Nii Otu Commey (suing as Head and Lawful Representative of Nuumo Kwaofio Family of Sakumotsoshishi) v Samuel Kofi Ardey, Daniel Obli, Nii Ayitey and Nii Ardey

The plaintiff instituted this action against the defendants on the 21st July, 2022, claiming the following reliefs:

(a) A declaration of title to all that piece or parcel of land situate lying and being at Kaankafionaa in the Nsawan Adoagyiri Municipality of the Eastern Region of the Republic of Ghana

(b) Perpetual injunction against Defendants, their assigns, agents, workmen, representatives and all who derive title under them from entering onto the land

(c) Damages for trespass

(d) Cost including Lawyer's fees and (e) Any order or further orders as the court may deem fit. The Defendants challenged the action and counterclaimed for same reliefs in reverse.

PLAINTIFF’S CASE

Plaintiff's case is that he is the Head and Lawful Representative of the Nuumo Kwaofio family of Sakumotsoshishi. According to the plaintiff, his family is the true and lawful owners of the land in dispute which he described as:

“ALL THAT PIECE OR PARCEL OF LAND situate lying and being at Kaankafionaa in the Nsawam Adoagyiri Municipality on the Eastern Region of the Republic of Ghana and is bounded on the North-East by Plaintiff's land measuring 3,022.8ft more or less, on the South-West by Plaintiff's land measuring 4,327.9ft more or less, on the South by Plaintiff's land measuring 502ft more or less, on the South-East by Plaintiff's8 land measuring 1,885.8ft more or less and on the East by Plaintiff's land measuring 1.684.0ft more or less and containing an approximate area of 151.34 Acres or 61.24 Hectares more or less”.

He avers further that he was born and bred at Kaankafionaa and his family has over the years lived on the land and exercised overt acts of ownership by farming and leasing portions of the land to tenant farmers who are cultivating various crops until

 

in or about the year 2016 when the Defendants visited them and presented drinks and enquired from them the location of an old foot path from Domfaase to Faankyeneko which the plaintiff intimated was no longer in use and as a result of several developments including farming and sand winning. According to the plaintiff, after the Defendants' visit the defendants entered onto plaintiff's land with bulldozers and land guards and started winning sand from the land thereby destroying their crops as well as demolishing the poultry farm structure of a tenant farmer.

The plaintiff first reported to the Amasaman Police Station and had a family member of the Defendants' family arrested who was later released on a claim by him that the Defendants owned the land in dispute.

The plaintiff’s next course of action was to summon the defendants before the Pokuase Chief, Nii Onamoaonsuro. He said the dispute was before the Pokuase chief for about three to four years and he then referred the matter to the Osu Wulomo, Nuumo Gbelenfo for resolution.

Plaintiff stated further that the Osu Wulomo, and Pokuase chief visited the site of the land in dispute after which the parties were asked to appear with their boundary's witnesses. According to the plaintiff, Osu Wulomo fixed several appointments which the defendants failed to honour. The Wulomo decided not to conduct the arbitration and advised the parties to pursue legal action and indicated his willingness to testify when called upon.

The plaintiff further stated that in or about the year 2021, the defendants trespassed on the plaintiff's family land again for the purposes of selling it to third parties but was resisted. This resulted in another complaint to the Adjen Kotoku Police, this time by the defendants. However, the police instructed the parties to proceed to court for a final determination of the matter. The plaintiff says that disregarding this advice, the defendants continue to engage in actions of trespass on the land.

 

Defendants’ Case

On 5th August, 2023, the defendants filed their Statement of Defence and Counterclaim. The defendants' defence is a complete denial of the plaintiff's claim. The defendants' claim is that the plaintiff's family land is different from theirs but the two lands share a common boundary.

The defendants said their visit to the plaintiff was because they wanted to register their family land and as custom demands, sent drinks to all the families whose land share boundaries with defendants' family lands to indicate their boundaries so that the demarcation and registration would not bring any conflict. The plaintiff accepted the drinks and told the defendant that they would inform their elders to demarcate their boundaries but they did not.

The defendant denied the claim that they used bulldozers and land guards to destroy the plaintiff's farms and a member of their family was arrested by the Police. According to the defendants, the conflicts between them and the plaintiff first came before the Pokuase Chief, who sent a delegation to go with the parties to the land for each party to show its boundaries and this was done.

The defendants stated further that later the utterances of the Pokuase chief became suspicious and they also got to know that he was related to the plaintiff so they objected to his role as a customary arbitrator and the matter was referred to the case to the Osu Wulomo, Nuumo Gbelenfo.

According to the defendants, the Pokuase Chief and the Wulomo fixed a date to go with the parties to the land but later they went to the land with the plaintiff alone without recourse to the defendants and as a result the defendants decided to discontinue with the arbitration. The defendants denied the plaintiff’s trespass claim and stated that the plaintiff rather trespassed onto defendants' land and that necessitated the complaint to the Adjen Kotoku Police.

