TOGBE ANKUDEY III & ORS vs. SIMON KWAMPAH & ORS

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D.2026

CORAM: LOVELACE-JOHNSON (MS) JSC (PRESIDING)

KULENDI JSC

ASIEDU JSC

KWOFIE JSC

BARTELS-KODWO JSC

CIVIL APPEAL NO: J4/18/2024

18TH MARCH, 2026

TOGBE ANKUDEY III

NICHOLAS ATIKLU PLAINTIFFS/APPELLANTS/

TOGBE ZA III RESPONDENTS

VRS

SIMON KWAMPAH

(SUBST. BY JACOB KUAPAH) DEFENDANTS/RESPONDENTS/ APPELLANTS

FIATOR PROSPER TSIGBE

PESBEN INVESTMENTS COMPANY LTD

JUDGMENT

KULENDI JSC:

INTRODUCTION:

The Defendants/Respondents/Appellants (hereinafter called ‘the Defendants”) invoked the appellate jurisdiction of this Court by the filing of a Notice of Appeal on 1st August, 2023, to challenge the Judgement of the Court of Appeal which is dated 20th July, 2023 by which the learned Justices of the Court of Appeal set aside the Judgement of the High Court and, in its stead, granted in part, the reliefs endorsed on Plaintiffs/Appellants/Respondents (hereinafter referred to as “Plaintiffs”) Writ of Summons and Statement of Claim.

BACKGROUND:

The Plaintiffs by an amended Writ of Summons filed on 22nd May, 2015, prayed the High Court, Ho for the following reliefs:

A declaration of title to the Sende, Gbade and Donyi lands, all situate and being at Kpenoe and particularly bounded as follows at paragraphs 1 (Sende), 13 (Gbade 1), 16 (Gbade 2) and 17 (Donyi) of the statement of claim.

General and Special Damages for trespass.

Recovery of possession.

Perpetual Injunction restraining the Defendants, their assigns, privies, workmen, agents, servants and anybody claiming title through them from having anything to do with the lands in dispute whatsoever.

A declaration that the Asiale Clan held portion of the Sende land in trust for the Agadzi Clan when Togbe Kotoku assumed the Chieftaincy after installation by Agadzi Clan, but has since trespassed beyond same.

The facts upon which the Plaintiffs grounded the reliefs sought are that the Plaintiffs are members of the Agadzi clan of Kpenoe, whilst the 1st and 2nd Defendants are members of the Asiale clan of Kpenoe. The 3rd Defendant is an estate developer who acquired portions of the land in dispute.

It was the Plaintiffs’ case that their ancestor and forefather, Togbe Letsu, who is said to have been the first settlor of the Agadzi clan, discovered vast tracts of land through hunting expeditions. The Plaintiffs further contended that, owing to the absence of a suitable male successor to inherit from Togbe Letsu, he requested his maternal uncle, Yaw Kwesi of the Asiale clan, to be installed as Togbe Kotoku and entrusted him with certain lands to hold in trust until such time as a male descendant from the Agadzi clan could be installed.

The Plaintiffs aver that the land so entrusted was known as the Sende land, which they described as sharing boundaries with the Gbade land, the lands of Togbe Afele and Togbe Setsie, as well as lands belonging to the Ho people. According to the Plaintiffs, portions of the Gbade land were subsequently granted to Adesenku and Tsakade of Takla Gbogame, and the Gbade land itself was described as sharing boundaries with the lands of Adesenku and Tsakade.

In relation to the Gbade and Donye lands, the Plaintiffs pleaded at paragraph 16 of their Amended Statement of Claim as follows:

“The Defendants trespassed unto portions of the Gbade and Donye lands which were not part of the lands entrusted to the Asiale clan by the Agadzi clan.”

The Plaintiffs averred that members of their families, together with their tenants, maintain palm plantations and farms on the land. They further stated that they regularly engage in charcoal burning and the felling of economic trees on the land. According to the Plaintiffs, the Defendants unlawfully entered onto extensive portions of the Gbade and Sande lands and proceeded to sell approximately one hundred (100) acres thereof, notwithstanding the Plaintiffs’ protests and opposition to such acts of trespass and sale. The Plaintiffs further alleged that the Defendants felled vast quantities of economic trees on the Gbade and Sende lands, thereby degrading the land and diminishing its fertility. The Plaintiffs particularised the species, quantity, and value of the economic trees allegedly felled by the Defendants in support of their claim for special damages.

On the basis of the foregoing facts, coupled with allegations that the Plaintiffs had been arrested by the police at the instance of the 3rd Defendant, the Plaintiffs commenced the instant action before the High Court seeking the reliefs endorsed on the Writ of Summons.

The Defendants filed a Statement of Defence in which they substantially denied the Plaintiffs’ claims to ownership of the Donyi, Gbade, and Sende lands. With respect to the involvement of the police, the 3rd Defendant contended that the 1st Plaintiff had engaged thugs to harass its workers after attempts to extort money from the 3rd Defendant had failed, and that it was as a consequence of this alleged harassment that the matter was reported to the police.

