AMENYANYO & 4ORS. VRS ADRE & 2ORS. (A1/06/2021) [2023] GHADC 1219 (20 October 2023)

1 IN THE DISTRICT COURT HELD AT ADIDOME ON FRIDAY THE 20TH DAY OF OCTOBER, 2023. BEFORE HER WORSHIP MOLLY PORTIA ANAFO-SALIA (MRS) (DISTRICT MAGISTRATE) SUIT NO. A1/06/2021 1 . DOVI AMENYANYO ] 2 . ATSU AMENYANYO ] ............... PLAINTIFFS 3 . AKU AMENYANYO ] ALL OF MEPE ] VRS. AMEVI ADRE OF MEPE PER HER ] LAWFUL ATTORNEY MR. GANYUIE ]................ DEFENDANT AMEDAGBE HAYFORD ] PARTIES 1 . PLAINTIFFS PRESENT. 2 . DEFENDANT’S LAWFUL ATTORNEY PRESENT. J U D G M E N T The Plaintiffs instituted the present action against the Defendant seeking the following reliefs: (A) A declaration of title to all that piece of land situate and lying at JSS road, Mepe measuring 186 x 84 feet and bounded on the North by Pentecost road, South by Woyifa Adre’s property, East by Adae Agbavitor property, by West by Amevi Adre’s property. (B) Recovery of Possession of the subject matter. (C) Perpetual Injunction restraining Defendant, her agents, workmen, assigns or any person acting or claiming through her from further acts of trespass, and (D) Costs. The Defendant pleaded NOT LIABLE to all the reliefs. The Plaintiffs filed their Statement of Claim as follows: 1. Plaintiffs are native of Mepe and members of the Adre family, 2. Defendant is also a member of Plaintiff’s family, 3. Plaintiffs aver that the family had a piece of land measuring 186 x 84 feet, located at JSS Road, Mepe 4. Plaintiffs aver that the land originally belonged to their great great grandfather, Togbe Asidi, 5. Plaintiffs aver that Togbe Asidi begot Kpormegbe, Kpormegbe begot Adre, Adre begot Avielewornu, 6. Plaintiffs say that Adre gave part of his share of the land to his daughter Avielewronu, 7. Plaintiffs further say that this land was later shared among the four (4) children of Avielewornu namely: Kwasi Foe Amenyanyo Adre, Woyifa Adre, Amevi Adre (Defendant) and Akuyovi Adre, 8. Plaintiffs aver that their father, Kwasi Foe Amenyanyo Adre gifted his portion of the shared land to his children including the plaintiffs which was witnessed by the entire family members including the family head, Togbe Adre Fornyikpor together with Amevi Adre (Defendant), 9. Plaintiffs say that they have been in peaceful possession and occupation of the said land without any hindrance from any quarters, 10. Plaintiffs say that the land is bounded as follows: On the North by Pentecost Church; On the South by Woyifa Adre; On the East by Adre Agbavitor land, On the West by Amevi Adre the Defendant. 11. Plaintiffs aver that Defendant had trespassed onto the Plaintiffs gifted land and started developing same without permission and approval from the Plaintiffs, 12. Plaintiffs say that all warnings to Defendant about her acts of trespass have gone unheeded as she continues to build, 13. Plaintiffs aver that on various occasions the Defendant was invited by the Head of Family, Togbe Adre Fornyikpor and Kito Adzavu for amicable settlement but the Defendant did not heed to their advice, 14. Plaintffs further aver that the Defendant was also invited by Torgbui Adzima IV of Mepe but Defendant refused to honour the invitation, The Defendant filed her Statement of Defence and Counterclaim as follows: 1. Defendant admits paragraph 1 and 2 of Plaintiffs Statement of Claim. 2. Defendant denies the averment contained in paragraph 3 and shall put Plaintiff to the strictest proof of it thereon, 3. Defendant in reply to paragraph 3 states that, she requested from the then Head of family of Adre family, Torgbe Noamesi Edmund Kpormegbe Adre and his elders, a piece of land to build a dwelling place, 4. Defendant further reply that Torgbe Noamesi Edmund Kpormegbe Adre granted and gifted parcels of land to some other members of Adre family such as Mansavi Adre, Grace Adre and others including Kwasi Foe Amenyanyo Adre based on their request in the same area, 5. Defendant in further reply to paragraph 3 states that, she was gifted a piece or parcel of Adre family land with a measurement of 86 by 100 feet more or less, situate and lying at a place commonly known as Pentecost Road, Mepe in the North Tongu District of the Volta Region and commonly bounded as follows: a. On the North by the Pentecost Road with a measurement of 86 feet more or less. b. On the South, by the property of Grace Adre, with a measurement of 86 feet more or less, c. On the West by the property of Patience Nyadzi with a measurement of 100 feet more or less. d. On the East by the property of Adayi Agbavitor with a measurement of 116 feet more or less. 6. Defendant admits the averment contained in paragraph 4 and partially paragraph 5 to the strictest proof thereon of paragraph 5. 7. Defendant in reply to paragraph 5, states that Torgbe Asidi did not only begot Kpormegbe but also begot other children namely Agbodzavu, Ganyuie, Donutsor and others. 8. Defendant denies the averment contained in paragraph 6 and 7 and shall put Plaintiffs to the strictest proof of it thereon, 9. Defendant in reply to paragraph 7 states, that the land in her possession now has not been shared among them, Plaintiffs father Kwasi Foe, Woyifa Adre and Akuyovi Adre but was a land duly granted and gifted to her by Torgbe Noamesi Edmund Kpormegbe Adre and his elders in 2004. 10. Defendant denies the averment contained in paragraph 8 and shall put Plaintiffs to the strictest proof of it thereon, 11. Defendant in reply to paragraph 8, states, that it was during the reign of Torgbe Noamesi Edmund Kpormegbe Adre that she was granted and gifted the land in 2004, and not Adre Fornyikpor and also Defendant did not witness and was not privy to any sharing of land by Adre Fornyikpor as claimed, 12. Defendant denies the averment contained in paragraph 9 and shall put Plaintiffs to the strictest proof thereon. 