Ex-WO1 Nii Sowah Henry Otinkorang (Substituted by Nii Okang Duamro Nmashie III) v Madina Pentecost Housing Scheme Ltd & Ors (2025)

[1] Introduction

The Plaintiff issued a Writ of Summons with an accompanying Statement of Claim on 16th May 2018 which was amended on 14th May 2019 and subsequently amended on 10th December 2020 for the following reliefs:

a. “A declaration confirming that Plaintiff family owns a total of 73,354.76 acres of land in the Greater Accra Region of the Republic of Ghana.

b. A declaration that the area in schedule B trespassed by Defendants measuring approximately 47,171 acres forms part of the Plaintiff’s family lands.

c. A declaration that the Defendants have trespassed on Plaintiff’s land.

d. Recovery of possession.

e. Damages for trespass.

f. An order to demolish any unauthorized structures on the land.

g. Any further or other orders including an order for perpetual injunction to restrain the Defendants, their agents, assigns, privies, workers howsoever described from interfering with the land in dispute in any way.”

The 1st and 2nd Defendants entered appearance through Counsel on 2nd March 2018. The initial Defendants were two. By an order of joinder dated 30th November 2018 the 3rd and 4th Defendants were joined to the suit and entered appearance through Counsel on 7th June 2019. The 1st and 2nd Defendants filed their Statement of Defence on 4th April 2018. The 3rd and 4th Defendants filed their Statement of Defence on 20th December 2019 and counterclaimed as follows:

 

i. “A declaration that the Plaintiff herein lacks capacity to commence the instant action.

ii. A declaration that the 46.887 acre situate and lying and being at Katamansu in the Greater Accra Region of the Republic of Ghana which said piece or parcel of land is more particularly delineated on survey plan Y1197 annexed to Certificate No. TD 10578 of the 1st Defendant forms part of Katamansu and Nungua Stool lands or less.

iii. An order of recovery of possession of any portions of the land described which is encroached upon by the Plaintiff or such areas as the said Plaintiff will encroach upon during the pendency of the instant Suit.

iv. An order or perpetual injunction to restrain the Plaintiff, his family, assigns, privies or anyone claiming through the said family from further interference with the land in dispute.

v. Damages for any trespass

vi. Costs (including lawyers’ fees)”

[2] The Issues

The Plaintiff’s Counsel filed a reply to the 1st and 2nd Defendant Statement of Defence and a Reply and Defence to Counterclaim of the 3rd and 4th Defendants Statement of Defence and Counterclaim which was subsequently amended. Application for Directions and Additional Issues were filed to set about nine issues for trial. At the close of pleadings the following issues were set down by the Court for the determination of the controversy between the parties:

1. “Whether or not the land in dispute belongs to the Plaintiff’s family

2. Whether or not 3rd and 4th Defendants have made a valid grant of the land in dispute to the 1st and 2nd Defendants.

3. Whether or not 1st and 2nd Defendants should defy the injunction imposed by the Court on the land in dispute and to continue undertaking construction works on the land during the pendency of this suit.

 

4. Whether or not the judgment in Suit No. FAL 363/13 delivered by the High Court on 31st July, 2015 supersedes the judgments of the Supreme Court on the Numo Nmashie lands delivered in Civil Appeal No. 49/80 by the Court of Appeal (then the Highest Court) on 15th December 1982 and the Judgment of the Supreme Court in Civil Appeal No. J4/14/2005 delivered on 21st June, 2006 in respect of Plaintiff’s family lands.

5. Any other issues flowing from the pleadings.

Additional issues

1. Whether or not the Plaintiff herein has capacity to institute the instant action.

2. Whether or not the subject matter in the instant suit is “Res Judicatam” and ought to be dismissed by this Honourable court.

3. Whether or not 1st and 2nd Defendants have exercised possession over the land in dispute and have a genuine title to same.

4. Whether or not Plaintiff has exercised any act of possession over the land in dispute.”

[3] Case Management Conference and Summary of evidence

The Plaintiffs testified through David Schall (PW1) and Daniel Nii Mensah Ablorh (PW2). They tendered into evidence the following exhibits:

1. Exhibit A - Teshie Numo Nmashie Family Land (of 1710)

(Confirmed land and villages by Appeal Court in Civil Appeal No. 49/80)

2. Exhibit A - Schedule for Nuumo Nmashie Family Land

3. Exhibit B - Appeal Court Judgment by E.K. Wiredu dated 15th

December 1982, Civil Appeal No. CA 49/80

4. Exhibit C - Supreme Court Judgment dated 21st June 2006 Civil

 

Appeal No. J4/14/2005

5. Exhibit D - Indenture dated 15th December 2006 between Nii Otu

Akwetey IX, Katamanso Mantse and 1st Defendant

6. Exhibit E - Land Title Certificate for 1st Defendant

7. Exhibit F - Notice of application for registration of title to land

The 2nd Defendant testified and called Emmanuel Cudjoe Adzigble who testified in support of 1st Defendant’s case. They tendered into evidence the following exhibits:

1. Exhibit 1 - Indenture dated 18th December 2006

2. Exhibit 2 - Land Title certificate dated 16th February, 2015

3. Exhibit 3 series - Photographs of building

4. Exhibit 8 - Indenture dated 22nd December 2015

5. Exhibit 9 - Photograph of building

Dr. Nii Kpakpo Sraha III testified on behalf of 3rd and 4th Defendants. He tendered in evidence the following exhibits:

6. Exhibit 1 - Power of Attorney

7. Exhibit 2 - Judgment Suit No. L 326/75 delivered on 19th May

1980

8. Exhibit 3 - Judgment Suit No: FAL 363/13 delivered on 31st July

2015

9. Exhibit 4 - The Republic vs High Court, (Land Div) Accra,

Exparte: Finali Ltd & Ors [Civ. Motion No. J5/1/2017]

 

Delivered on 30th November 2016, SC

10. Exhibit 5 - The Republic vs High Court (Human Rights Div)

Accra, Ex parte: Kwadwo Asante Boateng aka Kwadwo Baah. Nuumo Nmashie Family per

Samuel Larbi Darko, Lands Commission [Civ. Motion J5/34/2017] delivered on 29th May 2017

11. Exhibit 8 - Unstamped deed of assignment dated 22nd December

2015 between 1st Defendant and DW1

12. Exhibit 9 - Photograph

The Court Expert CW1 Desmond Akuetteh testified and tendered in evidence the following exhibits:

1. Exhibit CE1 - Report and Composite Plan

[3.1] Admissibility of DW1 Exhibit 8

Exhibit 8 though unstamped was admitted into evidence without objection. Section 8 of the Evidence Act provides as follows:

Exclusion of evidence

Evidence that would be inadmissible if objected to by a party may be excluded by the Court on its own motion.

On the basis of section 8 of the Evidence Act I shall proceed to consider the admissibility of Exhibit 8.

Exhibit 8 is subject to Section 32 of the Stamp Duty Act, 2005 (Act 689) on the requirement of stamping and that since Exhibit 8 has not been stamped it is inadmissible in evidence.

 

In the case of Francis Appiah-Mensah vs Gifty Anane-Wireko, Civil Appeal No. J4/28/2023, 19th July 2023 the Supreme Court speaking through Pwamang JSC on Section 32 of the Stamp Duty Act held that:

“It is to be noted that, the Court, in suit No. J4/80/2022 entitled NII AFLAH v BENJAMIN KWAKU BOATENG dated 22nd March 2023, in a unanimous decision, put the issue of the admissibility of unstamped documents to rest. The Court, in its quest to bring clarity and finality to the law by dealing a death blow to the inconstancies in cases like ANTIE & ADJUWUAH v OGBO [2005-2006] SCGLR 494; LIZORI LTD v BOYE & SCHOOL OF DOMESTIC SCIENCE and CATERING [2013- 2014] 2 SCGLR 889; WOODHOUSE LTD v AIRTEL

GHANA LTD [2017-2018] held, per Kulendi JSC that: ‘‘…we are of the considered opinion that the law on the admissibility or otherwise of an unstamped documents or instruments as enunciated in the cases of Lizori and Woodhouse are more accurate precedents of the proper construction of Section 32 of the Stamp Duty Act, 2005 (Act 689).’’ Exhibit C, having not been stamped ought not to have been admitted into evidence and relied on in accordance with Section 32 (6) of the Stamp Duty Act, 2005 (Act 689).”