PROCEEDINGS AT HIGH COURT:

On 29th February, 2016, at the instance of the Plaintiff, the following issues were set down for trial;

Whether or not the disputed land was founded by Togbe Letsu

Whether or not Yaw Kwasi of Asiale was installed as Togbe Kotoku as a caretaker for the Agadzi clan until a male from the said clan could be found suitable and later take over the land under the kinship

Whether or not the lands in dispute belonged to the Agadzi clan

Whether or not the Plaintiffs are entitled to their claims

Whether or not the Defendants trespassed unto the land in dispute.

Any other issues raised and arising out of the pleadings.

Following the Case Management Conference, the trial commenced on 29th March 2017. The 1st Plaintiff testified in person and on behalf of the other Plaintiffs, and further called Henry Kwadwo Tabo and Frank Tsakade as witnesses in support of the Plaintiffs’ case.

The 1st Defendant also testified in person. In further support of the defence, the witness statement of Traugot Tabo, filed on 16th December 2016, was admitted and adopted as hearsay evidence pursuant to Order 32 Rule 7(3)(e)(5) of the High Court Civil Procedure Rules, 2004 (C.I. 47), the said witness having passed away prior to trial and therefore being unavailable to testify in person. The Defendants additionally called Winnifred Atiklu (DW1), who testified pursuant to her witness statement filed on 15th December, 2016.

It is important to add that the 2nd Defendant wrote a letter dated 17th July, 2020, to be allowed to testify independent of the 1st Defendant. Accordingly, he testified as such and his testimony was particularly damaging to the Defendants case and in support of the Plaintiff’s case.

Judgement was delivered on 24th January, 2022 with the High Court dismissing Plaintiffs’ case and awarding cost of Fifteen Thousand Ghana cedis (GH¢ 15,000.00) against Plaintiffs in favour of the Defendants. Contrary to the Plaintiffs’ claim that the Asiale clan were trespassers to the Gbade and Donyi lands, the trial Judge found that the Asiale clan had been in possession of the tracts of land since “time immemorial”. More particularly, the trial Judge stated as follows:

“I hold that Plaintiffs have failed to meet and discharge the burden of proof the law requires of them for the reliefs they seek… Obviously, per the evidence of the Surveyor on the Composite Plan, Defendants do not contest or deny that Plaintiffs have portions of lands within the disputed area. I reiterate that Defendants made no counterclaim; they just denied Plaintiffs’ claims in the suit.

The fact I cannot refrain from stating on the face of the evidence is that Plaintiffs do have lands within the ‘hatched’ disputed land, but their claims and reliefs for declaration of absolute title of the entire disputed land to be made in their favour cannot be possible as Defendant, for time immemorial to the knowledge of Plaintiffs have quietly and peacefully occupied and possessed scattered portions of the lands within the disputed lands. Plaintiff’ action must fail in its entirety and that same is dismissed.”

In respect of the third tract of land, namely the Sende land, which the Plaintiffs contended had been entrusted by the Agadzi clan to the Asiale clan to hold in trust for the Agadzi clan as part of the chieftaincy arrangement relating to Togbe Kotoku, the learned trial Judge, in consonance with the findings of the Judicial Committee of the Asogli Traditional Council, held that Togbe Kotoku and his successors were absolute chiefs and not merely trustees or caretaker chiefs. In this regard, the trial judge stated as follows:

“The Judicial Committee of the Asogli Traditional Councill further confirmed the Kwampah’s family, Plaintiffs in that suit claim that the “[Kotoku] stool has time immemorial been occupied by members of Kwampa family … I hold Plaintiffs in the instant suit as sorely estopped from holding or contending any position contrary to the findings and conclusions of the Judicial Committee of Asogli Traditional Council on the matter as contained in Exhibit A.”

On the basis of the foregoing, the High Court dismissed the Plaintiffs case and rendered its said judgment of 24th January, 2022 in favour of the Defendants.

APPEAL TO THE COURT OF APPEAL:

Dissatisfied with the judgement of the High Court, the Plaintiffs appealed to the Court of Appeal on the sole ground that the judgement of the High Court was against the weight of evidence on record.

After an evaluation of the entire record, the Court of Appeal, by its judgment dated 20th July, 2023, allowed the Plaintiffs’ appeal in part. The final orders of the Court of Appeal in its judgment are recorded as follows:

“In my opinion, the conclusion reached by the learned trial Judge is not supported by the overwhelming evidence on record. As stated above, I am of the view that the trial judge overly relied on the testimony of the 1st and 2nd Plaintiffs’ witnesses and ignored the documentary evidence, being the surveyor’s report which showed the Appellants’ identity of the land and the boundaries. Also, I am of the respectful view that the judge ought to have looked at the case as a purely land matter rather than taking into account the chieftaincy succession of the stool in Kpenoe. In my view he overly amplified the story as to why the Agadzi family did not take the stool back after the demise of Togbe Kotoku X.

…

Also, the trial judge’s exclusion of the testimony of the 2nd Defendant, which in my opinion was critical in his evaluation of the story of the Appellants without any reason was erroneous. Based on all of the above, I am of the respectful opinion that some of the inferences drawn from the facts by the trial court were not proper and therefore the Agyenim-Boateng v. Ofori & Yeboah supra principles are adaptable. The Agyenim-Boateng case recognized that the appellate court is entitled to draw its own inferences from findings of fact by the trial court and to come to its own conclusions. For these reasons, I am of the view that the judgment is indeed against the weight of evidence and ought to be reversed. I find that there is merit in the appeal filed by the Appellants and it succeeds and is hereby allowed. Judgement is entered for the Appellants based on the following orders below.

