Gbordzinor v Dagba and Another (E1/17/2021) [2023] GHAHC 687 (7 December 2023)

1 THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION CORAM: CHARITY A. ASEM (MRS.) J. SUIT NO: E1/17/2021 DATE: 7TH Dec. 2023 MOSES GBORDZINOR PLAINTIFF VRS. 1. DAGBA GODWIN 2. STELLA ALORBU-DAGBA DEFENDANTS Parties – Plaintiff - Present Defendants – 1st defendant present Lawyer: Kofitse Benedict for the Plaintiff - Absent Lawyer: Anthony Desewu for the defendants - Present JUDGMENT The plaintiff initially sued only the 1st defendant. The 2nd defendant was joined by the orders of the court upon an application in the course of proceedings as the purchaser of the disputed land, and per the amended claims filed on the 23/09/2020, the plaintiff suing in a representative capacity as a principal member of his family, sought the following reliefs against the defendants. i) A confirmation that plaintiff’s Gbordzingor family are the legitimate owners of the subject land per Dabala District Magistrate Court Judgment. ii) A declaration that Defendant has no legitimate tittle nor right of Entry to the subject land. iii) A declaration that any transaction in respect of the land between the Defendant and any other person other than the accredited Head and Principal members of the Gbordzingor family is void. iv) An order of the Court for the demolition of anything or any structure(s) brought upon the land by the Defendant. v) An order of perpetual injunction to restrain the Defendant his assigns, agents and any one claiming through him from interfering with the subject land in any manner whatsoever. vi) An order for the Recovery of Possession of the subject land by the Plaintiff from the Defendant. vii) Cost incidental to the suit. Upon service the defendants lunched what seemed as a strong attack in their amended defence, filed on the 11/04/2022. They denied the title and claims of the plaintiff. They averred that the Gugukpo lands rather form part of their grantor’s Agbi Family land. They contend that the plaintiff and his Gbordzingor family are occupying part of the Agbi family land at their behest. At best this is what their grantors told them. The Defendants story is that the father of the Plaintiff one Kwasivi Gbordzingor and the Plaintiff’s younger brother, Anthony Gbordzingor initially did make same representation to them, to wit that, the land in dispute was the absolute property of the Gbordzingor Family of Agorkpo. The Defendants say that, based on the aforesaid representation, the 2nd defendant, who is the spouse of the 1st Defendant, purchased the land in dispute from Kwasivi Gbordzingor. The Kwasivi Gbordgzingor having represented to them that he was the Head of the Gbordzingor family and so executed an Indenture on the 6th day of April, 2020 in favour of the 2nd Defendant. (This indenture however was not introduced in evidence before the court) my addition. The Defendants continued that, subsequent to the purchase of the land in dispute and the execution of the Indenture aforesaid, the 2nd Defendant took possession of the land, and erected corner pillars, molded blocks, dug foundation and commenced building thereon. But shortly after, the Plaintiff herein brought in police men to stop the work and reported the matter to the police at Sogakope. The disturbance was, reported to Kwasivi Gbordzingor. The Defendants aver that, Kwasivi Gbordzingor led some of his relatives to the Sogakope Divisional Headquarters of the Ghana Police Service to attempt to resolve the dispute. The Defendants aver further that, even though the Plaintiff was the complainant to the police, and was aware of the scheduled day and time for the settlement, he failed to turn up. The Defendants further aver that because the Plaintiff failed and or refused to turn up, Kwasivi Gbordzingor and his relative informed the police that they would settle the matter at family level, which they obliged. According to the defendants, it became evident at the family meeting that the land in dispute was part of the Agbi Family land. They were informed by the Agbi family that, Kwasivi Gbordzingor and his Gbordzingor Family were occupying the land as maternal members of the Agbi Family. In consequence of the aforesaid, Stephen Kwasi Agbi deceased, the then Head of the Agbi Family resold the land to them and executed another Indenture for the 2nd Defendant. This indenture was tendered as Exhibit 1 in support of defendant’s case. The Defendants further state that 2nd Defendant presented the Indenture aforesaid to Lands Commission, and the Land Valuation Division stamped same on the 29th day of September, 2020 numbered it LC/LVD/VR/ 1907/2020 and on the 30th day of September, 2020 the Lands Commission gave it a Registration number RV 1746/2020. To their surprise, the Plaintiff went to the Lands Commission Ho and stalled the registration. The Defendants in response to paragraph 6 of the Amended Statement of Claim aver