Dodor Vrs Segla & 10 Others. [2023] GHAHC 198 (12 June 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION A. D. 2023 CORAM: CHARITY A. ASEM (MRS), J. SUIT NO. E1/39/2020 DATE: 12th June, 2023 FOLLETT KWASI DODOR ::: PLAINTIFF VRS. PHILIP SEGLA & 10 ORS. ::: DEFENDANTS JUDGEMENT On the 6/02/2020, the plaintiff commenced this action against the defendants herein and the following are his reliefs; i) Declaration of title to all that piece or parcel of land situate, lying and being at Alagbavi-Dzodze and bound as follows; LOT A - On the North by the property of Dzameshie Adukpo of Dzodze. - On the South by Fianyo of Dzodze. - On the East by Azinogo; and - On the West by the properties of Chief Awuku Adzofia II and Segla Kovor. LOT B - On the North by a main path lane. - On the South by the property of Vodzi Agbleke. - On the East by the property of Nuworsu Wordui and Seke Worwui. - On the West by the property of Adjoko, late of Dzodze Dzegbefi. Recover of possession. Perpetual injunction restraining the defendants, their agents, workmen, privies and any other person(s) claiming title through them from ever entering or having anything to do with the disputed land. General damages for trespass. Any other reliefs the honorable Court may deem fit. ii) iii) iv) v) In the plaintiff’s statement of claim he averred that he is the son and next of kin of Clemence Amegbletor deceased who was also known as Togbui Awuku Adzofiasi II of Dzodze Ablorme. He described the 1st, 2nd and 3rd defendants as his paternal cousins who are also resident at Dzodze-Ablorme. That the 4th – 11th defendants are the grantees of the 1st – 3rd defendants herein of portion of the disputed land. It is the case of the plaintiff that his late father Togbui Awuku Adzofia II was the bona fide owner of a parcels of land described in the endorsement. According to him his father acquired the land through gift from one Minyosode Avuglah as far back as November 1962. According to the plaintiff his father took possession of the land by cultivating cassava, maize and palm trees on same. As part of evidence of possession his father allowed one Seth Kodzo and his wife and Justice Agbenyega Zogli to be cultivating without hindrance. He averred that, sometime in the year 2000, his father sold a portion of Lot B to one Madam Amuzu Florence Ahiadzo without a challenge. He continued, that sometime in 2012 his father stood surety for an accused person which he was compelled to carve out a portion of Lot B when the said accused person failed to honor the terms of his bail. He stressed that sometime after the death of his father, the 1st, 2nd and 3rd defendants without the consent of the plaintiff started selling portions of the land to the 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th defendants who have started developing the land by putting up houses, as well as cultivating the land by planting corn and cassava. That his efforts to stop the acts of the defendants from unlawful trespass on his land had not been fruitful. He claimed per the endorsement herein. The defendants filed a statement of defence containing a counter-claim on the 17/02/2020. They denied flatly the plaintiff’s claims and title to the disputed land. They averred that, plaintiff’s father’s land is different from the disputed land. They denied any claim being laid to Lot A and Lot B by plaintiff as completely false. At paragraph 7 of the defence, the 1st – 3rd defendants described their family land and boundary as follows; LOT “A” a. b. c. d. On the North by the property of Dzameshie Adukpo. On the South by Ahortsu On the East by the property of Azinogo. On the West by the property of Segla. LOT “B” a. b. c. On the North by the property of Adrie family. On the South by Vodzi Agbleke. On the East by the property of Wordui. d. On the West by the property of Adjaho (decease). Defendants continued that (paragraph 8 of statement of defence) plaintiff’s father who was in fact possessed of land at Alagbavi, never cultivated any part of his land but gave same to one Seth Kodzo and his wife and Agbenyaga Zogli to cultivate. It is the case of the 1st to 3rd defendants that plaintiff’s father wrongly sold land that did not belong to him to Florence Amuzu. They contended that when plaintiff’s father was put before one Togbui Gordor II (dsd), it came out that the land he sold did not belong to him. According to defendants, Florence Amuzu reported the matter to Dumega Gborkpa deceased. She left the land and never came back. They averred that plaintiff’s father continued to trespassed unto people’s land until