Yeboaa v Sidique (A1/02/2023) [2025] GHADC 233 (1 August 2025)

IN THE DISTRICT COURT SITTING AT WAMFIE ON THE 1ST DAY OF AUGUST, 2025 BEFORE HIS WORSHIP EUGENE OBENG- NTIM,ESQ. SUIT NO.:A1/02/2023 JANET YEBOAA ------ PLAINTIFF Kyeremasu. VRS Diman Sidique ------ DEFENDANT Kyeremasu. Plaintiff present Defendant present Plaintiff not represented. Counsel for defendant absent JUDGMENT a) The Plaintiff claims against defendant for a declaration of title and recovery of possession of Plots No. 73 & 74 Block “A”, situate and lying at a place commonly known and called “Kotoko Bonso” a suburb of Kyeremasu. The said plots shares boundary with Plots Nos. 71, 72, 75 and 76 and Kyeremasu Apemkro high way, the plaintiff acquired this plot of land from Kyeremasuhene and his elders and the defendant is making adverse claim. b) Perpetual injunction restraining the Defendant, his agents, assigns, workmen, labourers, privies from having any dealings with the said land as covered by its boundaries. Page 1 of 25 Evidence of Plaintiff and witnesses. Plaintiff filed her witness statement on 17/04/2023 per order of the court. According to plaintiff plot Nos. 73 and 74 Block “A” situate and lying at a place commonly known and called “Kotoko Bonso” a suburb of Kyeremasu is her bonafide property. It used to be a farm land when the Kyeremasu Township had not extended to that area. The farm land in its virgin state was broken by her grandfather the late Nana Kwame Baah who planted cocoa and was assisted by his two wives, Nana Awo and Nana Kooko. When the cocoa withered, he divided the farm land to his two wives. Nana Kooko shared her portion of the farm land among her children namely; Ena Panin, Adwoa Tutuwaa, Adwoa Nsiah, Yaa Kyeremaa, Akosua Adomah and Yaa Nkrumah. Her mother Yaa Kyeremaa is a daughter of Nana Kooko. Her mother farmed on her portion until she became old and aged and handed her portion to her. Plaintiff also farmed on the land till the Kyeremasu Township extended to that area. The chiefs and elders took over the lands including her farm land and demarcated the entire lands into building plots. Her land was marked Plot Nos. 73,74,75,76 and 77, Block “A”. The chiefs and elders gave her two Plots Nos. 73 and 74 Block “A”. The Kyeremasu Chief also issued a plot allocation sheet and an application for a building plot to cover the site plan for authentication. The chief and elders of Kyeremasu also took over Plots Nos. 72, 75 and 76. Plaintiff concluded that after she was issued with a site plan and allocation papers to cover the said plots in dispute, she became convinced that it was a genuine transaction between her and the chief and elders of Kyeremasu. Page 2 of 25 Plaintiff tendered the following Exhibits: i. A site plan covering Plot No. 73 and 74 Block “A” marked Exhibit “A”. ii. Allocation Form from Kyeremasu Plot Allocation Committee Exhibit “B”. iii. Application for building/industrial/livestock plot Exhibit “C”. Plaintiff called one witness, her mother, Yaa Kyeremaa a.k.a Kyeremaa Rose. In her witness statement filed on 21/03/2023, she gave evidence that Plot Nos. 73 and 74 Block “A” situate and lying at a place commonly known and called “Kotoko Bonso” a suburb of Kyeremasu used to be a farm land. Her father Kwame Baah broke the virginity of the land and planted cocoa until they withered. He allowed the farm land to fallow and then shared it among his two wives, Nana Awo and Nana Kooko who farmed it until they passed on. Her mother Nna Kooko also shared her portion of the farm land among her children namely; Ena Panin, Adwoa Tutuwaa, Adwoa Nsiah, Yaa Kyeremaa a.k.a Kyeremaa Rose, Akosua Adomah and Yaa Nkrumah. According to Pw1, she always went to the farm with plaintiff when she was energetic but as a result of old age, she handed over the farm to plaintiff who continued farming without interference. When the Kyeremasu Township extended to that area, the chiefs and elders took over the entire lands of the area including her farm land and demarcated the entire lands into building plots and allocated Plots Nos. 73 and 74 Block “A” to plaintiff who inherited the disputed land from her. Page 3 of 25 She concluded that when she was energetic, she vigorously farmed the land and never met defendant farming on the disputed land, neither did she share a boundary with defendant’s grandparents or parents on the disputed land. The evidence of defendant and