EBUSUAPANYIN KOBINA TAWIAH & ANOTHER VRS EBUSUAPANYIN KOFI OTWE (:H1/45/2022) [2023] GHACA 188 (23 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA A. D. 2023 CORAM: JUSTICE SENYO DZAMEFE (MR.) J. A (PRESIDING) JUSTICE SOPHIA ROSETTA BERNASKO ESSAH (MRS.) J. A. JUSTICE GIFTY AGYEI ADDO (MRS.) J. A CIVIL APPEAL NO.:H1/45/2022 DATE: 23RD NOVEMBER, 2023 1. EBUSUAPANYIN KOBINA TAWIAH 2. OPANYIN YAW TEKYI - PLAINTIFFS/APPELLANT REPRESENTING MEMBERS OF THE SECTION OF THE DUBUA ANDO CLAN WHO BELONG TO THE KONA FAMILY C/O HOUSE NO. OD/67 ODUMASE BREMAN ESSIAM VRS DEFENDANT/RESPONDENT - EBUSUAPANYIN KOFI OTWE REPRESENTING THE SECTION OF THE DUBUA ANDO CLAN RESIDING AT BREMAN ESSIAM, BEDUM AND BENIN WHO BELONG TO THE NSONA FAMILY C/O HOUSE NO. B10 ODUMASE STREET BREMAN ESSIAM (PLAINTIFF TO DIRECT SERVICE) J U D G M E N T __________________________________________________________________ SOPHIA R. BERNASKO ESSAH (MRS) JA: This is an appeal by the Plaintiffs against the judgment of the High Court dated 29th July, 2021 in which the Court gave judgment in favour of the Defendant. The grounds of appeal are as follows: a. The judgment is against the weight of the evidence adduced at the trial. b. The trial judge erred when he held that the Plaintiffs failed to file reply and defence to counterclaim when same were filed on record. c. The learned trial judge improperly exercised his discretion when he denied the 1st plaintiff’s application to amend the defence to counterclaim thereby occasioning miscarriage of justice. d. The trial judge erred when he proceeded to conduct case management without taking directions upon the order for the trial de novo. e. The trial judge erred when he discharged 1st plaintiff’s attorney from the witness box upon objection being taken to only some paragraphs of the witness statement thereby occasioning miscarriage of justice. In this delivery we will maintain the designations the parties used in the trial Court. The Appellants are the Plaintiffs and the Respondent Defendant. A background to this appeal will put same in context. On the 12th of December, 1996 the 1st and 2nd Plaintiffs describing themselves as the Head and elder respectively of the Kona section of the Dubua Ando clan of Breman Essiam, instituted a suit against the Defendant described as Head of family of the Nsona section of the Dubua Ando clan of Breman Essiam, seeking the following reliefs: a. Declaration that the Nsona and Kona sections of the Dubua Ando clan of Breman Essiam, Benin, Bedum etc are all members of the same clan or wider family b. Declaration that both sections of the said Dubua Ando Clan or wider family enjoy rights to the immovable, movable and other legal, equitable and customary rights membership of the Dubua Ando wider family gives to all its members. c. An order for the defendants to render account of the stool, immovable and movable properties which they have held in trust for the Dubua Ando wider family during the past 10 years. d. Recovery of the portion of Dubua Ando properties due to the said Kona section of the wider family. e. General damages f. Perpetual injunction restraining the defendant their relatives servants, representatives, assigns from dealing with the properties of the Dubua Ando Clan wider family pending the determination of this action. Plaintiffs alleged that the two sections of the Dubua Ando clan have at all material times been members of the same wider family or clan enjoying equal rights and liabilities or obligations due to their membership of the said wider family. That the defendants Nsona family is now refusing to allow the Plaintiff’s section of the wider family to participate in the sharing of Dubua Ando family properties as a result of greed. The defendants have also refused to permit them to participate in the administration of the wider family affairs by preventing them from coming into the family palace of the wider family. They allege further that they have been denied enjoyment of their share of the family farms at Mbrofro Mfa-adwen, Ekupon. It is their case that the 2nd Plaintiff is being harassed by the Defendant to vacate a house he lives in with the excuse that the said house belongs to the ancestors of the Defendant’s section of Dubua Ando wider family. Additionally that the Defendant section of the wider family has mounted such oppressive attacks on the Plaintiffs section that unless they are restrained the family properties will be completely dissipated before the present suit is heard and determined. Defendant denied knowledge of any family called the Nsona Section of the Dubua Ando family/Clan of Breman Essiam. He traced the ancestry of the 1st Plaintiff and all members of the Kona family to one Kwame Ampong of Assin Edwa, a wood carver, who came to stay with the occupant of the Nsona Ancestral stool and Odikro of Denkyendua, the hometown of Nsona family, by name Nana Dwuboa Ando. Kwame Ampong then married defendant’s great grandmother called Amba Essilfua who was also the granddaughter of Nana Dwoboa Ando and they begat children. He later brought 2 young girls from Assin Edwa whom he introduced as relatives. In order however for Kwame Ampong to join the Nsona family as he wished, he was made to divorce his wife and perform necessary customary rites. According to defendant all the members of Kona Family of the 1st Plaintiff are the descendants of these 2 young girls. That although they lived at Denkyendua with the members of the Nsona Family they do not share inheritance with the real members of Nsona Family. It