AZANI & ANOTHER VRS NZEMA EAST DISTRICT ASSEMBLY & 2 OTHERS (H1/32/2022) [2023] GHACA 180 (13 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA A. D. 2023 CORAM: JUSTICE MARGARET WELBOURNE (MRS.) J. A (PRESIDING) JUSTICE SOPHIA ROSETTA BERNASKO ESSAH (MRS.) J. A. JUSTICE JEROME NOBLE-NKRUMAH J. A. CIVIL APPEAL NO.:H1/32/2022 DATE: 13TH JULY, 2023 1. ERZOAH AZANI 2. NANA ANOCHIE VRS - PLAINTIFFS/RESPONDENTS 1. NZEMA EAST DISTRICT ASSEMBLY 2. NANA AWULAE BLAY 3. KOJO AZANI -1ST DEFENDANT/APPELLANT 2ND DEFENDANT __________________________________________________________________ J U D G M E N T SOPHIA R. BERNASKO ESSAH (MRS) JA: This is an appeal at the instance of Defendants/Appellant, against the Judgment of the Circuit Court, Takoradi, delivered on 15th November, 2011 on the following grounds: a. The judgment is against the weight of evidence. Additional grounds: b. The learned trial Judge erred in giving judgment for the plaintiff when they have not proved the boundary between their land and the Defendant’s land. c. The learned Trial Judge made wrong inferences from the facts on record. In this delivery we will refer to the parties with the description they carried at the Trial Court: the Plaintiffs/Respondents as the Plaintiff and the Defendants/Appellant as the Defendant. The genesis of this appeal, is traceable to a suit initiated on the 28th of August, 2006 by Plaintiffs as represented by the 1st Plaintiff as head of the Ezhole Stool family of Anochie and the 2nd Plaintiff as chief of Anochie and also a member of the stool family, against the defendants the Nzema District Assembly, as 1st Defendant. The Plaintiffs sought a recovery of possession of the coconut farms situate and lying on Anochie and on the Ezhole family land and bounded by the sea, Asenda and Atuabo and then their own land. They alleged that on or about 1920, the Government requested for land to plant coconut imported from abroad. Their predecessors therefore released a portion of the land which shares boundary with the stool of Atuabo for the planting of same. The farm was cultivated on a portion of Atuabo land and Anochie land. However the District Assembly had recently released the entire farm to the stool of Atuabo. Several notifications by the Plaintiffs to the assembly of the mistake and requests that the portion of the plantation being on their land be given to the Anochie stool to be harvested and the proceeds used and enjoyed by the family and people of Anochie had not yielded any results. Hence the action. Pursuant to an application by the 2nd and 3rd Defendants, being the Paramount Chief/Omanhene Eastern Nzema Traditional area and his head of family respectively, they were joined to the suit as co-defendants and the writ amended to reflect same. Before trial commenced the 2nd Defendant passed away and 3rd Defendant was substituted. 1st Defendant having filed a conditional appearance, failed to file a defence and judgment in default of same was granted on the 15th of May, 2007. In their defence, the 2nd & 3rd Defendants said that their stool family owned all lands at Atuabo and granted same to the Government of Ghana for the said coconut plantation in 1920. That the coconut farm has been under their control, ownership and possession since 1920. They alleged that the Plaintiffs action is statute barred if even they have any interest in the farm and are therefore estopped by acquiescence and laches from mounting the present action. In reply the Plaintiffs joined issue with the 2nd and 3rd Defendants. They denied that the action is statute barred in that it was only about 5 years prior to the initiation of the suit that the Defendants took control and possession of the farm. They also said that they have a plan covering their lands and that the said farm is on part of their lands. They described their side of the lands released for the plantation by their predecessors as bounded on one side by Atuabo and on the other side by the Plaintiffs’ land. Also that there is a lake on their portion of the farm which is a fetish to the people of Anochie called Benzabema and to whom they have performed rites over the years. Pleadings having closed, the following issues were set down for trial: a. Whether part of the coconut plantation is on the Plaintiffs land. b. Whether the Plaintiffs are estopped from claiming their interest in the farm. c. Any other issues discoverable from the pleadings. Additional Issue d. Whether or not the Plaintiff’s action is statute barred. Trial commenced with the 2nd Plaintiff testifying for himself and on behalf of the 1st Plaintiff. The Defendants having failed to participate in the trial, the Court closed the case and delivered its judgment on 29th July, 2008 entering