Antobam Vrs Quansah and Another [2023] GHADC 284 (14 April 2023)

1 IN THE DISTRICT COURT AGONA SWEDRU - A. D. 2023 BEFORE HIS HONOUR ISAAC APEATU Civil Suit No A1/31/2022 14th April, 2023 F. K. ANTOBAM …… Plaintiff VERSUS KOFI ATTAH QUANSAH ABENA ABAM QUANSAH …… Defendants JUDGMENT This is a suit filed by the Plaintiff to seeking among others, declaration of title to land. The facts of the case admit of no controversy. Plaintiff claims that he is the owner of the land in dispute having purchased it from the Yego family of Agona Kwanyako in 1984. That he has been in possession of the land since that time to the knowledge of the family including the Defendants. That quite recently, the Defendants purporting to claim title to the land have trespassed onto same. That despite his attempts to get the Defendants to back away from the land, they have persisted in their unlawfulness. Unable to resist the Defendants’ attempts to wrestle the land from his hands, the Plaintiff resorted to the court and filed the writ of summons claiming as follows: a. A declaration of title to and recovery of possession of all that piece or parcel of land situate lying and being at Agona Kwanyako behind H/No. C6, C6I, C8 and Yaw Yeboah of the Yego Family. b. Damages for trespass. c. Perpetual injunction restraining the Defendants by themselves, agents, personal representatives, assigns, servants, administrators, executors, privies or howsoever from dealing with or having anything to do with the land. d. Costs. The Plaintiff served the writ of summons together with a summary of his claim. In view of the nature of the claim being one for declaration of title and the complexity of the issues, the court made an order for written statements to be filed by the parties in accord with Order 18 rule 1 of the District Court Rules, 2009 (C. I. 59). The plaintiff thus filed a written statement of his claims as ordered on 17th May, 2022. In the nineteen- paragraphed Statement, the Plaintiff averred to the effect that he is a farmer residing at Agona Kwanyako while the Defendants are trespassers on his land. That he is the owner in possession of a parcel of land situate at Agona Kwanyako. That on the 7 th day of December, 1984, he purchased a parcel of land from the Yogo Family of Agona Kwanyako represented by Kobina Konto who resides in H/No. C64, Abonse Street, Agona Kwanyako and paid valuable consideration after which a document of sale evidencing the purchase of the said parcel of land by the Plaintiff. That the Defendants who are trespasser on the said land, have without his consent and authority, demolished the self-contained building which he had caused to be erected on his parcel of land. The Plaintiff averred that his said parcel of land is bounded on the three sides by buildings belonging to the Yogo Family of Agona Kwanyako, namely: the building known as H/No, C6; the building known as H/No. C61 and the building known as H/No. C8; and the building of Yaw Yeboah of the Yogo Family Agona Kwanyako. That he has erected a self-contained building on his land up to the window level comprising two rooms with a bath room a toilet and kitchen with a porch in front of the building. That since 1984, he has been in effective occupation of the land to the knowledge not only of the Defendants but also to all sundry. That the Defendants who belong to the Asona Family of Agona Kwanyako have entered on his land without his consent or authority and further sent a bulldozer on to the land and erased the building thereon to the ground to his dismay and in spite of his protestation. The Plaintiff averred that the cost of the building in his estimation is twenty thousand Ghana Cedis (GH¢20,000.00). The Plaintiff averred that the Defendants purported to summon him to an arbitration at the palace of the Chief of Agona Kwanyako. That upon reaching there and before the panel of arbitrators without going into any matter concerning him and the Defendants simply threw at him an envelope the contents of which he does not know and which he will tender in evidence at the trial of the present suit. That there and then the so-called arbitrators through the secretary told him that they have purchased his parcel of land whether he approves of it or not and a further order to the effect that he had agreed to the purchase of his landed property. That the Defendants then went onto the land with a bulldozer and pulled down his uncompleted building to the ground to pave way for the Defendants to erect a new building on the land. The Plaintiff averred that the conduct of the Defendants including the so called arbitrators is unlawful and prayed the court to set aside the said arbitration of 2020 as null and void and of no effect. The Plaintiff averred that the Defendants have seized his land and are putting up a new structure on it in spite of protests from him. That the Defendants threaten and intend to continue with their unlawful acts unless restrained. The Plaintiff then repeated his claims against the Defendants jointly and severally as contained in his writ of summons and added another relief as follows: a. A declaration of title to and recovery of possession of all that piece or parcel of land situate, lying and being at Agona Kwanyako behind H/No. C6,C61,C68 and Yaw Yeboah of the Yogo Family b. Special damages of GH¢20,000.00 c. Damages for trespass d. Perpetual injunction restraining the Defendants by themselves, their agents, personal representatives, assigns, servants, administrators, executors, privies or howsoever from dealing with or having anything to do with the land e. Costs The writ together with a hearing notice was duly served on the Defendants by personal service. Upon the service of the processes on the Defendants, they, by their lawyer, filed a written Statement of Defence to the Statement filed by the Plaintiff. In their thirteen- paragraphed Defence, the Defendants averred to the effect that the disputed area is only a narrow strip of land abutting H/No. AB 8/1, Abonse, Agona Kwanyako and forms part of the land on which H/NO. AB 8/1 stands. The land on which H/No. AB 8/1 stands was the legitimate property of one, Agya Annan, an ancestor of Defendants, who acquired it several decades ago. That the said Agya Annan was variously succeeded to after his death, the immediate past successor being, one Opanyin Ko fi Asabre. That Defendants as grandchildren of the said Opanyin Agya Annan were granted the disputed property by Opanyin Kofi Asabre to renovate and improve same for their common use. That upon the grant made to the Defendants, it came to their attention that the Plaintiff was occupying a portion of the land of their ancestor. That the Defendants and their agents variously sought to remove the Plaintiff from the portion he was occupying but to no avail. So, the Defendants instituted a customary arbitration before an arbitration panel at Agona Kwanyako Chief's Palace. That the arbitration was determined on 4th August 2020, wherein the Plaintiff decided to relocate after being assisted financially by the Defendants. That subsequent to that, the Defendants gave the Plaintiff an amount of GH¢3,800 pursuant to his undertaking to relocate after being paid, yet he refused to give vacant possession of the land in dispute. That the Secretary to the panel therefore wrote to the Plaintiff demanding that he gives vacant possession of the land by the 16th of February 2022. That instead of giving vacant possession of the land, the Plaintiff rather instituted the present action. Defendants averred that the present action is an abuse of the court process as the Plaintiff has received compensation in lieu of his possession of the land. Defendants then counterclaimed against the Plaintiff as follows: 1. A declaration that Plaintiff is bound by the arbitration award given on 4 th August 2020. 2. An order of the Honourable Court enforcing the arbitration award given on 4th August 2020. 3. Costs. In a Reply and Defence to the counterclaim filed by the Plaintiff on the 17 th day of June, 2022, the Plaintiff joined issue with the Defendants on their averments in the Statement of Defence and Counterclaim. The Plaintiff averred that the land, the subject matter of dispute was sold to him by the ancestor of the Defendants and all customary rights were performed to confer the title on him. He denied that an award was given at an arbitration insisting that no award was given at the said arbitration. The Plaintiff averred further that an envelope, the contents of which he cannot tell, was hurled at him at the arbitration and same was not opened to authenticate its contents. The Plaintiff further averred that till this day, he is oblivious of the contents of the envelope. Now, both parties having stated their respective cases in their statements as mentioned above, it is important at this stage to determine the matter of the onus/burden of proof. Which of the two parties did the burden lie to lead evidence in view of the fact that they both made averments as stated above? Which of the parties bore the burden of proof of the matters in issue in this case? In other words, on which of them lay the greater responsibility to establish a case against the other? The principles on proof have been set out in by the Evidence Act, 1975 (NRCD 323) and pronounced upon in a plethora of decided cases. The principle in sum is that where, in a civil action, the Plaintiff makes assertions, he bears the burden to prove all those assertions. In the case of Abbey and others v Antwi V [2010] SCGLR 17, the court held that in an action for declaration of title to land, the Plaintiff must prove on the preponderance of probabilities acquisition either by purchase or traditional evidence, or clear and positive acts of unchallenged and sustained possession or substantial user of the disputed land. See also the cases of Odoi v Hammond [1971] 1 GLR 375 at 382, CA; Akoto II v Kanage (1984-86) 2 GLR 365 at 371, CA”. It is trite principle of law backed by the Evidence Act (supra) that the onus of producing evidence of a particular fact in civil cases is on the party against whom a finding of fact would be made in the absence of further proof. Popularly put, he who asserts has the burden of proof: see Section 17(a) and (b) of NRCD 323. The authorities are also in harmony 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 a fact is more