is Defendant’s case that the Plaintiff and his family were part of the Royal Benkum Nsona Family of Breman Essiam. That the said Benkum Nsona family of Breman Essiam, comprises three houses or sections, namely Royal Benkum Nsona Family of Breman Essiam; Royal Benkum Family of Bedum; Royal Benkum Nsona family of Bennin. That each of the 3 sections has its sectional head with the sectional head of Breman Essiam being the overall head of the 3 sections. He averred further that the sectional head of the Royal Nsona Family at Breman Essiam who was also the overall head of the Royal Benkum Nsona Famiy with its three composite sections was one Opanyin Kwame Asane alias Theophilus Asane Mensah (now deceased). According to the Defendant, during the life time of Theophilus Asane, the Plaintiff and his supports unilaterally declared him removed from his post as head of Royal Benkum Nsona Family on 22/2/85, and declared himself head of the Benkum Nsona Family of Breman Essiam. He alleged further that this act of the plaintiff was challenged in Court by his ancestors in a suit filed on 23/07/86 at Cape Coast titled Kwame Abudu Alias Kwame Odum Dawson & 2 Others vs, Opanyin Kobina Tawiah C. S. 95/86, wherein they pleaded that the Benkum Nsona Family of Breman Essiam own the Benkum stool of Breman Essaim and Lands attached to the stool. The defendants therein having failed to file a defence, Judgment in default of defence was obtained against them on 18th January, 1990. It is the Defendant’s case that, In the meantime, 1st Plaintiff and his members of the Kona family caused to be removed by violence all members of Nsona family from Denkyendua and took away properties belonging to members of the Nsona family living at Denkyedua. Pursuant to a report to the Police in Central Region, the 1st Plaintiff and his elders were arrested tried at the Regional Tribunal, Cape Coast where they were found guilty and imprisoned on various terms on 25th November, 1987. Upon their appeal to National Appeal Tribunal their guilt was confirmed on 16th February, 1989. Defendant alleged further that the Plaintiff’s herein’s section of the family broke away from the Benkum Nsona family and formed their own family called the Kona family with the 1st Plaintiff as their head. It is the case of Defendant that the disputed land/lands Mbofra Mfa- adwen lands and others form part of the land belonging to the Royal Benkum Nsona Family of Breman Essiam. Therefore the plaintiffs’ section having voluntarily broken away from the defendant’s family thereby separated themselves from the Royal Benkum Nsona Family of Breman Essiam, the family over which the Defendant is the Head of Family. That the Plaintiffs cannot claim any property, be it land or any other property which originally belongs to the Royal Benkum Nsona Family of Breman Essiam. The 2nd Plaintiff can also not have a right to continue living in a house which belongs to the Nsona Royal family of Breman Essiam. Regarding the Mbofra-Mfa-Adwen land, which they seek a declaration of title to, Defendant recanted the history of its acquisition by his ancestors in 1957. Defendant also stated that his ancestor, later conveyed a portion of the said Mbofra-mfa-Adwen land to one Kweku Bosu of Akumfi Essuehyia for the said Land to be cultivated and planted with cocoa trees under an Ebusa system which still subsists to date with the descendants of both parties. It is the further case of the defendant that with the passage of time, the Plaintiff and his kinsmen, forged the indenture covering the agreement between Kwame Annobil and Kweku Bosu over a portion of the Mbofra-Mfa-Adwen Land, and craftily deleted the word “Asona or Nsona” which in the original document described the clan of Kwame Annobil. They alleged further that the original Conveyance made by Kwame Annobil for Kweku Bosu over the Mbofra-Mfra-Adwen Lands got missing some time ago. That after lengthy and fruitless search for the document, the Police at Agona Swedru arrested the Plaintiff and his kinsmen in the process of forging thumb-prints on the document purported to be the original document. Plaintiff and his kinsmen were tried for forging the document at the Circuit Court, Cape Coast. They were nevertheless discharged of the criminal offence as the Court was of the view that, those who ought to have signed or thumb-printed the document did not do so as at the time of the arrest of the Plaintiff’s and their kinsmen. They allege that the original document of the Conveyance between Kwame Annobil and Kweku Bosu is still with the Plaintiff and it is by that document that they are laying false claim to the Land called Mbofra-Mfa-Adwen. Defendants then counterclaimed as follows: (1) A declaration of title to all that piece or parcel of Land called “Denkyendua” Mbofra- Mfa-Adwen situate and lying at Breman Essiam as belonging to the Benkum Royal Nsona Family of Breman Essiam. (2) (3) An order for the return of all documents, covering the Mbofra-Mfa-Adwen Lands which the Plaintiff’s surreptitiously have gained access to same. Recovery of possession of all properties including Lands, Stool properties etc. belonging to the Benkum Royal Nsona Family of Breman Essiam which have wrongly given Plaintiff and members of his Kona Family possession of Breman Essiam. Plaintiffs filed a Reply and defence to counterclaim joining issue with the Defendant and averring that the Defendant will be put to strict proof of the averments in their Statement of Defence and Counterclaim. Reference page 39 of ROA. At the end of the trial, the