Evidence Act, 1975 (NRCD 323). It remains trite that, in civil cases, the burden of proof is on the plaintiff generally especially that defendant has not counter claimed. The provisions of the codification of the common law principle on onus of proof in civil cases as enunciated in Miller v Ministry of Pensions [1947] 2 All ER 372, 374 which was quoted with approval in the case of Nyame v Tarzan Transport [1973] 1 GLR 8, 16, CA it stated: “The degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal, it is not”. See also the Supreme Court cases of Adwubeng Vrs Domfeh [1996-97] SCGLR 660, Affisah vrs. Ansah [2005/06] SCGLR 943 @ 948, holding 7 per Lartey JSC and Brempong II vrs. Amofah & Others [2001/02] SCGLR 177, holding 2 and Kofi Sarpong (Deceased) (Substituted by Nana Kwasi Kodua vs. Franklin Adu Bobi Jantuah [2014] 74 G.M.J. 46 Similarly, Section 17 (2) of the Evidence Act stipulates that “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”. See also YORKWA vrs. ANSAH [1992-93] GBR 278 @ 282 per Brobbey J.A. (as he then was). The party who bears the burden of producing evidence is only required to produce evidence considered to be sufficient on the balance of probabilities to make his case more probable than not. This rule of thumb is enshrined in Section 11(4) of NRCD 323 as follows: “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.” 9 In the case of In Re Ashalley Botwe Lands, Adjetey Agbosu & Ors V Kotey & Ors (supra) it was held by the Supreme Court per Wood JSC (as she then was) at page 444 as follows: “it is trite learning that by the statutory provisions of the Evidence Decree 1975 (NRCD 323) the burden of producing evidence in any given case is not fixed but shifts from party to party at various stages of the trial, depending on the issues asserted and or denied”. The Supreme Court reechoed this view in the case of Sumaila Bielbiel V Adamu Dramani & Attorney General (No.3) (2012) 1 SCGLR 370 at 371-372 as follows: “Ordinarily, the burden of persuasion lies on the same party which bears the burden of producing evidence. However, depending upon the pleadings or what facts are admitted, the evidential burden can move onto a defendant. The cumulation on the defendant of the evidential burden on the issues to be tried in a case can result in the right to open the case shifting to the defendant. For instance, where the burden of producing evidence on every issue in a case lies on the defendant, he or she will have the right to open the case, even if the burden of persuasion remains on the plaintiff”. It therefore follows that; the law sometimes follows the common-sense approach. In that case, the burden of persuasion in producing all facts essential to any claim may lie on the person who is making the claim and in this case the Plaintiff must show course why he beliefs sharing/partitioning the family land is/was a better option to the current status quo of the head of family managing it on behalf of the entire family See: Barkers Woode V Nana Fitz (2007-2008) 2 SCGLR 879 Abbey & Ors V Antwi (2010) SCGLR 17 Enekwa V Kwame Nkrumah University of Science and Technology (2009) SCLGR 242. The situation where Defendant has not counter claimed 10 The Supreme Court in the case of Gbedema V Awoonor Williams (1970) C. C 12 threw some light on the nature of a counterclaim as follows: “a counterclaim is to all intends and purpose an action by the respondent against the applicant. It is an independent and separate actions”. The court relied on the case of Winterfied V Brandnum 3 QBD 324 in which Bret L. J. said at page 326 as follows: “A counterclaim is sometimes a mere set off, sometimes it is in a nature of cross action; sometimes it is in respect of a wholly independent transaction. It is therefore, the plaintiff who generally must prove his case on the preponderance of probabilities. However, where the defendant files a counterclaim, then the same burden of proof would be used in evaluating and assessing his case just as is used to evaluate or assess the case of the plaintiff against the defendant. See: Yeboah V Ahele (2012) 44 GMJ 37 CA. Jass Co. Ltd. & Ors. V Apau & Anor (2009) SCGLR 265 Specific Proof Required in cases of Declaration of title to Land The law remains settled on cases hinging on proof required of a party seeking declaration of title to land. In Amoah VI v Okine and Others (J4/59/2013)[2014] GHASC 122 (15 January 2014) the Supreme Court posited that: “The established principle of law requires the Plaintiff to lead clear evidence as to the identity of the land claimed with the land the subject matter of his suit. The authorities are legion. Bisssah v. Gyampoh [1964] GLR 81; Bedu v, Agbi [1972] 2 GLR 238; Anane v. Donkor [1965] GLR 188; Akoto v. Kavege [1984-86] 2 GLR 365; Nyikplokor v. Agbodotor [1987-88] 1GLR 171; Agyei Osae v. Adjeifio [2007-2008] 499; Jass Co. Ltd v. Appau 2[2009] 2 GLR 365.” Equally as counsel for the Plaintiff cited the case of Tafali Vrs Yakubu (J4/32/2014) [2018] GHASC 28 (09 May 2018) the Supreme Court quoted with approval the ratio it has earlier laid in In Re Ashalley Botwe Lands [2003-2004] SCGLR 420, the Supreme Court in holding 4 held that: 11 “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 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 case of both parties was hugely fought on traditional evidence and I will dwell on what the law on that requires of the courts in the evaluation of evidence of that nature. The courts have held that traditional evidence is evidence derived from tradition or reputation or statements of deceased persons with regard to questions of pedigree, ancient boundaries, roots of title and the like when no living witnesses are available to testify to the matters. In giving traditional testimony, the person narrating such evidence mostly has no personal knowledge about the matters to which he is testifying. The same usually applies to the person who also told the person testifying. Traditional evidence 12 can therefore be said to be strictly hearsay but for the provisions of Section 128 and 129 of the Evidence Act. How then can traditional evidence be tested The problem with traditional evidence is that it is mostly carried down through generations by oral tradition. It is therefore possible for the stories to get distorted as it is passed down from generation to generation. The question we are interested in is that when faced with two conflicting traditional accounts upon which different parties base their case, what test should the Court adopt in selecting among the conflicting traditional evidence as to which one is preferable? The leading case in this area is the case of Adjeibi–Kojo v Bonsie (1957) 3 WALR. The test to be adopted was stated in that case as follows: “The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognized that, in the course of transmission from generation to generation, mistakes may occur without dishonest motives whatever…. The most satisfactory method of testing traditional history is by examining it in the light of such more recent facts as can be established by evidence in order to establish which of two conflicting statements of tradition is more probably correct” In what appeared to be an elaboration of what constitutes traditional evidence, the SC stated in the holding of Hilodjie v George [2005-2006] SCGLR 974 that: “therefore, findings and decisions of courts may appropriately qualify as evidence of facts in living memory. But evidently in land litigation, proven uninterrupted and unchallenged acts of possession, in the absence of some cogent evidence on record to the contrary, as for example, an unreserved acceptance of crucial parts of the other side’s oral history, cannot be ignored or denied the deserved weight, given that in the first place, by the clear provision of S48 of NRCD 323, such acts 13 raise a presumption of ownership”. The SC added that historical accounts from other sources, textbooks accounts included, which are nothing more than a repeat of the disputed or inconclusive traditional evidence already adduced at the trial, ought to attract very minimal weight, and that such matters ought not be preferred to proven acts of effective ownership. Having drawn from the dicta of the superior courts, caution will be exercised in the evaluation of the oral evidence before me but worthy of reviewing are the recent acts of ownership by the parties: Recent acts of ownership of the Plaintiff: 1. Though not very recent the Plaintiff depicted a plan registered at the Lands Registry at Wa in the Upper West Region as N0 UWR45/1977. 2. The Plaintiff claims up till date his family did and continue to be the Tendaanas of Veveri and Vapuo. 3. That Plaintiff family has made grants of portions of its land at Vapuo to several persons or bodies including the Defendant’s grandfather by name Borisana and to the Catholic Missionaries to establish the Catholic Church and its premises at Jirapa. 4. The Plaintiff family has also farmed, possessed and occupied the remaining portion of Plaintiff family land at Vapuo including the disputed land since time immemorial without any protest, interference or adverse claim whatsoever from any quarters until 2011 when the Defendant sent two (2) of his family members to inform plaintiff family that from hence forth Plaintiff family were to desist from farming a section of Plaintiff’s family land being the land in dispute. 