Yeboah Vrs Karikari [2023] GHASC 90 (26 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA- A. D. 2023 CORAM: OWUSU (MS.) JSC (PRESIDING) LOVELACE-JOHNSON (MS.) JSC PROF. MENSA-BONSU (MRS.) JSC ASEIDU JSC KOOMSON JSC CIVIL APPEAL NO. J4/28/2020 26TH JULY,2023 OSEI YEBOAH …………. DEFENDANT/RESPONDENT/APPELLANT VS OSEI KARIKARI …………. PLAINTIFF/APPELLANT/RESPONDENT JUDGMENT OWUSU JSC:- On 26th November, 2018, the Court of Appeal, Koforidua allowed the appeal of the Plaintiff/Appellant/Respondent. In its judgment the Court of Appeal held among other things as follows: Page 1 of 24 “Having found that the trial judge erred in entering judgment for the defendants/respondents, we agree with the fifth ground of appeal that the judgment is against the weight of evidence led at the trial. We reverse the conclusions of the trial judge and rescind her order that the defendants/respondents recover the compensation paid to the plaintiff/appellant with interest. Appeal succeeds. We order a declaration of title against the defendants/ respondents for the land claimed in the writ of summons…… We award Gh₵5,000.00 general damages against the defendants/respondents for trespass. We order perpetual injunction restraining the defendants/ respondents, their agents, workmen, servants or assigns from entering upon the said land We award cost of Gh₵5,000.00 against the defendants/ respondents in favour of the plaintiff/appellant.” Dissatisfied with the decision of the Court of Appeal, the Defendant/Respondent Appellant appealed to the Supreme Court on the sole ground that: a. The Judgment is against the weight of evidence, with a rider that: b. Other grounds of appeal will be filed on receipt of the full Proceedings from the Court. It is noted for the record that no additional ground of appeal was filed. Also, in this appeal the designations of the parties at the trial court would be maintained. Accordingly, the Plaintiff/Appellant/ Respondent would be referred to simply as Plaintiff Page 2 of 24 and the 1st and 2nd Defendants as 1st and 2nd Defendants. Whilst the 3rd Defendant/Respondent/Appellant would be referred to as 3rd Defendant. Before dealing with the arguments advanced in support and against this appeal, we would give a brief background of the case. By his writ of summons, the Plaintiff claimed against the Defendants in this case at the High Court, Koforidua the following reliefs: a. An Order for declaration of title to the parcel of land situate lying and being at Kwayemu in the New Juaben Municipal Area bounded as follows: (i) On one side by the property of Kwabena Amoah (ii) On one side by the property of Boateng (iii) On one side by the property of Akua Antwua. (iv) On one side by the property of Adwoa Twei (v) On one side by the property of Kwabena Broja. b. Recovery of possession of the said land. c. Damages for Trespass. d. An Order of perpetual injunction to restrain the Defendants, their workmen, servants or assigns from entering the land. In the Statement of Claim which accompanied the Writ of Summons, the Plaintiff averred that, his late father, Kwabena Karikari purchased the land in dispute from Afua Dawa and paid twenty-seven (27) pounds as consideration on 14th December, 1951. The Plaintiff continued that, the family of Afua Dawa executed a document to transfer the said land to his late father which document was witnessed by the mother of the 1st Defendant Abena Kan and a family member of Afua Dawa. The 2nd Defendant’s mother Adwoa Twei and a member of Afua Dawa’s family also signed the document as a witness. The 3rd Page 3 of 24 Defendant is the grandson of Afua Dawa. It is the case of the Plaintiff that, without his consent and authority, the Defendants went unto the land and started selling portions of the land to persons. The Plaintiff concluded that, all warnings to the Defendants to desist from their trespass have failed hence this action. The Defendants in their amended Statement of Defence and Counter-claim denied Plaintiff’s claim. In particular the Defendants averred that, the Plaintiff’s land is situate at Kwayemu, Effiduase, whereas their land is situate at Kyekyewere. The Defendants averred further that; the disputed land does not form part of the land sold by Afua Dawa to Plaintiff’s father Kwabena Karikari. They therefore Counter-claimed for; 1. A Declaration that Afua Dawa’s family of Effiduase were in possession and were farming on the land situate and lying at Kyekyewere, Effiduase which land is described in paragraph seven (7) of their Statement of Defence. 2. Recovery of Ghs 100, 800.00 being the compensation received by the Plaintiff from the Roman Catholic Church which money ought to have been paid to the Defendants’ family. 3. 