Djerakor Vrs Adzire & Another [2023] GHAHC 197 (28 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION CORAM: CHARITY A. ASEM (MRS.) J SUIT NO. E1/29/2015 DATE: 28TH JULY, 2023 EMMANUEL KWASI DJERAKOR : PLAINTIFF VRS. MENSAVI ADZIRE SUBT. SABLAH MATHEW KODZO : DEFENDANT Parties – Lawyers: Godwin Kporble for the Plaintiff S. M. K. Dzikunu for the Defendant JUDGMENT The plaintiff, the head of Djerakor family of Devego sued the defendant per the instant writ of summons and claimed the following reliefs. A. Declaration of title to all that piece and parcel of land situate, lying and being at Agblekpui, Devego and particularly described as follows: - On one side with Mr. Zogli. - On another side with Mr. Kwaku Kporble. - One another side with Kofi Daklo. - On the last and fourth side with Mr. Besah Kponyo. B. General and special damages for trespass. C. Recovery of possession. D. Perpetual Injunction restraining the defendant, his privies, assigns, agents, servants, workers and anybody claiming title through him from ever having anything to do with the disputed land whatsoever. E. Punitive cost. F. Any other remedies/reliefs that the court deems fit and appropriate. CASE OF PLAINTIFF It is plaintiff’s case that the land in dispute belongs to his family which is situate at Agblekpui – Devego. Plaintiff traced his root of title through its founder his ancestor called Kporkplordekakpuia. The said ancestor had no male child. According to plaintiff Madam Awleshie and Xorborekpoe were his nieces. That the plaintiff’s family and defendant’s family descend from two different lines of Xorgborekpoe and Awleshie respectively. Plaintiff contend that both families have their separate land which they farm for many years until recently when defendant started to trespass unto portions belong to plaintiff’s family leading to conflicts between them. The plaintiff maintained the boundary as stated above. According to plaintiff the boundaries of the land are marked with Anya trees, Silk Cotton tress-Kodzilifo (boundary shown by hoe) that the old Devego – Tadzewu road has affected the land to some extent. The plaintiff continue that, the Sabbla family invited them before Torgbe Gbedela, Regent of Dafornyami, a suburb of Devego to discuss the issue over the land. At Torgbe Gbedela’s sitting a member of the Sabbla family called Mr. Holi Sarblah appeared and postulated that, Djerakor married a woman called Nkunorgbi from the Sarblah family, based on which they were allowed to farm the disputed land. This postulation was timeously rejected by the plaintiff. Tthat the said Nkunorgbi was a daughter of Viglo a brother of Kpegah from a different family. The matter was again put before Togbe Adigblor, where defendant claim the Djerakor’s were strangers who came to ask the land for farming. According to plaintiff the mother of the Djerakor came from Atsiatite Devego. Plaintiff continued that the defendant does not know much about the history of the disputed land where plaintiff’s family have occupied for many years. They are estopped by conduct, larches, acquiescence and statute of limitation from challenging the plaintiff title to the disputed land. CASE OF DEFENDANT Upon service the defendant caused a statement of defence to be filed on his behalf on the 2/06/2015. He however did not counter claim. In the 19 paragraph statement of defence, the defendant vehemently denied the claims of the plaintiff. According to defendant, the Djerekor’s are the licensees of the Sabbla’s. That the land was given by one Sabblah Atsakpo the grandfather of the defendant. Though defendant admits the boundary owners stated by plaintiff, defendant will say that except Bessa Kponyo family, all the plaintiff’s boundary owners are the grantors of the Sabblah family. Defendant denies that Kporkplodekakpui was the founder of the disputed land. Defendant’s story was that, the said Kpokplordekakpuia was granted land by the defendant’s family. He was a wood carver. According to defendant, the said old man died and the Sabbla family took possession of the land. The switch house he built collapsed as it was never used. According to defendant, plaintiff summoned the defendant before Torgbe Gbedela and his panel in respect of this dispute. That the panel after deliberation made an award in favour of the defendant’s family and declared Sabbla family as owners of the disputed land. Wherefore the panel directed plaintiff’s elder brother to approach the Sabbla family for grant of building land if they need land. An award was published in favor of the Sablah family and plaintiff was directed to pay all expenses of the Sarbla family, which they have refused to pay. Defendant and witnesses were categorical, that the disputed land belongs to the defendant’s family and have the right to grant same to others as they decide. In a reply filed on the 10/12/2015, the plaintiff denied the defence and will put defendant to strict proof thereof of all the averments. At close of pleading; direction was