Sawiri v Siraa (A1/11/2024) [2024] GHADC 795 (5 November 2024)

IN THE DISTRICT COURT KINTAMPO HELD ON TUESDAY 5TH NOVEMBER 2024BEFOREHIS WORSHIP KWAMEADJEIMANU ESQ. SUITNO:A1/11/2024 OP.KOFI SAWIRI - PLAINTIFF (Suing for himself and on behalf ofhis paternal siblings) (OF ANYIMA) VRS MAAMEAKOSUA SIRAA - DEFENDANT (OF ANYIMA) JUDGMENT 1. INTRODUCTION 1.1. Plaintiff in this suit claims a declaration of title to land, recovery of possession, general damages for trespass and perpetual injucntion against Defendant. These reliefs are in respect of land lying at “Nensu Ano” on Nkoranza stool land, bounded by the properties of Op. Kwaku Kudom, late. Op.KofiAmoa, Op.Akuna, Nana Konkome and afootpath. 1.2. In setting out the cases of parties as can be seen from their evidence and processes in this suit, I have been guided by the observation of the learned author Justice S.A. Brobbey (Retired) in his book Practice and Procedure in Page1of22 the Trial Courts and Tribunals of Ghana, 2011 at page 286 concerning the indulgence oflaycourtusers asrelatestoprocesses filed by themthus: “Sometimes the task of deciphering the precise claim from "home- made" writs, especially those preparedby letter writers, is nomean one. The best approach is to be guided by the principle enunciated in Atiafu v Dzaka [1962] 1 GLR 280 which concerned actions in the erstwhile native courts. In that case, it was held that in actions where writs have been prepared by semi-literates, one has to look to the issues involved rather than the wording of the writ of summons. Similar views were expressed in Ankrah v Ankrah [1966] GLR 60, SC and Donko rv Nkrumah [1964]GLR 739,SC.” Plaintiff’scase 1.3. Plaintiff’s case is that his father the late Opanin Yaw Kramo during his lifetime acquired and occupied the disputed land in its original state as a subject of Anyima at a time that the land did not belong to anybody. His late father reduced the forest into a food crop farm and enjoyed the proceeds until it withered. According to Plaintiff, he assisted his father during the cultivation of the food crop farm. He and his father travelled and later returned to Anyima, his father cultivating the land before dying without giving or gifting it to any of the family members to cultivate. Plaintiff’s father was succeeded after his death by Opanin Kwadwo Fordiour who wasalso succeeded byKwasiOseiafter hisdeath. 1.4. Plaintiff by his evidence advanced the further case that Kofi Nimo and Kofi Nsiah who were then Abusuapanyin when his father was alive never disputed with him over the disputed land. Plaintiff also testified that he and his step-brother Yaw Effah used to cultivate palm trees on the Page2of22 disputed land while Opanin Kofi, Kofi Nsiah, Kwabena Nsoah and all the females ofthefamily werealive without challenge fromthem. 1.5. According to Plaintiff he returned from his sojourn to resume work on the land only to find that Defendant had encroached on his father’s land. He asked Defendant to vacate the land. When he resumed work, Defendant claimed he was trespassing on her land. This resulted in a police report and anattemptto resolvethematter amicably. 1.6. Plaintiff contends that Defendant has unlawfully taken possession of a sizeable portion of his father's land and has planted food crops on the disputed land, and when Plaintiff tried to stop this conduct, she reported him to Nana Afrifa (Akwamuhene). In the efforts to settle the matter, parties family head Akwasi Osei testified that the disputed land belonged to Plaintiff’s father. This head of family had also testified in another dispute in a dispute between the Gyasihene and Plaintiff, that the Gyasihene’s grandfather’s land shared boundary with that of Plaintiff’s father. According to Plaintiff, Defendant is not only cultivating the disputed land but laying adverseclaim toit, hence this suit. Defendant’scase 1.7. Defendant’s case as gleaned from the statement in defence made in open court and her witness statement since no pleadings were ordered in this suit is that the disputed land is family land having been acquired by her uncle Kwasi Anane, who broke the virgin forest. When her uncle was travelling he left the farmland to Plaintiff’s father his nephew who also left the land and travelled to the north. According to Defendant she and her childrenhavefarmed the disputed land forthirty-seven (37)years. Page3of22 1.8. Defendant says that she and Kwabena Fei who was Kramo’s nephew cultivated the disputed land till Kwabena Fei also died since they could not watch the land go waste. According to her, Plaintiff never cultivated the disputed land before or after the death of his father but travelled and settled at Nchiraa for many years before he returned and went to see Kwame Fei their family head for a piece of land to farm, so Plaintiff was shown family land at Abangoro Atifi to farm with his siblings, which was given to Plaintiff and his siblings with the understanding that they would not claim the land at Nensu ano which is family land. Plaintiff after renting out the land at Abangoro Atifi has turned his attention to Nensu ano to the disputed land laying claims to it and at one point allowing his sontoto clearaportion oftheland forcultivation. 