TOGBE ANKUDEY III VRS KWAMPAH (H1/125/2023) [2023] GHACA 157 (20 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA. A. D. 2023 CORAM: JUSTICE P. BRIGHT MENSAH (MR.) J. A. (PRESIDING) JUSTICE JENNIFER A. DODOO (MRS.) J. A. JUSTICE K. T. ACKAAH-BOAFO (MR.) J. A SUIT NO: H1/125/2023 20TH JULY, 2023 TOGBE ANKUDEY III NICHOLAS ATIKLU PLAINTIFFS/APPELLANTS TOGBE ZA III VERSUS SIMON KWAMPAH FIATOR PROSPER TSIGBE DEFENDANTS/RESPONDENTS PESBEN INVESTMENTS CO. LTD. __________________________________________________________ J U D G M E N T __________________________________________________________________ Ackaah-Boafo, JA pg. 1 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT i. Overview: [1] The issues on appeal arise out of an action instituted at the High Court, Ho for declaratory and injunctive orders, recovery of possession and damages for trespass to lands identified as Sende, Gbade and Dornyi which was dismissed by the court. The parties involved in the suit live in the Volta Region town of Kpenoe. While the Plaintiffs claim they are members of the Agadzi clan and the descendants of a great ancestor and forefather called Togbe Letsu, who they claim solely founded all the lands at the centre of this litigation, the Defendants contend they belong to the Asiale clan of Kpenoe and deny the Plaintiffs’ root of title. The pleadings speak of a historical story of the Plaintiffs’ ancestors who at one time lacked a suitable male to inherit Togbe Letsu and therefore had a member of the Defendants’ Asiale clan installed as a Togbe. Stripped to its bare essentials, the litigation relates to ownership of the lands in the areas mentioned above, all in Kpenoe and nothing else. [2] The suit is by any standards extraordinary litigation, because the Defendants in their defence filed, mainly either denied the Plaintiffs’ claims or stated that they were not in the position to “deny” or “admit” without more. It is also extraordinary because in the course of the trial, the 2nd Defendant chose to speak for himself rather than be bound by the Defendants’ legal strategy, and in doing so gave a testimony, which to all intents and purposes, confirmed the Plaintiffs’ case. [3] It is noted that the Amended Writ of Summons which has resulted in this appeal was filed on May 22, 2015 with the following reliefs; A. Declaration of title to the Sende, Gbade and Donyi lands, all situate and being at Kpenoe and particularly bounded as follows at paragraphs 11 (Sende), 13 (Gbade 1), 16 (Gbade 2) and 17 (Donyi) of the statement of claim. B. General and Special Damages for trespass. C. Recovery of possession. pg. 2 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT D. Perpetual Injunction restraining the Defendants, their assigns, privies, workmen, agents, servants and anybody claiming title through them from having anything to do with the lands in dispute whatsoever. E. Declaration that the Asiale Clan held portion of the Sende land in trust for the Agadzi Clan when Togbe Kotoku assumed the Chieftaincy after installation by Agadzi Clan, but has since trespassed beyond same. The court below after the trial, dismissed all of the claims and awarded costs against the Plaintiffs in favour of the Defendants. [4] Dissatisfied with the judgment dated and delivered on 24th January, 2022, the Plaintiffs/Appellants have launched this appeal. The main issue in this appeal is whether or not the decision of the learned trial Judge is justifiable, based on the facts and the law. The relief sought from this court is an order to set aside the judgment of the trial judge. In this judgment, the Plaintiffs shall be referred to as the Appellants and the Defendants as Respondents. Before dealing with the arguments advanced in support and against the appeal, I will give a brief background of the case. ii. Background: [5] The three Appellants initiated the suit as the principal members of the Agadzi clan of Kpenoe and stated their traditional titles and capacities as “Dutofia”, “Zikpuitor” and “Awafia” respectively. The Appellants averred that they are the owners of the lands, the subject matter of the suit, being Sende, Gbade and Donyi lands at Kpenoe which lands form part of a larger land acquired by their great ancestor called Togbe Letsu. They contended that the said Togbe Letsu acquired the land through migratory hunting and conquest as the first settlor of the Agadzi clan. According to the Appellants, Togbe Letsu’s descendants include Nyadre, Agorsor, Ankudey, Tenu and Atiklu and does not include the Respondents’ Asiale clan who they contend were not part of the migration, conquest and the settlement by Togbe Letsu. The Appellants also contended that the Respondents’ pg. 3 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT ancestors did not found any of the lands, the subject matter of the dispute. [6] Explaining how the Respondents became associated with part of the lands in dispute, the Appellants averred that at a certain time in the history of the Agadzi clan, the ancestral line lacked male elders suitable for installation as successors, therefore Togbe Letsu sought help from his maternal uncle, Yaw Kwasi of the Asiale clan and he was installed as Togbe Kotoku X. According to the Appellants, Togbe Letsu supported Togbe Kotoku with land “to hold in trust” until a suitable male from the Agadzi clan was available. The Appellants contended that the land given out was the ‘Sende land’ and they pleaded that the land was bounded “on one side with Gbade land. On another side with Ho people (Dzah). On another side with Togbe Afele. On another side with Togbe Setsie”. [7] The further case of the Appellants was that the Respondents have trespassed unto other lands, being portions of the Gbade and Donyi lands, which were not part of the land originally given to the Asiale clan by Togbe Letsu. The Appellants’ pleaded the boundaries of both the Gbade and Donyi lands and asserted that the Asiale clan is not the owner of the “Gbade, Sende and Donyi lands” because, Togbe Kotoku, their ancestor did not found any land. They also pleaded that the Respondents do not know the history of the lands because their ancestors were not part of those who migrated and conquered the lands. The Appellants further pleaded that as part of the trespass activities on the land, the Respondents have destroyed economic trees on the Gbade and Sende lands and caused the lands to reduce their fertility. Particulars of the damages caused were pleaded. [8] The Defendants/Respondents filed a joint statement of defence and admitted the Appellants’ traditional titles and capacities but denied their root of title pleaded. They pleaded that the land sold to the 3rd Defendant belongs to the Defendants. They pleaded that their land, Gbade land “does not share any boundary with Nusesedzo and Dzaba” as pleaded by the Plaintiff. In the main, the Respondents mainly denied the claims of the Appellants and made few admissions. Their pleading did not lay out any foundation as pg. 4 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT to how they came by the land, they contended is theirs. It is noted that at trial some information in regards to how thy came unto the land was provided. I shall later speak to same in the course of this delivery. It is noteworthy that the 3rd Defendant, which obtained its interest in the land from the 1st Defendant averred that the Plaintiffs hired thugs to harass and frustrate its workers on the land after the 1st Plaintiff failed to extort money from the company. [9] As stated above, the learned trial Judge after hearing the evidence dismissed the suit and the claims made by the Appellants. The judgment appealed against is at pages 344 to 366 of the Record of Appeal (ROA) and the Notice of Appeal with the grounds of appeal is at pages 368 to 369. iii. The Grounds of Appeal: [10] The Appellants raised the omnibus ground of appeal “The Judgment is against the weight of evidence on record” only as the ground of appeal in this appeal. It is noted for the record that even though the Appellants indicated in the Notice of