UDEN VRS NANBILA (NR/DC/KPA/A1/1/24) [2024] GHADC 553 (16 October 2024)

IN THE DISTRICT COURT SITTING AT KPANDAI IN THE NORTHERN REGION ON 16TH OCTOBER, 2024 BEFORE HIS WORSHIP GODSON ETSE KUMADO, ESQ. THE DISTRICT MAGISTRATE SUIT NO: NR/DC/KPA/A1/1/24 WUCHA UDEN ] SUING ON HIS BEHALF AND ON BEHALF ] PLAINTIFF OF THE WUCHA KIDIDAN FAMILY ] OF WUCHADO ] VRS POAMBI NANBILA ] HEAD OF LIKPALDAM FAMILY OF KOJOBONI ] DEFENDANT _________________________________________________________________ JUDGMENT ________________________________________________________ INTRODUCTION The Plaintiff took the instant action against the Defendant on his own behalf and on behalf of the Wucha family of Wuchado. The Defendant has also been sued in his capacity as the head of the Likpaldam family of Kojobone. By his amended writ of summons, the Plaintiff claims against the Defendant the reliefs as endorsed on his writ of summons as follows: 1. A declaration of title and ownership of a farm land of about 100 acres, lying and situate at the western part of Wuchado stream as a boundary between Balai and Kojoboni. Page 1 of 28 2. Recovery of the said land of about 100 acres that the Defendants encroached. 3. Damages for trespass on the said land. 4. An order of perpetual injunction restraining the Defendants, their agents, representatives and their workmen from anyway interfering with Plaintiff and their family’s quiet enjoyment of the said farm land lying and situate at the western part of Wuchado stream as a boundary between Balai and Kojoboni. 5. Cost of trial. 6. Any other order that the court may deem fit. An attempt at settlement of the dispute between the parties having proved futile, the parties were ordered to file their witness statements in proof of their respective cases. THE CASE AND EVIDENCE OF THE PLAINTIFF By the summary of subject matter of claim attached to his writ, the Plaintiff claims that he is the head of the Wucha Kididan family. His late father, Wucha Kididan was the first person to settle at the present day Wuchado with the permission of the Odikro of Balai. He stated that the Defendant’s family trespassed onto their lands without the permission of the custodian of the Balai lands and sprayed about 100 acres of their farmlands. He then summoned the Defendant before the Chief of Balai where it was decided that both parties should go and share the land between them. The Defendants failed to comply with the said orders, hence the instant suit. In support of his case, the Plaintiff testified through his lawful attorney and called two other witnesses to testify. Page 2 of 28 By his witness statement which was adopted as his evidence in chief, the Plaintiff’s lawful attorney testified that his grandfather by name Wucha Kididan and his younger brothers namely: Tagmar Kididan, Kpaajor Kididan and Unabir Kididan first settled at a place called Onyumbo. That as their population grew, the lands became insufficient for them and so his grandfather moved to the disputed land which is the present day Uchado where he met the Odikro of Balai at the time by name Nana Kwadjo who granted him the disputed land. The Odikro and his brothers namely, Kinyinkide Gongon, Anupaluwe, Bilesase and some others told their grandfather that the land was previously their farmlands and same belonged to them. The Odikro did not take any moneys from their grandfather for the grant of the land but only requested for drinks and a fowl for pacification of the land for a peaceful stay by them and a bumper harvest. His grandfather took possession of the land granted him and made their place of abode there and the community was named “Uchado” after their grandfather. Nana Kwadjo and his brothers instructed their grandfather to bring farm produce for the celebration of the new yam festival which practice still exists among the people of Uchado. According to the testimony of the Plaintiff’s attorney, the Odikro of Balai and his brothers made it known to his grandfather that the people of Balai do not farm beyond the stream which lies at the western part of Uchado towards Kojoboni, neither do the people of Kojoboni farm beyond the stream towards Uchado. Their grandfathers have been farming on the disputed land without any hindrance from any person until recently some members of the Defendant’s family trespassed onto their lands, claiming ownership of same. The matter was reported to the Chief of Balai who ruled that since both parties are of the same tribe, they should go and share the farmland. The Defendant’s family defied the said orders and the matter was further reported to the Odikro of Balai by name Nana Sammy Anyabaso who sent a delegation to inspect the land. The Odikro then divided the land between the parties but the Defendant’s family disagreed hence the instant suit. Page 3 of 28 In support of his case the Plaintiff called Nana Sammy Anyabaso (PW1) and Unabir Kididan (PW2) to testify. Their respective testimonies will be considered shortly. THE CASE AND EVIDENCE OF THE DEFENDANT The Defendant on his part denied the claims of the Plaintiff and filed a statement of defence and counterclaim. It is the case of the Defendant that the disputed land was farmed by his forebears since the 1960s. He also states that there is no real demarcation between the Kojoboni and the Balai lands. According to the Defendant, the Plaintiff’s father and some members of the Plaintiff’s community sought the consent of his family to farm on the disputed land which belongs to his family. It is the case of the Defendant that his father settled at Kojoboni while farming on the disputed land. According to the Defendant, one man by name Nsemawu gave the disputed land to their father which land shares a common boundary with the farmland of one Kastah of Balai. It is the further case of the Defendant that his family and the family of the Plaintiff farmed adjoining each other without any issues until in the year 2014 when the people of Wuchado started infiltrating