Patrick Dzakpasu & Anor Vrs Kuegbi Doamekpor [2023] GHACC 401 (19 April 2023)

1 IN THE CIRCUIT COURT HELD AT SOGAKOPE ON WEDNESDAY, 19TH APRIL, 2023 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT COURT JUDGE PATRICK DZAKPASU Current Head of the Dzakpasu Family; A Farmer of Dzakpasukope House No. DZK-1003 DAVID DZAKPASU A Principal Member of the Dzakpasu Family; A Farmer of Dzakpasukope House No. DZK-1003 SUING FOR THEMSELVES, FOR AND ON BEHALF OF THE DZAKPASU FAMILY OF DZAKPASUKOPE VRS KUEGBI DOAMEKPOR A Retired Public Servant of Dzakpasukope-Kpota ++ SUIT NO.: C1/1/2017 PLAINTIFFS DEFENDANT PARTIES: 1ST PLAINTIFF PRESENT 2ND PLAINTIFF ABSENT BUT REPRESENTED BY SAVIOUR DZAKPASU DEFENDANT PRESENT COUNSEL: DEREK YEBOAH GYAMFI, ESQ. FOR THE PLAINTIFFS PRESENT JUDGEMENT The Plaintiffs issued this Writ of Summons at the Registry of this Court on the 4th September, 2017 seeking the following reliefs: 2 1. Declaration of Title to and Ownership of all that piece or parcel of land belonging to the DZAKPASU FAMILY by gift from AKPONOGUI of WETA. 2. General Damages for Trespass. 3. Recovery of Possession. 4. Perpetual Injunction to restrain the 1st Defendant, his Agents, Servants, Workmen, Privies and Assigns from committing any further acts of trespass to the Plaintiffs’ Dzakpasu Family land at DZAKPASUKOPE. 5. Costs. Originally, the suit had two (2) defendants. Upon the service of the Writ of Summons on the Defendants, the 1st Defendant entered Appearance on the 12th September, 2017. The 2nd Defendant also entered Appearance on the 13th September, 2017. Subsequently, the Court differently constituted on the 27th February, 2018 struck out the name of the 2nd Defendant (Womama Dey) from the suit for misjoinder pursuant to Order 4 rule 5 (2)(a) of the High Court (Civil Procedure) Rules, 2004 (CI 47) leaving only the 1st Defendant as the sole Defendant in this case. The Defendant proceeded to file his Statement of Defence denying liability of all the claims of the Plaintiffs and set up the following counterclaim: a. Declaration of title to all that piece and parcel of land situate and lying at Afiadenyigba Kpota with the following boundaries: - On the South by Agblevor’s family land, - On the North by Agblevor and Fetri family land, - On the East by Agblevor family land, 3 - On the West by main road from Afiadenyigba junction to Keta. b. Perpetual Injunction to restrain the Plaintiffs, their workmen, servants, privies or agents from laying any claim to the 1st Defendant’s family land. c. Cost. THE CASE OF THE PLAINTIFFS The 1st Plaintiff is the current Head of the Dzakpasu Family whereas the 2nd Plaintiff is a Principal Member of the Dzakpasu Family. The Plaintiffs state that their ancestor Dzakpasu was gifted a large portion of land by one Akponogui who founded a large tract of the land originally at Weta as appreciation. The Plaintiffs say that Akponogui the original founder of the disputed land killed a pregnant woman who refused to marry him, so he was to be killed too, but he run away to seek refuge with their ancestor Dzakpasu at Kedzi-Anlo. As a result, Akponogui was spared death by his own Weta people. Akponogui thereafter showed appreciation to their ancestor Dzakpasu by the gift of a large portion of his founded large tract of land for his protection because Dzakpasu was a feared War leader of the Anlo State. The land gifted to the Plaintiffs’ ancestor is situate, lying and being at Dzakpasukope is bounded as follows: On the North by Akuna Family land; On the South by Avake Pond, On the East by Akuna Family land, and On the West by Atsiflam and Dzakpashie’s land; the latter now belongs to the Amegashie Family. The Plaintiffs state that their ancestor, Dzakpasu accepted the gift of the land from Akponogui with three casks of drinks, with three pieces of Atsraban Cloth and tobacco as a sign of gratitude in return. That their ancestor, Dzakpasu went into active possession and occupation of the land gifted to him by Akponogui by 4 establishing his business thereon, and used to buy palm oil and kernels and built a store on the gifted land wherein he used to sell his commodities. The Plaintiffs state that their ancestor built a village on the land and called it Dzakpasukope till he went to the Agortime-Kpetoe War in 1869 where he died. The sons of Dzakpasu reared cattle of on the gifted land and cultivated various portions as their farms. The Plaintiffs state that their father Kwabla Agbenyefia Dzakpasu succeeded Agbeti Dzakpasu who also succeeded their ancestor, Dzakpasu. The Plaintiffs state