APAWU VRS TETTEY AND TWO OTHERS (LD/0998/2018) [2023] GHAHC 508 (2 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HUMAN RIGHTS DIVISION, COURT 2, ACCRA – GHANA, HELD ON THURSDAY THE 2ND DAY OF NOVEMBER, 2023, BEFORE HIS LORDSHIP JUSTICE NICHOLAS M. C. ABODAKPI ====================================== CASE CALLED AT 10:37 A. M. SUIT NO. LD/0998/2018 WINFRED KUMAH APAWU VRS. 1. SOLOMON TETTEY 2. NII ODAI NTOW FAMILY 3. PRINCE NANA ANKOMAH ===================================== PARTIES: PLAINTIFF REPRESENTED BY CEPHAS BONNIE 1ST AND 3RD DEFENDANTS REPRESENTED BY NII AMARTEY ARMAH 2ND DEFENDANTS REPRESENTED BY CLARENCE ARMAH COUNSEL: 1. STEVE GREY FOR THE PLAINTIFF – PRESENT 2. ABIGAIL AMPOFO HOLDING BRIEF FOR JAMES MENSAH KULLEY FOR THE DEFENDANTS – PRESENT ============================================== BY COURT: JUDGMENT 01. (a) The amended writ of summons filed on 14/11/2018, pursuant to an order granted by this Court, has the under-listed as Reliefs endorsed on it: Page 1 of 77 1) A declaration of title to all that piece of parcel of land situate lying and being at Ofankor in the GA-WEST District in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 12.09 acres or 4.90 hectares more or less and bounded on the north by proposed road measuring 666.1 feet more or less on the North East by Lessor’s land measuring 745.3 feet more or less on the South by Lessor’s land measuring 805.7 feet more or less on the West by Lessor’s land measuring 709.7 feet more or less which piece of land is more particularly delineated on the attached plan and edged pink showing the relevant measurements. 2) General Damages for trespass. 3) Perpetual Injunction restraining the Defendants, their agents, privies, assigns, servants, workmen and all people claiming through them from entering and dealing with the land the subject matter of this suit. 4) Recovery of possession. 5) Cost. (b) FACTS The Plaintiff alleges that on or about April, 2014, he acquired twelve (12) acres of land from Nii Kofi Appenteng family of Otublohum, Accra per its Head and Lawful representative Rev. Alex Aryeequaye and on 17/04/2015 he was issued with an indenture by his grantor evidencing the acquisition. He further stated that the document bas been duly stamped at the Lands Commission as No. LVD 48992016. Page 2 of 77 In paragraphs 6 and 7, he alleged his land, as described in these paragraphs (which is the same as the description in the endorsement) was affected by a judgment entered in favour of one MIKE SIMILAO in 2015, as a result, he got in touch with him to regularize his grant and before his proposal could be finalised, he had cleared the land and was in possession of it, when the Supreme Court on 11/05/2017 overturned the judgment entered in MIKE SIMILAO’s favour. Furthermore, in paragraphs 8 and 9 he recounted what he termed acts of trespass by people who claimed they had obtained their grants which affected part of his land, from Solomon Tettey, the 1st Defendant and 2nd Defendant herein, the Nii Odai Ntow family. He stated 3rd Defendant is one of those trespassers and that these trespassers with the support of the police arrested and prevented persons he had sold portions of his land to, hence they were unable to develop the land. Plaintiff alleged as a result he took steps to meet members of 2nd Defendant family at their secretariat at Kwabenya, where he demonstrated to them with a composite-plan, drawn based on Plaintiff’s grantor’s family land site plan and it was revealed Plaintiff’s grantor family land is about four thousand (4,000) feet away from the 2nd Defendant family land. Besides, allegations about the grant he got, and acts of trespass and attempts to resolve the dispute, Plaintiff contended that the 2nd Defendant family have consistently based their claim to its family land on a 1904 judgment and its site plan, as in Suit No. SCT 2/4/37, entitled: Page 3 of 77 KWASI BOSUMPIM & 1 ANOR. VRS MARTEI & ORS. Secondly, Plaintiff contended that, there are two judgments of the High Court in which it was directed that 2nd Defendant family must limit its claim to 1904 judgment and not to 12,690 acres of land as in the Statutory Declaration site plans. The suits cited are consolidated Suit No. L442/98, with Suit No. L678/2002, entitled: NII NGLESHIE ADDY VRS. TETTEY IDDRISU & ANOR and NII NGLESHIE V VRS. JOHN ARMAH MENSAH & ANOR. [CORAM: K. A. OFORI ATTAH J. dated 10/03/2017] Plaintiff stated on 12/07/2017 the High Court differently constituted [in the case: NII NGLESHIE ADDDY V VRS TETTEY IDDRISU & ANOR. NII NGLESHIE ADDY VRS JOHN ARMAH [CORAM D. A. GYIMAH J] gave similar direction. Page 4 of 77 In conclusion, Plaintiff stated, the Defendants have completely ignored the judgment they have been relying on as foundation of their claim to its family land and have extended their boundaries to cover lands belonging to his grantor and more particularly the land granted him by his grantors. (c) In a REPLY filed on 10/06/2019, following denial of the grant Plaintiff allegedly got, and the root of title and identity of Plaintiff’s grantors land as well as the meaning put on various judgments cited by Plaintiff, he/Plaintiff emphasized the averment that the 0.68 of acres of land purportedly granted to 3rd Defendant is part of his land. Secondly, Plaintiff joined issue with the Defence on the production of site-plan which they described as a modified version of the site-plan or judgment plan of 1904 and that Suit No. L554/1978 in which that evidence was tendered as a FAMILY FEUD. Thirdly, Plaintiff in his REPLY, joined issue with the Defence on their claim that, Plaintiff’s land forms part of the larger parcel of land belonging to Nii Odai Ntow family. The Plaintiff denied paragraphs 13, 14, 15 and 16, through to 31 in which the Defence gave their version of how their land was founded and how various site-plans were generated and the detail description and measurements as in paragraph 24. In conclusion, the averments and claims in the counter-claim of 3rd Defendant were also denied, and 3rd Defendant put to proof of those claims. Page 5 of 77 (d) The Statement of Defence, filed on behalf of all the three (3) Defendants contains a general traverse of all material averments made against them. In paragraph 4, the Defence denied paragraphs 3, 4, 5, 7, and 8 of the amended statement of claim which were about 12.06 acres of land acquired by Plaintiff, the indenture issued to him by his grantor, the fact that Plaintiff had possession and control of the land, the circumstances attending judgment given for and against MIKE SIMILAO, were also denied by the defence. Furthermore in paragraph 11, the Defence admitted that they have always relied on 1904 judgment and its site plan. The Defence however, in paragraph 12 explained that, they Nii Odai Ntow family relies on judgment in Suit entitled: PETER MENSAH ANTEH VRS. SIMEON ARYEETEY GS. OKINE & ANOR SUIT NO. 554/1978 dated 30/01/1980 [CORAM: HIS LORDSHIP JUSTICE K. A. AGYEPONG], as basis of their claim to KWABENYA, HATSOO, ASHONGMAN, AGBOGBA and its surrounding villages. The Defence also admitted the averment that in Suit No. L442/988 and Suit No. L678/2002 entitled NII NGLESHIE ADDY VRS TETTEH IDDRISU & ANOR (dated 10/03/2017) and Page 6 of 77 NII NGLESHIE ADDY VRS ARMAH MENSAH & ORS. (dated 10/03/2017), the 2nd Defendant family was directed to limit its claim to the family land covered by the judgment plan of 1904. In addition to this admission in paragraph 11 of the Defence, this is what has been said. “In further answer to paragraph 12 of the Amended Statement of claim, Defendants says that the plan tendered in the K. BOSOMPIM & ANOR. VRS. MARTEI & ORS., case is NOT a site-plan properly so-called but a pictorial and fair representation of the location of the land. The said plan was later modified and same tendered in Suit No. L554/1978.” Furthermore, in paragraph 12, the Defence denied Plaintiff’s claims and stated 3rd Defendant’s land is part of its land which include the entire 12.09 acres which Plaintiff has laid claim to, and that the land is not vacant but had been given to third parties who have developed same. From paragraphs 13 to 31, the Defence traced their root of title, cited the 1904 Supreme Court judgment as part of that, and gave genealogy of the Nii Odai Ntow family and details not only of evidence led in 1904, but details of the statutory Declaration made on 2/04/1975, in what they described as an act of: Page 7 of 77 “carefully and correctly modernized from the 1904 plan which was tendered in K. Bosompim & Anor. vrs. Martei case. The 1904 plan is NOT a site-plan properly so-called but a fair representation of the location and description of the land.” Further still, how 3rd Defendant got his grant has been pleaded, the date 20/05/2014 was given as the day the grant was made. The grantors were cited. Paragraph 31 contains the counter-claim, which reads: i. Declaration of title to all that piece or parcel of land situate, lying and being at Kwabenya in the Greater Accra region of the Republic of Ghana bounded on the north by Lessor’s land measuring 206.9 feet more or less and on the East by road measuring 134 feet more or less on the South by Lessor’s land measuring 106.8 feet more or less and on the West by road measuring 172.8 feet more or less and containing an approximate area of 0.68 acre. ii. Cost including legal and administrative cost. 02. FACTS WHICH ARE UNDISPUTED The under listed are facts which have either directly or impliedly been admitted on the pleadings and require no proof. a) It is undisputed, the fact that in 1904, the 2nd Defendant family had judgment entered in its favour by the Supreme Court of the Gold Coast in Suit No. SCT 2/37 entitled: Page 8 of 77 KWASI BOSOMPIM & ANOR VRS. MARTEI & ORS. The fact that there was a plan of the land, the subject matter of the litigation is not disputed by parties, thus the title to that land has been impliedly admitted as established in 1904 judgment and its judgment plan. b) It is not disputed the fact that, the Defence has made an admission directly, concerning the judgment plan of 1904, as could be gleaned from paragraph 11 of the defence quoted supra, where it was stated the judgment plan of 1904 is not a plan properly so-called but a pictorial and fair representation of the location of the land. c) There is no doubt that, judgment was given in favour of one MIKE SIMILAO in the case: OFFEI KWAKU MANTE VRS. MIKE SIMILAO & ANOR. CO-DEFENDANT NII ARYEE ANNANG, and this judgment was set aside by the Supreme Court and a re-trial ordered the said re- trial and judgment thereon is the judgment in Suit No. L/254/99, entitled OFFEI KWAKU MANTE VRS MIKE SIMILAO & ORS. dated 9/02/2022, [Coram: AMO YARTEY J]. d) It is beyond contestation that 2nd Defendant/family did not counter- claim for declaration of title to land in this litigation, but it is sticking to the 1904 judgment with the 1904 site plan and a second site plan a Page 9 of 77 product of so-called modernization with an accompanying Statutory Declaration, that gave dimensions of the land differently. e) There is no dispute that, the 3rd Defendant has endorsed a counter- claim, seeking declaration of title to 0.68 ace of land which is derivative of title of 2nd Defendant thereby tying the identity of his land to the identify of 2nd Defendant family and hence the controversy. f) Title to land as declared on 2nd Defendant’s favour in 1904 judgment is not a triable issue in this litigation. 