reasonable than its non-existence. This is the requirement of the law on evidence stipulated under sections 10 (1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323). That burden of producing evidence has been defined in Section 11 (1) of the NRCD 323 as follows; “11 (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. It bears stating that the burden of proof is not static but could shift from party to party at various stages of a trial depending on the obligation that is put on that party on an issue. This provision on the shifting of the burden of proof is contained in Section 14 of NRCD 323 thus: “14 Except as otherwise provided by law, unless 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 that party is asserting”. Following from the above, when the burden to produce evidence is cast upon a Plaintiff, he must prove his case and win on the strength of the case presented and not on the weakness of the defendant’s case. This principle was first established by the case of Kodilinye v Odu (1935) 2 WACA 336. This principle has however been the subject of judicial commentary and development in subsequent cases. In the case of Asare v Appau II [1984-86] 1 GLR 599, CA, the principle was further re-echoed in the following words: “…the common run of land suits in the courts had, as the plaintiff, a person who claimed title to land, suing as the defendant, a person in possession of the land. Such a defendant needed not, and usually did not, seek any relief in the proceedings, being content with things as they were. In that event, the plaintiff must rely on the strength of his own case, i.e. prove his title and not rely on the weakness of his opponent’s, i.e. lack of title in the defendant, so that if the plaintiff failed to prove that he was entitled to have a declaration made of his title to the land, the action ought to be dismissed, leaving the defendant in possession of the land." See Banga v Djanie [1989-90] 1 GLR 510, CA. Notwithstanding that the burden to produce evidence has been laid on the Plaintiff, this burden to produce evidence is not static but could, depending on the issue asserted, shift from party to party at various stages of the trial. This provision on the shifting of the burden of proof is contained in Section 14 of NRCD 323 thus: “14 Except as otherwise provided by law, unless 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 that party is asserting”. This position of the law on evidence is confirmed in the case of In Re Ashalley Botwe Lands, Adjetey Agbosu and others v Kotey and others [2003-2004] SCGLR 420 at page 425 where the Supreme Court per Brobbey JSC held that under the provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial depending on the issues asserted and/or denied. And unless the burden shifts, the Plaintiff bears the burden of proof on all matters raised by the Claim and the standard of proof is on the balance or preponderance of probabilities. From the above exposition, the burden of proof in this case was on the Plaintiff initially to establish the averments he had made that he was the owner of the legal title in the land by purchase and that he has since 1984 been in possession of the land. From there, the burden will shift to the Defendants having made several claims to the same piece of land in their counterclaim. And the standard in each case is the standard of proof on a preponderance of probabilities. Having established on whom the obligations of proof lay in this case, I shall run through highlights of the evidence led by both parties in proof of their respective claims. In accord with procedure and as I stated above, the Plaintiff bore the initial burden to lead evidence to prove the claims and averments he made in order to have judgment entered on those claims contained in his Writ of Summons. Plaintiff thus led evidence in proof of the averments he had made as contained in his Writ of Summons. The Plaintiff testified on his own behalf and called two witnesses in support of his case. The nub of Plaintiff’s case from his testimony and those of his witnesses is that the land in dispute on which resided his demolished building owing to the direct acts of the Defendants, belonged to the elders of Kobina Kuntoh who inherited same. That in the year 1984, being desirous of putting up his own building and living in same, he contacted the Yogo Family of Agona Kwanyako who at the time was represented by Kobina Kuntoh. That Kobina Kuntoh sold the said piece of land to him. He attached as Exhibit 1, the sale agreement. That Kobina Kuntoh had three other siblings, Kwame Aketsewa, Kwame Panyin and Kofi Asabre who had knowledge of this transaction. That two of these siblings attested to the transaction as witnesses. That the last of the brothers at the time of the transaction was not present and upon his arrival at Agona Kwanyako, he gave his blessing to the transaction since it was prepared and executed by his brothers. According to Plaintiff, he put up a self-contained building on this land comprising two rooms with a bathroom, a toilet and a kitchen with a porch in front of the building. That the Defendants who as children lived in the house right in front of his together with all persons had knowledge of the existence of his building on the piece of land and he has been in occupation and possession of the land from 1984 aforementioned. That, the Defendants just recently summoned him before an arbitral panel at Agona Kwanyako who, after listening to the respective claims of the parties (where he made it clear to the panel that he had purchased the land), decided to visit the land in order to make a determination which they did after the agreed on fee was paid. That he waited patiently for the panel to communicate the next adjourned date. That the panel called him and in the absence of the Defendants who had summoned him, gave him an envelope (the contents of which he is not aware of), under the instructions of Nana Asabre Kotoku III, who was a member of the panel. He claims that the envelope was hurled at him. He attached a picture of the unopened envelope marked as Exhibit 2. Plaintiff stated that he strongly opposed the acceptance of the envelope as he did not know its contents and found it particularly odd that the persons that had summoned him were absent and in their own estimation without any prior negotiations on the part of all parties, could reach a conclusion and force the said conclusion. According to the Plaintiff, the panel construed his act of resisting the envelope and what was being proposed as an act of insult and a complete disregard of their office and demand ed that he and his daughter immediately vacated their presence. That a note which had already been prepared was presented to him to sign which he objected to as well. That even though he carried the envelope with him, it was as a result of the harsh treatment of the panel on that day and did not want to incinerate any existing feelings they had. That that notwithstanding, it had never been his intention to accept the envelope and its contents since the persons proposing whatever was in the envelope were absent on that day, there had not been any prior mention of the envelope, no negotiations had taken place and he was not desirous or intimated such a desire of sale of his land to the panel and or the Defendants who had summoned him. That the next thing he heard from the Defendants was their demolishing and clearing off of his building which took place on a day and time he was not home. He attached as Exhibit 3, 3a and 3b, pictures of the demolition of his building by the Defendants. Plaintiff stated that he reported the matter to the police who advised him to take up the matter in court. He stated that the acts of the Defendants have caused him great hardship and have caused him to rent a room at Agona Kwanyako incurring unplanned expenses. That in spite of hi s strong protests, the Defendants persist in their acts which has deprived him of a home and a dwelling place When the Plaintiff closed his case, the Defendants were called upon to open their defenses to the case made against them by the Plaintiff. 2nd Defendant gave evidence through an Attorney, one Ebusuapanyin Kwesi Dadzie who tendered in evidence a Power of Attorney as the source of his authority which was admitted and marked as Exhibit 1. After he had completed his testimony, the Defendants called one other witness and closed their defenses. Defendant’s case from the testimony of the Attorney and their witness is to the effect that the disputed area is only a narrow strip of land abutting H/NO. AB 8/1, Abonse, Agona Kwanyako and forms part of the land on which H/NO. AB 8/1 stands. That the land on which H/No. AB 8/1 stands was the legitimate property of one, Agya Annan, an ancestor of Defendants, who acquired it several decades ago. That the said Agya Annan was variously succeeded to after his death, the immediate past successor being, one Opanyin Kofi Asabre. That the Defendants as grandchildren of the said Opanyin Agya Annan were granted the disputed property by Opanyin Kofi Asabre to renovate and improve same for their common use. He attached marked as exhibit 2, a copy of a declaration made by the said Opanyin Kofi Asabre. 