OWUSU VRS SAAZUNI (A1/15/2022) [2024] GHADC 357 (1 February 2024)

IN THE DISTRICT COURT KINTAMPO HELD ON THURSDAY 1ST FEBRUARY 2024 BEFORE HIS WORSHIP KWAME ADJEI MANU ESQ. SUIT NO: A1/15/2022 ALEX OWUSU (Suing for himself and on behalf of siblings of Kokrompe) - PLAINTIFF VRS ZAMA SAAZUNI @ DADIE MPRO DAGAATI - DEFENDANT JUDGMENT 1. INTRODUCTION 1.1. This suit concerns a dispute over ownership of land. Plaintiff’s case 1.2. The thrust of Plaintiff’s case in this suit is that he and his siblings acquired the disputed land plot situate at place called "Nantwi Buomu" at Konkrompe on Nkoranza Stool Land which shares boundary with the properties of Konkrompe Community, a road leading to Adeefu stream, a road leading to Nyanka Twuura stream and Rocks lying at Bortokrom Valley through a gitt from their late father Opanin Kwaku Nyarko. Adocument was issued to that effect. 1.3. According to Plaintiff, he and his siblings have been in effective occupation of the land for years without challenge until Defendant recently trespassed onto a portion of it, putting up a house thereon and has vowed to continue with his construction. All efforts having failed to stop him, this suit was brought claiming against Defendant as follow: Page 1 of 25 “a.Declaration of title and recovery of possession of that portion of unnumbered plot situate at a place commonly known and called Nantwi Buomu at Kokrompe on Nkoranza stool land which shares boundary with the properties of Konkrompe community, a road leading to Adeefu stream, a road leading to Nyanka Twuura stream and Rocks lying at Bortorkrom valley through a gift from their late father Opanin Kwaku Nyarko of which the Defendant has trespassed onto the said plot gifted to the Plaintiff and his siblings by their late father Opanin Kwaku Nyarko of which a document was issued to that effect. b. General damages for trespass c. An order of perpetual injunction restraining the Defendant, his agents assigns, etc. from having anything to do with the portion of the plot in dispute described in relief (a) supra” Defendant’s case 1.4. The thrust of Defendant’s case is that the disputed land does not belong to Plaintiff and his siblings, he being the owner thereof by reason of a sale of the land to him on 5th April, 2021 by Nana Kwadwo Mensah Mmire Boame II, Chief of Konkrompe, and he had developed this land to near completion when Plaintiff started laying adverse claim to the land. 1.5. According to Defendant, he was led to the said Nana Mmire Boame II by one Yaw Takyi when he first identified the plot. After inspection of the land with an elder on the directions of the chief, it was identified as the community refuse dump and a place of convenience, but Defendant accepted to develop the land. 2. BURDEN AND STANDARD OF PROOF Page 2 of 25 2.1. In Mondial Veneer (Gh) Ltd. v. Amuah Gyebu XV [2011] 1 SCGLR 466 the Supreme Court per Georgina Wood CJ explained at page 474 the duty placed on litigants in suits concerning land in these words: “In land litigation even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, 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.” Rukayatu Usumanu v. Zongo Naa Kun-Gari & 16 Ors (2021) JELR 107957 (SC). 2.2. Additionally, the Supreme Court speaking through Adinyira JSC in Yehans International Ltd. V. Martey Tsuru Family and 1 Or., [2018] DLSC 2488 explained this duty thus: “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 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”. 2.3. What the law requires of a Plaintiff in civil litigation is that they must succeed on the relative strength of their own case to that of their opponent and not by relying on the shortcomings in that of their opponent. Sections 10 and 11 of the Evidence Act, 1975 (NRCD 323) provide for the burden of persuasion, that is the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court, and the burden on a party to produce evidence in a matter before the Court, that is sufficient to avoid a ruling against him on an issue Page 3 of 25 respectively. In Ackah v. Pergah Transport Ltd. & Ors (2010) SCGLR 728, the Supreme Court stated the law on this evidential burden thus: “It is a basic principle of the 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 will fail. The method of producing evidence is varied and it includes the testimonies of parties and material witnesses, 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 mind of 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 probable than its non- existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(2) and (4) of the Evidence Act, 1975 (NRCD 323)” 2.4. Ishack v. Praba (2007) 12 MLRG 172 at 181, applied this same rule but explained it thus: “The general principle of law is that it is the duty of a plaintiff to prove his case, ie. he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defendant to lead sufficient evidence to tip the scales in his favour when on a particular issue Plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this, he wins, if not he loses on that particular issue.” 