Fua and Another Vrs Milani Farms and Another [2023] GHAHC 127 (23 February 2023)

IN THE HIGH COURT HELD IN CAPE COAST ON THURSDAY, 23RD DAY OF FEBRUARY, 2023, BEFORE HER LADYSHIP MALIKE AWO WOANYAH DEY (HIGH COURT JUDGE) SUIT NO: E1/42/2006 1. EBUSUAPANYIN KOBINA FUA Subs by Daniel Afful alias Ebus. Kojo Odoom 2. WO1 RTD RICHARD ANNAN VS 1. MILANI FARMS 2. RICHARD YENZU PLAINTIFF PRESENT DEFENDANT ABSENT DANIEL ARTHUR FOR PLAINTIFFS SOLOMON GYESI FOR THE DEFENDANTS JUDGMENT Per a writ of summons and statement of claim, the plaintiff claims against the defendants the following reliefs; a) Declaration of title to all that piece and parcel of land situate and lying at Gomoa Amoanda in the Gomoa District of Central Region of the republic of Ghana measuring approximately 150 acres and forming part of Kotokum lands and forming part of Royal Nsona family of Gomoa Buduatta Mbrowa Gate of the said family) b) Recovery of possession c) General and special damages for trespass d) Perpetual injunction restraining the defendants either by themselves or their servants, agents, workmen, assigns etc. from interfering whosoever with the said land. e) Any further orders as the court may deem fit in the circumstances. THE PLAINTIFFS’ CASE According to the plaintiffs and the testimony of the 2nd plaintiff, the virgin forest of the disputed land forms part of a large tract of land which is the property of their Mbrowa gate of the Royal Asona family. The virgin forest of the said land was broken by their great-great-grandfather Nana Kwame Adu, Kojo Afo, Kankam Panyin, Kankam Keteaba and others between 1815 and 1860. These ancestors were members of the Mbrowa gate of the Asona family who migrated to Gomoa Buduatta from Gomoa Assin during the Ashanti Fante war in 1811, led by the only surviving warrior Kofi Bentum. The disputed property is bounded on the North by the land of the Oyoko family of Gomoa Somanya, the plaintiffs' land on the East by the Ojobi Oyoko family, variously known as Odankwakwa lands on the South by the plaintiffs family lands and the Oyoko family of Gomoa Akramang lands and on the West by plaintiffs lands known as Okotokum lands and covering an approximate area of 120 acres. It is their case that they have been in uninterrupted occupation and the ownership of the land, including the land in dispute, which is vested in the Mbrowa gate of their family. It is also their case that after breaking the virgin forest and whilst farming on Kotokum lands, a group of farmers from Gomoa Ojobi led by Opanyin Kwaw Dankwa later met their ancestors, and so their portion of the land was named Dankwa Kwaa. The two groups of farmers from Buduatta and Ojobi plied their activities on their respective lands peacefully and obeyed each other's boundaries. In or about 1979, the family learned that part of the Kotokum lands had been auctioned per court order to one Opanyin Budu Yenu from Gomoa Amoanda. Upon enquiries, the family discovered that one Kofi Nyarko from the Yeko family of Ojobi, who inherited the Dankwa Kwaa land, had an issue with one Peter Yenu on three acres of land on a verbal agreement and Kofi Nyarko failed to honour his part of the agreement. The case went to the District Court, Agona Swedru, and the court ordered that Kofi Nyarko's Odankwakwaa land should be auctioned, and in the process, about 65 acres of their family land were added. Peter Yenu then arranged with his brother Budu Yenu to purchase the auctioned land, which was subsequently sold to the 1st defendant, a foreign company. According to them, on or about 2004, the 1st plaintiff and one Nana Ahunako Bonsu III Odikro of Gomoa Buduatta saw that portions of the plaintiffs' land had been encroached upon and were being developed. Upon enquiries, it came to the fore that the defendants were responsible for the encroachment. Thus the 1st plaintiff and Nana Ahunako Bonsu III approached the 1st defendant’s representative and advised it to stay off the land. After that, they caused their lawyers to write to the 1st defendant to stop interfering in the land but it yielded no result. Dissatisfied with the turn of events they sued the defendants. In their reply, the plaintiffs stated that the defendant had trespassed beyond the land, the subject matter of the auction sale and entered their Royal Asona family land. They also averred that the defendant had failed to demand the site plan of its grantors, which was the subject matter of the purported judicial auction sale. According to them, the 1st defendant's grantor Budu Yenu in leasing the land to the 1st defendant had gone beyond his lawfully acquired land and trespassed onto the plaintiffs’ family land. They called PW1 Kofi Owusu, and he told the court that the original first plaintiff was his uncle, whilst his substitute was his brother. The 2nd plaintiff is also his senior brother. He stated that some time ago, he went to his farm, and whilst there, he saw some bulldozers on a portion of their family land, i.e. Kotokum lands. He enquired from the driver of the bulldozers, and he told him that the 1st defendant had purchased the land; hence they had been asked to weed the area. He asked them to stop. When he got home, he informed the original 1st plaintiff, his uncle, who told him the family had not sold the land to them. His uncle then told him that if that was the land sold by Richard Yenu, then