Tamakloe & 2 Others Vrs Agbenuvor & 6 Others [2023] GHAHC 192 (27 April 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION A. D. 2023 SUIT NO. E1/26/2009 DATE: 27TH APRIL, 2023 ::: PLAINTIFFS ::: DEFENDANTS CORAM: CHARITY A. ASEM (MRS), J. 1. AGBENOXEVI TAMAKLOE 2. VIDA DEEGBEY 3. CORNELIUS ADABLA PER THEIR LAWFUL ATTORNEY - GODFRED AFETORGBOR VRS. 1. REV. INNOCENT AGBENUVOR 2. JOHN TOGOBO 3. FRANCIS TAY 4. MARTIN HIAGBE 5. NESON KALEPE 6. THE REGISTERED TRUSTEES G. E. CHURCH 7. ANTHONY KWOSHIE DEKU (DCD) SUBST. BY SETH K. ZONYIRA (DCD) SUBST. BY WORDI TOKOTA JUDGEMENT The plaintiffs instituted this action as far back in 2009. So for almost 15 years the court has been saddle with this case. Ordinarily, the facts in this case was simple issues of trespass. There is no evidence of interlocutory appeal nor petition to suggest the possible reason for the delay. I personally do not see the need for this delay and whether or not this has been beneficial to the litigants, can best be determine by them. There has been feet dragging in this case and the plaintiff who called only two witnesses by way of witness statement had the chance to testify in May, 2020 when I assume duty in this court. This is regrettable. Per their amended writ of summons the plaintiffs claim the following reliefs against the defendants; i) Declaration of title to all that piece or parcel of land situate at Anloga and bounded; On one side by Zotra family land and Adranyi family land. On the 2nd side by Dagbui family land. On the 3rd side by the property of Afafa Akuina which went to Fiawuoo. On the 4th side by the property of the Agbenoxevi Tamakloe and Vida Degbey. ii) iii) iv) Damages for trespass. Recovery of possession. Injunction According to the plaintiffs, they are the head and principal members respectively of the Tamakloe family of Anloga and thus, bring this action on their own behalf as well as on behalf of the Tamakloe family. It is their story that, the disputed land formed part of the property of one Akuina which he received as a result of property sharing of Amega Leh to his children. According to plaintiffs, the said Akuina had only one female child called Afafa and upon the death of Akuina the land devolved unto her. They continued that, Afafa got married twice in her life time. First to Fiawoo and had children. Then to the family of Tamakloe and had children. Upon her death her land devolved unto her children from both marriages. Accordingly, the land was shared to the two sides, the Fiawoo and Tamakloe. They claim the disputed portion falls within the portion shared to the Tamakloe’s. They contend that they have built houses on portions of the shared land and had been in possession for many years and the remaining undeveloped site is what is in dispute. That recently, the Tamakloe family noted that the defendants have trespassed unto that vacant portion and begun building. Nothing by way of protest could stop them. Plaintiffs continued that the conduct of the defendants are unlawful and constitute trespass hence this action. The writ was amended to join the 6th defendant The Trustees of Global Evangelical Church to the suit on 2/06/2009, and a defence was filed on behalf of the church. In their defence, the 6th defendant denied the fact that the land formed part of the land which devolved unto Afafa which could also possibly, devolve unto her children she had with either Fiawoo or Tamakloe. 6th defendant stated that the undeveloped property was sold to them by Tay Bleadu Victor, Kwaku Eda Seshie and one Shine Torgbevi who were lawful representatives and elders of Zonyira family. According to 6th defendant their vendors executed a Deed of Conveyance dated the 3rd June 2003 covering 0.44 acre of land being and lying at Satsi-Anloga. 6th defendant admitted that plaintiffs protested their presence on the land. Thereafter, the parties attempted an amicable settlement, but one Torgbui Leh represented by Hubert Agbenoxevi emphatically made it known to them that the land is not for sale. 6th defendant contend that they have good title to the land through their vendors and denied each and every allegation made by the plaintiffs. They did not however counter-claim. Subsequently, the writ was amended to join the 7th defendant in the person of Anthony Kwashie Deku, as Head of the Tetteh Norshie (Zonyira) family of the Amegah Leh. It is observed that the application was brought by Vincent Adzraku who is not a party to this suit on behalf of the said head of family. Upon securing the order of joinder, a statement of defence was filed on his behalf on the 16/01/2014. According to the statement of defence, and in substance he claimed the disputed land, forms part of the Tetteh Norshie’s share of Amega Leh’s land at Anloga which is well depicted in a survey map dated 12th January 2006, drawn upon the orders of the High Court Ho in Suit No. LS 2/91. 7th defendant continued that, Amega Leh begot 3 sons namely Tetteh Norshie also known as Satsi Blihiam, Tetekpui, Tay Adzogble. His story continued further that the plaintiffs are descendants of Tetekpui and 7th defendant and the 6th defendant’s vendors are from the Tetteh Norshie descent. According to 7th defendant Amega Leh after gifting a portion of his land to Korvisiga and Nyaga Azidzie, he shared the rest of the remaining land to his three (3) sons mentioned above. The 7th defendant gave the following boundaries as their part of what was shared to them. On the 1st side by Klavie Clan. On the 2nd side by Amey Clan land. On the 3rd side by the Keta Lagoon. On the 4th side by the Tetekpui’s share of the Amega Leh’s land. It is his case that, they have been in undisputed possession for many years without let or hindrance. That a grandson of Tetekpui by name Dagbui sold the whole of Tetekpui’s share of the land to one Mama Lotsui whose descendants are currently in possession. It is his case that Dagbui, Akuina and others are grandchildren of Togbe Amega Leh. That Amega Leh begot Tetekpui, Tetekpui begot Xasese, Xasese begot Dagbui, Akuina and other siblings. Tetteh Norshie begot Zor and Zor begot Zonyira and others. And stated emphatically that, since Akuina comes from the lineage of Tetekpui he cannot inherit Tetteh Norshie’s property. He stressed that, the land sold to the 6th defendant is Tetteh Norshie’s property which devolved unto his grandson, Zonyira family. Therefore the sale to 6th defendant is lawful, and their activities on the land is also lawful. 