1.9. It is noteworthy that at several points throughout her evidence, Defendant referred to the disputed land as hers. She also says that she prevented Plaintiff’s son from clearing the portion of the disputed land because she did not agree with this. It is also clear that parties in this suit are members ofthe same family. 1.10. From the foregone, there are two main issues to be interrogated. The first is whether Plaintiff and his siblings are owners of the disputed land and thesecond being whether Defendant has trespassed unto Plaintiff’sland. Plaintiff’scapacity 1.11. Plaintiff’s capacity to institute this action since in essence he claims that the disputed land was inherited from his deceased father ought to be considered by the court as a primary issue before any other issues. This enquiry concerning Plaintiff’s capacity is settled since first, Defendant did not join issue with Plaintiff on his capacity. Applying the position of the Supreme Court in Adisa Boya v Zenabu (CIVIL APPEALNO.J4/44/2017), Page4of22 I am inclined to conclude that Plaintiff does not lack the capacity to bring the instant action. The Court speaking through Gbadegbe JSC in that case said this: “By virtue of the rules on intestacy contained in section 4(1) of PNDCL 111, following the death of the father of the defendants and their mother the original defendant, the property devolved upon the children and as such they had an immediate legal interest in the property. Consequently, they were competent to defend and/or sue in respect of the property and either of them acting together or any of them acting on behalf of the others might seekan order of declaration of title to be made inhis favour.” 1.12. This ratio was followed by the Supreme Court in the recent case of Bandoh v Apeagyei-Gyamfi and Another [2018-2019] 1 GLR 299 where theSupreme Courtspeaking throughMarful-Sau JSCstated thus: “In that case this court speaking through Gbadegbe JSC, held that the defendants who were the children of the estate had immediate interest in the property and for that reason, they were competent to defend or even sue for declaration of title, notwithstanding the fact that they had not obtained any letters of administration. I wish to add that the above proposition of law is only fair and equitable in view of the interest created in the estate of beneficiary children, under the Intestate Succession Act, PNDCL 111. I therefore, entirely agree with the legal proposition enunciated by Gbadegbe, JSC, and hold that even in this appeal the appellant, being a satisfactory child, was a competent party, notwithstandingthe factthat she had noletters of administration.” Page5of22 1.13. There is evidence unchallenged on the record from both sides that Plaintiff’s father was survived by Plaintiff and his siblings who have enjoyed his property since his death. Borrowing the words of Marful Sau JSC, being satisfactory children, Plaintiff herein is a competent party representing himself and his siblings. 2. BURDENANDSTANDARDOF PROOF 2.1. Without attempting to set out in painful detail the whole of the law on this point, it is noteworthy that inMemuna Moudyand Others v Antwi [2003- 2004] 2SCGLR 967 at pages974-975,the Supreme Courtspeaking through Wood JSC (as she then was) stated the rule that when a fact alleged by a party pleading it is denied by the opponent, an issue arises for determination and the party who has introduced the denied fact has the burdenofproving same. The Courtexplained as follows: “A cardinal principle of law on proof as enunciated in the age-old case of Majolagbe v Larbi (1959) GLR 190 and reiterated in a number of cases, including Zabrama v Segbedzi (1991) 2 GLR 221 at 246, is that, a person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properlyand safely inferred." 