witnesses. Defendant filed his witness statement per the order of the court on 9/05/2023. According to defendant the land in dispute is lying and situate at “Kotokobonso” near Kyeremasu on the Dormaa Stool lands and shares boundary with Kwasi Baah, Afia Yeboah, Kwasi Dollar and Kyeremasu-Berekum Road. His great grandfather Opanin Yaw Tawiah cultivated the land in its virgin state and gave it to his daughter by name Maame Akua Badu who is his grandmother. His mother, himself and his witnesses used to farm on the disputed land. In 2005, he went to his uncle Atta Fuseini that he wanted land to open a fitting shop and he went to his grandmother who gave him a vast stretch of land which included the land in dispute. In 2012, his grandmother reduced the transfer of her interest in the disputed land into writing. Then in 2018, he appointed one Anin Daniel of Dormaa Ahenkro as a caretaker of one half of disputed plot while he operated fitting shop on the other half. He planted teaks. When development caught up with the disputed plot, he was in possession of half of the said vast stretch of land. The other half of the stretch of land was demarcated by the Town and Country Planner, out of which his family received three plots out of the 9 plots demarcated. When the Kyeremasu Town and Country Planners were demarcating the half of which he was in possession, there was a litigation pending in this court titled Kwasi Baah vrs Alaji Abu and Another which was amicably settled. Page 4 of 25 Plaintiff was aware of the pendency of the suit but never joined as a party but she was a witness for Kwasi Baah. Defendant concluded that it was during the pendency of the suit that plaintiff unlawfully demarcated the disputed land with the Kyeremasu Town and Country Planners knowing very well that the land does not belong to her and that plaintiff has no right of claim in the land in dispute since she has no right whether legal or equitable to claim in the subject matter of the suit. Defendant tendered the following as exhibits. i. A site plan marked Exhibit “1”. ii. A purported transfer of land from Maame Akua Badu to Abubakari Sadick marked Exhibit “2”. iii. A purported mutual agreement between Liman Sidick and Anin Daniel marked Exhibit “3”. iv. An alleged Writ of Summons from the Circuit Court, Dormaa Ahenkro Exhibit “4”. v. Purported terms of settlement marked Exhibit “5”. Defendant called two witnesses. The first witness Atta Fuseini, the uncle of defendant in his witness statement stated that he knows the land in dispute which is situate at Kotokobonso and shares common boundary with Kwasi Baah, Afia Yeboah, Kwasi Dollar and Kyeremasu-Berekum Road. It belongs to defendant and that it was originally acquired by his late grandfather Yaw Tawiah and became the property of his mother after his death who cultivated the land with the twin sister of Dw1 Attaa Ama. Page 5 of 25 In or about 1985, he was given the disputed land by his twin sister to cultivate and it remained in his possession till 2005 when defendant informed him he needed some portion to operate his fitting shop. He communicated with his mother and she gifted the disputed land to defendant in the presence of credible witnesses, including Agya Thomas, Dw1 and his siblings. Defendant has been in possession of the disputed land and plaintiff did not claim ownership or seen on the disputed land while in his possession. He concluded that Kwasi Baah issued a writ against Diman Sidique, defendant and his father in Wamfie District Court in which plaintiff was a witness for Kwasi Baah but the matter was amicably settled. Dw2, Thomas Adomah alias Big Mallam stated in his witness statement that the land in dispute is situate at Kotokobonso and shares boundary with Kwasi Baah, Afia Yeboah, Kwasi Dollar and Kyeremasu-Berekum Road. It was a farm land but has been demarcated into building plots. It was gifted to his late mother Akua Badu by Opanin Yaw Tawiah. She farmed on it till old and handed it over to her daughter Ataa Panin who also farmed it for so many years with no interference from anybody. In 1985, Atta Fuseini, the twin brother of Ataa Panin, showed interest in farming and same was handed over to him and he farmed the disputed land without any interference from anybody. In the year 2005, his late mother gifted the land in dispute to defendant in the presence of Dw2, Atta Fuseini and Ataa Panin and same was reduced into