14 5. The Plaintiff avers that sometime in 1990 one Kundaabie Kpiezagr a member of the Defendant family led by the Defendant approached the Plaintiff family when he returned from Afram Plains and begged for a portion of the disputed land so that he could farm on it to feed his family, a request the Plaintiff’s family granted but defendant surreptitiously started using the land without even informing the intended beneficiary about the granted request, making the intended beneficiary frustrated and he had to return to the Afram Plains (in frustration). 6. The Plaintiff says that it was after Kundaabie Kpiezagr had returned to Afram Plains that the Defendant as head of his family continued his bad faith of misappropriating a portion of the disputed land granted to Kundaabie Kpiezagr for his personal gain and therefore plaintiff family revoked the license given to Kundaabie Kpiezagr to farm on a portion of the disputed land. 7. The Plaintiff states that having revoked the license given to Kundaabie, the Defendant was asked to leave the land licensed to Kundaabie Kpiezaar but he refused but instead the Defendant rather asked the Plaintiff family not to farm on a portion of the disputed land again which made the plaintiff family to report the conduct of the Defendant to the Jirapa police and the Tendaanas of the place, who summoned both parties, but the Defendant refused to appear before the Tendaanas for a peaceful resolution of the matter. 8. Other documentary prove that Plaintiff tendered into court worth stating are: pictures of dismantled block fence by the Defendant, documents evidencing grant of a portion of disputed land to Farmer’s Cooperative Society by Plaintiff’s family, also in these series are pictures of a pigsty, a warehouse and grinding mill structure of the Cooperative Society on the land granted to the Society by plaintiff family, a letter evidencing the reversion of the land earlier granted to the Farmers’ Cooperative Society back to Plaintiff’s family, K series pictures of sand, blocks 15 and stones deposited on disputed land by member of plaintiff family a picture of a grave or burial site of Plaintiff’s father within the larger track of Vapuo land. Recent acts of ownership of the Defendant: It is worth stating that Defendant made these claims of recent acts of possession without a shred of documentary proof; 1. The defendant claimed that his family has being in possession of the vapuo lands since it acquisitions for over 600 years 2. The defendant averred that his family, the Boowura/Boosuro-Naa family granted a land to the Jirapa farmers’ co-operative through the request of the then Jirapa Naa 3. The defendant claimed that he granted a request to one Bassey from the plaintiff’s family to cultivate the land in dispute but later revoked same 4. Again, a brother of the plaintiff by name Martin also tried to cultivate the said land in dispute by ploughing it without the defendant notice and was subsequently prevented from sowing on the land by the defendant family through the police in 2015. The same martin again tried to exercise ownership in the said land in 2019 by depositing sand on the land and the defendant again warned him off the land. 5. The defendant family has granted plots of vapuo land to several individuals and bodies who are currently occupying the said plots. They include Kulaa, Sunday, Gbiel, Baalera, Timothy, Alhaji and Lariba. Having identified the recent acts of possession it will be instructive to identify where the evidence of the party’s conflict and these are abounded in evidence during trial when both parties almost turned a party’s case against each other and attributed it to each being the first in time to settle on the land. See extracts of these counter accusations; 16 Whereas the Plaintiff says that his ancestor Dagbee was the first person to discover the disputed land and farmed and harvested the economic fruits thereon with a member of Plaintiff’s family by name Robert Gbenaa subsequently settling on the disputed land, the Defendant on the other hand traced his root of title to ancestor Boosuro-Naa and Doonyuo to have acquired the entire vapuo lands some 600 years ago by discovery and subsequent settlement and were the first settlers at vapuo. Again whereas the Plaintiff says that his ancestor Tabee settled the Defendant’s grandfather on a portion of Plaintiff’s family land at Vapuo, the Defendant on the other hand contends that his paternal uncle Nankye was the one who settled the first member of Plaintiff’s family at Vapuo on a portion of Nankye’s land being the father of the plaintiff by name Timothy Taabazuing. Both parties were at it again Plaintiff claimed his family granted portion of Vapuo land to the Farmers’ Cooperative Society with the Defendant making a similar averment that it was rather his family the then chief of Jirapa Yelpoe asked to grant part of Defendant’s family land to the said Cooperative Society. As was rightly put by Adjeibi-Kojo