Kwahin V Vrs Sraha [2023] GHAHC 189 (15 March 2023)

IN THE HIGH COURT HELD IN CAPE COAST ON WEDNESDAY, 15TH DAY OF MARCH, 2023, BEFORE HER LADYSHIP MALIKE AWO WOANYAH DEY (HIGH COURT JUDGE) SUIT NO: E1/5/2021 NANA KWAHIN V ----------------- PLAINTIFF OCCUPANT OF KWAHIN STOOL KOMENDA VS. OPANYIN KOJO SRAHA ALIAS --------------------- DEFENDANT CHARLES QUANSTIN W. O. RTD NSONA EBUSUAPANYIN PLAINTIFF PRESENT DEFENDANT PRESENT PHILIP YOUNG WITH SABINA BOLSONG FOR KUJO ELIAS MCDAVE FOR THE PLAINTIFF SOLOMON GYESI FOR THE DEFENDANT JUDGMENT Per an amended writ of summons and statement of claim filed pursuant to the leave of the court granted on 25th March 2021, the plaintiff claims the following reliefs against the defendant; a) A declaration of title to the portion of lands at Kwahinkrom, generally known as Emirase and Wawase Lands, as being part and parcel of Kwahinkrom Stool Lands. b) Recovery of Possession of the said land. c) An order of perpetual injunction to restrain the defendant, his agents, servants and assigns from interfering with the plaintiff's said land d) General Damages for Trespass e) And for any other order(s) the court may deem fit. THE PLAINTIFF’S CASE The plaintiff is the occupant of the Kwahin Stool, the chief of Kwahinkrom and the Twafohene of Komenda. His ancestors include Nana Kwahin I, Nana Kweku Attom, Nana Kweku Aiyensa, Nana Kwamina Ntsina, Nana Kobina Annan, Nana Kwamina Bedu, Nana Kwahin II, Nana Kwahin III and Nana Kwahin IV. According to the plaintiff, all the lands at Kwahinkrom are attached to the Kwahin Stool, and the stool became owners through discovery. He claimed that his ancestor Nana Kwahin I and Nana Komel came with their individual black stools to establish Komenda after they conquered Etsi, disturbing the smooth trade between Eguafo and Yabiw Kingdoms. He averred that Nana Kwahin I later discovered and settled at Kwahinkrom, reducing the entire vacant virgin lands to a secondary forest. He stated that Kwahinkrom lands are bounded on the South by Kissi, at Kyekyebondo at the West, Bisease at Atwimado, Adom Wo Wim area to the huge Bamboo Mangrove to Bessim at the North West, Dompoase at the North East and Kukwaado at Kwahin Kukwaa Hill at the East. It is the case of the plaintiff that all his predecessors exercised ownership rights over Kwahinkrom lands, including the disputed areas known as Emirase and Wawase lands which the defendant is now claiming. The plaintiff claims that history has it that there was litigation between Kwahinkrom and Bisease. In the said suit, Bisease claimed portions of Kwahinkrom lands. During the reign of Nana Kwahin III, the farmers of Kwahinkrom Stool lands contributed to support the litigation. Thus they were promised continuous stay on the land until the land was needed for equally important projects. The plaintiff claims that farmers from Kwahinkrom, including the defendant and his family members and farmers from other villages under his stool, are on the lands with the consent of the stool as licensees and atone varying annual payments to the stool depending on the nature of the farming activity. He also claimed that he caused amounts paid to the stool annually to be reviewed with farmers cultivating cash crops, including the defendant paying more, and the farmers complied. In order to collect the annual tolls from the farmers, he commissioned a unit committee to be responsible for that. Significantly, he claimed that nobody has ever challenged the title and ownership of Kwahinkrom lands from within before his enstoolment and none after his installation and occupation as chief. The plaintiff claimed that it got to his attention that some farmers had shifted from seasonal crops to cash crops like cocoa, coconut, and acacia without consulting the stool, and some of the farmers were also giving out their portions of land given to them under abunu and abusa. Thus the stool caused announcements to be made for the due process to be followed, and the generality of the farmers complied and always sought the consent of the stool with regard to their farming activities on the land. However, without recourse to the stool, the defendant sold out 100 acres of the land to unknown persons, purportedly to cultivate a rubber plantation. When he summoned him to the palace on the issue, he agreed not to continue but later did. The defendant was summoned again before the council of elders for disobeying the orders, he apologised and brought customary drink, but he persisted in his acts of trespass. According to him, the defendant is even attempting to sell more land to investors. Sometime later, the defendant sent some investors to convince him to sell portions of the land to the rubber investors, but he refused because many people were farming on the land and making ends meet from it. The plaintiff claims that the defendant is still engaging in his acts of trespass and have placed investors on the land, and they have started clearing cocoa, cassava and other crops of other farmers to make way