NAANBALONGNA VRS NAANBALONGNA (UW/WA/CT/A1/06/2021.) [2023] GHACC 1150 (28 December 2023)

IN THE UPPER WEST CIRCUIT HELD AT WA ON MONDAY THE 28TH DAY OF DECEMBER 2023 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE -------------------------------------------------------------------- SUIT NO. UW/WA/CT/A1/06/2021. SALIA KUBO NAANBALONGNA, SUING FOR AND ON BEHALF OF THE SONS OF KUBO, TADAANAYIRI SECTION, MANGU-WA. …………………………… PLAINTIFF VRS IDDRISU DORMOO NAABALONGNA, SUED FOR AND ON BEHALF OF THE SONS OF DORMOO, TADAANAYIRI SECTION, MANGU-WA ………………………….. DEFENDANT JUDGMENT Introduction In almost two years, this case hugely fought on traditional evidence, seeks to resolve the pivotal issue of whether or not family property can be partitioned and shared among family members against the fact that the property in question all through generations has never been partitioned and/or shared among the forebears of the current generation. Trial to date and the conduct of both counsels is worth commending but the appreciation of the decision remains an individual exercise that the judicial machinery allows for the veneration of misgivings in the form of appeal. Plaintiff’s Reliefs sought The Plaintiff therefore commenced the action seeking the following reliefs: I. Declaration of title to that parcel of land lying and situate at Mangu Extension 11 Residential Area and on the right side of the Wa-Jingu road more particularly delineated in the “Plan of land” prepared by the officer of the Spatial and Physical Planning Department in the name of the Plaintiff and endorsed by the Wa Naa. II. A perpetual injunction restraining the Defendant whether by himself, his brothers, sons, successors, assigns, workmen or however called from interfering with the Plaintiff’s quiet enjoyment of the land in dispute. III. Any other reliefs the honourable court deems fit. Defendants however after filing their statement of defense did not counterclaim leaving the matter to go through pre-trial processes after which the issues agreed for trial at the application for direction stage were also not contested by the Defendant and same were agreed and adopted as the issues for trial. Issues Set Down for Trial. 1. Whether or the Defendant is the head of the Naabalogna family of Tandanayiri section, Mangu, Wa that includes the Kubo and Dormoo families 2. Whether or not by the customs and traditions of the Tandanayire section of Mangu, Wa the land inherited from Naabalongna was to be divided into two with one part going to the sons of Kubo and the other half going to the sons of Dormoo. 3. Whether or not at the instance of the Wa Naa a plan of the land has been prepared and endorsed by the Wa Naa indicating the share of the Plaintiff and his brothers and that of the Defendant and his brothers in the names of Plaintiff and Defendant. However, in the address of the Defendant he got the issues couched as follows: 1. Whether or not family land should/could be shared among all family members. 2. Whether or not family land can be shared without the consent and concurrence of the head of family 3. Whether or not the Defendant consented to sharing of the family land by the Wa Naa. 4. Whether or not the alleged grants made by the Plaintiff without the consent and concurrence of the Defendant as the head of family are valid. From the issues agreed between the parties above which are the first set of issues, It is obvious the germane issue for determination to put the matter between the brothers to rest is whether or not the disputed family property can be shared and or partitioned and the remaining issues are tangential to it and I will address all the issues with the objective of putting the main issue to rest. I will not particularly address all the issues as listed with the reasoning that a court is not bound to consider every conceivable issue arising from the pleadings and the evidence, if in the opinion of the court, few of the issues could legally settle the case in accordance with the law See: Vicentia Mensah V Numo Adjei Kwanko II (128) GMJ 117 GMJ 76 SC Respective cases of the parties Plaintiff Case Plaintiff instituted this action in his representative capacity on behalf of the sons of Kubo Naabalongna of Mangu in the Wa Municipality of the Upper West Region. By his evidence, his father, Kubo Naabalogna and the Defendant’s father Dormoo Naabalongna are siblings from the same womb and father Naabalongna of Tadaanayiri of Mangu. It is the case of the Plaintiff that their grandfather Naabalogna inherited a large tract of land inclusive of a parcel of land now zoned as Mangu Extensions 11 Residential Area by the Spatial and Physical Planning Department of the Wa Municipal Assembly from his father and upon his death, the Plaintiff’s father Kubo and Defendant’s father Dormoo as sons, inherited the said land during their life time and managed same till they both variously passed. The Plaintiff avers that Defendant’s father, Dormoo died when he and his siblings were still young, and their uncle as custom demanded took care of them during which period they all tilled the farm lands bequeathed to them by their parents until his uncle also