that their grandfather Agbeti Dzakpasu granted a portion of their Dzakpasu Family land to the Defendant’s grandfather Bloni Doamekpor for farming purposes on sharing basis only. The grandfather of the Defendant sought permission to continue with the customary grant of the disputed land to Bloni Doamekpor and he was granted permission to do so by their predecessors Kwami Adzagli Dzakpasu and others. After the death of the Teko Doamekpor, the customary lease of their Dzakpasu Family land lapsed for several years without anybody requesting for its renewal for farming purposes again. The Plaintiffs later discovered that the Defendant had trespassed onto the disputed land and commenced a building unlawfully thereon without their prior knowledge, consent and approval. The Plaintiffs invited the Defendant by a letter in 2014 but he came and told them that he should be summoned by them before a Court of law and so they commenced this instant action. The Plaintiffs say that the Dzakpasu Family sold out a portion of their Dzakpasu Family land to Dafehu Bokordedzi in about 1927 and Vetsu Fetri in about 2012 without any objection from the Defendant. THE CASE OF THE DEFENDANT The Defendant states that the Plaintiffs are not members of the Dzakpasu Family as they claim but rather members of the Agbeti or Agbenyefia Family who have 5 lived at Dzakpsukope for a long time and have started laying claim to the land belonging to the descendants of Dzakpasu by name Tsifoaka. The Defendants states that he was aware Togbe Dzakpasu was gifted a large tract of land but says that Togbe Dzakpasu hailed from Tegbi-Kpota and not Kedzi Anlo as the Plaintiffs are claiming. The Defendant states that the land described by the Plaintiffs has covered land gifted to the Agblevors by Akponogui. The Defendant states that it was Agblevor who directed Akponogui to Dzakpasu (who used juju to protect Akponogui) so Akponogui gave a portion of the land to Agblevor close to the Vake Pond and a portion of the land to Agblevor and a portion to Dzakpasu, so the two lands share a common boundary far away from the Vake Pond. That Togbe Dzakpasu had no biological child but he adopted one child from Likpe called Tsifoaka and so when Togbe Dzakpasu died Tsifoaka inherited his property. During the lifetime of Togbe Dzakpasu, he personally granted portions of the land gifted to him to several people including Kporble and Avudeka Tetteh Dziekpor (Defendant’s great grandfather). That Togbe Dzakpasu granted a portion of the land to Avudeka Tetteh Dziekpor because as herbalist, he treated the former and they became good friends. The Defendant states that Avudeka Tetteh Dziekpor gave a ram, a keg full of Sakpalu drink and corn flour to Togbe Dzakpasu as a token for the land granted him and after that he farmed on the land till he died. After the death of Avudeka Tetteh Dziekpor, his son by name Abloni Doamekpor took over the land and established a coconut farm on a portion of the land granted to his father. Abloni Doamekpor and his father Avudeka Tetteh Dziekpor were farming on the land granted Avudeka Tetteh Dziekpor when Togbe Dzakpasu died in Agotime Kpetoe War in 1872. That it was never Agbeti who granted land to Abloni Doamekpor as the Plaintiffs claim. It was one Kporble who went to Alakple to save Agbeti from being killed and brought him to Tsavanya, a village near Afiadenyigba to receive 6 treatment for his illness, and that whilst at Tsavanya Agbeti brought forth Agbenyefia. After the death of Agbeti, Agbenyefia migrated to Anlo Afiadenyigba to stay at Dzakpasukope because Agbeti had been helping Kporble to look after his cattle and after his death, Agbenyefia moved from Tsavanya to Dzakpasu’s land. That Agbeti was not a relation to Togbe Dzakpasu and never stayed on Dzakpasu’s land so he could not have granted any portion of the land to Abloni Doamekpor. The Defendant states that his ancestors never ever gave any portion of the produce from their farm to even the Tsifoakas let alone the Agbenyefia who was a mere licensee of Togbe Dzakpasu’s land. ISSUES FOR TRIAL At the close of pleadings, the Court differently constituted on the 11th April, 2018 set down the following issues as the issues for the trial: 1. Whether or not the Plaintiffs are entitled to all the reliefs claimed. 2. Whether or not the Defendant is entitled to his counterclaim. 3. Whether or not the now disputed land belongs to the Dzakpasu Family of Dzakpasukope. 