 

According to the defendants, around the year 1800 their ancestor Nii Kofi Addey commonly known as Kofi Adufufe broke the virgin forest, entered into possession and occupation of the land and started developing it without any interference from anybody. He started farming and doing all economic activities on the land and founded his village called Kofi Addey Village. The defendants described their land as:

“A piece of parcel of land situate and lying at KOFI ADDEY VILLAGE bound on the South by the DENSU RIVER, on the North by FANKYENEKOR'S PROPERTY, on the East by plaintiff's KANKAAFIO-NAA'S PROPERTY measuring 2,559.25ft more or less, on the South-East by REALITY ESTATE'S PROPERTY and on the South- West by KWASHIE NPLAY'S PROPERTY and DOMEFAASE PROPERTY

Respectively”.

The defendants further state that they have been declared owner of their land by two separate judgments; a Circuit Court Judgment of 6th October, 2021 suit No. A1/07/15 intituled, IBRAHIM AHMED VRS DANIEL OBLIE, NII ARDEY ROBERT NII

AYITEY and a High Court Judgement of 18th July, 2022 suit No. FAL 520/2015, SAMUEL KOFI ADDEY VRS SACKEY, ALLOTEY AND GEORGE ALIADZIE.

They counterclaimed for the following similar reliefs; Declaration of title to a piece or parcel of land situate and lying at KOFI ARDEY VILLAGE which is bounded on the South by the Densu river, on the North by FANKYENEKO PROPERTY, on the East by plaintiff’s KANKAFIO-NAA’S PROPERTY measuring 2,599.24 ft more or less, on the South-East by Reality ESTATE’S PROPERTY and on the South-West by KWASHIE NPLAY’S property and Dome Faase property respectively.

At the close of pleadings, the following issues were filed and set down for trial;

1. Whether or not the Defendant’s land shares boundaries with the Plaintiff's.

2. Whether the plaintiff is entitled to his reliefs.

3. Whether the defendants are entitled to their counterclaim.

 

The burden of proof in civil cases of this nature is also settled to be on the plaintiff and only shifts where he/she has been able to make a prima facie case to be the rightful owner of that specific piece or parcel of land. The defendant is then required to on a preponderance of probabilities, convince the court of his defence and counterclaim if any. See Sections 10, 11, 12, 14 of the Evidence Act 1957 (NRCD322).

In the case of IN RE ASHALLEY BOTWE LANDS case (supra), the Supreme Court explained this burden as the established principle in land law:

“That a plaintiff in an action for a declaration of title assumed the heavy burden of proof and the plaintiff must succeed by the strength of his own case and not by the weakness of the defendant’s. see also the case of Oppong Kofi and another Vrs Fofie (1964) G.L.R. 174 SC and also Banga and Others Vrs Djanie and another (1989-90) G.L.R. 6510.”

In MALM Vrs LUTTERODT (1963) Part 1, the Supreme Court stated that:

“The Defendant in an action for declaration of title assumes a legal burden of proof only when he counterclaims for a declaration of title in his favour”.

Again, in SAANBAYE BASILDE KANGBERE SUING PER HIS LAWFUL ATTORNEY THERESA KANGBERE VRS ALHAJI SEIDU MOHAMMED

PART 30 (2011) G.M.J. 68 at 69 the Supreme Court admonished that:

"It is trite that in land matters or causes, the burden of proof and persuasion remains on the plaintiff to prove conclusively on the balance of probabilities, not only the boundaries of the land to which he claims but also the identity of that land. This burden hardly shifts. Thus, unless and until the plaintiff is able to produce evidence of relevant facts and circumstances from which it can be said that he has established a prima facie case the burden remains on him." Osae and Ors V Adjeifio and Ors (2008) G.M.J. 149 at 152, 5. C. applies".

 

As submitted by learned counsel for the plaintiff, a defendant counterclaimant also has the onus to prove his title on same standard of proof. In the case of Jass Co Ltd & Another v Appau & Another [2009] SCGLR 265 at 270- 271, Dotse JSC held: "We wish to observe that the burden of proof is always on the plaintiff to satisfy the court on the balance of probabilities in cases like this... Thus, whenever a defendant also files a counterclaim then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as was used to evaluate and assess the case of the plaintiff against the defendant." Similarly, in Osei v Korang [2013] 58 GMJ 1 at 22-23 & 32, Ansah JSC stated: "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..."

With these guiding principles, this court must weigh the evidence put forward by each party in support of their case against one another and determine on a preponderance of probabilities, whose case is most likely true in the eyes of the law as established.

