Afful Vrs Mireku and Another [2023] GHADC 218 (15 May 2023)

IN THE DISTRICT MAGISTRATE COURT CENTRAL REGION, DIASO, HELD ON MONDAY 15TH DAY OF MAY, 2023 BEFORE HIS WORSHIP BERNARD DEBRAH BINEY ESQ. …. MAGISTRATE OPANIN KWAKU AFFUL ..... PLAINTIFF SUIT NO. A11/01/23 DIASO VRS 1. YAW MIREKU …. DEFENDANTS 2. KING BADU DIASO ==================================================================== JUDGMENT By the endorsement on the writ of summons issued from the registry of this court dated 7th July, 2022, the plaintiff is seeking the following reliefs against the defendants jointly and severally; a. Declaration of title, vacation, recovery of possession and occupation of land. b. GH¢ 30,000.00 damages for trespass. c. Perpetual injunction order. The defendants particularly, the 1st Defendant disputed the afore-stated claims thereby setting the stage for a full-scale trial of the matter. Suffice it, however, to say at this moment that from the record, the fact of the instant case are free from complexity. It is therefore imperative, in my considered view, to recount the respective cases of the parties as gleaned from the evidence on record in order to give the requisite perspective to this judgement. It must be noted that the 2nd defendant never put in any appearance, and he opted not to participate in this trial with impunity, despite service of the writ itself and numerous hearing notices served on him personally with proof of service put on the docket by the bailiffs of the court. In fact, bailiffs of this court’s registry had cause to file report of 2nd Defendant’s disrespectful and insulting behavior exhibited towards them when they attempted serving him some of the court processes, so his absence in court was not surprising. The record also shows that parties were exposed and given the opportunity to attempt settlement of their dispute through ADR which they initially agreed but later returned with unsuccessful report and left the court with no option but full scale trial. The court upon receipt of report that parties preferred battling their disputes in court through trial ordered them to file their written statements which they did and served same on each other. The 1st Defendant filed his written statement of defence with a counterclaim claiming against the Plaintiff the following; 1. A declaration that the marshy piece of land in dispute is owned by the 1st defendant herein and his family, which said piece of land is situate, lying, and being at a place known and called Wonawua wonte at Diaso and shares common boundaries with the properties of Op. kofi Nyame, Nana Obeng, Kojo Bekoe, Ama Nyarko and the Diaso stool. 2. An order of perpetual injunction restraining the plaintiff herein, his agents, servants, successors etc, from interfering with the 1st defendant’s use of land in dispute. Accordingly, at the close of pleadings, the court set the following issues down for determination: Issues for Determination 1. Whether or not the Plaintiff has been in undisturbed possession and ownership of the disputed farm land. 2. Whether or not plaintiff is entitled to his reliefs endorsed on the writ of summons. 3. Whether or not Defendant is entitled to his reliefs in his counter-claim The Case of the Plaintiff The case of the Plaintiff is that, “I am is a farmer and the 1st Defendant is my in-law as per custom and I know the 2nd Defendant to be a native of Diaso. The land in dispute was acquired in its virgin state and cultivated into cocoa farm by my late grand uncle Opanyin Sikayena which is situated at Anowuante on Diaso stool lands and bounded by the properties of Op. Agya Bekoe, Mathew Opoku, Kofi Korang and Yaa Tsin respectively. That after the death of Op. Sikayena he was succeeded by my late uncle Op. Kwadwo Afful. That during the lifetime of Op. Kwadwo Afful he granted the 6 acre land in dispute to me which was then secondary forest in 1982 and I have owned and possessed it for over forty years. That during the 1982 farming season I cleared and cultivated rice on a portion of the farm in dispute and still owns same. That in 1983 major farming season cultivated the entire land into a rice farm. That a year later after harvesting the rice Salifu Kusasi approached me to grant the land in dispute to him to cultivate same into cocoa farm. The request of Salifu Kusasi was granted to cultivate the land in dispute into cocoa farm on abunu basis and Salifu Kusasi offered four hundred Ghana cedis (Ghc 400.00) as a seal to the said agreement before witnesses. That after Salifu Kusasi had cultivated cocoa on the land for 5 years he came to tell me that the