2.5. The quality of satisfactoriness or sufficiency of evidence is the degree of belief that the party creates in the mind of the court concerning facts in issue by the evidence, Page 4 of 25 so that at the end of assessment of the entire record and the evidence thereon, a reasonable mind should come to conclusion that the existence of a fact in issue is more reasonably probable than its non-existence. The Courts applied this standard in Ackah v. Pergah Transport Ltd (supra) 728, 731 and Faibi v. State Hotels Corp. [1968] 471 (holding 1). 2.6. In Yeboah vrs. Amofa (1997-1998) 1 GLR 674 at page 683 Her Ladyship Mrs. Wood explained that having regard to sections 11(1) and (4) and 12 of NRCD 323 sufficient evidence is such evidence as the circumstances of the case would permit, so that on all the evidence a reasonable mind would conclude the probability of the existence rather than the non-existence of the fact. The sufficiency of evidence as explained by her ladyship is a question of fact determinable on the peculiar facts of each case, “So that what constitutes sufficient evidence in case A may not necessarily be sufficient evidence in case B”. When this is satisfied, the burden initially on Plaintiff is shifted unto Defendant as provided under Section 17 of NRCD 323. 2.7. In a civil suit, when the case made by a party is denied by his opponent in terms of the facts, then as held in Memuna Moudy and Others v Antwi [2003-2004] 2 SCGLR 967 at pages 974-975, by the Supreme Court speaking through Wood JSC (as she then was), an issue arises for determination and the party who has introduced the denied fact has the burden of proving same. The Court explained this burden thus: “A cardinal principle of law on proof as enunciated in the age-old case of Majolagbe v Larbi (1959) GLR 190 and reiterated in a number of cases, including Zabrama v Segbedzi (1991) 2 GLR 221 at 246, is that, a person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge Page 5 of 25 his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred." 2.8. It is however worthy of note that this burden shifts. It is not static. This statement of the law has statutory support firstly at section 14 of the Evidence Act, 1975 (NRCD 323) which provides that: "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." 2.9. The burden when it has been discharged shifts unto the person against whom a finding may be made in the absence of further contradictory evidence, depending on the issues, and the facts in contention. This position was expressed by the Court in In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & ORS [2003- 2004] 1 SCGLR and finds expression at section 17 of NRCD 323 particularly subsection (b). The entire section provides as follows: “17. Allocation of burden of producing evidence Except as otherwise provided by law, (a)the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (b)the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.” 2.10. The evidence led by parties herein, and the issues raised in this suit are discussed next. Page 6 of 25 3. THE EVIDENCE AND ISSUES Plaintiff’s evidence 3.1. Plaintiff’s Plaintiff in his testimony traced the original ownership of the disputed land from his great-grandparents, Nana Owusu Kwadwo and his wife Nana Yaa Gyabunu (both deceased) who according to him passed away sometime in the years 1927 and 1943 respectively. They died and left the dispute land to their children on joint tenancy basis, and Nana Kwaku Nyarko was the last survivor of the children. 3.2. Nana Kwaku Nyarko assumed absolute title and ownership of the land in dispute and the Odikro of Konkrompe during this time was Nana K. Mensah who also passed away in early 1970s. After the Odikro’s demise, there was a long litigation over succession of the Odikro stool of Konkrompe lasting over forty (40) years. During these forty (40) vears, there were several leaders appointed or elected in Konkrompe among which was the late Nana Kwaku Nyarko the father of Plaintiff’s late father Teacher Kwaku Nyarko. 3.3. Plaintiff’s testimony is that his late father farmed on a portion of the disputed land. He was appointed as a teacher in the 1960s and worked in several towns and communities in the then Bono Ahafo Region after which he was transferred in the early 1980s from Banda to teach in his hometown Konkrompe, bringing his cattle along. He made a kraal near his house at Konkrompe Dagomba line. 3.4. Due to complaints from community members of the inconvenience and danger posed by the kraal to the people, Plaintiff’s father relocated the cattle unto another portion of land. Plaintiff’s father’s siblings also complained bitterly about his late Page 7 of 25 father's possession as they thought according to Plaintiff that the entire parcel of land would devolve to his late father. Plaintiff’s father assisted his nephew to build on another portion of the land from where he could simultaneously take care