2.2. Plaintiff as was explained in Ackah v. Pergah Transport Ltd. & Ors (2010) SCGLR 728, by the Supreme Court bears this evidential burden. The court inthatsuit explained Plaintiff’sburden thus: Page6of22 “It is abasic 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 will fail. The method of producing evidence is varied and it includes the testimonies of parties 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 proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(2) and (4) of the EvidenceAct, 1975(NRCD323)” 2.3. Parties in this suit are lay persons acting pro se. The Court for this reason extended all indulgences to them as recommended in Nartey v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 G.L.R. 314, S.C. The duty owed to them as lay court users and the need to indulge them has been recognized by the courts in cases such as Edun v. Koledoye (1954) 14 W.A.C.A.642as relied oninWiafe v.Kom [1973]1GLR 240. Declarationoftitle toland 2.4. Having claimed a declaration of title, the evidence Plaintiff is required to give to succeed in the suit was clarified in Benyak Company Ltd v. Paytell ltd & 3 ors [2014] 76 GMJ 1, where the Supreme court explained that Plaintiff apart from proving his root of title, mode of acquisition and overt acts of ownership must prove that he is entitled to the declaration sought. In Mondial Veneer (Gh) Ltd v. Amuah Gyebu XV [2011] 1 SCGLR 466 at 475thecourt said this: Page7of22 “In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls, as in this instant case, to prove the root of his title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation” 2.5. Plaintiff in such a case, puts his title in issue and must prove his root of title, the boundaries of the land in dispute and acts of ownership exercised over same. This position of the law was applied in Ebusuapanyin Yaa Kwesi v. Arhin Davis & Anor (2005) JELR 92075 (SC). The standard of this proof is on the balance of probabilities. In Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. K. Mbeah and 2 Others, Civil Appeal No. J4/61/2017, dated 11th July 2018, S.C. (Unreported), AppauJSC explained this standard thus: “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - {See sections 11 (4) and 12 of the EvidenceAct, 1975[NRCD323]”. 2.6. It is not relevant that the claim is for a declaration of title to land. In Adwubeng v. Domfe [1996-97] SCGLR 660, the Supreme Court explained the general absence of such distinctions in the standard of proof of matters incivilsuits thus: “Sections 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323)... have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities – no exceptions were made. In Page8of22 the light of the provisions of the Evidence Decree, 1975, cases which had held that proof in titles to land required proof beyond reasonable doubt nolongerrepresented the presentstate of the law...” 2.7. However, this evidence when offered must be sufficient. The test of satisfactoriness or sufficiency of the evidence is the degree of belief that the evidence or its proponent creates in the mind of the trial court concerning the fact or facts in issue. For evidence to pass this test, after having assessed the facts on all the evidence adduced, a reasonable mind should conclude that the existence of some fact in issue is more probable and reasonable than its non-existence. This position ofthe law wasapplied in Ackah v. Pergah Transport Ltd [2010] SCGLR 728, 731 and Faibi v. State Hotels Corp. [1968] 471. Oathagainst oath 2.8. I consider the evidence in this suit one that should be considered oath against oath and apply Oxyair Ltd & Darko v. Wood [2005-2006] SCGLR 1057, and Lutterodt v. Commissioner of Police [1963]2 GLR 429, SC, where it was held it is the duty of the trial court in such a situation to consider the evidence adduced to form a judgment as to what version of events was more credible, the determination of crucial fact involving judicial choice of belief based on the comparative credibility of opposing parties and their witnesses. This conclusion of mine is justified by the fact that parties cases are supported solely by the oral evidence of themselves and their witnesses. 2.9. It is incumbent upon the trial court in such a situation to examine the evidence before preferring one to the other and give reasons for the preference. The trial judge cannot be faulted on his decision once it is Page9of22 based on the evidence on record. Her Ladyship Afia Serwaa Asare-Botwe (Mrs.) relied on these rules in Lydia Tetteh v. Madam Akweley & Anor (2019)JELR107108(HC). 3. THEEVIDENCE AND ISSUES WhetherPlaintiff andhissiblings aretheownersofthedisputedland 3.1. As held in Samuel Okudzeto Ablakwa & Anor v. Jake Obetsebi Lamptey & Anor [2013-2014] 1 SCGLR 16, where a matter is admitted proof is dispensed with. 