THE PIECES OF EVIDENCE BEFORE THE COURT

The Plaintiff testified and called three (3) witnesses; PW1 was Nii Tetteh Kobblah, PW2 was Samuel Lankai Lamptey and PW3 was Seth Adofu Mantey to testified in support of his case. Defendants also opened their Defence and called two (2) witnesses; DW1 was Isaac Odotey Allotey and DW2 was Alexander Nii Adama Sampah.

EVIDENCE LED BY PLAINTIFFS

Plaintiff, Nii Otu Commey’s evidence

In his Witness Statement filed on 04/10/2023 and adopted as his evidence-in-chief, the plaintiff, Nii Otu Commey, testified that he is the Head and Lawful Representative of the Nuumo Kwaofio family of Sakumotsoshishi, Accra, and that he only got to know defendants when they attempted to trespass on their family land after making enquiries regarding a certain old footpath and later found out that they are from Kotoku Kwarteman which is about eight (8) Kilometres from Kaakanfionaa village at Fankyeneko which comprises several villages including Mangotoshishi, Ayikoblo Dzorse, among others.

Plaintiff further stated that his forefathers migrated from Accra to Nsakina and then moved from Nsakina to their current location (Kankaafiona) and have since remained in physical possession of the land for over 200 years. He attached Exhibit B[picture of houses] series as evidence of their possession on the land.

According to the plaintiff, in his lifetime he does not know of any village in Fakyeneko called Nii Kofi Addey village neither does his family lands share any boundary with any family claiming to be owners of said village. Rather, they shared boundaries with Nuumo Abiala and Kwame Kporde family, Fofie family and Akoto Badu family. He attached copies of an acknowledgment of payment for 20.10 acres of the land from a tenant and indentures dated the 3rd of November 2001 and 24th December, 2002 marked as Exhibit C, C1 and C2 respectively to back his testimony on possession. He testified further to the acts of trespass complained of in his Statement of Claim and attached Exhibit D series being pictures of the destruction caused by the defendants on the land. He also testified of the customary arbitration stated in his claim.

He added that their land has not been a subject matter of litigation between them or their tenants and any other party and that any judgement purporting to have been obtained over the lands as put forward by the defendants does not affect their family land in any way.

Evidence of PW1, Nii Tetteh Kobblah

 

In his witness statement filed on 04/10/2023 and adopted as his evidence-in-chief, he testified as the Mankralo of Nsakina and a principal elder of Nii Tetteh Kobblah We having the consent of the Head of the Nii Tetteh Kobblah We, Nii Kpobi Kwashie to do so.

He said that the defendants unlawfully entered part of his family lands and that of the neighbours' of Kaankafionaa at Fankyenekor. He says he is a native of Nsakina, and from his childhood they farmed his grandfather's family lands in Fankyenekor and during their visit to the community he became aware of the plaintiff's family lands, a portion of which they have their villages which has now grown into a big community. He further stated that when they were young, it was known by all the residents of Fankyenekor that Nuumo Kwaofio the ancestor of the Plaintiff owned the said property in dispute and no one has ever challenged Nuumo Kwafio or his descendants on the land till this action. According to him it is also known that Nuumo Kwaafio's ancestors came to live in Nsakina and joined Tetteh Kobblah through marriage and that during their family exploits, Nuumo Kwaofio joined his grandfather and his brothers alongside other families of Nsakina to farm on Fankyenekor lands. As such all landowners from the Fankyenekor village have roots in Nsakina for burial. He only knows that the Kaankafiona lands belong to the Nuumo Kwaofio family and when war broke out between the Ga people and the Akyem people in 1940, Nuumo Kwafio's son Oblitetse Commey as a youth was instrumental in the fight and was arrested and sent to Nsawam Police Station before the case was settled.

Evidence of PW2, Seth Adofu Mantey

In his witness statement PW2, Seth Adofu Mantey stated that he is currently the farm Manager of Alomal Farms and that sometime in 2001 his grandfather Emmanuel Odoi Wooley acquired 4.55 and 2.38 acres of land from Plaintiff's family for farming purposes. He further testified they have since been in occupation of the plaintiff's land peacefully without any hindrance until around 2016 when he went to the farm and realized that some of their pawpaw trees had been destroyed by some unknown persons and he informed the plaintiff's family who indicated that they will deal with the situation. He stated that the plaintiff's family’s ownership of the Kaankafionaa lands is known by all the families in the neighbouring villages.

Evidence of PW3, Samuel Lankai Lamptey

In his witness statement filed on 04/10/2023 and adopted as his evidence-in-chief, PW3 stated that he is the Head of the Fofie family of Nsakina. He stated further that their family has since time immemorial shared boundaries with the plaintiff's family on the eastern part of their land. He said further that their family just as the plaintiff's family also migrated from Accra to Nsakina and eventually settled at their present location over some 200 years ago and the land in dispute belongs to the Plaintiff's family which is popularly known as Kankaafiona and the name Kankaafiona is peculiar to the plaintiff's family. He attached Exhibit E, a copy of the site plan of their family land showing their boundaries with the Plaintiff's family. He testified that they have also been cohabiting peacefully and been celebrating various festivities including their annual Homowo until the defendants herein started harassing them with land guards and even attempted to sell portions of their land to a Chinese national who brought bulldozers to destroy their farm produce.

