FOSU VRS AMEKOR (A1/02/2022) [2022] GHADC 412 (20 June 2022)

1 IN THE DISTRICT MAGISTRATE COURT HELD AT ADIDOME ON TUESDAY THE 20TH DAY OF JUNE, 2023. BEFORE HER WORSHIP MOLLY PORTIA ANAFO- SALIA (MRS) (DISTRICT MAGISTRATE) SUIT NO: A1/02/2022 COMFORT FOSU OF MEPE............................. PLAINTIFF VRS. 1. AKUBAVI AMEKOR ] 2. SIMON DRAH ]............. DEFENDANTS ALL OF MEPE ] PARTIES. 1. PLAINTIFF PRESENT. 2. 1ST DEFENDANT PRESENT. 3. 2ND DEFENDANT PRESENT. J U D G M E N T The Plaintiff instituted the instant action against the Defendants for the following reliefs: 1. A declaration of title to all that piece or parcel of land (6 plots) situate and being at Mepe Lukunu bounded by the properties of Akubavi Fosu, Gozey family, River Lukunu and Road. 2. General and special damages for trespass. 3. Perpetual injunction to restrain the defendants, their servants, agent and assigns from having anything to do with the said land, 4. Recovery of possession. 5. An order directed at the 1st defendant to demolish the fence wall she has constructed on the Plaintiff’s gifted land and any other relief or reliefs. The Defendants pleaded not liable to all the reliefs. The Plaintiff submitted in her statement of claim and evidence in court that Fosu Ati and Fomeyi were Hunters and migrated from Tefle in South Tongu to Mepe in the late Eighteenth Century. They first settled at Fortsume near Lenu in Mepe. It is Plaintiff’s case that after staying together for some time doing their hunting expedition, they decided to separate and travelled to different locations. That Fomeyi went to Agbalekope at Avetakpo and Agortive area while Ati went to Degorme area in Mepe. That Fosu decided to put up his own village and founded a piece of land near River Luku. He consulted the land owners at Dzoxornu at that time, thus Afetor Asitorkor, Afetor Sakpaku and Afetor Gozey and they gave him the present place, Lukunu. Further, it is the Plaintiff’s case that Fosu married two (2) wives, Adzoba Glah Fosu and Srahavi Fomeyi Fosu. They gave birth to seven (7) and five (5) children respectively. Fosu divided his land in the village into two for his wives Akuyo Fosu, one of Srahavi’s children got married to Simon Kwamivie Gozey from Konuvelinu at Mepe in 1938 but lost him in early 1940’s and returned to her parents at Lukunu to assist in farming on her mother’s land. All this while, Akuyo Fosu sisters and other siblings were married and left to their husbands. That, Srahavi gave her portion of the land to Akuyo Fosu and her two children, Comfort Fosu and Akatesia Fosu for their upkeep. In 1948, Akuyo Fosu became old and gifted her portion of land to Comfort Fosu, the Plaintiff herein and her sister who is now deceased. This plaintiff stated that she had been in exclusive possession and in 2020, she deposited building materials to reconstruct a new house to replace the old one which was flooded in 1963. That she noticed that the 1st Defendant had trespassed and constructed a fence wall as well as allocated portions of the land to unknown individuals. The Plaintiff gave the size of her land at Lukunu village as 275 feet by 149 feet. She also mentioned the boundary owners of her entire land as Akubavi Amekor, Gozey family, River Lukunu and Road. The Plaintiff’s sole witness PW1, Felix Fosu evidence was to the effect that the subject matter was given to the Plaintiff to farm and to take care of her school fees. Later, he visited the village and noticed the land had been fenced. The Plaintiff did not tender any Exhibit(s) to support her case. After the evidence of PW1, she closed her case. The 1st Defendant in her evidence in court which was not different from her statement of defence, submitted that the subject matter measured 144 feet by 72 feet and shared common boundary with Fosu family land at Lukunu, belongs to the Adeole family of Lukunu. That she is a member of the Fosu family of Hodzefeme Gbanvie, Mepe and relates to the Plaintiff. She was born and bred in the Lukunu village and very conversant with the land boundaries of Fosu and Aditordo properties. All with the assistance of her relations. It is never the case that their great grandfather Fosu divided the Lukunu land into two for his wives but only allocated portions to family members prepared to settle at the village including his wives. But for this instant action, the Fosu family has been in possession of its family land without any hindrance. That the Plaintiff has no interest in the disputed land and her present action is to disturb the long years of peace enjoyed by members of the Fosu and Afeike families. Defendant tendered in evidence a receipt evidencing purchase of the subject matter as Exhibit ‘I’. The 1st Defendant counter claimed as follows: 1. Declaration of title to and ownership of all that piece of parcel of land situate and lying at Mepe in the North Tongu District of the Volta Region of Ghana and clearly described in paragraph 4 or her statement of defence supra 2. General Damages for trespass. 