AMOQUANDOH III & 2 ors vrs MENSAH & 5 ORS (J4/21/2024) [2024] GHASC 45 (30 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A. D. 2024 CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING) ACKAH-YENSU (MS.) JSC GAEWU JSC KWOFIE JSC DARKO ASARE JSC CIVIL APPEAL NO. J4/21/2024 30TH OCTOBER, 2024 1. NANA ESSEL AMOQUANDOH III 2. EBUSUAPANYIN KOBINA OKOKYE PLAINTIFFS/RESPONDENTS/ 3. NANA YAW KWADROMANU II APPELLANTS VRS 1. RICHARD KWESI MENSAH 2. KWESI ALHAJI @ CHARLES GRAHAM 3. NII BOKOBOKO @ BODY MAN DEFENDANTS/APPELLANTS/ 4. SAMUEL BORTEY @ BODY MAN RESPONDENTS 5. ISAKA 6. HARUNA JUDGMENT DARKO ASARE, JSC : Page 1 of 26 In this appeal against the judgment of the Court of Appeal, Accra delivered on the 4th of May 2023, the Plaintiffs/Appellants seek the setting aside of the judgment of the court below and for judgment to be entered in their favour. The judgment under appeal reversed the trial court’s decree of title to the disputed lands in favour of the Plaintiffs/Appellants, and also overturned the trial court’s grant of other endorsed reliefs including recovery of possession, setting aside alleged alienations to and by the Defendants, and an injunction. The key question for our resolution in this appeal is whether the Court of Appeal correctly re-evaluated the evidence on record, applied the relevant law and consequently came to the right conclusion when it reversed the decision of the trial court in this suit. The grounds of appeal formulated by the Plaintiffs/Appellants are as follows:- i) That the judgment is against the weight of evidence adduced by the Parties before the trial court ii) That the judgment is not supported in law. For purposes of convenience, the Parties in these proceedings, shall bear the same designation they bore in the trial court and accordingly the Plaintiffs/Appellants herein shall be described simply as the Plaintiffs and the Defendants/Respondents herein as the Defendants. Facts The 1st, 2nd and 3rd Plaintiffs are the Odikro of Gomoa Fetteh Kakraba, the Ebusuapanyin of the Essel Amoquandoh Royal Family of Gomoa Fetteh Kakraba and the Omankrado Page 2 of 26 Chief of Gomoa Fetteh Kakraba respectively. The Plaintiffs’ case which was essentially founded on traditional evidence was that the disputed land, collectively described as Gomoah Fetteh Kakrabah lands was their ancestral property acquired by first settlement and that the said lands include Gomoa Fetteh Kakrbah, Mamfam, Abura, Tuansa, Abakum, Essel Kwame, Fetteh Gua, Onsewodem, and Ojo lands. According to the Plaintiffs, even though their families’ title to the said lands had been affirmed in various previous judgments and possession decreed in their favour by those judgments, the Defendants have wilfully trespassed onto the said lands, alienated portions thereof to third parties and have been operating thereon as land guards. Contending that the Defendants have spurned all previous demands on them to abate their acts of trespass on their family lands, the Plaintiffs found themselves left with no other option but to institute the instant action. The prayer for relief follows on from the particulars of the claim, and it stated as follows:- i) An order setting aside any purported alienation made to or by the Defendants relating to the Gomoa Fetteh Kakraba lands which alienation was made without reference to the ii) iii) iv) v) Plaintiffs A further order restraining the Defendants from having anything to do with Gomoa fetteh Kakraba lands except with the express authority of the Plaintiffs Recovery of Possession Damages for trespass Perpetual injunction restraining the Defendants their agents assigns privies and workmen from having anything to do with Gomoa Fetteh Kakraba lands including policing the land and/or patrolling on same as land guards. The Defendants’ answer to the Plaintiffs’ claim was direct and pointed. In a twenty one (21) paragraphed Statement of Defence which essentially set out a factual narrative, the Page 3 of 26 Defendants contended that the disputed land formed part of the lands vested in the Gomoa Fetteh Stool; that the various villages claimed by the Plaintiffs have their own “Odikros” who owe allegiance to their overlord Gomoa Fetteh Stool; that the Gomoa Fetteh Stool’s allodial title to the said lands has been confirmed by previous judicial decisions including a 1913 Supreme Court judgment; that portions of the disputed land had been validly conveyed by the Gomoa Fetteh Stool to a number of companies of which the 1st Defendant was a Director, that the Defendants themselves had no personal interest in the said land, and that in due course appropriate steps would be taken to join the affected companies to the suit. Claiming that the Plaintiffs were not entitled to the reliefs endorsed on the writ of summons, the Defendants invited the trial court to dismiss the said reliefs in