4. Interest at the Commercial Bank interest rate from the date of payment to the Plaintiff to the date the Plaintiff will make final payment to the Defendants. Any other reliefs the justice of the case may require. At the trial, the Plaintiff testified and called two witnesses. The 1st and 3rd Defendants also testified and called two witnesses. In the course of the trial, the trial Judge Ordered the appointment of a surveyor, to survey the land in dispute. The Court appointed Surveyor testified and tendered the Composite Plan and his report based on the Court’s Order as Exhibit CE1. Page 4 of 24 In the course of the trial, 1st and 2nd Defendants passed away but they were not substituted as they are related to the 3rd Defendant and from the same family fighting the family’s interest. At the end of the trial. The Plaintiff’s claim was dismissed by the trial High Court and the Defendant counter-claim was upheld. Aggrieved by the decision of the High Court, the Plaintiff appealed to the Court of Appeal which allowed the appeal and reversed the decision of the High Court hence the appeal before the Supreme Court. In arguing the appeal, counsel for the Defendant pointed out four (4) issues which in his view were not properly evaluated by the Court of Appeal. They are: 1. 2. 3. 4. The lack of capacity by the Plaintiff to initiate this action. Defendants’ long possession of the land in dispute which makes them owners of the land. The failure of plaintiff to identify his land by calling adjoining boundary owners. That the land in dispute is vested land by virtue of the Executive Instrument (E. I. 195) of 1961. Counsel for the Defendant then submitted that, since an appeal is by way of re-hearing, this appellate court has to study the entire record of appeal and find out whether or not the Judgment under appeal was justified and supported by the evidence on record. In other words, this appellate court is entitled to make its mind on the facts and draw inferences to the same extent as the lower court did. He cited the case of OSEI (Subst. by) GILLARD vs. KORAN-ANSAH [2013-2014] 1 SCGLR 221, 226 specifically at page 227 where ANSAH JSC relying on this Court’s decision of TUAKWA vs. BOSOM [2001- 2002] SCGLR 61 held that: Page 5 of 24 “An appeal is by way of re-hearing particularly where the appellant…alleges in his notice of appeal that, the decision of the trial court is against the weight of evidence. In such a case, … it is incumbent upon an appellate court, in a civil case, to analyze the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.” He continued that the parties are bound by their pleadings and that when a party is challenged that he has no capacity to sue, the party has the burden to prove that indeed he has capacity to sue. Counsel cited the cases of DAM S. ADDO [1962] 2 GLR 200 and OGBARME TETTEH vs. OGBARME TETTEH [1993-94] 1 GLR 353. He then argued that, the Plaintiff is not a member of Kwabena Karikari’s family as the former is a son of a male child from a matrilineal family. Counsel referred to the cross-examination of the Plaintiff at pages 31 to 36 of the record of appeal and submitted that the evidence of PW1 and PW2 trying to show that the disputed land belongs to the children of Kwabena Karikari conflicted with the pleadings and the endorsement on the Writ of Summons. He cited the case of DOTWAA & Another vs. AFRIYIE [1965] GLR 257 to buttress his point. Counsel for the Defendant continued on this point that, from the evidence of PW1 and PW2 the word they used is “gave to”. According to counsel this word in the Akan Language did not mean gift. Secondly, from the evidence of these witnesses, the Plaintiff’s father has been succeeded to by family members. Therefore, the property has become family property of Kwabena Karikari. He then submitted that, if the disputed land became family property as far back as in 1951, then the customary law procedure of gifting the property to the Plaintiff and his siblings ought to have been followed. Counsel cited the case of GIWAH & Others vs. LADI [2013-2014] 2 SCGLR 1139 holding (1) thereof at page 1141 to support his argument. Page 6 of 24 On Defendants long possession of the land, counsel for the Defendant had issue with the Court of Appeal when the latter held that the Defendant did not prove the root of its acquisition. He argued that, the Court of Appeal adopted a mechanical approach to the determination of who owns the land in dispute. He continued that the Defendant led evidence that they migrated from Ashanti to settle at New Juaben and broke the virgin forest, and planted cocoa on the land. According to counsel for the Defendant, the Plaintiff was not able to establish by credible evidence the acquisition of the disputed land as against the Defendant and therefore could not oust the latter’s uninterrupted possession. He concluded on this point that, the Plaintiff and his witnesses merely repeated their pleadings and urged us to allow the appeal. On the identity of the land in dispute, counsel for the Defendant submitted that the Plaintiff failed to prove his boundaries