Owusu Vrs Sarponmaa [2023] GHADC 366 (13 April 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT NEW TAFO-AKIM ON THURSDAY 13-04-2023 BEFORE HER WORSHIP JOSEPHINE SARFO (MRS.) SUIT NO: A1/24/19 KWABENA OWUSU NEW TAFO-AKIM PLAINTIFF VRS AKOSUA SARPONMAA NEW TAFO-AKIM DEFENDANT PARTIES PRESENT D. C. HAMMOND FOR PLAINTIFF-PRESENT CHRISTIAN FOR SULEIMA MUSAH FOR DEFENDANT-PRESENT Plaintiff in a writ issued on the 18/06/2019 sought the following reliefs: JUDGMENT a. Declaration of title to a parcel of land situate, lying and being at New Tafo-Akim at a place called “Bluemich” and shares boundary with a lane propose street and a plot measuring 216 which land defendant has trespassed onto and claiming same. b. Recovery of possession of the said land in dispute. c. Perpetual injunction restraining Defendant, her assigns, agents, privies, labourers, etc from having anything to do with the land in dispute. d. An order for enforcement of arbitration award of GHC 1,350.00 awarded by the arbitration court of Osabarima, Tafohene which arbitration award defendant refused to pay despite repeated demands. It is the case of the Plaintiff that he is the owner of a parcel of land situate, lying and being at New Tafo at a place called Bluemich and sharing boundaries with a lane, proposed street and a plot measuring 216. The Plaintiff avers that the Defendant has trespassed onto this land and is developing same. The Defendant summoned him before the Tafohene and his elders because he confronted her that the land in dispute belonged to him. That after hearing both parties, the panel pronounced judgment against the Defendant and awarded cost of GHC 1,350.00 against her. Despite the pronouncement, the Defendant is still developing the land and has refused to pay the cost awarded against her. Plaintiff accordingly prays for the reliefs as set out in his writ of summons. Defendant has resisted the claim of the plaintiff and instead set out a cross action in the nature of a counter claim for the following reliefs: a. Declaration of title to a parcel of land situate, lying and being at New Tafo-Akim at a place called Bluemich and shares boundary with a lane, proposed street and a plot measuring 216 which land Plaintiff has trespassed unto and claiming same. b. Recovery of possession of the said land in dispute. c. Perpetual injunction restraining Plaintiff, his assigns, agents, privies, labourers, etc from having anything to do with the land in dispute. The Defendant contends that her late grandmother by name Maame Ama Ohenewaa in her lifetime acquired a vast cocoa farm at New Tafo-Akim Holy Family junction of which the land in dispute forms part of. The Defendant asserts that the grandmother was in possession of same since her infancy. Due to the development of the area, the Municipal Assembly at Kibi demarcated the cocoa farm into several plots; portions of it were allocated to the Stool, the Assembly and the grandmother given six plots out of it. Upon her grandmother’s demise, she inherited the six plots of land with her two other siblings; Matilda Gyamfi and Martin Owusu. Encroachers took over portions of these six plots leaving three plots of land of which the land in dispute forms parts of. She has been in possession of the three plots for over 30 years and has put up a building and stores on same to the lintel level without any opposition from any quarters. That lately she noticed that the Plaintiff had trespassed unto the land in dispute, conveyed stones unto same and also destroyed foundation trenches she had put up. According to the Defendant, a Pastor purchased land beyond the land in dispute and wanted a right of way through the land in dispute but she refused which matter was eventually arbitrated upon by the Tafohene and judgment passed in her favour. The issue of the Plaintiff’s trespass and alleged ownership of the land was reported to the Tafohene for arbitration. The Plaintiff informed the Panel that he purchased the land in dispute from a certain woman. This lady also intimated that it was her husband who gave the land in dispute to her. That the person who sold the land to her husband had also purchased the land from the chief of Ati. Defendant contends that the chief of Ati has no land in the area where the land in dispute is located. That the panel eventually went for a site inspection of the land but after the inspection of the land she was not allowed to ask any questions; that the panel were bias against her. That no award was made in respect of the dispute and she was also not aware of any cost awarded against her. Defendant contends that she has been in possession of the land for over 30years now and thus the plaintiff cannot lay claim to same. The following was settled as the issue for determination by the Court: i. Whether or not the disputed plot of land belongs to the Plaintiff or to the Defendant. ANALYSIS OF THE EVIDENCE AND EVALUATION OF THE LAW As there is a claim and a counter claim both parties have obligations to prove their claims