OWUSU & anor vrs MAPUTO & 3 ors [2025] GHASC 1 (29 January 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD. 2025 CORAM: SACKEY TORKORNOO CJ (PRESIDING) AMADU JSC PROF. MENSA- BONSU JSC ASIEDU JSC DARKO ASARE JSC 29TH JANUARY, 2025 CIVIL APPEAL NO: J4/14/2024 1. KOFI OWUSU 2. KWASI GYAMININ PLAINTIFFS/RESPONDENTS/ APPELLANTS VRS 1. JESSE MAPUTO (PER HIS LAWFUL ATTORNEY DWUMAH OFORI KWAME) 2. ISAAC EMMISON 3. YAA AMOAKOA 4. NANA KWADWO GYAMFI DEFENDANTS/ APPELLANTS/ RESPONDENTS Page 1 of 136 5. NANA OSEI KUFFUOR JUDGMENT ------------------------------------------------------------------------------------------ MAJORITY OPINION SACKEY TORKORNOO CJ: INTRODUCTION 1. This is one of those seemingly interminable litigation over land, despite the existence of clear documentation that establishes and validates the true ownership of the land in issue. The curious case on our hands shows that the stool occupant and customary grantor of land in Ashanti, together with a representative of the Asantehene’s secretariat as confirming party, allocated land to a citizen in 1977, and issued a lease to the progeny of the allottee in finalization of the grant. Notwithstanding the removal of all doubt about who the stool grantor of land wished to lease the land to, other citizens, two of who point to a promise of allocation, and one who points to an allocation note with no confirmation, insist that they have equitable rights over the same piece of land that must be turned into legal ownership by the courts. And despite a survey report that confirms that the claims are over the same piece of land, the rival claimants insist that the lessee’s land is elsewhere. This is the unhappy lot of Page 2 of 136 courts. To sometimes find answers lying in plain sight for litigants who wish that the facts were different. BACKGROUND OF FACTS AND LAW 2. Judgment in this dispute was entered in favor of the Plaintiffs /Respondents /Appellants (hereafter referred to as the Plaintiffs) by the high court on 11th March 2021. The Court dismissed the counterclaim of the Defendants/Appellants/Respondents (hereafter referred to as defendants). Notice of appeal against the judgment was filed on the same day 11th March 2021 on the following grounds. a. The judgment is against the weight of the evidence on record b. The Court erred when it held that the subject-matter was acquired by the Plaintiffs’ father Okyere Agyekum 3. On 22nd March 2021, a different lawyer filed a notice of change of solicitors and an appointment of a new solicitor for the defendants. He went on to file a second notice of appeal later on 22nd March 2021, and without any further steps Page 3 of 136 pursuant to Rule 17 of the Court of Appeal Rules, 1997 C. I 19 (As Amended by CI 21). Rule 17 reads: 17. Withdrawal of Appeal. (1). Subject to rule 15, if the appellant files with the Registrar a notice of withdrawal of his appeal, the Registrar shall certify that fact to the Court, which may thereupon order that the appeal be dismissed with or without costs. (2). Copies of the notice of withdrawal shall at the expense of the appellant be served on any of the parties with regard to whom the appellant wishes to withdraw his appeal, and any party served shall be precluded from laying claim to any costs incurred by him after the service unless the Court otherwise orders. (3). A party served with a notice of withdrawal, may on notice to the appellant apply to the Court for an order to recover any costs that he may necessarily or reasonably have incurred prior to the service on him of the notice of withdrawal together with his costs incurred for purposes of obtaining the order and for attendance in Court. Page 4 of 136 (4). Notwithstanding the dismissal of an appeal consequent upon a notice of withdrawal under subrule (1) a respondent who has filed a notice of intention to contend that the decision of the court below be varied shall be entitled to pursue his contention as if it were an appeal; (Rule (h) of the Court of Appeal (Amendment) Rules, 1998] CI 21 (5). Forms 9 and 10 in Part I of the Schedule shall apply for the purposes of this rule. [Rule (h) of the Court of Appeal (Amendment) Rules, [1998] CI 4. Following the filing of the 22nd March 2021 Notice of Appeal, four of the defendants represented to the court that they had not instructed the second lawyer who filed that notice of appeal, and that he was instructed by the 4th defendant Nana Kwadwo Gyamfi, only. This second notice of appeal however remained on the record of appeal without any application to strike out same or any of the further steps required by Rule 17 of CI 19. On 8th March 2022, the record shows that another lawyer called Kwadwo Dei Kwarteng filed a notice of appointment as solicitor for the 1st, 2nd, 3rd, and 5th defendants. He thereafter filed notice of additional grounds of appeal pursuant to leave of the court dated 6th December 2022’. Page 5 of 136 1 That the learned Trial Judge failed to properly apply the legal principle of estoppel, laches and acquiescence to the evidence adduced at trial. 2 That the learned Trial Judge erred in concluding that, the original acquisition of the land in dispute was reflected in the lease document presented by the Plaintiffs/Respondents. 3 That learned Trial Judge failed to adequately consider the evidence of the Defendants/Appellants/Applicants in reaching her judgment. COURT OF APPEAL 5. After hearing of the appeal, the Court of Appeal upheld the appeal and reversed the High Court judgment on the primary ground that the judgment by the High Court was against the weight of evidence presented in the High Court. The Court of Appeal rested its judgment on the notice of appeal dated 22nd March 2021, after taking the position that the notice of appeal filed on 11th march 2021 had been withdrawn by the record filed on 22nd March 2021. Page 6 of 136 APPEAL TO THE SUPREME COURT 6. The Plaintiffs appealed to this court on the following grounds: Grounds of appeal a. The judgment is against the weight of evidence b. The Court of Appeal erred in law when it propio motu substituted a case other than that put forward by the defendants/appellants/respondents. Particulars of error of law. i. The defendants/appellants/respondents being emphatic in their written submission that they were arguing their appeal based on the Notice of Appeal filed on the 11th March, 2021. ii. The plaintiffs/respondents/appellants therefore responding to the written submission based on the Notice of Appeal filed on the 11th of March, 2021. iii. The Learned Justices of the Court of Appeal however deciding to rest their judgment/decision on the notice of appeal filed on 22nd March, 2021 contrary to the case of the defendants/appellants/respondents. Page 7 of 136 iv. The said decision of the Court of Appeal therefore occasioning substantial miscarriage of justice to the appellant/respondents/appellants c. The Learned Justices of the Court of Appeal erred when held that the notice of appeal filed on the 11th of March, 2021 was withdrawn and new one filed on the 22nd march, 2021. d. The Learned Justices of the Court of Appeal erred in law when they based or rested their judgment on the Notice of Appeal filed on the 22nd march, 2023 which was not properly before them. Particulars of error of law i. The defendants/appellants/respondents only filing notice of discontinuance/withdrawal of appeal. ii. The filling of the said notice of discontinuance/withdrawal of appeal only an intention to withdraw the notice of appeal filed on 11th march, 2021 and not the actual withdrawal. iii. The defendants/appellants/respondents failing to withdraw the notice of appeal filed on 11th march, 2021. Page 8 of 136 iv. The Court of Appeal however resting its judgment/decision on the notice of appeal filed on 22nd march, 2021 which was not before the Court of Appeal. v. The judgment of the Court of Appeal therefore a complete nullity. e. The Court of Appeal erred when it held that the plaintiffs / respondents / appellants failed to identify the land which they were claiming. f. The Court of Appeal erred when it upheld the counterclaim of the defendants/appellants/respondents when they could not prove same on the preponderance of probabilities. g. The Court of Appeal erred in expunging Exhibit CW2 from the record. h. Additional grounds of appeal would be filed upon the receipt of the record of appeal. Preliminary Matter in Issue Page 9 of 136 7. A preliminary matter in issue from the above verbosely presented particulars of errors of law is that the court of appeal erred in basing their judgment on the notice of appeal filed on 22nd March 2021, when the notice of appeal filed on 11th March 2021 was not validly withdrawn, and the defendants had been emphatic that they were arguing their appeal based on the notice of appeal filed on 11th March 2021. The submissions of the plaintiffs are that it is the notice of appeal to an appellate court that invokes the jurisdiction of the court of appeal, and to the extent that the 11th March 2022 notice of appeal was not properly withdrawn in accordance with Rule 17 of C I 19, the only notice of appeal that properly invoked the jurisdiction of the court of appeal is the one dated 11th March, 2022. The court of appeal therefore had no jurisdiction to base its judgment on the notice of appeal filed on 22nd March, 2021 and its judgment must be set aside for lack of jurisdiction. 8. The preliminary issue to be settled, in simple reduction of the submissions, is which of the notices of appeal filed in the Court of Appeal on behalf of the Defendant/Respondent could validly invoke the judgment of the Court of Appeal, and if it is not the notice of appeal dated 22nd March 2021, did that render the judgment of the Court of Appeal void? Page 10 of 136 The validity of the judgment of the Court of Appeal 9. While utterly deprecating the multiplicity of lawyers that the parties brought into the proceedings, we must bear in mind that the validity of processes filed in court arise as a matter of law, and not simply because a court chooses to recognize one process or the other. If a process is void and cannot therefore invoke the jurisdiction of a court, the option of a court to entertain it and purport to make a decision pursuant to it will still be incapable of breathing life into it. Such is the discomfort in the ratio decidendi of cases such as Bonney & Others (No.1) v Ghana Ports and Harbours Authority (No.1) [2013-2014] 1 SCGLR 436, and the case of National Investment Bank Ltd & Others (No.1) v Standard Bank Offshore Trust Co Ltd (No.1) [2017- 2020] 2 SCGLR 28 etc. 10. As a matter of law, a notice of appeal is an originating process. Speaking for this court in Nii Lante Lamptey v R O Lamptey and Ors SC Suit NO J4/17/2021 (1st December 2021), I said this: “What is the import of issuing a notice of appeal? It is no different from when counsel file any other originating process such as a writ of summons, Page 11 of 136 originating motion or petition. Those processes invoke the jurisdiction of a court to consider the matter submitted to court. Without a notice of appeal to an appellate court, that court’s jurisdiction is by no means invoked. By the issue of a notice of appeal, that court is compelled to administer any process rightly filed before it”. 11. And to appreciate the parallel application of the nature of a notice of appeal as an originating process, it is pertinent to consider: can a party who files a writ file a notice of discontinuation of the action invoked by the writ, and file a new writ with the same suit number for consideration by a court? Definitely not. If a party who decides to commence an action no longer wishes to premise the action on the original writ or claim, what they must seek to do is to amend the writ, or obtain leave to discontinue the action and re-apply in an altogether new action. They are however not at liberty to file a notice of discontinuation of the first action, only to pile a fresh writ on top of the first writ without let or hindrance. Withdrawing or discontinuing an appeal 12. In the same vein, Rule 17 of CI 19 as amended by C I 21, provides the conditions for withdrawing an appeal, if what is required to be effected is not an Page 12 of 136 amendment of the notice of appeal under Rule 8 of CI 19, but to bring an end to the appeal process commenced by the said Notice of Appeal. Under Rule 17 of CI 19 as amended by C I 21, the withdrawal of an appeal is not through the individual act of the party who filed the appeal. It is a process that must be certified by the Registrar, and concluded by the court. In Republic v High Court, Accra (Commercial Division); exparte Hesse (Investcom Consortium Holdings S. A & Scancom Ltd Interested Parties) [2007-2008] 2 SCGLR 1230 this court directed that; “The legal position on withdrawal of appeals in the Court of Appeal is that, the mere filing of a notice of withdrawal does not effectually end the appeal. Plainly, the application to withdraw an appeal is not automatic and requires the leave of the Court. Therefore, embedded in the notice of withdrawal therefore is an application for leave to withdraw. The court may well, in the exercise of its discretion, allow the withdrawal on terms it thinks just, or having regard to the stage at which leave to withdraw was being sought, refuse leave altogether and consequently the withdrawal and proceed to judge the appeal on the merits, based, undoubtedly on the material before it. Hence the detailed rules regarding the registrar’s duty viz a viz the respondent to the appeal and the court, namely, to place the Page 13 of 136 notice before the court for it to rule on its fate as discussed above and also on the question of costs. These are the legal steps for effectually terminating a pending appeal, not the mere filing of the notice of withdrawal, which, as is self –explanatory, merely expresses an intention, and in any event, until the final orders of the court, could actually be withdrawn, albeit with leave of the court”. 13. The decision of this Court in Dora Boateng v Mackeown Investment SC. Suit No. J4/12A/2019. 5th February, 2020, cited by counsel, reiterates the same point. The opinion of Amegatcher JSC on the issue of a new lawyer filing a second notice of appeal stated as follows; “the defendant changed its lawyers and on 26th January 2016, the new lawyer filed another notice of appeal in which three grounds of appeal were set out. No leave of the Court was sought to amend the notice of appeal or argue additional grounds of appeal in compliance with the rules. The second notice of appeal filed by the defendant is, therefore, alien to the rules and should have been struck out by the court of appeal.’ 14. From the above, the processes filed on 22nd March 2021 lacked any efficacy or validity. We state for the avoidance of any doubt therefore that the valid notice of appeal in the instant appeal was the notice of appeal dated 11th March 2021. Page 14 of 136 The necessary next issue for consideration is whether the court of appeal judgment was valid, if its evaluations were not based on the notice of appeal of 11th March, but that of 22nd March. The Plaintiff appellants before us are decrying the court basing its judgment on the notice of appeal filed on 22nd March 2021 when the parties submitted arguments based on the notice of appeal filed on 11th March 2021. 15. As much as we appreciate the disquiet occasioned by the error of the court of appeal in recognizing the notice of appeal dated 22nd March 2021, we are also clear in our minds that the existence of a notice of appeal on record validates the invocation of the jurisdiction of the Court of Appeal to consider submissions made to the court and to enter a judgment between the parties, even if the judgment failed to appreciate the invalidity of the superfluous notice of appeal of 22nd March 2021. The only relevant consideration should be whether the submissions made were relatable to the valid notice of appeal dated 11th March 2021, and whether the judgment is sustainable or not by reason of the valid notice of appeal. This is especially so when the first ground of appeal on both the valid notice of appeal and the superfluous one was the omnibus ground that ‘the judgment of the high court was against the weight of evidence’. Page 15 of 136 16. This same line of thinking was intoned by the court of appeal on page 8 of its judgment when it noted regarding their recognition of the notice of appeal of 22nd March 2021 while the submissions made to them were premised on the notice of appeal dated 11th March 2021. They said that ‘though the defendants on 22nd March 2021 filed a withdrawal and discontinuance of appeal per page 402 of Volume 2 of the Record of Appeal and soon after filed a notice of Civil Appeal on the same day at pages 385 and 395, in arguing the appeal, counsel appeared to be arguing the grounds of appeal filed on 11th March 2021, and the additional grounds filed on 12th December 2022 when he referred to ground ‘A’ of the notice of appeal. This is however not fatal as this ground about the Judgment being against the weight of evidence is stated as ground 1 in the notice of appeal filed on 22nd march 2021’. 17. We absolutely agree that because the first ground of appeal on the 11th March 2021 notice of appeal was the omnibus ground of appeal that ‘the judgment was against the weight of evidence’, the consideration of that ground in the judgment of the Court of Appeal gave merit to the premises of consideration by the Court. We are satisfied that to the extent that the parties focused their arguments on the omnibus ground found as the first ground of appeal in the notice of appeal of 11th March 2021, the Court of Appeal was right in law to evaluate the merits of Page 16 of 136 the submissions on the premise of that ground of appeal. The invitation to declare the judgment of the court of appeal void is therefore dismissed. 18. We must also say that since an appeal is by way of rehearing, and an appellate court is in as good a position as the trial court to determine the real issue in controversy from the pleadings and evidence and to draw inferences from the specific facts that are established, we must reject the contention that the court of appeal had erred in law in setting up a claim for the plaintiff. This is especially as, as stated earlier, the judgment was premised on the evaluation that the high court judgment was against the weight of evidence. This placed a duty on the Court to evaluate the entirety of the record before it and make determinations therefrom. See the dicta of this Court in Okine v Amoah VI (2013-2014) 2 SCGLR 1358 on this import of the ground of appeal that a judgment is against the weight of evidence. See also the same position reiterated in Adorkor v Gatsi [1966] GLR 31, SC; Fofie v Zanyo [1992] 2 GLR 475; Barclays Bank Ghana Ltd v Sakari [1996- 97] SCGLR 639 and Effisah v Ansah [2005-2006] SCGLR 943 cited. 19. The above disposes of grounds (b) to (e) of the appeal and their various particulars of error. Consideration and evaluation of the Court of Appeal Judgment Page 17 of 136 Ground (a) The Judgment is against the weight of evidence 20. In raising this omnibus ground of appeal to us, this Court is in the same position as the Court of Appeal. We are enjoined to consider the totality of the record from pleadings to testimonies and supporting exhibits, and determine whose case is sustainable in the light of the totality of the record. In order to do this, it is expedient to set out the background of facts of the case and the legal issues arising therefrom in order to evaluate whether or not the Court of Appeal judgment is against the weight of evidence. 21. The reversal of the judgment of the High Court by the Court of Appeal was grounded on their evaluation of how three principles of law ought to have been considered by the High Court. Though the Court of Appeal did not distill these principles with crispness of definition, they are identifiable in the simple reading of the judgment. These three principles of law are the requirement for sufficiency of identity of land in issue if a plaintiff is to succeed in a claim for that land, what constitutes possession of disputed land, and priority of acquisition of the land in issue. 22. First the Court of Appeal evaluated that in making a claim to land, the plaintiff carried a duty to sufficiently identify the land they made claim to as directed in Page 18 of 136 cases such as Anane v Donkor [1965] GLR 188. It was their opinion that from the primary exhibits submitted as the source of their claimed interest, being the allocation note given their father in 1977 (exhibit B) and the Will of their father (exhibit E), there was no clear indication of the identity of the land referred to therein that should allow the plaintiffs to claim the land in dispute before the court. The land identified in the said allocation note and the Will was a ‘gas processing factory in the industrial area of Esreso’, and bore no plot number, no acreage, and no defined location. 