and thus failed to prove the identity of the land. This is because Exhibit CE1 did not support the boundaries of the Plaintiff as stated in paragraph 4 (a) to (e) of the Statement of Claim and this is fatal to the Plaintiff’s claim. Counsel also referred to the evidence on record that Plaintiff refunded part of the compensation paid him by the Roman Catholic Church to DW1. According to counsel, this witness said he shared boundary with the Defendant. Again, the Plaintiff did not dispute that DW2 family land shares boundary with the Defendant. Counsel for the Defendant cited the case of KWASI vs. DAVIES [2006] 2 MRG 950 on the need to call an adjoining boundary owner. He concluded on this issue that based on the decision in TAKORADI FLOUR MILLS vs. SAMIR FARIS [2005-2006] SCGLR 886 the Plaintiff is deemed to have admitted those facts that DW1 and DW2 share boundary with the Defendant. The last fact which was not properly evaluated according to counsel for the Defendant is that, the Court of Appeal failed to make a specific finding of fact on the Plaintiff’s claim for declaration of title to the land in dispute. This is because both parties led evidence to Page 7 of 24 show that the disputed land is vested land. The trial court only declared possession in favour of the Defendant and by virtue of the decision in the case of MEMUNA MOUDY & Others vs. ANTWI [2003-2004] 2 SCGLR 967, the Plaintiff is only a licensee on the land and cannot claim title to the land. Consequently, both the trial High Court and the Court of Appeal erred when they held that Plaintiff has proved his title to the land in dispute and this error is fatal to the Plaintiff’s claim. Counsel for the Defendant invited us to set aside the judgment of the Court of Appeal and uphold the appeal of the Defendant. In response to the submissions on the only ground of appeal filed that the judgment is against the weight of evidence, counsel for the Plaintiff argue that, the law is that this ground of appeal does not only cover matters of facts but matters of law as well. He cited the case of OWUSU-DOMENA vs. AMOAH [2015-2016] 1 SCGLR 790, 799 where Benin JSC stated the position of the Law as follows: “The sole ground of appeal that the judgment is against the weight of evidence throws up the case for a fresh consideration of all the facts and law by the Appellate Court.” He continued that, as a general rule of law, the Supreme Court in the exercise of its powers would only confine itself to grounds of appeal concisely stated in the Notice of Appeal. Counsel pointed out that per the Statement of case filed by the Defendant on 1st November, 2021, the latter raised issues bothering on the capacity of the Plaintiff. The issue of capacity was not raised as a ground of appeal in the Notice of Appeal filed and per Rule 6 (6) of the Supreme Court Rules 1996 CI 16 the Defendant is not to be heard on the issue of capacity. However, if this Court holds the view that justice of the case requires that the Defendant be heard on the issue of capacity, counsel for the Plaintiff submitted that, the Plaintiff had capacity to commence the action. This is because per the evidence on record the property in dispute was acquired by the Plaintiff’s father and as a Page 8 of 24 beneficiary of the estate of his father, he sued as the property has devolved upon the death of his father onto the children. Since the land in dispute was purchased by the late father of the Plaintiff, the latter was suing on behalf of the nuclear family constituted by the children as by law this property cannot be described as belonging to the wider family to warrant an action to be commenced by the customary successor to protect the family property. He referred us to the Book Principles of Customary Law in Ghana by N. A. Ollenu, pages 34 to 35 and submitted that the land in dispute is the personal property of the Plaintiff’s father Kwabena Karikari and not family property. Consequently, the Plaintiff has capacity to sue and defend the Counter-Claim of the Defendant and whether the Plaintiff belongs to the matrilineal or patrilineal family do not arise. On the ownership of the disputed land, counsel for the Plaintiff submitted that, the trial court in evaluating the evidence adduced before it rightly held that the Plaintiff had proved on the balance of probabilities his title to the land. He continued that in addition to his testimony the Plaintiff tendered the receipt evidencing the transaction between his late father and the said Afua Dawa. Counsel then submitted that the Defendant did not deny the sale of the disputed land from Afua Dawa to Kwabena Karikari but claimed the disputed land is at Kyekyewere. Per the pleadings in this matter, counsel argued, the Defendant gave no facts regarding the mode of acquisition of the land in dispute. He referred to paragraph 15 (a) of the amended Statement of Defence and argued that it does