died. Plaintiff went ahead to claim that the land bequeathed to them by their immediate father belonging to Naabalongna their grandfather should be partitioned into two halfs and shared among the two living sons of their two fathers with one part given to the sons of Kubo and the other half to the sons of Dormoo. Plaintiff went on to lament that to the contrary, Defendant took control of the land as head of family of his generation from his father and uncle Kubo and Dormoo and deprived the Plaintiff and his brothers of their share of the land they should be entitled to in equal share by law and tradition. That despite all efforts by the plaintiff and his brothers for the Defendant to heed to giving them their share, that has fallen on deaf ears. In the frustration of the Plaintiff and his brothers, he admits that the matter could not be resolved locally within Mangu where the extended family lives and that it took the intervention of the Wa Naa after a complaint was lodged to the palace by Plaintiff and his siblings to ask that the said land be divided into two parts one for the Plaintiff and his siblings and the other part to the Defendant and siblings. Plaintiff however maintains that prior to and after the order by the overlord of the Wala traditional area for the land to be partitioned, the Defendant has continued to grant portions of the land to family and non-family members alike to construct dwelling places but the Plaintiff and his brothers continue to resist such grants and will ward off grantees as and when the see some. Plaintiff however responded to the Defendant on points of fact that the land remained unpartitioned among the two fear bears being Kubo and Dormo because they were blood siblings but should it be that they were from different mothers, the land will have been long shared among them in their time. Plaintiff added that seeing the land as a joint property started way back when he was domiciled in Kumasi and Defendant got him home for them to know the delimitations of the entire family land and at that meeting a decision was taken to engage a surveyor to survey the land at a cost but he was unable to afford his part and so suggested that some pieces of plots be sold from the land for the work to be done and that was duly carried out by the Defendant. In Plaintiff’s frustrations he recounts how the sons of Defendant and his brothers sons received grants from the land leaving him and his brothers Libie and Jakalia without any though he acknowledges a son of he Plaintiff’s late brother one Domalee to make a grant of land to. Defendant’s case The Defendant on the other hand as the sitting head of the Naabalongna family of Tadaanayiri section of Mangu which family comprises the Kubo and Dormoo families (the parties) states as a fact that his late father, Dormoo was the younger brother to Kubo the Plaintiff’s father and that the land in dispute was initially farmed on by his great grandfather by name Buuka Dapielaa and upon the demise of his great grandfather, his grandfather, Naabalongna took over the land and farmed on same. The Defendant states further that, in the course of time, his grandfather, Naabalongna was granted land by his maternal uncles at Pontiedangkubo off the Wa-Charia Road where he farmed with his sons, Kubo and Dormoo. Later, his father died and Dormoo returned to the land at Mangu while his grandfather continued to farm at Pontiedangkubo with his uncle, Kubo. After years of farming on the land at Mangu, his father died and his uncle Kubo and Defendant’s father returned to the land at Mangu. The Defendant claims as a fact also that, upon the demise of his father, his uncle, Kubo became the head of family and married his second wife and gave birth to the Plaintiff and his siblings. That it was he and his younger brother that assisted their uncle, the Plaintiff’s father in all farming activities then. He states emphatically that during that time, he never asked his uncle as head of the family to share the land between them as that was not the custom and tradition of the people of Mangu and by extension a practice among the Walaas. To present time therefore, Defendant on the death of his uncle, became head of the Nabalongna family sometime in 1990 and since then he has always treated the Plaintiff and his brothers as his siblings and when the need arose for the zoning of the land in dispute, he invited the Plaintiff and his brothers to a meeting on three occasions but they refused to attend the said meetings and he proceeded to zone the land as the lawful head of the family. It is the case of the Defendant that the Plaintiff at all material times wanted the entire Naabalongna family land to be partitioned/shared among the children of Kubo and Dormaa but he insisted that it was against their customs and traditions and this resulted into a lot of misunderstandings between them. The Defendant claimed making reconciliatory overtures to Plaintiff to resolve the misgivings between them but all did not work. According to him, he petitioned one Emmanuel Adama Wuuri a family member who eventually gave evidence as Defendant witness to assist settle the differences between