Appeal that further grounds may be filed, no additional grounds of appeal were in fact filed by the Appellants. [11] I begin with the principles of law an appellate court is to apply when the omnibus ground of appeal is raised. I then consider the law in relation to the facts of this case and to decide whether the trial judge’s decision is justifiable and sustainable. With the Appellants contending that the judgment was against the weight of evidence, they have basically invited the court to evaluate the totality of the evidence on record by putting ourselves as Appellate judges in the shoes of the trial court to see if we would come to the same conclusion as the trial court. In other words, an appeal against a judgment on the ground that it was against the weight of evidence is an invitation to the court to take a second look at the evidence on record by means of an examination of the record to find out if the findings and conclusions of the trial Judge are supported by the evidence pg. 5 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT proffered at trial or the conclusions are perverse. [12] Decisional law on this ground of appeal are many. See such cases as the Republic v. Conduah; Ex Parte Aaba (substituted by) Asmah [2013-2014] 2 SCGLR 1032 and Owusu Domena v. Amoah [2015-2016] SCGLR 790 where the Supreme Court pointed out that: “Where the sole ground of appeal is that the judgment is against the weight of evidence, it throws up the case for a fresh consideration of all the facts and law by the appellate court….. Thus, when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters.” [13] Also, based on the law, it is the duty of the Appellant to point out in a very clear and succinct manner to the Appellate Court, the pieces of evidence on record which were ignored or overlooked by the trial court and which, if applied correctly, would have caused judgment to be entered in his favour. This position was clarified by the Supreme Court in the unreported case of Olivia Anim v. William Dzandzi Suit Number Civil Appeal No. J4/10/2018 delivered on the 6th June 2019. [14] I also note that the Supreme Court has further explained what ought to be done when the omnibus ground is raised by an Appellant in the case of Solomon Tackie & Bannerman v. John Nettey (Sub by Bibi Ayimey); JA/44/2019 (unreported) delivered on the 24th of March, 2021. The court speaking through Dotse JSC (as he then was) at page 23 of the unedited judgment opined that; “When a ground of appeal like the instant, formulated on the basis that “the judgment is against the weight of evidence” what the courts have to do are the following: i. Consider the case as one of rehearing. This means an evaluation of the entire record of appeal, pg. 6 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT ii. Consider the reliefs claimed by the Plaintiff and if there is a counterclaim by the Defendant, that must equally be considered, iii. Consider and evaluate the evidence led by the parties and their witnesses in support of their respective cases especially the cross-examination as this is the evidence that is now elicited from the parties and their witnesses after the tendering of the witness statements, iv. An evaluation of the documents tendered during the trial of the case and how they affect the case, v. An evaluation of the application of the facts of the case vis-à-vis the laws applied by the trial judge and the intermediate appeal court, vi. A duty to evaluate whether the trial court….correctly or wrongly applied the evidence adduced during the trial, vii. The burden…to carefully comb the record of appeal and ensure that both in terms of substantive law and procedural rules, the judgment appealed against can stand the test of time. In other words, that the judgment can be supported having regard to the record of appeal. The above criteria are by no means exhaustive, but only serve as a guide to appellate courts such as the task facing us in the instant appeal”. [15] I shall have regard to the above guidelines in analysing the instant appeal based on the Appellants’ ground of appeal stated above. Since the pleadings filed are the foundation of the suit, the obvious starting point ought to be a look at the statement of claim filed by the Appellants on the 21st April, 2015 which throws light on the character of the land in dispute and the response of the Respondents. iv. The Pleadings and other legal issues: [16] In deciding whether the judgment is against the weight of evidence in this appeal, it is prudent to turn to the pleadings first and the procedural matters they evoke. The Plaintiffs pleaded at paragraphs 5, 6, 7 and 8 as follows: pg. 7 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT 5. “The Plaintiffs state that their ancestor or forefather, Togbe Letsue migrated from Notsie, Togo and settled at “Akoefe Kpor” and finally moved to settle at Gborhome or Asime as the 1st settler of Agadzi clan”. 6. “The forefather or ancestor of the Plaintiffs was a great hunter or repute and in that vain, he captured and founded many lands through the hunting expeditions”. 7. “Gborhome and Asime were the next places they moved to settle or after bringing the previous lands under their absolute control, possession and occupation”. 8. “Due to hardships, the ancestor or forefather of the Plaintiffs still moved to settle at Adelekpo”. Also, at paragraphs 10 and 19, the Plaintiffs averred by naming individuals who are descendants of Togbe Letsu and those who have been heads of the Agadzi family and “succeeded unto the land”. [17] In response and answer to the above averments of the Plaintiffs’ statement of claim, the Defendants by their Statement of Defence stated at paragraphs 3, 5 and 9 as follows: “3. Defendants are not in a position to admit paragraphs 5, 6, 7 and 8 of the Statement of Claim”. “5. Defendants are not in a position to admit or deny paragraph 10 of the Statement of Claim”. “9. Defendants are not in a position to admit or deny paragraph 10 of the statement of claim since they are not members of the Agadzi clan”. pg. 8 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT [18] In my view, the above averments of the Defendants have no meaning. This is because the law is certain that a party, who intends to deny an averment in a pleading, must do so specifically and that a pleading to the effect that one could neither admit nor deny an averment is, to state the obvious, no denial. Order 11 rule 13(3) of the High Court (Civil Procedure) Rules, 2004 [C. I. 47] provides: “Subject to rule (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by the party in the party’s defence or defence to counterclaim and a general statement of non-admission shall not be a sufficient traverse of them”. [19] I observe that one of our nation’s legal luminaries, the late Enoch D. Kom who is the author of the book ‘Civil Procedure in the High Court’, first published in 1971 by the Ghana Publishing Corporation, confirmed the above legal position succinctly and in plain language at page 49 of the book as follows: - “In traversing a fact the defendant must ‘DENY’ or say that ‘DOES NOT ADMIT’ it. Such expressions as ‘the defendant puts the plaintiff to proof’, ‘the defendant is not in a position to admit or deny’ a fact must not be used because they have been held to be insufficient traverse, evasive denial, and not answering the point of substance, Harris v Gamble (1878) 7 Ch. D. 877; Rutter v Tregent (1879) 12 Ch. D. 758”. The same point was emphasized by the Supreme Court in the case of Evelyn Asiedu Offei v Yaw Asamoah & Odehye Kwaku Gyapong Civil Appeal Number No. J4/64/2016 delivered 25th April 2018 per Appau JSC (as he then was). [20] In this case, I am of the view that the Defendants did not specifically deny the Plaintiffs’ pleading referenced above in the statement of claim. Therefore, in my respectful opinion, the Defendant’s averments highlighted above are improper and unacceptable in law. It also means they are deemed to have accepted those pleadings. pg. 9 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT [21] Also, at paragraphs 23 to 27 of the statement of claim they threw light on the land in dispute by stating that the Asiale clan, of which the Defendants are members “is not the owner of the Gbade, Sende and Donyi lands, but are aliens and trustees of part of the Sende land alone when Kotoku was made chief by default”. It was further averred that Togbe Kotoku did not found any land. At paragraph 26 it was averred that “The Plaintiffs states (sic) emphatically that all the Gbade, Donyi and Sende lands were founded by their ancestor or forefather, Togbe Letsu or Agadzi clan”. The Defendants answer to these averments by their statement of defence was paragraph 11 to the effect that “Defendants further deny paragraphs 23, 24, 25, 26, and 27 of the statement of claim”. [22] It is clear from the Respondents pleadings that they adopted a “trench warfare” strategy: as they did not provide any foundation for the evidence as to how they came by the land because as stated above, their pleading was only denial, but waited on the Plaintiffs to prove their case. Notwithstanding the fact that they provided no foundation for evidence, in the witness statement filed by the 1st Defendant on December 15, 2016 (which is at page 119 -120 of the ROA), at paragraphs 3 and 4 he stated: “Oral tradition held that our great grandfather called Kwawu Yao a reputable hunter discovered these lands and have been in possession of it from antiquity until 2015 when the plaintiffs instituted this action. Part of Donyi land was sold to a man from Amedzofe by my late uncles Kodzovi and Francis Kuampah in 1984. This man from Amedzofe is still in occupation of the land. One Mr. Adzaklo Atta from Takla, W. O. Amezando, Thompson Tornu, Mercy Afu among others all bought parcels of this land from the Kuampah family. I can also remember one Bent Tota also bought parcels of this land from my uncle Humphrey Kuampah. So also was DVLA and GCOM Pre University College. For all these years I have been in undisturbed possession except one Dza Kwami Paul of Ho-Dome who summoned me before the arbitration Tribunal of Togbe pg. 10 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT Afede XIV. I was declared the owner of this very land in which the plaintiff sued me for. Later on, the same Dza Kwami Paul also sued me in this very court. The plaintiff applied to be joined as co-plaintiff but was refused. Refer to exhibits A and B”. [23] The emptiness of the Defendants’ statement of defence and the lack of foundation of the above “evidence” proffered and accepted by the court was confirmed by the 1st Defendant when he was cross-examined by Counsel for the Plaintiffs on June 22, 2018 when the following evidence was obtained: Q: A: Q: A: I suggest to you that your witness statement is all afterthought, It is not afterthought You can read and write, you are literate. Yes, but my eyes are now disturbing me. Q: When you filed your statement of defence on 27/1/16 you did not say anything how you came by the land for which you were sued. A: Q: A: I was not told to say anything about land in my defence. This is why I say your witness statement is an afterthought. I wrote what my lawyer directed me to do. [Emphasis Mine]. See page 198 of ROA. [24] Based on the above, Counsel for the Appellants at page 14 of the written submission filed in this appeal stated that; “…the court should completely ignore and expunge from the witness statement of the 1st Defendant which was filed on 15/12/2016 those allusions or references to great grandfather Kwawu Yao, grandfather Yao Kosi Kwampah…among others because they were not mentioned in their statement of defence. Thus, they were smuggled through the back door into the witness statement since they were pg. 11 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT material facts and ought to have been pleaded if the defendants deemed them so important to their case”. [25] It seems Counsel made a similar submission at the court below in the written submission filed after trial because in the judgment, the learned trial Judge stated at page 20 (which can be found at page 363 of the record) that Counsel failed to object to same when the witness statement was adopted by the Court. The trial judge stated as follows; “Section 6 of the Evidence Act provides that “in an action, and at every stage of the action, an objection to the admissibility of evidence by a party affected by that evidence shall be made at the time the evidence is offered”. All the same, I could avoid a response to the submission, as I have just indicated above that I did not rely on the support of any evidence produced by the Defendants and their witnesses”. [26] As noted above, it is clear that the Respondents in their pleadings did not set up any foundation for the evidence given per the witness statement which was filed. From the record before this court however, there is nothing to show that the Appellants, through their counsel, objected to the adoption of the witness statement which contained facts which had not been pleaded. It is trite learning as stated in Bisi and Others vs. Tabiri alias Asare [1987-88] 1 GLR 360 SC. that: Evidence in proof of a material fact not pleaded should be objected to at the trial because once that evidence had been admitted without objection the court was bound to consider that evidence. It was not required that before the trial judge could act on such evidence the pleadings must necessarily be amended in conformity with the evidence already admitted as there would then be absent the element of surprise which traditionally underscored the purpose and function of pleadings. [27] Again, in Marfo and Others v. Adusei [1963] 1 GLR 225 SC. the court held that: “The penalty for failing to plead a material fact is the exclusion, upon objection pg. 12 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT being taken, of evidence to establish it. But where evidence which could have been ruled out as inadmissible because it is adduced to prove a material fact which was not pleaded, has nevertheless been adduced without objection, a judge is bound to consider it.” [28] Also, in the case of Edward Nassar v. McVroom [1996-97] SCGLR 468, it was held in interpreting Section 5 of the Evidence Act, 1975, Act 323 that: “If a party failed as required by Section 6 of NRCD 323 to object to the admission of evidence which in his view, ought not to be led, he would be precluded by Section 5(1) of the Act to complain on appeal or review about the admission of that evidence unless the admission had occasioned a substantial miscarriage of justice. Factors helping to determine whether or not a substantial miscarriage of justice had occurred have been set out in Section 5(2). Consequently, where evidence in respect of an unpleaded fact had been led without objection, the trial judge was bound to consider that evidence in the overall assessment of the merits of the case, unless that evidence was inadmissible per se. An appeal or review against the judgment might succeed only where it was established that the admission had occasioned a substantial miscarriage of justice.” [29] In Akufo-Addo vs. Catheline [1992] 1 GLR 377 this court explained that a trial judge is only under a duty to exclude unpleaded facts which are inadmissible per se. On the strength of the above decisions, I am of the opinion that once the witness statement containing the unpleaded facts was admitted into evidence without objection from Counsel for the Appellants during the trial and Counsel has not demonstrated that the said evidence was inadmissible per se, nothing precluded the learned trial Judge from considering same in the overall evidence on record in coming to his conclusion. Recognizing the concerns inherent in relying on the unpleaded evidence, the trial judge stated that he did not rely on the Respondents’ evidence in the decision made. Therefore, I shall evaluate the evidence on the basis that the trial judge did not rely on the evidence pg. 13 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT of the Respondents in