4. Whether or not Torgbui Dzakpasu was gifted a large tract of land by one Akponogui when he gave Akponogui refuge from death at Weta. 5. Whether or not the land granted by Plaintiffs grandfather Agbeti Dzakpasu to the 1st Defendant’s grandfather was for farming purposes on sharing basis only. 6. Whether or not Torgbui Dzakpasu never had any biological ----children of himself. 7. Whether or not Dzakpasu ever adopted a son called Tsifoaka. 8. Whether or not the 2nd Defendant’s father Dey Dufe ever purchased land from Kwashie Azadagli Dzakpasu and others. 7 9. Whether or not the land 2nd Defendant has now inherited is at Dzakpasukope. 10. Whether or not Togbe Dzakpasu died long before Agbenyefia was born. 11. Whether or not it was Togbe Kadzahlo who gifted the land in dispute to the 2nd Defendant’s father. 12. Whether or not it was Togbe Dzakpasu who gifted the land in dispute to the 2nd Defendant’s father. 13. Whether or not it was the Plaintiffs herein who sold the land to 2nd Defendant’s father. 14. Whether or not one of Joshua Kwabla Amewovi’s corner pillars is put in one of the dilapidated rooms built by the 2nd Defendant’s father. 15. Whether or not the land sold to Joshua Kwabla Amewovi is situate at Afiadenyigba Junction or at Afiadenyigba Kpota. 16. Whether or not the land receipt of Joshua Kwabla Amewovi he shares one of his boundaries with Teiko Abloni’s (1st Defendant’s Father) land. 17. Any other issues arising out of the pleadings filed. In resolving the issues, we need to avert our minds to the fact that after directions had been taken in the matter, the name of the 2nd Defendant was struck out from the suit and this affected the issues set down for the trial. In the case of Fatal v. Wolley [2013-2014] 2 SCGLR 1070, Wood CJ stated at holding 2 as follows: “It is sound learning that courts are not tied down to only issues identified and agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a 8 crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on ground that it is not included in the agreed issues”. See also the cases of Mrs. Vincentia Mensah & Another v. Numo Adjei Kwanko II [2017] DLSC 2601 and William Ashitey Armah v. Hydrafoam Estate (Gh.) Ltd. [2014] DLSC 3000. BURDEN OF PROOF In my view the determination of the first five (5) of the above issues set down for trial will effectively and completely determine the dispute between the parties. In deciding the dispute one way or the other each party to the suit must adduce evidence on the facts and issues to be determined by the court in accordance with the prescribed statutory standards. Section 14 of the Evidence Act, 1975 (NRCD 323) which regulates the reception and evaluation of evidence provides. “Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non existence of which is essential to the claim or defence he is asserting”. In the case of In Re Ashalley Botwe Stool Lands; Adjetey Agbosu & Ors v. Kotey & Ors [2003-2004] SCGLR 420, the Supreme Court considered the issue of burden of proof by defendants. Brobbey JSC [at page 464] pointed out that sections 11(1) and 11(4) of the Evidence Act have made serious inroads in the common law principle that a defendant in a civil case assumes no onus of proof. He stated that these sections clearly require a defendant who wishes to win his case to lead evidence on issues he desires to be ruled in his favour. 9 I shall proceed to address the issues in this order: Firstly, I shall consider Issues 3 and 4 together, then follow it w up with issue 5 and conclude with the resolution of issues 2 and 1 in that order. 1. Whether or not the now disputed land belongs to the Dzakpasu Family of Dzakpasukope; 2. Whether or not Torgbui Dzakpasu was gifted a large tract of land by one Akponogui when he gave Akponogui refuge from death at Weta. All the parties herein are making claims to various lands. It is common knowledge that a person seeking land title declaration has the primary duty to establish his root of title and the identity of his land. In the case of Ogbarmey- Tetteh vrs Ogbarmey–Tetteh [1993-94] 1 GLR 353, the Supreme Court held that: “…… In an action for a declaration of title, a plaintiff who failed to establish the root of his title must fail because such default was fatal to his case”. See also the cases of Henry Doe Samlafo vrs GREDA and Anor. [2010] 26 GMJ 94 CA & Jass Co. Ltd and Another vrs Appau and Anor. [2009] SCGLR 265. Therefore, all the parties before this Court are expected to lead evidence on their root of title and the identity of their lands. What is not in dispute is the fact that the land claimed by the Defendant by his pleadings is covered by the larger land described by