ESSON VRS TENTEH & 12 OTHERS (E1/51/2017) [2023] GHAHC 567 (25 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON WEDNESDAY THE 25TH DAY OF OCTOBER 2023 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE SUIT NO: E1/51/2017 EBUSUAPANYIN KOFI ESSON (SUBSTITUTED BY KWAMINA MENSAH) VRS BADU TENTEH & 12 ORS - - PLAINTIFF DEFENDANTS JUDGMENT The Plaintiff, as the head of the Nana Buturnyen Anona family of Teterkessim, Elmina, instituted this action against the 1st to 10th Defendants and claims against them jointly and severally the following reliefs: a. Declaration that the plots of land on which the Defendants have unlawfully commenced their building projects thereon is the bonafide property of the Plaintiff’s Nana Buturnyen Anona family of Teterkessim which are within and bounded on all sides by the Plaintiff’s Nana Buturnyen Anona family of Teterkessim, Elmina. b. Damages for trespass. c. Order for possession d. Perpetual injunction restraining the Defendants, their servants, workmen, agents, assigns and anybody claiming through them from continuing with the Defendant’s building projects on the disputed land and against further trespass in respect of the said subject matter in dispute and in any way from having anything to do with the disputed property and further in any way to interfere with the Plaintiff’s family ownership and possession of the said disputed land. The Plaintiff avers that he is the head of the Nana Buturnyen Anona family of Teterkessim, Elmina and he brings this action for himself and on behalf of the family. The Plaintiff’s case is that his original ancestor called Nana Buturnyen and members of his Anona family occupied the Teterkessim lands many hundred years ago and cultivated same for their support and processed salt by using brine from the lagoon on portion of the said Teterkessim land whiles at the same time produced lime for the Europeans to whitewash the Elmina Castle and Fort. According to the Plaintiff, the customary position held by the Plaintiff’s Buturnyen Anona family of Teterkessim within the Edina Traditional Area is that they occupy the chieftaincy position of Asakwahene. The Plaintiff further avers that his said Anona family had and continues to grant portions of the Nana Buturnyen Anona Teterkessim land to its grantees. He proceeded to enumerate the various grants the family had undertaken in paragraphs 8 and 9 of his Statement of Claim. In paragraph 10 of the Statement of Claim, the Plaintiff avers that a part of his family’s land was compulsorily acquired by the then colonial government for the purposes of “Rifle Range” for the Police. The Plaintiff again states that his predecessor, Ebusuapanyin Kofi Kwei, during his headship made a Statutory Declaration in respect of the Teterkessim land and the said Statutory Declaration was dated 1st August 1979 and plotted at the then Lands Department Cape Coast as CCT 504/79 and registered at Ghana Lands Registry as No.3696/2000. The gravamen of the Plaintiff’s case is that the Defendants by various vexatious acts had trespassed, challenged and disturbed the Plaintiff’s family’s possession and ownership of the said land and commenced building projects on the disputed land which forms part of the Nana Buturnyen Anona family Teterkessim land and covered by the aforementioned Statutory Declaration. The Plaintiff states that prior to the said unlawful acts by the Defendants, all grants made in respect of the land to which the Statutory Declaration relates were done by the Plaintiff’s family. The Plaintiff further states that he has on his own, as well as members of the family, warned the Defendants off the land by way of repeated oral warnings to desist from the said trespassory acts but to no avail. It is on the basis of the foregoing that the Plaintiff instituted this action against the Defendants. It is the case of the Plaintiff that the only way the Defendant could be stopped from their unlawful activities on the disputed land as well as from further encroachment of the Plaintiff’s family land is by way of injunction to restrain the Defendants. It is worth stating that, the 11th to 13th Defendants, having had notice of the suit, filed an application to be joined to the suit on 20th July 2007. This was granted by an order of the Court (differently constituted) dated 21st August 2007. Notwithstanding the fact that the 1st to 10th Defendants (save for the 7th Defendant) filed a notice of appearance on 13th July 2007, they filed no Statement of Defence. The 7th Defendant in its defence to the Plaintiff’s Statement of Claim denied all the averments contained therein. The 7th Defendant also challenged the capacity of the Plaintiff to commence the action. The 7th Defendant avers that the Plaintiff is neither the Ebusuapanyin of Nana Buturnyen Anona