Amato & Another Vrs Togbe Kwaku Dua Viii & 3 Others [2022] GHAHC 90 (5 December 2022)

P a g e | 1 IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COURT 1) HO HELD ON MONDAY 5 DECEMBER 2022 BEFORE JUSTICE GEORGE BUADI, J. FRANKLYN AMATO & ANOR (Suing for themselves as beneficiaries And Administrators of the estate of Torgbui Toyi IV) Versus 2 4 TOGBE KWAKU DUA VIII BEN DAMESI PAUL SAKPATA VOLPALM LTD } } } } } } } SUIT NO. E1/35/2020 …… PLAINTIFFS } …… DEFENDANTS JUDGMENT Background Claiming as administrators of the estate of their late father Togbe Toyi IV1, and on behalf of their other siblings and beneficiaries of the estate, which they claim is under threat by Defendants, Plaintiffs, on 22 January 2020 commenced this suit by a writ of summons against Defendants herein for the following reliefs: i An order of declaration of title in favour of Plaintiffs on behalf of their father's estate over the land described as all that piece or parcel of land situate, lying and being at Gbefi Tornu in the Kpando Municipality and bounded on the North East by the Gbefi Tornu stool land, the vendor's land measuring 1000, 2500, 1500 and 1450 feet more or less; on the North West by the vendor's land measuring Known in private life as Constance Hughes Moensi Amattoo 1 | P a g e P a g e | 2 2150, 1650,1700, 700 and 1,145 feet more or less; and also bordering the River Dayi and the adjoining forest respectively measuring 9,840 feet more or less; on the South East by the vendor's land measuring 1,790 and 2,050 feet more or less; and on the South West by the vendor's land measuring 2000, 2000, 2450 feet more or less all containing an approximate area of 814.68 acres or 329.69 hectares. ii An order for recovery of possession of about 400 acres of their late father's land, currently being cultivated by VOLPALM LIMITED. iii Alternatively, an order to compel the 4th Defendant to attorn tenancy to the Plaintiffs and a further order to negotiate rent for the iv v land cultivated so far. Damages for trespass against the 4th Defendant. An order for a perpetual injunction restraining Defendants whether by themselves or their assigns, workers, agents, etc from interfering with the remaining 400 acres outside the cultivation of 4th Defendant or in any way interfering with Plaintiffs' … ownership, possession and control of the land. vi An order for damages for trespass by Defendants jointly and severally. vii Costs. Parties’ statements of case The plaintiffs’ case, as I find, is that their late father Togbe Toyi IV of Gbefi Tornu died on 3 August 2002 and left as part of his estate a large tract of land of about 814.68 acres or 329.69 hectares situate at Gbefi Tornu within the Gbefi Tornu Stool land in the Kpando Municipality of the Volta Region with boundary dimensions as stated on the writ of summons. The land, according to the Plaintiffs was a 2 | P a g e P a g e | 3 customary grant to their late father by the Gbefi Tornu Stool in his private name - Constance Hughes Moensi Amattoo - as motivation for their late father to continue his services, sacrifices and provision of financial assistance to the Gbefi Stool to protect the integrity of its vast land mass from the persistent boundary skirmishes and incursions from its neighbours - Kpando, Sovie and Ve. The plaintiffs’ case is that, with intent as the last resort to protect the heritage of its vast landmass from the continued onslaughts from its neighbours, the Gbefi Stool purposely created a hitherto unknown divisional stool and installed their father as Togbe Toryi IV as a chief. The existence of the stool was hitherto unknown in Gbefi, as their father had no progenitor nor a successor after his death. The intent of the installation of their late father by the Gbefi Stool as divisional chief of the Stool with the stool name Togbe Toryi IV, according to Plaintiff was for the Gbefi Stool to gain, use and rely on their late father’s good standing in society, vast experience in life, resources as well as knowledge and capacity and the traditional authority by dint of his installation as divisional chief of the Gbefi Stool to ultimately prosecute the land boundary dispute against its neighbours - the Kpando, Sovie and Ve Traditional Areas. It was for this reason therefore according to Plaintiffs that the Gbefi Stool, represented by its then occupant Kwaku Dua VII, 1st Defendant’s immediate predecessor and his elders made a customary grant of the land in dispute to their late father described in a site plan duty endorsed by the Stool. The grant was is in their late father’s private name - Constance Hughes Moensi Amattoo. The Gbefi Stool, having armed itself by the installation of their late father ultimately by a petition resorted to the Stool Land Boundary Settlement 3 | P a g e P a g e | 4 Commission SLBSC) for the determination of its boundaries with its neighbours - Kpando, Sovie and Ve Stools. The plaintiff’s father in fulfilment of his obligation as Togbe Toryi IV was deeply involved in the boundary dispute; indeed facilitated the eventual victory of the Stool at the SLBSC against its neighbouring Kpando, Sovie and Ve Stools. Besides, according to the Plaintiffs, it was their father who paid the lawyer’s fee as well as the