writing. Page 6 of 25 Defendant has been in possession of the disputed land ever since it was gifted to him without any disturbances from any person until now. That he never saw plaintiff on the disputed land since his childhood and she has never claimed ownership. Defendant has been operating a fitting shop since the land was gifted to him. He concluded that some years ago, one Kwasi Baah issued a writ in respect of the disputed land in dispute against Diman Sidique in Wamfie District court where plaintiff was a witness for Kwasi Baah but the matter was amicably settled. Issue for determination Based on the evidence, the following issues are set out for determination: i. Whether or not the present action is caught by estoppel res judicata. ii. Whether or not plaintiff is entitled to a declaration of title and recovery of possession of Plots No. 73 & 74 Block “A”, situate and lying at a place commonly known and called “Kotoko Bonso” a suburb of Kyeremasu. iii. Whether or not plaintiff is entitled to perpetual injunction Perpetual injunction restraining the Defendant, his agents, assigns, workmen, labourers, privies from having any dealings with the said land as covered by its boundaries. Page 7 of 25 Applicable laws and cases. Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323) also provides as follows: ‘(1) for the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid ruling on the issue against that party. (4) In the other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that all the evidence a reasonable mind could conclude that the existence of the fact was more probable that its non-existence’ Further, section 14 of the Evidence Act, 1975 (NRCD 323) states as follows: 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 is essential to the claim or defence he is ascertain. Proof in civil proceedings is established by the principle of the preponderance of probabilities or balance of probabilities. Section 12(2) provides that except as otherwise provided by law the burden of persuasion requires proof by preponderance of probabilities. The Supreme Court in the case of Odonkor and others v Amartei GBR 1993-94 VOL 1 held that: the Evidence Decree 1975 (NRCD 323) sections 11(4) and 12 provided that in all civil cases judgment might be given in favour of a party on the preponderance of probabilities. Page 8 of 25 This position is supported by the Supreme Court of Adwubeng v. Domfeh [1997-98] 1 GLR 282 per Ampiah, JSC at p.295 sections 11(4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities-no except-ions are made. What is required by the court, under normal circumstances, is to evaluate the evidence of the parties, including their witnesses, and draw conclusion that, on the preponderance or balance of probabilities, the court is inclined to accept the evidence of one party relative to that of the other party. The present action is for a declaration of title to land, among other ancillary reliefs. There have been previous judicial decisions requiring a party seeking a declaration of title to land to succeed based on his claim and not to rely on the weakness of the evidence of the opponent. In essence, the burden of proof to title to land by a party in a civil action was proof beyond reasonable doubt, which was akin to proof in criminal trials. This position is no longer good law in view of the Evidence Act. This position was emphasised in the case of Adwubeng v. Domfeh (supra) where the court stated that: In the light of NRCD 323 therefore the cases which hold that proof of title to land required proof beyond reasonable doubt, no longer represent the present state of the law. Page 9 of 25 Issue 1 Whether or not the present action is caught by estoppel res judicata. Estoppel res judicata is a defence available to a defendant. If an action be brought, and the merits have been determined between the parties, and a final judgment obtained, the parties are concluded, and cannot commence a fresh action involving the same subject matter and parties. There have been numerous judicial decisions on the principle of estoppel per res judicata. Thus in the Supreme Court case of Ababio And Others v. Karikari And Another [2001-2002] 1 GLR 381 Ampiah JSC at p.401 stated 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 by 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 be brought, and the merits of the question be dismissed between the parties, and