Emmanuel Andema v Kuribire Amogre & Anipoka Amogrea; and Abokutum Abongo & 2 Others

The parties to this appeal will retain their designation in the trial Court. original parties to this suit Emmanuel Andema, Plaintiff and Akuribire Amogre and Anipoka Amogre, Defendants hailed from Kandiga. For the Plaintiff, the land in dispute was acquired by his ancestors in a place they call Akurugu-Daboo. Defendants however, claimed the land in dispute belonged to their ancestors acquired through first settlement and was situated in a place called Akongugu which formed part of Kandidga lands.

It was the case of the Plaintiff that the Defendants had trespassed unto this family land of theirs. They successfully drove off the 1st Defendant from the land on two occasions when he tried to give the land to some persons. However, 1st Defendant brought the 2nd Defendant unto the land and they have refused to leave the land despite efforts of the Plaintiff to get them to vacate same. The Plaintiff therefore instituted this action against the Defendants.

Plaintiff claimed the following reliefs against the Defendants:

a.   A declaration of title to all that piece or parcel of land lying North of Akurugu-Daboo Catholic Church at Kandiga Junction measuring about Six (6) acres, bounded to the North by Agangmikre Amole's house, and bounded to the East by Amogre's farmland and to the South by Akantuse Atiba's farmland and by Asuriya's farmland to the West.

b.   A declaration that 1st and 2nd Defendants have trespassed unto Plaintiff's family land above described.

c.    An order for 2nd Defendant to remove her building on Plaintiff's land above described

d.   Recovery of possession of all that piece or parcel of land above described.

e.   Perpetual injunction restraining Defendants, their agents, privies assigns and all those claiming through them from interfering with the Plaintiffs ownership possession and control of the land in the dispute.

f.    Damages

g.   Costs

SUMMARY OF PLAINTIFF’S CASE:

Plaintiff’s case is that about seventy years ago his grandfather Ataaya Akabe a native of Kandiga, a different village from Doba, acquired the land in dispute from Afanya Apungu, the then Tindana of Doba through a customary grant after all the necessary customary requirements were fulfilled.

This parcel of land which is the land in dispute comprises all that piece and parcel of land lying in Akunkongo, Doba North of Akurugu Daboo Catholic Church at Kandiga Junction measuring about six (6) acres. It is bounded to the North by Agangmikre Amole's house, and bounded to the East by Amogre's farmland and to the South by Akantuse Atiiba's farmland and by Asuriya's farmland to the West.

Plaintiff’s late father Peter Andema later inherited the land from his (Plaintiff’s) grandfather Ataaya Akabe. The father worked on the said parcel of land which forms part of the disputed land for many years whilst they were staying at Kandiga. Later in 1957 his father migrated from Kandiga to settle at Akunkongo on part of his parcel of land near the disputed land.

Plaintiff states that 1st Defendant's grandfather Amogre Akagili was made a Caretaker of Doba lands at Akunkongo on behalf of the Tindana of Doba. After Amogre Akagili his first son Akulga Amogre became the Caretaker of Doba lands at Akunkongo and both Amogre Akagili and his first son Akulga Amogre lived and co-operated peacefully with Plaintiff's family.

Plaintiff further states that after Akulga Amogre's death Akuribire Amogre, 1st Defendant succeeded Akulga Amogre as Caretaker of Doba lands at Akunkongo for and on behalf of Tindana of Doba. However, according to Plaintiff, about five (5) years ago, Akuribire Amogre the 1st Defendant brought someone to settle on Plaintiff's family land at Akunkongo and was resisted by Plaintiff and his brothers Vincent (deceased) and Roland as well as the Tindana of Doba, Abotokum Apungu.

Plaintiff says that 1st Defendant after that brought again another woman to settle on Plaintiff's land at Akunkongo but was again sent off by Plaintiff and the Tindana of Doba. For the third time however, Akuribire Amogre, 1st Defendant went and brought 2nd Defendant to trespass on Plaintiff's family land and to settle on Plaintiff's legally acquired land from the Tindana of Doba at Akunkongo and they have since defied all demands by Plaintiff and the Tindana of Doba to halt the said trespass. 1st Defendant continued to encourage 2nd Defendant to construct her building on the land.

Plaintiff states that 1st Defendant's father, Amogre Akagili migrated from his village known as Kandiga to Doba where the disputed land is situated and approached the then Tindana of Doba for land to settle on and same was granted to him. Because of the long distance of the said land in dispute at Akunkongo - Doba from Tindana of Doba's house, the then Tindana of Doba called A-uka made 1st Defendant/Counterclaimant's father a caretaker of the Tindana of Doba's lands at Akunkongo-Doba.

Both Plaintiff and 1st Defendant and their families are stranger-settlers on Doba lands at Akunkongo which belongs to Doba Tindana and that the land in dispute does not form part of the piece of land given to 1st Defendant/Counterclaimant's father, Amogre Akagili but rather that the land was that portion of land which was validly alienated through a customary grant to his grandfather Ataaya Akabe.

The school and Catholic Church were not built on 1st Defendant family land and the same were never built on the said lands with the permission of 1st Defendant's family. The land upon which the Catholic church was built belongs to the Asuriya family and the said Asuriya family itself is on Doba lands under the Tindana of Doba, Abomotum Apungu as the allodial tittle holder. Plaintiff, James Akasuma and Sylvester Amikiya together approached the Asuriya family through one Abibi of the Asuriya family for the piece of land to build the Catholic Church. After they met with the Asuriya family, Plaintiff, Sylvester Amikiya and James Akasuma further went to the allodial tittle holder of the lands in that area of Doba, Tindana Abokootum Apungu, to further request for the piece of land to build the Catholic Church following which they presented customary items; a ram, a cook, a ball of tobacco and a hoe to Abokotum Apungu who performed the necessary rites before the church was built.

Plaintiff states that the local Akurugu - Daboo Basic School was built about fifty (50) to fifty - five (55) years ago on land allocated to the school authorities directly by Tindana A-uka as no family was granted that land and it was not cultivated. The said school was not built on the family land of 1st Defendant.

The local basic school and the Catholic Church were named Akurugu - Daboo as that is the name of the area they were located. The name Akurugu - Daboo has been in existence since time immemorial and there was no protestation against the name of the school and the church when they were built. Defendants started protesting against same before this Honourable Court.

Plaintiff's father owned the land in dispute by virtue of inheritance from Plaintiff's grandfather whom Plaintiff admits does not hail from Doba i.e. the village in which the disputed land is situated but that Plaintiffs grandfather as above stated migrated from Kandiga just as 1st Defendant's father Amogre Akagili equally migrated from Kandiga to settle in Akunkongo - Doba.

Plaintiff’s father owned the land in dispute because Plaintiff’s grandfather Ataaya Akabe customarily acquired same from the Tindana of Doba about seventy - five (75) and more years ago.

SUMMARY OF DEFENDANTS/COUNTERCLAIMANTS’ CASE:

It is the case of Defendants/Counterclaimants that their family is the absolute and beneficial owner of all that piece and parcel of land lying and being at Akunkongo in the Kassena - Nankana District bounded to the East by a farmland of Asigmoor to the South by Akuntuse's farmland to the West by Kandiga main road of an approximate size of not less than 5 acres in the first instance and 15 acres in the second instance.

Their ancestors acquired the land between Atangdire river and Anayere river and with Akunkongo shrine near Kandiga Junction at the centre and stretching Northwards to Azaasi inclusive and Southwards to Passinga (confluence of the two rivers). They further state that their ancestors' land was acquired by discovery, driving wild animals away and settlement and included major shrines that became names of places known today as Azaasi, Afuga, Atosale, Abagzola, Akunkongo, Abempingo and Atababa.

The 1st Defendant/Counterclaimant states that his ancestor one Akuntebe and his (Akuntebe's) nephew known as Atiiba discovered Akunkongo and its surrounding lands which includes the lands the subject matter of this suit and he and his relations have since occupied same by farming and building residences on same for over 100 years to the knowledge and notice of all, including Plaintiff and his family without any form of challenge.

The 1st Defendant/Counterclaimant categorically asserts that his blood ancestor, namely the said Akuntebe brought forth Agengo, who brought forth Anaba, who brought forth Akagile, who brought forth Amogre, who brought forth Akuribire Amogre. Their family practices the traditional patrilineal system of inheritance which pertains and is observed in the area.

Defendants’ family lands have always been clearly identified and they have exercised various acts of possession and ownership including but not limited to farming, pasturing, hunting, building and settlements on part and permitting others to do same.

There have been various acts of unlawful interference with their person and their land by the Plaintiff aided by the Tindana including acts of harassment using the criminal process.

The 1st Defendant to Counterclaim is only a caretaker of shrines or gods and a spiritual head of the Doba community across the Anayere river and has no jurisdiction in and over the lands the subject of this dispute, but is only aiding and being influenced by Plaintiff, then a DCE, to use his political and traditional might to unlawfully take Defendants' lands.

Amogre and Akagile, who are direct predecessors of the 1st Defendant, and 1st Defendant himself have all been Tindanas over the land the subject matter of this suit for over 50 years without any challenge, including supervision of sacrifices and customary rites by assistants under them at any particular time.

Plaintiff's action is ill-conceived, baseless, unmeritorious and it ought to be dismissed with punitive costs since the said land claimed by the Plaintiff is part of the larger land owned by the Defendants' family.

SUMMARY OF CASE OF 1ST DEFENDANT TO COUNTERCLAIM:

The case of 1st Defendant to Counterclaim is that 1st Defendant/Counterclaimant is not a native of Doba where the disputed land is situated but that 1st Defendant/Counterclaimant is a native of a different village known as Kandiga. His father, Amogre Akagili, migrated from his said village known as Kandiga to Doba where the disputed land is situated and approached the then Tindana of Doba called A-uka for land to settle on and it was granted to him.

As a result of the long distance of the land in dispute at Akunkongo - Doba from Tindana of Doba's house, the then Tindana of Doba, A-uka, upon a request from 1st Defendant/Counterclaimant's father gave him a piece of land to settle on and the Tindana of Doba made him a caretaker of the Tindana of Doba’s land at Akunkongo-Doba.

The local Kurugu Dabo basic school and Catholic Church were not built on 1st Defendant/ counterclaimants family land and the structure were never built at their present location with the permission of 1st Defendant/Counterclaimants family. The land upon which the Catholic Church is built belongs to the Asuriya family and that the said Asuriya family itself was settled by the Tindana of Doba called Afanya Apungu on Doba lands.

Plaintiff, James Akasuma and Sylvester Amikiya together approached the Asuriya family through one Abibi of the Asuriya family for the piece of land to build the Catholic Church. After meeting with the Asuriya family, Plaintiff, James Akasuma and Sylvester Amikiya further came to Tindana Abokootum Akasuma Apungu as the allodial title holder of lands in that area of Doba, and further requested for the piece of land to build a Catholic Church following which they presented a ram, a cock, a ball of tobacco and a hoe to him as required by custom and he performed the necessary rites before the said church was built.

The local Akurugu - Daboo Basic School was built about fifty (50) to fifty-five (55) years ago on land allocated to the school authorities directly by Tindana A-uka as no family was granted that land and it was not cultivated. The school was therefore not built on the family land of 1st Defendant/Counterclaimant. The local basic school and the Catholic Church were named Akurugu - Daboo as that is the name of the area they were located. That name has been in existence since time immemorial and same has been noted by Captain L.J. Mothersill, District Commissioner of the Gold Coast in a report dated 14th and 15th July, 1939.

The 1st Defendants to Counterclaim denies that 1st Defendant/Ccounterclaimant protested against the use of the name Akurugu - Daboo associated with the basic school and church and stated that 1st Defendant/Counterclaimant started doing same in the Honourable Court.

About seventy- five (75) or more years ago Plaintiff’s grandfather, Ataaya Akabe a native of Kandiga, a different village from Doba, acquired the land in dispute from Afanya Apungu, the then Tindana of Doba and predecessor of 1st Defendant to Counterclaim through a customary grant after all the necessary requirements were fulfilled.

Both Plaintiff and 1st Defendant/Counterclaimant and their families are stranger settlers on Doba lands at Akunkongo which belongs to Doba Tindana and that the land in dispute does not form part of the piece of land given to 1st Defendant/Counterclaimant's father, Amogre Akagili, but rather that the land was that portion of land which was validly alienated through a customary grant to Plaintiff's grandfather Ataaya Akabe.

The 1st Defendant to Counterclaim states that 1st Defendant/Counterclaimant's ancestors were caretakers of Doba lands at Akunkongo, and that 1st Defendant/Counterclaimant himself was still a caretaker of Doba lands at Akunkongo until lately when he started denying, Tindana of Doba, his grantor's title to the lands situated at Doba.