drawing of the judgment plan the Commissioner of the SLBSC ordered and it was for this reason that the judgment plan of the SLBSC had been in the custody of their late father and on his death in the custody of Plaintiffs as administrators of the estate. According to the Plaintiffs, after the customary grant in 1978, their late father took immediate possession thereof by erecting boundary pillars and also cultivated cash and food crops thereon until he died in 2002 evidenced by a farming settlement known as Toryi village. Plaintiffs contend that having granted the land in dispute to their late father in his private name in consideration and motivation for his role in protecting the integrity of the larger Gbefi Tornu stool land, the over 800-acre customary grant of the Stool became the personal property of their late father who indeed possessed the said land until his death. Plaintiffs aver that by operation of law, the entire 814.68-acre land, which indeed is accompanied by not only a site plan endorsed by the Stool but also captured in the judgment plan of the SLBSC, devolved onto them as beneficiaries of their father’s estate. Plaintiffs aver further that 1st Defendant, Kwaku Dua VIII, the current occupant of the Stool by his recent acts had resolved not to acknowledge and recognize their late father’s sacrifices to the Stool and the customary grant of land to their father. Though expressing their allegiance and loyalty to the Stool like their late father did as a member for which reason he sacrificed his time and resources that 4 | P a g e P a g e | 5 culminated in the victory at the SLBSC, Plaintiffs aver that they are compelled to initiate the action against 1st Defendant and the other Defendants for endangering, indeed intermeddling with the interest of the estate. Hailing from the same family and stool, the 1st 2nd and 3rd Defendants filed a common defence, whilst the 4th Defendant filed its defence along the lines of the claims and denials of the other Defendants. Defendants deny that the Plaintiffs’ father financed the land litigation at the SLBSC, nor play any extraordinary role in the Gbefi community. They further deny that the Gbefi Stool ever granted the Plaintiffs’ father an 814.68-acre land for his role in the SLBSC hearing and services to the Gbefi community. Defendants case, particularly the 4th Defendant is that the Plaintiffs are estopped by conduct, as it was in 2010 that it acquired a portion of the land Defendants granted to Emil Akwettey in 1994 and had in consequence put the land into oil palm plantation and that all these acts of possession took place before the death of Plaintiffs’ father in 2002. Defendants deny the Plaintiffs’ claim, challenging their capacity to commence the action. Defendants aver that granted without admitting the customary grant by the Gbefi Stool to the Plaintiffs’ late father, the grant is a nullity and passed no title to the Plaintiffs' father, as the grant is in breach of the law regulating the grant of stool lands, and thus Plaintiffs are not entitled to their claims. Issues for trial At the close of pleadings, the court set down the following issues for trial: Whether or not 814.68 acres of Gbefi stool land was [granted] to Plaintiff father 5 | P a g e P a g e | 6 Whether or not the said grant was demarcated and distinguishable 4 from the larger Gbefi stool land. Whether or not the [grant is valid]. Whether or not 400 acres of Plaintiffs’ father’s land was contained in the land purportedly demised to 4th Defendant by the other Defendants. Whether or not Plaintiffs … are entitled to rent accruing from [farming activities] of 4th Defendant on the 400 acres land.2 Whether or not [the] Toyi stool was created and Plaintiffs’ father … was enstooled as Togbe Toyi I to enable him sue the boundary owners. Whether or not Plaintiffs’ father sued those who shared common boundary with Gbefi stool land for the boundaries of the land to be determined. Whether or not the Kwaku Dua Stool has been exercising ownership right and control over the land in dispute in the life time of Plaintiffs’ father. Whether or not Plaintiffs are estopped proprietarily by conduct, laches and acquiescence from claiming the land 4th Defendant and Emil Akpetey are in possession of. Whether or not Plaintiffs have capacity to commence … this action.3 Finding of facts: preliminary and primary; assessment of evidence and the applicable law. It was agreed at the case management conference that Plaintiff’s case shall be led 3 The issues Plaintiffs set down for trial by the court. Issues the Defendants set down to be tried 6 | P a g e P a g e | 7 by 2nd Plaintiff Patrick Amato based on the 33-page witness statement he filed on 24 June 2020. The witness statement is attached with Exhibits A, B, C, D, E, F and G series (G1 & G2), as well as Exhibits G3 & G4 attached to his supplementary witness statement that was filed on 22 Jan. 2021.4 The plaintiffs’ case includes witness statements that PW2 and PW3 filed, attached with Exhibits H, J, K and L.5 Defendants filed separate witness statements: 1st Defendant filed a 5-page 36- paragraph witness statement, attached with Exhibit 1D2.6 Like the 2nd Defendant’s 3-page 15-paragraph witness statement, the 