judgment for the Plaintiffs. This was however set aside by a differently constituted Court, when the Court was satisfied upon application by the 2nd and 3rd Defendants that they were not served with hearing notices to participate in the trial. Proceedings were adopted and trial continued to the end. In its Judgment, the Trial Court, found as undisputed the fact that the entire land on which the coconut plantation is situated was compulsorily acquired by the Government for cultivation of coconuts on commercial basis in the 1920s. That the Plaintiff as well as the Defendant represented by Kojo Azani 3rd Defendant, are agreed that the coconut plantation is spread out over lands belonging to both the Anochie and Atuabo. That the DW1’s testimony that he would be surprised to learn that the Defendant had said that part of it belongs to Anochie, contradicts that of the Defendant. Also DW2 contradicted himself when he said all the coconut trees in dispute are on Atuabo side yet would not be surprised to learn that Defendant had said part is on Anochie land. That worse of all was the claim by DW2 that the land and everything on it belongs to the omanhene of East Nzema Traditional council Awulae Amihere and therefore none of the parties can lay claim to it. The Trial Court was satisfied that Plaintiff’s only interest is in the 1½ miles square which is separated from Atuabo land by the Benzabemma stream. Further that although the Defendant denied that the Benzabemma stream serves as the boundary between Anochie and Atuabo lands, he failed to tell the Court where the boundary line is. The Defendant had alleged that the boundary pillars demarcating the respective coconuts of Anochie and Atuabo have been removed. That this trespass by the Plaintiffs had been reported to the East Nzema Traditional Council as a result of which the Registrar of the Council came to see what was on the ground. However, the Defendant failed to tell the Court what the findings of the Council were and what the Council did thereafter. The Defendant did not also say that there was a declaration that the Plaintiffs had indeed trespassed and how far they had done so. The Trial Court found that the Plaintiffs were only satisfied with taking over the area covered by their land. And this they were able to determine with Exhibit “A”, which is a site plan covering a total area of 2542.48 acres. This site plan the Trial Court found credible documentary evidence because it was executed on 10th October, 1910, and could not have been done in anticipation of the suit. Additional finding of the Trial Court was that, the area where the stream lies is quite close to the border of Anochie and Atuabo lands. And the area is the 1½ miles square which is being claimed by the Plaintiff, Reference page 146 of ROA. Also that the coconut plantation is on part of Plaintiff’s land and this is the land verified in Exhibit “A”. In the Trial Court’s view the Defendant though conceding that part of the coconut farm was on lands belonging to both parties were unable to positively identify and describe their boundary lines, yet, ridiculously claim everything. In respect of issue 2, the Trial Court held that although the Defendant stated that the coconuts belonged to Government who compulsorily acquired the land in 1920s, yet, Defendants did not tell the Trial Court the year in which they were able to persuade the Government to relinquish its hold on the plantation to them. But according to 2nd Plaintiff that was done about 5 years ago when the Defendant requested to be given leave to use the proceeds to organise the funeral of the late omanhene of Nzema East Traditional Council and this evidence was not contradicted. Therefore, given that the suit was filed in August, 2006 it cannot be said that the Plaintiffs have been indolent and estopped by acquiescence from claiming what is lawfully theirs. The Plaintiffs are not estopped by acquiescence thereby. Having concluded that the case of the Plaintiffs was more probable than not, their reliefs were granted. The Defendants excluding the 1st Defendant appealed the Judgment on 23rd January, 2012 on ground (a) above. However, the Court of Appeal differently constituted and sitting in Cape Coast on the 29th of May, 2017 ordered that a composite plan be drawn up by a licensed surveyor to enable them determine the correct and true boundary between the parties. This was done and the surveyor was cross examined by both parties before the trial Court. The plan was marked as Exhibit CW1, and together with the evidence of the surveyor remitted to the Court of Appeal for judgment. Needless to say, the order of the Court of Appeal was made pursuant to Rule 26 of the Court of Appeal rules wherein adduction of fresh