Heittey Iii Vrs Nyarko and Others [2023] GHAHC 134 (21 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WINNEBA, HELD ON MONDAY THE 21ST DAY OF MARCH, 2023, BEFORE HIS LORDSHIP, JUSTICE ABOAGYE TANDOH, HIGH COURT JUDGE. SUIT NO. E1/19/15 1. NANA HEITTEY III … PLAINTIFF VS 1. KWAME NYARKO (aliasOstea) … DEFENDANTS 2. KWAME NYARKO (alias El – die) 3. KOBINA QUAYE (alias John Quaye) 4. KOFI QUAYE 5. KOFI QUAYE (aliasAdede) 6. KOJO HEITTEY 7. KWEKU RICAH 8. MILLLER (Contractor) 9. JUMBO (Contractor) 10. OBOLO (Contractor) ___________________________________________________________ J U D G M E N T The Plaintiff on the 15th day of October, 2014 caused a Writ of Summons to be issued against the Defendants herein and claimed for the following reliefs: a. Perpetual injunction restraining the 1st to 7th Defendants, their agents, followers, workmen, assigns, etc. from alienating or granting portions of Gyahadze stool land to anybody without expressed consent and authority of Plaintiff and his elders. b. An order for perpetual injunction restraining 8th, 9th, and 10th Defendants, their agents, workmen, assigns, etc. from carrying on any sand winning activities on any portion of the Gyahadze stool land. c. An order for cancellation of any purported grant of Gyahadze stool land concessions to the 8th, 9th and 10th Defendants and recovery of possession of the purported concessions. d. An order for compensation for all legitimate licenses and land owners affected by the activities of the 8th, 9th and 10th Defendants. e. General damages for trespass and damage to the land. f. An order to account for the sand winning so far done to Plaintiff. g. Cost incidental to the suit including solicitor’s cost. THE CASE OF THE PLAINTIFF It is the case of thePlaintiff that he is the chief of Gyahadze and lives at Gyahadze and that 1st to 6th Defendants are paternal family members of Plaintiff and live at Gyahadze. The Plaintiff further stated that the 7th Defendant is a driver and lives at Gyahadze whilst 8th, 9th and 10th Defendants are Contractors. The Plaintiff avers that Gyahadze lands are stool lands under the control of Plaintiff and that his ancestors broke the Virgin forest of Gyahadze and attached same to the stool. The Plaintiff avers further that successions of Gyahadze stool occupant have occupied and controlled Gyahadze stool lands, and Plaintiff is the present occupier of the Gyahadze stool in occupation and control of Gyahadze stool lands. The Plaintiff contends that 1st to 7thDefendants without the consent and authority of the Plaintiff have started alienating and granting portions of the Gyahadze stool lands under the control of Plaintiff to others including 8th, 9th and 10th Defendants. The Plaintiff avers thatthe 1st to 7th Defendants have specifically granted portions of the stool lands in issue to 8th, 9th and 10th Defendants for sand winning without the consent and authority of the Plaintiff and his elders. The Plaintiff further avers that the activities of the 8th, 9th and 10th Defendants are destroying the farm lands and have destroyed a lot of farms. According to the Plaintiff, a lot of farms belonging to legitimately granted farm owners have been destroyed by excavations made during sand winning. The Plaintiff avers that the sand winning removes the top soil making farming activities impossible for now and the near future for the inhabitants of Gyahadze who are mainly farmers. The Plaintiff further contends that the activities of the Defendants have also destroyed a lake, their only source of drinking water and ancestral grove. According to the Plaintiff, some of the Defendants have been extorting monies from developers of buildings whose lands have been legitimately granted to them by Plaintiff and his elders, and breaking down new buildings where the owners fail to pay on demand. THE CASE OF THE DEFENDANTS According to the Defendants, the Plaintiff was at some time in the past the Chief of Gyahadze and Gyasehen of the Effutu Traditional Area. The Defendants contend that the 1st – 6th Defendants are not mere members of the paternalfamily of the Plaintiff, but are the Head(Ebusuapanyin) and Principal Elders of the said family. The Defendants further contend that the 1st to 6th Defendants’ paternal family is the Kumano Royal Family of Gyahadze who are the owners of the Gyahadze stool, and that it was they as Ebusuapanyin and Principal