his decision. v. Appellants’ Submission on the Ground of Appeal: [30] Counsel for the Appellants attacked the court’s findings that the Appellants did not provide evidence for judgment to be entered in their favour. Counsel submitted that “it is patently clear on the face of the records that the judgment of the trial court is inconclusive and recipe for chaos by claiming both parties own land in the disputed area”. Counsel submitted that a judgment is supposed to bring finality to the issue of ownership of the land in dispute but in this case the judge failed to do so. Counsel referred to the statement of the learned judge at page 365 of the ROA to submit that the judgment is ‘inconclusive and a recipe for chaos since the judgment failed to address a teething problem of ownership”. To learned Counsel, the judgment lacks clarity. [31] Next, Counsel contended that the assertion that the Appellants did nothing or did not resist the Respondents’ family whilst farming on the land is misconstrued. According to Counsel, the owner of the town, the (Dutor or Dutorfia) through whom the subjects have been granted the land cannot forcibly eject them. To learned Counsel, the issue in this suit is about the fact that the Respondents “sold portions of the land for private development without the consent and concurrence of the owners”. Counsel further stated that the case of the Appellants is that the Respondents “trespassed beyond the portions granted the Asiale clan to use as trust lands whilst they were still in occupation of the (Paramount) Fiaga stool”. Counsel next stated that the trial Judge over relied on the Asogli Traditional Council judgment because the judge referred to it as having “given a final judgment on the chieftaincy issue of Kpenoe is far from the issue at hand”. [32] Counsel reiterated that “grave miscarriage of justice was done to the Plaintiffs/Appellants case when, the trial High Court ignored the collaborative evidence of the 2nd Defendant to the Plaintiffs’ claim and case and failed to factor same into the final judgment”. Counsel further stated that the 2nd Defendant with a Chieftaincy title pg. 14 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT as a “Fiator” literally translated as “Father of the Chief” is a person clothed with knowledge of the land ownership and boundaries in the community and therefore his evidence should not have been ignored by the court. Counsel referred to the case of Dotwah and Anor v. Afriyie [1965] GLR 257 and Section 129 of the Evidence Act to support the submission. Based on the above submissions and the others in the submissions filed, Counsel prayed the Court to grant the appeal and set aside the judgment. It is noted that the Respondents failed to file any submission in this appeal. vi. Review of the Evidence, the Law and Analysis: [33] As indicated above, it is the contention of the Appellants that the judgment of the court is not in sync with the evidence led at trial. They have therefore implored us, as an Appellate Court, to review the record and to determine whether the trial Judge was right with his conclusion. The case of Nkrumah v Attaa (1972) 2 GLR 13 C/A affirms the established principle that an appeal is by way of rehearing. In effect, as the Appellate court, we are not retrying the case but we are enjoined by law to sift through and scrutinize the evidence on record and to make our own assessment of the evidence led at the trial court. [34] The law is that if we come to the conclusion that the trial court came to the right conclusion based on the evidence and the law, the judgment should not be disturbed. In Boya v. Mohammed (substituted by Mohammed) [2017-2018] 1 SCLRG 136, the court held at page 139 that: “If on the evidence, the decision reached by the learned trial judge was supported by the evidence, then the Court of Appeal was not entitled to reverse it even if they would have reached a different conclusion on the disputed facts. However, if the judgment is unsupportable by the facts then we can come to our own conclusion. [35] Now, to the merits of the arguments of Counsel. I shall begin with the contention pg. 15 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT that the learned trial judge failed to deal with the ownership of the land in dispute. The Respondents did not file a counterclaim and therefore the Appellants who sued had a duty imposed on them by virtue of Sections 14 and 17 of the Evidence Act, 1975, NRCD 323. This duty required the Appellants to adduce credible and cogent evidence to prove their title to the land in issue as indorsed on their writ of summons. In Nene Dokutso Tei Kwabla v. Lands Commission & Another [2017-2018] 1 SCLRG 497 the Supreme Court stated in clear language that: “It is settled law that where a plaintiff seeks a declaration of title to land in an action, he is bound to lead evidence in proof of his title, notwithstanding the failure of the defendant to even enter appearance. The evidence adduced by the plaintiff in proof of his title, must satisfy the standard of proof in civil cases, which is proof on the preponderance of probabilities and there are no exceptions to this standard.” [36] As stated earlier, the case of the Appellants before the court below was that the land in dispute was acquired by their great ancestor and forefather, Togbe Letsu. They pleaded by identifying the Sende land, the Gbade land and Donyi land at paragraphs 11, 16 and 17 of the statement of claim. They also pleaded what they contended are the boundary owners of these lands. Their case was also that as a result of lack of a suitable male in the Agadzi family at a certain period in time, their ancestors pleaded with his maternal uncle who was installed as Togbe Kotoku. They also contended that the said Togbe Kotoku was supported with land to hold in trust until a suitable male from the Agazdi family was later installed. The 1st Plaintiff/Appellant in his evidence in chief per the witness statement filed and adopted at trial (can be found at pages 87 – 91 of the ROA) affirmed the pleadings at trial. [37] The following evidence, being the cross-examination of the 1st Appellant, elicited on March 20, 2017 which is at pages 142 - 143 of the ROA is instructive: “Q: How many parcels of land did you sue for? A: Three – Sende, Kpande and Donyi. pg. 16 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT Q: You allege that part of these lands was given to defendants’ ancestors in trust. Do you still rely on that? A: Yes, I still say so and rely on it. We want our land back. They held it in trust Q: A: so it is not theirs. How many years ago was this trust created? About 120 years ago when they were allowed to enstool their chief that was when the land was given to them…. Q: Tell the court which parcel of these lands was the trust property and the A: Q: part trespassed upon. Start with Donyi land. It was part of Sende land that was put in their trust. You want this court to believe that it is only part of the Sende land that was put in trust and that defendants went ahead to occupy Donyi and Gbade lands for all these years? A: We are all related so they were allowed to farm on Donyi and Kpande lands which were not in trust. Now, they have put bull dozer on these lands so we sued to take those lands from them. Q: I am putting it to you that the defendants have been cultivating Gbade and Donyi lands before you were born. A: I said my ancestors owned the lands and I am narrating what my forefathers told me that they have been farming. This writ is not about my age but about what happened before we were born”. [38] The above evidence show the Appellants identified the land, the subject matter of the dispute and also confirm the Appellants’ story as to how the Respondents’ ancestors came unto the land. The evidence can also be construed to mean that so long as the Respondents remained on the part of the land granted to their forebears to farm, there was no problem with the Appellants. The problem arose when the Respondents trespassed to other parts of the land and also alienated