BAIDOO VRS AKYER (E1/7/11) [2023] GHAHC 474 (3 November 2023)

IN THE HIGH COURT OF JUSTICE, WESTERN REGION, HELD AT SEKONDI, ON THE 3RD DAY OF NOVEMBER, 2023, BEFORE HER LADYSHIP AFIA N. ADU- AMANKWA (MRS.) J. SUIT NO. E1/7/11 1. EBU. SIMON BAIDOO 2. NANA WIENU II 1ST PLAINTIFF 2ND PLAINTIFF VRS. 1. EBU. KWESI AKYER 2. KOBINA BADU 3. KOBINA KONTOR 4. GEORGE NKRUMAH 5. JOSHUA MENSAH 1ST DEFENDANT 2ND DEFENDANT 3RD DEFENDANT 4TH DEFENDANT 5TH DEFENDANT JUDGMENT The 1st plaintiff is the head of the Akona Bankyiase family of Anto, whilst the 2nd plaintiff is the chief of Yabiw. The defendants are members of the Ebiradze family of Anto. The subject matter of the dispute involves land at Anto. By his amended writ of summons filed on 7th November 2019, the 1st plaintiff claimed against the defendants jointly and severally for the following reliefs: “a) Declaration of title to all that piece and parcel of land lying and situate at Anto on the Atwereboanda road and bounded as follows: with the family land of Teshiem Akona family, Ekissi family and the family land of the Defendants. b) Damages for trespass. c) Recovery of possession. d) Perpetual injunction restraining the Defendants, their agents, workmen, assigns etc from dealing with the Plaintiff’s family land”. The 1st plaintiff’s case is that his family owns the disputed land. His ancestors occupied the disputed land before the Asante invaded the area, which prompted them to flee to the surrounding towns such as Yabiw, Shama, Assorko-Essaman and other surrounding villages. After the Asantes left, most of the families returned to their previously occupied land. According to the 1st plaintiff, upon returning to the disputed land, his ancestors and other families were summoned by the 2nd plaintiff’s stool to pay annual tributes, which they did to the stool as the allodial owner of the land. During the 2nd plaintiff’s reign, he asked all on the land to hold on with the payment of the tributes until he re-ordered its payment, hence the non-payment of tributes to the 2nd plaintiff’s stool. The 1st plaintiff averred that after the war, his ancestor, Kwesi Nkrumah, returned and carved out the disputed land for himself and cultivated it. Upon his death, Opanyin Sefa succeeded him and cultivated the disputed land with cash crops such as cocoa, coconut and oranges. Enyam Na Ere Yem succeeded Opanyin Sefa when he died. In his lifetime, Enyam Na Ere Yem gave the disputed land to his nephews, Kojo Kyereboah and Krampah. Krampah was on the land and had cultivated agric palm trees and sugarcane on it. The 1st plaintiff contended that it was upon the death of Enyam Na Ere Yem in 2000 that the defendants started laying claim to his family land. The defendants planted boundary trees on portions of his family land, which were removed when it came to his attention. The feud which developed was resolved by the police, who advised the parties to stick to their portions of land. The 4th defendant had recently trespassed onto portions of the disputed land and cultivated cassava. The 2nd and 3rd defendants had also sent a surveyor to survey and demarcate it, an exercise aimed at wrestling the land from his family. After the 1st plaintiff had testified, the 2nd plaintiff, who was yet to be joined to the action, sought the court’s permission to settle the dispute between the parties. The settlement failed. Thereafter, the 2nd plaintiff successfully applied to be joined to the action. Subsequently, the writ was amended to reflect the joinder of the 2nd plaintiff to the action. However, the reliefs endorsed on the writ remained the same for both plaintiffs. The 2nd plaintiff filed a statement of claim claiming the following reliefs: “(a) A declaration of title to all that piece and parcel of land lying and situate at Anto on the Atwereboanda road and bounded with the family land of Teshiem Akona Family, Ekissi Family, Anona Family Land of the Defendants. (b) A declaration that it was the 2nd Plaintiff’s Stool that granted the disputed land to the 1st Plaintiff’s Family. (c) Perpetual Injunction restraining the Defendants, their assigns, agents from dealing with the disputed land granted to the 1st Plaintiff’s Family”. It would be noted from the amended writ of summons that the reliefs the plaintiffs endorsed on it differ from what the 2nd plaintiff endorsed on his statement of claim. However, the reliefs endorsed on his statement of claim are deemed his reliefs for purposes of this trial. The reliefs, which are stated in the statement of claim and on which facts have been pleaded will supersede the endorsement on the writ. See the case of Unilever Ghana Ltd vrs. Kama Health Services Ltd [2013-2014] 2 SCGLR 861 @ 884. The 2nd plaintiff’s case is that the disputed land forms part of his larger stool land and shares boundaries with the Supomu Dunkwa Stool land. He averred that his ancestors founded Amanfokesedo but had to move to present-day Yabiw due to wars. Even though his ancestors moved to Yabiw, they continued to possess Amanfokesedo lands. The Yabiw Kingdom was divided between the Yabiw stool and Supomu Dunkwa stool, resulting in the Yabiw stool possessing the Amanfokesedo lands whilst the Supomu Dunkwa stool possessed the Supomu Dunkwa lands. Yabiw stool was fragmented into smaller towns of Anto, Essaman, Shama, Nkyekyir, Apimenyim, Aboso, Asorko and Yabiw itself. The 2nd plaintiff further averred that after the Asante invasion, families who went back to cultivate the Amanfokesedo lands sought permission from the Yabiw stool and were paying yearly tributes until his ascension to the throne when he suspended the payment of such tributes until a proper inventory of the stool land had been taken. He explained that as overlord, he wanted to settle the matter between the families of the 1st plaintiff and the defendants until he realized that the defendants’ family denied his allodial title and lordship over the disputed land, hence his decision to join the suit to protect his stool’s interest. The defendants denied that the disputed land belonged to the plaintiffs. In their amended statement of defence filed on 25th November 2019, they averred that the land belonged to their family, who had cultivated it since time immemorial. According to them, during the Asante invasion, their family also fled but returned to Amanfokesedo when the Asantes left. During the reign of Nana Kweku Bedu as head of the family, he gave a small portion of the family land to Maame Ama Appiah, who was married to the 1st plaintiff’s ancestor, Opanyin Sefa. Opanyin Sefa merely cultivated the land with his wife as a licensee. As such, upon the death of Maame Ama Appiah, the land reverted to the family, and they cultivated it. The defendants contended that the land was not stool land and had never paid any tribute to the 2nd plaintiff’s stool either by themselves or their predecessors. Again, they had successfully litigated over the disputed land with the 1st plaintiff before an arbitration committee. They counterclaimed for the following reliefs: “a. A declaration that by virtue of the Arbitration Award made by the Arbitration Panels in favour of the Defendants’ family against the 1st plaintiff, the disputed land belongs to the Defendants and their family. b. A declaration that the claim of the 2nd Defendant(sic) for the disputed land is barred by statute. c. An order for perpetual injunction restraining the Plaintiffs, their assigns, servants, agents, privies, successors, family members, all those claiming for or through them from interfering and disturbing the Defendants in their quit(sic) enjoyments. d. An order for possession”. In the course of proceedings, the 2nd defendant died and was substituted with the 5th defendant. The record of proceedings shows that issues were not settled for the court’s determination. Following the closure of pleadings, counsel for the defendants applied to have the suit dismissed on the failure of the plaintiff to apply for directions. The court (differently constituted) dismissed the application and ruled that the matter would be heard on its merits. However, it failed to order the plaintiff to apply for directions. Again, following the joinder of the 2nd plaintiff to the action with its attendant filing of a statement of claim and subsequent amendments to the statement of defence, issues were not set out for trial even though the case was fought on its merits. The omission to set the issues down for trial is a mere irregularity given the tenor of Order 81 r. 1 of the High Court (Civil Procedure) Rules, CI 47 and would not render the trial a nullity. See Republic vrs. High Court Accra, Exparte Allgate Co. Ltd (Amalgamated Bank Ltd. Interested Party [2007-2008] SCGLR 1041. For as stated in the case of Boakye vrs. Tutuyehene [2007-2008] SCGLR 970 at 979: “It is clear that a single paper called the “summons for directions” under our practice is nothing more than a legal pantomime which cannot make a judgment or an entire proceedings null and void. Order 30 (now 32) was a case management provision intended to ensure a smooth and expeditious progression of the suit after pleadings are deemed close. It was not intended to abort the proceedings.” From the pleadings and evidence on record, the essential issues to be determined are: i. Whether or not the disputed land belongs to the 1st plaintiff’s or defendants’ family. ii. Whether or not the disputed land is the stool land of the 2nd plaintiff. iii. Whether or not the disputed land has been arbitrated upon and in favour of the defendants’ family. Both plaintiffs seek a declaration of title to the disputed land. The 2nd plaintiff’s case is that the disputed land forms part of the larger stool land owned by the people of Yabiw and, therefore, stool land. He said his stool granted the disputed land to the 1st plaintiff’s ancestors, who paid tributes to his predecessors. From the records, the 1st plaintiff simply states that the 2nd plaintiff’s stool is the allodial owner of the land in issue and that his family, being members of the 2nd plaintiff’s stool community, are grantees of the 2nd plaintiff stool with customary freehold interest on the land. Thus, it is quite clear from their claims that they both seek a declaration to title different in nature. It is trite that there are different interests in land. And even where the land is stool land, different titles may be carved out of it. See Ago Sai & Others vrs. Kpobi Tetteh Tsuru III [2010] SCGLR 762. Therefore, it is not out of place that both plaintiffs would seek a declaration of title to the same land as the titles in question differ in nature. CUSTOMARY ARBITRATION In their pleadings, the defendants averred that the claims of the 1st plaintiff had been the subject of an arbitration which had not been set aside. By their claim for a declaration that the disputed land belongs to them by virtue of the arbitral award that went in their favour, the issue of the arbitration comes into play. In paragraphs 11 and 12 of their statement of defence, the defendants averred that: “11. In further denial of the averments contained in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 &15 of the Amended Statement of Claim of the 1st Plaintiff, the Defendants state that recently the 1st Plaintiff trespassed onto a portion of the Defendants’ family land the disputed land herein and upon being ordered to leave by the Defendants the matter went for a voluntary arbitration at the Ngua Esson Essaman Ahenfie within the Shama District”. “12. In further denial of the averments contained in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 & 15 of the Amended Statement of Claim of the 1st Plaintiff, the Defendants state that the arbitration panel after both sides had duly performing the necessary customary rites and testified with their respective witnesses present before the customary arbitration panel and upon the completion of arbitral deliberations on the dispute including visit to the land the panel ruled in favour of the Defendants’ family”. As with all civil trials, the party who, in his pleadings, raises an issue essential to the success of his case bears the burden of proof. As it is the defendant who has raised the issue of customary arbitration, the onus lies on him to prove on a preponderance of probabilities that the arbitral award was given by a panel with jurisdiction and that the award has not been set aside. In the case of Dzasimatu & Ors vrs. Dokosi & Others [1993-94] 1 GLR 463, the Supreme Court reiterated the essential elements of a valid arbitration as follows: “A purported arbitration is binding if (a) the submission of the dispute was voluntary: see Asare v Donkor [1962] 2 GLR 176, SC and Paul v Kokoo [1962] 2 GLR 213, SC; (b) the parties agreed to be bound by the decision whichever way it went: see Ankrah v Dabra and Olaga (1956) 1 WALR 89, WACA; Twumasi v [p.471] Badu (1957) 1 WALR 204, WACA and Mosi v Fordjuor [1962] 2 GLR 74, SC; (c) the rules of natural justice were observed: see Akakyie II v Ediyie [1977] 2 GLR 70, CA : although the arbitrator need not follow any formal procedures: see Akunor v Okan [1977] 1 GLR 173, CA; (d) the arbitrator acted within jurisdiction: see Foli v Akesse (1934) 2 WACA 46, PC; and (e) the decision or award was made known: see Yaw v Amobie (1958) 3 WALR 406, CA.” In proof of their claim, the defendants testified through the 5th defendant and called two witnesses. The 5th defendant testified that his family had exclusively occupied, possessed, owned and farmed the disputed land situate at Amanfokesedo along the roadside of Atweerbunada road. The disputed land was bounded by Ekissi family land, Nsona family land, Akona Kyenhyia family land and a lake called 'Hyen'. He recounted that during the Sudan migration to the Gold Coast, some people, including his ancestors, settled at Mankessim, Aguafo and Amanfokesedo. His ancestors broke the virgin forest of Amanfokesedo and established a community in the 16th to 17th centuries. Individuals and groups of families that broke the virgin forest in the areas around Amanfokesedo, including his ancestors, took ownership of their respective vacant portions of the lands they occupied. After some years of settlement, the Asante Kingdom fought with the people of Amanfokesedo and its surrounding areas. Some