YAKUBU VRS RASHID (A1/02/2020) [2023] GHACC 1151 (24 October 2023)

IN THE UPPER WEST CIRCUIT HELD AT WA ON MONDAY THE 24TH DAY OF OCTOBER 2023 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE -------------------------------------------------------------------- SUIT NO A1/02/2020 --- --- PLAINTIFF ADISA YAKUBU H/NO PLOT 93, BLOCK ‘C’ KPAGURI/TENDAMBA RES. AREA [Suing per her lawful attorney] VRS ISSAH ABDUL RASHID KPAGURI SECTION, WA --- --- DEFENDANT JUDGMENT Introduction The Plaintiff per her lawful attorney issued a writ of summons together with a statement of claim dated 12/11/2019 against the Defendant for the reliefs endorsed thereon and on 03/02/2021, the Defendant filed his statement of defense accompanied with a counterclaim after the court granted an extension for him to do so. Come the 25/02/2021, the Plaintiff filed a reply and a defense to counterclaim and later amended the writ of summons together with the statement of claim upon leave granted by the court. The Plaintiff however in the amended writ of summons sought the following reliefs: a. Declaration of title in favour of the Plaintiff in respect of Plot No. 93, Block ‘C’, Kpaguri/Tendamba Residential Area, Wa bounded by plots 94 Block ‘C’ to the west, 95 Block ‘C’ to the east (both occupied by Defendant), 96 Block ‘C; to the north and a footpath to the south. b. An order of perpetual injunction restraining the Defendant, whether by himself, his agents, assigns, workmen, successors in title, privies or whoever so called from interfering with the Plaintiff’s quiet enjoyment of the subject plot. c. Damages for trespass against the Defendant. d. An order directed at the Lands Commission to cancel and or expunge from its records the lease dated 1st August 2004 and executed between Tomah Gbangu and Kwame Naa-Bu. Defendants on 17/05/2021, the filed an amended statement of defense and counterclaimed in response to the amendment carried out by the Plaintiff claiming: a. Declaration of title to all that piece or parcel of land situate and lying at Kpaguri/Tendamba Residential Area Block ‘C’ and known as Plot No. 93, Block ‘C’, containing an approximate area of Zero Point Twenty-Four (0.24) acre more or less and bounded to the north by a proposed road measuring 110 feet more or less on that side, to the east by plot number 96 measuring 110 feet more or less on that side, to the south by plot number 94 measuring 100 feet more or less on that side and to the west by a proposed road measuring 80 feet more or less on that side which piece or parcel of land is more particularly delineated in the lease document dated 1st August, 2004 between Tomah Gbangu (Lessor) and Kwame Naa-Bu (Lessee) and registered as number UWR89/2005. b. A perpetual injunction restraining the Plaintiff whether by herself, her heirs, workmen, assigns or however so called from interfering with Defendant’s quiet enjoyment of the plot in dispute. Agreed issues When pleadings closed and on the back of an application for direction, the Court adopted the following issues and additional issues for trial; 1. Whether or not the Plaintiff has been in possession and occupation of the plot in dispute since 1993 upon acquiring same from his grantor. 2. Whether or not the lease engrossed in respect of the plot in dispute in favour of one Kwame Naa-Bu was done fraudulently and/or in error. 3. Whether or not the [Famina] family are the landlords of the area in dispute and has the capacity to engross the purported lease covering the land in dispute. 4. Whether or not the Defendant’s house is situated across Plots Nos 94 and 95 and not the plot in dispute. 5. Whether or not the Plaintiff is entitled to her claims against the Defendant 6. Whether or not the Defendant has the capacity to counterclaim against the Plaintiff. 7. Whether or not the Defendant is entitled to his counterclaim. The Defendant reacted by filing just two additional issues being: (i) Whether or not where Dauda Alhassan lives with his family is not part of the land in dispute No. 93 Block C Kpaguri/Tendanba Residential Area. (ii) Whether or not the survey report submitted by the Lands Commission is correct given that there was an earlier survey and demarcation of the land by the Survey Department before Defendant’s lease was registered with the Lands Commission. Summary of case of the plaintiff The Plaintiff’s case from his amended statement of claim is that the numbered plot being Plot No. 93 Block ‘C’ Kpaguri/Tendamba Residential Area, the plot in dispute was first acquired by the late Dauda Nuhu sometime in 1992 from the head and principal members of the Famina family of Kpaguri, Wa at a cost. That, he took steps to apply to the Lands Commission for registration of the land then but whiles awaiting the registration for the lease Dauda Nuhu commenced the construction of two bedrooms on the said plot of land but ended up selling the land and its fixtures the two bedrooms to Plaintiff in 1993. Pursuant thereto, the late Dauda Nuhu executed a statutory declaration witnessed by the then head of family of the Famina family to evince the sale to the Plaintiff. This Plaintiff Attorney tendered Exhibit C in proof thereon. Thereafter, the Plaintiff lodged an application with the Lands