cocoa had withered because the land was not for the cultivation of cocoa and suggested that he will cultivate oil palm on the land which I agreed. That Salifu Kusasi had cultivated oil palm on the land for 7 years and it has started bearing fruits, then from nowhere the 1st Defendant came to claim ownership of the land in dispute. That the 1st Defendant is alleging that the land in dispute is a stool land and in another breath he says the land was given to him by his uncle known as Siaw and Kofi Nyame. That the 1ST Defendant has sold the land in dispute to one King Badu (2nd defendant) for galamsey activities. That the land is my property which the 1st defendant has sold same at my blind side. The Case of the Defendant The Defendant’s case is thus, “my name is Abusuapanin Yaw Mireku, I am a farmer and also Abusupanin of Diaso Stool and filing this process for myself and on behalf of the 2nd Defendanti know the plaintiff herein and could be described as my in-law because his uncle once married my sister (Akosua Adabre). I know the land in dispute. It is a marshy piece of farmland and it is owned by the Diaso stool. This is because by customs and traditions of akans, all marshy pieces of farmland are not owned by any individual but by the stool. Apart from this, my late uncle called Kwame Effah (who was the Abusuapanin of Diaso stool) was the first person to enter the land in dispute at a time when it was a virgin forest. That was so many years ago. That I wish to put on record that I customarily inherited his properties including the disputed land piece of farmland. Since my succession in 1984, I have been on this land and no member of plaintiffs’ family or even the plaintiff himself has ever raised any challenge against my use of the land. That I wish to state again that apart from this disputed piece of land, my said late uncle again cultivated other pieces of farmlands at this same area popularly known and called wona wua wonte . I wish to state again that the deceased shared these pieces of farmlands among his six groups of people including his three (3) wives, his son (Kojo Bekoe), his sister Ama Nyarko and finally I. that the none of the six groups of people left our respective portions unattended to or uncultivated. All of us planted into cocoa our respective portions. Whiles I have been on the disputed land for about thirty eight (38) years now the plaintiff only entered this land some few years ago when he forcefully entered it and gave portion of it to one Salifu who is cultivating it into palm oil farm. When the Plaintiff attempted to forcefully enter the land in dispute, I made several complaints to his uncle Osei Yaw (now deceased) who strongly advised the plaintiff against his actions but he persisted in his unlawful acts. I am the rightful owner of the disputed piece of farmland. For this reason, I am praying this honorable court to dismiss the plaintiff’s claim against me for lack of merit and to grant my counterclaim. I am therefore praying this honorable court for a declaration that the marshy piece of land in dispute is owned by me and my family, which said piece of land is situate, lying, and being at a place commonly known and called Wo na wua wonte at Diaso and shares boundaries with the properties of Op. Kofi Nyame, (1st defendant’s uncle), Nana Kwabena Obeng, Kojo Bekoe, Ama Nyarko and the Diaso Stool. I am also praying this honorable court for an order for perpetual injunction restraining the plaintiff herein, his agents, servants, successors etc, from interfering with my use of the land in dispute. Findings of Facts At the end of the testimonies of the parties, the court made the following findings of fact; 1. The land in dispute has been cultivated with palm trees which has started bearing fruits, 2. The plantation was cultivated by Salifu Kusasi, 3. Salifu Kusasi was granted the land in dispute by the Plaintiff upon receipt of Ghc 400.00 from him as seal money (consideration).4. Both parties claim of the disputed land is based on customary grant or inheritance. 5. 