of the inhabitants ran into the nearby distance hilltop and stayed there for some time so that whenever the Asantes came back to attack them, they could quickly see them. They named the place Yabiw, which means "Yembiw ha yi ara", which literally means "we should just wait here". After these fights, the settlers, including his ancestors, went back and took possession, control and ownership of their previously occupied lands without trouble and farmed on them without hindrances from anyone. Nana Fosu was then the head of his family after the Asante fights. Nana Alampe Kweku succeeded him before Nana Kweku Bedu. During the tenure of Nana Kweku Bedu as the head of the family, he gave a portion of the family land to his in-laws as licensees only to cultivate for the betterment of their children's education. Maame Ama Appiah, a member of the Ebiradze family headed by Nana Kweku Bedu, was then married to Opanyin Sefa of the Akona Bankyease family of the 1st plaintiff. Maame Ama Appiah, a member of his family, was also given a portion of the family land to cultivate with her husband Opanyin Sefa as a licensee. Op. Sefa planted cocoa, but he could not keep the land since he was not a member of the Ebiradze family, the land owners. When Maame Ama Appiah died, her husband, Opanyin Sefa, gave the children a portion of the cocoa farm to manage. Later, the children, who, as Akans, were members of the Ebiradze family, cut down the cocoa and planted oil palm on the land. When Opanyin Sefa died, Opanyin Krampah tried to take possession of the land but his Ebiradze family resisted and notified him that the land belonged to the Ebiradze family, so if he was interested in farming on it he should meet the Ebiradze family for negotiation, but he refused. Two families (the Ekissi and Ebiradze families) bounded at the North side of the land agreed to plant their boundary trees for easy identification. Later, Opanyin Krampah of the Akona Bankyease family removed all the boundary trees. In 2000, the two families agreed and went for voluntary customary arbitration at Essaman Ngua Esoun palace of Nana Kofi Ewuah IV. The disputing parties, including his family and the Akona Bankyease family led by Opanyin Krampah, agreed and consented to customary arbitration of the dispute on the land at the palace of Nana Kofi Ewuah IV. The parties also agreed to the membership of the persons constituting the arbitration panel. The panel of customary arbitrators went into the matter. The defendants' family testified with witnesses and were cross-examined by the plaintiff's family, and the panel also asked them questions. The plaintiff's family also testified and was cross-examined by the defendants' family. The panel also asked them questions for clarification. The panel later went onto the locus land with the parties. The panel of customary arbitrators then delivered an arbitral ruling in favour of the Ebiradze family of the defendants. All parties accepted the ruling. The Akona Bankyease family, led by Opanyin Krampah, was fined costs of c100,000 old cedis and asked to pay to the Ebiradze family, and they did. The 5th defendant contended that the arbitral award had never been set aside and was binding on all the parties. One of the arbitrators, Nana Banyin alias Kae Dza Ma Ye Amawo, testified that he was one of the members of the arbitral panel that arbitrated on the disputed land in the year 2000 between the defendants’ Ebiradze family and the plaintiffs’ Akona Bankyease family of the plaintiffs herein. When the dispute on the land came before the palace of Nana Kofi Ewuah IV for customary arbitration, all the parties agreed to arbitrate and agreed on the membership of the arbitration panel. The disputing families agreed to be bound by the arbitral award before they started the arbitration. Apart from himself, the arbitrators were Opanyin Ayeryie, Kweku Dadzie, Kwaw Saman, Kofi Duku, Kweku Awotwe, Supi Kojo Nkrumah, Opanyin Kwame Essoun, Kwamina Adjei, R. C. K Bassaw, Ekra Kwaw. Paul Awortwi was the secretary to the panel. Before the commencement of the arbitration, both parties were asked to pay a fee of c100,000 old cedis, which they did. The defendants’ family testified with witnesses, and the 1st plaintiff's family cross- examined them. The panel also asked questions. The 1st plaintiff's family also testified and was cross-examined by the defendants' family. The panel also asked questions for clarification. After the proceedings, the panellists moved to the locus with the disputing parties. After inspecting the land, the panellists returned to the palace and delivered their judgment that the land belonged to the defendants’ Ebiradze family. The Akona Bankyease family, led by Opanyin Krampah, was fined costs of c100,000 old cedis and asked to pay to the Ebiradze family, which they did. The parties accepted the arbitral award. The 1st plaintiff testified that he was the head of the Anona Bankyiase family. His family owned a large tract of land situate at Anto. The land was situate on the Atwerboanda road and was bounded by the family land of Teshiem Akona family, Ekissi family and the family land of the defendants. The 1st plaintiff further testified that during the war, the Asantes completely sacked the village of Anto, and as a result, the citizens scattered and settled at places such as Yabiw, Shama, Assorku-Essaman and other surrounding villages. When the Asantes finally left, the land was vacant, and the people of the land who the war had displaced initially went back to Anto. For those who were daring, they carved out portions of the vacant land left by the Asantes, farmed on it and built settlements on it. One of his ancestors, Kwesi Nkrumah, who had also originally fled the war to old Anto, came back and carved out the disputed land to himself and farmed on it. Upon the death of Kwesi Nkrumah, his ancestor, Sefa, succeeded him and cultivated the land with cash crops, such as cocoa, coconut and oranges. The 1st plaintiff further testified that his deceased ancestor, Opanyin Kwesi Sefah, entered into an agreement in 1969 with the then Chief of Yabiw, Nana Kwegya Enyinam II, to pay annual tribute in respect of the land in dispute. Enyam Na Ereye succeeded Sefa, and in his lifetime, he gave the farm to Kojo Kyereboah and Krampah, who cut down the cocoa and cultivated, in their stead, agriculture oil palm trees and sugar cane. The family had quiet enjoyment of the land to the exclusion of all others and even made grants to farmers who cultivated same. Enyam Na Ereye died in 2000, and immediately upon his death, the defendants, without notice to him and his family, proceeded to the land with the Ekissi family to mark out their boundaries. When the incident came to his attention, he had the boundary trees removed. The police settled the feud which developed, and the parties were advised to stick to their portions of the land. Recently, the 4th defendant trespassed on portions of the disputed land and cultivated it with cassava. In the process, the 4th defendant cut down the corn cultivated by one of his family members. Without notice to him or his family, the 2nd and 3rd defendants