them but that as well did not work. Defendant claimed that in one of such meetings with the said Emmanuel, he explained to the Plaintiff and his siblings and they appeared to have understood that since the Plaintiff’s own father Kubo did not share the land in his lifetime, it should not be shared also during their lifetime. A position that remains the gravamen of this dispute. However, Defendant was surprised when the conduct of Plaintiff later was in defiance of customary practices and insisted on the portioning of the family land whereupon he petitioned the Wa Naa. As to whether or not the Wa Naa advised for or against the partitioning or merely told the Plaintiff and his siblings to go by the dictates of their head of family, the evidence will be evaluated soon in this decision. Pursuant to an order for discoveries and inspection of documents, the Plaintiff filled into Court Exhibit “A” & “B” which are the partitioned plan of lands upon the order of the overlord of the Wala traditional area. I say upon the oders of the overlord because the evidence of the surveyor mentioned him as the one who commissioned the work on behalf of the family. Defendant however disclosed by discoveries Exhibit “B” which is the layout of the plan of land of the entire Nabalongna family job both parties agreed to doing and was financed by the sale of some plots from the subject matter land. Whereas the Exhibit filed by the Plaintiff was that generated after the order was made by the overlord, that of Defendant was dated earlier giving credence to the fact of the case of Plaintiff that he and his brother were ad idem on the land till he decided to take an entrenched position against the partitioning. Defendant in his case therefore took offence that a surveyor shared the disputed land among the Naabalogna family and that nobody has that right and authority to share the land without his consent and concurrence as the head of the Naabalogna family and that the insistence of the Plaintiff to partition/share the Naabalongna family land is to dissipate it for his personal benefit and to the detriment of the larger Naabalogna family. The accounts above summarizes the various postures of the two family members on Plaintiff’s demand for a partitioning/sharing of the family property versus the resistance to sharing by the Defendants. The general evidential burden on the parties The suit being a civil case, the onus of proof is as set out in Sections 10, 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323) states a party is required by law to win on the balance of probabilities as under Sections 11 (4) and 12 of the Evidence Act, 1975 (NRCD 323). It remains trite that, in civil cases, the burden of proof is on the plaintiff generally especially that defendant has not counter claimed. The provisions of the codification of the common law principle on onus of proof in civil cases as enunciated in Miller v Ministry of Pensions [1947] 2 All ER 372, 374 which was quoted with approval in the case of Nyame v Tarzan Transport [1973] 1 GLR 8, 16, CA it stated: “The degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal, it is not”. See also the Supreme Court cases of Adwubeng Vrs Domfeh [1996-97] SCGLR 660, Affisah vrs. Ansah [2005/06] SCGLR 943 @ 948, holding 7 per Lartey JSC and Brempong II vrs. Amofah & Others [2001/02] SCGLR 177, holding 2 and Kofi Sarpong (Deceased) (Substituted by Nana Kwasi Kodua vs. Franklin Adu Bobi Jantuah [2014] 74 G. M. J. 46 Similarly, Section 17 (2) of the Evidence Act stipulates that “except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact”. See also YORKWA vrs. ANSAH [1992-93] GBR 278 @ 282 per Brobbey J. A. (as he then was). The party who bears the burden of producing evidence is only required to produce evidence considered to be sufficient on the balance of probabilities to make his case more probable than not. This rule of thumb is enshrined in Section 11(4) of NRCD 323 as follows: “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.” In the case of In Re Ashalley Botwe Lands, Adjetey Agbosu & Ors V Kotey & Ors (supra) it was held by the Supreme Court per Wood JSC (as she then was) at page 444 as follows: “it is trite learning that by the statutory provisions of the Evidence Decree 1975 (NRCD 323) the burden of producing evidence in any given case is not fixed but shifts from party to party at various stages of the trial, depending on the issues asserted and or denied”. The Supreme Court reechoed this view in the case of Sumaila Bielbiel V Adamu Dramani & Attorney General (No.3) (2012) 1 SCGLR 370 at 371-372 as follows: “Ordinarily, the burden of persuasion lies on the same party which bears the burden of producing evidence. However, depending upon the pleadings or what facts are admitted, the evidential burden can move onto a defendant. The cumulation on the defendant of the evidential burden on the issues to be tried in a case can result in the right to open the case shifting to the defendant. For instance, where the burden of producing evidence on every issue in a case lies on the defendant, he or she will have the right to open the case, even if the burden of persuasion remains