23. In their evaluation, the defendants had presented evidence of being allocated plots of land clearly numbered 5A and 5B that were identified on site plans accompanying their allocation notes and that made them proper grantees of these plots of land. On the issue of possession, the Court of Appeal was satisfied that the plaintiffs were not in possession of the disputed land, in contrast with the 2nd and 3rd defendants who presented evidence that they were actually conducting a trade on the land, and the 1st defendant who was supposed to have blocks and sand on the land, and a caretaker on the land. 24. On priority of acquisition, the Court of Appeal found the allocation notes of the 1st defendant dated 2002 and the commitment to issue allocation note to the 2nd Page 19 of 136 and 3rd defendants dated 2003 as being first in time over the land in issue, contrary to the lease obtained by the plaintiffs in 2012, over the same land in issue. We have considered the judgment of the Court of Appeal and have no hesitation in disagreeing with their evaluation. On the contrary, we are ad idem with the High Court and find from the pleadings, exhibits, testimonies and the record before the Court, a glut of evidence identifying the exact piece of land that was given to the plaintiff’s father in 1977 and its identity as the land in dispute. On the issue of possession, we find acts of possession of the plaintiffs’ father that were continued by the plaintiff, culminating in the firm challenge of twenty-six persons on the disputed land through the present action, which twenty-six people include the three defendants who raised a claim to allocation of two plots within the land in issue prior to the commencement of the law suit. On the issue of priority of acquisition, our view is that the records clearly do not support any priority of acquisition by the defendants – whether in equity or law. Pleadings 25. On 31st March, 2005, the plaintiffs commenced this action against twenty-six (26) defendants in the capacity of beneficiaries to the land in dispute through the Will and Testament of their deceased father Agyekum Okyere Mainoo also known as Page 20 of 136 Nana Okyere Agyekum. Probate had been granted to the executors of the said will on 30th July 2003 who executed a Vesting Assent in favor of the Plaintiffs on 26th July 2007. The reliefs endorsed on the Writ of Summons of the Plaintiffs were: a. Declaration that the piece and parcel of land measuring 5.15 acres situate and lying in-between the Kumasi-Sewua and Kumasi-Jachie Motor Roads in the city of Kumasi and bounded by the Kumasi-Sewua Motor Road and an open space on the North-East, plot No.2 on South-East, Kumasi-Jachie Road on the South-West and by the junction of the said roads on North- West formed part of the estate of the late Agyekum Okyere Mainooalias Nana Okyere Agyekum. b. A declaration that by virtue of the last will and testament of the late Agyekum Okyere Mainoo dated 4th December, 1989 the land described in paragraph (a) above has become the property of the plaintiffs. c. An order ejecting the defendants from the said land. d. Such further orders as may deem fit. Page 21 of 136 26. In their Amended Statement of Claim filed on 17th December 2013, the plaintiffs alleged that in the lifetime of their father Nana Okyere Agyekum, he acquired 5.15 acres of land lying between the Kumasi-Sewua and Kumasi-Jachie road. He was issued with an allocation note by the Esreso stool, and a lease was subsequently drafted in favor of the deceased who could not execute same because of ill health. However, because a file had been opened at both the Lands Commission and Asantehene’s Land Secretariat for their deceased father immediately the allocation was made, he paid the requisite ground rent to the Administrator of Stool Lands. Plantiffs averred that they continued to pay the said ground rent after death of their father. 27. It was the case of the Plaintiffs that subsequent to the execution of the Vesting Assent in their favor, a lease was engrossed in their names and duly executed by the Esreso stool as lessor and the Asantehene as the confirming party. They added the following reliefs to the original reliefs claimed within the amended statement of claim, though they did not seek to amend their indorsement on the writ of summons – a step that led to the court of appeal holding that these additional reliefs were not properly before the court. The additional reliefs are: e. Perpetual injunction restraining the defendants. Page 22 of 136 f. Damages for trespass First Defence of 25th and 26th Defendants 28. The 25th and 26th defendants, who averred that they were a married couple and operators of a chop bar on part of the disputed land were the first to enter appearance on 7th April 2005 and file a joint defence on 20th April 2005. What is noteworthy is that in their pleadings, they did not urge any acquisition of proprietary interest except a tenancy. They alleged that they had acquired interest in the nature of a tenancy of a portion of the land in dispute through allocation from the Bosomtwe-Atwima-Kwanwoma District Assembly at Kuntenase in order to operate a chop bar on the land. This tenancy was supposed to have been from September 2004, five months before Plaintiffs sued them. 29. They denied the proprietary interest alleged by plaintiffs and counterclaimed for injunction to restrain the Plaintiff from laying ‘adverse’ claim to the land and interfering with their quiet enjoyment. They also counterclaimed for a declaration that Plaintiffs had instigated an attack on the 25th defendant, and damages for unlawful arrest and detention of defendants. Page 23 of 136 Reply to 25th and 26th Defendants 30. In a Reply, the plaintiffs denied the BADKA’s right to allocate any portion of the land except in the form of permit to operate temporary kiosks. They reiterated that the 25th and 26th defendants were trespassers. Joinder of Co-Defendants In December 2005, one Nana Gyamfi and Nana Osei Kuffour who described themselves as the Gyasehene and Akwamuhene of the Essreso Stool and true and principal representatives of the Esreso stool with its mandate applied to join the suit. In their affidavit in support of the application, they deposed and said in paragraph 4 ‘that the chief of Esreso is now dead and a successor is yet to be installed.’ They further stated that the parcel of land claimed by the Plaintiffs was the bona fide property of the Esreso stool and that ‘our stool and the Assembly had granted the Defendants license to operate temporary businesses on portions of the land’. (emphasis ours). The application was granted on 19th December, 2005 and the writ was amended on 6th February, 2006 to reflect the joinder of the applicants to the suit as co-defendants. Page 24 of 136 31. It will be noted from this affidavit that these sub-chiefs did not present any knowledge of an allocation of land by the chief of Esreso in 2002 to Jesse Maputo, who later applied to be substituted for the 17th defendant and became designated as the 1st defendant. And yet this same sub-chief Nana Osei Kuffuor of Esreso, when he became the sole witness for the defendants, tendered an allocation note in favor of Jesse Maputo that was ostensibly issued in 2002, with him as sole witness on the allocation, before he filed an application for joinder and became joined to the action. He also tendered a commitment to allocate part of the land in issue ostensibly issued by the chief of Esreso to the original 26th defendant in 2003, who eventually became the 3rd defendant. 32. The record before us also reflects that the chief of Esreso, who testified for Plaintiff as PW1, was installed in 2010. Thus if by February 2005, the predecessor chief of Esreso was deceased, as sworn to in this affidavit found on page 16 of volume 1 of the Record of Appeal, then the predecessor chief of Esreso should have died between late 2003 and February 2005 or the alleged allocation of land to the 17th defendant in 2002, and commitment to allocate land to the 25th and 26th defendants (who became designated as 2nd and 3rd defendants by order of the high court) in 2003 by the chief of Esreso, could only be a creation of mendacity. Page 25 of 136 33. After the application for joinder was granted, the statement of defence filed by the co-defendants (who became 4th and 5th Defendants/Appellants/Respondents) was filed in May 2006. What is immediately noticeable in this statement of defence is that the 4th and 5th defendants failed to plead that they stood in the capacity of representatives of the Esreso stool, which is the capacity they had sworn to for joining the suit as defendants. They rather averred that the land in dispute is the bona fide property of the Esreso stool and that their search at Land Commission shows that there was no recorded transaction affecting the land in favor of plaintiffs’ deceased father. This pleading was wholly silent on the alleged grant of an allocation note for any part of the land in favor of any of the 26 defendants before the court. Even more importantly, in their statement of defence, the 4th and 5th defendants averred that ‘they’ and the District Assembly granted all the defendants licenses to operate their various trades on the disputed land and the defendants did not need the permission from plaintiffs to do so. As to whether they acted on behalf of the Esreso stool, they were loudly silent. 34. These pleadings raise the discordant question of why if they were signatories to valid allocation notes for the 1st, 2nd and 3rd defendants, they did not state so in their statement of defence. Further, if they were sure that the plaintiffs’ father had no allocation to the land in dispute, they would choose to conduct a search Page 26 of 136 at Lands Commission on the land in dispute, and fail to do so within the records of Esreso or the Asantehene’s secretariat. That singular act indicates that the enquiry at Lands Commission was to find out if any interest earlier given had been registered, and nothing more. 35. The case stalled between 2005 and 2012. In 2012, the Plaintiffs applied for a suspension of hearing on the ground that they intended to have the matter settled in the Otumfuor’s palace. A notice of settlement was sent to the court in which it was stated that the settlement included a lease being issued in favor of the plaintiffs. A month after this, Defendant’s gave notice of intention to proceed with the trial Amended Defence of 17th, 25th and 26th Defendants (who became 1st, 2nd and 3rd Defendants/Appellants/Respondents) 36. Subsequently, one Jesse Maputo filed an application to be substituted for the 17th defendant and having been so substituted, he joined the 25th and 26th defendants to file one amended statement of defence in January 2014. The three of them denied that any lease had been engrossed in favor of Plaintiffs. They alleged that it was after the inception of the suit that by sleight of hand, and with the connivance of the present Esresohene and other officials at the Asantehene, the plaintiffs procured the lease referred to in the amended statement of Claim. They Page 27 of 136 also averred that any receipt produced by plaintiffs were ‘likely to be a forgery’. They pleaded the following particulars of fraud Particulars of fraud. 1. Clandestinely importuning the Esresohene to execute a lease in their favour despite the pendency of the suit 2. Proceeding to deceive the authorities to engross a lease on the disputed land notwithstanding the defendants’ assertion that the disputed land is different from the one claimed by plaintiffs on their writ of summons and the site plan earlier on filed by them in this suit. 3. Preparing documents on the land to have retrospective effect. 37. They went on to aver in paragraph 7 (i) that the 17th defendant had been granted Esreso Plot No 5A Anwomasu Industrial Area by one Nana Osei Yaw Ababio (deceased) who was Chief of Esreso through an Allocation Note and Site Plan dated 30th April 2002. This Allocation note was endorsed by the Akwamuhene who had joined the action as a co-defendant. The 17th defendant had since then been paying ground rent and other rents to the Administrator of Stool lands and the BADKA. The 25th and 26th Defendants also legally acquired land from the Page 28 of 136 deceased Esresohene Nana Osei Yaw Ababio, and that it was after acquiring the land that the 25th and 26th defendant applied to the BADKA for a permit to operate a chop bar and drinking spot on 10th September 2004. The presence of the three defendants on the land through these means made them lawful owners who had lawfully acquired same. They admitted in paragraph 9 that the 17th defendant ‘shall state that he is yet to commence construction on his plot the 25th and 26th defendant state that they have put up structures in accordance with the terms of their permit granted to them by BAKDA’. They counterclaimed for various reliefs: 1. A declaration of title to the portions of land respectively occupied by 17th defendant and the 25th and 26th defendants. 2. An order of perpetual injunction restraining the plaintiffs from laying any adverse claim to the disputed land or disturbing the quiet enjoyment of the said land by defendants. 3. A declaration that the plaintiffs have no land at the disputed place. 4. A declaration that any lease procured by the plaintiffs after the inception of the suit was procured by fraud and misrepresentation. Page 29 of 136 5. General damages for: i. The unlawful arrest and detention of the 25th and 26th defendants ii. Pain and injury caused to the 25th defendant following the shooting at the behest of plaintiffs iii. The wanton and lawful destruction of the 25th and 26th defendants’ property and business. 38. Our view is that these pleadings reflected a considerable departure from the case that the defendants had put out in their earlier pleadings and showed an effort to justify the creation of allocation notes for the 17th defendant that later appeared as an exhibit in the trial of the case. It is also noteworthy that the 4th and 5th defendants (originally co-defendants), never sought to amend their Statement of Defence to urge any capacity of representing the Esreso stool. By this time, the records reflect that the 5th defendant had been destooled for the part he played in supporting the defendants to make a claim to the disputed land. Reply to 2014 Amended Statement of Defence Page 30 of 136 39. Plaintiffs denied all the defences raised in a Reply and joined issues with the Defendants. The issues finally submitted for trial in an application for directions filed on 14th February 2014 were; 1. Whether the plaintiffs are entitled to the reliefs they seek 2. Whether the 17th, 25th and 26th defendants are entitled to their counterclaims 3. Whether the parcel of land (plot of land) being claimed by the plaintiffs is the same as the parcel of land being claimed by the defendants 4. Whether the documents (receipts) given to the plaintiffs by the Esreso stool were obtained by means of forgery 5. Whether the plaintiffs are using/used thuggery and violence to lay claim to the disputed land. 6. Any other issues raised by the pleadings. Additional issues by the defendants were: Page 31 of 136 7. Whether plaintiffs have any land at all at the subject area. 8. Whether the 17th, 25th and 26th defendants were lawfully granted their respective portions of land 9. Whether the successor to a previous chief can reverse or rescind a transaction lawfully entered into by his predecessor 10. Whether there was any recorded transaction on the disputed land between the plaintiffs and the Esreso stool at the inception of this suit. 11. That a composite plan of the area be drawn up and the parties’ original site plans be measured alongside same. Surveyor’s Instructions 40. The parties thereafter provided instructions for the creation of a plan to settle the exact location and claims on the disputed land and a composite plan was submitted to the court in July 2014. The conclusion from the surveyor’s report tendered as exhibit CW1 was that plots 5A and 5B claimed by defendants fall wholly within the plot 5 claimed by Plaintiffs. Page 32 of 136 Trial commenced on 6th February 2016. It is at this point that the high court ordered the designation of the new 17th defendant, the 25th, 26th defendants and the 1st and 2nd co-defendants as 1st to 5th defendants respectively and the records thereafter reflected the said designation. JUDGMENT OF THE HIGH COURT 41. On whether the parcel of land being claimed by the plaintiffs is the same as the parcel of land being claimed by the defendants, the High Court found that the parties are disputing over the same piece of land as demonstrated in the composite plan tendered as exhibit CW1. The plots of 1st, 2nd and 3rd defendants on the composite plan fall within the land claimed by the plaintiffs. Flowing from that, the court identified the main issues for resolution as the following; i. Whether or not there was indeed an actual valid grant of the disputed plot to the plaintiffs’ father by the Esreso stool in or around 1977. Page 33 of 136 ii. And if not; whether or not the ownership of the disputed plot of land remained vested in the Esreso stool until portions of same were granted to the 1st, 2nd and 3rd defendants sometime in 2004. iii. And if these grants to the defendants could be said to be valid. 42. The Court found that there was a valid grant to the plaintiff’s father. The Court recognized that the allocation note granted to him in 1977, and tendered as exhibit B is a valid recorded transaction on the disputed land between the deceased A. O. Mainoo and the Esreso stool. The court found the evidence of PW1 (the current chief of Esreso) confirming the allocation of the disputed 5.15 acres to the Plaintiffs’ father to be credible and added that “on a balance of probabilities, I am also of the opinion that land was earlier granted to the A. O. Mainoo; and same ought not have been granted to the defendants by the same Nana Osei Yaw Ababio who signed the defendants’ exhibit 6…”. page 318 of the ROA. 43. It was the evaluation of the high court citing Amankwah v Kyere [1963] 1 GLR 406, that the act of a previous chief binds a subsequent occupant with a few exceptions. The grant to the plaintiff’s father therefore could not be reversed without justification. What was also noteworthy was that the current chief did not even seek to reverse it. Page 34 of 136 This means the previous chief of Esreso who was actually the chief who gave the father of plaintiffs his grant through an allocation note in 1977, had nothing to give the 1st defendant in 2002, hence any rival allocation note was invalid. The principle of nemo dat quod non habet applied. 44. The Court went on to note that though there was no lease affecting the land given to the father of the Plaintiffs, the allocation note (exhibit B) given to him on 5th September, 1977 stipulated as follows; 1. That the allottee will pay the ground rent involved. 2. That the allottee will within one year commence and within two years complete building on the land. 3. That Esreso stool reverse the right to re-enter on the land if any of the above conditions is not complied with and without any right of claim by the Allottee for expenses or compensation. 45. The evidence submitted showed that Opanin Mainoo had paid ground rent over the years, though he had not built on the land. The high court went on to hold that, a right of re-entry is not automatic just because it has been stipulated in an Page 35 of 136 agreement. It must comply with section 29 of the Conveyancing Act, 1973, NRCD 175 which reads: (1) A right of re-entry or forfeiture under any provision in a lease for a breach of any covenant, condition or agreement in the lease shall not be enforceable, by action or otherwise, until (a) the lessor serves on the lessee a notice: (i) (ii) (iii) specifying the particular breach complained of; if the breach is capable of remedy, requiring the lessee to remedy the breach; and (expect where the breach consists of a non-payment of rent) requiring the lessee to make reasonable compensation in money for the breach; and (b) the lessee has knowledge of the fact that such notice has been served; and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy and, (except where the breach consists of a non-payment of rent) to make reasonable compensation in money, to the satisfaction of the lessor, for the breach. 46. Thus, if the Esreso stool intended to re-enter the land, a written notice for re- entry should have been given to Agyekum Okyere Mainoo. And since there was Page 36 of 136 no evidence of re-entry on the part of the stool against A. O. Mainoo, that possibility cannot be introduced into the case. The High Court was satisfied that the fact that there was no recorded transaction at Lands Commission affecting the plaintiff’s land does not nullify the grant to the plaintiffs. Besides, the grant to the defendants equally lacked a recorded transaction at Lands Commission in their favor. The permit by the Assembly to the 2nd and 3rd defendant could only be subject to previous grants. 47. On the issue whether the receipts from the Administrator of Stool Lands and the Lease tendered by the plaintiffs as having been obtained directly from Esreso stool and the secretariat of the Asantehene were obtained by means of forgery, the court found that there is no evidence to establish the alleged fraud. PW1 the chief of Esreso gave evidence that he signed the document and he explained his reasons to the court. This evidence was not discredited under cross examination. The defendants’ allegation that the plaintiff did not disclose to Otumfour Land Secretariat that there was a pending litigation on the land in respect of which they sought the lease, therefore could not lend credence to the charge of fraud. The defendants did not discharge the burden on them to establish the fraud. 48. On the issue whether the plaintiffs had used thuggery and violence to lay claim to the disputed land, the court’s consideration was that none of the defendants Page 37 of 136 testified or adduced any evidence in support of the alleged violence in the pleadings. Since it is one thing pleading and another thing leading evidence in support of pleadings as held in IBM V Hasnem [2001-2002] SCGLR 393 at 402, the 2nd and 3rd defendants are not entitled to damages as they were unable to satisfy the court of the probability of its occurrence on them by the plaintiff. The defendants had been unable to satisfy the Court that they were entitled to their counterclaim and so their counterclaims were dismissed. 