sent a surveyor and workman to the land to survey and demarcate same, an exercise aimed at wrestling the land from him. The 5th defendant, who was married to a member of his family and by virtue of which he was permitted to cultivate portions of the disputed land, had again gone unto the disputed land without notice or permission and was laying adverse claim to the land. He contended that what happened at the Essaman Ahenfie was not an arbitration but a settlement which did not pronounce on ownership. The parties do not dispute that there was an arbitration regarding the disputed land between the parties’ families. The fact of the previous arbitration relating to the disputed land was admitted by the 1st plaintiff and his witness. Under cross-examination from the defendants, PW1 admitted as follows: “Q. Then I am putting it to you that this matter has been arbitrated upon at Asaman Ahenfie by Chief of Anto and the arbitration award went against the Plaintiff with a fine? A. There was arbitration but we disagreed with award that went against the Plaintiff. Q. Did you just tell the Court you are not aware of arbitration on the disputed land? A. Yes, I did not get the question clearly Q. I am therefore putting it to you that you are not being a truthful witness A. Not true Q. When you went for the arbitration, you went with the Plaintiff voluntarily? A. Yes Q. At the arbitration, the plaintiff and his witness testified? A. Not true, there is no witness for the Plaintiff. Q. But the plaintiff testified? A. Yes Q. And the Defendants also testified? A. Yes Q. And the panel made an award. A. Yes. It is quite clear from the parties’ evidence that there was a customary arbitration. The parties voluntarily submitted the dispute for settlement by arbitration by a panel of five persons, including DW1. There was an award. The 1st plaintiff’s family was fined a hundred old Ghana cedis (c100,000.00), which, according to the 1st plaintiff, they refused to pay. On the other hand, the 5th defendant and DW1 testified that the parties accepted the arbitral award, and the 1st plaintiff’s family paid the fine. I am more inclined to lean to the defendants’ version of events that the 1st plaintiff’s family paid the fine, given that the 5th defendant’s evidence is corroborated by DW1, a member of the panel that arbitrated on the issue. The bone of contention between the parties appears to be the subject matter of the arbitration. Whilst the defendants contend that the ownership of the disputed land was pronounced in their family’s favour, the 1st plaintiff contends otherwise, claiming that the dispute concerned boundary demarcation regarding the boundary trees Opanin Krampah had destroyed. The 1st plaintiff testified that upon the death of Enyam Ne Ereye, the defendants went onto the disputed land with the Ekissi family to mark out their boundaries. When it came to his attention, he removed the boundary trees. An arbitration that concerned the removal or destruction of boundary trees would necessarily entail the determination of ownership of land. After all, a person would only grow boundary trees to clearly delineate his land from his neighbour's. A person would only be liable for trespass and damages for destroying trees rightly cultivated on land if he had no business destroying them. If the 1st plaintiff contends that the arbitration concerned the destruction of the boundary trees, then certainly it is more probable than not that the ownership of the disputed land was determined as contended by the defendants. Boundary disputes go hand in hand with ownership rights. I, therefore, hold that the ownership of the disputed land was pronounced in favour of the defendants, for which the 1st plaintiff’s family was fined C100,000.00 for the destruction of the boundary trees. Counsel for the 1st plaintiff further contended that the arbitration proceedings did not involve the 1st plaintiff’s family. He found support in the answers provided by the 5th defendant when he stated that the summons at the Essaman palace were against Krampa and not the whole Akona Bankyease family of Anto. However, I believe this answer was taken out of context, taking the defendants’ case and testimony as a whole. In his evidence, the 5th defendant testified that: “19…The two families in the year 2000 then agreed and went for voluntary customary arbitration at Essaman Ngua Esoun palace of Nana Kofi Ewuah IV”. “20. The disputing parties including my Ebiraddze family of the Defendants and the Akona Bankyease family led by Opanyin Krampah of the Plaintiff all agreed and consented to customary arbitration of the dispute on the land at palace of Nana Kofi Ewuah IV”. His witness, DW1, also testified that: “5. The disputing families agreed to be bound by the arbitral award before we started the arbitration”. “8. The Defendants family testified with witnesses and cross-examined by the Plaintiff’s family and the panel also asked questions. The Plaintiff’s family also testified and was cross-examined by the defendants’ family. The panel also asked questions for clarifications”. From the testimony of the 5th defendant and his witness, the arbitration not only involved Krampah but the 1st plaintiff’s family and that of the defendants’. Taking the totality of the defendants’ case, the arbitration proceedings not only involved Krampah but the parties’ families. There is no evidence that the arbitral award has been set aside. Under section 109 of the Alternative Dispute Resolution Act, 2010, Act 798, an award in a customary arbitration is binding between the parties and a person claiming through and under them and need not be registered in a court to be binding. That being the case, the 1st plaintiff and his family are bound by the award and are estopped from relitigating the issue. The disputed land belongs to the defendants’ family by virtue of the arbitral award. STATUTE OF LIMITATION By their counterclaim, the defendants contend that the action is statute-barred. A determination of this issue in their favour would truncate the case, dispensing with the need to go into its merits. The statute of limitation is a venerable shield that can be used to ward off indolent and piecemeal litigators. The purport of a limitation law is that where the statute prescribes a time within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the period so limited. Any action instituted after the limitation period is said to be statute-barred. The defendants failed to give any particulars regarding their claim that the action is statute-barred. It is trite law that the Limitation Act, 1972, NRCD 54, is a special plea that must be pleaded. The court could not suo moto take notice that the action was out of time. See Dolphine vrs. Speedline Stevedoring Co. Ltd and Another [1997-98] 1 GLR 786. As no particulars were given, the court could not even take notice of it if it had the liberty to do so. The defendants’ claim that the action is statute-barred fails and is dismissed. STOOL OR FAMILY LAND The contest over the disputed land has been narrowed down between the 2nd plaintiff and the defendants. Whereas the 2nd plaintiff claims that