POLICE VRS KPAJAH (NR/DC/KPA/A1/7/24) [2024] GHADC 550 (30 October 2024)

IN THE DISTRICT COURT SITTING AT KPANDAI, NORTHERN REGION ON THE 30TH DAY OF OCTOBER, 2024 BEFORE HIS WORSHIP GODSON ETSE KUMADO, ESQ. THE DISTRICT MAGISTRATE SUIT NO: NR/DC/KPA/A1/7/24 ELIZABETH S. KOJO POLICE ] SUING PER HER LAWFUL ATTORNEY ] PLAINTIFF ALICE KODUA ] VRS YAGAGE KPAJAH ] DEFENDING ON BEHALF OF THE KPAJAH ] DEFENDANT FAMILY OF KATIEJELI ] _________________________________________________________________ JUDGMENT _________________________________________________________________ INTRODUCTION The Plaintiff took the instant action against the Defendant who is the head of the Kpajah family for the reliefs as endorsed on her amended writ of summons as follows: 1. A declaration of title and ownership of a building plot of about 35 by 30 feet, lying and situate at the eastern part of Katiejeli-Krachi road and bounded to the east by Kofi Yagage’s house; to the south by Lamatu Kojo Police; to the Western side is bounded by the Kpandai-Krachi Road and to the north by Osei Kofi Kabre. Page 1 of 19 2. Recovery of the said building plot measuring about 35 by 30 feet that Defendant is claiming ownership of. 3. Damages for trespass on the said land. 4. An order of interlocutory injunction restraining the defendant’s family, his agents, representatives and their workmen from interfering with the plaintiff and his family’s enjoyment of the said plot. 5. Cost of trial. 6. Any other orders that the court may deem fit. The Defendant on his appearing in court pleaded not liable to all the reliefs claimed against him by the Plaintiff hence both parties were ordered to file their respective witness statements in proof of their cases. THE CASE AND EVIDENCE OF THE PLAINTIFF By the summary of subject matter attached to her amended writ, the Plaintiff avers she is the only surviving child of her late father, Kojo Kra, also known as Kojo Police and brings the instant action on her behalf and on behalf of the Kojo Police family. She states that the disputed plot which is about 35 by 30 feet belongs to her family. The Plaintiff averred that the lands in Katiejeli are family owned. She traces her root of title to her great grandfather by name Kotobeche who, according to her, settled at Katiejeli and reduced the disputed land into his possession. The Plaintiff is the remaining child of the 31 children begotten by her father. After his retirement from the Police Service, Kojo Police farmed on the disputed plot and planted mango and Kipock (Kapok) trees on the land. Page 2 of 19 It is the case of the Plaintiff that in the 1930s, one Bidoor was granted part of the disputed plot to put up his building. The said Bidoor later left to settle at Kitari due to water scarcity in Katiejeli. It was later the grandfather of the Defendant came to stay with her grandfather and was permitted to stay in the house previously occupied by the said Bidoor. According to the Plaintiff, it was a temporary accommodation that was granted to the grandfather of the Defendant. It is the case of the Plaintiff that the Defendant has erected structures on the disputed plot and is developing same. She has used all reasonable means to get the Defendant vacated from the disputed plot but same has proved futile hence the instant action. In support of her case the Plaintiff testified through her lawful attorney and called two other persons to testify. By her witness statement which was adopted as her evidence in chief, the Plaintiff testified that her grandfather, Kojo Police was the first person to settle on the land which is about two (2) acres and planted trees on same. Her grandfather granted portions of the land to other persons including Kpajah Mani, who has now trespassed onto her family’s land and claiming same. According to the testimony of the Plaintiff, her grandfather did not give the said Kpajah Mani a land. Instead, he pleaded for a temporary place to stay and was granted the house built by Bidoor who had migrated to Kitari. According to the testimony of the Plaintiff, her late brother by name Kwame Johnson felled the trees on the disputed land. When the dispute on the land arose she reported the matter to the Odikro of Katiejeli and the Chief of Kpandai. At both palaces, the Defendant stated that he cannot litigate with the Plaintiff over the disputed plot but he has failed to vacate from the plot. THE CASE AND EVIDENCE OF THE DEFENDANT By his witness statement which was adopted as his evidence in chief, the Defendant testified that he is the head of the Kpajah family. He was told by his father that his grandfather, Kpajah Befar used to travel to Katiejeli for labourer works. On one of the occasions he decided to seek the permission of Plaintiff’s grandfather, Kojo