categorically that the District Magistrate Court, Dabala Judgment was taken at the hind side of the Agbi Family. The defendants described the land in respect of which the Plaintiff has sued as, ALL THAT PIECE OR PARCE of land situate, lying and being at GORKPOR bounded on the Northeast by Vendors land, measuring 81.9 ft. more or less, bounded on the Southeast by Vendors land measuring 101.0 ft. more or less, bounded on the Southwest by a Proposed Road measuring 80.5 ft. more or less, bounded on the Northwest by Vendors land, measuring 101.0 ft. more or less and containing an approximate area of 0.19 of an Acre or 0,08 of a Hectare. After close of pleadings the following 10 issues were raised by learned lawyers for consideration by the court at directions. ISSUES FOR TRIAL BY PLAINTIFF 1. Whether or not Plaintiff’s Gbordzingor family are the owners of the subject land as per the Dabala District Magistrate Court Judgment dated 2nd February, 2017. 2. Whether or not the Defendants have the legitimate title or right of entry to the subject land. 3. Whether or not the occupation and use of the subject land by the Defendants is unlawful and constitutes trespass. 4. Whether or not the subject land is the property of the Agbi family. 5. Any other issue(s) arising from the pleadings but not specifically pleaded. The court received additional issues from defendants filed on the 13/10/2022. ADDITIONAL ISSUES FOR TRIAL BY DEFENDANT 1. Whether or not the land in dispute was lawfully sold to the 2nd Defendant by Kwasivi Gbordzingor the Head of the Gbordzingor family who executed an Indenture in her favour. 2. Whether or not the Gbordzingor family members are maternal family members of the Agbi family. 3. Whether or not the Agbi family hold the allodial title in the land in dispute. 4. Whether or not Mr. Stephen Kwasi Agbi, Head of the Agbi family subsequently executed an indenture in favour of the 2nd Defendant with regard to the land in dispute. 5. Whether the Gbordzingor hold usufructuary interest in the land in dispute. The court directed the parties to file and submit witness statement and any relevant documentary evidence for trial when the court conducted directions. On the 29/11/2022 plaintiff filed his witness statement. Attached thereto are Exhibit MO1 remarked as Exhibit ‘A’ – Judgment delivered by the District Court, Dabala, Suit No. L. 193/2012 between Johnson Akpalu & 2 Ors. Suing for and on behalf of Dunyo Akpalu family of Agorkpor V. Moses Gbordzingor & Anor as Defendants. The Judgment is dated 2/02/2012. Exhibit MO2 remarked as Exhibit ‘B’ Suit No. L 193/2012 from District Magistrate Court, Dabala between Johnson Akpalu & 2 Ors. Vs. Moses Gbordzingor & 1 Or and attached with a Judgment plan duly Plotted and registered by the Lands Commission. Exhibit B1 Exhibit MO3 remarked as Exhibit ‘C’ is Lands Commission document dated 29/10/2020 – Indicative of a search conducted by 2nd defendant Stella Alorbu-Dagba. The search result states that the whole site falls within a court Judgment dated 2/2/17 in favour of the Gborgzingor family, registered as, Document No. RV 1255/20. Another witness statement filed by David Gbordzingor on the 16/01/2023 has no exhibit attached. All other exhibits were tendered without objections. On the part of Defendants, 1st defendant filed witness statement on the 25/11/2022 for and on behalf of 2nd defendant who is his dear wife. Attached to his witness statement is Exhibit 1, A Deed of Conveyance made between one Stephen Kwasi Agbi Head and lawful representative of the Agbi family and Stella Alorbu-Dagba 2nd defendant herein. The Deed is dated 16/07/2020. It was tendered without objection. Three (3) other witness statements filed in support of defendants’ case from Justus Nuworkpor, Godson Agbi and Thomas Agbi all dated the 28/11/2022 contain no exhibit. The case proceeded to trial on 5/4/2023. The plaintiff opened his case, testified and relied on his witness statement together with the exhibits afore mentioned which were tendered without objection. According to the plaintiff he is from the Fievie clan of Agorkpor a principal elder of the Gbordzingor family of Agorkpor in the South Tongu District in the Volta Region. It is his case that the Gbordzingor family are the owners of Gugukpo Lands. According to him, his family become owners of the said land by virtue of discovery of same by their ancestors. That they have been in possession, use and control from time in memorial. He states further title to the wider Gugukpo land was affirmed by the District Court, Dabala as shown in Exhibit A, when in the year 2012, some of their tenants’ dare challenge their title to portions of the disputed land. That his family followed due process of law to have the Judgement plotted and same registered at the Lands Commission, Ho (Exhibit B1). It is plaintiff case further that, the defendants have trespassed unto their land. Their act of