ADWUBENG vs. DOMFEH [1997-98] 1 GLR 282

CASES REFERRED TO

(1) Adjeibi-Kojo v Bonsie (1957) 3 WALR 257.

(2) Zogli v Ganyo [1997] GLR 297, CA.

(3) Suka v Glavee [1991] 1 GLR 194.

(4) Angu v Attah (1916) ‘74-’28, 43, Pc.

(5) Wright v Beckett (1834) 174 ER 143.

(6) R v Birch (1924) 93 LJKB 385.

(7) R v Golder; R v Jones; R v Porrit [1960] 3 All ER 457; (1960) 45 Cr App R 5, CCA. (8) Banga v Djanie [1989-90] 1 GLR 510, CA.

(9) Kponuglo v Kodadja (1993) 2 WACA 24.

(10) Kodilinye v Odu (1935) 2 W ACA 336.

(11) Adzraku v Dzatagbo, High Court, Ho, 11 February 1993 unreported.

(12) Ebu v Ababio (1956) 2 WALR 55.

(13) Attah v Amoasi [1976] 2 GLR 201, CA.

NATURE OF PROCEEDINGS

APPEAL by the plaintiff-appellant, the chief of Mfrefuo, Kumasi from the majority judgment of the Court of Appeal reversing the judgment of the High Court, Kumasi in favour of the plaintiff in an action for declaration of title to land and giving judgment to the defendant on his counterclaim for the title to the same land on behalf of his stool, the Kusease stool. The facts are sufficiently stated in the judgment of Acquah JSC.

COUNSEL

W A N Adumua-Bossman (with him Neequaye) for the plaintiff-appellant.

Darkwah-Dwamena (with him Baafour Ankomah) for the defendant-respondent.

JUDGMENT OF AMPIAH JSC.

I have read the opinion of my brother Acquah JSC and I am in entire agreement with him. It is now trite learning that a person who goes to court to claim title to land assumes the onerous task of establishing the identity and extent of the land he claims. He does so by calling those who share common boundary with him on his land or, where it is not possible to call all or any of these boundary owners because they [p.286] of [1997-98] 1 GLR 282 themselves lay adverse claim to portions of his land, by calling evidence of unrestricted exercise of overt acts of ownership on the land; which overt acts may include activities of persons who have farmed, built or done some other activities on the land. These acts may also include successful litigations taken by that person or his predecessors, or persons claiming through him, to protect or defend their interest in the land. This onus falls equally on a defendant who decides to counterclaim for title.

In the instant case, I think, the defendant, perhaps for lack of proper advice, took his claim for granted. He relied solely or substantially on an alleged arbitration award which to him, created an estoppel on the plaintiff. He must have realised, rather belatedly that, that defence could not avail him; hence his attempt to discontinue his counterclaim. These arbitration proceedings could not culminate in an arbitration properly so-called. At best, it could only have been an attempt at settlement. As the evidence shows, there were several claimants to the Duasi land; the attempt was only aimed at resolving the various disputes.

Settlement of the issue between the plaintiff and the defendant could not have settled all the issues in respect of the Duasi land. No doubt, the chairman of the alleged arbitration proceedings (the Kwadason committee) who gave evidence as the first defendant witness, informed the parties that they were at liberty to resort to court action if they were not satisfied with his proceedings.

Having thus failed to establish the validity of the arbitration award, there was hardly any evidence upon which the defendant could rely to support his claim for title. The plaintiff’s claim was for only a portion of the Duasi land called “Dendew” which he described in his claim and called witnesses to identify. The defendant described his land similarly but surprisingly his only witness, the second defendant witness, who said anything about the land did not know the “Dendew” land over which there was this dispute. According to the defendant’s evidence it was his ancestors who settled the plaintiff’s people on the Duasi land. He could however not tell what extent of land was granted the plaintiff’s ancestors; neither could he describe the boundaries of that settlement. If his people were really the grantors of the plaintiff’s land he should definitely have known the identity and extent of the area and what it is called now. He claims that he