on the plaintiff”. It therefore follows that; the law sometimes follows the common-sense approach. In that case, the burden of persuasion in producing all facts essential to any claim may lie on the person who is making the claim and in this case the Plaintiff must show course why he beliefs sharing/partitioning the family land is/was a better option to the current status quo of the head of family managing it on behalf of the entire family See: Barkers Woode V Nana Fitz (2007-2008) 2 SCGLR 879 Abbey & Ors V Antwi (2010) SCGLR 17 Enekwa V Kwame Nkrumah University of Science and Technology (2009) SCLGR 242. The situation where Defendant has not counter claimed The Supreme Court in the case of Gbedema V Awoonor Williams (1970) C. C 12 threw some light on the nature of a counterclaim as follows: “a counterclaim is to all intends and purpose an action by the respondent against the applicant. It is an independent and separate actions”. The court relied on the case of Winterfied V Brandnum 3 QBD 324 in which Bret L. J. said at page 326 as follows: “A counterclaim is sometimes a mere set off, sometimes it is in a nature of cross action; sometimes it is in respect of a wholly independent transaction. It is therefore, the plaintiff who generally must prove his case on the preponderance of probabilities. However, where the defendant files a counterclaim, then the same burden of proof would be used in evaluating and assessing his case just as is used to evaluate or assess the case of the plaintiff against the defendant. See: Yeboah V Ahele (2012) 44 GMJ 37 CA. Jass Co. Ltd. & Ors. V Apau & Anor (2009) SCGLR 265 In this case however, the defendants did not counterclaim. Therefore, it is the plaintiff who is to prove his case on preponderance of probabilities under section 11 (4) of NRCD 323. Status of grandchildren in family property As far back as 1958 it was decided in Yawoga Vs. Yawoga and Atutuno [1958] 3 WALR, 309 particularly in holding (ii) that; “Rank within a patrilineal family is determined by relative proximity in consanguinity to the founder of the family. The principal members of the family of a deceased person are all those surviving members of the class which is closest in consanguinity to the deceased, but so that on the death of a member of this class, his rank as a principal devolves upon his eldest child. Thus, a grandchild of a deceased person is not, in patrilineal areas, a principal member of the deceased parent, or unless he has been accorded the position of a principal by reason of his achievements or services to the family.” Ollenn J. delivering the judgment of the Court had this to say: “Succession in the tribe to which the plaintiff and the first defendant belong is patrilineal and it is admitted that upon the death of the said Yawoga, his family, who became entitled to the property, consisted of his children and their descendants. The plaintiff admits that the 1st defendant is the head of the said family and that the only other child of Yawoga is one Afua Yawoga. Now, according to native custom, rank among members of a family is determined by the relative proximity of a member to the founder of the family or the remotest ancestor that is remembered in the family. Therefore, children of a deceased person rank first with equal status as the principal members of the family. Next in rank are the children. Upon the death of any one of the deceased person’s children, that child’s own children step into his or her shoes and the head among those grandchildren takes position among the uncles and aunts as a principal member of the family to fill the gab…” The virtue of the fact that death has wiped off generations of the Naabalongna family, it is the turn of Dormo and Kubo’s children to take up the mantle of leadership of the family and by virtue of Defendant being senior he leads the family as head of family and Plaintiff as principal member of the family and their statuses then as grandchildren will not matter as per the decision supra because of the principle of relative proximity. Review of precedents supporting partitioning/sharing of family land I will discuss relevant precedent on sharing family property because that is the gravamen of the case at hand and to do that begins with the case of Adabla Vs. Kisseh [1972] 1 GLR where the court held that, the court has power to order a partition of family land. Lassey, JA, said inter alia that: “Partition can be ordered (a) where it is advantageous to the whole family and (b) if the property itself is capable of being partitioned.” In the words of Azu Crabbe JSC; “a claim for partition of communal land is a matter for the discretion of the court and where there is a proper exercise of that discretion, the court ought not to interfere unless there is some specific customary law that forbids partitioning.” The case cited supra is one case where the appellants and the respondents occupied adjoining land which they owned communally for many years in harmony. As a result of some differences which grew up among some families of the two tribes, the respondents sued the appellants for partition of the communal land between them; the appellants