MAHAMA & ANOTHER VRS SIBIRI [2024] GHADC 438 (30 September 2024)

IN THE DISTRICT COURT, WA. HELD ON MONDAY, 30TH DAY OF SEPTEMBER, 2024 BEFORE HIS WORSHIP, MAXWELL M. TITRIKU, DISTRICT MAGISTRATE. SUIT No: UW/WA/DC/A1/10/2020. 1. INUSAH MAHAMA .................... PLAINTIFFS H/No. DL 60 DOBILE SECTION, WA. 2. IVON GAMBA H/No. 196, BLOCK “B” WATER VILLAGE DOKPONG, WA. V DOROTHY SIBIRI ..................... DEFENDANT H/No. Z 248 ZONGO SECTION, WA. PARTIES PRESENT HON. CLEMENT ELEDI, ESQ., FOR PLAINTIFFS. SIDDIQUE UBEIDU, ESQ., FOR DEFENDANT. JUDGMENT The Plaintiffs on Friday, 17th July, 2020, filed writ of summons against the Defendant for the following reliefs: a. Declaration that, he has allodial title to Plot No. 49, Block “B”, Airport Residential Area, by virtue of a grant to the 2nd Plaintiff by 1st Plaintiff. b. The 2nd Plaintiff claims declaration of title to Plot No. 49, Block “B”, Airport Residential Area 1 c. A declaration that, the Defendant has trespassed onto Plot No. 49, Block “B”, Airport Residential Area. d. An order directed at the Defendant to demolish the fence-wall and Security Room she built on Plot No. 49, Block “B”, Airport Residential Area e. Perpetual Injunction restraining the Defendant whether by himself, her heirs, assigns, successors, workmen or however so called from interfering with Plaintiffs’ quite enjoyment of plot No. 49, Block “B”, Airport Residential Area. f. Damages for trespass. g. Costs and any other relief (s) the Honourable Court deems fit. However, on 25/08/2020, the Defendant filed Notice of Counter-Claim and claimed for: a. Declaration of title to all that piece or parcel of land situate, lying and being at Airport Residential Area, known as plot No. 49, Block “B”, Wa, containing an approximate area of 0.27 acres. b. A declaration that, Plaintiffs have trespassed upon Defendant’s land. c. Damages for trespass. d. An order of perpetual injunction to restrain the Plaintiffs, whether by themselves, their servants, workmen or agents from trespassing or from dealing with or in any manner interfering with Defendant’s ownership, right as well as possession of the land the subject matter of this suit. e. Costs including legal fees. CASE FOR THE 1ST PLAINTIFF In his evidence-in-chief, the 1st Plaintiff (Inusah Mahama), a farmer, resident at Dobile Section, Wa, stated that, the 2nd Plaintiff is known to him. According to him, he is a member of the Adama family of Dobile, and that, the said Adama is his grandfather, and Mahama was his father, and by first settlement his family acquired a large tract of land inclusive of the plot in dispute (i.e. Plot No. 49, 2 Block “B”, Airport Residential Area, Wa). He said, his family has exercised rights of ownership over the large track of land inclusive of the disputed plot of land, and in exercise of their family’s ownership of the vast tract of land, his family made grants of the land to numerous would-be developers, and before the said land was zoned as a residential area, their family farmed on the said land, and the said land was later zoned into Residential Areas by the Town & Country Planning Department sometime between 1985/86. The 1st Plaintiff further stated that, after the death of his grandfather, Adama, his father, Mahama inherited the said land inclusive of the land in dispute for and behalf of their family till his father died, and he (1st Plaintiff) inherited the said land as the most senior Son of his late father. He said, in exercise of his right of ownership of the plot in dispute (i.e. Plot No. 49, Block “B”, Airport Residential Area), he made grant of the said plot in dispute to the 2nd Plaintiff, as evidenced by a Statutory Declaration, dated 27th November, 2006, and latter executed Notice of Allocation of Land at the Wala Traditional Counsel in favour of the 2nd Plaintiff. He said, ever since the grant of the plot in dispute to the 2nd Plaintiff, he has been in peaceful possession of the plot, and the 2nd Plaintiff even deposited trips of sand on the land and proceeded to mold blocks on the land without challenge from anyone including the Defendant, and sometime in 2020, 2nd Plaintiff commenced development of the plot in dispute when the Defendant surfaced and claimed ownership of the plot in dispute. According to the 1st Plaintiff, the Defendant then produced a lease purportedly executed between her (Defendant) and one Sumani Adama, a Paternal Uncle of the 1st Plaintiff, as her grantor, by which time the said Sumani Adama had died, and the said lease also showed that, one Saaka Adama witnessed the execution of the lease. He said, as a result of the dispute over the plot, he (1st Plaintiff) met with the Defendant in the company of one Alex Naah, a Surveyor of Survey & Mapping Division, of Lands Commission, Wa, 3 the Assembly man for Dobile Electoral Area and one Abubakari Sumani, where at the said meeting, he (1st Plaintiff) made it clear to the Defendant that, the plot in dispute (i.e. plot No. 49, Block “B”, Airport Residential Area, Wa), is not Sumani Adama’s family land, but same belongs to his (1st Plaintiff’s) family, and his position was confirmed by Sumani Abubakari, the Son of Sumani Adama, the alleged grantor of the Defendant. He said, Sumani Abubakari told the Defendant that, if indeed, his father had made grant of the said land to her, he would have assumed responsibility, but he would not assume responsibility because his father had not made any grant to the Defendant. He said, at the said meeting, Abubakari Sumani again confirmed his (1st Plaintiff’s) position that, plot No. 49, Block “B”, Airport Residential Area, was where his family’s farm hut had been built. The 1st Plaintiff further stated that, at the meeting, one Saaka Adama, who is alleged to have witnessed the execution of the lease denied categorically he did not witness the said execution of the lease. He said, at the same meeting, Defendant also said, she acquired the disputed plot through one Christopher Chipie, now deceased, who