their entirety. In due course, issues were settled by the Parties on an application for directions. Some of the questions formulated for trial are relatively inconsequential, but the ones which sought the court's aid in resolving the substantial differences between the Parties read as follows:- a) Whether or not the land in dispute belongs to the Plaintiffs’ family b) Whether or not Defendants have any interest in the land in dispute c) Whether or not the land in dispute belongs to the Gomoa fetteh Stool Before the commencement of hearing, an application for joinder was filed by Nana Abor Attah II Chief of Gomoa Fetteh and a number of Companies who claimed to have received grants from the Gomoa Fetteh Stool. The crux of those applications was that the applicants held various interests in the disputed lands and therefore were entitled to be joined to the suit to protect those interests. See page 293 vol. 2 of the record of appeal. Page 4 of 26 There is a Ruling at pages 466-467 vol 2 of the record, indicating that the application was refused by the trial court which came to the conclusion that the applicants were not necessary parties fit to be joined to the suit. The thrust of the trial court’s Ruling read that the “……Applicant (had) woefully failed the necessary and proper party test” At a later stage of this delivery, we would venture to revisit the significance of this singular decision along with its far reaching ramifications on the fortunes of the entire proceedings in this suit. Hearing of the suit eventually commenced before the trial court on the 4th of November 2019, with the Parties adducing both oral and documentary evidence. The Plaintiffs testified by the 3rd Plaintiff, whilst the Defendants testified through the 2nd Defendant and called two witnesses. Their seemingly contentious and factious testimonies were in effect no more than a reiteration of the matters set out in their respective pleadings and broke no fresh grounds. JUDGMENT OF THE HIGH COURT At the end of the trial the learned trial Judge expressed himself as having found favour with the Plaintiffs’ claims. He reasoned that the overwhelming evidence on the record, including previous decisions which amply supported the Plaintiffs’ claim of title to the disputed land, coupled with the Defendants’ explicit denial of any interest in the disputed land, justified a decree of title in favour of the Plaintiffs, an order for recovery of possession and an injunction. The Plaintiffs’ claim for damages for trespass was however Page 5 of 26 dismissed by the learned trial Judge who held the view that the Plaintiffs had failed to adduce sufficient evidence to identify the exact area of the alleged trespass. Naturally aggrieved and dissatisfied with the judgment of the trial court, the 2nd – 6th Defendants lodged an appeal to the Court of Appeal, grounding their challenge mainly on the assertion that the trial court’s conclusions were not substantiated by the weight of the evidence on record. COURT OF APPEAL JUDGMENT The appeal succeeded and the Court of Appeal reversed the findings and conclusions reached by the trial court. The Court of Appeal thereupon proceeded to dismiss the entirety of the reliefs endorsed by the Plaintiffs on the writ of summons. In the considered view of the learned Justices of Appeal, the absence of a claim for declaration of title on the Plaintiffs’ writ of summons, coupled with the failure to prove the identity of the disputed land with certainty, rendered the decree of title together with the order for recovery of possession as well as the grant of the injunctive relief, wholly unjustifiable. The learned Justices of Appeal further reasoned that the trial court’s refusal to join the necessary parties to the suit was an aberration that marred the entire proceedings as that decision failed to ensure that the proper parties were present for the real issues in controversy to be determined. Considering themselves aggrieved and dissatisfied with the decision of the Court of Appeal, the Plaintiffs have lodged this appeal, inviting this Court to reverse the said decision and enter judgment in their favour. Before turning to a consideration of the merits of the grounds of appeal formulated by the Plaintiffs in this case, we have not failed to observe, that ground (ii) of the notice of Page 6 of 26 appeal sins against the mandatory requirements of Rule 6 of C. I. 16, to the extent that apart from failing to state any particulars, where errors of law had been alleged, it is also strikingly vague. Rule 6(2) of the Supreme Court Rules 1996 (CI 16) requires a party alleging any misdirection or error of law to give particulars of same, whilst Rule 6(5) frowns sternly on grounds of appeal being expressed in vague terms. Ground (ii) of the Plaintiffs’ notice of appeal merely alleges in almost vacuous terms that the judgment