In the case of Lizori Limited v Mrs Elizabeth Boye and Another [2013-2014] 2 SCGLR 889, where the Court speaking through Benin JSC on Section 32 of the Stamp Duty Act held that: “This provision is so clear and unambiguous and requires no interpretation. Either the document has been stamped and appropriate duty paid in accordance with the law in force at the time it was executed or it should not be admitted in evidence. There is no discretion to admit it in the first place and ask the party to pay the duty and penalty after judgment.”

I find that Exhibit 8 as stated supra has not been stamped and same is inadmissible in accordance with Section 32(6) of the Stamp Duty Act and same is according rejected.

[4] Evidence

[4.1] Plaintiffs

 

Two witnesses adduced evidence for the Plaintiffs. The first was David Schall an elder of the Numo Nmashie family of Teshie. The second was Daniel Nii Mensah Ablorh the Administrative Secretary and one of the principal Elders of the Numo Nmashie Family of Teshie. The two gave historical and current evidence regarding the Plaintiffs’ acquisition of the subject land by war and conquest and the subsequent occupation, possession and utilization of the subject land. They tendered documentary evidence including judgments/site plan to back their claim of title of the subject-matter. The Plaintiff witnesses also testified about seeing people working on the land hence the commencement of the present action. The people were identified as the 1st Defendant who claimed ownership of the land in dispute and was alienating portions of the Numo Nmashie family lands to its church members who were developing the land into residential apartments. PW2 in particular asserted that the lands under reference measuring approximately 46.887 acres did not belong to the Katamanso stool but rather to the Numo Nmashie family of Teshie. According to PW2 “I declare that Numo Nmashie family of Teshie are the owners of a total of approximately 73,354.76 acres of land and the 46.887 acres of land in dispute a subject matter before this Court forms part of the Numo Nmashie Family land per its Judgment Plan of Civil Appeal No. CA 49/80…The land in dispute is located at Amrahia in the Greater Accra Region which forms part of the Numo Nmashie Family lands and Amrahia is one of its villages. The land in dispute are Numo Nmashie family of Teshie lands located at Amrahia and not Katamanso lands”.

[4.2] 1st and 2nd Defendants

Jacob K. Tetteh, the 2nd Defendant an elder of the Church of Pentecost and a Director of the 1st Defendant Company testified in addition to Emmanuel Cudjoe Adzigble (DW1). They testified that the 1st Defendant’s company is the bonafide owner of a large tract of land the subject matter of the dispute which land the 1st Defendant acquired from the Katamanso stool. The 2nd Defendant testifies that he was tasked to locate suitable land

 

and the result of the searches and due diligence confirmed that the portion of the land indeed fell within the Katamanso Stool area and land hence the Katamanso stool was the lawful authority to alienate same. 2nd Defendant in paragraph 12 and 13 of his adopted witness statement described the mode of acquiring the land and the dimensions of the land in dispute. It the case of 2nd Defendant that the 1st Defendant immediately took possession, exhibited overt acts of possession without hindrance by erecting corner pillars by erecting corner pillars to demarcate the boundaries of its land and immediately moved into same, mapped it out and allocated the land to the church members who have now become grantees of the 1st Defendant and they had since developed their lands. The 1st Defendant and its grantees have been in possession of the land since 2006. Its grantees have lawfully developed most part of the land before the Plaintiff herein on the 16th day of May 2018 commenced the instant action laying adverse claims to 1st Defendant’s lawfully acquired land. The 1st Defendant, as an innocent entity acquired the land bonafide for valuable consideration without any sign or indication at the time from the Plaintiff. DW1 testifying per his adopted witness states that he became aware of the project of the 1st Defendant company at church and expressed the interest to acquire a land to build a house. He conducted due diligence and was satisfied that 1st Defendant company had acquired the land from Nii Otu Akwetey IX, Katamanso Mantse and the lawful representative of the Nii Adzin We family of Katamanso. It is the case of DW1 that he took possession of the land and has since put up a dwelling house on the land which house he has been occupying for the past 15 years.

[4.3] 3rd and 4th Defendants

The 3rd and 4th Defendants called one witness in the person Dr. Nii Kpakpo Sraha III. He described himself as the Chief of Salem. His authority for testifying was based on a power of attorney issued to him by the 3rd Defendant which he tendered as Exhibit 1 and stated he was a witness for 4th Defendant.

 

He contended that the subject land is situate at Katamanto a divisional stool of the Nungua Traditional Area. He confirmed the grant by the Nungua stool to Madina Pentecost Housing Scheme Ltd. He testified that Katamanso lands were by custom and history a part of the Nungua Stool lands. However, the Katamanso stool has the inherent right of possession and use. The Nungua stool is therefore the allodial title holders of all that land described as Katamanso lands but the use and the right to alienate same has been recognized as inherently vested in the Katamanso Stool. The allodial title of the Nungua Stool in Katamanso lands was confirmed in the 1980 High Court judgment between the Nii Odai Ayiku IV (Nungua Mantse) and Nii Laryea Akuetteh VIII (Headman of Katamanso). However, the same judgment recognized and preserved the right of the Katamanso Stool to occupy and alienate. The judgment was tendered in evidence as Exhibit 2.

DW2 testified that he knew the land in dispute which was under the administration and possession of the Katamanso Stool hence the Katamanso Stool had the power and authority to alienate same to the 1st Defendant’s company.

DW2 takes a swipe at Plaintiff when he states that the judgments referenced by the Plaintiff in this suit were irrelevant to the instant suit as same did not affect the land in dispute, neither were the 3rd and 4th Defendants herein parties to the suits.

[5] Standard of Proof

This action, being one for declaration of title to land, recovery of possession and perpetual injunction among others, is first and foremost, a civil action which required proof on preponderance of probabilities: See Section 12(1), Evidence Act, 1975 NRCD (323).

It is the position in our law that the Plaintiff who asserts usually has the burden of proving same on a preponderance of probabilities. Preponderance of probabilities, according to section 12(2) of the Evidence Act, 1975 (NRCD 323) 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.”

In Bisi vs Tabiri [1987-88]1 GLR 386, it was held:

“The standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue.”

The standard is the same whether the civil action relates to land or not. See Adwubeng vs Domfeh [1997-98] 1 GLR 282 SC.

[5.1] Burden of Proof (Persuasion)

The burden of persuasion is the duty to establish the requisite degree of belief in a fact in issue in the mind of the tribunal of fact. See section 10(1) and (2) of the Evidence Act.

In Okudzeto Ablakwa (No. 2) v. Aflorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845, the Supreme Court in dealing with the burden of proof held at page 867 of the report as follows:

“… he who asserts, assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323), s 17 (a) … .What this rule literally means is that if a person goes to court to make an allegation, the onus is on him to lead evidence to

prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish.”

In Owusu vs Tabiri & Anor [1987-88] 1 GLR 287 it was held:

“It was trite principle of law that, he who asserts must prove and must win his case on the strength of his own case and not on the weakness of the defence”.

See also: Faibi v State Hotels Corporation [1968] GLR 47

 

Bank of West Africa Ltd vs Ackun [1963] 1 GLR 176

Takoradi Flour Mills vs Samir Farms [2005-2006] GLR 882 at 884 and

Ackah vs Pergah Transport Ltd [2010] SCGLR 728

The erudite judgment of Ollenu J (as he then was) in Majolagbe vs Larbi [1959] GLR 190

always gives guidance to the courts on how the burden of proof is discharged:

Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.

It is of moment however to note that where a matter is capable of proof, it must be proved and must not be left in surmise or abeyance. In France v Golightly & Anor [1991] 1 GLR 74 (holding 3) it was held:

“Where a fact was capable of positive proof it was wrong to rely on assumptions”.

A plethora of authorities have held that a Plaintiff in an action for declaration of title to land assumes an onerous duty. In Odoi vs Hammond [1971] 1 GLR 375, CA, it was held at p.382:

“It is now common learning in this country that in an action for declaration of title to land, the onus is heavily on the plaintiff to prove his case, and he cannot rely on the weakness of the defendant’s case. He must indeed ‘show clear title’…”

See also Akoto II v Kavege [1984-86] 2 GLR 371

Awuku vs Tefleh [2011] cited by Counsel for Plaintiff in his written filed out of time.