The true boundaries of the land granted to 1st Defendant/Counterclaimant’s father by the then Tindana of Doba to settle on as a caretaker of Doba lands is bounded by Akaabe Ayangba and Peter Andemas houses to the North and to the East by Abiya Akurigo and Aguma Akoligo’s houses and to the west by Apowum Nsohs farmland and to the south by a stream called Adendee- Boka.

The 1st Defendant to Counterclaim says that the 1st Defendant/Counterclaimant’s father was also granted a small parcel of land by Tindana A-uka which lies east to the Plaintiff’s family land. The said land does not extend to Plaintiff’s father’s land. The 1st Defendant’s father and brother had always respected the boundary. It is bounded on the west by Andema and Ayenvales families land, East by Ayim Aguure, North by Asigmoo and south by Atugma.

As the allodial owner of the lands, 1st Defendant to Counterclaim says that Plaintiff asked him to settle issues between him and 1st Defendant/Counterclaimant when the latter caused the 2nd Defendant to trespass on Plaintiff's family land.

The land at Akunkongo - Doba described by 1st Defendant/Counterclaimant in Paragraph 23 of his Amended Statement of Defence and Counterclaim is not 1st Defendant/Counterclaimant's family land but that the said land falls within the land allocated to Plaintiff's grandfather by Tindana Afanya Apungu.

The 1st Defendant to Counterclaim says that the lands lying between Atankire river and Anayere river including places named after shrines called Afuga, Atosale, Abangzola and Akunkongo are situated at Doba and are owned by him as same has been passed on to him by his ancestors who have been Tindanas of the land.

Lands at the various places including Azaasi lands fall under Doba and same has been noted by Captain L.J. Mothersill, District Commissioner of the Gold Coast in a report dated 14th and 15th July 1939. Again, a judgement had been given by the Kassena- Nankanni Federation court in the case of Akiregea vrs Awolle before Mr. E.O RAKE, Assistant Chief commissioner sitting at Navrongo on the 19th day of March, 1936 in which Agassi has been declared as Doba lands but not Kandiga lands.

The lands at Passinga, the confluence of two rivers and Abempingo and Atababa belong to Tindana Atawam Ayawine lands over the years

The 1st Defendant/Counterclaimant's ancestors who hail from Kandiga could not have come to Doba to found land by discovery and settlement as the said land already belongs to a known village and under a known allodial owner, the Tindana of Doba. The 1st Defendant/Counterclaimant's ancestor and relations had always farmed on lands allocated to them by the Tindana of Doba and had acknowledged the ownership of Tindana of Doba over the lands until recently that 1st Defendant/Counterclaimant started denying the title of the Tindana of Doba.

Centuries ago, two brothers, Agayaah and Anonkale came to Doba and through first settlement established sections of Doba and became Tindanas of the said different sections of Doba. Agayaah was the direct ancestor of 1st Defendant to Counterclaim and Anonkale was the direct ancestor of Tindana Edward Binini Adjoba.

Agayaah occupied the lands lying southwards and presently at Doba and bounded to the south by Takuri river and bounded to the east by Atiyorom in Kandiga and bounded by Azaasi in North East and by Abubayarim in the North West and bounded by Agurimaluku in Doba to the west and also by Adame a shrine in the south west.

Tindana Edward Binini Adjoba’s direct ancestor Anonkale the elder brother of Agayaah settled on the land situated Northwards including Azaasi village. The 1st Defendant to Counterclaim states that Azaasi village is the boundary between the lands shared by Agayaah and Anankale.

The succession to Agayaah who was the first Tindana of the lands was as follows:

Agayaah was succeeded by Afanya who was succeeded by Apungu and Apungu was succeeded by Apowira who was succeeded by Amoah and Amoah was succeeded by A-uka and A-uka is succeeded by Abokootum Akasuma Apungu the present Tindana and current allodial title holder of lands in the disputed area.

Anonkale who is the elder brother of Agayaah was equally the first Tindana of an adjoining section of Doba including Azaasi and he and subsequently his predecessors reigned as Tindanas of the lands at Doba he settled on; the present Tindana of those lands is now Tindana Edward Binini Adjoba.

The ancestral link exists between the two lineages to date and ceremonies are performed by the Tindanas together. The large tract of land under his jurisdiction makes a boundary with Tindana Atawam Ayawine of Kandango, Doba.

The Doba chief and Navropio, the Paramount Chief of the area in which the disputed land falls as well as all the lands under the jurisdiction of 1st Defendant to Counterclaim are aware of the fact that Akunkongo is the name of a shrine in Doba land that Doba stretches up to Tankiri river to the south and up to Atiyorom in Kandiga.

The 1st Defendant to Counterclaim and his predecessors settled many families and households in Akunkongo-Doba including the 1st Defendant/ Counterclaimant’s family. Other families include Alukai’s house, Anontise’s house, Anira Apiligo’s houses, Akayim Aduko’s house, Apunwee Azuntaba house and Nsoboma Azuntaba house, Anaara Atugba house, Asakiya Abane’s house, Dominic Asinvim’s house, Asakiya Abiro’s house, Asakiya Agijne’s house, Asigmoo, Asunge Awine house and many others.

The 1st Defendant to Counterclaim states that during harvest time, he sacrifices at the shrine located on his lands including the land in dispute and settlers on the land bring fowls and flour for the sacrifices.

Akontebe and Atiiba who were from Kandiga were settled on Doba lands by Tindana Agayaah through customary grant where they farmed some time ago but moved to Kandiga long ago before they passed on and the lands reverted to the Tindana of Doba.

It is the position of 1st Defendant to Counterclaim that any acts of ownership exercised over Doba lands by Akontebe, and Atiiba, amounted to trespass and did not make them the owners of the lands at Doba.

ISSUES SET DOWN FOR TRIAL (pages 463 – Address for Defendants, 518­519 – Address for Plaintiff & 615 - Judgment)

a.   Whether or not the 1st Defendant is a descendant of Agayah, the first Tindana of the land in dispute.

b.    Whether Agayaa hailed from Doba village or Kandiga village.

c.    Whether or not Afanya is an ancestor of 1st Defendant.

d.    Whether or not Afanya hailed from Doba village or Kandiga village.

e.    Whether or not Akontebe was a son of Afanya.

f.    Whether or not Akontebe and Atiiba hailed from Kandidga village or Doba village.

g.    Whether or not 1st Defendant is a descendant of Akontebe and Attiba.

h.   Whether or not Akontebe and Attiba were granted land within the land in dispute by the predecessor of Tindana Abokotoom of Doba.

i.    Whether or not 1st Defendant’s grandfather was granted the land he settled on at Akunkongo-Doba by the Tindana of Doba.

j.    Whether or not the 1st Defendant’s grandfather was a caretaker of Akunkongo land on behalf of the Tindana of Doba.

k.   Whether or not Tindana Abokotoom is a descendant of Agayaah.

l.    Whether or not the land for the school and Catholic Church were granted by the Tindana of Doba.

m.  Whether Plaintiff’s grandfather was granted the land he occupies by the Tindana of Doba.

n.    Whether or not the 1st Defendant has trespassed unto Plaintiff’s land.

JUDGMENT OF THE TRIAL COURT:

1.   The trial Court in its decision agreed with Defendants’ counsel that the core issue was who owned the Akunkongo lands and the determination of that issue would resolve most of the issues in the suit.

2.   The trial Judge concluded that the 1st Defendant to Counterclaim had established that his family had the allodial title to the Akunkongo lands. He was able to point out shrines and other features which were captured on the composite plan.

3.   1st Defendant to Counterclaim’s land covered a large area and the lands claimed by the Plaintiff and Defendants fell within this large area of land.

4.   DW3, Chief, displayed the animosity that existed between his family and the Andema family. ROA 590 – based on chieftaincy contest between Peter Andema & DW3’s father and Vincent Andema and witness himself. Not true that Peter Andema settled on DW3’s father’s land at Akunkongo.

5.   The appointment of head of family need not be formal. It could be by popular acclamation or acknowledgment by the family. Eg. Where a member is permitted to deal with family property. See Nyamekye v Ansah [1989-90] 2 GLR 152.

6.   The Court was satisfied from the circumstances that the Plaintiff had capacity to institute the action. After the death of his elder brother Vincent, he became the most senior male and assumed the headship of the family. Property is family property and he could sue. ROA 592­594

7.   1st Defendant claimed that the school and the Catholic Church were on his family land and had been wrongly named after Akurugu-Daboo instead of Akunkongo. This should be changed by Court order. The Court’s decision is that both institutions had the name at their inception and not changed by Vincent Andema and the headteacher. ROA 594-595

8.   In respect of the acquisition of land for the Catholic Church, 1st Defendant claimed the land was given by his uncle who was head of family for the building of the church. The Court preferred the evidence for Plaintiff and 1st Defendant to Counterclaim that a delegation of three Church elders approached Asuriya family, asked for the land, the family released it and directed them to go for consent from Tindana of Doba. The consent was given. ROA 595-601.

9.   The discrepancy in the date of appointment of the Tindana of Dobs and the time the consent was given was considered as a slip instead of a material discrepancy. ROA 601-603.

10.             Founding of Doba and Akunkongo lands – ROA 603 –

a.   The story of the 1st Defendant to Counterclaim is adopted by the Plaintiff that the 2 ancestors namely Agayaah and Anonkale founded all Doba lands by first settlement. Agayaah founded all the

lands south of Doba and was the first Tindana of Akunkongo – Doba. ROA 603 – 604 has the description of boundary features. The grant to 1st Defendant’s family. The position of 1st Defendant to Counterclaim asserted by Plaintiff – ROA 607-608, 609-611.

b.   Story of the 1st Defendant – he contradicted 1st Defendant to Counterclaim and set up his story – ROA 604-607. Akunkongo and its surrounding lands were founded by his ancestors Akuntebe and his nephew Atiiba, occupied and cultivated it for over 100 years to the knowledge of all including plaintiff and his family without any form of challenge. ROA 609

11.             Evidence of 1st Defendant’s Attorney was expunged because

the power of attorney was not stamped. Only the evidence of his witnesses was considered in the judgment of the trial Judge. ROA 622­624

12.             1st Defendant’s Proof of Acquisition of the land was that his

ancestors founded it by first settlement but (a) deceased kinsmen sent to Kandiga for burial, (b) Akunkongo made up of settlers, a fact admitted by DW3 the Kandiga chief and failed to give any reason why bodies of deceased kinsmen sent to Kandiga for burial, (c) the 3 witnesses of 1st Defendant including the chief of Kandiga could not lead convincing evidence to support his claim that his ancestors founded the Akunkongo lands by first settlement. Analysis of the evidence of the three (3) witnesses contained in ROA 626-635.

13.             1st Defendant to Counterclaim’s Proof of Acquisition –

evidence was adduced by him supported by Plaintiff, their witnesses and documentary evidence. Fosua & Adu-Poku v Dufie (decd.) & Adu-Poku Mensah [2009] SCGLR 310. ROA 635-642, evidence of 1st Defendant to Counterclaim, Plaintiff and their witnesses analysed and court found it credible. Boya v Mohammed (substituted by) Mohammed & Mujeeb [2017-2020] 1 SCGLR 997 at 1003 Gbadegbe JSC quoted: ROA 641-642.

14.             Documents Exhibited by the 1stDefendant to Counterclaim –

(1)  Federation Court judgment dated 19th March 1936 before E. O. Rake, Assistant Chief Commissioner: Exhibit B, description of boundary between Doba and Kandiga prepared by Captain L. J. Mothersill, the District Commissioner on the 14th and 15thJuly 1939. It has a list of compound owners living in Azase, Doba attached. 1st

Defendant is on the list as Number 14 – document was retrieved from the National Archives. Exhibit AA1 – judgment of the Navrongo District Court of 1st September, 2011 presided over by His Worship Wilson Minzala Batinge.

15.             Some issues raised included authenticity of document, validity

of certification, and whether a caution statement in a criminal case which was set aside on appeal could be considered and used. ROA 635-640

16.             Survey Plan & Report CE2 and CE3 relied on by the Court

despite its deficiencies was made an issue in this appeal.

17.             Ownership & Forfeiture of the land was raised – ROA 645-648

18.             Final Reliefs were that the Claim of Plaintiff and Counterclaim

of 1st Defendant to Counterclaim granted. Counterclaim of 1st Defendant was dismissed.

It is against this decision that the Defendants have launched this appeal on 36 grounds as set out hereunder.

