IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2026
CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)
ASIEDU JSC
GAEWU JSC
KWOFIE JSC
AMALEBOBA JSC
CIVIL APPEAL
NO. J4/69/2024
25TH MARCH, 2026
ADONGO ALOGTE ………… PLAINTIFF/RESPONDENT/APPELLANT
VRS
1. PETER AKOLGO AKUNLIBE DEFENDANTS/APPELLANTS/
2. STEPHEN AGEYIRIBA AGANA RESPONDENTS
J U D G M E N T
LOVELACE-JOHNSON JSC:
On 16th December 2020 the High Court sitting at Bolgatanga gave judgment for the plaintiff in this matter and dismissed the counterclaims of both defendants as lacking merit.
Being dissatisfied, the defendants launched an appeal to the court of appeal which reversed the judgment of the high court and entered judgment for them.
The plaintiff being dissatisfied with this reversal, has launched the present appeal on the following grounds:
The judgment of the Court of Appeal is against the weight of the evidence
The Court of Appeal erred when it held that there was a valid customary arbitration over the ownership of the disputed land, which award bound the Plaintiff/Respondent/Appellant
Particulars of error
The meeting held on 10th September, 2016 between 1st Defendant/Appellant/Respondent and Abeebange (deceased) before the Tindana Ayeta did not meet the pre-requisites of a valid customary arbitration against Plaintiff/Respondent/Appellant, to wit, voluntary submission of Plaintiff/Respondent/Appellant to arbitration and be bound by the award.
The court of appeal erred when it came to the conclusion that Abeebange admitted before the Tindana that the disputed land belonged to the 1st Defendant/Appellant/Respondent family.
The court of appeal erred when it held that the purported admission made by Abeebange before the Tindana bound the Plaintiff/Respondent/Appellant
The court of Appeal wrongly evaluated the documents of 1st Defendant/Appellant/Respondent by declaring title in favour of the 1sd Defendant/Appellant/Respondent resulting in a serious miscarriage of justice.
The relief sought from this Court is a setting aside of the judgment of the Court of Appeal and the restoration of the judgment of the High Court
The designations of the parties at the trial court will be maintained in this appeal.
By his amended writ at the high court the plaintiff had claimed the following reliefs
A declaration that all that piece of land lying and situate at Tindonmolgo-Tingre, Bolgatanga and bounded to the North by the Acheka clan farm lands; bounded to the West by the Acheka clan farm lands; bounded to the south by the Acheka clan farm lands and bounded to the East Acheka clan farm lands is the family land of the Agezeele family of Acheka clan of Tindonmolga-Tigre of which the Plaintiff is the head
An order of Perpetual Injunction restraining the Defendants, their workmen or agents, assigns and customary successors from interfering with the Plaintiff’s ownership, possession and quiet enjoyment of the plot of land
An order of court for the Defendants to demolish or remove whatever structure or building materials constructed or deposited by them on the said land and to close up and cover any trenches/holes defendants have dug or caused to be dug on the said plot, or in the ALTERNATIVE,
Plaintiff be at liberty to demolish and remove the structure or remove the building materials and to close up and cover any trenches/holes defendants have dug or caused to be dug on the said plot and the cost surcharged on the defendants for payment.
General damages for trespass
Costs
As stated earlier, the high court had granted him his reliefs. In setting aside this judgment, the court of appeal upon evaluating the evidence under ground (h) of the grounds of appeal before it ie
“the judgment of the trial court is against the weight of evidence”
came to the conclusion that “the trial court failed to properly consider the evidence adduced at the trial which led to the Plaintiff being declared as the owner of the disputed land” and declared the 1st defendant the owner of the disputed land and declared its sale to the 2nd defendant lawful.
We shall deal with grounds (iii) and (iv) together since their resolution depends on whether there was an admission by Abeebange of the 1st defendant’s ownership of the disputed land before the Tindana and its import on the plaintiff’s case.
It is to be noted that the plaintiff abandoned his second ground of appeal in his statement of case because the court of appeal had stated that it did not “think the nature of the proceedings before the Tindana would in any way water down the admission made by the Abeebange and the evidence led by the 1st defendant in proof of his family’s ownership of the disputed land”.
In sum, on these two grounds, it is the case of the plaintiff that the 1st defendant failed to prove that such an admission took place and further that he, the head of family, was bound by it when he was not even present when the alleged admission was made.
The 1st defendant on the other hand contends the admission that his family owns the disputed land was sufficiently corroborated by the evidence of the Tindana during the trial and that plaintiff was present at the said customary meeting so this admission by Abeebange is binding on him.
An appeal being by way of rehearing, we shall evaluate the evidence on record regarding this admission to determine if the latter was proved on the balance of probabilities.
The Court of appeal stated that there is ample evidence on record to support this alleged admission by Abeebange. The court then proceeded to evaluate the evidence of the Tindana regarding what took place before him and stated that by providing the items demanded for purification by the Tindana, he had accepted that the land belongs to the family of the 1st defendant.
What is the evidence on what took place before the Tindana? This exercise is necessary not just for the purpose of determining the nature of that meeting but to evaluate the import and weight to be put on those proceedings since they were used as one of the bases for the conclusion that the disputed land belongs to the 1st defendant
In paragraph 13 of the 1st Defendant’s statement of defence and counterclaim, he pleaded as follows:
1st Defendant adds in explanation to paragraph 6 of the Statement of Claim that the above-mentioned that the said ABEEBANGE who through his father ATOGUNSAAYA ATONGO was settled on the disputed portion of 1st Defendant’s land and was later relocated was part of an arbitration meeting at the present TINDAAN AYETA AYIMBIRE of Tindonnmoligo’s house on 10th September 2016 in the presence of the 1st Defendant, the Plaintiff and his uncle AVANYUURE where ABEEBANGE recognized 1st Defendant family’s title to that portion of the disputed land herein and the Tindana so declared in favour of 1st Defendant, contrary to Plaintiff’s claims’
It is clear from the judgment of the court of appeal that, that court was satisfied that the above arbitration took place. At page 586 of the record, the court states in part as follows
‘We need to set some undisputed facts straight…….The parties agree that they appeared before the Tindana and a decision was taken which was that the land in dispute belongs to the first defendant.’
During the trial, the 1st defendant told the court that Abeebange admitted during the alleged arbitration that the disputed land belong to the 1st defendant family. He allegedly subsequently apologised and was ordered to produce some items for pacification of the gods.
This purported admission was denied by the Abeebange’s brother who was present during the said arbitration. The trial thus rightly observed at page….:
“It would appear Abeebange died before the actual hearing of this case began and he could not have been available to testify but the defendants chose to put up the allegation that he accepted his family was settled on the land by the first defendant’s ancestor when he and the first defendant appeared before the Tindana. The allegation against Abeebange was denied by his younger brother who said he was present at the meeting in the Tindana’s house. Let me clarify, and reproduce his cross-examination by counsel for the defendants:
“Q: You recall your late brother Abeebange taking 1st Defendant before Tindan Ayeta Ayimbire?
A: Yes, I do.
Q: Cast your mind back you accompany your brother Abeebange to that meeting?
A: That is true.
Q: Further cast your mind back to the proceedings, there was a man by name Ayanyuure still alive?
A: I do not know Ayanyuure.
Q: Do you know plaintiff very well?
A: Yes, I do.
Q: How well do you know him?
A: It was his father who gave the land to us.
Q: Your elder brother Abeebange, at the meeting he summoned 1st Defendant before the Tindaana plaintiff was at the meeting?’
A: Yes, I do.
Q: you remember after the meeting your elder brother was made to provide a cock, pito and a sheep as sacrifice?
A: That is not true.
Q: Can you tell the court what happened at this meeting?
A: 1st the defendants bought a cow, invited us and told to take the cow to the Tindaana and shared the remaining of the proceeds from the sale of the land. At this point we told first defendants that he had been selling lands and has never involved us in the sharing of his proceeds. We asked if it is because he has robbed us of our land that he wants us to get involved in the sharing of his proceeds.
Q: what was his final decision of the Tindaana?
A: He told us that if we were not happy with his decision making we could go wherever we wanted. So, we told those who gave us the land what the Tindaana said.
Q: Infact, the Tindaana found the land belonged to 1st defendant and said if you were not satisfied you could go wherever you wanted?
A: 1st defendant is not for the land.
Q: I put it to you that the Tindaana said the land belong to the 1st Defendant’s family and said if your family was not satisfied you could go wherever you wanted?
