ADONWULE VRS NYANDE (NR/DC/KPA/A1/4/24) [2024] GHADC 444 (20 September 2024)

IN THE DISTRICT COURT SITTING AT KPANDAI ON THE 20TH DAY OF SEPTEMBER, 2024 BEFORE HIS WORSHIP GODSON ETSE KUMADO, ESQ.- THE DISTRICT MAGISTRATE JAMES NTOSO ADONWULE OF BALAI VRS NKIANE NYANDE HEAD OF NKIANE FAMILY OF BALAI ] ] ] ] ] SUIT NO: NR/DC/KPA/A1/4/24 PLAINTIFF DEFENDANT ________________________________________________________________ JUDGMENT ________________________________________________________________ INTRODUCTION The Plaintiff instituted the instant action against the Defendant for the reliefs as endorsed on his writ of summons as follows: 1. A declaration of title to one-half building plot lying and situate at Balai township on the southern part of the main Salaga road, bounded by Nkeane Nyande to the eastern part, Baleane Anupoalowe to the southern part, one Yane Kinkide of the western part and the northern part is the main Kpandai-Salaga road. 2. Recovery of the said land of about one-half plot that defendant encroached. 3. Damages on the said land. 4. An order of perpetual injunction restraining the defendant, his agents, representatives and their workmen from anyway interfering with Plaintiff and his family quite enjoyment of the said land. 5. Cost of trial. 6. Any other order that the court may deem fit. The Defendant on his appearance in Court upon service of the Plaintiff’s writ pleaded not liable to the reliefs claimed against him by the Plaintiff. The Court therefore ordered both parties to file their respective witness statements in proof of their cases. THE CASE AND EVIDENCE OF THE PLAINTIFF By the summary of subject matter of claim attached to his writ, the Plaintiff states that the Defendant is the head of the Nkiane family. The disputed land was acquired by his grandfather by name Kwadjo Akorpu and members of his family in the 1930s. The disputed land shares common boundary with the grandfather of the Defendant and there is a lane between the two lands. It is the case of the Plaintiff that one Baleanefua Nyande and Kwame Nyande built their houses on the lane between the two lands and are now encroaching on his plot. It is the case of the Plaintiff that he built a bathroom on his plot but the said children of the Defendant encroached on the side of his said bathhouse and are claiming same as their grandfather’s property. It is the case of the Plaintiff that the matter was reported to the Odikro of Balai but no attempt was made at settlement hence the instant suit. The Plaintiff testified for himself and filed witness statements for two other witnesses. By his witness statement which was adopted as his evidence in chief, the Plaintiff repeated that the land in dispute was acquired by his grandfather and other members of his family in the 1930s. According to the testimony of the Plaintiff, the disputed house shares a common boundary with the land of the Defendant’s grandfather. He also stated that the present Defendant’s family house was formerly a plot which lied between his grandfather’s land and the land of the Defendant’s grandfather. The Defendant then decided to build on the said plot but none of them raised issues. According to the Plaintiff, one Baleanefua Nyande and Kwame Nyande built their houses on the lane which lied between his land and the Defendant’s land and are now encroaching on his plot. He built a bathroom around the end of his building plot and the said children of the Defendant encroached on the side of his bathroom, claiming same as part of their grandfather’s property. Plaintiff repeated his case that the matter was reported to the odikro of Balai but no attempt was made to settle the matter. The Plaintiff further testified that after the demise of his grandfather in 1970, his father put up a room for his mother-in-law by name Amina Jorka around where his father planted a Kilampu tree. The Plaintiff also stated that in 1984-1985, his father put up a room for his sister called Bakisiane Atta at the same section of the plot which is in dispute. According to the testimony of the Plaintiff, in the year 2020 he put up a bathroom at the very area his father planted a Kilampu tree for the second time after the first tree fell. Kwame Nyande however came to create a drainage or gutter just beside his plot so as to prevent flooding of their house during the raining season. The Plaintiff continued his testimony that when the Defendant claimed ownership of the disputed plot, he invited the sanitary inspectors to look into the matter. The sanitary inspectors however told him that when a person’s plot is bigger than the usual measurements of a plot, it was their duty to take part of it and add to the other plot which is less than the usual plot measurements. He disagreed with the sanitary inspectors and he has reported the matter to the court for final determination. EVIDENCE OF AFIA BLISASE (PW1) In support of his case, the Plaintiff called PW1 to testify. She