parts to others including the 3rd pg. 17 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT Respondent. [39] It is important to stress that in establishing the ownership of the land, the court ordered for the production of a composite plan. The order of the court is at page 216 of the ROA. The Appellants’ survey instruction is at page 218 – 219 of the ROA and that of the Respondents can be found at pages 221-222 of the ROA. It is interesting that the Respondents’ survey instruction did not specifically identify any land and did not provide the boundaries of the said land but rather focused on “features” of the land. The survey report tendered as Exhibit CW1 at trial and at pages 248 – 249 states at page 249 as follows: “The Plaintiffs land as shown on the ground and surveyed is described with color GREEN on the composite plan with an area of 456.02 Acres or 184.55 Hectares. a. The boundaries of SENDE, GBADE & DONYI lands are properly defined and all features and names instructed on behalf of the Plaintiffs pursuant to the court order has been observed accordingly on the ground by the plaintiffs are all described on the composite plan with color GREEN. [40] It bears further stressing that the report prepared was tendered by an officer of the Lands Commission named Richard Sokah and was cross-examined by Counsel for the parties. In his evidence at pages 259 -264 of the ROA, he confirmed that the Appellants described the boundaries of their land but the Respondents did not. The said evidence was elicited on January 29, 2021 and same is at page 261: “Q: Plaintiffs described boundaries in their survey instructions that you were supposed to look out for at the site. A: That is correct. Q: Did the defendants’ survey instructions refer to any boundary you were to look out for at the site? A: Yes. pg. 18 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT Q: Which item on the survey instructions? A: 1st paragraph. Q: Read it out. What you read did not indicate defendants’ land, but rather plaintiffs’ land. A: True. Q: Plaintiffs’ survey instructions No. 7 detailed you to show some boundary features. A: Correct. Q: Some boundary features on the plan have been captured without showing any colour legends of the parties. A: That is so”. [Emphasis Mine]. [41] Despite the clear and plain evidence above, the trial judge after considering the pleadings and the evidence stated at page 19 of the Judgement, which is on page 362 of the ROA as follows: “Plaintiffs could not provide a proven clear and distinct boundary identities of the land they pray to be declared absolute owners, particularly the areas and the extent of the land beyond the Sende land which they claim Defendants have trespassed. I find their challenge herculean! This is because as I have found just above, the disputed lands are interwoven or interspersed with farms and farm settlements that belong clearly to Defendants, or as ascribed to Defendants’ representatives, agents, or assigns. Besides, I repeat Plaintiffs’ admission under cross-examination that they allowed Defendants to be farming on Gbade and Dornyi lands. The court cannot make a declaration of title of land in favour of a party based just solely on contested oral traditional evidence that is not supported by proof of boundary identities, effective possession, and acts of effective ownership”. [Emphasis Mine]. [42] With due deference to the learned trial Judge, the above statement is not anchored pg. 19 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT in the evidence heard. The statement that the Respondents failed to identify their boundaries with respect cannot be accurate. As stated earlier in this opinion, the Appellants are the ones who pleaded by identifying what they contend is the subject matter land. They pleaded the boundaries and replicated same in the survey instructions filed. The above exchange, being the cross-examination of the Lands Commission official confirm that the Plaintiffs/Appellants described the boundaries of the land in their survey instructions and same was stated in the report filed. Rather, it is the Respondents who did not identify the lands they occupy and did not provide any boundaries of the said lands. [43] I am of the respectful view that the trial judge overly amplified the testimony of the Plaintiffs’ witnesses – PW1 and PW2 in particular, who testified that he did not know the boundaries of the Gbade land. The trial judge referred to their testimonies as captured at pages 356 and 357 of the ROA and stated in respect of PW2 at page 358 that “I find PW2’s total evidence relating to the Gbade and Dornyi lands unreliable, indeed improbable of belief, and worst still discredited under cross examination”. With respect to the trial judge, while it was open to him to analyse the entire testimony heard to come to a determination, he could not cherry pick others and totally ignore others. For instance on the question of the boundaries, his analysis totally ignored the evidence of the 1st Plaintiff/Appellant together with the documentary evidence, being the report of the composite plan, the CW1. In the case of Yorkwa v. Duah [1992-93] GBR 275 it was held that “The practice of the courts was to lean favourably towards documentary evidence especially where the documentary evidence was found to be authentic and the oral evidence was conflicting”. [44] Also, in the case of Fosua & Adu-Poku v. Dufie (decd) & Adu Poku Mensah [2009] SCGLR 310, it was held that it was settled law that documentary evidence should prevail over oral evidence. Thus, where documents supported one party’s case as against the other, the court should consider the latter party was truthful but with faulty recollection. As stated earlier, the Appellants pleaded in their statement of claim, the pg. 20 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT lands at the centre of the litigation and pleaded the boundaries. Same was reiterated in the survey instructions filed and confirmed by the surveyor. The Respondents did not identify the lands they claim to own in their pleadings, which according to the 1st Respondent was at the direction of his lawyer and did not indicate the boundaries. To therefore state that the Appellants did not “provide a proven clear and distinct boundary identities of the land” based on two witnesses’ testimony, contrary to the surveyor’s report which confirmed the boundaries of the Appellants without any legal reason, in my view was erroneous. [45] Though the trial judge was not bound to accept and endorse the surveyor’s report, he is required by law to ignore same based on legal reasons. See Musah (No.2) v. Sackey (No. 2) [2017-2020] 1 SCGLR 964 by which the court per Dotse JSC stated that “We have warned ourselves that we need not necessarily endorse the expert opinion of the surveyor if there are indeed any legal reasons why we should not. However, in the instant case there were no compelling reasons why the opinion of the surveyor on the survey plan should not be accepted”. In my respectful opinion, from the observations of the report CW1 which state that “The boundaries of SENDE, GBADE & DONYI lands are properly defined and all features and names instructed on behalf of the Plaintiffs pursuant to the court order has been observed accordingly” and confirmed by the surveyor’s evidence, I hold that the trial judge’s determination of the ownership of the land and his conclusion that the Appellants did not provide in clear and distinct manner the identities and boundaries of the land is rather at variance with the evidence led on record. [46] Next, I turn my attention to the judge’s conclusion that the land belongs to the Defendants. At pages 350 – 351 of the ROA, the trial judge stated: “I find that the Defendants evidence of root of title or acquisition of the land by oral tradition was not pleaded but learned Counsel for Defendants (sic) did not object to their admission at the trial. Contrary to their claim that the Defendants are aliens, 1st Plaintiff stated under pg. 21 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT cross-examination that the Agadzi and the Asiale clans “….are all related so [the Asiales] were allowed to farm on the Donyi and Kpande lands which were not in [the] trust” (Emphasis added). 