ABOEKA VRS WUMBEI (NR/DC/KPA/A1/8/2024) [2024] GHADC 551 (19 December 2024)

IN THE DISTRICT COURT SITTING AT WULENSI IN THE NORTHERN REGION OF THE REPUBLIC OF GHANA ON 19TH DECEMBER, 2024 BEFORE HIS WORSHIP GODSON ETSE KUMADO, ESQ.- THE DISTRICT MAGISTRATE SUIT NO: NR/DC/KPA/A1/8/2024 KWAME ABOEKA ] (HEAD OF FAMILY) ] PLAINTIFF SUING ON HIS OWN BEHALF AND ] ON BEHALF OF KWAME FAMILY OF KPANDAI ] VRS NYANJAH WUMBEI ] OF KPANDAI ] DEFENDANT _________________________________________________________________ JUDGMENT _________________________________________________________________ INTRODUCTION By his amended writ of summons filed on 8/5/24 the Plaintiff claims the following reliefs against the Defendant: 1. A declaration of title and ownership of a building plot of about 60 by 60 feet, lying and situated at the Western part of Kpandai along the Kpandai – Salaga road and bounded to the East by my late brother’s land Kwame Baba; to the south by Kinyinkide’s house; to the Western side is bounded by the Kpandai – Salaga road and to the North by Bakianisu Ntanso’s house. Page 1 of 20 2. Recovery of the said building plot measuring about 60 by 60 feet that the Defendant has encroached on and also claiming ownership of. 3. Damages for trespass on the said plot. 4. An order of interlocutory [perpetual] injunction restraining the defendant, his agents, representatives and their workmen from interfering with the Plaintiff and his family’s enjoyment of the said building plot. 5. Cost of trial 6. Any other order that the court may deem fit. The Defendant on his appearance before the court upon service of the Plaintiff’s writ on him pleaded not liable to all the reliefs claimed against him by the Plaintiff hence the matter proceeded to trial. THE CASE AND EVIDENCE OF THE PLAINTIFF The case of the Plaintiff, by the summary of subject matter of claim attached to his writ and his witness statement, is that sometime in the year 1998 his father, the late Bakianisu Kwame leased one plot of land to the Defendant for a temporary use. According to him the chief of Balai at the time, Nana Obimpe Mbimadong requested that his father invite his kinsmen to witness the grant of the land to the Defendant. Thereafter the chief sent some of the members of the community to go and demarcate the land for the Defendant. According to the Plaintiff, in the year 2014 the Defendant encroached onto his land and planted some flowers on his land. When he confronted the Defendant he said the flowers were to show the demarcation of his land. He subsequently met the Defendant clearing the land and when confronted, he said he was only clearing the land. In the year 2023 however, the Defendant went on to erect a shed on the land and he is currently developing the land hence the instant action. Page 2 of 20 The Plaintiff testified by himself and called six (6) other witnesses to testify in support of his case. The respective testimonies of these witnesses will be evaluated shortly in this judgment. THE CASE AND EVIDENCE OF THE DEFENDANT As indicated earlier, the Defendant pleaded not liable to the reliefs claimed against him by the Plaintiff. The Defendant testified by his lawful attorney and stated that he approached the father of the Plaintiff who was his best friend for land to put up his dwelling house. The father of the Plaintiff told him he has some plots of lands available and led him to the chief of Balai at the time, Nana Obimpe Mbimadong. The chief then instructed PW2, Bakapu Rueben to go and demarcate the land for him but he could not do so due to ill-health. The Plaintiff’s father then demarcated the land for him and he gave kola in return to show his appreciation for the grant of the land. According to the Defendant, land was not for sale at the time. All one needed to do was to seek the consent of the land owner which he did through the Plaintiff’s father. Libation was then made by the chief before he built his house. The Defendant says no community member demarcated the land for him. When he was about to start the construction of his house, it was the sanitary inspectors (physical planning department) that demarcated the lanes for him. He constructed his house for over twenty-five (25) years now without any hindrance from any person. He planted trees such as “nyamedua”, palm, nim, cashew and mango on the disputed land and always kept the disputed land clean. According to the Defendant, the Plaintiff deposited a trip of gravel on the land which he protested and the matter was reported to the Chief of Balai. Page 3 of 20 The Defendant continued his testimony and stated that his son put up a shed on the disputed section of the land since the year 2018 where he sold pork meat. He later gave out the shed to be used for carpentry works. The Defendant stated that there are no documents evidencing the grant of the land to him. The chief however wrote his name in a book. The Defendant therefore insists the land was granted to him by the Plaintiff’s father who was his good friend. They lived as brothers and not friends. He did not therefore encroach onto the Plaintiff’s land. The Defendant called no other witness to testify in support of his case. THE ISSUES FOR DETERMINATION From the respective cases of the parties, there is only one issue for determination and it is this: Whether or not the disputed plot forms