and counter claims on the balance of probabilities. The dictum of Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS [2003 – 2004] SCGLR 420 is instructive in this regard that: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…” In respect of the defendant’s counter claim it is to be viewed with the same scale of measurement as if she was the plaintiff. As far back as the case of AMON v BOBBETT (1889) 22 QBD 543 where Browne LJ noted that: “a counter claim is to be viewed and to be treated for all purposes for which justice requires it to be so treated as an independent action”. Dotse JSC came to the same conclusion on counter claim actions in the case of JASS CO. LTD v APPAU [2009] SCGLR 269 at 271 that: ‘whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant’ Plaintiff testified that he acquired the land in dispute in May 2006 from Mercy Akosua Korang (PW1). A deed of transfer from PW1 was tendered into evidence as Exhibit A. Plaintiff averred that the land was originally purchased by PW1’s husband, Sampson Owusu-Agyemang (PW2), from the Ati Stool in September 1996 to put up a residential property for her. That after satisfying himself of the authenticity of the purchase agreement and a deed of transfer executed between PW2 and PW1, he proceeded to purchase the land. Subsequent to the purchase, an indenture was issued and signed by Osabarima Adusei Peasah II, the Akyem Tafohene in May, 2012. In 2013, he also reported an issue of encroachment on the land to the East Akim Municipal Assembly to have the work stopped. To Plaintiff’s disdain, in March 2019, when he conveyed building materials onto the land to commence work, the encroachers showed up again and begun construction on the land. He again lodged a report at the Abuakwa North Municipal Assembly to have the works stopped. In the same month, he was summoned to appear before the Arbitration Court of Osabarima Tafohene to answer a complaint lodged against him by the Defendant for covering up foundation trenches on the land in dispute she claimed was given to her by her grandmother. That the Panel and the Palace surveyor on 13th March 2019, visited locus and also examined the parties’ site plans upon payment of GHC 500.00 and transportation. Osabarima Tafohene was dissatisfied with the report and caused another locus visit led by himself on 8th May 2019 and judgment delivered in his favour. Cost of GHC 1,350.00 was awarded against the Defendant who walked out of the meeting unceremoniously and has since refused to abide by the orders to stay away from the land in dispute. A copy of the summons to show cause/decision on arbitration dated 5/06/19 addressed to this honourable Court for enforcement of the award was tendered into evidence as Exhibit B. Plaintiff’s first witness, Mercy Akosua Korang (PW1), testified that her husband purchased the land in dispute which is a stool land in September 1996 from the then Chief of Ati. She described the boundaries of the land as plot number 216 measuring 120 feet, a lane measuring 120 feet, plot number 6 measuring 120 feet and a proposed street measuring 80 feet with an area of 0.26 acres. Subsequently her husband gifted the land in dispute to her and made a deed of transfer to her. Later on, she sold the land to the Plaintiff at GHC 1,500.00. Plaintiff’s next witness, Sampson Owusu Agyemang (PW2), also testified that he purchased the land in dispute, as stool land under the Ati Stool lands in September, 1996 from the then Chief of Ati, Barima Sakyi Amoako II, to put up a residential property for his wife, PW1. He tendered into evidence stamped copies of the Indenture executed between him and the Ati Stool and the subsequent transfer he made to the wife marked as Exhibit C and D respectively. He stated that he purchased the land for GHC 600.00 and described the land as situated at New Tafo-Akim and bounded as follows: North by plot number 216 measuring 120 feet, a lane measuring 120 feet, a plot number 6 measuring 120 feet and a proposed street measuring 80 feet with an area of 0.26acres. Plaintiff’s third witness, James Ansah Darkwa (PW3) also testified that he is the Linguist at the Tafohene’s palace. That the Defendant lodged a complaint before Arbitral Panel against the Plaintiff for trespassing on the land in dispute. That the Panel and the Palace surveyor on 13th March 2019, visited locus and also examined the parties’ site plans. Osabarima Tafohene was dissatisfied with the report and caused another locus visit led by himself on 8th May 2019 and judgment delivered in favour of the Plaintiff on 10th May 2019. Cost of GHC 1,350.00 was awarded against the Defendant who walked out of the Court unceremoniously and has since refused to abide by the orders to stay away from the land in dispute. Defendant in her testimony averred that the grandmother owned a large piece of land which includes the land in dispute and had been farming on same since she was a child. When the New Tafo township spread out to the area in dispute, the then Kibi District