Duah v Owusu-Manu and Others (A1/45/22) [2025] GHACC 59 (29 May 2025)

IN THE CIRCUIT COURT OF GHANA HELD IN THE EASTERN REGION (NSAWAM) ON TUESDAY 29TH MAY, 2025 BEFORE HER HONOUR MS. DIANA ADU-ANANE SUIT NO. A1/45/22 DESMOND DUAH ……………. PLAINTIFF AND 1. SAMUEL KWAKU OWUSU-MANU 2. FRANCIS DAGBA 3. FRANCIS AGYEI KUFFOUR ……………. DEFENDANTS 4. KWAKU ADJEI JUDGMENT PLAINTIFF PRESENT. 1ST, 2ND, AND 4TH, DEFENDANTS PRESENT. 3RD DEFENDANT – ABSENT AND REPRESENTED BY 2ND DEFENDANT. KOFI KOHLAN ESQ HOLDING THE BRIEF OF LEONARD SEDZRO ESQ FOR THE PLQINTIFF LOUIS KOOMSON ESQ HOLDING THE BRIEF OF JOHN DARKO ESQ FOR THE DEFENDANTS The plaintiff caused a writ of summons to issue against the 1st to 3rd defendants on the 7th of September 2021. Pursuant to the grant of an application for joinder of the 4th defendant, the plaintiff on the 8th of June 2022 filed an amended writ of summons for the following reliefs: a. Declaration of title to all that piece or parcel of land lying situate at Pampanso near Nsawam in the former Akuapem South District now Nsawam – Adoagyiri Municipality of the Eastern Region of Ghana and bounded on the North East by Among Pampanso and Nkrabea Among’s property and measuring on that side a distance of 1,165.0 feet more or less, on the South East by Akuffo family property and measuring on that side a distance of 650 feet more or less on the North West by Akosua Kutorkor Yeboah’s property and measuring on that side a distance of 715 feet more or less, on the South West by Kumasi main motor road to Accra and measuring on that side a distance of 940 feet more or less and containing an approximate area of 14.22 acres more or less. b. Recovery of possession. c. Damages for trespass. d. Perpetual injunction restraining the defendants, their agents, assigns, servants, workmen, privies, personal representatives or all and any persons claiming through and under the defendants from laying adverse claim to the said land. The Plaintiff’s Case In the accompanying statement of claim the plaintiff averred that he is the owner of the disputed land having acquired same through purchase in April 2000 from Nii Mankata V a.k.a Edward Asomaning Mankata, then head and lawful representative of the Ntikora Family of Pampanso near Nsawam for a consideration of Twenty Million Old cedis ( C 20,000,000.00), went into immediate possession by erecting boundary pillars and had same stamped and registered as LVB/ER/687/2004 with the Lands Registry No. 1402/2004 and document No. RE 1364/2003. Plaintiff averred that in April 2006, two individuals by name Kofi Atsu and Teacher Anane trespassed unto his land and he instituted a legal action against them at the Koforidua High Court in suit No. E1/86/06 for declaration of title and judgment was delivered in his favour. The plaintiff continued that due to ill health and not residing in the Eastern Region, the 1st defendant took advantage and trespassed unto his land in 2015. Upon confrontation, the 1st defendant acknowledged plaintiff as the owner and offered to buy 1.66 acres of the land at a cost of GHC 360,000.00. 1st defendant then made a part payment of GHC 80,000.00 leaving an outstanding balance of GHC 280,000.00. That upon demand for the balance the 1st defendant denounced plaintiff as the owner and in June 2021, when plaintiff had a potential buyer and asked 1st defendant to vacate the land, the 1st defendant rather fenced about 4 acres of the land, claiming ownership of same. It is the claim of plaintiff that the 2nd and 3rd defendants are also putting a building on portion of the land and denies plaintiff’s title to the land. That the defendants will not desist from their acts of trespass unless restrained by the court, hence this suit. The Defendants Case The defendants entered appearance through their lawyer and on the 24th of August 2022 filed a joint defence. In their defence the defendants denied the averments of the plaintiff. The 1st defendant averred that in 2011 he purchased 6.34 acres of land from Lawyer Adu Kofi Djin and registered it the same year. That he purchased another 1.66 acres from Attaa Maame and started work on the land in 2015. It was averred that the 1st defendant never acknowledged plaintiff as the owner of the land, but only agreed to pay GHC 80,000.00 to plaintiff when plaintiff claimed there has been an overlap between the land he bought from Attaa Maame and since he had invested in his land and wanted to prevent any delays in the development and for plaintiff to cease his consistent pester. That as the owner of the land, nothing prevents him from fencing same. The 2nd and 3rd defendants asserted that they purchased their land from KOANS Building Solutions and does not recognise the title of plaintiff. That the 2nd defendant’s land does not fall within the parcel of land claimed by plaintiff as 2nd defendant has been in open possession having erected a two-bedroom property and currently building a story building. It was further averred that the 3rd defendant has also built a three-bedroom residential property which he currently occupies and has enjoyed peaceful open possession of the land until plaintiff served the writ of summons claiming ownership. The defendants pleaded that the plaintiff is not entitled to his reliefs. The 1st defendant counterclaimed for the following reliefs: a. Recovery of the GHC 80,000.00 unlawfully taken from the 1st defendant by the plaintiff. b. Interest on the said sum at the prevailing bank rate. c. Costs including legal fees. The plaintiff on the 8th of November 2022 field a reply and a defence to the counterclaim thereby joining issues with the defendants. The plaintiff averred that the 1st defendant is not entitled to any interest on the GHC 80,000.00 because it was a breach on the part of the 1st defendant that terminated the contract. Thus, the 1st defendant must relinquish the land for a refund of his GHC 80,000.00 having denied plaintiff’s ownership of the land. These are the issues that were adopted for determination at the close of pleadings: 1. Whether or not the plaintiff is the registered owner of the disputed land? 2. Whether or not the plaintiff in 2008 obtained a judgment from the Koforidua High Court over the disputed land? 3. Whether or not the fenced land of the 1st defendant forms part of the registered land of the plaintiff? 4. Whether or not the defendants are trespassers to the disputed land? Additional issues: 5. Whether or not the plaintiff’s grantors were the owners of the disputed land? 6. Whether or not plaintiff had interest in 1st defendant’s land when he received the amount of GHC 80,000.00 from the 1st defendant? 