not meet the requirement of the law which is to plead facts and lead credible evidence on its root of title to the disputed land. Merely saying that the land is ancestral land will no tilt a judgment in his favour as Defendant and his witnesses led no evidence on their mode of acquisition. Counsel referred to the evidence of 1st Defendant at page 70 of the record of appeal where the latter stated that she does not know the land in dispute. He cited the case of ODOI vs. HAMMOND [1971] 1 GLR 375 to buttress his point. On the documents tendered by the Defendant, counsel for the Plaintiff submitted that there is no nexus between Akosua Adjeiwa in Exhibit “1” and Afua Gyamfua and Madam Yaa Page 9 of 24 Mansa in Exhibit “2” of the one part and the family of the Defendant. Secondly, there was no evidence to establish these lands referred to in Exhibit “1” and”2” were the same as the land in dispute. These Exhibits do not show how they are related to the land in dispute neither do they show the connection of the land and the authors to the land in dispute whether they are related in any way to Defendants’ family. Thirdly, the site plan of the Defendant does not describe the latter’s land as being at Kyekyewere. Counsel for the Plaintiff concluded on this issue that, the trial judge correctly found as a fact that the Plaintiff proved his father’s acquisition of the land in dispute but wrongly concluded that since Plaintiff could not prove possession he was not entitled to declaration of title. However, the Court of Appeal in evaluating the evidence on record held that the Defendants had not been able to provide any evidence to prove how they acquired the land in dispute except the bare assertion stated in their Statement of Defence which they merely repeated in their oral evidence. Counsel urged us to be slow in over-turning the above findings of fact which were confirmed by the Court of Appeal as a second Appellate Court. He cited the cases of ACHORO & Ano vs. AKANFELA & ANO. [1996- 97] SCGLR 209 and IN RE OKINE (Deced); DODOO & ANO vs. OKINE AND OTHERS] 2003-2004] SCGLR 582, 607. On the location of the land in dispute whether it is at Kwayemu or Kyekyewere, counsel for the Plaintiff submitted that the Court of Appeal rightly held that it was of no consequence. What is important is for the land to be identified. He continued that to assist in this exercise, the trial court appointed a surveyor to draw a composite plan based on the instructions filed by the parties. Counsel referred to the cross-examination and the answer given by CW1 on the names of the area he surveyed. He concluded that the issue in this case is not one of boundary but one related to title and the fundamental duty of the Court was to identify the land. Counsel for the Plaintiff concluded on this issue that even the Court appointed Surveyor could not tell Court whether the land in dispute is at Kwayemu or Kyekyewere. Page 10 of 24 The last issue that was not properly evaluated according to counsel for the Defendant is the fact that the disputed land is vested land per Executive Instrument (E. I. 195). On this issue, counsel for the Plaintiff cited the case of MEMUNA MOUDY & OTHERS vs. ANTWI [2003-2004] 2 SCGLR 967 and submitted that based on the case referred to supra, the Plaintiff could sue for a declaration of title to the land against the Defendants whom he has a better title or the true owner who can divest the Defendant of any interest in the land. On the payment of monies by the Roman Catholic Church, counsel for the Plaintiff submitted that, if the land in dispute is vested land as maintained by the Defendant all along, then the latter is not entitled to any monies received by the Plaintiff for the portion of the land the latter sold to the Church. He referred to page 15 of the Defendant’s Statement of Case and asked whether the Defendant’s claim in this suit was one for compensation for crops destroyed. Counsel answered the question in the negative and invited us to uphold the decision of the Court of Appeal and dismiss the appeal. As already stated in this Judgment, only one ground of appeal was filed and that is the Judgment is against the weight of evidence adduced at the trial. In her judgment, the trial High Court Judge made the following findings of fact. 1. 2. 3. That counsel for the Defendants in his addresses conceded to the fact that Plaintiff has capacity to sue. Exhibit 1 and 2 do not show any linkages between Defendants and all the individuals mentioned in the said Exhibits. The Defendants have not been able to prove by evidence how they acquired the land in dispute except their bare assertion stated in their Statement of Defence which they merely repeated in their oral evidence. 4. There is no linkage or connection between the Defendants oral evidence and their documentary evidence. Page 11 of 24 5. 6. 7. 