a final judgment obtained by either, the parties are concluded, and cannot canvas the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial which would have led to a different judgment. Similarly, in Nyame v. Kese Alias Konto [1999-2000] 1 GLR 236 Acquah JSC at p.241 stated that: the plea of res judicata is never a technical plea. It is part of our received law by which a final judgment rendered by a judicial tribunal of competent jurisdiction on the merits, is conclusive as to the rights of Page 10 of 25 the parties and their privies and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. In Spencer-Bower and Turner’s book, Res Judicata (2nd ed) at p 9, para 9, the plea is explained thus: “Where a final decision has been pronounced by a ... a judicial tribunal of competent jurisdiction over the parties to, and the subject matter of the litigation, any party or privy to such litigation, as against any other party or privy thereto ... is estopped in any subsequent litigation from disputing or questioning such decision on the merits whether it be used as the foundation of an action or relied upon as a bar to any claim.” Based on the cases referred to supra and others, a party raising a defence in an action by alleging the principle of estoppel res judicata, must established that: a. The parties are the same b. The subject matter is the same c. The issues are the same d. The issues determined are the same issues that are before the present court. Defendant rightly pleaded estoppel by alleging at paragraph 13 of his statement of defence that a matter arose in respect of the same case before the honourable court in the case of Kwasi Baah vrs Alhajii Abuu and Another and the matter was amicably settled and terms of settlement was file on 30th Day of May, 2022. He further alleged at paragraph 16 that plaintiff was aware of pendency of the earlier suit and did not join and that plaintiff is estopped from initiating the present suit. Defendant then set out the particulars of estoppel at paragraph 18 as follows: Page 11 of 25 a) The plaintiff was aware of pendency of the suit mentioned in paragraph 13. b) Plaintiff in this suit failed to apply to be joined to the suit. c) Plaintiff was even a witness for the plaintiff (Kwasi Baah) in the suit. d) The plaintiff slept on her right. Defendant supported his allegation of estoppel in his defence by leading evidence that there was a litigation pending in this court titled Kwasi Baah vrs Alaji Abu and Another which was amicably settled. Plaintiff was aware of the pendency of the suit but never joined as a party but she was a witness for Kwasi Baah. Defendant thereafter tendered the following exhibits in support. First, an alleged Writ of Summons from the Circuit Court, Dormaa Ahenkro Exhibit “4”. The writ was filed at the Circuit Court, Dormaa Ahenkro and not this court. Plaintiff therein was seeking to enforce an alleged arbitration award against defendants Alhaji Abuu and Imann Sidique. Plaintiff herein is mentioned as sharing boundary with Kwasi Baah, the plaintiff therein and not a party to that suit. Second, the purported terms of settlement marked Exhibit “5”. It relates to settlement filed before this court on 30th May, 2022 involving the parties in the writ of summons filed at the Circuit Court, Dormaa Ahenkro. Plaintiff was not a party to the terms of settlement. Page 12 of 25 Plaintiff however confirmed, under cross examination by counsel for defendant, the existence of an action by Kwasi Baah to enforce an arbitration award from the Palace of the Queen mother of Dormaa and acting as a witness for Kwasi Baah. For the sake of emphasis, the court will refer to portions of the cross examination of plaintiff by counsel for defendant. Ques: You agree with me that the said Kwasi Baah sued the defendant and others in respect of the same land in issue in this court. Ans: That is true. Ques: Based on that suit the terms of settlement was filed in favour of the defendant. Ans: I am not aware. Ques: I put it to you that it was because the land did not belong to you that is why you did not join the suit. Ans: I am not aware of it. Kwasi Baah and the defendant had a dispute at the palace of the Queen mother of Dormaa. Defendant lost and the fine imposed was not paid. This is what came to the court. I was a witness in that complainant for Kwasi Baah. Ques: Since you were a witness you were aware of that matter