GROUNDS OF APPEAL

1.   The whole Judgement is against the weight of evidence before the Court.

2.   The learned trial Judge erred in law when unchallenged and or admitted facts on record proved that all the owners of adjoining lands to the land in dispute were Kandiga natives who obtained their customary grants from the Kandiga Tindana and yet he totally ignored such overwhelming admissions and evidence

3.   The learned Judge erred in law when he concluded that DW3 adduced evidence to confirm Plaintiff's case that his father 'inherited' the disputed land, as, among other things, that evidence, was inferred and interpreted out of context thereby leading the court to a wrong conclusion in law and fact

4.   The learned trial Judge erred grievously when he concluded that cross examination showed that Plaintiff 'left' Kandiga on his own accord to settle at Akunkongo and thereby led to a wrong conclusion

5.   The learned trial Judge erred grievously when he agreed and concluded that there was evidence that the Andema Family (Plaintiff's Family) was at loggerheads with Akagile Family, and therefore unlikely that family would have pleaded with anyone to release land for another family it was at variance with, when in fact there was no such evidence on record, a fundamental error in interpretation or assessment of evidence which led the court to a wrong conclusion

6.   The learned trial Judge's deduction and assumption concerning the supposed animosity between Plaintiff's family and DW3 were overly relied upon by him to the result that he erroneously ignored the relevant evidence of DW3 and this among others, led to miscarriage of Justice against Defendants/Appellants

7.   The learned trial Judge erred grossly in law when he relied heavily on evidence that had been rejected, discredited and quashed by the High Court and by law, concerning a purported confession statement together with its processes, which had been quashed and expunged as 'evidence' or 'records' by the same Court, thereby founding parts of his Judgement on non-existent records.

8.   The trial Court failed woefully to appreciate the nature and contents of the Defendants claim and evidence and thereby led to a wrong conclusion and interpretation of evidence led in Proof of same.

9.   The trial Court erred grievously in law when it ignored the fundamental and damaging inconsistencies in the evidence of the Plaintiff, his witnesses and the 1st Defendant to Counterclaim which went to the root of the case of Plaintiff and 1st Defendant to Counterclaim but rather justified same thereby leading to a miscarriage of Justice

10.             The trial Court erred grievously in its interpretation of the

answers offered by DW 1 to specific questions under cross examination generally and on issues of the grant of the disputed land on the land which the Catholic Church built the school and thereby led himself into wrong conclusion which caused a miscarriage of justice

11.             The learned Court/Judge erred grievously in law in his

Interpretation and application of the Stamp Duty Act and Power of Attorney and their consequences upon the Power of Attorney given by the 1st Defendant to his witness TO GIVE EVIDENCE in the suit which misinterpretation and wrong application led erroneously to the expunging of the facts and traditional evidence of DW (sic) and ultimately to gross miscarriage of Justice

12. The learned trial Court/Judge erred in law when he equated the answers of DW 1 to the status of legal admission in law which also led the Court to a wrong conclusion on his evidence

13.             The learned trial Court erred in law when it failed woefully to

observe the most relevant times of the grant of the land in dispute to the Catholic Church 2nd Defendant counterclaim) which conflicted/contrasted in material particular with the evidence of the alleged grantor of Plaintiff thereby leading itself to wrong conclusion on law and fact

14.    The learned trial Court erred grievously in law when it failed to appreciate and acknowledge which Doba Tindana was alleged to have granted the piece of land to the Catholic Church and at what time. This led the Court to a wrong conclusion of law and fact

15. The learned Justice of the trial Court also erred in law and facts when, in the glaring face of specific date mentioned by witness of 1st Defendant to Counterclaim of when they purportedly received the consent of 1st Defendant to Counterclaim, the latter himself was not yet in that position by his own admission, the court failed to appreciate the nature and context of that evidence

16.             The learned trial Court erred in law and fact in the standards and

principles and application of traditional history and evidence to the respective traditional evidence of the parties thereby erroneously placing undue weight unsupported and unsubstantiated on the evidence of the 1st Defendant to Counterclaim and Plaintiff to the detriment of the Defendants' case

17. The learned trial Court failed woefully to properly apply the time honoured and binding evidential principle of He Who Alleges Must Prove (among others) which resulted in the Court unjustifiably and heavily and unduly relying on evidence repeated on oath only by the Plaintiff and 1st Defendant to Counterclaim but which was not proved by the standards required by law

18. The learned trial Judge erred grievously in law when he agreed

and therefore received a total factual admission by 1st Defendant to counterclaim of the date of his appointment as Tindana (a materially relevant piece of evidence) as a 'slip' when there was no ground or reason or evidence to suggest same as such thereby misleading the Court into believing his status at the material time of the purported grant of the land viz-a-viz his evidence of his age at time of the grant

19.             The learned trial Judge/Court erred in law in the interpretation

and application of the cases of IRENE GORLEKU Vrs. JUSTICE POBEE

& ANOR [2012] 42 GMJ 53 and R.T BRISCOE (Ghana) LTD Vrs. BOATENG [1968] GLR 9 to the material and relevant evidence of 1st Defendant to Counterclaim on his Tindana status.

20.             The learned trial Court erred in law in the totally wrong

application and weight it attached to the colonial judgement of 19th March 1936 which led to a very dangerous and detrimental conclusion in law against the Defendant.

21.             The trial Court erred in law when it failed to apply the legal effect

of the general traverse in paragraph 1 of Defendants' Amended Statement of Defence and paragraph 19 of the same process, the combined effects of which were to specifically deny the paragraph of the Plaintiff's pleadings and not that of the 1st Defendant to Counterclaim and rather erroneously interpreted paragraph 28 of the Amended Statement of Defence as an admission when it was a further answer to a denial and this led to a wrong conclusion in law

22.             The trial Court also failed to apply the law on admission in

pleadings when in paragraph 8 of the Statement of Defence of 1st Defendant to Counterclaim, the latter admitted that the land on which the Catholic Church was built BELONGED to Asuriya Family, which was an unambiguous corroboration of evidence of Defendants and their witness

23.             The trial Court erred when it drew an erroneous conclusion of

inference that the burial of settlers at where they originally came from automatically implies that they are not natives or owners of the land they occupied at Akunkungo which led to misapplication or misapprehension of traditional evidence resulting in the wrong conclusion on that material issue or point.

24.             The trial Court erred in the evidential determination of both the

name of the place of the land dispute and the name of the Catholic School thereby leading to a wrong conclusion in law and fact.

25.             The trial Court erred when it wrongly/erroneously concluded on

the name Akurugu Daboo in the face of unchallenged admission and evidence of its meaning and origin and application thereby leading to another miscarriage of justice

26.             The trial Court misled itself into misunderstanding the nature

and purpose of the evidence of DW2 and other Defendants' witnesses

and as a consequential result led the court to the wrong conclusions on their evidence

27.             The learned trial Judge overly dwelled on the Court's perception

of the weakness in Defendants' case instead of the totality and weight and strength of evidence and case of the parties thereby violating principles of law regarding evidence and misapplied same to the detriment of Defendants and occasioned miscarriage as result.

28.             The trial Court failed woefully and erred in law when it took into

consideration matters that were not relevant or material or related to the issues or subject matter for determination but rather ignored or failed to consider the relevant issues and subjects for determination and thereby rushed misled itself into the wrong conclusions in law and fact.

29.             The trial Court erred in law when it admitted in evidence and/or

relied on the contents of a Judgement and on proceedings that had been quashed and erroneously applied same to lead to a wrongful conclusion of the nature and weight and application of the legal principle of admission in law and its effect.

30.             The trial Court erred in law when it failed to interrogate the

purported content of a caution statement that was reproduced as evidence in a judgement that had been quashed but rather accepted same as factual and truth of its contents.

31.             The trial Court erred in law when without proof it concluded that

the statement in the quashed Judgement was a voluntary statement by 1st Defendant in the absence of any evidence of such nature before the court thereby leading the Court into wrong conclusion

32.             The trial Judge erred in law when it misapplied the case of ADJEI

& ANOR Vrs. ROBERTSON & ANOR [2016] 101 GMJ 160 SC to this case

33.             The trial Court erred in law on the interpretation and application

of the law on certified official documents when it failed to appreciate the legal consequence of quashed processes and proceedings relating to such documents but rather accepted them and dwelled on them heavily to detriment of Defendants

34.             The trial Court erred in law when it placed its own interpretation

without evidence in support, on the contents of EXH B and misled itself into wrong conclusion which has caused a miscarriage of Justice

35.             The trial Court erred grievously in law and fact when in the teeth

of unchallenged and admitted evidence that the composite plan was totally incomplete and flawed, it proceeded to unjustifiably rely on same and thereby resulted in wrong conclusion in law and fact which ultimately led to a miscarriage of justice.

36.             The trial Court erred in law when it declared that 1st Defendant

is tenant of 1st Defendant to Counterclaim when in fact, evidence and law, and from the records, no such evidence of a landlord-tenant relationship by its legal requirements existed or was established or determined.

37.             Further grounds of appeal shall be raised upon the receipt of the

record of appeal.

Reliefs Sought

To set aside the Judgement of the High Court, Bolgatanga dated 30th March 2021, reverse same and enter Judgement in favour of the Defendants/Appellants on their Counterclaim

Objection to Grounds of Appeal:

Error of law without particulars:

Formulation of Grounds should comply with Rule 8 of CI 19 – Gregory v Tandoh IV & Hansen [2010] SCGLR 971, In Re Asamoah (Decd.), Agyeman Manu [2013-2014] 2 SCGLR 909 and Okonti Borle & Anor v Hausbauer [2021] 17 GMJ 321.

The intention of the rule as stated in respect of similar provision under the Supreme Court Rules is in the case of Dahabieh v Turqui & Bros. [2001­2002] SCGLR 498 where it was said that stating the particulars of the error of law would narrow the issues on appeal and shorten the hearing. Both the Court and counsel for Respondent would know the relevant issues, concentrate on that and not waste time on irrelevant matters. Counsel for Respondent knowing the particulars of the error of law would be able to prepare in advance to meet the case of the Appellant.

Unfortunately, in the instant appeal, 1st Defendant’s Counsel did not provide particulars for the errors of law he alleged in the grounds of appeal.

The objection raised by Counsel for the Plaintiff and Defendant to Counterclaim is well founded and this Court would have struck out those grounds of appeal where the 1st Defendant failed to provide particulars of errors of law. However, our careful consideration reveals that the Defendants’ thirty-six grounds are mainly complaints in relation to the evidence in the case and how the trial Judge dealt with it.

In our view, they can either be subsumed under the omnibus ground that the judgment is against the weight of the evidence and dealt with paying attention to issues raised in the numerous grounds as submitted by Counsel for Plaintiff and Defendant to Counterclaim or under the grounds as set out without doing injustice to the Plaintiff and Defendant to Counterclaim especially as their Counsel has adequately responded to the submissions of 1st Defendant’s Counsel. This Court will consider the grounds in the manner set out hereafter.

The current position of the case law is that in dealing with the omnibus ground, related legal issues could also be dealt with. The issues raised by the Defendants include the burden of proof, admission, corroboration, admissibility of evidence and the exclusion of evidence including the expunging of the evidence of the attorney appointed by the 1st Defendant.

It is trite law that an appeal is by way of rehearing, a principle covered by Rule 8 (1) of CI 19 and an appeal based on the omnibus ground places an obligation on this Court to examine the entire record of appeal to determine whether the judgment of the trial Court can be supported by the evidence on record. This is supported by several cases including In Re Bonney (Decd.); Bonney v Bonney [1993-94] 1 GLR 610 at 617, Tuakwa v Bosom [2001­2002] SCGLR 61, Djin v Musah Baako [2007-2008] 1 SCGLR 686, Sarpong v Google Ghana & Another [2017-2018] 2 SCGLR 839 at 843.

The appellant has a duty to also demonstrate from the record that there are lapses in the judgment which if corrected would overturn the judgment in his favour.

From the decisions in Attorney-General v Faroe Atlantic [2005-2006] SCGLR 271, Owusu Domena v Amoah [2015-2016] 1 SCGLR 790 Offei v Asamoah & Anor. [2017-18] 1 SCLRG 417 and Nunoo v Ataglo [2020] GHASC 49 (28 July 2020), the appellate Court in dealing with the omnibus ground is not limited to the evidence but can also deal with any law related to the issues raised by the evidence.

Preliminary Matters –:

1.    Defendants to Counterclaim –

We observed that the Defendants to Counterclaim were brought into the case when the Defendants filed a Statement of Defence and Counterclaim and made claims against them. The Writ of Summons was not amended in line with this change. Appearance was entered for the 1st Defendant to Counterclaim and a Statement of Defence and Counterclaim against the Defendants filed for him.

The 1st Defendant to Counterclaim fully participated in the trial by filing a Witness Statement on which he gave evidence and was cross-examined extensively. With these special facts and based on the decision in Coleman v Tripollen and 4 Others [2019-2020] 1 SCLRG 433, it is our decision that 1stDefendant to Counterclaim is a proper party to this action.

2.    Expunging of the evidence of DW1:

We first deal with the expunging of the evidence of 1st Defendant’s representative. The record indicates that the evidence of 1st Defendant’s representative consisting of the evidence-in-chief and cross-examination was expunged on the grounds that the power of attorney by which he represented the 1st Defendant was not stamped. The lack of stamping made the power of attorney inadmissible. Perhaps 1st Defendant out of respect for the Court formally appointed DW1 as his representative to appear in Court on his behalf and be so considered as such representative by the Court.