the Plaintiffs in their pleadings. According to the Plaintiff, the disputed land was gifted to Togbe Dzakpasu by Akponogui as a reward to the former for protecting the latter who founded the land from being killed. The Defendant at paragraph 5 of his Statement of Defence filed on the 16th October, 2017 admitted that he was aware Togbe Dzakpasu was gifted a large tract of land. 10 The Defendant pleaded that the description of the land by the Plaintiffs has covered land gifted to the Agblevors by Akponogui. That it was the Agblevor who directed Akponogui to Dzakpasu so Akponogui gave a portion of the land to Agblevor close to the Vake Pond and a portion of the land to Dzakpasu so the two share a common boundary far away from the Vake Pond. The Defendant again stated that during the lifetime of Togbe Dzakpasu he personally granted portions of the land gifted to him to several people including his great grandfather, Avudeka Tetteh Dziekpor and the land measures 4.09acres and is bounded on the South by Agblevor’s family land; On the North by Agblevor family land; on the East by Agblevor family land; and on the West by the main road from Afiadenyigba junction to Keta. The Plaintiff tendered in evidence Proceedings and Judgement in the case between Nyaho Amegakpui & Others vrs Agbenyefia Dzakpasu & Others in The Native Court ‘B’ of Wheta/Afife/Klikor Divisions held at Wheta in 1957/1958. This was admitted and marked as Exhibit ‘A’. At page 58, paragraph 1 of Exhibit ‘A’, the Court stated as follows: ‚As pointed out, it is quite clear that the disputed land was a gift to Dzakpasu for services rendered to Akponogui. It was clear that the 1st defendant and his ancestors exercised right of ownership over this land for over 128 years without opposition and as shown by Dorgbetor Kpekpena, that the defendant and his ancestors became automatically the owner of the land as a gift of land is not recoverable both in English law and Native Custom.‛ (Emphasis mine) This story of the Defendant is wholly inaccurate. In the 1957 case, when the Defendants’ first witness, Joseph Bobonyra Amegashie testified in Court on the 11 5th November, 1957, he told the Court that when Akponogui made the gift of the land to Dzakpasu, Agblevor was present. For the avoidance of doubt, the following is what the witness told the Court at page 27 of Exhibit ‘A’: ‚Dzakpasu after this gave a sign of sympathy Yetsa’s parents, cloth and Tobacco. During the gift of the land to Dzakpasu people who were his followers from Kedzi to witness it were Kporble, Jube, Eklu and Agblevor from Afiadenyigba. The witness of Akponogui were Dogbatse Dunyo, Kordzo Akponogui and Gbedze. Akponogui took Dzakpasu and his followers to the land and showed them the boundaries. The boundaries of the land are as follows: North by Akuna family land, South by Avake Pond, East by Akuna family land, South by Avake Pond, East by Akuna family land and on the West by Atsiflam and Dzakpashie’s land – later now belongs to Amegashie family.‛ (Emphasis mine) At page 28, paragraphs 2 and 3 of Exhibit ‘A’, the witness told the Court that Agblevor amongst others also worked on the land and even constructed a village called Sefenukope where his grandson Sokpoli planted coconut trees thereon where he still cultivated. The following is what the witness stated: ‚The children of Dzakpasu own farms on the disputed land and while Dzakpasu was alive he owned his own farm at a place on the disputed land called Agblegame where even now you will see the signs. The children of Dzakpasu who used to work on the land were Jube, Kordzo, Abotsivia, Gbedigbe and several others. The sons and grandsons of the above people are still resident and farming on the land without disturbance. The following also worked on the land: Nimawa, Kporble, Agblevor Fiavi Amegadedi and Nyaho Tamakloe and several others. The children and grandchildren of the people above are also still on the land. Nyaho Tamakloe constructed a village on the disputed land the relics of which could be seen now, from here he left and asked the people of Klikor and he was granted a land 12 whereon he constructed a village at Kpordoave. Agblevor also constructed a village which is known as Sefenukope and his grandson Sokpoli has planted coconut trees thereon where he still cultivates.