he trespassed unto the 1st – 3rd defendants’ land. It is their story that the case was put before Dumega Gbokpa’s tribunal where plaintiff’s father revealed that it was Minyosode Avugla, defendants’ grandfather’s sister, who gifted the land to him in a purported Will. He could however not produce the Will at the Gbokpa’s court. Defendants claim they have been in an undisturbed possession and use thereof of their family land long ago. Defendants concluded that one of the women plaintiff’s father unlawfully sold their land to return to plea with the Segla family. They have since regularized her title to the land as far back as 2012. As part of the evidence of their alleged possession, it is averred that 3rd defendant has erected a shed for a prayer center, and also farming a portion. According to defendants, this was done during the lifetime of the plaintiff’s father without his protest. They averred, it is their right to grant the land for legitimate construction and cultivation of food crop and so plaintiff is not entitled to his claims. In a reply filed on the 8/05/2020, the plaintiff stated that his father Clemence Amegbetor was a chief under the stool name Togbui Awuku Adzofia II until he was destooled in 1963 there about. In further response, plaintiff said one Mensah Ziddah @. Agoman wrongfully sold Danyo’s land to Charity Dorgbefu. That the plaintiff’s father was forced to carve a portion of Lot B to replace the land Mensah Ziddah wrongfully sold. This is because plaintiff’s father was his surety and undertook to replace the land. He denied the defence in its entirety and will put the defendant to strict proof thereof. To be put to strict proof means, if the defendant is unable to admit or deny an allegation or vise vesa, a confirmation by fact or evidence the court needs to be satisfied that there is a preponderance of the evidence that require more scrutiny. At close of pleadings the following issues were filed on the 5/05/2020 by the counsel for defendants for the court’s determination. a. Whether or not the plaintiffs’ father was also known as Togbui Awuku Adzofiasi II of Dzodze Ablorme. b. Whether or not plaintiff’s father lawfully sold out portions to Madam Florence Amuzu? c. Whether or not the 1st – 3rd defendant’ family is the rightful owner of the subject matter property? d. Whether or not the plaintiff’s fathers’ property is different from that of the defendants? Further issues were filed by counsel for plaintiff on the 8/5/2020 as follows; I) Whether or not the land in dispute was gifted to plaintiff’s father as far back as 1962. II) Whether or not plaintiff’s father and his wife and his agents were in possession of the land in dispute since 1962 without any challenge. III) Whether or not Seth Kodzo and his wife and Agbenyega Zogli have been cultivating the disputed land since 1977. IV) Whether or not plaintiff’s father sold a portion of the land to Florence Amuzu Ahiadzo without any challenge from the defendants’ father. V) Whether or not 1st, 2nd and 3rd defendants have sold portion of the land in dispute to 4th to 11th defendants in 2017 without the consent of the plaintiff. VI) Whether or not defendants have started developing the disputed land before the court. The court conducted case management conference on the 13/10/2020 as the parties obeyed the directive and filed witness statements. The plaintiff testified through his lawful Attorney Seth Kodzo who filed a witness statement on the 27/8/2020. Attached thereto are the Power of Attorney marked as Exhibit “A”. Annexed further are Exhibit “B, C, D and E”. Exhibit “B” is a Will made by the Minyosode Avuglah of Dzodze which is dated 17/01/1962. Plaintiff’s Exhibit “C” is an indenture made between one Kwaku Clemence Amegbletor of Dzodze and Madam Florence Amuzu also of Dzodze – Exhibit is dated 26/03/2000. Further Exhibit “D” is an Authority Note dated the 18/11/2012 issued to Charity Dogbefu and Exhibit “E” is a Deed of land purchase receipt issued by Clemence Amegbletor for the sale of land to the said Charity Dorgbefu. The receipt is dated 22/03/2012. According to the witness the late Clement Kweku amegbletor was his maternal Uncle. He confirmed that the disputed land was gifted by Minyosode Avugla to plaintiff’s father. According to him the land was in two lots A and B. Plaintiffs lawful attorney said he, has also been farming the disputed land several years without let or hindrance. He also witnessed the fact that one Agbenyega Zogli was permitted by plaintiff’s father and has been farming the disputed portion for years without challenge. That