3rd Defendant’s 3-page 14-paragraph witness statement contains no exhibit attachments. The Defendants’ witness, Emil Akpetey filed a 3-page 16-paragraph witness statement, attached with Exhibit 1D series (1D3 - 1D6).7 The 4th Defendant per its managing director Godwin Edem Adordie filed a 4-page 20-paragraph witness statement attached with Exhibit 4D series (4D1 – 4D14).8 Being a land matter the court appointed the Regional Surveyor, Lands Commission Ho to draw a composite site plan to depict the parties’ boundary claims, who indeed produced his report Exhibit CW and CW1. Upon the request of Defendants, which is based strictly on medical grounds, and upon the 5 7 They are letters of administration; a site plan; a search report from Ministry of Chieftaincy Affairs; Land and Concession Bulletin; judgement plan; a funeral tribute; and search reports. A structure; a funeral and thanksgiving service brochure; a boundary pillar, and one uprooted. An extract from Ghana Land and Concessions Bulletin No.14 - judgment dated 26 Oct. 1983 in the matter of that boundary dispute between Gbefi Stool and Kpando, Sovie- Kudzra Re Stools … pages 189 -111. Copy of a site plan, and pictures of farm structures on the land They are, largely, pictures of structure and activites on the land. 7 | P a g e P a g e | 8 permission of the Chief Justice, the evidence of Defendants’ witness Emil Akwettey was taken at the Law Courts Complex, Accra per a video conference. The integrity of the outcome of a case at the trial court depends on the correct and relevant findings of facts the court makes out of the sea of contrasting evidence on record. Besides, the search for and the correct application of the law depends almost invariably on the primary facts the court correctly finds in the case. Quaye vs. Mariamu [1961] GLR 93, SC at page 95. See also Addison vs. A/S Norway Cement Exp Ltd [1973] 2 GLR 151; Domfeh vs. Adu [1984-86] 1 GLR 653, CA. I need to state at the outset however that, the duty of finding primary facts does not extend to facts the court deems irrelevant to resolve or address the primary or core issue in controversy in the suit per the law involved and applicable to the case, as the trial court had the core duty to discern the real or core issue in controversy by looking at the substance thereof, not necessarily or strictly per the form the parties’ plaint or causes of action have been couched. Upon hindsight, the Plaintiffs’ case, largely, is that the 1st Defendant’s predecessor granted their late father an expanse of land, which Defendants, particularly 1st Defendant, the present occupant of the Gbefi Stool acting through 2nd and 3rd Defendants do not seem to acknowledge and recognize by granting portions thereof to 4th Defendant. Defendants, on other hand, contest the grant on grounds that it is invalid and a nullity for its failure to meet demands of the law on the matter. This is the crux of the controversy in this suit, as I find it It is sad to observe how lawyers presently are turning pleadings into evidence and invariably the prolixity in pleadings. Conceding that a party may not be permitted to lead evidence on unpleaded fact or claim, all the same, the purpose of pleadings 8 | P a g e P a g e | 9 is not the same as evidence. Pleadings simply are the foundational architecture; it is not the full structure. I wonder how such a simple cause of action would warrant a 7-page 38-paragraph statement of claim, and in particular, indeed, curiously a further 16-page 65-paragraph reply to Defendants 6-page 33-paragraph statement of defence. Such prolixity, I must say, is having a toll on the smooth work delivery of the courts. I concede though that the court is partly to blame for its failure at the most appropriate time to crack the whip by sanctioning offending parties. Per the pleadings and in particular, the evidence adduced at the trial, my view is that the core issue in controversy, as I broached above, is the determination of the validity of the alleged customary grant by the Gbefi Stool to Plaintiff’s late father, indeed the circumstances leading to the alleged grant. The basis for this view of mind is that the customary grant, according to the Plaintiffs was made to their late father in 1975, whilst the alienation by the Stool, albeit differently constituted, to Emil Akwettey, and later to 4th Defendant, according to Defendants was made in 1994, almost twenty years thereafter. It is after the determination of the validity of the customary grant in 1978 that it becomes crucial to find whether subsequent alienation by the Stool to Emil Akwettey and 4th Defendant is part, forms part, or extends unto the earlier grant to the Plaintiffs’ late father, and then later to the ultimate determination of the validity of the latter grant. Once again, this is the heart of the suit, as I find it. In all these, the question as to which party assumes the onus of evidential proof of an issue for determination does not rest always on a plaintiff. The burden of proof largely depends upon the nature of pleadings and the issue under consideration at every stage of the proceedings. Thus, the burden of proof in a case may not be static resting on a plaintiff or even a party