Elders who enstooled the Plaintiff as Chief of Gyahadze in December 1997. The 7th Defendant is a driver but in addition to that he is also the Abranhen, a Sub Chief of the Gyahadze stool. The Defendants contend that the lands attached to the Gyahadze stool, as is the case for all the Divisional Stools in the Effutu Traditional Area, were broken as virgin forests by the Warrior Kings of the Paramount Stool Effutu, and not by any sub stool or family. The Defendants say that at the creation of the Gyahadze Stool, the Effutu Paramountcy allotted land to the stool, and granted it usufractory rights in the said lands, but retained the final control and power of alienation thereof, and that none of the Plaintiff’s predecessors on the Gyahadze stool had ever attempted to alienate any Gyahadze lands without the express authorization of the Paramount Stool in each case. The Defendants say that, in fact the wanton dissipation and alienation of the Gyahadze lands without authorization from or accounting to the Paramount Stool, let alone the Defendants who are the Stool Elders of Gyahadze, was one of the charges proven against the Plaintiff before the Judicial Committee of the Effutu Traditional Council during the destoolment proceedings According to the Defendants they had done such acts, the one whose authorization they would require, and to whom they would be accountable thereof, would be the Paramount Chief and President of the Effutu Traditional Council, and certainly not the Plaintiff. The Defendants deny paragraphs 10, 11 and 12 of the Statement of Claim and put the Plaintiff to the strictest proof thereof. The Defendants further deny paragraphs 13 of the Statement of Claim and say that it was rather the Plaintiff who had alienated wood lands that provide vegetation cover for the ancient sacred Gyaha Lake, and threatened the very spiritual and physical existence of Gyahadze and its people. In further reply to the said paragraph 13 of the Statement of Claim the Defendants say that the very averment is sacrilegious, and that the Plaintiff’s wanton and reckless discretion of the Gyaha Lake and its environs had been one of the destoolment charges that had been successfully proven against the Plaintiff. COUNTERCLAIM The 1st to 6th Defendants repeat the averments contained in paragraphs 1-17 above and claim against the Plaintiff the following: An Order that the Plaintiff accounts to the Paramount Chief of the Effutu through them as the Ebusuapanyin and Principal Elders of the Kumano Royal Family of Gyahadze for all the lands in whatsoever manner alienated during his tenure as Chief of Gyahadze. In his reply to the Defendants counter claim, the Plaintiff insisted that he is still the Chief of Gyahadze, that the 1st – 6th Defendants are ordinary members of the Royal family whose Head of family is KobenaQuaye. Additionally, the Plaintiff further stated that the Defendants have no capacity to claim for their counter claim. ISSUES FOR TRIAL 1. Whether or not the Plaintiff is entitled to his claims 2. Whether or not Gyahadze lands were broken in its virgin state by Plaintiff’s ancestors and warrior Kings of the Paramount stool of Effutu. 3. Whether or not Gyahadze lands are stool lands under the control of Plaintiff 4. Whether or not the Plaintiff is the present occupier of the Gyahadze stool and in control of Gyahadze stool lands 5. Whether or not the Defendants have no capacity to counter claim over the land in dispute 6. Any other issue flowing from the pleadings. THE BURDEN OF PROOF IN A CIVIL ACTION . The general position at law in the determination of issues by the court is that; to enable the court decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the court to the standard prescribed by law. This position is buttressed by section 14 of the Evidence Act 1975 NRCD 323 which provides that; “Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non – existence of which is essential to the claim or defence he is asserting". Sections 10, 11, 12, and 14 of the Evidence Act 1975, sets out the standard of proof in any civil discourse. Section 10 (1) and (2) of the EVIDENCE ACT, 19751 defines the burden of persuasion thus: (1) For the purposes of this Decree, 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 to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. SEE: BAKERS – WOODE v NANA FITZ [2007 – 2008] 2 SCGLR 879 Also, Section 11(1)(4) of