Commission, now Public and Vested Land Management Division of the Lands Commission (PVLMD) for a lease to be executed in her favour in respect of the subject matter plot. This again he tendered Exhibit E in proof thereon without any objection/s. That whilst Plaintiff awaited the issue of the lease in 1994, he continued construction and completed some additional four rooms on the disputed plot and entrusted same into the care of her son Dauda Alhassan the donee of the power of attorney. The Plaintiff then sojourned to Mali leaving her son and some tenants in quiet possession of the property without any let or hindrance whatsoever from any person including the Defendant. In February 2019 when Plaintiff’s son attempted constructing a toilet on the periphery of the disputed plot, the Defendant accused the Plaintiff’s son, Dauda Alhassan of having encroached on his purported plot of land and drew out a lease purporting to be a document covering Plaintiff’s land. Worried of how he could be in possession and another have a lease over the property, Plaintiff undertook a search at the Lands Commission which revealed that a lease exists in their records between one Tomah Gbangu and Kwame Naa-Bu. That the lease was executed in 2005 when plaintiff was already in occupation for close to 11years. This fact, Exhibit 1 was tendered to proof. Confronted with the lease on record, the Plaintiff’s Attorney with the consent of the Defendant caused a surveyor to survey the land in issue and the land on which Defendant’s house is situate and it was discovered that the Defendant’s house is rather on plots No. 94 and 95. (See Exhibit G). Flowing from the discovery, the instant action against the Defendant by Plaintiff for the reliefs endorsed are meant to cure the situation over the disputed land. Case of the defendant The Defendant in response to the amended statement of claim emphasizes that his late father, Issa Mohammed first acquired the plot from one Damboli from the Famina family of Kpaguri in or around 1980. He said, his late father built two rooms on the land in dispute with bricks and later sold same to one Kassim Osman sometime in 1990 who then subsequently sold the plot in dispute to Kwame Naa-Bu in 1995 which sale was evidenced by a Statutory Declaration dated 5th February 1995 and a “Note of Allocation of Land” from the Waala Traditional Council dated 6/1/95. According to Defendant, in February 2012 he obtained by purchase the land from the previous buyer after conducting a search at the Lands Commission on 12th February 2012 which search revealed that Kwame Naa-Bu had obtained a lease in respect of the plot in dispute. The Defendant further told the court in his pleadings that that he approached the said Kwame Naa-Bu and expressed interest in proceeding with the acquisition of the plot which his grantor agreed to sell to him which he did after negotiation. He accordingly handed over the lease agreement he had signed with the landlord of the disputed plot to him. The Defendant therefore went ahead to counter claim that the Plaintiff had trespassed unto his Plot No. 93, Block ‘C’ Kpaguri/Tendamba Residential Area, Wa and chastised the survey report wielded by Plaintiff Attorney of not being right because the acquisition by Kwame Naa-bu was already engrossed before the survey was commissioned. The burden of proof generally The suit being a civil case, the onus of proof is as set out in Sections 10, 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323). I wish to commence my analysis on the foundation that, this case been a civil one, a party is required by law to win on the balance of probabilities as under sections 11 (4) and 12 of the Evidence Act, 1975 (NRCD 323). Again, it is trite that, in civil cases, the burden of proof is on the plaintiff generally. However, where a defendant counter-claim as in this case, then he assumed the same burden as the plaintiff in the substantive action if he is to succeed on his counter-claim. This is because a counter-claim is a distinct and separate action on its own. See Nortey No. (2) vrs. African Institute of Journalism and Communication & Ors. (No. 2) (2013-14) 1 SCGLR 703 Veronica Opoku vrs. Mary Lartey (2018) 119 GMJ 244 SC. Fosuhene vrs. Atta Wusu (2011) 1 SCGLR 273 In this case, the identity of the land both parties are claiming is not in dispute. Therefore, a party need not prove the identity of the land before he can be successful where the identity of the land is not in dispute See In Re Ashalley Botwe lands Adjety Agbosu & Anor. V. Kotey & Ors. (2003-2004)) 1 SCGLR 420. In this case also, both parties trace their root of title to the allodial owners the Famina family of Kpaguri, Wa. In their respective evidence both parties tendered various exhibits which have been identified in the summary of their respective cases. The provisions of the codification of the common law principle on onus of proof in civil cases as enunciated in Miller v Ministry of Pensions [1947] 2 All ER 372, 374 which was quoted with approval in the case of Nyame v Tarzan Transport [1973] 1 GLR 8, 16, CA where it was stated as follows: “The degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal, it is not”. See also the Supreme Court cases of Adwubeng