A: That is not true when our father occupied the land the 1st Defendant’s father was not born so when they gave birth to 1st Defendant’s father my father named him Akuniebe.
Q: After listening to the two sides, the Tindaana did not say Abeebange is the owner of the land and you were not happy with the decision?
A: We were not happy because the land does not belongs to them.
Q: After your late brother left the Tindaana he was not happy because the Tindaana found that the land belongs to the Akunlebe’s family?
A: He was not happy because the land does not belong to the 1st Defendant?
Q: It is your displeasure your displeasure with the findings by the Tindaana Ayimbiri that you agreed to testify for the plaintiff?
A: It is plaintiff’s father who settled us, so I am coming to tell the court the truth.”
The court further observed :
“The court is unable to accept without question the Tindana’s evidence in the view of conflicting position put up by the plaintiff and his first witness. It is material the witness was present at the meeting in the house of Tindana. His answers to questions during the cross-examination left no doubt that the Tindana, on his own, declared the land to be owned by the first defendant, and told Abeebange that if he was not satisfied with the decision, he could do whatever he wanted. Considering the evidence regarding the proceeding before the Tindana, I am unable to accept the conclusion of the defendants and their lawyer after discussions, Abeebange got to know that the land did not belong to the plaintiff’s family; that Abeebange subsequently apologized because he was from Tanzui, and was ordered to produce some items for pacification of the gods. That assertion was also denied by the witness. The proof of claim against Abeebange must be strict and utterly convincing, as he was dead, to be believed by the court. It is undeniable, as he explained in the case of Kusi & Kusi vs. Bonsu [2010] SCGLR 60, holding 5, on page 67
… As the assertion of the Tindana, and for that matter the case of the first defendant that Abeebange apologized at the meeting upon realizing it was the first defendant’s ancestor who settled his ancestor on the disputed land was denied by the witness who was at the meeting, it was imperative for the defendants to have called some of those who were present at the meeting to corroborate their case. It was said by the Tindana that representatives of the various Tindonmolgo clans were present. Some of them would be neutral to both plaintiff and the first defendant and would have likely presented the truth of what happened at the meeting to the court. No such witness was called.” (See pages 421-424 of trial courts)”
Indeed, the cross-examination of the Abeebange’s younger brother reproduced above supports the conclusions of the trial court. The trial court was right in holding that the 1st defendant failed to discharge the burden on him as regarding Abeebange’s alleged admission of the 1st defendant’s ownership of stated in paragraph 13 of 1st defendant’s defence.
Despite the denial of this admission and the denial of an alleged presentation of any acceptance items the 1st defendant failed to call any of the witnesses allegedly present when these items were presented to acknowledge his alleged ownership of the land.
It is admitted that PW1 stated in answer to a question in cross examination that plaintiff was present at the arbitration meeting. It has to be noted however that even if Abeebange’s brother (PW1) had considered his late brothers alleged admission that would not automatically bind the plaintiff unless it was proven that this was a valid customary arbitration whose outcome would bind him. Plaintiff position (whether he was present or not) is that he never accepted and does not accept that 1st defendant family owns the disputed land.
Seeing that the court of appeal did not make a definite pronouncement on whether or not the said meeting was a valid customary arbitration, then the plaintiff cannot be bound by what took place there, without evidence proving that Abeebange was his representative or connected to him in a legal capacity such that he, plaintiff would be bound by his actions at the arbitration and decisions taken there.
In the light of the above, it is clear that the 1st defendant failed to discharge the burden of proof required by law to establish that it is more probable than not that the admission in question was made or pacification items provided and that plaintiff is bound by any such if they indeed happened.
In the circumstances, where further corroborative evidence was required in the light of the denial by Abeebange’s brother,(PW1) and the court was not provided with any good reason for failing to calling such,(it was stated by the Tindana that the representatives of the various Timdonmolgo clans were present) then the burden of proof had not been discharged and it was not proper for the court of appeal to set aside the findings of the trial court which had the opportunity to see the witnesses and evaluate their evidence and substitute it with its own that
“We hold the view that by providing the items for the purification, Abeebange represented to the Tindana that he had accepted that the land belongs to the family of the first defendant and that constitutes conclusive evidence of admission by Abeebange within the meaning of section 26 of the Evidence Act 1975….” without strong and cogent reasons.
The mere fact that the “Tindana in the frafra custom is the proper person to resolve land issues that arise in his jurisdiction” does not make his evidence sacrosanct and is not sufficient to discharge the required burden of proof. It has been stated ad nauseaum in several cases that an appellate court should be slow to substitute its findings with those of the trial court and that such must only be done in clearly stated circumstances.
Consequently, the Court of Appeal could not have properly found, (in the light of the denial of PW1) that Abeebange admitted to the 1st defendant family ownership of the disputed land and provided items for purification at the said arbitration meeting or during the trial, without the needed corroborative evidence.
Grounds iii and iv are have merit and are upheld.
The fifth ground of appeal alleges that that the court of appeal wrongly evaluated the documents of the 1st defendant leading to a declaration of title in his favour and thus occasioning a serious miscarriage of justice.
The following is what the court of appeal said about the documents tendered by the 1st defendant
“We think that there is adequate documentary evidence on record to support the ownership of the disputed land by the family of the 1st defendant. The first defendant dealt with several state institution in relation to the disputed land. Exhibit 3 is a letter from The Ghana Urban Water Limited to the 1st Defendant which was admitted without objection. Again Exhibit 6 is a letter from Town and Country Planning Department, Upper East Region to The Regional Lands Officer with the 1st Defendant copied was admitted in evidence without objection. Exhibit 5 is a statutory declaration which forms a relevant piece of documentary evidence supports the 1st Defendant’s family ownership of the disputed land…..The principle of law is that documentary evidence ought to prevail over oral evidence in respect of claims made”
We shall examine the documents stated above in order to determine their import on the 1st defendant’s counterclaim. According to 1st defendant’s witness statement, he wrote a letter dated 24th or 27th June 2011(date on the exhibit is faint) to Ghana Water Company to, according to his witness statement, “clarify that the disputed land was NOT part of the Ghana Water Company Lands”. The said Company by exhibit 2 stated that it did not object to 1st defendant acquiring any open space that does not trespass on their lands. The title of this letter is significant. It states as follows. RE: APPLICATION FOR AN OPEN SPACE FOR FAMILY RESETTLEMENT.
Exhibit 3 is a letter from Ghana Urban Water Limited saying the land was available for use. The letter from the Town and Country Planning Office described by the court of appeal as exhibit 6 also related to the same application in exhibit 2. By it, that office indicates that it does not object to a lease being executed for the 1st defendant as Applicant.
How could the court of appeal consider these pieces of correspondence as evidence of ownership? The title and contents of exhibit 2 itself shows the 1st defendant did not consider that he had a right to the land as owner. More worrying, the court appeared to have given more importance to the fact that the exhibits were tendered than the weight to be put on them. While relevancy is the basis of admissibility (section 51 of The Evidence Act,1975), it is the court which determines what weight to be put on a tendered document when evaluating the evidence.
Exhibit 5 is the statutory declaration on the disputed land with the 1st defendant and his family stated as bona fide owners of the lands stated therein (including the disputed land). It is trite that a statutory declaration is always a self-serving document and so has to be examined and weighed against other relevant evidence to decide what weight to attach to it. The 1st defendant as declarant did NOT even sign this statutory declaration. It was signed by someone he describes in cross examination as his former lawyer.
This exhibit was made on 7th April 2015, about one and half years before the alleged arbitration meeting before the Tindana. 1st defendant admits this in cross examination. This contradicts paragraph 13 of his witness statement where he implies that it was after he was declared owner at the arbitration that he made the statutory declaration. Indeed his witness statement shows that at the time of his various correspondence with the ‘state institutions’ referred to by the court of appeal, the statutory declaration was in existence and had obviously been prepared on the blind side of the plaintiff’s family and Abeebange who was in possession, long before the arbitration meeting with the Tindana
His answers in cross examination having contradicted his witness statement, the court of appeal should have been hesitant to accept the so called statutory declaration, not signed by the declarant, without further and more credible evidence. Certainly this statutory declaration and correspondence do not qualify as recent acts of possession by the 1st defendant.
It is our considered opinion that the documents upon which the court of appeal based its decision that 1st defendant is the owner of the disputed land do not support that finding. The fourth ground of appeal is upheld.