for the rubber plantation. When the plaintiff was invited again, he laid claims to the Emirase and Wawase lands. The plaintiff also averred that unless the court stopped the defendant, he would continue in his acts of trespass. THE DEFENDANT’S CASE In his amended statement of defence filed on 15th November 2021, the defendant denied the plaintiff's assertions and claimed that there are four families who are the allodial title owners of lands in Kwahinkrom. They are the Twidan family, the Akona family, the Nsona to which the defendant belongs and the Aboradze family to which the plaintiff belongs. He averred that his Nsona family lands lie and are situate at Eminase and Wawase, all in Kwahinkrom. He claims that at Eminase defendant's family shares boundaries with the Aboradze family land, Akona family land Bisease and Twidan family lands. Regarding Wawase, the lands share boundaries with the Asradze family land, Twidan family land, Akona family land and Kokado family land. The defendant traced his root of title to his family lands to his ancestor Kweku Nuba, who arrived at Komenda from Takyiman in the Bono East Region of Ghana several centuries ago. He claimed that upon arrival at the coast of Komenda, his ancestor, a farmer, moved into the forest area in search of farmlands. He subsequently discovered the defendant's land after the plaintiff's ancestor Nana Kwahin refused to allow him to stay on his land. Thus Kweku Nuba discovered these two parcels of land at Eminase and Wawase. Thus he created the Nsona family, and his successors include Kwaku Esiapa, Mensah Abroba, Kwesi Esson etc. The defendant averred that no member of his Nsona family has ever made any payment to the plaintiff's stool, and he is unaware of any so-called unit committee set up by the plaintiff. He further stated that no member of the said Committee had approached him to pay any levy in respect of their land. According to the defendant, the ownership of the plaintiff's Aboradze family land is not in dispute; likewise, his Nsona family lands situate and lying at Wawase and Eminase because nobody, including the plaintiff, has ever challenged his Nsona family's ownership. The defendant also stated that members of his Nsona family had put portions of his family land into cash crop production such as cocoa, citrus and others. It is his case that from time immemorial, even before the plaintiff was enstooled as chief. He also stated that no member of his family has ever paid rent regarding the cash crops or shared portions of his cash crop with the occupant of the stool. It is the defendant's case that even if there was any announcement by the plaintiff, it was directed to the tenants on the plaintiff's Aboradze family land and not to members occupying his Nsona family lands. The defendant admitted he had sold out the land to the investors because it belonged to his family and did not need the plaintiff's consent to grant the land to them. In the past, his family has granted various portions of the said land to investors without any challenge from the plaintiff. He stated that in 1958, his family granted 60 acres of its land to one Mr Bawa, now deceased, to cultivate sugarcane to feed the Komenda Sugar factory when it was first established. However, after the collapse of the factory in the 1960s, the land reverted to his family. Also in 2003, the defendant granted portions of its land to Kojo Ndur, Kweku Etsibah, Adwowa Yawa, Kwamena Arko, Owusu, Ekow Asafo, Papa Mensah, Auntie Comfort and Kobina Gyan to cultivate citrus on the portion of the family land and the orange trees are still standing on the land over 17 years ago and the plaintiff did not object to same. Additionally, in 2012 the defendant's family granted 60 acres of its land to Mr Otoo to cultivate teak trees, which are still standing on the land, and there was no protest from the plaintiff though he had full knowledge of it. It is also his case that his family members had cultivated cocoa on the disputed land for several decades, and no one atoned tenancy to the plaintiff and since 1998, when he became head of family, the tenant farmers on the land have paid royalties to his family. The plaintiff has never demanded anything from his tenants. He also granted land to one Mr Larweh to cultivate a rubber plantation. He vehemently denied that he was summoned to the palace over the sale of the land but agreed that he approached the plaintiff to sell the plaintiff's family land to the investors because they wanted more acreages of land to cultivate rubber. Thus he approached the plaintiff to see if he could lease portions of his family land to them. He has therefore denied any acts of trespass alleged by the plaintiff. The following issues were adopted as issues for trial a) Whether or not the Kwahin stool are the owners of the land in dispute b) Whether or not the plaintiff and his predecessors exercised ownership rights over the land. BURDEN OF PROOF Before proceeding with the evaluation of the evidence viz a viz the applicable