3. Recovery of Possession. 4. An order of Perpetual Injunction against the Plaintiff, her agents, servants, workmen, successors, privies and assigns restraining them from having anything whatsoever to do with the land in dispute or any portion(s) thereof and particularly from continuing with her illegal and unlawful development thereon and from interfering with the ownership, possession control cultivation, development, enjoyment or alienation of the said piece of land or any portion(s) thereof by the Plaintiff. The 2nd Defendant, Simon Drah submitted that the subject matter belongs to the Afieke family which same was sold to Akubavi Amekor, the 1st Defendant herein. His great grandfather Torgbe Aditordo acquired a large tract of land in his lifetime. He shared same amongst his descendants including the Afieke family. He supported his case and tendered a receipt as prove of sale to the 1st Defendant in evidence, Exhibit ‘I’. The Defendants sole witness DW1, Kwabla Avor’s evidence was not different from the 2nd Defendant’s. He corroborated his evidence that the subject matter was the share of the Afieke family land which was sold to the 1st Defendant. The legal issues that fall for determination are: (i) Whether or not the subject matter belongs to Fosu or Afieke family (ii) Whether or not the 1st Defendant is entitled to her counterclaim (iii) Whether or not the Plaintiff is entitled to her claim The legal proposition in civil cases is proof by a preponderance of the probabilities. This principle is enshrined in the Evidence Act, 1975 (NRCD 323) and other case laws. Section 11 (1) of the Evidence Act, 1975 (NRCD 323) provides as follows: “For purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on that issue”. Section 10 (1) may also be stated as follows: “.............the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court”. Section 10 (2) states: “the burden of persuasion may require a party to raise a reasonable concerning the existence or non-existence of a fact by a preponderance of the probabilities “.................. And preponderance of the probabilities” according to Section 12 (2) of NRCD 323 means the degree of certainty of belief in the mind of the tribunal of fact or the court which it is convinced that the existence of a fact is more probable than its non-existence”. The combined effect of Sections 11 (1), 10 (1) & (2) and 12 (1) & (2) of the Evidence Act, may simply be stated that the Plaintiff is under a strict statutory obligation to establish a requisite degree of belief on the preponderance of the probabilities. This the Plaintiff ought to prove that indeed and infact, the land in dispute was not acquired through any fraudulent means and she never received any valuable consideration in respect of the subject matter. This same principle, thus the standard of proof as stated in the Evidence Act supra was held in the case of Agyenim Boateng & 28 Ors. v. S. K. Boateng (2009) 5 GMJ 58 at PP. 62-63 C. A thus: “The law has always been that “ a person who makes an averment or assertion which is denied by the opponent has the burden to establish that his averment or assertion is true. And he does not establish this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of such averment or assertion determines the degree and nature of that burden”. Continued that; “In a civil case such as the instant case, the Plaintiff has the duty and or obligation to prove his case on a balance of probabilities and that no weakness in the defendant’s case can avail him. In simple and unambiguous language the rule is that the Plaintiff has the burden of proof and persuasion in the civil case. The nature of this burden has now.................. been given statutory definition and expression in Ghana in Section 10 (1) and (2), 11 (1) and (2) of the Evidence Act, 1975 (NRCD 323)”. Further that: “Thus by the provision of section 10 (1) and (2) and 11 (1) of the Evidence Act, 1975 (NRCD 323), the obligation of a Plaintiff in a civil case to prove his case on a balance of probabilities and on a preponderance of evidence is now statutory. Before the enactment of NRCD 323, the obligation on the Plaintiff in the civil case was simply a rule of practice as propounded in the cases like Majolagbe v. Larbi (1959) GLR 190 and further explained and expanded on in the recent case of Zabrama v. Segbedzi (1981) 2 GLR CA pp. 71 -72. A Defendant is not bound to counterclaim against the Plaintiff. If a defendant puts in a counterclaim, it must be proved to the satisfaction of the court, as a