evidence is provided in the following terms: “26. New Evidence on Appeal. (1) It is not open as of right to a party to an appeal to adduce new evidence in support of the original case but, in the interest of justice the court may allow new evidence to be adduced”. Our understanding of this rule is that fresh evidence may be allowed to be adduced in the interest of justice. Even though this right appears to be conferred on the parties we are of the view a court should have the same right if the justice of the case so demands. It is this sense of justice that in our view the Court of Appeal differently constituted ordered the said composite plan to be drawn up. Pursuant to leave granted by the Court of appeal differently constituted, the Defendant added grounds (b) and (c) to the grounds of appeal as indicated above. In his submissions before this Court, counsel for the Defendants argued grounds (a) & (b) together and contended that since by the endorsement on the writ of summons the Plaintiffs made no claim of title to the land on which the coconut planation in dispute is situate, and the Defendants did not file any counterclaim for title to land, then the Trial Judge erred in the application of the law and the finding that the coconut plantation is on part of Plaintiffs land. That by this finding the court engaged itself in the business of conferring unsolicited remedy on the Plaintiffs rendering the judgment perverse. The entire judgment having been solely premised on that wrong finding same ought to be set aside. He contended further that although the Plaintiffs did not provide evidence in respect of their title to the land, the Trial Court notwithstanding entered judgment which ostensibly vests title to the land on which the disputed coconut plantation is situate in the Plaintiffs. Counsel for Defendant also submits that in cross examining the surveyor, on his Exhibit CW1, the Plaintiffs failed to lead any cogent and relevant evidence to establish their claim to the portion of the coconut plantation in dispute on the balance of probabilities. That Plaintiffs rather dwelt on the location of Ghana Gas installation a facility which was neither the basis of Plaintiffs’ claims nor had it any relevance for the determination of their claim to portion of the disputed coconut plantation. Counsel for Defendants additionally contended that the nature of the responses by Plaintiffs to cross examination questions brings up the question of where the boundary as alleged to be between Anochie land and the paramount stool land is located. That the plaintiff tendered a self-procured plan exhibit “A” that is not in the least helpful in establishing the exact location of the coconut plantation and the alleged relative portions of the Anochie and paramount stool family’s lands. That juxtaposing the evidence of Plaintiffs against what is represented on the plan and which they tendered as Exhibit “A” certain questions arise being whether: 1. “The Bawa bema lake or water body is the same as Benzabemma creek written on the plan, Exhibit “A” 2. If so is it the little dark mark beneath the letter B of Benzabemma and to the left of the letter C of Creek as written on the plan; 3. If that is the water way that separates the Anochie portion of the plantation from Atuabo portion does not the boundary extend into Anochie stool land? 4. Is it possible for the Plaintiffs to be put into possession of a definite piece of land having regard to the evidence given and the plan – a plan without survey beacons and grid lines showing longitudes and latitude?” He submitted that having regard to the totality of the evidence the judge should not have stated that “ I find accordingly that the coconut plantations is on part of plaintiffs land and that is the land verified in Exhibit “A”. He concluded that the Plaintiffs, having failed to determine the exact boundary, if indeed it existed at all between the parties, there is the need for the judgment to be set aside and the case heard de novo in line with decisions in Zain communications limited vrs Apratwum (2013) 54 GMJ 81 and Yawson substituted by Tulasi vs Mensah & Mensah (2011) SCGLR 568. In reaction to the submissions of Counsel for Defendants, Counsel for the Plaintiffs submitted that given the fact that the paramount chief of Atuabo is in charge of all lands in Nzema East, he exercises the allodial interest in the Eastern Nzema stool lands. Below him are chiefs of whatever designation who control their own defined areas. That the chiefs use their lands to serve the paramount. That such is the accepted practice in customary law. He contended that the fact that the Defendants in their evidence in chief admit that there are boundary pillars from Atuabo and Anochie