principles of law, it is pertinent to state what was required of the plaintiff and the defendant regarding the burden imposed on them by law. By law, the plaintiff had a burden to prove his case to the standard required in civil actions, which is on the balance of probabilities. On the general burden of proof, the Supreme Court held in Bank of West Africa vs Ackun [1963] 1 GLR 176 SC that the onus of proof in civil cases depends upon the pleadings. The party who, in his pleadings, raises an issue essential to the success of his case assumes the burden of proof. The burden would shift to the other party when a prima facie case had been established. The test as to which party bore the burden of proof on any allegation is: Which party would fail if the allegation in question were struck out of the pleading? In the case, Malm vs Lutherodt [1963] 1 GLR 1 SC, the court said that “the defendant in an action for declaration of title assumes a legal burden of proof only when he counterclaims for declaration of title in his favour.” I am fortified to say so by reason of sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323. Section 12 of the Evidence Act states as follows; 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. On how to discharge the burden of proof, the Supreme Court, in the case of Ackah v Pergah LTD and others [2010] SCGLR 728 at 736, held that "It is a basic principle of 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 probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and 2 and 11(1) and (4) of the Evidence Act, 1975 NRCD 323. " Further, it must be borne in mind that the defendant bears no burden of proof, particularly where there is no counterclaim. See also T. K Serbeh & CO [2005-2006] Ltd. V. Mensah 360 per Date-Bah JSC In the case of GIHOC Refrigeration and Household Products Ltd v. Hanna Assi [2005- 2006] SCGLR 458, it was stated that "Since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue." Again in his book cited supra, the learned author SA Brobbey states; "On the balance, if the existence establishes more than 50 per cent chance of the existence of the fact, the standard of proof can be said to have been achieved. The Bench Book for US District Court Judges explains the principle as follows; "the plaintiff has the burden of proving his [her] case by what is called the preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what the plaintiff claims are more likely to be true than not. To put it differently, if you were to put the plaintiff's and defendant's evidence on opposite sides of the scales, the plaintiff would have to make the scales tip somewhat on his [her] side. If the plaintiff fails to meet this burden, the verdict must be for the defendant.” Thus, in this case, the plaintiff bears the burden of proof and must lead cogent and reliable evidence to tilt the scales of justice in his favour if he is to win the case. See also Jass Co Ltd and Another v. Appau and Another [2009] SCGLR 265 AT 270 - Ago Sai and Others v. Kpobi Tetteh Tsuru III [2010] SCGLR 762 at 779 From the evidence on record, both parties are ad idem that the disputed lands are situate at Emirase and Wawase, which are all within Kwahinkrom. However, the parties disagree on whom the disputed lands belong. Whilst the plaintiff claims that the disputed land belongs to the Kwahin Stool and the defendant and his family are licensees of the stool, the defendant insists that the disputed lands are his family land. That is the point of divergence between the parties. As already stated, the plaintiff bears the burden of proof to lead cogent evidence to substantiate his claim. Thus what evidence did he lead? In proof of his claim, he repeated all his averments in his witness statement and supported his claim by tendering Exhibit A to show that he is the gazetted chief of Kwahinkrom; thus, with that, he established his capacity to mount the suit and to lay claim to the said lands in question on behalf of the Kwahin stool. Another document he relied on is Exhibit B and C, which includes the proceedings, judgment and plan in a case between his ancestor Nana Kwahin III and the chief of Bisease Nana Buamah II in which judgment was given against his ancestor at first instance but on appeal, it was overturned. These documents will be discussed in detail along the line. Per the evidence on record, it is not disputed that there are four families in Kwahinkrom, as testified to by the defendant and admitted by the plaintiff. PW1 This fact was also confirmed by PW1, who answered questions thus under cross- examination on page 5 of the record on the 5th day of April 2022; Q: Do you belong to any of the families at Kwahinkrom? A: That is so. Q: Which family is that? A: Anona family Q: Apart from your Anona family, there are the following families at Kwahinkrom as Twidan, Akona, Aboradze, Nsona families all at Kwahinkrom. A: I agree with counsel. Q: And you will also agree with me that all these four families have their own land that they occupy at