7. Whether or not the disputed land in case with suit No. E1/86/06 was in respect of the disputed land in the present suit? 8. Whether or not the judgment given in the case with suit no. E1/86/06 is binding on the defendants? Counsel for the parties filed respective written addresses at the close of hearing which were duly considered in this judgment. ANALYSIS “Proof in civil matters does not require absolute certainty. In civil matters, the standard is on the balance of probabilities. This implies that a party must demonstrate that his claim is more probable than that of the other to succeed. In evaluating whether or not a case is more probable that its rival version, all the evidence, be it that of the Plaintiff or the Defendant must be considered and the party in whose favour the balance tilts is the person whose case is more probable than the rival version and is therefore deserving of a favourable verdict. See Tarkoradi Flour Mills Ltd vrs. Samir Faris (2005-2006) SCGLR 882 @ page 900. Section 14 of the Evidence Act, 1975 (NRCD 323) provides that: “except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which it is essential to the claim or defence he is asserting” The standard of proof required in Civil Cases has found judicial expression in a plethora of cases including the case of Bisi vrs. Tabiri alias Asare [1987-1988] 1 GLR 360 at page 361 where the Supreme Court held as follows. “The standard of proof required of a Plaintiff in a Civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to mean a call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier's belief in the preponderance of probability. But ‘probability’ denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected...” In land suits, the Plaintiff is supposed to lead evidence in proof of his root of title. The Supreme Court held in the case of Ogbarmey-Tetteh v. Ogbarmey–Tetteh (1993-94) 1 GLR 353 as follows: “…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”. Also, the Supreme Court speaking per Adinyira JSC in the case of Yehans International Ltd. v. Martey Tsuru Family and 1 Or., [2018] DLSC 2488 at page 8 held: “It is settled that a person claiming title has to prove: i) his root of title, ii) mode of acquisition and iii) various acts of possession exercised over the land … This can be proved by either by traditional evidence or by overt acts of ownership in respect of the land in dispute. A party who relies on a derivative title must prove the title of his grantor. Awuku v. Tetteh [2011] 1 SCGLR 366. Further, to prove ownership through possession, the possession must be long, peaceful and uninterrupted…” I will proceed to address issues 2, 7, and 8 jointly as follows: Whether or not the plaintiff in 2008 obtained a judgment from the Koforidua High Court over the disputed land? Whether or not the disputed land in case with suit No. E1/86/06 was in respect of the disputed land in the present suit? Whether or not the judgment given in the case with suit no. E1/86/06 is binding on the defendants? The doctrine of res judicata is to prevent the relitigating of a matter that has been determined by a court of competent jurisdiction, tribunal or arbitration among the same parties or their privies. In the case of In Re Sekyedumase Stool; Nyame vrs. Kese ‘Alias’ Konto [1998-99] SCGLR 478, @ page 479, the Supreme Court per Acquah JSC (as he then was) held that: “The plea of Res Judicata can be invoked in respect of any final judgment delivered on the merits by a judicial tribunal of a competent jurisdiction. Such a judgment is conclusive as to the rights of the parties and their privies and as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action”. Relatedly, Supreme Court in the case of In Re Kwabeng Stool; Karikari vrs. Ababio 11 [2001-2002] SCGLR 515 at page 530, held concerning the plea of res judicata as follows: -: “The doctrine or principle of estoppel is founded on the maxim interest reipublicae ut sit finis litium, meaning ‘it concerns the State that lawsuits be not protracted’. Also, ‘no man ought to be twice vexed, if it be found to the court that it be for one and the same cause’ (nemo debet bis vexari, si constat veriae quod sit pro una et eadem causa). If an action is brought, and the merits of the question are determined between the parties, and a final judgment is obtained by either, the parties are precluded and cannot canvass the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial which would have led to a different judgment.” Deduced from the case law, a party relying on the plea of res judicata must prove that: 1. The parties in the instant case are the same parties in the earlier case or their privies. 2. The subject matter in the instant case is the same as the subject matter in the earlier case. 3. The issue in the instant case has been decided in the earlier case. 4. The decision or judgment in the earlier case was final and not interlocutory in nature. Therefore, to the extent that the judgment in Exhibit ‘A’ did not involve the Defendants or their predecessors, they cannot be bound by it. It may only serve the purpose of demonstrating the plaintiff’s interest in the land, but not as an estoppel against the defendants, who are strangers to this judgment. Issue 8 is resolved to the effect that the judgment given in the case with suit no. E1/86/06 is not binding on the present defendants. The main contention however is whether the subject matter in the instant case is the same as the subject matter in the earlier case before the High Court Koforidua? The Supreme Court in the consolidated case of NANA KWATA YAMOAH (SUBSTITUTED BY NANA KOJO ENYAN VRS EBUSUAPAYIN K YEBOAH (SUBSTITUTED BY EBUSUAPANYIN YAW ANSAH AND NANA KWATA YAMOAH (SUBSTITUTED BY NANA KOJO ENYAN VRS EBUSUAPAYIN K YEBOAH (SUBSTITUTED BY EBUSUAPANYIN YAW ANSAH; Unreported; Suit No. J4/53/2022; delivered on the 5th of July 2022 when faced with a similar issue whether or not the subject matter of the judgments in the earlier cases was the same as the subject matter in an instant suit. In other words, whether the identity of the land adjudicated in the earlier judgments is the same as the land in dispute in the instant case. Kulendi JSC, delivering the lead judgment held as follows: “We wish to emphasize that the requirement of proof of identity of land is one which cannot be ignored in land disputes. However, this requirement of proof of identity of land does not impose a greater burden of proof on a party. The identity of land need not be proven to mathematical precision or absolute certainty. Proof of identity of land does not require proof to perfection but that which will enable the court, the parties and third parties to know the very land which is being adjudicated on. Authorities abound for the legal proposition that identity of a land is a sine qua non for the grant of an order for declaration of title. The judicial policy for this rule was explained by Ollenu JSC in the case of Anane vrs. Donkor (1965) GLR 188, which was cited by this Court in a judgment dated 29th June 2016 in Suit No. J4/4/2016 entitled Aku- Brown vrs. Lanquaye per Pwamang JSC, as follows: “Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order of possession can be executed without difficulty and also if the order for injunction is violated, the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgement or order of the court will be in vain. Again, a judgement for declaration of title to land should operate as res judicata to prevent the parties relitigating the same issue in respect of the identical subject matter but it cannot so operate unless the subject matter thereof is clearly identified.” Similarly, in Sah v. Darku [1987-88] I GLR 123 CA, it was held as follows: “Admittedly, the courts have consistently refused to declare title in any claim for land when the land cannot or has not been clearly identified. But as a matter of fact, the contention that a party must prove the identity of the land in a land suit with certainty to enable a court decree title does not mean mathematical identity or precision”. His Lordship further opined that: “In proving the identity of