The trial Judge was right in his decision that the power of attorney was inadmissible for lack of stamping and this Court affirms that decision.

There are rules governing giving of evidence by a witness. A representative of a party does not require a Power of Attorney to qualify as a witness to give evidence in a case. If by the rules, a person is qualified to give evidence then whether he is appointed an attorney or not he is qualified to give evidence.

The rules for qualification for a person to be a witness are contained in the following sections of the EVIDENCE ACT, 1975 (NRCD 323):

58.    Except as otherwise provided by this Decree, every person is competent to be a witness and no person is disqualified from testifying to any matter.

59.    (1) A person is not qualified to be a witness if he is

incapable of expressing himself so as to be understood, either directly or through interpretation by one who can understand him; or incapable of understanding the duty of a witness to tell the truth.

(2)   A child or a person of unsound mind is competent to be a witness unless he is disqualified by subsection (1) of this section.

60.    (1) A witness may not testify to a matter unless sufficient evidence is introduced to support a finding that he has personal knowledge of the matter.

2.      ) Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.

3.      )A witness may testify to a matter without proof of personal knowledge if no objection is raised by any party.

4.      ) This section is subject to section 112 relating to opinion testimony by expert witnesses.

By these rules, 1st Defendant’s attorney qualified as a witness. His evidence­in-chief per his witness statement found at ROA 152-157 with a power of attorney as an exhibit, and cross-examination found at ROA 431-435 should not have been expunged. This Court hereby sets aside the order of the trial Court expunging the evidence of 1st Defendant’s attorney and restores his evidence contained in the pages of the record of appeal indicated above. Having restored the evidence, the said evidence will form part of the evidence for consideration in resolving this appeal. Adjei Fio v Mate Tesa [2013-2014] 2 SCGLR 1537 at 1545 and Nai v Katamanso Stool & anor [2023] GHASC 62 (14 June 2023). In Adjei Fio v Mate Tesa [supra], Plaintiffs who had given evidence at the trial were subsequently struck out as Plaintiffs. On appeal the Court of Appeal considered their evidence as part of the evidence for the remaining Plaintiff. The question was whether having been struck out as Plaintiffs it was proper to act on their evidence. The answer given by the Court per Gbadegbe JSC was that the evidence given was not illegal but relevant for the purpose of the trial. The basis of the decision was that by the rules of evidence every person is competent to testify in an action.

Because the power of attorney was rightly rejected, we shall refer to the witness as 1st Defendant’s representative.

It should be borne in mind that it was the duty of the trial Court to make primary findings and give reasons for preferring one evidence to the other as well as assess the credibility of the witnesses. See Quaye v Mariamu [1961] 1 GLR 93, In re Aryeetey (decd.); Aryeetey v Okwabi [1987-88] 2 GLR 444 and Benyak Company Ltd v Paytell Ltd and others [2014] GHASC 128 (5 February 2014). This Court in dealing with the grounds of appeal will examine the findings and the supporting reasons of the trial Court to determine whether they can be supported by the evidence on record.

The presumption is that the judgment of the trial Court is right until the appellant demonstrates from the record serious lapses in the judgment which warrants the interference of the appellate Court to so correct the judgment to tilt it in favour of the appellant.

Having set out the basic principles for an appeal, we proceed to consider the grounds of appeal.

GROUNDS OF APPEAL: Analysis:

GROUND 1: The whole Judgement is against the weight of evidence before the Court.

Counsel for Defendant in his submission appreciated the task he had and undertook to discharge it by demonstrating that “the evidence on record is overwhelmingly in favour of the Defendant”. He set out to discharge his obligation by considering the evidence of 1st Defendant’s Attorney which he said was “unshaken” and “his credibility remained undisturbed throughout the trial”. To him, his evidence proved that the Defendant’s family were first settlers at Akunkongo which was part of Kandiga and not Doba. They owned the land and were not caretakers for the Tindana of Doba.

He went on to deal with the evidence of DW2 which he concluded settled the boundary between Doba and Kandiga. Akunkongo fell within Kandiga territory. His final consideration was the evidence of DW3, the Chief of Kandiga. He sealed the fact that a river separated Doba from Kandiga and that Akunkongo belongs to Kandiga. He refuted the claim that there was a place called Akurugu-Dabo. He claimed there was no town known as Akurugu-Dabo which, he explained, meant “someone’s deserted house”.

He continued that the evidence for 1st Defendant clearly established that his ancestors acquired the land in dispute by first settlement through discovery and hunting for wildlife. The land has devolved upon the 1st Defendant. The land on which the Catholic School and the Catholic Church is located forms part of the land acquired by the ancestors of the 1stDefendant.

He submitted that 1st Defendant’s witnesses gave evidence in proof of the counterclaim of 1st Defendant. Their evidence showed that Akunkongo was not in Doba. It is rather in Kandiga. There was no town called Akunkongo Doba. The boundary between Kandiga and Doba was also established. Per DW3, river Anayire divided Kandiga and Doba. Most of the settlers at Akunkongo are Kandigas and Akungongo is one of several Kandiga villages.

According to him, the Defendant’s witnesses adduced overwhelming evidence to prove Defendant’s case but the trial Court did not give the said evidence the requisite attention and came to the wrong conclusions resulting in a miscarriage of justice and the dismissal of Defendant’s counterclaim which ought to have been upheld.

He contended that the trial Court, contrary to the principles of civil trials which required that he who asserts must prove, rather placed the burden of proof on the Defendant instead of the Plaintiff. He therefore dwelt on the weaknesses of the Defendant’s case more than on the strength of the Plaintiff’s case and whether plaintiff had made any case at all.

With the above analysis the Defendant’s Counsel urged this Court to reverse the judgment and enter judgment in its favour.

Counsel for Plaintiff and Defendant to Counterclaim supported the exclusion of the evidence for Defendant’s witness. Having reinstated the said evidence, his submissions are deemed to be overruled or rendered moot. He however, affirmed the conclusion reached by the trial Court in respect of the evidence of the other witnesses of the Defendant that their evidence did not measure up to the standard required for the Defendant to prove his counterclaim. In his affirmation Counsel for the Plaintiff and Defendant to Counterclaim stated that the trial Judge’s decision was not only based on the evidence for the Defendant but was based on a consideration of the evidence adduced by and for Plaintiff and Defendant to Counterclaim which included documentary evidence and recent acts of ownership and possession.

This is a case in which the Plaintiff had a claim, and the Defendant had a counterclaim. The 1st Defendant to Counterclaim had also raised a counterclaim against the Defendant. Plaintiff’s case was tied to that of the 1st Defendant to Counterclaim who was his grantor. This was recognised by the trial Judge who at ROA 609 said “Basically, the first Defendant to Counterclaim sings the same song with the Plaintiff that the Akunkongo lands are owned by Doba, and it was the Doba Tindana who settled the grandfather of Plaintiff as well as the father of first Defendant, several years ago, on parcels of land in the area...” He again said at ROA 625 “...To a large extent, the fate of Plaintiff’s case, hangs on the counterclaim of first Defendant to Counterclaim as Plaintiff traces his family’s root of title to the ancestor of the said Defendant...”

The Plaintiff, Defendant and 1st Defendant to Counterclaim bore the burden of proof on their claim and counterclaims respectively. We are satisfied from the record at ROA 616-620 that the trial Judge paid due attention to the requisite law and cases regarding the burden of proof in such cases. He relied on Sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) which makes proof of a party’s case in civil matters on the balance of probabilities and cases such as Adwubeng v Domfeh [1996-97] SCGLR 660, Jass Co. Ltd. v Apau [2001] SCGLR 265 and Sarkodie v FKA Co. Ltd [2009] SCGLR 65.

The trial Judge was also right in stating that having regard to the nature of the case, the burden of proof in the suit could best be discharged by traditional evidence. Of course, in doing so, it was necessary to pay attention to all the related principles.

In a claim for Declaration of title to land the onus of proof lies on the Plaintiff. See Dokutso Tei Kwabla v Lands Commission & anor [2017-2018] 1 SCGLR 497 at 509. A Counterclaimant who seeks the same relief will equally bear the burden of proof just like a Plaintiff.

The trial Judge at ROA 586-591commenced evaluation of Plaintiff’s case. He did so in the light of contrary evidence adduced by the 1st Defendant and his witnesses especially DW3. The evaluation continued in ROA 592-603 where he dealt with issues relating to the capacity of the Plaintiff to bring the action, Akurugu-Daboo and names of the school and Catholic Church, location of the Catholic Church, role of the Asuriya family in the acquisition of the land for the Catholic Church, and the relationship between Plaintiff’s case and that of Defendant to Counterclaim.

In doing the evaluation of the evidence, the trial Judge’s style and format was one of weaving the cases of the parties together by doing the evaluation in the light of the case of the other parties. This, to us, did not mean that he failed or refused to consider the strength of the Plaintiff’s case as asserted by Counsel for Defendant, but an effort to present a picture of the parties’ case at every stage to see whether any inroad has been made into the claim of Plaintiff by Defendant or the counterclaim of Defendant by the Defendant to Counterclaim and Plaintiff.

The trial Judge’s evaluation of the evidence proceeded from ROA 603-613 and it included the case of 1st Defendant to Counterclaim who had also counterclaimed against Defendant and also bore a burden of proof to establish his counterclaim. In a sense, the trial Judge considered that the case of 1st Defendant to Counterclaim and that of Plaintiff were tied together as Plaintiff relies on the latter. At ROA 635-642, the trial Judge’s evaluation of the evidence of the parties and their witnesses continued.

From the pleadings of Plaintiff, his family acquired the land in dispute from the Tindana of Doba. The trial judge considered 1st Defendant to the Counterclaim as the grantor of the Plaintiff and considered their cases as tied together. He therefore evaluated the evidence of Plaintiff and the 1st Defendant to Counterclaim as well as their witnesses as being on the same side. Both Plaintiff and Defendant to Counterclaim had given description of the boundaries of the land in question in the pleadings and their witness statements. See Paragraph 5 of the Amended Statement of Claim (ROA 52), Paragraphs 27 and 36 of the Reply to Amended Statement of Defence and Defence to Counterclaim (ROA 158-167), Paragraphs 19, 20, 24 and 25 of the Amended Statement of Defence of 1st Defendant to Counterclaim (ROA 168­177), Paragraphs 2 and 11of Witness Statement of Plaintiff (ROA 83 & 86) and Paragraphs 7 and 9 of the Witness Statement of Tindana Abokootum Akasuma Apungu, 1st Defendant to Counterclaim (ROA 192-208). The description covered the lands claimed by Plaintiff and the land, according to them, granted to the Defendant.

At ROA 587-597, 600-606, 627-635, the trial Judge evaluated the evidence for 1st Defendant and his witnesses.

What is the nature of the evidence of the witnesses and how was is it assessed by the trial judge? Did the trial judge assess it adequately?

What is absent from the submissions of Defendant in dealing with Ground 1 is that there was no comparative analysis of the evidence for the Plaintiff and 1st Defendant to Counterclaim to show how the evidence for the Defendant proves a better title to Akunkongo than that of the Plaintiff and 1stDefendant to Counterclaim. As indicated by Counsel for Plaintiff and 1st Defendant to Counterclaim, the trial Judge had evaluated the evidence for the parties and concluded that the evidence for the Defendant fell below the standard of proof and did not discharge the burden of proof on Defendant.

We agree with the conclusion of the trial judge. First, the evidence of the 1st Defendant’s Attorney which we reinstated herein does not say much about how the Defendant’s family became first settlers of the land and the boundaries of the land they came to occupy. At pages 152-156, his witness statement does not give any proper description of any land area they came to occupy and the boundaries of the said land. In Paragraph 12 at page 153, he only says, as part of the paragraph, that “Our lands are naturally demarcated from Doba lands because the Doba people live across the Anayire river and all the lands including this one which is also on our side of the river on the Kandiga side belong to the Kandiga people who acquire it by reducing the virgin land to farming.”

At ROA 627-635, the trial judge evaluated the evidence of the other witnesses for the 1st Defendant and stated that they “could not lead convincing evidence to support his claim that his ancestors founded the Akunkongo lands by first settlement.” This Court has carefully considered the trial Judge’s assessment of the evidence and find it to be accurate. We do not find any basis to disturb his findings and conclusions.

In examining the evidence, we are guided by legal principles and case law including:

1.   Adjeibi-Kojo v Bonsie [1957] 3 WALR 257, PC in which Lord Denning said: - “The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognized that, in the course of transmission from generation to generation, mistakes may occur without dishonest motives whatsoever ... The most satisfactory method of testing traditional history is by examining it in the light of such more recent facts as can be established by evidence in order to establish which of two conflicting statements of tradition is more probably correct.”