under appeal was not supported by law. No particulars were provided as required by Rule 6(2) of CI 16. This renders the offending ground incompetent, constituting a gross abuse of the legal process, and liable to be struck down under Rule 6(5) of CI 16. See such cases as Ofosu-Addo v Graphic Communications Group Ltd [2011] 1 SCGLR 355 and also International Rom Ltd (No 1) v Vodafone & Fidelity Bank Ltd (No 1) [2015-2016] SCGLR 1389 This leaves the omnibus ground of appeal as the only ground worthy of our consideration, which we would now proceed to consider on its merits. GROUND I i) That the judgment is against the weight of evidence adduced by the Parties before the trial court At this rehearing learned Counsel for the Plaintiff has vigorously challenged the conclusions reached by the Court of Appeal, arguing that notwithstanding the absence of a specific endorsed relief for declaration of title, the trial court’s decree of title, recovery of possession and the grant of the injunctive relief in favour of the Plaintiffs was fully justified having regard to the overwhelming pieces of evidence on the record (including previous judgments) in support of those reliefs. Learned Counsel prays in aid the Page 7 of 26 principles of the law examined in such cases as Hanna Assi (No 2) v Gihoc Refrigeration Household Products Ltd (No. 2) [2007-2008] SCGLR 16. Learned Counsel next argues that the Court of Appeal fell into error when it reversed the reliefs granted by the trial court on the sole basis that the land in dispute had not been described with specificity. According to learned Counsel, since the said disputed lands comprised of known villages with well-defined boundaries, whose identities the Defendants never disputed in any way, the principle that barred a claim for declaration of title, trespass or an injunction, where the land in dispute was not properly identified with certainty, was inapplicable on the facts herein. Contending that the Court of Appeal’s interference with the trial court’s verdict was gravely erroneous, learned Counsel urged this Court to overturn the judgment of the Court of Appeal. In response, learned Counsel for the Defendants argued that despite their claim for trespass, the Plaintiffs had failed to identify the land allegedly trespassed upon with clarity, leaving the trial court with no option but to rightly reject the claim for damages for trespass. That being the case, so run the argument, the Court of Appeal could not be said to have fallen into error when it came to the conclusion that the Plaintiffs’ failure to properly identify the area of trespass was equally fatal to all the other reliefs endorsed on the Plaintiffs’ writ of summons, including the prayer for recovery of possession, and an injunction. Learned Counsel further denied the assertion that the previous judgments relied on by the Plaintiffs constituted res judicata, as there was no unity of interest and privity between the present parties and their predecessors in their earlier suits. Learned Counsel further contended that the refusal to allow a substitution of the deceased 1st Defendant, prior to the delivery of judgment as well as the refusal to join interested parties to the suit was fatal to the judgment delivered by the trial judge. Contending that the Court of Appeal was justified in reversing the trial court’s impugned decision, learned Page 8 of 26 Counsel for the Defendant invites this Court to dismiss the instant appeal as completely devoid of any merits. ANALYSIS OF ISSUES We have noted from the record that the 1st Plaintiff has abandoned his appeal pursuant to a Notice of Withdrawal filed on the 8th of October 2024. However we find no resultant prejudice to the interests of the remaining Plaintiffs, and thus proceed to address the substance of the appeal. In proceeding to consider the merits of the appeal, we think it will be appropriate at this stage to satisfy ourselves as to the nature of an appeal against a judgment by a trial court on grounds that the judgment was contrary to the weight of the evidence on record. In truth we are not aware of any special principles applying to such an appeal, save to state the settled proposition that the onus is on the appellant who so alleged this ground of appeal to demonstrate from the record that the court whose decision is impugned erred in its evaluation of evidence on record or that the court misapplied a law in its judgment occasioning substantial injustice. This would also accord with the provisions of Rule 8 (1) of the Court of Appeal Rules 1997 (C. I. 19) which imposes a duty on an appellate court like ours by way of re-hearing, to critically review the record of appeal in its entirety for purposes of ascertaining whether the conclusions reached by the trial court are well founded in law as well as on the facts. See cases like Akufo-Addo