of the cattle and practice his fetish priesthood. After several complaints Plaintiff’s father purchased the land outrightly 3.5. According to Plaintiff, the cattle were there until his father passed away in 2012 and due to his difficulty with education and coupling same with caring for the cattle, he relocated the animals after two (2) years later to Nkoranza - Atekoano. According to Plaintiff, he decided to re-develop his father’s land but met unsuccessful challenge from others after which he saw Defendant working on it. 3.6. PW2 Kingsford Asiamah testified that he visited Konkrompe intermittently when he was young and during this time the late Teacher Kwaku was rearing his cattle on the disputed land. In 2013, he visited Plaintiff and assisted Plaintiff cultivate a beans farm on a portion of it. 3.7. In the year 2017, during which Plaintiff pursued studies at Cape Coast University, Plaintiff invited him to supervise his farm at Konkrompe and during this time he was shown ten (10) trips of sand, a trip each of chippings, quarry dust and gravels that Plaintiff had deposited on a portion of the land. Later, in 2018, Plaintiff was planting coffee on the land when a member of the then Odikro of Konkrompe caused the Busunya police officers to arrest him. According to the witness, though he does not know how that ended, Plaintiff returned to planting his plants. 3.8. In December 2019, Plaintiff drilled a borehole on some portion of the land providing water for the community. Subsequently, in 2021, the Odikro of Konkrompe and the Queenmother harvested wood from the land which he and Plaintiff stopped the chainsaw operators from further harvest of trees. Plaintiff also Page 8 of 25 made his siblings help him carry the wood away into his uncle Yaw Takyi, DW2’s house. Around February 2022 one Nana Yaw went to cut some wood and burnt it into charcoal which Plaintiff reported to the Busunya Police, Nana Yaw was arrested, and his family apologised to Plaintiff, leading the latter to forgo the case. 3.9. PW2 concluded that when Defendant was building on the disputed the land, PW2 and Plaintiff approached him (Defendant), and Defendant said that Plaintiff’s uncle DW2 sold the land to him. The matter came to court after several failed attempts at settlement. 3.10. Although I agree with Defendant counsel's submission that PW1's evidence should bear no evidential weight in view of her potential bias as Plaintiff’s sibling and a potential beneficiary of favourable judgment, and her admission that she was only parroting what she had been told, after jettisoning her evidence entirely, I am still of the view that Plaintiff was successful in shifting the burden of proof unto Defendant at the end of his case. Sufficient evidence was led, and it is for this reason that PW1’s evidence has had no pride of place in this judgment. 3.11. The onus of proof required by law as regards the identity of land is discharged by meeting the conditions clearly stated in Tetteh v. Hayford (2012) SCGLR 417 citing the case of Kwabena v. Atuahene (1981) GLR 136 that is to say, that Plaintiff ought to establish positively the identity of the land, all his boundaries and where there is no properly oriented plan drawn to scale, which made compass bearings vague and uncertain, the court would hold that Plaintiff had not discharged the onus of proof of his title. The plan is especially important where there are no boundary owners as admitted by both sides in this suit, or the evidence of boundary owners is not led in the suit. As held in Akoto II v. Kavege [1984-86] 2 GLR 365 and applied in Nana Ama Amponsah v. Franklyn Amoah Nyamaah (2009) JELR 68457 Page 9 of 25 (SC), failure by a party to prove the boundaries of his land in an action for declaration of title will be fatal to his claim. 3.12. In Re Ashalley Botwe Lands [2003-2004] SCGLR 420, the Supreme Court in holding 4 held as follows: “Although the general principle that a claim for declaration of title or an order for injunction should always fail if the plaintiff failed to establish positively the identity of the land claimed with the land in dispute was sound law, its application was not mandatory where the identity or boundaries of the land claimed was undisputed. Where the identity or the boundaries of the land in dispute as pleaded by the Plaintiff was admitted or not denied by the defendant, the applicable principle was that since no issue had been joined, no evidence needed to be led on the identity of the land.” 3.13. This rule as applied in Iddrisu Tifuuro Tatali v. Alhaji Saaka Yakubu (2018) JELR 68888 (SC) means that in a situation where the Defendant is held to have admitted the boundaries of the disputed land as described by Plaintiff, the need for Plaintiff to prove same positively is dispensed with. In this suit, though Plaintiff was cross- examined on the boundaries of the land claimed by him, I do not consider the events of cross-examination as sufficient challenge thereto, especially when