trespass is a building under construction up to the window level. Though defendants were cautioned they refused, defied all warnings hence the instant suit. Plaintiff concluded that the land under construction is a smaller piece of land within the Gugukpo lands adjudged in their favor per Exhibit A and B1 (supra). It is plaintiff case further that Kwasivi Gbordzingor is his Head of family. He is old and senile and due to that he (plaintiff) has been acting on his behalf. According to him, Anthony Gbordzingor, his younger brother, has occasionally lured Kwasivi Gbordzingor to attempt to sell the family land without the consent of the family. He denied that defendants’ grantors, the Agbi family are owners of the disputed land and so, they cannot legally alienate same to the defendants. He denied any maternal family ties with the Agbi family. PW1 is David Gbordzingor. His narration is not deferent from plaintiff’s story. He affirms however that Kwasivi Gbordzingor is their Head of family though old and senile. Both witnesses were extensively cross-examined by counsel for defendants. I may have reason to refer to portions later. The 1st defendant testified on behalf of the defendants, and relied largely on his witness statement. Per his witness statement, Kwasivi Gbordzingor in his capacity as Head of the Gbordzingor family sold the disputed land to them for which they paid the sum of GH¢12,000.00 to him. But the land turned out to be for their present grantors the Agbi family, which resold the land to them for the same amount. The defendants did not exhibit the receipt nor the said indenture as said earlier. The law is that where a party makes reference to a document but fails to tender it in evidence, the inference is that such a document never existed or if it did, it contained not the averments it was supposed to contain. See the case of BOUSOAKO CO. LTD V. COCOA MARKETING BOARD (1982-83) 2 GLR 824 @ 827. DW1 confirmed the story of 1st defendant. He could however not substantiate the ownership dispute between the Gbordzingor and Agbi family because he does not hail from either side of these families except to introduce the defendants who were in need of land to purchase. The next important witness called by the defendant is Godson Agbi. According to this witness, he is a clan head of the Agbi family. According to him his grandfather Katse is the owner of the Fievie land. He continued that, the plaintiff’s forefathers were amongst strangers who were allocated portions of the disputed land by his ancestors. Like other strangers, they got married into the Agbi family for that matter, the present plaintiffs are their maternal relatives. He was emphatic that the disputed land located in Agorkpo is for his family. He denied fiercely the title of the plaintiff’s family in the disputed land and contend forcefully that, the judgment plaintiff holds from the District Magistrate Court, Dabala was obtained on their blind side. I believe the appearance of Godson Agbi the new head of Agbi family is in fulfilment of the Supreme Court decision in the case of; SALOMEY SHOME TETTEH & NII AMON TAFO V. MARY KORKOR HAYFORD (SUBST) STELLA LARBI & COMFORT DECKER (infra) that, “There is an obligation on a grantor, lessor or owner of land to ensure that any grant he purports to convey to any grantee, or lessee is guaranteed and that he will stand to defend the interest he conveyed to any grantee or lessee….” In due cause it will be clear whether the arsenals he brought were enough to guarantee what he conveyed to the defendants. As observable, myriad of issues have been set down for determination but before I proceed to deal with the issues, counsel for defendant has raised two pertinent issues in his written submissions filed on the 13/11/2023 which caught my attention, and I pause to discuss them. The issues are; 1. The issue of capacity of plaintiff to mount the instant action because he is not the head of the Gborgzingor family. 2. The failure of the plaintiff to serve the writ of summons on the head of family per Order 4 r 9(3)(4) of C I 47 High Court Civil Procedure Rules, 2004. According to counsel for defendants, by customary law, it is the head of family who has the capacity to sue, and be sued with regard to family property which is known as the rule in Kwan v. Nyieni, codified per the provisions of Order 4 r 9 (2) of C I 47. That the plaintiff in his pleading said, he is suing because, the substantive family head is unwilling and unable to act to save the family property. Counsel stressed that, if it be true that the head of family is unwilling to act, the rules of court enjoins the plaintiff per Order 4 r 9(3) who is legally bound to comply Order 4 r 9(4) to serve the writ on the unwilling head of his family. Learned counsel submitted that for this failure, plaintiff’s action ought to fall. He emphasized that for the above reasons the plaintiff lacked the requisite