v Catheline [1992] 1 GLR 377; Brown v. Quarshigah [2003-2004] SCGLR 930; Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 and Djin v Musah Baako [2007-2008] 1 SCGLR 686, to mention just a few. Page 9 of 26 Having thoroughly reviewed the record of appeal as indeed we should, we must say at once that we agree with learned Counsel for the Plaintiffs that the Court of Appeal seemingly misdirected itself on the law in concluding that the decree of title in Plaintiffs’ favour was unjustified, absent explicit relief for declaration of title. We say so having regard to the settled proposition of the law that where a Plaintiff sues not only in trespass but also for an injunction, and his claim is denied, the legal position is that he has put his title in issue; he cannot succeed unless he is able to establish his title. That is a proposition upon which judicial opinion has been unswervingly consistent. See cases like Kponuglo & Ors. v. Kodadja (2 W. A. C. A. 24, and Asante Appiah v Amponsah alias Mansa [2009] SCGLR 90 @ 90, The rationale for this proposition of the law acceptably lies in the fact that a claim not only for damages for trespass but also for an injunction postulates that the Plaintiffs are either the owners of the land in dispute, or have had (prior to the trespass complained of), exclusive possession of it. See the case of Nkyi XI v. Kumah (Bedu Subst.) [1959] GLR 281, at page 284, On the record before this Court, the Plaintiffs’ writ of summons was endorsed not only with a claim for damages for trespass and recovery of possession, but also for an injunction to restrain the Defendants from further dealings with the disputed land. The Plaintiffs’ claim having been strenuously denied by the Defendants, who asserted title in a rival stool, the question of ownership of the disputed lands was straightaway thrust into the affray and thereupon became a pivotal issue for determination in this case. At the heart of this raging dispute therefore lurked the pivotal question as to which of the Page 10 of 26 two rival stools, the Gomoa Fetteh Stool or the Fetteh Kakrabah Stool, had a better title to the disputed land. No wonder the issues (a) and (c) set down at the directions stage touched directly on the question of title and read as follows:- a) Whether or not the land in dispute belongs to the Plaintiffs’ family c) Whether or not the land in dispute belongs to the Gomoa fetteh Stool In the light of the above facts on the record, and having regard especially to the principles of the law above examined, we are unable, with due deference, to share the view taken by the learned justices of Appeal that the failure to endorse the writ with a claim for declaration of title alone warranted a reversal of the decree of title entered in the Plaintiffs’ favour. That said however, and our rejection of the Court of Appeal’s stated grounds touching on the absence of an endorsed relief for declaration of title notwithstanding, we do observe that a thorough review of the record reveals other compelling reasons that underpin the reversal of the trial court’s decision, which merit thoughtful consideration. As already indicated above, prior to the commencement of the hearing of the suit before the trial court, an application for joinder was filed by the Gomoa Fetteh Stool as well as a number of companies who were asserting ownership upon a grant from the Gomoa Fetteh Stool. Lamentably, the learned trial Judge in what we perceive to be a terse and dismissive manner, refused the application for joinder. Was the learned trial Judge justified in so doing? That is the question which was answered in the negative by the Court of Appeal, and which we are called upon to interrogate. Page 11 of 26 The circumstances under which a court of law would exercise its discretion to allow a necessary party to be joined to pending proceedings has been examined in a plethora of cases and it may perhaps be tedious and arcane, in this judgment, to discuss in any great detail these general principles as laid down in decided cases. It is sufficient only to say that the grant of an order of joinder is discretionary; and the weight of judicial authority, while not fettering the court in the exercise of its discretion, have laid down broad general principles for its exercise. The famous passage by Denning MR in the case of Gurtner v Circuit and Another [1968] 2 QB 587 at 595, has often been cited as providing perhaps the most decisive test for joinder. This is what he said:- "When two parties are in dispute in an action at law and the determination of the dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in dispute to be effectually and completely determined and adjudicated upon between all those directly concerned in the outcome." The above principle has been applied by this Court in the case of Sai v Tsuru III [2010] SCGLR 762 