03. THE ISSUES ACCEPTED FOR THE TRIAL AS THE DISPUTED FACTS: (a) i. Whether or not the 12.09 acres of land claimed by the Plaintiff belongs to the NII KOFI APPENTENG family of Otublohum or the 2nd Defendant family, the NII ODAI NTOW family. ii. Whether or not there was a judgment in respect of the disputed land in favour of one SIMILAO which judgment was overturned by the Supreme Court. iii. Whether or not the 1904, judgment in Suit No. SCT 2/37 entitled KWASI BOSOMPIM & ANOR VRS. MARTEI & ORS, which 2nd Defendant has been relying on as the basis of its claim to its family land including the disputed land had declared that the extent of 2nd Defendant’s land is 12,690 acres. iv. Whether or not the site-plan in the 1904 judgment referred to supra ever gave dimensions of the 2nd Defendant family land. Page 10 of 77 v. Whether or not the judgment in Suit No. L554/2978 entitled: PETER MENSAH ANTEH VRS. SIMEON ARYEETEY G. S. OKAINE & ORS., was not only about a family feud between the same members of the Odai Ntow family and does not bind the Plaintiff in anyway. vi. Whether or not Courts of competent jurisdiction have pronounced judgments and admonished the 2nd Defendant family to limit its claim of land to the area covered by the judgment plan in the Bosompim case of 1904 and not the 12,690 acres in their family’s statutory declaration of 1975 and 1976. vii. Whether or not the 3rd Defendant’s land falls within the Plaintiff’s land. viii. Whether or not Plaintiff is entitled to his claim. (b) These are the number of primary facts that parties must establish, depending on what has been claimed or denied at the trial. i. The exact dimension i.e. accuracy of boundaries in the new site-plan generated by Defendants. ii. The fact that in 2014 when Plaintiff allegedly got his grant, all the land has been encumbered and developed, if Plaintiff’s contention is that he got bare land part of which he cleared and alienated part to third parties who were in occupation, the primary facts on possession and control arise, which parties must establish, depending on the pleading as a whole. Page 11 of 77 iii. The correctness of the fact that there is a deviation of about four thousand (4,000) feet of land away from 2nd Defendant’s land as per 1904 judgment plan and Plaintiff’s land. iv. The meaning that can appropriately be put on the composite plan. The factors to reconsider are primary facts that ought to be established on the evidence adduced for and against the identity (boundary) of the disputed land. 04. ALLOCATION OF THE BURDEN OF PROOF (a) It is the nature of Reliefs sought by a Plaintiff or a party, the pleadings, the defences raised and denied which largely determine how the burden of proof should be allotted to parties. There is the burden of producing evidence, as provided in Section 11, 12, 13 and 179 (a) of the Evidence Act, 1975 [NRCD 323], and there is also the burden of persuasion. The burden of producing evidence means the duty or obligation lying on a litigant to lead evidence. These sections cover which of the litigants should be the first to lead evidence, before the others evidence is led. Therefore, it is the Plaintiff who will lose first, who has the duty or obligation to lead evidence in order to forestall a ruling being made against him. On the other hand, the burden of persuasion entails the quality, quantity, amount degree or extent of evidence the litigant is obliged to adduce in order to satisfy the requirement of proving a situation or a fact. Page 12 of 77 It is trite to state that, the burden of producing evidence and the burden of persuasion may shift depending on the pleadings, namely what has been claimed or denied or assertions made during the trial. This is the shifting burden of persuasion as explained by the Supreme Court in the case: NII ADJETEY AGBOSU VRS. EBENEZER KOTEY [2003/4] SCGLR An issue is deemed proved when the burden of proof is discharged on the scale of preponderance of the probabilities, as provided for in Section 14 of the Evidence Act, cited supra in all civil proceedings. In an action for declaration of title to land as is the case before me, the burden of proof and persuasion is on the Plaintiff to prove conclusively, and with sufficient evidence on a balance of probabilities, that he is entitled to his claims/Reliefs on the writ of summons. This he may accomplish by proving on the balance of probabilities the essentials of his root of title and the method of acquiring title to the area in dispute. Where the Defendant has endorsed a counter-claim, the same standard of proof, that involve the obligation to produce evidence and discharge the burden of persuasion, which a Plaintiff assumes, is the obligation on such a Defendant. Page 13 of 77 In other words, the 3rd Defendant Prince Nana Ankomah is obligated to prove that he has better title to the grant he got from the 2nd Defendant /family, than the interest claimed by the Plaintiff in that 0.68 acre of land. (b) Thus, whether or not the 12.09 acres of land claimed by the Plaintiff belongs to the Nii Kofi Appenteng family of Otublohum or the 2nd Defendant family, the Nii Odai Ntow family, it is Plaintiff who is obligated to prove that the disputed 12.09 is for him. The above is ISSUE ‘1’. Secondly, ISSUE ‘4’, whether or not site-plan in the 1904 judgment referred to supra ever gave dimensions of the 2nd Defendant family land. This is an issue Plaintiff must prove to be successful. Whatever be the dimensions of the land declared in 2nd Defendant’s favour, Plaintiff must show that it does not cover the 12.09 acres granted to him. Thirdly, ISSUE ‘7’, whether or not the 3rd Defendant’s land falls within the Plaintiff’s land, is an issue to be proved by Plaintiff. (c) The 3rd Defendant is also obligated to prove his title to the 0.68 acre land – ISSUE ‘9’ as described in his counter-claim. (d) The 2nd Defendant has to establish the converse of the facts on which Plaintiff carries the burden of proof, as in ISSUES ‘1, 4 and 7’. Similarly Plaintiff has to establish the converse of ISSUE ‘9’ on which the 3rd Defendant carries the burden of proof. Page 14 of 77 (e) The 2nd Defendant/family has an obligation to prove ISSUE ‘3’, namely: “Whether or not the 1904 judgment in Suit No. SCT 2/37 entitled KWASI BOSOMPIM & ANOR. VRS. MARTEI, which judgment 2nd Defendant has been relying on as the basis of its claim to its family land including the disputed land had declared that the extent of 2nd Defendant’s land is 12.090 acres.” The Plaintiff has to establish the converse of this issue, because it is Plaintiff’s claim that 2nd Defendant family must be made to limit itself to land as declared in its favour in 1904 judgment and not permitted to extend the boundaries to cover his grantor’s land or his land. In the pleadings, Plaintiffs recognized the binding effect of the 1904 judgment as it did not call into question its validity, but questioned why 2nd Defendant had claimed and asserted various dimensions or changing dimensions of its land over the years. Finally, ISSUE ‘2’ which is whether or not the Supreme Court has overturned a High Court decision granted in MIKE SIMILAO’S favour , is not contested and Exhibit ‘C’, Supreme Court judgment dated 11/05/2017 tendered by Plaintiff effectively settled the matter about the existence or otherwise of such a Supreme Court decision. And ISSUES 5 and 6 are about the meaning to attach to judgment referred to in those issues. Suit No. L 554/1978 entitled: Page 15 of 77 PETER MENSAH ANTEH VRS. SIMEON ARYEETEY G. S. OKINE, has been tendered as Exhibit ‘2’, and the interpretation of the 1904 judgment in terms of the size/limits of land it declared in 2nd Defendants favour is not a call to attack the decision i.e. the Ratio decidendi and the reasoning on which it is based. Therefore it is unnecessary evidence and submissions tendered by 2nd Defendant in that regard. 05. EVIDENCE ADDUCED (a) The trial commenced on 10/02/2023, when Plaintiff Winfred Kuma Apawu testified. The evidence outlined below is on all the triable issues on which Plaintiff carries the burden of proof and the other issues on which he has to prove certain primary facts which are essential to his claim. The testimony could be put in three categories. Firstly, he spoke about when and how he acquired his interest in the land and the nature of that interest and the possession and control. Secondly, he spoke about challenges he was confronted with by reason of adverse claims etc. and thirdly, he stated the meaning which ought to be given to judgments affecting the subject matter land. Thus in paragraphs 2, 3 and 6 he testified to the effect that on or about April. 2014, he had acquired twelve (12) acres of land from Nii Kofi Appenteng family of Otublohum, Accra through its lawful Head and representative Rev. Alex Aryeequaye and was issued with an indenture on 17/04/2015, as evidence of the transaction, and he had the indenture Page 16 of 77 of lease duly stamped at the Lands Commission as No. LVD 48992016. He tendered Exhibit ‘A’ as the document. Exhibit ‘A’ an indenture of lease with Land Valuation Division No. 489922016, was made on 17/04/2015, between Rev. Alex Aryeequaye, Head and Lawful Representative of the Kofi Appenteng family of Otublohum, Accra, with the consent and concurrence of the principal Elders of the family and in accordance with customary law on one side as Lessor. On the other side, the Lessee – the Plaintiff’s name appears as the party to the transaction. The land is described as forming part of AMBUANDA LANDS and it is for a term of eighty-five (85) years. In the schedule the land is described as seen in the endorsement and the pleadings with covenants, and it has been duly executed by the parties and witnesses. There is a site-plan in Plaintiff’s name, drawn by one Daniel Prekui a licensed surveyor, with an oath of proof made on 3/02/2016. In addition, Plaintiff’s testimony is to the effect that his possession and control of the land was challenged by people who entered the land and begun developing portions of it and when they were confronted, they disclosed the name of the 2nd Defendant family as their grantor. He stated the trespassers refused to leave the land despite warning he had given them. Plaintiff alleged the trespassers used the police to prevent persons he had given parts of the land to from developing them, and they were treated as trespassers. He stated he approached the Nii Odai Notw family and explained to them his land does not form part of their family Page 17 of 77 land, with the aid of a composite plan but the challenge persisted. He tendered Exhibit ‘D’ as the composite-plan. The document is neither signed by the person who produced it nor did it have an indication of how inputs were collated to produce it. There is a legend on it with RED, BLUE, GREEN and PINK colours, which are said to represent NII KOFI APPENTENG family land, Plaintiff’s land, Nii Odai Ntow family land and 3rd Defendant’s lands respectively. The site-plan has grid-lines and drawn to the scale of 1:45000.00. On the face of the record, it showed that Nii Kofi Appenteng family land is 4.191 feet away from the 1904 judgment site-plan of the 2nd Defendant family, and 3rd Defendant land is located inside Plaintiff’s land. From the foregone, Plaintiff contended that he has come to know that 2nd Defendant family has over the years consistently based their claim to its family land on a 1904 judgment and its plan in Suit No. SCT 2/37, entitled: KWASI BOSOMPIM & ORS. VRS MARTEI Plaintiff tendered Exhibit ‘E’, as a copy of the 1904 judgment plan, and this Court has examined it. It was produced in 1904, by A. C. Lamptey. It has neither been drawn to scale nor showing gridlines let alone, the exact size. Page 18 of 77 It is Plaintiff’s case that, 1st and 2nd Defendants have totally disregarded their own document which they claim guarantees them title to their family lands and strayed onto his land and by extension the land of his grantors. The basis of these assertions, is anchored on Exhibit ‘E’, cited supra. Furthermore, Plaintiff also tendered Exhibit ‘F’, which he asserted is a decision of the High Court, Accra, in consolidated Suits: No. L442/98 and Suit No. L678/2002, entitled: NII NGLESHIE ADDY VRS TETTEY IDDRISU & ANOR AND NII NGLESHIE ADDY VRS JOHN ARMAH MENSAH & ORS. Coram K. A. Ofori-Atta J., where in the judgment of the Court it directed 2nd Defendant family to limit themselves to their family land to the area covered by the judgment plan. Similarly, Plaintiff tender Exhibit ‘G’, another Ruling of the High Court, Accra, Coram: K. A. GYIMAH J. dated 12/07/2017, which came to the same conclusion that 2nd Defendant family must limit itself to the 1904 judgment plan and not 12,690 acres in a site plan produced by the family and annexed to a Statutory Declaration of the family. Justice K. A. Gyimah in Exhibit ‘G’, delivered himself as follows on the identity of 2nd Defendants land. Page 19 of 77 “When the judgment is read as a whole, it is clear on the face of the judgment that the trial Judge found that the land comprised in the site plan attached to the Statutory Declaration is NOT entirely the same as the land comprised in the MARTEI VRS BOSOMPIM case. That is why the learned trial judge in his conclusion stated emphatically that, ‘THE DEFENDANT FAMILY … WHICH HAS CONSISTENTLY based its claim