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 637 at 656, the court explained the rule of law on admissionsthus: “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 factthan by relying on such admission, which is an example of estoppel by conduct.” This I find congruent with the 7th edition of Black’s Law Dictionary’s definition as “a voluntary acknowledgment of the existence of facts relevant toanadversary’scase.” 3.2. Both parties testified and called witnesses in attempt to corroborate their evidence. In assessing evidence led by parties, this Court is mindful of the settled rule of law as applied in Takoradi Flour Mills v Samir Faris 2005- 2006] SCGLR 882 by Ansah JSC at page 890 referring to Tutu v. Gogo, Civil Appeal No 25/67,dated 28April 1969, Court of Appeal, unreported; digested in (1969) CC76,where OllenuJAsaid that: Page10of22 “in law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and mustbe accepted by the court.” 3.3. A fact that stands admitted is that during an arbitration that led to the declaration ofDW2 the Gyaasehene mentioned in Plaintiff’s case, as owner of a portion of land disputed between him and Plaintiff, DW2’s witness in that arbitration who is parties’ head of family testified that the land occupied by Plaintiff’s father shared boundary with that of the witness, notwithstanding DW2’s attempts to evade questions on it. This testimony at that arbitration when Plaintiff testified of it was not the subject of challenge by Defendant or credible contrary evidence. In Ashanti Goldfields Company Ltd v. Westchester Resources, (2013) 56 GMJ 84 the Court of Appeal stated the correct position of the law on such a failure to challenge thus: “the law is that where the evidence of a witness is unchallenged in cross-examination, it is deemed to have been admitted by the other side.” 3.4. Under Section 80(2) of the Evidence Act, NRCD 323 in determining the probative value to give to a witness’testimony the Court may consider the credibility of the said witness and in ascertaining the credibility of the witness pay due mind inter alia to “the existence or non-existence of a fact testified to by the witness or a statement or conduct which is consistent or Page11of22 inconsistent with the testimony of the witness at the trial.” In Obeng v. Bempomaa [1992-93] 3 GBR p 1029 Lamptey JA. (As he then was) had this tosay onthe matter: “Inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The conflict in the evidence of Plaintiff and his witnesses weakened the merit of his case and provedfatal tohis claim.” 3.5. However, it is not every inconsistency that makes a witness a stranger to truth as held in Apaloo v. The Republic (1975) 1 GLR 156 at 173, and conflicts and inconsistencies in evidence that have a relevant bearing on a judgment must relate to facts in issue as held in The Republic v. Adekura [1984-86] 2 GLR 345, CA. Defendant’s evidence that the disputed land was originally acquired by Opanin Kwasi Anane was attempted to be corroborated by DW1 and DW2 all of whom alleged to have been informed of this by someone else. Though all of Defendant’s witnesses claim reliable knowledge of the disputed land, none of them admitted one material fact that is already in admission by Plaintiff and Defendant in their evidence-in-chief, that is the fact that Plaintiff’s father cultivated that land at some point in time before travelling. The suppression of this fact from their testimonies makes the court less likely to look favourably on their testimonies. 3.6. Defendant as can be seen from her responses while under cross- examination, is hardly a credible witness. Firstly, though she testified initally under cross-examination that she did not know if Plaintiff’s father owned his personal land separate from that of Kwasi Anane, she contradicted herself to say that Plaintiff’s father did. She did same on the Page12of22 question whether Plaintiff’s father and Kwasi Anane worked together. Here too she prevaricated having previously answered in the positive, she answered in the negative to a subsequent question. This is what transpired while Defendant wasunder cross-examinationinitially: Q: Was my father a laborer of Kwasi Anane who worked for him and was paid? A: Plaintiff's father was not a labourer to Kwasi Anane but rather a labourer to him. At the time we were not inheriting per our father's lineage and that was why my uncle Kwasi Anane put Plaintiff's father who was the eldest of his nephews in charge of the land to keep it for him. Q: Before Kwasi Anane travelled who was looking after his land for him? A: It was when Kwasi Anane decided to travel that he put his nephew inchargeto keep his land for him. Q:Iputitto you that the response you justgave is nottrue? A:Ihave spoken the truth, notlies. Q: I put it to you that that Kwasi Anane had his personal land which he cultivated and Kramo also had his personal land which he cultivated? A:I do notknow if Kwasi Anane had his personal land and Kramo also had his personal land. What I know is that they were together, Kramo was Kwasi Anane's nephewand Kwasi Anane gave his land tohim. 