family of Teterkessim and neither has he been authorised to mount this instant suit. In respect of the land in dispute, the 7th Defendant avers that it acquired its land from the Royal Nsona Stool family of Nkontrodu as epitomised by the 11th to 13th Defendants and that it is properly in possession of its land thus the Plaintiff has no cause of action against it. Similarly, the 11th, 12th and 13th Defendants denied the averments contained in the Plaintiff’s Statement of Claim. In a Statement of Defence filed on 9th October 2007, the 11th to 13th Defendants aver that they are the principal members of the Royal Nsona Stool family of Nkontrodu, Elmina, in the Central Region of the Republic of Ghana. According to the 11th to 13th Defendants, the description of the Plaintiff’s land is vague, and the reliefs sought nebulous. They further reiterated the point that the Plaintiff has no capacity to mount this action. The 11th to 13th Defendants further avers that their land was a subject of a Statutory Declaration by Ebusuapanyin Kwamina Awortwe which was published and plotted as CCT.1/75 long before the publication of the Plaintiff’s Statutory Declaration. On this basis, they contend that their Statutory Declaration takes precedent over the Plaintiff’s. The case of the 11th to 13th Defendants is that the Royal Nsona family of Nkontrodu owns a large tract of land which was originally occupied by their ancestors as res nullus more than three hundred (300) years ago, the virgin forest having been broken by Nana Atomu I. They share boundary with Opanyin Kwesi Awortwe at Fiampong, Bronyibima Stool land, Amoanda Stool land and Ebusuapanyin Kwamina Mensah. The 11th to 13th Defendants categorically state that the Plaintiff’s land (if any) does not share boundary with theirs. The 11th to 13th Defendants further state that they are the lessors of the Defendants and that the lands occupied by the Defendants are part of their allodial lands. They contend that the Plaintiff has no claim either in law or equity against them. In a Reply filed by the Plaintiff on 6th November 2007 to the 7th Defendant’s Statement of Defence, the Plaintiff avers, inter alia, that he is duly clothed with capacity to mount this instant suit. The Plaintiff further avers that, the 11th to 13th Defendants have no land within the area of acquisition as the said land belongs to the Plaintiff’s family. The Plaintiff adds that the 7th Defendant’s acts in relation to the land constitutes a continuing trespass. In the Plaintiff’s Reply to the 11th to 13th Defendants’ Statement of Defence, the Plaintiff avers, inter alia, that the Nana Buturnyen and members of his family possessed and occupied their family land long before Nana Atomu I migrated from Baafikrom near Mankessim to settle at Nkontrodu. The 11th to 13th Defendants, the Plaintiff avers, have unlawfully trespassed unto Nana Buturnyen Teterkessim land and gave out the said plots of land to the Defendants. The record indicates that directions were taken on 22nd April 2004 and the following issues were set down for trial: 1. Whether or not the Plaintiff is the head of the Nana Buturnyen Anona family of Teterkessim, Elmina. 2. Whether or not the Plaintiff’s predecessors had exercised ownership, possession of and control over Nana Buturnyen Anona family land at Teterkessim and that some of the said predecessors, as heads of the family, had granted portions of the Nana Buturnyen Anona family land to grantees/lessees. 3. Whether or not the 11th to 13th Defendants have allegedly trespassed unto the Plaintiff’s Nana Buturnyen Anona family land at Teterkessim, Elmina. 4. Whether or not the Defendants have allegedly commenced building projects on the Plaintiff’s Nana Buturnyen Anona family land. 5. Whether or not the Plaintiff is entitled to his claim. 6. Any other issue/issues arising out of the pleadings. The Defendants also filed additional issues on 11th December 2007 as follows: 1. Whether or not the Plaintiff has capacity to mount this action. 2. Whether or not the Plaintiff has been authorized by Nana Buturnyen Anona family of Teterkessim Elmina to mount this action. 3. Whether or not the co-defendants statutory declaration plotted as CCT 1/75 has priority over Plaintiff’s declaration plotted as CCT/304/79 4. Whether or not Plaintiff has any cause of action against the Defendants. In view of the pleadings and evidence adduced by the parties, majority of the above issues, in my view, are not germane to the determination of this suit. The law is that the court is not required to make findings of facts in respect of irrelevant issues even if the parties have adduced evidence on same when such findings would not assist in the determination of the issues in the case. The court’s concern should be on issues which are germane to the determination of the case. Thus, in the case of FATTAL V WOLLEY [2013-2014] 2 SCGLR 1070, the Supreme Court held that Admittedly, it is indeed sound basic learning that courts are not tied down to only the issues identified and agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot, or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on the grounds that it is not included in the agreed issues. In this wise, I find the following issues germane to the determination of this case: 1. Whether or not the Plaintiff has capacity to institute this action. 