the land, the law does not lend itself to a one-way, straight jacketed approach. In some instances, the mere tendering of a site plan or an indenture may be enough. In other instances, the mere statement of a house number could be considered adequate description or identity of land. Also, the recitation of boundary owners or other forms of identity may be enough so far as it aids in identifying the specific land to achieve the judicial policy reasons for the rule. In the Nana Kwata Yamoah case (supra), the Supreme Court, affirming the decision of the Court of Appeal that the disputed land had been identified, based its decision on an admission of the appellant that the land in dispute was litigated over by his ancestor and that his ancestor lost the case to the ancestor of the respondent. In NYAN V. AMIHERE (1964) GLR 162, the Supreme Court held: “To ascertain the subject matter of a judgment forming the basis of a plea of res judicata the matters to be considered by the court are, inter alia, the judgment itself and the whole of the record especially the evidence of the parties in Court substantially forming the basis of the adjudication.” (See also ADUMUA OKWEI VRS ASHIETEYE LARYEA [2011] 1 SCGLR 319 & A. G.’S DEPT VRS SWEATER & SOCKS FACTORY LIMITED [2014] G. M. J. @ 10). In the instant suit, when it came to light that the judgment of the Koforidua intituled Suit No. E1/86/06; Desmond Duah vrs Kofi Atsu & Teacher Anane presided over by his Lordship Justice W. H. K Addo, Court of Appeal Judge sitting as an additional High Court Judge dated the 21st of July 2008 and tendered in evidence by the plaintiff as Exhibit B, did not contain a description of the land, in agreement with respective counsel for the parties, this court requested the Registrar of the High Court Koforidua to furnish this Court with the processes filed in respect of that suit and same complied with and admitted in evidence as Exhibit C series. In the statement of claim in respect of Suit No. E1/86/06, the land was described in relief 1 as : “Declaration of title to all that piece or parcel of land situate at Pampanso bounded on the North-East by the properties of Nkrabea Among and Among Pampanso, on the South-East by Akuffo Family Land, on the North-West by Akosua Kutorkor Yeboah’s land and on the South-West by Kumasi-Accra Road”. It must be noted that though the same boundaries were reproduced in the current suit, in the current suit some dimensions were included which were not included in the suit before the High Court, Koforidua. Under cross examination on these discrepancies this was what was elicited from plaintiff: Q. You rightly informed this court that you obtained judgment which declared you the owner of the land the subject matter of dispute? A. Yes, that is so. Q. Take a look at Exhibit C, the writ of summons issued at the high Court, Koforidua, kindly read out to the court the description of the land in your statement of claim? What is in paragraph 5 of your statement of claim is the description of your land as you gave in the suit in Koforidua? A. Yes. Q. Is it the same as the description of land provided in Exhibit A as attached to your witness statement in this court? A. Yes, it is the same. Q. I suggest to you that per paragraph 5 of your statement of claim in Exhibit C, the land as described here does not have any dimensions, but only show boundaries? A. The size of the land is 14.22 acres, and it has been stated in the writ? Q. If what is in the statement of claim is exactly what is in the writ then where is the 14.22 acres? A. What is in the writ of summons is that one side is 7.15 feet to the West, on the South 940 feet, on the East is 650 feet and on the North is 1165 feet. Q. I suggest to you that the description of the land in Exhibit C is not the same as the description of the land in Exhibit A? A. What I know is that the land was sold to me by the Ntikora family is 14.22 acres. Q. I suggest to you that the judgment you secured in Koforidua High Court in your favour was in respect of a different land and not the land the subject matter before this court? A. It is the same land. Based on the case of NYAN V. AMIHERE (supra), I would have concluded that the land litigated before the High Court in Suit No. E1/86/06 is the same subject matter before this court since plaintiff’s indenture was admitted in evidence as Exhibit B in that suit. However, there was no site plan attached to the said indenture admitted in evidence. A request to the Registrar of the High Court for the site plan if same was not attached due to inadvertence was met with a response that no site plan was attached to the indenture admitted in evidence. It must be emphasised that the plaintiff’s site plan is fraught with several discrepancies which though in the opinion of this court did not measure up to fraud, same could also not be ignored as it raised issues as to the identity of the land. Due to the discrepancies which will be discussed in detail in this judgment, this court is unable to hold that the land litigated before the High Court is the same as the subject matter before this court. I therefore resolve issues 2 and 7 to the effect that though the plaintiff in 2008 obtained a judgment from the Koforidua High Court over a parcel of land in suit No. E1/86/06, that judgment was not in respect of the disputed land in the present suit. Concerning issue 1, whether the plaintiff is the registered owner of the disputed land? Counsel for defendants though admitting in her address that the disputed land is registered in the name of the plaintiff, she opines that same is tainted with fraud and since fraud vitiates everything, this court should order for the cancellation of the registration of the land in favour of the plaintiff. The following cases were cited by counsel in support.  Brown vrs Quashigah [2003-2004] SCGLR 930.  Appea vrs Asamoah [2003-2004] 1 SCGLR 226@243  Amuzu vrs Oklikah [1998-99] SCGLR 141.  Okofoh Estates Ltd vrs Modern Sign Ltd. [1996-97] SCGLR 233  Comfort Offooley & Anor vrs Richard Maxwell [2018] JELR 108091.  Tawiah Senyo Ameyibor vrs Grace Boateng [2013] JELR 991904 (CA). The main grounds canvassed by counsel for the defendants in support of fraud on the part of the plaintiff in registering his documents were stated as discrepancies in his indenture and site plan. Although, counsel for the defendants could not establish fraud as would be later discussed, she was able to punch holes in the indenture of the plaintiff. Counsel stated: “there are many discrepancies in the said indenture proving his title which he exhibited as Exhibit A. These discrepancies alluded to the fact that fraud had been perpetuated, thus the indenture that was initially given to plaintiff by his grantors had been subsequently tampered with. Plaintiff under cross examination on the 11th day of July 2023 (page 4) testified as follows: Q. You have told this court you were given an indenture when you purchased the land? A. Yes. Q. And you have exhibited it as Exhibit A? A. It is so. Q. The indenture contains a site plan? A. That is so. Q. Is it your case before this court that the recital which forms the indenture, and the site plan were given to you at the same time? A. Yes, the site plan was prepared first and after based on that, the indenture was prepared and together given to me. Counsel for the defendants continued that: “it is trite that site plans attached to indentures are often prepared before and used in the preparation of the (schedule in the) indenture. This was affirmed by the court’s witness 1 (CW1) Augustine Kyeremeh of the Lands Commission, Koforidua, when he testified on the 19th of November 2024 (pages 5 and 6 of the court notes): Q. In your professional opinion, is it the case that you will need a site plan to prepare a schedule for an indenture? A. That is so, you will need a site plan to prepare a schedule. Q. Can you kindly refer to the plaintiff’s indenture, the date on which it was executed? A. The document I have here is dated 22nd April 2000. Q. Can you kindly produce the plaintiff’s site plan and kindly refer to the date on which the surveyor prepared the site plan? A. The site plan is dated 19th July 2000. Q. In your professional opinion, can there be a situation where the indenture was rather prepared and predates the site plan? A. In my opinion, the dates on the site plans attached to indentures mostly predates the date on the indenture. Q. You will therefore agree with me that the plaintiff’s indenture being prepared 4 months before the site plan clearly indicates the site plan was procured by fraud? A. I cannot tell whether the site plan was procured by fraud. All I know is that the date on the site plan succeeds the date indicated on the indenture. Q. In your professional opinion, can you confirm to the hearing of the court if plaintiff’s site plan was approved and checked by Survey and Mapping Division, Koforidua? A. The site plan of the plaintiff was not approved and checked by the Survey and Mapping Division, Koforidua. Whereas, the indenture was executed in April 2000, the attached site plan is dated on 19th July 2000, when it is common knowledge that the plan of a land that is being usually conveyed is prepared before the instrument is latter prepared and executed, but not otherwise. Further, the absence of the signature of the Survey Director’s on the indenture, Unfortunately, this is a legal requirement which cannot be disregarded. Akamba JSC in the case of Nortey No. 2 v. African Institute of Journalism and Communication No 2 [2013-2014] 1 SCGLR 703 at 717; [2014] 77 G. M. J. 1 at page 10 decided: “Exhibit ‘which is a site plan … is not dated and not signed by the Director of Survey or his representative. Indeed, the omission by the plaintiff is contrary to section 3 (1) of L. I. 1444, the Survey (Supervision and Approval of Plan Regulations, 1989 which makes it mandatory for plans of any parcel of land attached to any instrument for registration of such instruments to be approved by the Director of Survey or any official surveyor authorized in the behalf. As a result of this stark infringement of the statutory requirement, exhibit ‘A’ is rendered of no probative value as rightly determined by the Court of Appeal. Notwithstanding that the exhibit ‘A’ was accepted in evidence without objection, it could not constitute evidence for the purpose for which it was tendered since it infringed the instrument. This is so because the courts have a duty to ensure compliance with statutes including subsidiary legislations like LI 1444. Again, though the Lands Commission accepted the documents for processing, that cannot settle the matter, because where the Lands Commission is negligent and failed to ensure compliance of the law, the Court has a duty to do so. In the case of General Emmanuel A. Erskine & Another v. Victoria Okpoti & Another [2018] DLSC 189, the Supreme Court rejected a document that was negligently accepted by the Lands Commission when it was not conformable to the law. Apart from the site plan post-dating the indenture and also not signed by the Director of Survey, the identity of land conveyed to the Plaintiff by his grantor in the instant suit is uncertain. It is common knowledge that for a Plaintiff to succeed in title declaration claims, he must satisfactorily describe the identity of his land. See the cases of Kpakpo Brown v. Bosomtwi and Co. Ltd. (2001-02) SCGLR 876; Amuzu v. Oklika (1998-99) SCGLR 141 & Aryeh and Akakpo v. Ayaa Iddrisu (2010) SCGLR 891. The plaintiff’s grantor’s successor in title who testified for the defendants denied his family sold the place claimed to plaintiff, rather the land sold to the plaintiff lies elsewhere. That the disputed land belongs to the defendants. The plaintiff denied having his land situate elsewhere. There was thus an issue with the determination of boundaries, hence a composite plan was drawn up. The court’s expert’s (i.e. the Surveyor’s) report clearly showed that the land granted to the Plaintiff as described on the attached site plan was at variance with the land he is claiming on the ground. The expert’s report and composite plan was admitted in evidence without objection as Exhibit CW 1. Under cross examination by counsel for plaintiff as to why the plaintiff’s land as shown by his site plan has shifted, this is what was elicited. Q. Take a look at the plaintiff’s survey instructions and attached site plan from the site plan of the plaintiff attached to his survey instructions, plaintiff’s land lies along the Accra Kumasi Road, not so? A. That is so. Q. Will you agree with me that plaintiff’s land as shown on the ground lies along the Accra Kumasi main road? A. I agree. Q. You used the plaintiff’s site plan as part of this survey work, not so? A. That is so. Q. And the Accra Kumasi Road has not shifted, correct? A. The position of Accra-Kumasi Road as on the ground is what has been indicated on the composite plan? Q. I am suggesting to you that the plaintiff’s land which shares boundary with the Accra- Kumasi Road has remained so since his site plan was drawn in 2000? A. I still stand by what I said earlier that the position of the Accra Kumasi Road, as it is on ground has been indicated on the composite plan and the position as per the plaintiff’s site plan has been indicated on the composite plan accordingly. Q. Can you explain to this court, how plaintiff’s site plan used for the survey work has shifted from the main Kumasi-Accra Road? A. Respectfully, the site plan submitted by the plaintiff was produced by license surveyor N. K. S. Aryeekoi, hence I cannot tell this court why the site plan had differed from the plaintiff’s land on ground. Additionally, the coordinates of the boundary points of the plaintiff’s site plan have been indicated on the composite plan. The following was elicited under cross examination of CW 1 by Counsel for the defendants. Q. Can you interpret your findings as seen on CW2 and as written on CW1 in relation to the plaintiff’s site plan? A. The plaintiff’s boundary as per the submitted site plan has been indicated with broken red lines. The plaintiff’s boundary as shown on the ground has been indicated with red lines and also point P1-P5. In terms of acreage, the plaintiff’s site plan occupies 14.22 acres whiles the boundaries shown on ground occupies 16.63 acres. The distances from P1 to P2 is 41.5 feet. That of P2-P3 is 30097.9 feet. From P3 to P4 is 44.6 feet. From P4 to P5 690.4 feet and from P5-P6 784.6 feet. The area in dispute is the area overlap between the plaintiffs claim on the ground and the respective claims of the defendants. Q. You will therefore agree with me that the plaintiff’s boundaries as shown on his site plan is not the same as what is on ground, is