the 1st defendant had missed out on the identity of the land because the place the 1st defendant had graded is known as Kotokum and not Odankwakwa. Thus, he and his uncle went to show the 1st defendant and the people hired to grade the land the boundaries of their family land. The representative of the 1st defendant told them that since he had weeded the land already, he should sell it to them but his uncle told him the land was not for sale. The 1st defendant continued working on the land, and when they confronted its representative, he told them that the land had been sold to them by the 2nd defendant. He testified further that his family lands share boundaries with Odankwakwa lands, and one Opanyin Kofi Nyarko was farming on portions of the Odankwakwa lands that share boundaries with Kotokum lands. O pinyin Kofi Nyarko gave portions of the land to Peter Yenu, and some issues cropped up, which ended up in court. Some issues arose, and the portion that Opanyin Kofi Nyarko was farming on was auctioned to Peter Yenu, who also sold it to the 1st defendant. Instead of farming on the site sold to Peter Yenu, the 1st defendant extended the boundaries and entered their land. Thus where the 1st defendant is farming belongs to his family. PW2 Michael Aidoo also testified that he is a farmer and lives at Gomoa Buduatta. According to him, he knows both the plaintiffs and the defendants. He also confirmed that the plaintiffs' family has large tracts of land at Gomoa Buduatta, referred to as Kotokum lands. The Odankwakwa and Kotokum lands share boundaries; thus, they are two different lands. He testified further that he and his father farmed on portions of the plaintiffs' Okotokum lands granted to them by the elders of Buduatta for over 30 years. The portion they worked on forms part of the disputed land. He also emphasised that he knows that Kofi Nyarko owns land at Odankwakwa, out of which he gave three acres to Peter Yenu to cultivate on a shared cropping basis. There was a misunderstanding concerning the arrangement between Peter Yenu and Kofi Nyarko, which ended up in court. The court ordered the sale of the land, and during the sale, none of the adjoining land owners or tenants were made aware of the suit and the sale in respect of the land that Peter Yenu was cultivating. Thus there was no identification of the boundaries. Eventually, the land was sold to Amos Yenu, a younger brother to Peter Yenu, at an auction, and he, in turn, sold it to the 1st defendant herein. Later, the elders of Gomoa Buduatta realised that portions of Okotokum lands had been included in the lands sold to Amos Yenu, which included portions of lands he and his father farmed on. He confirmed that the 1st defendant had taken over part of Okotokum lands. THE DEFENDANT’S CASE The case of the defendants In its statement of defence, the 1st defendant denied some of the plaintiffs' averments and stated that it is a lessee of the land the subject matter in dispute and derives its title from the lessor Kwasi Budu alias Budu Yenu of Gomoa Odembo. It further stated that its grantors’ root of title is a certificate of purchase No 1/79 dated 26th March 1979 which parcel of land he bought at a public auction ordered by the Swedru District Court. It also stated that the letter from the plaintiffs' solicitor had no substance. It should be noted that when the court joined the 2nd defendant as a party, no statement of defence was filed on its behalf, but a representative of the 2nd defendant testified on behalf of the 1st defendant. Felicia Budu representing the 1st and 2nd defendants, told the court that she knows the plaintiffs as belonging to the same family from Gomoa Buduatta and persons against whom her father had won legal suits over Odankwakwa lands. She introduced the 1st defendant as a company that leased the land from her deceased father Amos Budu Yenu alias Kwasi Budu and is farming on the land, whilst the 2nd defendant is her paternal uncle who has succeeded her father. She testified further that her father bought the land through a public auction ordered by the Swedru District Court. The said land originally belonged to Nana Kumi Nyarko, and it was sold at a public auction in the case of Nana Kumi Nyarko of Bawjiase and Kojo Peter of Gomoa Amoanda. She testified that by a certificate of purchase, No. 1/79, dated 26th March 1979, her father was declared as the purchaser of the interest of Nana Kumi Nyarko. She described the land as situate and lying at Odankwakwa and bounded in all directions by properties of Kwao Budu, Kwesi Asomani, Kojo Acquah and Kojo Amo, known as the property of the plaintiff judgment debtor. She testified further that her father took possession of the land and exercised acts of ownership over the land from 1979. He cultivated oil palms, yams, cassava, plantain and cocoa thereon. In 1986, her father, Amos Budu Yenu alias Kwasi Budu sued KA Asare, the then Omanhene of Gomoa Assin Traditional area, Kwesi Ababio Ebusuapanyin and Kweku Nyame, at the High Court in Accra in respect of the Odankwakwa land in a suit titled Suit No. 2810/86 A. B. Yenu vs Asare and 2 others. Per an order of the court, a plan of the Odankwakwa land was drawn, and all parties accepted it. In that suit, the boundary owners testified and authenticated the validity of the Certificate of purchase by giving evidence to show