‛ (Emphasis mine) Also, at page 41 of Exhibit ‘A’, when the Court examined the witness, the latter maintained that Agblevor was present when the gift was made to Dzakpasu. The following is what transpired: Q. What was the relationship between Akponogui and Dzakpasu? A. They were friends. Q. Where was Agblevor when the incident took place? A. He was at Afiadenyigba. Q. What was the relationship between Dzakpasu and Agblevor? A. Dzakpasu was Agblevor’s nephew. Q. Was Agblevor also present when the gift was made to Dzakpasu? A. Yes. When the Defendant was cross examined by the Plaintiffs’ counsel on the 9th June, 2021, the Defendant stated that the land was granted to Agblevor by Akponogui. The following is part of what happened during cross examination: Q. You agree with me that the person you claim share boundary with were all granted this land to farm on by the Dzakpasu family. Is that not correct? A. Fetri`s one was granted by Dzakpasu but the rest were not. Q. Can you tell the court who granted the land to the Agblevor’s? 13 A. Akponogui. Q. I put it to you that Akponogui could not have granted the land which he had already gifted to Togbe Dzakpasu himself. A. After Agblevor rendered services to Akponogui, he was gifted that land. Q. I put it to you that all these persons you claim you share boundary with were granted these lands to farm on by the Dzakpasu family. A. That is not correct. If indeed, the Defendants in the Exhibit ‘A’ case were claiming land allegedly given to Agblevor by Akponogui, why did Agblevor not act or challenge the title of the Defendants at the time? It is the humble view of this Court that Akponogui could not have granted the land to Agblevor which he had already gifted to Togbe Dzakpasu. Let me state with emphasis that the Defendant’s ancestors were not parties to the Exhibit ‘A’ case. In the case of Peniana & Ors vrs Affram [1966] GLR 220, the Supreme Court held that: ‚A judgement in a previous land suit was admissible in a subsequent suit though one of the parties in the subsequent suit was not a party to the former suit. Such a judgement was admissible not to establish res judicata but as evidence of acts of possession and the exercise of acts of ownership. It was quite evident from the judgement of the trial judge that these judgements were not tendered to operate as res judicata but to prove the sales by the Bio and Bansah to the plaintiff’s father.‛ 14 This goes to strengthen the case of the Plaintiffs that the Dzakpasus have been in possession of the land after the gift of the land to the Plaintiffs’ ancestor, Dzakpasu by Akponogui. Whether or not the land granted by Plaintiffs grandfather Agbeti Dzakpasu to the 1st Defendant’s grandfather was for farming purposes on sharing basis only In his Statement of Defence, the Defendant seemed to have traced his root of title to the purported gift made to his great grandfather by name Avudeka Tetteh Dziekpor by Togbe Dzakpasu. The Defendant pleaded at paragraph 9 and 10 as follows: ‚9. The 1st Defendant says that during the lifetime of Torbui Dzakpasu he personally granted portions of the land gifted to him to several people including Kporble (who was Dogbevi Hufenu’s ancestor) and Avudeka Tetteh Dziekpor (1st Defendant’s great grandfather). 10. The 1st Defendant says that Avudeka Tetteh Dziekpor was a herbalist who treated Torgbe Dzakpasu and they became good friends and it was because of this that Togbe Dzakpasu granted a portion of the land to Avudeka Tetteh Dziekpor.‛ The Plaintiffs denied the above assertion at paragraph 10 of their Reply and Defence to Counterclaim as follows: ‚In reply to paragraph 10, Plaintiffs say that Avudeka Tetteh Dziekpor never treated Torbui Dzakpasu as a herbalist and was never granted a portion of Dzakpasu’s land as alleged.‛ In Exhibit ‘A’ at page 28, paragraphs 2 and 3 (supra), the Defendants’ in the 1957 case told the Court that while Dzakpasu had his farm on the land during his 15 lifetime, his children namely Jube, Kordzo, Abotsivia, Gbedigbe, etc used to work on the land. Also, Nimawa, Kporble, Agblevor, Fiavi Amegadedi and Nyaho Tamakloe also worked on the land. It is instructive to say that Togbe Dzakpasu never gifted land to any of the above-mentioned people during his lifetime. If indeed, the great grandfather of the Defendant was gifted part of the land by Togbe Dzakpasu during his lifetime, it would have been captured by the evidence in the 1957 case. It is therefore not surprising that the Defendant was the first person amongst his ancestors and family members to put up a permanent structure on the disputed land. Under cross examination on the 30th March, 2022, the Defendant confirmed same as follows: Q. I put it to you that since only a small portion of the land you are claiming was granted to your ancestors, only for farming