13. Defendant in reply to paragraph 9, states that, Plaintiffs have no structure nor neither occupied Defendant’s piece of land before she was granted and gifted that piece of land by Torgbe Noamesi Edmund Kpormegbe Adre and his elders in 2004, 14. Defendant in further reply to paragraph 9, states that, she has been in peaceful possession of her land granted and gifted to her by the then head of family Torgbe Noamesi Edmund Kpormegbe Adre in 2004 and have since been in the building Defendant built and moved in 2008 till now, 15. Defendant in further reply to paragraph 9, states that, she commenced constructing her building in 2005 and finally moved to live in her building in 2008 and have since been in peaceful possession without any hindrance until recently when Plaintiffs tried to encroach on some portion of the land, 16. Defendant in further reply states that Plaintiffs father Kwasi Foe did not challenge Defendant, when Defendant commenced developing the land and moved in to stay in it, in November 2008, 17. Defendant states that, she peacefully enjoyed and have oversight responsibility and possession to the land for Ten (10) years without any hindrance from Plaintiffs, father nor Plaintiffs until Plaintiffs, father died in 2014 and five (5) years after Plaintiffs father’s death, Plaintiffs started harassing and claiming Defendant’s land in 2019, 18. Defendant states Plaintiffs act of trespass started in 2019, when 1st and 3rd Plaintiffs in the company of other people destroyed Defendant’s kitchen which case was reported to Aveyime Police, based on that, Aku Amenyanyo, 3rd Plaintiff was arrested, 19. Defendant states that the Police Officers at Aveyime Police Station advised 3rd Plaintiff and his other siblings to meet Defendant for settlement in October, 2019 but 3rd Plaintiff and siblings failed to do so, 20. Defendant states that, the Aveyime Police also advised 3rd Plaintiff to reconstruct the kitchen for Defendant, but failed and rather paid GH₵500.00 to Defendant for the reconstruction at a later date, when the Aveyime Police threatened to process 3rd Plaintiff to court, 21. Defendant denies the averment contained in paragraph 10 and shall put Plaintiffs to the strictest proof thereon., 22. Defendant states that, Plaintiffs father Kwasi Foe was also gifted some land by Torgbe Noamesi Edmund Adre at the Western portion of Defendant’s land, but plaintiffs father, Kwasi Foe sold the land to one Patience Nyadzi who now shares a common boundary with Defendant at the Western portion of Defendant’s land, 23. Defendant denies the averment contained in paragraph 11 and 12, 24. Defendant in reply to paragraph 13, states that at an arbitration headed by Togbe Adre Fornyikpor in 2016, Togbe Adre Fornyikpor decided to revise Togbe Noamesi Edmund Kpormegbe Adre gift of land granted to Defendant in 2004 and also Defendant ever denied been invited by Kito Adzavu for any arbitration, 25. Defendant admits the averment contained in paragraph 14 and failed to honour the invitation because 2nd Plaintiff had threatened Defendant on countless occasions and for fear of her life, Defendant failed to honour the invitation as 2nd Plaintiff and his gang were always around to do the untold, COUNTERCLAIM Defendant counterclaim as follows: 1. Declaration of title and recovery of possession of all that piece of land with a measurement of 86 feet by 100 feet more or less and bounded as follows: a. On the North, by the Pentecost Road with a measurement of 86 feet more or less, b. On the South by the property of Grace Adre with a measurement of 86 feet more or less, c. On the West by the property of Nyadzi with a measurement of 116 feet more or less, d. On the East by the property of Adanyi Agbavitor with a measurement of 116 feet more or less, 2. Perpetual Injunction, restraining Plaintiffs, their agents, assigns, privies, workmen and any other person claim right of ownership to the disputed land through Plaintiffs, 3. General damages of GH₵20,000.00, 4. Costs of litigation that this Honourable Court may deem fit. 5. And for any further order(s) that this Honourable Court may deem fit. The legal proposition or principle in all civil cases is proof by preponderance of the probabilities. This principle is enshrined in the Evidence Act, 1975 (NRCD 323) and other case Laws. Section 11 (1) provides: “For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue”. Section 10 (1) may also be stated as follows: ................... The burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact the mind of the tribunal of fact or the court”. Section 10 (2) states: “The burden of persuasion may require a party to raise a reasonable concerning the existence or non-existence of a fact by a preponderance of the probabilities. And “preponderance of the probabilities” according to Section 12 (2) of NRCD 323 means the degree in the mind of the tribunal of fact or the court which it is convinced that the existence of a fact is more probable than its non-existence”. The combined effect of Section 11 (1), 10 (1) land (2), 12 (1) and (2) of the Evidence Act may simply be stated that the Plaintiff is under a strict statutory obligation to establish a requisite degree of belief on the preponderance of the probabilities. This the Plaintiffs ought to prove that indeed and infact the land in dispute was their late father’s share of the Adre family land. This same principle, thus the standard burden of proof as stated in the Evidence Act supra was held in the case of Agyemang Boateng & 28 Others v. S. K. Boateng [2009] G. M. J 58 at page 62 – 63 CA, thus: “the law has always been that a person who makes an averment or assertion which is denied by the opponent has the burden to establish that his averment or assertion is true. And he does not establish this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of such averment or assertion of that burden”. “In a civil case such as the instant case the Plaintiff has the duty and or obligation to prove his case on a balance of probabilities and that no weakness in the Defendant’s case can avail him. In simple and unambiguous language, the rule is that the Plaintiff has the burden of proof and persuasion in the civil case. The nature of this burden has now been given statutory definite and expression in Ghana in Sections 10 (1) and (2) 11 (1) and (2) of the Evidence Act, 1975 (NRCD 323)” Further that, “thus by the provision of Sections 10 (1) and (2) and 11 (1) of the Evidence Act 1975 (NRCD 323), the obligation of a Plaintiff in a civil case to prove his on a balance of probabilities and on preponderance of evidence is now Statutory. Before the enactment of NRCD 323 the obligation on the Plaintiff in the civil case was simply a rule of practice as propounded in the case like Majolagbe v. Larbi [1959] GLR 190 and further explained and expanded on in the recent case of Zabrama v. Segbedzi [1981) 2 GLR CA page 71 – 72”. A Defendant is not bound to counterclaim against the Plaintiff. If a Defendant