was a Surveyor, and at the said meeting, Defendant admitted that, she did not know her grantor, Sumani Adama, her alleged grantor’s Son, Abubakari Sumani and Saaka Adama, who is alleged to have witnessed the execution of the lease. He said, Defendant’s purported acquisition of the lease was fraudulent as her alleged grantor is not the owner of the land and also Saaka Adama never witnessed the execution of the lease, and whilst these discussions were on-going, the Defendant entered the plot in dispute and caused fence wall to be built on the land in dispute, and all efforts to convince the Defendant to leave the plot in dispute to the 2nd Plaintiff proved futile. The 1st Plaintiff finally stated that, he made a valid grant of the plot in dispute to the 2nd Plaintiff, and the 2nd Plaintiff is the owner of the said plot, and therefore jointly with the 4 2nd Plaintiff instituted this present suit against the Defendant and pray that, the Honourable Court enters judgment on the reliefs sought by the Plaintiffs. End of Evidence. CASE FOR THE 2ND PLAINTIFF In his evidence-in-chief, the 2nd Plaintiff (Ivon Gamba), a Mason and a Foreman, resident at Water Village, Dokpong Section, Wa, stated that, the 1st Plaintiff is known to him as his grantor, and got to know the Defendant in connection with this case. According to him, the 1st Plaintiff had previously made grant of land to him on which he built and later sold the house to one James, which is not far from where the disputed land is situated. He said, he then acquired another plot from the 1st Plaintiff on which built and currently living in same, which is also not far from the plot in dispute. He said, he also acquired plots in the same area from 1st Plaintiff for one Daniel, Joshua Kaleonaa and a lady called Rhoda, and that, said plots are part of the land that includes the plot in dispute, and as a result of the acquisition of the various plots from the 1st Plaintiff, as the landlord of these tracts of land, inclusive of the land in dispute. He said, sometime in 2006, the 1st Plaintiff offered him the land in dispute, which at the time, the plot was vacant. The 2nd Plaintiff further stated that, the grant made to him by 1st Plaintiff was evidenced by a Statutory Declaration executed by the 1st Plaintiff, including “Notice of Allocation of Land” at the Wala Traditional Council, Wa, and following the grant, he was in peaceful possession of the land without any challenge, and in exercise of his right of ownership over the land, he deposited two trips of sand on the plot in dispute, and also molded about two thousand (2,000) blocks on the land in dispute in 2017. He said, there were Sheanut and Dawadawa trees on the land in dispute, which he fell before he commenced his development in 2020, where he dug and laid the foundation of his 5 building to footing level, and was about to cast oversight concrete when the Defendant suddenly appeared and claimed ownership of the plot in dispute, and produced a lease document as evidence of her title to the plot in dispute. He said, he told the Defendant that, he acquired the plot in dispute from the 1st Plaintiff, and that, he is aware for a fact that, the 1st Plaintiff had a meeting with the Defendant and other persons in respect of the plot in dispute, but he (2nd Plaintiff) did not attend the said meeting, but was briefed by the 1st Plaintiff all that transpired at the meeting. According to the 2nd Plaintiff, whilst the discussions with 1st Plaintiff were on-going, the Defendant entered onto the land, erected fence wall and fixed a gate, and as a result, the blocks that he (2nd Plaintiff) had on the disputed plot have been locked up by the Defendant in the fence wall. He said, all attempts to convince the Defendant to give him vacant possession of the plot in dispute has been in vein, and therefore had no other option than to institute the present action with the 1st Plaintiff against the Defendant seeking the reliefs endorsed on their writ of summons. End of Evidence. CASE FOR THE DEFENDANT In her evidence-in-chief, the Defendant (Dorothy Sibiri), a retired Nurse, resident at East-Adenta, Accra, stated that, but for this case, the Plaintiffs are not known to her. According to her, the Airport Residential Area, where the land in dispute is situate and lying hitherto were farmlands belonging to the respective families of Dobile Yikpong Section of which the Adama family is part, however, due to population growth within the Wa Municipality, the entire area has been zoned into plots for residential purposes with each respective family having its distinct plots including the Adama family. She said, sometime in 1995, she contacted Christopher Chipie of blessed memory, who was then a Surveyor in Wa to assist her acquire a plot of land for residential purposes, since 6 by the nature of his (Christopher Chipie) work, he knew the rightful landlords of the various sections in Wa. She said, the said Christopher Chipie did enquire the subject land situate, lying and being at Airport Residential Area and known as plot No. 49, Block “B”, from the Adama family of Dobile Yikpong Section, where the said plot is directly adjacent to Plot No. 50 which was equally grated by the Adama family of Dobile Yikpong Section to John Kpielinang. She said, as at the time of the grant of the subject plot to her, the head of the Adama intermediate family of Dobile Yikpong was Sumani Adama of blessed memory who was also the overall head of the Yikpong Section of Dobile. The Defendant further stated that, soon after the grant, she instructed a Christopher Chipie, a Surveyor, to commence with the preparation of a lease document in respect of the plot of land, and the preparation of same was completed sometime in the year 1997, (Exhibit “1”), together with Statutory Declaration (Exhibit 3”B”), and Note of Allocation (Exhibit 3”A”) were duly executed by the said Sumani Adama, and witnessed by Saaka Adama and Nuhu Bukari, and on her part, was witnessed by