OPANYIN KOFI KUM VRS EBUSUAPNYIN MICHAEL AHENAKWA MENSAH [2023] GHACA 162 (23 November 2023)

1 IN THE SUPERIOR COURT OF JUDICATURE, IN THE COURT OF APPEAL ACCRA: AD 2023 ANTHONY OPPONG JA (PRESIDING) CORAM: JEROME NOBLE NKRUMAH JA AFIA SERWAH ASARE-BOTWE (MRS.) JA SUIT NO. H1/86/2022 DATE: 23RD NOVEMBER, 2023 OPANYIN KOFI KUM ………… PLAINTIFF/RESPONDENT VRS. EBUSUAPNYIN MICHAEL AHENAKWA MENSAH…. DEFENDANT/APPELLANT JUDGMENT AFIA SERWAH ASARE-BOTWE (MRS.) JA This is an appeal from the Judgment of the High Court, Cape Coast, presided over by Her Ladyship Justice Malike Awo Woanyah Dey (Mrs) J, dated the 16th day of December, 2021. In this Judgment, the parties may, where the context so admits, be referred to as the “Plaintiff/Respondent”, or “Respondent” “Defendant/Appellant” or “Appellant” with the necessary qualifications or modifications. The Notice of Appeal was filed on the 11th of February, 2022 on the following grounds; 1. That the Judgment was against the weight of evidence adduced by the parties before the trial Court. 2. That further grounds will be filed upon receipt of the record of appeal. 2 On the record, no process, by way of additional grounds of appeal, was filed by the Appellant. THE BACKGROUND OF THE CASE/THE PLAINTIFF/RESPONDENT’S CLAIM: Before proceeding to deal with the necessary procedural and substantive issues in this matter, it would be prudent to set out the background of the action before the Court. The suit commenced by the issuance of a writ of summons and statement of claim on the 30th of March, 2020 in which was endorsed the following reliefs; a. A declaration that the lease agreement dated 11th November, 1967 between the Plaintiff and Mandaka Industries has expired. b. An order for the recovery of possession from the Defendant all that piece or parcel of land measuring 3.9 acres lying and situate at Atwima Elmina in the Central Region and more particularly described in the schedule herein. c. An order of perpetual injunction restraining the Defendant, their agents, assigns, workmen and privies, successors-in-title or anybody claiming through them from entering the disputed land or further development or doing anything on the land which is likely to affect the nature and character of the land and the quiet possession and enjoyment of the Plaintiff s family. d. An Order to eject the 2nd Defendant from the Plaintiff/Respondent’s land. e. An Order for rent assessment and for the Defendant to pay rent from November 2017 till date of final vacant vacation of the land. f. Mesne profit g. Cost including legal cost h. Any other relief (s) the Court may seem meet. The Schedule containing the description of the land is also relevant for our purposes and is reproduced hereunder; SCHEDULE 3 All that piece or parcel of land lying and situate at Atwima Elmina known as Atwima land containing an approximate area of 3.90 acres starting from A on a bearing point of 60.08 and a distance 290 ft. thence on a bearing of 178° 30’; and a distance 375 ft. thence on a bearing of 129° 00 and a distance of 220 ft. to pillar no. GCA.... Thence on a bearing of 119° and a distance of 190 ft. thence on a bearing 180° and distance of 90’ thence on a bearing 243° 15 and a total distance of 590 ft. to peg 9 and across the road from A to Dwichenum and on bearing of 335° 43 and a distance of 100ft, thence on a bearing of 326° and a distance of 90 ft. to point 6, thence on a bearing of 326° and a distance of 100ft to point 5, and a distance of 80 ft. thence on a bearing of 52° and a distance of 120 ft. to point 3, thence on a bearing of 29° and a distance of 170 ft. continuing on a bearing of 290.00 and a distance of 40 ft. to Road from A to Juanchemu thence on a bearing 346° and a distance of 260ft. to the point of commencement as aforesaid to “A” all bearings and distance mentioned are approximate ad measure both more or less. The land referred to herein edge PINK is bounded on the North West by Vendor’s land on the North East by Vendor’s land on the South East by Mr. K. A. Baidoo on the South West by Freemans and on the North West by Kobina Andoh lying being and situate at Atwima and more particularly shewn on the site plan attached therein. The basis of the Claim, the Respondent stated, is a 1967 fifty-year lease granted to Madaka Industries per the head lease, for the purpose of “their proposed salt industry”. According to the Plaintiff/Respondent, in 1982, Madaka Industries assigned the unexpired term of the lease to the late Madam Aba Amandzea Mehu. The Defendant/Appellant, per the claim, purported to have taken over the salt business of the late Madam Aba Amandzea Mehu whose tenure, going by the terms of the head lease and the assignment, expired in November 2017. 