Vrs Domfeh [1996-97] SCGLR 660, Affisah vrs. Ansah [2005/06] SCGLR 943 @ 948, holding 7 per Lartey JSC and Brempong II vrs. Amofah & Others [2001/02] SCGLR 177, holding 2 and Kofi Sarpong (Deceased) (Substituted by Nana Kwasi Kodua vs. Franklin Adu Bobi Jantuah [2014] 74 G. M. J. 46 Similarly, section 17 (2) of the Evidence Act stipulates that “except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact”. See also YORKWA vrs. ANSAH [1992-93] GBR 278 @ 282 per Brobbey J. A. (as he then was). The party who bears the burden of producing evidence is only required to produce evidence considered to be sufficient on the balance of probabilities to make his case more probable than not. This rule of thumb is enshrined in section 11(4) of NRCD 323 as follows: “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.” In the case of In Re Ashalley Botwe Lands, Adjetey Agbosu & Ors V Kotey & Ors (supra) it was held by the Supreme Court per Wood JSC (as she then was) at page 444 as follows: “it is trite learning that by the statutory provisions of the Evidence Decree 1975 (NRCD 323) the burden of producing evidence in any given case is not fixed but shifts from party to party at various stages of the trial, depending on the issues asserted and or denied”. The Supreme Court reechoed this view in the case of Sumaila Bielbiel V Adamu Dramani & Attorney General (No.3) (2012) 1 SCGLR 370 at 371-372 as follows: “ Ordinarily, the burden of persuasion lies on the same party which bears the burden of producing evidence. However, depending upon the pleadings or what facts are admitted, the evidential burden can move onto a defendant. The cumulation on the defendant of the evidential burden on the issues to be tried in a case can result in the right to open the case shifting to the defendant. For instance, where the burden of producing evidence on every issue in a case lies on the defendant, he or she will have the right to open the case, even if the burden of persuasion remains on the plaintiff”. It therefore follows that; the law sometimes follows the common sense approach. In that case, the burden of persuasion in producing all facts essential to any claim may lie on the person who is making the claim and in this case the Plaintiff. See: Barkers Woode V Nana Fitz (2007-2008) 2 SCGLR 879 Abbey & Ors V Antwi (2010) SCGLR 17 Enekwa V Kwame Nkrumah University of Science and Technology (2009) SCLGR 242 Preliminary determination of the capacity of Defendant to counter claim Allow me take on issue six (6) of capacity as set down for trial which is: whether or not the Defendant has the capacity to counterclaim against the Plaintiff, My choice of disposing off this issue first will allow the rest of the issue to be understood from the onset rather than dealing with it mid-way the judgment because it appears as issue six and may lose reading attention and appreciation since it attracted a reply from defendant to the submission of counsel for the plaintiff. The plaintiff counsel submitted in his address to the court that the Defendant does not have the capacity to counterclaim in respect of the plot in issue. He went further to indicate that, the Defendant’s claim that he acquired the plot of land from one Kwame Naa-Bu yet the document he sought to rely on is a Lease executed between Tomah Gbangu and Kwame Naa-Bu. And that there is no evidence on record aside the sweeping statement by the Defendant to the effect that interest in the land in issue was subsequently transferred to the Defendant. Counsel quoted the case of Health Services Limited v. Unilever Ghana Limited, Civil Appeal No. J4/24/2013 delivered 19th July, 2013 (Unreported) where His Lordship Benin JSC rendered himself as follows; “Transfer of title is not merely handing over any documents to the purchaser, but documents that enable the purchaser to secure legal title.” The apparent oversight drawn from the case cited is that, the case supra touches on the acquisition of the legal interest to the neglect of an equitable interest which is also valid in law and a party can stand on the basis of an equitable interest to challenge for a declaration of title. Therefore, this case appears not to be relevant to the issue at stake. Capacity however is very important in law and this is amplified in the case of Fosua & Adu-Poku v. Dufie [2009] SCGLR by Ansah when he posited that; “Capacity to sue was a matter of law and could be raised at any stage of the proceedings even on appeal. It can be raised by the court suo motu.” On the facts of this case, it appears counsel for the Plaintiff joined many others in practice to assume that capacity and locus standi are the same. This can be seen in his address to the court where he titled the said issue as “locus of the defendant to counterclaim”, yet proceed to argue that the defendant lacks capacity to counterclaim. There is indeed a difference between capacity and locus standi and this was eruditely made by PWAMANG, JSC in the case of Florini Luca v. Mr Samir &others (J4/49/2020) [2021] where distinguished the two as; “It is pertinent to recognize that though capacity and locus standi are closely related and in many instances arise together in cases in court they are separate legal concepts. Capacity