7th defendant counter-claimed against the plaintiffs as follows; 1. Declaration of title to all that piece and parcel of land devised to the 6th defendant situate and being at a place commonly known as Setsinu-Anloga in Keta District of the Volta Region and bounded as, On the North East by the property of Bright Gara measuring 93ft more or less, On the South by the property of Tamakloe family measuring 69 ft more or less, East by the property of Tamakloe family measuring 63 ft more or less, On the South East by the property of Agbenoxevi Tamakloe measuring 95 ft more or less, on the South West by the property of Adranyi and Dzotra families measuring 133 feet more or less and on the North West by the property of Tay Atsenu measuring 164 feet more or less 2. Damages for trespass. 3. Perpetual Injunction. In the reply to the 7th defendant’s defence and counter-claim the plaintiffs denied the averments and put the defendants to strict prove thereof. They reiterated that, the Tetteh Norshie”s descendants have no land at the disputed area. The said 7th defendant died later and was substituted by Seth K. Zonyirah by reason of death. That substituted Seth K. Zonyira also died and was substituted with one Wordi Tokota who per the application filed on the 1/12/2021, had become the new head of the Zonyira family. He neither appeared nor attended the court just like all the others who sadly we were told, joined the silent majority being represented by Lawful Attorney Vincent Adzraku. At close of pleadings, the court conducted directions and the following issues were set down for determination by the court. The issues filed on the 24/4/2012 by counsel for plaintiff are; i) Whether or not the disputed land is the property of the Tamakloe family? ii) Whether or not the vendors of the defendants and co-defendants can pass title to the disputed land to the defendants and co-defendants. iii) Whether or not the acts of the defendants and Co-defendants amount to trespass. iv) Any other issues not specifically mentioned herein but which are disclosed on the pleadings. Counsel for the 6th and 7th defendants on the 10/1/2013 filed additional issues on behalf of the 6th and 7th defendants. It is however observed that defendants’ additional issues 1, 2 and 3 is the same as plaintiff’s issues raised and will amount to repetition. Earlier on, the following additional issues were raised on behalf of the 1st to 5th defendants by the previous lawyer. 1. Whether or not the 1st, 2nd, 3rd, 4th and 5th defendants did claim any interest in the disputed land. 2. Whether or not the 1st, 2nd, 3rd, 4th and 5th defendants took part in the construction of wall around the disputed land. 3. Whether or not the 1st, 2nd, 3rd, 4th and 5th defendants are the proper persons to issue. I wish at this juncture, to deal with the presence of the 1st 2nd 3rd 4th and 5th defendants in the instant case. On the 19/06/2009 the above defendants filed a defence to plaintiffs’ claims. It is a four (4) paragraph statement of defence. Their paragraph 3 states as follows, “In further denial of paragraphs 7, 8, 9, 10, and 11 of the plaintiffs statement of claim the defendants herein categorically state that they are not personally responsible for or involved in the construction of the wall around the disputed land; that they were not the workmen who constructed the said wall; and they the defendants herein have no interest and claim in the land which is the subject matter if this suit.” It is noted that on the 31/05/2009 the above defendants applied to the court to be non- suited. By their affidavit deposed to on their joint behalf by the 5th defendant, they indicated that they have no interest in the disputed land, neither were they developing same and have by their statement of defence disclaimed any interest whatsoever in the subject matter land. The presiding judge at the time in his wisdom did not accede to their submissions and so refused the application. The court ordered that since they claim to be members of the Global Evangelical church, the 6th defendant which was not a party to the suit at that time, ordered the church be joined to the suit. So the 1st -5th defendants remained parties but never participated in the trial. It is believed that the plaintiffs identified the 1st to 5th defendants not as members of the 6th defendant church at the time but trespassers. I will in due cause of this discussion determine any culpability against them. Be that as it may, the court directed the parties to file witness statements and pre-trial check list under the new High Court Civil Procedure Rules of 2004, C I 47. The directive was complied with. Because of the checked nature of this proceedings, it is desirable on my part to assemble the witness statements received by the court from the parties from both ends. On the side of plaintiffs; 1. The plaintiffs per their lawful attorney Godfred Afetorgbor Exhibit A (Power of Attorney) on 27/02/2017 filed a witness statement. 