capacity to bring this action and thus prays the court to dismiss the action. Without further determination of the merit of the case. The position of the law is that where the plaintiff is not clothed with capacity to institute the action, the court is not supposed to deal with the merits of the case as their Lordships did in the case of Akrong v. Bulley (infra). In the case of ALFA MUSAH V. Dr. FRANCIS ASANTE APEAGYEI, Anin Yeboah JSC (as he then was) stated the rule plainly thus; “We think the law is that, when a party lacks capacity to prosecute an action the merits of the case should not be considered………. if a suitor lacks capacity it should be construed that the proper parties are not before the court for their rights to be determined.” The above decided cases, and many other judicial pronouncements on requisite legal capacity of a parson to sue is not lost to this court. Now, I recall that soon after the 2nd defendant was joined to the suit, she filed a motion on 23/02/2022 to set aside the writ of summons and statement of claim on the ground that; (a) the plaintiff lack capacity and also (b) Failed to serve the writ on his head of family Kwasivi Gbordzingor. In the wisdom of the court upon hearing the motion, I directed the plaintiff to serve the writ on his head of family, who happened to be his father, as the end of justice demand that, the courts exist to do justice and be fair to all who appear before it. Bearing in mind the application of Order 1 r 1(2) of High Court Civil Procedure Rules, C I 47 and doing substantial justice between parties and not to let that aim be turned aside by technicalities. Hodo v. Gbogbolulu (1941) 7 WACA (the emphasis is mine). From the record of this court, the directive to serve Kwasivi Gbordzingor was complied with. Subsequently, two deferent sets of affidavits were received from the said Kwasivi Gbordzingor. Thus on the 17/03/2022, the said Kwasivi Gbordzingor filed an affidavit from the camp of the plaintiff in which he acknowledged the service of the writ on him and sort of gave his blessings for plaintiff to proceed due to his old age and health condition. The second affidavit was filed on the 29/03/2022 which I believe came from the camp of the defendants, wherein the said same man denied service and or his approval of the plaintiff to mount the instant suit amidst other lamentations. The question therefore to pose is if he did not receive the writ of summons, what was he responding to in both affidavits filed before the court? Clearly, there seemed to be some form of manipulation of the said old man from both sides of the divide perhaps due to his old age and health condition alluded to in both affidavits. Flowing from the above discussion, it is evident that the said Kwasivi Gborgzingor become aware of the instant suit upon the courts directive. He however did not apply to join the suit. It is observable from both opposing affidavits that, he said he is old and has not been physically active. From the records I have become satisfied that the writ has been brought to his attention as mandated and directed by the court. Significantly, the ruling of this court dismissing the motion to set aside the writ and statement of claim as stated above has not been appealed. This has settled the issue of the plaintiff’s capacity. If dissatisfied, Counsel for defendants ought to have set down the issue of capacity of the plaintiffs for determination at direction and challenge him with cogent and satisfactory evidence. This position of the law was discussed in the case of; Anane v Afriyea (1940) 6 WACA 169 @170. The point is made very clearer and supported with the statement by the learned authors of the White Book in the following words that; “If a party seeks to raise a new question which has already been decided between the same parties by a court of competent jurisdiction, this fact may be brought before the court by affidavit and the statement of claim, though good on the face of it may be struck out, and the action dismissed; even though a plea of res judicata might not strictly be an answer to the action; it is enough if substantially the same point has been decided in a prior proceeding.” The rule in Kwan v Nyieni (supra), and the exceptions cannot be over emphasized. Exhibit ‘A’ shows that the plaintiff and one other were sued in suit No. L.193/2012 where they successfully defended the title of the Gborgzingor family to the Gugukpo lands at Agorkpo, part of it which is in dispute currently. In the eye of this court the plaintiff has represented the family to the knowledge of Kwasivi Gborgzingor and the entire Gborgzingor family. In view of the fact findings above, the court holds the view that, having failed to appeal the ruling of 17/03/2022 the issue cannot be raised in an address of counsel for and on behalf of defendants for consideration. To conclude on this issue, the law is that, a point of law such