demarcating where their respective coconuts are, is sufficient to say that the Defendants had from time immemorial recognized that indeed certain stools share boundaries with Atuabo one of which is Anochie. Therefore it will be a contradiction for them to argue at the same time that all the lands in eastern Nzema area were the indivisible properties of the paramount chief of Atuabo. He contended further that the Plaintiffs had been able to establish their boundaries with respect to the disputed lands. This they had done by the endorsement on the Writ of summons. Also the 2nd Plaintiff in his evidence explained that there was a small lake called Benza Bemma on their portion of land which was released to the government for the coconut project. The lake is the fetish of Anochie people, and their family had been performing rituals to the lake over the years. That the Defendants conceded that the water body Benza Bemma alleged by the Plaintiffs to be the boundary between Anochie and Atuabo really lies in the plantation. They also said they knew the woman called Kplakpo who was a fetish priestess of the stream was from Anochie. However, although alleging that there were demarcation pillars between Atuabo and Anochie the defendants could not back same with any proof. Counsel contended that this shows that by the preponderance of the probabilities the Anochie version of the story of their boundary could be true as against Atuabo who had no evidence to support their bare statement that some pillars served as boundary lines. Accordingly, he submitted that the Plaintiffs were able to discharge the burden of providing their boundaries whereas the appellants were not. He contended therefore that the submission of Defendants that the judgment is against the weight of evidence, as well as that the Plaintiffs could not prove their boundary should be rejected. Regarding the submission of the Defendants’ Counsel that it was not possible for the Plaintiffs to be put in possession of a definite piece of land having regard to the evidence given and the site plan, Exhibit “A”, Counsel for Plaintiffs said since both parties came to a conclusion that Anochie indeed has a share in the coconut plantation, then the only issue was the boundary, which the Plaintiffs had been able to prove by documentary and oral evidence. Regarding the ground of appeal that the Court made wrong inferences from the facts on the record, the Counsel for the Plaintiff argued that if even it was the paramount stools prerogative to enter into the said transaction with the government the fact still remains that the possessory/usufractuary rights of the sub-stools such as that of the Plaintiffs cannot be ignored and same was rightly acknowledged by the Judge. Looking at the grounds of appeal, it appears to us that they can all be subsumed under the omnibus ground - the Judgment is against the weight of evidence-which demands that we examine the whole record of appeal whether there is any factual reason why the Judgment appealed against should not be set aside. Has the trial Judge refused or misapplied any law in the application of the evidence which needs review for a favourable outcome to the Appellant? We wish to note that the Appellant, Defendants in this case, also has the duty to draw our attention to any such omission by the Trial Judge which he believes will assist this Court question to his advantage, the final judgment of the Trial Court. The case authorities on this duty are legion. We pick Djin v Musah Baako (2007-2008) SCGLR 686, one of several cases on the point to illustrate the nature of the duty. “where an appellant complained that a judgment is against the weight of evidence, he is implying that there were certain piece of evidence on the record which if applied in his favour, could have changed the decision in his favour, certain pieces of evidence have been wrongly applied against him. The onus of which is on such an Appellant to clearly and properly demonstrate to the Appellate Court the lapses in the judgment being appealed against”. Other cases on the point worth referring to are Tuakwa vrs Bossom (2001-2002) SCGLR 61, Abbey vrs Antwi (2010) SCGLR 17. Also to be noted is the need to accept findings of fact made by a trial court as sacrosanct unless the findings are not supported by the evidence. Mention of two of the several authorities on this principle should suffice for our purpose. The case of Amoah vrs Lokko (2011) 1 SCGLR 505 and Oxyair vrs Wood (2005-2006) SCGLR 1057 come to mind. Did the trial judge wrongly balance the evidential scale which resulted in the plaintiffs losing their case? As aforesaid, The Defendant contends that the Plaintiffs made no claim of title to the land, yet the Trial Court