judge granted all the reliefs sought by the defendant in his counterclaim. The Plaintiffs were ordered to return all documents on the land in issue in their possession to the defendant forthwith and costs of GH₡20,000 awarded against the Plaintiff in favour of the Defendant. It is against this judgment that the Plaintiffs have appealed. Before determining the Grounds of Appeal, we note that Counsel for Defendant in his written submissions attached appendices marked as Appendix 1, 2, 3 & 4 to his written submissions. It is an attempt to adduce evidence through the written submissions. Judicial evidence must be by witnesses who before they testify must take an oath or affirmation that they will speak the truth. Statements made without such oath or affirmation are not considered evidence. Reference to Section 61 of Evidence Act 1975 (NRCD 323). The evidence sought to be adduced does not fall under any of the exceptions to the rule found in Section 62 (2) of the Courts Act, 1993 (Act 459) (Examination of Witnesses) , or Section 63 of NRCD 323. They are also not part of the Record of Appeal, and violate settled judicial practice. The same are therefore struck out. We also note that the Plaintiff did not provide any submissions in respect of Ground (d) and will deem same abandoned and so dismissed. As evident from the above grounds of appeal, Counsel for the Plaintiff has raised matters bordering on practice and procedure which arose before trial commenced and says these led to a miscarriage of justice. We will consider those first. Plaintiffs contend that the opportunity to lead evidence to merit a favorable judgment was taken away from them by the judge, when although the parties were present, struck out the suit for want of prosecution on the sole ground that the absence of counsel for Plaintiff showed that no serious efforts were being made by the Plaintiffs to prosecute the matter. Counsel for Defendant disagreed with the contention of the Plaintiffs. He blamed the indolence of the Plaintiffs and their lawyer for the order the Court made. He submitted that the Court in striking out the suit on 19th January, 2021, for want of prosecution commented that the matter had commenced as far back as 1996. According to Counsel for Defendant the history of the proceedings on record, shows that the Plaintiffs and his predecessors have shown little respect for compliance with orders of the Court. Though this point was not set down as a ground of appeal, yet since counsel for Defendant responded to it in their Written Submissions we will provide our opinion thereon. We do agree with Counsel for the Plaintiffs that a party must not suffer for the sins of his lawyer where the lawyer fails to turn up in Court or delays in appearing in court. By practice of the High Court, the import of striking out an action particularly for failure to prosecute as in this case is effectively to remove the action from the cause list. This could be re-listed upon application by the party against whom this is done. No rights are determined by the court when the Plaintiff’s case is stuck out for want of prosecution. Therefore an action struck out can always be restored. Darkwa vs Kwabi IV (1992-93) GBR 380 SC refers. As pointed out by Counsel for Defendant in response to the contention of Counsel for Plaintiff on this point and with which we agree, the Plaintiff and their counsel seemed to have accepted the striking out of the suit, in that, instead of seeking a re-listment, they rather filed a motion on notice on 12th February, 2021, for leave to file defence to counterclaim out of time, even though one had been filed by Counsel for Plaintiff as far back as 13th January, 1998. Upon the attention of Counsel for Plaintiffs being drawn to this he withdrew it and same was struck out by the trial Court as withdrawn. Reference Page 81 of ROA. Counsel for Plaintiffs then proceeded to file an application for leave to amend their reply and defence to counterclaim which was also refused by the court. Reference page 83 and 121 of ROA. Clearly the conduct of Plaintiff did not reflect one who was aggrieved that his case had been struck out. We hold that the Plaintiffs having slept on their rights cannot raise it at this point as a breach of natural justice or a miscarriage of justice on appeal. Counsel for Plaintiff’s Ground (c) of his grounds of Appeal is in respect of the refusal of the trial judge to allow for amendment of the Reply and Defence to counterclaim. He contends that the exercise of discretion by the court did not serve the interest of justice as by law required and occasioned miscarriage of justice. Further that the corollary of the act of the court was what led to the unjustified striking out of the entire witness statement of the Appellants lawful attorney. In response counsel for Defendant contended that the grant of leave to amend a pleading is at the discretion of the trial court which is exercised having regard to the circumstances of the case. He submits that the court exercised its discretion to deny an indolent litigant the right to amend his defence to their counterclaim filed as far back as 13th January, 1998. Now Order 16 Rule 5 (2) of CI 47 provides as follows: Amendment of writ or pleading with leave (2) Where an application to the Court for leave to make the amendment mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation has expired, the Court may nevertheless grant the leave in the circumstances mentioned in that application if it considers it just to do so. The Court grants