DEFENDANTS’ EVIDENCE: - Samuel Kofi Ardey

The 1st Defendant, Samuel Kofi Ardey’s Supplementary Witness Statement was adopted as his evidence-in-chief on 02/04/2024 through which he tendered in a site plan Exhibit 1 and repeated his traditional evidence contained in his Statement of Defence.

2nd Defendant, Nii Oblie’s Evidence

The 2nd defendant in his witness statement stated that he is an elder of the Nii Kofi Addey family of Nii Kofi Addey Village. According to him, the virgin forest of the land in dispute was broken by their ancestor Kofi Addey commonly known as Adufode around 1800 and started farming and other economic activities on the land and founded his village without challenge from anyone.

According to 2nd defendant, the land acquired by their ancestor Nii Kofi Addey is bounded on the South by DENSU RIVER, on the North by FANKYENEKOR'S PROPERTY, on the East by plaintiff's KANKAAFIO-NAA'S PROPERTY measuring 2,559.25ft more or less, on the South-East by REALITY ESTATE'S PROPERTY and on the South-West by KWASHIE NPLAY'S PROPERTY and DOMFAASE PROPERTY.

He referred to the two judgments above- mentioned as Exhibits 2 and 3 respectively as indicating that the land in dispute belongs to their family.

Evidence of Isaac Adotey Allotey

DW1, Isaac Adotey Allotey testified that the disputed land shares a common boundary with the land belonging to his family, the Nii Allotey Akoto Badu family of Domefaase. a caretaker of the land so he is on the land. He further stated that his family has alienated portions of their family land to NOBLE REALITY LIMITED which shares boundary with the Nii Kofi Addey Village on the west and attached Exhibit 4 in proof of same.

DW2, Alexander Nii Adama Sampah’s Evidence

In his witness Statement adopted as his evidence-in-chief, DW2, testified that his family hails from Ngleshie Alata, James Town but they migrated to settle at Dome Sampahman and through farming practice crossed the River Densu and further settled at Domefaase which shares boundary with the land, subject matter of this suit. According to DW2, the defendants are descendants of Nii Kofi Addey so the Nii Kofi Addey village land currently belongs to them.

COURT WITNESS; Huseini Tanko Ibrahim, The Surveyor

 

Mr. Huseini Tanko Ibrahim was the Government Surveyor. He was appointed by the court as a witness to verify the claims made by the parties on their site plans before the court. He filed his Composite Plan together with his Report indicating the features found on the land and their owners. He indicated parties land as found on the ground and as found in their respective site plans. He testified on 29th May, 2015. When the surveyor was testifying in court he sought leave to amend the final page of his report due to a mistake of interchanging it with the last page of another site report in his office. Under cross-examination by Counsel for the defendants, he could not produce the said report whose last page he had swapped for that of the report in the instant suit but this did not prevent the eventual adoption of the report as the parties did not challenge it. He stated that due to the impact of flood, not the entire boundaries of the plaintiff's land could be surveyed. From the amendment, the new last page showed that the land in dispute falls within areas of both the plaintiff and defendant’s land as described in their individual site plans. In his words:

“The land surveyed falls in the Eastern Region. Nii Otu Commey farms, Alomal farms and Kankafionaa village all fall in the plaintiff’s site plan. Nii Kofi Addey village also falls within his site plan and not in the Plaintiff's site plan”.

In the composite plan, the surveyor hatched the area of conflict between the two lands YELLOW. He admitted under cross examination that there is an area of conflict (which he described as an area of common interest) thus:

Q: What is this common interest?

A: The common interest is either of them has crossed the common boundary to each other's land.

Surveyor is an expert witness. The law on an expert witness is expert opinions are merely to assist a judge and not binding on the court. It has been held in the case of TETTEH VS. HAYFORD [2012] 1 SCGLR 417 that “it is generally understood that a

 

court is not bound by the evidence given by an expert such as a surveyor … But the law is equally clear that a trial court must give compelling reasons why expert evidence is to be rejected. Please see also the case of Thomas Tata Atanley Kofigah & Anor. vs. Kofigah Francis Atanley & Anor. [2020] Unreported SC., (Civil Appeal) Suit No. J4/05/2019 22nd January, 2020 Pwamang, JSC.

Though there are some shortfalls as the entire land of the plaintiff’s land could not be surveyed, and the fact that a page was reattached to the already filed report, I do not think it is compelling enough to reject the entire composite plan.