2. Witness statement filed by Gabriel Tamakloe as PW1 without an exhibit On the side of the defendants, no witness statement was filed by the 1 to 5th defendants. From the camp of the 7th defendant, 1. Witness statement filed by Vincent Kwasi Adzraku on the 8/11/2017, no exhibits attached. 2. Witness statement of Rev. Agbenuvor, 8/11/2017 no exhibits attached. (did not attend to testify) 3. Witness statement from Victor Tay Abledua filed on 8/11/2017 no exhibits attached. 4. Witness statement from Esther Dartey Atsu filed on the 8/11/2017 no exhibit attached. (did not attend to testify) 5. Vincent Kwasi Adzraku filed a supplementary witness statement on the 22/1/2018. Attached thereto are exhibit 2A, 2B and Exh. 3. 6. On the 24/10/2019 Vincent Kwasi Adzraku filed a further supplementary witness statement pursuant to leave granted on 24/10/2019. Attached thereto, is a Power of Attorney Exhibit 4, representing Seth K. Zonyira now deceased. 7. And finally, a further supplementary witness statement by Vincent Kwasi Adzranyi filed on the 30/05/2022 attached thereto is a power of attorney from Wordi Tokota executed on the 18th March 2022. The court conducted Case Management Conference on the 2/5/2019 and concluded on the 13/6/2019. After several adjournments the plaintiffs began their case on the 29/05/2020. The plaintiff’s Lawful Attorney testified and relied on his witness statement filed on the 27/02/2017. 2nd witness for plaintiff is Gabriel Adzika Tamakloe, also relied on his witness statement filed on the 27/02/2017 to close plaintiff’s case. They were both emphatic that the land in dispute is the property of the children of Afafa the daughter of Akuina, which portion went to the Tamakloes’. As indicated above the 1st to 5th defendants did not file a witness statement nor attended the court to participate in the trial. On 7/06/2022 defence opened. The 6th and 7th defendants testified through their lawful attorney Vincent Kwasi Adzraku, and Victor Tay Blebua to close their case. They also laid claim to the same piece of land in dispute at Anolga, and were sure the disputed land form part of Tetteh Norshie side of the Amegah Leh descent. The rule is that, since both parties were claiming title to the same land, they had equal task of identifying the land they each claim with clarity, this they discharge by showing clearly all the boundaries of the land and what overt actions of ownership they have exercised on the land over the years. Please see the case of KPAKPO BROWN V. BOSOMTWI & CO. (2001-2002) SCGLR The law is settled on the principle that once each party claim title to the same land, they each bear the burden to prove their respective title to what they clam. The burden to discharge will be nothing short of credible, reliable and satisfactory evidence of good title to the disputed land to the believe of the court. Section 11 and 12 of the Evidence Act, 1975 (NRCD 323) In Union of India & Ors V. Vasavi Co-op Housing Security Ltd. & Ors (Civil Appeal No. 4 702/2004, of persuasive effect the court held thus; “In civil suit for declaration, the burden always lies on the plaintiff to make out and establish a clear case for granting a declaration and weakness if any of the case set up by the defendants would not be a ground to grant a relief to the plaintiff.” The plaintiffs alleged that, the disputed land form part of land gotten through Akuina, thus, the portion inherited by the children born to Tamakloe by Afafa. They alleged defendants have trespassed unto the said land and sold same to the 6th defendant. The plaintiffs owe a duty to the court and was required to prove that by evidence within the ambit of the law if the court must find in their favour. 7th defendants having counter claimed that, the disputed land form part of the Tetteh Norshi share from Amegah Leh, that Akuina’s share was sold by his brother called Dagbui and therefore Akuina has no land left which could devolved on Afafa and could for that matter, devolve on her children from Fawoos and or Tamakloes. As always, a claim for perpetual injunction automatically puts in issue the title of the plaintiff or counter claimant and he must prove same. The Supreme Court speaking through Appaw JSC in the case of Nana Brafo Dadzie II v. John King Arthur & Ors. Civil Appeal No. J4/20/2016 unreported stated that, “The authorities are legion that where in addition to a claim for damages for trespass, the plaintiff claims an injunction, title is automatically put in issue, because that postulates that, the plaintiff is either the owner of the land in dispute or has had (prior to the trespass complained of) exclusive possession of it”. That is why the Supreme Court in the case of, EMMANUEL OSEI AMOAKO V. STANDFORD EDWARD OSEI (SUBST) by BRIDGET OSEI LARTEY; Civil App.no. J4/3/2016 dated 1/06/2016, S. C. Unreported; per Appau JSC stated that, “Judgments must be based on established facts not mere rhetoric or narrations without any supporting evidence that can sustain the claim.” Similarly, in the case of Eric Asante V. he Republic (2017) 109 GMJ. 1, Dotse JSC at page 8 decided thus, “It must be noted with all emphasis that where a party in a trial refers to matters that are capable of independent proof in a positive manner and those matters are denied, the party does not establish the truth of those matters by stating them in the witness box and failing to proffer the other evidence which in the circumstances of the case should be available. Where the circumstances of the case are such that there can be no corroborative evidence, that will be a different matter.” In addition to the above, the courts have held