Kolog Duun of Kolog’s House, Datuku v Boar Dok, Didome Boar, Danzi Teng & Tindana of Datuku

Introduction

1. This matter was commenced in this court on 5th May, 2021. By an amended Writ of Summons and Statement of claim filed on the 1st day February, 2022, the Plaintiff claims against the Defendants as follows:

 

a. A Declaration that all that Piece or Parcel of farmland situate at Datuku bounded to the North sharing boundaries with Tong Yin, to the South sharing boundaries with the Gurimi Kolog, to the East sharing boundaries with the Kulem family and sharing boundaries to the West with the Soozie’s Family the Defendants in this suit.

b. Vacant Possession of the land.

c. Perpetual injunction restraining the Defendants, their Servants, Assigns, Agents and whoever claims through them from interfering with the Plaintiff’s enjoyment of the land.

d. Cost including Solicitor’s fees.

2. Also, on the 19th day of April, 2022, the Defendants filed their amended of Statement of Defence and counterclaimed against the Plaintiff as follows:

a. A Declaration that all that piece or parcel of farmland situated at Datuku bounded to the North sharing boundary with Tong Yin, to the South sharing boundary with the Gurimi Kolog, to the East sharing boundary with the Kulem family and sharing boundary to the West with the Soozie’s Family the Defendants in this suit, is the ancestral farm land of the Defendants of which the 3rd Defendant is the current Tindana of Datuku and a descendant of the 1st Tindana of Datuku (Yaab Tasuu).

b. Vacant possession of the said land.

 

c. Perpetual injunction restraining the Plaintiff, his servants, assigns, agents and whoever is claiming through him from interfering with the Defendants enjoyment of the land.

d. Costs.

Plaintiff’s Case

3. The Plaintiff avers that he is the descendant of Naabil who discovered the disputed land more than two centuries ago with Pinabsiee. Plaintiff avers that the relationship between Naabil and Pinabsiee continued cordially resulting in Naabil giving out his daughter to Pinabsiee in marriage thereby becoming the In-law of Naabil. Plaintiff avers that following this Pinabsiee gave out the disputed land to Naabil without any conditions and or embumbrance. Plaintiff avers that the Defendants’ ancestors (grandfather) equally had their portion of the land sharing boundaries with the Plaintiff to the West of the disputed land.

4. Plaintiff avers that Naabil who is Plaintiff's great grandfather exercised acts of possession and control over the disputed land until his demise. Plaintiff avers that after the demise of Naabil, his grandfather Sapambil exercised total control over the disputed land for almost a century without let or hindrance from any person or persons whatsoever until he passed on. Plaintiff avers that following the death of Sapambil, the disputed land came under the control and possession of Plaintiff's father, Duun for over 50 years. Plaintiff avers that the Plaintiff’s

 

father Duun died in the year 1997 and the Plaintiff has since been in control and possession of the disputed land to the exclusion of anybody.

5. Plaintiff avers that in the year 2006, the 2nd Defendant’s father laid adverse claim to the disputed land and the matter was resolved in favour of the Plaintiff by the Chief of Datuku and his elders having traced the ownership of the land to the Plaintiff’s ancestors. Plaintiff avers that thereafter the Plaintiff continued to exercise the control and ownership of the land by either cultivating the land himself or letting other persons including the Defendant’s family to cultivate same. Plaintiff avers that in recent past, the Assemblyman for Duusi- William and one Akurugu from Loar equally cultivated the disputed land with the consent and permission of the Plaintiff. Plaintiff avers that the Plaintiff has demonstrated these acts of ownership and possession of the disputed land since time immemorial until in the year 2021 when Defendants laid adverse claim to same and were busy putting up a structure on the land. Plaintiff avers that the Defendants evinced an intention not to stop their acts of trespass unless compelled by this Honourable Court. Plaintiff avers that the Defendants have no defence to his claim or at all. Wherefore, Plaintiff prays for the above-stated reliefs.