An appeal being a rehearing and the 1st defendant having set down the omnibus ground as one of his grounds of appeal, and both parties having sought a declaration of title, we shall proceed to examine the evidence led to determine, in the light of the complaints of the plaintiff having been borne out, whether this should lead to a favourable decision for him. In other words does he deserve the declaration of title and the additional reliefs sought. See
Nortey (No.2) vs. African Institute of Journalism and Communication & Ors [2013-2014] 1 SCGLR 703
Koranteng II & Ors vs. Klu [1993-94] 1 GLR 280
What has to be proved when a party seeks a declaration of title to land has been stated in several decisions of this court. A party has to lead traditional evidence of acquisition, especially where there are conflicting versions of traditional evidence as to the ownership of a disputed land, such evidence needs to be supported by with proven recent acts of possession in support of the claim. See the locus classicus case of
Adjei-Kojo vs. Bonsie [1975] 3 WALR 257. See also the cases of
Yehans International Ltd vs. Martey Tsuru family & I Other (2019-2020) 1 SCLRG 838
In Re: Taahyen and Asaago Stools; In Re: Kumanin II (subst by Oppon) vs. Anin [1978-99] SCGLR 399
The 1st defendant’s case is that his ancestors were first to settle on the land and later put Abeebange’s family on it. This was denied by both Abeebange and the plaintiff. Despite this denial, the 1st defendant did not call any other family member to support this assertion. He did not also call any other persons he had put on the land.
The plaintiff’s evidence is that his great grandfather Acheka settled on a vast piece of land, reduced it to farming, built a house on a portion and shared the land among his children who also passed it on to their descendants. He stated further that his father Agezeele (deceased) was one of those children and he assumed ownership of the disputed land which formed part of this vast land and put the late Abeebange’s family on the land. Upon his father’s death he became head of the family.
Abeebange’s brother Akolgo Ayimbisa who testified as a witness for the plaintiff confirmed that the disputed land was granted to their family by the plaintiff’s family. He stated that their presence on the land was not questioned by anybody and that they never attorned tenancy to the 1st defendant. This was not disputed in cross examination.
The Acting Tindana also testified that although he earlier prepared a document for the 1st defendant as Acting Tindana, his later enquiries showed that the disputed land belonged to the plaintiff’s family.
Regarding the issue of ruins on the land, the plaintiff pleaded that the disputed land is surrounded by his family lands and testified that it is the ruins of his ancestral family home that are still visible and close to the disputed plot of land. It is therefore not surprising that the court witness did NOT see any ruins on the land. This confirms the statement of claim of the plaintiff and should carry more weight with the court that a single answer in cross examination that the ruins of the ancestral home are still on ‘the land’.
A careful study of the evidence on record shows that on the whole, apart from the narrations by both parties of how their ancestors acquired the land, the recent acts evidencing the ownership of the plaintiff is to be preferred over that of the 1st defendant since he called supportive evidence such as the evidence of the late Abaabange’s brother thus making his case on this issue more probable than not.. This was the position taken by the trial judge who saw the parties and witnesses and determined their credibility. This court has not been given good reason in law, such as a finding which is inconsistent with important documentary evidence or the wrong application of a legal principle, to warrant an interference with the findings of the trial court. See
Gregory vs. Tandoh IV & Hanson 2010 [SCGLR] 97
Koglex Ltd (No2) vs. Field [2000[ SCGLR 175
In conclusion, we find that from the above discussion of the other grounds of appeal, there is merit in the plaintiff’s complaint that the judgment of the court of appeal is against the weight of evidence. It is therefore set aside and the trial court’s judgment in all its terms, restored.
(SGD.) A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. K. A. ASIEDU
(JUSTICE OF THE SUPREME COURT)
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
(SGD.) H. KWOFIE
(JUSTICE OF THE SUPREME COURT)
DISSENTING OPINION
AMALEBOBA JSC:
INTRODUCTION AND BACKGROUND
I have had the opportunity of reading the majority opinion in this case and find myself unable to agree with my esteemed senior colleagues, that the appeal should succeed. I will proceed to give my reasons for my dissent. I will, however, first narrate the brief facts which have occasioned this appeal. The parties will maintain their designations as at the commencement of the suit in the High Court.
The parties to this suit are contesting title to a piece or parcel of land situate at Tindonmolgo – Tingre, Bolgatanga in the Upper East Region of Ghana, measuring some 0.96 acres and which is currently in the possession of the 2nd Defendant.
By his Amended Statement of Claim, filed on 17th October 2017, the Plaintiff who avers that he is the head of the Ageezele family of the Acheka clan of Tindonmolgo, commenced this action asserting that the land in dispute was acquired by his grandfather Acheka several decades ago, through settlement. According to the Plaintiff, Acheka farmed on the land, built his dwelling house on same and subsequently shared the said land among his children who in turn passed on same to their children.
The Plaintiff says sometime in the 1970’s, his family was informed that the Government of Ghana required his family land to construct residential quarters for staff of the then Ghana Water and Sewerage Company (GWSC), now Ghana Water Company Limited (GWCL). That though the family vacated the land, after the construction, parts of the land remained un-used and his family, returned to farming on the land and also permitted one Abeebange of Tanzui to farm on a portion of the land. The Plaintiff alleges that sometime in 2016, he noticed that some preparatory activities for construction works had been commenced on a parcel of the land.
Plaintiff says upon his enquiries he was informed that the 1st Defendant had sold a portion of Plaintiff’s family land to the 2nd Defendant who evinced an intention to commence construction on same and that all efforts to stop him had proved futile. The Plaintiff who alleges fraud against the 1st Defendant seeks orders of declaration of title to the said parcel of land, recovery of possession of same, demolition of structures on the said parcel of land, among other reliefs.
The case of the 1st Defendant is contained in his Amended Statement of Defence and counterclaim filed on 27th October 2017. The 1st Defendant asserts that there is no such clan as Acheka Clan in Tindonmolgo as claimed by Plaintiff and that he the latter, rather belongs to the Akobga Bisi Clan. He further denies the Plaintiff’s assertion that his family owns the land in dispute. According to the 1st Defendant, he is the head of the Tindaan – Kunlibe family of Ayirengo – Bisi clan, which family acquired the land through settlement by their predecessor Ayirengo, a Tindana of Tindonmolgo who was the first settler of Aberima – Konkouan lands within which the land in dispute falls.
The 1st Defendant further avers that it was his predecessor Ayirengo who made a customary grant of a portion of their family land to Acheka, the 1st Defendant’s predecessor, and that the boundaries of the said land are well demarcated and do not fall within the parcel of land in dispute. The Plaintiff also avers that though similar grants of portions of his family land were made to other persons, his family as original owners legitimately own the land in dispute and the Government has never acquired any portion of his family land for GWSC properties, for which reason there was no issue of compensation to begin with.
According to the 1st Defendant, the parcel of land he sold to the 2nd Defendant legitimately belongs to him and is not close to the parcel of land where the Plaintiff resides. 1st Defendant says he has made many grants to other persons who have developed the lands and rented out portions, without any challenge from Plaintiff or his family members.
1st Defendant further avers that in any case, pursuant to an arbitration meeting held on 10th September 2016, between the said Abeebange and 1st Defendant before the current and reigning TIndaan – Ayeta Ayimbire of Ayirengo- Bisi clan of Tindonmolgo at which the Plaintiff, his uncle Avanyure and others were present, the Tindana declared ownership of the land in favour of the 1st Defendant, contrary to the Plaintiff’s claims. That the said declaration was made after Abeebange now deceased, admitted to the ownership of the land by the 1st Defendant and his family. 1st Defendant filed a counterclaim seeking a declaration of title to the land in dispute and related reliefs.
The 2nd Defendant on his part contends that prior to the grant to him of the land in dispute, his investigations revealed that the land in dispute belongs to the 1st Defendant and did not fall within the area acquired by the Governement of Ghana for the Ghana Water and Sewerage Company. He contends that his grant is valid. He filed a counterclaim for declaration of title to the said parcel of land, an order of perpetual injunction, as well as costs of the action.
The Plaintiff filed a Reply and Defence to Counterclaim, after which the pleadings were closed. Issues were set down for trial and a full trial conducted. The High Court entered Judgment for the Plaintiff, which Judgment was reversed by the Court of Appeal in favour of the Defendants, in a Judgment dated 27th July 2023. It is the Plaintiff’s dissatisfaction with the decision of the Court of Appeal, which has occasioned this appeal. Being aggrieved by the decision of the Court of Appeal, the Plaintiff has by a notice of appeal dated 18th October 2023, invoked the jurisdiction of this Court for a re- hearing of the suit and a reversal of the Court of Appeal’s decision.