stated that the disputed land is the family property of Nana Kwadjo Akorpu who planted a tree around the plot. PW1 testified that the brother of her mother, Adonwule Kwadjo gave her mother the piece of land in dispute and built her a room there. PW1 continued her testimony and stated that after her mother passed, she put up a hut on the land in which she sold kenkey for so many years without any challenge from any person. She concluded that she knows the plot in dispute belongs to the Plaintiff. EVIDENCE OF AMA MBIMADONG (PW2) In further support of his case the Plaintiff called PW2 to testify. She stated that as at the year 1960 she was 15 years old and was at the time living with her parents and grandmother who was called Amina Jorka. She also stated that later in 1965 the Plaintiff’s father put up a room for Amina around the disputed plot but none of the Defendant’s family challenged the ownership of the plot. According to PW2, after the first Kilampu tree fell, Kwadjo Akorpu again planted a second Kilampu tree in the same area. A sister of Plaintiff’s father by name Bakisi also built a room by their room. According to the testimony of PW2, Bakisi’s daughter also erected a shed around the disputed building plot where she sold kenkey for years without any challenge by any person. PW2 also concluded her testimony by stating that the Defendant does not own the disputed plot. THE CASE AND EVIDENCE OF THE DEFENDANT The Defendant on his part testified for himself and filed witness statements for four other witnesses. However two of the said witnesses were not called by him to testify. According to the case of the Defendant, three brothers namely, the families of Anubamule, Nkiane and Awanle settled close to each other. Their grandfathers were the first to settle along the disputed subject matter. The Defendant continued that in those days there were no sale of lands and so boundaries were known by sweeping and cleaning to a particular end to signify the end of your plot. All that one needed to do was to consult the chief who will send his elders to show him the place to settle and to farm and that was what their grandfathers did. According to the Defendant, there was a big tree at the place where the Plaintiff constructed his toilet which served as a playground and was also used for ceremonies like funerals. The Defendant further testified that his father was the youth leader of the community at the time and so he planted Kilampo tree about 20 meters from the drainage. The said tree was planted to serve as shade for the youth of the community and same is still on the disputed land and also serves as a mark of their ownership of the land. According to the Defendant, it is the drainage that serves as boundary mark between the two disputed houses. The Defendant further stated that the matter was reported to the Odikro of Balai and the elders present when the matter was called are elders Yana Gonggong, Kofi Kumah, Blisase and Waba. These persons all confirmed that the Defendant did not encroach on the Plaintiff’s plot. The Plaintiff was rather told not to trespass onto the Defendant’s land to build his toilet but the Plaintiff despised the orders of the Odikro and went to put up his said toilet. According to the Defendant, the Plaintiff invited the sanitary inspectors who came to demarcate 20 meters of the disputed plot as a lane. The Defendant concluded his testimony by stating that Nyade Baleanfua and Kwame Nyade who are members of his family did not encroach onto Plaintiff’s land. EVIDENCE OF ASUKI KWAJO (DW1) DW1 testified that he and the grandfather of the Defendant were yam loading men at the Balai GPRTU. He lived and played much in the house of his co-worker and so he can testify to the truth regarding the disputed land. DW1 stated that there was big tree where the Plaintiff put up his bathroom which served as a commercial and playground. He also stated that the drainage served as the boundary between the lands of the Bakisana and the Nyade families. According to DW1, they tried several times as elders of the community to settle the matter but the matter could not be settled. DW1 concluded his testimony that the Defendant’s family is not encroaching onto Plaintiff’s land but are rather protecting their house from being flooded by rain water. EVIDENCE OF RUBEN ANUBAMULE (DW2) According to DW2, the boundaries of most of the houses along the disputed land are only ascertained by the way they cleaned. DW2 stated that there is a drainage or gutter between the Plaintiff’s and Defendant’s houses. He also stated that his brother Nkiane Nyande planted some trees to serve as shade for the youth because he was the youth leader at the time. According to DW2, the place the Plaintiff put up his bathroom was the place the Defendant’s father planted the tree which served as a playground and venue for ceremonies for the community. DW2 also states that the said tree served as the boundary