2nd Defendant is mining on portions of the land in dispute on the instructions of the 1st Defendant. Burden and Standard of Proof In all civil suits, the burden of proof, that is, the duty of producing evidence in support of averments necessary for the court’s decision, is upon the party who made the averment. The primary burden of proof is usually on the plaintiff because he made the primary averments when he instituted the action. However, where the plaintiff adduces sufficient evidence in discharge of the primary burden, the onus shifts under section 14 of Act 323 onto the defendant, who under section 10 (2) of Act 323, is required to adduce sufficient evidence in rebuttal, in order to avoid a ruling against him on the particular issue. See Faibi v Hotels Corporation [1968] GLR 471. Where a defendant has a counterclaim, the same primary burden of proof, and standard of proof are placed on him as it is with the plaintiff, See- Birimpong v Bawuah [1994-95] GBR 837. The obligation on the party making the averment is two-fold. The first is the production of evidence in proof of the averment, as required by section 11{1} and 14 of the Evidence Act1975 {N. R. C. D 323}. Firstly, that burden may be discharged by adduction of evidence by the plaintiff himself or by his witness {es}. Secondly, the burden of producing evidence may be discharged if the averment made by the plaintiff or defendant –counterclaimant, is admitted by the opponent. In West Africa Enterprise Ltd v Western Hardwood Enterprise Ltd [1995-96] 1 GLR . CA, It was held {in holding 3}, “…no principle of law required a party to prove an admitted fact” Thirdly, the burden of proof may be discharged by evidence from the mouth of an opponent or his witness. In Nyame v Tawiah & Anor [1979] GLR 265, C. A {Full Bench}, it was held: “A party could prove his case by admission from the mouth of his opponent or his adversary’s witness…” See also Tsirfo v Duah VIII [1959] GLR 63; Ameoda v Pordier [1967] GLR 497 Eugene Guddah & Ors v Goldfields {Ghana} Ltd [2006] 8 M. L. R. G 13, C. A The second leg of the obligation on the averrer is to ensure that the evidence adduced meets the standard of proof set by the law. The evidence must be sufficiently cogent in persuading the trier of fact under section 10 {1}, Act 323, of the existence of the fact alleged. The test applied by the trier of the fact determining whether the evidence adduced was persuasive, is “proof by a preponderance of probability”, under section 12 of Act 323, see Majolagbe v. Larbi [1959] 2 GLR 190; Owusu v Tabiri & Anor [1987-88] 1GLR 287; Fosua & Adu –Poku v. Adu-Poku Mensah [2009] SCGLR 310 and Agbeko v. Standard Electric Co [1978] 1 GLR 432. Analysis and Evaluation Accordingly, the Plaintiff who commenced this suit and made averment carries the initial burden of producing sufficient credible evidence of the requisite probative value on the balance of probabilities to tilt the scales of justice in his favor. To discharge this burden imposed on him by the Evidence Act supra, Plaintiff mounted the witness box and adduced evidence by identifying his witness statement filed on record of the court and prayed the court for same to be converted to his evidence in chief which was done. In his testimony, Plaintiff was firm that the farmland in dispute measuring 6 acres was granted to him by his uncle late Opanyin Kwadwo Afful who inherited it from his ancestor Op. Sikayena who acquired the farmland in its virgin state and Plaintiff has since 1982 been in possession and ownership of it. According to the Plaintiff, he first cultivated rice on this land and after harvesting it re-granted it to one Salifu Kusasi who first cultivated cocoa on it but later realized that the land was not good for cocoa so the said Salifu Kusasi cleared the cocoa and planted oil palm on it which has started bearing fruits now. In land suits such as the instant case, the plaintiff is required to proof his root of title, the mode of acquisition and the identity of his land among others. The Supreme Court speaking through Adinyira JSC in the case of Yehans International Ltd v. Martey Tsuru Family and 1 or.[2018]DLSC2488 held “it is settled that a person claiming title has to proof:1) his root of title, ii) mode of acquisition ,and iii)various acts of possession exercised over the land.. This can be proved either by traditional evidence or by overt acts of ownership in respect of the land in dispute. A party who relies on derivative title must prove the title of his grantor. Awuku v Tetteh [2011]1 SCGLR” This position as espoused by the Supreme Court in the above case has been complied with by the plaintiff in the instant case. In confirmation of his possession and ownership of the land in dispute, this is what Plaintiff said in answering question from the 1st defendant under cross examination: Q. Do you agree that the land you are cultivating is your family land that is why you are cultivating? A. Yes I agree that it is my family land that is why I am cultivating. Q: You said you gave this land to Salifu in 1984 about 38 years ago? A: I did not state any date. Q; According to you, this land in dispute originally belonged