properly so called relates to the juristic persona and competence to sue in a court of law and it becomes an issue where an individual sues not in her own personal right but states a certain capacity on account of which she is proceeding in court. On locus standing, the jurist went on to bring the difference as; “Locus standing relates to the legal interest that a party claims in the subject matter of a suit in court. This may be dependent on the provisions of the statute that confers the right to sue, such as the Fatal Accidents Acts in Akrong v Bulley. Otherwise, generally locus standing depends on whether the party has a legal or equitable right that she seeks to enforce or protect by suing in court. In Akrong v Bulley, the statute conferred locus standing on only executors, administrators and dependants but the plaintiff stated that she was suing as “successor and next-of kin” so the court held that she had no locus standing as she did not take letters of administration before commencing the action which would have clothed her with capacity as administrator.” It is therefore clear from the elucidation of the venerable Justice of the supreme court that what is required to be proved by the defendant is his Locus Standi and not capacity, since he is counterclaiming in his personal capacity and not on behalf of any person. Therefore, the fact that the defendant claims he has built on the said land and is also in possession of a lease he claimed was handed to him by his grantor, the court will be hesitant in dismissing his claims. The defendant indicated in cross-examination that his house is equally situated on the land in issue and at page 42 of the record of proceedings he responded to cross examination questions as follows; Q. But did you say that before you came to the land, Dauda Alhassan (Plaintiff/Attorney) was already on the land that he occupies. A. Yes, but the statement had more to it than that. I said Daudu Alhassan was on one side of the land with Kwame Naabu also on another side of the same plot. The defendant is therefore clothed with the requite locus standi to counterclaim and I resolve this preliminary issue in favour of defendant before proceeding to the remaining issues and two additional issues filed by the parties. In resolving issues one (1), issue four (4) & issue one (1) of the additional issues being; i- ii- Whether or not the Plaintiff has been in possession and occupation of the plot in dispute since 1993 upon acquiring same from his grantor Whether or not the Defendant’s house is situated across Plots Nos 94 and 95 and not the plot in dispute. iii- Whether or not where Dauda Alhassan lives with his family is not part of the land in dispute No. 93 Block C Kpaguri/Tendanba Residential Area. The germane issue to be resolved here is whether the Plaintiff’s Attorney together with his family and other tenants have been in quiet possession and occupation of the house situate on Plot No. 93 Block ‘C’, Kpaguri/Tendamba Residential Area since 1993. By the rules of evidence as contained in the Evidence Act, 1975 (NRCD 323), at sections 11 (4) and 12, a party to a civil suit is enjoined to lead evidence in respect of any positive assertion contained in that party’s pleading which the opponent denies. See the case of Adwubeng v. Domfeh supra. Thus, in the case of Zabrama v. Segbezi [1991] 2 GLR 221-247, the Supreme Court reminded practitioners 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. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden”. As stated also in Khoury v. Richter and repeated in Majolagbe v. Larbi supra: ‘Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true'." Clearly from the authorities, the evidential burden is squarely on the plaintiff who alleges that she has been in possession of plot No. 93 Block ‘C’ since 1993. The Plaintiff’s Attorney, Duada Alhassan in his evidence consistently maintained that the Plot No. 93, Block ‘C’, Kpaguri/Tendanba was acquired by her mother sometime in 1993 from one Dauda Nuhu and subsequent to its acquisition, she built a house on same since 1994 and he has since been in charge of the house. He further stated that he together with his family and other tenants have been in active occupation and/or possession of same free from any challenge, hindrance or disturbance from all persons including the Defendant. The semblance of a disagreement Defendant started was when sometime in February 2019 Plaintiff made a move to build a toilet on a portion of the said plot of land in issue when the Defendant surprisingly came objecting to his planned construction on the back of the fact that the said portion of land forms part of his adjourning plot. The Plaintiff called two witnesses who corroborated his evidence and also tendered in ‘Exhibit G’ which is the report of the independent surveyor. Also, the report by the surveyors at the Survey and Mapping Division of the Lands Commission, Wa confirmed that Plaintiff’s house is built on Plot No. 93 Block ‘C’ whilst that of the Defendant is built across Plot Nos. 94 and 95 Block ‘C’ which house was built as far back as 1993 by the Plaintiff. Even though the Plaintiff did not call the surveyor to assert further on the report, the said report was