4 According to the Plaintiff/Respondent, despite the expiration of the lease (and the assignment), and due notices to the Defendant/Appellant, the latter has refused to yield vacant possession of the land, the subject-matter of the lease, thereby making it necessary to issue the writ which culminated in the Judgment in favour of the Plaintiff/Respondent that the Defendant/Appellant has appealed against. The Plaintiff/Respondent, in his reply to the Defendant/Appellant’s counterclaim, makes the case, succinctly put, that the land in dispute, and which is in the possession, occupation and control of the Defendant/Appellant is that which was leased by the Plaintiff/Respondent’s family to Madaka Industries. In those circumstances, the Nana Brempong Abaka of Bronyibima acting per its customary and lawful head, Ebusuapanyin Kojo Tandoh had no authority or capacity to dispose of or sell a parcel of land belonging to the Plaintiff/Respondent’s family including the Defendant/Appellant’s ancestor, Madam Aba Amandzea Mehu. THE CASE OF THE DEFENDANT/APPELLANT/APPELLANT The record (at page 5 of the ROA) shows that the Defendant/Appellant entered conditional appearance on the 9th of April, 2020. Not having taken any step within 14 days, the Defendant/Appellant, filed a statement of Defence and Counterclaim thereby making the appearance unconditional. The Defendant/Appellant in essence, denied the Plaintiff/Respondent’s claims in his defence. It is the case of the Defendant/Appellant, that although Madaka Industry acquired some land from the Plaintiff/Respondent’s family, that one is on which the current salt industry is being undertaken. It is the case of the Defendant/Appellant that Madaka Industry also acquired land from the Nana Brempong Abaka Family of Bronyibima which is the one being used for the salt industry. The Defence put up by the Defendant/Appellant, very simply, is that the land on which the Madam Aba Amandzea Mehu Family is mining salt was the land acquired by the Madaka Industry 5 from Nana Brempong Abaka of Bronyibima and not the land acquired from the Plaintiff/Respondent’s family. It is the case of the Defendant/Appellant that the land acquired from the Nana Brempong Abaka Family of Bronyibima was subsequently purchased outright in 2020. The Defendant/Appellant says that his family is not in possession, occupation or control of the area acquired by Madaka Industries from the Plaintiff/Respondent’s Family which was assigned to Madam Aba Amandzea Mehu. The Defendant/Appellant says that the land that his family owns and which he counterclaimed for in the Statement of Defence is described as; a. “[A]ll that piece or parcel of land situate, being and lying at Bronybima- Elmina the boundaries commencing from Pillar marked CP.9/457; the boundary runs on a bearing of 253 o 30 for a distance of 560'.0 feet to Pillar marked A. A. 1, thence on a bearing of 1 52 00 for a distance of 330’,0 feet to Pillar marked A. A.2; thence on a bearing of 203 o 00 for a distance of 183’.0 feet to Pillar marked A. A.3. thence on bearing of 189o 00 for a distance of 380’. 0 feet to Pillar marked A. A.4; thence on a bearing of 258o 00 for a distance of 300’ 0 feet to Pillar marked A. A.5; thence on a Bearing of 166o 00 for a distance of 140’.0 feet to pillar marked A. A.6; thence on bearing of 250o 00 for a distance of 320’ .0 feet to pillar marked A. A.7; thence on a bearing of 239o 00 for a distance of 330’ .0 feet to Pillar marked A. A.8: thence on a bearing of 44o 00 for a distance of 90'.0 feet to Pillar marked A. A.9; thence on a bearing of 170o 00 for a distance of 240' .0 feet to Pillar marked A. A.10; thence on a bearing of 340o 00 for a distance of 520'. 0 feet to Pillar marked A. A.11; thence on a bearing of 324 o 00 for a distance of 205'. 