Plaintiff had repeated the boundaries mentioned by him in his writ and the approximate area of the land claimed by him to be 10 acres. In Mrs. Evelyn Frimpomaa Owusu v. James Owusu (2011) JELR 64269 (CA) the court explained what such challenge would be in these terms: Where, for example, the testimony of the plaintiff on an issue is not exactly what the position of the defendant on that issue is, Counsel for the defendant is obliged, by his cross-examination, to indicate how much of the testimony he Page 10 of 25 accepts, and how much of it he disputes or rejects; and he will also put forward what the defendant’s position on the issue is going to be. Defendant’s evidence 3.14. Defendant testified and called two witnesses in support of his case. He put in evidence a receipt for the purchase of the land marked as Exhibit 1, ostensibly to prove his purchase of the land and his payment of valuable consideration for it. DW1, Kwame Owusu Seth who identifies as a member of the Asona Royal family of Kokrompe testified that the Caretaker chief at the disputed area on behalf of the Nkoranza stool is Nana Mmire Boamah II, since 2019 when he became chief. According to him Defendant approached the chief having identified a parcel of land he desired, that is the disputed land, for his ordinary residence. 3.15. He also testified that the disputed plot upon inspection was identified as a refuse dump and a place of public convenience, which was originally part of the Fiema forest reserve, currently stretching into the reserve. So, the chief allocated the land to Defendant who started putting up a residential building on it, with the aim of improving the sanitation at area, which was a disused refuse dump. Plaintiff whose father no chief or elder sold the land to, started laying adverse claim to the disputed land. To him, Plaintiff lacks title thereto. 3.16. DW2 Yaw Takyi, Plaintiff’s uncle corroborated Defendant’s testimony that it was he who led Defendant to the chief for the sale of the land to him. He essentially repeated the testimonies of Defendant and DW1 on Defendant’s acquisition of the disputed land and added that the disputed land is completely different from any of the lands on which his brother, Plaintiff’s father kept his cattle, which he had Page 11 of 25 knowledge of since he assisted his brother care for his animals. According to DW2, the disputed plot belongs to Defendant and not Plaintiff. Whether the disputed land belongs to Plaintiff and his siblings 3.17. In assessing evidence led by parties, this Court has been mindful of that particularly useful and settled rule of law as applied in Takoradi Flour Mills v Samir Faris1 by Ansah JSC at page 890 referring to Tutu v Gogo, Civil Appeal No 25/67, dated 28 April 1969, Court of Appeal, unreported; digested in (1969) CC 76, where Ollenu JA said that: “in law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.” 3.18. I have considered also, the evidence of all parties in this suit and the events of cross-examination in arriving at the conclusion that the issue whether Plaintiff or Defendant is the owner of the disputed plot should be considered oath against oath. Oxyair Ltd & Darko v. Wood [2005-2006] SCGLR 1057 held that in the case of oath against oath, it is the duty of the trial court, or any court to consider the evidence adduced to form a judgment as to what version of events was more credible. In an oath against an oath situation, the determination of a fact crucial to the judgment involves judicial choice of belief based on the comparative credibility of opposing parties and their witnesses. 1 [2005-2006] SCGLR 882 Page 12 of 25 3.19. Additionally, in Lutterodt v. Commissioner of Police [1963]2 GLR 429, SC, it was held that in an oath against oath situation, it is incumbent upon the trial court to examine the evidence before preferring one to the other and give reasons for the preference. The trial judge cannot be faulted on his decision once it is based on the evidence on record. Her Ladyship Afia Serwaa Asare-Botwe (Mrs.) relied on these rules in Lydia Tetteh v. Madam Akweley & Anor (2019) JELR 107108 (HC). 3.20. Plaintiff's title is derivative and by the nature of Defendants claims and evidence, not only Plaintiff and his siblings' title was in dispute. The title of the predecessors was also in dispute. As much as DW1 attempted to establish that Plaintiff was not a native of Kokrompe, this was disproved not only by Plaintiff's patrilineal lineage, but also by DW2's admissions, after DW1 himself had admitted that Plaintiff’s grandfather had been head of the community before. This was what transpired while DW2 was under cross-examination: Q: My father’s grandparents are from Kokrompe? A: They are from the town, but the land does not belong to them. If the land belonged to them, I would have been the person to litigate for it and not plaintiff. 