1 st Defendant’s attorney averred that upon the grant made to the Defendants, it came to their attention that the Plaintiff was occupying a portion of the land of their ancestor. That the Defendants and their agents variously sought to remove the Plaintiff from the portion he was occupying but to no avail. That the Defendants through him [the attorney], instituted a customary arbitration before an arbitration panel at Agona Kwanyako. That the arbitration was determined on 4th August 2020, wherein the Plaintiff decided to relocate after being assisted financially by the Defendants. He attached marked as exhibit 3, a copy of the arbitration proceedings. It is the further evidence of the 1st Defendant’s attorney that subsequent to that, the Defendants gave the Plaintiff an amount of GH¢3,800 pursuant to his undertaking to relocate after being paid, yet he refused to give vacant possession of the land in dispute. He claimed that the Secretary to the panel therefore wrote to the Plaintiff demanding that he gives vacant possession of the land by the 16th of February 2022. He attached marked as exhibit 4, a copy of the said letter. He continued that instead of giving vacant possession of the land, the Plaintiff rather instituted the present action which action he claimed is an abuse of the court process as the Plaintiff has received compensation in lieu of his possession of the land. From the written statements filed and the evidence adduced by the parties, I am of the considered view that the determination of the following issues will completely dispose of the instant case: a. Whether or not the Plaintiff acquired title to the disputed land by purchase from Kobina Kuntoh. b. Whether or not the Plaintiff entered into possession and occupation of the land. c. Whether or not the Defendants have trespassed onto the land and pulled down Plaintiff’s building thereon. d. Whether or not Plaintiff is entitled to Special damages of GH¢20,000. e. Whether or not there was a valid arbitration held before Nana Asare Panin IV and his panel of elders. f. Whether or not the Plaintiff submitted to the arbitration. g. Whether or not the hearing was fair h. Whether or not the arbitration panel gave a ruling against the Plaintiff. i. Whether or not the Plaintiff is bound by the award given. j. Whether or not the Plaintiff is entitled to the reliefs as endorsed on his Writ of summons. k. Whether or not the Defendants are entitled to the reliefs as endorsed on their counterclaim. I have concisely set out the necessary introductory, yet useful parts of the judgment above. Having done that, I shall now evaluate the evidence led by the parties in a bid to determine the issues relevant to bringing a closure to this case. Even though in the ordinary course of things, it is expected that the claims presented by the Plaintiff should be determined first before the claims on the Defendants’ counterclaim, I shall deviate from that norm in this present delivery. The Plaintiff prayed for declaration of ti tle to the disputed land. However, in opposing the claim, the Defendants asserted that the disputed land has been a subject of adjudication before a panel of chiefs set up at the Kwanyakohene’s palace. That the panel had rendered an award in their favour. Defendants therefore sought an order to enforce the said award which was given in their favour. If the defendants are the beneficiaries of an award given in their favour, it is immaterial that the Plaintiff now seeks a declaration of title to that land. It is therefore prudent under the circumstances of the case to determine whether or not there was an award given in the Defendants’ favour. So, I set out to determine the reliefs on the Defendants’ counterclaim. The principle of law is that a counterclaim is a different action in which the Defendant counter-claimant is the Plaintiff and the Plaintiff in the action becomes a Defendant. In the case of GIHOC Refrigeration and Household Products Ltd. v Jean Hanna Assi (2006) 3 MLRG, the Supreme Court per Date-Bah JSC held that a counterclaim is substantially a cross action and not merely a defence to the Plaintiff’s claim. It is said to be a cross-claim which could be raised in the very action brought against the Defendant. From the line of authorities therefore, it is settled that a counterclaim is in law a separate and independent action which is tried together with the original claim of the plaintiff. It follows that if in the course of an action in which there is a counterclaim and the plaintiff’s claim is struck out, dismissed, discontinued or stayed, the defendant can proceed to prosecute his counterclaim as it is independent of the original claim even though a counterclaim has no separate suit number different from the original suit. See John Atta Wusu v. Mr. Fosuhene, Civil Appeal No. J4/36/2009, 19th May, 2010; Gbedema v. Awoonor-Wiliams [1970] CC 12; Winterfield v. Bradnum 3 QBD 324; Amon v. Bobbett [1889] 22 QBD 543. And where a Defendant seek reliefs in a counterclaim, he/she bore the burden of proof and persuasion to prove conclusively, on a balance of probabilities that he/she is entitled to the reliefs claimed. It bears positing that adjudication of disputes between members of the African traditional society is not a new phenomenon. It has been with us for generations. Thus, before the advent of European style adversarial system of trial, the indigenes had elaborate, if not more effective and efficient ways of adjudicating disputes which aimed at restoring the balance between individuals in society. Chiefs therefore played crucial roles in this system from the pre-European contact to the present day. The Alternative Dispute Resolution Act, 2010 (Act 798) has been passed to regulate adjudication of disputes outside the court structures. However, the Act did not do away with the powers of chiefs to adjudicate disputes between members of their communities. Chiefs not only maintain law and order within their jurisdictions, but also continue to settle disputes between subjects ranging from common misunderstandings to complex relationships and are only subject to section 89 (2) of Act 798 (supra) which bars adjudication of criminal matters. An aggrieved party may either come to court to seek redress or better still resort to the wisdom of a chief to use customary procedures to settle a dispute with another person. It is the latter option that the Defendants claim they opted for and summoned the Plaintiff before Kwanyakohene’s palace to use their rich experiences garnered through years of practice, to arbitrate the dispute between them and the Plaintiff. The Defendants assert that took place at the chief’s palace can be termed as a customary arbitration. If the definition of what a customary arbitration is has ever been in doubt, then in the case of Pong v. Mante [1964] GLR 593, the court aptly described what customary arbitration is in the following terms: “The . . . practice whereby natives of this country constitute themselves into ad hoc tribunals popularly known and called arbitrations for the purposes of amicably settling disputes informally between them or their neighbours which has long been recognised as an essential part of our legal system; provided all the essential characteristics of holding valid arbitrations are present, the courts will undoubtedly enforce any valid award published by such ad hoc bodies”. From the above, customary arbitration has long been recognised as an essential part of our legal system. But it bears emphasizing that it is not every settlement that can pass for customary arbitration. It also is not every complaint made by one aggrieved party to an elder who calls the parties together that qualifies as a valid customary arbitration. I must state that before a settlement will properly be described as a valid arbitration at customary law, that settlement must satisfy some essential preconditions laid down by the courts in a line of judicial decisions over the years. As early as 1965, the Supreme Court pronounced on the elements of a customary arbitration. In the case of Manu v Kontre [1965] GLR 375, SC the Court held that there were three essential characteristics of a [customary] arbitration, as opposed to negotiations for a settlement which are: (a) a voluntary submission of a dispute by the parties to arbitrators for the purpose of having the dispute decided informally, but on the merits (i.e. not an arbitrary decision); (b) prior agreement by both parties to accept the award of the arbitrators; and (c) publication of the award. These are the elements of a valid customary arbitration. The courts have affirmed and pronounced on these three elements in subsequent cases. It must however not be forgotten that a party who founds his case on a customary arbitration must prove the existence of these essentials before the court can confirm and hold the defendant bound by it: see Bedaabour v. Duro, Court of Appeal, 31 July 1972, unreported; Donkor v. Isifu [1963] 1 G. L. R. 418, S. C. and Mensah v. Esah [1976] 1 G. L. R. 424, C. A. The question which falls to be decided then became whether or not, with the elements above stated in view, there was an arbitration on the land in dispute by the panel of chiefs at the Kwanyakohene’s palace. And the onus of establishing that there has been a valid customary arbitration is on the person relying on the arbitration, in this case the Defendants. In the case of Vado v Sempede (1958) 3WALR 35, the principle of who the burden lay to prove was enunciated in holding 2 of the report thus: “To establish that an arbitration award exists that is to operate as an estoppel per rem judicatam, the onus is upon the party relying upon it to prove that the essential requirements of a binding arbitration have been complied with. If this is done the award will be binding unless the other party can rebut, e.g., by proving that the purported arbitration was invalid or by showing subsequent agreement to avoid its effect”. And as I stated above, it was the Defendants who, having relied on the award given by the said panel, had the burden to establish the essential characteristics above. I have already stated that the Defendants asserted that there was an arbitration held at the Kwanyako palace which arbitrated the matter between them and the Plaintiff and gave a ruling or award in their favour. The Attorney tendered in evidence a document which is marked Exhibit 3 which the Defendants claim is the record of proceedings of the hearing of the arbitration. Exhibit 3 shows that there was a hearing of some sort where statements were made and questions asked by opponents and the panel members. It has the form of an arbitration. However, it is the latter part of the proceeding respecting the pronouncement of the award that arouses suspicion. It bears the reminder that the Plaintiff asserted strongly that the panel of chiefs did not pronounce a ruling in the matter. He insisted that throughout his case that the panel did not publish an award in this matter. In his Statement of Claim referred to above, the Plaintiff denied that there was a publication of an award. For the sake of emphasis, I reproduce below paragraphs 12, 13, 14 and 16 of the Statement: 12. The Plaintiff states that the defendants first and foremost purported to summon him to an arbitration at the palace of the chief of Kwanyako. 