contested that action on the grounds that the court was not competent to decree the relief sought which they contended was unknown to custom. Judgment was given in favour of the respondents and the appellants appealed to the Court of Appeal. The appeal was dismissed. In holding (2), the Court held that: “There was no evidence that the custom of the locality forbade partitioning and the parties themselves had already shared the land in such a way as to facilitate partition. Communal ownership was no longer advantageous so partition was the only practicable solution. The trial Judge exercised his discretion properly.” Relating the case cited supra to the case under consideration, it is admitted this relates to communal land whilst the disputed matter is family property but the two are commonly used by the very families and so should be appreciated as same. As the case pertains, Defendant presides over the use of the land and indeed admits to having made allocations to persons in the extended family amidst Plaintiff’s demand for a portioning/sharing of the entire land for him and his siblings to know their share. From the decision I have decided to draw from, the two questions that beg for answers are (a) whether it is advantageous to the whole family to share and (b) if the property itself is capable of being partitioned/shared. These two questions will resolve the issue of whether or not family land should/could be shared among all family members which issue I described as germane. My candid assessment of the evidence versus the current commodification of land resources amidst mistrust, greed by family leadership couple with blatant disregard for accountability, I belief the evidence before us should support the request for partioning so as to provide a fair use of the family land among the siblings than holding on the use of customary law as a smoke screen to claim the customs and traditions of the people of Mangu and by extension Walas forbade portioning of family property. As to whether the property can be shared, though the Defendant resisted the sharing that was proposed by the overlord of the Wala traditional area and argue that no such decision was ever taken or if all the decision was overturned by the Kperisi Naa a sub chief to the overlord. This the court rejects the Defendant claim not just because it was not supported by evidence but because it paints a picture of leadership weakness by the overlord. Read some portions of the evidence from the record when DW1 admits to Plaintiff and his siblings asking for a share of the family property: Q. So the land was inherited from his grandfather Naabalogna A. That is also correct Q. By virtue to the fact that you both trace your ancestry to this same grandfather Naabalogna you both own the land. A. Exactly In continuation of the witness cross examination on 14th June 2023 this again transpired: Q. I gave them the opportunity to go take part of the land but they refused. As we are in court they do not know the boundaries of the land. Q. Do you admit Plaintiff and his brothers are sons of Kubo have a share of the land A. The do and that is why I went to them to take a part of the land and they refused Q. As we stand in court today, are you willing to give Plaintiff a share of the land A. We will all share it among all who are concern The responses by the Defendant puts a blackout to his case and a sharing can be ordered based on his admittance to that fact. As if that is not enough, the Plaintiff counsel drew the court’s attention in his address that Defendant made more admittance to being told by the larger family of the parties in Tadaanayire to share the land but he declined to heed to that advise: Q. It is true you were asked to share the land A. Yes, they did and I told them I have never seen such a decision Q. Those elders are familiar with the custom of inheritance as it pertains to the Wala people. A. The instructions were not Walla customs but their personal interests Q. The elders asked you to share because it was only a son who could inherit and not anyone. A. That is not so if it were only a son who can share, why did my grandfather and my father not share the land before us. Q. When the elder asked you to share the land between you two, you refused. A. I refuse with the reason that it was about just the family land but there are other properties as well we had to be shared. Does precedent indeed frown on sharing of family property Indeed, family land is trust property and this is adequately captured in Section 9 (1) of the Land Act 2020, Act 1036 where it states: (1) A stool or skin, or clan or family land shall vest in the appropriate stool or skin, or clan or family on behalf of, and in trust for, the subjects of the stool or skin, or members of a clan or family in accordance with customary law and usage. So, the head of family the Defendant currently holds the family land in trust for the larger Naabalongna family in accordance with customary law and usage. Meaning a specific customary law should be referenced as debarring sharing of family property if an attempt to resist same is claimed by the Defendant. The usual claim that sharing