[p.287] of [1997-98] 1 GLR 282 himself is on a portion of the Duasi land. This is admitted by the plaintiff who says the defendant is on that portion of the Duasi land called Kusiase upon which the plaintiff’s ancestors had settled the defendant’s. This was not challenged. It is in evidence also that Nana Opoku-Ware I married two women from Denkyira, Niwaa Tuapim and Agyeiwaa Buta. These woman were sent to Oti Akran, the ancestor of the plaintiff to settle them on the Duasi land. The lands given to these two women are still in the possession of the families of these women; these lands as well as the Kusiase land are not included in the plaintiff’s claim though they are all on the Duasi land. It was therefore necessary for the defendant to describe the portion of the land he claims instead of claiming vaguely the Duasi land with reference to the description given by the plaintiff; the plaintiff’s land is “Dendew” on Duasi land.

With such overwhelming evidence of possession, including overt acts exercised admittedly by the plaintiff and his people, and the evidence of the adjoining boundary owners, I do not see how the plaintiff could have been denied title to the land he claims. Since the defendant failed to establish any title to the land, I find it difficult to understand why the trial judge could not declare absolute title in the plaintiff. Who could have been the absolute owner of the plaintiff’s possessory title? I am satisfied that both the trial court and the appellate court, ie the Court of Appeal, failed to give the proper judgment on the face of the evidence before them. It is for this reason that I agree that the appeal be allowed.

JUDGMENT OF ACQUAH JSC.

This is an appeal against the majority judgment of the Court of Appeal reversing the judgment of the High Court, Kumasi in respect of a piece and parcel of land at Duasi. The plaintiff, the occupant of the Mfrefuo stool of Kumasi, on behalf of himself and the said stool issued the instant writ against the defendant, the occupant of the Kusease stool, for:

“(1) a declaration that all that piece or parcel of land situate4(4)sic and called Dendew and having boundaries with the land of Truba, Akyempihene, the Mpantrona stream, the Sisai stream, Apenpenso stream and more particu-

[p.288] of [1997-98] 1 GLR 282 larly delineated or described on the sketch map or plan annexed hereto marked ‘KAI’ and edged pink is vested in his (the plaintiff’s) Mfrefuo stool and that the defendant herein or his stool or both has no interest whatsoever in that land;

(2) damages for trespass; and (3) perpetual injunction restraining the defendant and/or his stool, servants, agents, workmen and/or any other person or persons claiming through him or his stool from any way interfering with the plaintiff’s title to or possession or occupation thereof or from any way dealing with the plaintiff’s said land.”

The defendant also put in a ccounterclaim in respect of the same land for:

“(i) declaration of title to all that piece or parcel of land situate and lying and being at a place commonly known and called Dendew and having boundaries with the land of Truba, Akyempimhene, the Mpankroma, Sisai and Apenpenso stream of which said land forms part of the Duasi stool lands (Oko stool lands); and (ii) perpetual injunction restraining the plaintiff, by himself, his agents, servants and/or workmen from having anything to do with the said land apart from farming rights only.”

The case of the plaintiff as disclosed in his pleadings and evidence at the trial, is that the land in dispute was granted to his ancestor Oti Akram, a krontihene of Denkyira by the Asantehene Nana Obiri Yeboah. Oti Akram and his people settled on it and founded Duasi. Thereafter at the request of Nana Opoku Ware he settled first, Niwaa Tuapim and later Nana Agyeiwaa—both wives of Nana Opoku Ware—at various portions of the land. Later the defendant’s ancestor Oko Gyan, the priest of the fetish Tano Kwabena, was brought from Akwaboo to be settled temporarily at Duasi because of disturbances at that area. Oti Akram settled Oko Gyan and his fetish under an Akusiaa tree. He alleges that the land his ancestor Oti Akram allocated to the two women and Oko

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Gyan are different from the land in dispute, and that the land now in dispute is his land which Oti Akram settled on well over 50 years before Oko Gyan was settled. Yet, the defendant now lays claim to the land in dispute and has been committing acts of trespass by allocating portions to people and winning sand and gravels from it.