 

I cannot exhaust the issue of the burden of proof enough, without a reference to the Supreme Court’s decision in Osei vs Korang [2013] 58 GMJ 1 at page 22 where Ansah JSC (as he then was) notes thus:

“Where in an action, the parties claim and counterclaim for declaration of title to the same piece of land, each party bears the onus of proof as to which side has a better claim of title against his/her adversary, for a counter claimant is as good as a plaintiff in respect of a property which she/he assays to make his/her own…”

See also: Fosua & Adu-Poku vs. Dufie (Deceased) & Adu Poku-Mensah [2009] SCGLR 310 at 325-327 Per Atuguba JSC;

Yorkwa V. Dua [1992-93] GBR 278 at 282 Per Brobbey JA (as he then was);

Amidu Alhassan Amidu & Another vs. Mutiu Alawiye & 6 Others [2019] DLSC 6573 at page 5 per Pwamang, JSC quoting Amissah J.A. in Ricketts v. Addo [1975] 2 GLR 158 at 166, CA, on standard of proof-burden to be established in land disputes-declaration of title.

Nartey V Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, per Adade JSC, on the burden on a person who comes to court to make a good case for the court to consider otherwise he must fail; and

Odametey vs Clocuh [1989-90] 1 GLR 14, on the time-honoured principle that if the Plaintiff totally failed to make out a case for title to land, he could not rely on the weakness in the defence.

The rule for establishing a clear title is not a requirement for the plaintiff to strictly prove his title. The test continues to be on the preponderance of probabilities.

In Odonkor v Amartei [1992-93] GBR 59, SC speaking through Hayfron-Benjamin JSC stated that:

 

“If the dictum of Webber CJ above stated over half a century ago supports the proposition that a weakness in the defendant’s case in an action for a declaration of title must not be considered in evaluating the strength of plaintiff’s case, no matter the nature of the plaintiff’s case, then the dictum is now no more true of the legal position in modern Ghana, at least since the coming into force of the Evidence Decree, 1975 (NRCD 323) ... If there was ever a doubt about the true principle

... then NRCD 323 has now definitely cleared all possible doubts.” The sections of the Evidence Decree referred to are sections 11(4) and 12.

It is well that Taylor JSC has blunted the sharpness of this principle and consigned it between the covers of the Evidence Decree where judges may be able to consider the relative merits of a civil case based on the preponderance of probabilities rather than on an archaic principle which may not accord with reason or common sense.”

The Supreme Court in the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, laid down the nature of the evidence that a party who seeks declaration of title to land has to lead in order to get a ruling in that person’s favour. The Supreme Court speaking through Georgina Wood CJ (as she then was) noted at page 475 of the report as follows:

“In land litigation … the law requires the person asserting title and on whom the burden of persuasion falls … to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim.”

Similarly in Abbey v. Antwi [2010] SCGLR 17, the Supreme Court held at holding 2 of the headnotes as follows:

“In an action for a declaration of title to land, the plaintiff must prove, on the preponderance of probabilities, acquisition either by purchase or traditional evidence; or clear and positive acts of unchallenged and sustained possession or substantial user of the disputed land.”

 

Where a plaintiff makes out a case on his title, he is entitled to rely on the weakness exposed in the evidence of the defendant1.

The burden of proof in an action for declaration of title to land, is discharged if the Plaintiff proves the following:

a) Properly and legally acquired the particular piece of land with

b) Defined identity and of which

c) He has been in possession or has had the right to possession.

I will consider the principles briefly.

[5.2] Acquisition, identity and Possession [5.2.1] Acquisition

The duty of the Plaintiff to show clear title (burden of proof or persuasion) is discharged if he can lead credible and admissible evidence to establish the nature and mode of his acquisition, the identity and boundaries of the land, and the fact of this possession or right to possession.

A Plaintiff or Defendant-counterclaimant in an action for declaration of title to land has a duty to establish his mode of acquisition. The critical requirement has been clearly stated in landmark cases such as:

- Kponuglo vs Kodadja [1933]2 WACA at 25; it was held:

1 Ricketts vs Addo [1975]2 GLR 158 CA; In Odametey v Clocuh [1989-90]1 GLR 14 the Supreme Court (holding 1) explained the rule: “The present position was that if the plaintiff in a civil suit failed to discharge the onus on him and thus completely failed to make a case for the claim for which he sought relief, then he could not rely on the weakness in the defendant’s case to take relief. If however, he made a case which would entitle him to relief if the defendant when he did give evidence disclosed any

weakness which tendered to support the plaintiff’s claim, then in such a situation the plaintiff was entitled to rely on the weakness of the defendant’s case to strengthen his case..”

 

“The first question logically and chronologically to consider in the appeal is the traditional evidence regarding the acquisition of a title to the dispute territory.” See the following cases:

- Dompreh vs Pong & Ors [1965] GLR 126, SC (holding 1)

- Odoi vs Hammond [1971] 2 GLR 375 at 382;

- Mondial Veneer (GH) Ltd vs Amuah Gyebi XV [2011] 1 SCGLR 466;

- Ogbamey Tefleh vs Ogbamey Tefleh [1993-94] 1 GLR 353;

- Akoto & Ors v Kavegbe & Ors [1984-86]2 GLR 365;

- Duagbor & Ors vs Akyea Djamson [1984-86] GLR 697 and

- Mamudu Wamgara vs Gyato Wangara [1982] GLR 639.

[5.2.2] Identity and boundaries

An action for declaration of title to land cannot succeed until the Plaintiff leads evidence to establish the identity and or boundaries of the land, as being the same as the land in dispute.

In the case of Salomey Shorme Tefleh & Nii Amon vs Mary Korkor Hayford (substd by Stella Larbi & Comfort Decker ) case2 Dotse JSC (as he then was) stated as follows on the issue of identity of the land in dispute:

“The position of the law, following from Fofie vs Wusu [1992-93] GBR 877 is that it is the Plaintiff who bears the burden of establishing the identity of the land she is laying claim to. Failure to prove this identify is fatal to a claim for declaration of title. In the above case, the Court of Appeal, Coram, Lamptey, Adjabeng and Brobbey JJA (as they were then) speaking with one voice through Lamptey JA held as follows: “To succeed in an action for a declaration of title to land a party must adduce evidence to prove and establish the identity of the land in respect of which he claimed a declaration of title. On the evidence the plaintiff failed to prove the identity of the land claimed.”

2 Civil Appeal No. J4/34/2011 dated 22nd February 2022

 

In the case of Kwasi Bugya Acheampong vs Frank Osei Asibey and Kwasi Bugya Acheampong vs Kwaku Addo, Suit No: H1/29/2022, 29th June 2022 CA Sowah JA ( as she then was) held as follows: “It is settled law that proof of the identity of the land goes to the root of every case where declaration of title is sought. It becomes a key issue in this appeal where it is alleged that Plaintiff failed to identify the land he claimed”.

See also:

i. Kwabena v Atuahene [1981]GLR 136

ii. Anane v Donkor [1965] GLR SC and

iii. Bedu v Agbi [1972] 2 GLR 238, CA

iv. Agyei Osae vs Adjeifio [2007-2008] SCGLR 499

v. Nyiklorkpo vs Agbedeto [1987-88] 1 GLR 165 and

[5.2.3] Possession

It is again not enough for a claimant, to establish acquisition and the identity of the land claimed. He must fulfil the last and third major task of proving that since the acquisition, he has been in possession or retained the right to possession.

Possession, according to the Black’s Law Dictionary (2009, 9th Ed. P 1281) is:

“The fact of having or holding property in ones power; the exercise of dominion over property”...

2. The right under which one may exercise control over something to the exclusion of all other; the continuing exercise of a claim to the exclusive use of a material object...”

Actual possession is “physical occupancy or control over property”, and a right to possession, also called constructive possession, “is control or dominion over property without actual possession or custody of it”. See Black’s Law Dictionary (supra) page 1282.

Another crucial element to establish in an action for declaration of title is that the Plaintiff must establish that since the acquisition of land, he has been in possession or has had the right to possession of same. Section 48 (1) and (2) of the Evidence Act, 1975 (NRCD 323) provides:

 

“(1) The things which a person possesses are presumed to be owned by that person.

