OBODAI AND TWO OTHERS VRS ALI AND ANOTHER (FAL/226/2015) [2023] GHAHC 510 (20 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, LAND DIVISION (COURT 11) HELD IN ACCRA ON FRIDAY, THE 20TH DAY OF OCTOBER, 2023 BEFORE HIS LORDSHIP JUSTICE AMOS WUNTAH WUNI 1. TORGBOR OBODAI 2. SAI OBODAI 3. SODJAH OBODAI VRS SUIT NO. FAL/226/2015 PLAINTIFFS 1. ALHAJI SURAKATU OMAR ALI 2. NIZAM HAJJ GROUP DEFENDANTS JUDGMENT On 19th December, 2014, the Plaintiffs sued out of the Registry of this Honourable Court, a writ of Summons and Statement of Claim against the 1st Defendant for the following reliefs: a) Declaration of title to all that piece or parcel of land lying at Frafraha in the Greater Accra containing an approximate area of 0.55 acre (or 0.22 Hectare) more or less bounded on the North-East by Lessor’s land measuring 100 feet more or less on the South East by Lessors land measuring 240 feet more or less on the South West by the proposed road measuring 100 feet more or less on the North-West by the b) c) d) Lessor’s land. Recovery of possession of the said land. Damages for trespass. Perpetual Injunction restraining the Defendant, his agents, assigns and workers, servants or whosoever from continuing to develop the land. e) Costs - 1 - The 1st Defendant entered appearance on 19th January 2015 and proceeded to file his Statement of Defence on 27th February 2015. Thereafter, the Plaintiffs filed a Joinder application and same having been granted on 12th February, 2015, they filed an Amended Writ of Summons on 5th June 2015. Pursuant to this, on 12th November 2015, the Defendants filed their first Statement of Defence and Counterclaim. Consequently, the Plaintiffs filed their Reply and Defence to Counterclaim on 26th April 2017. On 5th November 2015, the Plaintiffs filed Application for Directions which was withdrawn and a fresh one filed on 24th May, 2017. The Defendants initially filed Additional Issues on 19th April 2017 but same was withdrawn and refiled on 24th May 2017. On 12th June 2017, Directions was taken and the following issues were adopted for trial. ISSUES ADOPTED FOR TRIAL Main issues: 1. Whether or not the land in dispute was granted to Plaintiff’s mother by the Numo Kwao Family of Frafraha. 2. Whether or not Plaintiffs’ mother had been in possession of the land in dispute since 1994 until she gifted it to Plaintiffs in year 2000. 3. Whether or not Plaintiffs’ mother gifted the land in dispute to Plaintiffs in the year 2000. 4. Whether or not Plaintiffs have been in adverse possession of the land in dispute since the year 2000. - 2 - 5. Whether or not Nii Kommey Mensah Lassey had any title to convey to Defendants after he had divested his interest in the land in dispute to Plaintiffs’ mother in 1994. 6. Whether the Defendants have trespassed on the Plaintiffs’ land. 7. Whether or not Plaintiffs are entitled to their claim. 8. Any other issues arising from the pleadings and/or evidence. Additional Issues: 1. Whether the 1st Defendant had been wrongly sued or ought to be a party in the suit. 2. Whether Nii Kommey Mensah Larsey, the head and lawful representative of the Plaintiffs’ family having lawfully alienated the disputed land to the 2nd Defendant in October 2006, he could thereafter purport to make a grant of selfsame land to Plaintiffs in March 2012 and whether any such grant if any at all is invalid, null or void? 3. Whether the 2nd Defendant had challenges in registering its title in the land and whether with the knowledge of the said Nii Kommey Mensah Larsey the 2nd Defendant acquired the selfsame land for the 2nd time in 2007 to enable it register its certificates? 4. Whether the 2nd Defendant had already completed developing its land before the instant suit was instituted? 5. Whether the 2nd Defendant was fixed with any knowledge of alleged unproven ownership of the Plaintiffs’ mother and therefore privy as such assertion if any at all? - 3 - 6. Whether the Plaintiffs are properly vested with capacity of institute the instant action? 7. Whether 2nd Defendant is entitled to his Counterclaim? The Court ordered parties to file their Witness Statements within deadlines and Case Management was conducted, after a number of adjournments, on 17th June 2019 with trial commencing on 4th November 2019. SUMMARY OF PLAINTIFFS’ CASE It is the Plaintiffs’ case as gleaned from their Amended Statement of Claim and Reply/Defence to Counterclaim filed on 21st June 2018 and 26th April 2017 respectively that they are the owners of the subject 0.55 acre land situate at Frafraha. It is their case that in 1994, some lands of their Numo Mensah Family were shared amongst members of the Family. As a result, their mother (Patience Kai Mensah) was allotted the subject land and a site plan was given to her. They alleged that, after the sharing, their mother took possession and planted pawpaw and mango trees on the land. They also alleged in the Amended Statement of Claim that on 4th June 2000, their mother gifted the land to them and they accepted the gift and gave “Aseda” in the presence of some family members. The Plaintiffs further alleged that they have built a house on a portion of the land. They further alleged that they were not given any document by their mother and so in 2012 they approached the Chief of Frafraha (their uncle) who gave them a lease dated 14th March 2012. They alleged that the son of the chief (who is their uncle) told them to hand over the site plan given to their mother. - 4 - The Plaintiffs further alleged that they have been in possession of the subject land since 1994 and that they are protected by the Limitation Act, 1972 (NRCD 54). They alleged that on 22nd November 2014, the Defendants came onto the land with a bulldozer and allegedly destroyed the pawpaw and mango trees, removed their kiosk and stated developing the land. They alleged that their grandfather (Komey Mensah) gave 2 plots of land in Frafraha to their mother about 4 years ago and that land is different from the subject land in dispute. They finally claim the subject land has nothing to do with Judgment in Suit No. A1 83/2007. SUMMARY OF DEFENDANTS’ CASE The Defendants’ case as gleaned from their Amended Statement of Defence and Counterclaim filed on 14th February 2019 is that the Plaintiffs’ uncle (Nii Kommey Mensah Lassey) is the Chief of Frafraha and lawful representative of the Numo Mensah Family to which Plaintiffs belong. That, pursuant to a Deed of Lease dated 24th October 2006, Nii Kommey Mensah Lassey, together with his principal elders, granted a 0.24 acre land situate at Frafraha to the 2nd Defendant. The 1st Defendant (who is the Chief Executive Officer of the 2nd Defendant) maintained that he had been wrongly sued. Upon acquisition of its 0.24-acre land in 2006, 2nd Defendant immediately took possession and started developing same whilst proceeding with registration of the land. The 2nd Defendant discovered in the process of registration that the said 0.24 acre land had already been registered in the name of Nii Otu Akwettey IX, Chief of Katamanso; and subsequently brought the information to the attention of Defendants’ grantor. The grantor urged 2nd Defendant to procure title documents from the Katamanso Chief to - 5 - enable it register and procure a Land Certificate and to do so meant procuring another title document from the said Katamanso Chief. Contrary to, and in denial of the Plaintiffs’ claim, the 2nd Defendant’s case is that upon acquisition of the 0.24-acre land in 2006, the subject land was completely bare without any building structure on it. The 2nd Defendant constructed a complete fence wall with an Entrance Gate fixed under lock. The 2nd Defendant says in the course of the construction of the fence wall, the 3rd Plaintiff came to put a wooden kiosk on the land until 2nd Defendant was ready to resume construction. The 2nd Defendant pleaded that when it was ready to resume work, 3rd Plaintiff failed to remove the kiosk whereupon it caused the kiosk to be moved off its land prior to the completion of construction of the fence wall. The Defendants denied the story around Plaintiffs’ mother, the sharing and the alleged gift of the subject land as a complete fabrication and demanded strict proof. The Defendants