Assembly demarcated this large tract of land into plots and gave the grandmother 6 plots. The grandmother gave two plots to her uncles and gave the remaining 4 plots to the Defendant’s mother. As her children, defendants and her siblings inherited same after the mother’s demise. In the year 2002, one of the sub chiefs of Akyem Tafo Stool, Nana Adu, sold one of the plots to an unknown developer and upon confronting him, the Chief admitted same citing that the place was weedy and thus he gave it to be used for farming and not for building. That because the unknown developer had reached an advanced stage in putting up his building, they did not pursue the matter and rather took steps to protect the remaining three plots. The Defendant stated that in the same year 2002, they begun to build four stores on one of the lands, and by 2007 had reached the lintel level. A photograph of the four stores was tendered into evidence as Exhibit 1. On the second plot, they commenced the construction of five single rooms in 2002 and by 2018, they had placed wood on the structure in preparation to roof same. A photograph of the five single rooms at roofing stage was tendered into evidence as Exhibit 2. On the third plot which is the land in dispute, they dug up a foundation for the construction of a chamber and hall structure. The wood used in roofing the five single room structure was from a tree located on the land in dispute which stump can be located on the land till date. A picture of the stump was tendered into evidence as Exhibit 3. According to the Defendant, emboldened by their decision not to pursue the initial trespass on their land, the said Nana Adu again gave out portions of the land to a church to create access route to their premises. Incensed by this decision, they reported the matter to Osabarima Tafohene who pleaded with them to allow the Church to take 20feet of their land to create an access road. A picture of the access road was tendered into evidence as Exhibit 4. On 6th March 2019, they found out that the Plaintiff had deposited sand and stones on the land in dispute. The Plaintiff later brought some well-built men to fill up the foundation they had dug. Incensed by the act of the Plaintiff, they also procured labourers to dig up the foundation again and built up to the lintel level. The Defendant further averred that when the then Kibi District Assembly demarcated the land into plots, they obtained a site plan to clearly demarcate all the four plots as far back as 1985. A copy of the site plan was tendered into evidence as Exhibit 5. The Defendant averred that the land in dispute was not for the plaintiff as it has always been their family land. The land in dispute is also located at a suburb of New Tafo known as Holy family and not Bleumich which is a suburb of Ati. John Azu (DW1) testified for the Defendant and averred that he only knows the Defendant and that he got to know her through an issue which arose as a result of the land in dispute. He stated that he was a church elder at Land of Fire Church at New Tafo precisely Holy Family junction. According to DW1, the church and the Defendant’s land share boundaries. About 3 years ago (now 7 years) the church embarked on creating a road path to enable its members to have easy access to the church. That the road the church sought to create came to the attention of the Defendant who confronted them for trespassing onto her land; the Church opposed the Defendant’s ownership of the land and the matter was subsequently lodged at the Tafohene’s Court for arbitration. That the road was subsequently demarcated for the Church however they got to know that the land in dispute belonged to the Defendant and it was only through the instrumentality of the Chief and his elders who pleaded with the Defendant that the Defendant allowed a demarcation of same for the Church to use as an access road. The Defendant’s next witness, Matilda Gyamfi(DW2) testified that the land in dispute was originally part of large tract of cocoa farm located at New Tafo-Akim Holy family junction which belonged to their grandmother. That the grandmother had been farming on this land since their childhood for so many years. The land was subsequently demarcated by the Municipal Assembly, Kibi and the grandmother was compensated with 6 plots. Upon her demise, they inherited the 6 plots but encroachers took part leaving them with only three plots. She corroborated the evidence of both the Defendant and DW1 to the effect that a road was subsequently demarcated through their land for DW1’s church to use as access road. She also stated that they had been in possession of the land for over 30 years now. The Defendant’s third witness, Owusu Ampaw (DW3)’s testimony was essentially a rehash of the testimony of DW2 and for the sake of brevity would not be reproduced in this judgment. The court in pursuance of its powers and discretion exercisable under section 114 of the Evidence Act, 1975 (NRCD 323) which grants the power to the court to