counterclaim is an independent action, the case of Fosuhene v. Wusu [2011] 32 GMJ 383 SC. The 1st Defendant in the present action, filed a counterclaim and by extension becomes a Plaintiff as a counterclaimant. This was clearly stated by Rose Owusu JSC (as she then was) in Sasu Bamfo v. Sintim [2012] 1 SC GLR 136 at 156 that: “A counterclaim is a different action in which the Defendant as a counterclaimant is the Plaintiff and the Plaintiff in the action becomes a Defendant.” Per the provision above, the 1st Defendant in the instant suit has a duty to prove her counterclaim and therefore has to adduce evidence of the required standard as a counterclaimant. In a land suit as in this matter where reliefs sought for declaration of title, perpetual injunction, damages and recovery of possession, the party’s evidence upon meeting the statutory standard of proof must further establish the party’s mode of acquisition, possession and identity of the subject matter. The general standard of proof in land cases has been stated in a number of cases, including Mondial Veneer (Gh) Ltd) v. Amissah Gyebi XV [2011] 1 SC GLR 466 holding 4, where it was held: “In land litigation, even where living witnesses had been produced in court as witnesses, the law would require the person asserting title and on whom bear the burden of persuasion as the defendant’s company in the instant case, to prove the root of title mode of acquisition and various act of possession exercised over the disputed land, it was only where the party had succeeded in establishing those facts on the balance of probabilities that the party would be entitled to the claim”. From the provision above and as in other case laws in a typical land suit, a claimant must establish a clear identity of the land which was left out in the case supra. Additionally, mode of acquisition and subsequently the party’s root of title. Let me begin with the first issue to be determined, that is whether or not the subject matter in dispute belongs to the Fosu or Afieke Family. The subject matter in dispute as claimed by all parties in the suit is situate and located at Mepe near Lukunu. It is not in controversy at all that the parties are claiming ownership and title to same. It became clearer when there was locus in quo and same erased the doubt in the mind of the court, especially on record it establishes the relationship between the Plaintiff and 1st Defendant as descendants of the Fosu Family. Arguably, the Plaintiff and 2nd Defendant are from Fosu and Afieke families in Mepe Lukunu. Both of them are laying claim to the subject matter. 1st Defendant is the purchaser of the said land from the 2nd Defendant who joined the suit. The Plaintiff in clinging to the subject matter narrated how Fosu Ati, a hunter through hunting expedition in the Eighteenth Century founded the subject matter. This was after he, Fosu Ati and Fomeyi migrated from Tefle in South Tongu to Mepe and settled at Fortsume near Lenu in Mepe. Eventually, they separated and went to different locations where Fomeyi went to Agbalekope at Avetakpo and Agortwe area. Fosu Ati also went to Degorme area in Mepe and decided to put up his own village. He consulted the land owners at Dzoxornu namely Afetor Asitorkor, Afetor Sakpaku and Afetor Gozey and they granted him the present place called Lukunu. Fosu married two wives, Adzoba Glah Fosu and Srahavi Fomeyi Fosu and divided his land between them. Srahavi’s land was from the road side to the River Luku. One of Srahavi’s children, Akuyo Fosu got married to Simon Kuramivie Gozey from Kwamivie in Mepe in 1938 but lost the husband in early 1980 and as a result returned to her parents at Lunuku. She farmed with her mother Srahavi on her land. All other siblings Akuyo Fosu were with their husbands outside their traditional village. Srahavi gave her portion of her land to Akuyo Fosu and her two children Comfort Fosu, Plaintiff and Akatesia Fosu to farm and cater for her (Akuyo Fosu) children. In 1948, Akuyo Fosu became old and gifted the portion of the land to her children, Plaintiff and Akatesia, now deceased and she, Plaintiff has been in exclusive and interrupted possession, control and occupation of the said land since time immemorial without let or hindrance from any person and had no issue or issues with its boundary owners. In 2020, Plaintiff deposited sand on the land to reconstruct their house which was destroyed by flood in 1963. Later, she noticed that 1st Defendant had trespassed on the land and constructed a fence wall and also allocated portions of the land to unknown individuals. The main defence of the Defendants was that the land in dispute does not form part of the Fosu’s land. 1st Defendant who claimed shehad lived there throughout her infancy and a purchaser of