F.N. Andan. She said, she thereafter registered same at the Lands Commission, Wa, and has since been paying ground rent on the plot, and caused two (2) trips of sand to be deposited on the land and instructed her neighbor, John Kpielinang of blessed memory to keep an eye on the land for her. She said, the said John Kpielinang who is the occupant of plot number 50, which directly adjacent to the land in dispute, equally obtained his grant from her grantor, Sumani Adama, the then Head of Adama family of Dobile Yikpong (Exhibit “2”), and the said John Kpielinang has since developed his plot No. 50, and has been in occupation for years without any hindrance from the 1st Plaintiff. According to her, sometime in the year 2020, whilst in Accra, she received a call from her Nephew, Paul Sibiri, who informed her that, on his way back from Kaleo, he passed 7 by to check on the land and realized that, there were workmen on the land. she said, she then instructed her Nephew to go to the site in the company of her Niece, Diana Sibiri, and when they went to the site, they met some workmen and they requested to know on whose instruction they were on the land in dispute, and the workmen requested Paul Sibiri & Diana Sibiri to leave a contact number behind, which they did. She said, later in the day, one Romanus called her Niece and informed her that the land on which the workmen were developing was her land, and he (Romanus) bought same from the 2nd Plaintiff. Defendant further stated that, on her return to Wa, she met the 1st Plaintiff, who from her investigations was the one who sold the land in dispute to the 2nd Plaintiff, and when they met, 1st Plaintiff requested to see her registered lease (Exhibit “1”), and upon presentation same to him, he (1st Plaintiff) intimated to her that, her grantor is late, for that matter he (1st Plaintiff) cannot vouch for the authenticity of the lease, and that he (1st Plaintiff) has made a grant of the subject plot to the 2nd Plaintiff. she said, in her quest to secure her interest in the land, being satisfied that, she has a valid and genuine title, she applied to the Municipal Assembly, Wa, for a building permit, and upon inspection by the site Engineers, she was issued with a building permit, and she proceeded to construct a concrete fence wall around the plot with a gate, purposely to secure her interest. According to her, Plaintiffs have no title to the subject plot whatsoever, and apart from her plot No. 49, Block “B”, the Adama family equally granted land to several people at the Airport Residential Area and all these people have since developed their respective plots and are occupying same well over 15years. She said, it is not true that, Sumani Adama died long ago before the lease was executed, and not also true that, it was procured through fraud, and equally not true that, the 2nd Plaintiff deposited trips of sand on the land in dispute about ten years ago. Defendant finally stated that, the 2nd 8 Plaintiff did not act diligently if not, he would have known that, the land has been duly granted to her and same registered at the Lands Commission. End of Evidence. Thereafter, Defendant closed her case. The legal issues that emerged for determination by this Honourable Court after the evidence was: i. WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO THEIR RELIEFS. ii. WHETHER OR NOT THE DEFENDANT IS ENTITLED TO THE RELIEFS SOUGHT IN HER COUNTER CLAIM. WRITTEN ADDRESSES At the close of the evidence, the Court ordered addresses to be filed by Counsel for the parties. Counsel for the Plaintiffs filed his address on 18/06/2024, while Counsel for the Defendant filed his on 26/08/2024. Both Counsels addressed the Court on the evidence adduced, the applicable laws and what they perceived to be determining factors of the case. Submission of Counsel for the Plaintiffs In his submission, Counsel for and on behalf of the Plaintiffs stated that, the 1st Plaintiff is the grantor of the 2nd Plaintiff, and that, the 1st Plaintiff in paragraphs 2, 3, 4 and 5 traced his root of title and mode of acquisition of the plot in dispute, and he (1st Plaintiff) further testified in paragraph 6 that, he made the grant of the plot in dispute to the 2nd Plaintiff. He said, in the cross-examination of the 1st Plaintiff by the Counsel for the Defendant, the root of title and mode of acquisition was never challenged, and that, the 1st Plaintiff’s evidence in paragraph 4 of his evidence-in-chief that, “........my family constructed a farm hut specifically in the middle of the plot in dispute when it was farm land.”, was also never challenged in the cross-examination of the 1st Plaintiff. 9 Counsel then stated that, the evidence of the 1st Plaintiff as to his mode of acquisition and root of title and more specifically that, there was a farm hut in the middle of the plot in dispute are deem to have been admitted, based on the principles of the following cases relied upon by Counsel for the Plaintiffs: i. Gyakwa & Ors v Saah [2013-2015] 1 GLR 652 @ 654, H. (3) ii. Fori v Ayirebi [1966] GLR 627, SC. iii. Billa v Salifu [1971] 2 GLR 87, H.C. Counsel further stated that, Plaintiff’s evidence on the farm hut on the land in dispute was corroborated by the evidence of the Defendant herself as demonstrated in her cross-examination. He said, through the 1st Plaintiff, the 2nd Plaintiff also tendered in evidence Statutory Declaration (Exhibit “A”) and Notice of Allocation from the Wala Traditional Council (Exhibit “B”), also showed that, the 1st Plaintiff made the grant of the plot in dispute as head of the Nyebeyiri family, which was also not challenged in cross-examination. Counsel therefore submitted that, on the totality of the evidence on record, the Plaintiffs have discharged their burden of proof on the balance of probabilities. According to Counsel for the Plaintiffs, it is the evidence of the Defendant that, she acquired the plot of land from one Sumani Adama as Head of Yikpong family of Dikpong, and that, one Christopher Chipie (Decd.) led the process for the acquisition of the plot in dispute, but Defendant does not know her grantor, did not also call any member of the Adama family to testify to support her claim, but only relied on her Lease Document (Exhibit “1”), together with additional schedule inserted by the Defendant (Exhibit “3B”), and Notice of Allocation (Exhibit “3A”) in support of her case, even though the evidence on record shows that, at the time Exhibit “1” was executed, the Defendant was not even present. 