ASAFOATSE KWETEY AKORSORKU III VRS NARH-BI & 3 OTHERS (H1/196/2019) [2021] GHACA 39 (20 May 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ACCRA – GHANA CORAM: HENRY KWOFIE JA P. BRIGHT MENSAH JA NORVISI ARYENE (MRS.) JA PRESIDING SUIT NO. H1/196/2019 20th MAY2021 BETWEEN: ASAFOATSE KWETEY AKORSORKU III )… Substituted by Asafoatse Nartey-Wayo Akamisa II PLAINTIFF/APPELLANT vs 1. ANDREWS NARH-BI 2. TORGBOR OBERKO 3. NETAS PROPERTIES LIMITED ) … DEFENDANTS/ 4. GHANA NATIONAL ASSOCIATION) RESPONDENTS ) ) OF TEACHERS ====================================================================== ) JUDGMENT BRIGHT MENSAH JA The instant appeal arises from the decision of the High Court (Land Division), Accra delivered 27/02/2019 in which case the plaintiff/appellant’s claim was dismissed whilst the lower court upheld the counterclaim of the defendants/ respondents. It will be recalled that the appellant had caused to be issued in the registry of the court below on 04/04/2011, a writ of summons against the defendants/respondents, the reliefs mentioned hereunder: a. A declaration of title to all that piece or land situate, lying and being at Ladorwayo and bounded on the North-West by land at Odumse, the property of the Akugbey Family of Lowe, Ningo; on the South East by land at Nihetsokunya, the property of Okubeng family of Lowerkponor, Ningo; on the South-West by land along the Mangotsonya boundary, the property of the Djangmaku family; North-East by land at Vakpo, the property of Blemano family of Bantama-Kabiawe, Ningo; on the South at Mangotsonya; on the West by land at Otsebreku and covering an approximate area of 1500 acres. b. Recovery of possession of the land described in relief (a) above; c. An order of perpetual injunction to restrain the defendants whether by themselves, their assigns, workmen, agents, privies, personal representatives, successors, servants or howsoever, described from entering, interfering and/or alienating portions of all of the land described in relief (a) above; d. Damages for trespass; e. Costs inclusive of legal fees. Paragraph 1 of the statement of claim described the capacity in which the original plaintiff, Asafoatse Kwetey Akorsoku III sued. In paragraph 1 of the statement of claim that accompanied the writ of summons filed 04-04-2011, it was averred therein: “1. The Plaintiff is the head of family and the Asafoatse of Djangmaku Trominya of the Djangmaku We of the Ningo Traditional Area.” Describing the capacities in which the 1st, 2nd and 3rd defendants were sued, it was averred to in paragraph 2 of the statement of claim that they were/are members of the Aneho family and descendants of one Bedai. It was the case of the plaintiff that the 4th and 5th defendants are body corporates that had allegedly acquired parcels of plaintiff’s family land from the 1st, 2nd and 3rd defendants. Pursuant to an order of the lower court made 07/05/2015, the plaintiff subsequently amended his statement of claim but the reliefs claimed as endorsed on the writ and the description of the land claimed, the subject matter of the trial, as well as the capacities of the plaintiff and that of the 1st, 2nd and 3rd defendants remained unaltered. See: pp 93-94 of the record of appeal [roa] vol.1. In response to the plaintiff’s amended statement of claim, the defendants amended their statement of defence and also counterclaimed as follows: 1. A declaration that: (i) Plaintiff has no capacity and or locus to initiate this action. (ii) Plaintiff is estopped to initiate this action since this Honourable court had once conclusively dealt with the case including plaintiff’s purported predecessor herein. (iii) All that piece or parcel of land covering an approximate area of 136.3 acres located, situate and being at Lardowayo in the Greater Accra Region of the Republic of Ghana and registered at the Land Title Registry as No. TD 0991 in the Land Registry Vol. 021 FOLIO is the property of GHANA NATIONAL ASSO- CIATION OF TEACHERS, TEMA MUNICIPALITY only. (iv) The large stretch of land located situate and being at Lardo- wayo and measuring approximately in area 479.832 hectacres and more particularly delineated on a site plan and bounded by families hailing from Prampram, Vakpa, Odumase and Amanfro (less those conveyed out) is the property of the Bedai family of Lardowayo. 2. Recovery of possession of the said land. 3. Perpetual injunction restraining plaintiff, his assigns, servants, agents and or whosoever claims through him from ever trespassing on the said land. 4. Damages for trespass. 5. Cost of this action. See: pp 96-99 of roa [vol.1] We need to put it on record that the action was initially mounted against 5 defendants as described in the writ, namely: 1. Andrews Narh-bi aka Nene Bedia 2. Torgbor Oberko 3. Ayeh Oberko 4. Netas Properties Ltd (Adolf Tagoe) 5. Ghana National Association of Teachers (GNAT). However, per a motion on notice Counsel for the defendants filed on 06/11/2017, seeking leave of the court to substitute 1st defendant with John Obodai Nyongmo Bedai and to delete 3rd defendant [Ayeh Oberko] from the suit, the lower court did strike the original 3rd defendant’s name as prayed. The order of the court appears on pp 555-556 roa vol.3. Consequently, the writ was amended. Accordingly, the title of the case then changed and it now reads as follows: Asafoatse Kwetey Akorsoku III … Plaintiff vs 1. Andrews Narh-bi (subst’d) by John Obodai Nyongmo Bedai 2. Torgbor Oberko 3. Netas Properties 4. Ghana National Association of Teachers (GNAT) … Defendants Issues having been joined between the parties to the case and the matter gone to trial, the lower court dismissed the case of the plaintiff/appellant, holding inter alia that the plaintiff/appellant lacked the capacity to mount the action, whilst upholding the defendants/respondents’ counterclaim. It is against that judgment as appearing on pp 775-784 roa [vol. 3] that this appeal has been launched on the following number of grounds, namely: 1. The judgment is against the weight of evidence adduced at the trial. 2. The learned trial High Court judge woefully failed to adequately consider the totality of the evidence of plaintiff/appellant thereby occasioning substantial miscarriage of justice. 3. The learned judge erred when he held that the plaintiff had no capacity to mount this action. 4. The learned judge gravely erred when he held that the plaintiff failed to lead evidence to show the extent of land granted to Bedai, the forebear of the defendants, by the plaintiff’s pre- decessor in office and consequently went ahead to make a declaration of title to the entire Ladorwayo lands in favour of the defendants. 5. Since the defendants/respondents were unable to establish any valid mode by which they acquired the land from the plaintiff’s family, the acceptance of the long use of the land as evidence of ownership was erroneous as that evidence was contrary or inconsistent with the custom of the Dangme people as established or proven on the evidence before the court. 