that not so? A. That is so. The evidence of the expert surveyor in this case cannot be glossed over. The law is that although the evidence of a Court expert is only of persuasive effect and not binding, there must be very good reasons by the Court to reject it. In the case of Tetteh v. Hayford (2012) 44 GMJ 11, Dotse JSC held at page 17 thus: “It is generally understood that a court is not bound by the evidence given by an expert such as the surveyor in this case. But the law is equally clear that a trial court must give good reasons why expert evidence is to be rejected”. Ironically, the Defendants site plans are substantially conformable to their respective lands on the ground. In fact, the 4th defendant’s land does not fall within the plaintiff’s site plan, rather his land as shown on the ground. It is only the 2nd and 3rd defendants whose land per their site plan and land on the ground falls within the plaintiff’s land both on ground and site plan. The first defendant also has portions of his land falling outside plaintiff’s site plan. Though, such discrepancies in site plans are expected due to the various instruments used, the Lands Act, 2020 (Act 1036) specifically section 232 makes room for the court to order for corrections to be made in some of these instances, however, it is only in respect of site plans approved by the Director of Survey, which is not the case in the instant suit. In the instant suit with a difference of over 2 acres, and the plaintiff’s insistence that his land shares boundary with the Accra Kumasi Road, while his site plan and coordinates do not support same, which land would the court declare title over, the land as per his site plan or as shown on the ground? And each significantly imparts the defendants respective lands. This makes the identity of the plaintiff’s land not clearly defined and an order for possession difficult to execute. It must be emphasised that the plaintiff never explained these inconsistencies in his documents and on the land. In Obeng vrs Bempoma (1992-93) Ghana Bar Law Reports, 1029, Lamptey J remarked that: “Inconsistencies though colourless may cumulatively discredit the claim of the proponent of the evidence”. On the issue of fraud, fraud is a crime, and it has been held that fraud is criminal in nature even where it is clothed in civil garbs. In Section 13 (1) of the Evidence Act, 1975 (NRCD 323) the degree or standard of proof of fraud in both civil and criminal matters is therefore stated as follows: “In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.” Indeed, in the case of Nana Asumadu II (Deceased) & Anor vs. Agya Ameyaw [Unreported; Civil Appeal No J4/01/2018; 15 May 2019; SC], the Supreme Court held 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 criminal wrong. 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. Having pleaded fraud, …which connotes imputation of crime on the part of the Defendant in obtaining the judgment, the law required Plaintiffs to establish that allegation clearly and convincingly and beyond reasonable doubt.” (Emphasis added) Clarity of what fraud is in civil cases was given in the judgment of the Supreme Court in Good Shepherd Mission vs Sykes & others [1997-98] 1 GLR 978. Wood JSC (as she then was), defining fraud as pertains in civil case said: D L Mcdonnel and J G Monroe, two distinguished English text writers in their "Treaties on the Law of Fraud" which is found in their invaluable book Kerr on Fraud and Mistake (7th ed), p 1 have spelt out what amounts to or constitutes fraud in the eyes of the civil court. They write: [pg 991] "Fraud in the contemplation of a civil court of justice may be said to include properly all acts, omissions, and concealment which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconsent advantage is taken of another. All surprise, trick, cunning, dissembling and other unfair way that is used to cheat anyone is considered as fraud. Fraud in all cases implies a wilful act on the part of any one whereby another is sought to be deprived, by illegal or inequitable means of what is entitled to.” A site plan post-dating an indenture can be a factor in a claim of fraud; however, it is not a guarantee. If the site plan is inaccurate or misleading and used to induce another party to enter into an agreement, it could be evidence of fraud. In the instant suit, the site plan post-dates the indenture. The indenture is dated April 2000, and the site plan is dated 19th July 2000, the plaintiff did not offer any explanation as to the discrepancies. He however under cross examination contradicted his documentation that the site plan even predated the indenture, when clearly that is not the case. This is what plaintiff said under cross examination: Q. You have told this court you were given an indenture when you purchased the land? A. Yes. Q. And you have exhibited it as Exhibit A? A. It is so. Q. The indenture contains a site plan? A. That is so. Q. Is it your case before this court that the recital which forms the indenture, and the site plan were given to you at the same time? A. Yes, the site plan was prepared first and after based on that, the indenture was prepared and together given to me. Merely stating the site plan postdates the indenture without any corresponding unfair advantage gained and injury suffered by any unsuspecting party would not amount to fraud in my opinion. The fraudulent misrepresentation alleged which must be proved beyond reasonable doubt must also be distinctly alleged and distinctly proved as held in the case of Davy v Garret (1877) 7 Ch D 473 at 489, CA: “In the Common Law Courts no rule was more clearly settled than that fraud must be distinctly alleged and as distinctly proved, and that it was not allowable to leave fraud to be inferred from the facts.” (Emphasis added). The case of Davy v Garret (supra) was cited with approval by the Supreme Court in the case of Republic vs High Court, Accra; Ex Parte Aryeetey [2003-2005] 1 GLR, 537 in which the Supreme Court held that “As a matter of practice and procedure… it is a requirement that a judgment can be impeached on grounds of fraud only by a fresh action where the necessary particulars of the fraud must be distinctly stated in the pleadings. The proponent must not only distinctly specify the alleged fraud, but also strictly prove same because it is not permissible to infer fraud from general situations or facts.” (Emphasis added). Therefore, merely claiming that the plaintiff’s site plan postdated his indenture, so the court should infer fraud would not ground an allegation of fraud. I am, however, unable to hold that plaintiff is the registered owner of the disputed land because of the following: To begin with, no search report was tendered in evidence to confirm that the plaintiff is the registered owner of the disputed land. However, the 4th defendant under cross examination claimed he conducted a search, and the search revealed his portion of the land is registered in the name of plaintiff. The said search was not tendered in evidence. Surprisingly, per the composite plan, the 4th defendant’s land as claimed on the ground and per his site plan does not fall within the plaintiff’s land per plaintiff’s site plan, rather plaintiff’s land as shown on the ground. Therefore, if plaintiff’s land is registered per his attached site plan, then which site plan was attached to