Defendants’ Case

6. Defendants vehemently denied Plaintiff’s claim and say that he is not entitled to his claims at all. Defendants aver that Yaab Tasuu was the first Tindana who discovered Datuku lands, and that Naabil has never settled in Datuku and therefore has no farmland there. Defendants aver that Naabil was settled in

 

Tindongo where he died and was buried there. 3rd Defendant avers that since his ancestor Yaab Tasuu discovered the Datuku lands centuries ago he and his descendants have settled various families including the Plaintiff and the Defendants on the Datuku lands without any let or hindrance from anybody including the Plaintiff till date. 3rd Defendant avers that the land in dispute is lying and situate at Datuku which falls within his jurisdiction and authority as the current Tindana of Datuku. 3rd Defendant avers that there can be no valid grant of said land in dispute to any would-be developer without his knowledge, consent and concurrence. 3rd Defendant avers that the Plaintiff and the 1st and 2nd Defendants are settled on different lands in Datuku both of which settlements/lands are within his ancestral lands over which he is the current Tindana/Allodial owner. 3rd Defendant avers that nobody has ever challenged any of his ancestors or himself as the current Tindana of Datuku over their authority and possession over Datuku lands till date.

7. Defendants aver that their grandfather Nahu married Pinabsiee’s sister called Kuuma who gave birth to Yelb. Defendants aver that Pinabsiee went to Nahu and asked him to get a boy to be taking care of his animals; Nahu told Pinabsiee that he would give his own nephew called Yelb to be helping him. Defendants aver that when Pinabsiee came he met Yaab Tasuu who was already on the land, but Pinabsiee went and settled on a different portion of the land, but recognized Yaab Tasuu as the Tindana of Datuku. Defendants aver that the portion on which Pinabsiee settled is distinct from the land the Tong Yin family gave to Plaintiff’s grandfather Sapambil to settle.

 

8. Defendants aver that Sapambil was given land by the Tong Yin family of Datuku after he was sacked from the Datuku Chief’s Palace and that has been the land Plaintiff inherited from his father Duun. Defendants aver that the land Tong Yin family gave to Plaintiff grandfather Sapambil to settle is different from their ancestral (Pinabsiee) land.

9. Defendants aver that since the death of Plaintiff’s father there has been peaceful co-existence in the village till some time in 2006, when Plaintiff reported a false dispute between him and Boar i.e. 2nd Defendant’s father to the Datuku Chief for resolution. Defendants aver that the Datuku Chief and his elders told Plaintiff and Boar that they do not want disturbances in the community and therefore each party should go back and remain where his ancestor was originally settled. Defendants aver that when the matter went before the Datuku Chief it was resolved that each party to should go back and continue to farm on his portion he was originally given to settled.

10. Defendants aver that where Hon. William built his private school is part of Sapambil farm land (Plaintiff grandfather) farm land and not part of the Defendants family farmland. Defendants aver that the descendants of Pinabsiee have been in possession of their ancestry lands since time immemorial. The Defendants therefore counterclaimed against the Plaintiff for the reliefs as stated above.

Issues for Determination

 

11. The issues for determination in this case are as follows:

a. Which of the conflicting traditional history or evidence of the Plaintiff and Defendants is more probable or should this court prefer to the other?

b. Whether or not the land in dispute belongs to the Plaintiff or Defendants.

c. Whether or not the Defendants are entitled to their counterclaim.

Burden of Proof

12. The obligations or duties of parties to lead evidence; and to persuade the court, as to the credibility of their allegations are covered both by statute and plethora of authorities. Under sections 10, 11, 12 and 14 of the Evidence Act 1975 (NRCD 323) the burden of who has the responsibility to lead evidence is clearly set out. These are burdens of leading evidence and the burden of persuading a tribunal by leading credible evidence. Sections 11(1)(4) and 14 of the Evidence Act 1975 (NRCD 323) provides as follows:

11(1) For purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

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

 

14 Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.”

13. There are two parts to the duty to discharge the burden of proof. Thus, the twin burdens of proof and standard of proof contained in the provisions are: (a) There is the burden of leading evidence to back an assertion; and (b) the burden of persuasion i.e. leading evidence of sufficient standard to persuade a tribunal to rule in one’s favour. See the case of Isaac Alormenu vs. Ghana Cocoa Board, Civil Appeal No. J4/86/2022, delivered on 8th February 2023.