tendered in unchallenged at the time but I observed and read issues impugning why the surveyor was not called by Plaintiff counsel. The Plaintiff’s Attorney gave evidence in cross-examination at page 6 of the record of proceedings when he responded as follows: Q: Are you aware the Defendant bought the land from Kwame [Famena] A: Yes, he said so but that is not my plot Counsel for Defendant interrogated further, and this is what ensued: Q: This lease is registered way back in 2004 A: Yes, it is almost 12 years now by which time we had already started living in the house. At page 21 of the record of proceedings the following again ensued: Q: Before Defendant came to live on the land was there an occupant on the land A: Nobody was staying on the land. Q: I suggest to you that the first occupant of the land is the Defendant’s father A: But certainly not on our plot The general principle of law is that it is the duty of a Plaintiff to prove his case that is, he must prove what he alleges. See Bank of Africa Limited v. Ackon (1963) 1 GLR 176 and Ababio v. Akwasi III (1994-95) 1 GLR Part 2, 774. In other words, it is the party who raised in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the Defense when a sufficient prima facie case is made by the Plaintiff on a particular issue. The Plaintiff having called witnesses and tendered in exhibits to prove that she has been on the land in issue since 1993 and that her attorney has enjoyed quiet and undisturbed possession since the time she acquired the land, the burden will now shift to the Defendant to disprove the claim of the Plaintiff. The issue then is whether the Defendant was able to adduce such credible evidence to prove his case or assertion on the preponderance of probabilities as required in law. The defendant claimed that both the land he acquired from Kwame Naa-Bu and the one occupied by Dauda Alhassan are the same and situated on the same piece of land. He called one witness from the famina family and also tendered in a lease agreement executed between Tomah Gbangu and Kwame Naa-Bu which has plot number 93 on it, that is the land in dispute. It must be pointed out that the defendant did not either through himself or his witness or through any documentary evidence disprove that the Plaintiff’s Attorney has not been on the said land in dispute since 1993 nor prove that the Defendant’s house is also located on plot number 93. The defendant merely relied on the plot number written on the lease to assume that the building is situated on plot number 93. In the case of In Re Ashalley Botwe Lands: Adjetey Agbosu & Ors v. Ebenezer Nikoi Kotey Ors (2003-2004) 1 SCGLR 420 the Supreme Court held that if a Defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the Court such facts or evidence that will induce the determination to be made in his favour. The defendant denied the report he consented with the plaintiff’s attorney to be carried out to show the exact boundaries of plot number 93 which is the land in issue after the report clearly shows that it was the Plaintiff building that was situated on plot number 93. The defendant fails to prove his assertion with any documentary proof or by witnesses that his building was on plot number 93. The defendant’s own pieces of evidence corroborated the assertions made by the plaintiff’s attorney when he answered the following questions under cross-examination at page 41 of the record as follows: Q: You are also aware that Exhibit ‘D’ the Plaintiff acquired the land from Dauda in 1993. A: I can see 1st November Q: But did you say that before you came to the land Dauda Alhassan (Plaintiff/Attorney) was already on the land that he occupies A: Yes, but the statement had more to it than that. I said Dauda Alhassan was on one side of the land with Kwame Naa-bu also on another side of the same plot. The law is unwaveringly established that where a party’s evidence is supported by the admissions of the evidence of his opponent then, barring very exceptional circumstances, judgement should be given to such a party. That is, where the evidence of one party on a vital issue was corroborated by evidence of his adversary, whilst that of his opponent on the same issue stood uncorroborated even by his own witness. A court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reason which I cannot find. See Asante v. Bogyabi 1966 GLR 232, Banahene vrs. Adinkra and Others [1976] 1 GLR 346, CA, Bisi v. Tabiri [1987] 1 GLR 360, SC, holdings (5) and (6) and Manu v. Nsiah (2005-2006) SCGLR 25, holding 2 at 32-33. Therefore, since there is no reason for not preferring the corroborated evidence of the Plaintiff over the uncorroborated evidence of the Defendant. I will accordingly by the admissions of Defendant resolve issue one (1), four (4) of Plaintiff and additional issue one (1) of Defendant in the Plaintiff’s favour. On issues two (2), three (3) and additional issue two (2) as that; 1- Whether or not the lease engrossed in respect of the plot in dispute in favour of one Kwame Naa-Bu was done fraudulently and/or in error 2- Whether or not the Famina family are the landlords of the area in dispute and has the capacity to engross the purported lease covering the land in dispute 3- Whether or