Police who was then the head of his family and the head of the Nkame clan for grant of land to settle and farm instead of merely Page 3 of 19 being a labourer to them. Kojo Police then gave the disputed land to his grandfather to build and farm. It is the case of the Defendant that the disputed land is part of the land granted to his grandfather. According to the testimony of the Defendant, in those days land was not for sale. One only needed to see the chief or head of family of the area and his grandfather did just that by seeing Kojo Police who was the head of the Nkanme family. The chief of Katiejeli poured libation before his grandfather constructed his house. It is further the case of the Defendant that Kojo Police did not grant his grandfather a house to stay in temporarily, but rather a bare land was granted to him which he built on. The Defendant in support of his case called one witness to testify. ISSUES FOR DETERMINATION From the respective cases and evidence led by the parties, the issues arising for determination are as follows: 1. Whether or not the Plaintiff has the capacity to maintain the instant action. 2. Whether or not the land in dispute belongs to the Kojo Police family or to the Nkanme clan. 3. Whether or not the disputed plot is part of the land granted to the Defendant’s grandfather. BURDEN OF PROOF The law is settled that in an action for declaration of title to land, the burden rests on the Plaintiff to proof her claims on a balance of probabilities. In the instant case, the Defendant has not filed any counterclaim. The burden therefore solely rests on the Plaintiff to prove her case, failure of which her claim must fail. In a civil case such as this, the standard of proof Page 4 of 19 required as provided by Sections 11 and 12 of the EVIDENCE ACT, 1975 (NRCD 323) is a proof on the balance of probabilities. The relevant provisions are as follows: Section 11 (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 (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 basic law of evidence is therefore that where a party makes an averment which is capable of proof in some positive way which is denied by his opponent, he must proof that his averment is true by leading other evidence of facts and not by merely going into the witness box and repeating his averments on oath. The court summarized the position of the law in KLAH v PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139 in the following words, citing with approval the celebrated case of MAJOLAGBE v LARBI [1959] GLR 190 at 192: “Where a party makes an averment capable of proof in some positive way eg. by producing documents , description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating his averment on oath or having it repeated on oath by his witness. He proves Page 5 of 19 it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true” The Plaintiff in the instant case must therefore adduce the requisite evidence so that the court, on all the evidence, will find her averments to be true. The instant case being one for declaration of title to land, the burden lies on the Plaintiff to adduce evidence to establish her root of title, the mode of acquisition of the land and various acts of possession over the land, failure of which her claim for title must fail. In COMFORT OFFEIBEA (SUBSTITUTED BY VIVIAN ANKRA) v NII AMARTEY MENSAH (SUBSTITUTED BY DAVID OBODAI AND OTHERS, Civil Appeal No: J4/12/2019, dated 5th February 2020, the Supreme Court affirmed its earlier decision in ABBEY AND OTHERS v ANTWI V [2010] SCGLR 17 that: “In an action for declaration of title to land, the Plaintiff must prove, on the preponderance of probabilities, acquisition either by purchase or traditional evidence, or clear and positive acts of unchallenged and sustained possession or substantial user of the disputed land” I will therefore proceed to examine the issues raised for determination at the backdrop of the principles outlined above. ISSUES ONE AND TWO 1. Whether or not the Plaintiff has the capacity to maintain the instant action. 