mark between the Plaintiff’s family land and that of the Defendant. DW2 concluded his testimony that the Defendant did not encroach onto the Plaintiff’s family land. Instead, the Plaintiff is encroaching onto the gutter which serves as the boundary mark. He further stated that he was present when the two families were invited by the elders and the Plaintiff was advised not to trespass onto the Defendant’s plot but the Plaintiff refused. LOCUS INSPECTION BY THE COURT After the parties testified and called their witnesses, the court proceeded to visit the disputed land so as to appreciate the respective cases made by the parties. Both parties were present and the court asked each of the parties to show the boundaries of his land. The Plaintiff showed the place where he has currently constructed his bathhouse as the place his grandfather planted the first and second Kilampo tree. He also showed the remains of the cement floor which he said was the place his sister, Afia Blisase put up her shed in which she sold kenkey. Plaintiff also pointed the space next to that and said that was the place his grandmother, Amina Jorka put up her house. On his part, the Defendant also showed the boundaries of this land which stretched from the back of a four-room compound house on one side to the place the Plaintiff constructed his toilet. Defendant said his land stretches from the Plaintiff’s bathhouse to where Plaintiff pointed that his sister, Afia Blisase erected the shed to sell kenkey. He also pointed the place next to the Kilampu tree on his land as the place where his father planted the moringa and the “brofo nkatee” trees. Defendant also showed the court the drainage or gutter which he says is the boundary mark between his land and that of the Plaintiff. ISSUES FOR DETERMINATION BY THE COURT From the respective cases put forth by the parties, the main dispute between the parties is the boundary mark between their respective lands. The issues can be framed thus: 1. Whether or not the Kilampu tree planted by Plaintiff’s grandfather is the boundary mark between the Plaintiff’s and Defendant’s land. 2. Whether or not the gutter/drainage is the boundary mark between the Plaintiff’s and the Defendant’s land. BURDEN OF PROOF The rule in civil cases is that the burden is on a party asserting a fact to prove his claims on the preponderance of probabilities. He does so by adducing cogent and admissible evidence so that the court, on all the evidence could be convinced of the existence of the facts claimed by him. This requirement is as provided by Sections 10 and 11 of the Evidence Act, 1975 (NRCD 323), the relevant provisions of which are as follows: 10. Burden of persuasion defined (1) For the purposes of this Act, the burden of persuasion means 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. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11. Burden of producing evidence defined (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. The position of the law was further explained by the Supreme Court in the case of DON ACKAH v PERGAH TRANSPORT [2011] 31 GMJ 174 where the Court noted per Adinyira JSC that: 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 may fail. The method of producing evidence is varied and it includes the testimonies of the party 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 reasonable than its non-existence. The instant case is one of a boundary dispute. The law is therefore that the burden is on the Plaintiff to establish clearly the boundaries of his land. See the case of OBADZEN II v. ONANKA II [1982-83] GLR 46 where it was held that: In a boundary dispute, the plaintiff must establish his boundary. He loses his claim if he fails to do this. The burden is therefore on the Plaintiff to establish the extent of his land and the boundaries of the land claimed by him. In EFFIANA v. EFFIANA [1959] G. L. R. 362 the court noted: We think that this can be regarded as being in the nature of a boundary dispute between two adjoining land owners, and the burden therefore rested upon the plaintiffs to establish with particularity the extent of the land which they claimed and the boundaries of it.” The instant case is in the nature of a boundary dispute. The parties are no doubt, adjoining land owners. The Plaintiff wishes to extend development on his land but is being opposed by the Defendant as encroaching onto his land. As held by the cases referred to, the burden is on the Plaintiff to adduce evidence to establish the extent of his land and the boundaries of same failure of which his claim must fail. DETERMINATION OF THE ISSUES AND THE EVALUATION OF THE EVIDENCE As I have indicated, the main issue between the parties is where to place the boundary mark between the two lands. It has been the case of the Plaintiff that the land was acquired by his grandfather and members of his family in the 1930s. According to the Plaintiff, there was a plot between his