as capacity or lack of same can be raised at any time in the cause of the proceedings even on a second or third appeal and matters of capacity always have the inherent potentiality to render a proceedings null and void. A case in point is the Supreme Court case of; STANDARED BANK OFFSHORE TRUST CO. V. NIB & ORS (2017) 113 GMJ 174 SC. The plaintiff’s writ and the endorsement showed that he brings this action in a representative capacity suing for and on behalf of the Gborgzingor family of which his position as a principal member has not been denied. Though the general rule is that it is the head of family that should sue for the defence or protection of family property, there are exceptions to that general rule, where the law allows any other member of the family to sue for the protection of the family property where it is shown that the head for some reason, will not act, the court is likely to entertain such a suit by any member of the family, subject however to the court being satisfied that the ultimate objective is the preservation of the family character of the property. From the discussions thus far and upon careful study of the entire pleadings and the after events I have no doubt that the plaintiff is clothed with capacity to mount this action and prosecute same. That is my take on the two issues. I procced now to consider the issues set down for determination and I propose to combine plaintiff’s issues 1, and 4, defendants issue 3 and 5 as the cardinal issues that must engage the attention of this court. Which can be simplified as whether or not the disputed land belongs to the Gborgzingor family or the Agbi family of Fievie Agorkpo. I hold the view that the determination of defendants issues 1, whether or not the land in dispute was lawfully sold to the 2nd defendant by the Agbi family will be dependent on the outcome as which family hold valid and legal title to the land. In respect of defendants issue 2, I will not pretend not to have noticed some truth in the evidence concerning some family relationship between the parties, but the determination whether or not they are maternally related, is not germane to resolving title to the disputed land. It appears the relationship bridge has been divided and I have no satisfactory evidence to attempt to mend same. The general position of the law on proof is succinctly captured by Kpega JA (as he then was) in the case of ZABRAMA V. SEGBEDZI (1991) 2 GLR 220 @ 246; where he said; “…………a person who makes an assertion, which is denied by his opponent has a burden to stablish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden……” It is trite learning that the necessity of proof (burden of proof) lies on the person who alleges to proof what he asserts failure of which he cannot fine favour with the courts. The plaintiff in the instant case caries the burden to prove his claim on the preponderance of probabilities as required by the rules of evidence. Please see Section 14 of the evidence Act, 1975 NRCD 323. GIHOC REFRIGERATION & HOUSEHOLD V. JEAN HANNA ASSI. The plaintiff claimed declaratory of title to the disputed land and recovery of possession. The defendants have challenged plaintiffs title to the land though they were mere purchasers from the AGBI family. The law is that by that declaratory relief, and recovery of possession the plaintiff has put his title in issue and bare the duty to prove same. The duty of the plaintiff in land litigation has been captured in myriad of judicial pronouncements of the courts. It is the law that the plaintiff in an action for declaration of title must succeed on the strength of his own case and not on the weakness of the defence, though in an appropriate case where the defence supports that of the plaintiff, the plaintiff is entitled to rely on such evidence in support of his case to prove his case. LAMISI AREMU V. ALHAJI LAWAL ADETORO (2001) SCNR page 418. In the case of UNION OF INDIA & ORS V. VASAVI CO-OP HOUSING SOCIETY LTD & ORS (CIVIL APP NO. 4702 OF 2004) it was held that, “In civil suit for declaration of title the burden always lies on the plaintiff to make out and to establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be ground to grant a relief to the plaintiff.” Our own Supreme Court in the case of DOWONA II V. OLEMOLON (2006) MLRG 154 @ 168 per Aninakwah JSC decided that, “it is trite learning, plaintiff seeking title, the onus rest upon him to prove his case.” See again BARKER-WOOD V. NANA FITZ (2007) SCGLR 879. To prevail in an action for declaration of title to land, the claimant has a duty to establish his acquisition or root of title; this position was clearly stated again in the case of; MOMDIAL VENEER GHANA LTD V. GYEDU XV (2011) SGCLR 466 @ 475, where it was decided that; “In land litigation………. the law required the person asserting title and on whom the burden of persuasion falls, as in this instance, to prove the root of title