14. In the case of In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] SCGLR 420, at pp. 464-465, Brobbey JSC explained the law on burden of proof thus:

“The effect of sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything: the Plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate

 

the entire case on the basis of evidence before the court, which may turn out to be only the evidence of the Plaintiff.”

15. In Ackah v Pergah Transport Ltd., 2010] SCGLR 728, Sophia Adinyira JSC stated on the burden of proof at p.736 as follows:

“It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witness, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the minds the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable that its non-existence. This is a requirement of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”.

See also the following cases on the burden of proof: Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G.M.J, page 177, Klah V. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139,Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537

Evaluation of Evidence, Discussion of Issues and Legal Analysis

 

16. Plaintiff testified himself and called two witnesses. The 3rd witness of the plaintiff did not testify nor his witness statement adopted as hearsay evidence. The defendants also testified through the 2nd and 3rd defendants and called one witness. The Plaintiff tendered in evidence a photograph of the remains of 2nd defendant’s dwelling house on the land in dispute as Exhibit A. He also sought to tender in evidence an alleged agreement or ruling in his favour by the chief of Datuku regarding the land in dispute but those documents were declared inadmissible and marked as rejected. This is because the land covered by the alleged agreement or ruling was not described and nothing shows those documents relate to the land in dispute.

17. I will now proceed to address the following issues together: Which of the conflicting traditional history or evidence of the Plaintiff and Defendants is more probable or should this court prefer to the other? And whether or not the land in dispute belongs to the Plaintiff or Defendants. The evidence of the parties in this case borders on traditional evidence. This is because both parties referred to events or matters that happened in some time past concerning the land in dispute before and after their birth. What then is Traditional Evidence? In re Asere Stool: Nikoi Olai Amontia lV (substituted by Tafo Amon ll) v Akotia Oworsika lll (substituted by Laryea Ayiku ll) [2005-2006] SCGLR 637, the court explained Traditional evidence as follows:

“By its nature, traditional evidence is hearsay evidence. It is evidence of the history of events which happened some time past, concerning a person’s pedigree, origin, migration, land, family, stool, etc passed on generally by oral tradition from generation to generation.”

 

18. Also, in Ricketts v Addo (Consolidated) [1975] 2 GLR 158, the court stated as follows:

“Traditional evidence in causes relating to pedigree, inheritance, boundaries of land and family land transactions, etc. was admissible as an exception to the hearsay rule. The relator of such evidence is entitled to testify not only on matters occurring before his birth but also to matters which had happened during his time.”

19. In Hilodjie v George [2005-2006] SCGLR 974, In what appeared to be an elaboration of what constitutes traditional evidence, the Supreme Court stated in that case (in holding 1) that:

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

20. In Adjeibi- Kojo v Bonsie [1957] 3 WALR 257, PC , the court stated as follows:

“The most satisfactory method of testing the traditional history is by examining it in the light of such more recent facts as can be established by evidence in order

 

to establish which of two conflicting statements of tradition is more probably correct.”

21. See also the following authorities on Traditional evidence: Ago Sai and Others v Kpobi Tetteh Tsuru lll [2010] SCGLR 763, In re Taahyen & Asaago Stools; Kumanin ll v Anin [1988-89] SCGLR 399, Adwubeng v Domfeh [1996-97] SCGLR 660, Kodie Stool; Adowaa v Osei [1998-99] SCGLR 23and In re Krobo Stool; (No 1); Nyamekye (No 1) v Opoku [2000] SCGLR 347.

22. From the evidence, the plaintiff claims his great grandfather Nabil was the first person to discover and settled on the land in dispute. However, in his pleadings he stated that Pinabsiee discovered the land with Nabil but Pinabsiee gave out the disputed land to Naabil without any conditions and or encumbrances. It is the plaintiff’s case that following the demise of Naabil the disputed land passed on to his grandfather Sapambil. It is his case that Sapambil passed on and the land devolved to his father Duun and after the death of his father he continued to exercised ownership and control over the dispute land.