only got to know of the lease Indenture signed by the same grantor to the Plaintiffs in 2012 and confronted its grantor. The grantor indicated that, what he signed for them was a different land which belonged to their mother and that if the Plaintiffs are claiming the site plan they brought related to Defendant’s 0.24 acre land, then they have deceived him and caused warning messages to be sent to the Plaintiffs to submit all copies of the indenture set and stay off the 2nd Defendant’s land. It is the 2nd Defendant’s case that the Plaintiff’s own uncle and Head of Family having already granted the 2nd Defendant’s 0.24-acre land to it, same cannot be granted to Plaintiffs or their mother, wherefore the said grant is null and void. The 2nd Defendant Counterclaimed for the following reliefs: - 6 - (i) A declaration that the purported grant of the self-same parcel of land of 2nd defendant by Nii Kommey Mensah and Nii Adjei Kpobi Asawaa to Torgor Sai and Sodjah Obodai per a lease indenture dated 14th day of March 2012 is null and void and of no legal effect. (ii) Declaration of title to all that piece or parcel of land situate, lying and being at Frafraha in the Greater Accra Region and containing an approximate area of 0.24 Acre bounded on the North East by a proposed road measuring 90.0 feet more or less on the South-East by the Lessor’s land measuring 120 feet more or less on the North-West by the Lessor’s land measuring 90 feet more or less on the North-West by the Lessor’s land measuring 115 feet more or less in favour of the 2nd defendant. (iii) Costs including Solicitors fees. THE LAW The combined effect of Section 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323) requires that he who asserts must prove and then proof in civil case require, proof on the balance of probabilities. See the cases of ENEKWA & ORS Vrs. KWAME NKRUMAH UNIVERSITY OF SCIENCE & TECHNO-LOGY (KNUST) [2009] SCGLR 242 at 248 and ABBEY & ORS Vrs. ANTWI [2010] SCGLR 17 at 25-26. The case of ABABIO V AKRASI [1994-95] Part 2 GBR 774 aptly states the rule on the burden of proof in civil cases as follows: “It is trite learning that the party who raises in his pleadings an issue essential to the success of his case assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particulars issue Plaintiff leads some evidence to - 7 - prove his claim. If Defendant succeeds in doing this he wins; if not he loses on that particular issue.” At page 777 The case of ACKAH V PERGA TRANSPORT LTD. & OTHERS [2010] SCGLR 728 provides guidance as to the kind of evidence that Plaintiff is required to adduce to prove her allegations. It was held in that case that: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This requirement of the law on evidence under section 10 and 11 of the Evidence Decree.” Per Adinyira JSC (Mrs.) The case of BISI Vrs TABIRI ALIAS ASARE, [1987-88] 1 GLR 360 SC also clarified the rule as to the standard of proof required of a Plaintiff in a civil action. This case holds that the obligation of the party who bears the burden of proof was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. COUNTER CLAIM: The burden of proof relating to counterclaims was stated in the case of BIRIMPONG V BAWUAH PART 2 [1994-95] GBR 837 SC. It was in that case held per Hayfron Benjamin JSC that; - 8 - “It is a well settled principle of law that a counterclaiming Defendant is in the same position as a Plaintiff with respect to his counterclaim and undertakes the same burden with respect thereto.” EVALUATION OF ISSUES I like to deal with the issues in the following order.  Plaintiff’s Issues (1) and (2) and Additional issue 5 together which are: Plaintiffs’ Issues 1 and 2: 1. Whether or not the land in dispute was granted to Plaintiff’s mother by the Numo Kwao family of Frafraha. 2. Whether or not Plaintiff’s mother had been in possession of the land in dispute since 1994 until she gifted it to Plaintiffs in year 2000. Additional Issue 5: Whether the 2nd defendant was fixed with any knowledge of alleged unproven ownership of the plaintiffs’ mother and therefore privy as such assertion if any at all?  Then Plaintiff’s Issues 3 and 4 together Plaintiff’s Issue 3: 3. Whether or not Plaintiffs’ mother gifted the land in dispute to Plaintiff in the year 2000. Plaintiff’s Issue 4: 4. Whether or not Plaintiffs have been in adverse possession of the land in dispute since the year 2000. - 9 -  Defendants’ Additional Issue 2 and Plaintiff’s Issues 5. Additional Issue 2: 2. Whether Nii Kommey Mensah Larsey, the head and lawful representative of the Plaintiffs’ family, having lawfully alienated the disputed land to the 2nd defendant in October 2006, he could thereafter purport to make grant of self-same land to plaintiffs in March 2012 and whether any such grant if any at all is invalid, null or void? Plaintiff’s issues 5 5. Whether or not Nii Kommey Mensah Lassey had any title to convey to Defendants divested his interest in the land in dispute top Plaintiff’s mother in 1994.  The Additional Issue 3 alone 3. Whether the 2nd defendant had challenges in registering its title in the land and whether with knowledge of the said Nii Kommey Mansah Larsey, the 2nd defendant acquired the self-same land for the 2nd time in 2007 to enable it register its certificate?  Then Plaintiff’s issue 6 and Defendant’s additional Issue 4 Plaintiff’s Issue 6 6. Whether the Defendant have trespassed on the Plaintiff’s land. Defendant’s Issue 4 4. Whether the 2nd defendant had already completed developing its land before the instant suit was instituted?  Defendant’s additional Issues 6 and 1 Additional issue 6 - 10 - 6. Whether the plaintiffs are properly vested with capacity institute the instant action. 1. Whether the 1st defendant had been wrongly sued or ought to be a party in the suit? Pursuant to the Supreme Court decision in the case of DALEX FINANCE & LEASING COMPANY LTD Vrs EBENZER AMANOR, L. G. G. COMPANY LMIMITED AND HUAWEI TECHNO-LOGIES (GHANA) SA LIMITED Civil Appeal No. JA/02/2020 dated 14th April 2021 Plaintiffs’ Issues 5 and Defendants’ Additional Issue 8 are moot. PLAINTIFFS’ ISSUES (1) AND (2) AND DEFENDANTS’ ADDITIONAL ISSUE 5: Plaintiffs’ Issues 1 and 2: 1. Whether or not the land in dispute was granted to Plaintiff’s mother by the Numo Kwao family of Frafraha. 2. Whether or not Plaintiffs’ mother had been in possession of the land in dispute since 1994 until she gifted it to Plaintiffs in year 2000. Additional Issue 5: Whether the 2nd defendant was fixed with any knowledge of alleged unproven ownership of the plaintiffs’ The Plaintiffs had alleged in paragraph 3, 4, and 5 of their Amended Statement of Claim that in 1994, some lands of their family (Numo Mensah family of Frafraha) were shared amongst members of their family and their mother (Patience Kai Mensah) was given the subject land and a site plan and she alleged took possession of same by planting mangoes and pawpaw. They alleged in paragraphs 9 of the Amended Statement of Claim that their mother was not given any document to land given her. - 11 - During trial, only 3rd Plaintiff testified and claimed his is testifying for the rest of the Plaintiffs but those Plaintiff never granted any authority in writing authorizing him to testify on their behalf. We submit that an authority note from the rest of the Plaintiff was crucial because of the peculiarity of the claims and Defense of the Defendants. It is noted that throughout the pendency of the case, none of the 1st and 2nd Plaintiffs even attended Court Session. They never swore to any of the processes filed in Court. This confirms our position or contention that the 1st and 2nd Plaintiffs did not sanction the institution of the Suit in their name. During trial, 3rd Plaintiff testified per his witness Statement filed on 21st March 2018. The 3rd Plaintiff simply repeated his pleadings on the allegation on sharing of land in 1994 in paragraph 2 of his Witness Statement. He also tendered Exhibit A, a site plan, which he claimed was the site plan issued to his mother in 1994 without more. The 2nd Defendant vehemently disputed this allegation. The Plaintiffs therefore bear the onus to prove this specific allegation. See the case of BANK OF WEST AFRICA LTD – Vrs- ACKUM (1963) 1GLR 176. It is settled law that he who alleges bears the legal evidential burden to prove the assertion. See the case of BANK OF WEST AFRICA LTD –Vrs- ACKUM. The burden of proof may however shift depending on who alleged a particulars issue. See the cases of SAGOE & OTHERS Vrs SSNIT [2012] 2 SCGLR 1093 and ABABIO Vrs AKRASI [1994-95] Part 2 GBR 774. In proving this assertion, the 3rd Plaintiff testified and called witnesses none of whom were given land if any at all. - 12 - First of all, it is noted that the Plaintiffs claim other family members were given land if any was ever given at all. It is significant to note that none of these other persons, aside Madam Atswei, allegedly given land, was called by the Plaintiffs to testify. Madam Atswei Commey who filed a Witness Statement could not testify as she passed on in the course of the pendency of the Suit. Her Witness Statement even if it was tendered as a hearsay evidence did not contain any creditable evidence on this issue apart from being a repetition of the 3rd Plaintiff’s evidence on this. Per her Witness Statement, she never testified to any site plan given to Patience Kai Mensah neither did she acknowledge or identify Exhibit A. Therefore, Madam Atswei’s Witness Statement cannot be relied upon in the least even if she had testified. Given that she passed during the pendency of the Suit, the Plaintiffs could call any of the other persons they alleged were also given land, but they failed to parade any of them. Madam Atswei who claimed she was also given land next to the Plaintiffs’ mother never exhibited anything (pictures of her developed land, site plan et cetera) to prove this assertion. Therefore, the only reliable evidence Plaintiffs are relying on is the Site Plan (Exhibit A) as evidence that the land was shared and given to her. A careful scrutiny of the Exhibit A, shows that same did not bear any date at all and it is not signed by the Director of Surveys as required by the law. Import of an undated Site Plan: A site plan duly surveyed by a licensed surveyor must necessarily be officially dated to confirm the date it was prepared and signed. It is submitted that an undated site plan cannot be proof of a particular date it was prepared and signed. It cannot be relied on at all. See the case of NORTEY (No. 2) Vrs AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION & ORS (No. 2) [20013-14] 1 SCGLR 703. - 13 - In this case, the site plan which was tendered was undated and was not signed by the Director of Survey or his representative. The Court held that this was contrary to Sections 3(1) of L. I. 1444, the Survey (Supervision and Approval of Plans) Regulations, 1989 which makes it mandatory for plans for any parcel of land to be dated and approved by the Director of Survey or his representative. The Court held that this infringement of statutory requirement renders the site plan of no probative value and therefore this does not constitute the evidence for the purpose for which it was tendered. See also the case REPUBLIC Vrs HIGH COURT, ACCRA, EX PARTE NATIONAL LOTTERIES AUTHORITY [2009] SCGLR 390 @ 402. Again, one will notice that the writing in the heading of the Exhibit A are all in italics except the name (Kai Mensah) which the Exhibit bears is hand written. This is unusual. In other words, it is not normal. Again, the name on the Exhibit is Kai Mensah. Kai Mensah is not and cannot be the same as “Patience Kai Mensah” and this Court cannot assume that it is referring to the self-same person especially when the Plaintiffs did not lead any evidence whatsoever explaining the circumstances surrounding it. Indeed, in their entire evidence, the Plaintiffs failed to give cogent evidential explanation at the trial as to how the name (Kai Mensah) is not the same as their mother’s name whom they themselves pleaded and led evidence as “Patience Kai Mensah”. Furthermore, Exhibit A was not even signed by the alleged Nii Komey whom it is alleged issued same to Plaintiffs’ late mother which the Defendants had denied. The Defendants submit that Exhibit A which is undated and not signed by the Director of Survey and also not signed by the alleged Nii Komey cannot be a proof that same was prepared and signed in 1994. It is also submitted that Exhibit A cannot and should not - 14 - be relied upon or considered at all as a proof that the land was shared and given to Plaintiffs’ mother in 1994 as same had no probative value at all. Under Cross Examination on 5th Nov. 2019, the following ensued: Page 2 Q - You have alleged that in 1994, there was a sharing of land and you further alleged that you mother was given the land. Tell this Court when you got to know the sharing of land you are alleging. Ans - My Lord, in 1994 we were on the land when it was shared. Q - When you brought his matter to Court, in your original Statement of Claim, which you filed you never talked of sharing of land which your mother was given. Page 3 Ans - My Lord, the sharing was mentioned in the Statement of Claim. Q - I am putting to you that per paragraph 5 you have said emphatically that your mother was granted the land. Ans - Yes it was granted to my mother. Q - Exhibit A does not have any date on it, that is correct. Ans – Yes, My Lord. - 15 - Q - Where is the original of this site plan (Exhibit A)? Ans - My Lord, the original Site plan is at home. I can produce it tomorrow Q - I am suggesting to you that the name “Kai Mensah” which stands written in a different style was on insertion made by you after erasing the original name that was there. Ans - My Lord, it is not true. From the records, the 3rd Plaintiff never produced the original Site Plan for reasons best known to himself even though he indicated he could produce it at the next sitting. Again, the Witness was untruthful when he denied that the writing of the name “Kai Mensah” was written standing straight up as compared to the rest of the writings which is in italics. Page 4 Q - Exhibit A does not have any stamp on it, right? Ans - That is correct, my Lord. Plaintiffs brought PW1 (Beatrice Torshie Obodai) who claimed she is a sister to the Plaintiff to testify. The supposed evidence of PW1 was nothing but a rehearsed repetition of the 3rd Plaintiff’s unproven and unsubstantiated assertion that land was shared and Patience Kai Mensah was given the subject land. It is significant to note, that the Witness never identified the land, neither did she identify the Exhibit A as the site plan relating to the subject land. Therefore the Defendants submit that the Plaintiff’s assertion remains an unproven allegation. - 16 - Aside this, PW1’s Witness Statement as her evidence, PW1 never alluded to the fact that, it was not Mr. Kattar Bright Dickson who translated the content from English to the Ga language for her. Her testimony as borne out from her Witness Statement (this is unambiguous) is that it was the said Kattar Bright Dickson who read and translated the content of the Witness Statement into Ga to her before she made her mark. No mention was made of any third party at all. Defendant’s Counsel personally knows Kattar Bright Dickson and also knows that he does not understand Ga language at all. So, under Cross Examination, when PW1 was quizzed further, she confessed that it was not Kattar Bright Dickson who translated the content of the Witness Statement to her. She does not even remember where she met Bright. She testified that it was rather someone else who translated the content of the Witness Statement to her but could not produce the name of the alleged person. Neither was the name of the alleged translator provided in the body of her Witness Statement as mandatorily required by the law. This is what transpired under Cross Examination on 4th Defendant 2019. Q - You thumb-printed because you cannot read and write the English Language. Ans - That is so. Q - Can you tell us who interpreted the Witness Statement to you? Ans - My Lord, Mr. Bright is the one who interpreted my Witness Statement for me. Q - Tell the Court where did you specifically meet Mr. Bright to explain the Witness Statement to you? - 17 - Ans - My Lord I have forgotten the area. Q - Would you be surprised that this Mr. Bright you have mentioned