where the Supreme Court endorsed the test whether the joinder will ensure that all matters in dispute are completely determined. See also such cases as Sam v Attorney-General [2000] SCGLR 102, and Akufo-Adoo, Bawumia and Obetsebi-Lamptey Page 12 of 26 (No1) vrs Mahama and Electoral Commission (2013) SCGLR 1, Montgomery v. Foy, Morgan & Co. [1895] 2 Q. B. 321, C. A. Lord Esher In the case of Ussher v Darko [1977] 1 GLR 476, one of the grounds for allowing the appeal was that the refusal to join one E, a necessary party to the suit, fundamentally compromised the integrity of the trial court’s decision in that suit. We have on our part thoroughly reviewed the record of appeal in its entirety and applied the principles examined in the authorities cited above, and we can hardly conceive of a more fitting set of facts justifying the joinder of necessary parties to any given litigation, than the present case. In our respectful view, since the Gomoa Fetteh Stool claimed to be the allodial title holder of the disputed lands and had effected various conveyances of portions thereof to those Companies, it was imperative to join them as necessary parties to the suit, to enable them defend their rights and interests in the disputed land. Yet without so much as assigning any concrete reasons for his decision, the learned trial Judge cursorily dismissed the application for joinder. This decision by the learned trial Judge, as would presently become evident, ended up leaving before the trial court, parties who in no realistic sense of the word, could be said to be answerable to the core reliefs claimed by the Plaintiffs and on the contrary, rather excluded the actual entities whose presence in the suit would have been necessary for a Page 13 of 26 complete and effectual determination of the pivotal issues arising for determination in this suit. This we find to be rather curious. At pages 574-575 of the record of appeal the learned trial Judge is found to have reached the following conclusion:- “From the foregoing I find that the land in dispute belongs to Gomoa Fetteh Kakraba and NOT Gomoa Fetteh I further find that the power and authority to alienate Fetteh Kakraba lands are vested in the Royal Essel Amoquandoh Twidan family of Gomoa Fetteh Kakraba headed by the Chief or Odikro and his principal elders. Indeed, the Defendants do not have any interest in the lands in dispute and so one wonders their desire to vigorously defend the matter when the (sic) Companys the 1st Defendant is alleged to be a Director failed to defend their interest but your guess is as good as mine” (emphasis) We see from the above passage a clear acknowledgement, not only of the fact that the Defendants had no personal interest in the disputed land, but also that the companies which had direct interests in the said land had failed to adequately defend their interests therein. Puzzlingly, these remarks were made by the learned trial Judge even though, as demonstrated above, it was the same trial court that had declined their application for joinder and had thereby shut them out of the “shrine of justice” so to speak. Even more bafflingly, despite having refused the application to join the entities who claimed an interest in the disputed land, the trial judge nevertheless proceeded at the end of the trial to decree title in favour of the Plaintiffs’ Fetteh Kakraba Stool. Not only that, he went further to positively declare that the Gomoa Stool had no title to the said lands. Page 14 of 26 This he did, even though neither the Gomoa Fetteh Stool nor its grantees, had been afforded any right to be heard in defence of their rights to title to the disputed land. This is how the learned trial Judge concluded his judgment at pages 577-578 of the record of appeal:- “In conclusion the land in dispute belongs to the Plaintiffs’ Royal Essel Amoqundh Twidan family of Gomoa Fetteh and not Gomoa Fetteh”. (emphasis) It is often said that no court has jurisdiction to give a judgment or order that binds a non- party to the suit. This, in view of the obvious principle of justice that no man ought to be bound by proceedings to which he was a stranger, and over the conduct of which he could therefore have exercised no control, a rule expressed more frequently by the latin maxim, res inter alios acta alter: nocere non debent." As Anin JA (as he then was) pointedly explained in the case of Kumah & Ano. v. Himah [1977] 1 GLR 204 at page 209:- “As long ago as 1776, the relevant rule and the underlying policy reasons were thus stated by William de Grey C. J. in the Duchess of Kingston's Case [1775-1802] All E. R. Rep. 623 at p. 626, H. L.: “as a general principle, . . . a transaction between two parties, in judicial proceedings, ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defence….” In the case of In Re Ashaley Botwe Lands: Adjetey Agbosu & Ors vrs. Kotey