purposes, neither you nor your family can claim ownership of it. A. This land was not granted to my family for farming purposes. We put permanent structures on the land. It was a gift to my family. Q. You agree with me that you are the 1st person from your family to attempt building on that land. A. Yes My Lord because I have the resources to do so. Q. There was no form of structure of any kind on this land put up by your family or any of your ancestors. A. My grandfather built a hut on the land whilst he was farming on the land. I dismantled it to put up my building there. In addition, the coconut trees were planted by my grandfather over 100 years now. 16 Following from the above, I hold that Agbeti Dzakpasu did not gift land to the Defendant’s grandfather but rather permitted the latter to work on the land on share cropping basis. The Defendant by his evidence denied the title of his grantor. See excerpts of cross examination of the Defendant by the Plaintiffs’ counsel on the 30th March, 2022: Q. I put it to you that your family was never gifted any of the land belonging to the Dzakpasu family and it was only small portions given to your family for farming purposes by Agbeti Dzakpasu. A. The disputed land all belongs to my family. It is 4 point something acres. Q. Your claim before this court is that your family owns a portion of land at Dzakpasukope. A. My family owns land at Afiadenyigba Kpota. Q. So what then are you doing on Dzakpasu`s land at Dzakpasukope. A. I am not doing anything there. I am fighting for the land at Afiadenyigba Kpota which belongs to my family. Dzakpasukope is a small village and it does not apply to all the land over there. Q. Are you by your statement telling the court that the entire Dzakpasukope land does not belong to Dzakpasu? A. Dzakpasukope is a small village. The land was a gift to me so Dzakpasu cannot retrieve it from us. Q. I put it to you that there was no gift of land granted to your ancestors. A. It was a gift granted to my family by Dzakpasu himself. 17 Q. I put it to you that since only a small portion of the land you are claiming was granted to your ancestors, only for farming purposes, neither you nor your family can claim ownership of it. A. This land was not granted to my family for farming purposes. We put permanent structures on the land. It was a gift to my family. Q. You agree with me that you are the 1st person from your family to attempt building on that land. A. Yes My Lord because I have the resources to do so. Q. There was no form of structure of any kind on this land put up by your family or any of your ancestors. A. My grandfather built a hut on the land whilst he was farming on the land. I dismantled it to put up my building there. In addition, the coconut trees were planted by my grandfather over 100 years now. Q. Are you telling this court that the disputed land is different from what you are claiming? A. It is not different. It is at Afiadenyigba Kpota and not at Afiadenyigba junction per Exhibit `C’. Q. So you are denying the title of the Dzakpasus who are your grantors. Is that correct? A. They don’t have any title. The land belongs to my family. Q. So you are telling this court that you are here claiming the land. A. Yes My Lord. (Emphasis mine) The law is well settled. In the case of Antie & Adjuwah vrs Ogbo [2005-2006] 36 GMJ 157, the Supreme Court held that: 18 “The common law rule as to forfeiture by a licensee or tenant who challenges the title of his licensor or landlord has received statutory recognition under sections 27 & 28 of the Evidence Decree, 1975 (NRCD 323). The law is that a licensee or tenant who denies the title of his or her licensor or landlord, either by claiming that title to the subject matter is vested in himself or herself or someone else forfeits his or her interest. In view of the plaintiff’s direct challenge to the defendants’ lawful claim to ownership, he has forfeited his right to remain in the premises.