conducted and the following issues set down for trial of the dispute between the parties. Issues: A. Whether or not the land in dispute was founded by Kporkplodekakpui. B. Whether or not the parties descended respectively from Xorgborekpoe and Awleshie. C. Whether or not the land was given to Djerackor by Sablah Atsakpo to farm on as a licensee. D. Whether or not the plaintiff is entitled to his claims. E. Whether or not there were any valid arbitrations or settlement between the parties before Togbe Gbedela and Togbe Adigblor which are binding on the plaintiff. F. Any other issues raised and arising out of the pleadings The parties filed witness statement as directed by the court. The plaintiff called three other witnesses in support of his case. Defendant also called three witnesses to state his case. None of the parties presented any documentary evidence. The parties led purely traditional evidence. During the cause of proceedings, the defendant died and upon an application brought under Order 4 r. 6 of C. I. 47 of the High Court Civil Procedure Rules of 2004, (change of parties by reason of death), Sabbla Mathew Kodzo was substituted. The writ was amended to reflect the substitution. A party in a land case cannot rely on the weakness of his opponent’s case to succeed. Either party must discharge his or her burden of proof. Section 11(4) of the Evidence Act NRCD 1975 323. This position is made manifest in the decided case of Albertina Amakumah Odartey vrs. Rebecca Clouch (1991) 1 WASC 129. In Kpakpo Brown vrs. Bosontwi & Co (2001 – 02) SCGLR page 876; the Supreme Court per Ampiah JSC stated that, “The rule is that, since both parties were claiming title to land, they had equal task of identifying the land they each claimed with clarity, that they discharged by showing clearly all the boundaries of the land and what overt actions of ownership they have exercised on the land over the years.” But the initial burden of proof is on the plaintiff in a civil action. A litigant who is a defendant in a civil case does not need to prove anything and that, it is the duty of the plaintiff who took the defendant to court to prove what he claims he is entitled to from the defendant. Adjetey vrs. Agbosu & Ors. (2006) 2 MLRG 111. In the instant case the defendant did not counter claim even though in the body of the defence, a clear case of counter claim was raised but failed to particularize it under a counter claim. It cannot escape the court from the pleadings that both parties are laying claim to the same parcel of land, to which they led traditional evidence in attempt to proof their title and ownership to the disputed subject matter land. I will proceed therefrom to discuss the issues raised by plaintiff at directions. The defendant did not raise any issues to be discussed in their favour. Looking at the issues raise I will endeavor to tackle plaintiff’s issue (e) Whether or not there were valid arbitration or settlements between the parties before Togbe Gbedela and Togbe Adiblor which are binding on the plaintiffs. I hold the candid view that the positive determination of issue (e) renders otiose the rest of the issues raised. The law is that proof of a valid arbitration raises the defence of estoppel per rem judicatam. The principle prevents a party from going back to re-litigate over a dispute (res) that has been fully settled by a court or competent customary arbitration. Please see the case of; IN RE SEKYEREDUNASE STOOL NYAME V. KESE @ KONTO (1998-99) SCGLR 476 AT 490 PER Edward JSC (as he then was). According to plaintiff it was defendant who firstly put the matter before Togbe Gbedela, where Holi Sabblah postulated a theory of the Djerakors married a Sabbla as a result were given the disputed land. This postulation was rejected by them. Then defendant put the matter before Togbe Adigblor where the defendant family now claimed that plaintiffs grandparents were strangers who come to ask for land, this assertion plaintiffs flatly again rejected. According to the plaintiff, when the matter was put before at Togbe Gbedela’s he was not present. The evidence is that, his child fell sick on that day and needed medical attention. He later heard the chief substituted his brother to conduct the proceedings. He denied that his late brother submitted to the decision of the panel. But the defendants were categorical that a valid arbitration proceedings was conducted. That an award was published by Togbe Adigblor and Gbedela where plaintiffs were asked to pay all their expenses as the Sabbla’s were declare owners of the disputed land. According to the defendant, plaintiff after the death of his senior brother went onto the land to plant palm seedlings and was stopped, and that is why he sued. From the evidence, both plaintiff and defendant could not tell clearly which of the parties that sent the matter to either Togbe Gbedela or Togbe Adigblor. The court cannot tell which of the alleged awards the defendant is standing on to plead the