6. In the light of the defendant’s own admission that the disputed land belonged to the Djanmaku Clan (whether as a whole or by any of its constituents sub-clans), the High Court erred when it failed to address itself to the central question of whet- her by Dangme custom, the defendants/respondents who are obviously strangers could, by reason only of their long stay on the land, validly acquire absolute ownership thereof with a right of alienation to other strangers for physical development. 7. In the light of the Supreme Court’s decision in Torgbui Dzokui v Atise Azamli (Civil Appeal No. J4/36/2015) dated 9th Decem- ber 2015, which was on all fours with this case, the trial court erred when it rested its decision on the case of Awulae Attibru- kusu v Oppong Kofi [2011] SCGLR 176 which obviously did not apply. 8. Further grounds will be filed upon receipt of the record of proceedings. So far as the records go, no further grounds of appeal were filed. In this appeal, the plaintiff/appellant shall forthwith be referred to simply as appellant whilst the defendants/respondents, as respondents, respectively. Appeal is by way of rehearing: A stream of decided cases has settled the rule that an appeal is by way of rehearing the case. The appellate court is therefore enjoined by law to scrutinize the evidence led on record and make its own assessment of the case as though it was the trial court. Where the court below comes to the right conclusion based on the evidence and the law, its judgment is not disturbed. On the other hand, it attracts being upset on appeal where the judgment is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A. In Tuakwa v Bosom (2001-2002) SCGLR 61, the Supreme Court laid down the rule as follows: “An appeal is by way of re-hearing, particularly where the appell- ant alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence….. In such a case, it is incumbent upon an appellate court in a civil case on analyze the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as satisfy itself that on a balance of probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.” [emphasis mine] In making findings of fact, the basic rule is that it is the trial court has the that mandate to do so based on evidence led at the trial because it has seen and heard the witnesses. The appellate court therefore shall be slow in setting aside or reverse findings of fact supported by evidence on record. See: Agyenim-Boateng v Ofori & Yeboah (2010) SCGLR 861. However, where the findings cannot be justified, or that they are perverse or otherwise unsupportable by the evidence, the appellate court has the duty to disturb the findings. See: Koglex Ltd v Field (1999-2000) 2 GLR 437. We now proceed to consider the grounds of appeal and to begin with, I shall deal with ground (c). Ground (c): Whether the learned erred when he held that the plaintiff had no capacity to mount this action. Now, having regard to the challenge to the appellant’s capacity in this case, it is prudent for this court to address it at the early stages of its consideration of the appeal before proceeding to deal with the other grounds of appeal. Challenge to the capacity of a party to mount or initiate an action goes to the root of his case. As a matter of law, capacity relates to the legal personality of a party to proceedings and where the capacity of a party to mount an action was put into question, he cannot be heard to say that he must be given a hearing because he has a cast-iron case. He carries the burden to prove capacity before the case may be heard on its merits. In Sarkodee I v Boateng (1982-83) GLR 715 the Supreme Court stated the law that it was elementary that a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence. And that it was no answer for a party whose capacity to initiate proceedings had been challenged by his adversary, to plead that he should be given a hearing on the merits because he had a cast-iron case against his opponent. The case, R v High Court, Accra; Exparte Aryeetey (Ankrah – Interested Party) (2003-04) SCGLR 398 for eg., illustrates the principle that any challenge to capacity puts the validity of a writ in issue and that the question of capacity, like the plea of limitation, is not concerned with the merits of the case so that if the axe falls, then a defendant who is lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled upon his rights. Two of the latest authorities on capacity are Standard Bank Offshore Trust Co. Ltd. v. National Investment Bank Ltd. & 2 Others [2017-2018] 1 SCLRG 707 and Nii Kpobi Tettey Tsuru lll & 2 ors v Agric. Cattle and 4 ors Supreme Court, suit No. J4/15/2019 dated 18th March 2020. The only exception to this old established rule requiring proof of capacity is where capacity was never put in issue. See: Amissah-Abaidoo v Abaidoo (1974) GLR 110. There however, appears to be some development in the law. The current position of the law is that the court is bound to raise capacity even if the opponent does not raise it and even if the parties do not contest the case on the basis of want of capacity. See: Owuo v Owuo [2017-2018] 1 SCLRG 730 in which case the apex court held that the court has the duty to raise capacity even if the parties do not raise it as an issue between them. It goes without saying, therefore, that once capacity of the appellant in the instant appeal was put in issue, he carried the burden to establish it. Now, the basis upon which the court below non-suited the appellant for lack of capacity was that the original plaintiff [Asafoatse Kwetey Akorsorku III] who instituted the action lacked the capacity to do so. That being the case, the subsequent substitution of him by Asafoatse Nartey-Wayo Akamisa II did not help matters either, so long as the original party sued on wrong footing, the court below opined. For purposes of clarity, I set out hereunder in extenso, the relevant portions of the judgment on the point. “As has been noted, this action was initiated by Asafoatse Kwetey Akorsoku III, the then acclaimed head of the Djanmaku Family on behalf of the said family in accordance with Order 4 Rule 9 of the High Court (Civil Procedure) Rules, 2004 (CI 47). However, on the 29th October 2013, Asafoatse Nartey Wayo Akamisa II applied to replace Akorsoku III by substitution. In the supporting affidavit of the said application, Akamisa II, the depo- nent therein solemnly swore that Akorsorku III was ‘no longer the head of family of the Djangmaku family of Old NIngo’ and that he was the head of the Djanmaku family of Old Ningo.” The learned trial judge explained himself that if he understood Akamisa II, the representation made for the substitution was that Akorsoku III at a point