part of the plot granted to the Defendant by the Plaintiff’s late father. ALLOCATION OF THE BURDEN OF PROOF This being a civil case, the standard of proof required of the party who bears the burden of proof is proof on the preponderance of probabilities. It is a basic law of evidence that the party who bears the burden of proof must adduce credible and admissible evidence in support of the facts or defence he claims so that the court or a trier of facts may be convinced that the facts he or she claims are true. This is the combined requirements of Sections 10, 11, 12 and 14 of the EVIDENCE ACT, 1975 (NRCD 323). Section 10 (1) provides as follows: 10. Burden of persuasion defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. Page 4 of 20 One can only discharge this burden by producing the necessary evidence, whether real, documentary, or by calling other witnesses, so as to convince the court that what he avers is true. Section 11 (4) provides: 11. Burden of producing evidence defined (4) 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. Section 12 of the NRCD 323 is also relevant to the discourse on proof as it defines the meaning and the standard of proof required in civil cases such as the instant case. It is provided that: 12. Proof by a preponderance of the probabilities (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. The bounden duty on a party who bears the burden of proof and the means by which he may discharge the burden was summed up by the Supreme Court in the case of DON ACKAH v PERGAH TRANSPORT [2011] 31 GMJ 174 in the following words, per Adinyira JSC that: It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be Page 5 of 20 proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. The instant case is one for declaration of title to land. The law is settled that in such cases, especially so where the Defendant did not counterclaim for a declaration of title, the burden is always on the Plaintiff to prove his case by establishing his root of title, his mode of acquisition of the land, the identity of the land he claims and overt acts of possession exercised by him on the land. See the case of DANIEL RAMSEY ADJEI OKOE AND ANOR v NII AKWETEY LAWANI AND ANOR. [2021] 174 GMJ 465 at 495 per Dordzie JSC: By their claims the Plaintiffs seek among other claims a declaration of title to land, they are therefore required to adduce satisfactory evidence to establish the following: a) their root of title, b) their mode of acquisition and c) overt acts of possession. This has been the position of the law established in several decisions of this court. In the case of Mondial Veneer (GH) Ltd V Amuah Gyebu XV [2011] SCGLR 466, [2011] 35 GMJ 164 SC, this court per Georgina Wood CJ restated this position in the following word “In land litigation, even where living witnesses who were directly involved in the transaction under reference are procured in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls…to prove the root of title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities, that the party would be entitled to the claim.” In the instant case, the Plaintiff claims a declaration of title to the disputed land and recovery of possession of same. He is therefore duty bound to adduce sufficient and cogent evidence to establish his root of title, the mode of acquisition of the land and the overt acts of ownership exercised by him on the disputed plot over the years. ANALYSIS OF THE EVIDENCE AND THE DETERMINATON OF THE ISSUE The Plaintiff testified in support of his case and called six (6) other witnesses in support of his case. He stated that the land in dispute belonged to his late father by name Nkianisu Kwame. Page 6 of 20 His case is that during the lifetime of his father he granted a plot of land to the Defendant but the Defendant has encroached on the section of the land adjacent to the land granted him which does not form part of his land. There is no dispute between the parties that the land was previously owned by the father of the Plaintiff. Indeed, the Defendant by his evidence and all through the trial admits it was the father of the Plaintiff who granted the land to him by virtue of their friendship. There is also evidence on the record that the father of the Plaintiff also had at least three (3) other plots which shares boundary with the disputed plot which he gave to some other persons. The root of title of the Plaintiff having been admitted by the Defendant, there is no issue in that regard and the Plaintiff is not duty bound to adduce further evidence to prove that the land belonged to his late father. The evidence on the record also admits of no doubts that the Plaintiff’s late father in his lifetime granted a plot to the Defendant. In his summary of subject matter of claim and in his witness statement, the Plaintiff stated that the land was leased to the Defendant by his father for a temporary use. During his cross-examination by the Defendant however, he admits his father granted the land to the Defendant to settle on same. He stated as follows: Q. Is the house we put up a temporary or permanent structure. A. It is not a temporary structure. The plot was given to you to settle on. You have not even constructed your house on all the plot given to you by my father. Q. In your witness statement, you stated that the plot was given