We would grant the Appellants relief “A” endorsed on the writ of summons based on the description and boundaries stated in the surveyor’s report tendered as Exhibit CW1. I shall also grant the Appellants relief “C” being the recovery of possession of the granted relief “A” lands together with Relief “D”.

We would DISMISS relief “E” and I would not interfere with the trial judge’s assessment of the traditional evidence on that.”

APPEAL TO SUPREME COURT

Dissatisfied with the decision of the Court of Appeal, 1st Defendant on 1st August, 2023 invoked the appellate jurisdiction of this Court by the filing of a Notice of Appeal on the following grounds;

That the Judgment is manifestly against the weight of evidence on record.

That the Court of Appeal erred when it held that the Defendants failed to correctly identify the land in dispute.

That the Court of Appeal erred in relying on the evidence of the 2nd Defendant when the said evidence has been badly discredited.

That the Court of Appeal erred by holding that long possession and occupation cannot inure to the benefit of the Defendant/Respondent family.

That the Court of Appeal erred in relying on traditional evidence from the Plaintiff/Appellant whilst same has not been subjected to the requisite standard of admissibility.

We note that the High Court and the Court of Appeal arrived at conflicting findings of fact in respect of the suit. Whereas the High Court held that the Plaintiffs had failed to prove their claims and accordingly dismissed the action with costs of GHC 15,000.00 against the Plaintiffs, the Court of Appeal found that the Plaintiffs had sufficiently established their case and consequently granted reliefs (a), (c), and (d), together with general damages of GHC 20,000.00 in their favour.

In any case, this Court is not bound by either decision and is at liberty to affirm either of them or make its own findings where the evidence on record so warrants. This position of the law is supported by a plethora of decisions including the decision of Wood CJ in the case of Continental Plastics Engineering Co Ltd v. IMC Industries-Technik Gmbh [2009] SCGLR 298 at 307 wherein she stated as follows:

“An appeal being by way of rehearing, the second appellate court is bound to choose the finding which is consistent with the evidence on the [page 308] record. In effect, the court may affirm either of the two findings or make an altogether different finding based on the record.”

PRELIMINARY COMMENTS:

It is apparent that the case before us delves majorly into the realm of traditional evidence. Throughout the trial, the Court below was confronted with conflicting historical accounts offered by witnesses who relied almost exclusively on information handed down to them over generations. This case, being a quintessential example, of a contest of competing recounts of traditional evidence, none of the witnesses who testified had personal perception of these events at the time of their occurrence and indeed their conflicting testimonies, especially as they pertained to the historical accounts of discovery, settlement and possession of the lands in dispute; were reiterations of accounts which they had received from their respective forebears.

The same may be said of the parties’ attempts to trace their ancestry and migration histories from the pre-colonial era, through the colonial period, to the present day. The evidence relating to ancestral origins, succession, and original settlement falls well outside living memory and was derived principally from accounts transmitted across generations.

It therefore becomes imperative for this Court to carefully examine the competing traditional evidence vis-a-vis the legal principles evolved by our courts in appraising such testimony.

Under Ghanaian law, traditional evidence is admissible to prove title to land, particularly where the historical evidence over the land transcends living memory. Such evidence typically consists of accounts of the discovery of the land, original settlement, conquest, succession, and the devolution of interests through lineage or customary authority. The Courts have long acknowledged that this form of evidence, though largely hearsay in character, is an exception to the general rule against hearsay due to necessity and the peculiar nature of customary land tenure. See Sections 128 and 129 of the Evidence Act, 1975 (NRCD 323).

Where, as in the instant case, the traditional evidence adduced by the parties is conflicting, the Court must not accept one version merely because it has been asserted. Rather, the Court is required to test the competing traditional accounts against evidence of acts of possession and ownership exercised in more recent times, such acts being the most reliable indicator of which account is the more probable. In this regard recent acts of possession, the exercise of ownership rights, and acts such as farming, leasing, granting portions of the land to tenants, and otherwise dealing with the land as owners are matters of considerable probative value.

The guiding principle, as established in a long line of authorities, is that traditional evidence must be weighed alongside recent acts of possession to determine which version is more credible and consistent with the realities on the ground. Where, for example, one party’s traditional history is supported by recent acts of ownership and/or possession, and that of the other party is not, the Court is entitled to prefer the former.

In Re Asere Stool; Nikoi Olai Amontia IV V Akotia Aworsia III [2005-2006] SCGLR 637, traditional evidence was defined as

‘evidence of the history of events which happened some time past, concerning a person’s pedigree, origin, migration, land, family, stool, etc, passed on generally by oral tradition from generation to generation’.

In Adjeibi-Kojo v. Bonsie (1957) 3 WALR 257, the Privy Council opined that in the course of transmission from generation to generation, mistakes may occur without any dishonest motive, and as such, the best test to evaluating traditional history is by examining it in light of such more recent facts as can be established by evidence in order to establish which of two conflicting statements of tradition is more correct.