(2) A person who exercises acts of ownership over property is presumed to be the owner of it.”

Long undisturbed possession is evidence of ownership. See Ababio vs Kanga [1932] 1 WACA 253 at 259-260. Possession is very strong evidence of ownership even though such a presumption is rebuttable.

In Amankwa v Nsia [1994-95] 2 GBR 758 at 775, Abban JA (as he then was) citing the dictum of Lord Fid Gerald in Danford v McAnnulty [1883] 8 App cases 456, House of Lords, held that “possession is nine points of the law and a Defendant who has no counterclaim, only has to plead that he is in possession...”

A plethora of cases which elucidate the principle that a person in possession of land is presumed to be the owner includes the following:

Summey v Yohuno [1962] 1GLR 160; Aidoo v Adjei [1976] 1GLR 431; Majolagbe v Larbi [1959] GLR 190; Nyiklorkpo v Agbedetor [1987-88] 1GLR 165; Ago Sai & ors v Kpobi Tefleh Tsuru III SCGLR 762; Odonkor v Amatei [1992-93] GBR 59; Rickefls v Addo [1975] 2 GLR 158 and Perry v Clissold [1907] AC 73.

It is tempting to over emphasise the importance of possession as evidence of ownership. There are many kinds of possession, and mere long possession does not ripen into title. In Panyinlli v Anquadah [1947] 12 WACA 284 at 286, it was held:

“In this country where land may be in the occupation of persons who are not owners but who for generations may have right of occupation as licensees or customary tenants or under other conditions known to local custom, the reversion nonetheless being in the owner, it is essential that the nature and origin of the occupiers should be determined. Mere occupation even for long periods is not sufficient proof of ownership”.

The following cases: Yartey & Oko v Construction & Furniture West Africa Ltd & 2 Ors

[1962] 1GRL 86, SC; Kuma v Kuma [1936] 5 WACA at Pp 8-9 and Birimpong v Barwuah [1991] 2 GLR 20 CA, held to the same effect.

 

In Nartey v Mechanical Lloyd Assembly Plant [1987-88] 2 GLR 341 SC, Amua –Sekyi JSC, in a dissenting opinion which has gained much legal traction, elucidated the matter as follows:

“There seems to be a misunderstanding of the cases which decide that a party who is in possession of land is entitled to the protection of the courts against all these (sic) who cannot prove a better title. The cases show that it is not possession for a day or two, a week, a month, or even a year which suffices to bring the rule into operation. It is rather long, peaceful, undisturbed possession over a considerable period of time, long and peaceful enough to raise a presumption that the occupation of the land must have a lawful origin”.

Overt acts of ownership include3

i. Granting of leases – See Ometa v Numa [1929] 9 N.L.R. 46

ii. Grant of land for mining or timber felling (Now exclusive government preserve)

iii. Receipt of tribute

iv. Farming – See Owusu vs Manche of Labadi [1933] 1 WACA 278

v. Felling of economic trees – See Egyin vs Agye [1962]2 GLR 187

vi. Previous Judgment – See Akoto vs Agyeman [1962] 1 GLR 524

The major principles to consider are acquisition, identity of the land and possession. I shall subsume the various issues under these principles. In so doing some of the issues may be combined and dealt with. However, before I proceed the issue of Plaintiff capacity was raised by the defence yet they failed to pursue the capacity issue. I deemed same abandoned by the Defendants.

[6] Court’s evaluation, analysis and opinion

3 Kom; Declaration of title to land and its Defences, p.19

 

The major principles to consider are acquisition, identity of the land and possession. I shall subsume the various issues under these principles. In so doing some of the issues may be combined and dealt with.

Whether or not the Plaintiff is the bona fide owner of the land in question? In land suits, the Plaintiff is required to establish the root of his title, the mode of his acquisition and the identity of his land among others. The Supreme Court speaking per Adinyira JSC in the recent case of Yehans International Ltd. v. Martey Tsuru Family and 1 Or., [2018] DLSC 2488 held:

“It is settled that a person claiming title has to prove: i) his root of title, ii) mode of acquisition and

iii) various acts of possession exercised over the land … This can be proved by either by traditional evidence or by overt acts of ownership in respect of the land in dispute. A party who relies on a derivative title must prove the title of his grantor. Awuku v. Tetteh [2011] 1 SCGLR 366”.

Did the Parties establish the above requirements? We would soon find out. I shall proceed to discuss issues 1a, 1b, 1c, 1d and additional issues 2 and 4 together.

[6.1] Issues 1a, 1b,1c, 1d, Additional issues 2 and 4

Issue one (a) - Whether the land in dispute belongs to the Plaintiff’s family?

Issue four - Whether or not the judgment in Suit No. FAL 363/13 delivered by the High Court on 31st July, 2015 supersedes the judgments of the Supreme Court on the Numo Nmashie lands delivered in Civil Appeal No. 49/80 by the Court of Appeal (then the Highest Court) on 15th December 1982 and the judgment of the Supreme Court in Civil Appeal No. J4/14/2005 delivered on 21st June, 2006 in respect of Plaintiff’s family lands.

Add. Issue 2 - Whether or not the subject matter in the instant suit is “Res

Judicatam” and ought to be dismissed by this Honourable court.

 

Add. Issue 4 -  Whether or not Plaintiff has exercised any act of possession over the land in dispute.

[6.1.1] Acquisition Plaintiff

As aforesaid, the Plaintiffs claim that the land was acquired by their ancestors through settlement and conquest. The Plaintiff claim that their title was confirmed in the following judgments:

- Appeal Court Judgement dated 15th December, 1982 in Civil Appeal No. CA49/80 marked as Exhibit B.

- Supreme Court Judgment in Civil Appeal No. J4/14/2005 marked as C. Exhibit C which was an incomplete Judgment was received in evidence conditionally subject a complete version being substituted for that one before the end of the Plaintiff’s case yet the complete version was never placed before the Court by the Plaintiff. The condition was not fulfilled and Exhibit C cannot be relied upon as evidence before the Court.

The Plaintiff’s witnesses claim that Numo Nmashie family of Teshie has been the land in dispute since time immemorial without any issues until recently in 2015. They make reference to the Court of Appeal Judgment as backing their claim that they own 72 villages from Teshie to Brekusu. For ease of reference I set out aspects of Exhibit B below:

A. Court of Appeal

In the mafler of the State Lands Act, and, In the mafler of Land Acquired for the Ghana Broadcasting Corporation Television Station at Adjancote: 15th December, 1982, (Civ. App. No. 49/80):

 

The Court of Appeal delivered itself thus through Wiredu J.A (as he then was) as follows: “The dispute in this case is about title to a piece of land described by the name Adjancote. This land was acquired some time ago by the Government of Ghana for the purpose of building a Television Station for the Ghana Broadcasting Corporation…In my opinion, had the Tribunal applied the proper principles of law to a determination of this case and made an objective examination of the evidence, they would have had no hesitation in coming to the conclusion that the appellant established a better claim to the land. I hold that they have done so. Accordingly, I judge them entitled to the compensation payable for its acquisition by Government. Accordingly, I would allow the appeal and set aside the judgment appealed from and I would declare that the 2nd claimant the Numo Nmashie family are entitled to the compensation in respect of land acquired for the TV Station at Ajancote.”

Wiredu JA (as he then was) in Exhibit B stated as follows: ”In the course of the hearing of the appeal it became necessary to order a plan in order to identify the various villages named in the proceedings in relation to the acquired area. A Mr. Lassey, a licensed surveyor of Ho was by consent appointed to undertake the survey and Exhibit CA.1a and CA Ib are the results of the survey work undertaken by him. He testified before us on 22nd November 1982. His evidence show

(1) that all the villages within the vicinity of the acquired area were occupied by members of the appellants followers Exhibit CA 1a and (b) that there were no established villages within the acquired area itself, Exhibit CA 1B.”

In judgment the Court is enjoined to consider every material fact evident on the face of the record and this includes cross-examination of the parties. In the case of Wood (substituted by) Asante-Koranteng vs Tamakloe & Derban [2007-2008] SCGLR page 852, holding 3 the Supreme Court held that

“in an appeal, the court is required to make its determination by taking into account every material

fact evident on the face of the record.” I adopt same and apply the same consideration in this Judgment.