2.   Hilodjie v George [2005-2006] SCGLR 974 (Holding 1)– “...Therefore, findings and decisions of courts of competent jurisdiction, may appropriately qualify as evidence of facts in living memory. But evidently in land litigation, proven uninterrupted and unchallenged acts of possession, in the absence of some cogent evidence on the record to the contrary, as for example, an unreserved acceptance of crucial parts of the other side’s oral history, cannot be ignored or denied the deserved weight, given that, in the first place, by clear provisions of Section 48 of Evidence Decree, 1975 (NRCD 323), such acts raise a presumption of ownership.”

3.   In re Taahene & Asaago Stools; Kumanin II v Anin [1998-99] SCGLR 399 at 406 – Acquah JSC (as he then was) stated that “In assessing traditional evidence, the coherence of a party’s version or his demeanor should not be the sole criteria for its preference over the other version; what is important ... a very cogent reason to the contrary.”, Adwubeng v Domfeh [1996-97] SCGLR 660, Dodoo v Mensah [2020] GHASC 80 (5 February 2020), Asante & anor v Amponsah & anor [2022] GHASC 2 (20 January 2022) and Boasiako v Adjei Panin [2023] GHASC 3 (18 January 2023),.

The Defendant set out his case in his pleading and bases his evidence on it. He also pleaded that his ancestors were first settlers of the land and had been on it for over 100 years. He pleaded acts of ownership and possession including cultivation of the land. These averments were made in the face of averments made by the Plaintiff claiming the same Akunkongo land. The focus of his evidence and that of his witnesses was to prove how they became first settlers and how they had remained in possession of the land to date by way of concrete acts of possession and ownership. The evidence does not demonstrate concrete acts of possession and ownership.

Consideration of the Statement of 1stDefendant in Judgment in Criminal Case Admitting Akunkongo to be Part of Doba:

This will be considered in the light of some provisions under the Evidence Act, 1975 (Act 323).

Section 26 – Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally or deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest and such relying person or his successors in interest.

75.   In examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the trial, it is not necessary to disclose to him any information concerning the statement or other conduct.

Section 121 of NRCD 323 makes the statement admissible as an exception to the hearsay rule. The Section provides that:

Evidence of a hearsay statement in not made inadmissible by section 117 if it consists of testimony given by the declarant as a witness in an action or in a deposition taken according to law for use in an action, and when the testimony was given or the deposition was taken the declarant was examined by a party with interests and motives identical with, or similar to, the party against whom the evidence is offered in the present action.

In his book, The Ghana Law of Evidence, J. Ofori Boateng (J. Ofori Boateng JSC) discussed Section 26 of (NRCD 323) and indicated the three ways in which this estoppel by conduct is treated namely (1) conduct by agreement, (2) representation or (3) negligence. The Defendant’s statement in question made to the police falls under representation. This was a matter which involved the Tindana of Doba and the statement was made declaring some facts to be used to resolve the matter. Defendant is bound by the statement notwithstanding the subsequent quashing of the proceedings. See Quagraine v Adam [1981] GLR 599 and Egyin v Aye [1962] 2 GLR 187. Defendant did not deny that he made that statement. It is a statement of fact not quashed by the setting aside of the judgment of the trial Court. In that statement he acknowledged the Tindana of Doba as his landlord. He would not be allowed to free himself from that statement. It binds him and it is very relevant to the determination of the issues in this suit.

The document was duly certified in terms of Section 148 of the Evidence Act, 1975 (Act 323)

Certification of judgment and old records from the Archives:

148.     Authentication or identification of a writing may be by evidence that—

(a) the writing is a public record, report, statement or data compilation and is from an office of a public entity in Ghana; or

(b) the writing is one authorised by law to be recorded or filed and has in fact been recorded or filed in an office of a public entity in Ghana and is from an office of a public entity in Ghana where items of that nature are regularly kept.

It was duly certified and properly admitted into evidence,

In Odupong v Republic [1992-93] GBR 1038 at 1042, this Court per Brobbey JA (as he then was) stated that:

“The law is now well settled that a person whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn, is not worthy of credit and his evidence cannot be regarded as being of any probative value in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradiction.”

What is in issue is a statement made by Defendant in earlier proceedings. The statement, sworn or unsworn, stands whether the proceedings are quashed or not. The law as stated above is applicable to the Defendant’s statement referred to by the trial Judge. The combined effect of all the laws set out above is that the trial Judge did not err in relying on the statement.

Assessing credibility of a witness and in the instant case the claim of animosity exhibited by DW3 towards Plaintiff and his family, the principles for doing so are set out under the Evidence Act, 1975 (NRCD 323), Section 80:

Evidence Act, 1975 (Act 323)

80.    (1) Except as otherwise provided by this Act, the Court or jury may, in determining the credibility of a witness, consider any matter that is relevant to prove or disprove the truthfulness of his testimony at the trial.

2.      ) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to the following: -

(a)the demeanour of the witness;

(b) the substance of the testimony;

(c) the existence or non-existence of any fact testified to by the witness;

(d) the capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies;

(e)   the existence or non-existence of bias, interest or other motive;

(f)   the character of the witness as to traits of honesty or truthfulness or their opposites;

(g)   a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial;

(h)   the statement of the witness admitting untruthfulness or asserting truthfulness.

See also the case of Tanko v Karami [1989-90] 2 GLR 189 CA

Going by these principles, the trial Judge before whom DW3 gave the evidence was entitled to come to the view he expressed on the state of the relationship between the witness and the Andema family. The witness painted a picture that the relationship between the Andema family and Amogre family was not cordial. He stated that at the time Plaintiff’s father was allegedly banished and being settled on some land, someone warned that the Andemas would create a problem, and this suit had confirmed it. To the witness, it seemed a prophecy or prediction had come true. These factors raised issues about the honesty of and lack of bias in DW3 as regards his evidence. A Judge’s decision to believe or disbelieve the evidence of a witness is not dependent on his status in life, for example, that DW3 was a traditional ruler. He will be accorded all the respect and necessary courtesies, but his evidence will be subjected to the same test as the evidence of all witnesses.

We are not convinced that the 1st Defendant has demonstrated any lapse in the judgment that should result in overturning it in his favour. Consequently, this ground of appeal fails, and it is dismissed.

Ground 2. - The learned trial Judge erred in law when unchallenged and or admitted facts on record proved that all the owners of adjoining lands to the land in dispute were Kandiga natives who obtained their customary grants from the Kandiga Tindana and yet he totally ignored such overwhelming admissions and evidence

It is submitted by Counsel for the Defendant that Plaintiff and Defendant to Counterclaim admitted that adjoining boundary owners to the land in dispute are all natives of Kandiga (ROA 383) and this should have compelled the trial Judge to conclude that the land in dispute was part of Kandiga land. Further, the trial Judge erred in concluding that DW3 aided the Plaintiff’s case by saying Defendant inherited the land in dispute. Defendant and his family were in undisturbed possession of the land coupled with recent acts of ownership and possession.

According to him, the trial Judge focused on the weakness in the Defendant’s case to determine the matter instead of the strength of Plaintiff’s case.

Another issue raised by Counsel for the Defendant was that the position of the trial Judge that DW3 exhibited bias and malice towards Plaintiff could not be supported by the evidence on record and yet this had a great influence on the trial Judge in determining the matter in favour of Plaintiff.

These assertions were countered by Counsel for Plaintiff and Defendant to Counterclaim who asserted that the trial Judge fairly and properly assessed the evidence and came to the right conclusions based on appropriate legal principles. DW3 contradicted the evidence of DW2 and 1st Defendant’s representative on whether Akagile ever settled at Akunkongo. DW3 again admitted that natives other than Kandiga natives settled at Akunkongo thereby defeating the assertion of Counsel for Defendant that DW3’s evidence on the matter was unchallenged and therefore the land belonged to the Tindana of Kandiga.

On the burial of Kandiga natives in Kandiga instead of Akunkongo, it was submitted that the return of deceased bodies of Kandiga natives to Kandiga for burial instead of Akunkongo put the claim that Akunkongo was Kandiga land in doubt.

The evidence on record is that Akunkongo has several settlors from different areas including Kandiga. The mere presence of natives of Kandiga around the land in dispute cannot lead to the conclusion that the land is part of Kandiga. The question still remains who was the grantor of these Kandiga natives who are adjoining boundary owners of the land in dispute? And of course, the owner of the whole area where the land in dispute is situated will be a relevant factor in determining the ownership of the land in dispute. This is the exercise undertaken by the trial Judge who looked at several factors in coming to his decision on the matter.

It is not in doubt that in Akunkongo there are settlers from various areas including Kandiga. The fact that natives of a particular area or town are concentrated in Akunkongo does not make them owners of Akunkongo. Plaintiff admits that he and his family are from Kandiga and his father had farmlands in Akunkongo which is part of Doba. Owners of surrounding lands come from Kandiga to farm on the land. He did not know the grantor of these lands but knows that the “1st Defendant leads us to Doba Tindana anytime we have to do any sacrifices concerning land.” (ROA 383). Answers to single questions put to Plaintiff (ROA 383) and Defendant to Counterclaim (ROA 403) do not amount to admission when the general evidence of the witnesses or parties does not confirm that adjoining boundary owners got the land from Kandiga. At ROA 406-407, during cross­examination of 1st Defendant to Counterclaim by Counsel for 1st Defendant the following ensued:

Q. You agree that the Kandigas who farm on Akunkongo land also rear cattle and other animals there?

A. I am aware of that. My father settled there, so I am aware of what is happening.

Q. And that they have lived and reared animals there for over 70 years, even before you were born?

A. My ancestors settled them. I am not aware of what you have said.

Kandigas could be owners of lands adjoining the land in dispute but Defendant to Counterclaim says his ancestors settled them there. This contradicts the assertion of admission on his part that the Akunkongo land is for Kandiga. In Paragraph 14 of his Witness Statement at ROA 195-196, he gave an inexhaustive list of some of the persons he and his predecessors settled on the land in their capacity as Tindana of Doba. He added the rituals performed before the people settle on the land. The cross-examination did not discredit this evidence.

Further cross-examination of Plaintiff by Counsel for 1st Defendant especially at ROA 383 enabled Plaintiff to reinforce his position that the land

in dispute was in Doba and not Kandiga. He stressed that when he was District Chief Executive, Kandiga was not under his jurisdiction, but Akunkongo was under his jurisdiction. Again, he paid allegiance to the Doba Chief for where he lives and paid allegiance to the Kandiga Chief because he goes to Kandiga to perform funerals. He did not confirm that those adjoining boundary owners of the land surrounding the land in dispute obtained their grant from the Tindana of Kandiga. Cogent and credible evidence should have been adduced by or for the 1st Defendant to show that the said boundary owners obtained their grants from the Tindana of Kandiga.

The pleadings and witness statement of the Plaintiff and 1st Defendant to Counterclaim had stated clearly that the area belonged to Doba and settled by natives from Kandiga and other places upon grants from the Tindana of Doba. This piece of evidence withstood cross-examination and Defendant had to produce stronger evidence to dislodge it. He failed to do so.

This ground of appeal fails.

Ground 3. - The learned Judge erred in law when he concluded that DW3 adduced evidence to confirm Plaintiff's case that his father 'inherited' the disputed land, as, among other things, that evidence, was inferred and interpreted out of context thereby leading the court to a wrong conclusion in law and fact

In respect of this Ground, Counsel for Defendant believes that a stronger case was made for the 1st Defendant by DW3 who claimed that Akunkongo was within his jurisdiction. DW3, to Counsel, did not adduce any evidence which in any way confirmed Plaintiff’s case that his father inherited the land at Akunkongo.

The simple response of Counsel for Plaintiff and 1st Defendant to Counterclaim which formed the basis of the trial Judge’s comment on the evidence is that DW3 admitted that Plaintiff’s father farmed in Akunkongo whilst living in Kandiga long before he finally left Kandiga and settled at Akunkongo. This is the interaction between DW3 and Plaintiff’s Counsel during cross-examination on 9th December, 2019 at ROA 436:

Q. Peter Andema hails from the royal family of Kandiga?

A. That is so; that is why his son contested the skin with me.

Q. And he moved from Kandiga to settle at Akunkongo?

A. He left Chief’s palace and moved to Akunkongo which is still a part of Kandiga.

Q. He used to farm at Akunkongo whilst he was at Kandiga?

A. That is so. His fathers used to farm at Akunkongo so he also continued to farm there.

Q. Before he finally moved from Kandiga to settle at Akunkongo, he and his father used to farm at Akunkongo?

A. That is so.

From the above interaction, the opinion expressed by the trial Judge at ROA 634 Paragraph 2 is supportable and cannot be disturbed. His opinion which we agree with is that the land the Andemas were farming on at Akunkongo whilst living at Kandiga was the land the Andemas acquired from the Tindana of Doba by Plaintiff’s grandfather. It was not acquired from the Tindana of Kandiga. The appeal fails on this ground.