‛ See also the cases of Nana Bediako Atwere (Substituted By John Kwame Owusu) vrs Osei Owusu (alias Yaw Owusu Achiaw Civil Appeal No. J4/36/2010, 18th May, 2011; Safo & Anor vrs Badu [1977] 2 GLR 63; Quartey vrs Entertainment & Tourist Development Co. Ltd & Others [1992] 2 GLR 298; Nana Akoto III vrs Nana Kwasu Agyeman I AND Nana Kwaku Duah III vrs Nana Kwasi Agyeman (Consolidated Appeals) [1962] 1 GLR 524; Charles Lawrence Quist (Substituted by Diana Quist) v. Ahmed Danawi [2015] DLSC 3223, per Baffoe-Bonnie JSC & Victoria Annang v. Emoho Trading Ghana Company Limited and 4 Others [2017] 109 G. M. J. 112 at page 148, per F. Kusi-Appiah J. A. By denying the title of the Dzakpasus to the disputed land, the Defendant automatically forfeits his right to be on the land. Whether or not the Defendant is entitled to his counterclaim The Defendant equally has a counterclaim against the Plaintiffs and is also seeking inter alia declaration of title to the land described in his pleadings. Order 12 rule 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47) provides that: ‚A defendant who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in an action in respect of any matter, whenever and however arising, 19 may, instead of bringing a separate action, make a counterclaim in respect of that matter.‛ In the case of Nortey (No.2) v. African Institute of Journalism & Communication & Others (No.2) [2013-14] 1 SCGLR 703, the Supreme Court stated as follows: ‚Without any doubt, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he/she is to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof prescribed by sections 11 and 14 of NRCD 323.‛ In his Statement of Defence filed on the 16th October, 2017, the Defendant stated that the land as described in his pleadings was granted to his great grandfather portions of the land, and that his family had been on the land granted to their ancestor, Avudeka Tetteh-Dziekpor by Torgbe Dzakapsu. In the 43 paragraphs Statement of Defence, nowhere did the Defendant state the capacity in which he was counterclaiming the reliefs stated. At paragraph 2 of the Statement of Defence, the Defendant stated as follows: ‚The 1st Defendant admits paragraph 3 of the Statement of Claim but denies paragraphs 1 and 2 and says that the Plaintiffs are not members of the Dzakpasu family as they claim.‛ Let me reproduce paragraph 3 of the Statement of Claim below: ‚The 1st Defendant is a Retired Public Servant now living at Dzakpasukope-Kpota.‛ Under cross examination by the Plaintiffs’ counsel on the 30th March, 2022, the Defendant per his pleadings could not establish his representative capacity for 20 setting up a counterclaim for inter alia declaration of title to land. The following is what transpired when the Defendant was cross examined: Q. Can you look at paragraph 2. Read it. A. Read by the defendant. Q. So this is a response to paragraph 3 of the statement of claim. Is that correct? A. Yes My Lord. Q. So per paragraph 3 of your statement of defence is a response to plaintiff’s statement of claim. A. Yes My Lord. Q. So your capacity regarding your counterclaim when you repeated all your averments clearly shows the capacity you filed your counterclaim. A. Yes My Lord. Capacity to institute an action is a precondition to the institution of an action in court. In the case of Musama Disco Christo Church v. Jehu Appiah [2010] MLRG 56 C. A. @ 73, Kusi Appiah J. A. held that: ‚A plea of locus standi is by its very nature an objection in limine. It strikes at the very root of the writ of summons. It is like a plea as to jurisdiction. If it is sustained that must be the end of the matter. The plea connotes that the capacity of the plaintiff to bring this action is challenged. It is being said that they are not the proper persons to present this action. In such situation, the plaintiff cannot succeed without proving that he had the relevant capacity to sue‛. See also Asante Appiah v. Amponsah [2009] SCGLR 90 @ 95, Fosua & Adu-Poku v. Dufie (Decd) & Adu-Poku Mensah [2009] SCGLR 310, Akrong v. Bulley [1965] GLR 69 SC. 21 For failing to establish his representative capacity to mount this counterclaim, I hereby dismiss the counterclaim of the Defendant in its entirety. Whether or not the Plaintiffs are entitled to their reliefs: As I have held above, the Plaintiffs were able to trace to their root of title from a gift to their ancestor, Dzakpasu by Akponogui. When the capacity of the Plaintiffs was challenged by the Defendant, the 1st Plaintiff produced his 1975 Middle School Leaving Certificate indicating that he signed as Dzakpasu and completed Afiadenyigba E. P. Middle School where he sat for the West African Examination Council Examination. On the face of this Certificate which was duly tendered in evidence and marked as Exhibit ‘B’, the name DZAKPASU KWAME PATRICK is captured. See excerpts of the cross examination of the Defendant by Plaintiffs’ counsel on the 15th July, 2021 below: Q. I put it to you that Agbeti happens to be first of the five children that Togbe Dzakpasu left behind. I want you to know. A. Togbe Dzakpasu had no children of his own. Q. I put it to you that Togbe Dzakpasu had 4 sons and one daughter. A. That is not correct. Q. Are you telling this court that you know the root of the plaintiff’s family than they themselves? A. In this particular case, Dzakpasu had no children. Q. You know there is a chief at Dzakpasukope as we speak. A. There is a chief. 