does not speak Ga. Ans - My Lord, Bright read the content of my Witness Statement in English and another person who was present did the interpretation to me in Ga. Q - What is the name of the person? Ans - My Lord I do not know this person anywhere. Q - Are you aware that the name of this alleged young man who allegedly did the interpretation in Ga to you is not provided in your Witness Statement? Ans - Yes my Lord. I am aware. He was a young man who was passing by and he was called to interpret it to me. How inconceivable that the translation of a document such as a Witness Statement could be subjected to a wayside (not an office) arena such that just anybody passing by and unknown could be alleged to have translated same. These suppositions clearly cannot be true. Clearly, the witness was not being truthful to the Court. She simply presented her evidence as though Mr. Kattar was the one who translated the Witness Statement from English to Ga until under cross examination when she was quizzed, it turned out that was not the case at all. So clearly Bright did not translate the said document to her. - 18 - Counsel for the Defendants argued that, pursuant to Section 4 of CAP 262, the ILLITERATES PROTECTION ACT (CAP 262), the name of the person who interpreted the Witness Statement to her ought to have been provided. The name of the said person was never provided and nothing was stated to this effect in the Witness Statement. It is submitted that it is obvious that PW1 had not been truthful to the Court. She had clearly and deliberately misled the Court in this regard and she cannot be made to benefit from same putting her credulity in serious issue borne out of her own Witness Statement. That being the case, her Witness Statement cannot be relied upon as credible. Again, her Witness Statement is in breach of the law (CAP 262). Furthermore, she failed to demonstrate to the Court that the Witness Statement was authorized by her and same was translated to her from the English Language to Ga by a named person. In the case of NORTEY (No. 2) Vrs. AFRICAN INSTITUTE OF JOURNALIISM & COMMUNICATION & ORS (No.2) [2013-14] I SCGLR 703 it was held inter alia that the absence of a jurat which is a legal requirement (since most of the participants listed were illiterate) offends the mandatory provisions of Section 4 of CAP 262. The Court held that this is because the matters required to be complied with must be evident on the face of the document or letter. See also, MAHAMA HAUSA AND OTHER Vrs BAAKO HAUSA & ANOR [1972] GLR 469 (CA). The jurat in the Witness Statement of PW1 did not state the name of the person who actually allegedly translated it to her. This failure is so fatal as it does not comply with the requirement for a jurat. It is submitted that from the evidence elucidated, it is clear that the jurat provided infringes on the requirement of the law (section 4 of CAP 262). That being the case, the Court would not put any probative value on her evidence and - 19 - Counsel for the Defendants did not even bother to cross examine the witness on her fundamentally defective document at all since her Witness Statement infringed the law. In relation to the Issue I at hand, I find that the Plaintiffs have failed to discharge the burden of proof on them, which is that, the disputed land was granted to Plaintiff’s mother by the Numo Komey Mensah family. ISSUE 2 2. Whether or not Plaintiffs’ mother had been in possession of the land in dispute since 1994 until she gifted it to Plaintiffs in year 2000. I now deal with Issue 2. The Plaintiffs pleaded in paragraph 3 and 12 of their Amended Statement of Claim that their mother had been in adverse possession of the land in dispute since 1994 until she gifted it to Plaintiff in the year 2000. The Plaintiffs therefore assume that burden to prove this assertion. In his evidence at the trial, the 3rd Plaintiff simply repeated the assertion in his pleading without more. He repeated that immediately after the grant, his mother took possession of the land and she planted mangoes and pawpaw on it without more. No evidence of possession was tendered in evidence at the Court. No evidence was led on boundary pillars on the land and pictures of any such. No pictures with dates were tendered to prove the allegation that mangoes and pawpaw tree were ever planted on the land. Absolutely nothing was tendered in evidence to show proof of possession. The law is well settled that to prove possession, one has to show such things as boundary pillars, building structures, building materials et cetera. - 20 - Plaintiff’s Witness, (PW1) repeated the assertion of the Plaintiff without more. PW2 testified per paragraph 3 that Patience Kai took possession of the land and farmed it until she allegedly gifted it to the Plaintiffs. PW1 never identified any document to the subject and never testified to the size of the land. Clearly, her evidence is nothing but a repetition of the Plaintiff. No one witness who ever farmed the land himself/herself was called to testify. No neighbour to the land was called to testify. Is it not strange also that the Plaintiffs who claim they have been on the land at the time it was allegedly granted to the said mother, Patience Kai and had stayed on the land never farmed that land with their mother? It was succinctly held in the case of MAJOLAGBE v. LARBI & ORS that ‘Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath’ In the case of KLAH Vrs PHOENIX INSURANCE CO. LTD [2012] 2 SCGLR 1139, it was held that the piling up of mere repeated assertions or allegations without more does not amount to evidence in proof of one’s case. I find on the combined authority of KLAH VRS PHOENIX INSURANCE CO. LTD, MAJOLAGBE v LARBI & ORS, BANK OF WEST AFRICA VRS ACKUN that the Plaintiffs have failed to discharge the burden of proof that Madam Patience Kai Mensah ever took possession of the land and famed same from 1994 to 2000. The Plaintiffs’ story does not pass any reasonable bystander deduction. The assertion or allegation in this regard remains mere suspicion without more. The allegation should therefore be disregarded entirely. - 21 - I find that the Plaintiffs have woefully failed to prove the allegation that Patience Kai Mensah took possession of the land in 1994 and farmed same with pawpaw and mangoes, wherefore this claim must also fail. ADDITIONAL ISSUE 5 Whether the 2nd defendant was fixed with any knowledge of alleged unproven ownership of the plaintiffs’. Flowing from the above analysis, additional issue 5 does not even arise at all since the Plaintiffs’ mother was not granted the said land and did not have possession either. In the Amended Statement of Defence filed on 1st March 2018, the Defendant pleaded in paragraph 9 that upon acquisition of the subject land in 2006, same was bare virgin land without any building structure whatsoever and Defendants constructed a fence wall all around the land in phases. It is the 2nd Defendant’s case in Defense that it was not fixed with knowledge of the alleged ownership of the Plaintiffs’ mother and therefore it was not privy to the assertion. The Plaintiff’s mother never registered any interest at the Lands Commission to serve as a notice to the whole world, neither was anything posted on the subject to serve as a notice to any third parties. From the evidence on record, the 2nd Defendant only procured any knowledge of the assertion of the Plaintiffs’ claim to the land when 3rd Plaintiff sought to lay interest in 2nd Defendant’s 0.24 acres land sometime in 2013 and 1st Defendant reported him to the chief and he (3rd Plaintiff) and the other Plaintiffs were warned to stay off the land at which time 2nd Defendant had walled it and built on same. - 22 - Evidence on record show that when the 2nd Defendant reported of the conduct of the 3rd Plaintiff to his family head (Nii Commey Mensah Lassey), the latter who invited them and studied Exhibit C discovered that the Plaintiffs had deceived him into executing Exhibit C for them, as covering an entirely different land which was allocated to their mother, Patience Kai Mensah. The evidence on record further affirmed that Nii Commey Mensah Lassey had requested the Plaintiffs to return the rest of the copies