the dispute is at Lot B. The exhibits tendered by plaintiff were without objections. The 2nd witness for the plaintiff is Rev. Mark Dogba. He relied on his witness statement filed on the 27/8/2020. He attached no exhibit. It is his case that, one Mensah ziddah once sold a parcel of land to Charity Dorgbefu. But a dispute arose over the sale where plaintiff’s father intervened by undertaking to give part of his land to the said Charity Dorgbefu to replace the land sold unlawfully to her. Madam Dorgbefu wanted to know whether the land being offered by plaintiff’s father belonged to him. Witness said the 2nd defendant herein and his father were present when Charity Dorgbefu was making enquires to plaintiff’s title to the land. Charity Dorgbefu later caused the arrest of plaintiffs’ father when he delayed in honoring his undertaking. According to witness the undertaking was reduced into writing. He was appointed to document the agreement evidencing the undertaking by plaintiff’s father. He stressed that 2nd defendant herein witnessed the agreement Exhibit D to confirm and assure Charity Dorgbefu that plaintiff’s father was indeed the owner of the land located at Alagbavi Dzodze. The 3rd witness is Justice Agbenyega Amegbletor who testified and relied on his witness statement filed on 27/08/2020 also without an exhibit. He also confirm the gift of the disputed land to plaintiff’s father who was his uncle. He also confirm the fact that the 2nd defendant and his father were involved in the settlement of the dispute between Charity Dorgbefu and plaintiff’s father, where PW1 Rev. Mark Dogba was present and reduced the agreement into writing, as well as the 2nd defendant, Simon Segla, Afedo Segla and Awudu Segla were witnesses. Afedo Segla is the 3rd witness for the plaintiff who also relied on his witness statement filed on 27/08/2020. He testified that his father and 1st 2nd and 3rd defendant’s fathers were siblings. According to him, sometime in March 2012, he accompanied Charity Dorgberfu to purchase land from Ziddah Mensah. That plaintiff’s father undertook to compensate her in the event that the land did not belong to Mensah Ziddah. That when there was a dispute over the land Charity Dorgbefu bought, plaintiffs father carved a portion of Lot B for her. He confirmed being a witness to that settlement as well as 2nd defendant. The witnesses were crossed examined to close plaintiff’s case. Though the court received witness statements from two other close relatives of the parties to testify for and on behalf of plaintiff, they did not attend the trial. Counsel for plaintiff informed the court that, though they were willing, threats were issued from the camp of the defendants so their inability to appear. The defendants however denied the allegation. DEFENDANTS CASE On 27/01/2023 defence opened. One Reuben Segla who is neither a party to this suit nor hold a power of attorney testified and relied on a witness statement he filed on 24/06/2020 and a supplementary witness statement filed on 19/10/2020. Attached to the witness statement is Exhibit “1” a receipt issued to the Segla family from the Amegbletor family as their funeral donation. Exhibit “2” is a Deed of land purchase receipt issued to Charity Dorgbefu from Clemence Amegbletor. Exhibit “3” is also a Deed of land purchase receipt issued by the Segla family to Charity Dogberfu dated 8/08/2013. His exhibit 4 is a Deed of land purchase receipt dated 19th march 2016 and finally exhibit 5 also a land purchase receipt dated 20th April, 2016. CAPACITY OF RUBEN SEGLA The plaintiff sued these eleven (11) defendants in their individual capacity as trespassers unto his land. Ruben Segla is not one of the defendants before the court. His name however suggest he may hail from the 1st 2nd and 3rd defendants’ family. Along the line he claimed to be the eldest brother to 1st 2nd and 3rd defendants. None of the eleven defendants appeared to testify in their defence. I am not unaware that a party need not testify by himself as his failure cannot be used against him and I must emphasize that there is no obligation on a party to a suit to personally give evidence in court. The above principle is established by a plethora of cases. Please see the case of In Re Ashalley Botwe Lands; Adjetey Agbosu V. Kotey (2003-2004) SCGLR at page 420. Agbosu v. Kotey (2003-04) SCGLR page 420, it was held that, “There was no rule of the law stating that a party would succeed in his case only if he testify at the trial.” It is however observed that the witness is neither the head of the Segla family neither did