that her father had been in possession of the land since 1979. The boundary owners were also present when the surveyor surveyed the Odankwakwa lands. Thereafter, the court entered judgment in favour of her father on 27th October 1992, in which it was declared that the Odankwakwa land was the bona fide property of her father, and an order of perpetual injunction was issued against the defendants therein from interfering in her father's use of the land. She testified further that in 1995 there was a suit against her father and the Registrar of the Swedru Court titled suit no. CS 14/95 Kwabena Effah vs The Registrar and Amos Budu Yenu and the reliefs were for a declaration that the Certificate of purchase in the case of Nyarko vs Kojo Peter was fraudulently designed, a further declaration that the Certificate of purchase was ambiguous and an order setting aside the Certificate of purchase. In that case, the plaintiff in that suit succeeded the Ebusuapanyin Kwesi Ababio, the 2nd defendant in Suit No. 2810/86 A. B. Yenu vs K. A. Asare and 2 others. The court held that the Certificate of purchase was not fraudulently obtained or ambiguous. She further testified that the total land size of her father is approximately 168 acres, out of which his father granted the 1st defendant 70.14 acres for farming. It is her case that the land in possession of the 1st defendant forms part of the entire land lawfully purchased by her late father. She also mentioned the description on the Certificate of purchase as Kwao Budu, Kwesi Asomani Kojo Acquah and Kojo Amoo. However, on the survey plan drawn by the court-appointed surveyor, the boundary owners were described as Asomani on the North to East, Kwadjo Anoo, which the court spelt on the Certificate of purchase as Kojo Amoo to the South West Kwadjo Arquah which the court spelt as Kojo Acquah to the South and the property of Kwao Budu. Significantly, she testified that the Odankwakwa lands do not share boundaries with Kotokum lands, and the purported attempt to merge the Okotokum lands into Odankwakwa land was fraudulent. She also claimed that the entire land on the plan submitted by the plaintiffs for drawing the composite plans is for her father and that the whole portion is Odankwakwa land, not Okotokum land. The area on the plan of the plaintiffs being described as Okotokum lands forms part of her father's Odankwakwa land, which has been in her father's possession since 1979, out of which a portion was granted to the 1st defendant. She testified further that neither her father nor his estate had extended the size of land acquired beyond that which he purchased. She further testified that the suit is vexatious as the plaintiffs' predecessors have unsuccessfully challenged her father's title and lost. It is her case that the plaintiffs are estopped since her father had been in possession for close to 27 years before the suit commenced. She tendered the following exhibits in proof of her claim Exhibit 1A and 1B – Certificate of purchase. Exhibit 2 - Survey Plan to show the acres of land. Exhibit 3 - a copy of Judgment 27th October 1992 Exhibit 4 – Copy of judgment attached as Exhibit 4 Exhibit 5 – Site plan Exhibit 6 – Copy of indenture granting land to 1st defendant. At the close of the pleadings, the court adopted the following issues for trial. 1. Whether the plaintiffs are entitled to their claim 2. Whether or not the land being cultivated by the defendant is within the lands the subject matter of the judicial auction sale ordered by the Swedru District Court. 3. Whether or not the defendant has trespassed onto the plaintiffs' land 4. Any other reliefs flowing from the pleadings. It is important to note that the plaintiffs bore a general burden of proof regarding their claims against the defendants on a balance of probabilities. It must also be noted that since the defendant has not counterclaimed for any relief, they do not have any legal burden imposed on them. Thus regarding the principles on the burden of proof, See sections 12 (1) and (2) and 11(4) of the Evidence Act 1975 NRCD 323 and the cases of • In Re Ashalley Botwe Lands Adjetey Agbosu and Ors v Kotey and Ors [2003- 2004] SCGLR 420 • Faibi v State Hotels Ltd [1968] GLR 471 • Malm vs. Lutherodt [1963] 1 GLR 1 SC • GIHOC Refrigeration and Household Products Ltd v. Hanna Assi [2005-2006] SCGLR 458 • Jass Co Ltd and Another v. Appau and Another [2009] SCGLR 265 at 270 -271 • Ago Sai and Others v. Kpobi Tetteh Tsuru III [2010] SCGLR 762 at 779 The court also has a duty to assess all the evidence on record to enable it to decide in whose favour the balance of probabilities should lie. See the case of In Re Presidential Election Petition NO.4 Akuffo-Addo and others v Mahama and Ors [2013] SCGLR Special Edition 73. The plaintiff must prove his root of title, boundaries, possession or right of possession, especially where the defendant has denied his averments. See the case of Francis Assumaning and 64 Ors vs Divestiture Implementation and Anor [2008] 3 GMJ 35 SC. In the case of Ebusuapanyin Yaa Kwasi v Arhin Davies and Anor 2005, the court held that “it is trite that this suit being essentially for a declaration of title the plaintiff was bound to establish his root of title.” Additionally, in the case of Agyei Osae and Others v Adjeifio and Others [2007-2008] SCGLR 499, the Supreme Court held that to