SALIAH VRS OKAI (UW/WA DC/ A1/03/2020) [2023] GHADC 1247 (21 November 2023)

IN THE DISTRICT COURT, WA. HELD ON TUESDAY, 21ST DAY OF NOVEMBER, 2023 BEFORE HIS WORSHIP, MAXWELL M. TITRIKU DISTRICT MAGISTRATE. SUIT No: UW/WA DC/ A1/03/2020 TUNSUNG MOHAMMED SALIAH ........................ PLAINTIFF KPAGURI RESIDENTIAL AREA, BLOCK 184, WA V DAN RAYNOLD OKAI ......................... DEFENDANT PLAINTIFF PRESENT DEFENDANT PRESENT PLAINTIFF UNREPRESENTED CLEMENT ELEDI, ESQ., FOR DEFENDANT. JUDGMENT The Plaintiff, on 13/12/2019, filed an amended writ of summons against the Defendant, and claimed for: i. Declaration of title to all that Unnumbered parcel of land situate and lying at a place commonly known and called Chorkor Residential Area and falls within the family lands of the Sampieyiri Family of Kambali, Wa. ii. Recovery of possession of the said unnumbered piece of land iii. General Damages against the Defendant for trespass iv. An order of Perpetual Injunction restraining the Defendant, either by himself, agents, servants, workmen and assigns, representatives, relatives, and/or persons acting through him or on his behalf or derive his/her interest, title from him or in anyway dealing with and/or having anything to do on the said parcel of land or obstructing the use of same by the Plaintiff and/or doing anything at all with the aim of denying the Plaintiff access and/or enjoyment of same. v. Costs including legal fees. Upon receipt of the Writ of Summons, Defendant however Counter-Claimed (filed on 04/10/2019) for the following reliefs: i. ii. Declaration of title to plot No. 88, Block “E”, Chorkor Residential Area, Assessed value of the part of the Defendant’s building unlawfully demolished by the Plaintiff iii. Perpetual Injunction restraining the Plaintiff whether by himself, agents, assigns, workmen, successors, etc. from interfering with Defendant’s quite enjoyment of the land in dispute. iv. A Declaration that, the Plaintiff caused the Lands Commission to unlawfully register the plot in dispute for which reason, the Lands Commission should be ordered to cancel the lease document of the Plaintiff and expunge same from their records. v. Any other relief(s) as the Court deems fit. CASE FOR THE PLAINTIFF In his evidence-in-chief, the Plaintiff (Tunsung Mohammed Saliah), a Teacher, resident at Kpaguri, a section of Wa in the Upper West Region. He said, he got to know the Defendant in this case, at the time the Defendant trespassed onto his land, the subject matter in dispute. According to him, the land in dispute is unnumbered plot of land with an approximate area of 0.37 acres or 015 hectors and situate at a place commonly known and called Chokor Residential Area in the Wa Municipality with boundaries whereof commencing at pillar no. SGUWC064 16 3 on a bearing of 1350.01’ measuring a distance of 1527.1feet from survey pillar No. SG GRN 09 WA 2, this be is bearing together with all further bearing hereinafter mentioned is referred to meridians 1’’ West longitude thence on a bearing of 179.53 measuring a distance of 149.2 feet to pillar no. SGUW C064 16 4, thence on a bearing of 265.30’ measuring a distance of 100.2 feet to pillar no. SGUW C064 16 1, thence on a bearing of 355.47 measuring a distance of 156.2 feet to pillar no. SGUW C064 16 2, thence on a bearing of 089.23 measuring a distance of 111.0 feet to pillar as more particularly delineated on plan of land attached hereto and thereon shown edges pink. Plaintiff further stated that, the land in dispute is his personal property, and it shares common boundary with one Mr. Robert Tierikoro’s house to the West, a house owned by one lady, who is a Teacher to the East, and an undeveloped land to the North, while to the South there is a road. He said, on 15th November, 2016, he (Plaintiff) was informed by one Mr. Seidu Yakubu that, there was a parcel of land for sale by the Head of Sampieyiri Family, which he expressed his interest in buying same, and later, the said Seidu Yakubu led him to one Abu Suglo, a member of the Sampieyiri family, who on the instruction of the Head of family led him (Plaintiff) in the company of a Surveyor called, Mr. Mohammed Borgupaa to the parcel of land for inspection and demarcation of same. He said, when they got on to the said land and upon seeing same, he confirmed his interest in buying it, and the survey was then done by the Surveyor, and he later made a search (Exhibit “E”) at the Survey & Mapping Division of Lands Commission, Wa to ensure that the land was not encumbered in anyway. He said, before then he (Plaintiff) made his own enquiries around the area and it was confirmed that, the said land belonged to the Sampieyiri family, and not encumbered. According to the Plaintiff, he was later led by Mr. Abu Suglo to Mr. Boori Jatoe, Head of Sampieyiri Family for negotiation on the purchase price of the said land, and after agreeing to all terms and conditions, he (Plaintiff) paid an amount of Ten Thousand Ghana Cedis (GH¢10,000.00) to the Head of Sampieyiri family, for the plot of land measuring 111.0 feet x 100.2 feet. He said, the payment was done on condition that, a formal indenture be executed evidencing the grant, and on 10th November, 2016, a site plan was prepared by the Survey & Mapping Division of Lands Commission, Wa, and on 11th November, 2016 the Sampieyiri family acting through its lawful representatives and head of family finally executed a Lease (Exhibit “A”) in his (Plaintiff’s) name/favour in respect to the land in dispute pursuant to their earlier agreement, which he duly registered at the Lands Commission, Wa, and same plotted with Registration number , UW/7506 and Serial No. 72/12 (Exhibit “B”). He said, he then took possession of the said land, and on 15th November, 2016, he deposited two (2) trips of sand and one (1) trip of stones on the