of Exhibit C and warned them to stay off the 2nd Defendant’s land (0.24 Acre land) which he confirmed he had already sold to them in 2006. This position was affirmed by the testimony of DW1 (who is the acting head of family) since Nii Commey Mensah Lassey was old and weak. DW1 testified under cross examination on 8th December 2021 as follows: Q: I am further putting it to you that Nii Commey Mensah Lassey never recalled or withdrew Exhibit C from Plaintiffs. A: Nii Commey Mensah Lassey invited the Plaintiffs and requested that they bring the document that they had in their possession to him to enable him examine same since he (NII Commey Mensah Lassey) had already sold the land in dispute (0.24 acre) to Alhaji Surakatu Ali, the 1st Defendant in 2006. The Plaintiff honoured the invitation. They never returned to the palace until the chief passed away. The above pieces of evidence corroborate the case of the 2nd Defendant and DW1’s testimony that Nii Commey Mensah Lassey detected that he was deceived into executing C as relating a different land and not the 2nd Defendant’s 0.24-acre land which he had already sold to the 2nd Defendant. - 23 - The 2nd Defendant is not privy to all these and cannot be made to suffer for the internal family mess of the Nii Commey Mensah Lassey and the Plaintiffs. The 2nd Defendant is an innocent third-party purchaser in good faith without notice of any internal family mess between Nii Commey Mensah Lassey and his nephews. The family mess is between the two parties (an uncle head of family and his nephews) to sort out. The 2nd Defendant ought to and must be protected under the legal principle of an innocent third-party purchaser in good faith without notice of any internal family issue in respect of its 0.24- acre land. More so, 2nd Defendant had registered the land and had long developed and completed building its landed property on same and had been occupying same several months before the institution of the instant Suit. The Plaintiff ought to have sued their head of family/uncle who is the custodian of their family and the rightful person who can allocate family land to indigenes and grant same to strangers. PLAINTIFF’S ISSUES 3 AND 4 I will now address Plaintiffs’ issues 3 and 4 together. Plaintiff’s Issue 3: 3. Whether or not Plaintiffs’ mother gifted the land in dispute to Plaintiff in the year 2000 Plaintiff’s Issue 4: 4. Whether or not Plaintiffs have been in adverse possession of the land in dispute since the years 2000. Regarding the gift of the land in dispute, the foremost question is whether the Plaintiffs have proven that their mother ever owned the subject land at all. This is so crucial because, one cannot give what one does not own. This is the essence of the Nemo dat quod non habet rule. - 24 - It is crucial to point out clearly that the Plaintiffs failed to prove by cogent evidence that the Defendants’ 0.24-acre land was owned by Plaintiffs’ late mother. Having failed to prove same, the issue of gift does not arise at all. In fact, assuming without admitting that a supposed gift inter vivos was ever made by madam Patience Kai Mensah, it is submitted that same is invalid and no interest passed unto the Plaintiffs, because Patience Kai Mensah could not give what she did not have. It is instructive to note that in the original Suit filed by the Plaintiffs on 19th December 2014, the Plaintiffs never pleaded any gift of the said land by their mother to the Plaintiffs. Per paragraph 7, the Plaintiffs were emphatic that the subject land was granted to them by their mother. Upon filing a Defense in which the Defendants raised cogent issues including the property and capacity of the Plaintiffs since they had no letters of administration to the said property (the suppose estate) and yet claim to have obtained an indenture from Numo Commey Mensah Lassey in 2012. Having realized the obvious impropriety and lack of capacity, the Plaintiffs quickly applied and filed for Amendment and strangely introduced the allegation of gift to make up a story. The amended Statement of Claim was filed on 28th June 2018 and the allegation of gift was now pleaded in paragraph 6A. The question to be asked is: At the time the Plaintiffs filed the Writ, was the issue of alleged gift not already in existence? Why does it have to take a Defense to be filed by the Defense before the Plaintiff will apply to Amend their Writ of Summons and strangely introduce allegation of gift? In the Amended Statement of Claim Plaintiffs now strangely plead per paragraph 6A that on the 4th day of June 2000, their mother gifted the land to them and they accepted same - 25 - and performed ‘aseda’ in the presence of some family members. The Defendants vehemently denied this allegation and put the Plaintiffs to strict proof. The Plaintiffs, having made this serious allegation, therefore bear the burden of proof to lead cogent evidence to prove the allegation. At the trial, the Plaintiffs alleged in their testimony that on 4th June 2000, their mother gifted the land to them in the presence of their sister and auntie (Atswei Commey) and they gave one bottle of Schnapp. The burden of proof is therefore on the Plaintiff to lead cogent evidence to prove this allegation. See the case of ACKAH V PERGA TRANSPORT LTD & OTHERS cited supra. The Plaintiffs never tendered anything to prove this rather wild assertion. No pictures of the alleged event was tendered. No documentation such as an executed Deed of Gift or a single document signed by the parties and witnesses was tendered. None of the other two Plaintiffs testified to affirm this allegation. The 3rd Plaintiff who testified never tendered any authority note from the 1st and 3rd Plaintiffs. 1st and 2nd Plaintiff have simply abandoned the case. The 3rd Plaintiff called PW1 to testify in support of his case. Again, all PW1 (who is a sibling) did was only to repeated the averment of the 3rd Plaintiff without more. Throughout the Plaintiffs’ case or evidence, they never testified that at the said meeting, Patience Kai Mensah produced any document to the alleged land, not even a site plan of the alleged land was tendered. - 26 - What is also intriguing is that no elder of the family who would serve as a neutral person was called or present at the alleged gift ceremony. Not even Nii Commey Mensah who was the head of their family and chief of their town (Frafraha). From the presentation of the Plaintiffs’ evidence on the gift, aside Patience Kai Mensah & four of her children were present, only one sister was present eventhough she had other siblings including Nii Commey Lassey Mensah. No any other brother or sister of Patience Kai Mensah was present or informed. No Head of Family or any principal family member was called or present to witness it as a neutral witness. Assuming without admitting that any gift was ever made by Patience Kai Mensah (which 2nd Defendant vehemently denied), the alleged gift was not given reasonable publicity as required by law. Parading one sided (some of the children of Madam Kai who all have interest in the subject property) without any member of the immediate wider family raises serious issues about the existence of any such gift event at all. The subject matter of the alleged unproven gift is a land. The effect therefore is that interest had passed unto the Plaintiffs, if there was any such gift at all. If that was the case, then why the execution of Exhibit C by the self-same Plaintiffs who claimed they had been gifted the land? Under cross examination, the 3rd Plaintiff himself is on record that Nii Kommey Lassey Mensah was not present at the alleged event where the gift was supposed to have taken place. He further alleged under cross examination, that they later informed him (Nii Lassey Messah Kommey). This allegation presupposes that Nii Lassey Mensah Kommey is aware of the gift. - 27 - Considering the fact that there was no documentation of the alleged gift it renders the alleged gift a gift inter vivos. Counsel for the Defendants submit that one of the potencies of gift inter vivos is publicity aside clear intention on the part of the donor and acceptance. See the case of OPANIN KWABENA AGYEI Vrs OPANIN KWADWO WIREDU CHIFTANCY APPEAL NO. JS/2/2005 