NRCD 323 deals with the burden of producing evidence and defines same thus: (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. SEE : FOSUA & ADU – POKU v DUFIE ( DECEASED) & ADU POKU – MENSAH [ 2009] SCGLR 310 @ 325 - 327 (NRCD 323) Again, Section 12(1)(2) NRCD 323 provides for the Proof by a Preponderance of the Probabilities thus, 2([2007 – 2008] 2 SCGLR 879 3(2009] SCGLR 310 @ 325 - 327 (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. SEE: SARKODIE v FKA COMPANY LTD [2009} SCGLR 65, ZABRAMA V. SEGBEDZI2 and MAJOLAGBE V LARBI AND ORS3 . In the instant case before this court, what must the Plaintiff prove in this case in order to succeed on his claims? The law of proof in Ghana is regulated by the Evidence Act 1975 NRCD 323 and the common law established by sound legal opinions of the Superior Courts in Ghana and in other jurisdictions. The general position is captured in the principle. He who asserts must prove. This position of 4[2009} SCGLR 65 5[1991) 2 GLR 221 at 224 the law has been affirmed by Kpegah J. A. (as he then was) in the case of ZABRAMA VRS. SEGBEDZI (1991) 2 GLR 221 at 224 as follows: “…….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 the burden”. The Plaintiff has a duty to establish his case by leading evidence sufficient enough to meet the legal standard set by law in civil discourse. In the case of, MOJOLAGBE VRS. LARBI (1959) GLR 190 at 192 the Court in its bit to provide the accepted guideline in evaluating the worth of adduced evidence stated as follows: “Proof in law is the establishment of facts by proper legal means where a party makes an averment capable of proof in some positive way e.g. by producing documents description of things, reference to other facts, instances or circumstances; and where his averment is denied, he does not prove it by merely going into the witness box and repeating the averment on oath and having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true”. I shall proceed to examine the evidence adduced by the parties in relation to the issues set out in this case and the law, in order to determine whether 6 [1959) GLR 190 at 192 or not the parties have discharged their respective burden of proof to the standard as prescribed by the Evidence Act and case law. From the pleadings of the parties in this suit, the onus of proof is on the Plaintiff as well as the Defendants having counter claimed against the Plaintiff. The nature of the onus is explained in the case of BANK OF WEST AFRICA LTD. VRS. ACKUN (1963) 1 GLR 176 where the Supreme Court stated that, the onus of proof in civil cases depends upon the pleadings and that a party who, in his pleadings raises an issue essential to the success of his case assumes the burden of proof. The above case has clearly buttressed the position of the law in ZABRAMA VRS. SEGBEDZI (SUPRA). SEE ALSO: OKONTI BORLEY & Another V HAUSBAUER LTD [2021] 17G. M. J.321 S. C In the instant suit and flowing from the pleadings, the main issues in controversy are; a. Whether or not Gyahadze lands are stool lands under the control of Plaintiff b. Whether or not the Defendants have capacity to counter claim over the land in dispute nor alienate Gyahadze stool lands I will therefore combine the two main issues and together make a determination to that effect. SUMMARY OF EVIDENCE Though the Plaintiff appointed Obenfo AkotsiaNinsin, the Tufuhen of Gyahadze as his attorney per Exhibit A, he testified himself before this court. It is the case of the Plaintiff that their mode of acquisition of their land, was by reason of first occupation. SEE: OKONTI BORLEY & Another V HAUSBAUER LTD. ( SUPRA). According to the Plaintiffs, he is the chief of Gyahadze and the custodian of Gyahadze lands and that Gyahadze lands are stool lands. The Plaintiff further stated that his ancestor originated from Awutu Bereku and discovered Gyahadze and broke the virgin forest. According to the Plaintiff, the 1st to 6thDefendants are paternal family members, whilst the 7th Defendant is a driver and the 8", 9" and 10" Defendants are sand winning Contractors. The Plaintiff averred that Nana Otabil who was the leader of the group established the Gyahadze stool and attached the land to the stool during which he became the first Chief with the stool name Nana Heittey I. Thereafter came Nana Asamanyi with the stool name Nana Asamanyi. Then, cameNana Oku with the stool name Nana