plaintiff’s indenture for registration for which a search revealed 4th defendant’s land falls within plaintiff’s registered land? Secondly, the 2nd defendant claims he also conducted a search before purchasing the land and his search did not confirm the plaintiff’s registered interest in the disputed land. The search report by the 2nd defendant was also not tendered in evidence. Thirdly, the 1st defendant also testified that his interest in the land is registered. In fact, he claims his grantor registered his interest in the land in 1994, even before the plaintiff purchased the land in 2000. Again, not to sound repetitive, the plaintiff also did not tender in evidence his search conducted prior to purchase of the land. Counsel for the plaintiff under cross examination of the alluded to the registration of the 1st defendant. This is what was elicited under cross examination of the 1st defendant. Q. The land the subject matter of dispute do you know the boundaries? A. Yes. Q. Give the court the boundaries? A. As far as I know I purchased a land of 6.34 acres from Adu Kofi Djin and the boundaries are as per the site plan attached to the lease dated 20th of September 2011 between Adu Kofi Djin and Real Impact Energy Limited. This was duly executed and registered under E. A 11268, serial No 1638 2011. Q. Can I look at the original of the site plan in your deed? A. Yes please. Q. I put it to you that, you were on the land of the plaintiff, and you knew that as a fact that was why you made part payment to him in respect of the land? A. No, at the time plaintiff approached me I had a registered document which indicated I was on the land, and I had title to the land... I paid the compensation to stop the interruptions. At the time he came to me I had title to the land. Q. I put it to you that, the fact that your registration went through does not negate the fact that plaintiff had prior registration of his interest in the portion you occupied? A. No, my grantor registered his land in 1994 that confirms that plaintiff cannot register same in 2004. Q. You agree that we will need the Lands Commission to help resolve the issues between you and plaintiff? A. It is up to the court to decide. Q. Will you be surprised if I tell you that per the root of title of the plaintiff, the land was registered long before Kofi Djin purported to register the land in 1994? A. I cannot allude to that. Q. What do you mean by I cannot allude to that? A. What you are asking about the plaintiff’s root of title. Unfortunately, the plaintiff’s indenture does not provide any evidence of a registered title of his grantor as counsel sought to portray. Further, the plaintiff has indicated on his document, Exhibit A, LVB/ER 687/2004; RE 1402/2004. The 1st defendant also has on his document, Exhibit D, LVB 2633/2011; RE 1822/2011. This court takes judicial notice of the fact that Eastern Region does not have land title registration and registered indentures normally have the prefix RE. The question is if the 1st defendant’s grantor purportedly registered his interest in the land in 1994, how did the plaintiff’s purported registration in 2004 go through and further how did the 1st defendant’s purported registration affecting portions of plaintiff’s purported registered land in 2011, go through? However, though counsel for the plaintiff intimated it was for the Lands Commission to assist resolve this issue, none of the survey instructions requested for the registered details of the disputed land. Further, no search report was tendered by any of the parties to confirm the registered status. Again, the plaintiff’s site plan is not endorsed by the Director of Survey. Therefore, with all these unsolved issues, I cannot hold that the plaintiff is the registered owner of the disputed land. Assuming without admitting plaintiff is the registered owner of the disputed land, the registration of land per se does not by itself render the title of the person in whose name the land has been registered unimpeachable. In the case of Osae vrs Adjeifio [2008-09] I GLR 606, it was decided at holding 5 as follows: “it was settled that the registration of an instrument per se did not confer an unimpeachable title on the holder of the registered instrument”. Pwamang JSC made a similar point in the case of John Kwadwo Bobie vrs 21st Century Construction Co. Ltd. & Others.; Civil Appeal No. J4/5/2014, dated 9th March, 2016, SC (Unreported) thus: “The settled law is that registration of instruments affecting land under the Land Registry Act, 1962 (Act 122) is not guarantee of title of the land where the person who is registered is not the true owner of the land”. Is the plaintiff, the bona fide owner of the disputed land? We will soon find out. In land suits, the plaintiff is required to establish the root of title, the mode of his acquisition and identity of the land among others. The Supreme Court in the case of Yehans International Ltd. Vrs Martey Tsuru Family and one other [2018] DLSC 2488 held: “It is settled that a person claiming title has to prove: i) ii) His root title Mode of acquisition and iii) Various acts of possession exercised over the land …This can be provided either by traditional evidence or by overt acts of ownership in respect of the land in dispute. A party who relies on a derivative title must prove the title of his grantor. Awuku vrs Tetteh [2011] 1 SCGLR 366”. On his root of title, the plaintiff testified that: “I acquired this piece of land, 14.22 acres in April of the year 2000 from Nii Mankata V a.k.a Edaward Asomaning Mankata, the then head and lawful representative of the Ntikora family of Pampanso near Nsawam for a consideration of Twenty Million cedis (C 20,000,000.00) which is equivalent to Two Thousand Ghana Cedis (GHC 2,000.00) in today’s currency terms. I was issued with an indenture to evidence the transaction. (Attached is the indenture dated 22-04-2000 between Nii Mankata V. and myself marked as Exhibit A). The plaintiff’s claim that he acquired his land from the Nii Mankata V. ak.a Nii Asomaning Mankata was denied by the defendants, who stated they will put plaintiff to strict proof. Since the title of the Plaintiff’s grantor was challenged, the Plaintiff had a duty to prove that his grantor had title to the land the subject matter of this suit before he could grant same. He therefore needed the help of his grantor to be able to leap over this hurdle. The Supreme Court in the case of Salomey Shorme Tetteh & Nii Amon Tafo v. Mary Korkor Hayford Substituted By Stella Larbi & Comfort Decker; unreported; Civil Appeal NO: J4/34/2011; 22nd February 2012 decided; “There is an obligation on a grantor, lessor or owner of land to ensure that any grant he purports to convey to any grantee, or lessee is guaranteed and that he will stand by to defend the interest so conveyed to any grantee or lessee …”. Surprisingly, the plaintiff’s grantor’s successor in title opted to testify against the plaintiff and in favour of the defendants. The 4th defendant called, the successor in title of plaintiff’s grantor, who is the current head of the Ntikora Family. He testified that the plaintiff did not directly purchased land from the Ntikora Family but purchased land at Number One, Teshie Pampanso from two elderly women namely Tsotsoo and Atteh. That his grantors did not have legal documentation and thus went to see Emmanuel A. Mankata