13. That upon reaching there and before the panel of arbitrators without going into any matter (sic) concerning him and the Defendants simply threw at him an envelope the contents of which he does not know and which he will tender in evidence at the trial of the present suit. 14. The Plaintiff will say that there and then the so-called arbitrators through the secretary told him that they have purchased his parcel of land whether he approves of it or not and a further order to the effect that he had agreed to the purchase of his landed property. 16. The Plaintiff states that the conduct of the Defendants including the so-called arbitrators is unlawful and will pray the court to set aside the said arbitration of 2020 as null and void of no effect. (sic) Under cross-examination, the Plaintiff held onto his assertion that there was no ruling given at the said arbitration. In an answer to a question posed by counsel for the Defendants, the Plaintiff denied that there was a ruling given by the arbitration. I have reproduced portions of the cross-examination below: Q: How much did you pay as inspection fee? A: GH¢100 Q: At the end of the trial, it was agreed that defendants will assist you to relocate from the property. A: Not true. They have not given a ruling. Then elsewhere, he stated as follows: Q: You received a reminder from the Kyidom Divisional Council to vacate the property. A: Yes. But they have not given a ruling so I do not know why I should vacate. Clearly, the Plaintiff has been consistent in his assertion that the panel did not give a ruling or award at the end of the deliberations. This assertion is crucial not just for the fact that it is being made by the Plaintiff but that if proven, it has the ability to throw overboard the arbitration undertaken at the Chief’s palace. This is because, if there was no ruling or decision, then there is nothing for the court to enforce. As I have stated above, the last of the three elements of a valid arbitration is that the award given must have been published. Publication is the act of bringing the final decision or award to the notice of the parties. Publication thus informs the parties what the final award is. It can be oral or written. However, there should be certainty of the award or decision rendered at the end of the arbitration. According to the learned S. A. Brobbey in his Practice and Procedure in the Trial Courts and Tribunals of Ghana, 2 nd ed. at page 521, there must be some evidence that the arbitrator has made up his mind. See Yaw v Amobie (1958) 3 WALR 406. Thus, the mind of the arbitrator must be discoverable in the award or decision he renders. This connotes that there must be a decision or award at the end of the arbitration which is to be made known to the parties by publication. However, I think that the focus of this analysis should not be confined to the assertion by the Plaintiff that there was no publication of the award or decision. According to S. A. Brobbey at page 518 (supra), care should be taken to scrutinize evidence led in support of what is alleged to be “arbitration”. I therefore extended scrutiny of the primary evidence put forward to prove the arbitration to determine whether there was an arbitration between the parties. So, what did the evidence disclose concerning the assertion by the Plaintiff? My finding is that besides the allegation by the Plaintiff that there was no ruling delivered by the panel, there may not have been a voluntary submission by the parties to determine their dispute by arbitration after they had returned from the locus inspection. I have taken a thorough read of the entire record as contained in Exhibit 3. The first impression I gathered is that it cannot be in doubt that the parties voluntarily submitted to the arbitration by the panel of chiefs at the Kwanyakohene’s palace. There is abundant proof that the parties appeared before the chiefs and conducted the trial. The trial is said to have commenced on 20th March, 2021. However, subsequent sittings are said to have been conducted in 2020. I think that there was a mistake with the initial date. It should have read 2020 instead of 2021. Be that as it may, at page 11 of the Exhibit 3, the hearing of 31st July, 2020 ended with a visit to the locus. Parties are represented to have accompanied the chiefs to the land where each showed their respective lands. There is a note that inspection ended at 4.35pm and the case was adjourned to Tuesday 4th August, 2020 at 2.00pm. Then on the 4th August 2020, the case is reported to have continued at 2.15pm. Exhibit 3 carries a caption “REPORT”. The contents under this caption is where my apprehension emanates. Before I set out to comment on the contents, I have reproduced what is stated therein under the caption “REPORT” below: REPORT Both parties appeared before the panel and agreed on settlement of the case since they have for long lived closely together and have cordial relationship. They then looked up to the panel for settlement. The above quoted statement in exhibit 3 has many connotations which when analyzed critically, do not support the contention that there was a valid arbitration held by the panel. Better still, it creates doubts in my mind as to whether all the elements of a valid arbitration were satisfied. The Statement quoted above is headed “Report”. The procedure from such arbitrations is that after the parties have inspected the subject land, they meet the arbitrators on a given date. The arbitrators then give a report of their findings at the inspection and afford the parties the opportunity to ask any questions that may have arisen from the inspection after which a date is set for the decision or award. So, the caption is not new to me. It is the contents of the ‘report’ which deserves analyzing. The ‘Report’ states that both parties appeared before the panel [presumably after the inspection]. The parties then “agreed on settlement of the case since they have for long lived closely together and have a cordial relationship”. The parties did not agree for the panel to render its award after the locus inspection. Rather, the parties had taken a different course, a pathway completely different and unassociated in any way with the arbitration they had held. They had opted for ‘settlement’ of the case stating reasons for their preference over arbitration. In further confirmation that both parties opted against Arbitration and opted to settle their dispute, the testimony of Mr. K. A. Imbeah, the secretary and recorder of the arbitration proceedings who testified as DW1 comes in handy. From my understanding of his testimony on the matter, he appears to confirm the obvious that at some stage in the proceedings, the parties decided to end the arbitration and pursue a different course of settlement of their dispute. I have reproduced portions of his testimony below i.e. paragraph 9 of the witness statement, for the sake of clarity. Paragraph 9 is in the following terms: 9. That both parties saw the need for common understanding among themselves since they have lived together in the same area for long. Paragraph 9 is a further fortification of the finding that both parties revoked their consents for arbitration and opted to engage in amicable settlement of their dispute for the reason that “they have lived together in the same area for long”. I find that even though the parties had been engaged in an arbitration proceeding in which they had testified and asked questions of each other and their witnesses, and were on the verge of conclusion, at that material point in the arbitration, they had revoked their consents for the chiefs to arbitrate their dispute and opted for a different mode of ‘trial’ in determining their differences. That mode was through a settlement. A ‘settlement’ is materially different from an arbitration. An arbitration is not a settlement. In a settlement, none or in some cases, not all of the elements stated above that qualifies a hearing as an arbitration is present. As such, in a settlement, no award is rendered by the facilitator or mediator. That is what I find the parties to have consented to. Under normal circumstances, before a chief assumes jurisdiction to arbitrate a matter, one party makes a complaint/summons against another. The chief serves the other party summons to appear before him. Then having sought the consents of the parties to arbitrate the dispute, he sets up a panel to arbitrate the matter. It is not every complaint that is made to a chief over which he sets up a panel to arbitrate. There are cases in which parties agree to attempt settlement at the behest of the chief and his panel. Where the attempt at settlement fails, the chief and his panel do not render any award capable of binding any party. In much the same way, I find that the parties gave their consents to the chiefs to hear the matter under arbitration and make a determination. They had voluntarily consented or submitted themselves to have their dispute determined by arbitration, participate in the arbitration and be bound by the outcome. Without their consents, the chiefs could not have constituted themselves into a panel and arrogated unto themselves powers to hear and determine their dispute. It was that consent which operated to legitimize their arbitration. That consent (voluntary submission) was given for an arbitration to be held. The power to arbitrate the dispute between the parties subsisted so long as both parties maintained their consents. To my mind, as soon as the parties decided and agreed on ‘settlement’ as the new mode of determination of their case, they had revoked their former consent given to the chiefs to arbitrate the matter. The initial consent given to the chiefs had been revoked and the parties had given the chiefs a new mandate to find a solution to their issues through ‘settlement’. It follows then that all proceedings held prior to the revocation of consent to arbitrate had expired and became otiose. The proceedings taken down prior to the withdrawal of consent to arbitrate in preference for a settlement could therefore not have formed the basis of any decision. Therefore, the panel of chiefs whose mandate to arbitrate had been revoked by the parties could not have reconstituted themselves into an arbitration panel and to purport to render an award (which I shall come to presently) in favour of one of the parties. They had no such mandate. Their mandate to arbitrate had expired and it is not stated that all the parties had consented again for them to rehear