3.7. Cross-examinationcontinued laterthus: Q:WereKwasi Anane and my father working together? A: They were not working together. If the land was originally acquired by Plaintiffs father, Plaintiff would not have gone to someone else to be given land to cultivate when he returned. He would have gone straight tohis father's landto cultivate it. Page13of22 Q: When I returned and informed Kwame Fei that I need land, did I tellhim that Ineed familyland or my father'sland? A: Plaintiff neither said he wants family land nor his father's land. He only said he had returned home, so they should give him land to cultivate. Q:Does my father notown land? A:Plaintiff'sfather owns land and that was what was shown tohim? Q: I put it to you that you have stated that it was family land which was shown to me? A: Plaintiff's father is our family member. So if Plaintiff is shown his land,we have notoffended inany way. 3.8. I must say that the death of a family member no matter how prominent without more, does not automatically cause his personal property to become that of his larger family, and this is trite law. It appears that Defendant whether intentionally or out of a misapprehension of this, is claiming the disputed land as that of her family, though I lean more towards Defendant’s action having been taken with the knowledge that the land was never the property of the family. It is not possible as she attempted to create the impression she did under cross-examination, that only herself and her son Kwabena Fei knew that the disputed land belonged totheir family and hadtomovetooccupy it. 3.9. Having failed to call the head of her family who surely is alive and could have given evidence in support of the fact that the disputed land is property of the family, I am inclined to resolve that fact against her. The rule as applied in Faibi v State Hotels Corporation (supra) is that “Where a party would not produce evidence which evidence is available and Page14of22 within his peculiar knowledge, it could be inferred in law that that evidence isagainst him”. Ususfructuaryownership 3.10. The evidence in this suit points to the usufructuary ownership of Plaintiff’s father of the disputed land which devolved unto Plaintiff and his siblings. The nature of the usufructuary ownership which appears to be the interest of Plaintiff and his siblings in this suit was explained by Appau JSC (as he then was) in Togbe Lugu Awadali IV v. Togbe Gbadawu IV(2018) JELR68854(SC)in these words: “The word ‘Usufruct’ comes from the Latin phrase ‘usus et fructus’, which means; ‘use and enjoyment’, with ‘fructus’ used in a figurative sense to mean fruits enjoyed from the use, which include; the right to convey, transfer, lease, assign or tax during the pendency of the use of the property concerned. The term stands for a limited real right (or in rem right) found in civil law and mixed jurisdictions that unite the two property interests of ‘usus’ and ‘fructus’; i.e. the right to use and enjoy a thing possessed, directly and without altering it. It connotes the right of enjoying all the advantages derivable from the use of something (not only land) that belongs to another, as far as is compatible with the substance of the thing not being destroyed or injured. The Cambridge English Dictionary describes it as; “the legal right to use someone else’s property temporarily and to keep any profit made”. Black’s Law Dictionary, in its ninth edition, defined it as; “the right of using and enjoying property belonging to another provided the substance of the property remained unimpaired. More exactly, was the right granted to a man personally to use and enjoy, usually for his Page15of22 life...the property of another which, when the usufruct ended, was to revert intact to the dominus or his heir”. The Shorter Oxford English Dictionary; Deluxe Edition, describes it as; “The right of enjoying the use of and income from another’s property without destroying, damaging, or diminishing the property”. In customary law, usufruct means land is owned in common by the people, but families and individuals have the right to use certain plots or portions of the land. While people can take fruits of the land, they may not sell or abuse it in ways that stop futureuse of the land bythe community.” 