the disputed land forms part of the larger stool land owned by the Yabiw people, the defendants claim that their family has always owned the land. The defendants claim that Amanfokeseso lands are family lands owned by the various families of Yabiw. At this juncture, it is imperative to determine the character and nature of the disputed land ie whether it is stool or family land. The 2nd plaintiff, Nana Wienu II, Chief of Yabiw, testified that the disputed land formed part of the larger stool land owned by the people of Yabiw and shared boundary with the Supomu Dunkwa Stool Land. Recounting their traditional history, the 2nd plaintiff testified that from time immemorial, the people of Yabiw migrated from place to place until his ancestors settled at Mankessim in the Central Region. From Mankessim, his ancestors relocated to Eguafo and later migrated to Amanfokuma before settling at Amanfokesedo. As a result of the war, his ancestors moved from Amanfokesedo to settle at the present place, Yabiw, but continued to possess the Amanfo Kesedo lands after the war. The Yabiw Kingdom was divided between Yabiw Stool and Supomu Dunkwa Stool, which necessitated sharing the entire stretch of land. After the division, the Yabiw Stool took possession of the Amanfokesedo land, whilst the Dunkwa Stool possessed the Supomu Dunkwa lands. Atwereboanda, which formed part of the Supomu lands shared a direct boundary with the Amanfokesedo land. Further, the Yabiw side of the division was fragmented into smaller towns, namely Anto, Essaman, Shama, Aboso, Asorko and Yabiw. For this reason, under customary law, the presence of the Yabiw chief was always needed before the Shama Paramountcy could install a paramount chief. As a result, subjects of all those fragmented towns who decided to cultivate portions of the Amanfokesedo lands sought permission from the chief of Yabiw to cultivate upon payment of a token to the Yabiw chief as the overlord of the Amanfokesedo lands. The 2nd plaintiff further testified that the disputed land was granted to the 1st plaintiff's ancestors, who paid tribute to his predecessors. However, when he became the chief of Yabiw forty years ago, he instructed all families farming on the Amanfokesedo lands to stop the payment of the tribute until he took a proper inventory of the Stool Land. According to the 2nd plaintiff, the disputed land shared boundaries with the defendants’ family land and that of the Anona family land, which was presently in the possession of Ama Kaya and her sister. Quite recently, the 5th defendant, acting through his attorney, the 1st defendant instituted action against Ama Kaya and her sister in another suit sub- nom: Ebusuapanyin Kwesi Akyer vrs Ama Kaya - Suit No. A1/04/18 before the Shama District Court in respect of the land sharing boundary with the disputed land. He advised the defendants not to trespass on Ama Kaya's family land since he was the overlord and wanted to maintain peace in his area of jurisdiction. However, the defendants threw caution to the wind and decided to mount an action against the Anona Family. When he heard of the suit, he applied to join the suit, and upon the grant of his joinder application, the defendant discontinued the suit. Having failed to take over the land from the Anona family, which shared a boundary with the disputed land, the defendants decided to harass the 1st plaintiff's quiet enjoyment, necessitating his stepping in as the overlord of the land to resist the defendants' claim. He contended that the disputed land did not belong to the defendants as they had a penchant for taking people's land. PW3, John Kwabena Mensah, testified for the 2nd plaintiff. He testified that he was the Okyeame of Yabiw Ekissi Abrosanase family and lived at Yabiw. According to him, the disputed land, which was situate at Amanfokesedo, was their ancestral land. His ancestors, who were predominantly farmers, hunters and chainsaw operators, were on the disputed land. In recounting the history regarding the disputed land, the witness testified that his ancestors were part of the Yabiw Kingdom that migrated from Techiman in the Brong Ahafo Region to settle at Eguafo near Elmina in the Central Region. Subsequently, they moved to Amanfokuma and came to break the virgin forest of Amanfokesedo and settled there. As they carried on their farming activities on the land, they were confronted by war, which compelled them to move from Amanfokesedo to settle at Yabiw near Shama. His ancestors were at Yabiw when they heard that the war at Amanfokesedo had ended. Some of his ancestors decided to return to Amanfokesedo to farm on the land again. His ancestors sought permission from the Yabiw Chief to cultivate the land upon payment of a token to the Yabiw Chief as the overlord of Amanfokesedo. Those who could reclaim their farmlands eventually became their family lands used to serve the Chief of Yabiw. This had been a custom of Yabiw for the past ninety (90) years and had evolved to the current members of the family and other families within the Yabiw Community. PW4, Nana Kwesi Ntoful II, the chief of Atwereboanda, testified that his stool and other Stools used to belong to the Yabiw Kingdom, who migrated from place to place until they settled at Mankessim in the Central Region. From Mankessim, they relocated to Eguafo and Amanfokuma before settling at Amanfokessedo. Later Yabiw Kingdom got divided into two between Yabiw Stool and Supomu Dunkwa Stool. The Yabiw people took the Amanfokessedo land, whiles the Dunkwa Stool took the Supomu land, with the River Whin serving as a boundary between the two stools. According to the witness, his land at Atwereboanda shared a direct boundary with the Amanfokesedo land, with the River Winn serving as the common boundary. His land served the Supomu Dunkwa Stool whilst the people of Yabiw farmed on the Amanfokesedo lands to serve the Yabiw Stool. Later, Yabiw also got fragmented into Anto, Nkyekyir, Assorku-Essaman, Shama and Aboso, who farmed on the Amanfokessedo lands and used same to serve the Yabiw Stool. The 5th defendant, Joshua Mensah, testified for himself and on behalf of the 1st, 3rd and 4th defendants. He testified that he was a principal elder of the Ebiradze family of Anto. The 1st defendant was the head of his family. According to him, his family had exclusively occupied, possessed, owned and farmed a parcel of farmland situate at Amanfokesedo along the roadside of Atwereboanda road. The land was bounded by the Ekissi, Nsona, and Akona Kyenhyia family lands and a lake called 'Hyen'. He recounted that during the Sudan migration to the then Gold Coast, some people settled at Mankessim, Aguafo and Amanfokesedo, including his ancestors. His ancestors broke the virgin forest of Amanfokesedo and established a community in the 16th to 17th centuries. Individuals and groups of families that broke the virgin forest in the areas around Amanfokesedo, including his ancestors, took ownership of their respective vacant portions of the lands they occupied. After some years of settlement, the Asante Kingdom fought with the people of Amanfo Kesido and its surroundings on several occasions. Some