existence of a valid arbitration. Though the award is not in writing this court is not unaware that customary arbitration and its award may be oral and need not necessarily be in writing to be valid but the essential elements of what constitute a valid customary arbitration must be evident to be binding. Please see the case of DZASIMATU V. DOKOSI (1993-94) 1 GLR 463, SC. DOMPREH V. PONG (1965) GLR at page126. When defendant was cross examine on 3/02/2023 this is what transpired in part. Q: A: In which year did the matter go before Togbe Gbedela? I cannot tell. Q: What about before Togbe Adigblor? A: I cannot tell. Q: Where you not part of those proceedings at those chiefs? A: Q: A: Q: A: I was part. The plaintiff was not part of the matter before Gbedela. The plaintiff was the one who sent the matter to Gbedela but he was absent, but his elder brother was in his place Plaintiff never sent any matter to Togbe Gbedela. He did even when the messenger informed as to attend plaintiff’s name was mentioned. Q: When the issue went before Gbedela, Togbui only found out what the issues was between you and the plaintiffs. A: Plaintiffs on the day went to the chief and was trying to claim ownership of the disputed land. When they went in to the matter they found out that the land Q: A: Q: A: Q: A: Q: A: Q: A: Q: did not belong to him. Are you saying plaintiff gave evidence before Togbe Gbedela. No. Did Togbe sit alone? No. How many were there? I recall two persons in addition to Togbe Gbedela. Did plaintiff’s late brother ask you any question. Yes. So apart from you who again spoke on behalf of the Sabblah family. Our elder brother, Mensah Adzrie and our family secretary Ken Atsu. Did they ask them questions. A: Q: A: Yes. Did they ask you if you have witnesses. They only asked for explanations and clarifications which he did. Q: I put it to you that, what happened before Togbui Gbedela was an attempt to A: Q: settle and not an arbitration. As he only asked for clarifications. There was an arbitration between us. I put it to you that, if it was arbitration the plaintiff who was the complainant he must be present and give evidence. A: On the day we were told plaintiff’s child was sick and could not attend. The chief asked his brother if he could stand in his place and he agree for the arbitration to proceed. Further evidence indicate that, the plaintiff complained about the panel at the second arbitration. He complained that, the panel consists of persons who were married into the Sabblah family and so were bias. When DW3 testified the following was solicited from him under cross examination. Q. Where is Togbe Adigblor. A. Devego. Q. What about Kudzo Bosu Lotsu. A. He is living at one of the villages near Tadzewu. Q. What about Anthony Agbovi. A. Q. A. He is at Devego. Are they related to Togbe Agbovi & Anthony? Yes he is his son. Q. What about Christian Dogbey. A. Q. A. He also lives at where Bosso is. You said it was Sabblah who lodged complaint with the arbitration. Yes. Q. Do you recall that the Djerakor family protested the fact that all those names mentioned above are married into the Sabbla family. A. Q. It never came to my attention. Djerakor family mentioned Gladys Kwawu. A. They did not, but I know her. Q. They also mentioned Sogbedzi. A. No. Q. I suggest to you that those were the persons they mentioned as married to the panel members. A. I do not remember. Q. Due to this Togbe Adigblor said he was only to broker peace not to arbitrate. A. It is not true. It is clear from above answers that, the said individuals were married to members of the Sabbla family hence his apprehension. And the fact that the complaint did not come to the attention of the witness DW3 does not negate the fact that those panellist were married to the Sabbla family. Customary arbitration has its own rules and specified procedure. The well-known requirement that constitute valid arbitration did not feature in the evidence led in the instant case, as laid down in many acclaimed judicial authorities. In AKUNOR V. OKAN (1977) 1 GLR CA, it was stated that arbitration does not have to be conducted in a judicial manner contrary to the earlier view expressed in the case of BADU V. CEASER (1959) GLR, but one important aspect of the procedure is that the parties have to be given opportunity to ask questions. The parties referred above will include the complainant, his lawful representative as well as witnesses likewise their opponents who must be given opportunity to also testify. (My emphasis) Putting together the exchanges captured above, the obvious conclusion that can be drawn is that, the plaintiff protested, the earlier arbitration and rejected whatever outcome emanated therefrom. In the second arbitration, plaintiff who was the complainant was absent. The evidence revealed that he notified the panel of his inability to attend the sitting. However, the chief substituted his brother for the proceedings to continue. In the considered view of the court, the