grandfather’s land and the land of the Defendant’s grandfather which plot is where the Defendant has put up his house. The Plaintiff also stated that in 2020 he built a bathhouse right at the place where his father planted the first and second Kilampu tree. It was that time the Defendant also came to create a drainage behind the said bathhouse so as to protect his house from flooding. According to the Plaintiff, his grandfather planted a tree to show the boundary of his land. During his cross-examination by the Defendant he stated: Q. How then do you know where your grandfather put up his house? A. My grandfather planted a tree which indicates the end/boundary of his plot. I was also told of the place where the defendant’s grandfather’s house was. So, it meant that your father’s house was situated between the two plots. The Plaintiff again maintained his assertion that his grandfather planted a Kilampu tree on the land during his cross-examination of the Defendant. He questioned the Defendant thus: Q. Are you aware that my grandfather, Kwadwo Akuapo planted the Kilampo tree on the disputed land before your father planted his? A. I have stated that I do not know who planted the big Kilampu tree which served as a meeting place for the community. I came to meet it. Q. I am putting it to you that the said tree was planted by my grandfather. A. I never heard so. From the cases of the respective parties and their witnesses, it appears the parties are agreed that there was a big Kilampu tree at the place which the Plaintiff has constructed his toilet/bathhouse which served as a shade for the community. While the Plaintiff claims the said Kilampu tree was planted by his grandfather, the Defendant denies that assertion but says he does not know who planted the said Kilampu tree. DW1, Asuku Kwadjo who was called by the Defendant testified that the said tree was not planted by anyone. At paragraph 5 of his witness statement which was adopted as his evidence in chief, DW1 testified that there was a big tree at the place where the Plaintiff built his bathroom which served as commercial and playground. During his cross-examination however, DW1 stated that no one knows who planted the Kilampu tree, not even his grandfather. He stated during his cross- examination by the Plaintiff as follows: Q. You made mention of a Kilampu tree planted at the very place I constructed my bathroom. Who planted that tree? A. We all grew up and met the said tree but we do not know who planted it. ………. Q. You admitted that you do not know the person who planted the Kilampo tree. But you are here to give false witness. A. As for the Kilampo tree, even my grandfather grew up to meet it. We do not know who planted it. Q. My father and the members of my family who are far older than you told me that it was their father, Balai Kwadwo who planted the Kilampo tree on the disputed land. A. If any person told you so, it is not true. The Plaintiff asserts that his grandfather planted the Kilampu tree at the place where he has constructed his bathhouse to indicate the end of his land. The Defendant and his witnesses do not dispute the fact that there was a big Kilampu tree at the place where the Plaintiff has constructed his bathhouse. They however deny that the said tree was planted by the Defendant’s grandfather. According to the Defendant and his witnesses, no one knows who planted the said tree. The assertion of the Plaintiff having been denied by the Defendant, the burden lay on the Plaintiff to adduce evidence to prove that the said Kilampu was indeed planted by his grandfather. The law is settled that where a party makes an assertion which is denied by his opponent, then he must adduce further evidence to substantiate his claim. See the case of ZABRAMA v SEGBEDZI (1991) 2 GLR 221-247 where the Court held 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 this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” To prove his claim, the Plaintiff called PW1 and PW2 to testify. By her evidence in chief, PW1 Afia Blisase testified that the land is dispute belongs to the family of Nana Kwadjo Akorpu who planted a tree around the land. She continued that those who grew up to meet the tree knew the place to be called Nana Kwadjo Kilampu. The Plaintiff also called PW2, Ama Mbimadong to testify in support of his case. PW2 also stated that the Plaintiff’s grandfather planted the second Kilampu tree at the same area after the first one fell. The Defendant did not deny that PW1 and PW2 are persons who lived in the disputed house. None of the parties or the witnesses saw when the tree was being planted and who planted same. According to the Plaintiff, it was his father and the members of his family who told him that the said Kilampu tree was planted by his grandfather. While the Defendant and DW1 stated that there was a Kilampu tree planted at where the Plaintiff has constructed his toilet but no one knows who planted