severally that, a claim for declaration of title or an order for injunction must always fail, if the plaintiff fails to establish positively the identity of the land claimed with the land subject matter in the suit. It is noted from the record of pleadings and evidence in the instant case, the location and or the identity of the land in dispute herein is not in issue as both parties agreed that the land allocated to the 6th defendant is our focus. Plaintiffs and defendants’ case of possession and title to the disputed land. On the 29/05/2020 Godfred Kofi Afetorgbor who is a farmer who lived at Anloga testified for and on behalf of the plaintiff, his witness statement filed on 27/02/2017 was tendered and adopted as his evidence in chief without objection. He testified in his capacity as a holder of Power of Attorney executed in his favour by the plaintiffs tendered as Exhibit “A”. Apart from Exhibit “A”, the witness did not introduce any other documentary evidence. He was extensively cross-examined. PW1 is Gabriel Adzika Tamakloe who also filed witness statement on 27/02/2017, appeared to testify. He was also cross-examined; to close the case for the plaintiffs. Both witnesses denied the fact that the disputed land forms part of Tetteh Norshie’s share of the Amega Leh family of Anloga. Defence opened on the 7/06/2022 with the evidence of Vincent Kwasi Adzaku. It is his case that he represents the 7th defendant. His witness statement filed on 27/02/2017 and supplementary witness statements filed on 22/01/2018 and 30/05/2022 was adopted together with Exhibit 4 Power of Attorney from one Wordi Tokota (Head of Zonyira family or Tetteh Norshie Branch of Amega Leh family). Exhibit 1 is a site plan in the name of persons not parties to this litigation. Exhibit 3 is the indenture executed on behalf of the 6th defendant, Exhibit 2A and 2B are correspondents between 7th defendants’ lawyer and response from some persons allegedly from Mama Lotsu’s family. The court shall revert to the said exhibits in this discussion. Blebua Victor Tay is the 2nd witness for the defence. He filed a witness statement on the 18/11/2017. He did not introduce any documents. Both witnesses were also extensively cross-examined. From a careful study of the claims of the parties they each claimed to have been in undisturbed possession for many years. The law is that possession must not just be bare. It has to be proved. I believe not with skyscraper structures though. In the case of Vanghan Williams V. Oppong (2015) 84 GMJ 171, Adinyira JSC at page 175 decided; “………..evidence of possession is essential in a claim for trespass and recovery of possession, there must however be clear and cogent evidence in support and not mere assertion.” The considered view of the court is that the determination of which side of the families that has a better title to the land will invariably resolve and conclude the matter whether or not the plaintiff has title and for that matter the sale by defendant to 6th defendant was illegal. EVIDENCE OF BOTH PARTIES After careful evaluation of the stories told from both side of the divide, the court take the view that their root of title is manly traditional evidence. It is settled law that prove of ownership of land can be by documents, series of documents, or by clear evidence of possession. Please see the case of NSOWAA & 2 ORS V. BABA & ANO. (2015) 86 GMJ 21 @ 24 and DELMA CO. LTD V. HFC BANK GH. LTD (2016) 92 GMJ part 1 @ page 25. The court shall proceed to determine the issues as raised by the learned lawyers in terms of the evidence proffered to ascertain where the gravel tilts. And that most important issue is, issue 1. 1. Whether or not the land in dispute is the property of the Tamakloe or the Zonyra family. From the stores told by both side to this litigation they trace their roots of title to one Togbe Amegah Leh of Anloga their common ancestor. From the stories told, the land was founded several decades ago. It is noted that no dates or specific incidents were referred to from both side to suggest that they have a clue as to its acquisition, they only talked about it being a gift to their ancestor. This fight is over an ancestral inheritance. Indeed the court observed further that the stories were distorted which could be without malice. These narrations are coming from younger generations, such that the parties were not ad idem on who were the direct children of Togbe Amegah Leh the founder of the land. In cases where traditional evidence is led, the courts are admonished to use the evidence of living or recent memory to satisfy itself that a party has been able to prove his case by a preponderance of probabilities. That when evaluating traditional evidence, the courts should not allow themselves to be persuaded or carried away either of the parties or by their witnesses were coherent or impressive in their testimonies but most important thing is to relate the evidence proffered against the evidence of recent living memory. In the case of ADJEIBI – KOJO V. BONSIE & Ano. (1957) 3 WLR 1223 the court stated thus; “Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their beliefs. In such a case demeanor is title guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the most probable.” The Learned Jurist His Lordship Dennis Adjei JA, in his book Land Law, Practice and Conveyancing 2nd Edition, gave a guide that, a parties traditional evidence may be incoherent or inconsistent and may be rejected but he may still become victorious provided he can prove events and acts within living memory. The law settled that acts on living or recent memory such as overt acts of ownership and possession over the disputed land take