your grandfather Op. Sikayena? A: Yes my lord. Q: Who showed you this land of your grandfather? A: Op. Kwadwo Afful Q: Why is it that this person (Op. Kojo Afful) has not taken action against me but you? A: I have been working on it for close to 50 years so I can litigate on it without him A care scrutiny and reflection of the questions asked by the defendant under cross examination, reveals that defendant acknowledged Plaintiff to be exercising some acts of possession and ownership of this land in dispute for sometime now and this is an admission and corroboration of Plaintiff’s story. This admission relief’s plaintiff of further proof of the averment that he has been in possession and ownership of the disputed fact. This position is line with the statement quoted supra, “the burden of producing evidence may be discharged if the averment made by the plaintiff or defendant –counterclaimant, is admitted by the opponent”. In West Africa Enterprise Ltd v Western Hardwood Enterprise Ltd [1995-96] 1 GLR . CA, It was held {in holding 3},“…no principle of law required a party to prove an admitted fact” Again, the burden of proof may be discharged by evidence from the mouth of an opponent or his witness. See the case of Nyame v. Tawiah & Anor [1979] GLR 265, C. A {Full Bench}, where the court held: “A party could prove his case by admission from the mouth of his opponent or his adversary’s witness…” Accordingly, applying the reasoning in the above authorities, it is the view of the court that plaintiff has discharged the burden of proof imposed on him and I hold that Plaintiff has been in undisturbed possession and ownership of the disputed land for over forty years now. Whether or not Plaintiff is entitled to his reliefs as endorsed in the writ of summons The Plaintiff in further proof of his case called Mathew Opoku, (PW1) whose testimony was simply that Plaintiff shares boundary with his land located at Anowuante. According to PW1, he has since over forty (40) years ago been cultivating his land which shares boundary with the land in dispute and has always known the Plaintiff to be the sole cultivator of the land in dispute. The following cross examination of PW1 by the Defendant throws more light: Q: Do you know that my farm shares boundary with the land in dispute? A: I am not aware Q: Do you know that my Uncle Op. Kwame Effah’s land shares boundary with the land in dispute which he shared for his three wives and his sisters? A: I don’t know that. So the defendant did not have any issues with PW1 on all his testimony on record to the effect that, he (PW1) has been regarding Plaintiff to be the legitimate owner of the land in dispute, because of his over forty years knowledge of Plaintiff as the only person who has been in possession and cultivation of the land in dispute. This testimony of PW1 is quite weightier as far as the possession of the disputed land is concerned, yet Defendant chose to be silent on it during cross examination. It is ironic that whiles Defendant claimed the land belong to his family, he could not call even one of his so called four (4) boundary sharers to testify for him. Additionally, no family member or member of the community was called to testify to corroborate his story. If Defendant is indeed the head of the stool family of Diaso as he claimed, and he was litigating over this land for and on behalf of his stool family, he could at least have been able to call some of the principal members of the stool family, such as the family linguist or some other principal members of the family to testify for him but none was called to corroborate his story. In such litigations concerning land matters, the authorities are clear that some witnesses, especially the boundary sharers are called to testify and corroborate the testimonies of the claimants but in the instant case Defendant call none. Despite, his failure to call material witness to proof his case, Defendant was also not consistent on who actually owns this land in dispute over which he is litigating. In his testimony before the court, defendant testified that the land in dispute is a marshy land and by Akan custom and tradition, marshy land is not owned by any individual but the stool. This piece of evidence was vehemently denied by the Plaintiff who himself is also member of the community, and since custom and tradition is a question of fact, which pertains in a particular area, the court expected the Defendant who was making that allegation to call an elder in the community to clarify this fact but that was not done. In the same testimony Defendant said elsewhere that