the subject matter with consideration alleged it belonged to the 2nd Defendant, 2nd Defendant claimed the land in dispute forms part of the Afieke family land of which he (2nd Defendant) is the head of family. That their great grandfather, Torgbe Aditordoe acquired a large tract of land during his lifetime. Torgbe Aditordo had Afieke Asikekpo and Woelelom. Afieke had Anomia Adzoba and Kisi. Anoma had Afiba, 2nd Defendant’s grandmother and Dofe. Afiba had Rosa and Rosa had Simon, the 2nd Defendant in the case. After the demise of their great grandparents, the descendants took possession and later shared the inherited land among themselves. That the portion belonging to the Afieke family was the one sold to 1st Defendant, Akubavi Amekor. The Defendants contended that the land in dispute does not form part of Fosu’s family land. The Plaintiff in this case averred at paragraph 13 to 18 of her statement of claim that in the year 2020 she deposited sand on the land to reconstruct their collapsed building which was flooded in 1963 and noticed 1st Defendant had trespassed and constructed a fence wall. She allocated portions to unknown individuals without her consent or knowledge as she never authorized 1st Defendant to construct a fence wall or sell any portion or portions on her behalf. That her land at Lukunu village measured 275 feet or 149 feet and bounded as follows: On one side by Akubavi Amekor land, on another side by Gozey family land, on another side by River Lukunu and on the last side by Road. At locus In quo, there was indeed a fence wall constructed leaving a small portion of land where a grave almost caved in situate. This place share boundaries with Akubavi Fosu’s land where some houses have been built and same belongs to Akubavi Amekor, 1st Defendant and a descendant of Fosu. Granted without admitting that Fosu never shared any land but rather granted land to family members who were prepared to stay at the village for settlement including his wives as claimed by 1st Defendant, Akubavi Amekor and a family member of Fosu. The question now is where then were Srahavi, Akuyo Fosu, Comfort Fusu and Akatesia lived? Were they not granted a portion of land to live? Meanwhile, at locus, the 1st Defendant lived on portions of the Fosu land which share boundary with the portion where the Plaintiff’s mother’s grave is but no sign that Plaintiff and her family ever lived there, except the grave seen on a portion of the land. Did the Defendants, especially 1st Defendant trespass Plaintiff’s land? Whenever trespass is alleged; there must always be a positive and direct act. In the case of Ebusuapanyin Akuma Mensah v. Nana Atta Komfo 11 [2015] 39 GMJ at page 80, the court held. “As with all forms of trespass there must be directness the Plaintiff must prove direct invasion of the defendant on his land for a claim of trespass to succeed..........” At the court’s visual inspection, there was proof of direct evasion of a fence wall constructed and same claimed by 1st Defendant with the sand deposited on the land by the Plaintiff. The Plaintiff has thus established the trespass, though same has been denied by her opponents. There hasn’t been any documental proof as parties did not file any of such to prove their superiority except by traditional evidence. Traditional evidence has become paramount and same must be proved by a preponderance of the probabilities, a common feature of evidence in land matters. The court has to consider to account narrated by the living witnesses as to the acquisition of the property recounting the long standing history. See Dennis Dominic Adjei’s book on Land Law, Practice and Conveyance in Ghana, 3rd edition page 219. The very land has not been properly described on the Exhibit, thus Exhibit 1. Documentary evidence is presented to court where there is a dispute surrounding such a grant or surrounding ownership of the land. In the 21st century therefore, documentary evidence in a suit as this has become necessary although the absence of same should not deny any party justice. They make the work of the court easier. In Nartey v. African Institute of Journalism and Communication [2014] 77 GMJ. I Akamba JSC (as he then was) held at page 30 thus: “This court pointed out in Ackah v. Pergah Transport Ltd [2010] SC GLR, [2011] 31 GMJ 174, the various methods of producing evidence which includes the testimonies of the party and material witnesses and things (often described as real evidence), without which the party might succeed to establish the requisite degree of credibility concerning a fact in the mind of the tribunal or court”. The sole witness of the Plaintiff, Felix Fosu corroborated the evidence of Plaintiff on the issue of trespass. That on the 15th of September, 2020, he visited the