0 feet to Pillar marked A. A.12; thence on a bearing of 66o 00 for a distance of 270'.0 feet, to Pillar marked A. A.13;thence on a bearing of 71o 00 for a distance of 775' .0 feet to Pillar marked A. A.1; the point of commencement and containing an approximate AREA of 19.64 ACRE- 6 The Defendant/Appellant further counterclaimed for; b. An order of perpetual injunction restraining the Plaintiff, his agents, privies, workmen and all those claiming through him from interfering with the Defendant and his family’s quiet possession and enjoyment of the land described in relief (a). c. Costs incidental to the institution of the matter. d. Any other relief(s) that this Honourable Court may deem fit so to order under the circumstances. On 16th of December, 2022, the trial High Court gave judgment for the Plaintiff/Respondent and dismissed the counterclaim of the Defendant/Appellant. (ROA at pp. 171-193). ARGUMENTS IN SUPPORT OF THE APPEAL: The Defendant/Appellant’s omnibus ground of appeal, that the Judgment is against the weight of evidence, hinges on what he says is a failure of the Plaintiff/Respondent to establish the identity of the land he claims to have been the subject-matter of the 1967 lease to Mandaka Industries. The Defendant/Appellant rightly discusses the law in cases such as this, where the Appellant claims that the Judgment is against the weight of evidence. The case of IN RE AGYEIWAA v. P&T CORPORATION [2007-2008] 2 SCGLR 985 @ P.989 on an appeal being by way of rehearing and the duty of the appellate court to look at the entire record and satisfy itself that the conclusion of the trial court on the fact and the law is justified is properly cited. The other cases and principles properly cited and digested are those on what is required where an appellant alleges that the judgment is against the weight of evidence; 7 • ABBEY v. ANTWI [2010] SCGLR 17, • TUAKWA v. BOSOM [2001-2002] SCGLR 61 • THERESA OWUO v. FRANCIS OWUO [2017]DLSC 2400 (also reported in 2017-2018 1 SCLRG 730 (Adaare). The case of the Appellant, summed up, is that the Plaintiff/Respondent’s land that he claims is in extent 3.9 acres, but that the said land, on the evidence, was not established or proven to exist by the composite plan prepared by the Court-appointed surveyor, and that in those circumstances, the Judgment was erroneous as it stated that the Plaintiff/Respondent had been able to prove his claims. The Appellant points out portions of the evidence which he says corroborates his position that the Judgment is against the weight of evidence. Special mention must be made of the argument to the effect that there was nothing in the evidence of the court- appointed surveyor to merit the conclusion of the trial judge that “the Plaintiff is entitled to repossess the 3.9 acres of land depicted on the composite plan and hatched black as established by the evidence…” It is the case of the Appellant that that statement is not supported by the evidence on the record because the court-appointed surveyor’s testimony and report did not draw the conclusion that the Court did. ARGUMENTS AGAINST THE APPEAL The Plaintiff/Respondent on his part disagrees with the Defendant/Appellant and says that the Judgment of the Court was factually and legally meritorious. It is the case of the Respondent that it is a misstatement by the Defendant/Appellant that the Plaintiff/Respondent could not establish the identity of the 3.9 acres of land he claimed. The Respondent points to the finding of the Court that the Plaintiff/Respondent had met the evidential burden as far as the identity of the land is concerned. 8 It is further argued that there is abundant evidence on record to also show that the salt mining activities of the Appellant were being undertaken on the Respondent’s family land. This Court is accordingly asked to dismiss this appeal with heavy cost against the appellant. ON APPEALS GENERALLY AND THE DUTY OF THIS COURT: I. THE REHEARING MANDATE OF THE APPELLATE COURT With the Appellant contending that the judgment was against the weight of evidence, he has basically invited us in this court to evaluate the totality of the evidence on record by putting ourselves as Appellate judges in the shoes of the trial court to see if we would come to the same conclusion as the trial court. In other words, an appeal against a judgment on the ground that it was against the weight of evidence is an invitation to the court to take a second look at the evidence on record by means of an examination of the record to find out if the findings and conclusions of the trial Judge are supported by the evidence proffered at trial or the conclusions are perverse. The duty of this court with regard to the instant appeal was clearly stated in the case of BAKANA LTD. v. OSEI [2014] 77 G. M. J 76 (CA). The court held that since an appeal is by way of rehearing, it is for the Appellate court to comprehensively review the whole case by analyzing the entire record of appeal, taking into account the testimonies and all documentary evidence adduced at the trial, as are relevant, before arriving at a decision, so as to satisfy itself that on a preponderance pf probabilities, the judgement of the trial judge is reasonably or amply supported by the evidence on record or was not erroneous. 