he give any designation in his witness statement of himself from the said family apart from identifying himself as cousins to the plaintiff and 1st to 3rd defendant. The apex court in the case of Armah v. Hydraform Estate (Gh) Ltd (2013-2014) 2 SCGLR page 1551, the court affirmed the decision of the trial court that had given judgment for a plaintiff who did not testify but relied on the evidece of only a surveyor who testified as a court expect to determine the case. His Lordship Kanyode JA commentary reproduced on section 12(2) of the Evidence Act, 1975 (NRCD 323) in the case of, KAI V. KISSIEDU (2010-2012) 2 GLR page 57 -75 further states that; “A party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence adduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps the test of sufficiency. It is for this reason that the phrase “on all the evidence” is included in each of the test of sufficiency.” See also the case of Accra Brewery Ltd. V. John Tagoe (2012) 48 GMJ 21 at 44. With this initial concerns and guided by the above decisions, I can safely receive the witness statement of Rubeen Segla as his evidence in chief for and on behalf of the defendants. I will proceed therefrom to discuss the issues as set down for determination. There were many issues raised by the parties as can be gleaned from the directions. Most of the issues are intertwined and so can be considered and resolved as, whether or not the plaintiff or the defendants are the owner of the disputed land. It is important to consider in this present litigation the real nature of the dispute between the parties and the stand taken by each as disclosed from their pleadings, exhibits, and the evidence put before the court. The issues raised by the plaintiff and defendants will be discussed together, and this court, paying particular attention to root of title of this disputants. The plaintiff seeks a declaration of title and can only succeed when he demonstrates to the court that the subject matter land belongs to him. Though the defendants counter claim and bore the same burden, it is the plaintiff who come to court ad must succeed on the strength of his own case. To achieve this the plaintiff appointed his lawful attorney who testified on his behalf, and called three other witnesses in support of his case. The fact of plaintiffs’ fathers’ root of title per exhibit B is denied by the defendants. The Supreme Court in the case of YEHANS INTERNATIONAL LTD. V. MARTEY TSURE FAMILY & RS, (2018) DLSC 2488 speaking per Adinyira JSC, held; “It is settled that a person claiming title hat to prove: i) his root of title ii) mode of acquisition; iii) various acts of possession exercised over the land…….. This can be proved by either traditional evidence or by overt acts of ownership in respect of the land in dispute. Party who relies on a derivative title must prove the title of his grantor. Awuku v. Tetteh (2011) 1 SCGLR page 366.” Defendants challenged the fact of the gifted land in Dzodze Ablorme to him. The case of the defendants however is that, the late Clemence Amegbletor had vast land which land is different from the disputed lots. Now, Exhibit B is the Will tendered by plaintiff as their root of title without objection. According to plaintiff the land was gifted to his father by Minyosode Avugla in 1962. The court noted that the gift was made to one Togbui Adzofiasi II of Dzodze Ablorme. The plaintiff explained that the said person was his same father known in private life as Clemence Amegbletor. Plaintiff did explained that his father was later disstoolled in 1963. This piece of evidence was corroborated by plaintiff’s witnesses some of whom were family affiliation. To the above, the defendants tendered exhibit 1 to show that the Segla family made funeral donation to plaintiff’s family when Clemence Amegbletor died. It is their case that the receipt did not indicate that he was buried as a chief. The court holds the view that, the plaintiff having explained that his father was disstooled in his life time, the response given by the defendant cannot be acceptable in the circumstances. This was in 1963 and perhaps the defendants were young and did not know this as a fact, or just do not want to admit same. (My emphasis) There is an overwhelming evidence before the court that the said Togbui Awuku Adzofiasi II of Dzodze Ablorme was the same as plaintiff’s father called Clemence Amegbletor. The said Minyosede Avugla who made the gift is no stranger to the defendants. This court also did not receive any satisfactory challenge to exhibit B and for that reason I