This Court, in applying this standard in the case of Adjei v. Acquah [1991] 1 GLR 13, held that;

“the law was that although traditional evidence had a part to play in actions for declaration to title, a favourable finding on this evidence is not necessarily essential to the case of the party seeking the declaration. What the authorities required was that the traditional evidence had to be weighed along with recent facts to see which of the two rival stories appeared more probable.”

Wiredu JSC, in the same case, emphasized that

‘facts established by matters and events within living memory, especially evidence of acts of exercise of ownership and possession, must take precedence over mere traditional evidence.”

It must be noted that the above dictum does not mean that the court should take into account only recent acts and events within living memory.

This Court in the case of In Re Kodie Stool; Adowaa v. Osei (1998-1999) SCGLR 23 clarified that the dictum of Wiredu JSC does not mean that rival traditional evidence may be resolved ‘solely’ by recent acts of events without reference to the traditional evidence on record.

Rather, Wiredu JSC puts a two (2) step approach to assessing the probative weight to be placed on rival versions of traditional evidence. First, the rival versions must be weighed along the recent circumstances to ascertain which story appears more probable, and secondly, facts established by matters and events within living memory must necessarily take precedence over mere traditional evidence.

[See also the cases of Achoro v Akanfela [1996-97] SCGLR 209, In Re Adjancote Acquisition, Klu v Agyemang II[1982-83] GLR, 852]

When a Court is faced with conflicting traditional evidence, care must be taken not to prefer one of the conflicting stories solely on the basis of how coherently the party puts up the evidence or by his demeanor (confidence, strong belief in what (he) the party is saying, etc), rather, what is important is to find out which of the rival versions is authenticated by acts and events within living memory, especially where such acts and events are acts of possession and ownership by a party claiming ownership and title to the subject-matter of the claim.

It is not the impressive demeanor of a party or the coherence of a party’s rendition of traditional evidence that raises a presumption of ownership, but rather recent acts of possession and ownership he exercises over the subject-matter of the action. See in Re Taahyen and Asaago Stools; Kumanin II(Substituted by) Oppon v Anin [1998-99] SCGLR 399.

We must therefore emphasize that it is against these settled principles that the traditional evidence led by the parties in this case ought to be examined.

It is important to note that the Defendants did not counterclaim. Accordingly, the burden of proof and persuasion rested entirely on the Plaintiffs to establish their claim by cogent evidence which, when weighed against the evidence adduced by the Defendants, rendered the Plaintiffs’ case the more probable.

The burden has always rested on the Plaintiffs to satisfy the Court, on the strength of their own evidence, that they are entitled to the declaration of title sought. The Plaintiffs cannot succeed on the weakness of the Defendants’ case; and where they fail to discharge this burden, any weakness in the Defendants’ case would not avail them.

In determining whether the Plaintiffs discharged this burden, we shall evaluate the totality of the evidence on record and consider whether the Plaintiffs’ case was, on a balance of probabilities, more probable than the competing case advanced by the Defendants and therefore deserving of the verdict entered in their favour by the Court of Appeal.

[See ACKAH V. PERGAH TRANSPORT LTD. & ORS (2010) SCGLR 728, BISI VS. TABIRI ALIAS ASARE [1987-1988] 1 GLR 360 AT PAGE 361 GIFTY AVADZINU VS. THERESA NJOONA [2010] 26 MLRG 105 @ 108; TARKORADI MILLS V. SAMIRA FARIS (2005-2006) SCGLR 882 @ PAGE 900]

ANALYSIS AND EVALUATION:

Upon a consideration of the grounds canvassed in this appeal, we note that grounds 2, 3, 4, and 5 of the Defendants’ Notice of Appeal allege errors on the part of the learned Justices of the Court of Appeal.

However, no particulars of the alleged errors were supplied in the Notice of Appeal. From the tenor of the said grounds, it appears to us that grounds 2, 3, 4, and 5 constitute allegations of errors of law, yet they are unsupported by the requisite particulars necessary to aid this Court in determining the nature and manner of the alleged errors. This is contrary to the rules of this Court.

Rule 6(2)(f) of the Supreme Court Rules, 1996 (C.I. 16) provides as follows:

“A notice of civil appeal shall set forth the grounds of appeal and shall state the particulars of any misdirection or error in law, if so alleged”

In a judgment dated 20th January, 2022 in Suit No.: J4/64/2021 entitled George Kwadwo Asante & Ors vrs. Madam Abena Amponsah & Ors, this Court elucidated on the actuating purpose of the said rule as follows:

“The rationale behind rule 6 of the Supreme Court Rules, 1996, CI. 16 is clearly stated by  this court in Dahabieh versus Turquoi and Bros [2001 – 2002] SCGLR 498 holding one as  follows: –

“The intention behind rule 6 of the Supreme Court Rules, 1996 (C. I. 16) is to narrow  the issues on appeal and shorten the hearing by specifying the error made by the  lower court or by disclosing whether or not a point at issue had been raised. By that  way, both the court and counsel for the respondent would be enabled to concentrate  on the relevant parts of the evidence in the record of proceedings and not waste  time on irrelevant parts of the evidences with respect to questions of law, it is  necessary that the respondent and his lawyers know well in advance what points of  law are being raised so that they may prepare their case and marshall their  authorities; whilst an indication that the point of law was or was not raised in the  court below may help the court resolve the issue faster. In the instant case, ground (1) of the grounds of appeal alleging that the judgment is wrong in law is in effect saying that there is an error of law in the judgment. If so, then rule 6 (2) required the appellate court to specify in the ground of appeal that particular complaint amounting to an error of law. Having failed to do so, ground (1) of the grounds of appeal is inadmissible.”