3.21. Aside the right of Plaintiff's father to cultivate any part of the virgin lands in Kokrompe as an indigene of the land, there is also the allegation of DW2 if I treat it as bearing any evidential weight, that the land was obtained by grant. Again, DW2 testified that it was he and Plaintiff’s father who by themselves carved out the land. This to my mind appears to be the exercise of an inherent right by an indigene to cultivate virgin land which DW2 alleged the disputed land to be. Though DW2 insisted that the land obtained was entirely different and had been Page 13 of 25 developed, he failed to describe where this other land lay. Formal denials without further explanation hardly achieves much. 3.22. I will accordingly apply the rule in Faibi v State Hotels Corporation (supra) that “Where a party would not produce evidence which evidence is available and within his peculiar knowledge, it could be inferred in law that that evidence is against him”, in concluding that all that part of Defendant’s evidence that the land occupied by Plaintiff’s father was separate from the area in dispute should have little sway over this judgment since this other different place was not described in the least sufficient particulars. 3.23. Additionally, in Hilodjie v. George (2005-2006) SCGLR 974 at 995 Georgina Woode JSC (as she then was) stated as follows: “In any action, cause or matter, a party who disputes an issue does not simply rest the case on formal denials either made in examination-in- chief or ‘put’ or ‘suggested’ to an opponent under cross-examination. If the opponent does not admit those suggestions, then he or she is deemed to have succeeded in establishing a prima facie case on the disputed fact, and the evidentiary burden shifts on to that party to prove contrary facts if he or she is desirous of avoiding a ruling against him or her on that issue.” 3.24. In any case, through DW2’s plenty prevarication he admitted that the disputed land was the land occupied by Plaintiff’s father’s cattle and that he DW2 was the one who cut all trees on the land. This was what transpired while DW2 was under cross-examination: Q: I put it to you that it was in 2010 that the dogs were taken from the community? Page 14 of 25 A: It was in 2010 that we were informed that the land had been reserved as a game land and were asked to remove dogs from the community. Q: So before 2010, my father owned the disputed land? A: Not true. Plaintiff’s father is my elder brother and he did everything with me. When he was about to rear cattle on the land, I cut all trees from the land, but the disputed land does not belong to plaintiff’s father, otherwise, I would have been the person to litigate over the land and not plaintiff. 3.25. As rightly argued by Defendant counsel in his submissions, Traditional evidence, as the evidence in this suit predominantly is, must be viewed in light of matters within living memory. It is noteworthy that as testified by PW2 that Plaintiff possessed the land and even at some point dug a borehole on it. This was admitted by DW2. The corroborated evidence on record, therefore, points to Plaintiff's possession of the disputed land at some point. The law is that a person in possession is presumed to be the absolute owner. This was what DW2 said while under cross-examination: Q: I put it to you that before Nana Mmire II became the Odikro of the community I had drilled a bore – hole deposited 10 trips of sand on the land with chippings and gravels harnessing the bore – hole into your house which you sold at your house? A: There is no chief in Kokrompe called Nana Mmire. It is true plaintiff drilled the bore hole but the elders of the town did not want to agree, so I had to convince them that water is a good thing for the community before they agreed, but I Page 15 of 25 assured them that once plaintiff had drilled the bore hole on the land, he cannot put up a building there, since it is a game land. Plaintiff harnessed the bore – hole to my house but later came for his water tank. 3.26. That being said, the evidence on record in my view, points strongly to Defendant and his siblings’ ownership of the disputed land by way of the usufruct therein. Even if I were to entirely discount Plaintiff's evidence as to the gift of the disputed land to his siblings and himself, I have reminded myself of the settled law that when a parent dies leaving property to his children, then for the purpose of enjoying that property or taking the benefit thereof, they are constituted into a family. 