1st Plaintiff stated further under cross-examination that “Defendants are [Plaintiffs] grandchildren”. Indeed, in confirmation of 1st Plaintiffs’ evidence quoted above, I find Defendants to have been in possession not only in portions of the alleged trust Sende land but also the Gbade and Donyi lands since time immemorial without challenge, indeed long before 1st Plaintiff was born, and that it was just in 2015 by this instant suit that Plaintiffs are seeking to raise the issue of Defendants’ title to the land”. [47] The trial judge further stated at page 351 of the ROA that “Besides the act of farming on the land without challenge, I find that the Defendants have been exercising effective possession by alienating portions of the lands in issue to other people, some of which Plaintiff were not unaware”. In concluding the judgment, the trial judge again stated at page 22 of the judgment at page 365 of the ROA that: “The fact I cannot refrain from stating on the face of the evidence is the Plaintiffs do have lands within the ‘hatched’ disputed land, but their claims and reliefs for declaration of absolute title of the entire disputed land to be made in their favour cannot be possible as Defendant, for time immemorial to the knowledge of the Plaintiffs have quietly and peacefully occupied and possessed scattered portions of the lands within the disputed land. Plaintiffs’ action must fail in its entirety and that same is dismissed”. [Emphasis Mine]. [48] The above seem to encapsulate the trial judge’s reasons for his conclusion that the land belongs to the Respondents and not the Appellants. I deduce from the analysis of the trial judge that because the Appellants contend that they are related to the Respondents and they allowed them to farm on the lands, which they have done for many years without any complaint, the Respondents are owners of the land. I also infer from pg. 22 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT the trial judge’s conclusion that having been on the land for a long period of time, the Respondents have been in an undisturbed possession and have alienated portions of the land to third parties to the knowledge of the Appellants and therefore they are the owners of the lands and not the Appellants. The judge’s conclusion is contrary to the evidence because firstly, the Defendants did not counterclaim and secondly, they were unable to identity their boundaries. To my mind, the problem with the judge’s reasoning is that, no jurisprudence was relied on by him to support the proposition that because the Respondents have been in a long undisturbed possession title should be declared in their favour. [49] Much like in the present case, in the case of Oppong Kofi v. Attibrukusu III [2011] 1 SCGLR 176, the Plaintiff, the Paramount Chief of the Lower Axim Traditional Area, sued for declaration of title to land on behalf of the Royal Nvaviley Family of Lower Axim and owners of the stool lands, recovery of possession and damages for trespass among others. It was pleaded that the Defendant’s ancestors who hailed from Ahanta and belonged to the Nvaviley Family of Ewuku but were not the immediate family members of the Plaintiff’s Nvaviley clan were granted permission by the stool to farm on various portions of the land which became known as the Ewuku lands. The suit was triggered because the Plaintiff contended that the Defendants went beyond the boundaries of the Ewuku lands and claimed ownership rights in areas within the Plaintiff’s stool lands. [50] In their defence, the Defendants pleaded that their ancestors had cultivated and been on the land for over 150 years. They contended that the land was a virgin land and they had farmed on the lands and dealt with them as owners without any authorisation and permission of the Plaintiff stool. In their evidence, they admitted that their family had paid tributes to the Plaintiff stool as the allodial owners of the land. The High Court in dismissing the Plaintiff’s claim after evaluating the evidence, found that the Plaintiff pg. 23 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT stool, as the allodial owners had permitted the ancestors of the Defendants to settle on the land for a long time and had thus acquired an estate in the land known in law as “usufructuary, possessory or determinable title”. The court thus held that the Defendants could not be deprived of their possessory rights. [51] The Plaintiff appealed on the grounds that the judgment was against the weight of evidence to the Court of Appeal, which reversed the High Court judgment. The Defendants appealed to the Supreme Court. In affirming the judgment of the Court of Appeal and dismissing the appeal, Brobbey JSC in a concurring judgment held at page 203 of the report as follows: “in case the settlement area is not well demarcated or where the boundaries are not clearly known, one can deduce the boundaries to be from a reasonable distance from the boundaries of the settlement area. The fact that the boundaries are not clear should not be taken as a reason for the settlers arrogating to themselves areas far away from the settlement area. When a person gives another a place to stay, that should not be taken as a license to take any area that the settler likes onto himself, unless so permitted by the original owners”. [52] At page 204, His Lordship further stated: “The fact that the defendants and their fellow trespassers had developed lands or stayed on the lands for several years were no grounds for decreeing valid title in their favour. If long possession were enough to found title in their favour, it would mean that whenever anyone took possession of another person’s property and held on to it for a very long time, he becomes the owner of that property. That kind of acquisition of ownership by long possession would lead to chaos”. [Emphasis Mine]. The learned jurist stated that long possession is valid and is evidence of title but not against the true owner. [53] By adopting the ratio in the above decision it is clear that the trial judge ignored pg. 24 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT the long held position of the law that long and overt exercise of possession only is not enough for title to be found on the Respondents, as he did. Also, I am of the respectful opinion that apart from the above, the trial judge’s reasoning is also contrary to law because courts have long recognized that litigants like the Respondents were also required to prove the root of their title and the identity of the land in addition to long possession. See the case of Tackie v. Lamptey [2001-2002] 2 GLR 186, which establishes that in an action for declaration of title, a party must prove satisfactorily the identity of the land. [54] In this case, a scrutiny of the record shows that apart from the 1st Defendant’s/Respondent’s (Simon Kwampah) statement at paragraph 3 of the witness statement (at page 119 of the ROA), where here stated that “Oral tradition held that our great grandfather called Kwawu Yao a reputable hunter discovered these lands and have been in possession of it from antiquity until 2015 when the Plaintiffs instituted this action” which statement the judge said he did not rely on in this judgment, he also stated that his family have alienated parts of the land to third parties, but there was no evidence of the identity and boundaries of the “lands” Mr. Kwampah referred to. [55] To leave no one in quandary, it is important to reiterate that when the Respondents filed their survey instructions they did not specifically identify any land but referred to features. The Respondents counsel only stated as follows: “TAKE NOTICE that in compliance with the order of the court dated 6th February, 2020, the plaintiff in suit herein instructed the Director Survey and Mapping Division of the Lands Commission, Ho to conduct the survey of the plaintiff’s land towards the drawing up of the composite plan of the land in dispute. To show on the plan when drawn the following features: 1. Village Agbaga Fusese 2. The cemetery of defendants’ tenants 3. The Titrinu village pg. 25 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT 4. The DVLA Building. 