3.11. In Mansu v. Abboye and Another [1982-83] GLR 1313-1323 the Court of Appeal per Francois JA (as he then was) also explained the usufructuary interestthus: “...Some of the cardinal incidence of the usufructuary interest were that the usufructuary had exclusive possession of the portion of land and he could not capriciously be divested of that interest … without the prior consent and concurrence of the usufructuary. Thus, the usufructuary interest was potentially perpetual the interest of the usufructuary could be determined only by his consent, his abandonment or upon failure of his successors”.(emphasis mine) 3.12. The usufruct is capable of being inherited and the evidence in this suit points to that, and I cannot find sufficient evidence on the record to support a finding that the land in dispute was abandoned by Plaintiff’s father or his successors in title. Although it is in admission that Plaintiff and his father all travelled for sometime, neither party indicated the duration of these travels, or led any credible evidence of the surrounding Page16of22 circumstances of this departure to lead the court to a safe conclusion or finding that the disputed land was abandoned by the immediate family of Plaintiff’s father who are for all intents and purposes proper successors in the court’s view. In Atta Panyin and Another v. Asani II [1961] 1 GLR 305 - 316 (HC) the Court speaking through Ollenu J (as he then was) stated correctlythe position oflawonabandonment thus: “The principle governing abandonment is that land is not necessarily abandoned by reason only of the fact that it is not being used at any particular time. Abandonment consists not so much in allowing land to lie waste as in non-exercise or non-active assertion of a right to immediate control: see the Shai Hills Acquisition Case Land Court judgment, 3June1957,unreported.” 3.13. Again, in Awulae Attibrukusu III v. Oppong Kofi & 4 Ors (2009) JELR 66701(CA)the court statedthe same point but inthese words: “In total Oil Products Ltd. v. Obeng and Manu [1962] 1 GLR 228. It was held that Abandonment has a special meaning in Customary law. Mere neglect or non-user of land for a period however long does not in itself constitute abandonment. Some act or conduct must be exhibited by the owner which shows intention notto usethe land any longer.” 3.14. Finally in Awulae Attibrukusu III v. Oppong Kofi & 4 Ors (2009) JELR 66701 (CA) the Court stated authoritatively the position of the law on abandonment andhow it comes about thus: “Abandonment in law was defined in Kwao II v. Ansah [1975] 2 GLR 176 by Francois JA(as he then was) as follows:—"Land was deemed to Page17of22 be abandoned when the occupier of the land vacated its holding and ceased to exercise any right thereto for an unreasonably long time and didnot showany intention of returning toit".” 3.15. Defendant’s evidence is also not sufficient to ground a finding either that she possessed the land adversely or that Plaintiff’s case was caught by the statute of limitation. As the Supreme Court in Binga Dugbartey Sarpor v. Ekow Bosomprah (2020) JELR 92048 (SC) explained, for a party to succeed in such a plea, he must demonstrate that he is by law, in adverse possession of the land. The Court explained the application of Section 10(2)(3) and (7) of the Statute of Limitations Act, 1972 (NRCD 54) that a right of action to recover land does not accrue unless the land is in the possession of a person in whose favour the period of limitation can run, and where a right of action to recover land has accrued, and before the right of action is barred, the land ceased to be in adverse possession, the right of action does not accrue until the land is again taken into adverse possession. Subsection 7 explains “adverse possession” as possession of a personin whose favour theperiod oflimitation can run. 3.16. Atuguba JSC in Djin v. Musah Baako [2007-2008] 1 SCGLR 686 at 699 explained adversepossessionthus: “The law as we understand it… is that if a squatter takes possession of land belonging to another and remains in possession for 12 years to the exclusion of the owner, that represents adverse possession and accordinglyat the end of 12years the title of the owner is extinguished. That is the plain meaning of the statutory provisions, which I have quoted and no authority has been cited to us. The simple question is: didthe squatter acquireand remain inexclusive possession?” Page18of22 3.17. In Adjetey Adjei v. Nmai Boi [2013-2014] 2 SCGLR 1474 SophiaAdinyira JSC explained that adverse possession must be open, visible and unchallenged so that it gives notice to the legal/paper owner