appoint a court expert to inquire into and report upon any matter on which an expert opinion or inference would be admissible under section 112 of the Evidence Act, 1975 (NRCD 323) made an order for the appointment of a surveyor to prepare a composite site plan based on the instructions of the parties. The order was carried out and the court received the report of Ekow Agyin Arkafie, the surveyor who prepared the composite site plan which was tendered into evidence on 01/09/22 with the details as follow: 1. from the main road (Bonsu to Koforidua highway) with a width of 200 feet, being the total width of the highway 2. from the middle of the road with measurement of 100 feet to the first plot. 3. The first plot has a measurement of 100 feet to the boundary of Madam Akosua Sarponmaa’s plots. 4. Madam Akosua Sarponmaa’s plot was measured 160 feet for her four plots in question. 5. After Mr. Kwabena’s plot(that is, plot number 215) was measured with dimension 120 feet. 6. There is a lane on the left of the plots that connects to the main road. It is important to point out at this stage that when the Surveyor came under cross examination by the parties on 22-09-21, the court noted that “the composite plan is not clear and does not conform to the standard site plan. It is hereby ordered for the surveyor to produce a plan to address the overlap”. The new composite plan filed on 28-09-21 was admitted into evidence on 25-10-22 with the following details: 1. The box with red boundary is the four plots of Madam Akosua Sarponmaa with a length of 160ft and a breadth of 200ft. 2. The box with the blue boundary is plot 215 of Mr Kwabena with dimensions 120ft x 120ft x 120ft x 80ft. 3. The box shaded with black is the land to which Mr Kwabena says belongs to him while Madam Akosua also says it is hers. 4. From the centre of the main road it measures 100ft to the first plot. 5. The first plot measures 100ft from the first pillar (end of buffer zone) to the first pillar of Madam Akosua Sarpomaa’s plot. 6. On ground there is a lane that separates the land of Mr Kwabena and Madam Akosua Sarponmaa’s plots. 7. The layout of their site plans do not conform to what is on grounds. In an action for declaration of title to land, recovery of possession and injunction, a Plaintiff must establish by positive evidence the identity and limits of the land he claims. See the case of AGYEI OSAE AND ORS V ADJEIFIO AND ORS (2007-2008) SCGLR 499. Similarly, the Supreme Court held in the case of NORTEY (NO.2) V WEST AFRICAN INSTITUTE OF JOURNALISM [2013/14] SCGLR 703 in holding 2 as “since the Plaintiff had sought at the trial High Court, a declaration of title to the disputed land, he must establish the identity and limits of the land…” In the case of KWABENA v ATUAHENE [1981] GLR 136, CA; the court stated as follows that: “the onus of proof required by law as regards the identity of land would be discharged by meeting these conditions: a. The plaintiff had to establish positively the identity of the land to which he claimed title with the land, the subject matter of the suit. b. The plaintiff also had to establish all his boundaries. c. Where there was no properly oriented plan drawn to scale which made compass bearing vague and uncertain, the court would hold that the plaintiff had not discharged the onus of proof of his title” Both the Plaintiff and the Defendant claim title or better still their right to the disputed land through different grantors. The Plaintiff traced his root of title to the Atihene, Barima Sakyi Amoako the original grantor of the Plaintiff’s grantor (PW1). He therefore relied heavily on Exhibit C which is a deed of transfer executed between the Atihene and Sampson Owusu Agyeman (PW2). The Defendant on the other hand traced her root of title to the grandmother who originally acquired a vast piece of land which she used as a cocoa farm of which the land in dispute forms part of. Whilst the Plaintiff’s grantor(PW1) and PW1’s grantor(PW2) asserted that the land in dispute was acquired from the Atihene in 1996 and was subsequently sold to the Plaintiff by PW1 in the year 2006, the Defendant averred that she had been in possession of the land in dispute for over thirty years. Both parties gave the same description of the land in dispute as land situate, lying and being at New Tafo-Akim at a place called Bluemich and shares boundary with a lane, proposed street and a plot measuring 216 in their pleadings, I noted that while the Plaintiff maintained in his evidence in chief that the land in dispute was located at a place commonly known as Bluemich, the Defendant in her evidence in chief derogated from the description of the land as being at a suburb of New Tafo known as Holy family junction and not Bleumich. Bleumich was a suburb of Ati. This put the location of the disputed land in dispute as to whether the land was located at Bleumich, a suburb of Ati or Holy family junction, a suburb of New Tafo. The Purchase Agreement, Exhibit C which was heavily relied on by the