succeed in an action for declaration of title, recovery of possession and an injunction, the plaintiff must establish by positive evidence the identity of his land which is the subject matter of the action else his action shall fail for lack of certainty. Some other authorities are Bissah v Gyampoh [1964] GLR 81, Jass Company Ltd v Appau [2009] 2GLR 365 and Nyikplokpor v Agbodotor [1987-88] I GLR 17. In the case of Bedu and Ors v Agbi and Ors [1972] 2 GLR 226, the court held that “The onus was on the plaintiffs to establish the exact boundaries of the land in dispute so that any judgment in their favour would be related to a defined area or at least they should have proved isolated acts of ownership over the disputed area.” Thus where a plaintiff fails to do that, a trial court would be right in holding that he had not discharged the onus of proof placed on him by the law and would not be entitled to judgment. Where the plaintiff establishes all these elements, he must then show that he or his family have exercised overt acts of ownership over the land or that he or his family had been in possession of the land since it was acquired or his ancestors broke the virgin forest. It should be noted that the plaintiff's task becomes more manageable when he is in possession of the land or where it is clear that he has exercised acts of ownership over the land for a long time. See the case of Majolagbe v Larbi and Ors (1959) 1 WACA 253 at 516. On the other hand, discharging the burden placed on him becomes onerous when the defendant is in physical possession or has exercised ownership rights over the land. It must also be noted that in all these, the plaintiffs must win on the strength of their case and not the weakness they find in the defendants’ case. They may rely on the weaknesses in the defendant's case only when they have established their evidence. It ought to be noted that the court gave the parties' counsel the opportunity to file their addresses. Whereas counsel for the plaintiffs filed his address, counsel for the defendants has not. The court is grateful to counsel for the plaintiff for his submissions which have assisted the court in the determination of the issues. I shall proceed to discuss issues 2 and 3, the two germane issues raised together. 1. WHETHER OR NOT THE LAND BEING CULTIVATED BY THE DEFENDANT IS WITHIN THE LANDS THE SUBJECT MATTER OF THE JUDICIAL AUCTION SALE ORDERED BY THE SWEDRU DISTRICT COURT. 2. WHETHER OR NOT THE DEFENDANT HAS TRESPASSED ONTO PLAINTIFFS’ LAND Per the evidence led by the plaintiffs and from the Composite plan drawn as ordered by the court, this court finds that the plaintiffs and the defendants are disputing over the same piece of land. It is also beyond dispute that the said land is in possession of the 1st defendant and is being cultivated. It is also clear that the area in dispute measures 65. 66 acres as depicted on the Composite plan drawn by the court- appointed surveyor. It is also not in doubt that there was a dispute which went to the Agona Swedru District court that led to an auction sale. It is beyond dispute that the 2nd defendant’s predecessor purchased the Odankwakwa land through an auction ordered by the District Court, Agona Swedru. It is also not in dispute that the 1st defendant is working on land leased to it by the 2nd defendant’s predecessor. There is also no cavil that the 1st defendant is in physical possession of the disputed land. Thus, as already stated above, the germane issue is whether the land leased to the 1st defendant falls within the land the subject matter of the judicial sale or whether the 1st defendant has gone beyond it. Whilst the plaintiffs, in their pleadings, claim that the land has exceeded that which was auctioned to the 2nd defendant's predecessor, the defendants have challenged their allegations. The plaintiffs led evidence through the 2nd plaintiff and re-echoed their statement of claim. Their witnesses, PW1 and PW2, also emphasised that the land on which the 1st defendant is conducting its business belongs to the plaintiffs’ Mbrowa gate of the family. Nevertheless, under cross-examination, the discourse between the 2nd plaintiff and counsel for the defendants regarding the disputed land is significant to the issue being determined. For clarity, I shall reproduce the cross-examination dated 16th May 2022 as follows; Q: Can you tell the court how Kofi Nyarko came by the said land? A: Kofi Nyarko inherited this piece of land from the Dankwa family, Gomoa Ojobi. Q: At paragraph 14, you made reference to an agreement Kofi Nyarko failed to honour, what was this agreement about? A: My family was not privy to that agreement, we heard that a portion of our land had been auctioned at the Swedru Court to Peter Yenu and upon enquiry, we were told that there was an issue between Kofi Nyarko and Peter Yenu over three acres of land based on which the entire land over there was auctioned without notice of my family which share common boundary with Kofi Nyarko’s family Dankwa land and my family land. Q; what is the size of the Dankwa family lands? A: I cannot tell. I only know of my side. Q: You have earlier indicated that you and your family were not privy to the agreement between Kofi Nyarko and Peter Yenu and your allusion that the agreement bordered on 3 acres of land is a falsehood. I put it to you? A: It is