it, DW2, Bakapu Ruben stated in his evidence in chief that it was the Defendant’s father who planted the said tree and same was the boundary mark between the Plaintiff’s land and that of the Defendant. Then in the next paragraph, DW2 states that it is the drainage which serves as the boundary between the two lands. The confusion and inconsistency of the testimony of DW2 continued during his cross-examination by the Plaintiff. At one length DW2 stated that the Defendant’s father planted “brofo nkatee” and moringa trees at the place the Plaintiff has now constructed his toilet. He continued that the said trees were the boundary mark but the Kilampu tree was on the land of the Plaintiff. Then right after that, DW2 now says the Kilampu tree and the Baobab trees were two trees in Balai which were not planted by anyone. He stated during his cross-examination as follows: Q. You stated that Nyande planted a tree at where I erected my toilet. Are you aware that nobody plants a tree on somebody’s land? A. The tree (Brofo Nkatee and Moringa tree) planted by Nyande was on his land. Q. In the course of erecting my toilet, what was the reaction of the defendant? A. The very place you constructed your toilet was where the tree was planted so we reported you to the Odikro of Balai to stop you. …………. Q. Is it your case that the Kilampu tree is the boundary mark between my land and that of the defendant? A. I said the Brofo Nkatee and the Moringa tree is the end mark of the defendant’s land. The Kilampo tree is on your land. Q. The Brofo Nkatee tree was planted recently by Nyande. Nyande is a grandson to my grandfather. My grandfather lived on the land and planted the Kilampu tree before the birth of Nyande so the tree recently planted by him could not serve as the boundary mark between the two lands. A. The plots acquired by our grandfathers in the olden days were not measured. The defendant’s grandfather lived up to 91 years before he passed. There are two trees in Balai which were not planted by anybody. They are the Baobab tree and the Kilampu tree. The plaintiff’s grandfather planted mango trees. He did not plant the Kilampu tree. The evidence of DW2 is full of contradictions that it cannot not be relied upon by the court. His testimony to some extents, contradicts even the case of the Defendant who called him. The Defendant himself admits that there was a Kilampu tree planted at where the Plaintiff has constructed his toilet/bathhouse but he says that no one knows who planted the said tree. On his part, DW2 says it was “brofo nkatee” and moringa trees that were planted at the place Plaintiff has constructed his toilet. He further departs from the case of the Defendant that it is the said “brofo nkatee” and moringa trees that served as the boundary mark when the Defendant himself claims it is the drainage that serves as the boundary between the lands of the parties. The least said of the testimony of DW2, the better. On a consideration of the whole of the evidence, I am of the view that the Plaintiff has been able to prove that the Kilampu tree planted at the place he has constructed his bathhouse was planted by his grandfather. In his testimony during cross-examination, DW1 stated that such trees are not planted by the natives. According to him, the natives come together to get a stranger to plant the tree and then the family will take care of it. DW1 stated during his cross-examination by the Plaintiff as follows: Q. I am putting it to you that all commercial trees at Balai were planted by some specific persons. A. Yes, but in our culture those trees are not planted by one person. Such trees are not planted by the natives of Balai. They come together in groups and get a stranger to plant the tree and the family then take care of the tree. Thus, DW1 admits it is possible the said Kilampu tree was planted by someone. Going by his testimony, even if the said tree was not planted by a native of Balai, it is possible it was planted under the instructions of a native and afterwards he or she took possession of same. In my opinion, from a consideration of the whole of the evidence, I find it more probable than not, that the Kilampu tree which existed at the place where the Plaintiff has built his bathhouse was planted by someone, rather than growing by itself. Consequently, I find that the Plaintiff has been able to prove that it was his grandfather who planted the said Kilampu tree. The Plaintiff went on to give evidence of possession of the second Kilampu tree planted at the same place after the first one fell. According to the Plaintiff, his mother used the branches of the second Kilampu tree for firewood after same fell. He stated during his cross- examination of DW1 as follows: Q. I am putting it to you that my grandfather possessed the Kilampu tree as his. After the second tree fell my mother used the branches of the tree as fire wood knowing that the tree belongs to my family. A. That is