2. Whether or not the land in dispute is the bonafide property of the Plaintiff’s Nana Buturnyen Anona family of Teterkessim which are within and bounded on all sides by the Plaintiff’s Nana Buturnyen Anona family of Teterkessim, Elmina. 3. Whether or not the Defendants are trespassers on the disputed land. Section 12 of the Evidence Act, 1975 (N. R. C. D. 323) has clearly defined the standard of proof in all civil cases which is proof by the preponderance of probabilities. This is the certainty of belief in the mind of the Court by which it is convinced that the existence of a fact is more probable than its non-existence. See ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728. It is trite learning that the onus of proof lies upon the party who asserts. The general principle of the law a party who makes averments essential for the success of his case bears the onus of adducing evidence to establish his case failing which his case fails and judgment must be entered against him in that regard. This is more so when the claims of the Plaintiff have been denied by the Defendant just as in this instant case. In the case of ZABRAMA V SEGBEDZI (1991) 2 GLR 221, it was held that: “A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. He does not discharge his burden unless he leads admissible and credible evidence from which the facts he asserts can safely be inferred.” The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the Plaintiff leads some evidence to prove his claim. See ABABIO V AKWASI IV (1994-95) GBR 774. It is clear from the facts above that the capacity of the Plaintiff to commence this action has been challenged by the 7th, 11th, 12th, and 13th Defendants. The implication is that the Plaintiff must establish his capacity to sue before his case can be considered on its merits. See ASANTE-APPIAH V AMPONSAH (2009) SCGLR 90. I have perused the entire record and I am satisfied that this preliminary issue has not already been determined by this Court. This said, I proceed, firstly, to determine the capacity of the Plaintiff for it is good practice that when this issue is raised, it must be dealt with before the action can proceed. The law is that a Plaintiff who is bereft of capacity cannot be heard on the merits of his case even if he has an iron cast case. See FOSUA AND ADU-POKU V ADU-POKU MENSAH (2009) SCGLR 310. The rational for this is that capacity to sue is a very critical component of civil litigation without which the Plaintiff cannot maintain any claim. Capacity goes to the root of the matter and whenever it is raised, it has the potential of truncating the action even before trial. In proving the capacity of the Plaintiff, Kwamina Mensah (who substituted the deceased Plaintiff) states categorically in his Witness Statement filed on the 13th day of June 2016 that Ebusuapanyin Kofi Esson had the requisite capacity to institute this present action. Kwamina Mensah attached the family tree of the Royal Buturnyen Anona family of Teterkessim (EXHIBIT D). Exhibit D, in my opinion, was not so helpful in determining Ebusuapanyin Kofi Esson’s capacity as Ebusuapanyin of the Royal Buturnyen Anona family of Teterkessim. For this reason, I do not place much weight on Exhibit D. Put differently, this Court cannot satisfactorily rely on Exhibit D as proof of the Plaintiff’s capacity. In spite of this, there are evidence of acts performed by Ebusuapanyin Kofi Esson (deceased) in his capacity as Ebusuapanyin of the Royal Buturnyen Anona family of Teterkessim. He executed a Lease (EXHIBIT B1) dated 2nd June 1990 between himself as the Head of family acting with the consent and concurrence of the principal members of the family of the one part and Assemblies of God Church of the other part. There are several letters in evidence written by the Plaintiff or on the instructions of the deceased Plaintiff. The aforementioned letters in evidence were not controverted by the Defendants in any way. Therefore, in the absence of any evidence to the contrary, I am satisfied that the late Ebusuapanyin Kofi Esson was the head of the Buturnyen Anona family of Teterkessim, Elmina. With this said, he is the proper person to institute an action in respect of family properties. See KWAN V NYIENI (1959) GLR 67; IN RE ASHALLEY BOTWE LANDS; AGBOSU V KOTEY [2003-2004] SCGLR 420. In respect of the second issue, the settled law is that a person seeking for a declaration of title to land or recovery of possession must prove his root of title, mode of acquisition and various acts of possession exercised over the land. See YEHANS INTERNATIONAL LTD VRS MARTEY TSURU FAMILY AND ANOTHER (J4/34/2018) DATED 24TH OCTOBER, 2018 (DELIVERED BY THE SUPREME COURT). It is only where the party has succeeded in establishing these facts on the balance of probabilities that the party would be entitled to the claim. This was emphasised by the Supreme Court in the case of MONDIAL VENEER (GH) LTD V AMUAH GYEBI XV [2011] 1 SCGLR 466 at 476. The law also requires such party to satisfactorily prove the identity of the land. See TACKIE V LAMPTEY [2001-2002] 2 GLR 186. A court cannot make orders for title or an injunction in respect of a land whose identity is uncertain or unknown. Any such orders made is made in vain and same cannot operate as res judicata to prevent the parties from re-litigating the same issue in respect of the said laid. For this reason, a claim for declaration of title must always fail where the plaintiff fails to establish positively the identity of the land to which he claims title. See the case of ANANE V DONKOR; KWARTENG V DONKOR (CONSOLIDATED) [1965] GLR 188. The above notwithstanding, the law is also that the necessity of proving the identity of land in an action for declaration of title is not applicable where the identity of the land is not in dispute. In cases where the parties are ad idem as to the identity of the land, proof is dispensed with. See ANYETEY CHANTEY V TEI KWABLAH KWEINOR (H1/67/2017) DATED 31 MAY 2018 (DELIVERED BY THE COURT OF APPEAL). From the pleadings, it is clear that the Plaintiff is claiming for, inter alia, a declaration that the plots of land on which the Defendants have unlawfully commenced their building projects thereon (the disputed land) is the bonafide property of the Plaintiff’s Nana Buturnyen Anona family of Teterkessim which are within and bounded on all sides by the Plaintiff’s Nana Buturnyen Anona family of Teterkessim, Elmina. The 11th to 13th Defendant, on the other hand, dispute this and claim that the disputed land rather forms part of the vast Royal Nsona family of Nkontrodo family lands. This clearly puts the identity, the extent and the position of the land in dispute. Thus, the Plaintiff bears the evidential burden to establish the identity of the land in dispute failing which a finding would be made against him. In order to satisfy this burden, the Plaintiff must firstly establish the identity or the bounds of his family’s land in general and show that the land in dispute falls within the bounds of his family land. This is due to the nature of the relief sought that is (a) “Declaration that the plots of land on which the Defendants have unlawfully commenced their building projects thereon is the bonafide property of the Plaintiff’s Nana Buturnyen Anona family of Teterkessim which are within and bounded on all sides by the Plaintiff’s Nana Buturnyen Anona family of Teterkessim, Elmina”. It is worth mentioning that the Statutory Declarations tendered in evidence by the parties are not sufficient to prove title. So is the issue of priority of a Statutory Declaration over the other irrelevant in proving title. I say this because, in an action for declaration of title to land, a Statutory Declaration by itself does not confer title on the declarant. A party relying on a Statutory Declaration in an action for title to land is still mandated by law to adduce credible and sufficient evidence to establish his root of title, mode of acquisition and various acts of possession exercised over the land. See MRS VIVIAN AKU-BROWN DANQUAH V SAMUEL LANQUAYE ODARTEY (CIVIL APPEAL NO. J4/4/2016) DATED JUNE 2016 (DELIVERED BY THE SUPREME COURT). In the Witness Statement of Kwamina Mensah, he states that the Nana Buturnyan Anona family lands at Teterkessim share boundary with the Sanka lands, Nkontrodo lands, Amuanda lands, Abrem Sermu lands and the Benya lagoon. He further states that the Nana Buturnyan Anona family of Tetterkessim has been in effective possession and occupation of the Tetterkessim land for more than Four Hundred (400) years after the customary grant of the Tetterkessim land by Chief and elders of Edina Traditional Council for the good services rendered by his ancestor Nana Buturnyan I. He adds that during the headship of Ebusuapanyin Kofi Kwei, the family prepared a Statutory Declaration (EXHIBIT A) to cover some portions of the landed properties of the Nana Buturnyan Anona family in view of the various trespassory activities of strangers. The witness further testified that the Nana