2. Whether or not the land in dispute belongs to the Kojo Police family or to the Nkanme clan. Page 6 of 19 I will deal with issues one and two together since the determination of issue one springs from the question whether the land in dispute is a family land or clan land. The issue became necessary for determination because the only witness called by the Defendant in support of his case, DW1, Joseph Asante Denteh, in his evidence before the court stated that the land in dispute belongs to the Nkanme clan and he is currently the head of the Nkanme clan and the disputed land is under his care. According to his testimony, the land in dispute was granted to the Defendant’s grandfather by Kojo Police who was the head of his family and head of the Nkanme clan at the time. He stated that he did so in consultation with other family members and elders of the clan. DW1 testified that seven (7) other persons succeeded as the head of the clan after the demise of Kojo Police. He further testified that he succeeded as the head of the clan in the year 2016. According to DW1, the Plaintiff does not have title of the land to recover same from the Defendant because at the time Kojo Police granted the disputed land to the Defendant’s family, he did so in his capacity as the clan head and that the property was not his personal property. He also testified that he as the head of the Nkanme clan was not consulted by the Plaintiff before the institution of the present action against the Defendant. He concluded that he is therefore not in support of the Plaintiff claiming the land in dispute from the Defendant. On her part, the Plaintiff testified through her lawful attorney that the land in dispute belongs to her family and that Plaintiff is the head of the family, she being the only surviving child of her father, Kojo Police. The Plaintiff testified that her grandfather, Kotobeche came to settle on the disputed land and gave birth to the Plaintiff’s father, Kojo Police and his brother. Upon his retirement from the police service, Kojo Police returned to farm on the disputed land and planted mango and Kipock (Kapok) trees on the land. The Plaintiff’s attorney testified that her grandfather, Kojo Police initially granted a portion of the land to one Bodoor who built a house on the land but later migrated to Kitari due to water crisis in Katiejeli. The Defendant’s grandfather then came and was granted the house which was built by the said Bidoor. Page 7 of 19 In further support of her case, the Plaintiff tendered in evidence Exhibits B and C which are a receipt headed “KRA KOJO POLICE” in the name of Siibu Sando David and a Statutory Declaration dated 6th November, 2023 made by the Plaintiff herein and in favour of Jampa Attaa Ben. According to the Plaintiff’s attorney, the said documents are to prove that the land in dispute belongs to the Plaintiff. The Plaintiff also during her cross-examination of the Defendant’s witness stated that her mother was the one taking care of the disputed land until her demise in the year 2017. It is also case of the Plaintiff’s attorney that her brother, Kwame Johnson was the one taking care of the land in dispute and he felled the Kapok trees on the land. During his evidence while under cross-examination, DW1 listed the main families that constituted the Nkanme clan as: the Denteh family, the Frico family, Kweku Thomas family, Yaw Agya Prah family, Number One family, and the Kojo Police family. He stated that the Kinyeni family later became part of the clan. In his answer again under cross-examination, DW1 in his bid to satisfy the court that the disputed land is clan owned listed the various persons who succeeded as head of the Nkanme clan. This is what transpired during the cross- examination of the DW1 by the Plaintiff’s lawful attorney: Q; The lands at Ketiajeli are not clan owned, they are owned by families and each family has its own land. A; That is not true. The disputed land is for the whole clan. It is not for any individual. The disputed land was given to the defendant long before we were born. Kojo police was the eldest person in the family at the time so he owned the lands. After his death, my father, Denteh took over the land. After his death Number One took over. Frico took over after the death of Number One. After Frico my elder brother known as Kwadwo Denteh took over the land. After him, Kofi Denteh came and took over. I took over after Kofi Denteh Page 8 of 19 As noted from the cases, one of the ways by which a Plaintiff prove title to land is by adducing evidence of acts of recent possession over the land. From the evidence led by the parties, it is not in doubt that there is the Nkanme clan of which the Kojo Police family is one of the constituent families. DW1 listed the names of the persons who succeeded as the head of the Nkanme clan over the years before his assumption of the role. The question then is, what acts of possession did these persons mentioned by DW1 exercised over the disputed land so as to make the disputed land a clan land and not family land? Apart from listing the persons who succeeded as heads of the Nkanme clan before him, DW1 did not adduce any further evidence to show their exercise of control particularly over the disputed land such as granting same to stranger farmers, collection of annual rents or food crops or the performance of sacrifices on the land in dispute by them. On the other hand, it is not disputed that the