The defendant in his defence admitted tracing his ancestry through Oko Gyan and the fetish Tano Kwabena, but contends that Oko Gyan was the first to be settled at the area by Nana Osei Tutu, the Asantehene. He alleges that all the lands in Duasi belong to his stool and that the land in dispute is a portion of the land granted to the fetish Tano Kwabena. He further pleads that the plaintiff is estopped by an alleged arbitration held at the Provisional National Defence Council Information Center in Kumasi from 22 to 24 December 1982 under the chairmanship of one Police Superintendent Godo Kwadason. He maintains that the plaintiff has only farming rights in the land in dispute and that absolute ownership is vested in the Oko Gyan stool.

In her judgment, the trial High Court judge (Rose Owusu J) held that the Godo Kwadason’ s proceedings at the Provisional National Defence Council Information Center did not constitute a valid arbitration award to estop the plaintiff from maintaining this action. She dismissed the plaintiff’s claim for title but entered judgment in his favour for possessory title; ¢500,000 damages for trespass; and perpetual injunction, with costs of ¢1 million. At the Court of Appeal, the majority (Lamptey and Forster JJA) reversed and set aside this judgment, and entered judgment for the defendant. Sapong JA dissented and varied the High Court judgment by entering judgment for the plaintiff for the title he claimed and affirmed the damages for trespass and perpetual injunction.

It is against this majority judgment of the Court of Appeal, that the instant appeal is lodged on three original and four additional grounds. The first ground is against the weight of the evidence; the second is in respect of the Kwadason committee’s award; while the third attacks the rejection of the plaintiff’s traditional history. The four additional grounds allege misapplication of the rule in Adjeibi-Kojo v Bonsie (1957) 3 WALR 257;the findings of Forster JA; and the failure to decree title in the plaintiff.

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Of course, since a valid plea of estoppel prevents a court from going into an issue already adjudicated, I will begin with the ground against Forster JA’s holding that the Kwadason committee’s award constituted a valid and binding arbitration award. The appellant contends that the award is not binding because there was no prior agreement on his part to be bound by it. Further the number of the committee members was even which is uncustomary; that the parties were denied the right to call witnesses; and finally the inclusion of the Nsumankwahene on the committee, vitiated its work since the Nsumankwahene was also an interested party in the dispute. The defendant-respondent on the other hand argued that the award was valid and binding.

The trial judge on the authority of Zogli v Ganyo [1977] 1 GLR 297, CA, held that the award was not binding because from the evidence of the chairman of the committee, the first defendant witness, there was no prior agreement that the parties were to be bound by the award. At the Court of Appeal, Sapong JA agreed with the trial judge, Lamptey JA made no pronouncement on the committee’s award, while Forster JA alone held that it was binding or in his lordship’s view, whatever the chairman said was irrelevant and that once it was the plaintiff’s predecessor who lodged the complaint, it would be unrealistic to allege that he did not agree to be bound by the award of the committee.

Indeed, Forster JA’s view will obviously blur the distinction between an arbitration and a negotiated settlement. A distinction which had been so well settled as not to need any further examination. Now, when the courts talk of a prior agreement to be bound by the award of an arbitration in a host of cases like Zogli v Ganyo (supra) and Suka v Glavee [1991] 1 GLR 194, what is implied is that the parties are deemed to have intended, based on the nature and the surrounding circumstances of the panel, to accept the award of that panel as final and conclusive and not thereafter to relitigate the same dispute before any panel or court. In short, the parties are deemed to have undertaken to accept the award as the final and conclusive determination of their dispute and thereafter live in accordance with that award.