9 As stated above, as the Appellate Court, we are entitled to make up our own mind on the facts and to draw inferences from them to the same extent as the trial Court. See PRAKA v. KETEWA (1964) GLR 423 at 426, SC. In BONNEY v. BONNEY (1992-1993) GBR 779, Aikins JSC however cautioned that, despite an appeal being a rehearing, entitling the Appellate Court to make up its own mind on the facts and draw inferences from them, under no circumstances should an Appellate Court interfere with the findings of facts made by the trial Court except where they are clearly shown to be wrong, or that the Court did not take all the circumstances and evidence into account, or had misapprehended certain pieces of evidence or drawn wrong inferences without any evidence to support them, or has not taken proper advantage of having seen and heard the witnesses. In OTOO AND ANOTHER v. DWAMENA [2018-2019] 1 GLR 23 Pwamang JSC noted at page 28 as follows: “In this final appeal by the first Defendant, the sole ground of appeal is that the judgment is against the weight of the evidence. This ground of appeal is an invitation to the Court to comb through the record that was placed before the lower Court and decide for ourselves whether, having regard to the evidence and the law relevant for a determination of the case, the lower Court was right in its findings and conclusions.” See also OLIVIA ANIM v. WILLIAM DZANDZI (Unreported) Civil Appeal No. J4/10/2018 dated 6th June 2019, in which the Supreme Court held that: “Where an appeal is based on the ground that the judgment is against the weight of evidence, the Appellant implies that there were certain pieces of evidence on record which if applied in his favour could have changed the decision in his favour or pieces of evidence were wrongly applied against him. The onus is on such an Appellant to 10 clearly and properly demonstrate to the appellate Court the lapses in the judgment being appealed against.” II. STANDARD OF REVIEW AMOAH v. LOKKO & ALFRED QUARTEY, 32 GMJ 27 SC (2011) provides four particular instances which allow an appellate court to reach a contrary conclusion from that of a trial court: 1. “When the trial court had taken into account matters which were irrelevant in law; 2. When the trial court had excluded matters, which were critically necessary for consideration; 3. When the trial court had come to a conclusion which no court properly instructing itself would have reached; and 4. When the trial court’s findings were not proper inferences drawn from the facts.” Thus, there is a high standard of review needed to disrupt the High Court’s findings. A careful look at the grounds of appeal would reveal that the sole ground would be whether or not the Judgment of the Court below was justified given the evidence adduced before it. In other words, was the Judgment against the weight of the evidence or not? The approach would therefore be to assess the sole ground of appeal after which it will be determined if any or all of the other matters would require any further discussion. The entire argument of whether or not the conclusion of the Court below was right on the evidence, borders on whether it was proper with or without the survey report. 11 III. OPINION Whether the High Court reached the proper conclusion, thereby making the Judgment justified or otherwise; Undoubtedly, this ground seems to be the main contention of the Appellant in this appeal. In dealing with same, it is important for us to look closely at the evidence. The High Court was supposed to have assessed numerous pieces of evidence in the initial suit, such as witness statements by the witnesses on all sides and the cross- examination of each of them, the land documentation, and site plans from the plot of land in dispute. The following individuals provided witness statements before the High Court; a) The Plaintiff/Respondent’s lawful attorney, Patrick Victor Amissah; b) Ebusuapanyin Michael Henakwa Mensah (the Defendant/Appellant); c) Opanyin Kweku Akornu; d) Opanyin Ekow Odum. WITNESS STATEMENTS In his witness