the matter in an arbitration. I do not think that the overzealousness on the part of the chiefs to render a decision at all cost in the matter should be given judicial blessings as it is clearly shown that the parties had not voluntarily resubmitted themselves to arbitration after their preference for a settlement. And in a settlement, the decision is the parties’ to reach. It is not imposed on them by a panel. Therefore, the attempt by the chiefs to give a decision after the parties had opted for a settlement is wrongful. I hold that such a decision is contrary to the rules of natural justice and does not bind any of the parties especially the Plaintiff. Be that as it may, despite their unlawful attempt to give an award, it appears that the chiefs well knew that their mandate to arbitrate had elapsed and that the parties had opted for a settlement. I have reached the above conclusion from a thorough reading of the Proceedings and have come to the conclusion that following the “Report” which contents I have analysed above, the panel then caption what is meant to be their decision in the term “Mediation”. I find that after an arbitration properly so called, the panel render a decision and mostly title such awards “Decision”, “Judgment”, “Award” or “Ruling” etc. Customary arbitral panels do not refer to their decisions as mediation. They are not mediators. Arbitral panels do not mediate at the end of an arbitration proceeding. They give an award or decision. What is contained in Exhibit 1 is not a ruling or an award. This is an indication that because the parties had made a preference for a ‘settlement’ over an arbitration, the chiefs did not even know how to present the ‘decision’ they had unlawfully decided to give. The contents of the said mediation also speaks volumes to the fact that the parties had opted against arbitration. I find that what is contained under the heading “Mediation” are agreements purportedly reached between the parties for the Plaintiff to do or refrain from doing certain acts. It also contains what the Defendants had ‘agreed’ to do for the Plaintiff to appease or compensate him. The evidence of Mr. K. A. Imbeah is again instructive here as it unveils the attempt to convert a settlement into an arbitration award. I once again reproduce portions of his testimony below for elucidation: 10. The Plaintiff herein, F. K. Antobam agreed to relocate after the Defendants herein have assisted him financially. 11. F. K. Antobam agreed and accepted cash an amount of GH¢3,000 from Plaintiff to purchase same size of narrow strip of land. 12. F. K. Antobam again accepted twenty (20) bags of cement in cash (GH¢800) as additional support. 13. Both parties agreed on three (3) months period for F. K. Antobam to vacate the narrow strip of land. Unlike an award, what is contained in the said ‘Mediation’ does not communicate the mind of the arbitrators after the purported arbitration. It is no wonder that the Plaintiff insisted that an award has not been given. I find what is purported to be an award or decision of the panel titled ‘Mediation’ as a collection of what is purported to be ‘agreements’ reached between the parties after the settlement which they opted for. This court will not lend its powers to aid the Defendants to convert a bundle of agreements into an arbitration award. Without a clear indication of the mind of the Arbitrators, and the Plaintiff having denied that an award was given, I hold that what is contained under “mediation” falls short of an award. It is not an award, decision or ruling of the arbitral panel capable of enforcement by this court. Being a bundle of agreements, it is not binding on the parties including the Plaintiff. Moreover, the plaintiff appears to deny that there were any such ‘agreements’ as contained in the “Mediation” part of Exhibit 3. According to him, after the locus inspection, the panel called him. That in the absence of the Defendants who had summoned him before them, the panel threw an envelope at him. That he opposed the acceptance of the envelope especially where no prior negotiations had been reached and wondered how the chiefs could force him to accept a conclusion not based on the collective agreement of the parties. That the panel took offence and construed his refusal to accept the envelope as an act of insult and disrespect for them and demanded his immediate vacation from their presence. He insisted throughout the cross examination that the panel did not give a ruling neither did he agree to the terms as contained in the report. So, to him, there was no conclusive agreement between them to warrant the handing to him the envelope as they did. He appeared to say that he had not agreed to receive any money as a condition to vacate the land. I think that the plaintiff’s assertions have been vindicated by the evidence led. Indeed, as I have found in this judgment, there was an attempt by both the Defendants and the panel of chiefs to package the inconclusive proceedings as an arbitration award which they surreptitiously sought the court to enforce. I condemn such practice by chiefs who should know better. Such practices erode the trust and confidence bestowed on them by members of the community in that they stand to jeopardize future attempts by them to mediate or arbitrate disputes between members of the community. I think that such arbitrariness as shown by them to get the Plaintiff to vacate the land at all cost in favour of the Defendants does not bode well for the chieftaincy institution which has a special role in the Ghanaian society. Should these biased attitudes continue, future advances by them to determine disputes between members of their communities will be spurned. Be that as it may, it is clear that the panel, by their actions of handing out the envelope to the Plaintiff etc., sought to enforce or implement an agreement ostensibly reached between the parties at a purported mediation. This has been denied by the plaintiff. However, even if the parties reached a mediation agreement, what is there to prove same? If indeed there was an agreement reached between the parties that the Plaintiff should be assisted financially to vacate the land, before the plaintiff could be bound by it, there ought to be evidence that there was such an agreement and that the plaintiff consented to the terms of such an agreement by making his mark thereto i.e. if it was written. But in this case, no such agreement was tendered in evidence by the Defendants neither was there any evidence led to prove an oral agreement. There is nothing to show that the parties reached any agreement by which the plaintiff undertook to vacate the land in consideration for a sum of money or financial assistance from the defendants. The result is that the purported attempt by the chiefs to enforce such an agreement by first handing to the Plaintiff the envelope ostensibly containing the financial assistance and also writing to the Plaintiff to vacate the land were arbitrary. It is observed in the proceedings and in the evidence that the parties each paid some money to the chiefs before the hearing and in the course of the proceedings. Under normal circumstances, such payment of money at the beginning of hearing by a chief would have been viewed as a reaffirmation of a party’s commitment and consent to arbitration by the chief. However, the situation is totally different in this case. Consent was given to the chiefs to arbitrate the case. However, it was taken away by the parties and a new mandate given to them. Once there was a new mandate to settle rather than arbitrate, it mattered not that any of the parties paid any money to the chiefs initially to arbitrate. The consent given was not a continuum but was revoked in the course of the hearing over a new mode. Once that consent was revoked, it required that before the chiefs could have continued the arbitration, the parties should have resubmitted themselves to arbitration. There ought to have been some evidence of resubmission to arbitration. But here, I do not think that there was a voluntary resubmission of the dispute to the chief for arbitration by the parties including the Plaintiff. I find that at all material times after the 4th day of August, 2020, the parties consented to have a settlement but not an arbitration. Whatever they participated in at the chief’s palace from the 4th day of August 2020 was a settlement over which an award cannot be given. I have taken note of the fact that the Plaintiff did not apply to set aside the purported arbitration within the time stipulated by section 112 of the Alternative Dispute Resolution Act, 2010, (Act 798). That I think was not necessary in view of the reasons I have given above that there was no arbitration in the first place for lack of consent. There must have been an arbitration duly and properly held under Act 798 after which a losing party would be required to comply with the provisions of section 112. There having been no arbitration, the provisions of section 112 of Act 798 did not apply to this case to require of the Plaintiff to have applied within three months to set aside the award. There was no arbitration after the revocation of consents on the 4th day of August 2020 and no award was handed down in it. On the back of the failure of the first element of voluntary submission or consents by the parties to arbitration, there is no need to determine any other succeeding element(s) of an arbitration. It mattered not that the parties undertook to be bound by the decision of the panel. So long as the preceding element of voluntary submission or consent had not been established, all that followed were nullities. For it is an accepted principle of law that one cannot put something on nothing and expect it to stay there. It will collapse. See Macfoy v. United Africa Co. Ltd. [1961] 3 All E. R. 1169. I hold that there was no voluntary submission of the case to arbitration and as such there was no arbitration. I also hold that because the parties had explicitly opted for a settlement over arbitration, what the panel purported to do was not a ruling, award or a decision which ruling, award or decision can be enforced by the court. So, the Defendants having failed to get an order from the court to enforce the arbitration award as contained in their Exhibit 3, what did they do in proof of their title to the land