to us for temporary use and not permanent use. A. It is not true. I did not say that. The point being established here is that the Plaintiff on his part admits that his father granted the land to the Defendant and same was not for a temporary use of the land, but it was permanent grant to the Defendant. The contention however between the parties is the extent of land granted to the Defendant. The Plaintiff insisted that it was only one plot that his father granted to the Defendant and that is the plot on which he has built his dwelling house. He Page 7 of 20 avers that the remaining vacant plot remains for his father and same has devolved unto him. The Defendant on his part contends that the land granted to him extended from the section on which he put up his house to the Balai-Salaga road. In other words, the Defendant contended that the land granted to him extends beyond the section on which he put up his house. WHAT WAS THE EXTEND OF LAND GRANTED TO THE DEFENDANT BY THE FATHER OF THE PLAINTIFF? To prove his claim, the Plaintiff tendered in evidence EXHIBIT A which is an Indenture dated 14th March 2024 made between the Plaintiff (as the transferee) and Nana Boamah Kastah Agyemele II, Balai-Wura (as the transferor). By the said deed which is accompanied by a site plan of the subject land, the land described as one vacant plot lying at Buduri lane 1B measuring 0.28 acres was transferred to the purchaser for a consideration of GH¢50. To my mind, as confusing as Exhibit A is, because it mentions the Plaintiff as the transferee and the Nana Kastah Boamah, Balai-Wura as the transferor, then states that the land is being transferred to a purchaser who is not disclosed by the said document, Exhibit A, be it as it may, does not resolve the issue of whether the disputed section of the land was part of the land granted to the Defendant by the Plaintiff’s father. This is because by its date of execution, Exhibit A was prepared and executed in March 2024 while the Plaintiff himself admits that the land was granted to the Defendant by his father in the year 1998. It therefore behoves on the Plaintiff to adduce further evidence to establish that the disputed section of the land was not part of the land granted to the Defendant by his father. It is worth mentioning at this stage that the Plaintiff in support of his case also filed some other documents. The parties filed their respective witness statements and trial commenced on 16/08/24 wherein the Plaintiff testified and was discharged and called his next witness to testify. It was at that stage the Plaintiff filed a receipt and an allocation paper both dated 07/05/2014. The court by a bench ruling on 08/10/24 excluded the said documents from the evidence on grounds that they were filed without the leave of the court and their admission will be unfair to the Defendant since the Plaintiff had already testified and was discharged. Page 8 of 20 The Defendant would therefore have no opportunity to cross-examine him on those documents. To prove his claim, the Plaintiff called PW1, Kojo Asunke to testify in support of his case. He stated that he was the linguist to the late Nana Obimpe Mbimadong and the Plaintiff’s father was his brother. When his brother granted the land to the Defendant, they protested and the matter went before the chief. At the chief’s palace the Plaintiff’s father admitted he granted one plot of land to the Defendant. According to him, the plaintiff’s father added that the remaining plot left was for his children. He said he was present at the palace when the Defendant confirmed that the plot was not sold to him. PW2, Bakapu Reuben on his part testified that his father was the Odikro at the time. He says he was part of the persons who went to demarcate the land for the Defendant. According to PW2, after they demarcated the plot for the Defendant, they also demarcated another plot for one Kwame Baba which is an adjoining land. They also measured the plot lying to the roadside which is now in dispute but the said plot did not form part of the Defendant’s plot. PW2 concluded his testimony and stated that all the plots they measured that day were 66 by 66 feet and that the Defendant was only allocated one plot. PW3, Yaw Ntanki also testified in support of the case of the Plaintiff. Essentially, he says he was home with his father, Nana Ntanki when the Defendant and his son and one other person came to see his father to plead with the Plaintiff to release the disputed section of the plot to them. The Plaintiff and his siblings however turned down the Defendant’s offer. On his part, PW4 testified that he shares a common boundary with the Plaintiff’s father’s land. He also says that the land is not part of the Defendant’s land. He was part of the delegation that went to the chief palace and he witnessed how the land was granted to the Defendant. The Defendant did not pay anything to the chief or the Plaintiff’s father for the grant of the land. The next witness called by the Plaintiff was Bakianisu Ntansu (PW5). He testified that he shares a common boundary with the Defendant’s land to the northern part. His land was Page 9 of 20 granted to him by the father of the Plaintiff. Michael Kastah (PW6) also testified that he is secretary to the current chief of Balai (Nana Matorjimele). The dispute on the land came before the