Kwahinkrom? A: I do not believe that the said mentioned families have their own land that they occupy. Though this discourse supports the defendant's assertion that there are four families at Kwahinkrom, the witness denied that these four families own land at Kwahinkrom. What proof did the plaintiff produce to characterise the disputed lands as attached to his stool? An aspect of PW1’s oral testimony supports the assertion of the plaintiff that the lands in dispute are stool lands and others who migrated to Kwahinkrom after Nana Kwahin I discovered the land, including the defendant's family, were given permission to occupy and cultivate the said lands hence the payment of annual tolls to the stool. Thus one material evidence that the plaintiff proffered to establish that Emirase and Wawase are stool lands was the payment of tolls. PW1 testified that as a member of the unit committee set up by the plaintiff, he collects the levies and records them in Exhibit E. In his statement of claim, the plaintiff informed the court that the levies had been paid ever since he was installed as chief of Kwahinkrom and also relied on Exhibit D. Nevertheless, I find from Exhibit E that it only bears the date starting from 21st August 2020 just after the suit before this court was filed to show that tolls have been taken from tenant farmers or licensees. It is the opinion of the court that if indeed the witness had been receiving tolls as a Unit Committee member from 2008, which the defendant and his family members paid, then why did he not produce the records of such payments made before this suit was filed? He would have produced the records before this court if that were true. Therefore, I agree with counsel for the defendant that the names were compiled purposely for this suit. Furthermore, the testimony of PW1 under cross-examination that he could only write in Fante, but when asked who recorded the names, he initially told the court that he was the one leaves much to be desired. It should be noted that later, he told the court that different members of the Unit Committee wrote the names. He also testified that he could spell the names “Aya Akosua” because they are Fante names but not “Sister", which was attached to the said names. I find the evidence of PW1, with the greatest respect, to be profoundly ridiculous and cannot be accepted as the truth. I have taken note of his witness statement which does not have a jurat. The absence of the said jurat shows that his testimony that he could not read and write English cannot be accepted as the truth. I also find that under cross-examination, he told the court that he had read and understood his witness statement before signing it. I conclude that he is not a witness of truth regarding the evidence he gave regarding the collection of tolls. Additionally, I hold that on the issue of the collection of tolls or levies, the plaintiff’s witnesses contradicted themselves. Whilst PW1 told the court that they do not issue receipts regarding the 5 cedis for those who cultivate seasonal crops, some of the witnesses produced by the plaintiff, specifically PW2, claimed that they were given receipts when they paid the fixed amount of 5 cedis for the seasonal crops that they planted. However, she did not produce such receipts to the court though she claimed she had two. Contrary to PW2’s testimony, PW3, in particular, told the court that when you have cash crops on the land, you are given a receipt, but when you have cassava and plantain on the land, it is recorded in a book. PW1 claimed that the receipts issued regarding the cash crops do not apply to the defendant because his wife belongs to the royal family. In the court's opinion, this answer cannot be accepted in light of the plaintiff's and his witnesses' assertions that receipts are issued for cash crops to every licensee. The plaintiff categorically testified under cross-examination that he knows the plaintiff is always issued with receipts when he pays the tolls and even the highest. The plaintiff himself told the court that the defendant has been paying tolls since he was installed both for seasonal and cash crops and that he is issued with receipts, but PW1, who is a member of the unit Committee, claims that he does not pay because he is married to somebody from the royal family. These contradictions are apparent on the face of the record and are material to the issue at stake. Another aspect of the plaintiff's evidence contradicting that of PW1 is the plaintiff's testimony in paragraph 16 that the defendant and his family members have been farming on the land as licensees, whereas PW1 told the court that the defendant does not have cash crops on the disputed land. Thus, if the defendant does not plant cash crops on the disputed land, why does he pay the largest toll, as alleged by the plaintiff? It is evident that not only did the plaintiff and his witnesses fail to identify the names of any of the plaintiff's family members who paid the 5.00 for the seasonal crops they