In the instant appeal, a perusal of the grounds of appeal clearly reveal that grounds 3, 4, 5,  6 and 7 allege errors of law without setting out the particulars of the error alleged nor the  stage of the proceedings it was first raised pursuant to Rule 6 (4) of C.I. 16. In the circumstances, excepting the omnibus ground and ground 2 the said grounds 3, 4, 5, 6 and 7 are in effect inadmissible, incompetent and are hereby struck out.”

On the strength of the foregoing reasons, we shall strike out grounds 2, 3, 4 and 5 as inadmissible, incompetent and non-compliant with the Rules of this Court. Moreso because, in the circumstances of this case, this will not occasion a complete failure of justice as the Defendants have canvassed an omnibus ground of appeal.

This consequently leaves us with the Appellants’ omnibus ground of appeal as the exclusive ground for consideration under this Appeal. Under this ground, we shall undertake an independent evaluation of the evidence on record in order to determine which of the conclusions reached by the trial and first appellate courts is justified, or whether the evidence warrants a different finding altogether. In Abbey & Others v Antwi [2011] 26 GMJ 151 SC, this Court, per the venerable Dotse JSC reasoned that:

“It is now trite learning that where the appellant alleges that the judgment is against the weight of evidence, the appellate court is under an obligation to go through the entire record to satisfy itself that a party’s case was more probable than not.”

Similarly, in the case of Djin v Musah Baako [2007-2008] SCGLR 686, this Court, speaking through the erudite Aninakwah JSC stated that:

“it has been held in several decided cases, and the authorities are many, that where an appellant complains that the judgment is against the weight of evidence, then he is implying that there were certain pieces of evidence on the record 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 judgment being appealed against.”

We note from the Amended Statement of Claim filed on 22nd May, 2015 that the Plaintiffs’ case was that the Sende land had been entrusted to the Asiale clan to hold in trust on behalf of the Agadzi clan. The Plaintiffs further contended that the Defendants had unlawfully trespassed onto the Donyi and Gbade lands, which, according to them, did not form part of the lands so entrusted to the Asiale clan.

For context, paragraph 16 of the Amended Statement of Claim states as follows:

“16. The Defendants trespassed unto portions of the Gbade and Donye lands which were not part of the lands entrusted to the Asiale clan by the Agadzi clan.”

The Defendants specifically denied the averments contained in paragraph 16 of the Amended Statement of Claim.

From the record before this Court, it is evident that the Asiale clan had exercised acts of possession over portions of these lands for several decades. Accordingly, it is difficult to comprehend how, after more than a century of open and uninterrupted acts of possession, the Plaintiffs would suddenly emerge to assert ownership over the said lands. The 1st Plaintiff who testified for himself and on behalf of the other plaintiffs and stated that he was about 50 years old, admitted under cross examination on 29th March, 2017 that the Defendant’s family have been cultivating the Gbade and Donyi lands before he was born.

Specifically, the following ensued during cross examination

Q: How old are you

A: About 50 years old

…

Q: I am putting it to you that the Defendants have been cultivating Gbade and Donyi lands before you were born

A: I said my ancestors owned the lands and I am narrating what my forefathers told me that they have been farming. This writ is not about my age but about what happened before we were born.

If indeed the Defendants and their forebears were trespassers upon the Donyi and Gbade lands, as pleaded by the Plaintiffs in their Statement of Claim, then the Plaintiffs and their ancestors were remarkably indolent in asserting their alleged rights over the said lands. This is particularly so because, by the Plaintiffs’ own account, the only land ever entrusted to the Defendants’ ancestors was the Sende land.

Even in respect of the Sende land, the Plaintiffs’ case was that it was created as trust property. Yet, according to the evidence on record, the Defendants and their ancestors independently entered upon the Donyi lands and openly exercised numerous acts of possession and ownership thereon over several decades. Despite this, the Plaintiffs’ ancestors failed to protest and stood by whilst the Defendants’ ancestors farmed and dealt with the lands as owners.

Clearly, the conduct of the Plaintiffs’ ancestors amounted to acquiescence in the Defendants’ ancestors’ assertion of rights over the lands in dispute. The Plaintiffs, as descendants of those ancestors, cannot now, after the passage of many decades, seek to rewrite history in a manner not even contemplated by their forebears. In our view, this is a proper case for the application of the equitable maxim vigilantibus non dormientibus jura subveniunt; the law aids the vigilant and not the indolent.

Concerning the Plaintiffs’ contention that the Defendants’ family’s right to use portions of the Sende land arose from a trust created many years ago, which trust the Plaintiffs now seek to revoke by the present action, it is our considered opinion that the evidence adduced by the Plaintiffs falls far short of establishing the existence of any such trust.