land in dispute was granted to the Defendant’s grandfather by Kojo Police several years ago. According to the case of the Plaintiff, the land belonging to her family is about 2 acres and that Kojo Police earlier granted a section of the land one Bidoor (who at other times was referred to by the Plaintiff as Budu) who built a house on the land but migrated to another community. According to the Plaintiff’s lawful attorney it was this same house that was granted to the grandfather of the Defendant by her grandfather. The Plaintiff has led further evidence through her attorney that she recently sold portions of the disputed land and attached copies of receipt and statutory declaration (Exhibits B and C) evidencing the said sale. It is worth mentioning at this stage that after the parties closed their cases, the court proceeded to conduct a locus inspection together with both parties. At the disputed land, the Plaintiff’s attorney led the court on the boundaries of the two acre land she claimed belonging to her family including the disputed piece of land. The Plaintiff’s attorney also showed the Page 9 of 19 court the land which she claimed was sold to one Sando David which lied some meters away from the disputed section of the land. On a consideration of the evidence led, I accept the case of the Plaintiff that the land is family owned and not clan owned. As I have indicated, apart from mentioning the names of persons who succeeded as heads of the Nkanme clan, including himself as the current head of the clan, DW1 led no further evidence of acts of possession exercised by these heads of the clan he mentioned over the disputed land. I find that even if those persons succeeded as head of the Nkanme clan, the land was never in their care and control, hence their inability to exercise any act of possession over same. On the other hand, I find that the Plaintiff has been able to prove that the disputed land belongs to his family. She has led evidence of acts of possession by the Plaintiff’s father, Kojo Police who granted sections of the land to Bidoor and also to the Defendant’s grandfather. She has adduced evidence of sale of sections of the land by the Plaintiff. According to DW1 during his cross-examination by the lawful attorney for the Plaintiff, the Plaintiff did not use the right channel in selling portions of the land because she ought to have consulted him. He stated during his cross-examination by the Plaintiff’s lawful attorney as follows: Q; The plaintiff sold part of her properties. Look at this document which is Exhibit B whether your name is part as the owners of the land. A; The plaintiff, Elizabeth you are mentioning is a family member of the Nkame family and her father is also a member of the Nkame family. But you are not a member of the family. You are from Nkwanta. My name is not on the said document. Elizabeth did not sell the land through the right process. She should Page 10 of 19 have consulted me who is the clan head before selling the land. She did not do that before selling the land. But our grandfather gave the land to the defendant. When the plaintiff came from Takoradi she was asking the defendant to vacate from the land. The defendant came and informed me and I also called my clan people and we did not agree for her to sell the land. We later heard she had sold the land. We are waiting for her to bring the receipts. From his answer, DW1 was fully aware of the sale of the portions of the land by the Plaintiff. In my view, if the land indeed belonged to the Nkanme clan, and the Plaintiff has sold portions of it, he (DW1) as the head of the Nkanme clan should have taken legal actions against the Plaintiff to set aside those sales. DW1’s failure to take any positive action to set aside the sale by the Plaintiff is a clear indication that he does not have title over the disputed land. Accordingly, I find that the disputed land forms part of the Plaintiff’s family land. The Plaintiff as the head of her family is entitled is clothed with the requisite capacity to mount the instant action. 