Oku, then Nana Kwame Heittey II and currently the Plaintiff. The Plaintiff tendered in evidence Exhibit B beinga copy of gazette of chiefs. According to the Plaintiff the Gyahadze stool is older than the Winneba stool and proceeded to tender in evidence Exhibit EXH C (document from the archives) in proof of his assertion and it is certainly not true that any Warrior Kings of the paramount chief of Winneba broke the virgin forest of Gyahadze lands. The Plaintiff testified that the Winneba stool came to meet the Gyahadze stool and since the establishment of Gyahadze stool, the Effutu Paramount stool has never exercised control over the Gyahadze stool lands. Plaintiff also testified that the Gyahadze stool does not have any dealings with the Effutu Paramount stool on its stool land just like all other villages around Winneba forming the Effutu Paramount. The Plaintiff testified that this matter is in court because the 1st to 6th Defendants who are ordinary members of Plaintiff ‘s family together with the 7" Defendant have granted portions of the Gyahadze stool land to the 8th to 10th Defendants. According to the Plaintiff, it is only the stool occupant of Gyahadze who has control over Gyahadze stool land and certainly the only one who has the capacity to alienate Gyahadze stool land. And that none of the Defendants is the stool occupant of Gyahadze and so none of them has the capacity to alienate or grant any portion of the Gyahadze stool land to anybody. The Plaintiff also testified that the 1st to 7th Defendants without his consent and the authority of his elders granted portions of the Gyahadze stool lands under his control to others including 8th, 9th and 10thDefendants for sand winning. The Plaintiff testifies that the activities of the 8th, 9th and 10th Defendants are destroying their farm lands and have destroyed a lot of farms, havinggraded over farms belonging to some of the inhabitants of Gyahadze. The Plaintiff contends that sand winning removes the top soil of the farm lands making farming activities impossible as it also involves excavation of the soil. The Plaintiff also testified that, the inhabitants of Gyahadze are mainly farmers and depend solely on farming for their subsistence. Furthermore, the Plaintiff stated that, the activities of the Defendants have also destroyed Lake Gyaha, the only source of drinking water and ancestral grove. Not only that, according to the Plaintiff, the Defendants have been extorting monies from developers of buildings whose lands have been legitimately granted to them by the stool and breaking down new buildings where the owners fail to pay on demand. The Plaintiff further testified that the Defendants’ acts of purported grant of portions of the Gyahadze stool land to sand winners is not sanctioned by the paramount stool they are purporting to be working for its interest. And that the paramount stool has no interest in Gyahadze stool lands and has also not commissioned the Defendants to act as agents for it. According to the Plaintiff and in his testimony, the Defendants’ counterclaim is therefore unfounded and same must be dismissed. The Plaintiff further stated that the paramount stool of Effutu has not challenged his control over the Gyahadze stool land and has not questioned him over stool lands grant. The Plaintiff in his evidence stated that the Defendants have no right or the capacity to counterclaim for the reliefs sought in their counterclaim and prays that same be dismissed. In his evidence before this court, Ebusuapanyin Kobina Quaye (PW1) said the Plaintiff is the Chief of Gyahadze where he lives and a farmer by vocation. According PW1, the 1st – 6th Defendants are family members and he is the Head of family, but the 7th Defendant is not a family member and the 8th, the 9th and the 10th Defendants are sand winners. The first prosecution witness (PW1) in his evidence corroborated that of the Plaintiff regarding the manner in which the stool land was acquired by their ancestors and the fact that the Plaintiff is the custodian of Gyahadze stool lands. The 2nd Prosecution Witness (PW2) Abena Teeba testified that she lives at Gyahadze and a farmer. PW2 informed the court that the 8th, 9th and 10th Defendants are sand winning contractors who have destroyed her farm bytheir sand winning activities. PW2 further stated that the 9th Defendant came to destroy her trees and palm trees