23. It must be stated that even though plaintiff says Naabil discovered the land in dispute, PW1- Charles Kolog testified that it was Naabil’s grandfather who discovered and settled on the land first. Thus, during cross examination of PW1-Charles Kolog by counsel for defendants on 13th May 2024, the following transpired:

Q. Between Naabil and Naabil’s father who you do not know, which of them settled on the disputed land?

 

A. Naabil’s grandfather.

Q. So you would agree with me that it was not Naabil who discovered the disputed land per your own statements?

A. If your grandfather discovered land and he is no more, it is handed over to the children, that was why the land in dispute was handed over till it gets to the plaintiff.

Q. If your grandfather discovered something like a land you cannot turn to say that you discovered the land?

A. It is the grandfather who still discovered the land.

24. Plaintiff in paragraphs 3 to 5 of his statement of claim or subject matter of claim filed on 1st February, 2022 sated as follows:

“The Plaintiff avers that he is the descendant of Naabil who discovered the disputed land more than two centuries ago with Pinabsiee. Plaintiff avers that the relationship between Naabil and Pinabsiee continued cordially resulting in Naabil giving out his daughter to Pinabsiee in marriage thereby becoming the In-law of Naabil. Plaintiff avers that following this Pinabsiee gave out the disputed land to Naabil without any conditions and or embumbrance.”

Also, in paragraphs 2, 7 and 9, of Reply to statement of defence filed on 23rd May, 2022, Plaintiff stated as follows:

 

“Plaintiff says that Yaab Tasuu was a farmer who first settled in Duusi and was later invited by Pinabsiee who discovered and settled in Dakuto. Pinabsiee was a hunter who invited Yaab Tasuu a farmer for a symbiosis relationship…..

… Plaintiff adds that Yelb married Pinabsiee’s granddaughter from Tongo and gave birth to Soozie.

…….Plaintiff says that Pinabsiee was the first to settle on the land in Datuko and this is signified by the fact that Pinabsiee is the one who pours libation as sacrifice to the land.”

25. The defendants on the other hand claim that Yaab Tasuu was the first Tindana who discovered Datuku lands, and that Naabil has never settled in Datuku and therefore has no farmland there. It is defendants’ case that Pinabsiee came to meet Yaab Tasuu who was already on the land, but Pinabsiee went and settled on a different portion of the land, but recognized Yaab Tasuu as the Tindana of Datuku; and that the portion on which Pinabsiee settled is distinct from the land the Tong Yin family gave to Plaintiff’s grandfather Sapambil to settle. However, during cross examination of 2nd defendant by counsel for plaintiff he testified that it was Pinabsiee who discovered Datuku lands including the land in dispute. Thus, during cross examination of 2nd Defendant by counsel for Plaintiff on 17th September 2024, the following ensued:

Q. Before you became an adult, do you know who is in control of that land?

A. Yes.

Q. Who were these people?

A. Pinabsiee.

 

Q. Is that to say Pinabsiee was the first to discover the land?

A. Yes, the land in dispute belongs to Pinabsiee.

Q. Is Pinabsiee the first to discover the land?

A. Yes.

Q. Is Pinabsiee the same person as Yaab Tasuu?

A. No my lord.

……..

Q. The land in dispute, has your father ever settled on any portion of it?

A. The whole land belonged to Pinabsiee and he gave a portion to our grandfather to settle.

Q. What is the name of your grandfather?

A. Naoh.

Q. Are you aware that the plaintiff was the one who settled your father on the portions of the land?

A. The land belonged to Pinabsiee. So it is not possible that plaintiff would have given the land to my father.

26. On 24th February 2025, during cross examination of DW1-Wobug Tobil by counsel for Plaintiff, the following transpired:

 

Q. You agree that your grandfather is Pinabsiee?

A. Yes.

Q. You also agree with me the Pinabsiee your grandfather settled Plaintiff grandfather Nabil on the land in dispute?

A. The land was rather given to Sapambil.

27. From the above evidence of the parties, the parties are at "ad idem," or "of the same mind” that Pinabsiee settled on the Datuku lands and gave portions to the great grandfathers of the Plaintiff, and 1st and 2nd Defendants. While Plaintiff claims Pinabsiee gave a portion of the lands to Naabil, Defendants claim the land was given to Sapambil. This court therefore found as fact that it was Pinabsiee who settled on the Datuku lands first and gave portions to Plaintiff, and 1st and 2nd defendants’ great grandfathers to settle on.