5. Gravel or sand winning sites 6. Land granted to G. Com University 7. Land granted to Pesben Investments. 8. Land granted to Attah Amenyaglo. 9. Settlement of all defendants’ tenants. 10. The Building belonging to Bentota 11. The total area of Sende land. 12. The total area of Gbade 13. Plaintiff’s palm plantation on Gbade land. 14. Farms of Agbozo Komla granted by defendants 15. Farms of Simon Kuampa on Gbade land 16. Farm of Bright Kuampa 17. Total area of Dornyi land 18. The land granted to Tetteh of Avatime Vane, 19. Show the portion granted to Oklu Joseph from Takla 20. Show the palm plantation of Evans Gover which land was granted by 1st defendant’s grandfather. 21. The palm plantation of Win Akoto, defendants’ relative. 22. All farms of defendants’ tenants. 23. Any other relevant features which the plaintiff may show at the locus but not specifically stated herein”. See pages 221 to 222 of the ROA. [56] The above basically is what the Defendants required the surveyor to map out their “lands”. No wonder the surveyor when he tendered the report admitted that they did not show the “boundaries” to their land. It is clear from the evidence that there is no pg. 26 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT identity of the lands the trial judge stated the “Defendants to have been in possession not only of portions of the alleged trust Sende land but also the Gbade and Donyi lands since time immemorial without challenge”. See page 351 of the ROA. [57] My Lords, also, from the ROA it is noted that, apart from the bare denial of the Respondents of the assertion of the Appellants that the forebears of the Respondents were put on the land, the Respondents did not provide any answer to rebut the assertion. As was held in Poku v Poku (2008) MLRG 1/ [2007-2008] 2SCGLR 996; “Generally, the burden of proof is on the person asserting the fact in issue with the burden shifting as the justice of the case requires”. This means the burden of proof is not static but sometimes swings depending on the issue at stake. [58] My Lords, it is also important for us to remind ourselves of the statement of law by Brobbey JSC (as he then was) in Adjetey Agbosu & Others v Kotey & Others [2003- 2004] SCGLR, when he stated that; “A litigant who is a Defendant in a civil case does not need to prove anything. The Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time, if the Court has to make a determination of a fact or of an issue and that determination depends on evaluation of facts and evidence, the Defendant must realise that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour”. [59] Based on all of the facts, I am of the respectful opinion that the Appellants assertion that the descendants of the Respondents were placed on the Sende land by their forebears and the present Respondents have trespassed on to different parts of the lands including the Gbade and Donyi lands ought to have been rebutted by the Respondents than their bare denial because the Appellants contention is plausible and believable on the balance pg. 27 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT of probabilities. [60] Besides the above, I also wish to point out that it is startling that the learned trial judge after he allowed the 2nd Defendant, Prosper Tsigbe to basically break out with the other Defendants and to testify, failed to comment on his testimony at all in the judgment. I say it is startling because the evidence given by the 2nd Defendant confirmed the narrative of the Plaintiffs and seriously undermined the Defendants’ position. And, so what did the 2nd Defendant say? The witness statement filed is at pages 238 to 239 of the ROA. The Salient parts of his evidence are as follows: “That the land in dispute belong to AGADZI Family land. That AGADZI Family are the custodians of Kpenoe land due to the fact that it was their forefathers who captured and founded many lands through hunting expeditions. That the Asiale Clan in which we (1st and 2nd) Defendants belong did not found any land. That the Plaintiffs who had in possession a very large track of land gave various portions to various clan at Kpenoe to be headed by their family heads to hold in trust. That every land the Plaintiffs’ ancestors gave to various clans share common boundaries with the Agadzi Clan. That my father and grandfather confirmed the same history about Agadzi family to me before their demise…. That the Plaintiffs are “Dutorfia” Zikpuitor and “AWAFIA” respectively at Kpenoe… That to be honest to the Honourable Court, I say that greater part of the land sold to the 3rd Defendant belongs to the Plaintiff family. That 1st Defendant knows very well that they encroached into plaintiff’s family property. pg. 28 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT That because of my honesty, I was sideline to participate at the time they went to Locus. That I was not informed by the 1st Plaintiff nor our lawyer. It was the surveyor who informed me but they did not give me any date. That the survey works did not reflect the authenticity of the Defendants land soled to the 3rd Defendant. That I have not been given the opportunity to give our lawyer better and further particulars. That the whole transaction is fraudulent and should be disregarded by the Honourable court”. [Emphasis Mine]. [61] The 2nd Defendant was cross-examined by Counsel for the Plaintiffs and the following is a snippet of the evidence elicited on May 11, 2021 at pages 272 - 275: “Q: Plaintiffs case is that because the Asiales are maternally related to the Agadzi Group that is why the plaintiffs went for a suitable male from the Asiale group to occupy the chieftaincy stool, that is beginning from Togbe Kotoku X. Is this correct? Yes, that is so. Is 1st defendant Head of your family (Asiale)? Yes Is the 1st Defendant aware of these historical facts you have stated in your A: Q: A: Q: witness statement? A: He is aware. Q: Why do you say so, i.e. that he is aware? A: Because his grandfather Kotoku X, and he (1st defendant) himself stated so at the traditional court at Asogli State…. Q: How did the Asiale came to occupy the land in dispute? pg. 29 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT A: Q: A: Q: A: That one, I cannot tell; it is for our grandfathers. So, the Sende, Donyi and the other Gbade lands all belong to the plaintiffs. Yes, that is correct. These are the very lands in dispute. That is so”. [62] The above is what I refer to as the bombastic evidence of the 2nd Defendant. The law is trite that “where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct”. See Section 26 of the Evidence Act and In Re Asere Stool; Nokoi Plai Amontia IV (Substituted by Fato Amon II) v. Akotia Oworsika III (Substituted by Laryea Ayiku III) 2005-2006] SCGLR 637 @ 656. [63] It is noted that Counsel for the Respondents applied to remove himself as Counsel of record for the 2nd Defendant and same was granted. He thereafter cross-examined the 2nd Defendant and same is found at pages 284 to 286. Suffice to say, Counsel chose to cross-examine the 2nd Defendant on collateral matters only ostensibly to impeach his credibility but did not examine him on the substance of his testimony. In my view therefore the testimony of the 2nd Defendant, which to say the least was damaging to the Respondents’ case stood unchallenged and rather corroborated the pith and substance of the Appellants’ case. My appreciation and understanding of the law as very well stated in Fori v. Ayirebi and others [1966] GLR 627 SC is that: “When a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact.” [64] Also, in Quagraine v. Adams [1981] GLR 599, this Court also laid down the principle that where evidence was given on a material fact and the person against whom