v Bonsie [1957] WLR 1223 cited supra the principle is that where a court is faced with conflicting traditional evidence and there is little to choose between the stories of the parties in such situation, the law is that the court is required to evaluate the conflicting traditional evidence against undisputed evidence of events and acts of ownership in living memory adduced before the court and opt for the version of the traditional evidence that is consistent with the undisputed evidence. The court however remains to be guarded by the case of In Re Taahyen and Asaago Stools; Kumanin II (substituted by) Oppon v Anin [1998-99] SCGLR 399, where the Supreme Court held cautioning as that: - “In assessing rival traditional evidence, the court must not allow itself to be carried away solely by the impressive manner in which one party narrated his 17 version, and how coherent that version is, it must rather examine the events and acts within living memory established by the evidence, paying attention to undisputed acts of ownership and possession on record; and then see which version of the traditional evidence, whether coherent or incoherent, is rendered more probable by the established acts and events. The party whose traditional evidence such established acts and events support or render more probable must succeed unless there exists, on the record of proceedings, a very cogent reason to the contrary”) Having set the stage and espoused the law that the copious traditional evidence should be subjected to, I will present each issue and consolidate a number of issues when appropriate to do to resolve the matters in contention. Issues 1, 2 of Plaintiff and issue 6 of the Additional issues of Defendant appear similar to resolve with similar evidence and case law and I will do justice to these together. Issue 1 borders on Whether or not the Plaintiff family is the owner of ALL that piece or parcel of land being a section or portion of TAABAZUING LAND as described in the schedule WHEREAS Additional issues 1,2 and 6 are: Whether or not the Defendant’s ancestors were first settlers at Vapuo. Whether or not the Plaintiff’s family first came to settle at vapuo about 70 years ago as a result of a grant of a portion of the Defendant'’ family land made to Plaintiff’s father by the paternal granduncle of Defendant by name Nankye and Whether or not the land in dispute belongs to the Defendant’s family respectively. To address the lumped-up issues above, I will agree with both counsel when the both admit in their addresses that the authorities are legion that a party seeking declaration of title to land must be able to establish the identity of his land as well as the boundaries to 18 the land. The Plaintiff in achieving this described the land in dispute in paragraph 7 of the Attorney’s witness statement as follows to be situated and lying at Vapuo-Jirapa which is bounded as follows: to the south by the Cooperative Society Building, (up to a road behind its southern rear running west to east towards Jirapa new market); to the North by Mango seedlings transplanted by the Plaintiff family as the boundary line with the land Plaintiff family granted to the Defendants; to the East (in part) by a south-to- north footpath marking boundary with Nawong and passing behind uncle Bassey’s house within Plaintiff’s Family land for the other part and to the West (in part) by a parallel south-to-north footpath towards Blackman’s house with the remaining part bordering land plaintiff family gave defendant's family (Borisana) and depicted on a plan registered at the Lands Registry at Wa in the Upper West Region as N0 UWR45/1977. This description he went ahead to tender Exhibit “B” series the Plan depicting Plaintiff’s family land at Vapuo and a Search Results from the Lands Commission confirming its existence. In further proof to justify the identity, location and acts of ownership over the disputed land he testified to the following: In paragraphs 8 and 9 of the Attorney’s witness statement plaintiff testified about the planting of some flower plants as boundary features with all dying but one of such surviving which pictures was tendered as Exhibit C. he went ahead to testify about the planting of mango seedlings and alluded to a well and a borehole to have been dug on a portion of the disputed land too. These he got tendered as Exhibit “F” Series. It is a fact that Plaintiff made claims and tendered Exhibits to support his claims but when the Defendant made his case the summary of which was basically that his ancestors by name Boosuro-Naa and Doonyuo acquired vapuo lands by discovery some 600 years ago and therefore became the first settlers of vapuo and that his forebears granted portions of the land to other families including the Plaintiff family which