not true. No contrary evidence has been provided by the Defendant to say that someone else possessed and used the said Kilampu tree as his or hers apart from simply denying the claim of the Plaintiff. I therefore hold that the Kilampu tree which existed at the place where Plaintiff has put up his bathhouse was planted by his grandfather. I now move on to the main issue, whether the said Kilampu tree was the boundary mark between the Plaintiff’s land and the Defendant’s land. If the answer is yes, then the consequence will be that the Plaintiff’s land stretches from the said Kilampu tree to the Balai- Salaga road. On the other hand, if it is found that the drainage is the boundary mark between the parties’ lands, then the consequence is that the Defendant owns all that land stretching from the drainage to the Balai-Salaga road. When the court visited the disputed land, the Plaintiff pointed out the place where the said Kilampu tree existed. Stretching vertically towards the Balai-Salago road therefore, the disputed sections of the land include the place where the Plaintiff claims his father built the house for his grandmother, Amina Jorka. It also includes the section of the land which the Plaintiff claims Afia Blisase (PW1) put up her shed to sell kenkey which place was also pointed by the Defendant as the exact place he put up his structure and did his blacksmith work. Also affected by this section is the place pointed by the Defendant that his father planted the moringa and “brofo nkatee” trees. Generally, one of the means by which one may prove ownership of land is by the party proving recent acts of possession over the land. See the case of AKOTO II AND OTHERS v. KAVEGE AND OTHERS [1984-86] 2 GLR 365-381. It is therefore safe for this court to consider the various acts of undisputed possession of the disputed portion of the land so as to determine which of the two; the drainage or the Kilampu tree, is the boundary mark between the Plaintiff and the Defendant’s land. The Plaintiff testified that after the demise of his grandfather, his father put up a room around where his father planted a Kilampu tree for Amina Jorka. He continued that PW2, Ama Mbimadong is the granddaughter of the said Amina Jorka. The Plaintiff again stated that in 1984-1985, his father, Adonwule Kwadjo put up a house for his sister, Bakisiane Atta at the section of the plot in dispute. He again stated that PW1, Afia Blisase is the daughter of the said Bakisane. The Plaintiff further stated that in the year 2020 he constructed the bathhouse at the very place where the Kilampu tree existed. According to him, that was when the Defendant came to create the drainage right at the bottom of his bathhouse so as to prevent flooding of his house. PW1 and PW2 were called by the Plaintiff to testify. PW1 stated that when she and her mother, Bakisi returned to Balai, her mother requested of her brother, Adonwule Kwadjo for land to put up her house. She stated that the disputed area was given to her mother and Adonwule Kwadjo put up a single room house for her mother on the said land. PW1 continued her testimony and stated that in the year 1980 after her mother passed, she put up a hut on the same plot where she sold kenkey for so many years without any challenge from the Defendant. On her part, PW2 testified that she was 15 years old as of the year 1960 when she lived with her parents and grandmother, Amina Jorka. She further stated that in the year 1965 Adonwule Kwadjo put up a house for Amina around the disputed plot without any challenge from the Defendants. She also corroborated the story of PW1 that Bakisi built her single room house by theirs and upon her death her daughter, PW1 erected a shed around the disputed plot where she sold kenkey for several years. On the court’s visit to the disputed plot, all of these structures which the Plaintiff and his witnesses mentioned are no more in existence on the land. The Plaintiff however pointed to the remains of a cemented floor lying on the disputed plot and adjacent the Balai-Salaga road as the place Afia Blisase (PW1) put up her shed where she sold kenkey. The Defendant does not deny that PW1 put up a structure on the disputed land to sell kenkey. He also does not deny that Amina Jorka built her single room house on the disputed plot. In fact the Defendant’s case is that he also erected his structure at the place PW1 put up her shed. His case is also that the remains of the cemented floor on the land is the remains of Amina Jorka’s house. He posed the following questions during his cross-examination of PW1: Q. Where you erected your hat in which you sell kenkey, I also set up my shop there. Was my structure constructed on the land of the plaintiff or it is on my father’s land? A. You constructed your structure on the land of the plaintiff. Again, during his cross-examination of PW2, the Defendant stated his case thus: Q. I am putting it to you that the remaining