was the head of Djangmaku family but later ceased to be the head and that Akamisa II had duly been appointed as the next head of the Djanmaku family. That being the case, Asafoatse is not the same as a head of family and that in law, it is the head of family who is clothed with the requisite capacity to sue. To the learned trial judge therefore, the Asofoatse’s position that Akamisa II claims he assumed by appointment in October 2012 did not qualify him to sue. To take charge of a case commenced by Akorsoku III who by Akamisa II representations was not the one to have instituted the action in the first place, the trial court then ruled. Is the holding that the appellant lacked capacity supportable by the facts or evidence led on record? Under Akan customary law, the head of a family as representative of the family is the proper person to institute suits for the recovery of, and or in defence of family land. Where the authority of a person to sue in a representative capacity was challenged, the onus was him to prove that he is indeed the head of family and had been duly authorized to sue. See: Appiah II v Boakye (1993-94) 1 GLR 417 SC. We have put the evidence and the analysis of the trial judge as regards capacity of the appellant in the instant appeal to critical scrutiny. On the evidence and on the law, I make a finding of fact that the appellant was clothed with capacity to mount the action and that the learned trial judge holding rather the contrary occasioned a grave miscarriage of justice to the appellant. The learned trial judge erred when he held that the appellant lacked capacity to sue. As noted supra, the lower court dwelt so much on the affidavit deposed to by Asafoatse Nartey-Wayo Akamisa II filed 29/10/2013 in support of the motion for substitution in which it was averred to in paragraph 5 thereof that the plaintiff [Asafoatse Kwetey Akorsoku III] was no longer the head of family of the Djanmaku family of Old Ningo. Paragraphs 5, 6 and 7 of the affidavit worth reproducing here: “5. That the plaintiff is no longer the head of family of the Djangmaku family of Old Ningo. 6 That I am presently the head of the Djangmaku family of Old Ningo. 7 That in the circumstances this is a proper case where this Honourable Court ought to strike out the name of the plaintiff, Asafoatse Kwetey Akorsoku III and substitute the applicant as the plaintiff in this suit.” See: pp 69-70 roa [vol.1] It bears stressing, in that affidavit, the deponent never said Asafoatse Kwetey Akorsoku III has never been the head of family or that at the time he mounted the action he has ceased to be the head of family. Having rather stated that he formerly was, but at the time he [Asafoatse Akamisa II] filed the motion for substitution the former has ceased to be the head of family, the conclusive presumption was that Asafoatse Kwetey Akorsoku III was once the head of family. On record, the instant action was filed 04/04/2011 while the motion for substitution of the original plaintiff was filed 29/10/2013, approximately 2 and half years after the writ has been filed. Once it has not been denied that the original plaintiff was the head of family at the time he issued the writ, in law whatever he did in the name of, and or on behalf of the family remained valid and cannot be invalidated by reason of his subsequent destoolment or whatever. In support of this legal proposition, I rely on the principle the Supreme Court espoused in R v The Lands Commission; Exparte Vanderpuye Orgle Estates Ltd (1999- 2000) 1 GLR 75. The Supreme Court in the case supra, speaking through Bamford-Addo JSC adopting and applying the rule in Amankwah v Kyere (1963) GLR. 409, stated the law that once a chief has been duly and properly installed and recognized as such, he has authority and capacity in law to enter into an agreement binding on the stool. The case held further that a stool is a corporation sole and provided the occupant has been elected and installed in accordance with law and custom, a person contracting in good faith with the stool is entitled to his remedies should the contract later be abrogated. Even where the appointment of a stool occupant is later invalidated his contracts are not thereby invalidated. Briefly stated, in the Exparte Vanderpuye Orgle Estates (supra), Nii Adja Kwao who had been installed in the 1950s signed a document of contract for sale of land on behalf of James Town Stool in 1973. However, he was subsequently destooled as the chief. One of the main issues that turned on for determination was whether the document Nii Adja Kwao signed was invalid. The Supreme Court held that if he was the agent of the stool in 1959 and acted on behalf of the stool then he had capacity to act for the stool at the time Exhibit 'A' was made in 1973 and that his acts would bind the stool. In such case the disposition of land made to respondent cannot be said to be void and that on the facts, while Nii Adja Kwao II was occupying the James Town Stool he had capacity to dispose of stool land and his later destoolment would not invalidate the valid disposition made by him in respect of Exhibit 'A' which binds the James Town Stool, the court stressed. On the evidence, although the defendants in the instant appeal had pleaded in their statement of defence disputing the capacity of the original plaintiff [Asafoatse Kwetey Akorsorku III] to sue, in the witness statement of the 1st defendant filed 14/06/2016 as appearing on pp 378-384 roa [vol.1] offering evidence on behalf of himself and all other defendants, rather challenged the capacity of the substituted plaintiff [Asafoatse Nartey- Wayo Akamisa II] and not that of the original plaintiff. Therefore, we hold that the original plaintiff laid the proper foundation to sue, inherited by the substituted plaintiff. Now, as regards the challenge to the capacity of the substituted plaintiff i.e. Asafoatse Nartey-Wayo Akamisa II, the trial court observed that being Asafoatse was not the same as head of a family. Stating the rule that it was the head of family who had the requisite capacity to sue, the learned trial judge proceeded to hold that Akamisa II’s claim that he assumed his position as head of family by appointment in October 2012 did not qualify him to take charge of a case commenced by Akorsorku III who was not the one to have instituted the action in the first place for want of capacity. The court further observed that the sworn testimony of Akamisa II was inconsistent with the sworn statement contained in the affidavit that supported the application for substitution. That the trial court explained that whilst Akamisa II claimed Akorsorku III was Asafoatse of Trominya Division of Djanmaku family, on the other hand, Akamisa II was Asafoatse of Wenguam Division of the Djangmaku family. On that basis, according to the learned trial judge, Akamisa II deceived the