 

PW2 was extensively cross-examined on the import of Exhibit B in relation to their claim that the subject-matter of dispute is part of the over 72,000 acres claimed by the Plaintiff. PW2 was unable to pinpoint the exact paragraph in Exhibit B which mentioned the name of the subject-matter of the dispute.

On 17th May 2023 and 13th July 2023, the following discourse ensued when PW2 was exhaustively cross-examined on the import of Exhibit B:

Cross-examination on 17th May 2023

“Q: I am suggesting to you that per your own Exhibit B the Court of Appeal only made pronouncement and specific orders about land at Ajangote and the said orders did not or does not in any way cover the land the subject matter of the dispute herein.

A:  That is not true. Even the Appeal court requested the Numo Nmashie family to name all the villages belong to Numo Nmashie family and after naming all to number 29 he was asked to stop and Amrahia is included in the Numo Nmashie family judgment, Katamanso is far away from Amrahia. From our boundary to Katamanso is about 7 miles and if you have to talk about Katamanso, Katamanso per say the war at Katamanso in 1826 was fought by the whole Ga State and Teshie people showed bravery and Teshie people was given a thumb and till now the thumb is still there.

Q:  I am suggesting to you that per your own Exhibit B the court of Appeal noted on page 11 of the said judgment (read out) and explained the scope and extent of land hence you cannot extent same to cover the land in dispute herein.

A: That is not true. An issue came up in the Appeal court that is why the Appeal court ordered that all Claimant should show their various lands.

Q: Yes after showing all the lands you claim the court of Appeal only made specific orders in favour of the Plaintiff’s family in respect of land located only at Ajangote per your own Exhibit B.

 

A: It is not true taking into account what necessitated the appeal, at the Land Tribunal it was ruled that all the lands surrounding Ajangote is the property of Numo Nmashie family except the top of the hill and the appeal decided that including the lands owned by the Numo Nmashie family and that was why the compensation was paid to Numo Nmashie family of Teshie.”

Further cross-examination PW2 by Counsel for Defendant on 13th July 2023

“Q: It is clear that the judgment that you have attached Exhibit B was specific to Ajangote land acquired by the government for the purpose of building a TV station is that not so?

A: Yes my lady it is so, however, in the course of the days the Appeal ordered for all the Claimants to show their respective lands, hence the judgment plan that came out from what Numo Nmashie showed.

Q: So essentially the end result of the said judgment was that the Plaintiff family herein was paid compensation for the acquisition of the said land is that not so?

A: Yes it is true and because the Appeal Court ordered all the Claimant to show their respective lands it became an issue in court so the Appeal Court debated on the land and Numo Nmashie family were adjudged as the owners of the various lands in the Numo Nmashie judgment plan.

Q: Having already told this court that the Plaintiff’s family received compensation for government acquisition for the land located at Ajangote which land was the subject matter of your Exhibit B, you will agree with me that the said land is a government land.

A:  What the government acquired and paid compensation for is government lands.”

Crucially the Court of Appeal ordered a plan “in order to identify the various villages named in the proceedings in relation to the acquired area”. The appointed licensed surveyor was one Lassey of Ho, who tendered his plan and maps as Exhibits CA 1a and CA Lb.

 

Exhibit A titled Teshie Numo Nmashie Family Land (of 1701) confirmed land and villages by Appeal Court in Civil Appeal No. 49/80) lists 29 villages that the Plaintiffs claim. These are

“Appellants list of villages; (1) Ashonman, (2)Ablajei, (3) Sempene (4) Aboman (5) Pantang (6)

Abokobi (7) Akporman (8)Boi (9) Kweiman (10) Otinibi, (11)Ochirekumfo (12)Ashalebotwe (13)

Agbogba (14) Ajancote Hill, TV Station (15) Aiyim (16) Bawaleshie (17) Madina (18) Mpehuasem

(19) Ogbojo (20) Otele, (21) Batchona (22) Agblesia (23) Danfa (24) Adoteiman (25) Berekuso

(26) Ajimenti (27)Ayimensa and (28) Sesemi”.

Though Exhibit A is not exhaustive of the villages, Katamanso has not been listed in it.

Defendants

1st and 2nd Defendants testimony was that the 1st Defendant company is the bonafide owner of a large tract of land the subject matter of the dispute which land the 1st Defendant acquired from the Katamanso stool. The 2nd Defendant testifies that he was tasked to locate suitable land and the result of the searches and due diligence confirmed that the portion of the land indeed fell within the Katamanso Stool area and land hence the Katamanso stool was the lawful authority to alienate same. 2nd Defendant in paragraph 12 and 13 of his adopted witness statement described the mode of acquiring the land and the dimensions of the land in dispute. It the case of 2nd Defendant that the 1st Defendant immediately took possession, exhibited overt acts of possession without hindrance by erecting corner pillars by erecting corner pillars to demarcate the boundaries of its land and immediately moved into same, mapped it out and allocated the land to the church members who have now become grantees of the 1st Defendant and they had since developed their lands. The 1st Defendant and its grantees have been in possession of the land since 2006. Its grantees have lawfully developed most part of the

 

land before the Plaintiff herein on the 16th day of May 2018 commenced the instant action laying adverse claims to 1st Defendant’s lawfully acquired land.

The 3rd and 4th Defendants by an order of joinder joined the suit as the grantors of 1st Defendant and even counterclaimed for some reliefs.

The Supreme Court in the case of Salomey Shorme Tefleh & Nii Amon vs Mary Korkor Hayford (substd by Stella Larbi & Comfort Decker) case4 (infra) decided “There is an obligation on a grantor, or lessor or owner of land to ensure that any grant he purports to convey to any grantee, or lessee is guaranteed and that he will stand by to defend the interest so conveyed to any grantee or lessee…”

The 1st Defendant and his grantor accepted the challenge thrown to them by the Plaintiff and set forth to establish it by Dr. Nii Kpakpo Sraha (DW2) testifying and tendering various documents including judgments obtained by the Nungua stool. Testifying per his adopted witness statement he contended that the subject land is situate at Katamanto a divisional stool of the Nungua Traditional Area. He confirmed the grant by the Nungua stool to Madina Pentecost Housing Scheme Ltd. He testified that Katamanso lands were by custom and history a part of the Nungua Stool lands. However, the Katamanso stool has the inherent right of possession and use. The Nungua stool is therefore the allodial title holders of all that land described as Katamanso lands but the use and the right to alienate same has been recognized as inherently vested in the Katamanso Stool. The allodial title of the Nungua Stool in Katamanso lands was confirmed in the 1980 High Court judgment between the Nii Odai Ayiku IV (Nungua Mantse) and Nii Laryea Akuetteh VIII (Headman of Katamanso). However, the same judgment recognized and preserved the right of the Katamanso Stool to occupy and alienate. The judgment was tendered in evidence as Exhibit 2.

4 Civil Appeal No. J4/34/2011 dated 22nd February 2022

 

DW2 testified that he knew the land in dispute which was under the administration and possession of the Katamanso Stool hence the Katamanso Stool had the power and authority to alienate same to the 1st Defendant company.

DW2 testified further that whatever land the Plaintiff’s family might own through conquest judgments do not include Katamanso lands and by extension, the area under dispute. He said “the said judgments referenced by the Plaintiff in this suit are irrelevant to the instant suit as same do not affect the land in dispute, neither were the 3rd and 4th Defendant herein parties to the suits. Contrary to claims by the Plaintiff herein that the land in dispute falls within and forms part of their family land, the land which is subject matter of dispute rather falls and forms part of Katamanso Lands… It is also noteworthy that the claim of the Plaintiff family herein to be owners of 70 villages of Accra including Katamanso which the Plaintiff got a judgment in High Court in Civil Appeal No. 49/80 is no longer good law or judgment. The said judgment has been variously quashed as unenforceable. With the permission of the Court, I wish to tender copies of the rulings against Judgment in Civil Appeal No. 48/80 as Exhibits S4 & S5.”