believe that the said Minyosode Avugla made the gift of land as contained therein to plaintiff’s deceased father. Moreover the description of the disputed land per its boundaries, boundary owners given by the plaintiff per exhibit B, strangely is much the same as given by the defendants. The next important issue for determination is whether or not plaintiffs’ father was in possession of the disputed land. The legal effect of possession of land in our jurisprudence is both fact and statute. Section 48 of the Evidence Act, 1975 NRCD 323 provides that a person in possession of a thing including land is presumed to be the owner thereof. Judicial pronouncements on the above principle is legion. AMANKWA V. NSIA (1994-95) PT 2 GBR at page 772 per Acquah JA citing DUNFORD V. MCANNULTY (1883) 8 AC 456 opined that, “A plaintiff who proved his possession of the subject land has established nine(9) out of ten points of the law that he owns it.” Please see also, MARTEY V. MECHANICAL LIOYED ASSEMBLY PLANT LTD (1987-88) 1 GLR 314, SUMMEY V. YOHUNU (1962) 1 GLR 160; NYIKPLOKPO V. AGBEDETOR (1987-88) 1 GLR 165. The plaintiff led credible evidence on crucial facts through his attorney, PW1, 2 and PW3 on his undisturbed possession of the disputed land. Their testimonies were a plus in the cup of the plaintiff in prove of his title. Much the presence of plaintiff’s attorney and Zogli’ occupation and farming for several years were not contested. The said witnesses also explained satisfactorily their involvement in the settlement of the dispute between Charity Dorgbefu and plaintiffs father to which 2nd defendant was copiously involved. Much so, plaintiff’s attorney’s presence on the land is no secret. The defendants admitted that plaintiff’s father put Seth Kodzo and his wife as well as Agbenyega Zogli in possession and they farmed for several years. The material evidence who appeared to testify is plaintiff’s lawful attorney. He testified to the facts and was categorical that the land they farmed at the behest of plaintiff’s father is the same lot in dispute. Frankly speaking the defendants did not challenge the above evidence except to merely deny it. Another material evidence is the introduction of exhibit D by the plaintiff. This is the exhibit witnessed by the 2nd defendant Simon Segla on behalf of plaintiff’s father, when the deceased undertook to give 1¼ of land to Charity Dorgbefu. In exhibit D, 2nd defendant herein, Moses Dogba, Justice Amegbletor’s participation to resolve that issue cannot escape the court. I have painstakingly read carefully the full cross examination conducted by learned counsel for the defendants and no single question was asked in denial of plaintiffs exhibit D. Anin Yeboah JSC in the case of RE PRESIDENTIAL ELECTION PETITION: AKUFO ADDO & 2 ORS, (No. 4) v. MAHAMA & 2 ORS (NO. 4) (2013) SCGLR 73 at page 425; decided that; “I accept the proposition of the law that when evidence led against a party is unchallenged under cross examination, the court is bound to accept that evidence.” As it has been held in countless judicial pronouncements that evidence of a witness unchallenged in cross exanimation is deemed to have been accepted by the other side. Ashanti Gold Co. Ltd V. Westchester Resources Ltd. (2013) 56 GMJ 84 at 128 per Korbie JA. THE BURDEN OF PROOF It is trite learning that, where a party fails to lead evidence on a matter pleaded, he is deemed to have abandoned it. His Lordship Benin JSC in the case of Ofori AGYEKUM V MADAM AKUA BIO (dsd) substituted by AGATHER AMOAH (2016) DLSC 2858 held that, “…… where no evidence is adduced on a fact that has been pleaded, it is treated as having been abandoned by the pleader, the court does not call it into question in its judgment. The courts only duty is to consider the evidence the party has proffered in determining whether or not he has met the right standard of proof.” The court of appeal per Ayebi JA decided in the case of FODJOUR V KAAKYIE (2015) 85 GMJ 61 @ 93 that; “it has to be noted that the courts determine the merits of every case based on legally proven evidence at the trial and not mere allegations or assertions in the pleadings. A bare assertion without adducing evidence in support of that assertion is not evidence to require denial in cross examination by an opponent.” The Supreme Court speaking through Adinyira JSC in the case of ADJETEY ADJIE & Ors V MNAI BIO & Ors (2013-2014) 2 SCGLR 1474 holding 1 said amongst others that; “……….. it is trite that pleadings would not constitute evidence. To hold otherwise would negate the requirements of proof as