their farmlands on the ground that their population has increased. According to the Defendant, the disputed land is only a fraction of the larger portion of land measuring about 500 acres which belongs to his family. He stated that the said land is bounded to the west by the Kojobone – Takanado road; on the east by a three-hill-range which runs west-east; on the northern end by the Wabitiib farms and the Kujah lands. According to the Defendant, when Plaintiff reported the matter to the Balaiwura, he ruled that the people of Kojobone and Balai are of one family. They farm interchangeably and as such, there is no definite boundary between the Balai and Kojobone lands. He therefore ordered that the parties should go and farm the lands that they previously farmed. According to the Defendant, the Plaintiff, dissatisfied by the decision of the Balaiwura, proceeded to report the matter to the Odikro of Balai. The Odikro of Balai shared the lands for both parties Page 4 of 28 but the Defendants disagreed with his ruling. The Defendant therefore counterclaim for the following reliefs against the Plaintiff: a. Declaration of title and ownership to all that parcel of land totaling about 500 acres including the disputed land, lying and situate at Kojobone and bounded to the north by Wabitiib farms, on the east by three hill ranges, and the west by feeder road running from Kojobone to Takanado and on the south by Kujah lands. b. Recovery of the said land. c. An order of perpetual injunction restraining the Plaintiff, his agents, assigns, workmen, customary successors, privies and any person claiming through him from interfering with the defendant’s possession, occupation and use of the disputed land. d. Damages for trespass. e. Costs f. Any other order(s) that the court may deem fit. The Defendant testified in support of his case through his lawful attorney. By his witness statement which was adopted as his evidence in chief, the attorney for the Defendant testified that his father, by name Ali migrated from Kucha and settled at Kojobone around the 1950s while farming on the disputed land. His father’s landlord, Nsemawu first granted to his father lands within Kojobone for farming. Two years later, the said Nsemawu granted the outskirt lands, which is, the disputed land to his father for farming purposes. Nsemawu told his father that the land shares boundary with the farmland of Kastah of Balai. Page 5 of 28 The lawful attorney testified and stated that there is a tree on the land to which they offer sacrifices in times of draught as they were taught by their landlord, Nsemawu. The Defendant called four other persons to testify in support of his case. These are: Nana Kastah Boamah (DW1), Tapar Njasam (DW2), Nana Papa Kwaku Philip (DW3) and Nsemawu Kwaku Dapaah (DW4). The testimonies of these witnesses will be analysed shortly in this judgment. EVIDENCE OF THE SURVEYOR (CW 1) In the course of the hearing, the Court ordered the parties to engage the services of a licensed surveyor to prepare a composite plan in respect of the lands claimed by them. After the parties testified and called their witnesses, the court called the surveyor who prepared the composite plan in respect of the land to testify and to tender in evidence the said plan. CW1, Doota Believing Thomas in his evidence confirmed that he prepared the composite plan in respect of the lands claimed by the parties. He tendered the said plans in evidence as EXHIBITS “CT 1” and “CT 2”. Exhibit CT 1 covers the land claimed by the Plaintiff while Exhibit CT 2 covers the land claimed by the Defendant. The parties were thereafter afforded the opportunity to cross-examine the court witness on his report tendered before the court. Exhibit CT 1 reveals that the total land claimed by the Plaintiff is 450 acres while by Exhibit CT 2, the land claimed by the Defendant measures 71.45 acres and lies within a section of the vast land claimed by the Plaintiff. ISSUES FOR DETERMINATION BY THE COURT From the respective cases put forth by the parties, the issues for determination could be set out as follows: 1. Whether or not the disputed land is owned by the family of Nana Sammy Anyabaso or the Nsemawu family. Page 6 of 28 2. Whether the boundary mark between the Plaintiff’s land and the Defendant’s land is the Kujah stream. BURDEN OF PROOF Generally, the rule in civil cases is that the burden is on the Plaintiff to prove that the facts he is asserting are true. He must adduce sufficient evidence so that the court, on all the evidence may be convinced of the existence of the facts claimed by him. This requirement is as provided by Sections 10 and 11 of the Evidence Act, 1975 (NRCD 323), the relevant provisions of which are 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. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11. Burden of producing evidence defined (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. Page 7 of 28 (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. The position of the law was further explained by the Supreme Court in the case of DON ACKAH v PERGAH TRANSPORT [2011] 31 GMJ 174 where the Court noted 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 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 law is also settled that where a Defendant to an action files a counterclaim, he bears the same burden as that of the Plaintiff to prove his counterclaim. See the case of YEBOAH v AHELE [2012] 44 GMJ 37 C.A where the Court of Appeal per Mariama Owusu J.A held as follows: “The position of the law is that in an action for declaration of title, the burden of proof is always on the Plaintiff to satisfy the court on the balance of probabilities but where Page 8 of 28 the defendant files a counterclaim, then the same burden of proof will be used in evaluating and assessing the case of the defendant just as was used to evaluate or assess the case of the plaintiff against the defendant”. The Defendant in the instant case has filed a