plot of land in dispute without any complaint or objection from any one. Plaintiff further stated that, he thereafter hired a bulldozer to clear the said plot of land, and further heaped four (4) trips of sand and molded three thousand (3,000) blocks and deposited same on the land in dispute. He said, it was until 8th August, 2017 when he noticed that, someone had started digging foundation on his land, and when he enquired, he was told that, it is the Defendant who unlawfully trespassed on to the land. he said, upon receiving the information, he confronted the Defendant and warned him to stay off his land, but the Defendant ignored his warning and went ahead with the development of the land (Exhibit “C”), at the time he (Plaintiff) was in Bawku, his current station as a Teacher. He said, he then reported Defendant’s conduct to his grantor, the Sampieyiri family, who invited him (Plaintiff) and the Defendant in September, 2017, where they were advised to stop further development on the land until the matter is resolved, but the Defendant failed to heed to the advice and continued the development on the land, as such, in February, 2018, he (Plaintiff) made an official complaint to the Ghana Police on Defendant’s unlawful conduct. He said, he led Police to the scene, where Police sacked the masons and the labourers and seized their working tools, and warned them to stay away from the land, but despite all these warnings issued, Defendant continued his development on the land (Exhibits D & D1). According to the Plaintiff, a search (Exhibit “E”) conducted from the Lands Commission, Wa revealed that, the only encumbrance on the land in dispute is the Lease executed by the Sampieyiri family in his (Plaintiff’s) favour. He said, the Defendant adopted dubious and unethical means and went to the Circuit Court and Lands Commission, Wa, to have his Lease cancelled. He said, it is not true that, the Defendant bought the said plot of land from Ali Kankoha in 2008, since the said Ali Kankoha died in 2007, and was never the head of the Sampieyiri Family during his life time. He said, he denied Defendant’s claim that, there were wooden structure, sand, stones and a mango tree on the land, rather, the land was bare when he (Plaintiff) acquired it and the only tree that was on the land was Dawadawa tree, not a Mango tree, and that, he (Plaintiff) did not acquired the said land in dispute from Abu Suglo as alleged by the Defendant in paragraph 7 of his evidence- in-chief, but Abu Suglo only witnessed the Lease as one of the principal members of the Sampieyiri family after Abu Suglo led him (Plaintiff) to the Head of Family to purchase the said plot of land. End of Evidence. Cross-Examination of Plaintiff by Counsel for the Defendant: Q: Where was Exhibit “A” prepared? A: To the best of my knowledge, it is prepared at the Lands Commission. Q: At the time Boore Jatoe was alleged to have thumb printed Exhibit “A”, were you present? A: No. Q: So, therefore, you are not in the position to say whether the thumb print of Boore Jatoe is indeed his thumb print? A: I am not certain. I was not present, after I signed Exhibit “A”, it was taken to the family, and I was told it would be returned to me after they have signed it. Q: So, from your evidence, I am right to say that, you never personally, went to Boore Jatoe in respect to this case? A: It is not true, I went to him to negotiate the price of the plot of land in dispute. I also met him when Land Commission confirmed that, the plot of land in dispute was vacant. I again met him to make payment for the plot of land in dispute. Q: When the problem arose between you and the Defendant, you met some members of the Sampieyiri family to try and resolve the issue? A: Yes, we met a number of persons. Q: And these meetings were after the death of Boore Jatoe? A: Yes Q: And you remember at the meeting, the Sampieyiri family confirmed that, Ali Kankoha was a member of Sampieyiri family? A: Yes. Q: The Defendant produced a Statutory Declaration declared to, by Ali Kankoha? A: Yes Q: The Defendant also provide a Notice of Allocation of Land from Wala Traditional Council? A: Yes Q: But those documents were executed on 13/10/2008 and 04/11/2006 respectively? A: Yes. Q: In 2008, you had not acquired the land in dispute? A: Yes Q: Do you have problem with the two documents? A: I do. In respect to the Statutory Declaration, I have noticed an insertion of the date, 03/10/2008. The insertion is hand written. I expected to see if the Court in the Statutory Declaration making the document authentic. In respect to the Notice of Allocation of land, I have noticed the initials of one Peter Salia stated ‘as former owner’ in the document. From my own investigation, Peter Salia is not a member of the grantor’s family. I have also noticed one signature for two distinctive persons on the document, one is for the Registrar, the same signature is endorsed for Wa Naa. Q: The signature of Wa Naa is signed for? A: Yes, it is. Q: According to your evidence in paragraph 17, you only conducted a search at the Lands Commission which showed that, the land in dispute was not encroached? A: Yes Q: Are you aware that, the Defendant has since executed a lease with the Sampieyiri family, represented by Dumba Kpienyenge for the land in dispute? A: Not true. Q: I am suggesting to you that, plot no. 88, Block “E”, Chorkor Residential Area was duly acquired by the Defendant? A: Not true. Q: I am suggesting to you further that, one Ali Konkoha, now deceased made a grant of plot no. 88, Block “E”, Chorkor Residential Area to the Defendant.? A: Not true. Thereafter, Plaintiff called Two (2) Witnesses: PW1 In his evidence-in-chief, PW1 (Abu Suglo), a Tailor, resident at Kambali in the Wa Municipality, who described himself as a principal member of the Sampieyiri family stated