family land disintegrates families is hugely a smoke screen to allowing such property to continue to be under the selfish management of such family heads. Indeed, should that claim be true then those ideal family heads no longer exist or very few do to have collective interest over parochial ones. The current leadership of the Nabalongna family has subsisted from 1990 and what can the Defendant show that his leadership has achieved to want to continue to have the entire family land under his absolute control. To the contrary, what unites families is transparency and accountability and a partitioning of this very family property in Mangu to ensure various units of the family have easy access to land to construct dwelling places and to farm on is a better option than the current system where larger families have to congregate before one person (Defendant) whose leadership skills you cannot vouch for but only leads the family by virtue of the fact that it is his turn by age and not that he is the best to do so. Defendant reference to the family forbears for not sharing family land in the past is misplaced and a mark lack of industry and only sought solace under that when it was convenient to do so. The question is should current generations be guided by antiquated practices of the past when modernity has brought home the need to behave differently for improved results. Family property will continue to have family character for generations yet unborn if greed is eschewed and sharing this bequeathed Nabalongna family land will rather strengthen the family like other families including DW1 on family than standing behind Defendant to have access to his huge control. Counsel for the Defendant insinuates a sort of selfish interest by the Plaintiff when he was sincere to have stated that should the land be shared he will sell portions to finance a dwelling place. Indeed, this is done everywhere and there is absolutely nothing wrong with the plans of the Plaintiff to impugn a looming disaster upon a formal court order to share. Though I appreciate the litany of cases drown from by Defendant Counsel seeking to argue that family land is indivisible else you draw a wedge in the family in his address, he was equally responded to by Plaintiff Counsel that circumstances especially the customary law under which those cases were decided were purely Akan customary law and not that of the Wala people and so reference should not be drawn line hook and sinker. See Defendant counsel’s ocean of cases allegedly debarring sharing of family property. MENSAH v. LARTEY [1963] 2 GLR 92-97: BINEY v. BINEY AND OTHERS [1965] GLR 619-629 IN RE KRAH (DECD); YANKYERAAH AND OTHERS v OSEI-TUTU AND ANOTHER [1989-90]1 GLR 638-670 Kofi Manu v. Kwame Boafo & Others (unreported) Civil Appeal No: H1/64/2018 Joseph Yao Ziwu and Others v. Mawutor Kudzordzi and another (2018) Civil Appeal No: H1/03/2017. As the court is phased with a situation where a principal member of a family is treated as if he does not matter in the scheme of things in the family and can merely be left to rot if he earlier declined an unfair invitation by Defendant to take just a plot of land from the entire vast land, the court will gladly uphold the main relief sought for if that suffices to restore equilibrium among the family members especially that both parties fathers shared a womb but the same father. The endurance by Plaintiff to have held his cool till he sought the reliefs in this suit is indeed commendable. To further justify the need for the partitioning of the family was when the evidence became so glaring that all was not well among the brothers. The discourse below from the Defendant’s cross examination re-echoes this standoff between them and also as no particular custom of the wala people was particularly referenced and an independent expert witness called to speak to it as being a cultural encumbrance: Q. As always, even when your father died Plaintiff’s father managed the land for the family. A. That is why I am asking that the land is not divided into two. Our father did not divide it so I can’t divide it. Q. You will agree with me that your grandfather took over and continued farming because he was the eldest son. A. Yes that is so. The place was not shared, the senior most manged the land for the family. Q. By the custom and tradition applicable to you in Mangu, upon the death of a man his farmland is inherited by his sons. A. That is so. The farmland belongs to all but the senior son will be in charge. Q. According to paragraph 13 of your own evidence, you asked them to take a plot each to develop. A. No, that was not my intention. I called them to take a plot each because we need land to build and the rest use to be for future use. Q. You see the Defendant and his siblings both have equal access to the land. A. They do have equal access, but our family practice is that we do not share the land among ourselves as beneficiaries. My father presided over the lands for some years, but he never shared the family land. Q. Therefore I am suggesting to you that given the present circumstances it is only fair that the sons share the family land among