village and noticed the land had been walled (fenced). He enquired from Akubavi Amekor the first Defendant but she denied any knowledge of same. During cross-examination, the 1st Defendant did not cross- examine him. This apparently confirms his evidence that the 1st Defendant upon interrogation denied any knowledge of the fence wall or trespass on the disputed land. Again, during cross-examination by the 2nd Defendant, PW1 still maintained that he grew up farming on the land with his grandmother and mother before same given to her sister the Plaintiff to continue farming as a source of sustenance. That the grave was part of the disputed land. This is what ensued. Q: You stated in your witness statement that it was your mother who gave the land to the Plaintiff, where did she get it from. A: We have been farming on the land with my mother. I grew up to see that but do not know where she got it from Q: I put it to you that where you claim is farm land is for Aditordo family and same granted by Adziglo clan. A: It is not true. Q: Are you aware that the Adzigo land individual families have their portion where they farm A: Yes. In our culture, you cannot go and bury someone on another person’s farm land. My mother twenty-one years ago, died and was buried on the subject matter which was given to my sister, the plaintiff herein. Q: Are you saying the land is six plots? Did you bury your mother on the entire six plots? A: Yes, part of it. Q: You have stated that you did not know where your late mother bought or got the land from, did you seek permission from the owners before you buried your mother? A: No, because we own the land. Q: Do you know the boundary between Aditordo family and that of Fosu family lands? A: I don’t know who is Aditordoe. I grew up farming with my mother on that land. The trespass as established by the Plaintiff has equally been denied, with the 2nd Defendant claiming ownership of the land as Afieke family property. His sole witness, Kwabla Avor stated that the portion of Afieke descendants was sold to 1st defendant. It measured 72 feet by 72 feet each. This assertion proved otherwise at the locus. On record, there is a boundary owner which featured promptly in Defendants defence, one Abigail but who was never around to authenticate the veracity of Defendants assertion. Very crucial as ownership is in dispute and a boundary owner is alive should have been called as stated in the case Mensah v. Komfo [2015] 91 GMJ 39 and held at page 56: “It is common knowledge that one of the main methods of establishing boundaries is calling boundary owners as witnesses.” Basically, there are two main ways of proving a party’s title; it is either by document(s) thus, allocation paper, site plan, indenture etc or overt acts of long possession. As stated that “In law title to land may take the form of possession or it may take the form of documents or series of documents. It is however stipulated in Section 23 (5) of the Land Title Registration Law, 1986 (PNDCL 152) that a good title is always documentary, “the case of Nsowaa & 20 Others v. Bamba & Another [2015] 86 GMJ 21. In this instant suit, as stated earlier, documentary proof of ownership and title is not applicable, except long possession. Plaintiff in her evidence stated some dates, Eighteenth century 1938, 1940’s, 1948 and 1963 when flood destroyed their traditional home and in the year 2020 when she deposited sand for reconstruction of the destroyed house. All this while, they were no issues and were in possession until the fence wall was constructed. However, the 1st Defendant’s vendor 2nd Defendant stated that his great grandfather acquired the land in his lifetime, very limited evidence. As Fosu Ati and Formeyi were hunters as per the evidence what about Torgbe Aditordo. How did he acquire that tract of land, is it by conquest, sale, purchase. Acquisition of land these days were by either of them as stated: It is therefore important that the mode of acquisition must be stated for the court to make an inference or deduction to arrive at a logical conclusion be it law or equity. It is not enough to state in ones lifetime or time immemorial without telling the exact mode or form of acquisition, especially when the second issue: Whether or not the Defendant is entitled to her counterclaim, is at stake. The 1st Defendant counterclaimed for declaration of title of the disputed land, General Damages for trespass, Recovery of Possession and an order for perpetual Injunction against the Plaintiff. A counter-claim as held in the case of Gbedema v. Awoonor – Williams [1970] CC 12 that” “a counter-claim is to all intents and purposes an action by the applicant against the respondent. It is an independent and separate action”. Defendant as a counter