10 He said, the additional schedule contradicts the lease document materially in the sense that, on the first page of the lease in paragraph 1, the lease is supposed to be in respect of: “All that piece or parcel of land, situate, lying and being at Airport Residential Area, Block B, and known as plot No. 49......” and in the new schedule, it is in respect of: “All that piece or parcel of land situate, being and lying at West Airport Residential Area and known as Unnumbered Plot..........” According to Counsel, there is an apparent contradiction in the case of the Defendant as to the place where the plot in dispute is situated. He said, the parties from their pleadings and the counterclaim of the Defendant, all agree that, the plot in dispute is No. 49, Block “B”, Airport Residential Area, but in her evidence, Defendant introduces evidence that, her plot by the new schedule is unnumbered. He said, in Defendant’s lease document, the area of her plot is 0.27 acre and in her new schedule, the size of her plot is 0.22 acre, which constitute a material contradiction, and these inconsistencies put the validity of Defendant’s Lease document (Exhibit “1”) in issue, and relied on the following cases in support: i. Anthony Wiafe v Dora Borkai Bortey & Victoria Amoo (Unreported), Civil Appeal No. J4/43/2015, SC. ii. George Kwadwo Asante & Ors v Madam Abena Amponsah & Ors [2022] JELR 109676 (SC) Suit No. J4/64/2021, Dated 20/01/22. iii. Kwofie v Kakraba [1966] GLR 229 @ 231-232, HC. Counsel, further relying on Comfort Oforiwaah v Nana Fe Bamoah (2016) JELR 65316, (HC), Suit No. TBFS/02/15, Dated 18/07/2016, finally submitted that, the evidence on record from the Defendant herself is that, Christopher Chipie is dead, so he is not in any position to answer that, either he granted the plot in dispute to the Defendant or assisted her to acquire same. Moreover, Defendant did not call any witness in support 11 of that claim for which the Honourable Court should subject that evidence to close scrutiny. Submission of Counsel for the Defendant Counsel for and on behalf of the Defendant submitted that, the 1st Plaintiff has not been able to lead evidence to prove that, he has allodial title to the disputed plot. He said, 1st Plaintiff rather traced his root of title to the disputed plot and his mode of acquisition of same, as contained in his paragraph 2 of his evidence-in-chief that: “he is a member of the Adama family of Dobile and that, Adama is his grandfather while Mahama is his father.” He said, the 1st Plaintiff further stated that, “by first settlement, my family acquired a large track of land inclusive of the plot in dispute, No. 49, Block B, Airport Residential Area, Wa. According to Counsel, one can only refer to 1st Plaintiff’s grandfather, Adama, impliedly as a member of Adama family, that acquired the land in dispute, and that, it is clear that, the disputed land was acquired by 1st Plaintiff’s grandfather, and not the 1st Plaintiff’s father, Mahama. He said, the 1st Plaintiff continued the same deposition in paragraph 3 and 4 of his evidence-in-chief, hence the disputed plot and the farm hut on it, belong to the Adama family, which is consistent with Defendant’s position on this matter, hence there was no need to challenge or cross-examine 1st Plaintiff on it, as Counsel relied on the following cases: i. Anas A. Anas v Kennedy Agyapong, Civil Suit No. GT/892/2018, Dated 15/03/2023. ii. West African Enterprise Ltd v Western Hardwood Ltd [1995- 96] 1 GLR 155, C.A. Holding 3. iii. Nyeme v Tawiah & Anor [ ] GLR 265, C.A. Counsel further submitted that, since 1st Plaintiff confirmed in his evidence that, his father is the elderly child of his grandfather, Adama, and same inherited the land for 12 and on behalf of Adama family, therefore, the 1st Plaintiff as a grandson cannot claim to have inherited the land after the demise of his father, because the land does not belong to 1st Plaintiff’s father, hence 1st Plaintiff cannot by any stretch of imagination has allodial title to the disputed plot, when his Uncle, Sumani Adama is still alive. Counsel for the Defendant, relying on the following cases of: i. Danso-Dapaah v Falconcrest Investment Ltd & 4 Ors [2015] 89 GMJ 148, C.A., ii. Majolagbe v Larbi & Ors [1959] GLR 190 @ 192, iii. Lamptey v Diori [2013] 66 GMJ 106 @ 111, C.A summitted that, the 1st Plaintiff has failed to lead requisite evidence to prove that, the disputed plot of land belongs to his father. Moreover, he never produced any document, or called any witness or any concurring consent of any family member to the purported grant of the disputed plot to the 2nd Plaintiff. He said, at any rate, the disputed plot had already been granted to the Defendant several years ago for which reason same plot was no longer available to be granted to the 2nd Plaintiff. Moreover, the 2nd Plaintiff failed to lead credible evidence to prove that, he actually deposited two trips of sand on the disputed land, and further submitted that, Plaintiffs, have failed to lead to entitle them to declaration of title to the disputed plot as laid down in the Supreme Court case of: Mondial Veneer (Gh) Ltd v Amuah Gyebu XV [2011] 35 GMJ 264, S.C. Counsel for the Defendant, finally submitted that, the Defendant bought the said plot of land since 1995 through Christopher Chipie, and in 1997, the head of the Adama family, Sumani Adama executed a lease (Exhibit “1”) in favour of the Defendant. He said, the 1st Plaintiff sought to create the impression that, Sumani Adama never made any grant to the Defendant, however the evidence on record shows that, the 1st Plaintiff did not even know when the grant was made to the Defendant, and the evidence further showed that, the Defendant’s grantor was at the time, the head of the Adama family. 