valued at three thousand Ghana Cedis (Ghc 3,000.00). Not only that, PW2 said the 9th Defendant and two others have destroyed several acres of farms on the Gyahadze stool lands. The 6th Defendant Panyin Kojo Heitey in his evidence before this court informed the court that he is a chief herbalist and Ebusuapanyin of the Kumano Royal Family, and also lives at Gyahadze. The 6th Defendant further stated that as Ebusuapanyin, he personally confined and enstooled the Plaintiff as the Chief of Gyahadze, the Gyase Division of Effutu Traditional Area, and against whom destoolment proceedings are currently ongoing. The 6th Defendant added that the 1st – 5th Defendants were his fellow Elders of Kumano Royal family of Gyahadze and together with the 1st to 5th Defendants enstooled the Plaintiff as chief of Gyahadze in December 1997 and presented him to Neenyi Ghartey VII at the palace in Winneba to swear the Oath of allegiance to the paramount stool, but they have initiated the destoolment proceedings against him. The 6th Defendant testified that the 7th Defendants is a sub chief of the Divisional Stool of Gyahadze but the 8th to 10th Defendants are contractors licensed by the Effutu Municipal Assembly to win sand in the Gyahadze area. The 6th Defendant said when their ancestors first started farming in the Gyahadze area, and later established settlements, they knew and acknowledged that they were farming and living on the land belonging to the Effutu State , and Gyahadze has always been a faithful and loyal part of Effutu Tradition Area, owing full allegiance to the paramount stool of Effutu. The 6th Defendant further stated that since the creation of Gyahadze stool right through to their elevation to Divisional status, the paramount has allowed full use and enjoyment of the land settled by their ancestors, but retained the final control and power of alienation of all such lands. The 6th Defendant also testified that none of the Plaintiff’s predecessors on the Gyahadze Stool had ever attempted to alienate any Gyahadze lands without express authorization and the involvement of the paramount Stool in each case, obtained with the consent and concurrence of the principal Elders of Kumano Royal Family. And added that during the course of his reign the Plaintiff began wanton dissipation and alienation of the Gyahadze lands, including the land that protect the sacred grove of the lake Gyaha, without authorization or accounting to the Elders of Kumano Royal Family, let alone the paramount Stool. The 6th Defendant also stated that every effort to call the Plaintiff to order prove futile, as he became abusive to the Elders, and when confronted started dodging Traditional Council meetings where he will have to give account to the paramount chief. The 6th Defendant added that the plaintiff even attempted to remove him as Ebusuapanyin and to cause the secession of Gyahadze as Gyase Division of Effutu paramount, in all effort to avoid accounting to the paramount chief and the 1st to 6th Defendants who are the principal Elders of Kumano Royal Family of Gyahadze. The 6th Defendant said that being unable to contain further, these act of reckless dissipation of entrusted lands and plaintiff’s willful failure and/or refusal to account for his stewardship, and the disgrace he was bringing upon Gyahadze stool with abominable acts and utterances ,we initiated destoolment proceedings against the plaintiff before the Judicial Committee of Effutu Traditional Council. The 6th Defendant also stated that in order to protect the integrity of Gyahadze Stool, and preserve the land Plaintiff has illegally attempted to alienate, the principal Elders decided to take charge of Gyahadze Stool lands, and direct to the Paramount Chief all claimed or craved any interest whatsoever in any portion thereof. The 6th Defendant further testified that no occupant of Gyahadze Stool has the power, on his own, to alienate or deal with stool land as he pleases, but only with their concurrence as principal Elders and with the authorization of the Paramount Chief. The 6th Defendant stated that the Plaintiff is obliged to give strict account to them as the principal Elders of Kumano Royal Family and to the paramount Chief ofEffutu in respect of all the money he has received from various purchasers, lessees and licenses in respect of the said Gyahadze Stool lands. He further stated that the winning