pending in the court. Ans: I was aware of the fact that the matter came to court because defendant did not pay the fine. Ques: What were you witnessing since you said you were a witness at the Queen mother’s palace at Dormaa. Page 13 of 25 Ans: Kwasi Baas shared a boundary with me and he nominated me as a witness. Ques: It was the land you share boundary with Kwasi Baah that defendant brought to this court Ans: Yes. It is the land of Kwasi Baah. Ques: I am putting it to you that it is the same land that you have brought to this court. Ans: Not true. It appears from the evidence, including the cross examination referred supra, that there were two actions involving Kwasi Baah and Alhaji Abuu and Imman Sidique. The one at the Circuit Court, Dormaa Ahenkro, Exhibit “4”, relating to the enforcement of an arbitration award. Then that in this court resulting in the filing of the terms of settlement, Exhibit “5”. Plaintiff herein in Exhibit “4” shares boundary with the Kwasi Baah and based on the cross examination referred above, she confirmed same. Again, the cross examination established that she was a witness at the arbitration at the palace of the Queen mother of Dormaa for Kwasi Baah. Exhibits “4” and “5” tendered by defendant do not confirmed the allegation of defendant that plaintiff was a witness for Kwasi Baah in an action involving him as plaintiff and Alhaji Abuu and Imman Sidique as defendants. Based on the above, the court finds the following facts: i. plaintiff was not a party to the arbitration involving Kwasi Baah and Alhaji Abuu and Imman Sidique at the palace of the Queen mother of Dormaa but a witness for Kwasi Baah. Page 14 of 25 ii. She was also not a party to the action between Kwasi Baah and Alhaji Abuu and Imman Sidique at the Circuit Court Dormaa relating to the enforcement of the arbitration award, Exhibit “4”. iii. she was not a party to the action in this court involving Kwasi Baah and Alhaji Abuu and Imman Sidique culminating in the filing of the perms of settlement, Exhibit “5”. iv. plaintiff has a separate land and shares boundary with Kwasi Baah who was involved in the arbitration, the enforcement at the Circuit Court, Dormaa and the terms of settlement in this circuit with Alhaji Abuu and Imman Sidique. Defendant, in order to succeed with a defence of estoppel per res judicata based on the judicial decisions referred above, must establish by evidence that plaintiff was a party to the arbitration proceedings at the palace of the Queen mother of Dormaa, the Writ of summons at the Circuit Court, Dormaa Ahenkro and the action at this court culminating in the filing of the terms of settlement. That the subject matter being the land in dispute and the issues raised in those fora are the same as those being determined in this present action. That the merits of those actions were determined. Since the court has made findings of facts that plaintiff was not a party to any of the proceedings at the palace of the Dormaa Queen mother, the writ of summons at the Circuit Court Dormaa Ahenkro and the terms of settlement in this court but a witness for Kwasi Baah and has a separate land but shares a boundary with him, the defence of estoppel res judicata raised by defendant cannot be sustained. Page 15 of 25 Issue 2 Whether or not plaintiff is entitled to a declaration of title and recovery of possession of Plots No. 73 & 74 Block “A”, situate and lying at a place commonly known and called “Kotoko Bonso” a suburb of Kyeremasu. Issue 3 Whether or not plaintiff is entitled to perpetual injunction Perpetual injunction restraining the Defendant, his agents, assigns, workmen, labourers, privies from having any dealings with the said land as covered by its boundaries. The parties led evidence based on the historical acquisition of the land in issue by their respective relatives. Such evidence is known as traditional evidence. Judicial decisions have provided a test for the evaluation of such evidence. Thus, in the case of Djangmah vrs Dorkutso Anor (J2/01/2024) 2024 GHASC 46 dated 30 October 2024, the Supreme Court per Ackah-Yensu, JSC had this to say at p.3 There is a tall list of judicial guidance on the proper approach to the evaluation of conflicting traditional evidence. The test has always been, and continues to be, that the same should be resolved by examining the conflict in the light of such recent facts as established by the evidence adduced