allegedly planted on the disputed land. Apart from these apparent material contradictions, if the defendant paid the tolls for the disputed land, why did the plaintiff fail to produce the receipts issued to the defendant when he paid the tolls since his installation in 1996? Counsel for the plaintiff has implored the court to rely on the answer of the defendant given under cross- examination that he pays money to the plaintiff for being on Kwahinkrom land but that admission cannot by any stretch of imagination show that the plaintiff pays tolls in respect of lands at Wawase and Emirase. In the case of Majolabe v Larbi and Others [1959] GLR 190 -195, it was held that one could not just enter the witness box and repeat assertions made on oath when the assertions are capable of positive proof. He must prove it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true. Not even one single receipt was produced to support these assertions made by the plaintiff and his witnesses. That oral evidence of the plaintiff and his witnesses ought to have been accompanied by documentary proof, especially when his witnesses contradicted themselves and the defendant denied their assertions. However, no such receipts were tendered. The failure of the plaintiff to point out the name of the plaintiff or his family members from Exhibit D and E again reinforces the conclusion reached by this court that the evidence produced in Exhibit D and E was compiled explicitly for the prosecution of this case and that the testimony of the plaintiff and his witnesses on the payment of tolls is so contradictory as to lead this court not to attach any weight to such as proof that the land being claimed by the plaintiff is stool land attached to the stool of Kwahinkrom. In the case of Atadi v Ladzekpo [1981] GLR 218 CA, it was held that whenever the testimony of a party on a critical issue conflict with the testimony of his own witness on that issue, it is not open to the trial court to gloss over such a conflict and make a specific finding on that issue in favour of the party whose case contained the conflicting evidence. Discussion of Exhibits B and C Though in his statement of claim, the plaintiff failed to describe the boundaries of his land, he testified at paragraph 6 of his witness statement as follows; The Kwahinkrom stool lands are bounded by the town of Kissi at Kyekyebondo at the West, Bisease at Atwimado, Adom Wo Mim area to the huge Bamboo Mangrove to Bessim at the North West and Dompoase at the North East and Kukwaado at Kwahin Kukwaa hill at the East. He then states at paragraph 7 that the lands described as Emirase and Wawase lands and others such as Ebutuano, Mmobamu, Kyekyebordo, Brempon Kokwado Tsinponum, Omanburado, Abosantinmu, Okukusekukrom, Kotoko Anhwiamu, Kwahin Kokwado, Kubiase all form part of Kwahinkrom stool lands. Whilst counsel for the plaintiff submitted that Exhibit B and C should be relied on because it shows that the plaintiff's ancestor's land had been underlined as being land being claimed by the plaintiff’s ancestor, Counsel for the defendant has drawn the attention of the court to the fact that his Exhibit B which he relied on as proof that the disputed land is part of Kwahinkrom stool land should not be relied on by the court because this was the description of the land in that case; Claim “The plaintiff of the state of Komenda claims a declaration that the land whereof the boundaries are as follows; That is to say on the North by Mpetembire land plaintiff’s land on the South by Kotokoe Yena Munpow, Abusantin stream, Abusantin rocks, stone and Sobin’s land, on the east by Adeikuma ruins, Kua stream and Kwahin Kukwa and on the West by Wiredusu Well, on plaintiff’s land is attached to the plaintiff’s stool.” Indeed it is clear to the court that the two villages of Wawase and Emirase were not part of the said suit as stool lands; thus, this court cannot rely on the said Exhibit to declare that the lands in dispute belong to the plaintiff stool as the said suit did not declare that Wawase and Emirase were part of plaintiff's stool land. There was no such declaration by the court. As the defendant's counsel pointed out, the land in dispute could be seen to be Nkraisim or Bessim. Please see pages 59 and 60 of Exhibit B. I must also state that the mere fact that Wawase ruins have been underlined as being claimed by the plaintiff's predecessor does not in any way suggest that it forms part of his stool land since there was no pronouncement in respect of Wawase ruins as attached to the plaintiff’s stool. Noncompliance with the Constitution 1992 Under cross-examination, on page 28 of the record of proceedings, the plaintiff answered questions thus; Q. The Kwahin Aboradze family has a stool which you occupy. Is that the case? A: Yes, my lord. Q: So, does your Kwahinkrom lands belong to your family or the stool? A: It belongs to the stool Q: And all the monies you collect from people who occupy the land are for the exclusive use of the Kwahin stool? A: No, my Lord Q: Which people take a share of the money you collect? A: Per my own arrangement, the occupant of the stool, the Oman of Kwahinkrom and Kwahin Aboradze. Q: Can you tell the court the percentages that go to each of them? A: 30% each. Q: And you keep the remaining 10% A: The 10 % is given to the unit Committee for expenses Q: Your stool gave a portion of the stool land to Mills Company for quarrying? A: It is Metliss Q: And you gave portions to Metliss for the cultivation of Acacia trees A: Yes, my Lord Q: So I take it that the money realized from these grants was shared on the same proportion you have afore-described to the court? A: We do not use the same ratio for that sharing. Q: Which parties were the beneficiaries on this occasion? A: The stool, Kwahin Aboradze family, the community and the person who facilitated the deal. From the evidence on record and the discourse above clearly, this court finds as a fact that the lands being claimed by the plaintiff have not been administered in accordance with the requirement of law regarding how stool lands should be dealt with by the occupant of the stool and the administrator of stool lands. Indeed, if the disputed land were stool land, the plaintiff would have ensured compliance with the constitutional provisions in Article 267of the 1992 Constitution, especially when he told the court that he was a law student and had read cases in 2G&G and that he has granted land to Metliss for quarrying purposes. I would like to refer to the applicable articles of the Constitution 1992, which provide as follows; (1) All stool lands in Ghana vest in the appropriate stool on behalf of and in trust for the subjects of the stool in accordance with customary law and usage. (2) There shall be established the office of the Administrator of Stool Lands, which shall be responsible for; a) the establishment of a stool land account for each stool into which shall be paid all rents dues, royalties, revenues or other payments, whether in the nature of income or capital from the stool lands. b) the collection of all such rents dues, royalties revenues, or other payments, whether in the nature of income or capital, and to account for them to the beneficiaries specified in clause 6 of this article and c) the disbursement of such revenues as may be determined in accordance with clause 6 of this article 3) There shall be no disposition or development of any stool land unless the Regional Lands Commission of the region in which the land is situated has certified that the disposition or development is consistent with the development plan drawn up or approved by the planning authority for the area concerned. See also Article 267 6 (a) (b) and c regarding how revenues should be shared. Juxtaposing the plaintiff's testimony with the Constitutional provisions above, the plaintiff has not complied with the provisions. If this had been done since the plaintiff mounted the stool after the coming into force of the Constitution 1992, there would have been incontrovertible evidence that, indeed, the land in dispute is stool land and that the lands have been administered as stool lands in terms of the Constitutional provisions stated supra. There is evidence that the plaintiff even shares the rent collected regarding Kwahinkrom stool lands per his own arrangement with his Aboradze family, which is contrary to the law. If there was evidence that the lands in dispute entirely belong to the Kwahin stool plaintiff had administered Eminase and Wawase lands as stool lands, it would have been evident from his compliance with the constitutional provisions above. I find the noncompliance with the provisions of the Constitution 1992 to be inconsistent with the plaintiff's claim that the lands in respect of which he seeks a declaration are stool lands. The Court cannot, therefore, gloss over that noncompliance coupled with his failure to call credible and positive evidence on the payment of tolls to the stool to grant him a declaration. I agree with counsel for the defendant that the plaintiff has come to court with stained hands, having presided over his acclaimed stool lands without complying with the Constitutional provisions. I, therefore, rely on the case of Intelsat Global Sales and Marketing Limited Vrs Network Computer System Ltd, Civil Motion No. J8/1/2011 dated 20th December 2011 and state that the court cannot shut its eyes to the violation of statute by the plaintiff and hold in his favour that Eminase and Wawase are stool lands when clearly there is even no evidence that the plaintiff has controlled the said lands and has also administered them in accordance with the provisions of the constitution. Since there is no evidence that the plaintiff has controlled these two lands and has administered them in line with the Constitution, I hold that quite apart from his failure to produce credible, reliable and cogent evidence on the payment of tolls, the noncompliance is also inconsistent with his evidence that the said lands are attached