and Ors [2003-2004] SCGLR 420. Georgina Wood, JSC succinctly put the issue thus: Page 15 of 26 “I see an order directed at the beneficiaries who were never parties to this action, persons who have acquired lands from the defendants, but who were however not heard in these proceedings, contrary to the fundamental and plain rule of natural justice, the “audi alteram patem rule”. To order an annulment or cancellation of their documents without any notice to them and without having given them a hearing is, in my view, erroneous as the intention clearly is to dispossess them of their properties. I do not think we should in the interest of justice allow the order to stand”. The above pronouncements in our respectful view, reflect profound juridical wisdom and ought to apply with even more exceptional force in this instant case, rendering the trial court’s refusal of the application for joinder quite gratuitous. Quite apart from the above, by decreeing title in Plaintiffs’ favour after shutting out necessary parties to the litigation, the learned trial Judge’s decision appears to fly in the face of seminal principles of the law exemplified in such cases as Boateng v. Dwinfuor (1979) GLR 360 C. A at 369, where Anin JA (as he then was) with whom Apaloo CJ and Francois JA (as he then was) unanimously concurred, summed up what we perceive to be the correct position of the law in the following manner:- “The general rule is that the grant of a declaratory relief is discretionary and ought to be exercised with care and caution and judicially, with regard to all the circumstances of the case and except in special circumstances it should not be exercised unless all interested parties are present. But there has never been an unqualified rule of practice that forbids the making of a Page 16 of 26 declaration when some of the persons interested in the subject of the declaration are not before the court. The exercise of the discretion depends on the facts of each case and on whether it would be in the particular case unjust, inequitable, impracticable, academic, inappropriate or even an abuse of the court's process to grant it. In a nutshell, the test is whether it is just and appropriate in all the circumstances of the case to grant it” See also the case of Sam v Attorney-General (supra). We have anxiously scoured through the record of appeal and we see nowhere in the record the existence of any special circumstances to warrant an exception being made to the rule adumbrated in the authorities cited above. If anything at all, we are confident that the absence of those necessary parties completely disabled the trial court in this instant case, from a conclusive adjudication of the issue of title to the disputed land, rather necessitating its reservation for future litigation. It follows therefore that the real question in controversy in this suit was never determined as the proper parties had been excluded from the suit, the result of which was that, as far as concerned the primary issue of title, which otherwise should have fundamentally engaged the trial court’s attention, there was a complete failure of justice. This Court is not alone in this line of reasoning. Thus for instance in the recent unreported case of Sam Quarshie v Eddie Kusi Ankomah Civil Appeal No. J4/59/22 dated 10th May 2023, the real question in controversy in that suit, had not been determined by the trial Page 17 of 26 court, and the Supreme Court remitted the suit back to the trial court for re-trial in order to avert a complete failure of justice. Unlike the Sam Quarshie v Eddie Kusi Ankomah (supra) case however where re-trial was necessary, we are persuaded that the provisions of Order 4 Rule 5(1) of CI 47 provide the requisite remedy to prevent procedural frustration and avoid a defeat of the proceedings which have progressed up to this stage. Order 4 Rule 5(1) of CI 47 provides that no proceedings shall be defeated by reason of the mis-joinder or non-joinder of any party; and the court may in any proceedings determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the proceedings. In Performing Right Society Ltd. v. London Theatre of Varieties Ltd. [1924] A. C. 1 at p. 14, P. C; it was held that “under Ord. XVI., r. 11, no action can now be defeated by reason of the misjoinder or nonjoinder of any party; but this does not mean that judgment can be obtained in the absence of a necessary party to the action, and the rule is satisfied by allowing parties to be added at any stage of a case.” The effect of the rule is that the court must determine the action to the extent that it affects the parties before it. This convenient rule of practice has rendered obsolete the archaic Common law plea in abatement, formerly employed to defeat proceedings on account of misjoinder or non-joinder, regardless of underlying merits. Page 18 of 26 