15TH FEBRUARY, 2006. AKUNSAH Vrs. BOTCHWAY & TEI RIVER, [2011] 1 SCGLR 288. Publicity of a gift inter vivos (Traditional gift) is a crucial element of gift. The essence of Publicity which the above cited case law authority endorse is to the effect that as much as possible key stakeholders must be made aware and be present as independent or neutral witnesses to make it credible and devoid of any challenge. On the record, the only persons alleged to be present were four children of the donor and a sister. Three of them are the Plaintiffs (the alleged donees). In the instant case, the evidence on records shows that none of the family elders including the head of family and Chief (Nii Commey Lassey Mensah) who is also a senior brother to Patience Kai Mensah was present at the alleged ceremony. Indeed, none of his (Nii Commey Mensah) children or any first cousin in the family was present at the alleged ceremony. It is to be borne in mind that the subject matter of the supposed gift is land belonging to the larger Numo Menssah Kwao family (which all the parties belong) which Plaintiffs are alleging was granted to their mother. It is not the self-acquired land of Patience Kai Mensah. She had no proof of ownership document to the land. No cogent evidence had been led before this Court that she has been in possession of the land. Too many lingering questions are surrounding this gift. - 28 - As at the said year 2000, the 2nd Defendant’s 0.24 acre land had already been granted to the 2nd Defendant. I find that, given the peculiar nature of the subject land as already addressed, the alleged gift inter vivos was not given publicity at all. The Plaintiffs have failed to prove that the gift was given reasonable publicity. We submit that the 4 children of Mad. Patience Kai Mensah alone (three of whom are the supposed donees and therefore has interest) and one sister does not pass reasonable publicity test. The non-publicity of the alleged gift and failure of any documentary evidence renders the allegation of gift not more probable that it ever took place. During Cross Examination on 7th November 2019, the following ensued. Q - And according to you Commey Mensah Lassey also know about the alleged gift of the same land from your mother to you and your siblings. Is that so? Ans - My Lord Commeny Mensah Lassey is aware that our mother gifted the land to us but the occasion or time in which our mother met with us and gifted the land to us, Commeny Mensah Lassey was not there. Q - According to you the alleged gift was in the year 2000. Ans - Yes it is true my Lord. Q: And it is ture that in the year 2000, Commey Mensah Lassey was the Chief of Frafraha. - 29 - Ans - It is true my Lord. Q - It is on record that your mtoehr and Commey Mensah Lassey are siblings, that is so. Ans - Yes my Lord. Q - And your evidence is that when the alleged event at which the gift took place, Commey Mensah Lassey was not invited. Is that so. Ans - Commey Mensah Lassey was not invited. Q - But Commey Mensah Lassey according to you got to know that this alleged gift had taken place. Ans - Yes my Lord. My mother had told Commey Mensah Lassey after the event took place. Q: You can confirm that this last asswer (the fact that your mother informed Commey Mensah Lassey) was never part of your pleadings and your evidence in Court. Ans - Yes my Lord. Q - I am putting it to you that this answer is a clear after thought from you. Ans My Lord it is not an afterthought. Page 6 - 30 - Q - Exhibit C does not say anywhere that tis land in issue was ever shared or given to your mother through sharing. Ans - Exhibit C does not say so my Lord. Q: - You can read and write. Ans - Yes my Lord. Q - Look at Exhibit C, go through it and see whether it is stated anywhere that this land was gifted to you and your siblings. Ans - I have not seen anything captured that say so. The Plaintiffs got their own sister (PW1) to testify and simply repeat their assertion as pleaded but failed in leading cogent evidence in proof of their case. PW1 never described the land. What more could one expect from a sister? Nothing short of coming to testify to please the Plaintiffs. Given the peculiar nature of the allegation of gift, the Plaintiffs’ sister is not a credible witness. Therefore, Counsel for the Defendants contends that, it appears there was no gift as alleged and submits that if there was any search gift, Nii Commey Mensah Lassey in preparing Exhibit C, would have capture this crucial fundamental fact in the recital in or anywhere in Exhibit C. However, a careful scrutiny of the Exhibit C show that the fact of gift of the land to which Exhibit C (the subject land) relates is not stated nor provided for anywhere. The is what transpired under cross examination of 3rd Plaintiff on 3rd November 2019 - 31 - Page 6 Q: Exhibit C does not say anywhere that this land in issue was ever shared or given to your mother. A: Exhibit C does not say so. Q: You can read and write. A: Yes my Lord. Q: Look at Exhibit C, go through it and see whether it stated anywhere that this land was gifted to you and your siblings. A: U have not anything captured that say so. Counsel for the Defendants contends that it was not captured or provided because no such alleged gift ever took place. Upon a careful consideration of Exhibit C, same is at complete variance with the Plaintiffs’ allegation of gift of same to them. In other words, Exhibit C flies directly in the face of Plaintiffs’ claim that the subject land was gifted to them. The Court is now confronted with oral allegation of gift on the said land and documentary evidence (Exhibit C) on the same land. The two documents contradict each other. Which one should prevail? It is settled law that where oral evidence and documentary evidence clash on the self- same subject, the documentary evidence trumps the oral evidence. See the Supreme - 32 - Court decision in FOSUA & ADU POKU Vrs DUFFIE (DECEASED) & ADU POKU MENSAH, [2009] SCGLR 310. I find that the Plaintiffs’ own documentary evidence on the subject land (Exhibit C) completely overrules their oral allegation of gift inter vivos of the sale land. Plaintiffs’ Exhibit C renders the whole allegations of gift not probable at all in the least. DEFENDANTS’ ADDITIONAL ISSUE 2 AND PLAINTIFFS ISSUES 5 Defendants’ Additional Issue 2 and Plaintiff’s Issues 5. Additional Issue 2: 2. Whether Nii Kommey Mensah Larsey, the head and lawful representative of the Plaintiffs family, having lawfully alienated the disputed land to the 2nd defendant in October 2006, he could thereafter purport to make grant of self-same land to plaintiffs in March 2012 and whether any such grant if any at all is invalid, null or void? Plaintiff’s Issue 5 5. Whether or not Nii Kommey Mensah Lassey had any title to convey to Defendants after he had divested his interest in the land in dispute to Plaintiff’s mother in 1994. Evidence on record show that, Plaintiffs’ mother was given land at a completely different place (a place described as behind the chief’s palace near the Dodowa road) and never the subject land. DW1 who is now playing the role of acting Head testified to confirm this. DW1 testified that when the 2nd Defendant’s director reported of the trespass conduct of the 3rd Plaintiff, he was summoned by the chief (Nii Commey Mensah Lassey) and when - 33 - the matter was queried, it was discovered that the Plaintiffs misled Nii Commey Mensah Lassey into executing Exhibit C for them making him believe that it was in relation to their mother’s land given to them at a completely different place. This is what transpired under cross examination on 9th December 2021: Page 2: Q: In your Witness Statement, you stated that before the death of the Plaintiff’s mother, Nii Commey Mensah Lassey, chief of Frafraha and head of family allocated two plots of land to the Plaintiff’s mother. Is that the case. A: That is correct my Lord Q: These two plots you talked about can you tell the Court exactly where these two plots are? A: My Lord, the two plots that was given to the Plaintiff’s mother is close to the Frafraha chief’s palace on the other side. There is a fueling station on the right side. 8th December 2021 Page 1 Q - Is it the case that the land which