entered judgment which ostensibly vests title to the land on which the disputed coconut plantation is situate, in the Plaintiff. That the Court erred thereby. It is our respectful view that the determination of issue 1 as set down by the Plaintiff before the Trial Court, reference page 34 of ROA, being “Whether part of the coconut plantation is on the Plaintiff’s land” will necessarily involve an inquiry into whether the land belongs to Plaintiffs. And is also a call to a determination of whether or not the Plaintiffs have title to the said land. Again looking at the pleadings of the plaintiff on page 2 of the ROA, they claim ownership of a portion of the land released to the Government by their predecessors for coconut planting and say that the coconut being on their land must be enjoyed by the family and people of Anochie. Their attempts to get the District Assembly to release their farm/land has proved futile. On the other hand the co-defendants also alleged the Plaintiffs did not own the land in order to be entitled to the coconut farm thereon. That their stool family owned all lands at Atuabo and granted same to the Government of Ghana in 1920. They also alleged that their stool has been in control, ownership and possession of the coconut farm since 1920. In fact, in their evidence in chief, they alleged that the Plaintiffs had trespassed on their land and gone beyond their boundaries. This then put in issue the Plaintiffs title to the land on which the coconut plantation was grown. Plaintiffs proceeded to seek the relief they did as per the amended Writ of Summons, as follows: “plaintiffs for themselves and on behalf of Ezhole family of Anokye claims against the Defendant and Co-defendant is for a recovery of possession of the coconut farms situate and lying on Anochie and on the Ezhole family land and bounded by the sea, Asenda and Atuabu and then their own land.” It is trite that in deciding the true nature of a claim, matters to take into consideration include the pleadings, issues and reliefs sought or the actual effect of the reliefs, regardless of the words used or the manner in which the claim and reliefs are couched. Clearly, the effect of the reliefs sought is a determination and declaration of whether Plaintiffs have title to the land on which the coconut plantation they seek to repossess is situated. That apart the case of Odonkor and Others vs Amartei (1992) 1GLR 577 gives guidance of what constitutes an action for declaration of title. It was held that an action was for a declaration of title if (i) the action was between adjoining land owners and one committed a trespass over the other's land, i.e. a boundary dispute; or (ii) where the party had been dispossessed of land by reason of adverse claims or possession made thereto or an actual right of occupation and enjoyment thereof. The claims of the plaintiffs fall within the category of what the boundary is between the parties, as well as repossession of land and coconut Plantation taken over by the Defendants. In any case, it is our view, that in order that all matters in controversy be determined, and in order to bring finality to the suit, as well as the requirements of justice, the Trial Court, rightfully made a determination of who had title to the land on which the coconut plantation in dispute was planted. We therefore do not think the complaint by the Defendants is legitimate. And hold same as misconceived. Counsel for Defendant has another query with the judgment of the Trial Court. It is that if the Trial Judge had examined the evidence on record, he would have realized that the Plaintiffs did not provide any proof of title to the land, to warrant a decision in their favour, in that they failed to establish the mode of their acquisition, the root of their title and the definitive boundaries. In our review of the ROA, we observed that the Plaintiffs testified that their title to the land was by devolution from their head of family one Nyanzu Nyameke 1 and his head of family Kwaw Mensah who granted the land to the Government for the cultivation of the coconut. The Plaintiffs also trace their claim to the land to a stool. During cross examination of 2nd Plaintiff on page 95 of ROA he testified as such as follows: Q: Are you claiming the land as stool property or family property or personal property A: stool property. They also recognize the paramouncy of the Omanhene of East Nzema district as their overlord, although they say that they own individual lands. On page 96 of ROA the following transpired during Cross Examination of the 2nd Plaintiff who is the Chief of Anochie as follows: Q: This Anochie Stool, you are under the omanhene, isn’t it A: Yes we are Q: And that you are aware that in your area