The grounds of appeal filed by the Plaintiff in its notice of appeal appear at pages 600 and 601 of the Record of Appeal ( record) as follows:
GROUNDS OF APPEAL
The Judgment of the Court of Appeal is against the weight of evidence.
The Court of Appeal erred when it held that there was a valid customary arbitration over the ownership of the disputed land which award bound the Plaintiff/ Respondent/Appellant.
Particulars of Error
The meeting held on 10th September 2016 between 1st Defendant/Appellant/ Respondent and Abeebange (deceased) before the Tindana Ayeta did not meet the pre-requisite of a valid customary arbitration against Plaintiff/Respondent/ Appellant, to wit; voluntary submission of Plaintiff/ Respondent/Appellant to arbitration and be bound by the award.
The Court of Appeal erred when it came to the conclusion that Abeebange admitted before the Tindana that the disputed land belonged to the 1st Defendant/ Appellant/Respondent family.
The Court of Appeal erred when it held that the purported admission made by Abeebange before the Tindana bound the Plaintiff/Respondent/Appellant.
The Court of Appeal wrongly evaluated the documents of 1st Defendant/ Appellant/Respondent by declaring title in favour of the 1st Defendant/ Appellant/Respondent resulting in a serious miscarriage of justice.
DETERMINATION OF THE APPEAL
Counsel for Plaintiff abandoned ground (ii) of his appeal. According to Counsel at page 20 of his submissions, the Court of Appeal did not find it necessary to determine whether or not, there was a valid customary arbitration before the Tindana and whether the award bound the Plaintiff, for which reason he would abandon the said ground of appeal. I will, therefore, proceed to first determine grounds (iii) and (iv) of the appeal which touch on the proceedings held before the Tindana, the import of same and whether or not the Court of Appeal came to the right conclusions.
It is settled law that an appeal is by way of rehearing. This Court is therefore enjoined to examine and review the entire record to determine whether the Judgment sought to be impugned can be supported on the basis of the facts and law. This position has been reiterated by this Court, in Madam Elizabeth Osei (substituted by Portia Gillard v. Madam Alice Korang [Civil Appeal No. J4/27/2012 dated 20th February 2012, among others.
For ease of reference, I will reproduce grounds (iii) and (iv) of the appeal, which are that:
The Court of Appeal erred when it came to the conclusion that Abeebange admitted before the Tindana that the disputed land belonged to the 1st Defendant/ Appellant/Respondent family.
The Court of Appeal erred when it held that the purported admission made by Abeebange before the Tindana bound the Plaintiff/Respondent/Appellant.
Counsel for Plaintiff argues that the Court of Appeal appeared to be making a case that if Abeebange claims Plaintiff’s family gave the disputed land to him and he has more or less voluntarily admitted before the Tindana that the land was for the 1st Defendant, then the Plaintiff has no case. According to Counsel for Plaintiff, the evidence on record establishes that the Plaintiff was not at the said meeting where the Tindana resolved the issues before the parties. Counsel referred to the testimony given by PW1, the brother of the said Abeebange that it was only after the Tindana made a decision on the dispute, that the Plaintiff was informed, because Abeebange and PW1 were unhappy with the decision of the Tindana, as the land did not belong to the 1st Defendant and was given to them by the Plaintiff’s family.
Counsel for Plaintiff further argues that in view of the fact that the said Abeebange is dead, evidence regarding him ought to be carefully evaluated. Counsel for Plaintiff also submits that it is only a valid arbitration award which could bind Abeebange and his ‘acclaimed Landlord’, the Plaintiff and that since the Court of Appeal did not find it necessary to determine the validity of the arbitration, it erred in its conclusion that the Plaintiff was abound by any alleged admission made by Abeebange.
Counsel for the Defendants on the other hand takes the view that a valid arbitration or an award was not required for a finding that the Plaintiff was bound by Abeebange’s admission of 1st Defendant’s family’s ownership of the land. He argues that the record shows that the Plaintiff was present at the proceedings before the Tindana and never objected or challenged the proceedings before the Tindana. That the material testimony of the Tindana on the proceedings before him was never controverted or challenged under cross- examination. Counsel contends that the evidence on record establishes that the Plaintiff never objected to the admission made by the said Abeebange in the proceedings that the land in dispute belonged to the 1st Defendant’s family. Counsel for the Defendants relies on sections 119 (b) and 26 of the Evidence Act, 1975 (NRCD 323) in his contention that the Plaintiff is bound by Abeebange’s admission. Counsel for Defendants further submits that the Tindana’s evidence corroborated the assertions of the 1st Defendant on the proceedings before the Tindana and that he did not need a multiplicity of witnesses to prove his case. As such, that the trial Judge erred in his finding that the Tindana’s evidence required corroboration or that he was not credible, and the Court of Appeal was therefore right in reversing the High Court Judgment.
In its determination of these issues, the Court of Appeal made the following finding at page 586 of the record: “We need to set some undisputed facts straight. The parties agree that it was Abeebange who lodged a complaint with the Tindana against the 1st Defendant when the 1st Defendant sought to eject Abeebange from the land. The parties agree that the Tindana told Abeebange and the 1st Defendant to bring their respective family members to the proceedings before the Tindana. The parties agree that in the Frafra custom, it is the Tindana who resolves disputes. The parties agree that they appeared before the Tindana and the decision was that the land in dispute belongs to the 1st Defendant”. (My emphasis).
In arriving at its conclusion that the testimony of the Tindana was not challenged under cross- examination and was credible, and that Abeebange had indeed made an admission of 1st Defendant’s title, the Court of Appeal stated at page 588 of the record, as follows: “In our view, if Abeebange did not admit that the land belongs to the family of the 1st Defendant, he would have protested against the demand by the Tindana that the items should be bought for purification. We hold that by providing the items for purification, Abeebange represented to the Tindana that he had accepted that the land belongs to the family of the first 1st Defendant, and this constitutes con conclusive evidence of admission by Abeebange…”
On the proceedings before the Tindana, the trial Court concluded that it was not a valid arbitration, but an attempt at settlement, at which the Tindana had used his position to compel Abeebange to accept that the land in dispute belongs to 1st Defendant’s family and to comply with the award or fine imposed. This finding against the Tindana was set aside by the Court of Appeal at pages 589 and 590 of the record, wherein it stated that in addition to the fact that the Plaintiff did not plead duress or undue influence and provide particulars of same, the finding of the High Court of duress or undue influence against the Tindana, could not be supported by the evidence on record. There is indeed no evidence on record, on the basis of which a trial Court correctly evaluating the evidence could come to a conclusion of bias or undue influence against the Tindana. I agree with this finding of the Court of Appeal.
The Court of Appeal decided not to determine ground (e) of the appeal on whether there was a valid arbitration before the Tindana. The Court held in part at page 597 of the record as follows: “again having come to the conclusion that Abeebange admitted that the land in dispute belongs to the 1st Defendant’s family and also having found on the strength of the documentary evidence that the 1st Defendant’s family owned the disputed land we do not think the nature of the proceedings before the Tindana would in any way water down the admission by Abeebange and the evidence led by the 1st Defendant in proof of his family’s ownership of the disputed land.”
From the above preceding paragraphs and a reading of the Judgment of the Court of Appeal, it did not find that a decision on the nature of the proceedings was a prerequisite for a determination that the admission by Abeebange was binding on the Plaintiff. Therefore, whether the proceedings were a settlement or arbitration, the Court of Appeal was satisfied that proceedings took place before the Tindana (DW 1) for the resolution of a dispute in respect of the land in this suit. The Court of Appeal was also satisfied that the parties, including the Plaintiff were present at the proceedings and that in the said proceedings, an admission was made by Abeebange of 1st Defendant’s family’s ownership of the land in dispute. That there was no protest or challenge to this admission. That the proceedings were concluded and a decision taken by the Tindana and carried out by Abeebange, all without protest.
In a determination of these grounds of Appeal and to determine whether the Court of Appeal was in error on its finding that Abeebange’s admission was binding on the Plaintiff, three issues require resolution. These are (i) Whether the Plaintiff was present at the proceedings before the Tindana to resolve the dispute concerning the land in this suit, (ii) whether Abeebange admitted that the land in dispute belongs to the 1st Defendant’s family and (iii) whether the said admission is binding on the Plaintiff.
Whether the Plaintiff was present at the proceedings before the Tindana to resolve the dispute concerning the land in this suit and (ii) whether Abeebange admitted that the land in dispute belongs to the 1st Defendant’s family.