an application to amend pleadings in the exercise of its discretion. In so doing, it considers the prejudice to either party if the application is refused or allowed. In granting an amendment or otherwise the Court considers the explanation why it is being made late. The explanation for its lateness is a matter for the applicant and is an important factor in the balancing exercise. The reason given by the Plaintiffs in their affidavit in support of the application is that the defence to the counterclaim that had been filed did not adequately address the issues raised in the defence. Reference Page 84 of ROA. This is not a good reason for delay and is indicative of sloppiness and lack of diligence. Although Courts are generally liberal in granting an amendment to pleadings, it cannot be claimed by a party as a matter of right. In this case, the reason given by the Trial Court for the refusal was that the matter had delayed too much. Reference Page 121 of ROA. This was a case which had been filed by the Plaintiff on 17th December, 1996. The Reply and defence to Counterclaim was filed on 13th January, 1998. It was on 16th March, 2021 that the Plaintiffs applied to file their amendment to the said process and the ruling delivered on 30th March, 2021. The Court Appeal is to assume that the Trial Court exercised its discretion in accordance with law. The principle of law is that, an Appeal Court will be loath to interfere with the exercise of discretion of the Trial Court unless there is a strong showing that the Trial Judge applied a wrong principle or it could be said that he reached a conclusion which would work manifest injustice. In the case of Crentsil Vs Crentsil (1992) 2 GLR 171 SC Reference Asibey Vs Ayisi 1973/ GLR 102; it was observed as follows: “as to appeals from this exercise of the Courts discretion, it is a rule of law deep rooted and well established that the Court of Appeal will not interfere with the exercise of the Courts discretion save in exceptional circumstances”. We do not find same in this case. If the Plaintiffs who were represented by Counsel were aggrieved by the refusal to grant amendment, they had the right of appeal. And by Rule 9(1) (a) of C1 19 they had 21 days to appeal. In our view, the Plaintiffs were the authors of their own misfortune when they waived their right to have their application reconsidered. They cannot now turn around and raise this as a ground for overturning the Trial Court’s decision. As was postulated in the case of Ndoley vs Iddrisu (1979) GLR 559 at 595, “no man should be permitted to take advantage of his own wrong.” We are unable to find merit in this ground of appeal, and dismiss same. We will now determine if the judgment was against the weight of evidence adduced at trial. It is therefore a call on us to rehear this appeal by analyzing the record of appeal, taking into account the testimonies and documentary evidence, as well as any other evidence adduced at the trial and arriving at a conclusion one way or the other. This is the import of the numerous decisions of this Court on the point. Notable among these are Tuakwa vs Bosom (2001-2002) SCGLR 61; Djin vs Musah (2007-2008) 1 SCGLR 686; Abbey & Others v. Antwi [2010] SCGLR 17 at 34. In the case of Djin v Musah Baako [2007-2008] SCGLR 686 the Supreme Court, per Aninakwah JSC (as he then was) opined that: “It has been held in several decided cases, and the authorities are many, that where an appellant complains that judgment is against the weight of evidence, then he is implying that there were certain pieces of evidence on the record which if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate Court the lapses in the judgment being appealed against.” Consequently, the burden on the Appellant in this case to properly set out, particularize, detail, specify and demonstrate the lapses, omissions, failures, misdirection, wrongful evaluations, irrelevant matters and considerations of the evidence complained about in the judgment cannot be over emphasized. Counsel for Plaintiff contends In respect of Ground (b) that the trial judge made a finding of fact that the Plaintiffs failed and or refused to file a reply and defence to a counterclaim when same was on the record. He contends that the failure to file a reply and or defence to a counterclaim is that the averments contained in the counterclaim or defence stand admitted and no evidence is required to establish same. That even though the Plaintiff’s writ had been struck out, there was a subsisting reply and defence to counterclaim. Thus if the judge said there was no such reply and defence to counterclaim then it means that same was not considered in the judgment and led to miscarriage of justice. Counsel for Defendant conceded that this was an error on the part of the Court. This Court also agrees that the Trial Court erred in its holding that there was no Reply and defence to Counterclaim filed when there was one on the record filed as far back as 13th January 1998. Indeed the Court itself had struck out as withdrawn the Plaintiffs application for leave to file Defence to Counterclaim on the basis that there was a subsisting Reply and Defence to Counterclaim on record. Again it was the very same Court which refused to grant leave to the Plaintiff to amend the said defence to counterclaim. It is trite that the rule regarding default of defence, (Order 13 of CI 47) summary judgment (Order 14 of CI 47) and the examination of judgment debtor (Order 46 of CI 47) apply mutatis mutandis to a defence to a counterclaim