chief had no right to substitute the plaintiffs’ brother to proceed with the hearing and make determination in his absence that affected him. Currently, the said brother whom the chief substituted is deceased. Varied assertion have been made against him by the defendants herein concerning his participation and acceptance of the award. The alleged arbitration was not put into writing at best to decipher the input of the dead man who participated in the said hearing. Under this circumstances the defendant’s assertions are unverifiable. I will therefore hold that there is no properly conducted arbitration which binds the plaintiff over the disputed land. With that determination I proceed to discuss plaintiffs issues (a & b) - Whether or not the land in dispute was founded by Kporkplodekakpuia and whether or not the parties descend respectively from Xorgborekpoe and Awleshie. I will think that issue (b) is of no moment because the parties do not dispute that fact. Though it was pleaded to show the parties may be related somehow, at this point they do not wish to be seen as coming from the same ancestry. The main focus that must engage the thought of the court now is who founded the disputed land.? According to the plaintiff the land was founded by Kporkplodekakpuia who is their great grandfather. He said to have settled thereon and founded the land and same has been inherited up to the present day Djerakors. According to plaintiff till date, his family has exercised full and undisturbed ownership right and possession over the disputed land for decades. They have farms and clear boundary features on the land. He stressed further that neither the defendant nor anyone has ever challenged their ownership right over the disputed area over the years. That the land has become an outskirt land and so the defendants’ family is laying claim to it to take it by force as they did to other families not strong. But the defendant will say that, the land belongs to the Sabbla family of Devego. The land was as a gift to their grandfathers. That plaintiff and family are not descendants of Kplorkplodekakpuia. The said man was a stranger who come to live at Devego. He was permitted by Sabbla Atsakpo to build a small structure close to the Devego- Tadzewu foot path. He was craftsman who made wooden sculptures for sale. Defendant said when he died, the Sabbla family took over the land. No one stayed or used the structure created by Kplorkplodekakpuia which went into ruins. Defendant continued that plaintiff’s grandfather Djerakor come to Devego from Abor and settled at Devego. He was granted a portion of Sabbla’s family land to farm on. After Djerakor’s death his son Klu Djerakor also farmed the land. Even though Klu Djerakor moved to Dafornyami, another village of Devego he continued to farm on the land granted to his father Djerakor. On his death plaintiff also farmed on the land. That the land has become outskirt land and the family decided to retrieve the land so that pieces of it can be granted to others who want to build on it. Now, the Sabbla family has always maintained that the Djerakor was a licensee. However, defendant admit that plaintiffs have been on the land before most of them were born. In another response defendant agreed they the Djerakor had a switch building on the land which collapsed some time ago. According to the defendant he is 65 years old and the said switch buildings collapsed years before he was born. As indicated earlier in the narration, the parties hold no documents, though a valid document would have been better than bare hands. But since the parties led oral and traditional evidence they will be judged by it. The law has answers to every situation both at customary, common law and statute. According to the defendant, the Sabbla took possession of the land allegedly granted to Kplokpordekakpiui after his death. He is said to have built a switch house which collapsed. Then the Djerakors grandfather another stranger was given land by Sabbla to farm. Djreakor also built a switch house which also collapsed. So if Kporkplodekakpui and Djerakor are separate individuals as the defendant would want the court to believe, the defendant has not led any evidence of their possession after the death of Kporkplodekakpui of the disputed site or show whether it was the same site that was granted to the Djerakor family. The obvious germane question to ask is did Kporkplodekakpui die before the arrival of the Djerakor? Or did they farm side by side taking into account the time under determination. It can be seen that the defendant has not been able to led satisfactory evidence to make the above distinction which makes their story distorted. This is evidently so because the description plaintiff gave to the Kporkplodekakpui land is the same the Sabbla’s claim as part of their family land. The court hold the view that, the fact that two out of the boundary owners has appeared to admit in their claim that defendant is their grantor