not the survey report submitted by the Lands Commission is correct given that there was an earlier survey and demarcation of the land by the Survey Department before Defendant’s lease was registered with the Lands Commission. The Plaintiff’s claim that the engrossed lease in favour of Kwame Naa-Bu was fraudulently or erroneously obtained, he buttresses this assertion with evidence that shows that the Defendant’s plot which he claimed to have bought from Kwame Naa-Bu is distinct from that occupied by him. This defendant indicated as follows in pages 41-42 of the record; Q. Have a look at Exhibit 'J', it has a last space between the plaintiff’s house and your house. A. There is space but that space is not large. Q. But you agree that per the space in between the two houses it cannot be correct to say the two plots are on the same plot of land. A. I will not be able to tell. My land was given a plot number and he sold it and it was where I built. A. No, I cannot tell. Q. What is the size of your plot. A. (Defendants asks for leave to refer) I can see 60, 80 and 110 and 270 I cannot tell what these numbers are. Q. These descriptions read out are the plaintiff's plot and not your plot measurements. A. That is so. The responses especially the very last one (That is so) presents volumes of admission but for the years of practice of Defendant counsel this will have passed as a “fine case” for the young law teacher. That notwithstanding, the admission clearly shows that there is a gap between the buildings of the parties and cannot be all situated on the same plot. The evidence shows that, at the time of the execution of the lease been relied on in 2004, the Plaintiff was in occupation and effective possession of Plot No. 93 Block C for about 11years already. It therefore means that, if indeed the (site) land was visited before the lease was prepared and executed as Defendant wants the court to belief, or is claiming, the Plaintiff’s physical possession of the land would have been noticed. I hold therefore that Defendant having noticed that the plot was already encumbered, any lease executed thereof is not only in bad faith but a deliberate misrepresentation of the true ownership of the plot in issue. Interestingly, counsel for the defendant relied on the presumptions of regularity of official acts, to claim that once the lease is engrossed by the land commission, it was deemed to be regularly done. The law however, is not that absolute with official conducts, it is a rebuttable presumption and stands to be proven. This presumption is rendered in Latin as “Omnia praesumuntur rite et solemniter esse acta donec probitur in contrarium”, literally meaning: “All things are presumed to have been done regularly and with due formality, until the contrary is proved.” The law is covered by section 37(1) of the Evidence Act, 1975, NRCD 323, quoted hereunder, as follows: “(1) It is presumed that official duty has been regularly performed.” As stated, section 37 (1) of the Evidence Act, (supra), creates a presumption which can be rebutted by other credible evidence on the record. A rebuttable presumption imposes upon the party against whom it operates the burden of producing evidence, to establish to the court that the presumed conclusion does not exist. It is working common knowledge that before a lease can be executed, a site plan is always first prepared. The preparation of a valid site plan involves visiting the land to take the requisite dimensions. Therefore, if the executed lease was prepared with a site plan, the surveyors should have visited the site and would have observed that the Plaintiff was already on the said land and they would have informed the interested party and he will intend get the grantor put on notice assuming he was not aware. The possible inference that can be drawn from this scenario is that, either the lease was prepared based on the cadastral plan of the area on the desks at the lands commission without visiting Kpaguri/Tendanba Residential Area or the merely intended to create controversy. This conduct by the friends of the court at the Commission is a recipe for conflict as one presents itself in this suit. The insinuation one can easily make is that the said conduct may be deliberate with full knowledge of the Plaintiff occupation of the land. The Plaintiff also tendered in Exhibit G in rebutting the presumption of regularity on the part of the lands commission, which is a report from a surveyor from the same commission even though the Defendant disagreed with the report. Therefore, one can conclude that the lease containing plot number 93, to be charitable was executed in error for the Defendant. In Awuku v Tetteh (infra) the Supreme Court held at holding (3) of the headnote as follows; “We believe we state the law correctly that where appellant’s title was derivative, he ought to demonstrate that the predecessor-in-title held a valid title which he could pass to his grantee, for if the foundation was tainted, the superstructure was equally tainted.” It is trite law that a person cannot give valid title to land to another person unless he or she has capacity to transfer same to the potential purchaser. The lease therefore transferred no interest in