Afia Blisase’s house (cemented floor) is still in existence. A. I cannot tell whether it is true or not. I have not been there in a while since I left to confirm whether what you are saying is true or not. On his part the Defendant’s case has been that it is the drainage which serves as the boundary mark between his land and that of the Plaintiff. He testified that the drainage has been long in existence and same was created by rain water. Both of Plaintiff’s witnesses attested to the fact that the drainage has been long there. PW1 on her part admitted that the drainage has been there even at the time her mother constructed her house on the disputed plot and that same was created by the rain water. She stated during her cross-examination as follows: Q. At the time your mother’s house was being constructed, was the drainage or gutter in existence? A. The gutter/drainage is old. It was at the back of your house. Q. So, if you are saying that the gutter is behind our house, are you saying that the tree is on the plaintiff’s land since the gutter and the tree are at the same place? A. When it rains, the rain water created the drainage on the plaintiff’s land. PW2 also admitted that the drainage has been on the land for a long time. She also stated during her cross-examination as follows: Q. Was your grandmother’s house constructed in the gutter or beyond the gutter? A. My grandmother’s house was constructed in the gutter. The gutter was behind my grandmother’s room. Q. So, why is the plaintiff now constructing his house in the gutter? A. The gutter was shifted after my grandfather’s house collapsed. The plaintiff is constructing his house at the exact place where my grandfather’s house was. Both parties therefore do not dispute the fact that the drainage has been in existence a long time ago. In further proof of his acts of possession over the land, the Defendant stated that he put up his structure at the place where PW1, Afia Blisase also put her shed to sell kenkey. He again stated that his father planted moringa and “brofo nkatee” trees on the land and the “brofo nkatee” tree made a shade on his said structure. During his cross-examination, the Plaintiff did not dispute the fact that those trees were planted on the land. He instead said it was the Defendant’s brother and not father who planted those trees on the land. From the evidence of both parties and their witnesses, the following facts are not disputed: that Amina Jorka built a single room house on the disputed section of the plot; that Bakisiane, mother of PW1 built her house by that of the Amina Jorka on the disputed land; that PW1 put up a shed at the disputed section of the land; and that the Defendant also put up his blacksmith shop or structure at the disputed section of the land. At the disputed plot, just as shown by the respective site plans filed by the parties upon the orders of the court, the land shown by the Plaintiff as belonging to him lied at the right side from the Balai-Salaga road, while the land shown by the Defendant as belonging to him lied on the left side from the Balai-Salaga road. The said drainage lied in the middle of both lands. A further observation made when the court visited the disputed land was all the undisputed facts I have mentioned above took place at the right side of the disputed land from the drainage towards the land claimed by the Plaintiff. Specifically, the Defendant says he put up his structure at the place PW1 Afia Blisase put up her shed in which she sold kenkey. Even though I have already referred to that excerpt of cross-examination, for emphasis I will reproduce same. The Defendant questioned PW1 as follows: Q. Where you erected your hat in which you sold kenkey, I also set up my shop there. Was my structure constructed on the land of the plaintiff or it is on my father’s land? A. You constructed your structure on the land of the plaintiff. When the Defendant was asked to show his land, he indeed pointed to the space which Plaintiff stated PW1 put up her shed that he also put up his structure there. The place shown by the Defendant that he put up his structure lied on the right side of the drainage which he said was the boundary mark. Consequently, should one go by the Defendant’s own testimony that the drainage is the boundary mark between his land and that of the Plaintiff’s land, the inference is that he crossed over the drainage to put up his structure since the place pointed by him lied at the right side of the drainage while the land shown by him as belonging to him lied at the left side of the drainage. Should the drainage be held to be the boundary mark between the two lands, then the necessary conclusion will be that the Defendant constructed his said structure on the land of the Plaintiff, just as claimed by PW1 in her answer to his question. From the evidence led by both parties, I am of opinion that the balance of probabilities tilts in favour of the