8. On the issue of acquisition, on the preponderance of probabilities, the Plaintiff has been able to establish his acquisition of the land in question. Plaintiff failed to establish his boundaries or identity of the land he is claiming title to. Plaintiff was not able to prove that he was in possession of the disputed land. As to the location of the disputed land CW1, the Surveyor was not helpful as he stated that he could not determine whether the land in dispute is situate at Kwayemu or Kyekyewere. 9. The boundaries pleaded by the Plaintiff and supported by Exhibit “A” do not exist anywhere near the disputed land as shown in the Composite Plan. 10. Plaintiff has failed to establish a better title than the Defendant. The Court of Appeal also made the following findings of fact based on the evidence on record. a. b. c. The trial judge correctly stated the law on the burden of producing evidence and the burden of persuasion which lies on the parties. The trial judge correctly dismissed the issue of capacity of the Plaintiff which had been questioned by the Defendant. The trial Judge erred by failing to appreciate that the Plaintiff having proved the acquisition of the land from Defendants’ ancestor has a better title to the Defendants possession of the land. d. The land claimed by the Plaintiff is clearly delineated on the Composite Plan which also show the area in dispute. We stated the findings of the trial High Court Judge just to show that some of her findings do not support the conclusions she reached. Page 12 of 24 In resolving the issues raised in the only ground of appeal before us, we will start with the Plaintiff’s capacity first since capacity goes to the root of the case. In the case of the REPUBLIC vs. HIGH COURT, ACCRA; EX-PARTE ARYEETEY (ANKRAH INTERESTED PARTY) [2003-2004] SCGLR 398 @ 405 it was held that: “…. Any challenge to capacity therefore puts the validity of the writ in issue.” Before addressing the issue of capacity, we want to correct a statement made by the trial Judge in her judgment. The trial High Court Judge stated that counsel for defendant conceded in his address that the plaintiff has capacity to sue. This statement was also repeated by the Court of Appeal in its judgment. We have gone through the record of appeal particularly the Written Address of counsel for defendant at the High Court and no such concession was made either at the High Court or at the Court of Appeal. We wish to place this on record. The Defendant has challenged the capacity of the Plaintiff to initiate this action. Both the trial High Court and the Court of Appeal found that the Plaintiff has capacity to sue in this case. Even though the only ground of appeal before us is that “the judgment is against the weight of evidence” the Defendant raised the issue of capacity in his Statement of Case filed. We will address the issue so raised. This is because this Court has clarified its decisions in cases like DJIN vs. MUSAH BAAKO [2007-2008]1 SCGLR 686 and TUAKWA vs. BOSOM [2001-2002] SCGLR 61 that, when an appellant appealed on the omnibus ground that the Judgment of the lower Court 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 matter. See the case of OWUSU- DOMENA vs. AMOAH [2015-2016] 1 SCGLR 790,799 where Benin JSC stated the position of the law as follows: Page 13 of 24 “The sole ground of appeal that the Judgment is against the weight of evidence throws up the case for a fresh consideration of all the facts and law by the Appellate Court.” Rule 6 (6) of the Supreme Court Rules, 1996 CI 16 provides as follows: “The appellant shall not without the leave of the Court argue or be heard in support of any ground of appeal that is not mentioned in the Notice of Appeal; Rule 6 (7) goes on to provide that: Notwithstanding subrules (1) to (6) of this Rule the Court: (a) May grant an appellant leave to amend the ground of appeal upon such terms as the Court may think fit and (b) Shall not in deciding the appeal confine itself to the grounds set forth by the appellant or be precluded from resting its decision on a ground not set forth by the appellant.” The Defendant in his Notice of Appeal gave an indication to file further ground of appeal. However, no such further ground of appeal was filed nor leave sought from this Court to argue the issue of capacity, the Defendant would not be permitted to argue a ground of appeal not included in his Notice of Appeal. This Court spoke loud and clear when it held in the case of REPUBLIC vs. JUDICIAL COMMITTEE OF THE CENTRAL REGIONAL HOUSE OF CHIEFS; EX PARTE AABA [2001-2002] SCGLR 545 holding (1) of the headnotes where their Lordships stated that; “Rule 6 of the Supreme Court Rules, 1996 (CI 16), did not permit an appellant to argue a ground of appeal that was not set forth in his notice of appeal. And rule 6 (7)(b), which enjoined the court not to “confine itself to the grounds set forth by the appellant or be precluded from resting its decision