DW2 further testified that in 2006, the 1st Defendant expressed interest and acquired a leasehold interest in the subject matter of the dispute from the Katamanso Mantse and paid valuable consideration for the land. The Katamanso Mantse executed a lease in favour of 1st Defendant and sanctioned its presence on the land as lawfully and validly acquired. He stated the land in dispute falls squarely within Katamanso’s demarcated boundary plan and is now the Bonafide property of the 1st Defendant company. ”The Plaintiff family is confused about the exact dimensions of their boundary. The claim by the Plaintiff family that the land in dispute measuring approximately 47,000 acres belong to the Nuumo Nmashie family of Teshie shows that the Plaintiff family is ignorant or do not know exactly where their lands lie and do not even know their exact boundaries. That this is a desperate attempt to claim lands that fall within the declared boundary of Katamanso Stool.”

 

DW2 was subjected to extensive cross-examination, and he was resolute in his answers and stated categorically that the Supreme Court held that “the 72,000 Acres of land claimed initially by the Numo Nmashie family was adjudged to be null and void”. Please find an extract of the cross-examination DW2 on 14th November 2023 by Counsel for Plaintiff:

“Q.  I asked you to bring a document yesterday, have you brought it?

A. Yes my lady I have brought the judgment. 1892 judgment

Q. Are you privy to the land that was given to the Madina Pentecost for residential purposes?

A. Yes my lady.

Q. Which land did you give to them?

A. We gave part of Katamanso western lands to them near the Pinkwai forest.

Q. That area forms part of Numo Nmashie lands not Katamanso lands.

A.  This is not true. I was involved in solving this issue between the Numo Nmashie Family and the Boi Family of Osu. The final determination by the Supreme Court is that Numo Nmashie Family owns no land in that area we call Katamanso.

Q. The determination by the Supreme Court that Numo Nmashie Family owns no land at that area is not accurate.

A. The Supreme Court was accurate in determining that Abokobi plus 85 Acres of land near Boi is owned by Numo Nmashie nothing more. Then in Cap 69 of 1948 Numo Nmashie Family was affirmed owners of a small coastal land belonging to Nungua. Aside from these the 72,000 Acres of land claimed initially by the Numo Nmashie family was adjudged to be null and void.

Q.  What that it mean, that it was adjudged null and void?

A. The Numo Nmashie Family has been known to claim lands belonging to the Nungua stool

and particularly the La stool and this false claims have been declared null and void.”

A. High Court - Exhibit 2

 

Nii Odai Ayiku IV vs Nii Laryea Akueteh VIII [Suit No. L.326/76] delivered on 19th May 1980:

The Plaintiff in this case issued a writ of summons with an accompanying statement of claim for the following reliefs:

i. A declaration of title of the Nungua Stool, of which the Plaintiff is the present occupant, to all that piece of land situate near Dodowa and known as Katamanso lands.

ii. Recovery of possession of any portion of the said lands which the Defendant had allocated to himself contrary to Nungua custom.

iii. A perpetual injunction restraining the Defendant from allocating either to himself or any other person any portions of Katamanso or Nungua Stool lands without the prior consent of the occupant of the Nungua Stool.

E. K. Wiredu J (as he then was) held as follows: “I find in my judgment therefore that Katamanso lands form part of the Nungua Stool Lands and the Plaintiff as the Nungua Mantse has the allodial ownership vested in the stool he occupies. I therefore enter judgment for the plaintiff in respect of claim (a) as endorsed on the writ.”

B. High Court case - Exhibit 3

The Nuumo Nmashie & Ashiyie Families of Teshie/La represented by Daniel Nii Adzete Adzei and James Nii Nmai Kodjo vs Benjamina Quarshie Mensah, Agri Catle Lakeside Estate & The Nungua Stool [Suit No. FAL 363/13] delivered on 31st July 2015:

The Plaintiffs per their Writ of Summons and accompanying Statement of Claim sought the following relief among others:

i. Declaration of title to the lands described in the statutory declaration referred to herein in favour of the Plaintiffs.

 

ii. An order for recovery of possession of the land as described in the statutory declaration.

iii. Xxx”

Eric Baah J as (he then was) held as follows:

“My position is that in respect of the 29 villages identified on the judgment plam (sic) the Supreme Court has affirmed same for the Nuumo Nmashie family and it shall remain so until the judgement is set aside…

In a judgment dated as far back as 13th October 1892, J.T. Hutchinson, identified in the judgment, Exhibit 13, as the Chief Justice held that Chief Odai under King Takki of Nungua was in possession of Pinkwa land and granted him an order for recovery of possession. See: Exhibit 13. The attached plan shows the area of land disputed over which Nungua won. Exhibit 11 is an agreement on the Pinkwa land and Tema-Nungua boundary. The report confirmed the proprietorship of Nungua over the lands along the Sraha to Katamanso, Tema to Sraha and Amlahia and Pinkwa. The Plans attached to the report identify the said lands as belonging to the Nungua Stool…Having established its title on the preponderance of the evidence adduced the court hereby enter judgment for the 2nd Defendant on its counterclaim and against the plaintiffs and declare and order as follows:

a. The court declares that the second defendant owns the legal and equitable interest and title in the piece and parcel of land situate at Katamanso and part of the Nungua Stool land, measuring 2,911.53.

The Plaintiffs on the preponderance of probabilities, failed to establish their title to the subject land by reason of their failure to prove their acquisition, identity of their land and their possession or right to possession of same.”

C. Supreme Court - Exhibit 4

 

The Republic vs High Court, (Land Div) Accra, Exparte: Finali Ltd & Ors [Civ. Motion No. J5/1/2017] Delivered on 30th November 2016, SC

The Supreme Court held through Anin Yeboah JSC (as he then was) that “It is clear that the interest party did not ask for a relief of recovery of possession at the High Court. The writ was not amended to include the relief of possession. It was therefore wrong for the High Court to issue out the process of recovery of possession.”

D. Supreme Court - Exhibit 5

The Republic vs High Court (Human Rights Div) Accra, Ex parte: Kwadwo Asante Boateng aka Kwadwo Baah. Nuumo Nmashie Family per Samuel Larbi Darko, Lands Commission [Civ. Motion J5/34/2017] delivered on 29th May 2017 the Supreme Court held that:

“Let the judgment of the High Court dated 3rd November, 2016 in Suit Number HR 0111/2016, Numo Nmashie Family of Teshie etc vs Lands Commission be brought before this Court for the purpose of being quashed on an order of certiorari and the same is hereby quashed.”

DW 2 refers to the Supreme Court decision of Boi Stool & 13 others vs Daniel Addoquaye and 2 others [2023] GMJ 183 pages 54 to 99 and the Court’s attention was drawn to the case of Boi Stool vs Daniel Addoquaye & Other [Civil Motion No. J8/145/2023 delivered on 14th November 2023. For ease of reference, I set out the conclusions in the cases stated supra.

E. Supreme Court Case

Boi Stool & 13 others vs Daniel Addoquaye and 2 others [2023] 183 G.M.J pages 54 to 99 the Supreme Court per Amadu Tanko JSC held as follows:

At the heart of this appeal, is an invitation to this court to determine the scope and effect of the decision of the Court of Appeal arising from a compensation claim from which the 3rd Defendant

 

family, (described as Co-Defendant) the Numo Nmashie Family emerged victorious. The decision of the State Lands Tribunal in favour of the Nana Adu Mireku Agyemang III by Abban J. (as he then was) was reversed in favour of the Numo Nmashie Family of Teshie (3rd Defendant/Respondent herein) by the Court of Appeal coram of Apaloo C.J, Boison J.A and Wiredu

J.A (as he then was).

BACKGROUND FACTS:

What therefore started as a compensation claim, has now led to the present dispute seeking a determination of whether the Numo Nmashie Family of Teshie (the 3rd Defendant/Respondent) are owners of seventy (70) villages and land which they claim cover an acreage of over 72,454.09…

While the Defendants contend that, the Plaintiff’s action is caught by res judicata, the Plaintiffs’ also submit that, the judgment which affirms the Defendants’ alleged defence of res judicata was fraudulently procured. It is settled law that, fraud which is simply dishonesty vitiates everything. Once detected, it crumbles the most solid foundations and pales the existence of otherwise solemn judicial decisions into extinction as it throws the entire proceedings into perdition. See cases such as OKOFO ESTATES LTD. VS. MODERN SIGNS [1996-97] SCGLR PAGE 254-255; BROWN VS. QUARSHIGAH (2003-2004) 2 SCGLR 930; DZOTEPE VS. HAHORMENE III [1987-1988] 2 GLR 681; DERRY VS. PEEK [1889] 14 APP CAS 337.