claimant equally has a burden to prove her declaration of title to the disputed land and others. She will succeed only if she is able to establish the identity of the land in question satisfactorily according to law so as to entitle her to the reliefs. Originally, the Writ of Summons was served on only one defendant, thus Akubavi Amekor but later 2nd Defendant joined the suit. The 1st Defendant filed a receipt as proof of purchase from 2nd Defendant, her vendor. This was in 2018 December 16th. Her sole document to prove ownership and the subsequent construction of the fence wall. She took possession and still in possession as she claimed and that she has been in possession until the Plaintiff surfaced to claim ownership of the same property. Their common Exhibit ‘I’ was evidencing payment made by 1st Defendant to 2nd Defendant her vendor. It also stated the boundaries as follows: North by Lukunu road; South by Fosu Family land; East by Abigail and Eso West by Lukunu River. It was also witnessed by four persons, Benjamin Drah, Emmanuel Drah, Frederick Alorwu and Robert Alorwu with Ten Thousand Ghana Cedis (GH₵10,000.00) as the consideration for a land without a property description. Contrary to what Defendants stated in their Statement of Defence and in their evidence in court to be two plots, 72 feet by 72 feet each, paragraph 7 of Kwabla Avor’s witness statement, paragraph 5 of the statement of Defence, 144 feet by 72 feet, paragraph 7 of the witness statement of 2nd Defendant, 144 feet by 72 feet. Meanwhile, the fence wall constructed by the 1st Defendant measured 127 on the eastern 151 on the southern side and 176 on the Northern side. None of these measurements not endorsed on the Receipt, Exhibit ‘I’ for the consideration as stated. Clearly, from this Exhibit ‘I’, there is a transaction between the Defendants but as to what exactly the 1st Defendant paid for in relation to the exact description of her land was never stated. Exhibit ‘I’ sought to alienate 2nd Defendant’s interest in land to 1st Defendant but by what measurement. In Gyeabour 11 & Others v. Ababio [1991] 2 GLR 416, the court stated. “A court is not called upon to fill lacunae which the paucity of evidence provides.” To have title to a property declared in the favour of any party, that party must have discharged the onus resting on him or her that the land is indisputably theirs on the part of the Defendants, they tendered the Receipt of the land purported from 2nd Defendant, the vendor to and declaring that the disputed land which size was never stated to be her property and thereby transferring all incidences to possession of the said land to her. If the purchase of land was not stated on a receipt and same rendered void as held in Djan v. Owoo & Anor [1976] 2 GLR 401, then this court cannot place any probative value on Exhibit ‘I’ which Lack clarity. From the evidence adduced especially given the evidence of the witnesses testimonies, the 1st Defendant’s claim to the land does not hold any validity. Given the fact that, there was physical possession of sand on the disputed land as sighted during locus in quo meant the land was encumbered which she and her sister one Akosua Amekor alluded to. Despite the intriguing revelations from 1st Defendant on that score, the conclusions here is that, there was sand deposited on the land which should have informed her decision to part with that colossal amount of Ten Thousand Ghana Cedis (GH₵10,000.00) in 2018 for the land. Granted without admitting that the 1st Defendant indeed paid valuable consideration, then the three notices of active, constructive and imputed notices that come with equitable principles were at her disposal to exploit in order to show the court that she was a bona fide purchaser for value without notice of any encumbrance or to substantially refute the claims of the Plaintiff, the 1st Defendant did not show to have inexhaustibly made investigations that the same subject matter in dispute was from the Afieke family and that the 2nd Defendant as the head of family had the right to dispose same. Again, if indeed 1st Defendant possess a legal title to the land because she parted with money for same, she could have been more curious in a search to establish the title or the owner. In this vain, the 1st Defendant who claims, she bought the land did not exercise caution and follow the “caveat emptor” principle. The well established principle tasks the buyer to beware of whatever she is buying and should reasonably have ensared that such title is good and free from any encumbrance. This same principle was held in the case of Numo Adjei Kwanko II v. Lebanon Society [2014] 118 CA at pages 137 -138, that: It is the duty of any diligent and serious purchase of landed property to conduct a