13 Counsel finally relied on the case of: Vaughan-Williams v Oppong [2015] 84 GMJ 171, S.C., and submitted that, the so-called consistencies claimed by Counsel for the Plaintiffs (if any) cannot be attributed to the Defendant, and to place premium on the said inconsistencies will amount to visiting the sins of the Survey & Mapping Division of Lands Commission on the Defendant. He said, the parties know the location and identity of the land in dispute for which reason any purported contradiction(s) in the schedules of Exhibit “1”, can be described as minor and trivial which can safely be disregarded. DETERMINATION OF ISSUES In every civil case, general rule is that, the burden of proof rests on the party, whether plaintiff or defendant, who substantially asserts the affirmative of his case. This principle on allocating the burden of proof is contained in: THE EVIDENCE ACT, 1975 (NRCD 323), SECTION 14, as follows: S. 14: “Except as otherwise provided by law, unless it is shifted, a party has the burden of persuasion as to each fact, the existence or its non-existence of which is essential to the claim of defence he is asserting.” In the Supreme Court case of: In Re Will of Bremansu Akonu-Baffoe & Ors. v Buaku & Vabdeyke (Substituted by Bremansu) {2012] 2 SC GLR 1313, it was stated as follows: “In the circumstances, such as the instant case, both plaintiff and the defendant are under obligation to introduce and lead credible evidence in proof of their respective claim and counterclaim. In this regard, they both bear the burden of proof and must persuade the Court by establishing a requisite degree of belief in the mind of the Court that, their claims are legitimate and should be granted.” See: (i). JASS CO. LTD v APPAU & ANOR [2009] SCGLR 256. (ii). BRIMPONG v BAWUAH [1994-95] GBR 837, HOLD. 1. 14 In view of the issue of whether Plaintiffs are entitled to their claim, it is provided for in High Court case of: Majolagbe v Larbi & Anor [1959] GLR 190 @ 192, per Ollenu J (as he then was) as follows: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, references to other facts, instances or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of fact and circumstances from which the Court can be satisfied that, what he avers is true. On the evidence, the land in dispute (i.e. plot No. 49, Block “B”, Airport Residential Area, Wa), forms part of the larger Yikpong Family land, of which Adama family is part, as stated by 1st Plaintiff in paragraph 2 of his evidence-in-chief as follows: Paragraph 2: “I am a member of the Adama family of Dobile. The said land is my grandfather. My father is Mahama. By first settlement, my family acquired a large track of land inclusive of the plot in dispute, No. 49, Block B, Airport Residential Area, Wa.” ..........AND, in cross-examination, 1st Plaintiff answered the, following questions from Counsel for the Defendant: Q: In paragraph 2 of your evidence-in-chief, you indicated that, you are a member of the Adama family. do you still stand by that? A: Yes. Q: Adama is your grandfather? A: Yes. Q: It was this Adama who by first settlement occupied a large settlement including the land in dispute? A: Yes, he stayed there. 15 .........This assertion clearly showed that, the land in dispute was acquired by the grandfather of the 1st Plaintiff, Adama, which became family property after the death of 1st Plaintiff’s grandfather, but not a property of 1st Plaintiff’s father, as 1st Plaintiff himself stated in paragraphs 3 and 4 of his evidence-in-chief as follows: Paragraph 3: “My family has exercised rights of ownership over the large track of land inclusive of the land in dispute. In exercise of our family ownership of the vast track of land, my family has made grants of the land to numerous would-be developers...........” Paragraph 4: “In exercise of my family’s right of ownership, my family constructed a farm hut specifically in the middle of the plot in dispute when it was a farm land............” In the Supreme Court case of: In Re Attah (Decd); Kwao v Tawiah [2001-2002] SC GLR 461, it was held as follows: “The self-acquired property of a deceased interstate, is said to become family property. This means that, the family acquires title of ownership to the property.” It was also evident that, Plot No. 49, Block “B”, Airport Residential Area, Wa, which forms part of the said family land, was purchased by the Defendant, who was then resident in Accra, through one Christopher Chipie (Decd), a former Surveyor in Wa, in 1995, and a Lease document (Exhibit “1”), was prepared and executed in1997 by Sumani Adama, the then Head of Yikpong family of Dobile Section, and same witnessed by one Saaka Adama and Nuhu Bukari, all of same family, in the name of the Defendant. Even though the Defendant’s grantor, Sumani Adama (Decd) also passed on, and the Defendant did not call any family member in support of her claim, her evidence was carefully weighed, and looked at with great care, and was thoroughly sifted, by this Honourable Court, which clearly showed that, Defendant properly and legally acquired the land in dispute, and her Exhibit “1”, is hereby declared valid. The Defendant was therefore, in actual possession, occupation, and she took physical control of the said 16 land, and even constructed fence wall round the disputed plot, with gate, since 1995 till date. See: (i). In Re Garnett; Gandy v Macauly [1885] 31 CH, D1. (ii). Brown & Quashigah [2003-2004] SCGLR 930 @ 9951. (iii). Evidence Act, 1975 (NRCD 323), Section 25(1), & 35. It is interesting to note that, the then Head of Yikpong family, Sumani Adama (Decd), and the other signatories to the lease document (Exhibit “1”) of