of the sand is licensed by the Effutu Municipal Assembly, which receives revenue from them, and the land fee is paid to the paramount, which has authorized the Royal Family Elders to retain a portion thereof for maintenance of the stool. Therefore, the Defendants are not accountable to the Plaintiff for the exercise of any such authorization granted by the Paramount Stool of Effutu. In his evidence before this court, the 1st Defendant Opanyin Kwame Nyarko said he is a farmer and a Principal Elder of the Kumano Royal Family and lives at Gyahadze. The 1st Defendant testified that they enstooled the Plaintiff as the Chief of Gyahadze, the Gyase Division of the Effutu Traditional Area. The 1st Defendant further stated that destoolment proceedings are currently ongoing against the Plaintiff in the Central Regional House of Chiefs. The evidence of the 1st Defendant was virtually the same as that of the 6th Defendant and same has been critically examined together with that of the 6th Defendant. The first defence witness (DW1) Neenyi Ghartey VII and Paramount Chief of Effutu and President of Effutu Traditional Council and live in Winneba. DW1 said in his evidence that Plaintiff the Chief of Gyahadze, the Gyase Division of the Effutu State, but destoolment proceedings are currently ongoing against him. DW1 further stated that the 1st to 6th Defendants are the head (Ebusuapanyin) and Principal Elders of the Kumano Royal Family of Gyahadze. DW1 further testified that the 1st to 6th Defendants enstooled the Plaintiff as Chief of Gyahadze in December, 1997 and he was presented him to at the palace in Winneba to swear the Oath of allegiance to the paramount Stool. DW1 also testified that the Defendants are prosecuting the destoolment proceedings against the Plaintiff. DW1 further testified that the lands attached to the Gyahadze stool, unlike lands in the case of neighbouring Traditional Areas, were broken as virgin forest by the Warrior Kings of paramount Stool of Effutu, and not by members of any sub stool or family. DW1 also said that at the creation of the Gyahadze stool, as in the case for all the other Divisional and Sub Stools of the Effutu Traditional Area, the paramount allotted land to the stool, and granted it unsatisfactory rights in the said lands, but retained the final control and power of alienation thereof. The 9th Defendant Nicholas Jumbo Nortey testified that he is a contractor and lives at Kasoa. The 9th Defendant said he knows the Plaintiff, and understands he is the destooled Chief of Gyahadze. Whilst he knows the 1st to 6th Defendants as Principal Elders and the Ebusuapanyin of Gyahadze Kumano Royal Family of Gyahadze and further stated that the 7th Defendant is a Sub - Chief of Gyahadze. The 9th Defendant further testified that the 8th to 10th Defendants are his fellow contractors licensed by the Effutu Municipal Assembly to win sand in the Gyahadze area. In his testimony, the 9th defendant said his attention was drawn to the testimony of one Abena Teeba (PW2) claiming that her farm has been destroyed by contractors, specifically him. The 9th Defendant said the processes required by the Effutu Municipal Assembly before granting permit which would not possibly allow for the destruction of her farms or crops or any portion without full and ample compensation. It is trite that a sub – stool such as Gyahadze of the Gyase Division of Effutu Traditional Council has certainly lands attached to same. This principle and power to alienate lands was widely discussed by the Learned Author Dennis Adjei in page 47 of his book Land Law. Practice and Conveyancing in Ghana, 3rd Edition. In the instant case before this court, the Defendants strongly argued in their evidence that the Overlord of the Effutu Traditional Council is in control of all lands within the traditional council. It is also not in doubt that the Plaintiff despite the destoolment proceedings initiated against him, is still the Chief of Gyahadze unless the judicial committee of the Effutu Traditional Council or that of the Regional House of Chiefs decides otherwise. In his quest for answers as to whether or not it is the overlord or the sub stool who has the power to alienate land, Dennis Adjei Domoinic JA in his book on land law stated thus: “ Is it the sub-stool which the land is attached to or its overlord that has the capacity to alienate? The law is that it is the