who redirected them to Nii Ansah Mankata V (alias Edward Asomaning Mankata) the then Head of the Ntikora family to assist them with the necessary documentation to sell the land, which the latter agreed and provided. That the land given to the defendants are nowhere near the land given to the plaintiffs by these elderly women. The plaintiff’s land given to him for farming is located at Teshie Pampanso, whiles the defendant’s lands are located at Kwafokrom near Nsawam. He concluded his evidence by praying the court to prevent the plaintiff from trespassing onto the lands of the defendants. Under cross examination of DW1 SAMUEL NII MANKATA by counsel for the plaintiff, this is what transpired: Q. You are aware the plaintiff Desmond Duah has various parcels of land in or around the area in dispute, not so? A. Desmond Duah’s land is at Teshie. Q. I put it to you that Desmond Duah has 4 different parcels of land in and around the disputed area? A. That is not so. Q. Looking at your entire evidence you admit your family signed document for Desmond Duah in respect of a parcel of land? A. It was 14 acres of land at Teshie, signed by Nii Mankata IV, our chief now deceased. But the land in issue belong to Tsotsoo and Atteh. Q. So according to your evidence the ownership of Desmond Duah is not in doubt, what is in doubt is the location? A. Yes, he has land there. Q. I put it to you that you know nothing about the land the subject matter in dispute? A. I know the land in dispute, Desmond Duah came to see me to testify for him and that any money I demand he will pay, but I refused. Q. If this case is adjourned can you produce the document confirming your case that Desmond Duah bought 14. something acres of land at Teshie, signed by your family? A. Yes, I can but I am not well, so if I am unable to come, I will give it to my brother to bring it. Q. Desmond Duah has had a hell of time getting you to testify for him and what he offered you when he came to you was transportation to court? A. That is not true, where he claims his land is, is not that is why I refused to come to court to testify for him. What he offered me was not transportation but bribe. One of the principal members of the Ntikora Family, in the person of Ishmael Asamani Macarthy who witnessed the execution of the indenture of the plaintiff’s evidence corroborated the evidence of DW1, that the Ntikora Family did not directly sell the land to plaintiff and further where plaintiff is claiming was sold to him is different from where his family executed an indenture for plaintiff. This is what he said under cross examination: Q. Take a look at Exhibit A; can you identify it? A. Yes, I can. Q. You signed Exhibit A not so? A. Yes. Q. So we take it that Exhibit A is authentic? A. I can identify my signature, but the site plan, I am not an expert, and I cannot speak to it. Q. Go to the penultimate paragraph what is the approximate area? A. 14.22 Q. Take a look at the top of the site plan what is the acreage there? A. 14.22. Q. The facts contained in Exhibit A are correct, not so? A. In the paragraph 4 of Exhibit A, there are boundary names which I do not know of, I know Tsootso and the sister sold land to him. Q. Between the facts recited in Exhibit A and any other contrary facts which of them would you say represents the truth of what you signed to in Exhibit A? A. I cannot attest to other facts. Q. So you will prefer the facts in Exhibit A, the written document? A. In paragraph 4 there are some names mentioned which I do not know of. Q. It is not in doubt that you signed a land document which Desmond Duah acquired measuring 14.22 acres? A. Yes. It is surprising at after almost 25 years, the Ntikora Family are in court claiming the land they executed documents for the plaintiff does not belong to their family, but they only executed the document out of benevolence. Clearly, if this was done without the knowledge of plaintiff, then, the Ntikora Family perpetuated fraud on the plaintiff. Being a derivative title, the plaintiff ought to prove the title of his grantors and in the instant suit where his grantors are testifying against him, plaintiff faces a very tall order, if not an impossible task. It regrettable that in this case, the plaintiff’s lease does not give any narration in the recitals of his grantor’s root of title. Further, the plaintiff claimed prior to purchase he conducted a search which revealed the land belonged to the Ntikora Family before purchased. The said search report which would have confirmed the ownership of the Ntikora family and expose any possible collusion between the Ntikora family and the defendants to deny the obvious was never tendered in evidence by the plaintiff. This what the plaintiff said under cross examination: Q. Do you know the owners of the land you have purchased? A. Yes, as I earlier mentioned when I expressed interest in purchasing the land, I conducted a search at the Deeds Registry and the Lands Commission Koforidua, and they all showed the land belonged to the Ntikora family. Q. Is it your case that, at the time of purchase, the land was owned by the Ntikora Family? A. Yes, I had a friend at the Supreme Court who advised that before I buy a land, I have to conduct a search to ascertain the ownership, so I did a thorough search at both the Deeds Registry and the Lands Commission. Q. Is it your case that you purchased the land and thus made payment to the Ntikora family? A. Yes, I purchased the land from them and paid the money to them as well to the Ntikora family and this took place at the chief’s palace. Q. I put it to you that the land does not belong to the Ntikora family? A. According to the search I conducted at the Deeds Registry and the Lands Commission Koforidua it all shows the land belonged to the Ntikora Family. Q. I suggest to you that; the land belongs to the Asona Family? A. That is not true, per the search I conducted it belongs to the Ntikora Family. In the case of Bousiako Co. Ltd v. Cocoa Marketing Board (1982-83) 2 GLR 824, it was held at page 839 that If a party had in his possession certain documents to establish his case, but fails to produce them, then the proper inference to be drawn is that the document never existed or if it did, it did not contain all the averments mentioned or testified about. Further, the plaintiff who assumed the burden to establish the root of title of his grantors could have called his adjourning boundary neighbours to corroborate his evidence that the disputed land belonged to the Ntikora Family The purported principal member of the Ntikora family in the person of Maxwell Gyaben Quaye who plaintiff called as a witness, under cross examination was found wanting. This is what transpired under cross examination of PW1. Q. What family do you belong to? A. I am from the Akonobea family. Q. In paragraph 2 of your witness statement, you have stated that, you belong to the Ntikora family of which you are a principal member, I put it to you that you were not truthful? A. I am truthful to the court. I have an explanation, the same person who gave birth to Ntikora is the same person who gave birth to Akonobea, and they are from the same parents, so I can say I am from the Ntikora family or from the Akonobea Family. Q. I am putting it to you that contrary to what you are telling the court the Ntikora family is different from the Akonobea