as if it were a statement of defence. Reference the case of Agbosu vs Kotey (2003-2004) 11SCGLR 420; Effiah IV vs Taiba II (2010) SCGLR 37. A failure to file a defence is an admission of the claim of the Defendant in the Counterclaim. See Order 11 R 13 (1) of C. I. 47 which provides: 13. (1) Subject to subrule (4) of this rule, any allegation of fact made by a party in the party's pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it.” Also, if a Counterclaim is not traversed or issues joined, then there is no need for the defendant to prove it. But in our reading of the record, as we perform our function as an appellate court, we do not see that this error of the court prejudiced the Plaintiff in any way. We say so on the basis of the following: firstly, even though the effect of failing to file a defence is an admission, the court nonetheless did not lower the evidential burden placed on a Defendant/Counterclaimant. The Court correctly stated the burden on a counterclaimant to prove, when on page 142 of the ROA, it said as follows in its judgment: “In this judgment as the defendant has put in a counter-claim, he assumes the same burden as if he is the plaintiff if he can succeed in terms of his counterclaim. This is because a counterclaim is a distinct and separate action on its own. See Osei vs Korang (2013- 2014) 1 SCGLR 221 per Ansah JSC as he then was. Also see Fiadzorgbe vs Kpogo (2015- 2016) SCGLR 1287. Now section 11 (4) of the Evidence Decree 1975 (NRCD 323) in civil cases such as the present one, puts the obligation of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude the existence of a fact was more probable than its non-existence. In brief that is the burden of proof always put on the Plaintiff to satisfy the court, on a balance of probabilities, in an action for declaration of title to the land. So in this case the Defendant must be able to make out a sufficient case against the Plaintiffs, otherwise his claims would be dismissed.” Secondly, the Plaintiffs were given the opportunity to put Defendant to strict proof of the averments in his Statement of Defence and Counterclaim as they had indicated they will do in their Reply and Defence to Counterclaim. They were at liberty to rigorously cross examine the Defendant as they chose in order to tilt the balance in their favour. We are of the respectful view that although the Trial Court wrongly said the Plaintiffs had not filed a defence to the Counterclaim even though they had, this did not occasion a miscarriage of justice. The Plaintiffs’ Counsel next contends that there was a miscarriage of justice during the taking of the evidence of the 1st Plaintiff on the 27th of July, 2021. In that the trial judge discharged the Plaintiffs lawful attorney and struck out his witness statement entirely simply because an objection was taken to some of the paragraphs contained in the said witness statement. Counsel for Plaintiff submits that the law is that the impugned paragraphs ought to have been struck out and not the entire witness statement. Thus the Court committed an error. Regarding this Ground, Counsel for Defendant contends that after the offending paragraphs of the witness statement of the Plaintiff were struck out without a response from counsel for the appellant, the remaining paragraphs could not prove anything or successfully challenge the case of the respondent. From our review of the ROA, we observe that on the 27th of July 2021, when the lawful attorney of 1st Plaintiff, John Adams, took the stand he sought to have his witness statement admitted as his evidence in chief. Reference Page 137 of ROA. Counsel for Defendant raised an objection to paragraphs 5-18, 22, 24 and 26 of the Witness statement on grounds that the said witness statement had introduced new sets of facts which were not pleaded. Reference page 138 of ROA. In effect Counsel for Defendant raised objection to 17 out of the 29 paragraph witness statement of the lawful Attorney of the Plaintiff. The record shows that Counsel for the Plaintiff arrived in court at that time and announced himself. In response to the objection his words were “I have no response to the objection.” The Court then having compared the said paragraphs to the Plaintiffs Reply and Defence to Counterclaim, came to the conclusion that the said paragraphs were not pleaded. The Court also stated that since the plaintiff’s claim had been struck out for want of prosecution he did not see the basis of his evidence in court and struck the entire witness statement out. The witness was then discharged. We are of the view that the Court rightly stated the position of the law when it held that the Plaintiff’s Statement of claim having been struck out there could not have been a Witness statement in respect of averments in his Statement of Claim. A witness statement is a written statement in a formal document setting out the facts that a witness is able to talk about. It contains the oral evidence which that person intends to rely on in relation to any issues of fact to be decided at the trial. Thus a witness statement covers only those issues, on which the party serving the statement wishes that witness to give evidence in chief. The Witness statement filed by the attorney of the Plaintiff, did not arise out of, or cover any issue to which he was to give evidence in chief. His statement of claim had been struck out and not restored, and the reply was a bare traverse. We are of the view that the court was therefore right in striking it out and no miscarriage of justice