precedence over traditional history. Please see the case of IN RE TAAHYEN & ASAAGO STOOLS; KUMANIN II (SUBST) OPPON V. ANIN (1989-99) SCGLR 399. The Supreme Court in the headnote summed up the importance of ownership or possession of the disputed land over traditional evidence as follows; “In assessing rival traditional evidence, the court … must rather examine the events and acts within living memory established by the evidence, paying particular attention to undisputed acts of ownership and possession on record; and then see which version of the traditional evidence, whether coherent or incoherent, is rendered more probable by the established acts and events. The party whose traditional evidence such established acts and events support or render more probable may succeed unless there exist on the record of proceedings, a very cogent reason to the contrary. And the presumption of title raised by acts of possession and ownership appear now as section 48 of the Evidence Decree, 1975 (NRCD 323). It follows from the provision that a party can succeed in his claim even if his traditional evidence is rejected.” So before I proceed to determine which side of the divide’s story is more credible, I like to pause to discuss and digest the two exhibits the defendants tendered to show that Dagbui has sold all of Akuina’s land to Mama Lotsu, and for which reason there is no land left for Afafa to pass unto her children. The exhibits are Exhibit 2A and 2B. Firstly, exhibit 2A is a letter from Djabanor & Co, Legal Practitioners & Tax Consultants. The letter is dated 10/04/2002 and addressed to the head of Mama Lotsui Akladza family and other principal members. In a nutshell, the recipient were to acknowledge the fact that the land they occupy was founded by Amegah Leh. The letter also suggested to the recipient that they should acknowledge that what was sold to Mama Lotsu (their ancestor) was the share of Tetekpui Akuina from Togbe Amegah Leh and that their acknowledgment will aid their case to recover the rest of the land. For no reason, the recipients were threatened with legal action should they fail to acknowledge as directed. On the 20th day of May, 2002, the said faceless individuals were alleged to have acknowledge receipt of the letter and agreed to all that was suggested to them from the letter. The 7th defendant did not deem it feet to call any of the signatories of exhibit 2B for corroboration especially so when they were put to strict proof of those allegations. The two documents put together is confusing and run counter to common sense. From a careful assessment of these two exhibits, they come across not only as self-serving, but a disingenuous way of modern day blackmail if I should put it mildly. On the 7th June, 2022, the defendants’ lawful attorney under cross examination answered the following questions put to him; Q. Was Dagbui one of the descendants of Tettekpui? A. Yes he was. Q. Tettekpui died generates away from Dagbui not so? A. He died many years before Dagbui Q. You see from exhibit 2A the recipients were all resident in Anloga A. Yes. Q. You know that A K Deku lived in Accra and partially in We his hometown. A. Yes he lived in both places and We was his home town Q. And to whom was the copy of the letter addressed to in Anloga. A. It was copied to the head of Tetteh Asti Bliham family of Anloga Q. You see that Exhibit 2A does not mention any name who acted for the Sasti Bliham family A. Yes, it was not mentioned Q. You see from exhibit two that apart from the names of the written who thumb printed exhibit 2B and Lawyer Yegbey no one was mentioned. A. It is so Q. Just as you continue to hold power of attorney for Deku, Seth Zonyirah and Wordi Tokota, you are the brain behind Exhibit 2A and 2B and nobody else. A. I am not the one who caused this letter to be written it was the then head of family. I believe counsel for the plaintiffs also saw the twists in the said exhibit’s hence the line of cross examination captured above. Following from the above discussions therefore, I hold that, the exhibits are not credible and no probative value can be placed on it. I proceed also to examine exhibit 1 also, a site plan tendered by the 7th defendants Lawful Attorney in support of his case. This plan according to the defendant was drawn in another suit. Clearly the exhibit has nothing to do with this case as the defendant who relied on it was unable to point out the disputed area on exhibit 1. Part of defendant’s evidence indicated that the site plan was not subjected to any evidential test in Suit No. LS2/91 because the matter in respect of which the plan was drawn was settled out of court. It is obvious that the introduction of exhibit was a fruitless and needless exercise. With those muddy exhibits out of the way, I proceed. The 7th defendants’ lawful attorney when he testified on the 7th June, 2022, agreed that, the land was bounded on three side by the properties of the descendants of Afafa. He made the confirmation when crossed examined by counsel for the plaintiff, and he said; Q. the name Afafaga or Afafa do you know the name? A. I know the name. Q. Did you know the person bearing hat name? A. I do not know Q. How do you know her? A. She was the daughter of Akuina Q. She was Afafa married to Fiawoo A. That is so Q. And Fiawoo hailed from Anloga? A. it is not correct he hails from Wuti Q. I suggest to you that Fiawoo hails from Anloga A. it is not correct Q. You will agree with me that Dr. Fiawo was the product of the marriage between Afafa and Fiawoo A. I agree. Q. When their marriage ended Afafa married Tamakloe is that not so? A. It is correct. Q. And Tamakloe was from Wuti A. Yes, it is so Q. You see