you said was situate off Dodowa Road of Frafraha is the same as the land which was given to Plaintiff’s mother which is next to the Frafraha Chief’s Palace. Ans - My Lord I indicated that that particular land is close to the Frafraha Chief’s Palace but the land for which we are in the Court is a different land which has already been given to the 1st Defendant, Alhaji Surakatu. - 34 - Q - So I am putting it to you that the land before this Court has nothing to do with the land you alleged the Chief of Frafraha gave to the Plaintiff’s mother which land is next to the Frafraha Chief’s palace. Ans - Yes I am aware that it has got nothing to do with the land in dispute. However, I am testifying in respect of the land which Nummo Kommey Mensah Lassey, the Chief of Frafraha gave to the 1st Defendant (Alhaji Surakatu Ali) and also prepare documents to over the said land. Q - This land that you just talked about which is along the Dodowa Road, is it the same land which you always say it is next to the Chief of Frafraha’s palace? Ans - Yes my Lord. Q - What is the state of that land as at now. Ans - My Lord currently some structures have been on the land. Some have been rented out and there are kiosks and are uncompleted structure on the land. Q - You know as a fact that the structures, the kiosk and uncompleted structure on the land do not belong to the Plaintiff’s mother or the Plaintiffs themselves. Ans - My Lord, the Structures, the kiosks and uncompleted structures on the land belong to the Plaintiffs. Upon demonstrating that the Plaintiffs have failed to prove that the subject land had been shared and or granted to Patience Kai Mensah in 1994, Counsel for the Defendants contends that the operative effect is that the said land remains the family land of the family to which Nii Commey Mensah Lassey is the Head. - 35 - Again, we have demonstrated the fact that Plaintiffs have also failed to prove that the subject land was gifted to them by their mother. That being the case, the pertinent question is: was Nii Commey Mensah Lassey, chief of Frafraha and head of family in whom the land vests entitled to grant the said land to grantees of the family, in this case, the 2nd Defendant? In answering this question, it is to be noted first of all that there is no issue at all about the status of Nii Commey Mensah Lassey. Evidence on record is firmly settled that Nii Commey Mensah Lassey is the head of family (to which the Plaintiffs belong) and Chief of Frafraha. By law, the head of family (Nii Commey Mensah Lassey) is entitled by law to grant the subject land and he does so with Nii Adjei Kpobi Asaawa, Akutso Tse of Agbawe. Consequently, he legitimately and lawfully granted the subject 0.24 Acre land to the 2nd Defendant in October 2006 by virtue of a deed of lease executed by them to this effect tendered as Exhibit 2. I find that the supposition that the family had divested itself of its interest in the subject land to Plaintiff’s mother remains an unproven allegation and same is misconceived. Following from the above conclusion, additional Issue 2 as to whether Nii Kommey Mensah Lassey having lawfully alienated the disputed 0.24 acre land to the 2nd Defendant on October 2006 is proved. The begging question is whether having granted the said 0.24 acre to the 2nd Defendant in 2006, Nii Commey Mensah Lassey could purport to grant same to Plaintiffs six (6) years later in 2012. - 36 - It is submitted that having demonstrated that Nii Commey Mensah Lassey together with Nii Kpobi Asaawa had lawfully granted the subject 0.24 acre land to 2nd Defendant in October 2006, same is not thereafter available to be granted to the Plaintiffs in 2012 (6 years later). Consequently, the purported grant or lease of 2012 (Exhibit C) is invalid since it did not and could not have transferred any interests to the Plaintiffs. I find that the grant to 2nd Defendant is legitimate and valid. Accordingly, the purported grant of the self-same 0.24 acre land to the Plaintiffs in March 2012 is invalid and void. ADDITIONAL ISSUE 3 3. Whether the 2nd Defendant had challenges in registering its title in the land and whether with the knowledge of the said Nii Kommey Mensah Lassey, the 2nd Defendant acquired the self-same land for the 2nd time in 2007 to enable it register its certificate? The Plaintiff tendered in evidence Exhibit 3 (Search Result) which confirmed that the Katamanso Stool have a judgment which covers the land. As expected, it was impossible at the time for the 2nd Defendant to proceed with the registration with the said judgment in records. The 2nd Defendant testified that he drew the attention of his grantor, Nii Commey Mensah Lassey who did not discourage him from dealing with the Katamanso people to able him register his interest in the 0.24 acre land. The 2nd Defendant’s Directors proceeded to pay for the land the 2nd time and had registered and obtained Land Certificate No. TD. 12099 which was tendered in evidence as Exhibit 5. - 37 - The Plaintiff’s lawyer raised issue with Exhibit 5, that it was registered when the case was already pending in Court. Exhibit 5 was issued on 7th January 2016. However, it is to be noted that the registration of same commenced before the institution of the instant Suit in December 2014. PLAINTIFF’S ISSUE 6 & DEFENDANT’S ADDITIONAL ISSUE 4 Plaintiff’s Issue 6 Whether the Defendant have trespassed on the Plaintiff’s land. Defendant’s Additional Issue 4 Whether the 2nd defendant had already completed developing its land before the instant suit was instituted? In order to establish and prove trespass to one’s land, the party must prove he was in possession of the land and that he is the owner or asserts some form of interest. Evidence on record shows that the Plaintiffs have not been able to prove any ownership interest in the subject. On the contrary, the 2nd Defendant had proven that he lawfully acquired the subject land from the Plaintiffs’ head of family and had proceeded to register its interest in same and had been issued with Land Certificate No. TD 12099. On the issues of possession, the Plaintiffs have alleged in paragraph 7 and 12 of their Amended Statement of Claim, that after their mother gave the land to them in the year 2000, they constructed a house on portion of the land and further alleged that they have been in possession and occupation since 1994 and that they are protected by the Limitation Act, 1972, (NRCD 54). - 38 - The Plaintiffs failed to prove that their mother had been in possession of the subject land from 1994 to 2000. With possession from year 2000, the 3rd Plaintiff alleged in paragraph 5 of their Witness Statement that they built a house on portion of the land and tendered Exhibit B to support the assertion. First of all, the Plaintiffs failed to prove clearly which exact portion of their alleged 0.55 Acre land the alleged house is built upon. Exhibit B which is a photograph is not dated so the Court is left with little evidence in determining when this picture was taken. The Plaintiffs, who claim the said house belongs to them, failed to tender any scintilla of evidence (building plan, permit, property rate etc) to connect the house to them. 3rd Plaintiff simply repeated the averment in his pleading. No witness was called to corroborate the assertion. Under cross examination of the 3rd Plaintiff, he admitted that he did not produce any evidence such as a building plan, permit, property rate etc to back this assertion. The 3rd Plaintiff strangely sought to reply on the evidence of the 2nd Defendant’s witness (DW1) that there is a structure on one plot next to the land of the 2nd Defendant. The Plaintiff strangely also sought to rely on this as prove that they have built on the land. The Defendants submit that this cannot be an admission that the Plaintiffs have built on a plot of land which lies next to the subject land. In any case, this one plot of land on which stands the said structure is not part of the land the Plaintiffs’ family lawfully granted to the 2nd Defendant in 2006. - 39 - It is also submitted that the Plaintiffs having made the allegation bears the evidential burden to prove same. They cannot seek to rely on a supposed weakness, in particular the evidence of the 