all stool lands belong to the Omanhene. A: we own our individual lands. Q: the portion of land that you claim to be yours all fall under the stool land of the Omanhene. A: Each of us own our lands, but we are all at the service of the omanhene. It is worthy of note that none of the above testimonies of the Plaintiff were challenged by the Defendant in cross examination. They are deemed to be true therefore. In the Case of Takoradi Flour Mills vrs Samir Faris 2005-2006 SCGLR 882 the Supreme Court held that the law is well-settled that where the evidence led by a party is not challenged by his opponent in cross examination and the opponent does not tender evidence to the contrary the facts deposed to in the that evidence are deemed to have been admitted by the opponent and must be accepted by the Trial Court. The Defendants did not produce any contrary evidence. In deed the defendants conceded that the lands under the pararmountcy /omanhene were under stools. Reference page 112 of ROA, evidence in chief of Defendant, Awulae Abusuapanin Azi Kojo, (Head of family of the first co-defendant‘s family whom he substituted upon 1st co- defendant’s death). He testified as follows: “The paramount chief of Atoabo is in charge of all lands in Nzema East. They are under his control. For a long time we had only sub-chiefs called odikro under him. At last chiefs were appointed and named to take care of their various jurisdictions.” Flowing from the above testimony of the defendant and the evidence in Cross Examination of the 2nd Plaintiff, we will agree with counsel for the Plaintiffs, when he said in his submissions to this Court that the nature of the relationship between them reflects the tradition that the paramount chief exercises allodial interest in the Eastern Nzema stool lands. And below him are chiefs who control their own defined areas. That the respondent being a stool under the paramountcy holds usufractuary interest in the land. The legal authorities are legion on the relationship between a paramountcy and its sub- stools regarding ownership, alienation of lands and the rights of the usufractury in relation to the allodial owner . Reference cases of Nkwantabisah III vrs Bonsu (1997-98)1 GLR Gyabour & Others vrs Ababio (1991) 2 GLR 416 at 434; Mansu vs Abboye and Anor (1982-83) GLR 1313-1323 CA; Ohimen v. Adjei (1957) 2 W. A. L. R. 275. The contention of Counsel for Plaintiff we consider as indisputably a firm legal position. As aforesaid Counsel for the Defendants hinged his appeal on his claim that the Plaintiff was granted judgment even though they failed to prove the boundary between their land and the defendant’s land. In so saying counsel for the defendant, describes Exhibit “A” as a self-procured plan and a weak attempt by the Plaintiff to establish its boundary. Our review of the ROA shows otherwise. In defining its boundaries, Plaintiffs in their amended Writ of Summons, claimed as follows: “Plaintiffs for themselves and on behalf of Ezhole family of Anokye claims against the defendant and co-defendant is for a recovery of possession of the coconut farms situate and lying on Anochie and on the Ezhole family land and bounded by the sea, Asenda and Atuabu and then their own land. The 2nd Plaintiff also testified that the land released by the 1st defendant shares boundary with Atuabo, the sea and Asemseisoa and that the 1½ miles square land forms part of the Anochie lands. (Reference Page 64 of ROA.) Also, the 2nd Plaintiff, Nana Anochie (Chief of Anochie) on page 64 of ROA delivered himself as follows, in examination-in-chief. “On our portion of the land released to the assembly here (there) is a small lake called Benzamema. The lake is the fetish of Anochie People, my family has been performing rituals for the lake.” He also testified as follows during cross-examination on Page 92 of ROA: Q: What portion belongs to co-defendant? A: There is a water body that looks like a lake called Bawa Bema. Theirs is beyond the water body. Additionally, during Examination in Chief of PW1, Kwesi Mensah, he also described the boundary of the disputed land as follows: “there is a coconut plantation at Anochie. The coconut plantation extends to Atuabo Land. There is a stream called Benzehema. It is within the coconut plantation but within the Anochie side. The stream is a fetish. He further testified and said during Cross-examination: Q: Can you tell us those the land shares boundaries with? A: I only know about the water way separating Atuabo and Anochie and say the land is at Anochie. These features relied on by the plaintiff have always been accepted identities for boundaries. In the case of Ebusuapanyin Kweku Assafuah and 2 ors vs the Regional Secretary Land, Commission secretariat