Plaintiff as the evidence led by him is not only supported by witnesses who had personal knowledge of those facts, but also aligns with the physical observation of the disputed land by the court. The cemented floor which Plaintiff says is the remains of the shed put up by PW1 was shown by him and viewed by the court in the presence of both parties. It is also not disputed by the parties that Amina Jorka also constructed her house at the said place. Although it is not denied that Defendant also put up his structure at that same place, his evidence contradicts his own case. According to the Defendant, it is the drainage which serves as the boundary between his land and that of the Plaintiff’s land. If that is the case, then his evidence supports that of the Plaintiff since one would have to cross-over the said drainage from the land pointed by him as belonging to him to where he claims he put up his said structure. The inference is therefore that he put up his said structure outside the said boundary mark claimed by him, which is to say, the said structure was constructed on the land of the Plaintiff. In addition to the above acts of possession, the Plaintiff also during his cross-examination of the DW1 stated that his family possessed the Kilampu tree as belonging to them and that even after it fell his mother used the branches of the tree for firewood. Though this was simply denied by DW1, no contrary evidence was provided to the effect that it was the Defendant or someone else did similar acts in respect of the tree and not the Plaintiff’s family. On a consideration of all the evidence, I am of the opinion that the Plaintiff has been able to prove that the Kilampu tree is the boundary mark between his land and that of the Defendant’s land. Not only has the Plaintiff proved with evidence that the Kilampu tree which existed at the place he has constructed his bathhouse was planted by his grandfather, he has also established by evidence positive acts of possession exhibited by his father and other members of his family on the land. All these acts proved by the Plaintiff are on the section of the land which is in dispute and which stretches vertically from the where the said Kilampu tree existed. In my opinion therefore, the Plaintiff has been able to prove affirmatively, that all that section of the land in dispute stretching from the place shown by him that the Kilampu tree planted by his grandfather existed, to where Amina Jorka, Bakisi and PW1 put up their single room houses and shed forms part of his family land. The Defendant on his part has failed to prove that the drainage is the boundary mark between his land and that of the Plaintiff. CONCLUSION AND FINAL ORDERS The main issue contested between the parties is whether the boundary mark between their lands is the Kilampu tree or the drainage. While the Plaintiff claims his grandfather planted a Kilampu tree at the place he put up his bathhouse which was the boundary mark between the lands, the Defendant claims it is the drainage that serves as the boundary mark. On a consideration of all the evidence, I find that the Kilampu tree which existed at the place the Plaintiff has constructed his bathhouse was planted by his grandfather. On the main issue whether the drainage or the said Kilampu tree is the boundary mark between the parties’ lands, I find that the Plaintiff has been able to prove that it is the Kilampu tree planted by his grandfather that served as the boundary mark. This is because in addition to proving that his grandfather planted the Kilampu tree, Plaintiff has also adduced evidence of acts of possession which members of his family exhibited on the section of the land in dispute. Even though not disputed that the Defendant also constructed his shed on the section of the land in dispute, his evidence in that regard contradicts his own case that the drainage is the boundary mark. This is because looking at the place pointed by the Defendant that he put up his shed, it meant he crossed over the drainage from his land which he says is the boundary mark to put up his said structure. I find on the other hand that the Defendant has not been able to prove that the drainage is the boundary mark between his land and that of the Plaintiff. From the forgoing, I grant Plaintiff’s reliefs 1, 2, and 4 as stated on his writ of summons which are a declaration of title to the land in dispute, recovery of possession and perpetual injunction against the Defendant. Accordingly, the Defendant, his agents, assigns and workmen and all persons claiming title through him are restrained from interfering with the Plaintiff’s enjoyment of his land. Plaintiff’s relief for damages is refused as he has not proved that the Defendant has undertaken any developments on the disputed section of the land for which he has suffered a loss or damage. I award cost of GH¢1,000 against the Defendant in favour of the Plaintiff. SGD H/W GODSON ETSE KUMADO