that, he knew the parties in this suit. According to him, he got to know Plaintiff when one Seidu Yakubu brought him (Plaintiff) to him that, he (Plaintiff) was interested in buying the land in dispute after he told the said Seidu Yakubu of his family’s desire to sell the said land in 2016. He said, he got to know the Defendant after he (Defendant) unlawfully entered upon the land in dispute, which resulted in a dispute between the parties. He said, sometime in 2016, at the time the Sampieyiri family was in pressing need for money to solve an urgent family issue, the head of family of the Sampieyiri, Boore Jatoe asked him and his brother, Abakona Mumuni to look for a prospective buyer to buy their family’s vacant and unnumbered plot of land situate at a place commonly known and called Chorkor Residential Area in the Wa Municipality. He said, the Plaintiff subsequently approached their family to show his interest in buying the plot of land in issue, and upon instructions from the head of family, he (PW1) then led Plaintiff in the company of a Surveyor to inspect and demarcate the said plot of land in issue. The witness (PW1) further stated that, the Plaintiff paid an amount of Ten Thousand Ghana Cedis (GH¢10,000.00) as the purchase price for the plot of land in dispute, and the family thereafter granted Plaintiff possession of the said plot of land in dispute, and commenced the preparation of the Site Plan and a Lease for 99years term in the land as agreed between the Plaintiff and the Sampieyiri family. He said, on 11th day of November, 2016, a Lease was prepared and after same was read and explained to the head of family in the presence of Plaintiff, Abakona Mumuni and he (PW1), where the then Head of Sampieyiri family endorsed the said lease, which they also witnessed. He said, it was his Uncle, Abakona Mumuni, who read and interpreted the contents of the lease to the head of their family, but he (PW1’s) name was mistakenly inserted as the person who read and interpreted the said lease document to the head of Sampieyiri family. He said, to his knowledge, the Sampieyiri family has not granted the said plot of land in dispute to anyone before the execution of the Lease on 11th November, 2016 in favour of the Plaintiff, and that, the person Defendant claimed to have grated the said plot of land to him (Defendant) died on 8th April, 2007, before the date of Defendant’s purported grant on 3rd October, 2008. He said, though Ali Kankoha was a member of the Sampieyiri family, he (Ali Kankoha) was neither a principal member nor head of Sampieyiri family at the time of his purported grant of the said land to the Defendant, and also, Peter Salia who co-signed the purported Allocation Note for the Defendant is not a member of the Sampieyiri family. According to PW1, when the Defendant summoned him before the Wa-Naa Palace, he (PW1) told them that, he (PW1) only signed the Lease granted to Plaintiff as a witness, and that, it was his Paternal Uncle, Boore Jatoe, who in his capacity as head of family granted the land to the Plaintiff. He said, unfortunately, the Waa-Naa and his elders were not interested in knowing the truth, and imposed an award on him without inviting his brother who also witness the Lease or the Plaintiff to hear their side of the issue. PW1 finally told the Court that, before Boore Jatoe became the head of Sampieyiri family, Mumuni Jatoe was the head of the said family, and when Boore Jatoe died in 2017, he was succeeded by Dumba Kpienyenge, though Ali Kankoha’s father called Kankoha had ever being the head of Sampieyiri family, but also died in 1993. End of Evidence. Cross-Examination of PW1 by Counsel for Defendant: Q: You say you are from the Sampieyiri family of Kambali? A: Yes. Q: The said Ali Kankoha during his lifetime was also a member of Sampieyiri family of Kambali? A: Yes Q: I am putting it to you that, the plot of land in dispute has a plot number assigned by the then Town & Country Planning? A: I am not aware, the plot I granted to the Plaintiff has no plot number... Q: You granted Plaintiff the plot of land in dispute and not the Defendant? A: I went and showed the plot of land to the Plaintiff and Boore Jatoe at the time Boore Jatoe was weak, so I took Plaintiff to the plot and showed it to him Q: At the time the lease (Exhibit “A”) was executed Dumba Kpienyenge was next to Boore Jatoe as the head of Sampieyiri family? A: Yes, that is Boore Jatoe’s yonger brother. Q: And during the life time of Boore Jatoe, Dumba Kpienyenge was a principal member of the Sampieyiri family? A: Yes, he was. Q: And when Boore Jatoe died, Dumba Kpienyenge became the head of Sampieyiri family? A: Yes, Dumba Kpienyenge is the head of family. Q: I am suggesting to you further that, Boore Jatoe did not make a grant of the plot of land, the subject-matter in dispute to Plaintiff? A: He did, I led Plaintiff to Boore Jatoe. PW2 In his evidence-in-chief, PW2 (Abakona Mumuni), who described himself as a private security officer, resident at Kambali in the Wa Municipality, and a principal member of Sampieyiri, stated that, he knew the parties in this case. According to him, sometime in 2016, he got to know Plaintiff when one Seidu Yakubu brought the Plaintiff to his Cousin, Abu Suglo (PW1) that, he (Plaintiff) was interested in buying the land in dispute, and also got to know the Defendant when he (Defendant) unlawfully entered upon the land in dispute, which resulted in dispute between the parties. He said, sometime in 2016, the then head of Sampieyiri family, Boore Jatoe directed him (PW2) and PW1 to look for a prospective buyer to buy their vacant and unnumbered family land, situate at a place commonly known and called Chokor Residential Area, Wa, at the time the family was in pressing need for money to solve an urgent issue. He said, Plaintiff after