grant was made to them by 19 one Nankye, who is a son of the Defendant paternal uncle named Ganaa (first chief of Jirapa) and that the grant was particularly made to the Plaintiff’s father who was a catechist from Tizaa Mwofor and has no trace of ancestry to any family in Vapuo but was settle at vapuo some 70 years ago by his family. I must state again that these mere claims because no documentary evidence challenged the evidence and proof submitted by plaintiff. Having therefore been faced with this dearth of proof adduced by Plaintiff, I have no option than to glean towards the dictum in Yorkwa vrs Dua (1992 – 93(GBLR 278, CA where it was held that whenever there was in existence a written agreement and conflicting oral evidence over a transaction, the practice in the courts was to lean favorably towards the documentary evidence, especially if it was authentic and the oral evidence conflicting. In resolving issues 2 and 3 of Plaintiff which are: Whether or not it was Plaintiff’s grandfather who settled the Defendant’s grandfather Borisana at Vapuo on a portion of plaintiff’s family land and Whether or not the Plaintiff’s family are landlords of the Defendant’s family. The evidence again was not far fetched when Plaintiff alluded to in his case of demonstrated possession, cultivation and usage of the disputed land. Whereas the Plaintiff says that his ancestor Dagbee was the first person to discover the disputed land and farmed and harvested the economic fruits thereon with a member of Plaintiff’s family by name Robert Gbenaa subsequently settling on the disputed land, the Defendant on the other hand traced his root of title to ancestor Boosuro-Naa and Doonyuo acquired the entire vapuo lands some 600 years ago by discovery and subsequent settlement and were the first settlers at vapuo in the wake of the fact that Plaintiff maintains strongly that his ancestor Tabee even settled the Defendant’s grandfather on a portion of Plaintiff’s family land at Vapuo. This contention the Defendant refutes and introduces another paternal 20 uncle by name Nankye as the one who settled the first member of Plaintiff’s family at Vapuo on a portion of he Nankye’s land. To resolve these two issues will demand a review of the contradictory traditional evidence and use recent acts of possession to determine whose case is more probable than the other. At pages 60 and 61 of the record of proceedings, Plaintiff attacked the claim od Defendant below: Q. In paragraph 6 of your witness statement you claim your ancestors led by Bosorunaa acquired the land 600 years ago? A. That is so. Q. And that Bosorunaa was the first to settle in the land? A. Yes, he was the first settler and the first Tendana. Q. He Bosorunaa was the father of your father? A. That is so. Then at page 61, Q. You will agree with me that your grandfather Bosuronaa could not have lived for over 200 years? A. That time people lived longer and it’s possible he could grow that old. Q. So assuming he acquired the land 200 years ago and you add your 70 years to him, that is close to 300 years? A. You are getting me wrong, I say his great grandparents used the land and he particularly went to settle on the land. He virtually did not discover the land. Bosorunaa’s father took over the land from his ancestors and so the succession is long. Q. So Bosorunaa was not the first to acquire the vapour land, is that your case? A. Yes the land was previously owned by his ancestors. Q. Who was the first tendana of vapour? 21 A. The first Vapou Tendana was Nadowli elder brother called Nohor and Nakye succeeded him. They were all brothers including my father. Q. So Bosorunaa was not the first Tendana of Vapuo? A. No he was not the first tendana it was his senior brother called Nohor. From this discourse, one could see the Defendant abandoning the course he had chatted in his pleadings thus leaving the court to trust the traditional account of the Plaintiff that his forebears led by Tabee was the one who settled and later gave portions of the land to Defendant family to live on. I am strengthened on the stand I take on these two issues because the Supreme Court decision in the case of Hilodjie and another vrs. George (2005 – 2006) SGCR 974 where the court held that in any action, cause or matter, a party who disputes an issue does not simply rest the case on formal denials either made in examination in chief or “put” or suggested to an opponent under cross- examination…….” Defendant therefore must disclose his root of title, incidence of purchase if acquired by sale or tradition of acquisition if inherited and evidence of acts of unchallenged possession. See: Nana Amuah Gyebu XV V Mondial Veeneer Ltd (2011) 32 MLRG 84 SC. Ago Sai & Ors V Kpobi Tetteh Tsuru (2010) SCGLR 762. In resolving issues IV, which is