themselves. A. I disagree again here. Because they are required to go by their history as a family. I advised against it in 2019. I challenged the Plaintiff to show the plots to him but he refused to turn up. Q. The land was however said to be family land and cannot be shared. A. Not only was it family land but that the sharing was alien to custom. From the exchanges above, it was evident Plaintiff was advancing the reasons for asking for the sharing of the property but Defendant held to their forebears not sharing the land as well as custom not approving of same as his reasons and these are the ground this court rejects and puts the family land up for sharing later in this judgment. Whether or not the Defendant consented to the sharing of the family land by the Wa Naa. As stated earlier in the judgment that though I am not compelled to dealing with every issue set down for trial, I will all the same treat the rest of the issues besides issue one because there are tangential to the main issue but will not vary the posture to partition as determined by the court supra. This issue however should be the easiest to respond to because should the Defendant had agreed to sharing the subject matter family land, there will have been no suit before the court and so it is categorical that Defendant never subscribed to the sharing of the land as presented to him by the Plaintiff and siblings. As also stated differently supra, that the claim that the overlords advise and or order to the family to share was not particularly proven in evidence by the Plaintiff though pieces of evidence from DW1 admitting to a discussion he attended before the overlord where such matter was discussed gives credence to the case of Plaintiff that the overlord was involved in the decision to partition the land between the brothers. On evidential grounds therefore, since the Defendant did not counter claim, there was no duty placed on him to prove his position that it was a sub chief who defied the orders of the overlord and rather asked for the partitioning. Read the extract of the record during cross-examination of the Defendant: Q. What was the ruling of the Wa Naa. A. He ruled that the Plaintiff and his brothers should allow us to take care of the land because it was by succession. Q. So I am suggesting to you that the custom in Tandanayiri is that the land will have been shared among the children of Kubo and Dormoo. A. This is not the custom. I have seen six successions and that was not the sharing formula. Q. I am suggesting to you further that when you met the elders you were told that was the custom and you had to share the land for each to take their share. A. I was told it does not happen this was. Assuming that was the sharing formula, the land will have been long shared before us. As intimated earlier, that this was not an issue highly contested, the record exist Plaintiff confirmed during cross-examination that the Defendant never consented to the partitioning of the family land. Read that portion as well: Q. At the Palace when he (Wa Naa) asked the Defendant to share the land amongst the children of the two fathers the Defendant objected. A. No, he (Defendant) did not agree. Q. Even though the Defendant protested the sharing, a surveyor was still engaged to share the land into two. A. Yes, I know that. What happened was the Wa Naa enquired what was the practice in our custom and went ahead to invite a surveyor one Alex who had previously surveyed the family land and the Wa Naa asked him to go ahead and prepare the layout dividing the land into two. Q. You are aware that the Defendant equally protested that the land should not be divided. A. Yes, he said so. When the Defendant was at the Palace, he refused providing the land documents and the chief asked for the surveyor and warned them against cheating. The Wa Naa insisted in seeing the layout and it was brought to him. By these exchanges, it remains a finding of fact that the sharing was not a consensus decision to so do but evidence abound that the overlord ordered for it because the stamp of the traditional council exist on the copy of the exbibit that Plaintiff earlier attached to his witness statements which was later tendered by the official from the survey and mapping unit of the lands commission and was marked Exhibits “A” & “B”. The question then that remains is if the parties did not agree to the partitioning, can the exhibits be used by the court since these were not approved by the parties. My simple understanding of the work done by the surveyor is that he acted upon the instructions of the overlord and carried out an official job of dividing a piece of land into two. Whether or not at the time the parties had approved of same or not does not affect the work of the surveyor. I see the Exhibit A & B as an accurate division of the land in dispute. Whether or not a valid alienation/grant can be made of family land without the consent and concurrence of the head of family This issue too presents no challenges as the law remains succinct that a head of family cannot be by passed in the alienation of family property. In DOTWAAH AND ANOTHER v. AFRIYIE [1965] GLR 