inspecting the said family land expressed interest, and under the instructions of the family Head, he (PW2) and PW1(Abu Suglo) together with the Plaintiff, went to the Land Commission to conduct a search, which later revealed that, the said land was not encumbered. PW2 further stated that, on Monday, 7th November, 2016, the Plaintiff was led to the Head of Sampieyiri family, Boore Jatoe, and an amount of Ten Thousand Ghana Cedis (GH¢10,000.00), the purchase price of the said family land was paid to the Head of family. He said, the Plaintiff was then granted possession of the plot of land, and the necessary documents covering the land (i.e. Site Plan and a Lease) were prepared and executed on 11th November, 2016 between the Plaintiff and the Sampieyiri family, after he (PW2) read and explained the content to the Head of family, which he (PW2) and PW1 (Abu Suglo) also witnessed. He said, to his knowledge, the Sampieyiri family has not previously granted the said land in dispute to anyone before the Lease was executed on 11th November, 2016, granting same to Plaintiff. He said, the person Defendant alleged granted the said land to him (i.e. Ali Kankoha) died on 8th April, 2007 before the date of Defendant’s purported grant, even though the said Ali Kankoha was a member of the Sampieyiri family, he (Ali Kankoha) was neither a principal member nor the Head of Sampieyiri family at the time of the purported grant or during his life time. He said, Peter Salia who co-signed Defendant’s purported Allocation Note, is not a member of the Sampieyiri family. PW2 finally stated that, Boore Jatoe as the then Head of Sampieyiri family, succeeded one Mumuni Jatoe, and Boore Jatoe also died in 2017 and was succeeded by Dumba Kpienyenge. End of Evidence. Cross-Examination of PW2 by Counsel for the Defendant: Q: I suggest to you that, it was Ali Kankoha who made the grant of the land in dispute to the Defendant long before he died? A: It is not true. Q: Since the death of Boore Jatoe, Dumba Kpienyenge has acted as the head of Sampieyiri family particularly alienating lands owned by Sampieyiri family? A: Yes Q: I am suggesting to you that Dumba Kpienyenge executed the lease in favour of the Defendant, because Boore Jatoe did not grant the said land to the Plaintiff? A: Boore Jatoe made a grant to the Plaintiff Q: I am suggesting to you that, Defendant duly acquired the land in dispute from Sampieyiri family of Kambali? A: Not true. Plaintiff thereafter closed his case. CASE FOR THE DEFENDANT In his evidence-in-chief, the Defendant (Dan Reynold Okai), a businessman, resident in Wa, stated that, he got to know the Plaintiff in connection with the disputed land. According to him, sometime in 2008, he acquired plot No. 88, Block “E”, situate and lying at Chorkor Residential Area, from one Ali Kankoha (now deceased), who was a member of the Sampieyiri family of Kambali, Wa. He said, the said grant was evidenced by a Statutory Declaration (Exhibit “1”), declared to by the said Ali Kankoha, dated 3rd October, 2008, and the said grant was further evidenced by a Notice of Allocation of Land, dated 4th November, 2008 from the Wala Traditional Council (Exhibit “2”). He said, he (Defendant) subsequently signed a Lease document on 11th November, 2016 with Dumba Kpienyenge, as Head of the Sampieyiri Family of Kambali (Exhibit “3”), and after he acquired the plot of land in dispute, he laid a foundation of a room with sandcrete blocks and he erected a wooden structure and roofed same with aluminum sheets, which he used as a wholesale shop for storage of salt. He said, somewhere in 2015 whilst he was in Accra, he had information that, the said wooden structure had been burnt down by bush fire and when he followed up, he discovered that, it was true, however, the sandcrete foundation was still on the land. The Defendant further stated that, sometime in December, 2016 he was informed that, someone had trespassed on to the plot of land in dispute, and when he followed up to Wa, he discovered that, someone had used a grader to clear the land in dispute including his sandcrete foundation, and a tree which was on the land had also been felled. He said, he also planted milk bush plants around the boundaries of the said plot of land and planted six (6) mango trees on the plot, which were fenced with sandcrete blocks. He said, the mango trees and the milk bush plants were all cleared from the plot in dispute, and also realized in 2017 that, someone had dug a foundation in preparation to build fence wall around the disputed plot, and with the assistance of the Gonja Chief, Alhaji Saaka Dramani I, he (Defendant) got to know it was the Plaintiff who cleared the said plot of land in dispute, claiming the said plot of land was granted to him by one Abu Suglo. He said, he (Defendant) then confronted the said grantor of the Plaintiff, Abu Suglo and went on to the plot in dispute with the said Abu Suglo, where Abu Suglo told him that, it was he (Abu Suglo), who made a grant of a smaller plot of land to the Plaintiff, but Plaintiff insisted that, he wanted the whole plot of land in dispute. According to the Defendant, he then reported the dispute to the family of his (Defendant’s) grantors, the Sampieyiri family of Kambali, where the family members made him (Defendant) narrate how he (Defendant) acquired the land in dispute to them, which he did, and the family members then stated that, since he (Defendant’s) grantor, Ali Kankoha was senior to Plaintiff’s grantor, Abu Suglo, they (the Sampieyiri family) would respect the grant of the plot made by Ali Kankoha to him (Defendant), since his grant was also earlier in time than that of the Plaintiff, but the matter did not end there, since Plaintiff did not agree with the position of the Sampieyiri family. He said, he then reported the dispute to the Wa-Naa, who