court when he applied to substitute Akorsorku III. It is worth reiterating the well-established principle of law that where the authority to person to sue in a representative capacity is challenged, the burden always rest on him to satisfy the court that he has been so authorized. See: Keelson v Mensah (1957) 2 WALR 271; Sokpui II v Tay Agbozo II (1951) 13 WACA 241 @ 242. However, evidence by him that he is the duly constituted head of family is sufficient to shift the burden of proof. See: Asare v Dzeny (1976) 1 GLR 473; Appiah v Boakye (1993-1994) 1 GLR 417 SC. Having regard to the evidence led in this case, we think the trial court erred when it took the view that once the substituted plaintiff, Asafoatse Nartey-Wayo Akamisa II was from a different division of the Djanmaku family he [the substituted plaintiff] lacked the capacity to sue or continue with the case. Challenging the capacity of a party to sue is not about the merits of his case. There is a pole of difference between the two. A defendant raising the capacity of a plaintiff to sue implies that the plaintiff or a party is not legally speaking, qualified to initiate the action although he might have a cast iron case. We think there is sufficient evidence in the instant case to hold that Asafoatse Nartey-Wayo Akamisa II offered credible evidence to show that he is an Asafoatse and head of family. He invited some witnesses to corroborate him on this. The witnesses included Nuumo Ghaot Kofi and Nene Kojo Wornor Opata. The evidence of Nene Kojo Wornor Opata is quite instructive and worth reproduction here: “Q. Can you tell the court the one who appointed Asafoatse Nartey Wayo Akamissah II as Asafoatse A. I did Q. In which capacity did you appoint him as Asafoatse A. I stood in the capacity as the head priest and also in place of the ancestors Q. Are you telling this court that it is the head priest that appoints Asafoatse for the Ga Adangbe A. Yes.” Having insisted that he is Asafoatse and a head of family and further called witnesses to corroborate him on that issue, we do hold that the substituted plaintiff did pass the litmus test of being clothed with capacity to continue with the action. Consequently, we hold that the appellant, whether the original party or the substituted, was clothed with capacity to sue. Consequently, the learned trial judge erred in holding that either the original plaintiff lacked capacity to sue or that the substituted plaintiff could not have continued with the case for lack of capacity. The established customary law practice among the Ningos is that the Asafoatse is the landowner of family land but he holds same in trust for the family. As a matter of fact and law, therefore, he is clothed with legal capacity to deal with family land and to sue in court to defend the family property. The principle finds support of research carried out by Professor Irene K Odotei in her works: “Migration Fishing and Development: A case study of Ningo”. The literary works was tendered in evidence as Exhibit A. At p.15 of Exhibit A [p.304 roa [vol.] is stated: “………. The landowner of every clan of Ningo is called Asafoatse. He is the custodian of the family land for the clan. He holds the land in custody for the ancestors, the living and those yet to be born. He leases part of the land to a kinsman for economic activities or development.” [emphasis supplied] It is noted that learned Counsel for the respondents at pp 16-18 of his written submissions has been at pains to advocate that the substituted plaintiff violated Order 2 r 4 of the High Court (Civil Procedure) Rules, CI 47 because he never indicated on the writ that he was suing in a representative capacity, implying that the writ/case was not proper before the trial court or that it nullified the proceedings. Our simple reaction to Counsel’s argument is that this is a moot point to advance at this stage of the case. It bears emphasizing that when the appellant was granted leave to substitute the original plaintiff he did subsequently apply to amend the writ and the statement of claim pursuant to the leave the court granted. Accordingly, it is on record that the respondents did also amend their defence and filed an amended defence on 12/06/2015 which was titled: “Amended statement of defence subsequent to plaintiff’s filed on 22/5/15”. See: pp 96-99 roa (Vol. 1). It is a right proposition of law to state that where the non-compliance does not go to the root of the case it does not render the proceedings void. It has to be reiterated that regardless of the defect in the writ, the defendants in the instant case participated in the proceedings and led evidence at the trial as well, and as noted supra, they amended their defence in pursuance to the appellant’s amended statement of claim. In the light of this, the defendants were presumed to have waived any irregularity in the writ or the statement of claim. Therefore, the seemingly defect in the writ or in violation of Order 2 r 4 of CI 47 by reason only that the plaintiff did not state that he was suing in a representative capacity did not render the writ a nullity. At worse, it could be voidable but which the defendants never took steps to set it aside timeously. As Azu Crabbe JSC observed in Yeboa & anr v Bofour (1971) 2 GLR 199 @ p. 222: “………..[The relation of rules of practice to the work of justice is intended to be that of hand-maid rather than mistress, and the court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedures………….” That leads me to addressing the other grounds of appeal, continuing with ground 4 of the appeal. 4th ground: The learned judge gravely erred when he held that the plaintiff failed to lead evidence to show the extent of the disputed land. What does identifying a disputed land mean and what is the consequence if a party failed to identify the land, the subject matter of the trial? The traditional view has been that the party who seeks a declaration for title to land, etc., carries the burden to prove distinctly, the identity of the land he claims and to rely on the strength of his case and not to rely on the weakness of his adversary otherwise he risks being ruled against. That view finds expression in a number of decided cases including Anane & ors v Donkor & anr (Consolidated) (1965) GLR 188 wherein the Supreme Court speaking through Ollenu JSC held that a claim for declaration of title or an order for injunction must always fail, if the plaintiff failed to establish positively the identity of the land claimed with the land the subject-matter of his suit. He held in that case that on that the evidence, the plaintiff and co-plaintiff had failed to prove the identity of the farms, the subject-matter of their mortgage with the farms the subject matter of the present suits. Consequently, the claims of the plaintiff and the co-plaintiff were dismissed. It is particularly