puts in a counterclaim it must be proved to the satisfaction of the court, as a counterclaim is an independent action, the case of Fosuhene v. Wusu [2011] 32 GMJ 383 SC. The Defendant in the present action, filed a counterclaim and by extension becomes a Plaintiff as a counter claimant. This was clearly stated by Rose Owusu JSC (as she then was) in Sasu Bamfo v. Sintim [2012] 1 SC GLR 136 at 156 that “A counter claim is a different action in which the Defendant as a counter claimant is the Plaintiff and the Plaintiff in the action becomes a Defendant where both parties were seeking declaration of title, recovery of possession and perpetual injunction in respect of the disputed piece land, each of them have the burden of proof and persuasion to prove conclusively on a balance of probabilities that he was entitled to the reliefs claimed. Thus Section 11 (1) of the Evidence Act, 1975 enjoins the Defendant in its capacity as a Plaintiff in a counter claim to introduce sufficient evidence to avoid a ruling on the issue against him”. The Plaintiffs assumed the burden to prove their case against the Defendant. The 3rd Plaintiff, Aku Amenyanyo who joined the suit testified on behalf of the Plaintiffs, filed his witness statement and that of Torgbui Fornyikpor Adre as PW1, he also filed Exhibit ‘A”. The Defendant’s Attorney, Ganyuie Amedagbey Hayford equally filed his witness statement and that of Mamavio Adre and Ganyuie A Nicholas as DW1 and DW2 respectively as well as Power of Attorney as Exhibit ‘1’. Aku Amenyanyo, the 3rd Plaintiff herein stated that, the land originally belonged to their great great grandfather, Togbe Asidi. Togbe Asidi begot Kpormegbe, Kpormegbe begot Adre and Adre begot Avielewonu. That Adre gave part of his land to his daughter Avielewornu. Avielewornu had four children, Kwasi Foe Amenyanyo Adre, Woyifa Adre, Amevi Adre and Akuyovi Adre and her portion of the land shared amongst them. According to 3rd Plaintiff, Kwasi Foe Amenyanyo Adre who is their father gifted his share of the land to them his children which was witnessed by the entire family including PW1 and Defendant Amevi Adre. That they have been in peaceful possession until Defendant, Amevi Adre trespassed onto part of the land. All efforts to stop her from her acts of trespass was not successful. That the land is bounded on the North by Pentecost road, on the South by Woyifa Adre, on the East by Adae Agbavitor and on the West by Amevi Adre. Their sole witness, Torgbui Fornyikpor Adre and author of Exhibit ‘A’ evidence was not different from 3rd Plaintiff. It was a corroboration but added that, he on various occasions invited Defendant and advised her to cease her development as that portion belonged to the plaintiffs but all never yielded any results. Again, that Togbe Adzima V. and Togbe Kito Agbodzavu also intervened but Defendant never honoured their invitation. They were cross examined by the Attorney and this closed their case. The Attorney opened his defence and stated that, the Defendant requested for a piece of land from the then head of family, Noamesi Edmund Kpormegbe Adre in 2004 for a dwelling place and same granted and gifted to her. That as the norm of tradition, there was appreciation by the Defendant. She presented a bottle of Schnapps, a bottle of Akpeteshie, a bottle of Kasapreko Gin and an amount of Five Ghana Cedis (GH₵5.00) to the grantor and his elders. Further, that Defendant has been in possession since 2008 when she constructed her building thereon and been in occupation. Plaintiffs father, Kwasi Foe never challenged her status as the owner of the land till he died in 2014. Kwasi Foe during an interaction had indicated that he sold a piece of land to Patience Nyadzi and he did so because he had other lands. That the land in dispute does not belong to Kwasi Foe and never the property of Avielewornu, Plaintiffs grandmother. The gifted piece of land has a measurement of 86 by 100 feet more or less and bounded on the North by the Pentecost Road, on the South by the property of Adre Grace, on the West by the property of Patience Nyadzi and on the East by the property of Adayi Agbavitor. The evidence of Ganyuie A. Nicholas was that, Defendant, his mother made a request for land for herself from Torgbe Noamesi Edmumd Kpormegbe Adre and his elders in 2004 and same was granted. That defendant has since been in peaceful possession, until Plaintiffs recently started to make false claim to the land. The 2nd and last witness of Defendant, Mama Vio Adre evidence was to the effect that Amevi Adre her, cousin and Defendant herein requested for a land from the then Head of family Torgbe Noamesi Edmund Kpormegbe Adre and elders and was gifted and granted a piece of land to defendant somewhere in 2004 at a place commonly known as Pentecost Road, Mepe. According to Mama Vio Adre, Plaintiffs grandmother Avielewornu also owned some land situate on the Pentecost Road which was to be shared to her children including the Defendant and Kwasi Foe but same was sold to Patience Nyadzi by Plaintiffs father, Kwasi Foe to solve his personal problem without the consent of his other siblings. The 3rd Plaintiff cross examined them after their evidence and this closed Defendant’s case. Equally important was the evidence of Togbe Kito Agbodzavu whose name featured prominently in the proceedings especially at paragraph 13 of Plaintiffs Statement of Claim and Defendant’s Statement of Defence at paragraph 25. The court then invited him as a Court Witness. He stated that, the Defendant brought a matter before his stool father one Kwao Agbodzavu and his elders. The matter was farm land turned into building plot. They sat on the matter and delegated some people to go and share it among the four (4) children beneficiaries namely: Kwasi Foe, Woyifa, Akuyovi and Amevi and same done. That Woyifa’s daughter built a house on her mother’s land after the sharing. The Plaintiffs also came to do same on their father’s portion and Amevi Adre came to him that she does not want the Plaintiffs to develop their father’s land for the simple reason that her daughter lived with plaintiffs father and nothing was done for her and therefore was not in agreement for Kwasi Foe’s children to claim their father’s land. According to him, he told her that could not be possible that the land was part of their mother’s estate and shared among the biological children. Therefore, her