the Defendant, Saaka Adama and Nuhu Bukari were all Principal members of the Yikpong family, as admitted by the 1st Plaintiff in his cross-examination by Counsel for the Defendant as follows: Q: How many children did Adama (your grandfather) have? A: Seven (7) children Q: Do you know Sumani Adama? A: Yes. Q: He is one of the children of your grandfather, Adama? A: Yes. Q: He is older than your father? A: My father is the elderly child (first child) of my grandfather. Q: Is Sumani Adama still alive? A: No. Q: When Issah Adama died, who became the head of family? A: It was Sumani Adama Q: Sumani Adama was part of your family? A; Yes. Q: Who is the current Head of family? A: Saaka Adama 17 Q: Who is he (Saaka Adama) to you? A: My Uncle (Paternal) Q; Is Saaka Adama still alive? A: Yes. Q: What about Nuhu Abubakari? A: Yes, I know him Q: Who is he to you? A: My senior brother. .............These were clear indications that, the above personalities include head of and other principal members of the Yikpong family, and the land in dispute, vests in the Yikpong family of Dobile, after the death of Adama (1st Plaintiff’s grandfather). In the High Court case of: Yawoga v Yawoga & Atutonu [1958] 3 W.A.L.R. 309, it was stated as follows: “Now, according to native custom, rank among members of a family is determined by the relative proximity of a member to the founder of a family, or the remotest ancestor that is remembered in the family. Therefore, children of a deceased person rank first with equal status as the principal members of the family. Next in rank are their children........” In the instant case, the children of the grandfather of 1st Plaintiff (e.g. Saaka Adama, who is the current Head of family), and elderly brothers of 1st Plaintiff (e.g. Nuhu Abubakari), who are currently alive, are part of the principal members of Yikpong family. It was also evident that, Plot No. 49, Block “B”, Airport Residential Area is surrounded by other plots in the area, as 1st Plaintiff answered the following questions from Counsel for the Defendant: Q: This plot in dispute is surrounded by other plots in the area (i.e. plot numbers 50, 51, and 52)? A: It is true. 18 Q: Are you implying that, plot numbers 50, 51, and 52 which surround your father’s plot belong to your father as well? A: Yes. Q: Who granted plot no. 50, Block “B”, Airport Residential Area? A: I don’t know the person. Q: But plot no. 50 is part of your family land? A: Yes. Q: Do you know the person who made grant of plot no. 51? A: No. Q: But the said plot (no. 51) is also family land? A: Yes Q: What about plot no. 52, who made the grant? A: I don’t know Q: The said plot 52 is also part of your family land? A: Yes. ..........It is interesting to note that, 1st Plaintiff who claimed these plots of land belong to his late father, but not the Yikpong family, could not tell who made the grants of these family plots to the individual occupants of same. These were clear indications that, all these plots of land (i.e. plot nos. 50, 51, and 52), belong to the Yikpong family of Dobile, which comprised of several nuclear families including the Adama family, and the lawful grantors of these family lands in the Yikpong family of Dobile of which the 1st Plaintiff belongs, granted same to prospective developers, including that of the Defendant’s plot number 49, and the 1st Plaintiff being a Grandchild, in the said family, has no knowledge and authority in the sale. Moreover, the current head of family, Saaka Adama, who is also a signatory to the Defendant’s Lease (Exhibit “1”), and still alive, did not file any witness statement to 19 support the claim of the 1st Plaintiff, neither did they (i.e. the Head of family and other principal members) sign Exhibits “A” & “B” of the 2nd Plaintiff. In order to prove her case, the Defendant attached to her Exhibit “1”, Note of Allocation of Land (Exhibit “3A”) and Statutory Declaration (Exhibit “3B”), all dated 1995, of the owner and occupant of her adjacent plot No. 50, Block “B”, Airport Residential Area, evidencing the same execution made by the same, former Head of family, Sumani Adama (Decd), to John Kpieunang. The contradiction or conflicts in the size of the disputed plot as contained in the new schedule of Exhibit “1”, where it is also stated unnumbered plot, complained of by Counsel for Plaintiffs, are minor and trivial, which are disregarded by this Honourable Court, since both parties all along, referred to plot No. 49, Block “B”, Airport Res. Area, in their evidence. The duty of Courts is to aim at doing substantial justice between the parties. Moreover, the said inconsistencies cannot be attributed to the Defendant, since she was not the originator of the said document. In the Appeal Court case of: Aikins v Dakwah [2013] GMJ 187 @ 213-214. C.A, it was held per Ayebi, JA, (as he then was), as follows: “That apart, in spite of those conflicts or discrepancies, the plaintiff as the claimant in this case, is not relieved of the onus on him to prove his title to the land. The plaintiff cannot simply rely on the seeming weakness of the defendant’s case occasioned by the discrepancies or conflicts to succeed. The plaintiff must be able to establish by evidence his own case first.” See: (i). Vaughan-Williams v Oppong [2015] 84 GMJ 171, S.C. (ii). Effisah v Ansah [2005-2006] SCGLR 943 @ 960, SC. It was also evident that, the 1st Plaintiff unilaterally sold the disputed plot No. 49, Block “B”, Airport Residential Area, Wa, which was validly acquired by the Defendant in 20 1995, to the 2nd Plaintiff in 2006, as 1st Plaintiff stated in paragraphs 5 and 6 of his evidence-in-chief as follows: Paragraph 5: “On the death of my grandfather, Adama, my father, Mahama inherited the said land inclusive of the land in dispute for and on behalf of our family till my father died and I inherited the said land, as the most senior son of my late father.” Paragraph 6: “In exercise of my right of ownership of the land in dispute (i.e. plot No. 