to the land on the Bosompim Vrs. Martei & Ors. Case of 1904, shall limit such claims to the area covered by the judgment plan tendered in evidence in these proceedings as Exhibit ‘H1’. This was the conclusion of the Court on the SIZE of land that rightfully belongs to the ODAI NTOW family and not the 12,690 acres of land in the site plan attached to the Statutory Declaration.” The conclusion of Plaintiff’s evidence in chief is that, this Court must intercede on his behalf to halt the attempt by Defendants to deprive him of his land by completely ignoring the judgment and the judgment plan they have been relying on, and now extending their boundaries unlawfully. (b) The testimony of Plaintiff was challenged with a view to show that both the oral and documentary evidence should not be given any weight because of inaccuracies and non-compliance with rules. Page 20 of 77 Firstly, the execution of the indenture of lease, the dates on it, the consideration paid for the land were examined. Secondly, the acreage of land covered by the transaction. Thirdly, the assertions about possession and control were tested, and Fourthly, the meaning attributed to Exhibits D, E, F and G, which are composite plan, judgment plan of 1904 judgment and Ruling were contested. The salient parts of answers given by Plaintiff is what will determine whether he has proffered sufficient evidence which is of the quantum, degree and weight that satisfies the burden of proof on him. The response to the questions on non-disclosure of consideration paid and the acreage of land covered by Exhibit ‘A’, the indenture of lease, Plaintiff stated that an oral agreement was made in April, 2014, and document prepared and executed in 17/04/2015, for twelve acres of land and consideration was duly paid, even though he has not introduced receipt on the payment. Plaintiff also explained that the oath of proof was signed after the execution of the lease hence, the difference in the dates as disclosed on the indenture, Exhibit ‘A’. Thus the date 17/04/2015, on Exhibit ‘A’, he stated is the date the lease was executed and the oath of proof made on 3/02/2016. Plaintiff’s answers showed an admission of the fact that the site plan annexed to Exhibit ‘A’, has not been signed by the Director of Survey Page 21 of 77 and Mapping Division of the Lands Commission. However, he stated also as follows on this. “Yes, but in registration, the Lands Commission always asks us to go back to prepare a coded site plan and attach to the one prepared earlier.” On his possession and control, he stated in answers that, he had cleared the whole twelve (12) acres of land ahead and gave portions, ten (10) plots to third parties to develop, without any challenge, even though he did not give his grantees documents they had agreed that when the litigation is over it will be done. Finally, when it was suggested to him that what he termed a composite plan which is Exhibit ‘D’, was neither prepared pursuant to a Court order nor in conjunction with the Defendants therefore it is self-serving and of no value, he asserted, he prepared it to support his case, and that Exhibit ‘D’, has on it LEGENDS, which have been mentioned in site plans tendered and submitted for the production of a composite plan for this trial. The Exhibit [i.e. Exhibit ‘D’], has gridlines on it, but Exhibit ‘E’, which is the judgment plan in the 1904 suit, the Defence directly admitted in a questions to Plaintiff that it has no gridlines. These questions and answers are these: Q: You will agree with me that, your Exhibit ‘E’, has no gridlines. A: Yes, Exhibit ‘E’, has no gridlines which was filed in evidence by the Defendants as their root of title. Page 22 of 77 Q: You will agree with me that, the Defendants are relying on a 1980 judgment in the case of Peter Mensah Anteh Vrs Simeon Aryeetey G. S. Okine and Anor. Suit No. L/554/78, High Court dated 30/01/1980, as basis for their claim to the land in dispute. A: Yes, I read so and the conclusion part of the same judgment cancelled the declaration document they are relying on. Q: In the said judgment you will agree with me that, site plans were tendered A: Yes, but they were of different sizes in acreage. Q: And the Court stated the site plans were carefully drawn and modernized out of the 1904 plan. A: That is not correct, I did not read that what I read was the case stated by the Plaintiff that their plan was modified from the 1904 plan. The aggregate of what has been put to Plaintiff on the meaning to ascribe to judgments and site plans Defendants are relying on is that there is a 1904 judgment plan, but it has been modernized and new site plans produced out of it and that is what the Defence is relying on to support and defend this action. In the questions posed, the Defence impliedly admitted there are no gridlines on the 1904 judgment plan and the site plans with Different acreages on them annexed to a statutory declaration, were created without a Court order but by themselves. The attempt to show that these was accepted by the High Court in cases cited was denied. Hence, the Plaintiff gave answers that convey different meaning and effect of the judgments and site plans than what the Defence has asserted. Page 23 of 77 (c) This Court will construe these judgments and determine what they mean and the effect to be given to them in support or rebuttal of the conflicting positions taken by the parties in this action. (d) Plaintiff’s case is not only seen in his evidence in chief and answers he gave when the matters he had testified on were interrogated by the Defence but another aspect of his case is seen in questions his Counsel posed to Defendants and defence Witnesses. In those questions, if the Plaintiff has told a consistent story in line with his pleadings, or whether the Defence has told a credible story consistent with its pleadings, and the onus of proof on it on primary facts, these are the considerations that will determine the weight to give to the contested oral and documentary evidence in conformity with applicable laws on the matters in controversy. Firstly, examination of 1st Defendant showed that, without Court order they decided to produce two other site plans or judgment plans out of the 1904 judgment plan. The Plaintiff’s Counsel got 1st Defendant to repeat the admission that the 1904 judgment plan has no gridlines, hence the need to draw new ones. Secondly, Plaintiff’s Counsel got 1st Defendant to agree that they generated two (2) site plans Exhibit ‘3’ and Exhibit 3A’, with two different land sizes, namely 12,690 for Exhibit ‘3’ and 12,587 for Exhibit ‘3A’. Page 24 of 77 Plaintiff got as part of its case the 1st Defendant to agree that even though they generated two different judgment plans with different land sizes or dimensions etc., the description of their land as seen in paragraph 24 of their Defence, which contains so much details about boundary owners and dimensions etc., can only be found in Exhibit ‘3’, and not in Exhibit ‘3A’. This was after some prevarication, and Plaintiff’s Counsel pressed on until the admission was made. Thus even though 2nd Defendant family has not put its title as declared in the 1904 judgment in issue by not seeking declaration of title by way of a counter-claim, it has been forced to admit that, it has presented pleadings [paragraph 24], and evidence as in paragraph 17 of 1st Defendants’ Witness Statement, which are different from Exhibit ‘3A’, a documentary evidence. An illustration of what has been stated above is this. Q: Exhibit ‘3’ and ‘3A’, the land that contains the area of the land that you mentioned in your paragraph 17, can only be found in Exhibit ‘3’. The 12,690 acres of land that your paragraph 17 is the land in Exhibit ‘3’ only. A: No, it is for both the 12,587 and the 12,690. Q: I am saying that your paragraph 17, you described Odai Ntow/2nd Defendant’s family land and concluded that, the family land contains an approximate area of 12,690 acres and this is found only in Exhibit ‘3’, is that not the case. A: Yes. Page 25 of 77 The 1st Defendant did not slip in giving answers, he tried to evade the interrogation on the fact that they appear to be extending their land as declared in the 1904 judgment and its judgment plan, but Plaintiff maintained that is what is reflected in the inconsistencies in their pleadings and the documentary evidence. The Plaintiff at this stage, is seeking to present his case as one consistent with his pleadings. The details of what 1st Defendant said on these matters and the evidence of the Defendant on the aggregate will be evaluated by this Court before definite findings are made. Thirdly, on possession and control of the 12.09 acres of land Plaintiff has claimed, his case as put to 1st Defendant is the same as in the pleadings and evidence in chief which has been reviewed. It was suggested to 1st Defendant photographs Exhibits 4 and 5 as evidence of their possession and control are not relevant because there is nothing about them which creates a nexus to the land in dispute. This is an attempt by Plaintiff, through his Counsel to show that they have been in possession and control immediately the land was granted to him. The answers given by 1st Defendant showed that, he made no admission of these contentions whether the primary fact of possession and control of a bare land granted to Plaintiff who then gave part to others, who have been dispossessed by the Defendants is to be preferred to what the Page 26 of 77 Defence has said will depend on the veracity of the assertions made, the identity of the disputed land vis a vis the identity of the 1904 land or its boundaries that are adjoining to Plaintiff’s grantors land. The examination of 3rd Defendant by Plaintiff’s Counsel has been along the same line, therefore it is not necessary to review that. Finally, Plaintiffs’ Counsel maintained the meaning they ascribed to the judgments tendered, whilst the Defence also interpreted them differently. (e) On 5/6/2023, Moses Tawiah Aryee, testified on behalf of the 2nd Defendant family. The material parts of what he said are these: His evidence is to the effect that, Nii Odai Ntow family has been declared owners of lands situated at Ashongman, Kwabenya, Agbogba, Dome, Haatso and others per the judgment of His Honour, Sir Brandford Griffith Knight, Chief Justice of the Supreme Court of Gold Coast in 1904, in a Suit entitled: BOSOMPIM & ANOR. VRS. MARTEI & ORS. In addition, he stated the ownership of the land by the Nii Odai Ntow family has been confirmed in the case: SUIT NO: L554/1978, entitled: Page 27 of 77 PETER MENSAH ANTEH VRS SIMEON ARYEETEY G. S. OKINE It is his case that, in the latter suit, two site plans were tendered and in the 1980 judgment of the Court they were accepted. He asserted that, the two site plans were drawn on the 1904 judgment and he tendered Exhibit ‘3’, and ‘3A’, as those site plans. Secondly, this Witness gave a very detailed description of the Nii Odai Ntow family land and concluded that, the land being claimed by Plaintiff forms part of the larger land belonging to their family as per 1904 judgment and site plan. [Exhibit 1 and Exhibit 1A]. Thirdly, he asserted that the 12.09 acres of land claimed by Plaintiff has been given to third parties who have developed them, therefore, there is no vacant land in the area. The above testimony is evidence of the limits/identity of 2nd Defendant’s land and it must be seen essentially as evidence of the boundaries of the land, as title to the entire Nii Odai Ntow family land is not in issue, the family has not counter-claimed for declaration of title, but has an obligation to establish the converse of what Plaintiff has said about title to the land he is claiming. In other words, as between Plaintiff and 2nd Defendant, the issue for determination, is the exact boundaries at the location where Plaintiff is claiming title, title which from the evidence is derivative of the title of KOFI APENTENG family. Page 28 of 77 (f) Solomon Tetteh, 1st Defendant had also testified on 21/03/2023 and tendered a number of documents. There is no difference in his testimony and that of the 2nd Defendant. However, in his supplementary Witness Statement, he referred to a judgment delivered by the Court of Appeal on 28/07/2020, as relevant to matters in dispute. The title of the Suit is: Suit No. H1/111/019. NII NGLESHIE ADDY VRS JOHN ARMAH MENSAH This judgment has been