chief sometime in the year 2021 and the chief advised both parties to settle their dispute amicably. He stated that the Defendant admitted at the chief palace that the disputed land does not belong to him. The chief then told the Defendant to seek grant of the land from the Plaintiff if he intends to develop same. He concluded and stated that the Defendant admitted it was the Plaintiff’s father who granted him the land on which he built his house and so he cannot contend with the Plaintiff over the land. It is worth mentioning that the Plaintiff filed a witness statement for Bagyineane Lonwah but the said witness was not called to testify due to ill-health, the Plaintiff says. From the various testimonies by the Plaintiff’s witnesses, it is only the testimony of the PW2, Bakapu Rueben which is essential to the case of the Plaintiff on the extent of land granted to the Defendant by his father. According to PW2, he was the one tasked to go and demarcate the land for the Defendant and he did that in the company of one Kujo and Maclean. He stated that on the said day they also demarcated one plot which shares a common boundary with the Defendant’s plot for Kwame Baba, a nephew of the Plaintiff’s father. They measured the vacant land lying to the roadside which is the land in dispute as well. All the lands they measured on the said day were 66 by 66 feet. The Defendant however denied that PW2 demarcated the land for him. According to the lawful attorney for the Defendant, the chief asked them to see PW2 to go and demarcate the land but on all three occasions they went to him, he could not go with them. He rather gave them a note to be given to one Matthew to demarcate the land for them. This is what transpired during the cross-examination of PW2 by the lawful attorney for the Defendant: Q. When the father of the plaintiff gifted the land to my father, he asked us to come to you so you go to demarcate the plot for us. We came to you on three occasions but you refused to go with us on the premise that you were ill. Page 10 of 20 A. Yes but when I got well I went to demarcate the land together with the sanitary respecters/town and country planning officers. Q. After we came to you on three occasions and you refused to go with us to demarcate the land. You gave us a note to send to one Mathew who is a sanitary inspector to come and demarcate the plot for us. A. Yes, Mathew did not go there it was rather Kujo and Maclean who went because Mathew was their boss. I see the latter part of the answer by PW2 as an admission that because he was ill, he made the Defendant to go and see the said Matthew who is a sanitary inspector for the demarcation of the land. The said Matthew also instructed his men, Kujo and Maclean to go and demarcate the land for the Defendant. In my view, it is doubtful whether PW2 was actually present and conducted the demarcation on the land as claimed by him. In any case, PW2 claims all the lands they demarcated on the said day measured 66 by 66 feet. According to PW2’s testimony, the same day they demarcated the plot for the Defendant, they also demarcated the plot granted to Baba Kwame. He stated at paragraphs 8 and 10 of his witness statement as follows: “8. After we measured the first plot for the defendant, we measured another plot for one of the Plaintiff’s father’s sons, Kwame Baba, with whom the defendant also shares a boundary with to build but his building has since collapsed. 10. That every plot we measured that day is about 66 by 66. The land in dispute does not belong to the defendant. The defendant was given only one plot of land where he built his current place of abode” The implication from PW2’s testimony is that the land allocated to Baba Kwame which he claims he demarcated measures 66 by 66 feet while that of Ntansu also measures 66 by 66 feet as well as that of the Defendant. During the trial the court ordered the parties to engage a surveyor to prepare a composite plan in respect of the land in dispute. After the parties closed Page 11 of 20 their cases, the surveyor (CW1) was called to testify and to tender in evidence the composite plans he prepared for the parties. These he tendered as Exhibits CWA and CWB. During the cross-examination of CW1 by the Defendant, he stated he surveyed other adjoining lands including that belonging to Baba Kwame on the instructions of the Defendant. He says Baba Kwame’s land is on the same lane as the Defendant’s plot and constitutes two plots which extends to the side of the road. This is what transpired during the cross-examination of CW1 by the Defendant: Q. I made you measure four (4) other neighbouring houses/plots. Are they on the same lane to the roadside? A. They are on the same lane. Q. Apart from mine, what is the number of the other plots to the roadside? A. Looking at the composite plan, you will see two plots each to the roadside but I cannot tell if the owners including him have acquired all of them. Q. I am on the same lane with Baba Kwame but the composite plan shows that his land extends northwards. A. It is the same. There is a lane at the end of the two–two plots. Baba Kwame’s plot is not of interest to us. It is only for emphasis. ……… Q. Looking at the Plan, everyone is building to the roadside, so why am I been prevented from building to the roadside? A. I cannot tell. If the person acquired