never false. Q: You have also said at paragraph 15 that the court in the process of auctioning auctioned 65 acres of your family land in addition do you still stand by that? A: Yes my Lord. Q: You indicated that though you were privy to the agreement, you were told that the matter bordered on three acres of land; when you had knowledge of the addition of an alleged 65 acres of your family, what step did you or your family take? A: It is a family issue so we resorted to court action since we know the boundary of our land. Q: So you want the court to believe that after having notice of an alleged addition of land belonging to your family you took no steps regarding a challenge to the auction but awaited the conclusion of that matter before you instituted another action? A: This case has been a process since 1979, and as a disciplined family we had to wait for the law to take action because Peter Yenu, who bought the land sold the land to his junior brother who was killed on the same land and my family has waited for over 40years in dealing with the case. Q: When did the addition of the alleged 65 acres come to the knowledge of your family? A: Upon hearing the auction my family knowing of the boundary lines took steps from then and have waited patiently until this time through court process. Q: When did your family institute the action? A: The action started at the Agona Swedru Court when I was out of the country and I cannot give the exact date. Q: How long ago was it? A: It’s been over 30 years now. Q: What was the outcome of that suit? A: It was against my family simply because the one who presented the case to the court put up a claim for the entire land because his father was from Kofi Nyarko’s family. Thereafter, the witness told the court that the land was ancestral and that if it was going out of hand, any family member could chase it up if a wrong presentation was made on the first occasion. He further told the court that his family appealed against that decision, but his family lost. He was further cross-examined on 17th May 2022, and he answered questions thus; Q: Would you agree with me that since 1979 when AB Yenu purchased the land, he has since been in possession of the entirety of the land? A: Yes I agree. Q: Would you agree with me that it is part of this land he has been in possession of that the 1st defendant is currently occupying? A: We are here to challenge our portion of the land. Q: I put it to you that the land on which the 1st defendant is forms part of the land A. B Yenu purchased in 1979. A: Not all the land. There is an illegality associated with that purchase because we were not invited to the auction to identify the land. Q: You would agree with me that the current suit is not one against alleged illegality affecting the purchase of the land but it is for declaration of title and recovery of possession amongst other reliefs. A: I do not agree because we are here to claim only 65 acres that got involved during the auction. The emphasis is mine. From these two episodes of discourse between the 2nd plaintiff and counsel for the defendants, it is apparent that the answers given are contrary to the plaintiffs’ pleadings, specifically paragraphs 3, 4, 6 and 7 of their reply dated 9th May 2007 in which they told the court that they were before the court because Milani had gone beyond the land purchased at the auction. I say so because it is evident that the disputed land has been the subject of litigation, and on each occasion, the plaintiff’s family lost. Per their evidence, they lost even on appeal. Having made allegations of fact in its pleadings, it behoved the plaintiffs to show by their testimonies that the land in respect of which the 1st defendant was granted a lease in 2004, as depicted in exhibit 6, is different from the land the subject matter of the judicial sale and which was declared in all those judgements as belonging to the 2nd defendant in order to have this court declare that the 2nd defendant had granted 1st defendant more land than that which was the subject of the judicial sale. From the discourse between the 2nd plaintiff and counsel for the defendant, his responses confirm that the disputed land is the same as the land which was the subject matter of the judicial sale in 1979, but according to him, because the first family member who represented the family in the case did not present the case well, they were in court to correct the alleged illegality. His last answer reads A: I do not agree because we are here to claim only 65 acres that got involved during the auction. It must be noted that in the body of his witness statement, the 2nd plaintiff, at paragraphs 15 and 16, stated; 15. The case went to the High Court, Agona Swedru, and the court ordered that Kofi Nyarko's Dankwa Kwaa land be auctioned, and in the process, about 65 acres of my family land was added. 