of acquisition and any acts of possession exercised over the subject matter of litigation. It is only when the party has succeeded in establishing these facts on the balance of probability that the party would be entitled to claim.” In all my understanding, the courts will make determination of each case based on cogent, credible and proven facts. In support of plaintiffs evidence he tendered exhibit ‘A’ ‘B1’ and ‘C’. According to him in Suit No. L193/2012 the Akpalu family of Agorkpo are their subjects but challenged the ownership right of the Gborgingor family and lost. According to him there was clear evidence that the plaintiff’s ancestors’ were placed on the land by his ancestors and not the Agbi family. He stressed further that evidence was led to show that for the many years, the plaintiffs in exhibit A, has paid homage to the Gborgzingor family. Apart from the judgment, plaintiff tendered without objection a judgment plane exhibit B1. He also exhibited, Exh ‘C’ a search conducted by the defendants herein at the Lands Commission Department Ho, but they were not bold to present it because of the result they found. Exhibit C is clear in words that, the whole arear is covered by a judgment obtained in favour of the Gborgzingor family. The court accepts Exhibit B1 document as credible emanating from a government institution, the lands commission as its validity, no objection was raised. Ownership of land can be by document or by series of documents or by clear acts of possession. Nsowaa & 2ors v. Baba & Ano. (2015) 86 GMJ 24 CA. As I mentioned earlier, it is expected of any grantor worth his sort to stand to defend that which he granted to a grantee. SALOMEY SHOME V. MARY KORKOR (supra). As the issues stand, the defendants are mere purchases of the portion of the Agorkpo land at Fievie, they have no capacity to testify to the ownership right of either the plaintiff’s family or the Agbi family unless they have a strong arsenal from their grantor to turn the fortunes. The evidence of the Agbi family of ownership right of the disputed land was rather abysmal and did not impressed this court at all. According to the head of the Agbi family, the Kpobi, Gbordzingor, Dunyo and Akpalu’s and others are their subjects. To this assertions, he offered a very weak and unsatisfactory evidence. The head of the Agbi family stated in his evidence that the plaintiffs were on the Agorkpo land by virtue of that maternal relationship which was forcefully denied by them. A part from these mere assertions nothing satisfactory was introduced of probative value worthy of analysis. Contrary to his assertions however, the Dunyo/Akpalu family has acknowledged the Kpobi/Gborgzingor in exhibit A as their grantors of the Gugukpo lands, which they and their ancestors have occupied for over 130 years and have paid customary tolls for farming and cattle rearing. This was vividly captured by the trial Magistrate in Exhibit ‘A’. Though Agbi family became aware that the plaintiffs have a valid judgment from a court of competent jurisdiction, they did nothing. When the defendants’ grantor testified, he was crossed examined extensively I must say. And for the purposes of the conclusion to be drawn, I wish to reproduce potions thereof of the exchanges; Q: Do you know of Dunyo Akpalu family from Fievie Agorkpo A: Yes Q: How do you know them A: They are also stranger at Agorkpo Q: Are you aware that they have been rearing cattle for a long time in Agokpo. A: Yes. Q: Do you know who gave them the land. A: In the Kpobi family, we gave them land to rear cattle. Q: I put it to you that in Exhibits ‘MO1’ and ‘MO2’ the Dunyo Akpalu family recognized the plaintiff’s family as having granted them forbearers for over 130 years. A: They are two strangers in that suit and I do not know anything concerning their matter. Q: Can you remember within the past 130 years making a case against the Dunyo Akpalu family and Kpobi family in respect of the Agorkpo land? A: we did not against the Dunyo Akpalu but we were witness for them in the High Court, Ho. Q: You have never taken any royalty from the Kpobis or Akpalus as your licensees. A: We have not taken any royalties from them. We just taken them as our brothers and live as a family. Q: You were aware that there was a dispute between Dunyo Akpalu family and the Gbordzingor family in respect of the Agorkpo lands. A: I have never heard it. Q: I put it to you that none of them recognized your interest in the land that is why they did not call you. A: Those two are strangers and they never brought their disputes to me so I do not know. Q: Can you remember how long the Dunyo Akpalu and Kpobi have been on the land rearing cattle. A: No. it has been a long time. Q: This was long before you were born. A: Even if it is a case the land belongs to my grandfather. Q: Can you describe the land being litigated over presently. A: I will say that the land is with the