important to stress that the principle Ollenu JSC espoused in Anane & ors v Donkor & anr (supra) has come under legal microscope and it has been severely criticized as being too wild a proposition. The Supreme Court, for e.g., in Jass Co. Ltd v Appau (2009) SCGLR 265 observed as follows: “……… As a matter of fact, the contention that a party must prove the identity of the disputed land with certainty to enable the court decree title in the party does not mean mathematical identity or certainty. It is enough, such as in the instant case, where the defendants have been able to establish the identify of land purchased from the vendor.” Standard of proof in civil case: The law has been stated that the standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier's belief in the preponderance of probability. But "probability" denoted an element of doubt or uncertainty and recognized that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected. See: Bisa & ors v Tabiri @ Asare (1987-88) 1 GLR 360 SC. Parties ad idem of the same land: Where parties were not in doubt as to the identity of land where both claimed title to the same described land, it is an elementary principle that a party is not required to prove or establish what is not in dispute. Attah v Amoasi (1976) 2 GLR 201 C/A affirmed by the Supreme Court in Adwubeng v Domfeh (1996-97) SCGLR 660 @ 672. In the instant appeal, the plaintiffs and 1st and 2nd defendants all agreed that the disputed land is the Ladorwayo land. Each side claims that the person who originally purchased the land from Chief of Amanorkrom of Akuapim was their common ancestor. So the parties were certainly ad idem as to the identity of the disputed land. In paragraphs 10 & 11 of the witness statement of Asafoatse Nartey-Wayo Akamisa II filed 03/05/2016 as appearing on pp 283-288, he gave the description of the land he claims and its mode of acquisition. Paragraphs 10 -11 recount: “10. I state positively that the Ladorwayo land is the bona fide property of the Djangmaku Wenguam famioy of the Djangmaku We (clan) of Ningo. The Ladorwayo land is all that piece of land situate, lying and being at Ladorwayo and bounded on the North West by land at Odumse, the property of the Akugbey family of Lowe, Ningo; on the South East by land at Nihetsokunya, the property of Lowerkponor, Ningo; on the South-West by land along the Mangotsonya boundary, the property of the Djangmaku family; North-East by land at Vakpo, the property of Blemano family of Bantama-Kabiawe, Ningo; on the South at Mangotsonya, on the West by land at Otsebreku and covering an approximate area of 1500 acres. 11. The land described above was first purchased by Asafoatse Nartey Wayo Akamisa I [my predecessor in office] during the 2nd half of the 19th century from one Nana Darko or Dankwa. The said Darko or Dankwa was the chief of Amanorkrom in Akuapim. My Lord, this was after the Akwapims, with the support of the people of Ningo had defeated and overcome the Akwamus who previously exercised dominion over the land. The people of Amanor were the “owner” of the Lador- wayo lands. It was when they decided to move further north onto the mountains that most of the lands were sold to persons from the various coastal communities.” Now, the witness statement filed on behalf the 1st defendant on 14/06/2016 by Samuel Bedai had this to say in paragraph 4 thereof: “4. The Bedai family of Ladowayo are the owners of a large track of land located, situate and being at Ladowayo as indicated above and measuring in area 479.832 hectares more or less and bounded mainly by the land of Fiesu family of Lowe, the Blemanor family of Bantama, Kebiawe and belonging to the people of Amanfro and Prampram.” It was also averred to in paragraphs 6 and 7 of the witness statement as follows: “6. The family of the first three plaintiffs inherited the said land in Ladowayo from time immemorial from their forbearers who acquired same from one Amanor Mantse from Akuapem. 7. The Bedai family legally conveyed portions of the said land to fourth and fifth defendants.” Indeed, it is the case of the 1st and 2nd respondents that it was out of the disputed land situate and being at Lardowayo that they carved 136.3 acres and granted same to the Ghana National Association of Teachers and Netas Properties Ltd for physical development ie estate development. The undisputed fact is that Netas Properties Ltd are into large scale estate development. Given that the defendants have stoutly denied the claim of the plaintiff, it was obvious that the defendants intended to say: “The family of the first three defendants inherited the said land in Ladowayo………….” instead of saying “the family of the first three plaintiffs inherited the said land” averred to in paragraph 6 of the witness statement referred to supra. Significantly, at the application for direction stage of the case the court appointed a surveyor to draw a composite plan based on the respective site plans of the parties vis-à- vis the extent of land each party claimed on the ground. Upon completion of the work, the court appointed Surveyor submitted his report to the court, to which he annexed the composite plan he drew and tendered same in evidence as Exhibit CE 2. See: pp. 792-793 roa [vol. 3]. A cursory look at Exhibit CE 2 clearly shows that whereas the plaintiff was claiming a larger portion of land the defendants’ was less in terms of size. However, the land claimed by the defendants is imbedded in the area claimed by the plaintiff. In other words, it formed part of the land the plaintiff claims. It is, therefore, not difficult to find that the parties were ad idem as to the identity of the land, the subject matter of the trial. Grounds 5 & 6: It is appropriate at this stage to combine grounds 5 & 6 and address them together since they seek to speak to the same issue. In ground 5, the appellant contends that the respondents were unable to establish any valid mode by which they acquired the land from the appellant’s family. Per ground 6, the appellant claims that the trial court erred when it failed to address itself to the central question as to whether long possession could have validly ripen into ownership. There is an unbroken chain of judicial authorities that posit that long possession per se did not avail the possessor against a claimant, if the claimant was the true owner or could show that he or she derived title from the true owner. This court in Saaka v Dahali (1984-86) 2 GLR 774 C/A held that a licensee under customary law did not by virtue of long user per se acquire (subject to the provisions of NRCD 54) an interest in the property which would entitle the licensee to deprive the owner or his successor of ownership. Additionally, this court in Duro & anr v Anane (1987-88) 2 GLR 275 [Coram: Abban JSC, Osei-Hwere & Lamptey JJ. A] found on the evidence that the defendants