pg. 30 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT the evidence was given fails to cross examine on that material evidence especially when he is represented by Counsel at the trial, he will be deemed to have, sub-silentio, admitted the evidence. [65] Further, the law is clearly stated in Asante v. Bogyabi and Others [1966] GLR 232 at page 240 that: “Where admissions relevant to matters in issue between parties to a case are made by one side, supporting the other, as appears to be so in the instant case on appeal, then it seems to me right to say that that side in whose favour the admissions are made, is entitled to succeed and not the other, unless there is good reason apparent on the record for holding the contrary view.” [66] As stated above, despite the position of the law and the record before the court, the trial judge did not comment on the above evidence and why he rejected same in the judgment. In my respectful view, the trial judge was fixated on the narrative of the Plaintiffs in regards to what he called “Togbeship” and why the stool did not revert to them after the demise of Togbe Kotoku X, as he surmised that at the time of his demise there were suitable males available. I am of the view that the stool succession being a chieftaincy matter, which the High Court has no jurisdiction, ought not to have played a vital role in the analysis of the court below. I am also of the view that the trial judge overly highlighted the Plaintiffs’ testimony on the trust land (which is the Sende land) and therefore neglected the core issues of the case which, with respect also related to the Gbade and the Dornyi lands which the Appellants contended the Respondents have trespassed unto. And, whether or not based on all of the evidence, the Plaintiffs established their case on the balance of probabilities. [67] My Lords, principles for when an appellate court can interfere with the findings of a trial court were discussed by the Supreme Court in Agyenim-Boateng v. Ofori & Yeboah [2010] SCGLR 861. The court stated that: pg. 31 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT “It is the trial court that has the exclusive right to make primary findings of fact which would constitute building blocks for the construction of the judgment of the court where such findings of fact are supported by evidence on the record and are based on the credibility of witnesses when the trial tribunal has had the opportunity and advantage of seeing and observing their demeanour and has become satisfied of the truthfulness of their testimonies touching on any particular matter in issue. The appellate court can only interfere with the findings of the trial court if they are wrong because (a) the court has taken into account matters which were irrelevant in law, (b) the court excluded matters which were critically necessary for consideration, (c) the court has come to a conclusion which no court properly instructing itself would have reached and (d) the court’s findings were not proper inferences drawn from the facts. However, just as the trial court is competent to make inferences from its specific findings of fact and arrive at its conclusion, the appellate court is entitled to draw inferences from findings of fact by the trial court and to come to its own conclusions.” [Emphasis Mine]. vii. Conclusion & Disposition: [68] In my opinion, the conclusion reached by the learned trial Judge is not supported by the overwhelming evidence on record. As stated above, I am of the view that the trial judge overly relied on the testimony of the 1st and 2nd Plaintiffs’ witnesses and ignored the documentary evidence, being the surveyor’s report which showed the Appellants’ identity of the land and the boundaries. Also, I am of the respectful view that the judge ought to have looked at the case as a purely land matter rather than taking into account the chieftaincy succession of the stool in Kpenoe. In my view he overly amplified the story as to why the Agadzi family did not take the stool back after the demise of Togbe Kotoku X. [69] Also, by relying on traditional evidence to ascertain the veracity of the Appellants pg. 32 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT story that their forebears put the descendants of the Respondents on the land and disbelieving them, the judge ignored the fact that the Respondents failed to identify the lands they claim to own and gave out to third parties. For instance the judge’s statement at page 364 of the ROA that: “Plaintiff’s proof of mere trespass against anyone including Defendants who cannot show a better root of title. I find none! As brilliantly argued by defence counsel, I find indeed so, firstly that Defendants cannot be damnified for trespass to either the Sende land or the Gbade and Dornyi lands, as Defendants have time immemorial possessed these lands. They had done so not unknown to the Plaintiffs who have not raised any challenge until 2015.” as demonstrated earlier in this opinion, has no basis because long possession alone cannot be the reason for declaration of title when, as in this case the Appellants proved their root of title and properly identified the land. [70] Also, the trial judge’s exclusion of the testimony of the 2nd Defendant, which in my opinion was critical in his evaluation of the story of the Appellants without any reason was erroneous. Based on all of the above, I am of the respectful opinion that some of the inferences drawn from the facts by the trial court were not proper and therefore the Agyenim-Boateng v. Ofori & Yeboah supra principles are adaptable. The Agyenim- Boateng case recognized that the appellate court is entitled to draw its own inferences from findings of fact by the trial court and to come to its own conclusions. For these reasons, I am of the view that the judgment is indeed against the weight of evidence and ought to be reversed. I find that there is merit in the appeal filed by the Appellants and it succeeds and is hereby allowed. Judgement is entered for the Appellants based on the following orders below. [71] We would GRANT the Appellants relief “A” endorsed on the writ of summons based on the description and boundaries stated in the surveyor’s report tendered as Exhibit CW1. I shall also grant the Appellants relief “C” being the recovery of possession pg. 33 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT of the granted relief “A” lands together with Relief “D”. [72] We would DISMISS relief “E” and I would not interfere with the trial judge’s assessment of the traditional evidence on that. [73] We would set aside the costs awarded against the Appellants and award the Appellants general damages of GH¢20,000.00 for trespass onto the Gbade and Dornyi lands identified by the Appellants and which fall within the surveyor’s report granted for relief A above. The special damages is however different. The law requires that special damages are pleaded, particularized and proven strictly. See Delmas Agency Ghana Ltd v. Food Distributors International Ltd [2007-2008] SCGLR 748 and the old case of Chahin & Sons v. Epope Printing Press [1963] 1 GLR 163 SC, where the Supreme Court held that “where special damages are claimed it is not enough for the plaintiffs to write down the particulars, they have to prove them”. From the record I agree with the trial judge’s decision not to grant the special damages. The Appellants’ only pleaded and particularized but they failed to prove and therefore same is dismissed. Costs of GH¢20,000.00 awarded against each Defendant/Respondent. SGD ………………………………………….. KWEKU T. ACKAAH-BOAFO (JUSTICE OF THE COURT OF APPEAL) I AGREE …………………………………………. PHILIP BRIGHT MENSAH (JUSTICE OF THE COURT OF APPEAL) SGD I ALSO AGREE ………………………………………. SGD pg. 34 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT JENNIFER A. DODOO (JUSTICE OF THE COURT OF APPEAL) COUNSEL: RAYMOND AKPATSA FOR PLAINTIFFS/APPELLANTS JOAN AKURFAR OSEI FOR 1ST & 2ND DEFENDANTS/RESPONDENTS OSMAN GYAN FOR 3RD DEFENDANT/RESPONDENT pg. 35 TOGBE ANKUDEY & OTHERS v. SIMON KUAMPAH & OTHERS - JUDGMENT