the Tamakloe’s whose land share boundary on 3 sides of the disputed land come from the marriage between Afafa and Tamakloe? A. Yes. Q. I suggest to you that Agbenoxevi Tamakloe is the grandson of Afafa A. Yes. He is a grandson. Q. His father was Amegbor Tamakloe not so? A. it is not correct. He was the grandson. From the above revelations therefore, it will be difficult for this court to accept that Akuina’s share of the land was sold completely by Dagbui to Mama Lotsui Akladza, and that Afafa did not inherit land from his father Akuina. Should such a suggestion be allowed to stand, how shall we explain the presence of the Fiawoos and the Tamakloes building surrounding on the disputed land? DW2 Victor Bledu Tay testified on the 1/12/2022. Incidentally, he is one of the vendors to the 6th defendant church. He and others who sold, described the land as their personal property and absolute owners. Nowhere in exhibit 3 did it appear that they acted on behalf of the Zonyira family. Juxtaposing the sale document Exhibit ‘3’ to the evidence of the defendants and witnesses suggest only one thing, an afterthought, and a crude firefighting to say the least. But this witness also agreed that the land is surrounded by buildings belonging to Tamakloe family. In fact that was the description partly given in exhibit 3. When crossed examined on 1/12/2022 he said, Q. The land in dispute is surrounded by buildings or houses belonging to the Tamakloe family. A. it is true. The above admissions by the two witnesses sharply contradicts the various descriptions made in their pleading, and evidence before this court. So, if it is true that Tettekpui’s share of the land was sold to Mama Lotsui as claimed by the 7th defendant, and their (Lostui’s) occupation is acknowledge by defendants per exhibit 2A and 2B, why is it that the said Lotsui Akladza family does not share boundary with the defendants on any side per the descriptions given by them? Going through the docket, I found an exhibit attached to the motion filed by the 1st to 5th defendants when they applied to the court on the 14/05/209 to be non-suited for lack of interest in the land the subject of dispute. The document raises serious concern as to the modus of Tay Bledua and Vincent Adzraku in this case. The said document is a DEED OF PURCHASE, dated the 5th of July, 2002. It shows that, some two person, Esther Atsu (Mrs) and Roselyn Azamati (Mrs) had earlier sold the same land to the 6th defendant. According to them, they were selling the land as their personal property. They claimed in the scheduled that the said piece of land, come to their possession by right of purchase from the Zonyira family of Anloga represented by Kweku Eda Setshie, Shine Bledua and Tay Bledua who are members of the Zonyira family. Then without any explanation, the same said Victor Tay Bledua and cohost sold the same piece of land to 6th defendant a year later as appears in Exhibit 3. When this dispute arose, they solicited Esther Atsu to testify on their behalf in the present dispute. I find the whole orchestration from the camp of 6th and 7th defendant fishy, worrisome, trickery and crestfallen. No wonder the said Esther Atsu (Mrs) could not sum up courage to appear in this court to testify. From the foregoing therefore, the historical antecedents reduced into the story told by the plaintiffs are more credible and probable in the circumstances. Though the plaintiffs have nothing on the vacant land per se, their case of leaving the land for future generation and development makes lot of sense. Having surround the land by houses and buildings mainly by the Tamakloe’s (represent acts of recent living memory) they watch over the land with eyes wide opened. Their evidence of warding off trespassers is evident before the court is satisfactory. No wonder the attempted invasion by 6th defendants was promptly resisted. And the strong resistance at the attempt to settle the dispute otherwise, the plaintiffs’ head of family refused. Having considered all the interesting happenings, I wish to determine whether or not the 7th defendant’s so call sale to the 6th defendant is valid. The law rule is that, a grantor of a land must be ready to defend any grant made by him to a third party. The Supreme Court in the case of SALOMEY SHORME TETTEH & NII AMON TAFO V. MARY KOKOR HAYFORD (SUBT) by STELLA LAEBI & COMFORT DECKER (Infra) decided that; “There is an obligation on a grantor, lessor or owner of land to ensure that any grant he purports to convey to any grantee, or lessee is guaranteed and that he will stand by to defend the interest he conveyed to the grantee or lesee……” Thought the defendants accepted the above challenge mounted by the plaintiffs, but after carefully examining the evidence, exhibits tendered, it does appear the defendants do not have what it takes to contest the plaintiffs over the disputed land. Firstly, it is unclear who sold the land to the 6th defendant. Is it Tay Victor Abladua and cohost of Mrs Esther Atsu and Co? I turn my attention to Vincent Kwasi Adzraku a very interesting individual in all these developments. May I remind him that he is not a party to this litigation? A total stranger. He filed witness statement to testify as a witness on behalf of the defendants. The witness statement filed on the 8/11/2017, did not disclose who he is, but told a lengthy story. He abandoned same, and later claimed to hold power of attorney for the 7th defendant and continued to inundate this court with so many processes on behalf of faceless people to put it humbly. The processes show that, he sworn to an affidavits to personally join some individuals as heads of Zaniyah family to the instant suit. The 1st and 2nd power of attorney he held lapsed upon the demise of the said donors.’ And automatically all processes filed per the power of attorney particularly the various witness statements lapsed equally. Sadly, after the death of A K. Zonyirah and the introduction of Wordi Tokota as the new family head, Vincent Adzraku forgot to file a witness statement for and on behalf of the said Wordi Tokota. Therefore, his only true witness statement filed was that of 8/11/2017 which he filed as a stranger. What does that mean in law? Clearly at the close of all the dribbling’s the said Vincent Kwasi Adzraku has ended up confusing himself, and shooting himself in the foot. His ways are confusing and ended up not defending the case. Though Tay Bleadua is also not a party to the case he introduced himself as a descendant of Amega Leh and one of the vendors to 6th defendant church. The court hold the view that the only true witness for the defendants is Tay Ableadua. After careful scrutiny of his evidence and Tay Victor Bledua, the court received no satisfactory evidence of ownership of the land by Zonyira family. They failed to identify anything near or on the land that shows they live there. Their boundaries are unclear and not determinable from their stories told. Courts determine cases on legally proven facts backed by evidence. How does the 7th defendant explain exhibit 3 juxtapose with exhibit A introduced by 5th defendant on behalf of the defendants and their own boundaries in their witness statements? VALIDITY OF POWERS OF ATTORNEY HELD BY VINCENT KWESI ADZRAKU. I received a late address filed by counsel for the plaintiff only yesterday. Counsel for plaintiff sought to scandalize the power of attorney held by Vincent Kwesi Adzraku the so called lawful attorney for the 7th defendant. Counsel for plaintiff sought to questioned his capacity. In a nutshell he said the documents do not satisfy the provisions of the Power of Attorney, Act (Act 549) which provided in Sec.1 (2) as follows; “Where the instrument is signed by the author of the power, one witness shall be present and shall attest the instrument.” He prayed the court to strikeout the documents with its consequential orders because it was flawed on the bases that there was no witness to the document. He argued that, as the document was not attested to by any witness it is void. Counsel relied on the Supreme Court decision in the case of Asante Appiah v. Amponsah (2009) SCGLR at 94-95 to drum his submissions. Firstly, I have held elsewhere in this judgment that the power of attorney held by Vincent Adzraku on behalf of the deceased heads of family lapsed upon their death so also all the witness statements filed pursuant thereto. I have examined exhibit 4 purported to emanate from Wordi Tokota. Though I have reservation about Vincent Kwasi Azraku the Donee also witnessing the document, there are other two witnesses including a commissioner for oaths. Sorry to disappoint counsel for the plaintiff that the instrument is not flawed, because the controversy of validity of power of attorney insofar as witnesses of power of attorney is concerned has been laid to rest in the resent Supreme Court decision of FLORINI LUCA & 1 Or V. MR SAMIR & 3 Or. Civil Appeal No. J4/49/2020 dated 21st April, 2021. The above case has overruled the Asante Appiah v Amposah case and all others as done in error, so held amongst others that; “By that decision the court appears to imply that if the instrument had been signed by anyone else, no matter how, provided she signed against the designation “witness” that would have satisfied the provision. But the purpose of the presence of the witness is to attest to the due execution of the instrument, therefore, in our view, a commissioner for oaths is even better qualified to witness and attest a power of attorney than a person who cannot be easily traced and whose credibility cannot be vouched for. In our opinion, the court of Appeal did not correctly decide the issue of the validity of the power of attorney in Asante – Appiah v. Ampomsah and when the case came before this court on appeal the court regrettably did not thoroughly consider the full ambit and purpose and plain meaning of the provisions of Act 549 as a whole. If our decision in Asante – Appiah has been interpreted as disqualifying a commissioner for oaths from acting as a witness to a power of attorney, or to mean that a power of attorney cannot be validly constituted by a statutory declaration sworn to before a commissioner for oaths, then, we depart from the decision pursuant to Article 129(3) of the Constitution.” The Supreme Courts pronouncement above is unequivocal and does not require any further elucidation from the court herein. Although, Vincent Adzraku the Donee witnessed the said power of attorney, it was authenticated by a commissioner for oaths and makes it a valid Power of Attorney. Insofar as this case is concerned exhibit 4 was not used to prosecute this case. Be that as it may, l certainly have examined the counter claims of the 6th and 7th defendant and the evidence adduced in support and find no merit in their story as stated elsewhere in this judgment. I am of the view that their claims are either informed by ignorance or the said vendors of 6th defendant are deliberately conniving to deprive the plaintiffs of their legitimate inheritance, thereby deceiving the 6th defendant church into parting with their money. Therefore, this court find as fact that, the land in dispute belongs to the plaintiffs, being land inherited through Afafaga the daughter of Akuina, and for that matter being the portion of the Tamakloe family of Anloga. The assertion by the 7th defendant that