In the resolution of this issue, I must emphasise that the fact of the proceedings themselves and the presence of the 1st Defendant and Abeebange at these proceedings before the Tindana are not in dispute. Was the Plaintiff present at these proceedings?
At paragraph 15 of the 1st Defendant’s amended Statement of Defence and Counterclaim he averred as follows:
“1st Defendant adds in explanation to paragraph 6 of the Statement of Defence that the said Abeebange who through his father at Atogunsaya deceased was settled on the disputed portion of the 1st Defendant’s land was later ejected by the 1st Defendant’s family, owners of the disputed land during an arbitration meeting at the present reigning Tindana- Ayeta Ayimbire of Ayirengo -Bisi Clan of Tindonmolgo at his house on 10th September 2016, in the presence of the 1st Defendant, the Plaintiff and his uncle Avanyure where Abeebange who was also present, recognised the 1st Defendant’s family’s title to that portion of the disputed land herein and the Tindana so declared in favour of 1st Defendant contrary to Plaintiff’s claims.”
In response to this assertion, the Plaintiff states at paragraph 16 of his reply and defence to counterclaim as follows:
“In specific answer to paragraph 15 of the statement of defence Plaintiff says there was never an arbitration on 10th September 2016 and that a meeting was called after the Plaintiff objected to 1st Defendant’s allocation of his family land to the 2nd Defendant to amicably resolve the dispute. At the said meeting, it was conceded that the land belongs to the Plaintiff’s family and an attempt was made by the Tindana and the 1st Defendant’s to placate the Plaintiff with GH¢ 2,000 out of the proceeds from the sale of the land to the 2nd Defendant, which the Plaintiff rejected. Abeebange never admitted that the land belonged to the 1st Defendant’s family.
In view of the Plaintiff’s denial of the 1st Defendant’s assertion, the 1st Defendant gave testimony and called DW1, the Tindana who presided over the meeting or arbitration to testify in corroboration of the proceedings at the meeting held to resolve the dispute over the land in this suit.
In the cross- examination of the 1st Defendant at page 287 of the record, on the proceedings before the Tindana, there was no challenge to 1st Defendant’s assertion that Abeebange made an admission of the 1st Defendant’s ownership of the land in dispute, neither was there a challenge to the 1st Defendant’s assertion that the Plaintiff was present at the said meeting. Instead, Counsel for Plaintiff rather sought suggest to 1st Defendant that the meeting was a settlement and not a valid customary arbitration and that the Plaintiff was not fined because he was not a party to the proceedings.
The testimony of the Tindana (DW 1), per his witness statement was very brief. In a five paragraph Witness Statement filed on 23rd November 2023, he testified as follows:
“I TINDAAN AYETA AYIMBIRE, of S 31,TINDONMOLGO,BOLGATANGA,UPPER AST REGION of the Republic of Ghana and make this statement in connection with the instant suit. The contents are within my own knowledge.
(1) That I am the Tindana.
(2) That I know the Plaintiff and the 1st Defendant.
(3) That I presided over the customary arbitration between the 1st Defendant and Abeebange.
(4) That the arbitration was witnessed by the Plaintiff and his uncle without any objections or challenge to the dispute.
(5) That the customary arbitral awards were given in favour of the 1st Defendant in respect of the lands including the disputed lands and Abeebange paid the customary fine”.
As rightly pointed out by Counsel for Defendants in his Written Submissions, there was no challenge to the material evidence adduced by the Tindana (PW1) who oversaw the arbitration or the resolution of the dispute. The Tindana’s testimony on the Plaintiff’s presence at the said meeting or arbitration was not challenged. In fact, at page 294 of the record, DW1 testified under cross- examination that the said Abeebange admitted the title of the 1st Defendant’s family, rendered an apology and was fined to provide some items for purification, in accordance with custom, which fine was paid, after same was reviewed upon his plea. This testimony was not challenged.
The standard of proof required of a party in a civil case such as this, is one on a preponderance of probabilities. Therefore, a party who makes assertions which are denied, has the burden or obligation, to adduce credible and admissible evidence in proof of the assertions, such that the Court is convinced, that the existence of the facts he or she asserts, are more probable than their non – existence. See sections 11 (1), 12 and 17 (1) of the Evidence Act, 1975 (NRCD 323). See also: Zabrama v. Segbedzi [1991] 2 GLR 221: Bisi v. Tabiri Asare [ 1987 -88] 1 GLR 360.
However, where a party had given evidence on a material fact and had not been cross- examined on it, he need not call further evidence in support of same. See: Fori v. Ayirebi [ 1966] 2 GLR 627.
It was the 1st Defendant who made an assertion that there was an arbitration at which Abeebange made an admission of the 1st family’s Defendant’s title, in the presence of the Plaintiff, after which an award was made by the Tindana. The said assertion having been denied by the Plaintiff, the onus fell on the 1st Defendant to adduce credible and admissible evidence in support of his assertion. The 1st Defendant therefore testified and called DW1, the Tindana who presided over this arbitration or meeting, to corroborate his assertions. The said evidence of DW1 went unchallenged under cross- examination, save for the challenge that the meeting was a settlement and not an arbitration.
Notwithstanding this corroboration of 1st Defendant’s testimony on the proceedings before the Tindana, the trial Court made the following finding at page 425 of the record: “The court is unable to accept without question the Tindana’s evidence in view of the conflicting position put up by the plaintiff and his first witness. It is material (sic) the witness was present at the meeting in the house of the Tindana. His answers to questions during his cross-examination left no doubt that the Tindana, on his own, declared the land to be owned by first defendant, and told Abeebange that if he was not satisfied with the decision he could do whatever he wanted. Considering the evidence regarding the proceedings before the Tindana, I am unable to accept the conclusion of the defendants and their lawyer that after discussions , Abeebange got to know the land did not belong to plaintiff’s family; that Abeebange subsequently apologized because he was from Tanzui and was ordered to produce some items for pacification of the gods. That assertion was also denied by the witness. The proof of the claim against Abeebange must be strict and utterly convincing, as he was dead, to be believed by the court.
I agree with the submissions by Counsel for the Defendants that since the testimony of DW1 was not controverted, neither he nor the 1st Defendant were required to adduce evidence in further proof of their assertions on the proceedings before the Tindana, by calling a multiplicity of witnesses. The unchallenged testimony of the Tindana (DW1) is worthy of credit and carries weight. I therefore agree with the Court of Appeal on its finding that the conclusions of the trial Judge on the testimony of DW1 were in error.
Though an appellate Court ought to exercise caution in accepting testimony against a dead person, where the evidence is believable and credible as in this case, this Court is not precluded from accepting same. In Moses v. Anane [1989 -90] 2 GLR 694, the Court cited with approval the position of the law as stated in, In re Garnett; Gandy v. Macaulay [1885] 31 ChD thus: “The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted, and the mind of any Judge who hears it ought to be, first of all, in a state of suspicion; but if in the end the truthfulness of the witnesses is made perfectly clear and apparent, and the tribunal which has to act on their evidence believes them, the suggested doctrine [of corroboration] becomes absurd.” (My emphasis). In accepting the evidence regarding Abeebange, now deceased the Court of appeal was mindful of the position of the law and cautioned itself appropriately.
Furthermore, though this Court as an appellate Court ought to be slow to interfere in findings of fact made by the trial Court which heard the testimony of the witnesses, even if the appellate Court would have come to a different conclusion, where the findings of the trial Court are perverse the appellate Court may interfere with same. See: Prof. Stepehen Adei & Mrs. Georgina Adei vs. Grace Roberston and the Sempe Stool, J8/29/15 dated 10th March 2015.
From an evaluation of the testimony of the parties and their witnesses on the said proceedings before the Tindana, it is established on a preponderance of probabilities, that an admission was made by the said Abeebange in the presence of the Plaintiff who did not protest same, until the said proceedings were concluded and an award or pronouncement made. As already stated, I agree with the Court of Appeal that the finding of duress or undue influence made against the Tindana by the High Court, is not supported by the evidence on record. In the circumstances the Court of Appeal came to the correct conclusion that at the proceedings before the Tindana, howsoever described, an admission was made by the Abeebange in the presence of the Plaintiff, that the land in dispute belongs to the 1st Defendant’s family and a fine was imposed by the Tindana against Abeebange which he complied with, without any protest whatsoever.
Whether the said admission by Abeebange is binding on the Plaintiff.