daughter cannot be a direct beneficiary and the family could resolve the issue. Later he heard the matter has been brought to court. He was cross examined by the parties. The legal issues to be determined: i. whether or not the parties satisfied the requirement to succeed for declaration of title to land; ii. whether or not parties are possessors of the recognized by law; iii. whether or not the Defendant is entitle to her counterclaim; and iv. whether or not the Plaintiffs are entitle to their reliefs. The Plaintiffs and the Defendant are claiming ownership of the subject which they gave the boundaries as follows: On the North by Pentecost Church; On the South by Woyifa Adre; On the East by Adae Agbavitor; and On the West by Amevi Adre the Defendant, with the entire subject matter measurement 186 by 84 feet and A gifted land with a measurement of 86 by 100 feet more or less and bounded as follows: On the North by the Pentecost Road with measurement of 86 feet more or less; On the South by the property of Grace Adre with measurement of Grace Adre with measurement of 86 feet more or less; On the West by the property of Patience Nyadzi with a measurement of 100 feet more or less; On the East by the property of Adayi Agbavitor with a Measurement of 116 feet more or less; The Plaintiffs are seeking declaration of title to land and other reliefs, they will succeed only if they are able to establish the identity of the land in question satisfactorily according to law so as entitle them to the reliefs. The onus of proof required by law regards the identity of land would be discharged by meeting the conditions clearly stated in the case of Tetteh v. Hayford [2012] SC GLR 417 citing the case of Kwebena v. Atuahene [1981] GLR 136 thus: i. the Plaintiff has to establish positively the identity of the land which he claimed title subject matter to the suit, ii. Plaintiff has to establish all his boundaries, iii. where there is no properly oriented plan drawn to scale, which made compass bearings vague hold that the Plaintiff has not discharged the onus of proof of his title”, Again, in an action for declaration to land, the Plaintiff must prove with certainty the boundaries of the land claimed, the positive evidence of identity and limits of the land he claims, the case of Nyikplorkpo v. Agbedotor[1987-88] 1 GLR 65 at 171. See also: Osae v. Adjeifio [2008] 4 GMJ 149 SC; [2007-2008] SC GLR 499. The reasons why the disputed land subject of the claim must be clearly identified as well stated by Ollennu JSC (as he then was) in Anane v. Donkor (1965) GLR 188 at 192 as follows: “where a court grants declaration of title to land or makes an order for in respect of land, the land subject matter of that declaration should clearly be identified so that an order for possession can be executed without difficulty and also if the order for inunction is violated, the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain. Again, a judgment for declaration of title to land operate as res judicata to prevent the parties re-litigating the same issues in respect of the identical subject matter, but it cannot so operate unless the subject matter thereof is clearly identified”. The matter before the court, is ownership and the right to alienation in immovable property law in Ghana. Ownership generally to any immovable property embraces possession of and title to it. An owner therefore, is a person who can show that he and those through whom he claims title have possessed the land for so long, that there can be no reasonable probabilities of the existence of a superior adverse claim, page 103 of Land Law and Conveyancing by Da Rocha and Lodoh. The 3rd Plaintiff who testified for himself and on behalf of 1st and 2nd Plaintiffs case is that, his late father, Kwasi Foe Amenyanyo Adre inherited a piece of land from his late mother Avielewonu as one of the surviving four children. Later, Kwasi Foe gifted same to his children including the Plaintiffs and this was witnessed by the entire family in the presence of the Defendant. That Defendant started to develop the land which they have been in peaceful possession. Not even the intervention of Togbe Adre Fornyikpor, could get the matter resolved as Defendant failed to avail herself. He gave the dimension of the subject matter as 186 feet by 84 feet and bounded as follows: On the North by Pentecost Church; On the South by Woyifa Adre; On the East by Adae Agbavitor and On the West by Amevi Adre, the Defendant. Their sole witness, PW1 Torgbui Fornyikpor Adre corroborated Plaintiffs evidence that the subject matter is the property of the Plaintiffs which Defendant has trespassed. That, he has personally on several occasions invited the Defendant to cease her acts of trespass but all was an exercise in futility. Efforts by Togbe Adzima IV and Togbe Kito Agbodzavu yielded not results as Defendant refused to honour their invitation. He authored Exhibit ‘A’. The Defendant whose Attorney testified also claimed ownership of the subject matter and stated its dimensions measured to be 86 feet by 100 feet more or less and bounded as follows: On the North by the Pentecost Road with measurement of 86 feet more or less; On the South by property of Grace Adre with measurement of 86 feet more or less; On the West by the property of Patience Nyadzi with a measurement of 100 feet more or less; On the East by the property of Adayi Agbavitor with a Measurement of 116 feet more or less. That the land was a request made to the then head of family Togbe Noamesi Edmund Kpormegbe Adre and it was gifted and granted to Defendant. As custom demands, she showed appreciation and presented a bottle Schnapps, a bottle of Akpeteshie, a bottle of Kasakpreko Gin and an amount of GH₵5,00 to Togbe Noamesi and his elders in 2004. Defendant commenced construction and in 2008, she occupied the place peacefully until 2019 when the Plaintiffs started to harrass her. That there was no land shared among the children of Avielewornu and that the subject matter was a gift to her. The two (2) witnesses of the Defendant, DW1, Nicholas A. Ganyuie evidence was that he was present when Defendant made the request to Togbe Noamesi for the land and same granted. That the request was made for Defendant alone but not on behalf of any other person. Defendant built her house and occupied same in 2008. That recently Plaintiffs started making false claim to