49, Block “B”, Airport Residential Area, Wa), I made a grant of the said plot to the 2nd Plaintiff, as evidenced by a Statutory Declaration, dated 27th November, 2006. Later, I executed a Notice of Allocation of Land, at the Wala Traditional Council in favour of the 2nd Plaintiff..........” .............AND, in cross-examination, the 1st Plaintiff answered the following questions from Counsel for the Defendant: Q: Your purported grant to 2nd Plaintiff, you issued some documents to the 2nd Plaintiff? A: Yes, I gave him Note of Allocation from Traditional Council and Statutory Declaration, a Court document. Q: As we stand in Court today, who is the Head of Adama family? A: Saaka Adama. Q: At the time of the grant to 2nd Plaintiff, did any member of the family witness the transaction? A: There was no witness. ...........Interestingly, no family member witnessed the transaction between the 1st Plaintiff and the 2nd Plaintiff, in respect to the sale of the disputed plot of land to the 2nd Plaintiff to testify in support of his assertion that, he (1st Plaintiff) inherited the said land after the death of his late father, which is fatal to his case. See: Owusu v Tabiri & Anor [1987-88]1 GLR 287, H.C, Hold. 2. 21 In the case before this Honourable Court, the land in dispute (i.e. plot No. 49, Block “B”, Airport Residential Area) becomes part of ancestral family property, after the death of the Grandfather of the 1st Plaintiff (Adama), and there was no evidence to show that, 1st Plaintiff’s father, inherited these plots of land after the death of Adama, hence the 1st Plaintiff, as a grandson has no authority to alienate same. In the High Court case of: Adjei v Asantewah & Ors. [1961] GLR 629, it was held as follows: “Where property is ancestral family property, it can be alienated only by the head of the wider family with the consent and concurrence of the principal members of the family.” Hence, 1st Plaintiff not being the head of Yikpong family, has no legal authority to alienate family property. It was also interesting to note that, the 2nd Plaintiff corroborated the evidence of the Defendant, as he answered the following questions from Counsel for the Defendant: Q: It is true that, Sumani Adama (head of family) has plot of land at Airport Residential Area, Block “B”? A: Yes. Q: The 1st Plaintiff is from Adama family? A: Yes. Q: All these plots of land 1st Plaintiff sold to you and others, you agree with me that, all form part of family land of 1st Plaintiff? A: Yes. .............These responses from the 2nd Plaintiff in support of Defendant’s evidence, clearly showed that, the land in dispute is a bona fide property of the Yikpong family of Dobile, of which Adama family is part, which is vested in the said family on behalf of, and in in trust for the said family, in accordance with customary law and usage. See: Land Act, 2020, Act 1036, Section 9(1). 22 On the evidence, Plot No. 49, Block “B”, Airport Residential Area, being part of the said family land, was legally acquired by the Defendant from the Yikpong family, and thereafter a lease (Exhibit “1”) was executed between the then Head of family, Sumani Adama (Decd), Principal members of the family, and the Defendant in 1997. In the instant case, facts recited in the document were conclusively presumed to be true between the Defendant, and Yikpong family of Dobile Section, Wa, which created an estoppel by written document, binding the Plaintiffs and their successors.” See: (i). Kusi & Kusi v Bonsu [2010] SCGLR 60 @ 84, WOOD, CJ. (ii). Evidence Act, 1975 (NRCD 323), Section 25. Evidence also showed that, the Plaintiffs had knowledge of the grant of plot No. 49, Block “B”, Airport Residential Area to the Defendant, since 1997, as 1st Plaintiff admitted in paragraph 8, 9, and 16 of his evidence-in-chief as follows: Paragraph 8: “The Defendant then produced a lease purportedly executed between her and one Sumani Adama, a paternal uncle of mine as her grantor by which time the said Sumani Adama had died. The said lease also showed that, one Saaka Adama witnessed the execution of the lease.” Paragraph 9: “As a result of the dispute over the plot, I met with the Defendant in the company of Alex Naah, who is with the Survey & Mapping Division of the Lands Commission, Wa, the Assemblyman of Dobile Electoral Area and Sumani Abubakari.” Paragraph 16: All efforts to convince the Defendant to leave the plot in dispute to the 2nd Plaintiff has proved futile. ............AND, in cross-examination, 1st Plaintiff answered the following questions from Counsel for the Defendant: Q: You indicated that, sometime in 2020, the Defendant tried to claim title to the land in dispute, when 2nd Plaintiff started developing the land? 23 A: Yes. Q: To support her claim, she (Defendant) presented a lease registered lease to you? A: Yes, she showed me the said document. .............The 2nd Plaintiff also answered the following questions among others from Counsel for the Defendant: Q: It is true that, Defendant showed you documents in respect of the land? A: The time Defendant came showing documents to the landlord, I saw her, but was not directed to me. Q: And the documents the Defendant showed you indicated that, she (Defendant) acquired the land since 1997? A: I did not check the date on Defendant’s documents. Q: It is your contention that, you got the piece of land in 2006? A: Yes. Q: And by 2006, this land in contention has a plot number at the time you bought it? A: Yes. ...........These admissions were clear indications that, the Plaintiffs had actual and constructive notice of the legal title of the Defendant over the said land in dispute, which was earlier in time granted to the Defendant in 1997, evidenced by a registered lease (Exhibit “1”), as compared to the unlawful acquisition of same land by 2nd Plaintiff in 2006, at the time the said land was no longer available to be granted to the 2nd Plaintiff. See (i). Hammond v Oddoi & Anor [1982-83] 2 GLR 1215, S.C. (ii). Boateng v Dwinfour [1979] GLR 360 @ 367, C.A, Holding 3. 