all the two plots, he or she will build to the roadside. Page 12 of 20 On Exhibit CWB, the said plot belonging to Baba Kwame lies to the right of the disputed plot. Contrary however to the testimony of PW2 that all the plots they demarcated on the said day were 66 by 66 feet, and that the Defendant and Baba Kwame were granted one plot each, the testimony of CW1 is that Baba Kwame’s plot consists of two plots and it stretches from the side of the Defendant’s building to the road. From the evidence of PW2, the reasonable conclusion that one may come to is that the Defendant and the said Kwame Baba were granted the same size of plot. PW2 says they measured one plot for the Defendant and one plot for Kwame Baba. It however turns out from the evidence of CW1 that on the ground, Kwame Baba’s land consists of two plots in accordance with the locally accepted measurements of building plots. In my view, the reasonable inference is that the Defendant’s land should also on the ground constitute two (2) plots since he was granted the exact size of plot as that of Kwame Baba. ACTS OF POSSESSION OVER THE LAND In an action for declaration of title to land, in addition to proving root of title and the mode of acquisition of the land, it is essential for the Plaintiff to establish acts of possession exercised by him over the land in dispute. Please see the case of DANIEL RAMSEY ADJEI OKOE AND ANOR v NII AKWETEY LAWANI AND ANOR (supra). This is because there is a presumption of ownership of the person in possession against all other persons except the true owner. See Section 48(2) of the EVIDENCE ACT, 1975 (NRCD 323) which provides that: 48. Ownership (2) A person who exercises acts of ownership over property is presumed to be the owner of it. As indicated earlier in this judgment, the parties do not dispute that the land in dispute previously belonged to the father of the Plaintiff who granted same to the Defendant. The Plaintiff says the disputed section does not form part of the land granted to the Defendant by his father. It is therefore incumbent on the Plaintiff to adduce evidence to prove that his late father or him, maintained possession of the disputed section of the plot after a part of it was Page 13 of 20 granted to the Defendant. Thus, he must prove that his late father or his family remained in possession of the disputed plot from the year 1998 till date. By his evidence in chief, the Plaintiff stated that in the year 2014 he met the Defendant planting flowers on the land and confronted him but the Defendant said he was only planting the flowers to show the demarcation of their lands. He again met the Defendant clearing the land and when he confronted him he said he was only clearing same. The Defendant defied his orders and erected a shed on the land whereupon he reported him to the Kpandai police. He also met some workers of the Defendant depositing sand on the disputed land and confronted them. All the witnesses called by the Plaintiff did not testify in regard to any acts of possession exercised by the Plaintiff over the disputed land, not even PW4 and PW5 who are adjoining land owners to the disputed plot. During his cross-examination by the Defendant, the Plaintiff stated that he deposited sand onto the land in dispute. This was in sometime in 2022. He did so because he realised the Defendant wanted to take the land from him. This is what transpired during the cross- examination of the Plaintiff by the Defendant’s lawful attorney: Q. Do you have anything on the land to prove to anybody that the plot is yours? A. I deposited sand onto the land. Q. Tell the court the date on which you went to deposit gravel on to the disputed plot. A. It was in 2022 Q. Since your father passed on, it was only 2022 you realized you have a plot to deposit gravel onto? Page 14 of 20 A. You were not doing anything on the land, it was when I realized you wanted to claim the disputed plot in addition to the plot already granted to you by my father that I deposited the gravel onto same. Q. When you came to deposit the gravel, did you not see the structure in which people were selling and working? A. That is when I got to know that you had the mind to claim the disputed plot. I first met you constructing the structure and I asked your father and he said he wanted to use it to sell meat. I told him he did not ask me for permission before constructing on the land. It was then I started depositing gravel onto the land. On his part, the Defendant testified that he planted trees such as “nyamedua”, nim, cashew, Mango and other trees on the land. He also keeps the land clean anytime the sanitary inspectors were around. He recently dug foundation trenches on the land which resulted in the Plaintiff instituting the instant action against him. He also testified that in the year 2018 he erected a shed on the land to sell meat and later rented it to some artisans to carry on their carpentry and fitting works. The Defendant asserts these averments during his cross- examination of the Plaintiff and insists that he planted the tress on the disputed section of the land. He stated: Q. Are you the one who planted the trees on the disputed land? A. No Q. How is it that the trees I planted on my plot, you are claiming the disputed plot and the tree I planted? A. You planted the trees on the plot granted to