Accordingly, where parties appear before a panel which gives them firm assurance that after its decision, they are free to take their dispute once again to the courts for determination, that panel

[p.291] of [1997-98] 1 GLR 282 obviously sees itself as a mediator to attempt a settlement of the dispute rather than a body to decide once and for all the dispute between the parties. And a panel which sees itself as a mediator usually does not allow the parties to call witnesses. In the instant case, it is clear from the evidence of the chairman of the Kwadason committee and the report, exhibit 3, itself that before the committee started its hearing, the parties were assured that whoever was not satisfied with their decision was free to go to court. The chairman, the first defendant witness, was asked under cross-examination: “You also advised them that if any of them was not satisfied, he could go to court? And he answered: “That is correct.” And at page 1 of the report, exhibit 3, it is clearly stated that the work of the committee was “without prejudice to future court actions.”

Thus, as the evidence discloses, after the award of the committee, the Asantehene set up another committee to go into the same dispute. Indeed, the Kwadason committee did not allow the parties to call witnesses in support of their respective claims. In the face of the foregoing, it cannot be doubted that the committee saw itself as nothing but a mediating committee to attempt settlement of the Duasi land dispute. For as stated in the report, the committee in the course of the investigation into the wrongful harvesting of foodstuffs on the Duasi land was “moved to find any possible means of resolving what [they] considered as mounting tensions within the Duasi community.” From the nature and circumstances under which the committee decided to intervene in the Duasi land dispute together with the assurance to the parties that they could resort to the court if dissatisfied with the result of their work, it would be highly erroneous to hold that the award of that committee constitutes estoppel.

Now, the remaining grounds of appeal aim at establishing that the plaintiff succeeded in proving his title to the land. The trial judge held that the plaintiff failed to establish the identity of his land, and further failed to prove his title. The majority at the Court of Appeal upheld both findings. And it is this confirmation by the Court of Appeal that the plaintiff challenges in these grounds of appeal. Now, the plaintiff by his writ and evidence claims title to a land called Dendew which shares boundary with Buokrom stool land, Mpankroma stream, Akyempim stool, Ntaamu stool land,

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Apampransua stream, Sisai stream and Truba stool land. He further attached a plan to his writ marked KAI delineating clearly the land he claims. In support of his claim the plaintiff called as his witnesses, Nana Owusu-Bempah, chief of Buokrom as the first plaintiff witness; Nana Kwabena Dapaa, Odikro of Breponase whose stool shares boundary by the Mpankrona stream, as the second plaintiff witness; Nana Kwasi Boakye, Odikro of Ntaam as the third plaintiff witness; Osei Akwasi, the linguist of the Truba stool as the fourth plaintiff witness; and finally, Nana Gyambibi Owusu-Afriyie, the Abradehene of Duasi, as the fifth plaintiff witness. Each of these witnesses testified that his stool has land which forms boundary either directly or by a stream with the land claimed by the plaintiff; and that, that land belongs to the plaintiff and not the defendant. Some of these witnesses have been on their stools for over twenty years. In the face of such evidence, the trial judge rather reasoned thus:

“There is no dispute that the land the subject-matter of the dispute between the plaintiff and the defendant herein before the committee [ie Kwadason’s] is the same land, the subject matter of the present action. Before the committee, Nana Agyapong described his land as sharing boundary with Nana Nsumankwahene, Nana Buokromhene, Nana Akyempimhene, Nana Yaw Nsiah, Trubahene, Bediako’s family, Opanyin Kwaku Asare and Nana Gyambibi. Under crossexamination, Nana Agyapong admitted that Nana Domfe is the present occupant of the Bediako’s stool. On the writ, however, Nana Domfe is not named as a boundary owner. Unfortunately, Nana Agyapong did not live to testify before this court to explain away the different description of the same land. In his evidence, the plaintiff’s attorney described the land as sharing boundaries with Buokrom stool, Mpankoma stool, Akyempim stool, Ntaamu stool, Apenpenso stream, Sisai stream and Truba stool land. With this state of affairs the plaintiff has failed to identify clearly to the court the area of land to which his claim relates.”