the said land belonged to his uncle who shared and gifted it to his three wives, sisters and defendant himself. The Defendant further continued that upon the death of his uncle in 1984 he succeeded him and inherited this land. These inconsistencies in the testimony of the defendant made his testimony incredibly unbelievable and as such did not attract any probative value from the court. At page 376 of the book Practise & Procedure of Trial Courts & Tribunals In Ghana, Authored by retired Supreme Court Judge His Lordship Justice S. A. Brobbey, he opined thus; “Where evidence of the opponent or opponent’s witness supports that of the party. In such a case the rule is that where the evidence of one party on an issue is corroborated by the evidence of the opponent or opponent’s witness, while that of the opponent on the same issue stands uncorroborated, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some reason (which must appear on the face of the record) the court finds the corroborated one incredible or impossible. This was first enunciated in the dictum of Ollenu J (as he then was) in Tsirifo V v Dua VIII [1959] GLR 63 a 64-65 which was approved in Osei Yaw v Domfeh [1965] GLR 418, SC.” In the case of Asante v. Bogyabi & Ors [1966] GLR 232 the court held that; “Where the evidence of one party on an issue in a suit was corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reasons the court found the corroborated version incredible or impossible”. In the present case, the defendant did not call any witness to corroborate his version of the case but Plaintiff called one of his boundary owners as witness who is credible and testified to corroborate his case. It is therefore the view of the court that on the forgoing authorities, plaintiff’s case has been corroborated, and same must be accepted and preferred against that of the Defendant. I accordingly hold that plaintiff is entitled to his reliefs endorsed on the writ of summons. Whether or not Defendant is entitle to the reliefs in his counterclaim. Defendant in his statement of defence counterclaimed against the plaintiff seeking the following reliefs; 1. A declaration that the marshy piece of land in dispute is owned by the 1st defendant herein and his family, which said piece of land is situate, lying, and being at a place known and called Wonawua wonte at Diaso and shares common boundaries with the properties of Op. kofi Nyame, Nana Obeng, Kojo Bekoe, Ama Nyarko and the Diaso stool. 2. An order of perpetual injunction restraining the plaintiff herein, his agents, servants, successors etc, from interfering with the 1st defendant’s use of land in dispute It is trite learning that counter-claim is a fresh and separate action independent of the substantive case and the defendant counterclaimant assumes the role of the Plaintiff in the counterclaim and is therefore required to proof his counterclaim against the plaintiff/defendant. It has been held that, where a defendant has counterclaim, the same primary burden of proof, and the standard of proof are placed on him as it is with the plaintiff. See Birimpong v Bawuah [19994-95] GBR In that regard, for the Defendant to succeed in his counterclaim the Defendant counterclaimant in the instant case, is required to discharge the burden imposed on him, and marshal all his evidence as well as necessary exhibits and witnesses in this matter to proof his title or ownership of the land in dispute as against the Plaintiff. Accordingly, the court at this juncture must assess the evidence on record provided by the defendant to see if he has proved sufficiently his averments to entitle him to the reliefs he seeking in his counterclaim. Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. As stated in this quotation by Ollenu J in the case of Majolagbe v. Larbi & Ors [1959] GLR 190 and re-echoed in the case of: Klah vrs Phoenix Insurance Company Ltd. [2012] 2 SGCLR page 1139 at page 1151; where it was held that: “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to some facts. Instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true” The Defendant/Counterclaimant in this case is therefore required to prove sufficiently his averment against the Plaintiff, by adducing some corroborative evidence led by credible witnesses, producing documents, description of things, reference to some facts etc. Defendant/Counterclaimant does not proof his case by merely going into the witness box and repeating that averment in his pleadings on oath. This is exactly what the defendant counterclaimant did in this instant case. In his evidence on record before this