To enable a court to rule in favor of one of the parties before it in such an action for declaration of title and its attendant reliefs, there is the need for the party to positively identify the land in dispute and its boundaries, mode of acquisition or prove his root of title and acts of possession. This has been copiously decided and applied in our courts. See ADJETEY AGBOSU AND 5 ORS v. EBENEZER NIKOI KOTEI AND

ORS 2003-2004 SCGLR 420 (In Re Ashalley Botwe Lands) and AKU-BROWN V LANQUAYE (J4/4/2016) [2016].

The rationale for this position of the law was succinctly stated by Ollenu JSC in the earlier case of ANANE V DONKOR /1965/ GLR 188 thus:

" where a court grants declaration of title to land or makes an order for injunction in respect of the land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty and also if the order for injunction is violated the person in contempt can be punished.

If the boundaries of such land are not clearly established, a judgement or order of the court will be in vain. Again a judgment for declaration of title should operate as res judicata to prevent the parties re-litigating the same issue in respect of the identical subject matter but it cannot so operate unless the subject matter thereof is clearly marked…”

 

For the plaintiff to prove that his family, the Nuumo Kwaofio family of Sakumotoshishi owns the land in dispute at Kaankafiona he must lead evidence on the preponderance of the probabilities as to the identity of the land, how they came to own it (root of title) and how they have exercised acts of possession of same.

On the identity of the land, the plaintiff says his land is bounded by his own lands. That is:

“ALL THAT PIECE OR PARCEL OF LAND situate lying and being at Kaankafionaa in the Nsawam Adoagyiri Municipality on the Eastern Region of the Republic of Ghana and is bounded on the North-East by Plaintiff's land measuring 3,022.8ft more or less, on the South-West by Plaintiff's land measuring 4,327.9ft more or less, on the South by Plaintiff's land measuring 502ft more or less, on the South-East by Plaintiff's land measuring 1,885.8ft more or less and on the East by Plaintiff's land measuring 1.684.0ft more or less and containing an approximate area of 151.34 Acres or 61.24 Hectares more or less”. [Emphasis mine].

He has not been able to prove their mode of acquisition of the land. He only referred to their migration to the land and how they have remained in possession and had his witnesses corroborate same. The plaintiff in paragraphs 4 and 5 of his statement of claim and paragraph 5 of his witness statement states respectively that;

4. The plaintiff says that his forefathers relocated from Accra to Nsakina and then moved from Nsakina to their current place known as Kaankafionaa and have since remained on the land for over 200 hundred years.

5. The plaintiff avers that he was born and bred at Kaankafionaa and his family have over the years lived on the land and exercised acts of ownership over the land to tenant farmers who are cultivating various crops.

5. My forefathers migrated from Accra to Nsakina and then moved from Nsakina to our current location known as Kaankafiona and have since remained in physical possession of the land for over 200 [two] hundred years. Attached and marked as Exhibit B series are evidence of our possession of land.

All three plaintiff witnesses were boundary neighbours and not members of the Nuumo Kwaofio family and did not testify to how the plaintiff's family came to acquire the land in dispute.

From the plaintiff’s evidence before this court, he has not established positively, the boundaries and the identity of the land he claims. The plaintiff and his witnesses PW1, Nii Tetteh Kobblah, PW2 Seth Adufo Mantey and PW3, Samuel Lankai Lamptey gave inconsistent evidence with regard to the boundaries and identity of the land in dispute. The plaintiff in both his writ of summons and statement of claim stated that his land, the subject matter of dispute, is bounded on all sides by his own lands. This contradicts what he said in paragraph 7 of his witness statement. This portion of his responses under cross-examination is indicative of this:

“7. So far as I am concerned, since my lifetime I have not known any village in Fankyeneko called Kofi Addey village, neither do we know of Nii Kofi Addey family land in Fankyenekor or share any boundary with them. Our family the Kaankafionaa since time immemorial have shared boundaries with Nuumo Abiala and Kwame Kporde family, Fofie family and Akoto Badu family”.

However, plaintiff's witness, PW1 Nii Tetteh Kobblah states under cross-examination that his family land shares a common boundary with the plaintiff's land. Similarly, plaintiff witness PW3 Samuel Lamptey in paragraph 6 of his Witness Statement said:

6. "I would like to state that since time immemorial we have been sharing boundaries with Plaintiffs. They have notoriously exercised acts of possession and ownership without any let or hindrance from any quarters"

The plaintiff under cross-examination as to the boundaries answered as follows:

 

Q. In an answer to a question put to you, you said you were seven (7) families from Nsakina who migrated to Fankyenekor, do you still stand by it.

A. That is so.

Q. Name the alleged 7 families.

A. Nuumo Kwaofio, Nuumo Tetteh Kobblah, Nuumo Ayi Kobblah, Nuumo Kwashie Lartie, Nuumo Kommey Jeefine, Nuumo Kpordie Tseh Ago and Nuumo Tsieku.