49. It is this evaluation that the Court of Appeal considered in its decision to be against the weight of evidence. As earlier stated in summary, our view is that the judgment of the high court was not against the weight of evidence Why the judgment of the High Court was not against the weight of evidence Our consideration focuses on the three principles that the Court of Appeal applied to arrive at its determination. Sufficiency of identity of land 50. As much as it is required of a party laying claim to land to identify it clearly in order to succeed in a claim to the land, the rule has always been that there should Page 38 of 136 not be a mechanical application of the rules on proof of entire boundaries in claims for declaration of title, and that each case depends on its own facts. See the decision of this court articulated by Adinyira JSC in Okine v Amoah VI cited supra, applying one of the rules distilled in In re Ashalley Botwe Lands; Adjetey Agbosu V Kotey [2003-2004] 1 SCGLR 420, undoubtedly the modern locus classicus on this principle. In Sah v Darku and Others (1987-88) 1 GLR 123 at holding 4, Osei-Hwere JA rightly pointed out that if the court could ascertain from the evidence that there was land sufficiently identified by the party (defendant in that case), as being in dispute between him and the plaintiffs in respect of which the court could give effective judgment, the (counter) claim could not be thrown out merely because the description of the land was not specifically pleaded. 51. Because a plaintiff’s case must stand on its own strength and not on the weakness of his opponents, the decisions in Okonti Borley and Okonti Bortey v Haubauer Limited SC Suit No. J4/48/2013 (10 March, 2021) George Kwadwo Asante & Others v Madam Abena Amponsah & Others SC Suit No. J4/64/2021 (20th January, 2022) affirmed and applied, it is pertinent to start by asking: What are the claims and pieces of evidence that lead us to uphold the high court determination that on the preponderance of probabilities, the plaintiffs have established their claim to the 5.15 acres of land that covers the land in dispute? Page 39 of 136 52. First, we note that there is a folio or file number S30343 stated on the 1977 Allocation note given to Mainoo for the land described as the ‘Gas Processing Factory’. All persons who testified were in agreement that in 1977, no layout had been created for Esreso land, to allow for any plot numbers to be given for allocations. The lack of plot number on the 1977 allocation note therefore, by itself constituted no weakness in the grant of land for the gas processing factory. What was significant about the grant was that it was signed by the necessary confirming party for a lease of Esreso land, being the Asantehene, thereby giving it validation. Further, notice of that allocation was given to the Senior Lands Officer of the Ministry of lands, Kumasi. 53. And even more critically, from the testimony of plaintiffs’ attorney, a draft lease was prepared to support the allocation of land. Although not submitted as an exhibit, a copy of this draft lease is part of the record of appeal, and from the record, was produced for the inspection of the defendants as part of the preparation for the trial. It can be found on page 110 of the Record of Appeal, and confirms the parties to the allocation note tendered as exhibit B. It also reflects the acreage of 5.15 acres, and location of land claimed by plaintiffs, including the relation between the land claimed by plaintiff and the file number given to the allocation note and found on exhibit B being file number S30343. Page 40 of 136 54. The exhibits submitted to court included the receipts for payment of ground rent paid to the Administrator of stool lands on 8th January 1993, 20th May 1994, 21st May 2004, and 8th February 2005, before the commencement of the litigation and all of them bore the same file number S30343. This file number identified a clear relation between Agyekum Okyere Mainoo’s 1977 allocation note and the ground rent that was being paid to Administrator of Stool Lands before the commencement of the litigation. On all these receipts, the Administrator of Stool Lands must have been clear enough on what was allocated in that grant of 1977 for the Gas Processing Factory for them to calculate what was payable as ground rent on that file S30343. Then on 21st January 2016, the Administrator of Stool Lands quoted the same decades old file number S30343 on the rent demand notice that described the property for which a rent demand was made on the plaintiffs as ‘site for Indus Gas & processing Factory Esreso’ with acreage of 5.15, leaving no doubt whatsoever that the land identified on that file S30343 was the site for Gas Factory, a description that started in 1977, and the land was 5.15 acres. 55. Also critical to the strength of the Plaintiff’s case is that he called as witness the current chief of Esreso, who linked the land described on the lease granted to the plaintiff and tendered as exhibit E with the land allocated to their father. He testified under cross examination that ‘it is the same land lease I signed at Manhyia Palace’ (page 216) Page 41 of 136 With these firm linkages in official records, it will be disingenuous to present that from the records of the Ministry of Lands in 1977, the records of Esreso on allocations given by the stool, the records of Asantehene’s land secretariat, and the Administrator of Stool lands, there is no corroborating evidence of official recognition of the location and value arising from the site of the ‘Gas Processing Factory’ that the Plaintiff’s father was given, and from which the plaintiffs derived their claim. 56. Both the defendants and the Court of Appeal made much of the plaintiff’s land being described as plot number 1 from the 1993 receipt. We must also note that both the plaintiffs’ attorney and the 5th defendant testified that there was a first layout of Esreso land created in 1994. Though no evidence exists to create an inference that in that layout, the Gas Processing factory became plot no 1, it removes the surprise that as at 1993, the Gas Processing Factory was credited with a plot number. 57. It was also the testimony of the 5th defendant, who presented himself as having all information on the land, that there had been a rezoning of the land since the year 2000. On page 238 of the Record of Appeal, the 5th defendant was asked Page 42 of 136 ‘Q: the evidence of the surveyor showed that the land mentioned in exhibit B is the same land the parties are disputing over A: that is true but there had been a re-zoning since 2000’ 58. Could it be this re-zoning since 2000 that gave the land in contention the plot number 5 or 5A and 5B or was the numbering done in the 1994 plotting? Especially since it was also the testimony of PW1, Esresohene (page 214) that ‘when he was enstooled as a chief (2010) the area had not been demarcated into plots even though it was on the layout as industrial plots’. No clarity was provided on when the land in issue was given the number plot number 5, 5A and 5B. This enquiry is particularly intriguing since the defendants’ case hinged on the identification of the land in contention as plots 5A and 5B by the allocation note tendered for the 1st defendant and commitment to provide an allocation note tendered for the 2nd and 3rd defendant. Our view is that the burden of proving that there was a plot 1 designated as the site for gas processing factory and this was different from plots 5A and 5B lay on defendants, because this was a position emanating from them. 59. To the extent that the plaintiffs insisted that their Gas Processing site identified in all their exhibits was on the area delineated as plot 5, encompassing plots 5A and 5B on the composite plan (CW1) and the site plans attached to the draft lease and Page 43 of 136 the final lease tendered as exhibit E, and this position was corroborated by the grantor of the land, PW1, the plaintiff had discharged their burden of producing sufficient evidence imposed by section 11 of the Evidence Act 1975 NRCD 323. Section 11 (4) reads: In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non- existence. Although the Court of Appeal suo motu, purported to expunge exhibit CW2, which had been duly admitted in evidence, and not shown on appeal to be inadmissible, it is clear to us that the only value of exhibit CW2 was an effort by BADKA to distance itself from the alleged re-zoning that broke up plot 5 into three pieces. 60. On our part, we find no significance in the discussions on zoning or re-zoning especially since we are satisfied that the credibility or validity of the allocation of plots 5A and 5B cannot be established from the pleadings, exhibits and general case of the defendants. On the part of the plaintiff, we are satisfied that the consistency of quotation of the file number S30343 on the allocation to Plaintiff’s father in 1977 and the Page 44 of 136 official receipts issued from that date up to 2005, affirms that official records on the land claimed by the plaintiffs through their father were located on a definite file, and the land was recognized as encompassing 5.15 acres, and located on the site zoned for an industrial gas processing factory, a site recognized by the chief of Esreso, Otumfuo’s secretariat, and the Administrator of Stool lands. 61. We also note that between 1977 and 2016, it was only in the 2016 record of the Administrator of Stool lands that the form used for rent demand notice tendered had room for the acreage involved in the claim. And that space was filled out as 5.15 acres, while the land itself was described by its historical identification – Ind. Gas Processing Factory. We find the consistency of file number and description of the same property from the records of the Office of Administrator of Stool lands to be critical links in this chain of certainty regarding the identity of the land claimed by Plaintiffs. Evaluating defendant’s case Possession 62. Possession in law essentially has to do with exercise of control over a property spanning actual physical possession, and physical acts that reflect the intention to control the land, such as placing third parties on the land. See Brown v Page 45 of 136 Quarshigah [2003-2004] SCGLR 930. That intention to possess must be manifested by external or visible signs appropriate to the property being taken into possession. The external manifestation is necessary to serve as a notice to the rest of the world that of the right claimed, even if unknown to the whole world. 63. But as much as possession is established by physical acts, those acts need not be a physical presence on the land. The critical reflection must be the animus possidendi or intention to possess control and express control through identified acts. In Akoto v Gyamfi-Addo [2005-2006] SCGLR 1018 this court held that possession can be proved through receipt of rent or profits or rights to receive same amounted to possession and not necessarily physical occupation. In the instant case, the consistency of payment of ground rent from the 1980s, 1990s to the 2000s by the Plaintiffs’ father, even though the evidence was also that he was sick for much of that period until he died in 2002, leaves no doubt about the intention to possess the land in issue. This is also reflected in the devising of the land in dispute in his will, showing the intention of extending the possession of the land, even if undeveloped, beyond his own life. And the record in court is that the payment of ground rent for the land claimed by plaintiffs continued through the 2000s. Page 46 of 136 64. How does this fare in the face of the defendants’ case that they were in actual physical possession of the land in dispute? Averments of Possession and Adverse Possession We are immediately confronted with the fact that this suit was commenced against 25 defendants. There was no contrary evidence that the 1st to 3rd defendants were the only persons on the land when Plaintiffs decided to commence their action in 2005. This means that the defendants were not in exclusive physical possession of the land, and were just counted as one of many persons plying their trade on the land until plaintiff observed the acts that led to the suit. 65. It is significant that in their original defence filed in April 2005, the 2nd and 3rd defendants presented that they were tenants on the land. After pleading that they had applied to the BAKDA for allocation of the land to operate their chop bar business, they admitted that on 10th September, 2004, a date just months before filing the suit, they had received a permit to operate the chop bar on payment of a fee, and that their landlord is the BAKDA, with the Esreso unit Committee endorsing their tenancy. That permission was tendered as exhibit 8 and it was to ‘temporarily erect a structure for a chop bar’. They also tendered evidence as exhibit 6 to reflect that in August 2003, there was a receipt and Page 47 of 136 acknowledgement ostensibly issued by the Esresohene in favor of the 3rd defendant for plot number 5B. It was witnessed by the 5th defendant. That receipt was supposed to be for ‘drink’ and came with a promise to issue an allocation paper in a month’s time. The question is – if the Esresohene was alive in August 2003, and this plot number 5B was available to be allocated, why was an allocation note, with the Asantehene’s secretariat as confirming party, not executed in favor of 2nd and 3rd defendants? Why were they applying for a permit to operate a chop bar and why did they plead that they were tenants? 66. What is the nature then of this possession by 2nd and 3rd defendant? It could only be in the form of a mere license from the Assembly, who could not be grantors of the land. The 1st defendant When it comes to the 1st defendant, Jesse Maputo, he was issued with an allocation note for plot no 5A on 30th April 2002 which was tendered as exhibit 3. There was no confirmation from the Asantehene’s secretariat on this allocation. Significantly, there was no file number that travelled with the receipts for ground rent from 2005 that he tendered as exhibits 5, 5A, 5B, 5C, 5D, 5E, and 5F. These receipts were issued after commencement of the court action. Page 48 of 136 PW1 testified in his examination in chief that he became chief in December 2010 (page 213), and his predecessor was Nana Osei Yaw 11 (page 211) and that it is this Nana Osei Yaw Ababio who signed the allocation note for Plaintiffs’ father in 1977. When did Nana Osei Yaw 11 die? This date did not come out. The records show that plaintiff’s father died in June 2002 and Jesse Maputo was supposed to have received his allocation note on 30th April 2002. And yet when 4th and 5th defendants filed their statement of defence in 2005, all they could state was that the Chief of Esreso was dead, and a new one had not been installed, and they had given licenses for the defendants to be on the land in dispute. These pleadings show exhibit 3 to be the sham that it was. With the testimony of PW1 was that he was enstooled in 2010, it is apparent that no complete allocation note with the Asantehene signing as a confirming party was issued in favor of the 1st to 3rd defendants. The site plans with plot numbers created in their names therefore did not lead to any interest in customary law or equity. 67. It was further the pleading of Jesse Maputo that he placed one James on the land, such that it was that James who was sued as 17th defendant by the plaintiffs in 2005 as one of 25 trespassers. The records show that it was not till 2012 that Maputo appeared and prayed to be substituted for James in the suit. Page 49 of 136 The above records satisfy us that there was no effective possession that constituted assertion of adverse possession from all 1st to 3rd defendants from the commencement of the action in 2005. 68. When it comes to possession asserted against one who is claiming ownership of land, it is not a mere license to ply one’s trade on land, or the mere presence on land that constitutes possession in law that can stand up against the superior claim. It must be adverse possession that openly and firmly denies the plaintiff’s ownership claims. Adjetey Adjei v Nmai Boi [2013-2014} 2 SCGLR 1474, GIHOC Refrigertion & Household Products Ltd (No 1) v Hanna Assi (No 1) [2005-2006] SCGLR 458. And the evidence satisfies us that from the pleadings and until the final Amended Statement of Defence filed on 31st January 2014, found on page 91 of the appeal records, that none of the defendants presented any case of adverse possession against the plaintiff’s claims of ownership through their father. The issue of acquiescence and laches do not even arise, and we do not see the need to spend attention on same. Equities 69. When the equities are equal, the first in time prevails. Legal title on land is derived from an actual lease or other conveyance. In the instant case, the plaintiff Page 50 of 136 presented the basis of his father’s interest as an allocation note issued in 1977. The 1st defendant presented an unconfirmed allocation note issued in 2002. The 2nd and 3rd presented a commitment to give an allocation note in 2003, and an offer of tenancy in 2004. Clearly the equities of the two sets of the parties before this court are not even equal. 70. When it came to physical possession, the 1st defendant confirmed that he was not present on the land, but had installed various artisans on the land after 2002, and it was after that date that he started to pay ground rent to the administrator of stool lands. One of the 1st defendant’s surrogates was the original 17th defendant who failed to defend the action. It was after 2012 that he appeared in the action or at all. As at 2013, he was yet to construct any structure on the land. And had put blocks on the land. The 2nd and 3rd defendants presented a license to be physically present on the land issued in September 2004, five months before the plaintiff’s commenced the action, and to date, this remains the extent of authorization for their presence on the land. From these pieces of evidence, there is no basis for a finding of adverse possession that can overturn the strength of the plaintiff’s father’s Allocation note and payment of ground rent from 1977. Legalities Page 51 of 136 71. By far, the strongest pieces of evidence on which the findings and holdings of the court must turn came from the plaintiff. Their grantor testified, and their grantor and confirming party have issued a lease to confirm the transaction that started in 1977 in favor of their father. Being the Parties’ common grantor, our view is that the Esresohene’s testimony was decisive and pivotal in view of the principle of law reiterated in cases such as Benyak Co. Ltd. v. Paytell Ltd. & Ors. [2013-2014] 2 SCGLR 976, where this Court stated that where rival parties claim property as having been granted to each by the same grantor, the evidence of the grantor in favour of one of the parties should incline a court to believe the case of the party in whose favour the grantor gave evidence. 72. Indeed it would be strange for any court, after being shown a lease issued on the land in contention by the duly acknowledged grantors of the land, to insist that a party whose allocation note has not been confirmed, and one who has no allocation note, should on the strength of their alleged possession and licenses, be pronounced as the owners of the land described by plaintiffs in the indorsement on their writ, which description of land is the same description on the lease the plaintiffs have obtained in their name. To the extent that the composite plan presented by the court surveyor confirms that the land claimed by the plaintiffs, and granted in the lease dated 2012, is the same land that the defendants are on by reason of their licenses from the 5th Page 52 of 136 defendant and BADKA, the plaintiffs are entitled to quiet possession of the land that was allocated to their father in 1977, bequeathed to them by their father, and perfected through title from the grantor. The judgment of the court of appeal is reversed and the judgment of the high court affirmed. Costs of GHC 10,000 awarded in favor of the plaintiffs and against the defendants (SGD.) G. SACKEY TORKORNOO (MRS.) (JUSTICE OF THE SUPREME COURT) (SGD.) PROF. H. J. A. N. MENSA-BONSU(MRS.) (JUSTICE OF THE SUPREME COURT) (SGD.) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) Page 53 of 136 DISSENTING OPINION ASIEDU, JSC: [1.0]. INTRODUCTION: My lords, this is an appeal against a judgment of the Court of Appeal dated the 22nd June, 2023. In the said judgment, the Court of Appeal set aside a judgment which the High Court delivered in favour of the Plaintiffs/Respondents/Appellants (hereinafter referred to as the Appellants). Dissatisfied with the judgment of the Court of Appeal, the Appellants have lodged the instant appeal in this Honourable Court praying the Court to set aside the entire judgment of the Court of Appeal. The Defendants/Appellants/Respondents would hereinafter be referred to as the Respondents. [2.0]. GROUNDS OF APPEAL: The grounds of appeal contained in the Notice of Appeal filed on the 13th July, 2023, are that: a. The Judgment is against the weight of evidence. Page 54 of 136 b. The Court of Appeal erred in law when it proprio motu substituted a case other than that put forward by the Defendants/Appellants/Respondents. PARTICULARS OF ERROR OF LAW i. ii. The Defendants/Appellants/Respondents being emphatic in their written submission that they were arguing their appeal based on the Notice of Appeal filed on the 11th of March, 2021. The Plaintiffs/Respondents/Appellants therefore responding to the written submission based on the Notice of Appeal filed on the 11th of March, 2021. iii. The learned Justices of the Court of Appeal however deciding to rest their judgment/decision on the Notice of Appeal filed on the 22nd March, contrary to the case of the Defendants/Appellants/Respondents. Page 55 of 136 iv. The said decision of the Court of Appeal therefore occasioning substantial miscarriage of justice to the Defendants/Respondents/Appellants. c. The learned Justices of the Court of Appeal erred when they held that the Notice of Appeal filed on the 11th of March, 2021 was withdrawn and a new one filed on the 22nd of March, 2021. d. The learned Justices of the Court of Appeal erred in law when they based or rested their judgment on the Notice of Appeal filed on the 22nd of March, 2023 (sic) which was not properly before them. PARTICULARS OF ERROR OF LAW i. The Defendants/Appellants/Respondents only filing Notice of Discontinuance/Withdrawal of Appeal. ii. The filing of the said Notice of Discontinuance/Withdrawal of Appeal only an intention to withdraw the Notice of Appeal filed on 11th March, 2021 and not the actual withdrawal. iii. The Defendants/Appellants/Respondents failing to withdraw the Notice of Appeal filed on 11th March, 2021. Page 56 of 136 iv. The Court of Appeal however resting its Judgment/decision on the Notice of Appeal filed on 22nd March, 2021 which was not before the Court of Appeal. v. The Judgment of the Court of Appeal [is] therefore a complete nullity. e. The Court of Appeal erred when it held that the Plaintiffs/Respondents/Appellants failed to identify the land which they were claiming. f. The Court of Appeal erred when it upheld the Counterclaim of the Defendants/Appellants/Respondents when they could not prove same on the preponderance of the probabilities. g. The Court of Appeal erred in expunging Exhibit CW2 from the Record. h. Additional Grounds of Appeal would be filed upon the receipt of the Record of Appeal. Page 57 of 136 My Lords, there is no indication on the record that additional grounds of appeal were filed by the Appellants. Therefore, the appeal would be determined on the above grounds contained in the notice of appeal filed on the 13th July, 2023. [3.0]. FACTS: The facts leading to this appeal are that, sometime in March, 2005, the Appellants commenced an action in the High Court against the Respondents and others as Defendants therein for the following reliefs: a. Declaration that the piece and parcel of land measuring 5.15 acres situate and lying in-between the Kumasi-Sewua and Kumasi-Jachie motor roads in the City of Kumasi and bounded by the Kumasi-Sewua motor road and an open space on the North-East, Plot No.2 on South-East, Kumasi-Jachie road on the South-West and by the junction of the said roads on North-West formed part of the estate of the late Agyekum Okyere Mainoo alias Nana Okyere Agyekum. b. A declaration that by virtue of the Last Will and Testament of the late Agyekum Okyere Mainoo alias Nana Okyere Agyekum dated 4th December, 1989, the land described in paragraph (a) above has become the property of the Plaintiffs. c. An order ejecting the Defendants from the said land. Page 58 of 136 d. Such other Order(s) as may seem just. In 2013, the Appellants sought and obtained leave of the trial High Court and amended their pleadings, the statement of claim, to include additional reliefs. However, the Court below found that the additional reliefs were not properly before the Court as the Appellants had failed to amend the writ of summons itself to include the said reliefs. It appears that the said holding by the Court below has been put to rest as the instant appeal raises no issues in that regard. The case advanced by the Appellants at the trial Court was that the Appellants are children of one Agyekum Okyere Mainoo alias Nana Okyere Agyekum (deceased). During the lifetime of the said Nana Okyere Agyekum, Appellants’ father, it is alleged that he acquired the disputed land from the Esreso Stool in 1977. The Appellants averred that their late father made a Will in 1989 and devised the disputed land to the Appellants. After the death of their father, the Will was admitted to probate and a vesting assent executed in favour of the Appellants, thereby making the Appellants the owners of the disputed land. That a lease was subsequently engrossed in favour of the Appellants by the Esreso Stool. The Appellants submitted that the Respondents had trespassed onto the land in question. The Respondents, on the other hand, denied the Appellants’ claim and averred that the Respondents acquired the disputed land from the Esreso Stool and were operating their Page 59 of 136 businesses thereon with the permission of the Bosomtwe-Atwima-Kwanwoma District Assembly (BAKDA). That the Respondents obtained the said permission since 2002, and had been in occupation of the disputed land until the suit commenced by the Appellants. That the Respondents, in return, had been paying ground rent to the Administrator of Stool Lands and the BAKDA. The Respondents further averred that even if the Appellants own any piece of land near the same location at all, that piece of land is different from the land occupied by the Respondents. Accordingly, the Respondents counterclaimed against the Appellants for, among others, a declaration of title to the disputed land and an order of perpetual injunction to restrain the Appellants from interfering with the Respondents’ quiet enjoyment of the disputed parcel of land. By order of this Honourable Court dated the 9th May, 2023, the 3rd Defendant/Appellant/Respondent, Isaac Emisson, was substituted for the 4th Defendant/Appellant/Respondent, Yaa Amoakoa (deceased). [4.0]. JUDGMENT OF THE TRIAL HIGH COURT: At the end of trial, the learned trial Judge gave judgment in favour of the Appellants. The trial High Court concluded that the Appellants’ father indeed acquired the Page 60 of 136 disputed land from the Esreso Stool in 1977. As a result, having divested itself of the parcel of land to the Appellants’ father, the Esreso Stool could not properly alienate the same parcel of land to the Respondents in 2002. [5.0]. JUDGMENT OF THE COURT OF APPEAL: On appeal by the Respondents to the Court of Appeal, the Court of Appeal allowed the Respondents’ appeal and set aside the judgment of the trial High Court. The learned Justices of the Court of Appeal reasoned that the principal documentary evidence relied upon by the Appellants in their claim to the disputed land, were an allocation note issued to the Appellants’ deceased father by the Esreso Stool and a 1989 Will left behind by the Appellants’ late father. However, these principal documents did not identify the parcel of land that was acquired by the Appellants’ late father. As a result, the Court of Appeal concluded that on the totality of the evidence on record, the Appellants failed to establish the identity of the parcel of land that was acquired by the Appellants’ father and devised to the Appellants in the Appellants’ deceased father’s Will. Accordingly, the Appellants were held by the Court to have failed to meet the cardinal test of establishing the identity of the subject matter in an action for declaration of title to land. Conversely, the Court found that the Respondents had led sufficient evidence to establish their counterclaims against the Appellants. The Court, therefore, gave the Respondents judgment on their counterclaim. Page 61 of 136 [6.0]. ARGUMENT OF APPELLANTS IN THIS COURT: In their statement of case filed on the 16th February, 2024, it has been argued by Counsel for the Appellants that, the learned Justices of the Court of Appeal erroneously relied on a notice of appeal filed by the Respondents on the 22nd March, 2021. It has been argued by Counsel that the Respondents had filed a notice of appeal on the 11th March, 2021. Even though the Respondents filed a notice to withdraw the notice of appeal earlier filed on the 11th March, 2021, the said notice of appeal was not properly withdrawn in accordance with Rule 17 of the Court of Appeal Rules, 1997 (CI 19). That having not been properly withdrawn, the notice of appeal before the Court of Appeal was the one filed on the 11th March, 2021. Consequently, the Court could not have considered or relied on grounds of appeal canvassed in the notice of appeal filed on the 22nd March, 2021, and additional grounds thereto, filed with leave of the Court granted on the 6th December, 2022, in determining the appeal before the Court of Appeal. That the subsequent notice of appeal filed on the 22nd March, 2021, was incompetent and as such could not invoke the jurisdiction of the Court of Appeal. It was further argued by Counsel for the Appellants that, the Court of Appeal erred in reaching the conclusion that the Appellants failed to establish the identity of the parcel of land claimed by the Page 62 of 136 Appellants in their writ of summons. Counsel prays the Court to set aside the judgment of the Court of Appeal on the basis that the judgment was made without jurisdiction. It has also been argued by Counsel for the Appellants that the Court of Appeal erred, in the light of the evidence on record, in concluding that the Appellants failed to establish the identity of the parcel of land acquired by the Appellants’ late father. Counsel, therefore, invites this Court to set aside the judgment of the Court of Appeal, and restore the judgment of the trial High Court. [7.0]. ARGUMENT OF THE RESPONDENTS: On their part, it has been argued by Counsel for the Respondents, in their statement of case filed on the 5th March, 2024, that the Court of Appeal is justified in concluding that the Appellants could not establish the identity of the parcel of land claimed by the Appellants. That the judgment of the Court of Appeal is amply supported by the evidence on record. Even though Counsel for the Respondents appears to side with Counsel for the Appellants’ argument that the notice of appeal filed by the Respondents on the 22nd March, 2021, was not properly before the Court of Appeal, Counsel for the Respondents argues, however, that the judgment of the Court of Appeal was founded Page 63 of 136 on the ground of appeal that the judgment of the trial High Court was against the weight of evidence on record. That the said ground of appeal having been raised in the notice of appeal filed on the 11th March, 2021, the issue regarding the propriety or otherwise of the subsequent notice of appeal, is inconsequential. Counsel submits that there is evidence on record to show that the Court of Appeal’s judgment was premised on the notice of appeal filed on the 11th March, 2021 which notice of appeal both parties are ad idem was properly before the Court of Appeal. Counsel for the Respondents, therefore, invites the Court to dismiss the instant appeal. [8.0]. DETERMINATION OF THE APPEAL: In view of the argument made by counsel for the Appellant regarding the propriety of the notice of appeal filed by the Respondents before the Court of Appeal, it is very necessary that this Court deals with that issue before considering the merits of the appeal. Rule 17 of the Court of Appeal Rules, 1997, (C. I. 19) provides for the withdrawal of a notice of appeal. Sub-rule 1 of rule 17 which is relevant to the instant matter provides that: “17. Withdrawal of appeal Page 64 of 136 (1) Subject to rule 15, if the appellant files with the Registrar a notice of withdrawal of his appeal, the Registrar shall certify that fact to the Court, which may thereupon order that the appeal be dismissed with or without costs. Rule 15 to which rule 17 is subject, deals with a situation where a notice is filed by respondent in an appeal contending that the judgment, the subject of the appeal before the Court of Appeal, be varied. Under rule 17(1) of CI.19, certain steps ought to be gone through before an appellant who wishes to withdraw an appeal or a part of an appeal filed, could be said to have legally and successfully withdrawn his appeal or a part thereof. First, a notice of withdrawal ought to be filed at the Registry of the Court of Appeal; second, the notice of withdrawal shall then be placed before the Court of Appeal and, third, the Court of Appeal shall then exercise its discretion to grant or refuse the notice of withdrawal either with or without costs. What this implies is that the withdrawal of an appeal is not automatic upon the filing of the notice of withdrawal. It also implies that until these steps are successfully gone through, especially until the Court of Appeal makes a formal order granting the withdrawal, the said appeal shall not be regarded as having been withdrawn and it shall continue to be valid as though the notice of withdrawal has not been filed at all. In construing rule 17 of the Court of Appeal Rules, this Court held in the Republic vs. High Court, Accra (Commercial Division); Ex parte Hesse Page 65 of 136 (Investcom Consortium Holdings SA & Scancom Ltd Interested Parties) [2007-2008] SCGLR 1230 that: “A plain reading of rule 17 of the Court of Appeal Rules, 1997, CI.19, did not admit of any incongruity or absurdity; neither did it lead to any injustice or some other outrageous consequences. Consequently, the mere filing of the notice of withdrawal did not effectually end the appeal. The application to end the appeal was not automatic and required the leave of the court. Therefore, embedded in the notice of withdrawal was an application for leave to withdraw. The Court might well, in the exercise of its discretion, allow the withdrawal on terms it thought just, or having regard to the stage at which leave to withdraw was being sought, refuse leave altogether and consequently the withdrawal; and then proceed to judge the appeal on its merits, based, undoubtedly on the material before it. Hence, the detailed rules in rule 17 of CI.19 regarding the registrar’s duty viz-a-viz the respondent to the appeal and the court, namely, to place the notice before the court, for it to rule on its fate and also on the question of costs. Those were the legal steps for effectually terminating a pending appeal; not the mere filing of the notice of withdrawal, which, as was self-explanatory, merely expressed an intention; and in any event, until the final orders of the court, could actually be withdrawn, albeit with the leave of the court”. Page 66 of 136 [8.1]. The case of ex parte Hesse (supra) is sharply contrasted with the case of Nana Kwasi Broni & Another vs. Kwame Kwakye & 2 Others [2017-2018] 2 SCLRG 284. In that case, the respondent filed a notice of appeal on the 26th August 2014, and on the 28th August 2014, withdrew the notice of appeal filed on the 26th August and filed another notice of appeal on that same 28th August 2014. The question before the Supreme Court was whether the respondents needed the leave of the Court of Appeal before they could withdraw the first notice of appeal filed on the 26th August 2014. The Court reasoned that the answer depended on whether the Court of Appeal was seised with the appeal within the true meaning and effect of rule 21 of the rules of the Court of Appeal. See Republic vs. High Court, (Human Rights Division), Accra, Ex parte Akita [2010] SCGLR 374. This Court, in the Nana Kwasi Broni case (supra) stated at page 295 of the report, that: “There is no evidence on record, that the Registrar of the High Court effected service of the first notice of appeal on any of the parties. Secondly, the record of appeal in the case in the Court below had not yet been transmitted to the Court of Appeal, for the Court to be seised with the appeal for its jurisdiction as provided under rule 17 of CI.19 to be invoked …. The processes which result in the Court of Appeal being seised with the matter are; (i) the filing of the notice of appeal under rule 8 of CI.19; (ii) the fulfilment of the conditions of appeal including the payment of security for costs for the prosecution of the appeal … and (iii) the transmission of the record of appeal and the service of civil form 6 … Page 67 of 136 Counsel for the plaintiffs had filed and withdrawn and refiled a notice of appeal within two days. Evidently, the notice had not gone before the Court of Appeal for rule 17 of CI.19 to be invoked. It is also reasonable to infer that the parties in the ex parte Hesse case would have gone to considerable expense at that point in the appeal in that case and if the appellant had been permitted to withdraw the appeal suddenly without leave of the court, a lot of injustice would have been occasioned to the other party. This is clearly different from the instant case, where no expense had been incurred by the defendants when the notice of appeal was withdrawn and refiled within two days”. [8.2]. We find the above proposition of the law to be in accord not only with common sense, but that it reflects the practicality of rules 17 and 21 of the Court of Appeal Rules. We therefore re-affirm it. The position of the law may then be summarized as follows: Where the record of appeal has been transmitted to the Court of Appeal or to the Appellate Court, an appellant who wishes to withdraw his appeal would require the leave of the Court of Appeal or of the Appellate Court before he can effectively withdraw the appeal in accordance with the provisions of rule 17 of the Court of Appeal Rules. Where the record of appeal has not been transmitted to the Court of Appeal or the appellate court, as the case may be, an appellant who wishes to withdraw or discontinue his appeal will have to file his notice of withdrawal of the appeal before the trial court; that is either the Circuit Court or the High Court ( for the avoidance of doubt a formal application for leave to withdraw or discontinue the appeal may be filed Page 68 of 136 before the trial Court which may consider the application and deal with it accordingly). This applies where the notice of appeal and other processes have been validly served on the respondent. Where, however, the notice of appeal has not been served on the respondents, then an appellant who wishes to withdraw his appeal shall file a notice of withdrawal which shall automatically terminate the further progression of the appeal without seeking leave under rule 17 of the Court of Appeal Rules. In any of these scenarios, if a respondent can prove that he has incurred legitimate costs as a result of the appeal, the respondent may apply to the appropriate Court for an order upon the appellant to make good the costs incurred. [8.3]. The record of appeal in the instant matter shows that the judgment of the trial High Court was delivered on the 11th March 2021 as shown on page 296 volume 2 of the record. The first notice of appeal was filed by the defendants/appellants/respondents herein on the 11th March 2021. See page 324 volume 2 of the record. According to the record at page 384, the respondents filed a notice of change of solicitor on the 22nd March 2021 at 2.50pm. The respondents then went ahead to file through their new solicitor a “notice of discontinuance/withdrawal of appeal filed on the 11th March 2021 with liberty to come back”. See page 492 volume 2 of the record of appeal. The respondents, subsequently, filed, on the 23rd March 2021, a fresh notice of appeal. See pages 385/395 of the record. The submission by counsel for the Appellant herein at page 11 to 12 of his statement of case that the defendants/respondents “invoked the jurisdiction of the Court of Appeal by filing a notice of appeal dated 13th November Page 69 of 136 2015 in which the sole ground of appeal was that the judgment was against the weight of evidence,” is not correct. The judgment itself was delivered on the 11th March 2021, so how could a notice of appeal against the said judgment be filed on the 13th November 2015? I believe counsel did not pay attention to the date in his statement of case. Again, it is also not correct that the grounds of appeal in the first notice of appeal was only one ground to the effect that the judgment of the High Court was against the weight of evidence. The notice of appeal filed on the 11th March 2021 contained two grounds of appeal, to wit: “(a) the judgment is against the weight of evidence on record; and, (b) the Court erred when it held that the subject matter was acquired by the plaintiff’s father Okyere Agyekum”. [8.4]. The facts with regard to the propriety of the second notice of appeal filed on the 23rd March 2021 in the instant appeal, are not significantly different from the facts pertaining to the propriety of the second notice of appeal in the case of Nana Kwasi Broni & Another vs. Kwame Kwakye & 2 Others (supra). In both cases, a notice of appeal was initially filed, followed by a notice of withdrawal and the filing of a second notice of appeal. The issue in the present appeal bearing on the second notice of appeal, is the same issue that was determined in the Nana Kwasi Broni case; that is, whether or not the failure to apply for and obtain a formal leave from the Court of Appeal disabled or rendered invalid the second notice of appeal filed; with the effect that the first notice of appeal remained valid. The period between the filing of the first notice of appeal and the second notice of appeal was about twelve (12) days. There is also no evidence as to Page 70 of 136 whether or not at the time of the filing of the second notice of appeal, the first one which was filed on the 11th March had been served on the Plaintiff/Respondent/Appellant. There is also no evidence that the record of appeal had been compiled and transmitted to the Court of Appeal by the date that the second notice of appeal was filed, that is the 23rd March 2021. In fact, the written submission of the Plaintiff/Appellant/Respondent was filed with the leave of the Court on