The evidence on record rather shows that the Defendants’ ancestor, Togbe Kotoku X, exercised acts consistent with ownership over the Sende land, including the grant of a portion thereof to another person for the establishment of the Titrinu village. Indeed, the testimony of the 1st Plaintiff on 26th April, 2016 dealt a further blow to the Plaintiffs’ own case. The 1st Plaintiff testified as follows:

“Q: The Titrinu village is on the Ho-Aflao road. On what land is it situated?

A: It is on the Sende land.

Q: Who granted the land to the founder of the Titrinu village?

A: The Heve people gave them and we also gave them part as we share boundary with Togbe Setie of Heve.

Q: Specifically who from Kpenoe granted the Sende land for Titrinu?

A: It is a land held in trust by Togbe Kotoku X who granted part of that land for Titrinu village.”

Furthermore, the evidence establishes that the Defendants’ family sold a portion of the Sende land to the Driver and Vehicle Licensing Authority (DVLA). Yet, the Plaintiffs neither protested nor challenged the said transaction, nor did they take any steps to reverse it.

Additionally, evidence elicited during the cross-examination of the 1st Plaintiff on 13th June, 2017 revealed that the Defendants had also sold portions of the land to one Tettey without any objection from the Plaintiffs’ family. The evidence further disclosed that, in 1974, during the construction of the Ho–Aflao road, one Duster Company was permitted by the Defendants’ family to win sand on the land in dispute, and the proceeds derived therefrom were not shared with the Plaintiffs’ family. Once again, no protest was made by the Plaintiffs or their forebears.The 1st Plaintiff further admitted under oath, during his testimony on 13th June 2017, to several other acts of possession and ownership exercised by the Defendants’ family over the land in dispute, as follows:

“Q: It is your case that Defendants’ clan have been felling palm trees and winning sand on the land.

A: When we noticed they were doing these things that is the reason why we have sued them. Also when elder or chief dies and after his funeral before we turn to his properties.

Q: If Defendants’ clan have been felling palm trees before you were born and wined sand as far back as 1974 and continue to win sand, what is the basis for special damages in paragraph 28 of your witness statement?

A: I said Sende Ghade and Donyi Kpande was not given in truest. Donyi was also not held in trust. Only a little portion of Sende was in trust to their grandfather Togbe Kotoku X to win gravel and to benefit from it, that is why when we realized they had trespassed into part of Sende, Gbade and into Donyi, that is why we are suing them. Togbe Kotoku has never sold any land there.”

Therefore, on the Plaintiffs’ own showing, the Defendants had exercised possession which was adverse to Plaintiffs’ alleged claim of ownership for several decades. The law is trite that evidence of a party which is corroborative of the case of his opponent ought to be accorded much weight. The corroborative evidence of the 1st Plaintiff on the Defendants’ family’s long period of adverse possession cannot be disregarded in this case. [Manu v Nsiah [2005 – 2006] SCGLR 25]

The authorities are legion that in an action for declaration of title to land, the Plaintiff who seeks such a declaration bore the burden to prove his claim. This burden is not lightened by weaknesses in a Defendant’s case. In Awuku v. Tetteh [2011] 1 SCGLR 366 this court held per holding (1) as follows:-

“In an action for a declaration of title to land, the onus was heavily on the Plaintiff to prove his case; he could not rely on the weakness of the Defendant’s case. For a Stool or family to succeed in an action for declaration of title, it must prove its method of acquisition conclusively, either by traditional evidence, or by overt acts of ownership exercised in respect of the land in dispute. (Odoi v. Hammond [1991] 1 GLR 375 at 372 CA applied)”

The Court went further to state as follows:

“The law is that a Plaintiff must succeed on the strength of his own case and not on the weakness of the defence. Where a Plaintiff’s evidence is unsatisfactory as is the case of the Appellants in the instant appeal, the judgment should be in favour of the Defendant on the ground that, it is the Plaintiff who seeks relief who carried the statutory burden to prove that he is entitled to the reliefs claimed. See the cases of Frempong II v. Brempong 14 WACA 13, & In Re Ashalley Botwe Lands, Adjetey Agbosu & Others v. Kotey & Others [2003-2004] SCGLR 420 per Brobbey JSC.”

In the instant case, the Plaintiffs’ own evidence established that the Defendants and their forebears had, over several decades, exercised numerous acts of possession and ownership over portions of the Donyi, Gbade, and Sende lands, and that such acts were adverse to the interests of the Plaintiffs’ family.

Admittedly, long possession does not, in and of itself, constitute proof of ownership. However, in cases founded on traditional evidence, long and uninterrupted possession, particularly where exercised adversely and openly over a considerable period, constitutes strong corroborative evidence of ownership and may properly ground a judicial endorsement of the possessors’ claim to title.

The Plaintiffs called one Frank Tsakade to testify as PW2. Although, in the witness statement filed by him, he stated that he was testifying in respect of the Gbade and Donyi lands, he materially departed from that position during cross-examination by admitting that he did not know the boundaries of the very lands in respect of which he had come to testify.