Tettekpui’s land has been sold by Dagbui to Mama Lotsui is an afterthought, for that reason the court rejects exhibits 2A and 2B not only as self-serving but muddy. The next issue for consideration is whether or not the 7th defendant can pass any valid title to the 6th defendant? From the discussions so far, it is an established fact from this court that the land does not belong to the 7th defendant and his family. It is the law that the grantor of land can only give out land which he owns. In the case of The Registered Trustees of the Catholic Church, Achimota, Accra v. Buildaf & 2 Ors. (2015) DLSC 3234, per Benin JSC decided that, “That is the law that only the owner of land can give away title to a third person” See also the cases of Edith v. keelson (2012) 37 MLRG 127 holding 2 per Dotse JSC. NUMO ADJEI Kwanko II v Lebanon society & 2 ors. (2016) DLSC 2786, per Ansah JSC. I will also think that it is simple logic that if a person can only give what he has, it follows that if Tay Ableadua and the 7th defendants title has been found to be unreliable, there is no way the 6th defendant can rely on it. Not only was there uncertainty in the land convey to 6th defendant, but that their vendors has no title to the disputed site. The plaintiffs claim damages for trespass unto their land. The law is that, plaintiffs’ proof of his mere possession of the land is sufficient for him to maintain trespass against anyone who cannot show a better title. It is also held that possession by itself gives a good title to land against the whole world except someone having a better legal right to possession. The claim of plaintiffs herein is trespass to land otherwise referred to as quare clausum fregit which is a tort of unjustifiable interference with land in the possession of another person. Please see the cases of ASHAR V. WHITLOCK (1965) 1 QB 1, MAJOLAGBE V. LARBI & ORS (1959) 1 GLR at page 192 all on the above principle. The enduring processes of the outcome of every decision of the court though depends primarily on the courts, the court must be assisted by the parties based upon which appropriate legal application of the law to those findings are made. This is because court decision are based on legally proven facts. There is overwhelming evidence on record of proceedings that the agents of the 6th defendant have trespassed unto the plaintiffs land. They have unequivocally admitted same. The presence of wall built after clearing, and felling of tress belonging to the plaintiffs. At page 14 of the written address filed by counsel for 6th and 7th defendant he admitted that the trustees of the 6th defendant church did engaged the services of masons and laborers to build the wall around the land for 6th defendant. He however bemoaned the culpability of the 1st to 5th defendants who were mere church members. In all honesty, I have not received any clear acts of trespass done by the 1st - 5th defendants or their involvement on the building of the wall on plaintiffs land. The court therefore, holds the trustees of the 6th defendant church culpable for trespass likewise 6th defendants’ grantors. As I hold that, the invasion of the 6th defendants’ agents unto plaintiffs’ land was unwarranted and for that reason plaintiffs are entitled to damages. I will for the above reason hold that, the 6th and 7th defendants liable for trespass for which reason the court award damages in the sun of GH20, 000.00 in favor of the plaintiffs. CONCLUSION The court after the painstaking exercise of evaluation of the issues, found as a fact that the disputed land belonged to Afafaga Akuina, which land she inherited as his only daughter. I am satisfied that plaintiffs and other family members have been in lawful and long possession without let or hindrance until the defendants trespassed. They need not have permanent structures erected on the land to constitute possession. Please see the case of ROSINA ARYEE V. SHELL GHANA LTD, where it was decided that; “It would be plainly unjust for a court to accept that a person is in possession only when he has a permanent structure erected on the land.” That the presumption by defendants that Akaina’s land become family property after the death of Akuina is misplaced analogy. The simple conclusion is that, the 7th defendants the Zoniyra’s including Tay Bleadua, do not have any land in the disputed area. I therefore conclude that defendants have failed to establish with certainty the land they counter claimed for and so their counter claim must fail. I found, based on the foregoing that the plaintiffs has on the balance of probabilities proved their claims on the disputed land and the gravel tilts in their favour. I uphold their claims as follows; 1. Declaration of title to all that piece or parcel of land situate at Anloga and bounded as follows;  On one side by Zotra family and Adranyi family  On the 2nd side the Dagbui family land.  On the 3rd side by the property of Afeafa Akuina which went to Afiawoo  On the 4th side by the property of Agbenoxevi Tamakloe and Vida Degbey I order immediate recovery of possession and perpetually restrain the defendants against the said land for ever trespassing. It is on that note that the counter claim of the defendant is dismissed. The plaintiffs are entitled to cost. Cost is assessed at GHC20, 000. 00 against both 6th defendants and their grantors in favour of the plaintiffs for the long years they were engaged here by the defendants, and to settle part of their legal bills and inconveniences. Judgment for the plaintiffs herein. (SGD.) CHARITY A. ASEM (MRS) JUSTICE OF THE HIGH COURT LEGAL REPRESENTATION: SMK DZIKUNU FOR PLAINTIFFS G K NTONY FOR THE 6TH & 7TH DEFENDANTS. ******* jd* 27