statement, the Plaintiff/Respondent’s lawful attorney, Patrick Victor Amissah, indicated that he testified on the authority of the Plaintiff/Respondent who is the Head of the Ebireayem Ebiradze Family of Atwima Elmina. The essence of the testimony, as had been set out in the statement of claim, bordering on the lease agreement of 11th November, 1967, between the Plaintiff/Respondent’s family and Madaka Industries for the purpose of establishing a salt processing company for a period of fifty (50) years, the assignment of the unexpired portion of the lease to the late Madam Aba Amandzea Mehu, and the subsequent succession of the Defendant/Appellant’s family after the death of the late Madam Aba Amandzea 12 Mehu and the failure to allow the Plaintiff/Respondent’s family to repossess the land after the expiration of the fifty-year lease. On his part, the Defendant/Appellant and his two witnesses insist, per the testimony and cross-examination, that the land in dispute, where the salt industry is, is not the one that was acquired per the 1967 lease. DOCUMENTS The documents in put forward by the Plaintiff/Respondent and which had no issues by way of objections are; a) Power of Attorney dated the 27th of June, 2020(Exhibit A); b) An Indenture evidencing the fifty-year lease dated the 11th of November, 1967 between the Abrekyim Abreadzi Family of Elmina, acting per its lawful Head Ebusuapanyin Ekow Awomia and “MADAKA INDUSTRIES” (Exhibit B); c) A deed of Assignment dated 9th July, 1982 between Madaka Industries and Aba Amandzea Mehu (Exhibit C); d) A notice of expiration of Lease Agreement dated 1st November, 2018 addressed to the Managing Director, Madaka Industries (Exhibit D); e) A reminder on the expiration notice (Exhibit D1); and f) Exhibit E series, being photographs. ANALYSIS OF THE JUDGMENT IN THE LIGHT OF THE EVIDENCE BEFORE THE COURT: The simple question to be determined is whether the Court’s conclusion was justified in the light of the evidence before it. In doing so, the bottom-line question to be resolved are; a) Whether the Plaintiff/Respondent was able to identify the land he claimed; and 13 b) Whether the survey report and composite plan corroborated the Plaintiff/Respondent’s claim. ON SUB-ISSUE (A) • Whether the Plaintiff/Respondent was able to identify the land he claimed There is no question, and same is not denied in essence, that in 1967, Madaka Industries was granted a fifty-year lease of a certain land by the Plaintiff/Respondent’s Family. It is also not denied that Madaka Industries, in 1982 assigned the unexpired term of the lease to the late Madam Aba Amandzea Mehu. At paragraph 3 of the statement of defence and counterclaim, the Defendant/Appellant states; “3. Defendant/Appellant denies paragraph 3 of the statement of claim save that he is aware that Madaka Industry acquired some lands from the Plaintiff/Respondent’s family and also from Nana Brempong Abaka of Bronyibima acting per its customary and Lawful Head Ebusuapanyin Kojo Tandoh. (Emphasis mine) In FORI v. AYIREBI [1966] GLR 627, SC, it was held at Holding 6 of the head notes; “When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact.” (See also: • TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-2006] SCGLR 882) • ASHANTI GOLDFIELDS CO. LTD. v. WESTCHESTER RESOURCES LTD. [2013] 56 GMJ 84 CA, 14 • HAMMOND v. AMUAH [1991] 1 GLR 89@91) In the circumstances of this case then, we find as a fact that in 1967, the Plaintiff/Respondent’s family granted a fifty-year lease of land to Madaka Industries whose unexpired term was assigned to Madam Aba Amandzea Mehu whose estate was taken over by the Defendant/Appellant. The point of departure from the pleadings and the evidence, is the Plaintiff/Respondent claiming the land in dispute is the subject-matter of the fifty-year lease while the Defendant/Appellant insists that the land on which the salt industry is being undertaken is not the land the subject-matter of the fifty-year head lease that Madaka Industries obtained from the Plaintiff/Respondent’s family in 1967. To lay the matter to rest, recourse will be had to the document that evidences the grant in 1967 and the description of the land as follows; All that piece or parcel of land lying and situate at Atwima Elmina known as Atwima land containing an approximate area of 3.90 acres starting from A on a bearing point of 60.08 and a distance 290 ft. thence on a bearing of 178° 30’; and a distance 375 ft. thence on a