It is clear from the above passage that the basis on which the trial judge held that the plaintiff had failed to establish the identity

[p.293] of [1997-98] 1 GLR 282 of his land is that one Nana Domfeh mentioned in the evidence before the Kwadason committee as a boundary owner, is not mentioned in the writ and by the plaintiff’s attorney as a boundary owner. The trial judge by such reasoning regarded the evidence before the Kwadason committee as the truth of the matters stated therein, and thereby used same as a yardstick to determine the authenticity of the evidence led before her. The trial judge did not consider the evidence of the five boundary owners who testified in support of the plaintiff’s claim. Neither did she consider the plan marked KAI attached to the writ of summons. If she had examined the evidence of the boundary owners and the plan, she would have realised that these two items together with the evidence of the plaintiff’s attorney, sufficiently identified the plaintiff’s land.

It is particularly important to point out that the report of the Kwadason’s committee, exhibit 3, was tendered solely in support of the contention that it’s award estopped the plaintiff from maintaining this action. Neither the entire report nor any piece of evidence therein was used to support or attack the credibility of any of the witnesses who testified before the trial judge. In the circumstances, it was improper for the trial judge to resort to the evidence in that report in her assessment and evaluation of the issues.

The principle governing the use of evidence given in former proceedings is settled and was stated in the headnotes in Angu v Attah (1916) ‘74-’28, 43, PC as follows:

“Except by agreement, or in accordance with the law of evidence as to the admissibility of the statement of deceased persons, the record of what a witness has sworn to in one action cannot be used in another action as evidence of the facts which he has sworn to.”

Now, section 80 of the Evidence Decree, 1975 (NRCD 323) allows evidence in a previous suit to be tendered to support or attack the credibility of a witness. Accordingly, where a witness is proved in a previous suit to have sworn the contrary of what he testifies in a subsequent suit, two situations can arise. One is where the witness is unable to give a satisfactory account of the inconsistent testimonies; the other is where he gives an expla-

[p.294] of [1997-98] 1 GLR 282 nation which the trial judge accepts as reasonable for his former evidence. In the first case, the effect of the contradiction is to destroy his credibility and to render the evidence he gives at the subsequent trial, negligible, but the earlier testimony or statement used to contradict him is not admissible evidence of the truth of the fact stated therein and is not evidence upon which the court should act to make findings of fact: see Wright v Beckett (1834) 174 ER 143; R v Birch (1924) 93 LJKB 385; and R v Golder (1960) 54 Cr App R 5. In the second case, it will be for the trial judge to form his own opinion of the credibility and veracity of the witness, and either accept or reject the evidence given before him; but there again as stated above, the previous statement or testimony used to contradict the witness, is not admissible evidence of the truth of the fact stated therein.

From the above exposition, it is clear that the trial judge erred in ignoring the evidence before her, and relying on the proceedings of the Kwadason committee. And the majority at the Court of Appeal ought to have rejected that finding which was based on the Kwadason committee.

The next finding the trial judge made was in relation to the plaintiff’s proof of title to the land in dispute. She began by postulating that the standard of proof in actions for title to land is proof beyond reasonable doubt and not on balance of probabilities. She said:

“Each party seeks a declaration of title to the land in dispute and a claim for declaration of title cannot succeed on the balance of probabilities. The standard of proof is high and it is now equated to the degree of proof in criminal cases, ie proof beyond all reasonable doubt.”

Justice Amua-Sekyi made the same point in his paper titled: “Proof in Civil Cases: Some Thoughts on Land Suit”, delivered at a conference for superior court judges in July 1988. His lordship wrote: “where the plaintiff relies on title as the basis of his action for trespass or sues for a declaration of his title to the land, a higher standard of proof is demanded from him … what our

[p.295] of [1997-98] 1 GLR 282 courts demand from him is, in fact, proof beyond reasonable doubt.”