the 8th March 2023. See page 578 volume 2 of the record. Thus, there is no evidence to show that the Court of Appeal was seised with jurisdiction in the matter so as to make it mandatory that the Defendants/Appellants/Respondents herein needed the leave of the Court of Appeal under rule 17 of the Court of Appeal Rules. [8.5]. Thus, this Court is bound to follow its decision in the case of Nana Kwasi Broni & Another vs. Kwame Kwakye & 2 Others (supra). There is no legally justifiable reason, as required under article 129(3) of the Constitution,1992, for this Court to depart from the decision in the Nana Kwasi Broni case. That being so, the notice of withdrawal filed by the Respondents herein had the effect of terminating the notice of appeal filed by them on the 11th March 2021. This implies also that the notice of appeal filed by the Defendants/Respondents on the 23rd March 2021, was valid. The submission by counsel for the Appellant to the effect that the notice of appeal filed on the 22nd March 2021 “was incompetent and could not invoke the jurisdiction of the Court of Appeal” can, therefore, not be correct. We further hold that the submission by counsel for the Appellant that “the decision by the Court of Appeal based on a Notice of Appeal that Page 71 of 136 was incompetent and was also not before them goes to jurisdiction. The Court of Appeal had no jurisdiction to entertain or deal with the notice of appeal filed on the 22nd March 2021”, cannot be correct. It is not entirely surprising that counsel misconceived the import of rule 17 of the Court of Appeal Rules. This is so because, counsel, in his statement of case before this court, failed to refer and discuss the two leading cases of Republic vs. High Court, Accra (Commercial Division); Ex parte Hesse (Investcom Consortium Holdings SA & Scancom Ltd Interested Parties) (supra) and Nana Kwasi Broni & Another vs. Kwame Kwakye & 2 Others which specifically discussed the meaning and application of rule 17 of the Court of Appeal Rules. We hold, therefore, that the notice of appeal filed by the Respondents on the 11th March 2021 was effectively terminated or withdrawn by the filing of the notice of discontinuance and withdrawal on the 22nd March 2021. We hold, as a consequence, that the notice of appeal filed on the 22nd or 23rd March 2021, was valid and properly invoked the jurisdiction of the Court of Appeal. [8.6]. At any rate, both notices of appeal contain the omnibus ground of appeal that the judgment is against the weight of evidence. This ground of appeal has severally been explained to imply a duty on the appellate Court to review the entire record of appeal with a view to determining whether or not in the light of the totality of the evidence on record, the trial Court and or the first appellate Court came to the right conclusion within the meaning of the applicable law. This Court is bold to say that even in the absence of the omnibus ground of appeal, every appeal by its nature imports a duty to Page 72 of 136 re-hear the whole case by way of a demand for a review of the entire record of appeal to establish whether or not substantial justice has been done to the parties in the light of the evidence adduced and placed before the Courts. Thus, in Adu Bediako vs. Kwame Acheampong [2018] DLSC 4128, this Court held that: “In this instant appeal, we realize that, the Defendant herein never used the magic words “judgment is against the weight of evidence.” However, we are satisfied that, the principle encompasses all appeals as being by way of re- hearing as was stated in the case of Tuakwa v Bosom and stated earlier in the Akufo-Addo v Catheline line of cases thus: “an appeal is by way of re-hearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial Court is against the weight of evidence.” From the combined effect of the grounds of appeal referred to supra, it is clear that, since an evaluation of the entire record of appeal shows conclusively that, what the Defendant requires is a re-hearing of the matter based on the evidence on record, we feel emboldened to look at the entire record, the lack of the use of the magic words “judgment is against the weight of evidence” notwithstanding. Where from the grounds of appeal, it is clear that an appellant invites the appellate Court to consider the appeal as a re-hearing based on the evidence such Page 73 of 136 as in the instant case, an appellate Court is obliged to consider the appeal as such”. [8.7]. This implies that, the judgments of this Court should hardly be based on mere technicalities and that the duty cast upon us is to strive hard and consider the evidence adduced before the trial Court and determine whether the trial Court, as well as the first appellate court, has done substantial justice to the parties. Hence, whether this Court takes the view that the first notice of appeal is valid and that the second notice of appeal is not valid or that the first notice of appeal was validly withdrawn paving way for the second notice of appeal, the duty cast upon this Court does not change and that is to consider the whole record of appeal and do justice to the parties herein. This position of the law dovetails into the provision of rule 63 of the Court of Appeal Rules which states that: “Where a party to any proceedings before the Court fails to comply with these rules or with the terms of any order or directions given or with any rule of practice or procedure directed or determined by the Court, the failure to comply shall be a bar to the further prosecution of proceedings unless the Court considers that the non-compliance should be waived.” In terms of rule 63 above, it is my respectful view that it is within the discretion of the Court to determine whether or not a non-compliance with the rules, including rule 17, Page 74 of 136 should be waived. It is, therefore, within the competence of the Court to treat as properly withdrawn a notice of appeal even if the strict procedure outlined in the rules has not been followed by a party, subject to the nature of non-compliances that have been held to be outside the Court’s remit to waive. The Appellants have not made out a case against the exercise of discretion by the Court of Appeal in treating the notice of appeal filed on the 11th March, 2021, as withdrawn in the relevant circumstances. In any event, there is sufficient evidence on record to show that the appeal before the Court of Appeal was determined on the omnibus ground of appeal that the judgment appealed against was against the weight of evidence. The said ground of appeal was canvassed in the notice of appeal filed on the 11th March, 2021, which notice of appeal the Appellants argue was properly before the Court for consideration. Therefore, it is my humble view that the argument as to the competence or otherwise of the notice of appeal filed on the 22nd March, 2021, would be rendered inconsequential. [9.0]. LAND CLAIMED BY PLAINTIFFS: The whole appeal turns on the omnibus ground of appeal; that is, the judgment, subject matter of appeal, is against the weight of evidence. It is therefore the duty of this Court to carefully and thoroughly examine the evidence adduced by the parties and then determine whether in the face of the evidence on record and the relevant law, the judgment of the Court of Appeal is against the weight of evidence on record. In so Page 75 of 136 doing, and given the Plaintiffs/Appellants’ claim, I find it necessary to take a cursory look at the endorsement of the writ and the statement of claim. The Plaintiffs’ writ of summons was issued on the 31st March 2005 together with an accompanying statement of claim. See page 1 of volume 1 of the record of appeal (ROA). On the 17th December 2013, the Plaintiffs amended their statement of claim as disclosed at page 88 of volume 1 of the ROA. The Plaintiffs did not amend the writ of summons. The Plaintiffs claimed the reliefs endorsed on the writ as quoted in paragraphs 3 above. The Plaintiffs have pleaded at paragraphs 3 and 4 of the amended writ that: 1. “The Plaintiffs state that upon acquisition, the late Agyekum Okyere Mainoo alias Nana Okyere Agyekum was issued with an allocation note by the Esreso Stool”. 2. The Plaintiffs state that a lease was subsequently engrossed in favour of the late Agyekum Okyere Mainoo. [Emphasis]. At paragraphs 6 and 7, it is pleaded that: 6. “The plaintiffs state that in his last Will and Testament dated 4th October 1989 the late Agyekum Okyere Mainoo alias Nana Okyere Agyekum devised the land described in paragraph 2 supra to them. Page 76 of 136 7. The plaintiffs state that the said Will of Agyekum Okyere Mainoo has been admitted to probate by the High Court and the property in dispute duly vested” [Emphasis] It is clear from the pleadings quoted above, that the Plaintiffs do not claim the land in question as though they were the original purchasers. The root of their title is derivative; in that, the Plaintiffs derive their title solely from an alleged acquisition by their deceased father, Agyekum Okyere Mainoo, by virtue of which their father made a Will and devised his interest in the said land to the Plaintiffs/Appellants herein. A person who claims land in this circumstance must prove his root of title accordingly. As long ago in EHURAN v. ATTA [1960] GLR 224, this Court held that: “The action being effectively one for title to land, the burden of proof was on the plaintiff”. Again, in OGBARMEY-TETTEH v OGBARMEY-TETTEH [1993-94] 1 GLR 353, the Supreme Court held that: “In an action for a declaration of title, a plaintiff who failed to establish the root of his title must fail because such default was fatal to his case”. It is very important, therefore, that the evidence given by the Plaintiffs which is on record must show, among others, that: Page 77 of 136 (1) the land in dispute was allocated to the late Agyekum Okyere Mainoo, the deceased father of the Plaintiffs, (2) a lease was subsequently engrossed in favour of the late Agyekum Okyere Mainoo and finally, (3) that the very land allocated to the late Agyekum Okyere Mainoo was the one devised by him in his last Will and Testament. The evidence of the Plaintiffs was given to the trial Court by their attorney. See page 171 volume 1 of the record. The said Allocation Note which was dated the 5th day of September 1977, was tendered in evidence as exhibit B and can be found at page 332 of volume 2 of the record. A close scrutiny of this Allocation Note shows, without a shred of doubt, that the land sought to be allocated therein was not described in any way or form at all. The Plaintiffs have also pleaded, as stated above, that the said land, allegedly acquired by their father the late Agyekum Okyere Mainoo, was devised to them by their late father in his last Will and Testament. The Probate and the said Will were received in evidence as exhibit F and F1 respectively. Paragraph 18 of the Will is the enabling paragraph which purported to devise the land in question in the following words: Page 78 of 136 “18. I devise and bequeath my self-acquired piece or parcel of land for Medical and Industrial Gas Processing Factory at Esreso, Lake Road unto Kofi Wusu and Kwasi Gyamanin the children of Grace Boakye.” It must be placed on record that, these two documents; the Allocation Note and the Will, are the most primary documents which purport to serve as the documents from which the Plaintiffs trace their root of title to the property in dispute. Notwithstanding the Plaintiffs’ averment at paragraph 4 of their amended statement of claim “that a lease was subsequently engrossed in favour of the late Agyekum Okyere Mainoo” after the alleged acquisition, no such lease was tendered by the Plaintiffs bearing the name of the said Agyekum Okyere Mainoo. The lease tendered by the Plaintiffs, exhibit E herein found at page 339 of the record, does not even mention the name of Agyekum Okyere Mainoo. (The said lease will be the subject of analysis hereafter). [9.1]. Allocation Note and Will: The question which I wish to ask is that, since the most primary documents from which the Plaintiffs trace their root of title; The Allocation Note and the Will, failed to describe the land which the Plaintiffs alleged that their father devised to them, from where did the Plaintiffs come up with the description which they endorsed on the writ of summons? In the writ the Plaintiffs say that they seek a: Page 79 of 136 “Declaration that the piece and parcel of land measuring 5.15 acres situate and lying in-between the Kumasi-Sewua and Kumasi-Jachie motor roads in the City of Kumasi and bounded by the Kumasi-Sewua motor road and an open space on the North-East, Plot No.2 on South-East, Kumasi-Jachie road on the South-West and by the junction of the said roads on North-West formed part of the estate of the late Agyekum Okyere Mainoo alias Nana Okyere Agyekum”. Who narrated the above description to the Plaintiffs? From where did the Plaintiffs get the information that the land, allegedly, acquired by their deceased father in 1977, measured 5.15 acres when the Allocation Note, in particular, failed to mention any such acreage? And, what is the basis for a Court of law to believe such evidence which is nothing but a repetition of averments contained in a statement of claim? Whatever description that a party places on a piece or parcel of land which he claims, must, as a matter of law, derive from the primary document given to him by his grantors who were the original owners of the land being claimed. A grantee of land, cannot on his own accord and without the consent of his grantee, decide to grant to himself land which the grantor, the land owner, has not conveyed to him and, where the title is traced to a particular document, the said document must bear and describe the land conveyed therein. That is not the case with the Plaintiffs in the instant matter. The natural and most reasonable conclusion, therefore, is that the Plaintiffs herein have not shown any genuine source of title that is legally worthy of belief in the instant case, and Page 80 of 136 this Court, must take their evidence with regard to the source of their title, with a pinch of salt. Indeed, in respect of the Will, the following answers were given by the Plaintiffs’ attorney with regard to questions put to him by counsel for the Defendants: “Q: The plaintiffs are claiming the disputed property base (sic) on the Will of Nana Agyekum Manu dated 4/12/1989 A: Yes, that is so Q: Have you tendered that Will in this court A: Yes. It is Exhibit ‘F’ Q: The devise given rise to this dispute is contain in paragraph 18 of the Will A: I only tendered the Will I do not know the content Q: You are speaking as an Attorney for and on behalf of the plaintiffs. Everything the plaintiffs want to say, they put it into your mouth to say for them A: That is true Q.: The Will that you tendered only mention a parcel of land for medical and Industrial Gas Processing Factory at Esreso Lake road A: That is true Page 81 of 136 Q: In the Will, the land was not described apart from saying that it is at Esreso Lake road A: That is so Q: No site plan was attached to the Will A: The Will was prepared and taken to the Manhyia for the site plan to be made Q: You also tendered a Vesting Assent as Exhibit “F2” A: Yes, that is so Q: That Vesting Assent also describes the property as Industrial Gas Processing Factory. It did not mention the medical A: That is true. The plaintiffs say they need the Industrial Gas Processing Factory then the medical hence the medical did not appear in the Vesting Assent” At pages 201 to 202 of the Record of Appeal”. Clearly, the Plaintiffs’ attorney admitted that the land being claimed by the Plaintiffs, which had been devised to them in the Will, was not described in the said Will. Again, the Plaintiffs through their attorney admitted that there was no site plan attached to the land in question which described the said land. The Plaintiffs’ attorney, further, made admission to the effect that the land claimed by the Plaintiffs has not been described in the Vesting Assent, Exhibit F2, tendered in evidence by them. The admissions made Page 82 of 136 herein are clear and unequivocal. I also find that in both the Will and the Vesting Assent, no plot number was stated. Hence, there is no description of the land claimed by the Plaintiffs whatsoever. [9.2]. Ground Rent: Further, in proof of their title to the land, the Appellants tendered receipts, which were received and marked exhibits C, C1, C2, C3 and exhibit D. These receipts, the Appellants claim, represent acknowledgment by the Administrator of Stool Lands, of Ground Rent paid by the Plaintiffs. See page 178 for the evidence in chief of the Appellants on the receipts. Exhibit C, is dated the 8th January 1993. The amount captured on it is ₵28,560.00, and it is described as “being stool revenue brought to account in respect of Ground Rent on plot No. 1 Industrial Area at Esreso for 1/4/81- 31/3/93”. Exhibit C1 is dated 20th May 1994, and it is for the payment of the sum of ₵207,500.00 “being stool revenue brought to account in respect of Ground Rent on plot No.1 Esreso for 1/4/93 – 31/3/94”. Exhibit C2 is dated the 21st May 2004 and it is for the payment of ₵631,800.00 “being stool land revenue brought to account in respect of Ground site for Gas Processing Factory at Esreso for 1/4/2004 – 31/3/2005”. Exhibit C3 is dated the 8th day of February 2005 and it acknowledges payment of ₵631,800.00 “being stool land revenue brought to account in respect of Ground site for Gas Processing Factory at Esreso for 1/4/2005 – 31/3/2006. The payments on these receipts were, allegedly, made by Agyekum Okyere Mainoo. Exhibit D is for the payment of Page 83 of 136 GH₵500 “being stool land revenue brought to account in respect of Ground site for Gas Processing Factory at Esreso.” The amount on exhibit D was paid by the Plaintiffs herein. From these receipts, it is very clear that the land for which the ground rents were paid was not described. From exhibits C and C1, the narration was that the payments were made for “plot No. 1 Industrial Area at Esreso”. Exhibit C2 and D described the payment as having been made in respect of a “site for Gas Processing Factory at Esreso”. In this regard, the answers given by the Plaintiffs’ Attorney are very relevant: (See pages 205 to 206 volume 1 of the record). Q: Again, some of the receipts you have tendered as evidencing payment in respect of the plot you are claiming, the number on it is Plot No.1 A: If it is plot 1 then it is a mistake. All the receipts bear Plot No.5 Q: I am putting it to you that on exhibits C and C1 which you tendered in this Court on the 2/2/16 as being payment to the Administrator of Stool Lands as ground rent, the plot number stated is Plot No.1 Industrial Area, Esreso A: I paid for Plot 5. The fault may be from whoever wrote the receipt which are marked as exhibit C and C1. Page 84 of 136 Q: The other remaining two receipts C2 and C3 no plot number is quoted for them. So, if you say you paid for plot 5, it is a lie. A: I told them but they did not write it and I am illiterate. It is clear from the above answers given by the Plaintiffs’ Attorney that, the land in dispute is not the land for which the Plaintiffs, allegedly, produced exhibits C series. Besides, I find that these exhibits do not describe the land which the Plaintiffs are claiming. Indeed, the trial judge, contrary to the principle established in Dam vs Addo, accepted a case different from that which the Plaintiffs pleaded in their writ and statement of claim. In DAM v. J. K. ADDO AND BROTHERS [1962] 2 GLR 200, this Court firmly established the principle of law that: “A Court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with, that which the party himself puts forward, whether he be the plaintiff or the defendant”. [9.3]. There is no evidence from the records that the land described in the endorsement of the Plaintiffs’ writ of summons and repeated in paragraph 2 of the amended statement of claim, was acquired by the late Agyekum Okyere Mainoo, who was the father of the Plaintiffs herein. The assertion made by the Plaintiffs that their late father acquired the land endorsed on the writ and pleaded in paragraph 2 of the amended Page 85 of 136 statement of claim, has been denied by the Defendants in this matter. At paragraph 10 of their amended statement of defence, the Defendants pleaded that: “10. The Defendants shall state that the Plaintiffs are not the owners of the subject-matter and if they have any land near the area, (which is denied) the same is different from the Defendants’ respective land” Section 14 of the Evidence Act, 1975, NRCD 323 provides that: “14. Allocation of burden of persuasion Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. Again, section 17 of NRCD 323 also states that: “17. Allocation of burden of producing evidence Except as otherwise provided by law, (a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; Page 86 of 136 (b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact”. The effect of these provisions is that once the Defendants have denied the Plaintiffs’ claim, it becomes the duty of the Plaintiffs to adduce that degree of evidence which has the potency of convincing the court, on the preponderance of probabilities, that, in fact and in law, the land being claimed by them was acquired by their late father and also devised to them in the Will of their deceased father. Thus, in ANANE and Others v. DONKOR and Another AND KWARTENG and Others v. DONKOR and Another (CONSOLIDATED) [1965] GLR 188, it was stated by this Court in holding (1) that: “A claim for declaration of title or an order for injunction must always fail, if the plaintiff fails to establish positively the identity of the land claimed with the land the