is not conclusive that the whole land in the area automatically belongs to the defendant’s family. The law is that defendants need to prove what overt actions or acts they have put the land to over the decades and in recent times. Flowing from the discussions thus far I find as a fact that the switch build defendant referred belonged to defendants’ ancestor. Since there was only one switch building which collapsed before defendant and his others were born, that old switch building can only belong to Kplorkplordekakpuia and no one else. The defendant has not led any credible evidence as to when the said Tsekpo Sabblah gave the land to Djerakor and under what conditions as a licensee. There is no evidence that the plaintiffs’ family has ever paid homage to the defendants’ family as require under customary tenancy. (My emphasis) If the story of defendant is anything to go by, the plaintiffs falls in the classification of long term licensees. In my research into the subject under discussion, the legal position is that the licensee under long term does not get any legal interest or estate. They acquire right of possession free from disturbances and this term devolves on their next of kin of the licences and it is therefore heritable. However the necessary procedure must be fulfilled. Custom prescribed that the successor be introduced to the licensor so that the latter get notice of him. (My emphasis) In most cases the licensee must pay homage to the licensor on yearly basis. A licensor cannot sack the licensee from his land at his pleasure or require him to return his vacant land to him. It is held that that would be unconscionable and contrary to natural justice and good conscience, and therefore is not one which would be enforced by the courts. In DAO V. KLU (Djaba – Claimant) Ollenu (as he then was) applied the above principle and held as follows; “The custom is that where the licensor requires the licensee to quit land which he has been permitted to develop, the licensor must pay to the licensee the value of the development, otherwise the court will not entertain a claim for recovery of possession of the land and ejectment of the licensee therefor”. Please see pages 306 – 315 of the learned Author Yaw D. Oppong’s book Contemporary Trials in the laws of Immovable property in Ghana – Customary Tenancy. Assuming that the plaintiff and family were licensees of the Sabbla’s there must be clear evidence to establish that fact and not just rhetoric. There is no established evidence of payment of customary homage of any kind, or any form of agreement existed between the two families. It is a fact that the plaintiffs have cultivated the land and continue to without any hindrance until defendants began to sell portions of the land to strangers per their own admission leading to protest by the plaintiff’s family. In Seraphim v. Amua Sakyi (1961) 1 GLR at page 238; holding 1; it was held that, ‘A person in possession can maintain an action against the whole world, except the true owner. It is the law that where a court is confronted with two conflicting traditional evidence acts of possession remain crucial in the determination of the matter.” The law is restated in modern times that, possession is one of the means of establishing a good title, especially in the absence of documents. See Osei v Akrong In Nsowaa & 2 Ors. v. Banda & Anor(2015) GMJ 21 at page 24 CA. The court of appeal held that; “In law title to land may take the form of possession or it may take the form of documents or series of documents. It is however stipulated in Section 23 (5) of the Land Title Registration Law 1986 (PNDC L152) that a good title is always documentary”. The undisputed knowledge of customary law is that; long possession alone does not ripen into ownership. It was held even in precolonial years in the case of Nchiroahene Kofi Addo v. Alusu (1938) WACA 96 that “That long possession does not ripen into ownership”. In the instant case, the court is confronted with two conflicting oral traditional evidence, the clear decision of the courts over the years is that, acts of possession remain crucial in the determination of the matter. Where traditional evidence is canvased in asserting title, the court in asserting the truth or otherwise of such stories which may not be coherent, the Privy Council in the case of ADJEIBI & ADJEI KOJO V. BONSIE (1953) 3 WALA page 257 held that, “The most satisfactory method of testing traditional history is examining it in the light of such more resent facts as can be established by evidence in order to establish which two of the conflicting stories (statements) of traditional evidence is more probably correct.” More recently times the courts have affirmed their stand in support of the Privy Council in countless pronouncements of reliance of acts of resent memory. In HILODJIE V. GEORGE (2005-06) SCGLR at page 974, Wood JSC (as she then was) explained the principle easier to understand and held that, “Where a court is bent on