admitted and marked as Exhibit ‘8’. The other exhibits are: Exhibit ‘1’, is the proceedings and judgment in 1904 Exhibit ‘1A’, is the judgment plan Exhibit ‘2’, is a judgment of the High Court dated 30/01/1980, entitled. PETER MENSAH ANTEH VRS SIMEON ARYEETEY G. S. OKINE … Exhibit ‘3’, is a site plan entitled: “PLAN OF ASHONGMAN LANDS REFERRED TO IN Suit No: Supreme Court 2/4/37 EDGED PINK AREA: 12690 acres SCALE: 1.62500” Exhibit ‘3A’, is another site plan of the Nii Odai Ntow family land drawn on the 1904 judgment. Exhibit ‘4’ series are photographs. They are eight (8) pieces in all dated 13/10/2019. Page 29 of 77 On the face of the record, houses could be seen in them some completed other uncompleted. The relevance of the testimony of 1st Defendant just like the testimony of 2nd Defendant, is how it helps to identify the boundaries of 2nd Defendant’s family land at the location where the disputed plots are, but not evidence admitted in a bid to re-try a cause which has been determined with finality in 1904, by the Supreme Court of the Gold Coast. Indeed, the onus of establishing the converse of what Plaintiff has said, is an obligation to establish or prove 2nd Defendant’s boundary only. (g) The 3rd Defendant – Prince Nana Ankomah, who has counter-claimed for declaration of title to 0.68 acre of land described in the pleadings, traced his title to the 1st and 2nd Defendants. He asserted that, a lease agreement has been made on 20/05/2014, between BEN MENSAH ARMAH, Head of Anteh Kwakonam family, Moses Tawiah Aryee, head of Tetteh Afrimie family, Joshua Odai Ama, head of Ashong Djemanwon family and George Ankonu Adjin Tettey, Head of Nii Abbey We family and lawful representatives of Nii Odai Ntow family on one part and himself. He tendered the indenture as Exhibit ‘6’, and asserted the land was a bushy area which he took possession of after the grant. He also tendered photographs, marked as Exhibit ‘7’, as the development he had commenced on the land in 2014. Page 30 of 77 The indenture has a site plan, duly signed by the Regional Surveyor on behalf of the Director of Survey. The site plan has gridlines and the disputed land is located between [longitude] 1167000 E and 1168000 E, with dimensions stated on it. The rest of his testimony is similar to what his grantors have said about the larger tract of land. 06. (a) The next consideration of this Court is cross-examination of 1st, 2nd and 3rd Defendants. This Court will focus on questions posed on the 1904 judgment and its judgment plan, the two (2) other site plans created by the Defence and variation of the land size, hence the boundaries, the meaning of the judgments tendered by the Defendants on these matters and finally title and superior possession and control 3rd Defendant is claiming. It is a truism to say that an effective cross-examination of a party or witness may have the effect of diminishing his credibility or enhancing it, at the same time the case of the examiner may be equally affected one way or the other. In other words, there is a boomerang effect, produced by an effective or ineffective examination. (b) I proceed with examination of 1st Defendant by Plaintiff’s Counsel, the 1904 judgment tendered as Exhibit ‘1’ and its judgment plan marked as Exhibit ‘1A’, was tested in terms of the extent of the land declared in favour of the 2nd Defendant family. Page 31 of 77 These are the salient parts of the questions first and the answers 2nd Defendant gave. Q: Can you tell the Court the extent or area of land that the Court said is the property of Nii Odai Ntow family. Q: I am suggesting to you that, 1904 judgment or its accompanying judgment plan has not mentioned any specific area as being the land belonging to Nii Odai Ntow family. Q: In your paragraph 13 of your Witness Statement describes what you say is the extent of the Odai Ntow family land and the size of that is 12,690 acres, is that correct? Q: You will agree with me that, the 1904 judgment as well as its accompanying judgment plan did not mention this acreage of the land. Q: You said it was based on these mountains, villages and ntome trees that the surveyor drew the site plan which site plan are you talking about. In response to the first question, 2nd Defendant said, he could show the boundaries. And to the second, he stated the extent of the land is shown in the 1904 judgment and its plan. To the third, which is about 12,690 acreage, he stated in his evidence he had agreed that was the size of the land but in the fourth question, when he was pressed with the fact or denial that, the 1904 judgment did not state the acreage, he responded as follows: “A: It showed the mountains, villages and Ntome/boundary trees. The mountains includes Abentia, Duemduem, Ahiyie, Opoku, Afiyee, Mekyereamin, MUSUKO, Nuaso, Ashongma, Kwabeny, Dome, Agbogba and others.” Page 32 of 77 It must be noted 2nd Defendant did not repeat the 12,690 acreage as size of land but rather recounted land features and villages or locations etc. He avoided a direct response because on the face of the record, the figure 12,690 acres is not stated and he has made admissions of that previously even in the pleadings. In the last of the five questions, I have reproduced, which is about which site plan he was talking about because, he did not give a direct answer. This is his response. “The site plans are two, one is Simon Aryeetey Gator and Odenkey Abbey Odai Ntow family are all from the family, secondly, Ernest Armah Anteh also from the family.” As a follow up when he was asked whether their family through the persons he had mentioned produced two different site plans, out of the 1904 judgment and judgment plan. He answered in the affirmative that that was the case and that was why Peter Mensah Anteh sued Odenkey Abbey and Simon Okai in Court. Thus, the contention by Plaintiff that, it was a family feud that led to the production of two different declaration site plans/judgment plans and with two different land sizes has been admitted in cross- examination of 2nd Defendant. The Suit in which that happened is Suit No: L/554/78, which is a High Court suit that culminated in a judgment delivered in 1980. The 2nd Page 33 of 77 Defendant contended the Court accepted the two site plans as appropriate, but Counsel for Plaintiff disagreed with the assertion. Therefore, the burden of persuasion has shifted on 2nd Defendant to explain or produce further evidence of how a Court of law could lawfully accept two (2) different judgment plans on a judgment delivered in 1904, [i.e. 48 years earlier as at 1975], with its own judgment plan. It is noteworthy that the Defence had conceded that, there is a 1904 judgment plan, Exhibit ‘1A’, tendered by them. When it was put to 2nd Defendant that the judge in the 1980 case [K. A. Agyapong J.], found as a fact that, the Statutory Declaration, which is Exhibit ‘B’, therein and now Exhibit ‘3A’, herein, has no role to play in the Suit before the Court, the 2nd Defendant responded as follows: “A: Site plan and Statutory Declaration are different, currently the two (2) site plans that we are talking about, the judge said they are almost the same, so those two (2) site plans were used but, the Court discarded the statutory declaration.” In his addresses to this Court, Counsel for Plaintiff submitted that, the statutory declaration was declared null and void and therefore the accompanying site plans have no evidential value and that this Court must find and hold as such. Several other questions were asked on the primary fact of the boundaries and the judgment that decreed title in 2nd Defendant’s Page 34 of 77 favour. No attempt was made to impugn the judgment, but the two judgment plans produced forty-eight (48) years later in a family feud in the 1980 judgment cited supra, were hotly contested by Plaintiff. Besides these facts, the current legislation on production of site plan or judgment plans, as could be gleaned in section 182 of the Land Act, 2020, Act 1036 [and the repealed legislation I doubt very much] does not authorize such a self-serving production of judgment plans]. This and the imperative to have lands which are subject matter of litigation accurately identified and information on them put in the data base of the Lands Commission [Survey and Mapping Division] informed the order for a composite plan to be drawn and as part of it the geo-referencing of the 1904 judgment plan. It is interesting to note that, the Defence opposed the order to geo- reference their 1904 judgment plan which had no gridlines but found it necessary to put gridlines in the two (2) judgment plans the same family produced, as they fought among themselves about the exact boundary and size of their family land. In conclusion, the record showed that, Plaintiff’s case was put to 2nd Defendant, specifically on when, how and nature of interest he had acquired from the Kofi Apenteng family, which the 2nd Defendant did not accept. But finally, this important question and answer must also be referred to. It is: Page 35 of 77 Q: I am putting it to you that the surveyor/Court Witness, who tendered this plan in Court indicated that, Nii Odai Ntow family land covered in the 1904 judgment plan is 4,000 feet away from Plaintiff grantor’s land and the disputed land. A: That is not true. (c) Next is the interrogation of 1st Defendant by Counsel for Plaintiff, it shall be done on the material aspects I have categorized supra. It is 1st Defendant who tendered EXHIBITS ‘1’ and ‘1A’, which are the judgment and the judgment plan of the 1904 suit, he confirmed that was/is the root of their title. When interrogated about the size of their land he gave various explanations in illustration I quote a few: Q: This land is also known as KORLEY land is that the case. A: Yes. Q: Does it have any other name that you know. A: Not that I know. Q: The land covered by the plan according to you extends from Ashongman Kwabenya, Agbogba, Dome, Hatsoo and others, is that correct. A: Yes. The 1st Defendant’s answers to probing questions on the size of the land led to a disclosure that, the land in the 1980 judgment was modified and was almost like the 1904 land. He was asked these questions too. Q: When you say the land was modified what do you mean? A: In the 1904 judgment, the judgment plan was not having gridlines in it and so when the declaration was being made by Odenkey Abbey and others, the surveyor by then was able to Page 36 of 77 insert gridlines into the judgment plan of 1904 and that was what was used for the declaration. Q: What was the size of land in the so called modification? A: It was about 12,587 acres of land. His other answers confirm the fact that an acreage of 12,690 is what has been stated in his Witness Statement and that even though the Odai Ntow family had granted portions of the land to allied groups in the family the NII ODAI NTOW LAND SECRETARIAT has not been granted any portion of the land, but conceded they submitted a site plan to the Lands Commission in the name of the NII ODAI NTOW FAMILY LAND SECRTARIAT for the production of the composite plan. In continuation, these questions on the size of land and modification or modernization, the insertion of gridlines into the 1904 judgment plan by family members and the resultant different land sizes, were probed. Q: How many site plans did your Surveyor draw based on these so- called modernization of the judgment plan. A: It was two (2) site plans. The first was the one that was used in the declaration of 1975 and the second was ordered by Peter Mensah Anteh the Plaintiff in the 1980 law suit. Q: The two site plans you are referring to are Exhibit ‘3’ and Exhibit ‘3A’, not so. A: Yes. Q: Exhibit ‘3’, has an acreage of 12,690 acres, not so? A: Yes. Q: Exhibit ‘3A’, has an acreage of 12,587 acres, not so. Page 37 of 77 A: Yes. Q: According to you the features of the 1904 judgment plan were what was used in producing Exhibit ‘3’ and ‘3A’. A: Yes. The 1st Defendant has an explanation on the changing size of the land even though he alleged the features on the ground were what were used in drawing the site plans. This is curious, because if it is done scientifically and by the institution and officers who have the mandate to draw site plans, there will not be discrepancies he has admitted as having occurred. But he tried to defend the different sizes in these words. Q: But the surveyor ended up getting two (2) different