Plaintiff described the disputed land as a parcel of land located at “New Tafo-Ati in the Akyem Abuakwa Traditional Area in the Eastern Region…. And bounded on the North West by plot no. 216 measuring 120 feet… on the South East by a lane measuring 120 feet… on the north east measuring 120 feet… on the south west by proposed street measuring 80 feet …. And containing in the whole an area of 0.26 acre or thereabout”. In his pleadings, the Plaintiff described the land as located at Bleumich. Bleumich is a suburb of Ati. Thus at all times, observing from the claim and Exhibit C, the Plaintiff maintained that the land was located at Bluemich. The Defendant on the other hand stated that the land was at Holy family junction. To resolve the uncertainties in the location of the land in dispute which was vital to determination of the identity of the land, the Court appointed a surveyor to draw a composite plan. This is what ensued during the cross-examination of the Surveyor by Counsel for the Plaintiff on 25/10/22. Q: You were asked to indicate Bleumich Guest house and Holy family junction. Can you point those two locations as indicated on the composite plan? A: The Bleumich Guest house was very far away from the land in dispute and therefore could not be indicated on the composite plan. The Holy family junction is where P1 is on the composite plan when you take a curve from the main road which the two lines, P1 is where Holy Family junction is. *** Q: In reference to your explanation on the Bluemich Guest house, what prevented you from putting it in your findings. A: The Bluemich Guest house is far away from the land in dispute on the ground, the Plaintiff indicated the Holy Family junction as the junction he referred to as Bluemich junction. Similarly, while under cross-examination on the same day by Counsel for the Defendant this is what ensued between the Surveyor and Counsel for Defendant Q: Kindly look at Plaintiff’s survey instructions you would agree with me that you have complied with all the instructions contained therein, not so? A: That is so Q: Take a look at that of Defendant’s you would also agree with me that apart from instructions, 5,6,8,9 and 10, you have complied with all the other instructions not so A: That is so Q: If given the opportunity by this Court you can demonstrate instruction nos. 5,6,8,9 and 10 on your composite plan, is that correct A: That is correct, except No.8 Q: Can you tell the Court why you are unable to demonstrate instruction No.8 of Defendant’s survey instructions. A: The Bluemich Guest House was farther away from the land in dispute. The key thing that run throughout the entire cross-examination of the Surveyor by Counsels for the parties was the fact that the land in dispute was closer to Holy family junction. The Bluemich Guest house was far from the land in dispute and was nowhere close for it to have been captured on the composite plan. This corroborated the evidence of the Defendant to the effect that the land in dispute was located at Holy Family junction. I find as a fact that the Defendant and his witnesses especially PW1, Mercy Akosua Korang, his original grantor have clearly misapprehended the identity and location of the land in dispute. My observation stems from what ensued during the cross examination of the Defendant on 13/02/20. Q: The Land in Dispute where is it located? A: It lies at New Road Kasadjan road near Bluemich hotel at New Tafo. *** Q: The land in dispute is not located at Bluemich as you have informed the court but rather a suburb of New Tafo known as Holy family. A: I said Bluemich down and at the time the church had not been built. Q: The land in dispute is never situated at any Bluemich down as the said Bluemich is in the region of Etti? A: The land is not at Bleumich but the popular thing in the area is the bluemich that is why I mentioned Bluemich. During cross-examination of PW1 on 08/01/21, this is what ensued: Q: Tell us the location of the land and boundary owners. A: When my husband bought the land, he went and showed me the land. By then, the adjourning lands had not been bought so I am unable to tell the names of those who have purchased it. I do not know the name of the vicinity. PW3, Okyeame James Ansah Darkwa also conceded during cross-examination 11/03/22 as follows: Q: Where is the land in dispute located? A: It is at a place called New road. It is from Engine Fuel station towards Opass junction and closer to Bluemich Hotel. Q: Do you know part of Tafo called Holy family? A: It is behind the disputed land. The place is a preparatory school. If the said Holy family is behind the disputed land as conceded by PW3 then it is highly improbable that the disputed land is closer to Bluemich Hotel as Plaintiff and his witnesses wanted to urge on this court. I hold that the Plaintiff did not know the location of the land which he claimed he purchased as far back as 2006 from his grantor whose husband claimed also bought the land in 1996. In my opinion, the Plaintiff knew the