on a ground not set forth by the appellant” was subject to rule 6(8); that rule meant no more than that the decision Page 14 of 24 to rely on a ground not set forth by the appellant rested solely with the court when any particular appeal before it the justice of the case required the court to rest its decision on a ground not relied on by the appellant in his notice of appeal. Rule 6(8) should not be taken as granting the appellant a general license to abandon his obligation under the rules…” In the words of Adzoe JSC; “The ostensible object of rule 6 is to identify and narrow down the issues raised by the appeal so as to expedite the hearing.” See also the case of TAMAKLOE & PARTNERS UNLIMITED vs. GIHOC DISTILLERIES CO LIMITED [2019-2020] 1 SCGLR (ADAARE) 176, 181 holding (1) of the report where their Lordships held as follows; “The issue of want of capacity to sue may be raised at any stage of the proceedings, even in the Supreme Court, which is the final court of appeal. However, that issue can only be properly raised in the Supreme Court, if it can be determined solely on the basis of the evidence on the record of appeal. In the instant case, the respondent raised the issue of the appellant’s lack of capacity to institute the action rather belatedly. The Supreme Court is unable at this stage of the proceedings to determine the issue of whether or not the appellant had capacity to institute the action to recover legal fees solely on the basis of the evidence on record, and, therefore, the objection to the capacity of the appellant to sue is dismissed.” This was a case counsel for the respondent raised the issue of want of capacity of the appellant to sue to recover legal fees in its Statement of Case and this Court made the above pronouncement. Page 15 of 24 Relating the case cited supra to the case under consideration, the Plaintiff testified to his capacity when he said under cross-examination: Q. What position do you hold in your family? A. My Lord I am the eldest son of my father and besides I am the only male amongst my father’s children. PW1, the sister of the Plaintiff in her evidence in chief said her father’s customary successor gave their father’s land to Plaintiff and his siblings as they were kids when their father died together with the receipt Exhibit “A”. PW2 the customary successor has corroborated PW1’s story in every material particular. If the disputed land was given to the Plaintiff and his siblings then the latter has capacity to sue. See the case of COLEMAN vs. TRIPOLLEN & 4 Others [2019-2020] 1 SCGLR 433 where the Supreme Court endorsed the evaluation of the evidence of the Plaintiff by the Court of Appeal on the former’s capacity this way: “The appellant established his capacity to initiate the suit, consequently, it would be unjust to non-suit the appellant just because he described himself as head of Madam Agoe’s family. The appellant per paragraphs 5, 7 and 8 has described the capacity in which he instituted this action as well as testified to that effect. See the case of Obeng vs. Assemblies of God Church, Ghana [2010] SCGLR 300, 315 where their Lordships held in holding (5) as follows: And since the courts existed to do substantial justice, it would be manifestly unjust to non-suit Plaintiff Church because they added the words “Executive Presbytery” to their name on the writ of summons. Courts must strive to prevent and avoid ambush litigation by resorting and looking more at the substance rather than the form. On the facts, once the Plaintiff Church has been registered as a corporate Page 16 of 24 entity under the Religious Bodies (Registration) Law, 1989 [PNDCL 221] the Plaintiff Church could not be denied the capacity which they already had.” Relating the case referred to supra to the case under consideration, PW2, the customary successor of the late Kwabena Karikari testified that the land in dispute has been given to the Plaintiff and his siblings. Therefore, the Plaintiff had capacity to initiate this suit. In coming to this conclusion, we are aware of the point raised by counsel for the appellant that the word PW1 and PW2 used is “gave to” and not a customary gift. This point will not advance the appellant’s case in anyway as the family of the late Kwabena Karikari is not disputing the fact that they have given the land to the latter’s children. In any event both the trial High Court and the Court of Appeal found as a fact that the Plaintiff had capacity to initiate this suit and as a second appellate court, we do not intent to disturb this finding. See the case of IN RE OKINE (DECD); DODOO and Another vs. OKINE and Others [2003-2004] SCGLR 582, 607 holding (1) of the headnotes where their Lordships held as follows: “An appellate court must not disturb the findings of fact made by a trial court, even if the appellate court would have come to a different conclusion, unless the findings of fact made