provided in the Evidence Act 1975 (NRCD 323).” My immediate intuition upon study of exhibit D, leaves me in no doubt that, 2nd defendant was one of the close affinity to plaintiff’s father at that settlement. So when did the 2nd defendants and his cohost did, realized that the land is their family property? My observation from the pleadings leave me in doubt that the plaintiff, 1st 2nd 3rd defendants and witnesses from both side of the divide are of close family ties. For which reason Afedo Segla PW3 had great difficulty testifying for the plaintiff. I observed his demeanor as he stood against exhibit 3, which he regrettably signed in favour of Charity Dorgbefu on behalf of the Segla family. According to him, this was when his siblings resold the land to her after the death of plaintiff’s father. Regrettably, defendants’ exhibit 3 is much the reproduction of plaintiffs Exhibit E except the names and dates stated, where Afedo Segla was the 5th witness for Clemence Amegbletor when he conveyed the land to Charity Dorgbefu in fulfilment of Exhibit D. It does appear to the court that, the claim being laid to the disputed land by the defendants was heightened after the death of plaintiff’s father. Thus, their claim of long possession and the presence of a prayer camp on the land are but of recent developments. Though defendants agreed that plaintiff’s fathers land is different the court received no evidence in proof of that asertion. (My Emphasis). After examining the entire exhibits tendered by the plaintiff’s lawful attorney, and witnesses, the court is satisfied that the plaintiff has been able to discharge the burden of proof laid on him for declaration to the dispute land. The 1st, 2nd, and 3rd defendants are paternal cousins of the plaintiff and were sued in their individual capacity as trespassers unto plaintiffs land. From the statement of defence filed on the 17/02/2020 they introduced the fact that the land was family property and made varied allegation against plaintiff’s father in his life time and counter-claimed as such. Since the defendants counter claimed for the same piece of land they had equal task of identifying the land they claim with clarity, proper identification of its boundaries for the court to find in their favour. Generally, the burden of proof is therefore on the party asserting the facts, with the evidential burden shifting as the justice of the case demands. The standard of degree must also necessarily be proof on the preponderance of the probabilities. The party who asserts the affirmative of an issue has the incidence of the legal burden. POKU V. POKU (2008) 18 MLRG 1 at page 30. SAGOE V. SSNIT (2011) 30 GMJ 133. In the instant case, the defendants have not shown what overt actions of ownership they have exercised on the land over the years. I have said elsewhere in this judgment that the activities of the 1st 2nd and 3rd defendants on the disputed site are of resent development. It is important for the court to evaluate the evidence of defendants based on the claim of the land being family property. Segla family’s ownership. From the pleadings before this court, the 1st 2nd and 3rd defendants were just members of the Segla family as far as the pleadings direct. They gave no indication that they are acting on behalf of the head of family or have brought the matter to his attention. The root of defendants’ title to the disputed land is unverifiable, and weak from the evidence introduced. Throughout the 17 paragraph statement of defence filed by the defendants on the 17/02/200, the witness statements filed by Ruben Segla, equally did not reveal nor trace their root of title. It was under cross examination on 27/01/2023 that the witness began to tell stories as follows; Q. When was the land allegedly acquired by the Segla family? A. It was inherited. It is for our ancestors. My grandfather as well as my father founded the land so it is difficult to say when it was acquired. Q. Which of your ancestors originally acquired or founded the land. A. The land originally belonged to my great grandfather called Togbe Homawu who shared it to his two sons called Kovor and Ahostu. Kovo also had 3 sons who are Demotor Segla Tornu. The land is in Lot a very big so it was shared by Kovor to his 3 sons. The land in dispute is the portion that belong to Segla’s brother Demotor whose portion become that of Segla. Q. the defendants filed a defence on 17/02/2020 A. Yes. Q. I am putting it to you that, all that you have just said are false because the defendants did not say so in their defence or witness statement. A. I