During the cross-examination of PW2 on 5th June 2018, the following exchange ensued:

“Q: Do you know the boundaries of Gabade land

A: No I do not

Q: What of Donyi Land

A: No I do not

Q: You cannot say whether part of Gbade land belong to Defendant or not

A: I cannot tell as i do not know anything about it

Q: Also you cannot say Donyi land belong to the Defendant or not

A: I cannot”

Similarly, PW3, Albert Kormla Avuwada, did not offer any more compelling evidence in support of the Plaintiffs’ case. Indeed, the only material portion of his brief five-paragraph witness statement stated as follows:

“I bought land from Mr. Anane Kotoku from Takla Gborgame and Agawu family. They let me know that they share boundary with Agadzi. It was then that they told me that he was their uncle. As such any time Togbe Ankudey III, Dutorfia of Kpenoe comes to the land, he always comes to the land to greet them because I am just an alien on the land.”

The foregoing testimony added very little by way of evidential support to the Plaintiffs’ claims. This was particularly so because, under cross-examination, it emerged that, contrary to the account contained in his witness statement, it was in fact Togbe Ankudey who had confronted him regarding the ownership of the land. It was further revealed that the land to which his testimony related was not, in fact, situated within the land presently in dispute.

During cross-examination of PW2, on 13th June 2018. He testified as follows;

Q: Are you telling the court it was when you purchased the land 35 years ago that 1st Plaintiff came to confront you?

A: It was after my purchase of the land.

Q: What is the name of the land in issue?

A: It is called Klumah land.

Q: Have you ever seen the Kwampahs or Kotokus on the Klumah land before?

A: No. I have not seen them since I bought the land on it.

Q: Which land are you here to testify to?

A: I was brought to speak about Gbade land.

Q: Is it Gbade land you bought 35 years ago?

A: No.

Similarly, PW3 admitted during cross-examination that the Defendants had been winning sand on the land in dispute since the 1990s. In our view, the testimony of the 1st Plaintiff himself regarding the long-standing acts of possession and ownership exercised by the Defendants’ family over the Sende, Donyi, and Gbade lands for over fifty years could not plausibly be displaced by the contrary assertions subsequently advanced by PW3.

On their part, the 1st Defendant testified that the predecessors of the 1st Plaintiff never challenged the Defendants’ family’s possession and ownership of the disputed lands. His witness statement similarly recounted numerous acts of possession, control, and ownership exercised over the lands over several decades.

The testimony of the 1st Defendant was principally centred on the traditional history of the Asiale clan and the long-standing acts of possession exercised by the Kwampah family over the disputed lands. In paragraph 3 of his witness statement, he stated that the lands devolved from their ancestor, Kwaku Yao, through Yaokosi Kwampah, and subsequently through successive heads of family until they eventually came under his care following the death of one Humphrey Kwampah. He consistently maintained that the Asiale clan had been in possession of the Sende, Gbade, and Donyi lands from antiquity.

Unlike the evidence adduced by the Plaintiffs, the 1st Defendant did not merely advance a bare narrative of ancestry. His traditional evidence was reinforced by evidence of positive acts of ownership and possession. He testified that portions of the disputed lands had, over the years, been sold by members of the Kwampah family to several individuals and institutions, including persons from Amedzofe, the Driver and Vehicle Licensing Authority (DVLA), and GCOM Pre-University College, all of whom took possession pursuant to those grants.

In assessing the probative value of the 1st Defendant’s evidence, this Court attaches considerable significance to the fact that his testimony on possession was consistent with numerous overt acts of ownership exercised over many years. The acts testified to by DW1, including occupation, alienation, the exercise of control, the defence of title in prior proceedings, and recognition by purchasers, were all acts occurring within living memory and were plainly consistent with ownership.

A careful examination of the cross-examination of 1st Defendant also reveals that the Plaintiffs’ Counsel failed to effectively challenge the substance of his testimony regarding the traditional history of the Asiale clan and the root of their title to the disputed land. This omission in the view of this Court, is highly significant. Equally important is the legal effect of the Plaintiff’s failure to effectively controvert material aspects of DW1s testimony under cross-examination.

This Court is mindful of the well-established rule of evidence expatiated in cases such as Ayiwah vrs Badu (1963) 1 GLR 86 at 95; Fori v Ayirebi (1966) GLR 627 at 645 and Billa vrs Salifu (1971) 2 GLR 87 which postulates that where Counsel fails to challenge a witness by way of cross-examination on an issue vital to the success of his client’s case, the failure shall be construed as an admission of the fact asserted by the witness.

In the instant case, it is observed that although the 1st Defendant was subjected to extensive cross examination, Counsel for the Plaintiffs failed to materially impeach or discredit his evidence on the essential issues concerning how the Asiale Clan came to own the land, their longstanding possession thereof, and their continuous exercise of acts of ownership over the disputed lands. Indeed, no substantive challenge was mounted against the witness’s evidence that the Defendants and their predecessors had, for decades, exercised numerous acts of ownership and possession over the disputed lands.

Further, the evidence of 1st Defendant regarding prior litigation over portions of the disputed lands was not controverted in cross examination. In paragraph 4 of his witness statement, DW1 stated that for several years he and his family had remained in undisturbed possession of the disputed lands except for a dispute initiated by one Dza Kwami Paul of Ho-Dome before the arbitration tribunal of Togbe Afede XIV, where he was declared owner of the land. He further testified that the same Dza Kwame Paul subsequently instituted an action against him, in which the present Plaintiffs sought to be joined as co-plaintiffs but their application was refused.