descendants of the Agbi family. Q: Can you describe the particular land you sold to the 2nd defendant. A: I am saying that the land is that which the defendant was sued. In the case of; Jacqueline Asabre & Anor v. Johnson Aboagye Asim (2017) 109 GMJ 206 CA, per Ayebi JA held at holding 12 thus; “We wish to advise and remind counsel humbly that in a court of law, the merits of a case are not determined based on suspicious feelings or emotions of the appellant or any party. Cases are determined on the basis of the evidence led in support of the facts alleged in the pleadings. Counsel should take note.” And so having intensely denied the plaintiffs title to the disputed land it appears the witness did not appreciate the weight of the questions posed to him. The courts have consistently declined the invitation of litigants to appeal to emotions. (the emphasis is mine.) It is not the business of the court to go a fishing for evidence for a party’s case hence it is accused of descending into arena of conflict. It must be noted that the Agbi family is not a party to this action. They have no relief before the court. I would think that the wise thing to have done was to join the action and properly challenge the plaintiff’s title to the disputed land if they were mindful. Though they had legal representation no such steps were taken. I certainly have examined and studied the judgment contained in exhibit ‘A’ vis avi exhibit B1 and C, the judgment plan of the plaintiff and am satisfied that it is the same land under contention. Further that, the defendants do not have what it takes to challenge the title of the plaintiff and his family. And to add that, that judgment is valid until set aside by a court of competent jurisdiction, when a more superior title is shown. Notably, Pages 7, 9 and 10 of that judgment of exhibit A is very instructive. To the extent that evidence adduced showed that the defendants then, now plaintiffs herein are descendants of Ziamesti whom the Dunyo/Akpalu’s admitted to have granted the land to their forefathers for farming over 130 years. They admitted to have paid customary tolls for years. The court found as a fact that, if the land was gifted to them (which they failed to prove) they would not have been paying tolls to the Kpobi/Gborgzingor family whose forefather was Ziametsi. The trial Magistrate held rightly so, that long possession did not ripen into ownership. This court is satisfied that the plaintiff has made a strong case in prove of his family’s title to the disputed land by introducing satisfactory evidence. CONCLUSION From the totality of the evidence before this court, the defendants have not been diligent the least in my candid view in acquisition of the land they contend over. It beats any imagination that defendants could fall cheaply for the twisted stories told by Kwasivi Gborgzingor, Stephen Agbi and others to which they parted with huge sums of money on two occasions without satisfactorily investigating their title. More especially when the complainant, the plaintiff herein refused any form of settlement with the Agbi family, that was a clear red flag to which the defendants closed their eyes. In the case of; KUSI & KUSI V. BONSU (2010) SCGLR 60, at holding 9; His lordships said; “Any person desirous of acquiring property ought to property investigate the root of title of his vendor. In the instant case there is no evidence of search conducted by the defendants. In their own pleadings they had asserted that they only inspected the title deeds of the assignor coupled with the permit for construction and were satisfied. The record did not show that, they even sought professional advice before entering into the transaction. In the view of the majority of the court, the steps they claimed they took were not adequate steps of prudent purchaser of that particular property.” It is clear from the stories told by the defendants that they did not exercise due diligence cap with prudence in purchasing the land. This calls to mind why the defendants were not bold to introduce exhibit C when they conducted a search after the purchase. If they had conducted the search earlier, the result would have guided them. In situations like this the defendants receives no pity from the court. Therefore, the determination whether or not the land in dispute was lawfully sold to the 2nd defendant by the Head of the Agbi family is resolved in the negative. The law is that one cannot give what he does not have. The plaintiff acting in a representative capacity as a principal member of the Gborgzingor family has discharged satisfactorily the burden of establishing positively the identity of the disputed subject matter land, acts of possession and is entitled to his claims before the court. I find his evidence credible in terms of Section 80 of the Evidence Act, (NRCD 323). One of the means by which a court determines credibility is through the