as per the reliefs contained in their counterclaim? As I stated by way of introduction above, the Defendants filed a counterclaim. However, all the reliefs contained in the counterclaim dealt with proof of the arbitration and getting the court to enforce the purported award. The Defendants did not make provision for any fall back cushion in terms of alternative reliefs for declaration of title to the land etc. such that in the event the claim for enforcement of the award failed, the court could have considered the alternatives. There were none. Their total focus was on the enforcement of the award which the court has declined. That leaves the Court with nothing more to consider in respect of the Defendants’ counterclaim. As I stated before, I decided to consider the Defendants’ counterclaim first because, if they had succeeded, it had the potential to put matters to rest thereby curtailing a consideration of the Plaintiff’s claim to title to the land. However, because the Defendants failed as reasoned above, I shall analyze the case of the Plaintiff as presented in the evidence to determine whether or not he was able to prove his claims. The crux of Plaintiff’s case has been succinctly stated in this judgment. However, to recap what has been extensively stated, the Plaintiff asserted that the land in dispute belonged to the elders of Kobina Kuntoh who inherited same. That in the year 1984, being desirous of putting up his own building, he contacted the Yogo Family of Agona Kwanyako who at the time was represented by Kobina Kuntoh. That Kobina Kuntoh sold the said piece of land to him. He attached as Exhibit 1, the sale agreement. That all three siblings of Kobina Kuntoh whose names he gave as Kwame Aketsewa, Kwame Panyin and Kofi Asabre attested to the transaction as witnesses. That he put up a two roomed self-contained building on this land. That the Defendants had knowledge of the existence of his building on the piece of land. That he has been in occupation and possession of the land from 1984. That the Defendants have since demolished and cleared off his building while he was not home. He attached as Exhibit 3, 3a and 3b, pictures of the demolition of his building by the Defendants. As I stated elsewhere in this judgment, the burden of proof was on the Plaintiff to prove the assertions he made. It was not the Defendants’ to disprove the claims made by the Plaintiff. The onus of proof is said to be on the party who asserted. Having asserted strongly that he acquired title to the land by purchase, it was the Plaintiff who retained the burden to prove that acquisition on a preponderance of probabilities. The burden having been cast on the Plaintiff, he must prove his case and win on the strength of his own case as presented and not on the weakness of the Defendants’ case. See Kodilinye v Odu (supra). The effect is that even if the Defendants had not led sufficient evidence in their rebuttal of the claims, that alone would not have established a case for the Plaintiff. The Plaintiff remained the Plaintiff and the one who has made assertions capable of proof. As such, he bore the burden at all times in proof of his assertions. There was therefore the need to scrutinize the evidence led by the Plaintiff to assess whether it was sufficient to prove the claims on the standard stated above. So, what did the Plaintiff do in proof of his claims? The Plaintiff had asserted that he purchased the land in dispute from the Yogo family in 1984. That at the time of the purchase, the family was led by one Opanyin Kuntoh. That the purchase was evidenced in writing which evidence he tendered as Exhibit 1. My initial assessment of the document is that I do not think that it did anything meaningful to prove what it was intended to prove. It was not titled. However, it is more in the nature of an indenture. It described the land it purports to affect and gave its boundaries. It was signed by the supposed vendor as well as the purchaser and duly stamped. It was clearly an indenture. Being an indenture, it ought to have borne the marks of an indenture. One critical requirement of such an indenture being an instrument that affects land is that it should be registered. However, it was not registered in accordance with law. The law on unregistered instruments affecting land has been firmly grounded in a line of cases. It is trite law that a document purporting to transfer title to land or affect land in any way must be registered in order to be valid. That is to say, an unregistered indenture is invalid to convey title in land to any person. Since the instrument relied on by the Plaintiff was executed after 1962, it was squarely caught within the ambit of the Land Registry Act, 1962 (Act 122). I have taken note of the fact that the indenture was executed in the year 1984. That was not disputed. There is a new Land Act, 2020 (Act 1036) which has repealed the Land Registry Act. Even though Act 122 has been repealed, since the instrument was executed before the new Act came into force, it is the now repealed Land Registry Act, 1962 (Act 122) which governs the transaction. Section 24 of Act 122 states: “24. (1) Subject to subsection (2), of this section, an instrument other than, (a) a will, or (b) a judge's certificate, first executed after the commencement of this Act shall be of no effect until it is registered.” The legal effect of section 24 of Act 122 has been considered and stated by the superior courts of our land. In Odoi v. Hammond [1971] 1 G. L. R. 375at p. 391, C. A. Azu Crabbe J. A. (as he then was) said: “Again, I dissent, with the greatest respect, from the view expressed by the learned trial judge that the plaintiff's case was not affected by the non- registration of exhibit E. It was not disputed that exhibit E was not registered in accordance with the provisions of the Land Registry Act, 1962 (Act 122). Section 24 of the Act makes registration a sine qua non for the validity of an instrument other than a will or a judge's certificate.” See the cases of Lamptey v Hammond (1987-88) 1 GLR 286; Kwadwo Safo Bamfo v Kwesi Sintim, Civil Appeal No J4/26/2011, SC. In the instant case, the indenture on which the Plaintiff claimed the valid sale of the land to him was not registered. The effect is that it should have been objected to when it was being tendered in evidence. Even though no objection was raised to its admission, the Evidence Decree, 1975 (NRCD 323), s 8 empowers the Court, on its own motion to exclude evidence which ought to have been excluded as inadmissible. This provision has been the grounds for the rejection as inadmissible evidence admitted at the trial even if there was no objection to them when they were first tendered in a number of cases. It has been held in such cases as Juxon-Smith v KLM Dutch Airlines [2005-2006] SCGLR 438, Edward Nassar & Co Ltd v McVroom [1996-97] SCGLR 468, Ussher v Kpanyinli [1989-90]2 GLR 13 and Amoah v Arthur [1987-88] 2 GLR 87 that it was a duty of the trial judge to reject inadmissible evidence which had been received with or without objection during the trial when he came to consider his judgment, and if he failed to do so, that evidence would be rejected on appeal. In the end, having found that the indenture, i.e. Plaintiff’s Exhibit 1, was unregistered under section 24 (1) of Act 122, I hold that the instrument i.e. Plaintiff’s Exhibit 1 tendered by the Plaintiff is not valid for all purposes and its contents cannot have any legal effect until registration has been completed. I have stated above the principle of law laid down by the Supreme Court’s decision in the case of Abbey and others v Antwi V (supra) to the effect that in an action for declaration of title to land, the Plaintiff must prove on the preponderance of probabilities, acquisition either by purchase or traditional evidence, or clear and positive acts of unchallenged and sustained possession or substantial user of the disputed land. The Plaintiff attempted in the first instance, to prove title to the land by purchase by resort to documentary evidence. He was not successful in that as that attempt has undoubtedly failed. That attempt to prove title by documentation having failed, what other evidence did the Plaintiff lead to prove acquisition of the land in dispute? Although the Plaintiff failed to prove title by purchase through the document he tendered, I think that he succeeded in establishing acquisition through other pieces of evidence found in the record. It is the Plaintiff’s case that he went into possession of the land in dispute in 1984 after acquisition of same from Opanyin Kuntoh. That he put up a 2 bedroom building on the land. That he has been in possession of the land since 1984. Plaintiff’s first witness who gave her name as Philemon Mensah testified to the effect that he had, prior to the demolishing of the building, lived in it for over 29 years. Plaintiff’s second witness whose name was given as Faustina Mensah also testified that she lived in the building with the Plaintiff and their family since she was born. None of these assertions intended to corroborate Plaintiff’s claims to possession of the disputed land were denied by the Defendants. Not only were the assertions not denied, I find from the evidence that the 2nd Defendants’ attorney admitted, to some extent, that Plaintiff had been in possession of the land as he asserted. He stated under cross-examination that the Plaintiff had not put up a building on the land as he had claimed but that he had put up a structure on it. I am not so much as concerned about the nature of the edifice on the land as I am about the effect of the statement making the admission. What I take out from the statement is that Plaintiff was in possession of the land and had put up a structure on the land. Whether or not it was a complete 2 bedroom building or just a structure or not matters not under the present circumstances. That statement is an admission that the Plaintiff had put up an edifice on the disputed land. That I think was all that mattered. Moreover, there is no dispute or denial of Plaintiff’s claims that he entered into possession of the land in 1984. The Defendants failed to cross-examine the Plaintiff on that issue when he took his turn to testify. As I stated before, the Defendants appeared preoccupied with getting the Exhibit 3 contents enforced and did not advert their