owner of the possessory or unsatisfactory or determinable title to the land which has the power to alienate and not the overlord stool. Therefore any alienation of stool land attached to a sub-stool by the overlord or the paramount stool is void”. SEE: Nkwantabisah III v Bonsu [1997 – 98] GLR 892, Nuamah v (No2) v Appiah – Nkyi (No2) [2017 – 2020] 1 SC 1045GLR. SEE ALSO: Land Law. Practice and Conveyancing in Ghana page 47 3rd Edition, by Learned Author Dennis Adjei. It is also trite that the proper person to alienate stool lands is the occupant of the stool or the regent or caretaker acting with the consent and concurrence of the principal members of the stool. Also the principal elders cannot alienate stool lands without the occupant or the caretaker of the stool. See Awutu v Tettey [2011] 1 SCGLR 366. ___________________ 7(1997 – 98] GLR 892. 8 (2017 – 2020] 1 SC 1045GLR. 9(2011] 1 SCGLR 366. From the foregoing, I find that the proper person to alienate Gyahadze stool is the occupant of the stool being the Plaintiff as no contrary evidence has been tendered by the Defendants. Indeed the Defendants failed to submit a single transaction in the alienation of Gyahadze stool lands by the Effutu Stool. It is therefore not surprising that the Effutu Traditional Council or the Effutu stool is not a party to this suit if he has to authorize for the alienation of Gyahadze stool lands. Much as the Defendants are subjects of the Gyahadze stool can demand for accountability they cannot purport to do so on behalf of the Effutu Stool which no doubt raises their capacity so to do especially when there is no evidence to establish same. Fosua & Adu – Poku v Dufie (Deceased) & Adu Poku – Mensah [2009] SCGLR 310 – 344. See also: ASARE AND OTHERS v. APPAU II [1984-86] 1 GLR 599-605 I find that the 1st to 6th Defendants alienated portions of Gyahadze lands to the 8th, 9th and 10th Defendants for the purposes of wining sand without recourse to the Plaintiff except the 8th Defendant who entered a consent judgment with the Plaintiff to resolve the anomaly amicably. In the instant case before this court and per the evidence on record, I have no doubt in my mind and without re – inventing the wheel that the Plaintiffs led sufficient evidence on the balance of the preponderance of the probabilities to establish his case and is accordingly entitled to all his reliefs except reliefs (d) and (f) as such reliefs cannot be granted in a vacuum. See :BARIMA GYAMFI AND ANOTHER V AMA BADU4 CONCLUSION Having considered and examined the totality of the evidence adduced, the legal authorities cited and the law, the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th and 10th Defendants failed to establish their counter-claim by the preponderance of the balance of probabilities and same is dismissed. However, the Plaintiff led sufficient evidence on the balance of the preponderance of the probabilities and is entitled to all his reliefs except reliefs d and f. Accordingly, judgment is entered in favour of the Plaintiff against 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th and 10th Defendants for the following:- a. Perpetual Injunction is granted against 1st – 7th Defendants restraining them, their agents, followers, workmen, assigns etc from alleging portions of Gyahadze Stool Land to anybody without expresses consent and authority of the Plaintiff and his elders. b. An order for perpetual injunction restraining the 9th and 10th Defendants their agents, workmen, assigns etc from carrying in any sand winning activities on any portion of Gyahadze Stool Land. c. Any perpetual grant of Gyahadze Stool trespassing to the 9th and 10th Defendants is cancelled and Plaintiff is to recover same forthwith. d. Not granted. e. General damages for trespass and to land is assessed at GH¢15,000.00 (Fifteen Thousand Ghana Cedis) is awarded against 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th and 10th Defendants in favour of the Plaintiff. f. Not granted. g. Cost including legal or solicitor cost being GH¢30,000.00 (Thirty Thousand Ghana Cedis) is awardedagainst 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th and 10th Defendants in favour of the Plaintiff. (SGD) JUSTICE ABOAGYE TANDOH ESQ. JUSTICE OF THE HIGH COURT. HIGH COURT, WINNEBA. VICTOR YANKSON ESQ. WITH KOBBY NDOM ESQ, COUNSEL FOR THE PLAINTIFF. ABEIKU VROOM ESQ, COUNSEL FOR THE DEFENDANTS. (ABSENT) 23