16. Peter Yenu arranged with his brother Budu Yenu to purchase the auctioned land, and the land was subsequently sold to the 1st defendant, a foreign company. Thus, evidently, his testimony in chief and answers under oath is therefore inconsistent with his claim that the first defendant was working on land, which is far beyond the land, the subject matter of the auction that took place per the order of the District Court, Agona Swedru. One could clearly glean from his own testimony, and answers that the encroachment he alleged is in respect of the 65 acres he claimed was part of the auction, which according to him, had been sold to the 1st defendant. I find that the alleged encroachment did not begin in 2004 as alleged by the 2nd plaintiff when the land was leased to the 1st defendant, but rather the sale to the 1st defendant is in respect of the 65 acres which he claimed was added to the 3 acres in contention in 1979 when the auction took place. Thus when they averred in their pleadings that they were in court because the 1st defendant had gone beyond the land sold to the 2nd defendant’s predecessor at the auction, they were not being candid, but instead, they were in court to re-litigate in respect of the same land which according to them was even the subject matter of appeal which they lost. Therefore, it is the finding of this court that the 65 acres in contention before this court is the same 65 acres which the plaintiffs' claim was part of the auction of 1979. Thus at this point, it is the opinion of the court that counsel’s submission at page 10 of his address that the land the 1st defendant is currently working on is not the one acquired through the auction is contrary to the evidence of the 2nd plaintiff himself. It is also established per his answers under cross-examination that one Opanyin Kwabena Effah, who challenged the Certificate of purchase which the Agona Swedru District Court issued by instituting a suit in the High Court in 1995 for a declaration that the said Certificate was fraudulent and ambiguous was the plaintiffs’ head of family at the time and he lost the case. Another aspect of the 2nd plaintiff's evidence which shows the land is the same land litigated upon, can be found in the proceedings of 18th May 2022 Q: Are you aware that the area edged red in this map was the same area disputed upon by Peter Yenu and K. A. Asare who are your predecessors? A: That is true, the family is talking about their ancestral land and not a purchase by Peter Yenu. An error occurred in the purchasing because there was no family representative from our side. Q: And you are also aware that the court in that suit adjudged Peter Yenu as the owner of the land in dispute? A: That is why the family is here contesting the disputed portion of the land and because it is an ancestral land we cannot let it go. He went on to tell the court answer questions thus; Q: You have admitted under cross-examination that there have been several suits regarding this piece of land; do you still stand by it? A: Yes my Lord, because the family is not satisfied. Thereafter, he told the court that the auction was wrongly done and that had to be set right. Since he confirmed under oath that Kwabena Effah was their head of family and lost the case, if they were dissatisfied with the decision of the High Court, they should have appealed the decision. Per the tenets of the law, any party dissatisfied with the judgment of a court of competent jurisdiction has the right to appeal that decision within the time stipulated under the law and is not permitted to bring another action in a court of coordinate jurisdiction on the same issue. Therefore, that judgment is binding on the plaintiffs and the defendant herein as the plaintiffs admit that the court determined the issue concerning the auction between their predecessors and the 2nd defendant’s predecessors. Therefore, they cannot resurrect the issue of the auction as being illegal or fraudulent in the present suit before this court. The doctrine of res judicata will therefore apply. It ought to be noted, as already stated supra in proving their claim, the plaintiffs ought to rely on the strength of their case and not on the weakness in the defendant’s case. Thus the plaintiff must show that he has satisfied the requirements of the law regarding the elements to be proved when seeking a declaration of title to land before relying on the weaknesses in the defendant's case. It is also evident from the 2nd plaintiff's answers under cross-examination that, whilst per his writ, they endorsed the size of land in respect of which they have prayed for a declaration of title to land to be 150 acres, he completely departed from that and said the land in respect of which he is before the court was 65 acres out of 200 acres of the total size of his family land. When asked when the land was encroached upon, he stated it was at the time of the auction. Thus having answered questions such that it leads to a conclusion that the disputed land is the same as the land which was the subject matter of the Certificate of purchase in 1979 and also testifying to a different size of the land over which he seeks a declaration of title, this court holds that the plaintiffs’ land size as claimed on the writ is different from what the 2nd plaintiff's testimony. When asked whether he had any document covering the land, the 2nd plaintiff replied in the negative and instead relied on the composite plan drawn in the case of Ebusuapanyin Effah vs A. Yenu. It should be noted that even in their statement of claim, they described the land as covering an approximate area of 120 acres, which the 2nd plaintiff later clarified as a typographical error. Whilst the plaintiff, per his reliefs endorsed on the writ, stated that the land covers an area of 150 acres, in his statement of