24 (iii). Segbedzi & 2 Ors v Akrong [2014]79 GMJ 103 @ 109. Moreover, the 2nd Plaintiff having been aware that, the land was encumbered, failed to conduct search or investigation of the title of the 1st Plaintiff on same, as he (2nd Plaintiff) answered the following questions from Counsel for the Defendant: Q: You are aware that, buying a plot of land, you have to do due diligence? A: Yes, that is why I was sure that, the land belongs to the 1st Plaintiff. Q: Did you conduct a search before you bought the land from the 1st Plaintiff in respect of plot number 49, Block “B”, Airport Residential Area at the Lands Commission? A: I did not. ........It is trite learning that, the 2nd Plaintiff who was desirous of acquiring property, ought to properly investigate the root of title of his vendor (1st Plaintiff).The 2nd Plaintiff failed to make enquiries, or conduct a search (as done by the Defendant), and he acted on his own peril, since subsequent events disclosed that, there is a valid title acquired by the Defendant to the land in dispute. See: West African Enterprises Ltd v Western Hardwood Enterprises Ltd [1995-96] 1 GLR 155 @ 158, C.A. Moreover, 2nd Plaintiff again failed to lead credible evidence to prove that, he actually deposited two trips of sand, and 2,000 blocks on the disputed land. See: Majolagbe v Larbi & Ors [1959] GLR 190 @ 192, H.C. In another development, it was evident that, the family that purported to make the said grant to the 2nd Plaintiff as indicated by 1st Plaintiff in both Exhibits “A”, and “B”, is neither the Yikpong family of Dobile, nor 1st Plaintiff’s nuclear family (i.e. Mahama 25 family), surprisingly, 1st Plaintiff rather created and stated in Exhibits “A” & “B”, that: “Nyeberiyiri family have granted the disputed plot to 2nd Plaintiff, and 1st Plaintiff described himself in the said Exhibits “A” & “B” as the Head of the said Nyeberiyiri family.” Meanwhile, the 1st Plaintiff neither pleaded nor led evidence in this Honourable Court to show that, he (1st Plaintiff) is the Head of any family called “Nyeberiyiri”. The 1st Plaintiff rather, in paragraph 2 of his evidence-in-chief, described himself as a member of Adama family. In the opinion of this Honourable Court, the Plaintiffs are bound by their pleadings, and cannot at the trial set up a case different from that which they have pleaded. See: Appiah & Ors. v Akers Trad. Comp. [1972]1 GLR 28, H.C. The 1st Plaintiff by stating in Exhibits “A” & “B”, that, “He (1st Plaintiff) is the head of Nyeberiyiri family”, was setting up a case, which is completely inconsistent with his former pleadings that, he is a member of the Adama family. This assertion in Exhibits “A” & “B”, that, he (1st Plaintiff) is the Head of “Nyeberiyiri family” who granted the disputed plot to 2nd Plaintiff, is therefore disregarded by this Honourable Court, with the evidence in support, which is at variance with the case put forward in his evidence- in-chief. See: (i). Oddoi & Or v Hammond [1971] 1 GLR 375, C.A. Hold. 4. (ii). Atadi v Ladzekpo [1981] GLR 218, C.A. Moreover, the Statutory Declaration (Exhibit “A”), dated 27/11/2006, and the Allocation Note (Exhibit “B”), without a date, issued by 1st Plaintiff to the 2nd Plaintiff, per se, are not legally conclusive in proving title to the land in dispute. See: Edmund Danso v Moses Adjei [2013] 58 GMJ 71, @ 91-92, C.A. ...............This act of the Plaintiffs in respect of preparation of these documents (i.e. Exhibits “A” and “B”), constitute false representation, unreliable and cannot show a better title or constitute a proof of source of ownership of the plot of land. 26 In: Derry v Peek (1889) 14, App Case 337, @ 374, Lord Herschell, stated as follows: “First, in order to sustain an action of deceit, there must be proof of fraud and nothing short of that will suffice. Secondly, fraud is proved when it is shown that, a false representation has been made (1) knowledge, or (2) without belief in its truth, or (3) recklessly, careless whether it be true of false.” In the course of this proceedings, there was course to believe that, these documents, i.e. Exhibits “A”, and “B”, were fraudulently procured, hence disregarded by this Honourable Court, on the strength of that fraud. See: i. Frimpong v Nyarko [1998-99] SCGLR 734 @ 743, SC. ii. LAND ACT, 2020 (ACT 1036), S. 45 (b). In the Court of Appeal case of: Duagbor & Ors v Akyea Djamson [1984-86] 1 GLR 697 @ 709, it was held as follows: “Where the plaintiff’s evidence is unsatisfactory, the judgment should be in the Defendant’s favour, on the ground that, it is the Plaintiff who seek relief, but has failed to prove that, he is entitled to what he claims.” See: Frempong II v Brempong II (1952) 14 WACA 13. In the instant case, the Defendant counterclaimed against the claim of the Plaintiffs on 25/08/2020. The claim being one for declaration of title, the Plaintiffs can only succeed upon the strength of their case and not upon the weakness of that of the Defendant. The counterclaim of the Defendant for a declaration of title did not in any way lighten the might of the burden upon the Plaintiffs to prove their title by preponderance of admissible evidence. See: Yuguo v Agyekum [1966] GLR 482 @ 486, SC. On the evidence, I hold that, the Plaintiffs have failed to lead satisfactory and credible evidence to prove title to the land in dispute. The 1st Plaintiff has no title to the land in 27 dispute, and the grant made to 2nd Plaintiff by the 1st Plaintiff is null and void. No title has passed onto the 2nd Plaintiff. Accordingly, on the balance of probabilities, the claim of the Plaintiffs is hereby dismissed, and judgment entered in favour of the Defendant on her counter-claim. I access the costs of this action at Twelve Thousand Ghana Cedis (GH¢12,000.00), against the Plaintiffs, in favour of the Defendant. ............................................. MAXWELL M. TITRIKU MAGISTRATE DISTRICT COURT, WA, UW/R, 30/09/2024. 28