What is the import of this finding by the Court of Appeal? The determination by the Court of Appeal was based on the admission made by Abeebange in the presence of the Plaintiff, which resulted in a finding by the Tindana in favour of 1st Defendant, and a fine against Abeebange which was complied with, without protest. The Court of Appeal relied on estoppel by conduct on the basis of section 26 of the Evidence Act, 1975 (NRCD 323).
The Court of Appeal rightly established that as a result of the proceedings before the Tindana to resolve the said dispute, the said Abeebange apologised and admitted the title of the 1st Defendant and proceeded to bring the items for purification in compliance with the fine or decision of the Tindana, without protest. The record establishes that Abeebange is a grantee of the Plaintiff. It was also the said Abeebange who reported the sale of the land by the 1st Defendant to the Tindana. In the proceedings, the said admission of the 1st Defendant’s title, which was adverse to that of the Plaintiff, was made by Abeebange without protest by the Plaintiff who was himself present at the said proceedings. After the Tindana had declared title in favour of the 1St Defendant, Abeebange complied with the fine. Pursuant to the decision of the Tindana, the 1st Defendant recovered possession of the land in dispute from Abeebange. The 2nd Defendant was then put in possession of the land by the 1st Defendant. The 2nd Defendant has since constructed a wall around the property.
In the circumstances of this case and by his silence or lack of protest at these proceedings, the Plaintiff had manifested his adoption of Abeebange’s admission of 1st Defendant’s title and cannot be permitted to assert otherwise. Section 119 (b) of the Evidence Act, 1975(NRCD 323), permits such testimony to be admissible when offered against such a person. Moreover, by his conduct the Plaintiff is bound by Abeebange’s admission within the intendment of section 26 of the Evidence Act,1975 (NRCD 323). The binding nature of this admission is based on estoppel by conduct and not estoppel per res judicata, which in my view, would have among others, required a valid and binding arbitral award.
I therefore agree with the Court of Appeal that in the circumstances of this case, the said admission was binding on the Plaintiff. Accordingly, I find no merit in grounds (iii) and (iv} of the appeal and same are accordingly dismissed.
I will now proceed to the determine grounds (i) and (iv) together, which for ease of reference are as follows:
That the Judgment of the Court of Appeal is against the weight of evidence.
(iv) That the Court of Appeal wrongly evaluated the documents of the 1st Defendant /Appellant /Respondent by declaring title in favour of the 1st Defendant.
It is settled law that “where an Appellant complains that a Judgment is against the weight of evidence, he is implying that they are pieces of evidence which if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the appellate court, the lapses in the Judgments being appealed against”. See: Djin v. Musah Baako [2007 – 2008] SCGLR 686.
Though the burden of proof is on the Appellant in an appeal to show that the Judgment is against the weight of evidence, this Court ought to look at the entire Record of Appeal, taking into account the testimonies and documentary evidence to satisfy itself that the conclusions of the trial High Court, are amply supported by the evidence on record. This was the position taken by the Supreme Court in the case of Tuakwa v. Bosom [2001 – 2002] SCGLR 61.
However, the determination on the findings of fact is not only limited to the facts on record, for where a decision on the facts requires a determination on what the law is on a point or issue, this Court needs to make a determination of both law and fact. This was the position taken in the case of Owusu -Domena v. Amoah [2015 – 2016] SCGLR 790 @ 799 per Benin JSC (as he then was) as follows: “……. Sometimes a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus, when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters”.
SEE ALSO: In Re Okine (DECD) Dodoo and Another v. Okine [2003 – 2004] SCGLR 582 S.C.
I will proceed to determine the two grounds of appeal together. The Plaintiff disagrees with the finding by the Court of Appeal that the documentary evidence on record supports the 1st Defendant’s ownership of the land in dispute. He argues that the documentary evidence was wrongly evaluated against the Plaintiff. At page 593 of the record, the Court of Appeal stated thus: “ gleaning from record, apart from the admission by Abeebange that the disputed land belongs to the family of the 1st Defendant and the Tindana also making a favourable decision for the 1st Defendant, that the disputed land belongs to the family of the 1st Defendant, we think that there is adequate documentary evidence on record to support the ownership of the disputed land by the family of the 1st Defendant. The 1st Defendant dealt with several state institutions in relation to the disputed land. Exhibit 3 is a letter from the Ghana Urban Water Company to the 1st Defendant in respect of the disputed land which was admitted without objection. Again Exhibit 6 is a letter from the Town and Country Planning Department, Upper East Region to the Regional Lands Officer with the 1st Defendant copied. He was admitted in evidence without objection. Exhibit 5 is a Statutory Declaration which forms a relevant piece of documentary evidence and supports the 1st Defendant’s family’s ownership of the disputed land. As rightly pointed out by Counsel for the Defendants, although a statutory declaration is generally self-serving and little weight is attached to it, however in a situation where the contents of the declaration are not impeached or controverted the court would rely on the same. In the case In Re Ashalley Botwe lands, the Supreme Court held as follows…”
Counsel for the Plaintiff submits that the import of Exhibit 3 is simply to state that the land is free for use and read in conjunction with Exhibit 2 is to show that the 1st Defendant applied for the use of the land which was said to be free for use and could not prove the 1st Defendant’s title. By way of rehearing and in order to evaluate the Exhibits tendered at the trial and make a finding as to whether the Judgment is against the weight of evidence, it is necessary to refer in part to relevant pleadings of the parties on the history of their acquisition and possession.
On how his family came to acquire the land in dispute, the Plaintiff avers at paragraph 5 of his Statement of Claim, as follows:
(5) “Plaintiff avers that several decades ago, His great grandfather Acheka settled on a wide stretch of land in Tindonmolgo and reduced same to farming and built his house on the portion thereof and subsequently shared the land amongst his children who also passed same down to their descendants, a part of which is the land in dispute”.
In response to the said paragraph 5, the 1st Defendant averred among others at paragraphs 8 and 9 as follows:
“(8) 1st Defendant denies Paragraph 5 of the Statement of Claim and says that the said ACHEKA was formerly settled on a portion of his Tindaan-Kunlibe family land by AYIRENGO, 1st settler on the land and the said ACHEKA settlement was later endorsed by Tindaan-Abiire, a great-grandson of AYIRENGO and former Tindana of Tindonmolgo.
(9) In more explanation of the above-named Paragraph 5, 1st Defendant says that the said ACHEKA settlement (house and farmland around it was demarcated for him as a customary grant to him with clearly defined boundaries by the Tindana at the time, and which boundaries’ are known to-date, and ACHEKA’s land is different from, and only shares a boundary with 1st Defendant’s land to the North of the disputed land as described”.
The Plaintiff further averred as follows at paragraphs 9, 10, 11 and 12 as follows:
“(9). Plaintiff avers that sometime in the 1970s his family received information that the said land was required by Government to carry out state activities (to put up Quarters of GWSC staff).
(10).Plaintiff avers that his family eventually relocated and paved way for the said construction of Quarters to take place.
(11). Plaintiff avers that no compensation was paid to his family by the GWSC/Government and after completion of the staff Quarters his family continued farming on the undeveloped portions of the land.
(12). Plaintiff avers that his family subsequently permitted one Abeebange of Tanzui to farm on the said undeveloped portion of the family farmland he has since been farming the disputed land till date”.
In response to the said pleadings by the Plaintiff, the 1st Defendant averred at paragraphs 19, 20, 21 and 22 of the Amended Statement of Defence and Counterclaim as follows:
“(19) 1st Defendant denies Paragraph 11 of the Statement of Claim and says that no acquisition by the government of any portion of his land including the disputed land for the purpose of building GWSC bungalows took place, so no issue of compensation arises relating to his land, and the only bungalows built on his land house personnel of the Bolga RCC, and 1st Defendant is yet to confront government over the issue.
(20) In further denial of Paragraph 11 of the Statement of Claim, 1st Defendant says that the government only put up bungalows on portions of his family land excluding the disputed land but the 1st Defendant’s land on which some of these bungalows were erected was not acquired by the government and so the land remains his family property.
(21) 1st Defendant yet adds in further denial of Paragraph 11 of the Statement of Claim that neither Plaintiff nor any of his family members have ever farmed on 1st Defendant’s family’s larger parcel of land including the land in dispute as alleged, and indeed Plaintiff is a stranger to 1st Defendant’s land.
(22) 1st Defendant denies Paragraph 12 of the Statement of Claim and says that he has already said it was ATOGUNSAAYA (deceased) who was allowed to settle on the land by his former Tindana Kunlibe family of Tindoonmoligo and ABEEBANGE only took over from him”.