you by my father. I am not claiming that portion from you. It is the other portion that I am claiming because my father did not grant that plot to you. Page 15 of 20 Q. I am putting it to you that you do not know what you are saying because the trees we planted are still there and up to the road. We planted nim trees, cashew trees, Nyamedua, mango, and coconut trees. A. You are not saying the truth. All these trees you mentioned are on the plot granted to you by my father, they are not on the other plot which is in dispute now. The questioning continued at some other sections of the cross-examination of the Plaintiff by the Defendant as follows: Q. The plot you are claiming today, that was where we kept our cattle after we built our house. A. That plot is for me. Q. It was after we vacated the cattle that we started selling Pork meat on that section of the plot. A. That plot is for me. Q. When was the last time you cleared the disputed plot to show that the plot is for you? A. I cleared the land before depositing the sand on same Q It was only last year you deposited gravel on the disputed land and you are claiming it belongs to you. Did I claim the plot for which we are taking care for you, even though I have my gravel on same for years now? A. I am not claiming the land because of the gravel I deposited on to the land. I have many basis for claiming the land. The Plaintiff does not dispute that the land was granted to the Defendant by his late father in the year 1998. During the trial it came to light that the Plaintiff’s father died in the year 2006. This was some eight (8) years after he granted the land to the Defendant. Does the evidence show any acts of possession exercised by him over the disputed section of the land within these eight (8) years he lived after the grant of the land to the Defendant to suggest that it was not part of the land he granted to the Defendant? The Plaintiff himself stated during his cross- examination that he was 17 years when his father passed in the year 2006. He brings the Page 16 of 20 instant action on his own behalf and on behalf of his family. Does the evidence indicate that after the demise of his father, he or any member of his family continued or remained in possession of the disputed plot? I think not. Apart from claiming that he confronted the Defendant when he planted the flowers on the land and also erected a shed on the land, and that he deposited a trip of gravel on the land in the year 2022, no other positive acts of possession has been exercised by him over the land. He also admitted under cross- examination that the trees on the land were not planted by him. The evidence indicates that the land, prior to its grant to the Defendant, was used to cultivate palm plantation. The farmer offered to sell the palm trees to him when he was vacating the land but they could not afford it. It is also clear from the questioning by the Plaintiff, that the said farmer vacated the land before the Defendant put up his house. This was a fact not disputed by both parties as reflected by the cross-examination of the Defendant by the Plaintiff, excerpts of which are referred: Q. It was a Mosi man who farmed there. After my father took the land from him, he gave him another land to farm which he has been farming on till date. A. It is not true. The name of the son of the Basare man is Amadu. He was farming palm trees on the land. When he was leaving the land, I asked to buy the palm trees but I could not afford the amount he offered. He then uprooted the palm tree leaving one which we fell recently. We were the first persons to rear cattle in the area. We tethered cattle on this very land. Later we constructed a shed and sold pork meat there. The man selling the pork also travelled to Accra and we gave it some carpenters and fitters to set up their shops. Q. At the time you were preparing to put up your house, did the one who farmed on the land come to lay any claims to the land? A. No. Page 17 of 20 Q. After my father took the land from the man who earlier was farmed there, he did not come back to lay any claim to the land because of any trees he planted on the land. Why are you claiming ownership of the land because of some trees your father planted on the land? When your father was planting those trees, he told me they were flowers used for medicinal purposes and so anytime I am ready to build, he will cut them. A. The Basare man was only farming on the land so he harvested all the crops and trees he planted on the land. I came to settle on the land and so I have to protect the land. It is not true you confronted my father concerning any flowers planted by him. You testified in this court that your father did not take you to the land to show you the person he granted the land to. What you are saying is false. From this piece of evidence, the inference is that the entire land was used for the cultivation of palm plantation. Plaintiff’s father then took the land from the person farming on same and gave and him another place to farm where, according to the Plaintiff, he has continued to farm till date. If his story is accepted, which is that it was only the portion on which the Defendant put up his house that was granted to him, why did his father not use the remaining portion now in dispute to continue with the farming activities? He