the land. DW2, Mama Vio Adre stated that in 2004, Defendant made a request to Togbe Noamesi the family head then for the subject matter and same gifted and granted to her. That Kwasi Foe, Plaintiffs father sold the mother’s land to Patience Nyadzi which Defendant and other children of Avielewornu had interest. That the subject matter has never been the property of Avielewornu. From the above, the issue of gift comes to play as how the parties acquired their land and possessed same. The two ways one can become a lawful possessor of title over land in Ghana, is to have that title registered or have such title formally transferred by customary law. In the instant case, the Plaintiffs mode of acquisition is by gift from their father Kwasi Foe who inherited same from his mother, Avielewornu. The Defendant also stated that her mode of acquisition is by gift from Togbe Noamesi who upon request granted the subject matter to the Defendant. The evidence on record does not show that the land has been registered and since the legal registration is not in controversy, then the issue is based on customary law. It is also evident that not until Kwasi Foe died, Plaintiffs could not have been claimed the land. PW1 who testified on behalf of the Plaintiffs authored Exhibit ‘A’. It regularized the sharing of Avielewornu’s land to her four children. Apparently, it was to put off Defendant’s acts of trespass and allowed all of them entry onto their portions and possessed same. Thus, it follows that the Plaintiffs and Defendant are both possessors at Customary Law especially the execution of Exhibit ‘A’. The issue to be determined is whether or not Defendant is a possessor of land recognized by law. In Ghana, there are two main ways a person could become a lawful possessor of title over land. One of the ways is to have that title registered and the other is to have such title formally transferred by Customary Law. In this case, the Defendant’s claim to the land is based on gift and grant. Apart from this, she has not proved any form of legal possession by showing that the land has been registered in her name. Since the issue of legal registration has not been contended in this but it is based on Customary Law, I move to the customary issue that came with this matter. First of all, in order to become rightful possessor of land at Customary Law, if must have been transferred to the party claiming lawful possession by certain means. In Bruce v. Quaynor and Others [1959] GLR 292-299, it is the principle established that conveyance of land made in customary is effective from the moment is made. What, occasion such conveyance? One of the ways such conveyance is effected is through sale or gift. A gift is akin to a sale in which the vendor asks for no form of consideration to be given and expects none. Thus, a gift is a voluntary transfer of title to another at no cost. The same way a sale is effected when effecting a gift, the donor must be the owner of the land, must have the competence to transfer it and must fully intend and purport to give the same. In – Yoguo and Anor v. Agyekum and Others [1966] GLR 482-520, the Supreme Court laid out essential requirements for valid gifting of Customary Law land: 1. There must be a ceremony of transfer, 2. Publication of living and dead from the donor to the donee, 3. Pouring of libation, 4. Aseda (in some places it is a ram, some bottles of Schnapps and some money)” In Justice N. A. Ollennu’s Principles of Customary Land Law in Ghana pages 112 -113, he stated that: “To constitute valid customary gift there must be 1. A particular estate or interest in the land which is to pass from the donor to the donee, 2. An acceptance of the gift by the donee in the lifetime of the donor, 3. The delivery of the gift should have as much publicity as the circumstances of each case would warrant.” Again in Beatrice N. Asare v. Teing & Another [1968] GLR 155 quoted by N. A. Ollenu in the above mentioned book, it was stated therein that “the essentials of a valid gift made in accordance with customary law are: publicity, acceptance and placing the donee in possession. The way to give publicity to a gift is to make the gift in the presence of witnesses particularly those members of the family of the donor who could succeed to the property upon the donor’s death intestate. The acceptance must evidenced by the presentation of drinks or some small amount of money to be shared among the witnesses to the transaction...................... In the absence, however, of publicity of the gift at the moment of its being made, sufficient evidence and publication of the gift will be provided by the donee’s possession and occupation by his open exercise of rights over the land provided that such exercise is incapable of any other explanation than that the person in such possession is the owner”. Similarly, what constitute a valid customary gift was also discussed by John M. Sarbah in his book, Fanti Customary Law 80-81 (2nd ed, William Clowes & Sons 1904) as: “...................gifts consist in the relinquishment of one’s own right of another, in lands, goods or chattels, which creation is only completed by the acceptance of the offer of the gift by that other. To constitute a valid gift, an intention of giving or passing the property in the thing given to the donee by the donor, who has the power so to do, is necessary. The giving and acceptance must be proved and evidenced by such delivery or conveyance as the nature of the gift admits”. The most important aspect or criteria was that it should not have been done in secrecy and was not reduced into writing to serve as evidence to invalidate it. Customary Law knows no writing and when a gift is donee in public, there would not be any need to reduce it into writing. The immediate family members of a donor who do not have any objection to the gift are preferably to be present. Applying the foregoing to the facts of this matter, there has been no instance when the Defendant has mentioned that such formality happened. Except at paragraph 6 of the Attorney’s witness statement when he stated: “As norms of tradition and appreciation the Defendant presented a bottle of Schnapps, a bottle of Akpeteshie, a bottle of Kasakpreko Gin and an amount of GH₵5.00 to Togbe Noamesi and his elders.” Making a case for Defendant, the elders names should have been stated or better called upon to be