land on paper and never took steps to know the location or identity of the land until 2019 when he first went on the land and alleged that encroachers had taken over the land. In view of the foregoing I hold that the Plaintiff has not been able to identify positively the land in dispute. Counsel for the Plaintiff has urged on this Court to reject the findings of the Court expert, the Surveyor. He argued that the Surveyor did not comply with the surveyor instructions of the parties. I find no merit in this. Whatever clarification and elucidation required from the findings of the expert was resolved during the cross-examination of the expert. In fact, a careful analysis of the survey instructions will reveal that all survey instructions of the Plaintiff were complied with and answered by the Report and any inconsistencies resolved during cross-examination of the expert. The findings rather assisted the court to identify the location and identity of the land in dispute. Any dispute concerning the identity and title to the disputed land was resolved after the superimposition of the parties’ respective site plans. It was resolved that the area in dispute was within the defendant’s four plot of land; the area in dispute fell outside the Plaintiff’s land per his site plan and that the defendant’s land both on the ground on her site plan was separated from the plaintiff’s land by a road which road was the one that led to the land of fire church. Also, there was no overlap on the site and on the site plans of the parties. The work of the surveyor was therefore necessary as both parties also relied heavily on their respective site plans in claiming title to the land in dispute. Any controversy concerning the title of the disputed land have been resolved by the findings of the court expert per the composite plan. Is the identity of the land in dispute the only reason this Court finds the case of the Defendant more probable than that of the Plaintiff? I will answer in the negative. It is clear from the evidence before this Court that the Defendant had been in undisturbed possession of the land in dispute for a long period of time. The witnesses called by the Defendant each corroborated the fact that the Defendant’s had exercised overt acts of ownership on the land for a very long period of time. The following which ensued between the Counsel for Plaintiff and the Defendant’s witness, John Azu DW1, during cross examination on 26/03/21 confirms this observation: Q: So when you were engaging the Defendant on the land issue the plaintiff or Opanin Sampson were not part of whatever discussion you had. Not so? A: I am an elder of the church and made them make a road for cars to pass to the church. The Defendant opposed it so the matter was sent to the chief palace and we settled the matter amicably and the defendant allowed us access. I never engaged the Plaintiff or Opanin Sampson because it was only the defendant who opposed it. Q: Where did you want to use as road, do you have any idea whether it was a proposed road or a part of somebody’s plot? A: I did not have an idea that it was a proposed road. All I know that it was someone’s plot of which we were using part for our road. DW1 had earlier stated that the church had issues with the Defendant over the creation of an access road about five to six years ago. This would mean that judging from the time this action was instituted i.e, 2019, that was about the years 2012-2013. From the evidence adduced before this Court, the Plaintiff who acquired the land in 2006 should have been in the known about the dispute between the Defendant and DW1’s church on the issue of the access road if indeed he was on the land in dispute farming on same as stated during cross-examination on 28/08/20 as follows: Q: I suggest to you that not having taken any steps for more than twelve years after purchasing the land to secure same you don’t have any right against the Defendant who had been on the land before you purchased same. A: I working on the land by farming and it was in 2013 that I realized that somebody had encroached into the land and I reported it to the East Akim Municipal Assembly and they came to inspect the land and wrote “stop work” on the structure on the land. Again on 09/09/20 this is what ensued during cross-examination of Plaintiff: Q: On the last adjourned date you informed this Court that after you acquired the land you planted food crops including coconut. Do you still stand by that evidence? A: Yes I do Q: And you planted these foodstuffs around which year? A: I planted the crops from 2006 and 2012, with respect to the coconut when I planted them someone uprooted them and I suspected encroachers for doing that. If truly the Plaintiff was on the land farming on same from 2006 to 2013 thereabout, then it would have been highly improbable that he did not know that DW1’s church made attempts to create an access road which was resisted by the Defendant. In any case the evidence on record confirms that the access road