search on ownership and title of the property before entering into any conduct for purchase. The 1st Defendant denied knowledge of the constructed fence on the disputed land as stated in the witness statement of Felix Fosu PW1. And when the opportuned time came for her to redeem herself, she failed to cross-examine him. Again, in the locus report CEI her responses were full of inconsistencies. Apart from one Akosua Amekor, 1st Defendant sister who confirmed in the report, CE 1 that the sand was deposited by the Plaintiff before 1st Defendant started to construct the fence wall and also that the grave on the other side of Plaintiff’s plot was the mother of the Plaintiff, 1st Defendant stated otherwise I quote: “when the team asked the 1st Defendant, Akubavi Amekor, how she got the land, she indicated that the land belongs to 2nd Defendant and that she purchased the said land from him. She added that she started the construction of the fence wall and ran out of cash. She went on to say that the Plaintiff has no land there and that her land is somewhere else but did not show or tell the exact location. The team asked 1st Defendant whether she was the Plaintiff’s sand on the land before purchasing same. She answered “No”. The team further asked her (1st Defendant) whether the Plaintiff had deposited the sand on the land before she started the construction of the fence wall? She answered “Yes” the team asked the 1st Defendant, what she did when she saw that the Plaintiff had deposited sand on her land? She answered “I did nothing”. The team asked the 1st Defendant again whether she did due diligence or investigated the land before buying it. She declined to answer but said that the Plaintiff had deposited the sand on the land before she actually started the construction of the fence wall. The team finally asked the 1st Defendant why as the owner of the land, she decided to allow the Plaintiff to deposit sand on her land, she answered that because they are relatives”. Per the evidence gathered thus far, the land was indisputably encumbered by virtue of the sand deposited by the Plaintiff. However, as to why 1st Defendant failed to exercise caution especially when Plaintiff had warned her severally, before exercising her discretion it beats the court’s imagination. Could it be that 1st Defendant took the absence of the Plaintiff to exercise her superiority, that could be so as she is a permanent resident at Lukunu. The development of the facts of the instant case cannot escape the consideration of the nemo dat quod non habet principle that is inherent in the alienation of property. It was held in Christiana E. A Aboa v. Major Keelson (Consolidated) [2011] 37 GMJ 63 SC at page 87 Iiterally means no one gives what he doesn’t have. It is established in land law that any person who has legal title or claims equitable ownership to any immovable property can only enjoy the right to alienation at will so long as claim to ownership is valid and the land is theirs. From the evidence adduced especially given the credence of the testimonies by the witnesses, 2nd Defendant’s claim to the land as that of the Afieke’s family land does not hold any validity. Trespass is actionable per se without proof of injury before damages would be awarded to compensate him or her. Damages are usually awarded as an alternative to specific performance mostly in land matters. The essence of damages is to put the injured person in the position in which he was before the injury. Damages is neither awarded to punish the offender nor to confer a wind fall on the victorious party. From the totality of the evidence adduced by the parties and their witnesses, I find as a fact that the Plaintiff has proved ownership successfully and has the right to claim title of her land gifted to her by her late mother at Lukunu, general damage for trespass and perpetual injunction as well as recovering of possession as she is thus entitle to all her reliefs. To the court and in its opinion, the Defendants and their witness could not convince the court as they were not credible worth considering, the counterclaim therefore deserves dismissal and accordingly the counter claim is hereby dismissed. Judgment is hereby entered in favour of the Plaintiff. I specifically order the 1st Defendant to remove her fence wall on the disputed land by the 30th of September, 2023 to enable the Plaintiff recover possession of her entire land measuring 275 feet by 149 feet indorsed on her Writ of Summons and injunct the Defendants perpetually from the disputed land. I award Five Thousand Ghana Cedis (GH₵5,000.00) as general damages against the Defendants. I award Two Thousand Ghana Cedis as costs against the Defendants. (SGD) H/W MOLLY PORTIA ANAFO-SALIA (MRS) (DISTRICT MAGISTRATE)