28. From the evidence, this court also found as a fact that Plaintiff and defendants have farm lands in Datuku as it was passed over to them from their great grandfathers. The Plaintiff and Defendants share a boundary and the instant case between them relates to the boundaries of their lands. While Plaintiff claims the boundary between them is marked by thorn trees, the Defendants claim the boundary between them is marked by a foot path leading to the mining area called “Tarkwa". This means that it is not all the land settled on or occupied by the plaintiff’s fathers or defendants’ fathers is in dispute but a portion where 1st and 2nd Defendants want to build.

 

29. Indeed, plaintiff claims the boundary between them is marked by thorn trees. Thus, during further cross examination of the Plaintiff by the counsel for the Defendants on 6th October, 2023, the following transpired:

Q. The land you settled on, did you share boundaries with the defendants?

A. Yes.

Q. What’s your boundary mark between you and the defendant?

A. Thorn trees,

Q. Do you still have those trees there?

A. Yes.

Q. You agree with me that around where you settled, defendants also have a land that share boundaries with you?

A. Yes, the land was for some people and it was given to them to farm, that is why I am asking them to vacate the land. One of the defendants’ fathers was settled there and I asked him to vacate the land and he complied.

30. The 2nd defendant also testified in his evidence in chief regarding the boundary between them as captured in paragraph 24 of his witness statement as follows: “I say that clearly as indicated by the plaintiff himself, 1st defendant’s dwelling house is situate on his ancestral family farmlands which shares boundary with the plaintiff’s farmland to the East by a foot path leading to the mining the area called “Tarkwa“

 

31. The duty of this court is to examine the conflicting evidence of the parties against positive and recent acts as well as undisturbed possession. It is a trite learning that facts established by matters and events within living memory especially evidence of acts of ownership and possession must take precedence over mere traditional evidence. Besides, where there is a conflict of traditional history the best way to find out which side is probably right is by reference to positive and recent acts in relation to the land. See the cases of Adjei v Acquah [1991] 1 GLR 13, Kwesi Yaw v Kwaw Atta [1961] GLR 513 and Hilodjie v George [2005-2006]

SCGLR 974.

32. Plaintiff claims his father gave the disputed land to 2nd Defendant’s father to put up a residential facility on the land. He also claimed 2nd Defendant’s father laid adverse claims to the land and he ejected him from the land after the chief of Dakutu ruled in his favour in 2006. However, in paragraph 14 of the Plaintiff’s amended reply filed on 23rd May, 2022, he stated that “…when the Dakuto Chief found in favour of the Plaintiff, the 2nd Defendant’s father vacated the land and brought a fowl which was sacrificed and as tradition will have it, Plaintiff’s father took one wing of the fowl before the then Tindana pleaded with Plaintiff’s father to allow 2nd Defendant’s father to put up a residential structure...” It must be noted that Plaintiff claims his father died in 1997 and the dispute was resolved in his favour in 2006. The question is how come plaintiff’s father who died in 1997 took one wing of the fowl brought for sacrifice after the dispute was resolved in 2006 and allowed 2nd Defendant’ father to put up residential structure on the disputed land? To this court, the evidence of the plaintiff to the effect that his father gave the land in

 

dispute to the 2nd defendant’s father to put up his dwelling house or as to how the 2nd Defendant’s father came to occupy the disputed land is not convincing.

33. From the evidence, it is worthy of note that apart from alleged harvesting of shea nut fruits from the disputed land, the plaintiff has not demonstrated to this court how he exercised possession and ownership of the land which is of recent memory. The Plaintiff claims that he has been granting permission to others including the Defendants to cultivate portions of the land for subsistence but he admitted in evidence that he shared boundaries with Defendants family lands. Having admitted sharing boundary with Defendants family lands, Plaintiff’s claim that he granted permission to Defendants to cultivate portions of the land for subsistence is untenable.