that someone was asserting a claim adverse to his. Defendant who claimed to be occupying the disputed land in her capacity as a member of the family which owns the disputed land could not be said to satisfy these requirements. Defendant whose case would have relied on this defence did not contain sufficient evidence to prove it in a positive way as Majolagbe v. Larbi [1959] GLR 190 has explained is required of matters capable ofproofin apositive way. 3.18. In all, I lean favourably towards Plaintiff’s evidence and find that Plaintiff’s father originally acquired the disputed land by first cultivation, and Plaintiff and his paternal siblings are the owners of the usufruct in the disputed land, having inherited same. WhetherDefendant has trespassed untoPlaintiffs’land 3.19. Any entry unto land without the permission of the true owner or those authourised by him amounts to trespass. It is a wrong against possession as explained in Chegu v. Dagomba [1977] 1 GLR 412 and the law remains the same that it is actionable per se. However, as stated by Wiredu J, once a court has found trespass it is bound to award damages but there must be abasis forawarding more thananominalsum. 3.20. Defendant admits that she has cultivated the disputed land with her son, and in this suit sets up a claim inimical to that of Plaintiff, so she cannot be considered at any rate Plaintiff’s tenant or as having been let unto the land Page19of22 by Plaintiff and his siblings.Plaintiff admitsthis also, so thatpoint is moot. Having found therefore, that the disputed land belongs to Plaintiff and his siblings, it follows, and I find, that Defendant having dealt with that land unto which she has entered without their permission, she has trespassed thereunto. 4. DAMAGES 4.1. Havingfound that Defendant has trespassed unto Plaintiff and his siblings land, I apply Chegu v. Dagomba (supra), to the end that damages are in order. The purpose of such an award of damages is to compensate the injured party and to place him in the same position as if the breach had not occurred or as close thereto as possible. As held in Cornelius Ogbu v. Access Bank (Gh) Ltd (2015) JELR 69870 (CA) the object of an award of damages is to give Plaintiff compensation for the damage, loss or injury suffered. In this suit no evidential basis for more than nominal damages hasbeen established, sodamages shall be nominal. 4.2. Additionally, by the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C.I. 52) each judgment debt shall bear interest at the statutory interest rate from the date of delivery of the judgment up to the date of final payment as provided in Rule 2(1). By Rule 1 that interest shall be calculated (a) at the bank rate prevailing at the time the order is made, and (b) at simple interest, but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner. In this suit, there is no agreement or some other applicable statutesetting outthe applicable interest. Page20of22 4.3. The statutory or prevailing bank rate as provided under Rule 4(1) is the bank rate prevailing at the time the judgement or order is made by the court and where there is doubt as to the prevailing bank rate, the 91 days Treasury Bill interest rate as determined by the Bank of Ghana shall be the prevailing bank rate as provided by rule 4(2). I fall on the reasoning of the Supreme Court in Daniel Ofori v. Ecobank Ghana Limited (2020) JELR 92012 (SC), since to my mind Rule 4(2) of C.I. 52 is applicable in computing interest in this suit at the statutory rate of 26.56 % per annum, which I have taken notice of as the Bank of Ghana 91-day treasury bill interestrateasat judgment. CONCLUSION Plaintiffs’ action succeeds, the Court makes the following orders in favour of Plaintiffsagainst Defendant: a. A declaration of Plaintiff and his siblings’ usufructuary ownership of all that farmland lying at a place known as “Nensu Ano” on Nkoranza stool land bounded on all sides by the landed properties of the late Opanin Kwaku Kudom, late Opanin Kofi Amoa, Opanin Akuna, Nana Konkome and afootpath. b. Recoveryof possession of the land described inorder (a) above. c. Nominaldamages for trespassin the sumof GHS 200. d. An order of perpetual injunction restraining Defendant and all those claiming through her from laying adverse claim to or dealing adversely with the land describedin order (a) above. Page21of22 e. Iassess Plaintiff’s costs at GHS 2000.00 f. Defendant shall pay Interest on the sums mentioned in orders (c) and (e) at the statutory rate of 26.56 % per annum from judgment till final payment. SGD. KWAMEADJEI MANU ESQ. (DISTRICTMAGISTRATE) Parties present (unrepresented) Page22of22