257-269, ruled that the head of family or the successor is an indispensable person in the alienation of family land and further adds that a conveyance made by any other member without the head of family or the successor, as the case may be, is void ab initio. Void from the moment of the grant because the equitable principle of “Nemo Dat Quod Non Habet” to wit a person cannot alienate an interest in land where he has no interest. See the case of Salomey Shorme Tetteh & Nii Amon Tafo V Mary Korkor Hayford (Substituted by Stella Larbi & Comfort Decker). I must however be quick to add again that the precedent cited above is the position of the law in normal families in usual times. Usual/Normal times to wit times the family is at peace but the timing now is a situation where family land is being managed to the disadvantage of principal member of the family and he has risen to salvage the situation and so if a partitioning was ordered by no mean a person but the overlord, the court should yield to the relief sought by the Defendant and grant same. The engagement below between Defendant and Plaintiff during Plaintiff’s cross examination is instructive as Plaintiff admits by demonstrating that he was short changed in the use of the family land: Q. Do you carry out farming activity on the land personally. A. No, I do not. Q. Does any of your brothers have farms on the land. A. None of them have farms on the land. Q. I suggest to you that you want the land to sell and not farm. A. Exactly, when the land was shared by the Wa Naa, I decided to sell a portion so I can build a dwelling place, but the Defendant came and stopped me. I resolve the issue therefore to the effect that in normal times a head of family cannot be by passed in a decision to alienate family land but the situation at hand is different as same was aware of the decision to partition by the overlord as well as the recommendation of the elders of Tandanayire but just that Defendant remained defiant. Decision 1- That by a careful review of the evidence, I find that it will be in the interest of fairness to share the property into two equal parts for the Plaintiff family Salia Kubo Nanagbalongna lands marked in in Exhibit “ B” and Defendant family taking lands contained in Exhibit “A” in the name of Iddrisu Dormoo Nangbalongna. 2- That though that no evidence was led by the Wa Naa palace to admit and or justify the order for the surveyor to have carried out the survey leading to the division of the entire family land into two equal parts, I find the work that produced Exhibits “A” & “B” as useful and official because a stamp of the traditional council exist of one of the copied exhibits and I will not order another survey because the same result will be returned at an additional cost to the family and so I order that the sharing in the two exhibits be upheld and given meaning to. 3- Consequent to the order confirming the sharing in point two above, I order that any plots of lands previously sold by any family member be it Plaintiff or the Defendant should be allowed to hold up to the date the land was surveyed as per the exhibits tendered. Any such grants issued thereafter are null and void and of no effect and claimants should appropriately atone tenancy to the appropriate land lord by this decision. Wherefore, the reliefs sought by Plaintiff were upheld to the extend that he got the court to hold that he was a part owner of the family land and consequent to that he and his siblings are given an equal size of the family to own and manage for their side of the Naabalongna family. That the Defendants save the expiration of the time to appeal this decision, shall allow the Plaintiff’s quiet enjoyment of their share of the family property because same has been seen as beneficial to share/partition than hide under a principle that family property is indivisible when Defendant has failed to be fair in the management of the family asset. I therefore respectfully reject Defendants counsel’s address containing indeed an ocean of cases urging the court not to hold that the family property should be shared without the consent of the head of family and that partitioning of family property disintegrates family. Be that the head of family was not consulted in the sharing allegedly attributed to the over lord of the Walaa traditional area, which evidence at trial could not support because none of the parties invited them, the evaluation of the entire evidence supports a sharing/partitioning of the family property and the sharing as per Exhibit “A” & “B” suffices and same should be used. Asking the sitting head of family to account for all sold lands sold out or given out gratis before ordering the sharing will not be in the interest of family unity and so the order that all sales prior to survey suffices as a fair date to rewrite the wrong. Cost I will end by awarding no cost to the Plaintiff because the success achieved commensurate his investment for the result and Defendant should not be mulched with cost because he has since lost the cake he was supposedly eating from that he sought to eat and still have. H/H Jonathan Avogo Circuit Court Judge, Wa 24