land sizes from the 1904 judgment plan. A: No, because the surveyors in the declaration plan, the date the TIME they went to the site was not the same as the date and time they went to the site for the second plan which was requested by Peter Mensah Anteh, the Plaintiff in the 1980 judgment. Q: Because the dates on which the surveyors went to the land were different, the land sizes SHIFTED in size and in position. A: YES and NO, Yes because it was two different people that took the surveyor to the site and the two (2) different people who showed the surveyors land marks that they want the surveyor to consider and so definitely the two (2) site plans may not be as Counsel is saying the ‘SAME’ in size, but I said earlier on that the two (2) site plans, though they have different sizes are almost the same like was indicated in the 1980 suit. Page 38 of 77 The concluding part of examination of him showed that they (the defence) described their land in paragraph 17 of the Witness Statement but tendered Exhibit ‘3A’, a site plan that stated the acreage is 12,587, meanwhile 12,690 acres is stated in the pleadings/evidence. The above to my mind is an attempt by Plaintiff Counsel to water down the veracity of the claims/assertions, made on the actual size of the Nii Odai Ntow family lands so that Plaintiff may have a favourable finding on this primary fact, if the discrepancies are not sufficiently explained to the satisfaction of the Court upon consideration of the aggregate of evidence led in the trial. The interrogation of 1st Defendant involved a comparison of his assertions with what the Court Witness, the expert from the Survey and Mapping Division of the Lands Commission said or found on the location of the lands, especially on the western side where the boundary dispute is. I reproduce three (3) questions and answers on this: Q: I want to refer you to the composite plan tendered by the surveyor from the Lands Commission as Exhibit ‘CW1’, and see whether you can identify the land referred to as Ashongman land in the legend. A: Yes. Q: The surveyor referred to the land as shown on the site plan for Ashongman land as WESTERN boundary. A: Yes. Page 39 of 77 Q: You will agree with me that Western boundary of the Ashongman land that you have identified as the land belonging to the 2nd Defendant’s family is nowhere near the disputed land for which we are in Court. A: The Ashongman land site plan is not the only site plan we provided in this Court. In this composite plan there is a legend (item 6 Deep Green) that reads. NII ODAI NTOW family, and so the Court must consider that we are not only relying on Ashongman land, but as Odai Ntow family land also therefore the 2nd Defendant’s family land falls within the Ashongman land. In conclusion even though 1st Defendant denied that this Court made an order for gridlines to be inserted in the 1904 judgment plan, this was the case, and the composite plan drawn has been admitted as Exhibit ‘CW’. The 1st Defendant was asked these questions on the composite plan: Q: You will notice from the plan Exhibit ‘CW’ that, the 2nd Defendant’s family land that is the Odai Ntow family land is nowhere near the family land of the Plaintiff’s grantor, is that correct. A: That is not true. I said the other day that, the two (2) plans that were tendered in the 1980 judgment were done by the help of boundary trees and certain foot paths and hills on the land. The learned Judge in the 1980 judgment acknowledged these two (2) plans that, they were carefully drafted “from the 1904 judgment plan, which has no gridlines in it, so therefore I don’t know how the surveyor who drew the composite plan, Exhibit ‘CW’, Page 40 of 77 managed to put gridlines in the 1904 judgment plan without the help of the family of Odai Ntow, who knew where this Ntomeh or boundary trees, the foot paths and hills are. So therefore, this plan in Exhibit ‘CW’, might not be correct.” Q: The surveyor who tendered, Exhibit ‘CW’, indicted to the Court that the distance between the 2nd Defendant’s land as represented by the 1904 plan and Plaintiff’s grantor’s land is about 4,000 feet. I am putting that to you. A: That is not true. The answers offered by 1st Defendant to these two (2) questions showed that he doubted the credibility of the composite plan drawn by the Survey and Mapping Division of the Lands Commission and preferred two site plans drawn by the Nii Odai Ntow family on the same 1904 judgment and its plan and his reason for the choice is that they knew the foot paths, trees and hills on the land and because they were not involved in showing these features the composite plan is not correct. He made the choice without calling or attributing his reasons to the superior skills, capability and authority of their surveyors. This Court will make a finding on these matters in the judgment, when a thorough evaluation of the contested facts are made. But for now what 1st Defendant has said is untenable for it lacks scientific and regulatory legs to stand on. Page 41 of 77 The 1st Defendant denied the case of Plaintiff on how he acquired his land and by that had acquired a superior title than what 3rd Defendant had allegedly acquired from them. (d) Finally, 3rd Defendant was also cross-examined by Counsel for Plaintiff. The third Defendant has endorsed a counter-claim of land which Plaintiff has asserted is part of his land. Thus the two (2) bear an equal burden to show who has a better title to the disputed land. Firstly, the fact that 3rd Defendant led no evidence of the due diligence he had conducted, by way of a search at the Lands Commission before purchasing the land was put to him. And it was put to him that information gathered from adjoining land owners, as he alleged, resulted in him being fed with wrong information about the status of the land. A question to illustrate is this: Q: You never conducted any official search at the Lands Commission as to the ownership of this land A: Because I have conferred with the owners/occupiers of adjoining lands, they told me and also confirmed to me that, the land belonged to the Odai Ntow family. Based on this information, I went ahead to possess and develop the land. Secondly, he said a judgment in favour of the Nii Odai Ntow family, had been shown to him, and this was one other reason why he purchased the land from them. Page 42 of 77 The interrogation of him on this took this form, one question and answer will suffice. Q: And the judgments showed you the extent of the land of the Odai Ntow family, is that your case? A: As a buyer, I may not have known the extent, what I was interested in was my portion of the land. The 3rd Defendant denied the suggestion that from the composite plan drawn by the Court expert, his 0.6 acre land falls inside Plaintiff’s land and outside the Nii Odai Ntow family land. In other words, he was confronted with the fact that, his grantor purport to make a grant of interest in land which he has no authority to give. The 3rd Defendant denied that, that was the case. Finally, on possession and control, which 3rd Defendant asserted was contested. But in questions posed, no indication was given of the names and number of persons Plaintiff made grants of part of his land to. Plaintiff did not introduce photographs of development that were commenced and stopped with the help of the police and to his disadvantage. 07. (a) This Court now shifts attention to the testimony of Williams Koley Schall [CW1], a Deputy Chief Geometric Technician, a staff of the Lands Commission, who gave evidence on the work he did as a Court expert. Page 43 of 77 The Witness was requested to prepare a composite plan taking into consideration the site-plans attached to Plaintiff’s indenture as well as the site-plan of land belonging to Plaintiff’s grantor, NII KOFI APENTENG family and do the following: 1. Show the exact location of Plaintiff’s land on the ground in relation to the land of NII KOFI APENTENG family. 2. Show whether Plaintiff and his grantor [NII KOFI APENTENG family] site plan fall within that of 2nd Defendant’s family [NII ODAI NTOW family] land as contained in the 26/04/1904 judgment plan. 3. Show Plaintiff’s land as against the land of 3rd Defendant and determine whether there is any overlap and the extent of such overlap. On the other hand, the Witness was to take into consideration survey instruction filed by Defendants as follows: 1. The boundaries of the land claimed by the Plaintiff as indicated in his site-plans. 2. The boundaries of 2nd Defendant’s land as indicated in the site plans deposited in the Registry of this Court. 3. The boundaries of the land claimed by the 3rd Defendant as indicated in the site-plan deposited in the registry of this Court. 4. The boundaries of the 2nd Defendant’s land as physically shown by the said family on the ground. 5. The boundaries of the land claimed by the 3rd Defendant as physically shown by him on the grounds. Page 44 of 77 6. Indicate any structures constructed by 2nd Defendant or its grantees on the land in dispute. 7. Indicate any structures constructed by the 3rd Defendant on the land in dispute. 8. A superimposition of the site-plan of the Plaintiff on the surveyed land. 9. A superimposition of the site-plan of the 2nd Defendant on the surveyed land. 10. A superimposition of the site-plan of the 3d Defendant on the surveyed land. The record showed that, Plaintiff filed site-plans, and the 1st and 2nd Defendants filed site-plans and the 3rd Defendant filed one site-plan [the 1904 judgment plan was submitted and geo-referenced by identification of it and insertion of gridlines as ordered by this Court] i.e. light-blue. The legend contains the report on the work done, it shows the following: 1. Land Surveryed as shown by representative of Winfred Kuma Apawu in … 2. Land shown on site plan for Winfred Kuma Apawu in GREEN. 3. Land shown on site-plan for KOFI APENTENG FAMILY in BROWN. 4. Land surveyed as shown by representative of Prince Nana Ankomah (3rd Defendant) is in Cyan. 5. Land as shown on site plan for Prince Nana Ankomah in YELLOW. 6. Land as shown by a representative of NII ODAI NTOW FAMILY is in … Page 45 of 77 7. Land as shown on Site Plan for NII ODI NTOW FAMILY LAND SECETARIAT … 8. Land as shown on site plan for ASHONGMAN LANDS … LIGHT BLUE 9. Land as shown on site plan for NII ASHONG JAMA-ON ODAI NTOW, NII ABBEY ODENKEY FAMILIES LAND 10. Land shown n site plan for KORLEY LAND (……) 11. Area in dispute with 3rd Defendant as shown on the ground (0.63) acres) (….) 12. Area in dispute with 1st and 2nd Defendant as shown on the ground (10.02 acres) … (b) Cross-examination of William Koley Schall showed that he had confirmed that Plaintiff’s land as shown on the ground and in his site- plan, falls within his grantor’s land [Kofi Apenteng], as reflected in the composite plan marked Exhibit ‘CW’. He gave these answers too. Q: Can you confirm from Exhibit ‘CW’ that the land described as KORLEY land belonging to the 2nd Defendant is completely A: Q: A: Q: A: Q: outside the disputed land. Yes. The 3rd Defendant’s land as shown on the ground on Exhibit ‘CW’, is the one shaded Purple, is that so. Yes. Now, Exhibit ‘CW1’, as well as ‘CW1A’, the land described as Ashongman land is shown with a western boundary with the colour SIAN, is that so? Yes. That means that Ashongman land is NOT near the disputed land on the ground according to the map. Page 46 of 77 A: Yes. The foregone questions and answers given by the Court expert put 3rd Defendant land within Plaintiff and his grantors land, and showed that, their land on the western boundary is outside the KORLEY land. This KORLEY land as will be seen is the 1904 judgment plan, as has been identified by the insertion of gridlines as ordered by this Court. In respect of cross-examination conducted by the defence, the aggregate of questions posed on the nature of the disputed land showed that, it is a developed area, with buildings but the Defence was dissatisfied that these buildings were not shown on the site plan to which the Witness stated, the goggle map Exhibit ‘CW1’ and also ‘CW1A’, reflected those features or covered the concerns of the Defence. The most relevant part of the examination which is about the boundaries of the KORLEY Lands (i.e. 1904 judgment plan or land), these are few questions and answers: Q: You will agree with me that, the KORLEY land site plan does not have grid lines, there are