were gratuitous licensees of the plaintiff’s family. The court held that the defendants could continue their farming activities within the disputed area in peace only so long as they behaved themselves and recognized the title of their landlords; the moment they set up an adverse title against their landlords the latter could revoke that licence and they would become trespassers if they remained on the land thereafter. The Court of Appeal reiterated the principle that even if the defendants in that case had been on the disputed land for some years as they claimed, their so-called long occupation could not convert their gratuitous licence into ownership. It could also not create any equitable interest because it was not the case that they and their ancestors had been in adverse possession for many years and had been led to regard the dispute area as theirs and had spent money defending their rights to it to the knowledge of the plaintiff’s family so as to create equitable estoppel in their favour. Similarly, this court has stated the rule in Mamudu Wangara v Gyato Wangara (1982-83) GLR 639 C/A that no matter how long a licensee was in possession it would not entitle him to any claim of ownership. The fundamental issue to address in the instant appeal is, given the evidence led on record, whether the 1st and 2nd defendants and their family are mere licensees and/or that the plaintiffs are rather the real owners of Ladonwayo lands, the subject matter of the trial. Significantly, both parties in the instant case claim that their common ancestor purchased the disputed land from the chief of Amanorkrom, Akuapem, at the time. Whilst the appellant maintained that it was his ancestor/predecessor Asafoatse Nartey Wayo Akamisa I that purchased the disputed land, the respondents, on the other hand, claimed that their ancestor, Tei Oberko Bedai who acquired it by purchase. But it isn’t ironic that whilst the appellant’s evidence as regards the purchase and acquisition was consistent with his pleadings, the respondents under cross-examination of their witness shifted their position. It is worth reproducing some aspect of the evidence in support. The appellant in paragraph 4 of his amended statement of claim as appearing on p. 560 roa [vol.3] had averred that his ancestor/predecessor did acquire the disputed land in the 2nd half of the 19th century from Nana Darko otherwise known as Nana Dankwa of Akwapim. Under cross-examination the appellant repeated the averment as follows: “Q. It is your case that the land in issue was purchased by your ancestors. Is that correct. A. That is so Q. Can you give us the name of your ancestor who purportedly this land A. Asafoatse Nartey Wayo Akamisa I whom I succeeded was the one who bought the land. Q. Can you give the name of the grantor from whom he purchased the land to the court. A. Nana Darko or Dankwa of Amanorkrom.” This piece of evidence was corroborated in material particular by the witnesses of the appellant. At the risk of sounding repetitive, the story of the respondents started to change in contrast with their pleadings when the substituted 1st defendant/ respondent mounted the witness-box. In their amended statement of defence filed 12/06/2015 as appearing on pp 96-99 roa [vol.1] the respondents averred that it was their ancestor Tei Oberko Bedai that purchased the disputed land. However, under cross-examination he admitted that Tei Oberko Bedai was rather sent to pay for the land and that it was Kwetey Akorsorku who provided the purchase money. I reproduce hereunder that aspect of the evidence: “Q. Do you know Tei Oberko Bedai A. Yes my Lord, he is my grandfather Q. It is your case that this same Tei Oberko Bedai purchased the disputed land A. That is not so, he was sent to go and pay for the land Q. He was sent by whom A. He was sent by his grandfather and his father Q. Who was his grandfather A. His name is Kwetey Akorsorku. The name Akorsorku is a common name but his actual name is Kwetey.” See: pp 651-655 roa [vol.3]. The cross-examination continued: “Q. Are you aware that Tei Oberko Bedai testified in the Jackson’s proceedings. A. Initially I did not know but my lawyer told me he was a witness in the Jackson’s proceedings. Q. And he testified as regards this disputed land. A. I have stated in court that I have not read the Jackson report. I was informed by my lawyer that Tei Oberko said so in the Jackson’s proceedings. Q. It is therefore not correct for you to say that he acquired the land. A. It is correct because he was sent to with the money to pay for the land.” In reaction to some other questions pressed under cross-examination and in particular, if he was aware that the 1st respondent he substituted has in an earlier suit No. 169/03 [tendered in the instant suit as Exhibit H] testified that the Ladorwayo land was purchased by Asafoatse Kwetey Akorsorku, the witness admitted it was their grandfather Kwetey Akorsorku who did. He added however, that any reference to Bedai meant Kwetey Akorsorku. See: pp 651-655 roa [vol.3] Having regard to the inconsistencies in the story of the respondents, but the story of the appellant was consistent with his pleadings, as a rule, the latter’s is preferable to the former’s. This principle was applied in Appiah v Takyi (1982-83) GLR 1 when the Court of Appeal postulated that where there was a departure from pleadings at a trial by one party whereas the other's evidence accorded with his pleadings, the latter's was as a rule preferable. It is noted also that beyond the inconsistencies in the story of the respondents, the original 1st defendant whom the current 1st respondent substituted, admitted under oath in cross- examination that in an earlier case [tendered in evidence in the instant case as Exhibit H] the disputed land was purchased by Kwertey Akorsorku. Under the circumstances, we hold that the disputed land was purchased by the ancestor of the appellant and not Tei Oberko. As the witness for the respondent admitted, it was Kwertey Akorsorku who purchased the land but sent the purchase money through Tei Oberko. A courier through whom the purchase price was paid could not have been the purchaser and or owner of the dispute land. Grounds 1, 2 & 7: We shall combine grounds 1, 2 and 7 and address them simultaneously. i) Judgment being against the weight of evidence; ii) the learned trial judge failed to adequately consider the totality of appellant’s case; iii) the trial court wrongly resting its decision on Awulae Attirbrukusu v Oppong Kofi (supra). This court has always been guided by the principle that where an appellant has complained that the judgment cannot be supported having regard to the evidence led at the trial, it was incumbent on the appellant to so demonstrate it. The settled law is that when an appeal hinges on that omnibus ground that the judgment is against the weight of