by the trial judge were wholly unsupportable by the evidence. Therefore, where the evidence was conflicting, the decision of the trial court as to which version of the facts to accept to be preferred, and the appellate court might substitute its own view only in the most glaring of cases. That was primarily because the trial judge had the advantage of listening to the entire evidence and watching the reactions and demeanor of the parties and their witnesses…” This brings us to the issue of possession. The argument advanced by counsel for the Defendant is that since the Defendants have been in possession, the Court of Appeal ought to have given judgment in the latter’s favour. Possession in law it has been said Page 17 of 24 constitutes nine tenth of the law and a Plaintiff in possession has a good title against the whole world except one with a better title. See the case of OSEI (substituted by) GILARD vs. KORANG [203-2014] 1 SCGLR 221, 234-235 where ANSAH JSC in assessing the effect of the evidence of possession had this to say: “The evidence on record showed that the sixth defendant witness, Francis Kwaku Ansong, lived in the house after his mother, the respondent-defendant blessed a room for him because she owned the house. The Evidence Act, 1975 (NRCD 323), provided in section 48 (2) that: “A person who exercises acts of ownership over property is presumed to be the owner of it.” Possession, cannot ripen into ownership no matter how long it had been held or had.” (Our emphasis) On the issue of possession, the Court of Appeal held as a follow: “We therefore agree with counsel for the Plaintiff/ Appellant that the trial judge, having found that the Plaintiff proved his acquisition of the land by oral and documentary evidence, erred in holding that he was not the owner thereof because the defendant showed that they have been in long and undisturbed possession. This ground of appeal succeeds and it is upheld.” We agree and endorse this conclusion by the Court of Appeal. Possession is a presumption of ownership but it is a rebuttable one. In the instant case, the Plaintiff tendered Exhibit “A” to show his root of title and that is Defendant family member Afua Dawa sold the disputed land to Plaintiff’s father as far back as 1951. The sale was witnessed by family members of the Defendant. The description and or boundaries of the land sold in consideration of £27 has been stated in the document. The fact that the disputed land was sold to Plaintiff’s father was admitted by the 1st Defendant. This is what transpired between 1st Defendant and counsel for the Plaintiff. Page 18 of 24 Q: Who was the head of your family in the 1950s before you were born? A: Okyeame Addo Kofi. Q: I am putting it to you that those who sold the land to the Plaintiff’s father included the said Okyeame? A: It is true. Q: And he executed a document on the said land. A: Yes, my Lord. Q. What is the name of your mother? A. Abena Boahemaa popularly known as Abena Kaah. Q. You agree with me that she also took part in the sale of the land to Defendant’s father? A. Yes, she was submitted as substitute to the sale of the land. The cross-examination continued. Q. The land in dispute is at Kwaemu, not, correct? A. That is correct. The evidence of the location of the disputed land by 1ST Defendant corroborates the case of the Plaintiff. The law is that: Page 19 of 24 “Where the evidence of one party on an issue in a suit was corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stood uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reason (which must appear on the face of the judgment) the court found the corroborated version incredible or impossible.” See the case of ASANTE vs. BOGYABI AND OTHERS [1966] GLR 232. The 3rd Defendant also under cross-examination admitted his grandmother together with the family sold a portion of their land to the Plaintiff’s father. This is what 3rd Defendant said: Q: You agree with me that you grandmother and grandfather together with the family sold a portion of this land to the Plaintiff’s father? A: It is true but ours is at Kyekyewere. If the disputed land was sold to the Plaintiff’s father by the family of the Defendant as far back as 1951, which sale is evidenced by Exhibit “A”, then clearly the finding by the trial Judge that the Defendants are in possession of the disputed land is not supported by the evidence on record. This is especially so when the 1st Defendant admitted that the land in dispute is at Kwayemu, whilst the 3rd Defendant said the land in dispute is at Kyekyewere. This conflict between 1st Defendant and 3rd Defendant was not explained by the Defendants and same must be held against them. The Defendant also raised the issue of the identity of the land in dispute. Counsel for the Defendant had submitted that the Plaintiff was unable to call his adjoining boundary owners and that is fatal to his case. We disagree with