It follows then that we must now turn ourselves to an assessment of the merits of the Court of Appeal’s reversal in relation to the other endorsed reliefs granted by the trial court Trespass On the issue of trespass, we note from the record that the trial court refused the Plaintiffs’ claim for damages for trespass, reasoning that even though trespass had been established on the evidence, the area of the alleged trespass had not been adequately identified by the Plaintiffs. On appeal, the Court of Appeal affirmed the decision of the trial court even though it took issue with the reasonings underpinning the lower court’s decision. According to the learned Justices of Appeal, it was not open, on the facts on record, for the learned trial Judge to have found in one breath that the Plaintiffs had failed to identify the area of the alleged trespass with certainty and yet hold that trespass had been established on the evidence. We note from the record that the Plaintiffs did not by way of an appeal to the Court of Appeal, seek to have the trial court’s refusal to accede to the prayer for damages for trespass vacated in their favour on the merits. Neither has there been any appeal on that issue to this Court. This suggests to us that as far as the issue relative to the claim for damages for trespass was concerned, there was some finality pronounced upon by the courts below, which was unreservedly accepted by all Parties to the dispute. Page 19 of 26 On that account, we deem it unnecessary to delve into the trespass issue, except to express our unreserved endorsement of the Court of Appeal’s disposition of that issue. Injunction and Recovery of Possession In reversing the trial court’s grant of the Plaintiffs’ prayer for an order of recovery of possession and injunction, the Court of Appeal posited that to the extent that the Plaintiffs had failed to identify the exact area of the alleged trespass with clarity, the trial court’s decision sinned against very fundamental principles governing a grant of those reliefs. We have on our part thoroughly reviewed the reasoning and conclusions reached by the learned Justices of Appeal, and we are fully convinced that the decision aligns flawlessly with established legal principles governing claims for recovery of possession and injunction in land disputes. We entirely endorse the Court of Appeal’s approach, finding their reasoning and conclusions to be beyond reproach. We agree with the learned Justices of Appeal that the learned trial Judge completely lost sight of the important factors which otherwise should have weighed on his mind in reaching the decision whether or not to grant the relief for recovery of possession and an injunction. To begin with, it is trite that an action for recovery of possession and injunction must fail unless the Plaintiff is able to clearly identify the land under the Defendant’s occupation or control with certainty. See cases like Darko v. Affrim & Others [1966] GLR 36, and Anane v Donkor [1965] GLR 188 SC cited by the Court of Appeal. Page 20 of 26 Secondly, the lack of clear identification of the trespass area with certainty renders enforcement of the trial court’s recovery orders practically infeasible, underscoring the need for this Court to denounce the disturbing trend of judicial orders for recovery of possession issued without precise land identification. See similar views expressed by Dotse JSC in the landmark case of Nene Narh Matti & 2 Ors.; Oyortey v. Yete (Consolidated) [2017-2018] SCLRG 746 . It is in the light of the foregoing analysis, that we find learned Counsel for the Plaintiffs’ strident criticisms of the Court of Appeal’s decision in reversing the trial court’s order for recovery of possession difficult to endorse. That leg of the appeal fails and we so hold. The next granted relief which was overturned by the Court of Appeal read thus:- “An order setting aside any purported alienation made to or by the Defendants relating to the Gomoa Fetteh Kakraba lands which alienation was made without reference to the Plaintiffs” From the above relief, which was actually the first relief endorsed on the Plaintiffs’ writ of summons, the Defendants are accused of having wrongfully obtained grants of the disputed land from the Gomoah Fetteh Stool and at the same time of having wrongfully made grants of portions of the disputed land to certain third parties. The primary task confronting the trial court was therefore quite simple: it was to evaluate what evidence existed on the record to establish that the named Defendants in this suit Page 21 of 26 actually received some grants from the Gomoah Fetteh Stool in their personal individual capacities. The Courts of this land have repeatedly laid down the cardinal rule that where a person makes an allegation which is contested, but is capable of proof by some concrete positive