evidence, duty is cast on the appellant to demonstrate the lapses contained in the judgment complained of. See: Djin v Musah Baaku (2007-2008) 1 SCGLR 686. The Supreme Court in R v Central Regional House of Chiefs & Ors; Exparte Gyan IX (Andoh X – Interested Party) Civil Appeal No. J4/11/2013 of 19/07/2013 (unreported) restated the principle that an appellant has a duty to clearly show where the court below went wrong or where it failed to take into consideration all the circumstances and the evidence or had drawn wrong inferences without any evidence in support. See also: The R v Eastern Regional House of Chiefs; Exparte Divine Tetteh Ologo & 5 ors (K. K. Nyumutei & 5 ors – Interested Parties) (2017) 114 GMJ 63 CA. It is worth repeating the trite law that making primary findings of fact is the preserve of the trial courts and whenever such findings are supported by evidence on record, they are not be disturbed. See: Quaye v Mariamu (1961) GLR 93 SC; Nkansah v Adjabeng (1961) GLR 465. In sum, therefore, the appellant who contends that a judgment is against the weight of evidence carries the burden to demonstrate that per the judgment of the trial court, the court overlooked some vital and or relevant pieces of evidence which if it took into consideration and properly applied them, would have titled the outcome in his favour. Now, the appellant in an attempt to prove his case averred in his witness statement found at pp 283-288 roa [vol.2] that he is an Asafoatse and or head of Djangmaku Wenguam Gate of the Djangmaku We [clan] of Old Ningo. He claimed that there are 4 main clans that constitute the Ningo Tribe. According to him, 12 sub-clans make up the Djangmaku Clan. He comes from the Wenguam Division and was installed as Asafoatse on 23/10/2012 and that it was the account of the installation that he took over the prosecution of the instant case from the original plaintiff, Asafoatse Akorsorku III. He explained that although Asafoatse Akorsorku III is from Djanmaku Trominya Division and he came from Djangmaku Wenguam Division, he was able to continue with the case because Djangmaku We consisted of 3 main gates namely, Wenguam [big house], Wewayom [small house] and Trominya, nevertheless they all did everything in common. They attended festivals together; attended installation of Asafoatse of any of the divisions etc. He tendered in evidence, Exhibit C series pictures in support. He claimed that the members of the 3 gates named herein trace their lineage to one common male ancestor called Nene Oklu Boso. He explained further that where there was no Asafoatse in any of the divisions at a time, an Asafoatse of one division can assume responsibility of that division where there was vacancy for an Asafoatse to oversee the activities of the affected division. According to him, that accounts for he taking over the prosecution of the case because the original plaintiff in this case had ceased to be an Asafoatse at the time. As regards ownership of the disputed land, the appellant recounted that the said land belongs to Djangmaku Wenguam family of Djangmaku We [clan] of Ningo. According to him, the disputed land was first purchased by Asafoatse Nartey Wayo Akamisa I during the 2nd half of the 19th century from Nana Darko or Dankwa, the then chief of Amanorkrom, Akuapem. He added that acquisition Asafoatse Nartey Wayo Akamisa I and other Djangmaku family members relocated from Old Ningo to settle on the Ladorwayo lands and have been in effective possession since and have their cemetery thereon. The feature [cemetery] was captured on the composite plan the court appointed surveyor drew. The appellant tendered in evidence exhibits to buttress his claim that included Jackson’s report; Francis Crowther report of 1915 and chiefs list. He narrated that Asafoatse Nartey Wayo Akamisa I was the elder brother of Kwetey Akorsorku and Kweinor Agbododo by the same father. Accoding to him, upon the demise of Asafoatse Kwetey Akorsorku I, his nephew Tetteh Agbanawo was made a caretaker chief or headman of the Ladorwayo village who reported to the Asafoatsemei of the Djangmaku We that has responsibility over Ladorwayo land. In support, he tendered in evidence Chief List [Exhibit D]. Narrating how the 1st and 2nd respondents’ family came to have something to do with the disputed land, the appellant stated that respondents’ family were/are members of Aneho family of Ningo who trace their lineage to a common ancestor called Bedai or Lotsu. According to him, that common ancestor migrated from Togo and settled at Ningo. Having settled at Ningo, according to the appellant, he joined the Kabiawe clan of Ningo and subsequently got married to a Kwekie, the elder daughter of Kweinor Agbododo. He continued that Bedai became an in-law to the Djangmaku family. Consequently, he followed his wife to Ladorwayo where he was given a portion of Ladorwayo to farm thereon and built his house. According to the appellant, this settlement grew and the place was later named as Bedaikope, named Bedai otherwise known as Lotsu. He insisted that the 1st and 2nd respondents’ family came in possession by licence by reason of Bedai’s association with the Djangmaku family and being permitted to farm on the land and built his dwelling house thereon. The respondents’ family are mere licensees of the Djangmaku clan and their long stay on the land cannot ground ownership, the appellant stressed. On the other hand, the case of the respondents is that the disputed land is the property of the Bedai family of Ladorwayo. According to the 1st respondent, the disputed land was purchased from a chief of Amanorkrom, Akuapem and that they have continued to be in effective possession since. In paragraph 26 of the witness statement, 1st respondent described the boundaries of Ladorwayo lands belonging to the Bedai family. In paragraph 28 he denied the appellant’s contention that their [Bedai family] ancestors are strangers who came to Ladorwayo through a marriage to a native of Djangmaku clan or tribe. He insisted that their ancestors are the original descendants of Djangmaku who acquired the disputed land. It was their case that they legally conveyed portions/parcels of the land to the 3rd and 4th defendants. See: witness statement of 1st respondent filed 11/04/2018. It has been pressed quite strenuously on this court by learned Counsel for the respondents in his written submissions, relying on Torgbui Dzokui II v Atise & 6 ors, Civ. App. No. J4/36/2015 dated 09/12/2015 and In re Adjancote Acquisition; Klu v Agyemang II (1982-83) 2 GLR 852 that the law was that a person in ownership and occupation was entitled to the protection of the law against the whole world except the true owner or someone who could prove a better title. Counsel argued further that the respondents produced at the trial both ancient and current as well as credible