3.27. DW2 who ostensibly led Defendant to purchase the disputed land, admitted that he and his brother, Plaintiff's father, were on the disputed land. His explanation that they begged for it from someone, so they were not owners is to me an afterthought. In any case, he DW2 has admitted in no uncertain term that he personally has no claim of ownership to the land. This was what transpired while he was under cross-examination: Q: I put it to you that before you returned from prison, my father owned the land at Kokrompe with the cattle on it already? A: Not true. When I returned, the animals had not yet been brought. I retuned before we brought the cattle from Senya. Q: Are you saying that you had extended beyond the land that was demarcated for you and that was why they seized the charcoal? Page 16 of 25 A: The reason why the charcoal was collected was that the land they carved for five cattle was too big and that was why they collected thirty (30) bags of charcoal. Q: So what was the size of the land demarcated for my father? A: I did not measure the land, so I cannot tell the size. The land was not demarcated for us. We went to demarcate it ourselves because we did not buy the land but begged for it. That was the reason why the elders said the land we carved was too big. Q: Before the land was carved for my father, it originally belonged to his father? A: Not true.it did not belong to my father Kwaku Nyarko. Q: So who did the land belong to? A: The land was within the community. If the land belonged to our father, we would not have gone to beg for it from somebody. 3.28. If I accept that the land was sought and obtained by way of grant, it will still corroborate Plaintiff’s father’s original ownership of the land. It is also worthy of note, DW2’s prevarication on the carving of the land. He stated in one breath that it was carved for he and Plaintiff’s father and in another that they carved it themselves. 3.29. Concerning usufructuary ownership, it was explained by Appau JSC (As he then was) in Togbe Lugu Awadali IV v. Togbe Gbadawu IV (2018) JELR 68854 (SC) in these words: Page 17 of 25 “The word ‘Usufruct’ comes from the Latin phrase ‘usus et fructus’, which means; ‘use and enjoyment’, with ‘fructus’ used in a figurative sense to mean fruits enjoyed from the use, which include; the right to convey, transfer, lease, assign or tax during the pendency of the use of the property concerned. The term stands for a limited real right (or in rem right) found in civil law and mixed jurisdictions that unite the two property interests of ‘usus’ and ‘fructus’; i.e. the right to use and enjoy a thing possessed, directly and without altering it. It connotes the right of enjoying all the advantages derivable from the use of something (not only land) that belongs to another, as far as is compatible with the substance of the thing not being destroyed or injured. The Cambridge English Dictionary describes it as; “the legal right to use someone else’s property temporarily and to keep any profit made”. Black’s Law Dictionary, in its ninth edition, defined it as; “the right of using and enjoying property belonging to another provided the substance of the property remained unimpaired. More exactly, was the right granted to a man personally to use and enjoy, usually for his life...the property of another which, when the usufruct ended, was to revert intact to the dominus or his heir”. The Shorter Oxford English Dictionary; Deluxe Edition, describes it as; “The right of enjoying the use of and income from another’s property without destroying, damaging, or diminishing the property”. In customary law, usufruct means land is owned in common by the people, but families and individuals have the right to use certain plots or portions of the land. While people can take fruits of the land, they may not sell or abuse it in ways that stop future use of the land by the community.” 3.30. In Mansu v. Abboye and Another [1982-83] GLR 1313-1323 the Court of Appeal per Francois JA (as he then was) spoke of the nature of usufructuary ownership of land in these words: Page 18 of 25 “...Some of the cardinal incidence of the usufructuary interest were that the usufructuary had exclusive possession of the portion of land and he could not capriciously be divested of that interest by the stool neither could the stool alienate that portion of land to any other person without the prior consent and concurrence of the usufructuary. Thus, the usufructuary interest was potentially perpetual the interest of the usufructuary could be determined only by his consent, his abandonment or upon failure of his successors”. (emphasis mine) 3.31. Additionally, usufructuary owners in possession can only be dispossessed of their usufruct in land on proven and unrectified breaches of customary tenure, or upon abandonment was settled in Asseh v. Anto [1961] G.L.R. 103, S.C., Amoabimaa v. Okyir (Consolidated) [1965] G.L.R. 59, S.C. and Kotei v. Asare Stool [1961] G.L.R. 492, P.C. 3.32. In Togbe Lugu Awadali IV v. Togbe Gbadawu IV (2018) JELR 68854 (SC) the Supreme Court settled that the statement of the law that a stranger cannot acquire usufructuary rights over land belonging to his host is not accurate since usufructuary rights are not reserved exclusively to individual members of a group or family or clan that communally owns the land in question. By the reasoning of the Court even a stranger can acquire usufructuary rights over land owned by another group or family either on terms or through acquiescence. I cannot support a conclusion of logic by any stretch, that Plaintiff’s father did not acquire or hold any interest in the land. 3.33. It is worth admitting nonetheless, that if some part of the land originally occupied by Plaintiff’s father had become part of a monkey sanctuary properly as admitted by all sides, this portion of the land could not in my view continue to constitute a part of the land owned by Plaintiff’s father and passed to his children, same having Page 19 of 25 become as admitted by parties a forest reserve. But to the extent that any part of it remained untouched by the reserve lawfully established, it remained the property of Plaintiff’s father and his progeny by way of the usufruct. 