Ground 4. - The learned trial Judge erred grievously when he concluded that cross examination showed that Plaintiff 'left' Kandiga on his own accord to settle at Akunkongo and thereby led to a wrong conclusion

Ground 5. - The learned trial Judge erred grievously when he agreed and concluded that there was evidence that the Andema Family ( Plaintiff's Family) was at loggerheads with Akagile Family, and therefore unlikely that family would have pleaded with anyone to release land for another family It was at variance with, when in fact there was no such evidence on record, a fundamental error in interpretation or assessment of evidence which led the court to a wrong conclusion

Ground 6. - The learned trial Judge's deduction and assumption concerning the supposed animosity between Plaintiff's family and DW3 were overly relied upon by him to the result that he erroneously ignored the relevant evidence of DW3 and this among others, led to miscarriage of Justice against Defendants/Appellants

These three grounds arise out of the evidence of DW3 and a bit from the evidence of 1st Defendant’s representative. In evaluating the evidence based on the principle of balance of probabilities, the trial Judge was obliged to weigh whether the assertion that Plaintiff’s father was banished from Kandiga was probable. In doing this he had to examine the terms of the banishment, as per DW3’s evidence, that the Plaintiff’s father should go out of the sight of the Chief. Paragraphs 11, 12, 13, 14, 15, 16 and 17 of DW3’s Witness Statement at ROA 146 talks about the banishment of Plaintiff’s father by DW3’s father. Paragraphs 11, 12, 13 and 14 were in strong terms. Under cross-examination by Counsel for Plaintiff, DW3 appeared to tone down on the strong language claiming the Plaintiff’s father was only banished from the palace and not the village.

Plaintiff under cross-examination denied that his father was banished. The trial Judge’s duty was to determine which of the two conflicting pieces of evidence given by DW3 and Plaintiff was credible. His conclusion was that he left Kandiga by himself and was not banished. He did not find the evidence of DW3 convincing. This Court cannot fault the trial Judge who heard and saw DW3 in the witness box. He also at pains to understand how it would be difficult for Plaintiff’s father who farmed in Akunkongo to be banished and not find a place to relocate.

It was a reasonable inference from the evidence on record especially that of DW3 and 1st Defendant’s representative that the Andema Family and the Akagile family were at logger heads. There was some animosity between Plaintiff’s family and DW3. The answers of DW3 under cross-examination at ROA 444 where he advised the Andemas not to attend funerals because of he DW3 and also because of the Akagile family due to some problems between them make the inference of the trial Judge reasonable.

The submissions of Counsel for 1stDefendant did not demonstrate that there was a fundamental error in interpretation or assessment of the evidence or that the trial Judge overly relied on the view that there was animosity between Andemas and DW3 to the detriment of a proper evaluation of DW3’s evidence which resulted in a miscarriage of justice.

The grounds are without merit and same are dismissed.

Ground 7. - The learned trial Judge erred grossly in law when he relied heavily on evidence that had been rejected, discredited and quashed by the High Court and by law, concerning a purported confession statement together with its processes, which had been quashed and expunged as 'evidence' or 'records' by the same Court, thereby founding parts of his Judgement on non-existent records.

As indicated above, the quashing of the judgement in which the statement to the police is contained does not dissolve the statement and its contents. The statement and its contents remain valid. The trial Judge did not err in relying on it. This ground fails.

Ground 8. - The trial Court failed woefully to appreciate the nature and contents of the Defendants claim and evidence and thereby led to a wrong conclusion and interpretation of evidence led in Proof of same.

Ground 9. - The trial Court erred grievously in law when it ignored the fundamental and damaging inconsistencies in the evidence of the Plaintiff, his witnesses and the 1st Defendant to Counterclaim which went to the root of the case of Plaintiff and 1stDefendant to Counterclaim but rather justified same thereby leading to a miscarriage of Justice

These two grounds are dealt with together. At ROA 614, the trial Judge agreed with 1st Defendant’s Counsel that the core issue “in this action is the ownership of Akunkongo lands, a determination of which could resolve most of the other issues in this action.” He continued with a review of the respective cases of the three (3) parties and at ROA 622 stated that “The real battle of acquisition and ownership of Akunkongo lands is between the first Defendant and first Defendant to Counterclaim. The Plaintiff’s case supports the first Defendant to Counterclaim as he ...” He went on further at ROA 625 saying “In the instant case, the court is faced with conflicting accounts of how the lands in Akunkongo were acquired, principally between the 1st Defendant and the 1st Defendant to Counterclaim. The interest of Plaintiff, on the other hand, hinges on the claim of the first Defendant to Counterclaim as he asserts that his grandfather was granted the land he now claims, as part of a parcel of land, by a former Tindana of Doba, and, an ancestor of the first Defendant to Counterclaim.”

He concluded his initial assessment of the case by saying at ROA 625 that “Both first Defendant, and the first Defendant to counterclaim, asserted that it was their respective ancestors who founded the lands by first settlement.”

The trial Judge gave this initial assessment and overview before proceeding to do a detailed analysis and evaluation of the case.

Having carefully perused the record of appeal, we are convinced that the trial Judge properly appreciated the nature and content of each party’s case and evaluated them accordingly.

From the pleadings and witness statements, we observe that Plaintiff and 1st Defendant to Counterclaim gave descriptions of the land they claim as well as the land they allege to belong to 1st Defendant. 1st Defendant, however, did not give any proper description of the land he claims to have been founded by first settlement by his ancestors. Save for the averment that the land he claimed had natural boundaries, no proper description was given even by 1st Defendant’s representative.

A host of decided cases on the matter state that in a claim for declaration of title to land it is important that the claimant provides a description of the land. 1st Defendant in this case had a counterclaim and the burden of proof in respect of the counterclaim was on him. See Bissah v Gyampoh [1964] GLR 81, Anane v Donkor [1965] GLR 188, Bedu v Agbi [1972] 2 GLR 238, Akoto v Kavege [1984-86] 2 GLR 365, Nyikplokpor v Agbodotor [1987-88] 1 GLR 171, Agyei Osae v Adjeifio [2007-2008] 1 SCGLR 499 and Jass Co. Ltd v Appau [2009] SCGLR 265.

The trial Judge properly appreciated the case of each party and evaluated it in accordance with well settled legal principles. 1st Defendant’s case, per the record from ROA 627-635, was well evaluated and we have no reason to interfere with it. There is no indication that he omitted to consider any party’s case either wholly or partially or that he deviated from it. As stated in the case of Dalex Finance and Leasing Company Ltd v Amanor [2021] GHASC 153 (14 April 2021), it is the relevant issue that a court is bound to consider and not every issue.

The totality of the evidence was weighed and evaluated by the trial Judge. Evidence for the Plaintiff was that the land he claimed was granted to the grandfather by the Tindana of Doba, and his grandfather, his father, his brothers and himself have farmed on the land. They started whilst living in Kandiga and continued to do so from 1957 when they migrated from Kandiga to Akunkongo. 1st Defendant’s family had respected their occupation and possession of the land until 1st Defendant recently started encroaching upon the land. Though 1st Defendant’s family had land in the Akunkongo, that land shared boundary with Plaintiff’s family land but not Plaintiff’s land. In terms of recent acts, they had built a structure on the land which at the time of the trial was about 15 years. This evidence was supported by 1st Defendant to Counterclaim. They survey report confirmed it.

This was the evidence 1st Defendant had to counter and surmount but was unable to do so. 1st Defendant sought to contain Plaintiff by restricting him to land given to Plaintiff’s father when he was allegedly banished from Kandiga, a small piece of land fit for building a residential premises and not a six-acre land. Whereas 1st Defendant claimed the land claimed by Plaintiff, the latter claimed that 1st Defendant’s land shared boundary with their land to the East. This was confirmed by witnesses. Apart from Plaintiff denying 1st Defendant’s claim to his family land, 1st Defendant could not produce any convincing and cogent evidence to prove it, especially when DW3 had admitted that Plaintiff’s family farmed in Akunkongo long before Plaintiff’s father was allegedly banished from Kandiga.

What counsel refers to as inconsistencies in his submissions are no material inconsistencies having regard to the totality of the evidence or inconsistencies the sum of whose effect would be to defeat the Plaintiff’s case. See Effisah v Ansah [2005-2006] SCGLR 943.

These two grounds also fail as being without merit.

Ground 10. - The trial Court erred grievously in its interpretation of the answers offered by DW 1 to specific questions under cross examination generally and on issues of the grant of the disputed land on the land which the Catholic Church built the school and thereby led himself into wrong conclusion which caused a miscarriage of justice

How true is this? From ROA 595-597, the trial Judge assessed the evidence of DW1 and concluded, which we affirm, that he did not have sufficient knowledge about the matters he spoke on. He could not rely on his evidence. He admitted hearing that the land for the Catholic Church was given by the Asuriya family and also hearing that it was some three named persons including Plaintiff who approached the Asuriya family for the land. (ROA 424). This aligned with the evidence for Plaintiff.

The trial Judge also at ROA 602-603 considered again the evidence of DW1 as well as that of the first witness to 1st Defendant to Counterclaim called Edward Binini Ajoba and discounted the evidence of both witnesses.

We find no fault with the trial Judge’s evaluation of DW1’s evidence as alleged in the ground and dismiss same as unmeritorious.

Ground 11. - The learned Court/Judge erred grievously in law in his Interpretation and application of the Stamp Duty Act and Power of Attorney and their consequences upon the Power of Attorney given by the 1st Defendant to his witness TO GIVE EVIDENCE in the suit which misinterpretation and wrong application led erroneously to the expunging of the facts and traditional evidence of DW and ultimately to gross miscarriage of Justice

Already dealt with as a preliminary matter supra.

Ground 12. - The learned trial Court/Judge erred in law when he equated the answers of DW 1 to the status of legal admission in law which also led the Court to a wrong conclusion on his evidence

Did the answers of DW1 amount to legal admissions? Did trial Judge do what is alleged in the ground?

Ground 13. - The learned trial Court erred in law when it failed woefully to observe the most relevant times of the grant of the land in dispute to the Catholic Church (2nd Defendant to counterclaim) which conflicted/contrasted in material particular with the evidence of the alleged grantor of Plaintiff thereby leading itself to wrong conclusion on law and fact

Ground 14. - The learned trial Court erred grievously in law when it failed to appreciate and acknowledge which Doba Tindana was alleged to have granted the piece of land to the Catholic Church and at what time. This led the Court to a wrong conclusion of law and fact

Ground 15. - The learned Justice of the trial Court also erred in law and facts when, in the glaring face of specific date mentioned by witness of 1st Defendant to Counterclaim of when they purportedly received the consent of 1st Defendant to Counterclaim, the latter himself was not yet in that position by his own admission, the court failed to appreciate the nature and context of that evidence

Ground 18. - The learned trial Judge erred grievously in law when he agreed and therefore received a total factual admission by 1stDefendant to counterclaim of the date of his appointment as Tindana (a materially relevant piece of evidence) as a 'slip' when there was no ground or reason or evidence to suggest same as such thereby misleading the

Court into believing his status at the material time of the purported grant of the land viz-a-viz his evidence of his age at time of the grant

Ground 19. - The learned trial Judge/Court erred in law in the interpretation and application of the cases of IRENE GORLEKU Vrs. JUSTICE POBEE & ANOR [2012] 42 GMJ 53 and R.T BRISCOE (Ghana) LTD Vrs. BOATENG [1968] GLR 9 to the material and relevant evidence of 1st Defendant to Counterclaim on his Tindana status.

Ground 22. - The trial Court also failed to apply the law on admission in pleadings when in paragraph 8 of the Statement of Defence of 1st Defendant to Counterclaim, the latter admitted that the land on which the Catholic Church was built BELONGED to Asuriya Family, which was an unambiguous corroboration of evidence of Defendants and their witness

The submission of Counsel for 1st Defendant is that based on the evidence for Plaintiff and 1st Defendant to Counterclaim, the latter was either not appointed as Tindana or was about six (6) years old when the grant was made for the Catholic Church. 1st Defendant to Counterclaim could not therefore give consent to the grant. This amounted to a material breach which defeated the assertion that the grant was made.

According to him, the trial Judge’s position that there was no material breach, but a slip was untenable. He wrongly applied the decisions in Gorleku v Pobee [2012] 42 GMJ 53 and R. T. Briscoe v Boateng [1968] GLR 9 which cases decided that irrelevant discrepancies should not be used to discredit evidence. To Counsel, the discrepancies in the instant case were material and relevant. It weakened the evidence of 1st Defendant to the Counterclaim and made it unreliable. It enured to the benefit of Defendant and relieved him of any obligation to produce better or superior evidence on the matter.

Countering the submission, Counsel for Plaintiff and 1st Defendant to Counterclaim stated that there were other pieces of evidence which supported the making of the grant to the church and the pieces of evidence were reconcilable. There was no material discrepancy which defeated the grant. He concluded that the submissions of Counsel for 1st Defendant were not consistent with the record of appeal.