subject-matter of his suit.” Subsequent jurisprudence from this Honourable Court has settled that in an action where the identity of the subject matter is not in dispute, the courts would not insist on a mechanical application of the principle enunciated in ANANE v DONKOR (SUPRA). Therefore, in IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU v KOTEY [2003- 2004] 1 SCGLR 420, this Court, speaking through Wood JSC (as she then was) expressed itself at pages 437- 438 of the report as follows: Page 87 of 136 “I think the Court [below] erred in applying the principle enunciated in Anane v. Donkor; Kwarteng v. Donkor (Consolidated) [1965] 1 GLR 188, SC to the facts of this case. Undoubtedly, the general principle enunciated therein, namely (as stated in the headnote) that; a claim for the declaration of title or an order for injunction must always fail, if the plaintiff fails to identify positively the identity of the land claimed with the land the subject matter of his suit; is sound law, but applicable only in appropriate cases. I would therefore not advocate for a slavish application of this principle even where the identity or boundaries of the land claimed is undisputed. In land claims, where the identity or the boundaries the subject matter as pleaded is admitted by an opponent, the elementary principle which rather comes into play is that which was expounded in Fori v Ayirebi [1966] GLR 627, SC, namely, that where the averments were not denied no issue was joined and no evidence need to be led on them.” See also, OBLIE & Others v LANCASTER [2017-2020] 2 SCGLR 485; ANDREWS NARH-BI (Substituted by John Nyongmo Obodai Bedai) & Others v ASAFOATSE KWETEY AKORSORKU III (Substituted by Asafoatse Kwetey Nartey-Wayo Akamisa II) Civil Appeal No. J4/28/2022 Delivered on 27th July, 2023. As shown above, exhibit B, the Allocation Note, as well as exhibit F1, which are the foundation documents from which the Plaintiffs trace their root of title to the land in Page 88 of 136 question, failed to describe the land. Exhibits C and C1 show that the said payment of ground rent was made in respect of plot number 1 which is entirely different from the land which the Plaintiffs’ Attorney testified to be the land claimed by the Plaintiffs, that is plot number 5, although the said plot number 5 is not endorsed on the Plaintiffs’ writ of summons. Exhibits C2 and C3 also failed to describe the land claimed by the Plaintiffs. The logical inference, therefore, is that the Plaintiffs have failed to describe the land which they claim. The learned Justices of the Court of Appeal observed in their Judgment, at page 653 to 654 of the record that: “As submitted on behalf of the Defendants, the issue before the trial Court was not whether the parties were claiming the same land, but whether the land allocated to the Plaintiffs’ late father in 1977, and devised to them in his will in 1989, was the land in dispute. As pointed out on behalf of the Defendants, neither the allocation note, Exhibit ‘B’, nor the Will, Exhibit ‘F1’, paragraph 18, has any description of the land allocated in 1977. These documents do not contain anything showing the size or exact location of the land allocated by the Esreso stool. The evidence, particularly Exhibits ‘C’ series, receipts of payment of rent to the Stool Lands, also described the land variously as Plot 1, Gas Processing Factory. Without any description of the land in the primary document, Exhibit ‘B’, or in paragraph 18 of Exhibit ‘F1’, one wonders how the Plaintiffs Page 89 of 136 arrived at the size and description of land allocated to their late father in 1977, as contained in their writ of summons filed on 31st March 2005. It is true that where land is not verifiable by a scientific survey plan, physical objects may be used to describe it as held in Assafuah case (supra), or that overt acts of possession could be used to identify the land. In the instant case, there is no doubt that at the time of the allocation to the Plaintiffs’ late father, Esreso had no layout. This notwithstanding, one would have expected that the allocation note would have a description of the land allocated by reference to either its size, exact location within Esreso or by physical features. This was however not done, and as rightly submitted on behalf of the Defendants, the land allocated in 1977 is uncertain and cannot be linked to the land in dispute. Once again how did the Plaintiffs come by the description of the land by the various physical features when their primary document had none?” The Court of Appeal then concluded at page 655 volume 2 of the record that: “As the allocation note and paragraph 18 of the Will did not describe the land either by any physical features, dimension or even give the size or exact location of the land, the question again is how did the Plaintiffs come by their description in paragraph (a) on the writ of summons? They did not also show that their late father or they themselves were ever in possession or that they were ever shown Page 90 of 136 the land before the action. Any description of their land must have its basis in their primary document Exhibit ‘B’.” The observation by the learned Justices of the Court of Appeal is fully supported by the evidence on record and this Court should not disturb the said findings made by the intermediate appellate court. Meanwhile, the Appellants, by their writ of summons issued from the registry of the trial High Court, claim the parcel of land devised to the Appellants by their late father in the following terms: “(a) Declaration that the piece and parcel of land measuring 5.15 acres situated and lying in-between the Kumasi-Sewua and Kumasi-Jachie motor roads in the City of Kumasi and bounded by the Kumasi-Sewua motor road and an open space on the North-East, Plot No. 2 on South-East, Kumasi-Jachie road on the South-West and by the junction of the said roads on North-West formed part of the estate of the late Agyekum Okyere Mainoo alias Nana Okyere Agyekum [Appellants’ late father].” It is noteworthy that the Respondents, in their pleadings, strenuously disputed the identity of the land claimed by the Appellants. For instance, in paragraph 10 of the Page 91 of 136 amended statement of defence filed by the Respondents at the trial High Court (found at pages 91 to 94 of Volume 1 of the ROA), the Respondents averred that: “10. The Defendants [Respondents herein] shall state that the Plaintiffs [Appellants herein] are not the owners of the subject-matter and if they have any land near the area (which is denied) the same is different from the Defendants (sic) respective land.” Having put in issue the identity of the subject matter of the suit, a duty was cast upon the Appellants to lead sufficient evidence to establish the identity of the parcel of land that was allocated to the Appellants’ late father and claimed by the Appellants. The Respondents, who were in possession of the land in dispute, counterclaimed for declaration of title to the portions of the disputed land, respectively, occupied by the Respondents. The Court of Appeal reasoned that in the light of these facts and the evidence on record, the issue for determination by the trial High Court was whether the parcel of land allocated to the Appellants’ late father in 1977 and devised to the Appellants in their late father’s will of 1989, was the land in dispute, and not whether or not the parties were laying claim to the same parcel of land. Consequently, the Court of Appeal concluded that the learned trial Judge erred in identifying and determining the real issue before the court. Accordingly, the Court of Appeal found that the primary Page 92 of 136 documents upon which the Appellants founded their claim were the allocation note of 1977 and the Will made by the Appellants’ father in 1989, Exhibits B and F1 respectively. Therefore, considering that the Appellants claim a parcel of land whose description or identity as contained in the writ of summons is different from that contained in these primary documents, the Court of Appeal inquired how the Appellants came by the identity and description of the parcel of land they now claim. The Court of Appeal concluded that the Appellants had failed to address this significant lapse in the Appellants’ case and therefore, the Appellants were not entitled to their claim. My Lords, this conclusion was reached by the Court of Appeal in the proper discharge of their duty as an appellate court. In OKINE and Another v AMOAH VI [2013-2014] 2 SCGLR 1358, the Supreme Court, dealing with a similar instance, expressed at page 1365 of the report that: “The Court of Appeal in reviewing the pleadings and evidence on record came to the conclusion that the real issue before the Court was a dispute on the boundary line between the two parties. The defendants set down as one of his grounds of appeal that: The Court of Appeal erred in law in setting up a claim for the plaintiff and basing its judgment on that ground citing the case of Dam v Addo [1962] 2 GLR 200. Page 93 of 136 We find no merit in this ground of appeal. An appeal is by way of rehearing, and an appellate Court is in as a good position as the trial Court to determine the real issue in controversy from the pleadings and evidence and to draw inferences from the specific facts that are established”. [9.4]. The finding by the High Court that the land occupied by the Defendant was the same land that was granted to the Plaintiffs’ father is not supported by the evidence on record, especially the documents which are the basis of the Plaintiffs’ claim; that is the Allocation Note and the Will of the Plaintiffs’ father. The Allocation Note does not describe the land claimed by the plaintiffs. The Will left by the Plaintiffs’ father does also not describe the land. A claimant who relies on documentary evidence to lay claim to a parcel of land is under a duty to ensure that the document upon which he so relies actually describes his land. As already pointed out, the Plaintiffs’ primary documents upon which they rely to plant their claims really, do not tell the land allegedly allocated to them. Hence, it was not open to the trial judge to make her finding that the land occupied by the defendant was what was granted to the plaintiffs. The principle of nemo dat quod non habet is, therefore, inapplicable to the facts of this case. A claimant can only rely on the principle of nemo dat quad non habet if and only if he has been able to prove that a parcel of land earlier granted to him has, subsequently, been granted by the same grantor to another person. The principle of Page 94 of 136 nemo dat quod non habet does not apply where the claimant has failed to show the particular land, allegedly, granted to him. [9.5]. The land being claimed by the 17th, 25th and the 26th Respondents by their counterclaim is described as plots number 5A and 5B. The 25th and the 26th Respondents are husband and wife. The 17th Defendant tendered in evidence exhibit 3, which can be found at page 353 volume 2 of the record, to show that the land which he acquired from the Esresohene is described as plot number 5A. This description, unlike the Plaintiffs, is consistent with the averment in paragraph 7(i) of the amended statement of defence filed on the 31st January 2014 on behalf of the Defendants. In addition to exhibit 5A, the 17th Respondent, Jesse Maputo, also tendered in evidence exhibit 4 which is a site plan of the land he claims. This can be found at page 355 volume 2 of the record. In addition, the 17th Respondent tendered in evidence exhibits 5, 5A to 5F which are receipts evidencing the payments of ground rent for plot numbered 5A. This can be found from pages 355 to 361 volume 2 of the record. The 25th and 26th Defendants also tendered in evidence exhibit 6 which is receipt for the payment of drink to the Esresohene on the 6th August 2003, specifically in respect of plot number 5B Anwonmaso Esreso Stool land. There is also exhibit 7 which is a site plan describing the land allocated to 25th Defendant. There is also in evidence exhibit 8, which is a Letter of Permission from the District Assembly for the 25th Respondent to build a temporary structure on her land. There are also exhibits 10, 10A and 10B which are receipts tendered by the 25th Defendant evidencing payment of ground rent to the Administrator of Stool Lands, Page 95 of 136 specifically for plot number 5B. I find that these are very cogent evidence given by the Respondents which cannot be ignored by any Court desiring to be fair and do justice to the parties. [9.6]. As pointed out earlier, the Plaintiffs pleaded at paragraph 4 of their amended statement of claim that after being issued with an Allocation Note in 1977, “a lease was subsequently engrossed in favour of the late Agyekum Okyere Mainoo”. The Defendants denied this averment in paragraph 2 of their amended statement of defence. The logical follow-up is that the Plaintiffs were required to prove their assertion by cogent evidence. Nonetheless, the alleged lease which was engrossed in favour of the late Agyekum Okyere Mainoo, after being issued with the Allocation Note, was never tendered in evidence at all. The Plaintiffs, therefore, failed completely to prove the averment in paragraph 4 of their statement of claim. Consequently, the Plaintiffs’ claim, as far as the averment in paragraph 4 of the statement of claim is concerned, fails as required by section 17(a) of the Evidence Act. [9.7]. It was also averred by the Plaintiffs at paragraph 8 of their amended statement of claim that: Page 96 of 136 “8. The Plaintiffs aver that subsequently; a lease has been engrossed in their names and duly executed by the Esreso Stool as Lessor and the Asantehene as the confirming party and themselves as the Lessees”. The said lease was put in evidence as exhibit ‘E’ and can be found at page 339 of the record. At page 181 of the record, the Plaintiffs’ Attorney gave evidence to the effect that at the time the instant action was instituted, there was no lease endorsed in the name of the Plaintiffs. He stated that the father of the Plaintiffs, the late Agyekum Okyere Mainoo, had put in an application for a lease before he died. However, as pointed out earlier in this judgment, no such application for a lease by the late father of the Plaintiff was tendered in evidence in proof of the assertion. Under cross examination, the following answers were given by the Plaintiffs through their Attorney as appear at page 199 of the record: “Q: You told the Court that before the institution of this case you had not acquired a lease A: That is true. Q: Can you tell the Court exactly when you acquired the lease A: I had same in 2012. Q: Are you aware that there is an injunction placed on the subject-matter Page 97 of 136 A: No”. At page 202 volume 1 of the record, the cross examination continues in respect of the lease, exhibit ‘E’: “Q: You procured a lease on the property dated 3/8/2012 marked as exhibit E A: That is true. Q: This suit was instituted by the Plaintiffs in 2005 A: That is true Q: So, your indenture was procured seven (7) years after you brought the defendants to court. A: That is true, but the Testator of the Will applied to Manhyia before he died and my principals followed after the death of the Testator” I find that the admission of the lease, exhibit E, which was procured seven years after the action had been initiated by the Plaintiffs/Appellants was very unfair and prejudicial to the case of the Defendants/Respondents; especially, given the fact that the original and primary source of the claim to title to the land by the Plaintiffs, the Allocation Note as well as the Will of the Plaintiffs’ father, completely failed to describe the land claimed by the Plaintiff. Section 52(b) of the Evidence Act, 1975, NRCD 323 gives power to the trial court, to exclude such evidence with a potential prejudicial Page 98 of 136 effect from being admitted since their probative value is completely outweighed by the prejudice. The section reads as follows: “52. Exclusion of relevant evidence The Court may exclude relevant evidence if the probative value of the evidence is substantially outweighed by (a) considerations of undue delay, waste of time, or needless presentation of cumulative evidence; or (b) the risk that the admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues; or (c) the risk, in a civil action, where a stay is not possible or appropriate, that the admission of the evidence will unfairly surprise a party who has not had reasonable grounds to anticipate that the evidence would be offered”. I hold that the learned trial judge should have exercised her discretion to exclude the lease, exhibit E herein, from evidence as pointed out. In the circumstances, this Court will employ its powers given under article 129(4) to exclude exhibit E from the records with the effect that the Plaintiffs offered no cogent evidence to prove their claim to the land endorsed on the writ and statement of claim. Article 129(4) of the Constitution, 1992, states that: Page 99 of 136 “129. General jurisdiction of the Supreme Court (4) For the purposes of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any Court established by this Constitution or any other law”. [9.8]. FRAUD: At paragraph 5 and 5A of the amended statement of claim, the Plaintiffs pleaded the payment of ground rent in respect of the land. The Defendants denied this averment by the Plaintiffs at paragraph 4 of their amended statement of defence and pleaded that if any such receipt exists, the same is a forgery. In respect of the lease, exhibit ‘E’, the Defendants pleaded that it was obtained by fraud and misrepresentation. [9.8.1]. Receipt – Exhibit C3: The Plaintiffs’ Attorney gave evidence to the effect that the deceased father of the Plaintiffs died on the 11th June 2002. (See page 203 of volume 1 of the record). Exhibit C3, one of the receipts evidencing payment of ground rent, is dated the 8th February 2005 Page 100 of 136 and the amount on the said receipt is stated to have been paid by Agyekum Okyere Mainoo. The inference is that the said amount of ₵631,800.00 was paid by the late Agyekum Okyere Mainoo about three (3) years after he had died. This is humanly impossible and it is a clear case of fraud that a deceased person is able to pay money long after he had died. [9.8.2]. Lease – Exhibit E: It is also clear from the evidence quoted above that the Lease, exhibit E herein, was procured by the Plaintiffs/Appellants herein about seven (7) years after the instant suit had been instituted. In Isaac Antwi vs Obiri Yeboah Appiahene (Unreported) Civil Appeal NO. J4/10/2023 dated 18th May, 2023, this Court quoted with approval the definition of fraud by the learned editors of Halsbury’s Laws of England (5th ed.), volume 47 which can be found at page 16 paragraph 13 that: “The Court has never ventured to lay down, as a general proposition, what constitutes fraud. Actual fraud arises from acts and circumstances of imposition. It usually takes either the form of a statement of what is false or suppression of what is true.” At page 17 the learned editors write: Page 101 of 136 “A person is guilty of fraud if: (1) he dishonestly makes a false representation, and intends, by making the representation, to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss; (2) he dishonestly fails to disclose to another person information which he is under a legal duty to disclose and intends, by failing to disclose the information, to make a gain for himself or another or to cause loss to another or to expose another to a risk of loss; or (3) he occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, dishonestly abuses that position, and intends, by means of the abuse of that position, to make a gain for himself or another, or to cause loss to another or expose another to a risk of loss” In Nana Asumadu II (Substituted by Nana Darku AMPEM) & Another vs. Agya Ameyaw [2019-2020] 1 SCLRG 681, this Court defined fraud at page 695 of the report as follows: “In law, fraud is a deliberate deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. It is both a civil wrong and a crime. Fraud, be it civil or criminal, has one connotation. It connotes the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact, does rely to the harm of the victim. It is therefore criminal in nature even where it is clothed in civil garbs. Page 102 of 136 It should be borne in mind that, the Plaintiffs’ Attorney had admitted, under cross examination, as quoted above, that before the institution of this very suit in 2005, the Plaintiffs had no lease on the land; and that it was in 2012, almost seven (7) years after the institution of the present suit that the Plaintiffs procured the lease, exhibit E herein. It is, therefore, clear that the said lease was procured during the pendency of this litigation and purposely to give the Plaintiffs/Appellants an undue advantage over the Defendants/Respondents herein. In connection with the lease, exhibit E herein, PW1 who testified on behalf of the Plaintiffs/Appellants gave the following answer under cross examination. See page 214 and page 218 volume 1 of the record: “Q: I am putting it to you that as at the time you were signing the Lease (Exhibit E) in favour of the Plaintiffs you knew that there was a dispute pending before this Court in respect of the land. A: That is true. I signed the lease because I saw an allocation paper in 1975 Q: You have told this Court that you went to the Lawyer’s office to enquire about the pendency of the suit before you executed the lease. So, when you were executing the lease, did you inform Manhyia Palace about the pendency of the suit. A: No.” Page 103 of 136 As pointed out in this judgment, the Allocation Note which PW1 claims to be the basis of the Lease, did