34. The evidence shows that 2nd defendant was born on the land in dispute. The 2nd Defendant says he is about forty-five (45) years old during cross examination by counsel for Plaintiff. What it means is that long before and after the 2nd defendant was born; his father was in undisturbed possession and occupation of the land in dispute for several years. The Plaintiff however claims he ejected the 2nd Defendant’s father from the land in dispute but to this court there is no sufficient evidence that it was Plaintiff who ejected 2nd Defendant’s father from the land in dispute. Besides, this court is of the view that if indeed Plaintiff ejected 2nd Defendant’s father from the land after the alleged ruling by the chief of Datuku in his favour, the 1st and 2nd Defendants would not have come back to put up a building on the said land that 2nd Defendant’s late father occupied during his lifetime.

 

35. From the evidence, the fact that 2nd Defendant’ father lived on the land in dispute during his life time is not in doubt. Indeed, Plaintiff tendered in evidence the remains of 2nd defendant father’s building on the land as Exhibit A. On 31st July 2023, during cross examination of Plaintiff by counsel for Defendants, the following ensue:

Q. You just told this court that exhibit A is your property, is that so?

A. The land is mine but the structure on it as captured in exhibit A is not mine.

Q. I put it to you that you are not truthful to this court?

A. The land is mine but the structures are not mine.

Q. You would agree with me that exhibit A does not tell whose remains are on the land?

A. I can say who build the structure.

Q. What is in exhibit A that shows the land belongs to you or defendants?

A. The land belongs to me. It was the defendant father who built on the land and I sacked him. Defendant father is called Boar.

Q. I am putting it to you that the remains do not show who owns the land?

A. Our chief is aware the land belongs to me and the defendant (2nd) was born on that land but re-settled somewhere.

36. During cross examination of 3rd Defendant on 11th February 2025, by counsel for Plaintiff the following ensued:

 

Q. Do you know the land in dispute?

A. Yes

Q. Have you not seen the remains of 2nd Defendant father’s house on the disputed land?

A. I have seen the remains on the land ……

37. The evidence of 2nd Defendant father’s dwelling house remains on the land as confirmed by the Plaintiff constitutes acts of ownership and possession of the land in dispute by 2nd Defendant’s father which is of recent memory, and must therefore takes precedence over mere traditional evidence. So having examined the conflicting evidence of the parties in the light of positive and recent acts, acts of ownership as well as possession by 2nd Defendant’s father and his family for several years, this court holds that the traditional evidence or the history of the Defendants regarding the land in dispute is more probable than that of the Plaintiff.

38. Moreover, from the evidence, it appears plaintiff is not sure of the boundaries of the land he is claiming. This is because when he was asked to describe the land in dispute, the description he gave is different from the one endorsed on the writ of summons. PW1 did not testify as to the boundaries of the land. The PW2 however testified that he cannot tell the boundaries of Plaintiff’s land. Thus, on 19th January, 2024 during further cross examination of Plaintiff by counsel for defendants the following ensued:

 

Q. Tell this court the four boundaries of the disputed land.

A. The land share boundaries to Kulemna house, Tong-Yin house, Salugur house, and the defendants’.

Q. I am putting it to you that this your description is not correct.

A. That is not true.

Q. And per the description you gave to this court earlier, no where did you share boundaries with Salugur house.

A. I did not mention Salugur house in the first place because you did not ask for the four boundaries.

Q. You filed a writ before this court. Is that so?

A. Yes that is true.

Q. And in the particulars of claim, you described the land for which you are in court. Is that so?

A. Yes. I described but have not entered anybody’s land.

Also, during cross examination of PW2-Boabil Yella on 22nd July 2024 by counsel for defendants, the following transpired:

Q. I am putting it to you that you do not know anything about the disputed land?

 

A. Since I came back from Yal, I have not crossed to see where plaintiff is settled is actually that piece of land but plaintiff told me that, that is the piece of land that his grandfather was farming on and if that is the land I know it very well. ….

Q. You would agree with me that because you did not go to see the land you cannot tell whether what plaintiff told you is true or not?

A. As to how large the land is I do not know so even if I should go there, I do not know the extent of the land. For instance, I know the boundary of my land but for plaintiff land I do not know his boundaries.