Buturnyan Anona family of Tetterkessim, by virtue of the family’s usufructuary ownership of Tetterkessim lands, has granted portions of the land to the Catholic Mission to establish Archbishop Porters Polytechnic Girls School, Elmina. Additionally, the family under the headship of Ebusuapanyin Kweku Asaase granted portion of the land to Hon. Joseph Essilfie Hagan of Cape Coast plotted as Doc No. CCT512/60 Registered as Doc No. 574/1961. Moreover, when Ebusuapanyin Robert Benjamin Eshun became the head, he also granted a portion of the Tetterkessim lands to the Hausa Community in Elmina in January 1972 plotted in the records of the Lands Commission as Doc No. CCT400/73 followed by another grant to Joseph Mensah Kane plotted as Doc No. 215/71 and registered as Doc No. 294/1972. The witness further testified that there were other grants from the Nana Buturnyan Anona family of Tetterkessim to Mr and Mrs Lawrence Aboagye Okai plotted as Doc No. CCT 411A/79 and registered at the Deeds Registry as Doc No. 311/1981 and again to the Assemblies of God Church in 1990 plotted as Doc No. Esc/dc 157/92 and registered as Doc No. 2622/1993. Copies of indentures evidencing these alienations by the Plaintiff’s family are in evidence. See EXHIBIT B & B1. Moreover, apart from portions of the land covered by the aforementioned Statutory Declaration (EXHIBIT A), other portions of the Nana Buturnyan Anona family of Tetterkessim were compulsorily acquired by the colonial Government for the purpose of a Raffle Range for the Police Service. EXHIBIT C1 & C2 are correspondences requesting for the payment of compensation for the land acquired by the Government. There are other letters in evidence authored by the late Ebusuapanyin Kofi Essoun as well letters authored by the lawyers of the late Ebusuapanyin requesting for the release of the land back to the family since the Government had failed to utilise the land for its intended purpose. From the above testimony, the Plaintiff sought to establish its title to the land known as the Nana Buturnyan Anona family lands at Teterkessim. The testimony of Kwamina Mensah clearly reveals the root of title and mode of acquisition of the said land. Exhibits B, B1 and C series are acts of ownership exercised by the Plaintiff’s family over their land. I have observed that, the Plaintiff did not describe the said Nana Buturnyan Anona family lands at Teterkessim. It is for this reason that the 11th to 13th Defendant aver in paragraph 4 of their Statement of Defence that the description of the Plaintiff’s land is vague and the reliefs sought nebulous. However, the Plaintiff’s EXHIBIT A (the Statutory Declaration by Ebusuapanyin Kofi Kwei) contains the description of the Nana Buturnyan Anona family land as follows: ALL THAT piece or parcel of land lying and being situate at Teterkessim Akyinim – Edina in the Edina Traditional Area in the Central Region of the Republic of Ghana Bounded on the North-West by SANKA and AMUANDA LANDS on the South-East by NKUNTRAWDU ABINA SERMU LANDS and on the South-West by BENYA LAGOON and containing approximate area of 1276.40 ACRES which piece or parcel of land is more particularly delineated on the attached Site Plan shewn Edged Pink. The testimony of Ebusuapanyin Kwamina Mensah on the scope of Exhibit A as stated in paragraph 16 of his Witness Statement seems to contradict paragraph 11 of the Plaintiff’s Statement of Claim. For purposes of clarity, these paragraphs are reproduced below: Paragraph 16 of the Witness Statemen: “During the headship of Ebu. Kofi Kwei, the family prepared a statutory declaration to cover some portions of the landed properties of Nana Buturnyan Anona family of Tetterkessim in view of the various trespassory activities of strangers and the Statutory Declaration was plotted as Doc No. CCT 5191/79 and registered as Doc No. 136/96/2000 as per Exhibit A” Paragraph 11 of the Statement of Claim: “The Plaintiff avers that late Ebusuapanyin Kofi Kwei during his headship of the said family made a Statutory Declaration in respect of Teterkessism land and the said Statutory Declaration was dated 1st August 1979 and plotted at the then Lands Department Cape Coast as CCT 504/79 and registered at Ghana Lands Registry as No.3696/2000.” Whereas the Plaintiff states that the Statutory Declaration is in respect of a portion of the family land, the Plaintiff in the same breath states that the Statutory Declaration covers the entire Nana Buturnyan Anona family lands. The attitude of the courts when faced with such inconsistencies is not to dwell upon insignificant or non-critical inconsistencies to deny justice to a party who has substantially discharged his/her burden of persuasion. In the case of EFFISAH V ANSAH [2005-2006] SCGLR 943 at 960, the Supreme Court, speaking through Georgina Wood