was occasioned. Before determining whether the Defendant is entitled to its counterclaim, as found by the Court we will rehash the oft repeated admonition to judges to give reasons for judgments they make. It is a component of justice for a party to a suit to know how their arguments have been answered by the judge and know whether they have a basis for appeal. In the case of Flannery vs Halifax Estate Agencies Lt (2000) 1 WLR 377 Henry LJ at page 381 stressed the need to give reasons as follows: “The duty (to give reasons) is a function of due process and therefore of justice. Its rational has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know whether the court has misdirected itself and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind (of the Judge); if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.” Also The Supreme Court of Canada eloquently put it as follows in its seminal decision in R v. Sheppard, 2002 SCC 26 at paragraph 22; “There is a general sense in which a duty to give reasons may be said to be owed to the public rather than to the parties to a specific proceeding. Through reasoned decisions, members of the general public become aware of rules of conduct applicable to their future activities. An awareness of the reasons for a rule often helps define its scope for those trying to comply with it. The development of the common law proceeds largely by reasoned analogy from established precedents to new situations”. [Emphasis Mine]. Additionally the requirement to give reasons serves a vital function in constraining the judiciary’s exercise of power. A reasoned judgment benefits the general public and helps develop the law. In this case we identify the judgment as terse and curt. The Court only said as follows: “In this action, we wish to say that we have taken the liberty to read through the proceedings on record time and again. We are satisfied and more particularly convinced that the Defendant has been able to lead evidence to substantiate his clams. We therefore enter judgment for the Defendant on all his reliefs claimed in this action. That is to say, reliefs 1, 2 and 3 as contained in the counter-claim embedded in his Statement of Defence filed on 3rd July, 1997. I order the Plaintiffs to return all the documents on the lands in issue in their possession to the Defendant forthwith. The brevity of the judgment notwithstanding, we will as a rehearing Court, evaluate the evidence adduced before the Trial Court, and determine whether the defendant was entitled to their counterclaim as found by the trial court. The Defendant seeks a declaration of title to all that piece or parcel of Land called “Denkyendua” Mbofra-Mfa-Adwen situate and lying at Breman Essiam as belonging to the Benkum Royal Nsona Family of Breman Essiam. They are therefore required to, on a proof by a preponderance or probabilities, establish that they have title to the property. The legal authorities are clear beyond any dispute the evidential duty cast on a party in a land case who makes a claim for declaration of title. Some of the cases worth attention on the issue are Mondial Veneer Ghana Ltd vrs Amuah Gyebu (2011) 1SCGLR466, Abbey vrs Antwi (2010) SCGLR 17, Ackah vrs Pergah Transport Ltd (2010) SCGLR 728, Takoradi Flour Mills vrs Samir Faris (2005-2006) SCGLR 882 and these will have to be read within the Evidence Act, 1975 NRCD 323 particularly Sections 11, 12 and the shifting of the duty as recognized by Section 14. All read and understood the end will be whether a party on whom the duty to prove an issue, as disclosed in the pleadings, has led sufficient evidence on the probabilities for a finding to be made in his favour that the fact he alleged exists. In respect to land the Supreme court case of Mondial Veneer Ghana Ltd(supra) demands from a party seeking declaration of title to prove his root of title, his mode of acquisition and various acts of possession he may have exercised over the disputed land. From the record, there doesn’t appear to be any dispute between the parties of the boundaries of the land in issue. Therefore there is no need to require proof of same. In the case of Ashalley Botwe Lands [2003-2004] SCGLR 420, the Supreme Court in holding 4 held as follows: “Although the general principle that a claim for declaration of title or an order for injunction should always fail if the Plaintiff failed to establish positively the identity of the land claimed with the land in dispute was sound law, its application was not mandatory where the identity or boundaries of the land claimed was undisputed. That settled we will proceed with the other requirements which must be established by a party seeking the relief of a declaration of title to land. What evidence was put before the trial judge and was he justified in coming to the decision he delivered to the parties? In proving their root of title the defendants gave the traditional history or evidence in paragraphs 43 to 49 of their Statement of Defence found on page 25 of the ROA. According to them Mbofra-Mfa-Adwen was purchased by the Defendant’s grand-father Kwame Annobil of the Royal Nsona Family of Breman Essiam by way of a conveyance from Nana Obu II Mankrado of Breman Essiam in 1957 over a piece or parcel of Land called Okum-dzi-Tsi concession. The land was subsequently re-named Mbofra-mfa- Adwen by his grandfather. That the said concessionary grant of the Land was a subject of Concession Equiry No. 2438 (Cape Coast)same of which was filed in the then Supreme Court of the Gold Coast Central Province