We find therefore that, the Trial Court properly evaluated the evidence which evidently exposed the Numo Nmashie Family’s false claim to the seventy (70) villages and land contiguous to them. As already observed, while the witness to the Numo Nmashie Family was under cross examination he did admit that, some of the villages which were identified as belonging to them by Surveyor Lassey did not in fact belong to them. Yet, the judgment in KLU VS. AGYEMANG III (supra) has metamorphosed into a proclamation of their ownership of over 72,000.00 acres of land. Therein lies the fraud alleged by the Plaintiffs.

 

… Clearly therefore, per their own admissions, the 3rd Defendant Family knew at all material times that, several of the villages they were laying claim to, belonged to other families and stools, yet relied on the impugned judgment to buttress their claim on them. That, in our view is manifestly dishonest and untenable to say the least. The Court of Appeal should not therefore have shut their eyes on those claims which on the evidence on record had been disproved. Judicial decisions are not made to create new or radical roots of title or interest in land. They determine from the facts and evidence adduced and the application of the relevant law which of two or more contesting claims are more probable than not.

… Consequently, we have no difficulty in pronouncing the judgment in Suit No.49/80 KLU VS. AGYEMANG III (supra) as claimed by the Plaintiffs is implicitly fraudulent and accordingly, set the judgment aside. Having so held, it follows that any judgment, decision or order that is founded on the said judgment is a consequential nullity, and of no effect. Subject to our directions, we affirm fully, the findings of fact of the Trial Court that the judgment in Suit No.49/80 was procured by fraud. Accordingly, we allow the appeal and reverse the judgment of the Court of Appeal dated 26TH November, 2015 subject to such modifications and variations as set out below: “

Therefore Suit No. 49/80 which the Plaintiff has touted before me as the basis of their claim to 72,000 acres of land stretching from Teshie to Brekusu or 70 villages has been set aside based on fraud by the Supreme Court.

In the decision Boi Stool vs Daniel Addoquaye & Other [Civil Motion No. J8/145/2023 delivered on 14th November 2023: the Supreme Court speaking HL S. Torkornoo (Mrs) CJ, clarified the judgment as follows: “For the avoidance of doubt judgment of this Court is clarified as follows:

1) That the judgment in CA No. 49/80 to the extent that it purports to vest 72,000 acres of land in the Numo Nmashie family is fraudulent,

 

2) That the judgment in CA 49/80 dealt with compensation for approximately 25 acres of land at Ajankote and nothing more,

3) That all judgments, rulings, orders, writ of possession obtained on the back of the judgment in CA 49/80 and based on an entitlement of the Numo Nmashie Family to 72,000 acres of land are equally fraudulent, and consequently declared null and void.

4) That the lands commission is direct to expunge all registrations, and certificates issued to the said Numo Nmashie Family in respect of the 72,000 acres of land, and

5) That all third parties in possession and deriving title through the Numo Nmashie Family prior to the Supreme Court Judgment are not to be disposed but are to attorn tenancy to the relevant stools or families as the case may be.”

From the two Supreme Court decisions stated above the foundation of the Plaintiff’s case Suit No. 49/80 has been jettisoned. Their claim to the 72,000 acres/ 70 villages has been held to be fraudulent and set aside. The two decisions raises issues of Judicial Precedent/Stare Decisis.

[6.1.2] What is the principle of stare decisis [Latin “to stand by things decided”]

Black Law Dictionary, 8th Edition at page 14435 provides that “The doctrine of precedent, under it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation. The rule of adherence to judicial precedents finds its expression in the doctrine of stare decisis. This doctrine is simply that, when a point or principle of law has been once officially decided or settled by a ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination to a new ruling by the same

5 Bryan A. Garner

 

tribunal, or by those which are bound to follow its adjudication, unless it be for urgent reasons and in exceptional cases.6”

The doctrine of judicial precedent is predicated on the hierarchical structure of the court system. Cases delivered by superior courts (especially in common law legal systems) are binding on all inferior courts. In other words, superior courts issue decisions that are to be followed by all of the courts below them in their hierarchy. Inferior courts must be consistent with superior courts that lie above them, or at least they should distinguish the current case by explaining why there is different than the decision handed down by the superior court7.

The exceptional circumstances is that the decision of the majority panel did not reflect the constitutional edict on how the doctrine of stare decisis is to be effected. Article 129(3) of the 1992 Constitution reads:

129 (3) The Supreme Court may, while treating its own previous decisions as normally binding depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.…My lords, the doctrine of judicial precedent, with the basic rule being that “Like Cases be Treated Alike’ as already indicated, is a foundational doctrine of the common law system of administration of justice that Ghana operates. The doctrine is the thread of coherence that ensures consistency and predictability in the legal principles used to decide the myriad fact diverse cases that are brought to court. It eschews arbitrariness of a judge, and is therefore a bedrock of assuring justice to the one who comes to the seat of justice. It requires that when a higher court, and definitely the highest court, in our jurisdiction being the Supreme Court, has outlined the contours of a legal principle,

6 What is stare decisis in simple terms, Sneha Solanki, Thomson Reuters, accessed online on 18th January 2025 “…On the other hand vertical stare decisis obligates lower courts to adhere strictly to rulings made by higher or appellate courts within the same jurisdictions as they have persuasive authority.”

7 Analyzing Judicial Precedent in Ghana: Advantages & Disadvantages accessed online on 18th January 2025: The Republic v Gorman and others (2004) AHRLR 141 (GhSC 2004)

 

that decision upon a question of law is conclusive, and becomes an authoritative precedent that must stand, or stare decisis, and bind all lower courts. To quote Salmond on Jurisprudence,11th Ed 1957, Sweet and Maxwell, p.165 an authoritative precedent is "one which judges must follow whether they approve of it or not." In Article 129 (3), this common law doctrine of judicial precedent and principle of stare decisis has been elevated to a constitutional pillar on which our legal system operates, and so I do not need to discuss its development from seminal cases such as London Street Tramways v London County Council 1898 A.C. 375. To reiterate Article 129 (3), it reads:

129 (3)The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law

From the record before us, the trial judge whose decision to exclude exhibits has been quashed was doing exactly what he was required to do by reason of this constitutional edict derived from the common law doctrine of judicial precedent. He was following the principles directed by this very court in the cases of Ekow Russell and Juxon Smith, (cited supra). To quash his decision for being ‘contrary to statute’ would therefore be an exceptional a circumstance. 8” (emphasis mine)

The Supreme Court is the last court in terms of supremacy and under the rules of judicial precedent its judgment is binding. This Court is therefore bound by the Supreme Court decision in the case of Boi Stool & 13 others vs Daniel Addoquaye and 2 others [2023] 183 pages 54 to 99 and Boi Stool vs Daniel Addoquaye & Other [Civil Motion No. J8/145/2023 delivered on 14th November 2023.

1. In the result issues 1a, 1d and additional issue 4 are resolved against the Plaintiff. I resolve Issue 1b in favour of 3rd and 4th Defendants and additional issue 3 in favour of 1st and 2nd Defendants.

8 Republic vs High Court (Criminal Division 1, Accra Exparte Stephen Kwabena Opuni [Civ. Motion No. J7/20/2021, 26th

October 2021, per Torkornoo (Mrs) JSC (as she then was)

 

2. The consideration of issues 1c, additional issues 1 and 2 have been rendered moot.

3. The Plaintiff’s claim for declaration of title, recovery of possession damages for trespass and perpetual injunction fail in the result.

4. The Plaintiffs Claim for damages for trespass and the demolition of any unauthorized structures are hereby dismissed.

[6.1.2] Identity of the land in dispute and possession

The Defendant who did not counterclaim assumes no burden of proof as in the case of the Plaintiff. In Malm vs Luflerodt [1963] 1 GLR 1, it was held, (holding 1):

“The defendant in an action for declaration of title assumes a legal burden of proof only when he counter-claims for a declaration of title in his favour”.