JSC (as she then was) held that: “In the real world, evidence led at any trial which turns principally on the issues of fact, and involving a fair number of witnesses, would not be entirely free from inconsistencies, conflicts or contradictions and the like. In evaluating evidence led at a trial, the presence of such matters per se, should not justify a wholesale rejection of the evidence to which they might relate. Thus, in any given case, minor, immaterial, insignificant or non-critical inconsistencies must not be dwelt upon to deny justice to a party who has substantially discharged his or her burden of persuasion. Where inconsistencies or conflicts in the evidence are clearly reconcilable and there is a critical mass of evidence or corroborative on crucial or vital matters the court would be right to gloss over these inconsistencies” In this instant case, I find this inconsistency as trivial thus not deserving a total rejection. Reading Exhibit A as a whole, I am convinced Exhibit A provides a description of the Nana Buturnyan Anona family lands. In contrast, the 11th Defendant, Nana Kweku Attom IV, in his Witness Statement that the Royal Nsona family of Nkontrodo is the absolute owner of a large tract of land at Nkontrodo and that land was acquired through discovery, first settlement and the breaking of the virgin forest by his ancestors led by Opanyin Kweku Beisi well over Three Hundred (300) years ago. Nana Kweku Attom IV further gave evidence of acts of ownership exercised by the Royal Nsona family of Nkontrodo. Attached to his Witness Statement are EXHIBIT 1 which is an indenture evidencing the lease of their land then referred to as Kontrowdo Concession. Further, when Kwamena Awotwe was the head of the Royal Nsona family of Nkontrodo, he together with principal members of the family granted to the Ministry of Agriculture portions of the family land to be used in growing rice on experimental basis and portion of that land has also been leased to some of the Defendants in this case after the project became abandoned. He attached EXHIBIT 2 which is a minute of the Site Advisory Committee held in February 1981. Nana Kwamena Awotwe again executed a Statutory Declaration (EXHIBIT 3) to cover a portion of the Royal Nsona family of Nkontrodo family land which was processed at the Lands Commission as Document No. CCT/1/75. Again, the Royal Nsona family of Nkontrodo, during the time of Kwamena Awotwe gave portion of their land to the Catholic Mission to build a school (St. Anne Preparatory School). Nana Kweku Attom IV further stated in his Witness Statement that when the Government of Ghana published Executive Instrument (E. I.19) of 2014 for the acquisition of land for the Prison Services, payment of compensation for that acquisition was made to the Royal Nsona family of Nkontrodo alone and no other person challenged that. Nana Kweku Attom IV added that the family land does not share boundary anywhere with any land owned by the Plaintiff’s family and that the land being in possession of the 1st to 10th Defendants are lands owned by the Royal Nsona family of Nkontrodo and the family has all the right to transfer any interest in the land to those Defendants. From the above testimony of Nana Kweku Attom IV, the 11th Defendant also sought to establish the title of the Royal Nsona family of Nkontrodo over the lands known as the Royal Nsona family of Nkontrodo family land. From his testimony above, their mode of acquisition of the said land was through discovery, first settlement and the breaking of the virgin forest. Exhibits 1 and 2 are some acts of ownership exercised by family. On the totality of the evidence, this Court is satisfied that both families own lands and have exercised overt acts of ownership on their respective lands. However, for the determination of whether or not the land in dispute falls within the Plaintiff’s Nana Buturnyan Anona family lands at Teterkessim or the Royal Nsona family of Nkontrodo family land, the Composite Plan by the Regional Surveyor comes in handy. Although it is trite that expert evidence, like any other evidence, is not binding on the court and same ought to be evaluated like any other evidence, it is also trite learning that a judge must reach conclusions based on the evidence on record. The law regarding expert evidence was succinctly stated by the Supreme Court in the case of FENUKU V JOHN TEYE [2001-2002] SCGLR 985 as follows: “The principle of law regarding expert evidence was that the judge need not accept any of the evidence offered. The Judge was only to be assisted by such expert evidence to arrive at a conclusion of his own after examining the whole of the evidence before him. The expert evidence was only a guide to arrive at the conclusions.” It is noteworthy that, even though