What is the whole evidence on the grant? Plaintiff claimed that he was one of a delegation of three from the Catholic Church which approached the Asuriya family for the land. The said family agreed and asked the delegation to secure consent from the Tindana of Doba. They did this subsequently. The land was developed by the Church.

Under cross-examination the date of appointment of the Tindana of Doba, 1st Defendant to Counterclaim obviously did not properly fit into the timing for the transaction.

The evidence for the 1st Defendant, on the other hand, was that his family granted the land.

From the writ and the pleadings, it was 1st Defendant who claimed the land on which 2nd and 3rd Defendants to Counterclaim (The Roman Catholic Mission and The Ghana Education Service) had the church and school respectively in Paragraphs 2B and 31a of the Amended Statement of Defence of Defendants and Counterclaim Pursuant to Order of the Court Dated 25th July, 2016 at ROA 110-114. The said Paragraph 2B and 31a aver that:

2B - 1stDefendant in those capacities claim the land on which the 2nd and 3rd Defendants to Counterclaim have trespassed as their family land and state categorically that the 2nd and 3rd Defendants to Counterclaim are trespassers on about 15 acres of 1st Defendant’s family land.

31a – Wherefore Defendants repeat their entire Statement of Defence and Counterclaim against the Plaintiff and the Defendants to counterclaim jointly and/or severally as follows:

a. A declaration of title to all that piece and parcel of land described in the Defendant/Counterclaimants’ Amended Statement of Defence and more.

Per his Amended Statement of Defence of 1st Defendant and Counterclaim (ROA 168-177), at Paragraph 2, 1st Defendant to Counterclaim denied Paragraph 2B of the 1st Defendant’s Statement of Defence and Counterclaim. He then counterclaimed at Paragraph 49e for a declaration that the Catholic Church and the Akurugu – Daboo Local Basic School are not built on land granted to 1st Defendant/Counterclaimant’s ancestors by

Tindana Abokootum Akasuma Apungu’s ancestor, A-uka, and the name of the church and school should not be changed to reflect 1st Defendant/Counterclaimant’s family name.

The trial Judge had to determine the issue on a balance of probabilities. He preferred the evidence for 1st Defendant to Counterclaim to that for 1st Defendant in resolving the issue. To him, the issue about the date the Tindana of Doba was appointed was a slip. We disagree that it was a mere slip.

Based on the pleadings, it was 1st Defendant who claimed the land on which the church and school were located as his family land. He therefore bore the burden of proof even though the 1st Defendant to Counterclaim counterclaimed in the negative that the church and school are not on land given to 1st Defendant’s family by his (1st Defendant to Counterclaim) ancestors. The trial Judge did not believe the evidence produced by 1st Defendant on the issue. However, looking at the evidence on the issue, the evidence for Plaintiff involving the Catechist, Plaintiff and another, was more probable than that of the evidence for 1st Defendant which was not credible. The claim that an uncle of the 1st Defendant released land to the Catholic Church for the school and church was weakened when 1st Defendant’s chief witness on it DW1 was cross-examined, and he stated that he heard the Asuriya family gave the land upon being approached by a 3-member delegation of the Church including Plaintiff. (See cross-examination at ROA 424 and evaluation by trial Judge at ROA 595-603).

We agree that 1st Defendant did not produce any credible evidence to discharge the burden on him to prove the assertion that his uncle released the land for the school and church. The evidence for the 1st Defendant to Counterclaim dented 1st Defendant’s evidence to his detriment. On the evidence for the 1stDefendant to Counterclaim, we believe that there was a discrepancy which was material but the basic evidence that the land was granted by the Asuriya family when it was approached by the delegation of the Church remained intact and credible. The consent is detachable from the release by the Asuriya family. From the posture of the Tindana of Doba, the 1st Defendant to Counterclaim, he is not against the release of the land to the Church and it does not detract from what the Asuriya family had done. 1st Defendant to Counterclaim had already indicated in his pleading which

was not challenged that his ancestor gave the land to the Asuriya family as indicated below. The land was thus Doba land.

The trial Judge took the view that the discrepancy was not material. It was within that context that he applied the decisions in Gorleku v Pobee (supra) and R. T. Briscoe v Boateng (supra). In that context, the application was correct. However, the decisions do not apply to material discrepancy. Our conclusion above that 1st Defendant failed to discharge the burden of proof on him and that, the assertion that the Asuriya family released the land to the Church sufficiently settles the issue.

Did 1st Defendant to Counterclaim simply admit that the land on which the Catholic Church was built belonged to the Asuriya family? At ROA 169, Paragraph 8 of 1st Defendant to Counterclaim Statement of Defence reads as follows:

1st Defendant to Counterclaim states that the land upon which the Catholic Church is built belongs to the Asuriya family and that the said Asuriya family itself was settled by the Tindana of Doba called Afanya Apungu on Doba lands. (Emphasis ours).

Does this averment constitute admission? Our simple answer is NO.

The grounds fail.

Ground 16. - The learned trial Court erred in law and fact in the standards and principles and application of traditional history and evidence to the respective traditional evidence of the parties thereby erroneously placing undue weight unsupported and unsubstantiated on the evidence of the 1st Defendant to Counterclaim and Plaintiff to the detriment of the Defendants' case

Were the traditional evidence principles, properly applied? We at this point refer to the following sections of NRCD 323:

Section 11 (4) – In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

Section 12 (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

Section 12 (2) – “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.

We refer to the above-quoted sections of NRCD 323 because Counsel for 1st Defendant’s submissions seem to give the impression that whatever his client and his witnesses said passed the test for discharging the burden of proof or that the quality of the evidence met the threshold set by these sections.

An essential element in discharging the burden of proof or producing evidence is that it should produce a certainty of belief in the mind of the tribunal or court that will convince it of the existence or non-existence of the fact in question.

Plaintiff’s claim is based on acquisition of the land by his grandfather from the Tindana of Doba over 70 years ago which has been farmed to date with a structure developed on it. Adjoining boundary owners were named. Defendant to Counterclaim similarly described the whole area over which he was Tindana and the part that had another Tindana of Doba. He supported the case of Plaintiff. Significantly, he added that 1st Defendant’s family could not have acquired the land by first settlement because they were already there as settlers.

1st Defendant’s own witness DW3 admitted that even before Plaintiff’s father left Kandiga to settle at Akunkongo, he was farming at Akunkongo. This was the evidence accepted by the trial Judge on the balance of probabilities as against 1st Defendant’s claim that his ancestors acquired the land by first settlement and through hunting of wildlife. This the trial Judge, after exhaustive analysis, concluded that it did not meet the required standard. Our examination brings us to the conclusion that his decision is supported by the evidence on record. He was not convinced and so are we as a first appellate court.

There was no error in law and fact in the standards and principles and application of traditional history and evidence to the respective evidence of the parties. In the case of Owusu and another v Anane and others [1994­95 GBR 716, the Supreme Court per Hayfron-Benjamin JSC held in Holding 5 thus:

In order to test the veracity of conflicting traditional histories by reference to recent acts the trier of fact must examine the rival traditional histories. If in the end the trier of fact preferred one traditional history to the other there should be no recourse to recent acts. It was only when the trier of fact encountered difficulty over which history to believe that it must have recourse to recent acts, occurrences or incidents which corroborated the one or other history. Adjeibi Kojo v Bonsie, (1957) 3 WALR 257 referred to.

The traditional history itself must be credible. If not, there is no need to consider recent acts. The ground of appeal is unmeritorious and is dismissed.

Ground 17. - The learned trial Court failed woefully to properly apply the time honoured and binding evidential principle of He Who Alleges Must Prove (among others) which resulted in the Court unjustifiably and heavily and unduly relying on evidence repeated on oath only by the Plaintiff and 1st Defendant to Counterclaim but which was not proved by the standards required by law

How was the evidential rule applied? As previously indicated herein, Plaintiff’s pleading and evidence were that his grandfather acquired the land he claimed from the Tindana of Doba about 70 years ago. He described the land and the adjoining boundary owners. Save for the challenge to the assertion that the Andema family acquired the land from the Tindana of Doba, there was no real challenge to those who were the adjoining boundary owners. From the record, the only real challenge was that the adjoining boundary owners were natives of Kandiga.

Plaintiff’s grantor, Defendant to Counterclaim supported his case. There was appropriate description of the land in dispute and acts of possession including recent acts of possession being a building constructed on the land by the senior brother of Plaintiff, Vincent Andema.

Besides, Defendant to Counterclaim also made out a case and as the trial Court said, supported with documentary evidence.

1st Defendant who had a counterclaim adduced evidence by his representative and witnesses which the trial Court found unsatisfactory. This Court which restored the evidence of 1st Defendant’s representative found his evidence to be of poor quality and not strong enough to make out 1st Defendant’s case. There was no proper description and proof of how the land was acquired by first settlement save a repetition of the averments in the Amended Statement of Defence as against the detailed description by Plaintiff and Defendant to Counterclaim of the lands claimed by them. Mere repetition of averments in trial does not amount to proof. See Majolabi v Larbi [1959] GLR 190 and Zabrama v Segbedzi [1991] 2 GLR 221 CA.

The law is that a person who claims a declaration of title to land and bore the burden of proof must plead and prove, on a balance of probabilities, his root of title, mode of acquisition and various acts of possession in order to succeed. Akoto v Kavege [1984-86] 2 GLR 365 and Mondial Veneer (Gh.) Ltd v Amuah Gyebu XV [2011] 1 SCGLR 466.

Further, the person who bore the burden of proof was enjoined to establish positively the identity of the land he claims. Anane v Donkor & Ors. [supra], Bedu & Ors v Agbi & Ors. [supra], Bissah v Gyampoh III [supra] and Nene Narh Matti & 2 Others; Odotey v Teye (Consolidated) 2017-2018] SCLRG 746. The evidential rules were not compromised by the trial Judge as alleged by Counsel for Defendant.

The ground is without merit and same is dismissed.

Ground 20. - The learned trial Court erred in law in the totally wrong application and weight it attached to the colonial judgement of 19th March 1936 which led to a very dangerous and detrimental conclusion in law against the Defendant

The colonial judgement of 19th March 1936 came from the Public Records and Archives Administration Department, duly certified and relevant to the matter. It was properly authenticated. The criticism of the decision by Counsel for 1st Defendant does not in any way diminish the relevance of the decision that Azanse is part of Doba. It is an old decision. So also, is Exhibit AA, the document prepared by Capt. L. J. Mothersill, the District Commissioner on 14th and 15th July, 1939.

These documents did not meet the expectations of the 1st Defendant and his Counsel. They, however, show that the solution to the instant dispute has been in existence long ago and a careful search would have curtailed this matter and not allowed the dispute to travel this far.

The documents were relevant and properly admitted under Sections 126, 127 and 162 of NRCD 323. These are official records and are distinguishable from the record of proceedings rejected in the case of Ussher v Kpanyinli II [1989-90] 2 GLR 13. The record of proceedings was held not to be official records or copy of writings in official custody and so rejected. The records herein are official records and from official custody.

This ground fails.

Ground 21. - The trial Court erred in law when it failed to apply the legal effect of the general traverse in paragraph 1 of Defendants' Amended Statement of Defence and paragraph 19 of the same process, the combined effects of which were to specifically deny the paragraph of the Plaintiff's pleadings and not that of the 1st Defendant to Counterclaim and rather erroneously interpreted paragraph 28 of the Amended Statement of Defence as an admission when it was a further answer to a denial and this led to a wrong conclusion in law

The General Traverse, Paragraphs 19 and 28 of the Amended Statement of Defence were clear averments. Paragraph 28 in particular mentioned the Tindana and it is unambiguous. The Paragraph 28 averred as follows:

1st Defendant states further that he shall catalogue and prove various acts of unlawful interference with their person and their land by the Plaintiff aided by the Tindana including acts of harassment using the criminal process.

The reference to Tindana was clear without any prefix or suffix such as ‘alleged’ Tindana or Tindana “who is self-imposed”. The averment in question said “aided by the Tindana” simpliciter meaning the person aiding Plaintiff is a Tindana. The trial Judge was justified in concluding that 1st Defendant acknowledged 1st Defendant to Counterclaim as Tindana. No purpose is served by this ground which we consider to be unmeritorious and dismiss same.

Ground 23. - The trial Court erred when it drew an erroneous conclusion of inference that the burial of settlers at where they originally came from automatically implies that they are not natives or owners of the land they occupied at Akunkungo which led to misapplication or misapprehension of traditional evidence resulting in the wrong conclusion on that material issue or point

The issue of burial of settlers at Akunkongo came up during cross­examination of DW3 particularly at ROA 441. At ROA 626-627, the trial Judge discussed and evaluated the evidence of DW3 on the burial of settlers back in the place where they originally come from. He concluded that “In the absence of an explanation, it is reasonable to presume it is because the Kandiga natives are mere settlers in Akunkongo; they do not own the land to enable their bodies to be interred in the soil of Akunkongo.”