the plot in issue to the defendant. It must be noted that both parties agreed that the Famina family are the allodial interest holders in the land in dispute. The law on disposition of family property is clear as espoused in a plethora of cases. In respect of family property, the law is well established that the head of the family with the consent and concurrence of the principal members of the family have the capacity to validly alienate family property. In the case of Tieko Akrong (Head and Lawful Representative of the Boi Kwao Family of Ofankor) v. Adu Kofi Djin, CA (Unreported) (Civil Appeal No. H1/154/2005) Dated 16th February, 2007, Kusi-Appiah, J. A held that; “The law was long established in the celebrated case of Kwan v. Nyieni {1959} G. L. R 67 at 69 that: ‘… a deed of conveyance, mortgaged or lease of family land which is on the face of it executed by the Head and another member, upon proof timeously made without the knowledge and consent of all the principal members of the family is void, and passed no title.” His Lordship stated further in the case cited supra that the principle will equally apply where the sale was conducted by the Head alone or a Head of family with ordinary members of the family or a principal member alone and not by the Head of family and all principal members of the family….” See also the cases of Dotwaah and Another v. Afriyie {1965} G. L. R 257 S. C, Fiaklu v. Adjiani {1992} 2G. L. R 371 C. A. From the totality of the evidence before the Court, it is not in doubt that the Famina family is the allodial owner of the land in issue as alluded to earlier before citing this authority. As such, any other family which purportedly makes any grant in respect of the same land to any person will be invalid. Similarly, any conveyance made by any member of the family without the Head of family, or the successor is void ab initio. interestingly, only the defendant is able to call a member of the Famina family as witness to testify that his acquisition was from the Famina family, even though the Plaintiff also claims same. DW1 in cross-examination at page 50 of the record confirmed that both Mahama Famina and Abdulai Famina were in succession head of family of the Famina family though he could not recall when Mahama Famina became a head of family. One could therefore make an inference that, there could be multiple sale of the same plot by different members of the same family or a mix-up of the plot numbers. In any of those instances, the burden is on the purchaser of land to be vigilant in the acquisition of landed properties. I therefore, resolve issue 2 and additional issue 2 in favour of the Plaintiff because equity will not aid an indolent purchaser the Defedant. The call to resolve issues five (5) and seven (7) of the Plaintiff which are; 1- Whether or not the Plaintiff is entitled to her claim against the Defendant 2- Whether or not the Defendant is entitled to his counter-claim To sue for a declaration of title to land is no mean task, therefore a litigant in embarking on such an exercise I describe as a long haul must marshal all his arsenals and be in readiness to cross all the legal hurdles. The first test in this trip is to ask the question whether the parties are able to satisfactorily describe the land in issue. It is common knowledge that for a Plaintiff to succeed in title declaration claims, he has to satisfactorily describe the identity of his land. In the case of Anane v Donkor [1965] GLR 188. At page 192 the eminent jurist Ollenu JSC said as follows: “Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty and also if the order for injunction is violated the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain. Again, a judgment for declaration of title to land should operate as res judicata to prevent the parties re- litigating the same issue in respect of the identical subject matter but it cannot so operate unless the subject matter thereof is clearly identified.” See the cases of Kpakpo Brown v. Bosomtwi and Co. Ltd. (2001-02) SCGLR 876; Amuzu v. Oklika (1998-99) SCGLR 141 & Aryeh and Akakpo v. Ayaa Iddrisu (2010) SCGLR 891. From the decision in Anane v Donkor supra, the relevant question to be answered in this case is whether both parties have adduced evidence to establish clearly the identity of the land claimed, such that if declaration of title, injunction and possession were granted to any of them, the reliefs will refer to an identifiable land? The answer is in the details. Apart from the myriads of unanswered questions surrounding the title of the defendant grantor, there is also uncertainty in the land conveyed to the defendant by his grantor. The action commenced due to an alleged trespass of the Plaintiff’s attorney unto the Defendant land. The Plaintiff’s Attorney attempted digging a “manhole” on part of the land in issue, which the Defendant objected and indicated that the said portion and now by extension the whole plot of where the Plaintiff’s house is situated Plot No.93 Block “C” Kpaguri/Tendanba Residential Area as indicated in a lease was handed over to the Defendant by his grantor named Kwame Naa-bu. Based on the disagreement that the Defendant’s plot bears the numbering of Plaintiff’s plot The