was created through the land in dispute and which should have been obvious to the Plaintiff if indeed he was in possession of same during the period of the dispute between the Defendant and the church. On the other hand, the Defendant demonstrated that she has been in possession of the land in dispute for over 30 years. She adduced evidence to demonstrate overt acts of ownership exercised on the land over the span of these years as follows: a picture of four stores at the lintel level she had erected on one of the plots that adjoins the disputed land was tendered into evidence as exhibit 1. A five single room building at the roofing stage on the other side of the land which adjoins the disputed land as Exhibit 2. On the third plot which is the land in dispute, was a foundation and a picture of stump of the tree which wood was used in roofing the five-room building (Exhibit 3) and Exhibit 4 which is the access road created through the disputed land to the church. It is instructive to note that all these pieces of evidence were not controverted by the Plaintiff during the trial. It is a hackneyed principle distilled from several case law that a person in possession and occupation is entitled to the protection of the law against the whole world except the true owner or someone who can prove a better title: see the case of In re Adjancote Acquisition; Klu v Agyemang II [1982-83] GLR 852, CA. The law creates in favour of a possessor of land, presumption of title, if the possessor is able to establish physical possession, the intent to hold unto that possession and an immediate right of possession. See Section 48 of the Evidence Act, 1973 [NRCD 323]. The Defendant in this case has shown by uncontroverted evidence that she has exercised physical possession and had immediate right of possession over the land in dispute as opposed to the Plaintiff who only deposited stones on the land in dispute sometime in the year 2019 several years after the Defendant had exerted overt acts of ownership on the land in dispute as shown by the evidence on record. There seems to be countless evidence so overwhelmingly compelling enough for me to come to the conclusion that defendant’s title to the land is unassailable especially with her possession of the land in dispute and therefore entitled to the reliefs endorsed on the counterclaim. This judgment will be incomplete without a comment on Exhibit B, the decision on the arbitration. Counsels for both parties dedicated a greater part of their written addresses on the issue of whether or not there was a valid customary arbitration before the Tafohene between the parties. While Counsel for Plaintiff argued in favour of an arbitration, counsel for the defendant made a case against any such arbitration having taken place between the parties. He described the proceedings as negotiation for settlement. In my opinion the reliefs sought by the Plaintiff did not seek to enforce any arbitral award, it rather sought for the payment of cost awarded against the Defendant at the end of the proceedings. If that was the case, reliefs a, b, c would not have formed part of the reliefs since the said arbitral proceedings would have addressed the aforementioned reliefs. Section 111 of the Alternative Dispute Resolution Act, 2010 (Act 798) specifically provides that an award may be enforced in the same manner as a judgment of the court. Thus a party seeking to enforce a Customary Arbitral Award does not need to issue a writ of summons like the Plaintiff did in this case, the party only have to use any of the applicable modes of executing a judgment. More so, the Defendant in her counterclaim did not seek to set aside any award made against her at the end of the proceedings. The entire claim and counterclaim of the parties sought to reopen the case for a fresh hearing. In any case, apart from the letter addressed to the court headed summons to show cause tendered in evidence by the plaintiff, there was no evidence before the Court of a Valid Customary award. The letter was basically a report of what transpired at the Palace. It cannot be said to be the Arbitral Award. At best a record of proceedings together with the Award made would have sufficed. In essence there was no Valid Award before the Court for the Court to even enforce same. As such in the interest of justice, the court did not attach any probative value to the letter which in itself did not give a complete picture of the actual proceedings as pertained before the Arbitral panel. CONCLUSION The court summarizes its judgment in conclusion as follows: I dismiss all the reliefs that plaintiff seeks. The Defendant succeeds on her counterclaim for declaration of title to the land in dispute, recovery of possession of the land as well as an order of perpetual injunction to restrain the Plaintiff and his agents and privies from claiming or interfering with Defendant’s enjoyment of the land. I further award cost of GHC 10,000.00 in favour of the Defendant. SGD H/W JOSEPHINE SARFO (MRS) 20