no longitudes nor latitudes. A: Yes, but we have features on the site plan that can be identified on the ground, that is why we were able to super-impose that site plan on the composite plan. Q: You will agree with me that, for a Plan to qualify as a site-plan, it must have gridlines, not so? Page 47 of 77 A: Yes, but not always. Q: Before using the KORLEY lands plan in the preparation of the composite plan, can you tell this Court, whether you visited the land. A: There was no instruction/order that we should visit that KORLEY land, on the site plan, so we only super-imposed it on the composite plan. At this stage it could be observed that, the Defence tried very hard to devalue or depreciate the probative value of their own site plan, the 1904 judgment plan, but the expert stated it is not always the case that, it is a site plan that has gridlines is the only one acceptable as a site plan, he continued in his explanations that, with the aid of features on the 1904 judgment plan/ the KORLEY land site plan the composite was drawn. The Defence being unsatisfied with what was said about the relationship between Plaintiff and his grantors land or site plans and the KORLEY land, probed further by contesting findings made. These questions and answer are illustrative. Q: Have a look at the site plan in the name of Nii Kofi Apenteng family, you will agree that, from the site plan, the land shares A: Q: boundary with Kwabenya lands, not so? Yes. However, on the composite plan you prepared, there is a huge gap between the land depicted on the Nii Kofi Apenteng family land and the KORLEY land. Page 48 of 77 A: Q: The two (2) site plans do not overlap. I am suggesting to you that because you did not visit the towns and villages mentioned in the KORLEY lands plan before the preparation of the composite plan that explains why there is a gap between Kofi Apenteng family land and KORLEY lands. A: No, because we can still plot KORLEY lands, without visiting the towns and villages on that KORLEY lands. Q: Can you tell the Court, the size of the land between Apenteng land and KORLEY Lands per the vacuum shown on the composite plan. A: For size, I cannot but I can give a distance between the two (2) boundaries. The distance is 4,000 feet. In conclusion of the examination, the Defence asked these two (2) questions: Q: I am suggesting to you that, the composite plan as produced is not a true reflection of location of KORLEY lands and A: Q: Kwabenya lands. No. I am finally suggesting to you that, the composite plan is not also a true reflection of the survey instructions filed by the Defendants in this case. A: It is a true reflection because all the plans we received from the Court, we put them together to get the composite plan. The fact that the expert did not physically visit the ground has been proffered as the reason for contesting his opinion. But what is not reflected in the examination conducted by the Defence is the fact that they on their own, have produced two (2) site plans, out of the Korley Page 49 of 77 land, site plan, and inserted in it gridlines without authorization from any Court. They described what they have produced as modification or modernization of the Korley land site plan/1904 judgment plan, and they have asserted what they have done has been accepted by a Court whilst admitting that the accompanying statutory declaration that had been made by their families members was declared null and void in the suit titled: PETER MENSAH ANTEH VRS. SIMEON ARYEETEY G. S. OKIN E& ANOR (The 1980 judgment) Whether this Court will accept the version of the Defence, against the expert opinion, will depend on the facts found or otherwise established in this action and the applicable laws. 08. THE LAW AND THE EVALUATION OF EVIDENCE ADDUCED a) The Defence has attacked the form and content of Exhibit ‘A’, the indenture of lease which is the contract document on the sale and transfer of interest in the disputed land. i. In the cross-examination and submissions made thereon, it was contended strongly that Plaintiff failed to prove, the root of his title, ad that he also failed to call his grantor or any other Witness in support of his claims. Thus in the process he failed to describe his grantor’s land and omitted to tender is grantor’s site plan. b) The position of the law is that, there may be different modes of alienation of land depending on the nature of interest sought to be Page 50 of 77 transferred. Thus the transaction may be one governed by customary law or by statute, and the cardinal principle that underpin all transactions in land is that one can only give what one has, rendered in latin as: Nemo Dat quod non habet.” Exhibit ‘A’, the indenture has been proffered as a contract of valid sale of 12.09 acres of land. The vendor [the Kofi Apenteng family] must have title to the land before, it could make a valid transfer of it. A sale of land transaction is regulated by the Land Act, 2020, [Act 1036], which has repealed the Conveyancing Act, 1973 [NRCD 175]. The law stipulates the characteristics of a valid contract of sale of land. It provides that the contract must be written unless exempted by Section 36 of the statute. There must be agreement on material terms, especially the purchase price. The contract must reflect the names of parties, the land/property which is the subject matter of the contract, the nature of the transaction and the consideration given and taken as well as the commencement date, the number of years (tenure) if it is for a number of years. Page 51 of 77 Sections 34 and 35 of the Land Act [cited supra], contains further details of what may constitute a valid contract of sale of land namely the obligations, rights and interest of a transferor and transferee. On the face of the record Exhibit ‘A’, showed that Rev. Alex Aryeequaye representing the KOFI APENTENG family of Otublohum are the grantors and Plaintiff the grantee. The recital is not so detailed but showed that the grantor/lessor family own a vast tract of land commonly known as Ambuanda Lands between OFANKOR and KWABENYA, Accra, which has been registered at the Land registry as LR 969/1993. The nature of interest has been described as ALLODIAL interest. The tenure of the lease is eighty-five (85) years and size of land as stated in the schedule is 12.09 acres, with further detailed descriptions and dimension. The consideration agreed on and paid and received have also been stated in Exhibit ‘A’. ii. The content was attacked and it was contended that the site-plan annexed to the document is not signed by the Director of Survey as required by law and that the oath of proof and the day the document was executed were different. On the difference in the dates of execution and the oath of proof, the defence did not cite any law that has been breached. As regards the site plan, the Land Act, 2020 [supra] was cited and holding 4 in the case: Page 52 of 77 NORTEY [NO. 2] VRS WEST AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION [2013/2014] SCGLR In the case cited supra, the Supreme Court defined what the status of a site plan not signed by Director of Survey is and it gave a direction on what the trial Court should do. The Supreme Court stated: “The Court had a duty to ensure compliance with statutes including subsidiary legislation like L. I. 1414” It is also the law that where a statute has prescribed the way/mode an act should be performed it is that mode that must be followed. I refer to the case: EX PARTE: NATIONAL LOTTERY AUTHORITY [GHANA LOTTO OPERATORS ASSOCIATION & ORS. INTERESTED PARTIES] [2009] SCGLR 390 There is a defect with the site plan annexed to Plaintiff’s indenture, making it virtually of no probative value. However, on the strength of the decision in the case: SASU BAMFO VRS SINTIM Page 53 of 77 [2012] 1 SCGLR 136, it is not necessary that the lease document and oath of proof must bear the same date. This is how the Apex Court put it “The oath of proof of an indenture may not necessarily be on the same day or date of execution of the indenture; but on whatever day or date the indenture is proved under oath, it must be so proved in the presence of the parties to that document, i.e. parties or executors of the document must not only be present during the oath of proof ceremony but they must also be alive that day.” Still on these issues raised with the FORM and CONTENT of Exhibit ‘A’, and whether weight should be attached to the document which was admitted without objection, I refer to the case: TAKORADI FLOOR MILLS VRS SAMIR [2005/2006] SCGLR 882 The Court stated generally on proof of a disputed fact as follows: “A tribunal of fact can decide an issue based on the evidence of only one party. A bare assertion on oath by a single Witness might in the proper circumstances of a case be enough to form the basis of a judicial adjudication. The essential thing is that the Witness is credible by the standard set in Section 80 (2) of the Evidence Act, 1975 [NRCD 323]. Therefore, when a party has named certain persons in his evidence-in-chief the fact that he did not call Page 54 of 77 all or any of them even though they are available per se, would not prove fatal to the case of the party. The adjudicator has the whole of the oral evidence of the party and the documents tendered in evidence, if any before him to consider for his decision. In this case, even though the Plaintiff did not call the officers he mentioned in his evidence-in-chief, the trial judge and the Court of Appeal thought that was not fatal because there was no need for him to prove his case further because his evidence-in-chief was not controverted.” Based on strength of this principle on evaluation of evidence adduced, can it be said that the failure of Plaintiff to call his grantor is fatal to his case. Similarly, can it be said the failure to tender his grantors site-plan, is fatal to Plaintiff’s case? The right response will depends on the aggregate of evidence led in the action. Because as it would be seen, Plaintiff’s grantor’s site-plan had been introduced in the action and was part of survey instructions and was relied on by the Court expert [CW1], in the production of the composite plan accepted in evidence. Whether Plaintiff was required to do more than that, to my mind is what has to be determined on the preponderance of the probabilities. Page 55 of 77 Consequently, apart from the defective site-plan, the other defects have not be established by the Defence. Besides, the above, the other inadequacies the defence cited as being fatal to the case of Plaintiff are: i. That the 12.09 acres claimed by Plaintiff does not belong to Kofi Apenteng family ii. That 12.09 acres does not fall within Kofi Apenteng family land. iii. That there is no land known as NII KOFI APENTENG family land These contentions as raised in cross-examination of Plaintiff and submission made by Defence Counsel appear so weighty, and can only be definitively pronounced on after the evaluation of the evidence of the Court expert. However, these assertions are not wholly true, when the judgment of the High Court in the case cited below is examined. The case is: i. SUIT NO: L/254/99, entitled: OFEI KWAKU MANTE (substituted) VRS MIKE SIMILAO & 4 ORS. Coram Justice Emmanuel Amo Yartey (delivered on 9/02/2023) ii. The case: PETER MENSAH ANTEH VRS SIMEON ARYEETEY G. S. OKINE EMMANUEL ODENKEY ABBEY, Page 56 of 77 is also relevant to the issue, as the meaning and effect of these decisions do not confirm what the Defence has said, rather part of what the 2nd Defendant family herein has admitted in the OFEI K. MANTE’S case supports the case of the Plaintiff. In the OFEI K. MANTE case [supra], there are some findings made by the judge which have direct impact on the issue in question. He stated: “Between the Plaintiffs and the 4th Defendant, the 4th Defendant admits the Plaintiff’s family owns land within the vicinity and that, they even share a common boundary with them. And that if for anything at all, the Plaintiff’s family owns 40% of the 416.88 acres of land claimed by them whiles the remaining, 60% forms [Odai Ntow family] lands. According to the 4th Defendant’s family they were in effective possession of their land without any challenge from any one after its acquisition until 1904, when a dispute arose over same. “On the 3rd day of May 1904, the Supreme Court of Gold Coast delivered its judgment in the case titled: KWASI BOSOMPIM & ANOR VRS MARTEI & ORS., And entered judgment for the 4th Defendant family. This clearly goes to show that the 4th Defendant’s total land size Page 57 of 77 area is covered by the 1904 judgment which I accordingly hold same as such. This means that the 4th Defendant’s family land falls within the boundaries stated in the said judgment and cannot therefore go beyond those boundaries. Superimposition of the 1904 judgment will clearly indicate the common boundary between the Plaintiff’s and the 4th Defendant’s family lands …” The High Court by this judgment which is so recent [9/02/2022], had dismissed Plaintiff’s claim for declaration of title to 416.88 acres of land and entered judgment in favour of 1st and 5th Defendants in that action. The Plaintiff in that action is the grantor of Plaintiff herein and the 1st and 5th Defendants were grantees of 4th Defendant therein, and who is 2nd Defendant family herein. The judgment which is valid and subsisting has been put in by the Defendants herein, it is binding on them with equal effect as it binds the Plaintiff herein by reason of privity of contract and estate of a judgment IN REM. iii. In the judgment, Exhibit ‘2’ entitled: PETER MENSAH ANTEH VRS 1. SIMEON ARYEETEY G. S. OKINE, 2. EMMANUEL ODENTEY ABBEY tendered by Defendants, is a 1980 judgment of the High Court. The parties in the action are from the same family, namely, the NII ODAI NTOW family. The Reliefs endorsed were: Page 58 of 77 a) A declaration that the Defendant should not hold themselves out as principal members of the family to alienate the land subject matter of the statutory declaration. b) An injunction restraining them from alienating portions of the land c) Cost The Plaintiff therein won, the Ratio in the case is this: “I hold that, 1st and 2nd Defendants are NOT competent without the Plaintiff to alienate the said lands. I hold therefore that, the Statutory Declaration is INVALID not having been executed by 1st and 2nd Defendants and Plaintiff.” The judge also quoted something written on Exhibit ‘B’ – i.e. a site plan in the action. What he reproduced is this: “This is to certify that this plan has been carefully and correctly modernized from the 1904 plan in MARTEI and Ors.” What is quoted supra is just a reproduction of what was on Exhibit ‘B’, before the judge and not an endorsement or affirmation that the 1904 judgment plan has been carefully modified or modernized, even though he had observed that the plans which have 12.690 and 11.875 acres, appear to be the same. There is 815 acres difference, so mathematically the two cannot be the same or almost the same. Page 59 of 77 In this trial before me, the Defence is under an obligation to establish the exact size of their land. Plaintiff’s Counsel submitted quite accurately that the 1980 judgment the Defendants are relying on to establish the size of their land, Exhibit ‘B’, the site plan, which was attached to the Statutory Declaration has no evidential value because the Statutory Declaration of which it is a part has been declared invalid. For emphasis, the Court declared invalid Ernest Amarh Anteh’s deposition as invalid and Clause 4 of the Declaration made reference to the 1904 judgment. It follows that the case of the Defence built on two (2) site plans with different dimensions is a case built with sand as its foundation. Even the Court in the 1980 judgment found that in the absence of evidence before him that the Nii Odai Family had acquired more land, their land size must remain as what it has been found in 1904 judgment plan. The Defence has argued the 1904 judgment plan must be accepted as granting bigger land size than first declared by reason of Modernisation. As I have observed earlier in this judgment that it is untenable for an individual on his own to insert gridlines in a judgment plan and present same as the work of a Court of law. Page 60 of 77 It is Section 182 of the Land Act 2020, [Act 1036], that prescribes the method of doing this and the Lands Commission Act 2008, Act 767, gave to the Lands Commission the mandate to produce maps and site- plans, etc. The feuding Nii Ntow family having expanded the boundaries beyond what is in the 1904 judgment plan, made declarations for same to be accepted, but in the 1980 judgment the misrepresentation established against the Defendants therein, constituted violation of Section 5 of the Statutory Declaration Act, 1971 [Act 389], which provides: “Any person who makes a statutory declaration which he knows to be false in material particular, or who makes a declaration false in a material particular, reckless whether it be true or not shall be guilty of a misdemeanor.” From the foregone, the two (2) Statutory Declaration plans have no legal existence, separate from the facts deposed to which have been annulled. iv. There are other defects with the case of the defence. They have admitted that, the 1904 judgment plan has no gridlines. Indeed, they described it as not even qualified to be called a site-plan, yet this is what forms the root of their title. The solution to this conundrum aimed at arresting the phenomenon of an immovable property [land] growing and changing in size [acreage] with time is the order for geo-reference, that was made and a composite Page 61 of 77 plan drawn out of all existing site-plans made or filed by the parties in the action. The reliance on a site plan without gridlines is a weakness that affects the case of the defence, and the implication for a transparent land management and adjudication of grievances demand that the order ought to be made, and the result is Exhibit ‘CW1’ and Exhibit ‘CW1A’. v. Another weakness found in the case of the Defence is that, it pleaded the size of its land as in paragraph 24 of the Defence filed on behalf of 1st and 2nd Defendants. And yet they tendered Exhibit ‘3’ and Exhibit ‘3A’, as representing the size of their land when the two (2) site plans have different land sizes. The 2nd Defendant was confronted in cross-examination on this, try as he did to extricate himself, he was compelled to make an admission, as I have captured in this judgment [see page 29]. In effect, 2nd Defendant has led evidence which is different from its pleadings in material terms. The implication of that on the case of a party is as stated in the case: i. APPIAH VRS TAKYI [1982/83]GLR 1 C. A. The Court of Appeal stated how such evidence should be assessed as follows: Page 62 of 77 “Where one party’s evidence amount to a departure from his pleadings and the evidence of the other party is consistent with the pleading the latter is to be preferred.” It was further stated that the variation in the pleadings and evidence should substantially destroy the party’s case and be material. I must add that even though the scope of the application of the principle had been redefined in the case ODAMETEY VRS. CLOCU [1989-90], It still remains useful tool in evaluation of evidence. vi. Furthermore, the 2nd Defendant whilst under cross-examination even stated there is another plan of the NII ODAI NTOW land which they are relying on, when the defence has pleaded that they are relying on the 1904 judgment plan, two (2) different site plans (self-generated with gridlines), and a third other site-plan. vii. Yet another weakness found with the case for the Defendant that affects the credibility of 1st Defendant is that, whilst under cross-examination, he stated because the Date, Time and Persons who showed the boundaries to their surveyors before Exhibits ‘3 and 3A’, were produced, were different these accounted for the different land sizes. And by inference, the different boundaries being asserted. Page 63 of 77 viii. Furthermore, the Defence made an admission against its own interest, when in the judgment entitled: OFEI KWAKU MANTE (substituted) VRS MIKE SIMILAO & 4 ORS. Coram: Emmanuel Amo-Yartey at pages quoted supra, they said Plaintiff’s grantor owns 40% of land in that litigation, and that his grantor is an adjoining boundary owner. It is therefore inaccurate for Counsel for the Defence to argue that, Plaintiff’s grantor owns no land in the area, there is no land known as Kofi Apenteng family land and that, 3rd Defendant’s land cannot be inside Plaintiffs land. The contention is based on inaccurate or inconsistent stories told by the defence, parts of which are contradictory in terms, and based on supposition which are not grounded in law and science. ix. Furthermore, the work of the Court Expert has also shown the weakness of the case of the Defence. His testimony which has not been discredited by cross-examination is to the effect that Plaintiff’s land as shown on the ground falls within his grantors land. He proffered Exhibit ‘CW’, in support of that opinion. He also asserted that, the land described as KORLEY land is outside the disputed land. In other words, the KORLEY land does not encompass Plaintiff’s land. Page 64 of 77 It must be noted that, this land referred to as Korley land is no other land then land as found in the 1904 judgment and judgment plan as land belonging to the NII ODAI NTOW family. The towns and villages it covered notably, Ashongman, Kwabenya. Agbogba etc., have been mentioned as part of that Korley land, on the face of the document. The expert opinion given by the officer from the Survey and Mapping Division of the Lands Commission, is a product of work or official duty that has been regularly performed as provided in Section 137 of the Evidence Act, 1975 [NRCD 175], creating a presumption of regularity of official duty regularly performed. It is for the Defence herein to offer counter-opinion be it of another expert of their choice or the reason why Exhibit ‘CW1’, should not be accepted and given the weight it deserves. The Defence led no such evidence, rather they asserted that, because no physical inspection was done, the gridline could not have been inserted accurately, because they have to show the features as FOOT PATH, HILLS, NTOME-TREES, even though their own best effort yielded two (2) different site plans. Section 114 of the Evidence Act, on expert evidence provides that, in an action at any time the Court in its discretion may on its own motion or at the request of any party appoint a Court expert to inquire into and Report upon any matter on which an expert opinion or inference would be admissible. Page 65 of 77 Subsection 7 – reads: “the Court expert may conduct such experiments and tests as he deems appropriate and he may communicate with parties to arrange for the attendance of any person or the provision of samples or information or similar matter and failing agreement between the parties and Court expert as to any of these matters, they shall be determined by the Court.” The Supreme Court speaking through DOTSE J. S. C., in the case: TETTEH VRS HAYFORD [2012] 1 SCLR 417, wrote on expert opinion as follows: “It is generally understood that, a Court is not bound by the evidence given by an expert such as the surveyor, in the case [see SASU VRS. WHITE CROSS INSURANCE [1960] GLR 84], where WUAKU J. A., speaking for the Court also reiterated the point that, a trial judge need not accept evidence given by an expert. But the law is equally clear that, a trial Court must give reasons why expert evidence is to be rejected. We believe that the Court could have compelled the surveyor to give an opinion on the survey plan Exhibit ‘2’, which he himself prepared.” In addition, to what a Court expert must do and the duty of the judge in the trial, how the survey Report must be evaluated, could be found in the words of ANSAH J. S. C., in the case: SARKODIE Page 66 of 77 VRS F. K. A. COMPANY LTD. [2009] SCGLR 65 He wrote as follows: “Further pertaining to the issue of the identity of the land the Court appointed Surveyor of the land in his Report tendered to the Court on 7th April, 2005, testified that 85% of the land being claimed by Defendant fell within land being claimed by Plaintiff company that the cadastral plan submitted by the Plaintiff/company conforms to what he surveyed whilst that of the Defendant had huge displacements. This is a crucial piece of evidence coming from an independent Witness.” These documents, Exhibit ‘CW, CW1, CW1A’, are crucial documents tendered by the Court expert whose testimony has not been discredited by the Defence. Therefore, his opinion that, Plaintiff’s grantor’s land is outside the KORLEY land – i.e. 1904 