The 3rd and 4th Defendants counterclaim for the following reliefs:

i. “A declaration that the Plaintiff herein lacks capacity to commence the instant action.

ii. A declaration that the 46.887 acre situate and lying and being at Katamansu in the Greater Accra Region of the Republic of Ghana which said piece or parcel of land is more particularly delineated on survey plan Y1197 annexed to Certificate No. TD 10578 of the 1st Defendant forms part of Katamansu and Nungua Stool lands or less.

iii. An order of recovery of possession of any portions of the land described which is encroached upon by the Plaintiff or such areas as the said Plaintiff will encroach upon during the pendency of the instant Suit.

iv. An order or perpetual injunction to restrain the Plaintiff, his family, assigns, privies or anyone claiming through the said family from further interference with the land in dispute.

v. Damages for any trespass

vi. Costs (including lawyers fees)”

 

In the case of Salomey Shorme Tefleh & Nii Amon vs Mary Korkor Hayford (substd by Stella Larbi & Comfort Decker ) case9 Dotse JSC as he then was stated as follows on the issue of identity of the land in dispute:

“The position of the law, following from Fofie vs Wusu [1992-93] GBR 877 is that it is the Plaintiff who bears the burden of establishing the identity of the land she is laying claim to. Failure to prove this identify is fatal to a claim for declaration of title. In the above case, the Court of Appeal, Coram, Lamptey, Adjabeng and Brobbey JJA (as they were then) speaking with one voice through Lamptey JA held as follows: “To succeed in an action for a declaration of title to land a party must adduce evidence to prove and establish the identity of the land in respect of which he claimed a declaration of title. On the evidence the plaintiff failed to prove the identity of the land claimed.” See also:

i. Kwabena v Atuahene [1981]GLR 136

ii. Anane v Donkor [1965] GLR SC and

iii. Bedu v Agbi [1972] 2 GLR 238, CA”

The Regional Surveyor, Survey & Mapping Division Lands Commission submitted a report and composite plan dated 6th April 2022. On 15th December 2023 Desmond Akuetteh Quaynor, Surveyor (CW1) testified and tendered in evidence the Report and Composite Plan as CE1. CW1 was extensively cross-examined by Counsel for Defendants and extracts from the ensuing exchanges is set out below:

Q. In your own assessment kindly tell the Court the nature of development on the disputed portions of the land shown to you by the parties.

A. When you look at the Defendant site plan that is the cadastral plan, on the site we were asked to show the area that was granted the Defendant. When you look on the composite plan you can clearly see black dash lines that has been indicated on the composite plan and

9 Civil Appeal No. J4/34/2011 dated 22nd February 2022

 

that is the areas that have been granted by the Defendant and on the ground some of these lands granted are developed with buildings on them.

Q. So will you agree with me if I describe the area as heavily developed with persons living there?

A. Yes my lady. Most of the areas there are developed.

Q. Can you tell this Court the size of the land being claimed by the Plaintiffs per the site plan attached to their survey instructions?

A. Looking at their site plan that was submitted to our office for the composite plan, there was no acreage included on the plan of the Plaintiffs presented to the Plaintiffs, but they have other plans they submitted to the office, one bearing the name Numo Nmashie family with the size 73,354.76 Acres.

Q. The site plan you indicated in your earlier answer as having no acreage stated on same and attached to the Plaintiffs survey instructions is titled Teshie Numo Nmashie Family land (of 1710) confirmed land and villages by Appeal Court in Civil Appeal Court No. 49/80 is that not so?

A. Yes it is.

Q. Are you familiar or have you heard of the case of Boi Stool and 13 others vrs. Daniel Addoquaye and 2 others in which suit judgment was delivered by the Supreme Court on 22nd day of March, 2023?

A.  No my lady I am not familiar with this case.

Q. Are you also familiar by the decision of the Supreme Court in the same matter (Civil Motion No. J8/145/2023) dated 14th day of November, 2023 in which the Supreme Court directed that all judgments/rulings, orders and writ of possession obtained on the back of the judgment in CA/49/80 and based on an entitlement of the Numo Nmashie Family that is the Plaintiff is 72,000 Acres of land are fraudulent and declared null and void.

 

A. I am not familiar with this but I wish to find out from the legal department in our office and find out if this is true.

Q. The Defendant attached to the survey instructions a site plan of the Nungua Stool and the Katamanso Stool is that not so?

A. Yes it is.

Q. Can you confirm that per the composite plan the Katamanso plan falls within the larger Nungua plan?

A. Yes my lady.

Q. Are you able to confirm whether the cadastral plan or land shown by the 1st Defendant falls within the Katamanso plan?

A. Yes my lady.

It instructive to note that the Plaintiff’s Counsel though offered the opportunity to cross- examine CW1 in accordance with Order 26 of CI47, he failed to apply to cross-examine CW1. What is the essence of the composite plans in land trial? Same has been succinctly stated in the case of Salomey Shorme Tefleh & Nii Amon vs Mary Korkor Hayford (substd by Stella Larbi & Comfort Decker) Civil Appeal No. J4/34/2011 dated 22nd February 202210 per Dotse JSC (as he then was):

“Before we consider the issues raised in the two grounds of appeal filed in this case, there are some procedural issues which must be dealt with for the guidance of parties, counsel and trial court Judges, whenever an order is made for a survey plan in a land dispute. The first one is of what relevance is the work of a Surveyor appointed by a court to assist in the determination of a land suit? …

It should thus be noted that, in view of the massive assistance that a court determining issues of title to land and other related and ancillary reliefs would derive from Survey Plans, care and some

10 See also Kwasi Bugya Acheampong vs Frank Osei Asibey and Kwasi Bugya Acheampong vs Kwaku Addo, Suit No: H1/29/2022, 29th June 2022 CA

 

amount of professionalism should be exhibited by Counsel whenever a Survey Plan is ordered in contested land disputes. This is because, Counsel who is on top of his brief in a land suit, will definitely take advantage to ensure that overt acts of ownership and possession are clearly delineated by the Surveyor on the plan to boost his or her clients chances of success. Thus, the request for a survey plan if properly managed, will ensure that a lot of evidence will be introduced by the party through pictorial representation as will be delineated on the plan as if the court had moved to the locus in quo.”

It is generally understood that a court is not bound by the evidence given by an expert such as the Surveyor, in this case. See case of Sasu v White Cross Insurance Co. Ltd [1960] GLR 4 and Darbah & another v Ampah [1989-90] 1 GLR 598 (CA) at 606 where Wuaku JA (as he then was) speaking for the court also reiterated the point that a trial Judge need not accept evidence given by an expert. But the law is equally clear that a trial court must give good reasons why an expert evidence is to be rejected.

The Defendants particularly 3rd and 4th Defendants were obliged to prove the identity of their lands and further establish that it is the same as the land which forms the subject matter of this suit.

Regarding the claim of the Plaintiff the 1st and 2nd Defendants were not required to do anything beyond proving possession. This they did through the evidence of its acquisition Exhibit 1 and Exhibit 2, Exhibit 3 series and Exhibit 8 photographs of developments of the land in dispute. Exhibit CE1 confirms that there is development on the land in dispute. The Plaintiff witness admitted that the 1st Defendant and Assignees are on the land hence instituting this action. Obviously, the Plaintiff could not adduce better evidence against the 1st Defendant regarding possession.

From exhibit CEI and the ensuing cross-examination of CW1, the identity of the land in dispute has been established.

 

[7] Conclusion

The Plaintiff’s claim fails entirely and Reliefs a, b, c, e, f, and g are dismissed.

3rd and 4th Defendants counterclaim

Having established its title on the preponderance of the evidence adduced beforethe court I hereby enter judgment for the 3rd and 4th on its counterclaim and against the Plaintiffs and declare and order as follows:

1. Relief I is dismissed

2. Relief ii is granted in the following terms: “I declare that the 46.887 acre situate and lying and being at Katamansu in the Greater Accra Region of the Republic of Ghana which said piece or parcel of land is more particularly delineated on survey plan Y1197 annexed to Certificate No. TD 10578 of the 1st Defendant forms part of Katamansu and Nungua Stool lands or less.

3. Relief iii is dismissed as no evidence was proffered to show the scope of encroachment and the 3rd to 4th Defendants are not entirely without a remedy if the extent of the encroachment is ascertained pursuant to the Boi Case November 2023 supra.

4. Relief iv is granted as follows: The Plaintiffs, their agents, assigns, workmen and all persons or bodies, natural or artificial, claiming through under or by them are hereby perpetually restrained from any claim or dealing with the above described land.

5. Relief v, is dismissed

Cost of GH¢70,000.00 awarded in favour of the Defendants against the Plaintiffs.