expert evidence does not bind the court, a court cannot reject same without assigning good reasons for the rejection. See FENUKU V JOHN TEYE (Supra); HAYFORD V TETTEY (SUBSTITUTED BY LARBI & DECKER) [2012] 1 SCGLR 417. A composite plan is just as relevant or useful as a judge’s physical presence on a disputed land. I therefore lean favourable towards the composite plan prepared by the Survey Department. The composite plan was prepared using the survey instructions filed by the parties. According to the Composite plan: 1. Plaintiff’s claim as shown to the survey team marked and edged MAUVE 2. Defendant’s claim as shown to the survey team marked and edged BLUE 3. Co-defendants claim as shown to the survey team marked and edged RED 4. Plaintiff’s site plan as superimposed marked and edged broken RED 5. Defendant’s site plan as superimposed marked and edged MAGENTA 6. Co-Defendants site plan as superimposed marked and edged GREEN 7. Area trespassed by the Defendants according to Plaintiff blocked and edged CYAN 8. Area in dispute measuring 369.82Acres hatched BLACK The Composite Plan clearly shows that the site plan of the Co-Defendants (that is 11th to 13th Defendant) falls within the land of the Plaintiff’s family. This includes the land the 1st Defendant acquired from the Royal Nsona family of Nkontrodo. The Composite plan also shows that the area in dispute largely falls within the land of the Plaintiff’s family. Again, the Composite Plan clearly reveals a substantial overlap of portions of the land described in the site plan of the Defendant as superimposed and that of the Plaintiff. To further buttress the results of the survey, the Land Surveyor, Ebenezer Quaccoe (SW1), appointed by the Regional Surveyor testified as follows during cross-examination by Counsel for the Defendants: Q: Per your evidence the land is show to you by the Plaintiff as edged mauve? A: Yes. Q: You will agree with me that the site plan of the Plaintiff as super imposed is edged broken red? A: Yes. Q: The land show to you by the Defendant is red? A: Yes. Q: The land as shown to you by Co-Defendant falls within Plaintiff’s plan? A: Yes. Q: The Defendants’ Site Plan on the land as show to you falls within Plaintiff Site Plan? A: Yes. Q: I put it to you that the Composite Plan on the land in dispute hatch black? A: Yes. Q: The area in dispute falls within the Plaintiff’s site plan? A: Yes. The totality of the evidence before me rebuts the presumption of ownership which operated in favour of the Defendants by virtue of section 48 of the Evidence Act which provides as follows: (1) The thing which a person possesses are presumed to be owned by him. (2) A person who exercises act of ownership over property is presumed to be the owner of it. The law is that, possession is said to be nine-tenth of ownership and always gives way to the true owner. Put differently, a person in possession has good title against the whole world save the true owner or someone claiming through him. See AMATEI V HAMMOND AND ANOTHER [1980] GLR 300. In this instant case, the Plaintiff has been successful in proving a better title to the land in dispute thus overriding the possessory rights of the Defendants over the land in dispute. By extension, the acts of the Defendants on the land in dispute constitute trespass insofar as they were adverse to the title of the Plaintiff family. This is the thin line which distinguishes a squatter from a trespasser. A trespasser on land is basically a person in adverse possession. The Supreme Court, speaking through Pwamang JSC, in the case of AMIDU ALHASSAN & ANOTHER V MUTIU ALAWIYE & 6 OTHERS (CIVIL APPEAL NO. J4/54/2018) DATED 24TH JULY 2019 held that: The difference in law between a squatter and a trespasser is that whereas a trespasser enters onto a land and claims an interest in it that it is inconsistent with the rights of the true owner, a squatter does not claim any interest in the land he is in occupation of. After a thorough evaluation of the evidence in this case, I find that the Plaintiff has satisfied the standard of proof in this case. On the balance of probabilities, this Court is convinced, by the evidence adduced, that the Plaintiff’s ownership of the land in dispute is more probable than its non-existence. Judgment is hereby given in favour of the Plaintiff in respect of all his reliefs. The Defendants, their servants, workmen, agents, assigns and anybody claiming through them are perpetually restrained from dealing with and/or interfering with the Plaintiff family’s owner and possession of the land in dispute. Cost of GH₵50,000.00 is awarded in favour of the Plaintiff against all of the Defendants. (SGD) BERNARD BENTIL, J. [HIGH COURT JUDGE] COUNSEL ISAAC AGGREY-FYNN ESQ. FOR THE PLAINTIFF. SAMUEL K. AGBOTTAH ESQ. FOR THE DEFENDANTS. 18