counterclaim for declaration of title to some 500 acres of farmland including the farmland claimed by the Plaintiff and recovery of possession of same. The burden therefore also lies on him to prove his counterclaim on the balance of probabilities. EVALUATION OF THE EVIDENCE AND DETERMINATION OF THE ISSUES 1. Whether or not the disputed land is owned by the family of Nana Sammy Anyabaso or the Nsemawu family. It has been the case of the Plaintiff that the land was granted to his grandfather, Ucha by the Odikro of Balai at the time by name Kwadjo Balai and his brothers namely Kinyinkide Gongon, Anupubaluwe, Bilesase and some others. According to the Plaintiff his grandfather first settled at a place called Onyumbo but when the land became insufficient for them, he pleaded for and was granted the disputed land where he made his place of abode and farmed. The community therefore was named “Uchado” since his grandfather was the first person to settle on the land. According to the testimony of the Plaintiff’s lawful attorney, the Odikro told his grandfather that the land in dispute was previously their farmlands and thus belong to them. The Defendant on his part denied that the land belongs to Odikro. He stated that his father by name Ali was the first person to settle on the disputed land sometime in the 1950s before the settling of the Plaintiff’s grandfather. He also stated that his father’s landlord was one Nsemawu. The said Nsemawu first granted his grandfather the infield lands of Kojobone for Page 9 of 28 his farming activities. Two years later, Nsemawu granted the outfield land which is the land in dispute to his father for his farming activities. By his evidence in chief, the Defendant’s lawful attorney stated that the land granted to his father is about 350 acres and the disputed land is only a fraction of the said land. In further proof of his case the lawful attorney for the Defendant testified that there is a tree on the land to which they offer sacrifices in times of draught. It was the said Nsemawu who thought his forebears how to perform the said sacrifices which they have continued till date. In support of his case the Plaintiff called two witnesses to testify. PW1, Nana Sammy Anyabaso testified that he is the Odikro/Esuwuliwura and the custodian of the Balai lands. He testified that as the allodial title holder of the Balai lands, he is the one responsible for the management of the Balai lands. He further testified that the disputed land was previously occupied by his ancestors namely: Anupubaluwe, Bilesase, Kinyinkide Gongon and others. They farmed the disputed land for years and shared a common boundary with the Nchumburung by the stream which separates the Balai lands from the Kojobone lands. PW1 further testified that when Plaintiff’s grandfather came from Togo, he first settled at a place called Onyumbo but was later granted the disputed land by his ancestors. The Plaintiff’s grandfather settled on the land and the place became known as “Uchado”. According to PW1’s testimony, in the year 2022/2023 the dispute between the parties on the disputed land was reported to him and he told both parties that the land belongs to his family. He further told the parties that his predecessors farmed on the disputed land until one Abutoror and his uncle, Nsemawu were granted portions of the land to farm upon their request. The said Abutoror later abandoned the land and the Defendants encroached onto same and started farming on the land. According to the testimony of PW1, when the Plaintiff instituted the action one Nana Papa Kwaku Philip who is the Amankrado of Kojobone came to plead with the court for the matter to be resolved by him (Nana Sammy Anyabaso). Page 10 of 28 In further support of his case the Plaintiff called PW2, Unabir Kididan to testify. He also stated that his grandfather, Ucha first settled at a place called Onyumbo before he was later granted the disputed by the Odikro of Balai at the time by name Nana Kwadjo. He also testified that he was a little boy at the time. The land owners did not take any monies for the grant of the land but requested that they present a fowl and drinks for pacification of the land for their peaceful stay and for a bumper harvest. PW2 further testified that in 2023 the Defendant’s family trespassed onto the land and the matter was reported to the chief of Balai who ruled that both parties should go and share the land since they are both farmers. The Defendant’s family defied the orders of the Balaiwura and the Plaintiff again reported the matter to the Odikro of Balai who divided the land between the parties but the Defendant’s family disagreed. On his part the Defendant called four (4) witnesses to testify in support of his case. DW1 Nana Kastah Boamah testified that he is the chief of Balai and that when the matter was reported to him by the Plaintiff, he sent a three-man delegation to inspect the land. The delegation found out that the Defendant’s family did not encroach onto Plaintiff’s land but are only farming on the land which they have been farming for the past 40 years. The Plaintiff requested that he vacate the Defendant’s family from the land because they are from Kojobone but he told them he could not do so because the Defendants have been farming on the disputed land for the past forty (40) years. He therefore told the parties to go and farm their respective farmlands for peace to prevail. The Plaintiff then disagreed and reported the matter again to the Odikro. DW1 concluded his testimony by stating that the land in dispute forms part of the Kojobone lands and not the Balai lands. DW2, Tapar Njasam testified that he was sent by the Kpandai Konkomba chief to come and testify to assist the court arrive at the truth of the matter. He stated that the matter went before the Konkomba chief for settlement and the decision reached was that both parties should continue to cultivate their respective lands. He concluded by saying that if the