this submission for the following Page 20 of 24 reasons. In the first place this is not a boundary dispute. Secondary, the Defendant says his land is at a different location. Thirdly, the Plaintiff described his land in his writ of summons. Fourthly, The Plaintiff tendered Exhibit “A” which stated the boundaries of plaintiff’s land. The court appointed Surveyor went to the land with the parties after the later have filed their Survey Instructions to the court and showed their respective land to the Surveyor. The Surveyor drew a Composite Plan which was tendered in evidence as Exhibit CE1. On Exhibit CE1 the land claimed by the Plaintiff is clearly delineated. The area in dispute is also shown. From Exhibit CE1 at page 175, the Plaintiff’s land as shown on his site plan encompasses the disputed land. In the words of the Court of Appeal: “The court appointed a surveyor who drew and tendered as Exhibit CE1 a Composite Plan of the land claimed by both parties. The land claimed by the Plaintiff is clearly delineated on the composite plan which also shows the area in dispute. Any judgment for either party will relate to the boundaries as demarcated in the Composite Plan Exhibit CE1 which have the gridlines which can be identified on the map and ground by any surveyor.” From the above statement, the submission by Defendant and his counsel that the Defendant’s land is elsewhere is not tenable. In fact, CW1 under cross-examination said the location of the disputed land has different names. This is what he said in response to a question from counsel for Plaintiff. “Q: The place you went to conduct the survey, is the place called “Kyekyewere” or “Kwayemu? A: I could not determine the location name but I asked around and from my research the site plan that was given by one of the parties have the location name as Sector 17 and then I Page 21 of 24 got two other names as well for the same place that is Kyekyewere and Kwayemu so I cannot best say what the actual name of the place is.” This piece of evidence from CW1 corroborates plaintiff’s evidence that the disputed land Kwayemu is also referred to as Kyekyewere The last issue which was not properly evaluated according to counsel for the Defendant is the fact that the disputed land is vested land manage by the Lands Commission per the New Juaben Executive Instrument (E. I 195) of 1961. Therefore, the land is vested in the President on behalf of the stool. In his statement of case filed on the 1st of November, 2021, counsel for the Defendant submitted that since the land is vested land, “both the Appellant and the Respondent have no title to the land and if they can make any claim, it will be for their crops destroyed. The evidence shows that the Respondent has nothing on the land but the Appellant has food crops on portions of the land in dispute.” See page 15 of the Defendant’s Statement of Claim. We have already addressed the Defendant’s possession and have held that it does not ripe into ownership. Counsel for the Defendant has also submitted that it is the Lands Commission which has the right to convey portions of the land to developers. That being the case, then the Defendant concedes that he is not entitled to the consideration paid to the Plaintiff for the portion of his land sold to the Roman Catholic Church. The case of MEMUNA MOUDY AND OTHERS VS. ANTWI [2003-2004] 967, relied on by both counsel support the proposition that an owner of land who continues to remain on the land even after the land was vested in the State can maintain an action or defence based on his adverse possession. In the words of Wood JSC (as she then was) at page 969 of the report: “Since the statute does not expressly bar the acquisition of any interest whatsoever in the land by the previous owner or persons claiming through him, in the future, I find it difficult to agree with the proposition that an owner who nevertheless Page 22 of 24 continues to remain on the land even after the land was vested in the State cannot maintain an action or defence based on the adverse possession, nor raise the Limitation Decree, 1972 in support of his claim to title. In actuality, a previous owner can maintain an action or defence based on such adverse possession.” Based on the case referred to supra, the Court of Appeal rightly dismissed the Defendant’s appeal. We hereby dismiss the appeal and affirm the decision of the Court of Appeal together with the consequential orders dated 26th November, 2018. M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) A . LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) PROF. H. J. A. N. MENSA-BONSU (MRS.) (JUSTICE OF THE SUPREME COURT) S. K. A. ASIEDU (JUSTICE OF THE SUPREME COURT) Page 23 of 24 G. K. KOOMSON (JUSTICE OF THE SUPREME COURT) COUNSEL FRANK G. DONKOR ESQ. FOR THE DEFENDANT/RESPONDENT/APPELLANT DENNIS-MICHAEL AYETTEY ESQ. FOR THE PLAINTIFF /APPELLANT /RESPONDENT Page 24 of 24