attentions to Plaintiff’s claims. The law is that when a party made an averment and the averment was not denied, no issue was joined and no evidence should be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon it, he need not call further evidence of that fact. It implies an admission. I therefore deem it admitted that Plaintiff went into possession of the disputed land in 1984. See Akyea Djamson v. Duagbor [1989-90] I GLR 223 @ 228; Kusi & Kusi v Bonsu (2010) SCGLR 60; Hammond v Amuah & Another (1991) 1 GLR 89; Western Hardwood Enterprises Ltd. & Another v West African Enterprises Ltd. (1998- 1999) SCGLR 105; Fori v Ayirebi & Others (1966) GLR 627 SC; Danielli Construction Ltd. v Mabey & Johnson Ltd. (2007-2008) 1 SCGLR 60. From the evidence, I find that the Plaintiff’s building or structure, as the 2nd Defendant would want the court to believe, has been demolished and cleared off the land by the Defendants. This according to the Plaintiff was carried out while he was away. He tendered in evidence his Exhibits 3 series being photographs of the purported demolishing of his building by the Defendants. The Defendants did not deny that they demolished the Plaintiff’s building. It is also deemed to be admitted by them. Be that as it may, I find that the Plaintiff was in possession of the land before the Defendants demolished and cleared it off the land. From my earlier holding and the reasons given above, I find that their demolishing and clearing off of the building from the disputed land was not lawful as it was not backed by any permission legally obtained. So, the fact that the Defendants have removed the structure of the Plaintiff from the land does not, of itself, operate to halt or determine Plaintiff’s possession. Plaintiff is in law still in possession of the disputed land. As such possessor of land, the Plaintiff becomes a vulnerable party who is accorded protection by law. Plaintiff’s possession, user and control of the land in law, arouses important legal ramifications. For instance, in determining ownership, resort has often been made to possession. This is because possession has been held to be the original form in which ownership manifests itself. Thus, aside systems of public registration which are statutory interventions made in that area, possession is ultimately the only means of proving ownership. By his possession and user of the land since 1984, the Plaintiff, by operation of law, acquired crucial incidental rights. Both at common law and under sections 35 and 48(1) and (2) of the Evidence Act, 1975 (N. R. C. D. 323), legal title to the disputed land was vested in the Plaintiff. By his acts of possession including building on the land, the law makes a presumption of ownership in his favour. The Evidence Act, 1975 (NRCD 323) states in section 48 (1) and (2) thus: (1) The things which a person possesses are presumed to be owned by him. (2) A person who exercises acts of ownership over property is presumed to be the owner of it.” The clear and unquestioned exercise of rights of possession and ownership over the property in dispute raised a rebuttable presumption of ownership in favour of the Plaintiff. The consequences of Plaintiff’s user and possession of the land giving rise to ownership has been the subject of many judicial decisions. So, in the case of Akyea- Djamson v Duagbor (supra), the Supreme Court, at page 234, held that a person in possession (of land) has “nine-tenths of the law” in his favour in regard to ownership with the outstanding one-tenth reposed in any person aspiring to oust him, to make out his claim as to his entitlement to be declared an owner. And by the provisions of sections 10-14 and 20 of NRCD 323, the person against whom such a rebuttable presumption operated or who sought to oust the possessor had the burden of leading evidence to dislodge it. See Sally Horne v. Jomoro District Assembly, Suit No. E1/32/19, High Court, Sekondi, dated 17th December 2021; Adwoa Pinamang v Nana Osei Agyemang Opambour Civil App No. H1/06/2021, Court of Appeal, Kumasi, dated 28th January, 2021; Ababio and Others vs. Mensah and Others (NO. 2) [1989-90] 1 GLR 573 at 595. In this case, the Defendants did not make any attempt to dislodge that presumption established in the Plaintiff’s favour. As I observed above, their main focus was on proof of the arbitration award thereby neglecting the claims made by the Plaintiff. I find that the Plaintiff has maintained a continuous stay on the land for a long time to the knowledge of the Defendants. By law, the Plaintiff’s long user and possession of the land bestowed on him another incidental right i.e. acquisition of title adverse to that of the Defendants’. The title of the Defendants would have been extinguished and the Plaintiff being the adverse possessor of the land would have had rights in relation to which he could sue. See: GIHOC Refrigeration v Hanna Assi [2005-2006] SCGLR 458; Djin v Musah Bako [2007-2008]1 SCGLR 686; Klu v Konadu Apraku [2009] SCGLR 741. This principle has been codified in Section 10 of the Limitation Decree, 1972, (NRCD 54). But to enjoy the benefits of adverse possession, it has been held that it must be specifically pleaded by the party intending to derive that benefit. Despite the finding that the Plaintiff has been in unfettered possession of the land since 1984, he did not plead adverse possession. As a result, he cannot take the guaranteed benefit therefrom. Be that as it may, I find the Plaintiff’s long user and possession of the land as sufficient to prove acquisition of the land as he claimed. That substantial period of possession of the disputed land to the knowledge of the Defendants cannot be ignored. Its significance is far too weighty to be brushed under. The nature of Plaintiff’s occupation and user of the disputed land and his continued user of it does not lend credence to the idea that he was granted a permission or license (as the Defendants appear to claim), to put a ‘structure’ on it. This is so even though the Defendants claimed that the land which they described as a narrow strip abutting house number AB 8/1, Abonse, Agona Kwanyako was the subject of a transfer to them by Opanyin Kofi Asabre. Having made the point above, I think that it would be worthwhile to deal specifically with the issue of the Statutory Declaration, the basis of the purported transfer to them of the house together with the land in dispute by Opanyin Asabre. This appears to be the backbone to the Defendants’ claim to the land in dispute and the pivot in their attempt to eject the Plaintiff therefrom. I have had a look at the Defendants’ case. I find that the Defendants attempted to justify their title to the disputed land which empowers them to remove the Plaintiff from it. However, I do not think that they led sufficient convincing evidence in that respect. Paragraph 6 of 2nd Defendants’ evidence referred to a Statutory Declaration granted to the Defendants by one Opanyin Asabre. They tendered the Declaration in evidence marked as Exhibit 2. The Statutory Declaration was made to transfer house numbered AB 8/1, Abonse, Agona Kwanyako to the children and grandchildren of Opanyin Agya Annan i.e. the defendants. No mention was made of the land in dispute in Exhibit 2 tendered by the Defendants. Even though the Defendants had mentioned elsewhere that the land in dispute forms part of the house numbered above, there is no proof of it; not even on Exhibit 2. So, on the face of the Statutory Declaration, the land on which the Plaintiff had put up his building was not affected by the purported transfer of the subject house to the Defendants. However, assuming without admitting that the disputed land was part of the building numbered AB 8/1, Abonse, Agona Kwanyako, I do not think that the said Opanyin Asabre had succeeded in transferring legal title to the house together with whatever it is supposed to transfer to the Defendants. I say so because the medium by which such transfer was effected viz, by a Statutory Declaration, was inappropriate in law and rendered any intended transfer of title void. The effect of the resort to a Statutory Declaration to transfer title in property has received many judicial pronouncements over the years. It is crystallized as a principle of law that a statutory Declaration was not a registered document under the Land Registry Act, 1962 (Act 122), now repealed by the Land Act (supra), nor was it a deed or a conveyance capable of conferring legal title in landed property. The courts have held that a Statutory Declaration made under the Statutory Declarations Act, 1971 (Act 389) was a mere self-serving document stating facts within a person’s knowledge and nothing more. It does not have the potency to transfer legal title in property to another. See the case of Ayekpa v Sackey [1984-86] 1 GLR 172. As such the purported transfer of the house together with the land on which the Plaintiff had put up his building by the Statutory Declaration was ineffective in law. As such, the Defendants obtained to benefits from that purported transfer to them of the house together with the disputed land. I also have taken note of the Defendants’ assertion that after the Statutory Declaration was made for them, it came to their attention that the Plaintiff was occupying a portion of the land of their ancestor. That statement presupposes that before the Statutory Declaration was made for them, the Plaintiff was occupying the land. I surmise that Opanyin Asabre who deposed to the declaration on their behalf knew that the Plaintiff was on the land. If indeed the Plaintiff had been permitted to put up a building on the land as a licensee or some kind of tenant, why did Opanyin Asabre who, as he deposed in the declaration, was and had been in peaceful possession of the house, not take steps to eject the Plaintiff from the land all these years? Why did the Defendants and their predecessors dilate for that long to remove Plaintiff from the land if indeed he was only a permissive possessor of the land? I also wonder how a licensee or a person permitted to occupy land which the Defendants and their predecessors deem to be part of their house be allowed to put up a 2 bedroom house on such land which PW1 and PW2 stayed and grew up? Such open acts as seen to have been done by the Plaintiff on the land are inconsistent with suggestions that he is in possession