conducted arbitration between him, Abu Suglo and the Sampieyiri family of Kambali, where Wa-Naa made a written award in his (Defendant’s) favour as the true owner of the plot in dispute (Exhibit “4”). He said, after the arbitration, Dumba Kpienyenge, as the head of Sampieyiri family deposed to an affidavit on 31st May, 2019 (Exhibit “5”), acknowledging his (Defendant’s) ownership of the plot in dispute, and the Sampieyiri family of Kambali also executed a Lease Document, thumb printed by the Dumba Kpienyenge as head of Sampieyiri family, but (he)Defendant) could not register the said Lease at the Lands Commission, because the Plaintiff had fraudulently registered a Lease covering the said land at the Lands Commission. The Defendant finally stated that, he proceeded to put up a building on the said land in dispute (Exhibits “6”, “6a”, “6b” and “6c”), but Plaintiff caused destruction to part of the said building, which was valued and a report of the valuation was submitted to him on 11th November, 2019 by the Regional Head of Land Valuation Division of Lands Commission, putting the value of part of the building demolished at Eleven Thousand Ghana Cedis (GH¢11,000.00), and therefore prayed the Court to grant him his reliefs sought in his counter-claim. End of Evidence. Cross-Examination of Defendant by Plaintiff: Q: Are you aware that plot no. 88, Block “E”, cannot be found on the whole parcel of land currently, based on the records from Survey and Mapping Division of Lands Commission? A: I don’t know, because my plot is no. 88, Block “E”, and that is what the Survey and Mapping Division gave to me, and the entire land has numbers from 88, 89, etc., so there is no plot there without a number. Q: Look at your Notice of Allocation, on the Notice, somebody signed as a farm owner, one Peter Salia, is he a member of the said family, what is his background to that document? A: Peter Salia is a member of the Sampieyiri family from the mother side and his Uncle is Ali Kankoha or Cousin to him, that is why he farmed on the land. Q: I put it to you that, Peter Salia is not a member of the Sampieyiri family, and he could not have been the farm owner? A: What I know is what I have told the Court. The mother side of Peter Salia hails from the Sampieyiri family. Q: Do you know that, Dumba Kpienyenge succeeded Boore Jatoe as the head of Sampieyiri family? A: Yes Q: Do you know that, you couldn’t Register this disputed land when you went to Lands Commission, because the land was already in the Plaintiff’s possession with a Lease Document certified by a Lawyer? A: It is true that, I was not able to register my lease document, although my lease was prepared by the head of Sampieyiri family. This is because the Plaintiff fraudulently registered his lease, and I found out that, the signatures on his lease were not correct. Thereafter, Defendant called One (1) Witness: DW1 In his evidence-in-chief, DW1 (Abdulai Ali), resident at Kambalipaani Section, Wa, stated that, he is a member of the Sampieyiri family, and that, he knew both the Plaintiff and the Defendant. According to him, they were at their communal meeting place at Kambali, when both Plaintiff and the Defendant together with the Assemblyman of Kambali Electoral Area, Peter Salia came to them, where he got to know that there was a dispute between the Plaintiff and the Defendant over a plot of land. he said, a decision was to visit locus and inspect the said plot of land to determine if the said plot of land could be shared between the Plaintiff and the Defendant. He said, they went on to the disputed land with both parties and some members of their family and the Assemblyman, Peter Salia, and after inspecting the disputed plot of land, they all concluded that, the said plot of land could not be shared between the Plaintiff and the Defendant. He said, on the next day and in the presence of Abu Suglo (PW1), the Defendant narrated how he acquired the said plot of land from Ali Kankoha, and Abu Suglo (PW1), then stated that, since Defendant’s grant was earlier in time than that of the Plaintiff, the family would recognize the Defendant’s grant, and the family then executed a lease in favour of the Defendant, whilst the family made an effort to give plaintiff an alternative plot of land. DW1 further stated that, the Plaintiff, on another occasion came and met him and other family members, where he (DW1) told Plaintiff that, the family had decided that, the plot of land in dispute belonged to the Defendant, but he further advised the Plaintiff to sit with the family to find lasting solution to the grant made to him by Abu Suglo (PW1). He said, the Plaintiff however left him with anger and did not come back to him, and later heard that, Plaintiff had sent the matter to Court. He said, he is aware that, the matter went before the Wa-Naa for arbitration and the Wa-Naa made an award in favour of the Defendant, and that, the family head, Dumba Kpienyenge deposed to an affidavit in respect to the plot of land in dispute in favour of the Defendant, and as far as the members of the Sampieyiri family are concerned, the said plot of land in dispute belongs to the Defendant. End of Evidence. Cross-Examination of DW1 by the Plaintiff: Q: Do you know that, your Paternal Uncle, Boore Jatoe, the Head of Sampieyiri family granted the land in dispute to the Plaintiff on 11/11/2016 before he passed on? A: Not true. Q: Do you know that, it was Dumba Kpienyenge, who succeeded Boore Jatoe? A: Yes. Q: Do you know that, Dumba Kpienyenge was assigned all duties, gains and liabilities of the late Boore Jatoe? A: Yes. Thereafter, Defendant closed his case. The legal issue that emerged for determination by this Honourable Court was: i. ii. WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HIS CLAIM. WHETHER OR NOT DEFENDANT IS ENTITLED