2nd Defendant’s witness (DW1) as proof of their allegation or case. Having said all the above, it is however expedient to state that DW1 was emphatic in his evidence that, the land granted to the 2nd Defendant is not part of Plaintiffs’ land and neither the Plaintiffs nor their mother had been granted or given the said 0.24 acre land of the 2nd Defendant which was legitimately granted to him by Plaintiffs’ own family. From the evidence on record, it is clear that the Plaintiffs have failed to establish that they have been in possession of the 2nd Defendant’s 0.24 acre land. From the above pieces of evidence, I find that neither the Plaintiffs nor their mother ever occupied the 2nd Defendant’s 0.24 acre land. Their claim for adverse possession and protection under the Limitation Act is untenable and misconceived. On the contrary, the 2nd Defendant pleaded in paragraph 9 of its Amended Statement of Defence filed on 1st March 2018 that upon acquisition of the subject 0.24 Acre land in 2006, same was bare virgin land without any building structure whatsoever and constructed a fence wall all around the land in phases and had built a complete house on same with caretaker in occupation over the years. At the trial, the 2nd Defendant’s representative (1st Defendant), testified in line with his pleading. 2nd Defendant’s Exhibited 6 Series show without ambiguity the fenced wall all around its 0.24 acre perimeter with a main entrance gate. It also shows the 2nd Defendant’s building on the land which has since its construction been occupied by 2nd Defendant’s caretakers. - 40 - The following pieces of evidence under cross examination of 1st Defendant on 23rd June 2021 are instructive: Page 2 Q - You see at the time we made the application for injunction the only structure that you had constructed on the land in dispute was a wall around that land in dispute. Ans - My Lord that is not true. When I was told about the injunction, I had finished with the single room and put my caretaker in before I was told there is injunction against me. Q: I am putting it to you that a single room was constructed after the injunction had been granted. Ans - My Lord that is not true. Q - In which year did you construct the wall around the disputed land? Ans - My Lord, I cannot remember the exact year but it was round 2012 that way. Q - And can you tell the Court when you constructed the single room on the land in dispute? Ans - My Lord, the single room was constructed in the year 2013. That one I can remember. The 2nd Defendant’s evidence was corroborated by the DW1 and DW2. Both DW1 and DW2 testified that the land (0.21 acre) had long been walled as at 2010 and a house built on same. DW1 (acting head of Plaintiff’s family) testified and confirmed that Plaintiffs - 41 - have a building on a plot of land next to the 2nd Defendant’s 0.24 acre land but it is not on a portion of the 2nd Defendant’s 0.24 acre land. That portion of the land is not in issue at all. It is fundamentally important to note that DW1 also testified and stressed under cross examination that, even though the Plaintiffs have a structure on the adjoining land, the family did not give the said land to the Plaintiffs’ mother at all. He repeatedly stressed under cross examination that Nii Lassey Mensah Komey gave two plots of land to Plaintiffs mother which is situated behind the Frafraha chief palace (at a completely different location). He was very resolute that the family did not give any land next to and or covering the 2nd Defendant's land. DEFENDANT’S ADDITIONAL ISSUE 1 1. Whether the 1st defendant had been wrongly sued or ought to be a party in the suit? The 2nd Defendant is an incorporated entity. It is trite that it can sue and be sued in the own name and can defend a Court action concerning its property in its own name. The 1st Defendant is the founder Chief Executive Officer (CEO)/Director of the 2nd Defendant. The said 0.24-acre land is the property of the 2nd Defendant. The 1st Defendant has not claimed any interest in the said 0.24-acre land. It was therefore wrong in law to have sued the CEO of the 2nd Defendant for acts and matters concerning the 2nd Defendant. See the case of MORKOR Vrs. KUMA (No.1) [1999-2000] 1GLR 721. The 1st Defendant was wrongly sued and added to the case. He was a completely unnecessary party to the Suit. The Plaintiffs have not proven any act done by the 1st Defendant that make him personally liable for the act of the 2nd Defendant. - 42 - I therefore find that the 1st Defendant was wrongly sued and was a completely unnecessary party. The 1st Defendant has therefore suffered in having to hire the services of a lawyer to defend him when he ought not to be been sued. He has attended Court session throughout spending colossal man-hours one the 8 years the case has travelled. Filling processes, serving them and spending money and resources on transport for his lawyer, witness and himself. The Defendants’ Counsel prays that damages in the sum of Seventy Thousand Cedis (GH¢70,000.00) be awarded to the 1st Defendant to compensate for the ordeal, expenses and loses he had suffered and went through all these 8 odd years. The learned Counsel for the Defendants also prays that, in the case of the 2nd Defendant, the Court dismisses the entire claims of the Plaintiffs and upholds 2nd Defendant’s Counter Claim reliefs. ONE PERTINENT ISSUE RAISED: Whether 1st and 2nd Plaintiffs should be considered as having abandoned the case: Counsel for the Defendants contends that none of the 1st and 2nd Plaintiffs ever signed nor deposed to any processes filed in this suit. They never attended Court throughout the pendency of the Suit. They never filed any Witness Statement(s) in the Suit and never participated nor attended any trial session. Only 3rd Plaintiff testified. In his testimony (Witness statement filed), even though he alleged he was testifying for all Plaintiffs, 3rd Plaintiff did not attach or exhibit any authority notes from the 1st and 2nd Plaintiffs to affirm and prove that they had authorized 3rd Plaintiff to testify on their behalf. - 43 - Under cross examination, 3rd Plaintiff was found wanting, thereby confirms Counsel for the Defendants position that the 1st and 2nd Plaintiffs did not sanction the issuance of the instant suit or that they had simply abandoned the case. COSTS: The case travelled eight (8) years. The 2nd Defendant expended colossal sum of money in filling of Court processes, service of Court processes, obtaining and paying for Court Orders and issuing hearing notices as well as transport costs to Court. The 2nd Defendant also hired services of lawyers and said their professional legal fees. The Defendants will also expend money to file entry of judgment if the case goes in their favour to enable 2nd Defendant cover all the afore stated expenses commitment, the Defendants are therefore entitled to costs if successful. CONCLUSION From the pleadings and the totality of the evidence adduced before this Court, I find on the balance of probabilities, that the scales of justice tilt in favour of the Defendants. Therefore, the action of the Plaintiffs fail and the Defendants’ Counterclaim succeeds. I accordingly make the following Orders: (i) I declare title to all that piece and parcel of piece or parcel of land situate, lying and being at Frafraha in the Greater Accra Region and containing approximate 0.24 Acre bounded on the North East by a proposed road measuring 90.0 feet more or less on the South-East by the Lessor’s land measuring 120 feet more or less on the North-West by the Lessor’s land measuring 90 feet more or less on the North-West by the Lessor’s land measuring 115 feet more or less in favour of the 2nd Defendant. - 44 - (ii) I also declare that the purported grant of the said piece or parcel of land by Nii Kommey Mensah and Nii Adjei Kpobi Asawaa to Torgor Sai and Sodjah Obodai per a lease indenture dated 14th day of March 2012 is null and void and of no legal effect. (iii) I award costs of thirty thousand Ghana cedis (GH¢30,000.00) against the Plaintiffs in favour of the Defendants. (SGD.) AMOS WUNTAH WUNI (J) JUSTICE OF THE HIGH COURT COUNSEL: JUSTICE ADUSA-POKU FOR THE PLAINTIFFS CHARLES HABIAH FOR THE DEFENDANTS - 45 -