This evidence is of considerable importance because it demonstrated prior confirmation of the Defendants’ family’s proprietary rights over the disputed lands even before the institution of the present suit. Significantly, under cross-examination, Counsel for the Plaintiffs did not challenge the existence of those proceedings and the outcome thereof.

Consequently, this Court is entitled to place considerable probative value on 1st Defendant testimony, particularly as his account remained consistent with recent acts of possession. Indeed, 1st Plaintiff having testified that Defendants’ family had been in possession for many years before he was born, the Defendants were not obliged to lead further evidence of their claim of possession and overt acts of ownership.

We note that the 2nd Defendant appeared before the Court to testify in support of the Plaintiffs’ case. The testimony of the 2nd Defendant was primarily directed at affirming the Plaintiffs’ claims of ownership and their traditional evidence advanced in respect of the land in dispute. However, notwithstanding the fact that the 2nd Defendant testified in support of the Plaintiffs’ case, his evidence cannot be accepted uncritically or at face value.

Under cross examination, the 2nd Defendant admitted that his relationship with the elders of the Asiale Clan had become strained and acrimonious, to the extent that he had instituted an action for defamation against the said elders following allegations that he had misappropriated clan funds. This evidence clearly revealed the existence of a fractured relationship between the 2nd Defendant and the leadership of the Asiale Clan, thereby raising legitimate questions as to his impartiality and motive in testifying against the interests of his clan.

More significantly, the 2nd Defendant further admitted under cross examination that the Asiale Clan had, over the years, been disposing of portions of the land in dispute and that the proceeds from such sales were paid into the clan’s account, of which he himself was a signatory. During cross examination on 12th July, 2021, the 2nd Defendant testified as follows:

“Q: Who were some of the people the clan sold lands to, the proceeds of which went into that account?

A: G. Com. University; that is what I remember.

Q: What about Driver & Vehicle Licensing Authority?

A: We have not sold land to Driver & Vehicle Licensing Authority.

Q: What was the monies used for?

A: Renovation of the old and new palace, and some for organization of burial of family members.

Q: The eldest of the Asiale clan accused you of mis-appropriation of some of the monies in the account, is that so?

A: Yes, they did, but the allegation was not proven to be true because, whenever monies were taken from the accounts, all the three signatories have to sign.

Q: Who is the third signatory?

A: Humphrey Hormenya.

Q: He is dead.

A: That is so.

Q: The land sold to G-Com. University is part of the disputed land before the court.

A: Yes, part is included.

Q: You sued the elders of the Asiale Clan for defaming you of misapportion of clan money.

A: Yes, I did, but prior to that, I gave them a letter to invite me to enable me explain some of the things that they accused me of, which I know they did not know, but they failed to call/invite me to which I had to sue.”

It is readily inferable from the foregoing that the 2nd Defendant’s decision to testify against his family was influenced, at least in part, by the breakdown in his relationship with the elders of the clan.

Be that as it may, this Court is unable to attach decisive weight to his testimony, particularly where the same stands against the overwhelming evidence of longstanding and overt acts of ownership and possession exercised by the Defendants’ family over the disputed lands for decades, which evidence was itself materially corroborated during the testimony of the 1st Plaintiff.

Consequently, the 2nd Defendant’s evidence, standing alone, could not undo the substantial damage occasioned to the Plaintiffs’ case by the admissions elicited in the course of the trial.

CONCLUSION:

On the basis of the foregoing therefore, and on the totality of the evidence adduced, it is our opinion that the Plaintiffs failed to prove their claim to the requisite degree to warrant a decision in their favour.

Consequently, this Court on the 18th day of March, 2026 concluded that the appeal succeeds and the judgment of the Court of Appeal dated 20th July, 2023 was set aside and the High Court judgment dated 24th January 2022 restored subject to some variation in the following terms:

i. The Plaintiffs are declared allodial owners of the Sende lands covering an approximate area of 95.03 acres subject to the unconditional usufructuary rights, interests, possession and exclusive enjoyment of the Defendants, their assigns, privies, workmen, servants and all persons claiming their title through them.

ii. Plaintiffs claim in respect of Gbande and Donyi lands fail in its entirety by reason of the Defendants trespass and adverse possession for over one hundred and twenty years (120 years) and is accordingly dismissed.

iii. All other reliefs sought by the Plaintiffs fail and are hereby dismissed in limine. There shall be no order as to cost.

(SGD.) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

(SGD.) A. LOVELACE-JOHNSON (MS)

(JUSTICE OF THE SUPREME COURT)

(SGD.) S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. KWOFIE

(JUSTICE OF THE SUPREME COURT)

(SGD.) J. BARTELS-KODWO

(JUSTICE OF THE SUPREME COURT)

COUNSEL

RACHEL DINSEY ESQ. FOR THE 1ST DEFENDANT/RESPONDENT/APPELLANT

WITH ABDUL AZIZ GOMDA ESQ.

BEN SEVOR ESQ. FOR THE 2ND DEFENDANT/RESPONDENT/APPELLANT

RAYMOND PROSPER AKPATSA ESQ. FOR THE PLAINTIFFS/APPELLANTS/

RESPONDENTS WITH PRISCILLA AWO DZAH ESQ. AND ERNEST KWATIE AKUFFO ESQ.