by the parties. His Lordship then proceeded to state the locus classicus with respect to traditional evidence by the Privy Council in the case of Adjeibi-Kojo v Bonsie [1957] 3 WALR 257, per Lord Denning as follows: “[T]he dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. Page 16 of 25 In this regard it must be recognized that, in the course of 4 transmission from generation to generation, mistakes may occur without dishonest motives whatsoever…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.” The above principle has been accepted and applied in various decisions requiring the evaluation of conflicting traditional evidence in our legal system, including the case of In Re Taahyen & Asaago Stools; Kumanin II v Anin [1998-99] SCGLR 399. The Supreme Court per Kpegah JSC pronounced as follows at p 417. “To sum up, in assessing rival traditional evidence the court must now allow itself to be carried away solely by the impressive manner in which one party narrated his version and how coherent that version is; it must rather examine the events and acts within living memory established by the evidence paying particular attention to undisputed acts of ownership and possession on record; and then to see which version of the traditional evidence, whether coherent or incoherent, is rendered more probable by the established acts and events; and finally, 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.” Similarly, in the Supreme Court case of Adjei v. Acquah And Others [1991] 1 GLR 13, Wiredu J.S.C. at p.29-30 stated that: Page 17 of 25 I do not think the guidelines laid down in Dua III v. Tandoh (supra) and Adjeibi-Kojo v. Bonsie (1957) 3 W.A.L.R. 257 are to the effect that for a plaintiff to succeed his traditional story must be accepted as proved. This is not a sine qua non to succeeding: see Ebu v. Ababio (1956) 2 W.A.L.R. 55. What the authorities require is that such stories must be weighed along with recent facts as acts of exercise of rights of ownership to see which of the two rival stories appears more probable. Facts established by matters and events within living memory, especially evidence of acts of exercise of ownership and possession, must take precedence over mere traditional evidence. His Lordship concluded thus: It is now well settled law that where the whole evidence in a case is conflicting and confusing and there is little to choose between the two rival traditional stories, possession and evidence of recent exercise of acts of ownership should be the best guide to determining title. The court would therefore evaluate the conflicting stories of the parties in the light of such recent facts such as ownership and possession of the plots in dispute and draw a conclusion, on the preponderance of probabilities per sections 11(4) and 12 of the Evidence Act, that the story of a party is more probable than the other. The parties traced their root of title by leading evidence of the acquisition of the land in issue by their fore bearers. Page 18 of 25 The plaintiff, in tracing the history of acquisition gave evidence that the farm land in its virgin state was broken by her grandfather the late Nana Kwame Baah who planted cocoa and was assisted by his two wives, Nana Awo and Nana Kooko. When the cocoa withered, he divided the farm land for his two wives. Nana Kooko shared her portion of the farm land among her children namely; Ena Panin, Adwoa Tutuwaa, Adwoa Nsiah, Yaa Kyeremaa, Akosua Adomah and Yaa Nkrumah. Her mother Yaa Kyeremaa is a daughter of Nana Kooko. She farmed on her portion until she became old and handed her portion to her and she also farmed on the land till the Kyeremasu Township extended to that area. He called her mother, Pw1, Yaa Nkrumah who confirmed her story about the acquisition by her father. Defendant while tracing the history of acquisition of the land in issue gave evidence that his great grandfather Opanin Yaw Tawiah cultivated the land in its virgin state and gave it to his daughter by name Maame Akua Badu who is his grandmother. He, his mother, Ataa Ama and Atta Fuseini used to farm on the disputed land. In 2005, he went to his uncle Atta Fuseini that he wanted land to open a fitting shop and he sent him to his grandmother who gave him a vast stretch of land which included the land in dispute. In 2012, his grandmother reduced the transfer of her interest in the disputed land into writing. His witnesses