to his stool lands. Possession of the land by the defendant. Per section 48 of the Evidence Act, [1975] NRCD 323, the things which a person possesses are presumed to be owned by that person. Additionally, a person who exercises acts of ownership over property is presumed to be the owner of it. It has also been held in the case Osei Substituted by Girald vs Korang 2013-2014] SCGLR 221 as follows; “Effect of possession. In the present appeal, the stark fact is that the appellant was in possession of the house, just as was DW6. Now in law, possession is nine points of the law and a plaintiff in possession has good title against the whole world except one with a better title. It is the law that possession is prima facie evidence of the right to possession and it being good against the whole world except the true owner, he cannot be ousted from it. See Summey v Yohonu 1962 1GLR 160 SC, Barko v Mustapha 1964 GLR SC 78." It is not in doubt that the defendant has been in possession of the disputed land, and there is no reliable evidence on record to show that the defendant has paid any tolls in respect of the disputed lands to the plaintiff. The evidence of the defendant paying homage to the plaintiff by paying tolls because he is on Kwahinkrom land cannot, by any stretch of the imagination, be analysed to mean Wawase and Eminase It lands.is beyond dispute that the defendant granted 100 acres of land to the investors for a rubber plantation, but the plaintiff claimed that he pays a yearly toll of 50 Ghana cedis to the stool. That evidence clearly in the mind of the court cannot be accepted as the truth as it is highly improbable that a licensee would be in possession of such a large tract of land and pay only an annual toll of 50 Ghana cedis to the stool for cash crops the plaintiff claims he cultivates on the land. Defendant and his family members as Licensees? It is also the finding of this court that the assertion of the plaintiff that the defendant and his family members are licensees on the land contradicts the roles the defendant plays in relation to the Kwahinkrom Stool. The plaintiff, under cross-examination, admitted in paragraph 16 of his witness statement that the plaintiff's predecessor was elevated as a stool elder and a caretaker chief of Kwahinkrom in the absence of the substantive. Contrary to the assertion of the plaintiff that the defendant and his family members are licenced, his own evidence again shows that when the plaintiff himself is not available, the defendant is the one who holds his brief, but he no longer does so. It is clear to the court that such an important role cannot be performed by a mere licensee who has been permitted to stay in Kwahinkrom. I, therefore, hold that the roles the defendant and his predecessors play in respect of the stool cannot, by any stretch of the imagination, by a stranger licensee as claimed by the plaintiff. This testimony also contradicts the evidence of the plaintiff that he read a case in 2G&G in which the defendant’s ancestor was a mere worker at Kwahinkrom. I think the plaintiff's case contains the seeds of its own destruction, and the court cannot gloss over same. The plaintiff has not been able to show that the admission that he makes contribution to the plaintiff’s head of family because he lives on Kwahinkrom land means the defendant was referring to Wawase and Eminase land as being attached to the stool of Kwahinkrom because even the evidence of payment of tolls given by the plaintiff by and his witnesses is so contradictory and cannot be cured by a statement by the defendant that he lives on plaintiff’s land in the face of the consistent denial that the land belongs to the Kwahin stool. It is the opinion of the court that the interpretation placed on the said answer by counsel for the plaintiff cannot be accepted by the court. Grant of the land to Eastern Farms. The court rejected the document in relation to that evidence by the defendant, but interestingly the defendant produced a witness, DW2, who testified that he shared boundary with the defendant in relation to the said Eastern farms, which in my opinion, was not discredited under cross examination. It should be noted that the plaintiff per the law should rely on the strength of his case and not on the weaknesses in the defendant's case. He can only do so if he has proved his case and the burden shifted to the defendant. On the balance of probabilities, I am of the opinion that the possession of the land by the defendant and the failure of the plaintiff to prove a better title in the midst of all the contradictions makes the case of the defendant weightier. On the totality of the evidence before the court, I hold that the plaintiff has not been able to establish by credible evidence that the disputed lands are stool lands attached to the Kwahin stool. His reliefs endorsed on the writ are therefore dismissed entirely. Costs of GHC8000.00 in favour of the defendant. MALIKE AWO WOANYAH DEY JUSTICE OF THE HIGH COURT CAPE COAST 20