3.34. Regarding Defendant’s possession of the disputed land and if it should have any relevant bearing on this suit, As held in Yorkwa v. Duah (1992) JELR 63695 (CA), it is now a settled principle that a person in possession and occupation is entitled to the protection of the law against the whole world except the true owner or someone who can prove a better title. In Aidoo v. Adjei [1976] 1 GLR 431, it was held that a person in possession of land is presumed to be the absolute owner thereof and this point enjoys support in statute under Section 48 of the Evidence Act, 1975 (NRCD 323). 3.35. In Odoi and Another v. Hammond [1971] 1 GLR 102 the Court discussed the burden on a person alleging possession of land thus: “After all, if a person claims to be in possession of a piece of land, he does not necessarily have to prove this by showing that he always clears all the site in question. Depending on its size, it is sufficient if it can be shown as in this case, that the plaintiff erected pillars to mark the confines or limits of their land and that he and the caretaker farmed on it from time to time.” 3.36. I consider extremely germane to this court’s decision the law’s position as explained by Ollennu J (as he then was) concerning a person alleging trespass and the place of possession in such allegation in Seraphim v. Amua-Sekyi [1962] 1 G.L.R. 328 at page 331 thus: Page 20 of 25 “A person in possession can successfully maintain an action for trespass against the whole world except the person proved to be the true owner. But possession means effective possession; a person who enters upon land which is apparently already in the possession of another person, cannot in law be said to have that possession which will entitle him to the benefit of the proposition of law. Therefore where the possession relied upon has not been effective or where it is one which has been disputed, a plaintiff to succeed in an action for trespass against another person who also claims to be in possession cannot succeed unless he proves that as between him and that other person, the right to immediate possession of the land is vested in him. Next where a plaintiff proves effective possession of land the onus shifts upon the trespasser to prove that title to the land is vested in him; that is, to prove that he, the trespasser, is the true owner.” 3.37. In view of the foregone, if I settle on Plaintiff and his siblings as the true owners of the disputed land, or on their effective possession of it before Defendant, Defendant’s possession of the disputed land shall be of no moment. I have not also received evidence sufficient to support a conclusion that he is a bona fide purchaser of the disputed land, especially when he admits that his principal proof of his purchase of the land that is his receipt was signed by himself. 3.38. Under Section 80(2) of the Evidence Act, NRCD 323 in determining the probative value to give to a witness’ testimony the Court may consider the credibility of the said witness and in ascertaining the credibility of the witness pay due mind inter alia to “the existence or non-existence of a fact testified to by the witness or a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial.” In Obeng v. Bempomaa [1992-93] 3 GBR p 1029 Lamptey JA. (As he then was) had this to say on the matter: Page 21 of 25 “Inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The conflict in the evidence of Plaintiff and his witnesses weakened the merit of his case and proved fatal to his claim.” 3.39. But it is not every inconsistency that makes a witness a stranger to truth as held in the case of Apaloo v. The Republic (1975) 1 GLR 156 at 173 since conflicts and inconsistencies in evidence that have a relevant bearing on a judgment must relate to facts in issue as held in The Republic v. Adekura [1984-86] 2 GLR 345, CA. Defendant’s case and his evidence contain enough of these inconsistencies that ought to influence this judgment in significant ways. The Court finds Plaintiff’s evidence on the ownership of the disputed land more probable. 