choosing one of two conflicting traditional evidence, it must opt for the version of the party who additionally leads evidence of undisturbed acts of possession or ownership over the subject matter.” Per Section 48(2) of the Evidence Act, 1975 (Act 323), provides that, a person in possession of property is presumed to be the owner of it. This is so, until the contrary is proven. The unchallenged evidence before this court is that, the plaintiffs’ family has been in possession of the land. Djerakors have been in a long undisturbed possession. They farms and economic trees on the land presently. The evidence establish that their possession has been over 100 years. On the part of the defendant nothing belonging to the Sabbla is on the disputed. On that bases therefore, it is established that the land has been in possession and occupation of the plaintiff and family alone. I noted and observed the demeanour of DW3 when he appeared to testify. His attitude under cross-examination can easily pass for an individual who has prepared to be bias and after listing to him, I will not be far from the truth that, it is that same attitude they exhibited in the approached towards the said so-called arbitration. DW3 admitted that plaintiff who was the complainant, did not attend the arbitration yet, the panel visited the disputed site, and after that passed judgment because the Sabbla family showed its boundaries. After careful evaluation of the entire evidence before me, the assertions of the defendant over the land is not strong. The circumstances under which the land was given to the Kporkplodekakpui was not stated. That of Djerakor was also not stated. There is a lacuna between when Kporkplodekakpui lived on the land, died and when plaintiffs grandfather was given the land. Sadly also, they have not been able to show any overt act of activities on the land over the years; and or any assertions of right of ownership laid to the land. Is it not strange that after the death Djerakor, Klu Djerakor his son who moved to live in another town comes back to farm seasonally without restrain? Currently plaintiff, his sister PW2 and his nephew are cultivating portions of the disputed land. Also he failed to lead evidence acceptable that the plaintiff and family are not descendants of the said Kporkplodekakpui. Further that they took possession of kplorkpodekakpui’s land after his death. He who assert must prove. His Lordship Dotse JSC in the case of Eric Asante v. The Republic (2017) per His Lordship Dotse JSC, said; “It must be noted with emphasis that where a party in a trial refers to a matter that are denied, the party does not establish the truth of those matters by stating them in the witness box and failing to proffer the other evidence which I the circumstances of the case are such that there can be no corroborative evidence, that would be different matter.” The evidence as recounted in PW2’s witness statement is revealing. And at the trial defendant continue to seek assistance of persons like DW3 to achieve their goal. DW3 was asked; Q. So you know the land plaintiff is claiming. A. We were shown when we went. Q. Can you tell the boundaries plaintiff is claiming to the court. A. The land share boundary with the Devego school, Dzotefer family, Dzaba family, Feneku family and Anyasu family. Also the road from Tadzewu from Devego divide the land into two’… Q. Will you be surprised to know that defendants witness said they share boundary with defendant. A. On the part of Johnson Aflo I will be surprised. But Vincent Ametor I will not because he married Sabblah’s daughter and he was given land to farm to sustain the family. And Sabblah agreed that boundary features be planted so in future no one will claim that portion. The above evidences are interesting developments as the defendant himself led no such evidence before to the court. This DW3 is not a member of the Sabblah family. He was categorical when he testified that he has no land near the disputed site and hardly went to the area. That he got to know the farm of the plaintiff’s nephew on the land when he went to the area to connect water for someone who had hired his services. But here he spoke like a member of the Sabbla family. The irresistible conclusion is that he was deployed to testify to falsehood as he did not appear as a neutral arbiter. Plaintiffs issue c) is not difficult to determine flowing from the discussions thus far, whether or not the land was given to Djerakor by Sabblah Atsakpo to farm as a license. The obvious answer is in the negative. CONCLUSION After a careful analysis of the claims of the parties to this litigation, the court is clear in its mind that the Djerakors are not licensees of the Sabbla family. The court finds as a fact that the Djerakor’s have been in undisturbed possession for decades and exercise ownership right and possession to the full glare of the Sabbla’s and the public without challenge. That the conditions precedent for a customary tenancy