Page 11 of 28 Defendants are asked to vacate the land, there are no vacant lands at Kojobone for them because all the lands there have owners. In further support of his case the Defendant called DW3, Nana Papa Kwaku Philip to testify. He stated that he is the Amankrado of Kojobone and that the Defendants are settlers of the Nchumburung’s of Kojobone. He testified that Nsemawu and his son, Abutotoro farmed the disputed land and later granted same to one Ali and his family. He also stated that the disputed land is about 500 acres. According to DW3, the Plaintiffs are settlers or tenant farmers of the Kastah family and are farming on Kastah’s farmlands. The Plaintiff’s family and the family of the Defendants were adjoining land owners until the year 2014 when the dispute regarding the disputed land started. He also testified that when the matter was reported to the Chief of Balai, he advised both parties to go and continue farming on their respective farmlands. The Defendant finally called Nsemawu Kwaku Dapaah (DW4) to testify in support of his case. He stated that his father by name Nsemawu farmed on the disputed land. One Ali and his brother pleaded for land to settle on and his father settled them at the present day Likpaldado. The said Ali and his brother also pleaded for land for their farming and his father, Nsemawu granted to them a portion of the disputed land. He further stated that there is a tree on the land which his family regarded as a god to which they offered sacrifices. DW4 concluded and stated that he is one of the sons of Nsemawu and the head of the Nsemawu family and therefore testifies that the land belongs to his family which they have granted to the Defendant’s family. From the respective cases and evidence led by the parties, it is clear that while the Plaintiff claims ownership of the land through the family of Nana Sammy Anyabaso, the Defendant claims his title to the disputed farmland through the family of Nsemawu of Kojobone. Both parties do not dispute that the matter was referred to both the Chief of Balai and the Odikro Page 12 of 28 of Balai for settlement. During his cross-examination by the Defendant’s lawful attorney, the Plaintiff’s lawful attorney maintained that when the matter was reported to the Odikro of Balai, he asked that the Defendant come along with their landlord and they went with Nsemawu. According to the Plaintiff’s lawful attorney, the said Nsemawu was questioned by the Odikro of Balai on what right he had to grant the land to the Defendant’s family. Nsemawu then admitted his wrong and apologized in the presence of the Defendant. This is what transpired during the cross-examination of the Plaintiff by the lawful attorney for the Defendant: Q. I am putting it to you that if Nsemawu was not the owner of the land, will he have had the right to give same to my grandfather to farm? A. When Nsemawu gave the land to your grandfather, Nana Anyabaso called Nsemawu and questioned him on what right he had to grant the land to your grandfather. Nsemawu, in your presence admitted he was wrong and apologized to Nana Anyabaso. Q. I am putting it to you that I could not have been present at the said meeting as you allege because at the time the land was given to my grandfather, I was not even born. A. It was last year, in 2023 when the dispute started that Nana Anyabaso invited the said Nsemawu including yourself. I am not referring to the date the land was given to your grandfathers many years ago. Q. What you just said is not true. You summoned us at the Palace of Nana Anyabaso and we were asked to come along with our grantor. We then went with Nsemawu. Page 13 of 28 A. We did not summon you before Nana Anyabaso. We only reported to him that we saw some persons encroaching on our land. He then called you and asked you to come with your landlord. The Defendant’s lawful attorney admits the matter went before the Odikro of Balai and in his own words, the Odikro asked that they come with their landlord and they went with Nsemawu. On the assertion by the Plaintiff that the said Nsemawu, on being confronted on what right he had to grant the land to the Defendant’s family, the Defendant’s lawful attorney neither denied the said assertion nor provided a contrary account of what exactly transpired before the Balai Odikro at the said sitting. It also became apparent during the hearing that after the Plaintiff instituted the action, DW3, Nana Papa Kwaku Philip who is the Amankrado of Kojobone pleaded with the court for the matter to be amicably resolved between the parties. This fact was admitted by DW3 himself that when the court granted his plea, he reported the matter to the Odikro of Balai. He stated under his cros-examination thus: Q. Do you remember you came to this court to plead to go and resolve the issue between us at home? A; Yes Q. When the court granted you your plea did you go to Kojoboni for the settlement of the matter or you went to Balai? A; Balai before the Odikro. Page 14 of 28 DW3 insisted that he reported the matter to the Odikro because he regards him as his grandfather and one who could resolve the dispute between the parties. He stated as follows: Q. Why did you not send the matter to the elders of Kojoboni for settlement but you chose to send same to Balai? A; I acted by the order of the court. The court advised that I should send the case to whoever I think could settle the matter. I see Odikro as my grandfather and someone who could advise the parties. I did not report the matter to him because he is the owner of the land. During his cross-examination by the Plaintiff’s lawful attorney, DW4, Nsemawu Kwaku Dapaah admitted that he was the one who sent DW3 to the Odikro’s palace for the resolution of the dispute by him. He stated: Q; Were you the one who sent the Amankrado to Nana Anyabaso’s palace? A; Yes The evidence on the record reveals that the parties met at the palace of the Balai Odikro (PW1) on at least three occasions for the resolution