judgment plan and that Plaintiff’s land is inside his grantors land, and about 4,000 feet away, a distance which is vast, are pieces of evidence which must be preferred to the bare assertions made by the defence and anchored on contradictory evidence and documents that have been previously declared by a Court as having no evidential value. It is undoubtedly sound in law to state that, in the evaluation of evidence proffered by parties major inconsistences are taken as affecting the weight to attach to the piece of evidence in issue. But it is equally correct to say that multitudes of discrepancies put together may affect evidence adduced but not a few discrepancies. Page 67 of 77 I refer to the case: NSIAH VRS ATUAHENE [1992/1998] BR 897 There are multitudes of discrepancies this Court has found with evidence proffered to establish the boundaries of it land on the WESTERN portion where the disputed land is situated. The Plaintiff has told a more consistent story even though there are a few defects about his case too. x. Finally, the decision in Suit No. H1/111/2019, [Exhibit 5] entitled: NII NGLESHIE ADDY VRS JOHN ARMAH MENSAH & 2 ORS., Which set aside party of High Court decision, [Coram: Ofori Atta J.] In the case: NII NGLESHIE ADDY II VRS TETTEY IDDRISU AND NII NGLESHIE ADDY VRS JOHN ARMAH MENSAH & 2 ORS., limiting the Nii Odai Ntow family to the 1904 judgment plan for lack of jurisdiction, is a decision which must be viewed as having been Page 68 of 77 whittled done in its forensic and legal efficacy by the Supreme Court, decision in the case: NORTEY NO. 2 VRS. WEST AFRICA INSTITUTE OF JOURNALISM & … [cited supra] The import of the decision taken is that, it is the 1904 judgment plan with no gridlines that must be left that way and unlimited to what the actual size, boundaries or acreage is. It is a decision I will distinguish and I will place reliance on NORTEY [NO. 2] cited supra, especially holding 2. The Nortey case dealt with how to prove title to land, the identity of the land in terms of boundaries of the land in an action where issues are joined on those primary facts in the pleadings. In this trial before me the issue of title to the Korley land is uncontested rather, issues have been joined on the limits/identity for the Korley land on the WESTERN portion. Holding 2 in part reads: “Since Plaintiff sought … he must establish the identity and LIMITS of the land. The onus of proof required by law regarding the identity of the land would be discharged by meeting the following: i. The Plaintiff [the party emphasis mine] must establish all his boundaries and where there was no properly Page 69 of 77 oriented plan drawn to scale, which made compass hearing vague and uncertain, the Court would hold that the Plaintiff [the party] had not discharged the onus of proof …” The reasoning of the Apex Court was that where a Court grants declaration of title to land or MAKES AN ORDER FOR INJUNCTION in respect of the land the subject matter 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 the judgment or order of the Court will be in vain. The decision is so authoritative and comprehensive as it reviewed all notable cases on proof of title and identity of land in Ghana. (c) I have already reviewed with much detail evidence of Plaintiff on how he took possession of the land by clearing portions and making grants of portions to third parties. He also stated the 3rd Defendant trespassed unto the land and with the support of Police, 3rd Defendant and other trespassers built on the land whilst he and his grantees were treated as trespassers. The 3rd Defendant’s interest and his counter-claim for declaration of title to 0.68 acre of land depends on the grantor’s [i.e. 2nd Defendant] interest in the disputed land [i.e. 12.09 acres]. Page 70 of 77 He has led evidence that showed that, he has commenced development of the land and that he is in effective occupation of his land. Plaintiff has endorsed a claim for recovery of possession of his land thus with these conflicting claims, [an understanding of], what possession means in law will conduce to a better appreciation of the findings on the conflicting claims. Possession has been described as the occupation and control of land in a manner commensurate with the nature of the land/property. Professor Kludze J. S. C. in the case: BROWN VRS QUASHIGAH [2003/2004] SCGLR, Defined possession as not only occupation and control of land but includes the right or power to exclude others from the property and it also means the right of enjoyment of the land. Furthermore, in much details he described possession of land in these words: “Possession is a matter of LAW, but is established by physical acts. Possession is generally regarded as implying physical control, but physical control cannot mature into possession in law unless accompanied by other facts …” Page 71 of 77 He also stated that it includes the right to exclude others from the property and that it connotes a right to potential control, such as when there is unlawful but defacto impediment by a trespasser. In addition, be defined possession to include animus possidendi or intention to possess, which must be concurrent with the requisite physical control. He wrote as follows: “In other words, where there is physical control that is fortuitous or unrelated to the intention to possess, it will not constitute possession in law. Finally, the intention to possess must be manifested by external or visible signs appropriate to the property being taken into possession. The external manifestation is necessary to serve as Notice to the rest of the world of the right claimed, even if unknown to the whole world” The evidence showed that, 3rd Defendant is presently in physical control of the land, but that control and the interest he has claimed in it, is a derivative of the interest of his grantor/s. If his grantors cannot validly transfer title in that piece of land to him, then the grant they purport to make to him is not only defective but, no interest is conveyed to him in the process, as they cannot make a grant of interest in land which they do not possess. Page 72 of 77 As I draw the curtains down in this judgment, I am surprised for more than hundred years or since 1904 judgment, the issue of scientific and independent identification of the KORLEY lands has not arisen for determination. If there is a decision in that regard it has not been cited and I have not come across one. In the order for geo-referencing and identifying the boundaries of the KORLEY land, on WESTERN side, this Court deems it very important to stop the phenomenon of an immovable property or land growing and changing in size, dimensions and boundaries as found in this trial. It must cease. In conclusion, in the real world, evidence led at any trial which turned principally on issues of fact and involving a fair number of Witnesses, would not be entirely free from inconsistencies, conflicts or contradictions or the like. In evaluating evidence led at the trial, the presence of such matters per se, should not justify a wholesale rejection of evidence to which they might relate. Thus in any case, minor, immaterial, insignificant or non-critical inconsistencies must not be dwelt upon to deny justice to a party who had substantially discharged his or her burden of persuasion. Where inconsistencies or conflict in the evidence were clearly reconcilable and there was a critical mass of evidence or corroborative evidence on crucial or vital matters the Court would be right to gloss over those inconsistencies. These words of wisdom were ones written by the eminent jurist, GEORGINA WOOD: J. S. C., one time Chief Justice of Ghana [in the case cited below]: Page 73 of 77 EFFISAH VRS ANSAH [2005/2006] SCGLR 93 I therefore proceed with these words on my mind to find and hold as follows: 1) The Plaintiff has established conclusively that his land which is part of his grantor’s land located on the WESTERN side and outside the KORLEY land, as in the 1904 judgment and its judgment plan. His evidence has been corroborated in material particular by the evidence of the Court expert and as clearly illustrated in Exhibit ‘CW, CW1 and CW1A’, the composite plan, showing the location of the disputed land. Whatever weaknesses Plaintiff’s case suffers from have been reconciled with the work of the Court expert. 2) The Plaintiff has established title to his land by cogent evidence that showed the IDENTITY of his land/the location, as he has described it in the endorsement on his writ of summons and the testimony in support. 3) The two (2) declaration site-plans proffered by Defendants as the modified or modernised representation of the 1904 judgment plan have been absolutely discredited. The two (2) site plans have no probative value, as they lack factual and scientific basis. Page 74 of 77 a) As the statutory declaration on which they are based have been declared null and void by the High Court in the suit; PETER MENSAH ANTEH VRS. SIMEON ARYEETEY G. S. OKINE & 1 [EXHIBIT 2] b) The declaration made therein, I find and hold amounted to deliberate misrepresentation of facts and contrary to Section 5 of the Statutory Declaration Act, 1971, Act 389. 4) Plaintiff has established a superior claim and for that matter title to his 12.09 acres of land, than 3rd Defendant’s claim which is a grant, with its root of title in land which this Court has found does not belong to his grantors. The defence of NEMO DAT QUAD NON HABET, to the claim of title in 3rd Defendants counter- claim has been established by the Plaintiff. BY COURT: 1. (a) This Court enters judgment in favour of Plaintiff and against the 1st and 2nd Defendants for Relief 1: - Declaration of title to all that parcel of land situate and laying at Ofankor in the GA WEST District in the Greater Accra Region, and as further described in the endorsement on the writ of summons. (b) This Court on the preponderance of probabilities has found that 3rd Defendant whose claim to title is anchored on that of 1st and 2nd Defendants has failed to establish his right to Reliefs endorsed in his counter-claim, they are accordingly dismissed. As a collolary, I enter judgment in favour of Plaintiff against the 3rd Defendant for declaration Page 75 of 77 of title [Relief 1] to the land as described in the endorsement on the writ of summons. 2. This Court also enters judgment in favour of Plaintiff on Relief 2: - General Damages for trespass. I assess General Damages in the sum of GH¢250,000.00 in favour of Plaintiff and against the Defendants 3. This Court enters judgment in favour of Plaintiff on Relief 3: - Perpetual Injunction. The Defendants, their agents, privies and anyone claiming through them are restrained from further interference with the land, the subject matter of this judgment. 4. This Court also enters judgment in favour of Plaintiff for recovery of possession of the land, the subject matter of this judgment. 5. This Court directs, the Regional Director of Survey, [Survey and Mapping Division of the Lands Commission] , to draw a judgment plan of the land the subject matter of this judgment in accordance with the judgment of this Court. 6. Cost of GH¢50.000.00 is also awarded in Plaintiff’s favour and against the Defendants jointly and severally. (SGD.) H/L NICHOLAS M. C. ABODAKPI JUSTICE OF THE HIGH COURT Page 76 of 77 REFERENCES: 1. NII NGLESHIE ADDY VRS. TETTEY IDDRISU & ANOR. 2. NII NGLESHIE V VRS. JOHN ARMAH MENSAH & ANOR. [CORAM: K. A. OFORI ATTAH J. dated 10/03/2017] 3. PETER MENSAH ANTEH VRS. SIMEON ARYEETEY GS. OKINE & ANOR. SUIT NO. 554/1978 dated 30/01/1980 4. SUIT NO: L/254/99, entitled: OFEI KWAKU MANTE (substituted) VRS. MIKE SIMILAO & 4 ORS. 5. NII ADJETEY AGBOSU VRS. EBENEZER KOTEY [2003/4] SCGLR 6. KWASI BOSOMPIM & ORS. VRS MARTEI 7. NORTEY [NO. 2] VRS. WEST AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION [2013/2014] SCGLR 8. EX PARTE: NATIONAL LOTTERY AUTHORITY [GHANA LOTTO OPERATORS ASSOCIATION & ORS. INTERESTED PARTIES] [2009] SCGLR 390 9. SASU BAMFO VRS. SINTIM [2012] 1 SCGLR 136 10. TAKORADI FLOOR MILLS VRS. SAMIR [2005/2006] SCGLR 882 11. KWASI BOSOMPIM & ANOR. VRS. MARTEI & ORS. 12. APPIAH VRS. TAKYI […] 13. TETTEH VRS. HAYFORD [2012] 1 SCLR 417 14. SARKODIE VRS. F. K. A COMPANY LTD. [2009] SCGLR 65 15. NSIAH VRS. ATUAHENE [1992/1998] BR 897 16. BROWN VRS. QUASHIGAH [2003/2004] SCGLR 17. EFFISAH VRS. ANSAH [2005/2006] SCGLR 93 Page 77 of 77