substance of the testimony of the witness. I particularly find no substance in the evidence of the head of the Agbi family in support of the defendants’ case. His testimony revealed no practical evidence through the stories told. Before my ink dries; l will to touch on one last concern of counsel for the defendants and that is the issue of; the location of the plaintiff’s land whether or not it is located in South or North Tongu? Counsel for defendants in his written submissions at page 18 thereof stated that, even though the plaintiff claimed that the land in respect of which he sued the defendants was in South Tongu, plaintiffs site plan shows the land is located in North Tongu. And thus concluded that the plaintiff is not entitled to his claims against the defendants. This court is not unaware that the failure by a person who seek declaration of title to clearly describe the identity of his land will not receive favour from the court. Firstly, the site plan tendered by plaintiff was not objected to. The law also is that the rejection of a parties document is not automatic failure of the case unless the entirety of the case depended on the said document. This was the decision of the court in the reported case of; WEST AFRICAN ENT. V. WESTERN HARDWOOD ENT. (1995-96) 1 GLR 156 holding 2 that; “…………when in a trial an exhibit was found to be ineffective and invalid and thus inadmissible, the court was duty bound to consider further whether there was no other evidence to support the party’s claim. Accordingly, the invalidity and inadmissibility of an exhibit did not mean automatic failure of the party’s claim unless the pleadings and evidence for the claim could not be sustained on any ground apart from the exhibit.” See also the case of EMMANUEL ERSKINE & An. V. VICTORIA OPTI & ANO. Civil Appeal No. J4/23/2016 where the Supreme Court reiterated the above principle of law. I noted that the plaintiff’s site plan shows that the land is located in South Tongu. The appearance of the “North Tongu” on Exhibit B1 (site Plan Attached as judgment plan) must be the devils finger and one needs not look hard to ascertain the fact that the Lands Commission officer inadvertently made the wrong entry of North instead of South Tongu. I believe that if counsel for defendants observe critically he will see the obvious mistake. Besides, the anomaly does not go to the root of the case since all other descriptions show that the land under contention is located at Agorkpo in the South Tongu District of the Volta Region. The observation is a slip which is pardonable. Therefore, this court finds on the balance of probabilities that the plaintiff’s case is more probable than that of the defendant and decree as follows; 1. A confirmation that the Gborgzingor family are the legitimate owners of the subject matter land per the judgment delivered by the District Magistrate Court Dabala dated 2/02/2017. 2. That the Agbi family has no valid title to the disputed Agugukpo land per exhibit A, and B1 the judgment plan and so defendants have no legitimate right of entry to the subject land. 3. This court by virtue of the title in favour of the plaintiff family declare any grant of same by the Agbi family to the defendants as void. 4. The court denies plaintiffs relief (d). I take heed from the directives to the court to desist from making demolition orders in land litigations. 5. The court further decree perpetual injunction to restrain the defendants, assigns, workmen, agents and any persons claiming through them from interfering with the subject land in any manner whatsoever. 6. Plaintiff family is entitled to recovery of possession. 7. Cost is assessed in favour of the plaintiff at GHC20,000.00 Judgment for the plaintiff herein. H/L CHARITY A. ASEM (MRS) (JUSTICE OF THE HIGH COURT) (SGD.) REFERRENCES 1. Bousoaḳo Co. Ltd v. Cocoa Marketing Board (1982-83) 2 GLR 824 @ 827. 2. Salomey Shine Tetteh & Nii Amon Tafo vs. Mary Korkor Hayford (Subst.). 3. Kwan v. Nyeini 4. Alfa Musah v. Dr. Francis Asante Apeagye. 5. Hodo v. Gbogbolulu (1941) 7 WACA. 6. Anane v. Afriyie (1940) 6 WACA 169 @ 170. 7. Standard Bank Offshore C, v. NIB & Ors. (2019) 113 GMJ 174 SC. 8. Zabrama v. Segbedzi (1991) 2 GLR 220. 9. Gihoc Refrigeration & Household v. Jean Hanna Ass. 10. Lamissi Aremu v. Alhaji Lawal Adetoro (2001) SCNR Pg 418. 11. Union of India & Ors v. Vasavi Co-op Housing Society Ltd. (Civil Appeal No. 4702 of 2004) 12. West African Ent V. Western Hardwood Ent (1995-96) 1 GLR 156 @ holding 2. Order 4 rule 9 of High Court Civil Procedure Rules C. I. 47. 2004 Order 1 rule 1(2) of C. I. 47. Section 14 of Evidence Act 1975 (NRCD 323) Section 80 of Evidence Act. Dowona II Olemolon (2006) MRG 154 @ 168. Barker-Wood v. Nana Fitz (2007) SCGLR 879. Momdial Veneer Ghana Ltd. V. Gyedu XV (2011) SGCLR 466 @ 475. Nsowaa @ Ors v. Babar & Anor. (2015) 86GMJ 24 CA. Kusi & Kusi v. Bonsu (2010) SCGLR @ holding 9. END 28