witnesses. Except Togbe Noamesi who is deceased, nowhere did Defendant state the elders were also late or deceased. The only form of acquisition by the Defendant. Not even Defendant’s witnesses, Ganyuie Nicholas and Mama Vio Adre could corroborate her evidence of any ceremony of appreciation of the said gift of land granted Defendant. In paragraphs 3 of Ganyuie Nicholas he stated: “I was present, when my mother, Defendant requested for land and same was gifted and granted to my mother, by the then Head of Family and his elders in 2004.” But he never witnessed any ceremony and never stated whether or not, the Defendant showed any acceptance and appreciation by offering those items as stated by the Attorney. It must, however, be stressed that a number of binding authorities say that utmost caution must be exercised by a court confronted with claims against a deceased person especially in the absence of corroboration, as in the instant case. In Kwame Bonsu v. Kwame Kusi [2009-2010] SC GLR 134, Wood CJ (as she then was) noted as follows: “Fundamentally, the authorities do not lay down any intractable rule of law that charges or claims against a dead person cannot succeed without corroboration. To the contrary, the discernible principle is that a court can proceed on the uncorroborated evidence if satisfied about its truthfulness. The only rider or caution is that the court must examine the evidence critically, with utmost care, weighing or sifting it thoroughly, to ensure there are no loopholes or that the charge of claim does not suffer from any absurdities or the like. A Judge in receipt of uncorroborated evidence consisting in the main of charges against a deceased person does not swallow the story lock, stock and barrel, but first views it from a suspicious stand point. If the story as presented is neither incongruous, preposterous, unreasonable, illogical nor incredible, then the Judge may proceed to give it the weight it deserves”. Applying these standards to the evidence of the Attorney in the present case, considering his demeanour in the witness box and his straight forward and thorough answers during cross-examination, I see no basis to doubt his assertion that Togbe Noamesi, was the Head of Family. During cross examination, the court could not elicit from the responses of Mama Vio Adre as one of the oldest personalities in the community as claimed by the Attorney. This is what ensued. Q: Do you remember Noamesi gave land to Avielewornu’s children? A: Yes, he gave Adjakolo’s land to Amevi. Q: Are you also aware that two people built on that land? A: Am not aware. It was only Amevi who put up a building and you also wanted to put up a building which resulted in the suit. Q: I put it to you that Woyifa’s daughter also put up a building on the land? A: Yes, she did, but Defendant refused you when you wanted to build on the land. Q: Before Woyifa’s daughter built on the land the matter went to the family, are you aware? A: I am not aware. Q: I am putting it to you that the matter went to the family and Defendant was found liable? A: I am not aware. Q: Togbe Kito, Dufan Wornametor sat on the matter and Defendant was found liable, are you aware? A: I know them but I do not know the settlement you are talking about. Q: Amevi was found liable that she was not the only person to inherit the maternal property are you aware? A: I am not aware. Q: Do you remember when the family met to deal with the matter, Amevi Woyifa, Kwasi Foe and another were asked to pay some money A: I don’t know anything about it. Q: I put it to you that they were asked to pay GH₵500.00 each before they will delegate someone to go and share he land? A: I don’t know anything about it. Q: That Togbe Dunya selected the following people; Togbe Fornyikpor Kpormegbe, Youth chief to go and divide the land A: I don’t know anything about it. Q: Because the land was shared that is why Woyifa’s children had their land and put up their building on it? A: I am not aware that the land has been shared that is why when Woyifa’s children put up the building Amevi disagreed with them. Q: What you are telling the court is not true? A: I am telling the truth. Q: I am putting it to you that the land was not given to Amevi alone it was shared for them A: That is what Amevi told me. Q: So what then happened before Amevi and Woyifa’s children before the family called them? A: I don’t know. Q: Then I put it to you that the family called them and settled the matter between them A: I did not know that the family has settled their differences. Q: Are you aware that after the family settled the matter, Amevi asked Seaman to sell Akuyovi’s land to her A: I am not aware. I know Akuyovi had her building so I don’t believe that she will still be interested in that land. Q: Where Akuyovi has her building was given to her by her maternal aunt A: Where Akuyovi’s building was given to her by her mother. So Amevi and others were asked to go to their husband’s house for their share. But they were not given any land there. They came back and Amevi’s brother gave her land. Q: Are you aware that Amevi had said that our father’s portion of the land, she will take it and give to her daughter Rosina because she stayed with our father? A: I did not hear that. Q: Are you also aware that Amevi went to Kito and said the same thing that she will take our father’s portion of the land and give to Rosina because Rosina lived with our father? A: If Amevi and Kwasi Foe had that agreement to give his portion of the land to Rosina, then I am not aware. Q: The land that was shared among the four (4) of them that is what Amevi is claiming to give to the said daughter because she has stayed with Kwasi Foe our father, I put that to you? A: I am not aware. Q: Did you say that our father Kwasi Foe sold his portion of his land? A: I didn’t not say that. I said Amevi went to Noamesi and he gave Adjaloko’s land to her. Q: That is not true? A: It is true. Q: The subject matter and the one you claimed Kwasi Foe sold, is it the same? A: Everybody had its share and Kwasi Foe sold his share. Flowing from the dialogue, the deduction here is that Kwasi Foe sold his portion of the land, the subject matter and to who and if indeed it was sold then the purchaser could have been a material witness for the Defendant especially when she shares boundaries with Defendant at the western side. Per paragraph 8 of the Attorney’s