bearing of 129° 00 and a distance of 220 ft. to pillar no. GCA.... Thence on a bearing of 119° and a distance of 190 ft. thence on a bearing 180° and distance of 90’ thence on a bearing 243° 15 and a total distance of 590 ft. to peg 9 and across the road from A to Dwichenum and on bearing of 335° 43 and a distance of 100ft, thence on a bearing of 326° and a distance of 90 ft. to point 6, thence on a bearing of 326° and a distance of 100ft to point 5, and a distance of 80 ft. thence on a bearing of 52° and a distance of 120 ft. to point 3, thence on a bearing of 29° and a distance of 170 ft. continuing on a bearing of 290.00 and a distance of 40 ft. to Road from A to Juanchemu thence on a bearing 346° and a distance of 260ft. to the point of commencement as aforesaid to “A” all bearings and distance mentioned are approximate ad measure both more or less. 15 The land referred to herein edge PINK is bounded on the North West by Vendor’s land on the North East by Vendor’s land on the South East by Mr. K. A. Baidoo on the South West by Freemans and on the North West by Kobina Andoh lying being and situate at Atwima and more particularly shewn on the site plan attached therein It has been argued by the Appellant that the Judgment was against the weight of evidence and further that the Judgment of the Court was at variance with the expert evidence adduced by the Court Expert, the surveyor. In our view, although the trial judge was not bound to accept and endorse the surveyor’s report, she is required by law to ignore same based on legal reasons. On the proposition immediately above, please see MUSAH (NO.2) v. SACKEY (NO. 2) [2017-2020] 1 SCGLR 964 in which the court per Dotse JSC stated that “We have warned ourselves that we need not necessarily endorse the expert opinion of the surveyor if there are indeed any legal reasons why we should not. In this case, one cannot say, having studied the record and the Judgment, did not consider the survey report. In fact, she made copious references to the evidence of all the witnesses who alluded to the report, not only the Surveyor. Several questions were put to the witnesses on both sides which bordered on the findings of the surveyor which were rightly dealt with in the Judgment. We disagree with Counsel for the Appellant that the Judge did not properly appreciate the import of the expert evidence. In our view, the land the subject-matter of the fifty-year headlease is very well described and identified. The land is situated not at Bronyibima but at Atwima Elmina. A close study of the composite plan shows the road to Bronyibima to the South- East of the composite plan. (Please see page 132 of the ROA). One cannot ignore the fact that the Defendant/Appellant claims to have acquired the land in dispute from the Nana Brempong Abaka Family of Bronyibima. The land is described in the Statement of Defence and the evidence before the Court in part as “[A]ll that piece or parcel of land situate, being and lying at Bronybima-Elmina…” 16 A close study of the legend of the composite plan at page 132 of the record of appeal (the original of which was studied) would reveal that the land which was the subject- matter of the 1967 lease and 1982 sublease to be edged red. That there was land, admitted by the Defendant/Appellant to have been a subject- matter of a lease in favour of Madaka Industries, as discussed in the previous paragraphs, and the composite plan showing conformity with the Conveyance in favour of Madaka Industries in 1967 which was also the subject of the 1982 Assignment between Madaka Industires and Madam Ama Amandzea Mehu, it would only bear concluding that the Plaintiff/Respondent had sufficiently made his case. On the balance therefore, it was not enough for the Defendant/Appellant/Appellant to have stated that the land that was acquired in 1967 from the Plaintiff/Respondent’s family by Madaka Industries, which was the subject of assignment to Madam Ama Amadzea Mehu was used as a farm and that the land in dispute is that which was acquired from the Nana Brempong Abaka Family of Bronyibima. The Defendant/Appellant needed to have a better explanation for how the land acquired from the Plaintiff/Respondent/Respondent’s family, which was supposed to be under cultivation as a farm, happened to fall within the location of the land in dispute as far as the composite plan was concerned, particularly when the head lease was first in time. The Defendant/Appellant/Appellant