This is a reasonable presumption based on the evidence, and we find nothing wrong with it. The ground fails.

Ground 24. - The trial Court erred in the evidential determination of both the name of the place of the land in dispute and the name of the Catholic School thereby leading to a wrong conclusion in law and fact.

Ground 25. - The trial Court erred when it wrongly/erroneously concluded on the name Akurugu Daboo in the face of unchallenged admission and evidence of its meaning and origin and application thereby leading to another miscarriage of justice

From the evidence and especially the exhibits tendered by DW1, the name Akurugu Daboo was in existence, and they sought to remove it and replace same with Akunkongo. The name was not dependent on the meaning and origin of the name Akurugu Daboo. The name of the church and the school does not depend on the evidence of DW1 or DW3. The story that it was Plaintiff’s brother as a people teacher who changed the name of the school was not credible. The meaning of the name Akurugu Daboo given by DW3 could not be a basis for changing the name. The trial Judge rightly rejected the claim to change the name. There was no miscarriage of justice and Defendant did not demonstrate same. We dismiss these grounds.

Ground 26. - The trial Court misled itself into misunderstanding the nature and purpose of the evidence of DW2 and other Defendants' witnesses and as a consequential result led the court to the wrong conclusions on their evidence

The evidence that a river formed the boundary between Doba and Kandiga was disputed. The Anayire river was said by Defendant to Counterclaim to be in Doba and did not form the boundary between Doba and Kandiga. The boundary is Atankyire and not the river. (See ROA 408). This was not displaced by cross-examination. The ground is dismissed.

Ground 27. - The learned trial Judge overly dwelled on the Court's perception of the weakness in Defendants' case instead of the totality and weight and strength of evidence and case of the parties thereby violating principles of law regarding evidence and misapplied same to the detriment of Defendants and occasioned miscarriage as a result.

This has been discussed supra. From our examination, the record does not support this ground and same is dismissed.

Ground 28. - The trial Court failed woefully and erred in law when it took into consideration matters that were not relevant or material or related to the issues or subject matter for determination but rather ignored or failed to consider the relevant issues and subjects for determination and thereby rushed misled itself into the wrong conclusions in law and fact.

Counsel for Defendant did not demonstrate this from the record. It is dismissed.

Ground 29. - The trial Court erred in law when it admitted in evidence and/or relied on the contents of a Judgement and on proceedings that had been quashed and erroneously applied same to lead to a wrongful conclusion of the nature and weight and application of the legal principle of admission in law and its effect.

Dealt with. The trial Judge was right. It is dismissed.

Ground 30. - The trial Court erred in law when it failed to interrogate the purported content of a caution statement that was reproduced as evidence in a judgement that had been quashed but rather accepted same as factual and truth of its contents.

Ground 31. - The trial Court erred in law when without proof it concluded that the statement in the quashed Judgement was a voluntary statement by 1st Defendant in the absence of any evidence of such nature before the court thereby leading the Court into wrong conclusion

Ground 33. - The trial Court erred in law on the interpretation and application of the law on certified official documents when it failed to appreciate the legal consequence of quashed processes and proceedings relating to such documents but rather accepted them and dwelled on them heavily to detriment of Defendants

Ground 34. - The trial Court erred in law when it placed its own interpretation without evidence in support, on the contents of EXH B and misled itself into wrong conclusion which has caused a miscarriage of Justice

Is it a reasonable conclusion? How did the trial Judge arrive at his conclusion on this matter? ROA 406, the issue of the said judgment was raised in cross­examination of 1stDefendant to Counterclaim by Counsel for 1st Defendant. There was no real challenge to the contents and validity of the judgment.

The trial Judge considered this judgment at ROA 636-640. The contents of the said judgment were revealing as the 1st Defendant referred to 1st Defendant to Counterclaim as his landlord four times. He referred to land where he was farming and in respect of it described 1st Defendant to Counterclaim as his landlord. This is a relevant piece of evidence forming part of court proceedings and appearing in the judgment. Defendant did not deny making the statement. He is bound by it. The trial Judge did not rely on the conviction but the content relating to 1st Defendant’s acknowledgement of 1st Defendant to Counterclaim as landlord. The quashing of the conviction did not quash the statement and acknowledgement he made.

The provisions of NRCD 323 define what a certified document is. The document accepted by the trial Court satisfied the certification requirements.

The submission of Counsel for 1st Defendant that Assistant Chief Commissioner Judge knew almost nothing about native affairs is untenable. The grounds are unmeritorious and are dismissed.

Ground 32. - The trial Judge erred in law when it misapplied the case of ADEI & ANOR Vrs. ROBERTSON & ANOR [2016] 101 GMJ 160 SC to this case

This ground numbered as Ground 31 instead of 32 in 1st Defendant’s Counsel’s submissions between Paragraphs 179 and 180 was not argued

even though listed to be argued with grounds 6, 26, 29, 30, 31 and 32. Paragraphs 180 to 186 under which the listed Paragraphs were argued did not say anything about the above Ground. It is considered as abandoned and same is dismissed.

Ground 35. - The trial Court erred grievously in law and fact when in the teeth of unchallenged and admitted evidence that the composite plan was totally incomplete and flawed, it proceeded to unjustifiably rely on same and thereby resulted in wrong conclusion in law and fact which ultimately led to a miscarriage of justice.

Admittedly, the composite plan was not tendered by the surveyor who undertook the survey work. Parties were given opportunity to cross-examine the officer who tendered the survey report and the composite plan. The survey instructions filed in the suit are set out below:

SURVEY INSTRUCTIONS OF PLAINTIFF AND DEFENDANTS TO COUNTERCLAIM

The Plaintiff and Defendants to counterclaim require the surveyor to do the following;

1.    To survey and prepare a plan of the land shown on the ground being claimed by the Plaintiff.

2.    To survey and prepare a plan of the land shown on the ground being claimed by the 1st Defendant.

3.   To survey and prepare a plan of the land shown on the ground being claimed by the 1st Defendant to Counterclaim.

4.   To show and label shrines, cemeteries and landmarks of ownership and grants of the land made by the 1st Defendant to Counterclaim.

5.   Superimpose the plan of the Plaintiff with that of the 1stDefendant and the 1st Defendant to counterclaim.

6.    Indicate the land in dispute.

SURVEY INSTRUCTIONS FILED ON BEHALF OF THE DEFENDANTS PURSUANT TO THE ORDERS OF THE COURT FOR COMPOSITE PLAN DATED THE 16TH DAY OF OCTOBER, 2015 PER HIS LORDSHIP JUSTICE JACOB BOON

PURSUANT TO the orders of the High Court, Bolgatanga dated the 16 day of October, 2015 per HIS LORDSHIP JUSTICE JACOB BOON, the Defendants hereby requests, files and instructs the COURT APPOINTED SURVEYOR to do a survey and follow the instructions below;

1.    To survey and identify the land of the Defendants as shown by their boundaries to be indicated and described on the ground by the Defendants or their representative.

2.    To draw a site plan of the land of the Defendants per the description of the land by the Defendants.

3.    To survey and identify the land claimed by the Plaintiff as shown by his boundaries to be indicated and described on the ground by the Plaintiff.

4.    To draw a site plan of the land claimed by the Plaintiff per the description of the land as contained in paragraph 17 (a) of his Statement of Claim.

5.    To survey and identify the land claimed by the Defendants to Counterclaim as shown by their boundaries to be indicated and described on the ground by the Defendants to Counterclaim.

6.    To draw a site plan of the land claimed by the Defendants to Counterclaim per the description of the land by the Defendants to Counterclaim.

7.   To indicate and show the land or area in dispute between all the parties.

8.   To indicate and show any developments, structures, residential properties on the land in dispute and which party claims to OWN or DEVELOPED same.

9.   To indicate the stage of construction/development of any such development or structure on the land in dispute.

10.             To indicate any features on the land in dispute and who

developed or constructed or brought same onto the land in dispute.

11.             To indicate and show the land in dispute on the ground per the

indications of the parties.

12.             To superimpose and draw a composite plan of all the paragraphs

of instructions above stated and the particulars given in support of

same on a composite plan and accompanied by a legend with the written report.

13. To specifically draw, identify, indicate or show each party or person and his structure on the land in dispute.

14.             To indicate and draw any other feature on the land in dispute.

The evidence of the Surveyor is from ROA 450-453. Counsel for Plaintiff and 1st Defendant to Counterclaim did not cross-examine the Surveyor. Counsel for Defendant cross-examined him. He raised issue that some features did not appear on the composite plan. At ROA 452, Counsel for Defendant mentioned some items which were not indicated on the composite plan namely Catholic Church building, Catholic Mission House, Kandiga Primary or Kandiga Junior High School, huge baobab tree, River Ananyeri and residential buildings of Defendant.

Though he ended up on the note that the survey work was incomplete and totally unreliable, there was no indication that he requested the trial Court to order that the work be completed. The trial Judge acknowledged that some items indicated by 1st Defendant in his survey instructions such as buildings for Defendants were not indicated on the composite plan.

We refer to the cases of Tetteh v Hayford (substituted by Larbi and Decker) [2012] 1 SCGLR 417 and Seidu Mohamed v Saanbaye Kangberee [2012] 2 SCGLR 1182 in which the Supreme Court considered the importance of survey work in determining land boundaries and provided guidelines for handling it. The survey work in the latter case was not properly done. However, the Supreme Court went ahead and decided the matter by looking at other pieces of evidence that could help decide the issues.

A careful study of the survey instructions for 1stDefendant reveals that some of the specific items his lawyer said were omitted from the composite plan were not part of the instructions. Such items as the schools and mission house and shrines as well as huge baobab tree should have been specifically listed in the instructions to aid the surveyor.

From ROA 642 to ROA 645, the trial Judge dealt with the survey work. He took the view that the work was sufficient for the determination of the issues in the case. His position aligned with the decision in Seidu Mohamed v Saanbaye Kangberee [supra] where the Supreme Court decided the matter on the basis of other pieces of evidence. We agree with the trial Judge that the survey work was sufficient for the determination of the issues. Other pieces of evidence on the record could be relied on to determine the matter.

Counsel for 1st Defendant has not in any way demonstrated how deficiencies in the composite plan worked against 1st Defendant.

The survey report and composite plan showed features such as shrines, cemeteries as well as other landmarks over the land as indicated by 1st Defendant to Counterclaim. These are valid items which, with or without verifiable scientific survey plans, could be used to determine boundaries. See Assafuah v Arhin Davis [2013-2014] 2 SCGLR 1459. It also showed that the lands claimed by both Plaintiff and 1st Defendant fell within that claimed by 1st Defendant to Counterclaim. Further, a portion of the land claimed by 1st Defendant had entered the land claimed by Plaintiff. These together with other pieces of evidence on record provided a strong support for the decision of the trial Judge which we affirm.

This ground fails.

Ground 36. - The trial Court erred in law when it declared that 1st Defendant is tenant of 1st Defendant to Counterclaim when in fact, evidence and law, and from the records, no such evidence of a landlord­tenant relationship by its legal requirements existed or was established or determined.

The place where this landlord and tenant relationship was mentioned was in the 1st Defendant’s statement to the police discussed supra. However, the whole case is between the landowner and a tenant. Defendant directly denied the title of 1st Defendant to Counterclaim. Having failed in his clam, the trial Judge was right in granting him the relief he prayed for against Defendants. See Sections 27 and 28 of the Evidence Act, 1975 (NRCD 323) and Antie & Adjuwuah v Ogbo [2005-2006] SCGLR 494.

Based on the decision in In re Ashalley Botwe Lands; Adjetey Agbosu and Others v Kotey and Others [2003-2004] SCGLR 420, the grantees of Defendant who were not made parties to this suit, were appropriately excluded from the eviction order.

Counsel for Defendants formulated several grounds in this appeal and it was obvious that some of them were not relevant or could have been combined.

Additionally, he failed or refused to provide the necessary particulars as required by the Rules.

From the submissions, the Court could discern that he was even exhausted from arguing his numerous grounds. We refer to the case of Nana Obiri Boahen v Golden Age Company [2021] GHASC 91 (29 July 2021) where Agnes Dordzie (Mrs.) JSC counselled lawyers to give more serious attention to their grounds of appeal when filing appeals especially to the highest court of the land.

Again, Counsel should note that it is not every issue in a case that a Court decides. We learn from the decisions in Mensah v Kwanko II [2017] GHASC 22 (14 June 2017) and Dalex Finance and Leasing Company Ltd v Amanor [supra] that only the relevant issues are determined. Paying attention to the relevant issues in the case will help counsel to formulate appropriate grounds of appeal focused on the germane issues.

Conclusion:

We do not find any merit in the appeal and it is dismissed in its entirety.