3. Whether or not the disputed plot is part of the land granted to the Defendant’s grandfather. It has been the Plaintiff’s contention that when the Defendant’s grandfather migrated to Katiejeli, her grandfather granted him a temporary accommodation in the house that was previously built by one Bidorr who later migrated to Kitari due to the water crisis. According to the testimony of the Plaintiff’s attorney, her grandfather had no agreement with the Defendant’s grandfather to build a structure on the land. The Defendant have however trespassed onto the disputed land and has constructed structures on the land despite saying at the palaces of the Katiejeli and Kpandai chiefs that he cannot litigate with his landlords. Page 11 of 19 In support of her case the Plaintiff called PW1, Nana Akwasi Kumah and PW2, Nana Nawuraja Beya to testify. PW1 testified that when the Defendant’s family migrated from Banda to Katiejeli, they had no place to stay and so Kojo Police granted the existing house built by Bidorr on the disputed land to them. The house was given to the Defendant’s family as a temporary place to stay. He concluded by stating that the Defendant’s family does not come from Katiejeli and so does not own any lands there. PW2 on his part testified that the disputed land was not given to the Defendant’s family. Instead, it was the old house on the disputed plot that the Defendant’s family came to plead for for purposes of staying there. There was no one staying in the said house and so the Defendant’s grandfather was granted the house as a temporary place of accommodation and to be taking care of same. I must reject the evidence of PW1 right at this juncture and make no further considerations in respect of same. The Plaintiff filed a witness statement for Nana Akwasi Kumah (PW1) to testify. During his cross-examination however, the witness who appeared in court to testify admitted that he is not Nana Akwasi Kumah. This is what transpired during the cross- examination of the supposed PW1 by the Defendant: Q; You are not Kwasi Kumah. A; Yes, Kwasi Kumah is my elder brother. He has given me the authority to testify on his behalf Q; It is Kwasi Kumah I know. Why is he not here? A; The reason he is not here is that he passed on about 3 weeks ago and he has authorised me to testify for him. When the dispute arose and my brother was ill, I was the one who sat on the matter. Page 12 of 19 From the answers given by the witness, the said Nana Akwasi Kumah died after filing the said witness statement and he clandestinely came to court to represent himself as Nana Akwasi Kumah. This was a witness who took oath and swore that he is Nana Kwasi Kumah only for the cross-examination to reveal that he is not the actual person known as Nana Kwasi Kumah. ORDER 26A RULE 1(2) of the DISTRICT COURT AMENDMENT RULES, 2016 (C.I. 97) provides that: “1. (2) For the purposes of this Order, a witness statement is a written statement signed by a person who is required to give evidence in court and contains the evidence which that person proposes to give at the trial” To my understanding, the import of this above-cited rule is that a witness appearing in court to testify can only rely on a witness statement filed and signed by him. The witness statement signed by him represents the evidence which hitherto he would have orally presented before the Court. A witness appearing before the court therefore cannot rely on a witness statement filed and signed by another person. In the present case, the actual Nana Kwasi Kumah who prepared and signed the witness statement having passed away, the witness who appeared to testify could not have substituted him to give evidence on his said witness statement. The witness claimed the deceased authorised him to come and testify in the instant matter. Supposed his assertion was true, the said authorization by the deceased to him to testify on his behalf lapsed upon his demise. If the witness was minded to testify in support of the case for the Plaintiff, he ought to have filed a witness statement in his own name and signed by him. It is for this reason that the evidence of the said PW1, Nana Akwasi Kumah is rejected in its entirety. As indicated earlier, the main dispute between the parties is whether or not the disputed land forms part of the land granted to the Defendant’s grandfather. This is because, the Defendant Page 13 of 19 does not dispute that the land was granted to his grandfather by the Plaintiff’s father, Kojo Police. On his part, the Defendant says he is opposed to the Plaintiff’s claim to the land because that is the entrance to his house. He further stated that his grandfather and father lived on the disputed land and swept there and he is the one now sweeping there. The evidence led by both parties is traditional in nature because none of them produced any documents in support of his or her case. No documents were granted to the Defendant’s grandfather so as to delineate the extent of land granted to him. The Supreme Court, in the case of COMFORT OFFEIBEA (SUBSTITUTED BY VIVIAN ANKRA) v NII AMARTEY MENSAH (SUBSTITUTED BY DAVID OBODAI ND OTHERS) (supra) restated the guiding principles to be followed by the court in assessing traditional evidence adduced by the parties. The Court, after reviewing the previous judicial pronouncements on the subject, stated that: “Based on all the above discussions, we re-state and re-emphasize the essential guidelines for assessing traditional evidence by the court as follows: 1. The court must be slow in being carried away by the impressive manner in which a party narrated his or her version of the traditional evidence and how coherent and methodical that is. 2. The court must pay particular attention to undisputed acts of overt acts of ownership and possession on record in addition to an examination of the events and acts therein within living memory which have been established by evidence. 