Judicial Division Concessions Division Land Court, Cape Coast on the 11th day of May, 1951. Notice of the said Concession was published under section 8 of Ordinance Concession Enquiry No. 2438, in the Supreme Court of the Gold Coast. That in 1960, his Grandfather Opanyin Kwami Annobil, conveyed a portion of the said Mbofra-mfa-Adwen to the Kweku Bosu of Akumfi Essuehyia for the said Land to be cultivated and planted with cocoa trees for Ebusa system. This arrangement over a portion of Mbofra-mfa-Adwen land entered into by the Defendant’s grand-father viz Kwame Annobil with Kweku Bosu of Ekumfi Essuehya, is still subsisting albeit to the Defendant in accordance with the Ebusa Arrangement. This Statement of Defence was filed on 3rd July, 1997. And in response filed on 3th January, 1998, the Plaintiff only joined issue with the averments in the Statement of Defence and said that the 56 paragraphs of the Statement of Defence and the 3 paragraphs counterclaim merely seek to confuse the fact that the Plaintiff’s and the Defendant belong to the same family and the Defendant will be put to the strictest proof of the averments in the Statement of Defence and Counterclaim. But the Plaintiff did not challenge the Defendants evidence of the traditional history during cross examination. A party who omits to cross examine a witness on a vital testimony of such witness is deemed to have accepted the veracity of the testimony and further evidence would not be required on the issue. Same must be accepted by the Court. The cases of Ghana Ports And Harbours vs Nova Complex (2007-2008) SCGLR 806; Quagraine vs Adams (1981) GLR 599; Wiafe vs. Kom (1973) 1 GLR 240; Akyea Djamson vs Duagbor (1989-90) 1 GLR 223. TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882 relied on. We will say that by the nature of the Defendant’s account and specificity of the history, as well as the failure of the Plaintiffs to challenge it when given the opportunity at cross examination, we have no reason to doubt that this is an accurate recount of the history and tradition of the said land and the root of title claimed by the defendants. Plaintiffs did not also challenge during Cross examination the averment of the defendant that the arrangement by which payment is being made to Defendant for the portions of land given out by the Defendant’s ancestors under Ebusa arrangement subsists. Ebusa arrangements with a tenant is an act of control and ownership of the land, and satisfies the requirement of possession needed to prove a claim to a declaration of title. It also demonstrates ownership and possessory rights of the Defendant to the land. We also take cognizance of the fact that members of the Plaintiffs section were on 25th November, 1987 found guilty by a Tribunal sitting in the Central Region, of entering the land of the Nsona and looting and stealing and damaging property belonging to the former. Reference page 102 of ROA. The Court was clear that it was the accused persons who had come to the Defendant’s property and stolen things that belong to the Defendant. The tribunal in providing the brief facts of the case stated as follows: “The brief facts are that the complainants are members of the Asona family while the accused are Akonas and all come from Breman Essiam. The complainants allotted certain portions of their land to tenant farmers. The power to allot portions of their land to tenant farmers is a demonstration of possession and ownership of the person allotting. The Tribunal also held that the stolen cocoa beans were found to belong to the Defendant. “The accused then looted the properties of the complainants including 16 bags of cocoa beans and set the complainants village ablaze.” This finding further emphasizes the possession of the land by the defendant. It is significant that although the accused persons appealed against the conviction and sentence, it was only the sentence which was varied by reduction, the conviction was maintained. Reference page 69 of ROA. Further evidence of ownership of the land in dispute is in respect of a suit initiated by the ancestors of Defendant against the 1st Plaintiff on 23rd July, 1986 (page 111 of & 112 of the ROA). In that suit titled Kwame Abudu Alias Kwame Odum Dawson & 2 Others vs, Opanyin Kobina Tawiah C. S. 95/86, the Plaintiffs therein sought Declarations that Defendant therein is not the overall head of the Royal Benkum Nsona family of Breman Essiam.; that it is wrongful for the defendant to hold himself out as the overall head of the Royal Benkum Nsona family of Breman Essiam; Interlocutory injunction restraining the Defendant from holding himself out as the overall head of the Royal Benkum Nsona family of Breman Essiam. In granting judgment in default of defence against the Defendant, the court stated that the Plaintiffs had come to Court to lead evidence for final judgment. That after the evidence had been duly taken and the Court not doubting the veracity of the claim, found same proven and granted the reliefs sought by the Plaintiffs there in. There is no evidence that this judgment was set aside or appealed against. The said judgment, having declared that Defendant therein is not the overall head of Royal Benkum Nsona family of Breman Essiam, then since the Head is the custodian of the family property, Plaintiffs herein and their Kona section cannot be entitled to property of the said Royal Benkum Nsona family of Breman Essiam. A person claiming title may prove same by either traditional evidence or by overt acts of ownership in respect