39. It is a settled principle of law that a party who claims a declaration of title must show with particular certainty the dimensions of his land failing which he must fail. The rationale behind the need for a party to positively identify its land in an action for a declaration of title is to enable an order for possession to be executed without any difficulty. Besides, a judgment for declaration of title to land cannot operate as res judicata to prevent the parties from relitigating the same issues in respect of the identical subject-matter unless the land is clearly identified. In the case of Kwabena vrs. Atuahene (1981) GLR @ 136, Justice Archer JA referring to the Supreme Court case of Anane vs Donkor (1965) GLR 188 @ pg 192 quoted Ollenu JSC stating the law as follows:

“Where a court grants declaration of title to land or makes an order for injunction in respect of 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 judgment

 

or order of the court will be in vain. Again, a judgment for declaration of title to land should operate as res judicata to prevent the parties relitigating the same issues in respect of the identical subject-matter, but it cannot so operate unless the subject-matter thereof is clearly identified. For these reasons a claim for declaration of title or an order for injunction must always fail if the plaintiff fails to establish positively the identity of the land to which he claims title with the land the subject-matter of the suit.”

See also Bedu & Others vrs. Agbi & Others (1972) 2 GLR 238-244 and Baruwa vrs. Ogunshola (1938) 4 WACA, 159.

40. From the above evidence it is clear that the Plaintiff did not convince the court as to the boundaries of the land he is claiming. Accordingly, this court is of the view that Plaintiff has failed to establish positively the identity of the land he claims.

41. For the foregoing reasons, this court is of the considered opinion that plaintiff has failed to prove to the satisfaction of this court that the land in dispute belongs to him or his family Accordingly, Plaintiff’s action fails and it is hereby dismissed.

42. The next issue to consider is whether or not the Defendants are entitled to their counterclaim. It is a well-established principle of law that a defendant who files a counterclaim has the same burden of proof as a plaintiff. In the case of Nortey (No.2) V. African Institute Of Journalism And Communication & Others (No.2) [2013-2014] 1 SCGLR 703, the principle was stated thus,

 

“Without any doubt, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he/she has to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof prescribed by sections 11 and 14 of NRCD 323, the Evidence Act (1975)”.

43. The law is that a party can only succeed in his or her counterclaim on the strength of his or her evidence. The standard of proof required that for a party to succeed on his or her counterclaim, he or she must lead satisfactory evidence, either by himself/herself or otherwise which, on the balance of the probabilities, makes his or her case more probable than not. See the cases of 2000 Ltd Vrs Otoo [2018] GHASC 68 (17 October 2018) and Osei v Korang [2013] 58 GMJ 1.

44. In the instant case, the Defendants counterclaimed against the Plaintiff for the land in dispute. They therefore have a burden of proof to discharge. But having examined the evidence of the parties on record as well as the above analysis under issues one to two supra, this court is of the considered opinion that the defendants have established the existence of facts contained in their counterclaim by the preponderance of the probabilities. The Defendants’ counterclaim is accordingly upheld or granted. Thus, defendants are declared the owner of the land in dispute as described in their counterclaim.

Conclusion

45. Having examined the whole evidence adduced by the Plaintiff and the Defendants on record in accordance with the foregoing authorities as well as the analysis, this court holds as follows that:

 

a. Plaintiff’s action fails. Thus, plaintiff has failed to prove to the satisfaction of this court that the land in dispute belongs to him or his family. Plaintiff action is accordingly dismissed.

b. Defendants’ counterclaim is granted or upheld. Thus, the Defendants have established the existence of the facts contained in their counterclaim by the preponderance of the probabilities and the Defendants or their family are declared the owner of the land in dispute as described in their counterclaim.

c. Defendants are granted an order to recover possession of the land in dispute from Plaintiff.

d. The Plaintiff, his customary successors, assigns, privies, agents, workmen and all those claiming through him is/are perpetually restrained from interfering with the defendants and their families’ ownership, possession and use of the land in dispute.

e. Cost of Five Thousand Ghana Cedis (GHC5,000.00) is awarded against the Plaintiff in favour of the Defendants.