witness statement, that the land in possession of the Defendant has never been shared cannot be a statement of truth per the evidence before this court. Unless it is that, the lands are two in Defendant’s possession. It is also in evidence that the subject matter is where the Defendant has put up her kitchen which same kitchen was demolished by the Plaintiffs. This became evident during cross examination where the 3rd Plaintiff sought to ascertain whether Defendant has a complete building on the subject matter. This is what ensured: Q: Is your mother, the Defendant having a building on the land? A: Yes, she has her kitchen on the disputed land. Q: Are you saying that your mother has no complete building on the disputed land? A: She has a building but not on the disputed land. It is only a kitchen. It goes then that, the Defendant has a share of the land which Togbe Kito Agbodzavu instructed for its sharing as well as Kwasi Foe’s portion for her daughter. The evidence of the court witness was a confirmation that the land was shared among the four and Defendant claimed Kwasi Foe’s portion for her daughter but never say that same was given to her by Togbe Noamesi as a gift from the head of family. Again, a head of family cannot gift a family land without the consent of the family and its principals and clearance from the owners of the land. The following ensued. Q: Are you aware that each family owns land? A: Yes I am aware. Q: Are you aware that each family head has the right to part with their land? A: It is not true. If the family head has to do that there must be clearance from the land owners. Q: I put it to you that each family head deals with their land, like Adre, Ganyuie etc A: It is true. The one given to you, you have control over them. Q: So how come that Noamesi, the family head of Adre gave the land to Amevi and he has to go and share the land? A: We are the head that is why when the issue came, it was brought to us to share among the four (4) siblings. Q: Are you aware that, that land has been given to Amevi by Noamesi? A: I have never heard it. The four (4) siblings is their mother’s land. Q: I put it to you that the land in question does not belong to Plaintiffs father? A: It is not true. Q: Are you aware that Vio told you that the land being claimed by Plaintiffs does not belong to Plaintiffs grandfather or grandmother? A: It is not true. They are four (4) children. How can a land be given to one person? Q: Were you among the people who shared the land? A: We are the elders. We sat on the land before we delegated some people to go and share the land. Q: Was there a report? A: They came back to inform the Elders that they have shared the land and they were satisfied. Q: Do you know the size of the land to each person? A: It is not up to one plot, small feet to one plot. Q: I put it to you that Amevi did not agree to the sharing of the land? A: She accepted it. That is why she came back that she will not allow the Plaintiffs to construct anything on the land because her daughter stayed with Plaintiffs father and was not rewarded. Q: I put it to you that Amevi Adre did not accept it? A: She did. Q: When was the land shared? A: It is a long time. I can’t remember. Q: Are you aware that Amevi Adre has built on the land and has been on it. After the demise of Noamesi and that of Kwasi Foe that Plaintiffs started to harass the Defendant? A: It is not true. Q: Do you remember that Vio told you that Kwasi Foe sold the land belonging to his siblings? A: No. The land belongs to their mother and it is the one we shared. Q: I put it to you that the land is not the land Plaintiffs are contesting. Amevi own was gifted to her by Togbe Noamesi? A: It is not true. Q: As custom demands, are you aware that a member of a family can ask for a land from a family head and same can be granted? A: Yes. It has to be known to the members of the family. Q: So how come Amevi Adre asked for one from Noamesi and you are changing the issue A: It is not true. Noamesi did not give any land to Amevi Adre. The family would have been aware. The Defendant clinging to the disputed land is because it was gifted to her and an appreciation as the tradition was done. Per the evidence as it stands clearly that customary what transpired could not constitute a valid customary gift as inunciated by case lands supra. It therefore goes without equivocation that the subject matter is a family land having considered the family antecedent. As regards family property, the generally accepted rule in Ghana applies also among the Ewe that only the head of the family, acting with the authority of the Principal elders of the family, can validly alienate title to such property. See Agbloe v. Sappor (1947) 12 W. A. C. A, 187, Nelson v. Nelson (1951) 13 W. A. C. A 248, Bassil v. Honger (1954) 14 W. A. C. A 569 and Manko v. Bonsu (1936) 3 W. A. C. A 62 Klutse JSC (as he then was) in his book titled Ewe Law of Property at page 267 did not depart from what generally constitute a valid gift in Ghana, it states: “In modern Ewe Law, a gift of land by a family means the transfer of the paramount title to the donee and just that, unless exceptions or reservations are expressed. To make a gift effective there should usually be publicity. In addition, a formal acceptance of the gift by the donee is required. Publicity usually accompanies the making of an unimpeachable gift in Ewe law. The main objective of publicity in this context is to bring the gift to the notice of the general public and especially to the notice of those who would, but for the gift be entitled 30 to the property. It creates, if we may say so, a sort of “estoppel by notice”. The essence of publicity is that, in the old customary law in which writing was not employed, it was only by means of publicity that the making of the gift itself could be proved. Today, therefore, because gifts of land are normally memorialized in written documents, publicity is not necessary per se in Ewe Law, except insofar as the gift cannot be proved without the testimony of witnesses with knowledge of the transaction”. From the evidence adduced Defendant is in possession of the disputed land and it is incumbent on the Plaintiffs to prove a better title. The legal position as regards possession and ownership of land is that the true owner is the only person who can oust a party who is in possession, the case of Elizabeth