Q. Which of the seven (7) families do you share boundaries with?

A. We share boundary with Nuumo Tetteh Kobblah.

Q. So were you deceiving the court when you said in paragraph 4 of your Witness Statement that your land does not share boundary with any other land except yours?

A. If it is a typographical mistake, I can't tell but we share boundaries with lots of families. [Emphasis mine].

This last response exposes the Plaintiff as having treated the court without candour on this issue. Earlier, Tetteh Kobblah in his witness statement testified that his family is at Nsakina and said when he was young they were going to Fankyenekor. How did he become a boundary sharer with the plaintiff’s family land as demonstrated in the interaction above? Under cross-examination he testified thus:

Q. You agree with me that Nsakina Village is different from Kaankafionaa village, is that not the case.

A. In terms of the different names I agree with you, but we are one family.

Q. Is this your Tetteh Kobblah We at Fankyenekor or Kaankafionaa Village.

 

A. Tetteh Kobblah We share boundary with Kaankafionaa. It begins from where Densu River is and ends at where they have constructed the road where mango trees have been planted. [Emphasis mine].

Samuel Lamptey (PW3) had a similar revelation under cross examination. He said:

Q. In paragraph 5 of your Witness Statement you said "We share boundary with the plaintiffs. On the eastern portion of our land they share boundary with our family (the Fofie Family) on the Western portion of Plaintiff land which is the subject matter of the suit, is that the case.

A. Yes, the only issue is that we share boundaries with them. From Domefaase to Fankyenekor, the land is on your right side but from Fankyenekor to Domefaase it is on your left.

Q. You said in the same paragraph 5 that you have attached Exhibit E as a copy of your family's site plan showing your boundary with the plaintiff family, is that the case.

A. That is so.

Q. Now have a look at "Exhibit E" is this the site plan of your family land which you say shares boundary with plaintiff's family land.

A. That is so.

Q. On the Northern part of your site plan Exhibit E there is nothing to show that your family land shares a boundary with any land.

A. Those that we share boundaries with all indications are on the site plan which is yet to come out. [Emphasis mine].

There have clearly been some inconsistencies in the identity of the boundaries of the land in dispute as put forward by the plaintiff.

 

Defendant’s Counsel has urged on the court, the authority in OPANYIN KWEKU DUAH AND ORS V PETER KOFI OKYERE AND ORS [2023] G.M.J. 182. At page

154 the Supreme Court stated that:

“…The law is that obvious inconsistencies in evidence when put together can blight credence to evidence”.

Counsel also put forward the case of OBENG V BENPOMAA /1992-1993] PART 3 GBR 1027, CA. to the effect that “inconsistencies though individually colourless, may cumulatively discredit the claim of the proponent of the evidence”.

For the defendant, it is trite learning that once he has counterclaimed he puts himself in the position for the same burden laid upon a plaintiff who asks for a declaration of title. See KANNIN V KUMAH & OTHERS [1959] GLR 54. Also in the case of BANK OF WEST AFRICA LTD VRS ACKUN (1963) 1 GLR 17 the court held as follows;

"the onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof."

The Defendants herein in both the statement of defence and 1st defendant's witness statement maintained that they are owners of the Nii Kofi Addey Village passed down to them from their ancestor Kofi Addey commonly known and called Kofi Adufude who broke the virgin forest and established his village and that the said village shares a common boundary with plaintiff's land at Kaankafionaa.

In proof of their root of title, mode of acquisition, and acts of possession, they tendered in a site plan Exhibit 1. Their witnesses’ testimonies of their boundaries with the said land is also consistent. This does not however dispose of the burden of ascertaining the land in dispute better than the unchallenged testimony of the Court Witness who visited the land together with agents of the parties and made findings in his report.

 

The defendants’ claims on their site plan were corroborated by Exhibits CE1 and CE2

(Surveyor’s composite plans and report).

Further, defendants exhibited two court judgements to show that their land exists as a matter of public record and they had been adjudged owners of same all this while.

In suit Nº A1/07/15, IBRAHIM AHMED V DANIEL OBLIE & 2 ORS wherein defendants herein were also defendants, Her Honour Diana Adu-Anane of the Circuit Court dismissed a claim of trespass brought against the defendants and held that the defendants had not trespassed onto one Nii Otro family land because it was different from the defendant’s Nii Kofi Addey family land.