not describe the land granted the Plaintiffs’ father through whom the Plaintiffs claim. So, from where did the alleged Lessors in exhibit E get the description of the land stated in exhibit E? Again, what was the motivation for the execution of the Lease in favour of the Plaintiffs in the face of a pending litigation over the land? Why was the Manhyia Palace not informed of the pendency of litigation over the land? Why was the pendency of the litigation kept from the knowledge of the Manhyia Palace? These pieces of evidence put together, leads to no other conclusion than a desire of the Plaintiff to gain an undue advantage over the Defendants. The definition of fraud in the Nana Asumadu II case (supra) is worth repeating that: “In law, fraud is a deliberate deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. It is both a civil wrong and a crime. Fraud, be it civil or criminal, has one connotation. It connotes the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact, does rely to the harm of the victim. It is therefore criminal in nature even where it is clothed in civil garbs”. In Dzotepe v Hahormene III [1987-88] 2 GLR 681, Taylor JSC expounded the proposition in the following words: - "In Kerr on Fraud and Mistake 7th Edition at P 416 it is stated on the authority of De Grey CJ in Duchess of Kingston's Case [1776] 20 st Tr 355 at 357 that "Fraud is an intrinsic, collateral act, which vitiates the most solemn proceedings of Court of Page 104 of 136 Justice and Lord Coke is quoted as saying "it avoids all judicial acts ecclesiastical and temporal" In the words of Acquah, JSC (as he then was) in Frimpong and Another vs. Nyarko [1999-2000] 1 GLR 429, at page 437: “Fraud, as is well-known, vitiates everything, and when a Court of law in the course of its proceedings, has cause to believe that fraud had been committed, the Court is duty-bound to quash whatever had been done on the strength of that fraud. As Osei-Hwere JA (as he then was) said in In re West Coast Dyeing Industry Ltd, Adams v Tandoh [1984-86] 2 GLR 561 at 605, CA: “Fraud like cancer, calls for a swift remedy. It must be uprooted. Therefore, [when] fraud is brought to the court’s notice and there is credible evidence to support it the Court is obliged to deal with it swiftly and decidedly.” The House of Lords in Jonesco v Beard [1930] AC 298 at 301-302, HL put it this way: “Fraud is an insidious disease, and if clearly proved to have been used so that it might deceive the Court, it spreads to and infests the whole body of the judgment.” Page 105 of 136 Flowing from the above, it is my humble view that, this Court cannot endorse the Lease, exhibit E herein, because, clearly, it was obtained by fraud perpetrated by the Plaintiffs/Appellants herein in order for them to gain an unfair advantage over the Defendants/Respondents in this matter. [10.0]. RE-ZONING: From the records, one Emmanuel Owusu, a surveyor, was appointed by the trial Court to survey the land in dispute and prepare a composite plan. His report was received in evidence as exhibit CW1 as stated on page 161 volume 1 of the record. The Surveyor stated in his evidence (See page 161 volume 1) that he conducted the survey on the 28th May 2014 and that the Plaintiffs/Appellants’ site plan had not been approved before the Respondents were granted their land. The Surveyor also stated that it did not come to his notice that the Appellants’ father acquired his land in 1977. Evidence was given to the effect that the survey exercise was done with the aid of site plans presented by the Plaintiffs/Appellants and the Defendants/Respondents. Emmanuel Owusu stated in his evidence that block 5A is in the name of Jesse, whiles block 5B is also in the name of Madam Yaa Amoakowah. There is evidence that the Defendants’ site plan as well as Page 106 of 136 their physical description of the land they are claiming, conforms with the layout of the area. The Surveyor testified that after he had finished conducting the survey that he received a letter dated 17 June 2014 from the Plaintiffs informing him that the area where the land in question is situate had been re-zoned. However, the Planning Officer could not tell him, the Surveyor, when the re-zoning took place. The effect of the re- zoning was to merge the land described as Plot number 5A and 5B together with Plot No. 5C into one composite plot Number 5 which the Plaintiffs/Appellants claim. [10.1]. On the question of re-zoning, the Court of Appeal, observed in their judgment found at page 652 of the record as follows: “The Surveyor’s report, exhibit CW1, can be found at page 326 to 329 of the record of appeal. It is dated 14th July 2014, even though from answers given in cross examination, the survey exercise was carried out on 28th May 2014. Exhibit CW2, at page 330 of the record, was tendered in evidence through the Surveyor by counsel for the Defendants. This document, written by the District Chief Executive of Bosomtwi District Assembly and signed on his behalf by the Town and Country Planning Officer, was dated 17th June 2014. Even though received by the Surveyor after he had carried out the survey exercise, for some curious and unexplained reasons, this document found its way into the survey report exhibit CW1 and the composite plan. What is intriguing is that exhibit CW2 was addressed to counsel for the Plaintiffs and copied to many organizations, Page 107 of 136 including the Lands Commission, but no copy was given to the Defendants or their counsel. Again, even though this document was addressed to counsel for the Plaintiffs, he failed to tender it though it reflected in the survey report, exhibit 1. It was exhibit CW2, which alleged a re-zoning that purportedly revised Plots 5A and Plot 5B into Plot 5. From the answers given by the Surveyor under cross examination by counsel for the Defendants, it is clear that there is no indication on exhibit CW2 of the date of the purported re-zoning, and further that no plan was attached to the letter. It was also clear from answers given by the Surveyor that no record of any such re- zoning was made available or is shown to exist at the Survey and Mapping Division of the Lands Commission, and further that the Division had not received any request for re-zoning neither had it submitted any plan on the alleged re-zoning to the Town and Country Planning of the Bosomtwi District Assembly. From the above, there was no basis for exhibit CW2, submitted after the survey exercise, and without notice to the Defendants, to reflect in exhibit CW1 and the composite plan. The fact that it came from the District Chief Executive did not qualify it for the inclusion of its content in exhibit CW1. This document, in our view, is a self-serving document, and in the absence of any other evidence from the Plaintiffs to support the alleged re-zoning, the aspect of exhibit CW1 which referred to any re-zoning based on exhibit CW2 is hereby expunged from the report, exhibit CW1 since there was no basis for it”. Page 108 of 136 [10.2]. In my humble and respectful opinion, the above inference drawn by the Court of Appeal, is fully supported by the evidence on record for which reason, this Court ought to be extremely slow in coming to a conclusion which is different. It is very strange indeed for the Plaintiffs/Appellants, whose primary source of claim to title to the land occupied by the Defendants/Respondents, which is the Allocation Note and a Will left by their deceased father, which failed to describe the land, allegedly, acquired by their father, to suddenly get the District Chief Executive for the area, to inform a Court appointed Surveyor by a letter, addressed to the Plaintiffs/Appellants but not the Defendants/Respondents, that the land occupied by the Defendants has been re-zoned and that as a result thereof, the alleged and strange re-zoning had merged the Defendants/Respondents’ land into an alleged land now belonging to the Plaintiffs/Appellants. Lands are not acquired by re-zoning. The manner by which land may be acquired has, long ago, been settled by case law; and, this manner, certainly, does not include re-zoning. See Ohimen vs. Adjei [1957] 2 WALR 275. [11.0]. POSSESSION: My lords, one of the cardinal principles of our jurisprudence on land law is that, a person who claims title to land must show that after acquisition, he took possession of the land in the full glare of members of the public. At paragraphs 9, 10, 11, 12 and 13 of Page 109 of 136 their amended statement of claim, the Plaintiffs have averred to various acts of the Defendants on the land which, the Plaintiffs claim, amounts to trespass. The Plaintiffs therefore pray, as part of their reliefs, for recovery of possession of the land in question. From their amended statement of claim, there is not a single pleading to the effect that the Plaintiffs or their father through whom they claim, ever took possession of the land which was, allegedly, acquired in 1977. Under cross examination, the Plaintiffs’ Attorney gave the following answers to questions put to him, as appear at page 180 volume 1 of the record: “Q: Why did the Plaintiffs sue all the Defendants A: The land which they occupy was meant for Industrial purpose so we need Court order to eject them from the land for the purpose for which the land was acquired. Q: When you found the Defendants on the land did you approach them to give you possession. A: Yes, I informed them individually. Q: What was their response A: The Defendants were about 26 then. Out of this number only two (2) claimed they had the land from the elders of Esreso. The rest claimed they Page 110 of 136 are squatters and any time Plaintiffs need their land they would leave the land for the Plaintiffs”. The significance of the above piece of evidence from the Attorney of the Plaintiffs/Appellants is that it constitutes an unambiguous admission by the Plaintiffs/Appellants that the land is in the possession of the Defendants/Respondents herein. Again, the above piece of evidence constitutes an admission of the averments made by the Defendants/Respondents in paragraphs 8 to 10 of their amended statement of defence which states as follows: 8. “Paragraph 10 of the amended statement of claim is admitted. The Defendants shall state that they are lawful owners of the piece or parcel of land they operate on having acquired same from the lawful authority and they have lawfully resisted the trespass of the Plaintiffs. 9. Paragraphs 11, 12, 13 and 14 of the amended statement of claim are denied. The 17th Defendant shall state that he is yet to commence construction on his plot whiles the 25th and 26th Defendants state that they have put up their structures in accordance with terms their permit granted to them by BAKDA. Page 111 of 136 10. The Defendants shall state that the plaintiffs are not the owners of the subject- matter and if they have any land near the area (which is denied) the same is different from the Defendant respective land”. [11.1]. Nana Osei Kuffuor, the immediate past Akwamuhene of Esreso gave evidence for himself and also on behalf of 1st Co-Defendant, 17th, 25th and the 26th Defendants. He testified to the effect that the 1st Co-defendant is the past Gyasehene of Esreso. He stated in his evidence in chief that he knows plots number 5A, 5B and plot number 5C. He testified that plot number 5A is owned by the 17th Defendant/Respondent Jesse Maputo. He said that the 25th and the 26th Defendants/Respondents own plot number 5B. The witness tendered in evidence exhibits 1 and 2 which are the reports on a search conducted on the whole of plot 5 in May 2006 and the result was that the plot does not affect any recorded transaction and also conforms with the Planning Scheme covering the area. Exhibit 3 is an Allocation Note given and signed by the Esresohene on the 30th April 2002. It shows that Plot 5A had been allocated to Jesse Maputo. The Allocation Note was accompanied by a Site Plan which was received in evidence and marked exhibit 4. Exhibits 5, 5A to 5E are receipts evidencing the payment of Ground Rent to the Administrator of Stool Lands by Jesse Maputo. Exhibit 6 was tendered to show that an amount of ₵54,000,000.00 was paid by Madam Yaa Amoakowaa on the 6th August 2003 to Nana Osei Yaw Ababio, the Esresohene who Page 112 of 136 then allocated plot number 5B to Madam Yaa Amoakowaa. Exhibit 7 is a Site Plan demarcating the said land to Madam Amoakowaa. Exhibit 8 is a letter of Permission given by the Bosomtwi-Antwima Kwanwoma District Assembly to Madam Amoakowaa granting her the right to erect a temporary structure on the land to enable her operate a Chop-Bar on the plot of land. This letter is dated the 16th September 2004. Exhibits 10, 10A and 10B are receipts of the payment of Ground Rent by Madam Amoakowaa to the Administrator of Stool Lands. Nana Osei Kuffuor also stated in his evidence that the 17th Defendant/Respondent, Jesse Maputo, moulded and placed on the land, plot 5A, about 6000 pieces of blocks, some of which have been stolen. He also gave evidence that the 25th and 26th Defendants/Respondents operate a Restaurant and a Drinking Bar on their land, plot number 5B. The name of the Restaurant was given as “Holiday Inn”. The witness stated positively that the lands in question do not belong to the Plaintiffs/Appellants or their father. [11.2]. It has always been the position of the law that a Defendant who raises a counterclaim in his statement of defence carries the same standard and burden of proof as far as his counterclaim is concerned; that being so, a Defendant/Counterclaimant is required by law to adduce cogent evidence to prove his counterclaim on the preponderance of probabilities. See Jass Co. Ltd & Another vs. Appau & Another [2009] SCGLR 265. Page 113 of 136 In the instant matter, the Plaintiffs/Appellants traced their title to the land in question from an Allocation Note, allegedly, given to their father in 1977 when he was, allegedly, granted the land. The father of the Plaintiffs/Appellants devised his interest in the said land to the Plaintiffs/Appellants in a Will prepared by him. Unfortunately, the said Allocation Note did not contain any description of the land allocated therein. No Site plan accompanied the Allocation Note to assist in the identification of the said land. Receipts showing the payment of Ground Rent were tendered. Again, the land in respect of which the alleged Ground Rents were paid was not described coherently. During cross examination, the Plaintiffs/Appellants’ Attorney stated that the payments of the Ground Rent were in respect of plot number 5. However, plot number 5 was not captured on any of the receipts. Instead, some of the receipts bore plot number 1 and others did no bear any plot number at all. One of the receipts, as shown above, was fraudulently procured; in that, the amount on the receipt was paid by the deceased father of the Plaintiffs/Appellants years after the father had died. A lease, exhibit E herein, was procured in fraudulent circumstances during the pendency of the instant suit without the knowledge of the Defendants/Respondents, as shown above. Further, there is not an iota of evidence to show that the Plaintiffs/Appellants or their father has ever been in occupation of the land in question. In Yehans International Ltd vs. Martey Tsuru Family & Another [2019-2020] 1 SCLRG 838, the Court re-stated the principle that: Page 114 of 136 “A person who seeks declaration of title to land must prove; (i) his root of title; (ii) the mode of acquisition of the land and (iii) the various acts of possession exercised over the disputed land. Proof of title to land may be proffered by either traditional evidence or by overt acts of ownership in respect of the land in dispute. In order to prove ownership through possession of the land, the possession must be long, peaceful and uninterrupted. Again, a person who relies on a derivatory title must prove the title of his grantor.” [Emphasis]. [11.3]. There seems to be a misunderstanding of the concept of possession in our land law. Receipts evidencing an alleged payment of ground rent seems to be elevated and equated to possession. That is to say, the fact that a person claims to have paid ground rent has been interpreted to mean and represent an intention on the part of that person to possess the parcel of land in respect of which the alleged payment was made. In other words, the value of physical possession has been diminished in favour of the mere custody of a paper receipt of payment of ground rent. This assertion is contrary to the common law concept of possession which was lucidly espoused in Brown vs. Quarshigah [2003-2004] SCGLR 930. At page 950 of the report, this Court, per Prof. Kludze JSC, came clear on what is meant by possession. He stated, among others, that: “Possession after all means occupation and control in a manner commensurate with the nature of the property. It includes the right or power to exclude others from the property, and also includes enjoyment of the land”. Page 115 of 136 At page 951 of the report, the learned Professor continued that: “Possession is a matter of law but is established by physical acts. Possession is generally regarded as implying physical control; but physical control cannot mature into possession in law unless accompanied by other facts. As I have said, as a prerequisite, there must be an effective physical control which is commensurate with the nature of the property over which the right is asserted. For instance, in the case of land, as in this case, presence on the land may constitute enough physical control. The physical control is usually actual control and includes the right to exclude others from the property. It may, however, be potential control, such as when there is an unlawful but de facto impediment by a trespasser. Secondly, there must be the animus possidendi or intention to possess which must be concurrent with the requisite physical control. In other words, where there is physical control that is fortuitous or unrelated to the intention to possess, it will not constitute possession in law. Finally, the intention to possession must be manifested by external or visible signs appropriate to the property being taken into possession. The external manifestation is necessary to serve as notice to the rest of the world of the right claimed, even if unknown to the whole world. In the instant case, the defendant, by his evidence, established effective possession. The evidence shows that he went on the land animo possidendi. He immediately erected a building on the land, indicating also animus manendi. It was not a casual entry. The defendant planted coconut trees Page 116 of 136 along the perimeters of the land to warn everybody that the particular piece of land had been reduced into possession. It was a visible or external sign. As the learned trial judge found at the locus in quo, there were also old barbed wires which had been used to mark the extent of the land. It is difficult to conceive of a clearer case of effective possession of land”. It is clear from the above analysis that one cannot talk about animus possidendi as a separate and an independent concept from physical control or possession of the land. Both the intention to possess, animus possidendi and the act of physical possession or control of the land must be present at the same time. They must exist concurrently. In the instant matter therefore, it cannot be legally said that the within-named Plaintiffs had the intention to be in possession or that they were in possession just because they claim to have custody of receipts from an alleged payment of ground rent which they made. As already pointed out, it was never part of their case and no evidence was faintly given that the Plaintiffs herein or their deceased father ever was in physical control or possession of the land in question which they allegedly acquired as far back as 1977. Any conclusion to that effect is very strange indeed. The case of Akoto vs Gyamfi-Addo [2005-2006] SCGLR 1018 is authority for the act of constructive possession as against personal or physical possession. Hence, it was held in that case that: “in land law, ‘possession’ was used not in the popular sense of physical occupation of the land, but it included receipts of rents and profits or the right to receive same”. The case of Akoto vs Gyamfi-Addo (supra) has no application to the facts of the instant Page 117 of 136 matter. It is not the case of the Plaintiffs that they rented out the land in dispute to the Defendants and therefore they have receipts to show the payment of rent to them by the occupants. The Plaintiffs’ receipts are in respect of an alleged payment of ground rent to the Administrator of Stool land. The Plaintiffs have, thus, not been in physical or constructive possession of the land in dispute. [11.4]. Possession cannot be said to have been proved by tendering receipts in respect of payments made to Administrator of Stool Lands. As against a party who is physically in occupation of the land in dispute coupled with the payments of ground rent evidenced by receipts from the Administrator of Stool Lands, the person in physical control, especially for a period spanning more than 20 years, on the balance of probabilities, deserves the court’s judgment. Receipts in respect of rent received from tenants in occupation of the land, are clear evidence of one’s possession of the land. However, the same cannot be said in respect of receipts in respect of payment of ground rent to the Administrator of Stool Lands. This is so because, receipts in respect of payment of ground rent come as an allegation or a claim to the land in respect of which the rent was paid. It is not evidence of ownership or occupation of the land in question; whereas receipts of rent paid by tenants