under long licensee is lacking, as there has never been payment of customary homage by the Djerakor’s to the Sabbla’s ever. There is no evidence from the defendants that the Djerakors being their subjects performed any customary duties to the Sabbla family for these long years of stay on the land either during the period of their fathers and the present generation. I am convinced that, when the defendants failed with the stories postulated by Holi Sabbla, they narrow it down to customary licensee which they failed to prove. The court holds the uncontroverted view that the disputed land belongs to plaintiff’s family which they have occupied, cultivated for decades without hindrance. It would be unconscionable and against customary law, and humanity for this court to accede to defendant’s postulations. The plaintiffs have satisfactorily described the land they claim though not with document but description of boundary owners and features to the satisfaction of the court. Our own Supreme Court held in the case of Assfuah v. Arhin Davis (2013-14) 2 SCGLR page 1459 that; “In the absence of verifiable scientific-survey plans, overt acts of physical features like anthills, cemeteries, old settlements, sacred grooves, streams, rivers and other features have always been accepted and used to indicate boundary features between two adjourning lands.” Based on the facts, evidence and the law considered under this subject of this discussion this court hold the view that, the plaintiff has made a very good and convincing case, having discharged the burden of prove under sections 10, 11 and 12 of the Evidence Act, 1975, (NRCD 323). His case is believable, and on the preponderance of probabilities the plaintiffs’ case succeeds. Finally, the plaintiff claimed for special and general damages for trespass. On the issue of special damages no evidence was introduced. Special damages are compensation for expenses incurred and the award is based on specific expenses sometimes referred to as economic damages. However, general damages are intangible described sometimes as subjective. There is ample and overwhelming evidence on record that the defendants have trespassed a tort, onto the disputed land and sold portions to strangers who are building. The defendant made no denial of these facts. Trespass in law is referred to as quare clausum fregit unjustifiable interference with land in possession of another person. It is trite that whenever trespass is alleged, there must be prove to show the positive or the directness of the act. In the case of Mensah v. Nana Atta Komfo II (2015)39 GMJ page 80 CA, per Barbara Ackah-Yensu JA (as she then was) held that, “As with all forms of trespass, there must be directness, the plaintiff must prove direct invasion of the defendant on his land for a claim of trespass to succeed…” Please see also;ASHAR V. HITLOCK (1965) 1 QB 1 MAJOLAGBE V. LARBI & ORS (1959) 1 GLR 190 all on the above principle. The court in the circumstances therefore, grant all the reliefs of the plaintiff as endorsed and declare as follows; a) Declaration of title to all that piece and parcel of land situate, lying and being at Agblekpui – Devego and sharing boundary with Zogli, Kwaku Kporble, Kofi Daklo and Bessah Kponyo. b) The court award the sun of GHC20, 000.00 against the defendant for trespass in favour of the plaintiff. c) Recovery of possession d) Perpetual injunction restraining the defendant Sabbla family of Devego, its privies, assigns, anyone and anybody claiming title through them from having anything to do with the land adjudged in favour of the plaintiff family. e) The plaintiff is entitled to cost. Cost follows the event. Cost in this case is accessed at GHC20, 000.00 to defray their legal fees and related expenses for the conduct of this case for 10 years. The case of the plaintiff succeeds judgment to the plaintiff. (SGD.) CHARITY A. ASEM (MRS) JUSTICE OF THE HIGH COURT. PARTIES – PLAINTIFF – PRESENT DEFENDANT - PRESENT LEGAL REPRESENTATION – G. KPORBLE FOR PLAINTIFF – ABSENT S. M. K DZIKUNU FOR DEFENDANT – ABESENT. JUDICIAL DECISIONS AND STATUTE REF. Order 4 r. 6 of C I 47 of the High Court Civil Procedure Rules 2004 Section 48 of the Evidence Act, 1975 (NRCD 323) Section 23 (5) of Land Title Registration Law 1986 PNDC Law 152 Section 10, 11, and 12 of the Evidence Act 1975 (NRCD 323) Albertina Amakumah Odarty v. Rebecca Clouch (1991) 1 WASC 129 Kpakpo Brown v. Bosomtwi & Co. (2001-02) SCGLR 876 Adjetey v. Agbosu & Ors (2006) 2 MLRG. 111 In re Sekyerdumase Stool Nyame v Kese alias Konto (1998-99) SCGLR 476 -490. Akonnor v. Okan (1977) 1 GLR CA Badu v. Ceaser (1959) GLR Dao v Klu (Djaba – claimant) per Ollenu (as he then was) Seraphim v Amua sekyi (1961) 1 GLR 238 holding 1 Nsowaa & 2 Ors v. Bamba & Ano. (2015) GMJ 21 CA. Nchirahene Kofi Addo v. Alusu (1938) WACA page 96. Hilodjie v George (2005-0) SCGLR at page 974 Adjiebi & Adjie Kojo v. Bonsie (1953) 3 WALA at page 257 Mensah v. Komfo (2015) 91 GMJ. 39 at page 75. END. 21