claim, he claimed that it covered an area of 120 acres, and then in his evidence, he also gave a different figure, i.e. 65 acres. When asked whether he was now seeking relief over the 65 acres and not 150 acres, he answered in the affirmative. At one point, he told the court that though he did not attach any document to his witness statement, he had the historical record but did not know he had to produce it in court. Thus apart from the composite plan drawn in the earlier case, he did not produce any document covering the land. Furthermore, it must be pointed out that the plaintiffs did not call any boundary owners to the disputed land as required by law. PW1 and PW2 only rehashed the 2nd plaintiff's testimony. These two witnesses attested to the ownership of the disputed land by the plaintiff’s family without more. PW1, a farmer, claimed they were working on the land when Peter Yenu came to tell them that he had bought the land. That testimony cannot be accepted as the truth because even in the previous suits, the court commented on the inability of the defendants therein to produce any member of their over 200 family members that they claimed were working on the land in court to testify on their behalf. When PW2 testified, he mentioned that he and his late father were working on a portion of the land at the time of the auction. However, it should be noted that even in 1986, when the case went before the High Court, the court held that though the plaintiffs’ predecessor claimed that family members were cultivating the land, not even one was called to attest to that fact. The court held that the land, the subject matter of dispute, did not belong to the plaintiff's family. A critical look at the evidence of PW2 Michael Aidoo clearly shows that the plaintiffs were in court to re- litigate the previous suit. I say so because his evidence revealed that at that time, their family head then challenged the illegality of the auction. Though they claimed their family members were allegedly farming on the land, they did not testify, which the court commented on. Thus presenting that evidence, in this case, can only be allowed if it is established that the land in question did not farm part of the auction and in addition to producing evidence that Milani Farms had trespassed on land that was not part of the auction. The composite plan as drawn shows that the plaintiff is claiming the entire land, which is in the possession of the 1st and 2nd defendants. Going by the answers given by the 2nd plaintiff on oath, since the auction over 40 years ago, they have been fighting for the said land through several suits but lost on all occasions. That testimony shows that the land has been in the 2nd defendant’s possession all these years. Per section 48 of the Evidence Act, [1975] NRCD 323, the things which a person possesses are presumed to be owned by that person. Additionally, a person who exercises acts of ownership over property is presumed to be the owner of it. It has also been held in the case Osei Substituted by Girald vs Korang 2013 2014 SCGLR 221 as follows; “Effect of possession. In the present appeal, the stark fact is that the appellant was in possession of the house, just as was DW6. Now in law, possession is nine points of the law, and a plaintiff in possession has good title against the whole world except one with a better title. It is the law that possession is prima facie evidence of the right to possession and it being good against the whole world except the true owner, he cannot be ousted from it. See Summey v Yohonu 1962 1GLR 160 SC, Barko v Mustapha 1964 GLR SC 78." Thus the plaintiff bore the burden to lead evidence to show that they have been in control of the land apart from narrating the history of how the land was discovered. Whilst counsel for the plaintiff sought to say that the land sold to the 1st defendant is not located at Odankwakwa, the 2nd plaintiff himself, per his answers under cross- examination, identified the land as the same as that which his predecessors litigated over. Thus counsel for the plaintiff cannot rely on the answers given by the defendant under cross-examination to postulate that the land is different when the plaintiffs themselves, by their evidence, have corroborated the evidence of the defendants that the land on the ground is the same as that which was the subject of the auction. As stated in an action for declaration of title, the plaintiff must first establish his claim by establishing his root of title, boundaries and acts of possession, whether constructive or physical, before he can rely on the weaknesses in the defendant's case. It ought to be noted that the description of the boundaries on the Certificate of purchase was in existence at the time the High Court held that the Certificate of purchase was not fraudulent; likewise, Exhibit 2 which was ordered to be drawn in the said case was before the court yet the court made it clear that that was the 2nd defendant’s predecessor’s land as described on the Certificate. Exhibit 5 reflects the boundary owners reflected in Exhibit 2. That same Exhibit 2 was what the plaintiffs also attached to their instructions for the composite plan. The 2nd plaintiff also admitted that the portion they had carved out as being their land and marked red in that composite plan was the area in dispute before the