of the dispute between the parties. During his cross-examination by the lawful attorney for the Plaintiff, the Defendant’s lawful attorney stated that they met before the Balai Odikro on three occasions and not four as was suggested by the lawful attorney for the Plaintiff. In their respective testimonies before the court, DW3, Nana Papa Kwaku Philip and DW4, Nsemawu Kwaku Dapaah both claim to be the owners of the Kojobone lands. There is however no piece of evidence to suggest that the parties ever appeared before any of them for the resolution of the instant dispute between parties in respect of the disputed land. The evidence on the record rather suggests that on all the three Page 15 of 28 or four occasions that the parties met to attempt to resolve their dispute, they went before the Balai Odikro. DW1, Nana Kastah Boamah testified for and on behalf of the Defendant. In his evidence in chief, particularly paragraph 16 of his witness statement, DW1 stated categorically that the disputed land does not form part of the Balai lands. He insisted that the disputed land rather forms part of the Kojobone lands. Paragraph 16 of his witness statement reads: “16. That the said disputed land that defendant is faming is for Kojobone farm land and not for Balai farm land and therefore defendant has not encroached on plaintiff farm land.” During his cross-examination by the lawful attorney for the Plaintiff however, when he was asked whether the land in dispute belongs to the Nawuris of Balai or the Nchumburungs of Kojobone, DW1 stated that the land belongs to both of them; and that there is no definite boundary between them. He stated: Q. Is the land in dispute part of Nawuri lands or the Nchumburung lands? A. We and the Nchumburungs are brothers, so we do not have a boundary between our lands. We farm together like brothers. Q. My question is, whether the land in dispute forms part of the Balai lands, but they were farming together with the Nchumburung or the vice-versa. A. The land is for both Nchumburungs and Nawuris. We do not have a boundary. Page 16 of 28 DW1 also admitted that the father of the Odikro farmed on the disputed land with his father even though Odikro himself did not farm on the land. If the land did not form part of the Balai lands as claimed by DW1, how will his father and the father of the Odikro, as he claims, had the right to farm on the land? Again, DW1 who had earlier stated in his evidence in chief that that the land does not form part of the Balai lands, now states during his cross- examination that the Plaintiff’s family are farming on his lands. He stated thus: Q. We are farming on Nana Sammy Anyebaso’s land and that is the land in dispute. We are not on your land. A. You are farming on my land. The dispute concerning the land in dispute was brought before me in 2014, 2023 and 2024. It was when the decision did not go in your favour that you reported the matter to Nana Sammy Anyebaso. In my opinion, there is good reason to say that DW1 is not a credible witness whose evidence should be relied on by the court. This was a witness who stated in his evidence in chief that the land in dispute does not farm part of the Balai lands. Then during his cross-examination by the lawful attorney for the Plaintiff, he now says that the land belongs to both the Nawuris of Balai and the Nchumburungs of Kojobone and that there is no boundary between them. Not only that, he admits that the father of the Odikro farmed on the disputed land together with his father. Then he finally says that the Plaintiff’s family is farming on his land. The testimony of DW1 in my opinion is not only misleading, but also full of contradictions that no reasonable court could rely on it. On the other hand, PW1, Nana Sammy Anyabaso testified that the land in dispute was farmed by his grandfather, Balai Kwadjo and his siblings. That previously the Plaintiff’s grandfather was settled at a place called Onyumbo and later pleaded for the grant of the disputed land from his grandfather. He also testified that the disputed land was initially Page 17 of 28 granted to Nsemawu and his son, Abutoror by his grandfather. Nsemawu and his son later abandoned the land and his grandfather granted the land to the grandfather of the Plaintiff. During his cross-examination by the Defendant’s lawful attorney, PW1 maintained his stand that the disputed land was granted to Nsemawu and his brother by them. He also stated that those of them who came to settle at Balai farmed on the disputed land including Kastah. He further stated that the lands along the Kujah stream belong to them (the Nawuris) while the lands along the Kulenku belongs to the Nchumburungs. These are excerpts of what transpired during the cross-examination of PW1 by the lawful attorney for the Defendant: Q. You stated in your statement that Nsemawu and his brothers pleaded with you for the land to farm. If they were not farmers, why would they have asked you for a piece of land to farm? A. The land along the Kujah stream belongs to us. That was where Nsemawu and his brothers pleaded with us and we gave them the permission to farm. However, the land along the Kelunku is for the Nchumburungs and that is where they farm. Q. Do you know the land in dispute? A. I know there very well. Q. Does any of your family members have a farm on the land in dispute? A. No. My family has enough lands and we gave the land in dispute to the Ucha family, so we do not farm there. Q. Are you aware of one Kasta who also farm on the land in dispute? Page 18 of 28 A. Yes. It was not Kasta alone who farmed there. All of us who came to settle at Balai were farming there. Gathering the pieces of evidence led by both parties, I am of the opinion that the Plaintiff has been able to prove that the disputed land was granted to his grandfather, Ucha by Nana Kwadjo Balai who is the grandfather of PW1. The Defendant does not dispute that the land in dispute is known as Uchado. The Plaintiff was able to lead