confirmed his story. Parties have referred to their boundary owners in the pleadings and witness statement, particularly Kwasi Baah, but did not call him to testify. Plaintiff under cross examination by counsel for defendant maintained she shares boundary with Kwasi Baah. Page 19 of 25 Defendant under cross examination by plaintiff not only denied that plaintiff has land at the place where the land in dispute is situate but also that he does not share boundary with her. That he shares boundary with Kwasi Baah. However, Defendant’s own Exhibit “4”, which is a writ of summons for enforcement of arbitration award by Kwasi Baah against defendant herein and one Alhaji, reveals that Kwasi Baah shares boundary with plaintiff herein. The said Exhibit “4” of defendant not only confirms that plaintiff has land but that she shares boundary with Kwasi Baah who coincidentally shares boundary with defendant. The court therefore rejects the assertion of defendant that plaintiff does not possess land in the disputed land and find as a fact that plaintiff has land at where the land in dispute is situate. Parties called their relatives to support their evidence. The courts are generally cautious with such evidence and this court is no exception. Therefore where an exhibit tendered, particularly by a party supports the evidence of the other party, the court would be inclined to accept the evidence of that other party. Since Exhibit “4” of defendant corroborates plaintiff’s evidence that she shares boundary with Kwasi Baah who has no relation with the parties, the court is inclined to accept the evidence of plaintiff. Consequently, the court would accept the traditional evidence of Plaintiff compared to that of defendant as it relates to the historical acquisition of the land in dispute by their fore-bearers. Page 20 of 25 The court would now examine acts or exercise of ownership and possession by the parties in recent times. In addressing the vital aspect of traditional evidence, it is important for the court to refer to the customary law relating to land acquisition within the jurisdiction. Lands are vested in stools and therefore alienation of such lands within the jurisdiction is vested in the chief of that town. Indeed alienation of land by chiefs has received judicial endorsement in several cases. For instance, in the Supreme Court case of Appiah-Nkyi v Nana Achina Nuamah [2017-2018] 2 SCLRG 679, Pwamang, JSC at page 683 stated that: “according to Ollennu, in the book Principles of Customary Land Law in Ghana, 1962 at page 127, the one indispensable person in the alienation of stool or skin land is the occupant of the stool or skin. This is because the occupant of the stool is considered the embodiment of all his subjects and the custodian of the land which is considered to belong to the dead, the living who are few and the countless numbers yet unborn. Therefore, any dealing with the land which is adverse to the interest of the stool as a whole is not countenanced at all”. His Lordship Continued that: The law is therefore well settled that for a grant of stool land to be valid, the appropriate body of persons made up to the occupant of the stool and his principles councilors must grant it It is the practice within the jurisdiction of this court that land for development are allocated by the chief through the Plot Allocation Committees of the various towns. Page 21 of 25 Allottees are issued with what is called an allocation paper or form stating the number of plots and their numbers. According to Plaintiff when Kyeremasu Township extended to that area she farmed, the chiefs and elders took over the lands including her farm land and demarcated the entire lands into building plots. Her land was marked Plot Nos. 73,74,75,76 and 77, Block “A”. The chief and elders gave her two Plots, Nos. 73 and 74 Block “A” and took over Plots Nos. 72, 75 and 76. The Kyeremasu Chief also issued a plot allocation form and an application for a building plot to cover the site plan for authentication. Plaintiff tendered Exhibit “A”, the site plan covering Plot Nos. 73 and 74 Block “A”, Exhibit “C” an application for building/industrial/livestock plot and Exhibit “B” an allocation Form from Kyeremasu Plot Allocation Committee. Defendant on his part gave evidence that when development caught up with the disputed plot, he was in possession of half of the said vast stretch of land. The