See also Francois JSC in Banga v Djanie [1989-90] 1 GLR 510 at 520, CA. Of course, before the coming into force of NRCD 323 on 1 October 1979, a host of respectable decisions had firmly established such a standard of proof for titles to land: Kponuglo v Kodadja (1933) 2 WACA 24; Kodilinye v Odu (1935) 2 WACA 336; and Bissah v Gyampoh [1964] GLR 381, SC. But section 11 (2) of NRCD 323 imposed proof beyond reasonable doubt only on prosecutions in criminal actions, and in proof of a commission of a crime in any civil or criminal action. While sections 1(4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities—no exceptions are made. In the light of NRCD 323 therefore the cases which hold that proof of title to land required proof beyond reasonable doubt, no longer represent the present state of the law. Thus in Adzraku v Dzatagbo, High Court, Ho, 11 February 1993, unreported I said:

“Let me indeed point out that cases like Kodilinye v Odu (1935) 2 WACA 336, and Kponuglo v Kodadja (1933) 2 W ACA 24 which laid a different and indeed higher standard of proof in land suits, no longer represents the present state of our law … Our Evidence Decree, 1975 (NRCD 323) postulates a single standard of proof in all civil trials. That is proof by a preponderance of the probabilities which is defined in section 12(1) of the Decree … “

Now, in the instant appeal, the trial judge held, and this was confirmed by the majority at the Court of Appeal, that the plaintiff failed to establish his title to the land because the researches she made did not bear out the plaintiff’s traditional history. She said that it was not mentioned in J K Fynn’s book—Asante and Its Neighbors—that Poku Ware I captured Tano Kwabena from the Tekyiman war. Neither was the plaintiff’s ancestor, Oti Akram, mentioned anywhere in a research paper on the history of Duasi by the African Research Institute of the University of Ghana.

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Now, as observed by Lord Denning in Adjebi-Kojo v Bonsie (1957) 3 WALR 257 at 260”PC, once traditional history is handed down by word of mouth, it must:

“. . . be recognised that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witness of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago.”

Accordingly, a court cannot simply reject a party’s traditional evidence on such petty and trifling matters. In the instant case, what was really the point in difference in the rival traditional evidence? And how authentic are the sources relied on by the trial judge?

The appellant sought leave and exhibited the alleged history from the African Research Institute. It is a two-page record by one Agyeman-Duah whose sources of information as, stated therein, were Nana Owusu Afriyie and three others. This Nana Owusu Afriyie was admitted by the defendant’s attorney under crossexamination, to be the predecessor of the defendant. And this fact alone punctures the fairness of that history. But more importantly, this recorded history does not accord with the defendant’s traditional evidence before the trial judge. For the defendant does not deny the early settlement of the plaintiff’s ancestors on the Duasi land. What the defendant contends is that his (the defendant’s) ancestor Oko Gyan was the first to settle at Duasi before Nana Opoku Ware I settled the plaintiff’s Oti Akram on the Duasi land. Thus the defendant’s attorney testified in-chief as follows:

“It is not true that the plaintiff’s ancestor gave us somewhere to stay at Duasi. We were there before their (ie the plaintiff’s) stool was created. They came there to collect herbs for Opoku Ware. They were settled there by Nana Opoku Ware.”

(The emphasis mine.)

Now, while the plaintiff claimed through Oti Akram, the defendant traced his ancestry through Oko Gyan. And although

[p.297] of [1997-98] 1 GLR 282 each party denied that the other’s ancestor was the first to settle at Duasi, neither denied the ancestry of the other. In the circumstances, the resolution of the rival traditional evidence did not depend on the acceptance or rejection of the entire history of a party as done by the trial judge, but on the determination of which of the ancestors—Oti Akram or Oku Gyan—was the first to settle at Duasi. And for this, neither J K Fynn’s book, nor the two-page work of Agyeman-Duah offers any assistance. In such a situation, where it is difficult to make such a finding, the recommended approach is to have recourse to facts in recent years as established by the evidence.

Indeed, it is firmly established that a party can still succeed in an action for declaration of title even if his traditional evidence is rejected. Thus the Privy Council in Ebu v Ababio (1956) 2 WALR 55 at 57 said: “Traditional evidence has a part to play in actions for declaration of title but there are cases in which a party can succeed even if he fails to obtain a finding in his favour on the traditional evidence.”