witnesses in proof of “their case beyond all probable doubt that the land in issue is legally theirs’. He argued on p.44 of his written submissions that per the pieces of reliable evidence the respondents and his witnesses gave there was no way the appellant can succeed in saying that the respondents failed to prove their counterclaim. He drew the court’s attention to the denial by the respondents that they ever admitted their ancestors came from Togo and went unto the disputed land by reason of marriage. Now, having juxtaposed the evidence led by the appellant against the respondents and having made a finding of fact supra that the appellant’s case was consistent with his pleadings in contrast with the respondents’, on the balance of probabilities, appellant’s case is more probable than the respondents’. Indeed, as held elsewhere in this judgment the evidence clearly established that it was never the respondents’ predecessor, Tei Oberko who provided the purchase money for the disputed land. He was just an instrument through which the purchase was made as the 1st respondent admitted under cross-examination. We find, having regard to the evidence led on record, therefore that the respondents were the licensees of the appellant’s family. In that regard their long possession of the disputed land per se did not and could not have ripen into ownership. Consequently, we hold that the judgment of the lower court is clearly against the weight of evidence. Learned Counsel for the appellant has chastised the lower court for resting its conclusion on the decision of the Supreme Court in Awulae Attibrukusu v Oppong Kofi [2011] SCGLR 176 instead of adopting and applying the Supreme Court case of Torgbui Dzokui II v Atise Adzamli (subt’d) & ors, Civ. App. No. J4/36/2015 dated 09/12/2015. In his view, the case Torgbui Dzokui v Atise Azamli (Civil Appeal No. J4/36/2015) dated 9th December 2015, is all on fours with the instant appeal and that the trial court ought to have preferred the case to the former. We have critically studied and considered the ratio stated in respective cases and we are of the respectful opinion that both cases seem agreed on the same principle that the stranger who has been granted possessory and user rights over land is subject to the recognition of the allodial ownership to the disputed land. In the concurring judgment of Torgbui Dzokui II v Atise Adzamli (supra) the Supreme Court speaking through Dotse JSC stated on p. 11 of the manuscript judgment as follows: “……… [W]e agree with the trial court the respondent family has possessory and user rights over the disputed land subject to the recognition of appellant’s allodial ownership to same. As allodial owners, it was wrong for the respondent to attempt in any way, to fetter the fishing and farming rights of the appellant’s family members over the wet and dry creeks on the disputed land……………...” In the Awulae Attibrukusu v Oppong Kofi (supra) the Supreme Court proceeding on the settled principle of law that no matter how long a licensee was in possession it would not entitle him to any claim of ownership speaking through Brobbey JSC observed at pp 181- 182 of the Law Report as follows: “………… where members of a totality different family migrate from one place to a different place and they are given land on which to settle (thereinafter called the settlement area), it is but common sense to assume that the settlers would be confined to live within the boundaries of the areas given to them to settle on (the settlement area)……………………” It is recalled that the respondents counterclaimed against the appellant. That in consequence meant they challenged the title of the appellant’s family to the disputed land. We hold that as licensees though the respondents acquired some usufructuary interest in the land they could only deal with it consistent with the licence and cannot assert title to the disputed land, thus challenging the title of the appellant. Although the authorities are to the effect that the respondents in the instant case as licensees could deal with the land in whichever form they desired in line with the grant/licence, for e.g., farming thereon, building their homes on the land and could convey portions to other strangers, they could have not conveyed as much as 139 acres to GNAT and some more parcels of the disputed to Net Properties Ltd (3rd respondent) land for massive physical structural development and for real estate development for valuable consideration without regard to the appellant’s family. It cannot be overemphasized that the license granted to the respondents’ family in the instant case, as the evidence established, was for farming and dwelling purposes by the respondents. Where the respondents now purport to change the nature of the licence by selling portions of the land for valuable consideration for massive real estate and physical development cannot be said to be in permissible limit. In the final analysis, the appeal succeeds and is therefore allowed in its entirety. The judgment of the trial court is hereby set aside and reversed in favour of the appellant. The counterclaim of the respondents is hereby dismissed because the trial court granted it against the weight of evidence. The appellant’s claim for trespass against the 1st and 3rd respondents is dismissed since the law is that a licensee cannot be held to have committed trespass until the licence was revoked. See: Quagraine v Adams (1981) GLR 599 @ 602. In conclusion, we give judgment for the appellant on his claim for a declaration of title to the disputed land. On the claims for reliefs for recovery of possession and for perpetual injunction, we think that given the peculiar circumstances of this case, it shall be better served if this court adopted the practical and common sense approach the Supreme Court adopted in Awulae Attibrukusu v Oppong Kofi (supra). That is to say that this court makes the order that the respondents family shall continue to be in possession provided they recognized the appellant’s family title to the land. In default, the appellant family reserves the right to revoke the possessory licence to the respondents family. Additionally, the respondent can only convey and grant to any party or entity for massive physical or real estate development with the consent of the appellant family. For the Ghana National Association of Teachers (GNAT) and Netas Properties Ltd not to lose their land, we direct that they should attorn tenancy to the plaintiffs, they being the allodial owners of the land in issue. Appellant’s costs shall be assessed at Gh¢10,000.00 sgd P. BRIGHT MENSAH (JUSTICE OF APPEAL) sgd HENRY KWOFIE (JUSTICE OF APPEAL) sgd NORVISI ARYENE (JUSTICE OF APPEAL) I AGREE I ALSO AGREE COUNSEL: ALEXANDER K. K. ABBAN WITH ALFRED PAAPA DARKWAH FOR THE PLANITFF/APPELLANT KWAKU ANSAH FOR THE DEFENDANTS/RESPONDENTS 37