Osei v. Madam Alice Efua Korang [2013] 58 GMJ C 1 at page 26. The Plaintiffs tendered in evidence Exhibit ‘A’ which was a declaration that the four (4) children of Avielewornu have been given entry into the land shared among them for the purpose of building houses dated 24th January 2014 and authored by Torgbui Fornyikpor Adre, the family secretary and PW1: The Defendant, Amevi Adre’s name boldly inscribed on Exhibit ‘A’ was a recipient and on which she constructed her dwelling place and has claimed portion of Kwasi Foe’s land to put up her kitchen and eventually to give to Rosina her daughter as her reward for staying with Kwasi Foe in his lifetime. How then can the court reject this Exhibit ‘A’ which has become the “goose that laid the golden egg” in the court’s view and that same should not be accepted as stated in the written submission filed by the Attorney on the 23rd of August 2023. Exhibit ‘A’ was admitted in evidence and same considered. Documentary evidence normally is presented to court where there is a dispute surrounding such a grant of land. In the 21st Century therefore, 31 documentary evidence in a suit as this has become necessary although the absence of same should not deny any party justice. They make the work of the court easier. In Awuah v. Adututu & Anor [1987-88] 2 GLR 191, documents which are prepared after a grant according to custom, like the present, serve merely a documentary evidence of the grant and they do not alter the customary nature of the transaction. In that case, notwithstanding the facts that such documents would purport, to the nature of the transaction at customary law will be referred to in ascertaining the validity of the said transaction. From the Exhibit provided by the Plaintiffs which the court leans favourably, acknowledges the grant of Avielewornu’s land to her four (4) children including the subject matter. It is trite law that documentary evidence far outweighs oral evidence the dictum of Ollennu J. (as he then was) in the celebrated case of Majolagbe v. Larbi and others (1959) GLR 190-195. “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way example by producing documents, description by things reference to other facts or circumstances and the averment is denied he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true”. The development of the facts in the instant case cannot escape the consideration of the nemo dat quod non habet principle that is inherent in the alienation of property. It was held in Christiana E. A. Aboa v. Major Keelson (consolidated) [2011] 37 GMJ 63 SC at 87 literally means no one gives what he doesn’t have. It is established in land law that any person who has legal title or claims equitable ownership to any immovable property can only enjoy the right to alienation at will so long as claim to ownership is valid and the land is theirs”. Any grantor of land must have an interest in the said land before he can alienate. What flows from the above is that the disputed land is the property of Avielewornu’s immediate family, that is the Plaintiffs immediate family and not the extended family headed by Togbe Noamesi Edmond Kpormegbe Adre. The question now is has Togbe Noamesi the capacity to grant or gift Avielewornu’s property to Amevi Adre? It is trite customary law that the Family Head is a very powerful person in the family. He is the only person who can sue and be sued on behalf of the wider or extended family. All general or wider family lands are in his care, trust and custody. However, the Family Head has not got control over lands that belonged to immediate families within the wider family. Any grant of immediate family property to other family members without the consent and concurrence of the immediate family amounts to abuse of power. It is the immediate family who has the right to immediate enjoyment of the property of a deceased immediate family member and it is the customary successor of the Deceased who can alienate the property of the Deceased Person. It is not done by the Head of the wider family. See Atta v. Amissah (1970) CC 73 and Kwakye v. Tuba (1961) GLR 535. So, Togbe Noamesi Edmund Kpormegbe Adre, though the Head of Adre’s wider family has no such capacity to grant or gift the immediate family land of Avielewornu to Amevi Adre, the Defendant. From the evidence adduced especially given the credence of the testimonies by the witnesses, Defendant’s claim to the land as a gift does not have any validity as the land forms part of Avielewornu estate and by extension, Kwawi Foe’s inheritance. From the totality of the evidence adduced by the parties and their witnesses, I found as a fact that the Plaintiffs have proved ownership successfully and have the right to claim title of their father’s land, perpetual injunction and costs as they are entitle to all their claims. To the court and its opinion, the Defendant and her witnesses could not convince the court as they were not credible worth considering, the counterclaim of a declaration of title and recovery of possession of all that piece of land with a measurement of 86 feet by 100 feet more or less and bounded as follows: a. On the North by the Pentecost Road with measurement of 86 feet more or less, b. On the South by the property of Grace Adre with a measurement of 86 feet more or less, c. On the West by the property of Nyadzi with a measurement of 116 feet more or less, d. On the East by the property of Adayi Agbavitor with a measurement of 116 feet more or less. 2. Perpetual Injunction, restraining Plaintiffs, their agents, assigns, privies, workmen, and any other person claiming right of ownership to the disputed land through Plaintiffs, 3. General damages of Twenty Thousand Ghana Cedis (GH₵20,000.00), 4. Costs of litigation. 5. And for any further order(s) that this Honourable Court may deem fit. deserves dismissal and accordingly the counterclaim is hereby dismissed. Judgment is entered for the Plaintiffs. I specifically order the Defendant to remove her kitchen on the portion of the land forthwith to enable the Plaintiffs to recover the full complement of their father’s land measured 186 feet by 84 feet indorsed on the Writ of Summons and restrain the Defendant from any further acts of trespass. I award costs of Five Thousand Ghana Cedis (GH₵5,000.00) against the Defendant. H/W MOLLY PORTIA ANAFO-SALIA (MRS) (SGD) (DISTRICT MAGISTRATE) 20TH OCTOBER, 2023