evidence to establish how the place became named as Uchado. This evidence was corroborated by PW1, Nana Sammy Anyabaso that after the land was granted to the Plaintiff’s grandfather, Ucha, he brought his family to settle on the land and so the community was named Uchado after their leader. There is also evidence that the parties met on several occasions before the Odikro of Balai for a resolution of the dispute on the land. Notable is the fact the when DW3 came to court to plead for the matter to be resolved amicably between the parties, he summoned the parties before no other person than the Odikro of Balai. I do not believe his answer during his cross- examination that he reported the matter to the Odikro because he deems him as his grandfather and someone who could resolve the issues between the parties. There should equally be elderly persons at Kojobone who are of the same age as PW1 or even older than him and well vest in the history surrounding the disputed land to be able to resolve the dispute between the parties. If indeed the land belonged to the family of DW4, Nsemawu Kwaku Dapaah as claimed by him, DW3 would have reported the matter to him, especially so when DW3 stated that the parties had earlier gone before the Odikro before proceeding to institute the action in court. If the land belonged to DW4, then that was a good opportunity by DW3 to report the matter to him to also have a bite at resolving the issues between the parties since the earlier settlement by the Odikro had failed. I am of the opinion that the act of DW3 summoning the parties before the Odikro after the court granted his plea for amicable Page 19 of 28 settlement between the parties was an acknowledgment that the Odikro Nana Sammy Anyabaso is the owner of the disputed land. In his testimony during his cross-examination, Defendant’s lawful attorney maintained that the land in dispute belongs to Nsemawu and that if that were not the case, he would not have had the power to settle the Takanado people across the Kujah stream. He also stated that they share a common boundary with the farmland of the Wabitiib clan who live in Kojonone but farm on the disputed land. This is what transpired during the cross-examination of the Defendant’s lawful attorney by the Plaintiff’s lawful attorney: Q. Is the disputed land which you crossed over the Kujah stream to part of the Balai lands or the Kojoboni lands? A. The disputed land is part of Kojoboni lands. This is because when Nsemawu gave us the land, he told us it forms part of the Kojoboni lands. The same Nchumburung also settled the Takanado people across the Kujah stream. Q. Is the Kujah stream part of Nawuri lands or the Nchumburung lands? A. The Kujah stream forms part of the Nchumburung lands. If that were not the case, they could not have crossed over the stream to settle other people. Q. The land in dispute does not form part of Takanado. Are we disputing the land with the people of Takanado or with you? A. It is because you asked whether the stream forms part of the Nchumburung lands or the Nawuri lands. That is why I stated that it belongs to the Nchumburung lands. If that were not the case, they could not have been able to Page 20 of 28 settle other people across the stream. We share a common farm boundary with the people of Takanado. The people of the Wabitiib clan also live in Kojoboni but farm around the disputed land and share boundary with the Takanado lands. None of the members of those families were however called to testify in support of this claim by Defendant. The Defendant could have called members of the said families to testify to his claim that those families were settled by Nsemawu and that they also farm a section of the land in dispute. This would have gone a long way to prove, not only that Nsemawu had the power to grant the disputed land to the Defendant’s family, but also that the disputed land forms part of the Kojobone/Nchumburungs land. The Defendant however failed to do so. The parties both admit that after the matter was heard by the Odikro of Balai, he divided the disputed land for the parties. The Defendant admitted this and stated that they disagreed with the said sharing of the land by the Odikro because when the matter initially went before the Balai chief, he held that both parties should go and farm their respective lands. This was confirmed by DW1 when he testified that when the Plaintiff reported the matter to him, he told them he could not vacate the Defendants from the land because they have been farming on the land for the past forty (40) years. He then told both parties to go and continue farming on their respective lands. In my opinion, the conduct of the Chief of Balai (DW1) in telling the parties to go and continue farming their respective lands is evidence of his lack of right of ownership over the disputed land. The parties do not dispute that both parties have farmlands in the area. The main dispute between them is where to place the boundary mark. One would have thought that a more radical approach such as re-stating the boundary mark between the lands or demarcating the lands for the parties would be more geared towards resolving the dispute rather than just telling the parties to go and continue to farm their respective lands. In my opinion, the act of the Odikro sending his delegates onto the land and consequently demarcating it between the parties is evidence of his ownership right over the Page 21 of 28 disputed land. In my opinion, if he did not own the disputed land, he would not have had the right to go onto same and to divide it between the two parties. I am therefore of the view that the Plaintiff has been able to prove that the Odikro of Balai is the owner of the disputed land and that same was granted to his grandfather, Ucha by Nana Kwadjo Balai, the grandfather of PW1. The Plaintiff has also been able to prove that his grandfather settled on the land and farmed same and the community became known as “Uchado” after his grandfather. I find from the evidence that prior to the land being granted to Ucha, Nana Kwadjo Balai had granted the disputed land to Nsemawu and his brother, Abutoror who later abandoned the land. Nana Kwadwo Balai then granted it to Ucha who settled and farmed on the land. Consequently, I find that Nsemawu is not the owner of the land and therefore could not have the capacity to grant same to the Defendant’s family. One who has pleaded for land to farm could not lawfully grant it to another without the consent and concurrence of the owner of the land. Nsemawu therefore could not have granted the disputed land to the Defendant’s family without the express consent and concurrence of the Odikro’s family. Consequently, any evidence of farming on the land by the Defendant’s family and sacrifices offered to any tree on the land by them is of no weight since they did not have a valid grant of the land from the Odirko’s family which owned it. 2. Whether the boundary mark between the Plaintiff’s land and the Defendant’s land is the Kujah stream. The law is settled that in a boundary dispute, the burden is on the Plaintiff to prove clearly and concisely the boundaries of his land. In the case of OBADZEN II v. ONANKA II [1982- 83] GLR 46 the Court stated the rule in the following words: Page 22 of 28 In a boundary dispute, the plaintiff must establish his boundary. He loses his claim if he fails to do this. The burden is therefore on the Plaintiff to establish the extent of his land and the boundaries of the land claimed by him. In EFFIANA v. EFFIANA [1959] G.L.R. 362 the court noted: We think that this can be regarded as being in the nature of a boundary dispute between two adjoining land owners, and the burden therefore rested upon the plaintiffs to establish with particularity the extent of the land which they claimed and the boundaries of it.” By his writ of summons, the Plaintiff claims that the land in dispute is about 100 acres and lying at the western part of the Wuchado stream which serves as the boundary mark between the Balai and the Kojobone lands. In his evidence in chief, the Plaintiff’s lawful attorney testified that when the land was granted to his grandfather by Nana Kwadjo Balai and his brothers, they pointed to the Kujah stream which lied to the western part of the land towards Kojobone and told them that the people of Balai do not farm on the land beyond the said river towards Kojobone, neither do the people of Kojobone also farm beyond the river towards Balai. They never went contrary to this instruction given to their grandfather by Nana Kwadjo Balai. PW1, Nana Sammy Anyabaso testified in support of the Plaintiff’s case and stated that his predecessors farmed on the disputed land and shared a common boundary with the Nchumburungs by the stream which separates the Balai lands from the Kojobone lands. PW2 Unabir Kididan also testified that when the land was granted to their grandfather, Ucha, Nana Kwadjo Balai and his brothers pointed to the Kujah stream and told him the people of Balai do not farm beyond the said stream into Kojobone likewise the people of Kojobone do not farm beyond the stream towards Balai. Page 23 of 28 On his part, the Defendant states that his family farm on Nchumburung land while the Plaintiff farm on Nawuri land. In both his statement of defence and witness statement, the Defendant stated that the disputed land was granted to his father, Ali by Nsemawu who is an Nchumburung. Nsemawu told his father his land shares a common boundary with the lands belonging to Kastah (DW1). He further stated that when the matter went before the Chief of Balai (DW1), he stated that they the Nawuris and the Nchumburungs are of one family and so do not have a common boundary between their lands. The chief then ruled that both parties should go and farm their respective lands. DW4, Nsemawu Kwaku Dapaah also testified in support of the case for the Defendant that his father farmed on the disputed land and later granted it to the father of the Plaintiff by name Ali. He continued that the land shares boundary with the farm land of the Kastah family. DW1, Nana Kastah Boamah testified in support of the Defendant’s case and stated that the Plaintiff reported the matter to him and requested that he vacate the Defendant’s family from the disputed land. He then told the Plaintiff that the Defendant’s family has been farming on the disputed land for the past 40 years and so he cannot vacate them from the land. He therefore ruled that both parties should go and farm their respective lands. In his concluding paragraph, DW1 stated that the disputed land forms part of the Kojobone lands and not the Balai lands. During his cross-examination however, when he was asked whether the land is dispute is a Nawuri or Nchumburung land, DW1 stated that they the Nawuris and the Nchumburungs are brothers and so they farm jointly on the land and the land belongs to both the Nawuris and the Ncumburungs. The Defendant in his evidence before the court stated that the land given to them shares a common boundary with the land belonging to the Kastah family. Thus, the testimony of DW1, Nana Kastah Boamah was to go a long way to substantiate the case of the Defendants. However, in my opinion, the testimony of DW1 is not worthy of believe due to the serious Page 24 of 28 contradictions it contains. As noted earlier in this judgment, this was a witness who stated categorically in his evidence in chief that the disputed land forms part of the Kojobone lands. Then while under cross-examination, he admits that his father and the father of PW1, Nana Sammy Anyabaso farmed on the disputed land. Notably, while the Defendant claims that his family farms on Nchumburung’s land and the said farmland shares boundary with the land of DW1, DW1 himself stated during his cross-examinationthat there is no definite boundary between the Nawuri and Nchumburung lands because they jointly own the land. The testimony of