evidence, he will not succeed in proving it by mere oral assertions or allegations. See the oft-cited case of Majolagbe v Larbi [1959] GLR and also Zambrama V Segbedzi [1991-2] GLR 221 CA It was therefore simply not enough for the Plaintiffs to have testified under oath, without more, that the Defendants had wrongfully obtained grants of Gomoa Fetteh Kakraba lands from some third persons, or that Defendants have wrongfully made grants of portions of Gomoa Fetteh Kakraba lands to certain un-named third parties.. The Plaintiffs could easily have discharged the burden of proof by offering some form of corroborative evidence that was likely to exist were their assertions to be true. For instance, they could have invited some credible evidence, documentary or otherwise, to substantiate the assertion that portions of Gomoa Fetteh Kakraba lands, had been directly conveyed to the Defendants in their personal capacities. Such evidence would have set out the nature of the conveyance to the Defendants, whether by way of a gift, lease or some other form of grant, and if so the term and duration of any such grant, as well as the consideration supporting such a grant. This, the Plaintiffs failed to do. Indeed, it is quite not surprising that the Plaintiffs were unable to introduce any such evidence in the form of grants made to the Defendants, given the fact that the Defendants Page 22 of 26 claimed no direct interest in the disputed land, asserting rather that the grants were made to a number of companies of which the 1st Defendant was a Director. The question is in the absence of any shred of evidence establishing that the Defendants had obtained any grant of any portions of the disputed land from any person or entity, which specific grant or alienation were the Plaintiffs then calling upon the trial court to set aside? We have anxiously striven to find an answer to the above riddle; we have found none. The above considerations apply with equal force to the allegation that the Defendants had made grants of some indeterminate and unidentifiable portions of Gomoa Fetteh Kakraba lands to some un-named third parties. Again not one single documentary evidence was adduced by the Plaintiffs to substantiate that assertion. From the above exposition, it becomes too plain for argument or dispute that the Defendants were clearly not the proper persons against whom that first endorsed relief ought to have been directed. The real persons answerable for that endorsed relief, should properly have been either the Gomoah Fetteh Stool or the concerned companies who were asserting possession of the disputed land upon grants from the said Stool. Lamentably, these were the very entities the trial court, had so trenchantly shut out from the trial. From the foregoing analysis therefore we are bound to agree with the Court of Appeal that as far as the first relief (i) endorsed on the Plaintiffs’ writ of summons was concerned, Page 23 of 26 the conclusions reached by the learned trial Judge was conceptually unsound, warranting unwavering appellate intervention. It follows therefore that learned Counsel for the Plaintiffs attempts to assail the Court of Appeal’s reversal of the trial court’s grant of this first relief are devoid of merit and must fail. All said, and having carefully examined the record of appeal in its entirety, we are of the view that the Plaintiffs have failed to successfully demonstrate by this appeal that the Court of Appeal’s findings and conclusions on the major issues were inconsistent with crucial pieces of evidence on record, or that important principles of the law were mis- applied to the evidence on record, which if corrected would result in a verdict in the Plaintiffs’ favour. CONCLUSION In the end, nothing has been pointed to us by learned Counsel for the Plaintiffs which leads us to think that the determinations by the learned Justices of Appeal in this case were faulty. Indeed, on the facts as borne out by the record, we feel disposed to think we could not ourselves have arrived at any other conclusion otherwise than those reached by the learned Justices of Appeal. Accordingly, we are not persuaded that any good grounds exist for disturbing the Court of Appeal’s judgment in this case. In the result, we dismiss the appeal in its entirety, and the reliefs endorsed on the Plaintiffs’ writ of summons are hereby dismissed. Page 24 of 26 (SGD.) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) (SGD.) A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) B. F. ACKAH-YENSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) E. Y. GAEWU (JUSTICE OF THE SUPREME COURT) (SGD.) H. KWOFIE (JUSTICE OF THE SUPREME COURT) COUNSEL ROLAND ATTA KESSON HAMILTON ESQ. FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS. S. K. AMOAH ESQ. FOR THE DEFENDANTS/APPELLANTS/RESPONDENTS. Page 25 of 26 Page 26 of 26