22 Q. I put it to you that this chief in Dzakpasukope known as Togbe Dzakpasu II is called Sylvanus Doe Dzakpasu. A. Yes my Lord. They took the name Dzakpasu but it is not their surname. Q. Can you tell the court Sylvanus Doe Dzakpasu’s original name or surname? A. They originally signed as Agbenyefia. Q. I put it to you that that is not correct. A. That is correct. Q. This Agbenyefia you mentioned are you referring to the same Agbenyefia who is the son of Agbeti? A. Yes my Lord. Q. And because Agbenyefia happens to be their father, you believe that all of them are Agbenyefia’s not Dzakpasus. A. It is not so. They originally signed Agbenyefia. Q. I put to you that Sylvanus Doe Dzakpasu has never been called Sylvanus Doe Agbenyefia. A. It is not true. Q. You knew 1st Plaintiff in this case before you came to court. Not so? A. Yes my Lord. Q. Is it your case that they are all Agbenyefia and not Dzakpasu? A. Yes my Lord, as I said earlier. Q. Do you have any proof to that? 23 A. The proof is that they attended school at Afiadenyigba and other places. They signed as Agbenyefia. Counsel for plaintiffs: I pray for the Defendant to be made to produce the evidence he is talking about. Defendant: I will go to the school and produce the said evidence. BY COURT: The Defendant is hereby ordered to produce evidence that the Plaintiffs signed as Agbenyefia when they attended school at Afiadenyigba. Adjourned to 19/8/2021. When the Defendant was further cross examined by the Plaintiffs’ lawyer on the 23rd September, 2021, the following is what transpired: Q. Can you produce the documents you asked the court that you will produce and the court made an order? A. I did not say I will produce a written document. Q. You have a duty to be truthful to this court otherwise you will be cited for perjury. A. That is so. Q. I put it to you that the 1st Plaintiff who you claim is not called Dzakpasu, and further claimed that records in the school at Afiadenyigba E. P could prove your assertion is not true. A. I still maintain that 1st Plaintiff attended E. P school and he signed as Agbenyefia from 1966 and completed in 1975. He signed as Agbenyefia. His elder brother Wetey attended 24 RC school at Anlo Afiadenyigba. He started with Agbenyefia and ended with Agbenyefia. He completed in 1965. Another elder brother called Edoe attended Agbozume School. He started with Agbenyefia and ended with Agbenyefia. He completed school before 1965. The greatest proof of all is 1st Plaintiff during cross examination told this court that Tsifoaka was only a visitor to Agbeti, the grandfather. Meaning Tsifoaka was not a biological child. He backtracked his earlier statements at paragraph 9 of his Reply and Defence to Counter claim filed before this court it is on record. Q. I put it to you that at Afiadenyiba E. P he was always at all times called Patrick Kwame Dzakpasu. A. It is not correct. Q. Take a look at this. A. I have seen it. Q. What name is on this. A. Dzakpasu Kwame Patrick. Q. What year is that. A. 1975. Q. This Patrick Kwame Dzakpasu is he the same as the 1st plaintiff in this case? A. Yes My Lord. The certainty in the identification of the Plaintiffs’ land coupled with strength of Exhibit ‘A’, i.e. the 1957/58 Proceedings and Judgement and the weakness of the 25 Defendant’s case, the Court finds that the Plaintiffs have been able to prove their case by preponderance of probabilities. In the circumstances, I hereby enter judgement for the Plaintiffs on the following reliefs: 1. Declaration of Title to and Ownership of all that piece or parcel of land belonging to the Dzakpasu Family by gift from Akponogui of Weta bounded on the North by Akuna Family land; On the South by Avake Pond; On the East by Akuna Family land, and on the West by Atsiflam and Dzakpashie’s land; the latter now belongs to the Amegashie Family. 2. General Damages of GH¢3,000.00 for Trespass. 3. Recovery of Possession of the land described in (a) above. 4. The Defendant, his Agents, Servants, Workmen, Privies and Assigns are perpetually restrained from committing any further acts of trespass to the Plaintiffs’ Dzakpasu Family land at Dzakpasukope. 5. I award cost of GH¢2,000.00 against the Defendant. ……..…….….…. ISAAC ADDO 19TH APRIL, 2023 CIRCUIT JUDGE 26 26