am speaking the truth. I am the elder brother of the defendants. The law frowns on a party who departs from his or her pleadings. Order 1 rule 10 (1). A party shall not in any pleadings make an allegation of fact or raise any new ground or claim, inconsistent with a previous pleadings made by the party. ADOM V. MARFOR (2012) 38 MLRG 58 @ 68 per Gbadegbe JSC. He expressed that, “A change in the version of an appellant between the statement of claim and the evidence is fundamental in nature as not to be seen as a variation but a conflict in his case that has the effect of disentitling him to relief on the ground that he had departed substantially from the case and accordingly his case should have been given a favorable consideration by the trial judge.” In all honesty, this is the first time the defendants have introduced any evidence concerning their root of title thus taking the plaintiff by surprise. Flowing from the above narrations, the irresistible inference to be drawn, will be that, the claims of the defendant is a clear afterthoughts. Because, if defendants admit the fact that plaintiff’s father was possessed of vast land at Alagbavi Dzodze where he placed Seth Kodzo and Agbenyegah Zogli to cultivate, it behooves the defendants to show by clear evidence that plaintiffs’ vast land at Alagbavi – Dzodze is different from the land in dispute. The view of the court is that PW3 and 2nd defendant’s endorsement of Clemence Amegbletor’s title in exhibit D and E, and the subsequent denial of plaintiff’s fathers’ title to the disputed site exposes their modus operandi. In the case of OPANIN NANTWI ABABIO & ANO. V. PASTOR NANA ADUSEI (2018) DLSC 259 per His Lordship Baffoe Bonnie JSC, held that, “………… if the evidence that is led is at variance with the pleadings, it cannot be held that the party has proved the case set out in his pleadings.” Please see also HAMOND V. ODOI (1982-83) GLR 1215. It is surprising that Charity Dorgbefu allowed herself to be fooled by the 1st to 3rd defendants in the face of exhibit D, which 2nd defendant witnessed on behalf of plaintiffs’ father proclaiming him to be the owner of the land at Lot B which she later received from Clemence Amegbletor in his life time. Then again the issue of Florence Amuzu was shrouded in incoherent, unsatisfactory, explanations by defendants witness just to make a case. He was clearly exposed when crossed examined on 27/01/2023 by counsel for plaintiff, the following was solicited from him; Q. When did you get to know that Amegbletor sold land to Florence Amuzu? A. Between 2007 - 2010 or 2012 thereabout Q. Was Florence Amuzu alive at the time? A. She was not alive. It was her family members who made us aware she bought the land at that portion. Q. So your claim that Florence Amuzu was present at the hearing of Togbui Gordor II’s hearing is not true. A. I said her family Q. Who are these 4 elders? A. I do not know then. Q. Do you know their names? A. No Q. I put it to you that, your evidence that you hauled Clemence Amegbletor before Togbui Gordor II is false. A. it is true Q. you are making this case up because Florence Amuzu is dead and cannot respond to this allegations. A. It is not true Indeed the law does not require that the court cannot rely on the evidence of a single witness in proof of the point in issue. However the credibility of the witness and his knowledge of the subject matter are determinant factors. Thought witnesses are weighed and not counted by the court there are some averments with all due respect that must be corroborated unless otherwise. In the instant case varied allegations were laid at plaintiff’s deceased father which according to defendants affected his claim to the disputed subject land. It is mind boggling, that defendants could not introduce any other satisfactory evidence except the blurting of Ruben Segla characterized by personal gain and mere rhetoric. Please see the case of WILLIAM ASHITYE ARMAH V. HYDRAFOAM ESTATE (GH) LTD. J4.33.2013 Section 80 of the Evidence Act, 1975 NRCD 323. – One of the means by which a court determines the credibility is through the substance of the testimony of the witness. The burden of proof in civil suits depends largely on the pleadings of the parties, the plaintiff in particular. But where defendant counter claim, he bore the same task of burden as the plaintiff. BWA LTD V. ACKUM (1963) 1 GLR 176 SC. The matters testified to by the defendants witness is found not credible, and lack substance. His statements are inconsistent with what is before the court and I dare say, the evidence has traces of