other half of the stretch of land was demarcated by the Town and Country Planner, out of which his family received three plots out of the 9 plots demarcated. Defendant did not tender any document indicating that his family received three plots. He however tendered a site plan, Exhibit “1” which was prepared at the instance of his grandmother. He also tendered Exhibit “2”, a transfer of ownership from his grandmother to defendant. The document purports to transfer one acre of land to defendant. A careful examination of the site plan tendered by plaintiff reveals that it was endorsed by the Chief of Kyeremasu, Nana Owusu Aduamire Amponsah and Acting District Planning Officer of the Dormaa East District Assembly. Page 22 of 25 The allocation form from the Kyeremasu Plot Allocation committee was also endorsed by Chief of Kyeremasu Nana Owusu Aduamire Amponsah. The endorsed exhibits relate to the allocation of Plots Nos. 73 and 74 to plaintiff. The court can safely state that these documents, which were not challenged by defendant, are proof of alienation by the Chief of Kyeremasu of Plots Nos. 73 and 74 to plaintiff according to customary law pertaining within the jurisdiction of this court. The court has earlier stated that the alienation of land for development within the jurisdiction is effected by the stool. There the preparation of a site plan by grandmother of defendant and the transfer of ownership of land to him, without allocation being made by the chief of Kyeremasu, did not confer title of the land in dispute on defendant. Exhibits “1” and “2” at best are self-serving to defendant’s claim to the land in dispute and cannot impeach the title obtained by plaintiff from the chief of Kyeremasu through the Kyeremasu Plot Allocation committee and the Physical Planning Department of the Dormaa East district Assembly. Application of the law. The court, after evaluating the conflicting traditional evidence of parties regarding the acquisition of Plot No. 73 and 74 Block “A” and in the light of such recent acts of ownership and possession of the land in dispute by plaintiff by obtaining a valid grant from the Chief of Kyeremasu, will conclude that, on the preponderance of probabilities per sections 11(4) and 12 of the Evidence Act, the evidence of plaintiff is more probable than that of defendant. Plaintiff shall, therefore, be entitled to a declaration of title to the disputed Plot Nos. 73 and 74 Block “A”. Page 23 of 25 Issue 1 Whether or not the present action is caught by estoppel res judicata. Defendant failed to prove that the present action by plaintiff and him is caught by estoppel res judicata. His defence cannot be sustained and is hereby dismissed. Issue 2 Whether or not plaintiff is entitled to a declaration of title and recovery of possession of Plots No. 73 & 74 Block “A”, situate and lying at a place commonly known and called “Kotoko Bonso” a suburb of Kyeremasu. The court, having accepted the traditional evidence of plaintiff regarding the acquisition of the disputed Plots No. 73 & 74 Block “A” and in the light of her recent acts of ownership and possession, will hold that plaintiff is entitled to a declaration of title and recovery of possession of Plots No. 73 & 74 Block “A”, situate and lying at a place commonly known and called “Kotoko Bonso” a suburb of Kyeremasu. Issue 3 Whether or not plaintiff is entitled to perpetual injunction Perpetual injunction restraining the Defendant, his agents, assigns, workmen, labourers, privies from having any dealings with the said land as covered by its boundaries. The court, having declared title to and recovery of Plots No. 73 & 74 Block “A”, situate and lying at a place commonly known and called “Kotoko Bonso” a suburb of Kyeremasu, plaintiff shall be entitled to perpetual injunction. Page 24 of 25 There court hereby orders perpetual injunction against defendant restraining him, his agents, assigns, workmen, labourers, privies from having any dealings with the said land as covered by its boundaries. The award of cost The Plaintiff did not pray for cost as one of her reliefs. Nevertheless, since the award of cost is at the discretion of the court, the court shall exercise its discretion by awarding Plaintiff cost. Plaintiff shall be entitled to cost of GH¢ 2,000.00 each against defendant. All the reliefs sought by plaintiff are granted with cost. Eugene Obeng-Ntim (District Magistrate) Page 25 of 25