Similarly, in the decision of the Stephen Oppong J (as he then was) delivered on the 18th day of July, 2022 in SUIT NO.: FAL 520/2015 SAMUEL KOFI ADDY V SACKEY & ORS, the 1st defendant herein being plaintiff therein was declared owner of a parcel of land as the same Nii Kofi Addey location. In this suit, they had exhibited a land title certificate (Exhibit B) backing their oral traditional evidence as they have recounted in this court without challenge. The only contention of defendants therein was that the title certificate was procured by fraud. This could not be substantiated and the court dismissed same and granted all the reliefs of the plaintiff therein with damages of GHC50,000 and cost of 10,000 in their favour. The learned Judge delivered himself thus:

“From the evidence available on record, the Defendants did not challenge the fact that Exhibit "B" is referable to the land in dispute. What they sought to say was that Exhibit "B" was procured by fraud. Clearly this therefore shifted the burden on the Defendants to prove the allegation of

fraud that the Plaintiff perpetuated in procuring Exhibit "B" the land title certificate…

 

From the totality of evidence on record, I am satisfied that on the preponderance of evidence, the Plaintiff has proved that he is the owner of the disputed land and therefore resolve the first issue as such”. [Emphasis supplied].

This puts to bed the plaintiff’s claim that the defendants do not own any lands in that area and that he and his family had never heard of or known any such village in Faankyeneko. The defendants did not appeal against any of the decisions, circuit Court or the High Court.

From the foregoing, there is a Nii Kofi Addey Village in that area and it would be reasonable on a preponderance of probabilities to hold that the defendants’ land shares boundaries with that of the plaintiffs at Kaankafionaa. And I so hold.

The next issue for determination is whether or not the defendants trespassed unto plaintiff's family land. To resolve this, the court must ascertain which party’s evidence lends more credence to their ownership of that part of the land subject matter of dispute and who has crossed the area of conflict on the composite plan Exhibit CE1 onto the other’s part.

The plaintiff here carries the initial burden of proving his claim that the defendant has trespassed onto his land. He must show this by indicating with near exactness, the identity of his land but has not been able to describe the boundaries of his land but could not. It is difficult to ascertain the land in question when the plaintiff has not been able to identify the boundaries of his land yet complains that it has been trespassed onto.

Fortunately, the uncontested Exhibit CE series and the testimony of the Court Witness aids the court to identify the land so described. From his responses under cross- examination by Counsel for the Defendants, he indicated as follows:

Q. When you went with the parties to the land you saw only one farm, the Alomal Farm. Is that not the case.

 

A. That was what was shown to us.

Q. Can you tell the Honourable Court why on the composite plan you have located two Nii Otu Commey Farms when there are no such farms on the land.

A. From the instructions of the defendant, instruction number 3 (reads to court) Guided by this instruction, defendants were asked to show what was any feature or structure on the area of their interest. What I was shown on the ground has been put across for both plaintiff and the defendants guided by instruction Number 3.

Q. So you want this court to believe that if the instructions say indicate features on the land and the owners of those features and if you did not find any farm by Nii Otu Commey because you have been asked to indicate the owners of features on the land you have to manufacture one.

A. We do not manufacture things on site, we present them by the Composite plan. On the said day of the survey, both parties were duly represented by not less than five men and each party had his turn. They are here, they can attest to it. To show us their entire land and what is on it. And whatever they showed us as a court witness is what we have duly represented. …

Q. About two-thirds (2/3) of Kankafiona village is within the area of conflict and this is also completely within defendants' land both on the ground and in their site plan is that not the case?

A. Yes, the area described as two thirds (2/3) of Kankafionaa village falls in both the defendants' and the plaintiff's lands on ground and on site plan too. [Emphasis supplied].

On these, Counsel for the Defendants has argued that:

 

“The surveyor has admitted under cross-examination that two Nii Otu Commey Farms which he located in the area of conflicts do not exist because there were no such farms on the land. They saw only Alomal farms on the land”.

This cannot be true as the emphasised boldly phrases from the testimony of the Surveyor above indicates otherwise. He testified that the instructions which led him to indicate the farms counsel complains of came from the Defendants’ survey instructions and could not reasonably have been done intentionally to favour his opponent. More so, if the defendants had an issue with the plotting of the Nii Otu Commey Farms on the composite plan, the not less than five (5) representatives they sent on the ground and who were in court during his testimony had every opportunity to raise an objection through their principals.

It is trite law in civil cases that where a party does not specifically deny facts put forward by their opponent, they admit same unless evidence was led to counter that version of the facts. See SECTION 119, EVIDENCE ACT, 1975 (NRCD 323) and ORDER 11 RULE 13, HIGH (COURT CIVIL) PROCEDURE RULES, 2004 (CI47). It is rather admitted by the defendants that the said Nii Otu Commey Farms exist and were at the locations indicated on the composite plan.

The Farm Manager for Alomal Farms testified for the plaintiff herein as his tenant whose farm was trespassed on destroying their pawpaw trees. The Surveyor again under cross-examination said as follows:

Q. More than half (½) of Alomal Farm is within the area of conflict is that not the case?

A. Yes.

Q. And this is also completely within defendants' land both on the ground and on their site plan, is that not case?

A. That area is also in the plaintiff's land and the defendants' land also.

 

From the evidence put before the court, it can reasonably be found that;

The Defendants’ Nii Kofi Addey Village (family) lands exist and share boundaries

with the Plaintiff's Kaankafionaa lands all within the Faankyeneko cluster of villages.