of the land in dispute. Reference the case of YEHANS INTERNATIONAL LTD. V MRTEY TSURU FAMILY AND 1 OTHER [2018] DLSC 2488, wherein the Supreme Court per Adinyira JSC held: “It is settled that a person claiming title has to prove; i) his root of title, ii) mode of acquisition and iii) various acts of possession over the land……. This can be proved by either traditional evidence or by overt acts of ownership in respect of the land in dispute. Even though the plaintiffs had in their Reply and Defence to counterclaim averred that they will put the defendant to strict proof of the reliefs sought in their counterclaim, they failed to cross examine on the Defendant’s testimony regarding their root of title and evidence of possession. Rather they cross examined the defendant and his witnesses on their testimony that the Plaintiffs broke away from the Nsona family. In their submissions to the court they contended that the only reason for the counterclaim, which is for a declaration of title to the Mbora Mfa-adwen lands is that Plaintiffs are no longer part of the larger family of the Nsona and cannot be allowed to possess the said lands. Yet no concrete evidence was led to demonstrate that the Plaintiffs had broken away from the said family. That even though the Defendants during cross examination mentioned some persons, being Kobina Tawiah, Yaw Takyi and Kobina Ahunu as witnesses to the said break away these persons were not called upon to testify in corroboration of Defendants averments and failed to give the reasons for not presenting these individuals witnesses. They contended that, the omission to call such personalities is fatal and a clear indication that the claims of the Defendants are baseless and unfounded. In response Counsel for Defendants countered that Defendants could not have been expected to call these persons because Kobina Tawiah, and Yaw Takyi were Plaintiffs in the instant suit. Further that in the Plaintiff’s proposed Amended Defence to Counterclaim, he had admitted that the Kona family had separated and broken away from the family. Having reviewed the Record of appeal, we are in no doubt that the Plaintiffs did break away from the defendant. The Defendant as head of family testified during cross examination that Plaintiff broke away from the Royal Nsona Family in 1984. That the Plaintiffs had broken away was confirmed by two witnesses of the Defendant being Ebusuapanyin Kwesi Amonoo in his witness statement and in response during cross examination and Kofi Entsir in his witness statement. Also during cross examination of the Defendant he specified the names of the persons whom he said were present during the break away. Defendant named three persons as persons who were present when the break away took place being Kobina Tawiah, Kobina Ahunu and Yaw Takyi. The 1st and 2nd named persons, are the 1st and 2nd Plaintiffs in the instant suit as well as being the 2nd and 3rd Accused persons, whilst the 3rd person named is the 13th accused person. These persons were found guilty, convicted and sentenced to various terms for conspiracy and stealing of the Defendant’s properties on 6th October, 1986. On appeal the sentence only was reduced. Reference Page 100 to 109 of the ROA. Obviously these persons could not have been called as witnesses by the Defendant in proof of the break away by Defendant as counsel for Plaintiffs suggested in his submissions. The Defendant insisted that the family from which the Plaintiffs broke away was the Royal Nsona Family of Breman Essiam and not any Dabua Ando family, the existence of which they did not know. We are persuaded by the evidence of the Defendant on the balance of the probabilities that the Plaintiffs did break away from the Defendant Royal Nsona Family of Breman Essiam. We are satisfied that the Defendants have discharged the evidential burden on them in accordance with the standard required at law and are entitled to a declaration of title to said land as held by the Trial Court. Regarding the 2nd and 3rd Counterclaims. Counsel for Plaintiffs contends that the 2nd counterclaim indicates that at all material times the Plaintiffs exercised control over the said lands hence their possession of all documents covering the said land. That the Defendants failed to prove fraud against the Plaintiff in respect of the documents. We do agree that the defendants failed to establish fraud against Plaintiffs as they alleged. Yet this Court having been satisfied that the Defendant is entitled to a declaration of title to the said land, the obvious corollary is that they are entitled to all documents on the land. Additionally, they are entitled to all properties including Lands, Stool properties etc. belonging to the Benkum Royal Nsona Family of Breman Essiam which are in the hands of the Plaintiffs. We have carefully evaluated the evidence on record, and the proceedings that culminated in the determination of the decision in favour of the Defendant and conclude that the plaintiffs have failed to satisfy us that the judgment is against the evidence adduced at trial. This appeal has no merit and dismiss it. Costs of GH₡20,000.00 awarded in favour of Defendant/Respondent. SGD. …………………………………………………… JUSTICE SOPHIA ROSETTA BERNASKO ESSAH (MRS) (JUSTICE OF THE COURT OF APPEAL) I AGREE ……………………………………… SENYO DZAMEFE, J. A (JUSTICE OF THE COURT OF APPEAL) SGD. SGD. I ALSO AGREE ………………………………………. GIFTY AGYEI ADDO, J. A (JUSTICE OF THE COURT OF APPEAL) COUNSEL: KOFI AMPAH FOR THE PLAINTIFFS/APPELLANT SOLOMON GYESI FOR DEFENDANT/RESPONDENT 22