3.40. I find on all the evidence that the disputed land measuring an approximate area of Ten (10) acres belongs to Plaintiff and his siblings who own the usufruct therein. Whether Defendant has trespassed unto Plaintiffs and his siblings’ land 3.41. Entering land and or dealing with it without the permission of the true owner including his agents, servants, or one in possession thereof constitutes trespass. It is a wrong against possession as stated in Chegu v. Dagomba [1977] 1 GLR 412 which is reflective of the current position of the law. It is actionable per se, but, as explained by Wiredu J, a court when it has found trespass it is bound to award damages, albeit there must be a basis for awarding more than a nominal sum. 3.42. Defendant admits that he has developed the disputed land constructing a house thereon. Although Defendant differs with DW2 as to the extent of the development, I consider it immaterial whether the building is complete or almost Page 22 of 25 complete. This point is between both parties not contested. Since I have concluded in the foregone and provided my reasons for same, that Plaintiff and his siblings are the owners of the disputed land it is no leap of logic to conclude that if Defendant has dealt with it without their consent or authorization it must follow naturally, and I so find, that Defendant has trespassed unto Plaintiffs’ land. Damages 3.43. Applying Chegu v. Dagomba (supra), in the award of damages since trespass has been found, I must state that the purpose of such an award is to compensate the injured party and to place him in the same position as if the breach had not occurred or as close thereto as possible. As held in Cornelius Ogbu v. Access Bank (Gh) Ltd (2015) JELR 69870 (CA) the object of an award of damages is to give Plaintiff compensation for the damage, loss or injury suffered. The award may also be compensatory or punitive as held in Ayisi v. Asibey III & Others [1964] GLR 695 SC; Mahama v. Kotia & Others [1989-90] 2 GLR 24. 3.44. I have not found any evidential basis in this suit to ground an award of damages that is punitive. I am still of the view that Plaintiff must be the beneficiary of compensation, in view of the likely need for him to remove any construction from the land which he may find undesirable. 3.45. I have also given due attention to the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (C.I. 52) , and in the absence of a contractual or agreed rate of interest, or any other applicable statutory interest rate, I have settled on the strength of Rule 1 which provides that If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated (a) at the bank rate prevailing at the time the order is made, and (b) at simple interest, and Rule 2(1) of C.I. 52 which provides that each judgment debt shall bear interest at the statutory interest Page 23 of 25 rate from the date of delivery of the judgment up to the date of final payment, that the Bank of Ghana 91-days Treasury bill rate ought to apply in terms of Rules 4(1) and 4(2). 3.46. I am also guided by the reasoning of the Supreme Court in Daniel Ofori v. Ecobank Ghana Limited (2020) JELR 92012 (SC), in computing interest in this suit at the statutory rate of 28.59 % per annum, which I have taken notice of as the Bank of Ghana 91-day treasury bill rate as at judgment. CONCLUSION In Hanna Assi (No 2) v Gihoc (No 2) [2007-2008] 1 SCGLR 16 which I elect to be guided by, the Supreme Court held that the Courts have power to grant all reliefs that flow logically from the established claims of the party. This thinking was further explained by A. M. Dordzie JA (as she then was) in George Lamptey v. Meklloyds Co. Ltd and Theophilus Ohene Poku (2017) JELR 63977 (CA) in these words: “… I must say that case law in recent times has demonstrated that the courts have turned away from strict adherence to considering only reliefs endorsed on writs of Summons. The courts now look at the totality of the endorsement on the writ of summons, the pleadings and the evidence adduced before the court to grant the appropriate reliefs the circumstance of each case demands.” In conclusion, Plaintiffs’ action succeeds, and the Court makes the following orders in favour of Plaintiff and his siblings against Defendant: a. A declaration of Plaintiff and his siblings’ usufructuary ownership of all that land situate at a place commonly known as Nantwi Buomu at Kokrompe on Nkoranza stool land which shares boundary with the properties of Konkrompe community, a Page 24 of 25 road leading to Adeefu stream, a road leading to Nyanka Twuura stream and rocks lying at BortorKrom valley. b. Recovery of possession of the land described in order (a) above. c. Damages for trespass in the sum of GHS 5,000 including compensatory damages. d. An order of perpetual injunction restraining Defendant and all those claiming through him from laying adverse claim to or dealing adversely with the land described in order (a) above. e. I assess Plaintiff’s costs at GHS 3000.00. f. Defendant shall pay Interest on the sums mentioned in orders (c) and (e) at the statutory rate of 28.59 % per annum from judgment till final payment. SGD. KWAME ADJEI MANU ESQ. (DISTRICT MAGISTRATE) Parties present (unrepresented) Page 25 of 25