DW1, Nana Kastah Boamah therefore does not help the case of the Defendant who called him. DW1 also in his testimony while under cross-examination by the lawful attorney for the Plaintiff admitted that the name “Kujah” is a Nawuri name. He stated: Q. There is a stream on the land in dispute. What is the name of that stream? A. I know the stream named Kujah. I gave sections of land along the stream to people for farming purposes. Q. Is the name Kujah a Nawuri name or an Nchumburung name? A. It is a Nawuri name. The parties both alluded to acts of recent possession over the said stream. The Plaintiff’s lawful attorney during his cross-examination of the Defendant’s lawful attorney stated that his grandfather used to drive his cattle to the said Kujah stream to drink water. On his part, the Defendant maintained that Nsemawu settled other people across the Kujah stream including the people of Takanado. As I noted earlier, no further evidence was called by the Defendant to prove same. The Defendant could have called a member of the said family to testify to that fact but failed to do so. Page 25 of 28 From the evidence led, I am however inclined to believe the story of the Plaintiff over that of the Defendant. I believe the testimony of PW1, Nana Sammy Anyabaso that his predecessors farmed on the land a long time ago and shared boundary with the Nchumburungs by the stream which separates the Balai lands from the Kojobone lands. There is evidence that the family of Nana Sammy Anyabaso and that of DW1 farmed on the disputed land. The Defendant maintained that his family is farming on Nchumburing land while the Plaintiff is farming on Nawuri land. He then stated that when Nsemawu granted his father the land, he showed him the boundary which the Nawuri lands share with the Nchumburung land which is the farmland of Kastah (DW1). DW1 was called by the Defendant to testify in support of his case. DW1 in his evidence in chief sated that the disputed land forms part of the Kojonone lands. Then during his cross-examination his story changes and now says the land belongs to both the Nchumburung and the Nawuris and they farm same together without any definite boundaries. The testimony of DW1 is not only contradictory, but does not support the case of the Defendant who called him. While the Defendant is pointing to his land as the boundary mark between his family’s farmland and the Plaintiff’s farmland, DW1 himself says there is no definite boundary between the lands. In any case, DW1 testified that the Nchumburungs and the Nawuris have no definite boundaries, and that they farm the land together. There is however no evidence presented before the court to suggest that that the same practice exist across the Kujah stream towards Kojobone. The Defendant could have led evidence to show that the Nchumburungs not only farm the section of the land on the side of the stream towards Balai together with the Nawuris, but also on the other side of the stream towards Kojoboni, there are also Nawuris farming the land together with the Nchumburungs. Moreover, there is evidence that the name “Kujah” is a Nawuri name. If the disputed land belongs to the Nchumburungs as argued by the Defendant, it is reasonably expected that the stream would have been named in the Nchumburung language and not in Nawuri. The fact that the stream is named in Nawuri raises a presumption, though rebuttable, that the stream forms part of the Nawuri land. The Page 26 of 28 Defendant provided no evidence to rebut this presumption. Based on these pieces of evidence, I hold that the Plaintiff has been able to prove that the boundary mark between his family’s farmland and that of the Defendant’s farmland is the Kujah stream. Consequently, I reject the case of the Defendant that Kastah’s land is the boundary mark between the parties’ farmland. CONCLUSION I must re-iterate that even though in the instant suit the parties claim and counterclaim for declaration of title, the suit is in an actual sense about their rights to farm the respective lands claimed by them. In proving their cases however, issues of the rightful person to grant the disputed land have been called into play. The court could not determine the farming rights of the parties without determining which of these two: the family of Odikro Nana Sammy Anyabaso or Nsemawu family is the actual owner of the land with power to grant same to stranger/tenant farmers. On a consideration of the evidence presented by both parties, I hold the view that it is the family of the Odikro Nana Sammy Anyabaso (PW1) that owns the disputed land. I find that being the owner of the disputed land, the grandfather of PW1, Nana Kwadjo Balai initially granted the land to Nsemawu and his brother, Abutoror. They later vacated from the land and Nana Kwadjo Balai granted the disputed land to the grandfather of the Plaintiff by name Ucha. Consequently, any purported grant of the disputed farmland to the Defendant’s family by Nsemawu is void and of no effect since he did that without the consent and concurrence of the family of the Odikro. On issue 2, I hold that the Plaintiff has been able to prove that the Kujah stream is the boundary mark between the parties’ farmlands. The Defendant on his part has failed to prove that Kastah’s farmland is the boundary mark between his farmland and that of the Plaintiff. I therefore grant reliefs 1 and 2 claimed by the Plaintiff against the Defendant which are a declaration of title to the disputed farmland and recovery of possession of same. Consequently, the Defendant, his agents, assigns and privies including his workmen and all Page 27 of 28 persons claiming title through him are hereby restrained from interfering with the Plaintiff’s enjoyment and possession of the disputed farmland. I award general damages of GH¢5,000 against the Defendant in favour of the Plaintiff. Cost of GH¢1,000 is again awarded against the Defendant in favour of the Plaintiff. H/W GODSON ETSE KUMADO Page 28 of 28