courts. Quite apart from that, the evidence of the land being the same as the one, the subject matter of the auction, was confirmed under cross-examination by the witnesses called, i.e. PW1 and PW2. Thus it is the opinion of the court that from the evidence led by the plaintiffs and their witnesses, the land is not different from the land that was in dispute before Justice Brobbey and Judge Tom Bentil. As already stated, that has been confirmed by the 2nd plaintiff himself. Indeed since per the plaintiffs' own showing, the land is the same, it means the 2nd defendant has been in possession of the land since 1979, and this court holds that the suit instituted by the plaintiffs seeks to re-litigate issues which had already been determined by a court of competent jurisdiction which has not been appealed. The 2nd plaintiff told the court that they had been chasing the said land for the past 43 years and also attested to the fact that they had been in court over the same piece of land for several years. In the view of the court, the plaintiff has not satisfied the burden imposed on them by law. Therefore the court cannot hold that the defendants have trespassed on their land since the land being cultivated by the 1st defendant falls within the land which was the subject of the auction. In any case, the plaintiffs even failed to call their boundary owners and failed to show that the defendants had trespassed beyond the land described in the Certificate of purchase. Whilst counsel for the plaintiff sought to say that in Exhibit 6, the land described by the defendants is located at Gomoa Odembo and not Odankwakwa, the plaintiff himself did not describe their land as being situate at Gomoa Odembo but rather at Gomoa Amoanda. Thus the question is, must the plaintiff be granted the land because he has proved his case or because the 1st defendant in Exhibit 6 has stated that the land is at Gomoa Odembo and not Odankwakwa? Certainly, a plaintiff who seeks a declaration of title cannot be granted that relief when he has not proved his claim but seeks to direct the mind of the court at the weakness in the defendants’ case. He must definitely fail in his claim. It ought to be noted that in the judgment entitled Opanyin Kwabena Effah of Gomoa Buduatta vs The Registrar, Amos Budu, attached as Exhibit 4 to the defendant's witness statement, the learned trial judge made it apparent in his judgment as follows; “His Lordship appointed a surveyor to draw a plan of the Odankwakwa land which the 2nd defendant herein in his evidence in chief said was accepted by the court and all the parties involved in the suit." Earlier in 1992, before Justice Brobbey, they challenged the ownership of the land by the defendant's predecessor, but the court held at page 4 of exhibit 3 that both defendants, who claimed they had been in possession of the land for over 300 years, had a hollow case. He stated that” if indeed the defendant and co-defendant had any legitimate grounds to impugn the sale which they especially the second co-defendant very well knew of they could not have waited for that long while the plaintiff remained in undisturbed possession of the land. This point becomes more relevant against the case made by the co-defendants who claimed that they had over 200 of their relations farming in or near the area in dispute.” It is, therefore, the finding of the court that the 1st defendant's grantors had been in possession of the disputed land for several years, as confirmed by the 2nd plaintiff. In this case of In Re Asere Stool Nikoi Olai Amontia iv (Substituted By Tafo Amon II) vs Akotia Oworsika III (Substituted By) Laryea Ayiku III [2005- 2006] SCGLR 637, 656 it was held that where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct. It is the opinion of the court that the fact that some of the names on the Certificate of purchase have been misspelt on the composite plan drawn in the 1992 case does not take away the fact that the disputed land is the same as determined by the High Court in 1992. Though the witness presented by the defendants confirmed that her late father’s land shares boundaries with the plaintiff’s land, on the composite plan ordered by this court, it is evident that it is the same land the plaintiffs have come to court to re-litigate over. The evidence of the parties, when juxtaposed, supports the conclusion that the defendant's assertion that it is the same land that was the subject matter of the auction and declared to belong to the ancestor of the 2nd defendant is more probable than the story of the plaintiff that the land on which the 1st defendant is working does not form part of the auctioned land. Therefore, I hold that the plaintiffs have failed to show that the 1st defendants have trespassed onto their land. It is the opinion of the court that on the totality of the evidence led the plaintiffs have failed to discharge the burden imposed on them by law. Unfortunately, this court cannot grant them a declaration of title because they have failed to show that the defendants have encroached on their land in the light of the declaration of a court of coordinate jurisdiction that the same piece of land belongs to the 2nd defendant’s predecessors. Their claims are hereby dismissed. Costs of GHC10,000.00 in favour of the defendants. MALIKE AWO WOANYAH DEY JUSTICE OF THE HIGH COURT CAPE COAST 23