The Plaintiff’s evidence in Chief contained in his Witness Statement filed on 12th December 2018, was in part as follows:
“(23) . In the year 2000 or thereabouts I was sued by Lawyer James Ben Kaba in Land Suit No.18/2000 in the High Court, Bolgatanga after I refused to immediately pack out of my ancestral house(now in ruins) to pave way for the payment of compensation by GWCL. All this while, neither〖^Si〗Defendant nor any member from his family laid claim or joined the suit as owner of the land. (Copy of Writ of Summons exhibited as E).
(24) The said Lawyer Kaba was the lawyer who led the affected families of Tindonmolgo to fight for compensation from the then GWCL in respect of the occupied lands.
(25) I state that the list of family names that were listed for compensation by the GWCL did not include Ist Defendant or any person from his Akunlibe family, as they do not have any lands close to the land in dispute or occupied by GWCL. (Copy of List GHCL compensation beneficiaries Exhibited as F).
(26) The former houses of the persons mentioned by 1st Defendant including the Akunlibe family house, from which they relocated, are further away from the land in dispute and were occupied by State Housing Company (SHC) to build the present-day Estates Houses. This is separate and distinct from the GWCL occupied lands. Atogunsaaya is an unknown person and was never one of them”.
The testimony of the parties on their traditional history and the acquisition or non-acquisition of the land in dispute by the government of Ghana was no different from their pleadings. From the above pleadings and testimony of the parties, the material details of the Plaintiff’s case are that the land in dispute forms a part of his ancestral lands which had been taken over by the government of Ghana in the 1970s for construction of Staff residences for the then, Ghana Water and Sewage Company (GWSC) now GWCL. To further establish his family’s title to the land in dispute, he asserts that he was sued by one lawyer Kaba to vacate his ancestral home, to make way for a claim of compensation and for same to be paid by GWSC, now GWCL. That the land on which the 1st Defendant’s former family house was situate, as well as the houses of others he mentioned are situate further away from the land in dispute and were not acquired for GWSC.
The material details of the 1st Defendant’s case on the other hand are that the land in dispute forms a part of his ancestral family lands and had never been the subject of an acquisition for the Ghana Water and Sewerage Company, though on a part of the said land, some buildings had been constructed for the Regional Coordinating Council which did not affect the land in dispute. He also states that the Plaintiff’s family land is separate and distinct from his family land that his family land shares a boundary with the family land of the Plaintiff to the North. According to the 1st Defendant, his family decided to recover all of the unused open spaces of their land.
I will proceed to evaluate the Exhibits, so as to form an opinion on them. Exhibit 2 is a letter from Ghana Company Limited to the 1st Defendant dated, June 2011, paragraphs 2 and 3 of which state thus:
“the company will not have any objection to your request to acquire any open space that will not trespass on our lands. As you are aware land where our estate houses have been built near the Mount Sinai schools have already been marked and documented by the town and country planning which cases are before the Bolgatanga High Court for compensation claims to be paid to the recognised landowners. We are therefore forwarding a copy of your Site Plan to the Town and Country Planning department for verification and authentication to ascertain if the open space is indeed free for the family’s use.” (My emphasis).
Exhibit 3 is a later dated 21st November 2012 and written to the 1st Defendant by the Ghana Urban Company confirming the land is free for use. In exhibit 4 , dated 21st November 2012, written by the 1st Defendant to the Municipal Chief Executive Officer in which he stated that the family has been informed that the land does not form a part of the Ghana Water Company Limited’s acquisition and the family was drawing the attention of the Metropolitan Chief Executive to same. In a letter dated 20th January 2016, the Regional Director of the Town and Country planning, informed the Regional Lands Officer that it had no objection to the grant of a lease in respect of the land in dispute. As stated by the Court of Appeal, all of these letters were tendered in evidence without objection. Moreover, the site plan in respect of this land, which is same as that in the 1st Defendant’s lease was attached to Exhibit 6 tendered in evidence by the 1st Defendant, without objection.
Upon evaluating these letters, their import in my view, is not simply to establish that the land in dispute was available for use, as argued by Counsel for the Plaintiff. More importantly, these documents establish that the land in dispute did not form a part of the land acquired or taken over by the Government for GWSC now Ghana Water Company Limited (GWCL). For the Ghana Water Company was clear in Exhibit 2, that it would have no objection if the land referred to by the 1st Defendant will not trespass on its lands. The conclusion from the evaluation of these documents that the land in dispute does not form a part of the lands acquired for GWCL, is an inference this Court is entitled to make pursuant to section 18 (2) of the Evidence Act, 1975 (NRCD 323), which states as follows: “an inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.”
In fact, the Plaintiff in seeking to further establish that his family land had been taken over by the Government for the GWSC tendered Exhibit E in evidence which he testified was a Writ of Summons and Statement of claim in a suit against him by lawyer Kaba to compel him to vacate his ancestral home, to enable compensation claims to be processed by the now Ghana Water Company Limited. The Plaintiff further testified at paragraph 25 of his Witness Statement that when the names of the family to be paid compensation were compiled as in Exhibit F, the name of the Plaintiff’s family was not on the list.
Upon an evaluation of the testimony of the parties and the documentary evidence as stated supra, I find that the land in dispute was never a subject of an acquisition of any sort by the government for the GWSC and the latter has no interest in the said land. Neither did the Plaintiff succeed in establishing that the suit against him by James Ben Kaba was in respect of the land in dispute.
The Court of Appeal at page 590 of the record rightly concluded as follows: “Concerning the reliance by the trial Court on the James Ben Kaba [suit] in coming to the conclusion that the Plaintiff succeeded in leading evidence to establish on the preponderance of probabilities that the land in dispute is his family property, we are in agreement with the submissions of the Defendants that the reliance on the said suit by a trial court was misplaced. There is no evidence on record that the suit concerned the disputed land. Again there is no evidence on record that the Judgement was delivered in the said suit which affected the disputed land and the Plaintiff’s family declared the owners of the land. Further, there is no evidence on record that the first Defendant’s family was a party to the suit or was aware of the proceedings and took no steps. We will set aside the finding of the trial Judge that the James Ben Kaba [suit] proved that the disputed land is the land of the Plaintiff’s family.”
On the traditional testimony of the Plaintiff, the following transpired during cross – examination at page 261 of the Record.
Q: I put it to you that you had never acquired the disputed land as owners of the land?
A: Even up to now the roots of my ancestors are still on the land. I had asked my younger brother to build close to the land and no one objected
Q: No one objected because where you asked your younger brother to build is not the disputed land.
The testimony of CW1 showed that though the locus inspection revealed that the Plaintiff’s brother had built some 120 – 150 feet away from the disputed land, there were no ancestral ruins close to the disputed land, as testified to by the Plaintiff, nor was there evidence that any sandcrete blocks or walls previously existed on the land in dispute. Furthermore, as pointed out by the Court of Appeal, under cross- examination, the Plaintiff admitted that photographs he tendered in evidence as Exhibits A-D to establish his family’s ownership of the land, were not on any part of the disputed land. On this testimony the Court of Appeal stated thus, at page 592 of the record:
“On the same issue of ancestral ruins on the disputed land, the Plaintiff under cross -examination at page 261 of the Record of Appeal stated that his Exhibits A-D, which were purported pictures of the ruins on the disputed lands, admitted that those rooms and buildings are not on the disputed land. Given the evidence on record, the Plaintiff failed to lead evidence to establish his ownership of the land granted. We therefore set aside the finding by the trial court that the Plaintiff succeeded in establishing his ownership of the disputed land”.
The 1st Defendant in his testimony gave an account of the traditional history of how his ancestors of the clan of Ayirengo Bisi came to the land as first settlers, to settle on and farm on same. According to 1st Defendant, subsequently other settlers were granted portions of his family lands. Under cross- examination, the 1st Defendant maintained that his family land had never been part of the land acquired for GWSC estates. The following transpired at page 275 of the Record:
“Q: I put it to you that your said ancestor was not the first settler of the land in dispute?
A: He was the first settler.
Q: You mean your family are the allodial owners of the land in dispute?
A: No, I emphasize they were the first settlers of the land in dispute. The allodial owners are the Tindanas in whom land is entrusted in their jurisdiction.
Q: I put it to you that the first settler is the allodial owner?
A: No, my Lord, first settler is a first settler.
Q: The said Tindana Asandema Ayeremoah led the affected farm owners against Ghana Water and Sewerage Cooperation (sic) in 2000?
A: The disputed land was not part of Ghana Water and Sewerage Cooperation land.
Q: Did Tindana Asandema lead affected farmers against GWSC in 2000 or not?