1. The plaintiff’s land as described by his site plan and representatives during the survey visit, sit within the defendant’s land.

2. A greater part of the plaintiff’s land (particularly the Alomal Farms which suffered the alleged act of trespass in question) falls in the area of conflict hatched YELLOW on the unchallenged composite plan.

On a preponderance of probabilities, the claim that the land in dispute belongs to the defendant Nii Kofi Addey family is more probable than the contention of the plaintiff that it belongs to the plaintiff's Nii Otu Commey family. It appears that while the parties share a common boundary, the plaintiff has alienated and dealt with his land beyond the boundary and entered onto that of the defendant without challenge from the defendants or anyone for such a long time that they had become the defacto owners of that area.

This raises a question on possession and this court is empowered and mandated to raise and deal with any issue that it deems to be germane to the proper and final determination of the case and to do substantial justice to all parties involved. In the case of FATAL V. WOLLEY [2013-2014] 2 SCGLR 1070 at page 1076, Georgina Wood CJ (as she then was) put it across that:

“... it is indeed sound basic learning that courts are not tied down to only the issues identified and agreed upon by the parties at pre-trial … If a crucial issue is left out, but emanates at the trial from the pleadings or the evidence, the court cannot refuse to address it on the ground that it is not included in the agreed issues”. See also, ENVIRONMENTAL DEVELOPMENT GROUP LTD v PROVIDENT INSURANCE CO. LTD AND 2 ORS [2020] 165 GMJ 39 SC”.

 

In land law, possession in itself can give good title against anyone except one with a better legal title or the “true owner”. The learned Ollennu J (as he then was) in the notorious MAJOLAGBE V. LARBI (1959) GLR, 190 is instructive on this:

"... The Plaintiff's proof of is mere possession of land is sufficient for him to maintain trespass against anyone who cannot show better title…

The law is also clear that a person in possession can acquire title over the true owner where the owner had become aware of their overt acts of possession and not challenged or checked same for a period of 12 years - SECTION 10, LIMITATION ACT, 1972 (NRCD 54). This position has however further evolved. The Supreme Court in GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD. V.

HANNA ASSI (2005-2006) SCGLR 458 held that the adverse possessor’s right under section 10 of the Limitation Act can be relied on to maintain an action for a possessory title. [Emphasis supplied].

Can the plaintiff herein be deemed properly, an adverse possessor? Has he reached the twelve years 12 years long undisturbed open possession threshold required to be an adverse possessor? I am of the considered view that the answer is in the affirmative.

From the evidence before the court, Plaintiff’s acts of dealing with that portion of the land beyond their boundary as shown from the evidence before this court, commenced in 2001 (when the lands for Alomal Farms was leased to PW3’s grandfather Emmanuel Odoi Wooley). This possession has been enjoyed continuously and openly from 2001 to 2016 when the first challenge came and destroyed their pawpaw trees. This is fifteen (15) years of possession by the Alomal Farms and its grantor, the Plaintiff's family herein adverse to the defendant true owner’s interest.

It appears that the defendants herein had always known they shared boundary with the plaintiff’s land at Kaankafionaa but had not taken cognisance of any of the plaintiff’s dealings beyond the boundary or that they had acquiesced and not challenged them until when they were ready to register their lands in 2016. They visited the plaintiffs to ascertain this boundary. Upon realising that the plaintiff has gone beyond it, they begun to challenge their possession. Unfortunately, this was done with force destroying the plaintiff’s tenant’s farm in the process.

From the above discussion, it is the holding of this court that the defendants are the true owners of the land in dispute but also that the plaintiff has a valid possessory title over the area of the land already reduced into his possession and that of people claiming title under him in that area only.

The defendants have trespassed onto such area already in the possession of the plaintiff but cannot reasonably be held in damages for same as they were acting under the understanding that it is properly their land.

In view of the discussions above, Judgement is therefore entered for the defendant counterclaimants on the following reliefs; Declaration of title to a piece or parcel of land situate and lying at KOFI ARDEY VILLAGE which said land is bounded on the South by the Densu river, on the North by FANKYENEKO’S PROPERTY, on the East by plaintiff’s KANKAFIO-NAA’S PROPERTY measuring 2,599.24 ft more or less, on the South-East by Reality ESTATE’S PROPERTY and on the South-West by KWASHIE NPLAY’S property and Dome Faase property except the parts already granted to third parties by the Plaintiffs and the defendants acquiesced. Perpetual injunction against the plaintiffs, their workmen, assigns and anyone claiming through them from interfering with defendant’s use of the land.

Cost of GHC40,000.00 against the plaintiffs for the benefit of the defendants.