Sekondi, No J4/17/2013 dated 12th March 2014, it was held as follows: “it should indeed be noted that, in the absence of verifiable scientific survey plan, overt acts of physical features like anthills, cemeteries, old settlements, sacred groves, streams, rivers and other features have always been accepted and used to indicate boundary features between two adjoining lands.” Defendant did not challenge the existence of these features. They confirmed that there was a lake, Benzehema Lake, on the side of the Plaintiffs land which was serviced by way of performance of rituals by the plaintiffs. The plaintiff did not only rely on these features they also tendered Exhibit “A” which is a site plan of the entire Anochie land. This site plan identifies the lake referred to by the Plaintiffs as Benzabemma Creek. It is described as the property of Anochi Stool and is situate at Anochie. It is bounded by Atuabo lands, Menzezor Lands, Beku lands and the Gulf of Guinea. We find no reason to doubt its authenticity. It was executed on 10th October, 1910 by a licensed surveyor in Cape Coast and covers a total area of 2542.48 acres equivalent to 3¹/3 Square miles. We agree with the trial court that it could not have been done in anticipation of the suit. Counsel for Defendant criticizes Exhibit “A” and says is not helpful in establishing the exact location of the coconut plantation and the alleged relative portions of the Anochie and the Paramount stool family’s lands. We have two issues with this contention. The first is that reading the ROA, we do not see that the defendants at any point in time during the trial challenged Exhibit “A”. It lies ill in the mouth of the counsel for the defendant to now on appeal seek to discredit Exhibit “A” in his written submissions. Secondly, we find surprising Counsel for Defendants reliance on only Exhibit “A”, to say that Plaintiffs failed to prove their exact boundary, in that at the time of writing his submissions to this Court, the Composite plan ordered by the Court of Appeal differently constituted had been drawn up and admitted into evidence by the Trial Court and had therefore become part of the record. The submissions then of the Defendants’ Counsel ought to have been taken cognizance of the new evidence. Pursuant to the Court order for a composite plan, the land boundary of the Plaintiffs as per their site plan was plotted on the composite plan and edged blue dashed lines. Also plotted was the land boundary of the Plaintiffs coconut plantation as shown to the surveyor by the representatives of the Plaintiffs same was edged in blue. Similarly the land boundary of the Defendants coconut plantation as shown to the surveyor by the representatives of the Defendants was plotted and marked green. The land boundary of the Defendants coconut plantation as per their site plan was also plotted and edged in green dashed lines. The document was marked as CW1 by the Trial Court and the parties crossed examined the surveyor on it. Looking at the composite plan, it is clear that the coconut plantation of the Plaintiffs is within the land boundary of the Plaintiffs. The land boundary was picked from the site plan prepared in 1910, Exhibit “A”. It is also evident that the area claimed by the defendants as being the boundary of their coconut plantation as per their site plan is within the Anochie lands. Also the land boundary of the Defendants coconut plantation as shown to the surveyor by representatives of the defendant edged in green is also within the land of the Plaintiffs. It is our view that the composite Plan prepared pursuant to the order of the Court of Appeal differently constituted, resolved the issue of the correct and true boundary between the parties. We reject the contention of Counsel that the exact boundary of the land the Plaintiffs are claiming has not been clearly described and identified as demanded by the legal authorities. With the fresh evidence, we are satisfied that on the balance of the probabilities, the Plaintiffs have proved their claim to the land and the coconut plantation thereon. From this opinion rendered in this delivery, we are clear in our minds that Defendants grievance as formulated in their grounds of appeal lacks merit and dismiss it in its entirety. Costs of GH¢10,000.00 awarded in favour of Plaintiffs/Respondents. …………………………………………………… JUSTICE SOPHIA ROSETTA BERNASKO ESSAH (MRS) (JUSTICE OF THE COURT OF APPEAL) SGD I AGREE SGD …………………………… JUSTICE M. WELBOURNE (MRS) (JUSTICE OF THE COURT OF APPEAL) I ALSO AGREE SGD ……………………………………. JUSTICE JEROME NOBLE-NKRUMAH (JUSTICE OF THE COURT OF APPEAL) COUNSEL: PATIENCE ABLAH AMANSIE-BOATENG FOR THE PLAINTIFFS/RESPONDENTS - PRESENT GEORGE DOFAH FOR DEFENDANTS/APPELLANTS - ABSENT 18