also had the duty to prove that the land in dispute formed part of a larger tract of land which is or was for the Nana Brempong Abaka Family of Bronyibima which it granted to Madam Ama Amendzea Mehu. It was not enough to call a succession of witnesses, but to offer cogent evidence to that effect. After all, it is well-known that witnesses are weighed and not counted. In any case, it has also been held that certain conditions exist where a party relies on the title of a grantor over a wide area to substantiate his claim over a disputed land. 17 In NII AKRAMAH II AND OTHERS V. ROBERTSON (CONSOLIDATED) [1975]2GLR 301-337COURT OF APPEAL, (FULL BENCH), it was held that in order to assert that a piece of land was part of a larger tract of land, that larger tract must have been clearly defined, judicially ascertained and the court must be satisfied that the area of the alleged trespass was reduced into possession prior to the date of the trespass…. These conditions presupposed specific findings of fact, some based upon the credibility of witnesses. The essential steps of proof are; a) Establishing an impeccable root of title of his grantor over a defined and an identifiable area of land. b) Proving on a balance of probabilities that the area he claims falls within the area. See also CHANTEL v. KOI [2011] 29 GMJ 20 CA What should be the further proof be in such circumstances? These would be circumstances establishing acts of undisturbed possession of the Defendant/Appellant or his neighbours at the behest of the Nana Brempong Abaka Family of Bronyibima. It is not enough for members of the Nana Brempong Abaka Family to line up and corroborate each other that the land was theirs without more. In this case, there is no such evidence other than the bare assertions made by the Defendant/Appellant and his witnesses. The authorities are legion that once offered, the Court is to assess the evidence put forward by the parties and see whether they are each in conformity with the law and the evidence. Thus, in the case of CHANTEL v. KOI [2011] 29 GMJ 20 CA, it was held that at page 51 of the Report that one important principle that should guide the tribunal of fact in 18 determining the credibility of witnesses is the need to test the story of the witness as to its consistency with the probabilities that surround the currently existing conditions. In short, the test is whether the story of the witness is in harmony with the preponderance of probabilities which a practical and informed person would recognise as reasonable in those conditions. See also NTIRI &ANOR v. ESSIEN &ANOR [2001-2002] SCGLR 451, it was held that it is the trial court which determines the credibility of a witness. These include, the demeanour of the witness, the substance of his testimony, the existence or non- existence of any fact testified to by the witness etc. See also: • TAMAKLOE & PARTNERS UNLTD. v. GIHOC DISTELLERIES CO. LTD (SC) per Amegatcher JSC (Civil Appeal No. J4/70/2018 dated 3/7/2019 (available on the online portal dennislawgh as [2019] DLSC 6580; • AYEH & AKAKPO v. AYAA IDDRISU [2010] SCGLR 891 @ Holding 5; • AKUFO-ADDO v. CATHELINE [1992] 1 GLR 377 • ASAMOAH v. SETORDZI [1987-88] 1 GLR 67; In other words, do the stories of the witnesses (or the parties, as the case may be) make sense in the circumstances? Would the evidence offered actually prove the case being put forward before the court as a whole? In the TAMAKLOE & PARTNERS UNLTD case (cited supra), for instance, although minutes of a meeting had been offered in evidence to corroborate the fact alleged by the Plaintiff/Respondent that terms of service offered had been reached, a study of the minutes revealed that no such terms had been reached. In the same manner, in this case, one put on the balance as against the claims made by the Defendant/Appellant in the Court below, it is clear that the Plaintiff/Respondent 19 had a far weightier case and as such, the conclusions of the learned Judge in the Court below were justified. Having assessed the entire record and finding no substance in same, we hold that the appeal would fail in its entirety and same is accordingly dismissed. Costs of GHȼ20,000 against the Defendant/Appellant in favour of the Plaintiff/Respondent. SGD A. S. ASARE-BOTWE (MRS.) (JUSTICE OF APPEAL) SGD A. OPPONG (JUSTICE OF APPEAL) SGD J. NOBLE-NKRUMAH (JUSTICE OF APPEAL) COUNSEL: • DANIEL ARTHUR FOR DEFENDANT/APPELLANT • GODFRED ACHEAMPONG FOR PLANTIFF/RESPONDENT 19