3. Consider which of these narratives is more probable by the established acts of ownership. Page 14 of 19 4. Finally, the party whose traditional evidence coupled with established overt acts of ownership and possession are rendered more probable must succeed unless there exists on the record other valid reasons to the contrary.” In the instant case, my consideration of the evidence led by the parties must be in light of recent acts of possession exercised over the disputed land and not on how coherent and appealing one presented his or her story. In support of her case the Plaintiff testified that it was the one house previously constructed by Bodorr on the land that his father granted to the Defendant’s grandfather by her. She also stated that her grandfather planted some mango trees and Kapok trees on the land and itt was her late brother who felled the trees with the intention of putting up stores on the land but could not do so before her demise. In further support of her case, the Plaintiff tendered in evidence EXHIBITS B and C which are a receipt in the name of Kra Kojo Police and statutory declaration demising some portions of the land to some persons. According to her, these are to prove Plaintiff’s ownership of the disputed land. On his part, the Defendant denied the Plaintiff’s assertion that it was only a house that was granted to his grandfather. He stated that it was a bare land that was granted to his grandfather and he constructed his house on same. That it is the said house they intended to extend that provoked the instant action by the Plaintiff. During his cross-examination by the Plaintiff, the Defendant maintained that the disputed plot lied in front of his house and it is the entrance to his house, hence his opposition to the Plaintiff’s claims. According to him, the disputed land forms part of the land granted to his grandfather and his grandfather and father swept the disputed plot and he is currently the one sweeping there. He answered during his cross-examination by the Plaintiff’s attorney as follows: Q; When the house in which one Budu once lived was granted to your grandfather, was there any agreement that you take the disputed land as well? Page 15 of 19 A; Yes it is the same land. I am the one who sweep there. Q; What you are saying is not correct. You never swept the disputed land while the Kipock trees were on the land. A; I am the one sweeping there. My grandfather and father swept there as well. The Plaintiff stated that her brother, Kwame Johnson was the one who cut down the Kapok trees on the land. The Defendant however denied this and stated that the trees were felled by the constructor during the time the Katiejeli-Buya road was being constructed. The Plaintiff did not lead further evidence in proof of her assertion that the trees were indeed felled by her late brother, Kwame Johnson. At the locus inspection however, the Plaintiff’s attorney pointed to a section of the disputed plot and said that was where the Kapok trees were. In her evidence in chief, and evidence during cross-examination, the Plaintiff strongly maintained that it was only the house in which Bidoor/Budu lived which was granted to the Defendant’s grandfather and that a bare land was not granted to him. At other times, the Plaintiff stated that the Defendant’s grandfather only pleaded for the grant of land to put up a house. At the locus inspection by the court however, apart from the old ruins of the said house which belonged to Budu, as pointed by both parties, the Defendant pointed to other buildings on the land which he said belonged to members of his family. He pointed to a three-room compound house and an eight-room compound house all on the land he claimed was granted to his grandfather by the Plaintiff’s father. Other rooms were also constructed adjoining the old ruins of Budu’s house which Defendant said belonged to Mane Kpajah. Not only that, the Defendant also pointed to some compacted or sedimentary rocks on the land and said they are the graves of some of the members of his family buried on the land. These old graves lied in between Budu’s house and the disputed land. Page 16 of 19 Weighing the two sides of evidence presented by both parties, I am of the considered opinion that the evidence led by the Defendant accords