dishonesty, bias, for personal gain, for which reason highly improbable. It is trite learning, and that is the law that, proof of bare long possession of land cannot amount to, or be sufficient evidence of owning good title to land in the face of strong evidence of root of title and also possession of the plaintiff. This court in its candid view upon evaluation of the case of the defendants hold that, it is rather the 1st 2nd, and 3rd defendants who through clandestine, and nefarious activities after the death of plaintiff’s father trespassed unto the disputed portion and started selling same to the 4th to 11th defendants whose activities of development is visible on the ground. I hold therefore that it was unlawful for the 1st 2nd and 3rd defendants to grant the portions of land at Lot B to the 4th 5th 6th 7th 8th 9th 10th 11th defendants as they have no title to same. CONCLUSION In the case of NARTEY V. MECHANICAL LIOYDS ASSEMBLY PLANT LTD (1987) 2 GLR 344, His Lordship Adade JSC explained the rules thus, “A person who comes to court, no matter what the claim is must be able to make a case for the court to consider otherwise he fails. But that is not to say that having succeeded in establishing some case he can then take advantage of conflicts, admissions and other weaknesses in the defendants case.” Please see also ROLAND KOFI DWAMINA V. RICHARD NORTEY OTOO & THE REGIONAL LANDS OFFICER (2017) 113 GMJ page 57. ESSENCY SOCRATES KWADJO V. SPEEDLINE STEVEDORING & CO. LTD (2016) 2 GMJ 66 at page 90; on the above rules of court. With that said, I am satisfied that the plaintiff has made a good case, having discharged the burden of prove under section 10, 11 and 12 of the Evidence Act, 1975, (NRCD 323). Section 12 provides as follows; Proof by preponderance of the probabilities. (1) Except as otherwise provide by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) Preponderance of the probabilities means that degree of certainty of a belief in the mind of the tribunal of fact or the court b which it is convinced that the existence of a fact is more probable than its non-existence.” Flowing from the above discussions therefore, the defendant having failed to adduce any credible evidence before the court in proof of their counter, I am left with no other option than to dismiss their claim and same stands dismissed. The plaintiffs have on the balance of probabilities establish proof of his case and without hesitation grant his reliefs. Before I make final decrees on this matter, one of the reliefs sought (relief iv) by the plaintiff is damages for trespass. The law is that plaintiff’s 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 the land against the whole world except someone having a better legal right to possession. The claim as evidence by plaintiff is trespass referred to as quare clausum fregit which is a tort of unjustifiable interference with land in the possession of another person. Please see the case of ASHAR V. HITLOCK (1965) 1 QB 1, MAJOLAGBE V. LARBI & ORS (1959) 1 GLR 192, on the above principle. From the record of proceedings before the court there are overwhelming evidence that the land sold to 4th to 11th defendants by 1st to 3rd defendants are being developed at speed of light until they were restrained by the orders of this court. These defendants have made no denial of the images exhibited by the plaintiff. I will for the above reason hold the defendants liable for trespass for which the defendants are entitled to damages. The court in the circumstances afore said grants all the reliefs of the plaintiff and declare as follows, a. Declaration of title in the disputed land as endorsed by the plaintiff in Lot A and Lot B lying and being at Alagbavi-Dzogze. b. Recovery of possession c. The court grants perpetual injunction restraining the defendants, their agents, workmen, privies and anyone claiming title through them, for entering, interfering with plaintiffs’ right to the disputed land. d. General damages for trespass in the sun of GHC40.000.00 e. The court adjudges cost of GHC10.000.00 in favour of the plaintiff as cost follows the event. This is to compensate for expenses reasonably incurred by the plaintiff in prosecuting this case. To that end the case of the plaintiff succeeds so judgment for the plaintiff. The lawyers failed to address the court to submit closing legal remarks to assist the court or their client’s case thought directed. (SGD.) CHARITY A. ASEM (MRS) JUSTICE OF THE HIGH COURT LEGAL REPRESENTATION: SENANU AFAGBE FOR PLAINTIFF – ABSENT GORDON AKPADIE FOR DEFENDANTS - PRESENT jd* 21