family? A. That is not true. Q. Do you know the principal members of the Ntikora family? A. I can mention one who was part of those who sold the land to Mr. Duah, E. A. Mankata aka Ansah Tse, who I came to meet. Q. Were you present during the said alienation of the land to plaintiff? A. I was not present but E. A. Mankata made me aware they have sold the land to Mr. Duah. Q. Can you mention any landmark on the said land? A. I cannot. Obviously, PW1, is not a principal member of the Ntikora family, because how can one alternate between families and further how can a principal member of a family not know the names of the other principal members of the said family? Gleaned from the evidence on record, I hold that the plaintiff failed to establish that his grantors are the owners of the disputed land. In the absence of any search report confirming that the plaintiff is the registered owner of the disputed land and in the face of possible double registration of portions of the disputed to different individuals and entities, it is established that the portion of land fenced by the 1st defendant is not part of the registered land of the plaintiff. This is grounded in the fact that a larger portion of the wall as shown on the composite plan does not fall within the plaintiff’s land both per his site plan and as shown on the ground. Also, the plaintiff having failed to prove his title to the disputed land, I further hold that at the time he received the sum of GHC 80,000.00 from the 1st defendant, he had no interest in that portion of land claimed. The 1st defendant is therefore entitled to recovery of the said sum. The 1st defendant however, maintained throughout the trial that he only paid the money to plaintiff for peace to prevail and not to purchase the land from plaintiff as he never acknowledged plaintiff’s ownership of the land. Thus, if the money was paid by the 1st defendant on his own volution for peace to prevail, I do not consider same as a debt to attract interest. The 1st defendant is accordingly entitled to the recovery of his money without any interest. On the last issue whether the defendants are trespassers on the plaintiff’s land. The plaintiff in the instant suit having failed to prove his root of title and his documentation fraught with several unexplained discrepancies, what would have helped resuscitated his case would have been possessory acts exercised over the disputed land. Regrettably, the defendants rather according to the evidence on record are in effective possession. In Majolagbe vrs Larbi and others [1959] GLR 190-195, Ollennu J (as he then was) held that: “The law as to trespass is that if a person proves merely that he is in possession of land, that is sufficient to enable him to maintain trespass against anyone who cannot show a better title. Upon that principle, granting for the moment that the case is trespass and nothing more, the onus is upon the plaintiff to prove that he was in possession of the land at the date when he alleged the defendants entered thereon”. Exhibit A, per the evidence on record was discredited. The question therefore is who is in effective possession of the land in dispute? The Plaintiff in his evidence to the Court stated that upon the acquisition of the land in dispute he erected boundary pillars on the land. The defendants on the hand testified about various possessory acts exercised over the land. The 1st defendant per the evidence on record has walled the portion of the disputed land he claims. The 2nd defendant on the other hand testified that upon acquisition of his portion of the land in 2015, he openly occupied and enjoyed peaceful possession, having built a two-bedroom house and commenced a storey building on the land. Exhibits 2D2 series being pictures of the said houses were tendered in support. The 3rd defendant also testified that he acquired his portion of the land in 2021 and has built a three-bedroom house on the land. Exhibit 3D1 of the said house was tendered in evidence. The 4th defendant on the other hand as shown per the composite plan has a dwarf wall on the portion of land he claims It must be noted that though the defendants have not been on the land long enough for an adverse claim to lie, regardless, the Evidence Act, 1975 (NRCD 323) gives statutory recognition to possession as a mark of ownership. Section 48(1) of the Act 323 states:- 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” Aside the bare assertion of the Plaintiff that upon the acquisition of the disputed land he erected a corner pillar to secure the land, which assertion the defendants denied, saying they acquired the land when it was vacant, the Plaintiff did not lead any cogent evidence to prove that in fact he was in possession of the disputed land. The law is settled that a person in possession of land has good title against the whole world except one with a superior title. The plaintiff having failed to adduce credible and cogent evidence to rebut the presumption of ownership in favour of the defendants, that is, 1st, 2nd, 3rd and 4th defendants to portions of the disputed land, this Court cannot make any declaration for him as being the owner of the disputed land. A person who comes to Court, no matter what the claim is must be able to make a case for the court to consider otherwise he fails. However, having succeeded in establishing some case he can take advantage of conflicts, admissions and other weaknesses in the defendant’s case. See the case of Nartey v. Mechanical Lloyds Assembly Plant Ltd. (1987) 2 GLR 314 decided at page 344. Also, in the case of Edith v. Keelson [2012] 37 MLRG 127 at pages 176-177, their Lordships held: “If the plaintiff in a civil suit, fails to discharge the onus on him and thus completely fails to make a case for the claim for which he seeks relief, then he cannot rely on the weakness in the defendant’s case to ask for relief. If however, he makes a case which would entitle him to relief if the defendant offers no evidence, then if the case offered by the defendant when he does give evidence discloses any weakness which tends to support the plaintiff’s claim, then in such a situation the plaintiff is entitled to rely on the weakness of the defendant’s case to strengthen his case”. The burden to be established by a Plaintiff under the law is double-edged. Akamba JA (As he then was) in the case of Kwaku Mensah Gyan & I Or. V. Madam Mary Armah Amangala Buzuma & 4 Ors. (Unreported) Suit No. LS: 794/92 dated 11 March 2005 explained: What is required is credible evidence which must satisfy the two-fold burdens stipulated by our rules of evidence, N. R. C. D. 323. The first is a burden to produce the required evidence and the second, that of persuasion. Section 10 & 11 of N. R. C. D. 323 are the relevant section … This burden is not met merely by tendering the exhibit A in evidence with all its ambiguities, lingering doubts and lack of explanation. Since the plaintiff could not lead credible and satisfactory evidence in this case to establish his title and the trespass complained of, he is not entitled to the reliefs he seeks. The plaintiff’s claim is accordingly dismissed. The plaintiff is ordered to refund to the 1st defendant, the amount of GHC 80,000.00 received from the 1st defendant. Cost of GHC 20,000.00 against the plaintiff in favour of the defendants. (SGD) H/H DIANA ADU-ANANE CIRCUIT COURT JUDGE 34