TO HIS COUNTER-CLAIM. Section 11(4) of the Evidence Act, 1975 (NRCD 323), provides as follows: S. 11(4): “In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that, on all the evidence, a reasonable mind could conclude that, the existence of the fact was more probable than its non-existence.” ANALYSIS OF THE EVIDENCE. After the trial, the following fact findings and observations were made by this Honourable Court: i. Evidence showed that, the Plaintiff acquired the unnumbered plot of land from the Sampieyiri family of Kambali in 2016, with the consent and concurrence of the then Head of family, Boore Jatoe and other principal elders of the said family as he answered the following questions among others from Counsel for the Defendant: Counsel : From your evidence-in-chief, the plot of land in dispute is Sampieyiri family land? Plaintiff : Yes Counsel : Who is your grantor of the said plot? Plaintiff : My grantor is Boore Jatoe, who was the head of Sampieyiri family, at the time I acquired the plot of land in dispute. Counsel : And according to your Lease Document (Exhibit “A”), the grant to you was with the consent of the principal members of Sampieyiri family land? Plaintiff : Yes. Counsel : You say that, the plot you are claiming is an unnumbered plot? Plaintiff : Yes. .......... These assertions made by Plaintiff that, he acquired the said plot of land from the Sampieyiri family was corroborated by both PW1 and PW2 as they respectively answered the following questions from Counsel for the Defendant: Counsel : So, who granted the plot of land that Plaintiff claims? PW1 : It was Boore Jatoe. Counsel : And it is your claim that, the land in which the disputed plot is situated at Chorkor belongs to Sampieyiri family at Chorkor? PW1 : Yes. Counsel : But you admit that, the land in dispute is Sampieyiri family land? PW2 : Yes Counsel : And you admit further that, the land in dispute does not personally, belong to Boore Jatoe? PW2 : I can say it belongs to him, because he owned the land as the Head of family. Counsel : I believe that, the Head of Sampieyiri family you referred to is Boore Jatoe? PW2 : Yes Counsel : So you will agree with me that, Boore Jatoe is said to have made the grant with the consent and concurrence of the principal elders of Sampieyiri family? PW2 : Yes. ii. It was also evident that, before plaintiff acquired the said plot of land, he (Plaintiff) complied with S. 222 of Lands Act, 2020 (Act 1036), applied and conducted thorough search at the Lands Commission, Wa (Exhibit “E”), with Reference No. OS 105/18, dated 30th May, 2018. The said Search Report entitled: SEARCH IN THE LANDS COMMISSION, reveals as follows: “The site is a family land and does not affect any state land or proposed state transaction. However, the said Unnumbered Plot situate at Chorkor Residential falls on a Lease dated 11th November, 2016 between BOORE JATOE and TUNGSUNG MOHAMMED SALIAH.” ........... This report from the Lands Commission corroborated Plaintiff’s assertion that, the plot of land in dispute is Unnumbered. iii. It was also evident that, the Plaintiff supported his Unnumbered plot with a Registered Lease Document (Exhibit “A”), executed on 11th November, 2016, between him (Plaintiff) and the Sampieyiri family, and same thumbprinted by Boore Jatoe (the Lessor), and marked “RTP”, who acted as the legal representative or the Head of Sampieyiri family, and other members of the said family including PW1 and PW2, who are signatories among others of Plaintiff’s Lease Document (Exhibit “A”). ........... AND, in cross-Examination, Plaintiff answered the following questions among others from Counsel for the Defendant: Counsel : You say that, the plot you are claiming is an unnumbered plot of land? Plaintiff : Yes. Counsel : From your evidence-in-chief, the plot of land in dispute is Sampieyiri family land? Plaintiff : Yes Counsel : Who is your grantor of the said plot of land? Plaintiff : My grantor is Boore Jatoe, who was the then Head of Sampieyiri family, when I acquired the land in dispute. Counsel : Before his death, Boore Jatoe was the Head of Sampieyiri family? Plaintiff : Yes, he was. Counsel : Are you aware that, Boore Jatoe had since died in 2017? Plaintiff : Yes, I am aware. ........... These clearly showed that, the Plaintiff acquired the said Unnumbered plot of land in dispute from the Sampieyiri family, and executed a Lease document (Exhibit “A”) with a Plan of Land in 2016. iv. It was also evident that, after the death of Boore Jatoe in 2017, Dumba Kpienyenge succeeded Boore Jatoe as the Head of Sampieyiri family, as stated by PW1, a member of Sampieyiri family in his cross-examination by Counsel for the Defendant as follows: Counsel : When Boore Jatoe died, he (Dumba Kpienyenge) became the head of Sampieyiri family? PW1 : Yes, Dumba Kpienyenge is the head of family. ............ This evidence clearly showed that, after the death of Boore Jatoe in 2017, Dumba Kpienyenge took over as the head of Sampieyiri family. This is a clear indication that, at the time Plaintiff acquired the said unnumbered plot of land in 2016, Boore Jatoe was the Head of Sampieyiri family, and Ali Kankoha was a member of the said family. Interestingly, Defendant stated in paragraph 2 of his evidence-in-chief that, he acquired plot number 88, Block “E”, Chorkor Residential Area, sometime in 2008 from one Ali Kankoha (now Decd), who was a member of the Sampieyiri Family of Kambali, as he answered the following questions from the Plaintiff: Plaintiff : Can you tell the Court, from whom you acquired the said plot of land in dispute? Defendant : Ali Kankoha Plaintiff : I put it to you that, in 2008, Ali Kankoha was not the head of Sampieyiri family? Defendant : He was. Plaintiff : From your Exhibit “2”, was Ali Kankoha, the head of Sampieyiri family of Kambali in 2008? Defendant : That was what I was told. ........ In the opinion of this Honourable Court, Defendant’s assertion that, Ali Kankoha was the Head of Sampieyiri family was a Hearsay. • LOGGS & LUMBER LTD v OPPONG [1977] 2 GLR 263, CA, Applied. ......... AND, this is a clear indication that, Ali Kankoha was a member of Sampieyiri family, but not the Head of Sampieyiri family, hence has no capacity to alienate family land or cannot under any circumstances alienate his interest in the portion under his occupation without the consent and concurrence of the Head of family and the principal elders of the family/stool. • ALLOTEY v ABRAHAM TAMAKLOE [1957] 3 W. A. L. R. 280, HC. • OHEMEN v ADJEI & ANOR [1957] 2 WALR 275, @ 280-281, SC. • AKWEI & ORS v AWULETEY & ORS [1960] GLR 231 @ 233, SC, Applied. ............ Interestingly, the said Ali Kankoha, whom Defendant stated in Paragraph 2 of his evidence in-chief, that, he (Ali Kankoha) was a member of Sampieyiri family, and not a Head of Sampieyiri family, thumb printed the Statutory Declaration (Exhibit “1”), dated 03/10/2008, as well as the Notice of Allocation of Land (Exhibit “2”), dated 04/11/2008, of the Defendant as the Head of Sampieyiri family. In another development, the Registrar of the Traditional Council, Wa, signed the Notice of Allocation (Exhibit “2”), and also fraudulently signed same document (Exhibit “2”) for and on behalf of the President of the Wa Traditional Council. ........... This was admitted by the Defendant in his cross-examination by the Plaintiff as follows: Plaintiff : On Exhibit “2”, why are the signatures of the Registrar and that of the President of the Wa Traditional Council (Wa-Naa) the same? Defendant : The signatures are the same because the Registrar signed for the President. ............ Hence, these fraudulent documents (Exhibits “1” & “2”) of the Defendant are unreliable and cannot show a better title or constitute proof of source of ownership of the said plot of land in dispute by the Defendant. In the Supreme Court case of: FRIMPONG v NYARKO [1998-99] SCGLR 734 @ 743, it was held, per Acquah JSC (as he then was), as follows: “Fraud as is well known, vitiates everything, and when a court of law in the course of its proceedings has cause to believe that, fraud has been committed, it is bound to quash whatever has been done on the strength of that fraud.” • LAND ACT, 2020 (ACT 1036), S. 45 (b), Applied. ............ It was also evident that, there was no signature of the Defendant on the Unregistered Lease Document (Exhibit “3”), dated 06/07/2018, as admitted by the Defendant in his cross-examination by Plaintiff as follows: Plaintiff : Are you sure you have a lease with the Sampieyiri family? Defendant : Yes, I do Plaintiff : The document you called a lease and filed in this Court (i.e. Exhibit 3), can you show your signature on it? Defendant : I have signed the original one but Exhibit “3”, was not signed. Plaintiff : Have you given the original one to the Court? Defendant : I did not, but if the Court asks me, I can go for it. Plaintiff : Your purported lease document (Exhibit “3”), has no signature of the Defendant, no passport picture of the Defendant, Defendant’s witness (es) have not signed, and not also endorsed by any Private Legal Practitioner? Defendant : Yes, it is true. ........... This admission clearly showed that, the nonappearance of the Defendant’s signature on his unregistered lease document (Exhibit “3”), dated 06/07/2018, created no agreement between the Defendant and the Sampieyiri family, and showed no existence of a binding contract between the Sampieyiri family and the Defendant, or confer any interest on the Defendant, and same document does not comply or satisfy the provisions of the Conveyancing Decree 1973, (NRCD 175), hence Exhibit “3” is hereby declared Null and Void. • FINANCINGS LTD. v STIMPSON [1962] 1 W. A. L. R. 1184 • DJAN v OWUO & ANOR [1976] 2 GLR 401, HC, (Holding 1), Edusei J (as he then was). • LANDS ACT, 2020 (ACT 1036), S. 34, 35 & 43, Applied. ............ Moreover, evidence showed that, the sole witness of the Defendant (DW1), was not present at the time of the said transaction and has no knowledge of the said transaction between Ali Kankoha and the Defendant, as he answered the following questions among others from the Plaintiff: Plaintiff : Will you agree with me that, you did not understand the detailed transaction of this disputed land before witnessing for the Defendant? DW1 : Both Plaintiff and Defendant came to Dumba Kpienyenge and narrated their stories and I concluded that, I will be a witness in the matter. Plaintiff : I put it to you that, Ali Kankoha was not the head of Sampieyiri family and couldn’t have granted this disputed plot of land to the Defendant in 2008? DW1 : Ali Kankoha’s late father was the Head of Sampieyiri family and he owned the farmland and after his demise, Ali Kankoha took over and he could sell it. Plaintiff : I put it to you that, Ali Kankoha died in 2007 before the alleged grant was made to the Defendant in 2008? DW1 : I can’t tell. Plaintiff : Are you aware that, based on records, this plot in dispute was allegedly granted to the Defendant in 2008? DW1 : I was not present, but was only told. I can’t tell the exact time. Plaintiff : Who was the grantor of the Defendant? DW1 : It was sold to Defendant by one of our late brothers Plaintiff : Which year was the plot granted to the Defendant? DW1 : At the time, I was not in Wa. Section 60(1) of the Evidence ACT, 1975 (NRCD 323), provides as follows: S. 60(1): “A witness may not testify to a matter, unless sufficient evidence is introduced to support a finding that, the witness has personal knowledge of the matter.” ........ On the evidence, the Plaintiff having called two principal members of the Sampieyiri family/grantors as his material witnesses to prove his case, Defendant however failed to call a material witness to prove his case. • KWOFIE v KAKRABA [1966] GLR 229 @ 231-232, HC. • OGBARMEY-TETTEH v OGBARMEY-TETTEH [1993-94]1 GLR 353 @ 357, (Holding 4). • OWUSU v TABIRI @ ANOR [1987-88] 1 GLR 287 @ 288, HC, (Holding 2), Applied. v. In the circumstances of this case, it was also evident that, both Plaintiff and the Defendant derived their titles from different grantors of the same family at different times. Whereas Plaintiff acquired his lease (Exhibit “A”) in respect of the Unnumbered plot of land from the then Head of Sampieyiri family in 2016, Defendant however claimed he acquired same plot of land from a Member of the same family in 2008, Numbered, Plot No. 88, Block “E”. In the High Court case of: KWOFIE v KAKRABA [1966] GLR 229 @ 231-232, it was held per Archer J (as he then was), as follows: “Where the parties derived their titles from different grantors, registration is of no consequence and the Court will not neglect its duty to ascertain who has the valid title. In other words, registration will not confer any legal right or title on any party who took his grant from a person who had no title at all to convey. The Land Registry Act does not confer state-guaranteed title on the grantor who has no title.” • NARTEY v MECHANICAL LLOYD ASSEMBLY PLANT LTD [1987-88] 2 GLR 314 @ 369. • AMUZU v OKLIKAH [1998-99] SCGLR 141, SC, Applied. Unfortunately, both Plaintiff’s grantor (Boore Jatoe), and that of the Defendant, Ali Kankoha are all deceased and both cannot therefore testify as to whether indeed they executed the respective documents for the parties, hence the respective claims of the parties ought to be thoroughly scrutinized or weighed carefully. • IN RE GARNETT; GANDY v MACAULY [1985] 31 CH, D1, Applied. • ELIZABETH OSEI v MADAM ALICE EFUA KORANG [2013] 58 GMJ 1 SC @ 20, Per Ansah JSC. vi. It was also evident that, in the course of the dispute between Plaintiff and the Defendant, the Defendant lodged a complaint against the Plaintiff and Abu Suglo (PW1) before Wa-Naa, as stated by the Defendant in paragraph 7 of his evidence-in-chief as follows: “I reported the dispute between me, Plaintiff and Abu Suglo to the Wa-Naa. Wa Naa then conducted an arbitration between me, Abu Suglo and Sampieyiri family of Kambali. The Wa Naa made a written award in favour of me as the owner of the plot of land in dispute (Exhibit “4”).” ............. AND in cross-examination, Defendant answered the following questions among others from Plaintiff: Plaintiff : From your witness statement, you indicated in paragraph 7 that, you reported the land dispute to the Wa Naa? Defendant : Yes Plaintiff : Can you tell the Court, what transpired there, who and who were invited? Defendant : The Wa Naa invited Abu Suglo who sold the land to Plaintiff, and the entire elders of the Sampieyiri family excluding the Plaintiff. Plaintiff : What was the position of the Wa Naa at the meeting at the Wa Naa Palace? Defendant : Wa Naa gave judgment in favour of me, and he told the Sampieyiri family including Abu Suglo that, since the one who sold the land to me was older than Plaintiff’s grantor, and since the land was sold to me about Nine (9) years ago, they should go and find another land for the plaintiff or refund him. Plaintiff : How were the people invited, did they write letters to them? Defendant : I don’t know. .......... AND in his cross-examination, PW1 (Abu Suglo) answered the following question among others from Counsel for the Defendant: Counsel : At the Chief’s Palace, you told him (the Chief) and Elders that, you led the Plaintiff to conduct a search on the plot of land in dispute? PW1 : No, the Plaintiff was not at the Palace. ........... These admissions clearly showed that, the Plaintiff, who was the affected party was not invited /noticed before the said award (Exhibit “4”), dated 2nd February, 2018 by the Wa Naa, in favour of the Defendant. In the opinion of this Honourable Court, since the dispute was between the Plaintiff and the Defendant, both parties including their respective grantors from the Sampieyiri family ought to have been heard fairly before passing any order/award. The Wa Naa of the Wala Traditional Council, Wa, having denied Plaintiff an invitation to express his side of the issue, before passing his ruling/award, violated the Audi Alteram Partem Rule (Latin: Hear the other side), which is the basic concept of the principles of natural justice, hence, the ruling/award made by Wa Naa as exhibited in Exhibit “4”, dated 2nd February, 2018 in favour of the Defendant is hereby declared Null and Void. • ACCRA HEARTS OF OAK SPORTING CLUB v GHANA FOOTBALL ASSOCIATION [1982-83] GLR 111, HC, Korsah J (as he then was). • REPUBLIC v HIGH COURT, BOLGATANGA; EXPARTE HAWA YAKUBU [2001-2002] SCGLR 53, Acquah JSC (as he then was), Applied. In the instance case, evidence showed that, Defendant’s grantor (Ali Kankoha) had no title at all to convey the said plot of land, and the Defendant cannot therefore be said to claim title through him. Moreover, the documentary evidence of the Plaintiff clearly outweighed or override that of the Defendant, which proved that, Plaintiff is the lawful owner of the unregistered plot of land. Accordingly, on the balance of probabilities, the claim of the Plaintiff is upheld, and judgment entered in favour of the Plaintiff. The Counter-Claim of the Defendant is hereby dismissed. I assess the Costs of this action at Six Thousand, Five Hundred Ghana Cedis (GH¢6,500.00) against the Defendant, and in favour of the Plaintiff. I further order that; the Defendant conveys all his properties from the said plot of land within Two (2) weeks from today (Judgment day). .................................................... MAXWELL M. TITRIKU MAGISTRATE, DISTRICT COURT, WA, UW/R, 21/11/2023 30