A: I don’t know because Tindana Akunlebe’s family who owns the disputed land was not part of the case.
Q: I put it to you that it was the said Tindana who led affected farmers including Plaintiffs’ family against GWSC in the year 2000?
A: I don’t know. My family was not part.
Q: Can a Tindana go into a native’s land and confiscate it?
A: The Tindana is the allodial owner, so all lands in his jurisdiction are entrusted to him.
Q: So, can he confiscate a native’s land?
A: No.
Q: The Tindana has his own family land?
A: Yes, my Lord.
Q: Your family land are different from Tindana Ayeremoah family lands?
A: Yes, either my father or Ayeremoah became Tindana they were born on a land, but once he becomes Tindana he becomes the allodial owner of all the lands”.
In cross- examination of the 1st Defendant, Counsel for the Plaintiff maintained the Plaintiff’s story of the acquisition of his family land for the GWSC, which this Court has found not be borne out by the evidence on record. I agree with Counsel for Defendant’s that cross- examination forms a part of the Plaintiff’s case and any suggestions or admissions by Counsel for Plaintiff through cross- examination, whether implicit or explicit, form a part of the Plaintiff’s case. See: Nartey v. Mechanical Lloyd [1987- 88] 2 GLR 314.
From the forgoing, since the land in dispute does not form a part of the GWSC acquisition, then the only probable conclusion a Court can come to from an evaluation of the evidence on record, is that it does not form a part of the Plaintiff’s land, which he asserts and has adduced evidence to establish is the subject matter of an acquisition for GWSC. In the trial High Court, an issue which was set down for trial by the additional issues filed by 1st Defendant was: “whether GWCL has since disclaimed ownership of the disputed land as described by 1st Defendant”. Had the trial judge given due consideration to this issue and correctly evaluated the evidence on record, he would have come to a different conclusion than he did.
It is indeed the case that the parties adduced conflicting traditional evidence of their acquisition of the land in dispute. In addition to which the 1st Defendant produced documentary evidence. This Court has held that “the best way of evaluating traditional evidence is to test the rival stories of the parties, against the background of positive and recent events.” See: Achoro & Anor v. Akanfela & Anor. [1996- 97 SCGLR 209: Adjei v. Acquah [1991] 1 GLR 13; Adjeibi Kojo v. Bonsie [1957] 3 WALR 257.
On the evaluation of rival traditional accounts of acquisition, this Court speaking through Wood JSC (as she then was), in the case of Hlodjie v George (2005-2006) SCGLR 974 stated at page 983 thus:
“In assessing rival, traditional evidence, the court… must rather examine the events and acts within living memory, established by the evidence, paying particular attention to undisputed acts of ownership, and possession on record; and then see which version of the traditional evidence, whether coherent or incoherent is rendered more probable by the established acts or events. The party whose traditional evidence such established act, or event supports or is more probable should succeed, unless there exists on the record of proceedings a very cogent reason to the contrary.( My emphasis).
It is not in dispute that Abeebange, the Plaintiff’s grantee had been in possession of the land in dispute prior to the proceedings before the Tindana. The 1st Defendant sought to sell same to the 2nd Defendant on the basis that the land belonged to his family and that he was repossessing his family’s bare lands. Pursuant to the conclusion of the proceedings before the Tindana however, Abeebange was dispossessed of the land by the 1st Defendant, and the 2nd Defendant was put in possession of same. In view of the Plaintiff’s case that his family land was acquired by GWSC, while the land in dispute does not from a part of the said land of GWSC, the evidence on record does not tilt the probabilities in favour of the Plaintiff, despite having put Abeebange in possession of the land. It is true that possession is prima facie evidence of the right to possession and is nine -tenths of the law. However, the presumption which is codified in section 48 of the Evidence Act, 1975 (NRCD 323), is a rebuttable one. In view of the analysis already made in this Judgment, I find the case of the 1st Defendant that the land in dispute forms a part of their family land, which was never a subject of acquisition for the GWSC, to be more probable than the Plaintiff’s case. Apart from the binding admission of Abeebange, the evidence on record, including the documentary evidence, therefore, supports the case of the 1st Defendant who has established his title on the balance of probabilities. This case in my view, falls into the exception where the record does not support a finding that the recent acts of possession by Abeebange should entitle the Plaintiff to a declaration of title in his favour. See: Hlordzie v. George (supra). I agree with the Court of Appeal that the 1st Defendant proved a better title on the evidence, including the documentary evidence on record.
In respect of Exhibit 6, tendered in support of the 1st Defendant’s case, I find it to have little or no probative value. Though a statutory declaration is itself generally self- serving, the contents therein may be of probative value where same are not challenged or are supported by other evidence on record. A Court of law is entitled upon evaluation, to attach the appropriate weight to the contents of a Statutory Declaration. See: In Re Ashalley Botwe lands: Agbosu v. Kotey {2004] SCGLR 1. In this case however, the declaration was made and signed by Counsel for the 1st Defendant, who was himself not called to testify in this suit. The Court of Appeal therefore ought not to have attached any weight to same. Discounting the said declaration does not, however, affect the findings made in favour of the 1st Defendant, by the Court of Appeal.
Having found that the 1st Defendant established better title to the land in dispute, he was at liberty to alienate same to the 2nd Defendant. The 1st Defendant granted the said land to the 2nd Defendant as per Exhibit 8. Prior to this alienation, however, the 1st Defendant had obtained a lease from PW2, John Atule Ayeremoah, the acting Tindana at the material time. The importance of the Tindana in the Northern parts of Ghana was clarified by this Court in the case of Yakubu Awabego v. Tindana Agongo Akubayela, Civil Appeal No. J4/6/2016 dated 23rd November 2016. In the said case, after a review of various text writers, decided cases and literature, it was made apparent that the allodial title of some named communities in Northern Ghana are held in trust by the Tindana, as a custodian for the communities, who hold the usufructuary interest and the Tindana is a relevant party in execution of documents. PW 2 in fact admitted under cross- examination that as acting Tindana he was a usual signatory to land documentation and on some occasions he had to go to the Court to execute same.
PW2 admitted executing the Lease of the land in dispute to the 1st Defendant as per Exhibit 7, also attached to the Plaintiff’s Witness Statement as Exhibit G. The recitals in Exhibit 7 reveal that PW2 granted the land to the 1st Defendant, therein in the former’s capacity as allodial title holder. PW2 testified that he had been misled by the 1st Defendant, into believing that the land in dispute was his family land and that he required a Lease in his name, which was the reason he executed the said document. According to PW2, he later made further enquiries and came to the conclusion that the land belonged to the Plaintiff’s family. On the strength of Exhibit 7 among others, the Plaintiff alleged fraud against the 1st Defendant leading to a finding of fraud against the 1st Defendant, by the trial Court.
In setting aside the finding of fraud by the High Court, the Court of Appeal held that the evidence on record did not support the finding of fraud beyond reasonable doubt, on the execution of the Exhibit 7 by PW2. The Court of Appeal further held that, in view of the proof of 1st Defendant’s ownership of the land in dispute, on a balance of probabilities, a finding of fraud is unsupportable. Upon an evaluation of the record, I agree with the Court of Appeal on these findings.
PW 2 testified that as a middle school leaver he could read and write “small”. His secretary, who witnessed Exhibit 7, could also read and write. In the circumstances, PW2 is bound by his signature, for it is settled law that a party of full age and understanding will normally be bound by his signature on a document whether he read it or not, in the absence of evidence that the other party had misled him. See: Oppong v. Anarfi. [2011] 1 SCGLR 556.
Upon the foregoing, I find that grounds (i) and (v) of the appeal ought to fail and are dismissed. I agree with the Court of Appeal that the Judgment of the trial Court is unsupportable considering the evidence on record. Though an Appellate Court ought to exercise restraint in reversing the decision of the trial Court even if it would have come to different conclusion, where the Judgment of the said Court is unsupportable considering the evidence on record, or perverse, an appellate Court is entitled to interfere with same. Upon all of the foregoing, I agree with the decision of the Court of Appeal that Judgment be entered for the Defendants. I find that the appeal has no merit, and same is accordingly dismissed in its entirety.
(SGD.) H. AMALEBOBA
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JAMES MARSHALL BELIEB ESQ. FOR THE PLAINTIFF/RESPONDENT/
APPELLANT WITH DERICK ADU-GYAMFI ESQ.
SETH NYAABA ESQ. FOR THE DEFENDANTS/APPELLANTS/ RESPONDENTS .