of the land by the permission of the Defendants. I find that the Plaintiff had shown by his user, control and long possession of the land that he acquired outright title to it. I shall now come to determine the issue of damages to cap this judgment. The Plaintiff claimed in his writ of summons for damages for trespass. It is trite law that when trespass to land was proved or admitted, damages flowed as a matter of legal consequence. See Hassan v Kassardjian Construction Limited, Tamale (1964) GLR 370. It has also been held that proof of title was not required in order to succeed on a claim for damages because the law did not require that a person in possession could not have the possessory remedy of damages unless he/she proved title. Thus, trespass was a wrong to possession and one of the known remedies for trespass was damages. So, having laid out the law in respect of damages for trespass, did the Defendants commit trespass capable of grounding damages in law? There has been undisputed evidence of acts of trespass committed by the Defendants in the evidence. The Plaintiff claimed that since the Defendants entered onto his land on which he had constructed his 2 bedroom house and in which he lived and demolished it. They then cleared the entire building off the land. As I have stated above, he tendered in evidence photographs marked as Exhibit 3 series which he claims is evidence of the demolishing and clearing off of his building from the land by the Defendants. The Defendants did not deny that they demolished and removed the building from the land. They however appear to say that it was agreed by the Plaintiff at the settlement which I have referred to above that the Plaintiff would relocate from the land with financial assistance from them. I have already given my opinion on the said proceedings before the panel and also of Defendants’ unilateral demolishing of Plaintiff’s building. I find from the evidence that the Defendants did not have any legal capacity to have entered onto the Plaintiff’s land to demolish his building. I find these acts sufficient trespass onto the Plaintiff’s property. I find that their entry onto the land could not have been done lawfully since the land has been declared to be the Plaintiff’s and remained so from the time he acquired it by purchase from Opanyin Kuntoh. To demolish the Plaintiff’s building when they knew that was his dwelling was barbaric and deserves all the contempt necessary. So in the case of Mahama v. Kotia & Others [1989-90] 2 GLR 24, where the Plaintiff sued the Defendants for the demolition of her building, the Court of Appeal held that in addition to the replacement value of the building, the Plaintiff was also entitled to damages for being deprived of the use of her building. Also in the case of Ayisi v. Asibey III & Others [1964] GLR 695 @ 696-7, the Supreme Court held that even in damages for trespass, exemplary damages could be awarded in addition to the normal nominal and actual damages suffered. The Court held as follows: “In assessing damages for trespass consideration should be taken not only of the extent of the land on which the trespass had been committed by the individual defendants, but also the length of time that the plaintiff had been wrongfully kept off the land.…” From the undisputed facts and evidence in this case, I hold that Defendants committed gross acts of trespass against the Plaintiff and that the Plaintiff is entitled to damages for trespass for deprivation of a dwelling place and for the inconvenience caused him to look for another place to stay. The Plaintiff again claimed a relief for GH¢20,000. He did not explain the basis for the sum he claimed. But I surmise from the generality of the evidence that it is meant to be the cost of the building the Defendants demolished. It bears emphasizing that the claim made by the Plaintiff was special in nature. The claim for the sum of GH¢20,000 being the alleged cost of the building the Defendants demolished was in effect, a claim in the nature of special damage; a different character of damage which requires a different approach. The law has been that special damages are such a loss a will not be presumed by law. They are special expenses incurred or monies actually lost. They are such losses as the law will not infer from the nature of the act. They do not follow in the ordinary cause and are exceptional in character. They are liquidated, verifiable and provable sums. The legal position therefore is that special damages must be specially pleaded, particularized and strictly proved. In the case of Delmas Agency Ghana Ltd v Food Distributors International Ltd [2007-2008] SCLR 748 the Supreme Court laid down the distinction between general damages and specific damages and held among others that general damages are such as the law will presume to be the natural or probable consequence of the defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded. However, where the Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate. See also Attorney General v Faroe Atlantic [2005-2006] SCGLR 271 at 276-277; Yungdong Industries Ltd v Ro Ro Services [2005-2006] SCGLR 816 at 819; Bogoso Gold Ltd v Ntrakwa [2011] 1SCGLR 415. The law on this point is further stated in Halsbury’s Laws of England (3rd. ed.), Vol. 11, p. 305, paragraph 494 as follows: “Although minute accuracy is not essential in pleading or in proving the special damages claimed, the special damage which is pleaded should make clear what measure of damage is relied on; the method whereby the figure claimed is calculated should, in appropriate cases be set out so as to enable the defendant to know what is the case against him and to obtain evidence for his defence. It is not sufficient merely to plead a certain figure.” Also, in the case of Bonham-Carter v. Hyde Park Hotel Ltd (1948) 64 T. L. R. 177 at p. 178, the law is stated in these words: “Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court, saying: 'This is what I have lost; I ask you to give me these damages.' They have to prove it.” The law as espoused above is very clear and need no further elaboration. What was required of the Plaintiff is clear: plead, particularize and prove by leading evidence to establish the various particulars of damage allegedly suffered. In my opinion the Plaintiff failed in that task. As has been established already, the Plaintiff stated his claim for a sum of GH¢20,000 as special damages presumably for of the building the Defendants demolished. So, I can safely conclude that he was able to satisfy the first requirement of pleading. However, save stating the sum in his writ of summons and repeating same in his Statement of Claim, he failed to lead any credible evidence to prove the cost of the building the Defendants demolished. I think that the figure of GH¢20,000 put there by the Plaintiff was a bit arbitrary and ought to have been proved in order to have merited anything from the court. As I have stated above, there is evidence on the land to show trespass by the Defendants. There is evidence to show that the Defendants demolished his building. However, it stood to be proved that the cost of the building the Defendants demolished was GH¢20,000. Such a sum ought to be determined based on verifiable data and not just by assumption. On the preponderance of probabilities, I make the following findings of fact from the evidence on record adduced by the parties: 1. That the land in dispute was originally owned by the Yoko family of Agona Kwanyako. 2. That the Plaintiff acquired the land by purchase from Opanyin Kobina Kuntor acting on behalf of his siblings. 3. That the Plaintiff has since 1984 been in effective user, control and possession of the land and put up a building thereon in which he stayed. 4. That the Defendants claiming that the land on which the Plaintiff had put up his building belonged to them summoned the Plaintiff before the Kwanyakohene’s palace. That in pursuance of the summons, a panel was set up to arbitrate the dispute. 5. That before the panel could render a decision, the parties withdrew their consent to the arbitration and opted that their dispute be determined through settlement. That no ruling, decision, award or judgment was given by the panel. As such the court cannot be called upon to enforce what is not in existence. 6. That the Plaintiff succeeded in leading evidence to prove that he acquired the land in dispute. That the Defendants’ unilateral demolishing and removal of the building put up by the Plaintiff on the land did not oust him from possession of the land. On the totality of the evidence on record, the Plaintiff succeeded in proving his claims against the Defendants. I enter judgment for the Plaintiff in terms as follows: i) Judgment is entered in favour of the Plaintiff as per the reliefs endorsed on his writ of summons and declare title to the disputed land at Agona Kwanyako behind H/No. C6, C61, C68 and Yaw Yeboah of the Yogo Family as described in the writ of summons to be vested in the Plaintiff herein. ii) I further order perpetual injunction against the Defendants, by themselves, agents, personal representatives, assigns, servants, administrators, executors, privies or howsoever from dealing with or having anything to do with the land. iii) Accordingly, I enter judgment for the Plaintiff on his claim for damages for trespass. General damages were normally said to be at large and their quantification was peculiarly within the province of the court. Given the nature of the trespass succinctly established above, i.e. the demolishing of the Plaintiff’s building on the land which has deprived him of the use of his building, I would award a reasonable sum of Twenty Thousand Ghana Cedis (GH¢20,000) as general damages against the Defendants. iv) The Plaintiff however failed to lead any evidence in proof of his claim for GH¢20,000 as special damages. That claim is dismissed as unproven. v) The Defendants failed to prove the claims as endorsed on their counterclaim. The claims as endorsed thereon are dismissed in their entirety as unproven. Considering the length of time this case has had to take to complete and the fact that the Plaintiff engaged the services of counsel throughout the proceedings in court, I assess cost at GH¢5,000 against the Defendants in favour of the Plaintiff. (SGD) HIS HONOUR ISAAC APEATU DISTRICT MAGISTRATE