Whether or not Plaintiff’s family’s ancestor co-granted the land on which the Catholic Church Mission and Church buildings are located, issue VII which reads Whether or not the Plaintiff’s family made grants of section of Vapuo land to other persons including the Farmers’ Cooperative Society and issue viii which is Whether or not Plaintiff family sometime in 1990 granted a license to Kundaabie Kpeizagr a member of the Defendant family to farm on a portion of the disputed land to feed his family. These issues are appropriate to deal together because the evidence came in consolidated and it will be appropriate to deal with same together. Earlier in the evaluation of the traditional evidence, I did capture pieces of evidence of both parties alluding to their 22 forebears to have been the first in time but in resolving this issue, both parties are ad idem that a portion of Vapuo land was granted to the Jirapa Farmers’ Cooperative Society. Plaintiff’s called PW2 (Kogli –Yir Ponpou) a surviving member of the very Jirapa Farmers’ Cooperative Society who testified when the court visited him in locus and according to his living memory and corroborated by the case of the Plaintiff he told the court that it was Plaintiff’s father Timothy Taabazuing who granted land as landlord to the Jirapa Farmer’s Cooperative Society for the construction of a warehouse, a pigsty and a grinding mill house. Plaintiff tendered in evidence Exhibit G series being documents evidencing grant of portion of disputed land to the Jirapa Farmer’s Cooperative Society by Plaintiff’s family, pictures of the pigsty, warehouse and grinding mill structure of the Cooperative society on the land granted to the Society by plaintiff family and Exhibit H: letter evidencing return of land granted to Farmers’ Credit Union back to Plaintiff’s family. These pieces of documentary evidence tendered by Plaintiff’s attorney demonstrate recent acts of possession and ownership of the disputed land that this court must not ignore and contrary to Defendant’s claim that it was Jirapa Naa Chief Yelpoe II who asked the Defendant’s family to grant a portion of its land to the Jirapa Farmers’ Cooperative Society, indeed in Exhibit G1 the document evidencing the grant of Vapuo land the said chief of Jirapa Yelpoe II signed Exhibit G1 as the Main witness with Plaintiff’s father Timothy Taabazuing signing as the landlord. The question when faced with this magnitude of evidence will be what better proof can Plaintiff tender than this. I so therefore resolve the issues in the favor of Plaintiff that recent acts demonstrate his family were those who made the grant to the Catholic Church backed by case law when the Supreme Court of Ghana in relying on the guiding principles in Adjei vs Acquah (1991) 1 GLR 13 delivered itself when it stated that: 23 “The law was that although traditional evidence had a part to play in actions for declarations of title, a favourable finding on its evidence was not necessarily essential to the case of either of the party seeking the declaration. What the authorities required was that traditional evidence had to be weighed along with recent facts to see which of the two rival stories appeared more probable. Facts established by matters and events within living memory especially evidence of acts of ownership and possession must take precedence over mere traditional evidence.” The issue V of Plaintiff being Whether or not Plaintiff’s family is the Tendaana of Veveri and Vapuo and the issue 3 of Defendant being Whether or not the Tendaana of Vapuo is usually elected from among members of the Defendant’s family also come in handy to deal with together. On the tendaanaship of Plaintiff family the Defendant admitted during trial to the Plaintiff’s description of the successive list of Tendanas of Vapuo when PW3 in paragraph 17 of his evidence in chief (Witness statement) is correct thereby abandoning his own claim of the successive tendaana’s of Vapour as captured in paragraph 20 of his witness statement. At page 63 of the record of proceedings the following ensued at cross examination of Defendant when counsel for plaintiff took him on: Q. Do you agree with the succession in tendanaship that PW3 listed in paragraph 17 of his witness statement? (Counsel reads the names out). A. I agree, these are my relatives not that of the Plaintiff. Paragraph 17 of the witness statement of PW3 earlier made depositions to the following effect: 24 “I say that in order of succession and ending with me the Tendaanas of Vevri Vapuo are: Dagbee, Tabee-Navoro-Nankye-Dinaa-Nuodong-Gbeb-Kelle-Aan-evulla Dire- Kyel-Yellu- KYELE-EKUU LANGUON. By Defendant categorically admitting to the above assertion of Plaintiff, he has simply abandoned his own claim that he has never held the office as the Acting