court, the defendant could not discharge this burden of proof imposed on him to his averment. This is what transpired under cross examination when the Defendant/Counterclaimant mounted the witness box: Q: You have stated in your witness statement that the land in dispute is yours? A: Yes my lord. Q: You have said in Para 3 of your witness statement that the land in dispute is a stool land A: Yes, but I am the head of the stool so if I say if I say the land is belongs to me, it is true. Q: You have also said in paragraph 6 of the witness statement that the land in dispute belong to your uncle Kwame Effah who carved portion for you, Egya Bekoe, and Ama Nyarko? A: That is true. Q: So of these three claims, which one is true? A: All of them are true. Q: I put it to you that all what you said is not true, the land belongs to me? A: What I have said is true, the land belongs to my uncle. Q: When the 2nd defendant king Badu dug canal on the land, who did he pay money to? A: I don’t know Q: I put it to you that when 2nd defendant dug canal on the land he paid money to? A: I don’t know It is quite clear from the above, that the Defendant could not emphatically state who is the owner of the land in dispute of which he is seeking declaration of title to be decreed in his name. The entire case of the parties as to who actually owns title to the disputed land borders on traditional evidence which essentially is hearsay and a lot of caution has to be exercised in its evaluation. In evaluating such conflicting traditional evidence, the courts have established an approach or principles to be adopted in a plethora of cases. One of such cases is Sas George v Johnson Hilodjie & or Civil Appeal No. J4/13A/2004 where Supreme Court stated that “ the clearly discernible principle is that, in cases of this nature, the most satisfactory contemporary facts that a court should look out for are undisturbed overt act of ownership or possession exercised over the subject matter. That is not to say that other concrete do or may not qualify as acts in living or recent memory. Indeed, what may constitute a fact or event in recent memory in one case, may not pass the same test in another. Each must therefore be dealt with on its own peculiar facts. Therefore, findings and decisions of courts of competent jurisdiction, may, appropriately qualify as evidence of facts in living or recent memory. But, evidently, in land litigation, proven uninterrupted and unchallenged acts of possession, in the absence of some cogent evidence on record to the contrary, as for example an unreserved acceptance of crucial parts of the other side‘s oral history cannot be ignored or denied the deserved weight, given that in the first place, by the clear provisions of S.48 of The Evidence Decree NRCD323, such acts raise presumption of ownership.” Again, in Adjei v Acquah (1991)1 GLR 13 the court held that “Facts established by matters and events within living memory, especially evidence of acts of ownership and possession must take place over traditional evidence” In Anin v Oppon, the court through Acquah JSC (as he then was) had further expressed himself this way concerning conflicting traditional evidence “……., it must rather examine the events and acts within the living memory established by evidence, paying particular attention to undisputed acts of ownership and possession on the record; and see which version of the traditional evidence 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 must succeed unless there exist on record of proceedings, a very cogent reason to the contrary. And the presumption of title raise by acts of possession and ownership appears now as section 48 of the Evidence Decree 975 NRCD 323.” In the instant case, the undisputed fact on record of the case, is that the recent acts of ownership and control of the subject matter has been exercised by the Plaintiff and in proof of that, his grantee Salifu Kusasi has palm oil plantation on the land which is bearing fruits for harvest. The court hereby takes judicial notice that palm trees after planting take over five (5) years before it start bearing fruit therefore I can conclude that the palm plantation cultivated by Salifu Kusasi on he disputed which was granted him by the Plaintiff (on ‘abunu’ basis according to defendant) has been on the disputed land for over five (5) years now. This conclusion is in line with defendant’s own response to a question under cross examination, where he said that one cannot harvest palm fruit within two years after plantation. Therefore, applying the ratios in the above cases, the conflicting