of the inhabitants ran into the nearby distance hilltop and stayed there for some time so that they could quickly see the Asantes when they came back to attack them. They named the place Yabiw, which means "Yembiw ha yi ara", which literally means "we should just wait here". After these fights, the settlers, including his ancestors of the Amanfokesedo, returned and took possession, control and ownership of their previously occupied lands without trouble and farmed on them without hindrances from anyone. Nana Fosu was then the head of his family after the Asante fights. When Nana Fosu passed away, he was succeeded by Nana Alampe Kweku before Nana Kweku Bedu. During the time of Nana Kweku Bedu as the head of the family, he gave some portion of the family land to his in-laws as licensees only to cultivate for the betterment of their children's education in the family. Maame Ama Appiah a member of the family headed by Nana Kweku Bedu, was then married to Opanyin Sefa of Akona Bankyease family of the Plaintiff. Maame Ama Appiah, a member of the Ebiradze family, was also given a portion of the Ebiradze family land to cultivate with her husband Opanyin Sefa as a licensee. He planted cocoa but could not keep ownership of the land since he was not a member of the Ebiradze Family, the owners of the land, but a member of a different family, the Akona Bankyease family. When Maame Ama Appiah died, her husband Opanyin Sefa gave the children a portion of the cocoa farm to manage. Later, the children, who as Akans are members of the Ebiradze family, cut down the cocoa and planted oil palm on the land. When Opanyin Sefa died, Opanyin Krampah tried to take possession of the land, but his Ebiradze family resisted and notified him that the land belonged to the Ebiradze family, so if he was interested in farming on it, he should meet the Ebiradze family for negotiation, but he refused. Two families (Ekissi and Ebiradze families) bounded at the North side of the land therefore agreed to plant their boundary trees for easy identification. Later, Opanyin Krampah of the Akona Bankyease family removed all the boundary trees. In 2000, the two families agreed and went for voluntary customary arbitration at Essaman Ngua Esoun palace of Nana Kofi Ewuah IV, which arbitration went in his family's favour. The 5th defendant further testified that his family had exclusively occupied, possessed, owned and farmed on the land at all material times. The 2nd plaintiff had been aware of the earlier dispute but had never made any adverse claim for the land. When the current dispute arose recently, the 2nd plaintiff attempted to mediate and settle the issue of ownership between the parties without making any adverse claim for the land. When the mediation and settlement by the 2nd plaintiff failed, the matter returned to the Court for continuation of trial. After the 1st plaintiff had testified and had been cross-examined, and his witnesses had also testified and were cross-examined, it became abundantly clear that the 1st plaintiff’s case had crumbled under cross-examinations. He further testified that in recent times, the 2nd plaintiff had tried to make false and unsuccessful claim for other discovered lands of the defendants' family at Yabiw, for which the defendants’ family had owned and controlled for several years and had been granting leases of parts of it to strangers to the exclusion of the 2nd plaintiff. Tenants had been paying rents to the defendants’ family as landlords. The 2nd plaintiff had tried unsuccessfully to make the tenants of the defendants and their families not to pay rent to the defendants, and this had also failed when they challenged him. The 5th defendant asserted that the disputed land was not stool land as it had never had the character of a stool land either in the past or present and did not belong to the plaintiffs. The people of Yabiw comprised different families owning separate and distinct lands. The individual families led by their respective heads at the discovery of the lands occupied, possessed and owned their respective and distinct lands. They moved out temporarily during the war, but each family returned to their previously owned lands after the war, re-occupied, repossessed, and continued to farm on and owned their previous lands until now. The disputed land was discovered and lawfully acquired by the defendants' family. The defendants and their family, who owned the land exclusively, had never paid any token or rent to any chief nor had been stopped by any chief from paying tolls. Neither the defendants nor their ancestors had ever asked permission from any chief regarding their family lands, including the disputed land. It would be noted that the parties relied on conflicting traditional evidence to prove their families’ ownership of the disputed land. In the wake of this conflicting evidence, the court has no choice but to resort to acts or events of recent memory to resolve the traditional evidence. The problem associated with traditional evidence is that because they are handed down from one generation to the other, details are often lost in the memory of time. There also remains the possibility of rewriting history to suit the greedy ends of some families. Lord Denning in the case of Adjeibi-Kojo vrs. Bonsie [1957] 3 WALR 620 PC stated the test to resolve traditional evidence as: “The most satisfactory method of testing traditional history is by examining it in the light of such more recent facts as can be established by evidence in order to establish which of two conflicting statements of tradition is more probably correct. Where there is a conflict of traditional history one side or other must be mistaken, yet both may be honest in their beliefs, for honest mistakes may occur in the course of transmission of the traditions down the generations”. Indeed, mistakes may occur in transferring history from one generation to the next without any ill motive. Truthful witnesses may speak sincerely but very erroneously on certain history handed down to them. Certainly, the possibility remains that information handed down from this generation to the next in connection to this judgment may be distorted, albeit innocently or without any ill motive. In this regard, the court is to tread cautiously when faced with conflicting traditional evidence and resolve it in the light of more recent acts of possession. The test in assessing rival traditional evidence by preference given to the side supported by recent acts or events in living memory has been applied by our courts in a number of cases. One such case is In Re: Adjancote Acquisition; Klu vrs. Agyeman II [1982-83] GLR 852. Wiredu J outlined the following principles in respect of traditional evidence. “(1) Oral evidence of tradition is admissible in the courts of West Africa and may be relied upon to discharge the onus of proof if it is supported by the evidence of living people of facts within their own knowledge: see Commissioner of Lands v. Adagun (1937) 3 W. A. C. A. 206. (2) Where it appears that the evidence as to title is mainly traditional in character on each side and there is little to