who have been placed on the land by the landlord are clear evidence of, at least, possession. Herein lies the difference between the two receipts discussed in the Akoto vs Gyamfi-Addo case and the receipts presented by the Plaintiffs in the instant case which can, therefore, not be equated to each other as if they present the same value. Page 118 of 136 [11.5]. On the contrary, the Defendants/Respondents, especially, the 17th, 25th and 26th Defendants/Respondents have given evidence and tendered Allocation Notes with Site Plans attached which showed that plot number 5A and 5B have been allocated to them. These Defendants/Respondents also produced evidence to show the payment of Ground Rent in respect of the parcel of land allocated to them. There is also evidence which was admitted by the Plaintiffs/Appellants that the Defendants/Respondents have been in physical occupation and possession of the parcels of land which they claim were allocated to them. Between the Plaintiffs/Appellants on one hand and the Defendants/Respondents on the other hand, I am firmly of the candid opinion that, the balance of probabilities tilts highly in favour of the Defendants/Respondents against the Plaintiffs/Appellants herein such that the findings and conclusions of the Court of Appeal ought to be affirmed. If for nothing at all, there is sufficient evidence that the Defendants/Respondents have been in occupation of the land they claimed since the year 2003 whereas the Plaintiffs/Appellants have not adduced any positive evidence to show that they have ever occupied the land in dispute. In Akyea-Djamson vs. Duagbor and Others [1989-90] 1 GLR 223, the Supreme Court, at page 234, affirmed the oft- quoted expression by Greer L. J. in De La Rue vs. Hernu, Peron & Stockwell Ltd [1936] 2 K. B. 164 at 170 that: Page 119 of 136 “A person in possession has “nine-tenths of the law” in his favour in regard to ownership with the outstanding one-tenth reposed in any person aspiring to oust him, to make out his claim as to his entitlement to be declared an owner.” Consequently, in the words of Taylor JSC in Ababio and Others vs. Mensah and Others (NO. 2) [1989-90] 1 GLR 573 at 595: “The applicable principle is that a person in possession is entitled to retain his possession as against the whole world except the true owner”. My Lords, the instant appeal is almost on all fours with the case of GYAWU v ADU- GYAMFI [2018-2019] 1 GLR 365, which was determined by the Court of Appeal, Kumasi. In that case, the plaintiff claimed, among others, a declaration of title to a disputed parcel of land. In support of his claim, the plaintiff tendered in evidence exhibits, including exhibit B, a deed of assignment in respect of the parcel of land claimed by the plaintiff. In determining the issue of title, the Court expressed the position of the law, and rightly in my humble view, at page 381 of the report, that: “…for an action for declaration of title to succeed, apart from disclosing a good root of title and acts of possession exercised over the disputed land, the evidence led must establish positively that the subject matter of the claim is the same as Page 120 of 136 that in respect of which the evidence has been led. If the requirements or any of them are not met, the action fails.” The Court proceeded from page 382 of the report as follows: “Now, how do the exhibits [tendered by the plaintiff] establish the Plaintiff’s claim for declaration of title to the disputed property, which, as indorsed on the writ of summons, is made up of plot numbers 24 and 25? … the Plaintiff, has tendered exhibit B in support of his claim…. But does exhibit B support the Plaintiff’s claim to be the owner of plot numbers 24 and 25? The specific plots that were granted to him have been set out above and do not include any plots numbered 24 and 25. Without more, therefore, exhibit B does not establish the Plaintiff’s claim in respect of Plot numbers 24 and 25.” The Court concluded at page 385 of the report that: “The plots specified in exhibit B do not include any plots identified by evidence with the plots in respect of which the Plaintiff is seeking a declaration of title in this suit. He cannot therefore get that declaration.” In the instant appeal, the Respondents are in possession of the disputed land. The Respondents have produced allocation notes issued to them by the Esreso Stool, Page 121 of 136 receipts of payment of ground rent to the Administrator of stool lands, and the permit obtained from the Bosomtwi-Antwima Kwanwoma District Assembly. These were sufficient pieces of evidence to establish the Respondents’ interest in the disputed land, as against the Appellants whose documentary evidence did not give sufficient indication of the land that was acquired by their late father. My Lords, the evidence on record supports the findings and conclusion of the Court of Appeal. It is also very clear that the Plaintiffs/Appellants could neither prove title to the land nor could they prove that they have ever been in possession. The 17th, 25th and 26th Defendants/Respondents have marshalled sufficient evidence to prove not only their title to the land occupied by them, but more importantly, they have succeeded in proving their possession of the land in question. [12.0]. CONCLUSION: This Court has, in In re Bonney (Dec’d); Bonney vs. Bonney [1993-94] 1 GLR 610 held that: “The Appeal Court should not under any circumstances interfere with the findings of fact by the trial judge except where they are clearly shown to be wrong, or that he did not take all the circumstances and evidence into account, or Page 122 of 136 has misapprehended certain of the evidence, or has drawn wrong inferences without any evidence to support them, or that he has not taken proper advantage of his having seen and heard the witnesses.” The position of the law was clarified in Logs and Lumber Ltd vs. Oppong [1977] 2 GLR 263. At page 265 of the report, it was held that: “Where an appellate Court was satisfied that the reasons given by the trial Court in support of its findings were not satisfactory, or where it irresistibly appeared to the appellate Court that the trial Court had not taken proper advantage of its having seen and heard the witnesses, then in such a case, the matter would become at large for the appellate court, in which case the appellate Court was under the duty to give such decision as the justice of the case required, and if need be, reverse the decision of the trial Court and substitute its own judgment.” The above position of the law was re-iterated in Amoah vs. Lokko & Alfred Quartey (substituted by) Gloria Quartey [2011] 1 SCGLR 505, where the Court said that: “The appellate Court can only interfere with the findings of the trial Court if they are wrong because (a) the Court has taken into account matters which were irrelevant in law, (b) the Court excluded matters which were critically necessary for consideration, (c) the Court has come to a conclusion which no Court Page 123 of 136 properly instructing itself would have reached and (d) the court’s findings were not proper inferences drawn from the facts.” In Fosua and Adu Poku vs. Dufie [2009] SCGLR 310, it was pointed out that: “An appellate Court such as this Court may interfere with the findings of fact of a trial Court where the latter failed properly to evaluate the evidence or make the proper use of the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from the accepted evidence or where its findings are shown to be perverse. It is clear that there are cogent and credible pieces of evidence which this Court on its own can use to differ from the findings of fact made by the trial Court and the first appellate court.” On the strength of the authorities quoted above, and in the light of the evidence adduced in this matter and placed before the trial High Court, it is very clear that the trial Judge misapprehended the evidence before the Court. The trial Judge failed to properly evaluate the evidence. The trial Judge took into account matters which were irrelevant whiles deprecating and excluding evidence which was critically necessary. As a result, the trial Judge came to the wrong conclusion on the facts and the law. The learned Justices of the Court of Appeal were therefore right in reversing the judgment of the trial High Court. In the circumstances, I hold that the appeal fails in its entirety. The judgment of the Court of Appeal delivered on the 22nd June 2023 is hereby affirmed. Page 124 of 136 (SGD.) S. K. A. ASIEDU (JUSTICE OF THE SUPREME COURT) DISSENTING OPINION AMADU JSC: INTRODUCTION 1. My Lords, I have had the privilege of reading in draft, the very erudite, and well- reasoned judgment of my illustrious brother, Asiedu JSC. I am in full agreement with his analysis reasoning and conclusion that, the instant appeal lacks merit and that, the same be dismissed. I associate myself with the conclusion that, the Plaintiffs could not assail the judgment of the Court of Appeal having failed to discharge the evidential burden to prove their title to the land, the subject matter of the dispute. 2. However, I wish to contribute to the delivery by adding my views in determining the appeal. In so doing, I shall dispense with a repetition of the factual background to the case which have well been set out in the judgment of my brother Asiedu JSC, but will make necessary references for emphasis. 3. The Plaintiffs’ present appeal, is anchored on two fronts: Page 125 of 136 a. the erroneous supposition, that the Learned Justices of the Court of Appeal, determined the appeal to that court on an invalid notice of appeal (and grounds of appeal); and b. that the judgment of the Court of Appeal is against the weight of evidence on record. 4. Regarding the first basis for the appeal, it will be observed from an examination of Grounds “b”, “c” and “d” its particulars thereof that, they assail the judgment of the Court of Appeal as having been erroneously delivered based on the “second” Notice of Appeal filed on the 22nd of March 2023, when, in their view, the “first” notice of appeal filed on the 11th of March 2021 was the only competent process on which the appeal was anchored. 5. Secondly, Grounds “e”, “f” and “g” are founded on issues, which go to the weight of the evidence adduced at the trial. These grounds pertain to the issue of whether the Plaintiffs proved the identity of their land and also, whether the Defendants proved their counterclaim. 6. Clearly therefore, aside the issues with respect to the competence of the “second” notice of appeal, the other issues confronting this court in the instant appeal can be conveniently determined under the omnibus ground of appeal by a re-evaluation of Page 126 of 136 the entire record with the view to determining whether or not the party which carries the statutory burden of proof had successfully discharged same. 7. In proceeding further, it is important to observe that, the Constitution, 1992 has vested this court, and indeed all appellate courts with powers of the trial courts. That power enables the appellate court to reverse, grant, modify, or make such necessary declarations or orders, as if it were the trial court. Article 129 (4) of the Constitution, 1992 provides as follows: “For the purposes of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and Jurisdiction vested in any court established by this Constitution or any other law.” 8. By this constitutional provision, and in the context of the instant appeal, this court is really not bound by arguments urged on it by counsel or the parties to a dispute as guided by their grounds of appeal. The court in doing substantial justice to every case must carefully assess the entirety of a case and particularly, in a land dispute, to ascertain the critical interrogatory, “who owns the parcel of land”, as between the Plaintiffs and the Defendants? This policy is what guides the decisions of this court, Page 127 of 136 as the final appellate court to deal with every appeal, as a re-hearing of the trial as if the court were the trial court. 9. Not surprisingly, the Court of Appeal, in aligning with this policy of appellate adjudication, determined the appeal on the omnibus ground of appeal. The Court of Appeal in it’s approach embarked on an examination of the record of appeal, a review of the evidence adduced at the trial, and the application of the relevant laws and principles to the evidence before arriving at their conclusion. Indeed, the foundation of the decision, which rested on the finding that, the Plaintiffs failed to prove the identity of the land they claimed before the court was pursued through an examination of the evidence on record. 10. That said, can the Plaintiffs be heard to complain now that, the judgment of the Court of Appeal is erroneous, on the simplistic view that, the same was anchored on a notice of appeal (being a second notice filed by the Defendants) when indeed both notices contain the omnibus ground of appeal? In an appeal of this nature, unless there is clear demonstration of the occasioning of a miscarriage of justice, such arguments grounded on technicalities hold no sway in reversing the judgment appealed from. 11. My Lords, what I am driving home is that, whether the judgment of the Court of Appeal was based on the first notice of appeal, or the second notice of appeal, the judgment was arrived at, upon the fulfillment of the obligation on appellate courts Page 128 of 136 to treat an appeal by way of rehearing in discharging the obligation arising out of a plea of the omnibus ground of appeal. 12. These observations aside, I am in support of the reasoning of my brother Asiedu JSC, that the first notice of appeal, was rightly withdrawn as of the date of the filing of the discontinuance of the appeal in respect of the first notice of appeal because not only had the Plaintiffs not been served with same, but more fundamentally, the record of appeal had not been transmitted to the Court of appeal to warrant a formal prayer to that court to have the same struck out. THE IDENTITY OF THE LAND 13. In the judgment on appeal, the Court of Appeal, rightly held, in my view that, the Plaintiffs had failed to prove ownership of the land they claimed before the court. Courts do not make orders in vacuum. Court orders must, at all times, ensure enforcement, as anything to the contrary is a complete waste of judicial time. More pragmatically, the obligation on a party claiming ownership to a parcel of land to prove the identity of the land he claims, is not only rooted in judicial wisdom but commonsense and public policy. In our society where there are now said to be no ownerless lands, the constitutional guarantee of the right to property of individuals stand threatened if a court of law makes an order for the recovery of land whose Page 129 of 136 identity is in doubt. There is abundance of case law jurisprudence on the requirement that a party who claims title to land must prove the identity of the land with certainty in accordance with scale though mathematical precision is not necessary. 14. In the instant case the Plaintiffs endorsed their writ with reliefs as follows: a. “Declaration that the piece and parcel of land measuring 5.15 acres situate and lying in-between the Kumasi-Sewua and Kumasi-Jachie motor roads in the City of Kumasi and bounded by the Kumasi-Sewua motor road and an open space on the North-East, Plot No.2 on South-East, Kumasi-Jachie road on the South-West and by the junction of the said roads on North-West formed part of the estate of the late Agyekum Okyere Mainoo alias Nana Okyere Agyekum. b. A declaration that by virtue of the Last Will and Testament of the late Agyekum Okyere Mainoo alias Nana Okyere Agyekum dated 4th December, 1989, the land described in paragraph (a) above has become the property of the Plaintiffs. c. An order ejecting the Defendants from the said land. Page 130 of 136 d. Such other Order(s) as may seem just.” 15. The established principle of law requires the Plaintiffs to lead clear evidence as to the identity of the land claimed with the land the subject matter of his suit. The authorities are legion. They include: BISSSAH VS. GYAMPOH [1964] GLR 81; BEDU VS. AGBI [1972]2 GLR 238; ANANE VS. DONKOR [1965] GLR 188; AKOTO VS. KAVEGE [1984-86]2 GLR 365; NYIKPLOKOR VS. AGBODOTOR [1987-88] 1 GLR 171; AGYEI OSAE VS. ADJEIFIO [2007-2008] 499; JASS CO. LTD. VS. APPAU 2 [2009]2 GLR 365. From the totality of the evidence on record, the Plaintiffs in my view failed to discharge their burden of proof as established by the above authorities. 16. Evidentiary, the obligation for a party to prove the identity of a land that party claims, requires the party to produce sufficient evidence of the desirable quality to convince the court, that the specific land the party claims, on a balance of probabilities belongs to that party. Therefore, as can be observed, it is not enough for a party to draw up a description of a parcel of land in that party’s writ of summons or pleadings before the court and assume a satisfaction of the requirement to prove the identity of the land. Such a description, is in the nature of an allegation without more. It needs to be subjected to the evidential rules of proof before a conclusion on its proof can be drawn. Page 131 of 136 17. In the instant action, the holding by the Court of Appeal that, the Plaintiffs failed to prove the land they claimed before the court simply means that, the Court of Appeal recognises a particular description of the land as claimed by the Plaintiffs. However, the evidence led in support of the said claim of ownership in respect of the particular land was unsatisfactory to discharge their statutory burden. 18. For emphasis, the Plaintiff’s substantive relief as per the writ of summons read as follows: “Declaration that the piece and parcel of land measuring 5.15 acres situate and lying in -between the Kmasi-Sewua and Kumasi-Jachie Motor roads in the City of Kumasi in the Ashanti Region bounded on or towards the North-East by the Kumasi-Sewua Motor road and an open space towards the South-East by Plot No. 2 on or towards the South-West by the Kumasi- Jachie Motor road and towards the North-West by the said Roads junction formed part of the estate of the late Agyekum Okyere Mainoo alias Nana Okyere Agyekum.” 19. There is not a single positive reliable evidence adduced by the Plaintiffs to confirm that, this land as described, was owned by the late Agyekum Okyere Mainoo. The Will and allocation note the Plaintiffs rely on in asserting ownership to the land, unfortunately did not contain the particulars of description as indorsed on the writ Page 132 of 136 of summons. The site-plan that contained this description was also procured subsequent to the commencement of the action and in fulfilment of the orders of the court for a composite plan to be drawn. The same, clearly was in anticipation of litigation. So how then could the Court of Appeal have favourably declared ownership in the land for the Plaintiffs without evidence supporting same? 20. In my view, the Plaintiffs’ counsel misconstrues the reasoning of the Court of Appeal when he appears to submit that, the Court erred in holding that the Plaintiff failed to prove the identity of their land. What in fact underpinned the decision of the Court of Appeal is that the Plaintiffs failed to prove the identity of the land they claimed before the court. 21. Indeed, even if the Plaintiffs had succeeded in leading credible evidence to prove that the land as described on the writ of summons is the land owned by Mr. Agyekum (Deceased), the Defendants had sufficiently proved possession and control over the land to the knowledge of the public including the Plaintiffs for a long period of about twenty five (25) years. This period of possession clearly supports a proclamation of ownership in the Defendants instead of the Plaintiffs. This point is grounded under Section 48 of the Evidence Act, 1975 (NRCD 323) which provides that: Page 133 of 136 (1) The things which a person possesses are presumed to be owned by that person. (2) A person who exercises acts of ownership over property is presumed to be the owner of it. 22. And this statutory presumption though rebuttable is neither rebutted nor dislodged by the poor quality of evidence of identity and ownership in support of the Plaintiffs’ claim as against the Defendants’ possessory rights. 23. The Plaintiffs’ undischarged burden of the identity and ownership of the land in dispute has been more appropriately described by Brobbey JSC in his concurring opinion in the case of IN RE: ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & OTHERS VS. KOTEY & OTHERS [2003-2004] SCGLR 420 in the following words: “The effect of Sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a Defendant in a civil case does not need to prove anything: the Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must Page 134 of 136 realize that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose. Such loss may be brought about by default on the part of the Defendant…” 24. Whereas the evidence on record reveals possession of the disputed land in favour of the Defendants for an undisturbed period of about twenty-five (25) years, nothing from the evidence of the Plaintiffs shows that they have a better claim to title, ownership nor any other interest in the land they have claimed. 25. This appeal in my view, lacks merit and as held by my brother Asiedu JSC, it must fail. I too, dismiss same accordingly. Page 135 of 136 (SGD.) I. O. TANKO AMADU (JUSTICE OF THE SUPREME COURT) COUNSEL KWAKU YEBOAH APPIAH ESQ. WITH ALFRED AGYEMAN GYIMAH ESQ. FOR PLAINTIFFS/RESPONDENTS/ APPELLANTS KWADWO DEI KWARTENG ESQ. WITH BENJAMIN OFORI ESQ. FOR DEFENDANTS/APPELLANTS/RESPONDENTS Page 136 of 136