more with the established principles on assessment of traditional evidence than that of the Plaintiff. Apart from the Plaintiff stating that her brother felled the Kapok trees on the disputed land, which was denied by the Defendants, no positive acts of possession has been exercised by her over the disputed land over the years. Exhibits B and C do not help her case in this regard. I say so because even though the said exhibits prove that that the entire two-acre land belongs to her family and not the Nkanme clan, the said exhibits do not prove that the disputed 35 by 30 feet piece of land remained under the control and possession of the Plaintiff’s family and so was not part of the land granted to the Defendant’s grandfather. Again, even though the Plaintiff stated that she has two houses on the disputed land, the court notes from its observations at the locus inspection that these houses pointed to by the Plaintiff’s attorney are adjacent the disputed plot and not actually on the disputed plot. It is not clear how long the Defendant and his family have lived on the disputed land but the Plaintiff does not dispute that the Defendant’s grandfather and father lived on the disputed land. Even though the Defendant tendered in evidence no documents of the grant of the land to his grandfather, a valid customary oral grant of land is recognized by our laws in that customary law knows no writing. See the case of MAJORIE ATSOI CODJOE v OKPOTI SOWAH [2022] 180 GMJ 190 at 209 which held per Owusu (Ms) JSC that: “The law is settled that no document is necessary to effectuate customary grant given that, customary law knows no writing” From the various acts of possession exercised by the Defendant’s family on the land, I am of the opinion that the disputed land forms part of the land granted to the Defendant’s grandfather. I do not accept the evidence of the Plaintiff’s attorney that the Defendant’s Page 17 of 19 grandfather was only given a house to stay in temporarily. This fact is later admitted by her when she stated during her cross-examination that it is not the land that was granted to the Defendant’s grandfather she is claiming, rather the disputed land lying in front of it. I find from the evidence that the Defendant and his family have been living on the land granted them for several years and even buried their deceased relatives on the disputed section of the land without any opposition from the Plaintiff’s family. I therefore find the case of the Defendant more probable than that of the Plaintiff. The Plaintiff’s claims are hereby dismissed. CONCLUSION Two main issues were raised by the respective cases and evidence led by the parties. The first and second issues being whether the Plaintiff has the capacity to maintain the instant suit and whether the land in dispute is clan or family owned. The Plaintiff claims her family owns the two acres land as described in her evidence in chief including the disputed building plot. The Plaintiff has been able to prove several acts of possession exercised over the land by her grandfather, Kojo Police as well as by the Plaintiff herself who recently sold portions of the land to some other persons. I therefore hold that the larger tract of land including the disputed land is the property of the Plaintiff’s family and not the Nkanme clan. Consequently, the Plaintiff as the head of her family is the proper person to institute the instant action. On issue 3, which is whether the disputed plot measuring 35 by 30 feet forms part of the land granted to the Defendant’s grandfather by Kojo Police, I find in favour of the Defendant. Testing the oral evidence led by the parties in light of recent acts of possession over the land, I find that the Defendant’s family for several years has been in uncontroverted possession of the land, building several other houses on the land including burying their deceased members of family on the land. I therefore reject the Plaintiff’s case that the Defendant’s grandfather was only granted a temporary accommodation in the one house previously built by Bidoor. Plaintiff on the other hand led no cogent evidence to establish any acts of Page 18 of 19 possession by her family over the disputed piece of land so as to convince the court that her family remained in possession of that small piece of land and that same never formed part of the land granted to the Defendant’s grandfather. For the foregoing reasons, I find that the disputed plot forms part of the land granted to the Defendant’s grandfather by the Plaintiff’s grandfather. Plaintiff’s claim against the Defendant therefore fails and is dismissed in its entirety. Cost of GH¢1,000 is awarded against the Plaintiff in favour of the Defendant. SGD H/W GODSON ETSE KUMADO Page 19 of 19