attorney of Plaintiff with the consent of the Defendant caused a surveyor to survey the land in issue and the land on which Defendant’s house is situated. The results of the surveyor were tendered in by the Plaintiff’s Attorney as Exhibit “G” which is a report of an independent disinterested party. The report indicated that the plaintiff’s house was situated on Plot No. 93 while that of the defendant’s was across plot no. 94 and 95. The Defendant out rightly rejected the survey report which he earlier on consented to be carried out. The defendant testified in cross-examination at page 41 of the record of proceedings as follows: Q. When you started having issues with Plaintiff, the two of you mutually agreed to get a surveyor to draw a composite plan on the disputed land. A. Yes we agreed to that. Q. Were you issued the report and the plan drawn. A. Yes we were given. Q. Have a look at Exhibit 'G' is that the report the surveyor made with respect to the land? A. Yes that is it. The plaintiff only tendered in the report and failed to call the surveyor or made the court to subpoena the surveyor to attest to the authenticity of the report. The Defendant on the other hand, having later rejected the survey report did not find it prudent to apply to the court to subpoena the said surveyor who carried out the survey assessment to speak to his report through cross-examination after it was tendered in evidence. The Defendant inability to adversely challenge the work done by the surveyor or the composite plan drawn, which he consented to, amounted to an admission of same. In Re Ashalley Botwe Lands; Adjetey Agbosu and Others vs Kotey and Ors (2003-2004) SCGLR 420 where evidence was unchallenged, the Court held that: “Under these circumstances, the plaintiff was not bound to produce other witnesses on the same issue of identification, for the general rule which should be clearly applicable, since the defendants were represented by counsel is that, where a party’s testimony of a material fact was not challenged under cross-examination, the rule of implied admission for failure to deny by cross-examination would be applicable and the party need not call further the evidence on the fact: see also Martey v. Botwe. [1989-90] SCGLR 478, SC and Great Commission Church International v. Acolatse & Anor. (2014) 75 GMJ 39 at page 45 & Ayiwa v. Badu (1963) 1 GLR 86. The evidence of the surveyor tendered in unchallenged in this case cannot be glossed over and I cannot find reason to reject the evidence during the evaluation for judgment because the evidence was good and proper. The law is that although the evidence of an expert is only of persuasive effect and not binding, there must be very good reasons by the Court to reject it. In the case of Tetteh v. Hayford (2012) 44 GMJ 11, Dotse JSC held at page 17 thus: "It is generally understood that a court is not bound by the evidence given by an expert such as the surveyor in this case. But the law is equally clear that a trial court must give good reasons why expert evidence is to be rejected". See the cases of Mfum Farms & Feedmill Ltd v. Madam Agnes Gyamfua – Deceased (Substituted by Mrs. Lovia Opoku Bandoh [2018] DLSC 2484; Nana Kwasi Broni & Anor. v. Kwame Kwakye & 2 Ors. [2017] DLSC 2491; Celestine Kuagbenu v. Cecilia Spencer [2015] DLSC 3224. Mondial Veneer (GH) Ltd. V Amuah Gyebu XV [2011]1SCGLR 466 where Georgina Wood CJ stated this position in the following words “In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls… to prove the root of title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation. 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.” See also Nortey (No.1) vs. African Institute of Journalism and Communication and Others (No.1) [2013-2014] 1n SCGLR 698. In the case of Great Commission Church International v. Acolatse and Another (2014) 75 GMJ 39@45 it was held that the since the Defendant did not adversely challenge the work done by the surveyor or the composite plan drawn, thereby amounting to an admission of the report. Decision From the foregoing lower court appreciation of the evidence and the law, I hold that the Plaintiff has proven her case as required by law on the preponderance of probabilities and I do enter judgment in her favour for all the reliefs contained in her writ, whilst dismissing the Defendant’s counterclaim in limen. I do order that should this decision not be appealed within the period set by the rules of court, the Plaintiff should get a licensed surveyor to erect pillars on the surveyed land to reflect his boundaries as the survey report determined. Compensatory cost of GHC11000 is awarded the Plaintiff to compensate for the travel of her counsel and other ancillary cost. This approach is not meant to discourage litigation but to make the decision to litigate a well thought through exercise. I however rebuke Defendant counsel for the occasional use of strong language during trial and finally in his address. Those insolent salvos added nothing to his point of law or fact and must be reprimanded in this piece especially that it was against a long standing legal behemoth under who we all seek inspiration to stay afloat in practice. Signed H/H Jonathan Avogo Circuit Court Judge, Wa 24