Tendaana of Vapuo or that Plaintiff’s family does not hold the Tendaanaship of Vapuo. It was aptly stated in In re Asere Stool; Nikoi Olai Amontia iv (substituted by Tafo Amon II) v Akotia Oworsika III (substituted by) Laryea Ayiku III (2005-2006) SCGLR, that the salutary rule of law, namely that: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact by relying on such admission, which is an example of estoppels by conduct.” Also, in IN RE KODIE STOOL; ADOWAA vs. OSEI (1998-99) SCGLR 23, the Supreme Court opined: “it is directed that the assessment of the probability of the correctness of the rival traditional stories must be in two stages as follows: (a) the rival stories must be weighed along the recent acts to ascertain which appears more probable, and (b) the facts established by matters and events within living memory must necessarily take precedence over traditional evidence.” On Plaintiff’s issue VIII which borders on Whether or not Plaintiff family sometime in 1990 granted a license to Kundaabie Kpeizagr a member of the Defendant family to farm on a portion of the disputed land to feed his family. The Plaintiff averred that sometime in 1990 Kundaabie Kpiezagr a member of the Defendant family led by the Defendant himself approached the Plaintiff family when Kundaabie returned from Afram Plains and pleaded with Plaintiff family for a portion of the disputed land so that he could farm to feed his family, a request the Plaintiff’s family granted him but defendant 25 surreptitiously started using the land without even informing the intended beneficiary about the grant made. Defendant went ahead to put impediments on the way of the grantee leading to his return the Afram Plains The Plaintiff claimed further in justification of the malice of Defendant that it was after Kundaabie Kpiezagr had returned to Afram Plains that the he Defendant as head of his family continued in his bad faith of misappropriating a portion of the disputed land granted to Kundaabie Kpiezagr for his personal gain and so the Plaintiff family revoked the license given to Kundaabie Kpiezagr to farm on a portion of the disputed land. That Plaintiff family having revoked the license given to Kundaabie, the Defendant was asked to leave the land earlier leased/licensed to Kundaabie Kpiezaar but he refused. The Plaintiff says that the Defendant rather asked the Plaintiff family not to farm on a portion of the disputed land again which made the plaintiff family to report the conduct of the Defendant to the Jirapa Police and the Tendaanas of the Vapuo, who summoned both parties, but the Defendant refused to appear before the Tendaanas for a peaceful resolution of the matter. Conclusion & Decision By this depth of evidence, Plaintiff family’s claim to be the legitimate owners of the disputed land remains reasonably probable and the Defendant’s counter claim remains unproven and far from proving that Plaintiff’s father was settled by Defendant family at Vapuo years back where the family superintended over the lands at Vapuo. I so hold then that: a- Plaintiff family is the owner of ALL that piece or parcel of land being a section or portion of TAABAZUING LAND situated and lying at Vapuo-Jirapa which is bounded as follows: to the south by the Cooperative Society Building, (up to a road behind its southern rear running west to east towards Jirapa new market); to 26 the North by Mango seedlings transplanted by the Plaintiff family as the boundary line with the land Plaintiff family granted to the Defendants; to the East (in part) by a south-to-north footpath marking boundary with Nawong and passing behind uncle Bassey’s house within Plaintiff’s Family land for the other part and to the West (in part) by a parallel south-to-north footpath towards Blackman’s house with the remaining part bordering land plaintiff family gave defendant's family (Borisana). b- I decree an order of perpetual injunction restraining the Defendant, his agents, servants, assigns, or persons claiming through him from interfering in whatever manner with the Plaintiff’s family possession, ownership and use of the disputed land as described above. c- A declaration that the Defendant and his family are caught by the principle of estoppel in pais will not be reasonable to make and I so deny that relief and will not delve that generational blow to Defendant family. The order is that all lands previously sold by Defendant family should see the grantees atone tenancy to Plaintiff family. d- I refuse to make any others of Damages for trespass to the land though I acknowledge same must have been caused but cost will accommodate such inconveniences. e- Cost of GHC7,000 is awarded the Plaintiff to absorb some of his legal fees incidental to this suit. H/H Jonathan Avogo 27 Circuit Court Judge, Wa 28