In proof of his title, the plaintiff after identifying the disputed land in his evidence and by the plan marked KAI, proceeded to call boundary owners who testified in support of the boundary the plaintiff identified. And it must be observed that the defendant’s counterclaim is in respect of the same land with the same boundaries. Thus as rightly contended by the plaintiff, the parties were not in doubt as to the identity of the land since both claimed title to the same described land. It therefore follows that the trial judge’s finding as affirmed by the majority at the Court of Appeal that the plaintiff failed to establish the identity of the land, is again in error. For it is an elementary principle that a party is not required to prove or establish what is not in dispute: see Attah v Amoasi [1976] 2 GLR 201, CA.

The plaintiff’s boundary owners testified further to the plaintiff’s ownership of the disputed land. Thus Kwabena Dapaa, the second plaintiff witness, in his evidence in chief said:

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“I am a farmer and the Odikro of Breponease. I know the parties in this action and the land in dispute. The land belongs to the plaintiff, an ancestor of one Oti. I share boundary with the plaintiff. Our boundary feature is the Mpankona stream. I have been the Odikro of Breponease for the past 30 years.”

And Nana Gyambibi Owusu Afriyie, the fifth plaintiff witness, the Abradehene of Duasi confirmed not only the traditional history of the plaintiff in material particulars, but also testified that the disputed land belonged to the plaintiff. He said in evidence in chief: “Oti Akram who owned Duasi land asked Tano Kwabena to be sent to Kusasi under the Kusia tree. They settled them under the Kusia tree. I have been on the stool for nineteen years.” With such evidence from these witnesses, must be added the defendant’s admission that the plaintiff had since their settlement on the land by Nana Opoku Ware I, been in possession of the land.

As opposed to the above pieces of evidence in favour of the plaintiff, the defendant called no boundary owner nor any witness to testify to his alleged ownership of the land he claims title to. The defendant relied on the Kwadason committee’s report and called the chairman as the first defendant witness. He then called the second defendant witness, a witness who testified on the Ashanti Wars. With the rejection of the Kwadason committee’s award, the defendant stands bereft of any evidence in support of his counterclaim. On the balance of the probabilities then, the plaintiff had succeeded in convincing the court that his claim to title is more probable than that of the defendant’s. And therefore he is entitled to judgment.

On the plaintiff’s claim for damages for trespass, the defendant admits winning sand, taking gravels and allocating portions of the land to developers. He was asked:” You have been allocating plots to developers? And he answered: “Yes, the Kwadason committee gave the land to us.” With the rejection of the Kwadason committee’s award, the basis of the defendant’s authority vanishes, and the plaintiff who had been in possession of the land since Nana Opoku Ware’s time becomes entitled to damages for such conduct.

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In conclusion, the appeal is allowed and the judgment of the Court of Appeal is set aside. I enter judgment for the plaintiff, and dismiss the defendant’s counterclaim. The plaintiff is therefore declared owner of the Duasi land as described in the writ of summons, awarded the damages assessed by the trial judge, and granted perpetual injunction as per the endorsement on the writ of summons.

JUDGMENT OF KPEGAH JSC.

I have had the privilege of reading the opinion just read by my brother Acquah JSC and I agree with his reasoning and conclusion that the appeal be allowed.

JUDGMENT OF ADJABENG JSC.

I agree with the reasoning and the conclusion that the appeal be allowed.

JUDGMENT OF ATUGUBA JSC.

I also agree with the reasoning and the conclsion5(5)sic that the appeal be allowed.

DECISION

Appeal allowed.

Endnotes

1 (Popup – Footnote) 1 same in original.

2 (Popup – Footnote) 2 same in original.

3 (Popup – Footnote) 3 same in content 4 (Popup – Footnote) 4 same in original.

5 (Popup – Footnote) 5 same in original.