choose between the rival conflicting stories the person on whom the onus of proof rests must fail in the decree he seeks: see Kodilinye v. Odu (1935) 2 W. A. C. A. 336 and Abakam Effiana Family v. Mbibado Effiana family [1959] G. L. R. 362. (3) Where there is a conflict of traditional history, the best way to find out which side is probably right is by reference to recent acts in relation to the land: see Yaw v. Atta [1961] G. L. R. 513. (4) Where claims of parties to an action are based upon traditional history which conflict with each other, the best way of resolving the conflict is by paying due regard to the accepted facts in the case which are not in dispute, and the traditional evidence supported by the accepted facts is the most probable: see Beng v. Poku [1965] G. L. R. 167. (5) Where the whole evidence in a case is based on oral tradition not within living memory, it is unsafe to rely on the demeanour of the witnesses to resolve conflicts in the case: see Adjeibi-Kojo v. Bonsie (1957) 3 W. A. L. R. 257, P. C. To the above may be added the following legal principles as to the onus of proof. (6) Where the admission of one party establishes that the other party has been in long undisturbed possession and occupation of the disputed land, the party making the admission assumes the onus to prove that such possession is inconsistent with ownership. The law is that such a person in possession and occupation is entitled to the protection of the law against the whole world except the true owner or someone who can prove a better title: see Abakam Effiana Family v. Mbibado Effiana Family (supra). (7) In a claim for title to land where none is able to show title because of want of evidence, or that the evidence is confusing and conflicting, the safest guide to determin`ing the rights of the parties is by reference to possession: see [p.858] Summey v. Yohuno [1962] 1 G. L. R. 160 at p. 167 per van Lare J. S. C. Again, in the more recent case of Hilodjie vrs. George [2005-2006] SCGLR 974, the court stated thus: “Therefore, in my judgment, where a court is bent on choosing one of two conflicting traditional evidence, it must opt for the version of the party, who additionally leads evidence of undisputed acts of possession or ownership over the subject matter, unless of course some very tangible on the record, justifies an outright rejection of the evidence”. Thus, in assessing rival traditional evidence, it is important to determine which versions are authenticated by recent events on matters within living memory such as undisputed acts of possession or ownership over the subject matter. The evidence of the parties are ad idem up to a point. They all claim that prior to the Ashanti invasion, the families of Anto occupied the lands. They had to flee during the invasion but returned after the war to occupy their lands. The point of dissension is the defendants’ claim that the various families returned, took control of their previously occupied lands and farmed on it without any objection. Conversely, the plaintiffs claim that subjects who decided to cultivate portions of Amanfokesedo lands sought permission from the chief of Yabiw to cultivate upon payment of a token as the overlord of the Amanfokesedo lands. Regarding the tokens paid, the plaintiffs relied on exhibit “AA” to show the payment of tribute to the chief of Yabiw. Exhibit “AA” is an acknowledgement by one Sefa, one of the plaintiff’s ancestors, to the payment of 4 cedis and a bottle of akpeteshie to the 2nd plaintiff’s predecessor, Nana Kwegya Enyinam. Counsel for the defendants has tried to downplay the significance of this document, contending that it was not stamped, was unsigned by the named chief and his witness, and did not state the exact size of the land. For purposes of the discussion, I would reproduce the contents of the document, which states: “ANACKNOWLEDGMENT. It was eight years ago that Nana Kwegya Enyinam II and his elders of Yabiw called I Sefah and got a sheep from me as a libation due to an old village named AMANFO KESE DU. That village is removed and now covered with weeds. I therefore ensure that the land called AMANFO KESE DU is for NANA Kwegya Enyinam II of Yabiw and his elders. There(sic) on 23rd November 1969 NANA Kwegya Enyinam II, SUPI Kobena Ackon, Nana Anto II, Kweku Konfrawa, Asafu Company No. 1 and his elders of Yabiw have called I Sefah to pay four cedis NC4.00 and a bottle of Akpeteshie per every year whereas my properties are on the land. I Sefah agreed to pay the mentioned amount when the year ends”. Exhibit “AA” was thumbprinted by Sefah and his witness. The chief's name is also affixed to the document, but there is no indication that his witness, Safohene Kwaku Boateng, witnessed his signing. Exhibit “AA” is a document acknowledging the payment of tolls to Nana Kwegya regarding Amanfokesedo lands and would not be subject to stamping. Such acknowledgements are not included in the listed documents in Schedule 1 of the Stamp Act, 2005, Act 689, as required to be stamped. Again, from the exhibit, it is clear that Nana Kwegya Enyinam signed the document. His name, as affixed on the document, is his signature. As was held in the case of International Rom Limited vrs. Vodafone Limited & Anor [2022] DLSC11719: “…a party can sign a document for the purposes of Section 161 of NRCD 323 by using his full name or his last name prefixed by some or all of his initials or using his initial and possibly, by using a pseudonym or a combination of letters and numbers providing always that whatever was used was inserted into the document in order to give and with the intention of giving authenticity to it.” As affixed on the document, the chief's name suffices as his signature for all intents and purposes. Perhaps the most significant objection raised to the exhibit is its lack of connection to the disputed land. The document is not referable to the disputed land. The 1st plaintiff is not claiming title to the whole of Amanfokesedo lands but a portion. Sefah’s land could not have been the whole of Amanfokesedo lands, but only a portion. The document per se does not indicate that the Sefah paid tolls in respect of the disputed land. Neither does it disclose that Amanfokesedo lands are stool lands, and for that matter, the disputed land is stool land. Under cross-examination, the 5th defendant admitted that the disputed land and the rest of the lands occupied by other families were on Amanfokesedo lands, which was under the jurisdiction of Yabiw. Flowing from this fact, the 2nd plaintiff’s counsel erroneously concluded that Yabiw Stool had oversight responsibility and control over Amanfokesedo lands. Counsel belonged to the school of thought, which held the view that the allodial title to lands in a traditional area with a stool occupant went with the stool. That principle of thought was dealt with in the case of Ameoda v. Pordier; Ameoda v. Forzi (Consolidated) [1967] G. L. R. 479, where Amissah J. A. in concurring with the judgment of Apaloo J. A. (as he then was) said: " … if the stool occupant has the responsibility for conducting the extra-territorial affairs in relation to