could have given it to another farmer to continue farming on it which could be a potent evidence of possession and to indicate clearly to the Defendant that the disputed section was not part of their land. According to the Plaintiff, the only time he cleared the land was in the year 2022 when he was about to deposit the gravel on the land. This was some sixteen years after his father has passed. This meant that throughout these sixteen years after his father passed, no member of his family took any step to clear the land or to farm same or plant any tree on the land to indicate ownership of the land by his family. Weighing the evidence of the Plaintiff as against the evidence presented by the Defendant, I am of the view that the Plaintiff has not been able to discharge the burden on him. The Plaintiff was duty bound to prove his claim that the disputed plot does not form part of the plot granted to the Defendant by his father. Apart from testifying and calling witnesses to prove that the land previously belonged to his father, I am of the view that the Plaintiff failed to lead Page 18 of 20 evidence to demonstrate that after the land was granted to the Defendant by his father, he or they continued to remain in possession of the disputed section of the land and that same was not part of the land granted to the Defendant. From the evidence however, I find that the evidence of PW2 in a way support the reasonable inference in favour of the Defendant’s case that the entire disputed plot was granted to him by the Plaintiff’s late father. It is not disputed that the Plaintiff’s father granted one of his plots to Baba Kwame. This plot shares boundary with the disputed plot to the eastern part. He also granted one of his plots to Ntansu which is to the northern part of the disputed plot. All these plots are adjoining each other. More importantly, PW2’s evidence suggests that the very day they demarcated the Defendant’s plot was the very day they also demarcated Baba Kwame’s plot. By the testimony of the surveyor (CW1), Baba Kwame’s plot on the ground consists of two plots. I am of the view that since the evidence suggests that the same plot sizes were demarcated for the Defendant and the said Baba Kwame, it is more probable than not that the Defendant’s plot allocated to him also consists of two plots. I therefore do not accept the case of the Plaintiff that it is only the section on which the Defendant put up his house that was granted to him by his father. In any case, the Plaintiff has not demonstrated to the court any cogent and unprotested acts of possession he has exercised over the land so as to warrant a finding in his favour that his father or family maintained possession of the disputed section of the land even after the part on which the Defendant built his house was granted to him. His late father lived some 8 years after he granted the land to the Defendant before his demise. After his demise neither the Plaintiff or his family did anything on the land, such as farming or clearing the land, to evidence their possession and ownership of the land. The Plaintiff says he deposited trips of gravel onto the land in the year 2022. This was some sixteen (16) years after the demise of his father in 2006. By the evidence of PW6 who is the secretary to the chief of Balai, the dispute on the land between the parties came before the chief in the year 2021 where the parties were advised to attempt amicable settlement. Thus, the Plaintiff only went to deposit the gravel Page 19 of 20 onto the land after the dispute has risen over the disputed land. This act, in my opinion cannot be regarded as an uncontroverted or overt act of possession. This is opposed to the evidence presented by the Defendant that he planted the trees which are on the disputed land, cleared the land, tethered his cattle there, and reared his pigs there. All these he did without the express consent or permission of the Plaintiff, his late father or his family. He also erected a shed on the land and gave it out to some artisans to ply their trade therein. Weighing the Defendant’s acts of possession as against the Plaintiff’s non-existent act of possession over the land, I find that the Plaintiff has not been able to prove that the disputed land remained in his or his family’s possession even after the grant of the occupied section to the Defendant. On the other hand, I find the Defendant’s case supported by the evidence in that it was the entire land consisting of where he built his house and the vacant section stretching towards the Balai-Salaga road that was granted to him by the Plaintiff’s father. The entire disputed land having been granted to the Defendant by the Plaintiff’s father as far back at 1998, Exhibit A which is the Indenture executed by the Chief of Balai in favour of the Plaintiff could not have vested him with ownership of the land. This is due to the maxim, nemo dat quod non habet which is that one cannot give out what he does not have. The Plaintiff’s father having divested himself of ownership of the disputed land in favour of the Defendant, the Balai Skin could not purport to re-grant same to the Plaintiff at a later date. Consequently, the Plaintiff’s claims fail in its entirety. I award cost of GH¢2,000 against the Plaintiff in favour of the Defendant. H/W GODSON ETSE KUMADO Page 20 of 20