traditional evidence in the instant case must be resolved in favor of the Plaintiff to succeed, since plaintiff has been found to be exercising recent acts of occupation, possession and ownership of the land in dispute, and his evidence on record appears more convincing and probable than that of the Defendant/counterclaimant. It must be emphasized here, that, it appears both parties’ claims are based on customary grant or inheritance and therefore no proper documents covering the land in dispute was presented or exhibited in the trial. But the court wants to point out that customary law knows no writing and any customary grant is effective the moment it is made, any subsequent documents only adds but does not subtract from the effect of the grant. In the case of case of Bruce v. Quaynor [1959] 292at page 297, this is what Ollenu J said; “Conveyance of land made in accordance with customary law is effective as from the moment it is made. A deed subsequently executed by the grantor for the grantee may add to, but it cannot take from, the effect of the grant. Thus, a stool can by deed convey to a person the absolute ownership in the land which it originally granted to that person by customary law, and thereby exempt the grantee from the performance of customary services which might normally have been due from the grantee to the stool; but such a deed cannot operate to revoke the grant made by custom.” Therefore parties need not to necessarily look for non-existing land documents and exhibit it in court before they can succeed or proof their case. However, in the instant case, the court observed that a site plan marked exhibit ‘X’ was attached to the supplementary witness statement of the defendant, this site plan captioned as PLAN OF LAND FOR: OPAYIN KWAME EFFAH was dated 23/11/22, was not stamped, it was prepared when the dispute between the parties was already sub judicate and was presented without any deed which makes it difficult to determine the parties to that transaction, who is the grantor and the grantee was missing. Because it is seen as self-serving evidence and does not meet proper legal test of admissibility, I reject same and will put no probative value on it in this judgment. The plaintiff similarly filed his case with a similar site plan of the same features and it will also be rejected with the same reason. The Plaintiff alleged in his pleading and the witness statement that 1st Defendant has sold the land in dispute to the 2nd defendant who is engaged in galamsey activities on the land. This allegation has not been categorically denied by the 1st defendant but interestingly, 1st Defendant in his statement of defence and witness statement filed on record indicated that, he filed same for himself and on behalf of the 2nd Defendant. Though defendants did not file any power of attorney to the effect that 1st defendant was representing 2nd defendant, the court in doing substantial justice would construe it to mean that 2nd defendant’s interest( as grantee of the 1st Defendant) in the case has been catered for by 1st Defendant’s ( as grantor) active and full participation in this trial. Consequently, it is the considered view of this court that 1st defendant is not entitled to the reliefs sought in his counterclaim and same is hereby dismissed. Conclusion Upon critical evaluation of the entire evidence before me, I am satisfactorily persuaded and convinced that Plaintiff has been able to proof his case on preponderance of probability against the Defendants jointly and severally, and I accordingly enter judgment against defendants in favor of the Plaintiff. Consequently, I order as follows: (a) Declaration of title to all that piece and parcel of marshy farmland measuring 6.6 acres which lies, situate, being, and located at Wonawuante on Diaso stool land and bounded by the properties of Agya Bekoe, Mathew Opoku, Adu Korang and Yaa Tsin to Plaintiff Opanyin Kwaku Afful. (b) Defendants are hereby jointly and severally ordered to cease all small scale mining (galamsey) activities on the disputed land and hand over vacant possession of same to Plaintiff forthwith. (c) Award of Ghc 10,000.00 general damages against the Defendants jointly and severally in favor of the Plaintiff for trespass onto plaintiffs land. (d) Perpetual injunction restraining the Defendants, their agents, assigns, workmen, and all those claiming through the defendants to cease having anything to do with the Plaintiffs land. (e) Cost of the action is assessed to be Ghc 5, 000.00 against the defendants jointly and severally. ……………..……….. Bernard Debrah Biney esq. (Magistrate)