land then the land is stool land. This may be so if the expression stool land is used in a loose sense denoting land under the jurisdiction of a particular stool. For land subject to a stool for the purposes of the conduct of extra-territorial affairs must at least be under the jurisdiction of that stool. But that is totally different from saying that the lands in question are stool lands in the other and more limited sense, namely, that the stool has proprietary rights in those lands. Jurisdictional interest of a stool in land may also carry with it a proprietary interest in the same land. But this cannot be an invariable consequence." The fact that the disputed land is at Amanfokesedo under the jurisdiction of Yabiw did not make it a stool land. A stool could have either jurisdictional interest, i.e. having responsibility for extra-territorial affairs relating to the land, or proprietary interest in its lands, i.e. exercising the allodial title over the land or have both interests. The fact that the disputed land operated under the jurisdiction of Yabiw did not automatically make it a stool land. In holding 1 of Annobil vrs. Obosu [1991] 1 GLR 383, it is stated thus: “When dealing with stool lands, a distinction should be drawn between the jurisdictional interest of a stool in land in the sense that the stool had responsibility for extra-territorial affairs relating to the land, and the stool's proprietary interest in the land. Hence, it was erroneous to assume that the allodial title to lands in a traditional area which had a stool necessarily vested in such a stool. The issue as to whether a particular piece of land was stool land in the sense that the stool had proprietary interest in it was determinable by the evidence led at the trial, and there was consequently no legal presumption that lands described as stool lands were proprietary possession of the stool". The stool may have jurisdictional interest in the disputed land given that it fell within the Yabiw paramountcy, but that did not mean that the stool had a proprietary interest in the land and was, therefore, the allodial owner. As the proprietor owner of Amanfokesodo lands, quite apart from the conveyance which the 2nd plaintiff claimed the stool granted to the 1st plaintiff’s family, there was no other evidence to show any alienation or interest the stool had carved out of its interest in the land both in the past and recent times to persons. Again, there was no indication that the stool received any payments from the Stool Land Secretariat regarding rents, dues, royalties etc., paid in connection with Amanfokesedo lands being stool land. Quite apart from PW1 and PW2, the 1st plaintiff’s witnesses, who have maintained that the family paid tolls to the predecessors of the 2nd plaintiff, the defendants and even PW3, a member of the Ekissi family (2nd plaintiff’s witness) have denied the payment of any such tolls to the stool. PW3 denied under cross- examination that his ancestors ever paid a token to the Yabiw chief. On the whole, given the parties' evidence, it is more probable than not that the disputed land is family and not stool land. The 2nd plaintiff failed to lead sufficient evidence to convince the court that the disputed land is stool land. That being the case, the 2nd plaintiff did not have the capacity to sue over land, which was family and not stool land. It is on record that the 1st plaintiff’s family presently possess the land. Op. Krampah is on the land. Our evidentiary rules presume ownership over property by the person who exercises acts of ownership over the thing. Section 48 of the Evidence Act, supra, states: “48 (1) The things which a person possesses are presumed to be owned by that person”. (2) A person who exercises acts of ownership over property is presumed to be the owner of it” Possession in law is possession in fact. It is often said that possession is nine points of the law, and a plaintiff in possession has a good title against the whole world except one with a better title. However, this is a rebuttable presumption which can be displaced with evidence to the contrary. It is not in dispute that Opanin Sefah, a member of the 1st plaintiff’s family, cultivated the land and, upon his death, was succeeded by Enyam Ne Ereye. In Enyam Ne Ereye’s lifetime, Krampah cultivated the disputed land. The 5th defendant explained that upon his family's return to cultivate the land after the Ashanti invasion, the family farmed on the land without any hindrances. In the reign of Nana Kweku Bedu as head of their family, he gave a portion of the disputed land to Op Sefah, his son-in-law, to cultivate for the betterment of their children. Op. Sefah was married to Maame Ama Appiah, a member of the defendants’ family. When Maame Ama Appiah died, her husband, Opanin Sefah, gave a portion of the land on which he had cultivated cocoa to his adult children to manage. The children, who by Akan custom belonged to the defendant’s family, cut down the cocoa and cultivated oil palm. Upon his death, Opanin Krampah, a nephew of Op Sefa, tried to take possession of the land, but the defendants resisted this attempt. When attempts at settling the dispute failed, the defendant’s family and the Ekissi family bounded on the north agreed to plant their boundary trees for identification purposes. Op. Krampah destroyed these trees, leading to the arbitration and the arbitral award favouring the defendants’ family. According to the 5th defendant, Op. Krampah did not go to the disputed land after the arbitration until 2010, when the 1st plaintiff instituted the present action. Their lawyer advised them not to engage in any altercation with Op. Krampah but should rather fight him in court, hence the presence of Krampah on the land. Indeed, the writ was issued as far back as 2010. The 5th defendant’s explanation for allowing Krampah to remain on the land since that period is very plausible. As the matter was in court, it was very prudent on their part to fight Op. Krampah in court and await the court's judgment. Thus, the 1st plaintiff’s possession of the land is not an acquiescence on the defendants’ part that the land belonged to the 1st plaintiff. In conclusion, the disputed land is family and not stool land. The arbitral award in favour of the defendants’ family regarding the ownership of the disputed land is binding on the 1st plaintiff. The arbitration proceedings culminating in the arbitral award, being a recent act concerning the disputed land, is consistent with the defendants’ evidence that the land is their family land. In the circumstances, the plaintiffs' claims are dismissed. The defendants are to recover possession of the disputed land. Additionally, the plaintiffs, their assigns, servants, privies, successors, family members, and all those claiming for or through them are restrained from interfering and disturbing the defendants in their quiet enjoyment of the disputed land. (SGD.) H/L AFIA N. ADU-AMANKWA (MRS.) JUSTICE OF THE HIGH COURT. COUNSELS Appiah Y. Agyei-Asiamah (holding Samuel E. Abakah’s brief) appears for the 1st Plaintiff. King David Addai appears for the 2nd Plaintiff. 30