throughout the case. The Evidence Act, 9 | P a g e P a g e | 10 NRCD 323 section 11 places the burden of producing evidence, not necessarily on a plaintiff but ‘a party’ “to introduce sufficient evidence to avoid a ruling on the issue [under consideration] against that party”. Bank of West Africa Ltd v Ackun [1963] 1 GLR 176 SC; In Re Ashalley Botwe Lands: Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] SCGLR 420. Furthermore, NRCD 323 s. 14 id provides that ‘a party’ who in his pleadings or his evidence at trial raises an issue essential to his success in the case assumes the burden to establish proof of that claim. A person who asserts a claim that is denied assumes the evidential burden of proof. I need to state here that proof or denial thereof is not limited or ascertainable strictly from isolated strictures or piecemeal evidence. Decisions of the court are based not on isolated piecemeal strictures of bare admission or denial of a fact. Decisions of the court are based rather on a jigsawed intricately-woven totality of evidence that smoothly leads to a fairer and just conclusion on what the court identifies as the core issue of controversy. I proceed, first to make findings of facts evident on the pleadings; facts and claims the parties admitted or are deemed to have admitted at the trial, particularly at cross-examination for which reason the law requires no evidence or further evidence to back up the claim or the denial. Bank of West Africa Ltd v Ackun [1963] 1 GLR 176 SC; Kusi & Kusi v Bonsu [2010] SCGLR 60. These are the background facts that shall form the foundation for appreciation and understanding of what shall be the basis of my ultimate concluding findings and holdings in the action. 10 | P a g e P a g e | 11 Firstly, concerning the capacities of the parties, per Exhibit A9, I find the Plaintiffs as holding the requisite capacity as administrators of the estate to mount the action. I find 1st Defendant as the current occupant of the Kwaku-Dua Stool of Gbefi-Tornu with the stool name Togbe Kwaku Dua VIII, indeed the immediate predecessor of Togbe Kwaku Dua VII, Chief of Gbefi. The 2nd Defendant is the present head of the Toyi family, whilst the 3rd Defendant is a member of the Inglesi family who also descends from the Kwaku Dua Stool. 4th Defendant is a company that is in the cultivation of palm plantation, which the Plaintiffs accuse of trespass. Defendants deny the crux of the Plaintiffs’ case, particularly the stature, importance and crucial role their late father played in the land affairs of Gbefi Stool that formed the motivation for the Stool’s customary grant to their father. Having denied these claims, the law requires the Plaintiffs to provide satisfactory proof of the claim. I need to reiterate however that the law does not require proof of facts admitted, or deemed to be admitted. I am of the view that Defendants generally, particularly the 1st Defendant, the present occupant of the Stool made crucial admissions under cross-examination on this issue. Whilst Defendants admit that the Gbefi Stool installed Plaintiffs’ father as Togbe Tovi IV on 3 January 1982, they however deny that he played an extraordinary role in the Gbefi Tornu community. I find this claim to be far from the truth, indeed, per Exhibit F10, a dishonest self- denial least expected from 1st Defendant. I say this because the 1st Defendant was installed in 1987 as Kwaku Dua VIII, chief of Gbefi, succeeding his immediate predecessor Kwaku Dua VII. 1st Defendant, therefore, came to know very well Plaintiff’s late father, indeed the history of the Gbefi as well its heritage vast land mass wealth. At the time of Plaintiffs’ father's death in 2002, 1st Defendant was the 10 Letters of administration of the estate. Tribute by 1st Defendant at the burial and final funeral rites of the late Togbe Toyi IV 11 | P a g e P a g e | 12 occupant of the Gbefi Stool, having succeeded his predecessor Togbe Kwaku Dua VII. By the tribute that 1st Defendant paid to the plaintiff’s father at his final burial rites in 2002, one may infer that what might not have been a cosy relationship with Plaintiff’s late father during his lifetime when 1st Defendant stated, “[t]here existed differences between us on some radical policies”. All the same, the following statement is part of what 1st Defendant said about Plaintiffs’ late father in the tribute: Dear Togbe, I present this tribute to you on behalf of my [C]hiefs, Elders, Queen mothers, the entire Gbefi … and on my own behalf as our last respect and love. You were educated and enlightened hence you worked joyfully with your predecessors, Togbe Akom VI and Togbe Kwaku Dua VII. The vital roles you played in [the] Gbefi Stool Land Boundary settlement issues in the 1980s will forever remain indelible in our minds. It is worth remarking that you continued your roles with the present traditional rulers of Gbefi in the same manner. You run several errands and made relevant contacts with many distinguished personalities for us. Gbefi owes you profound gratitude. (Emphasis added) Possibly out of ignorance and perhaps self-denial, I find on the record ample proof of 1st Defendant’s denials of basic historical facts of Gbefi Tornu on this core issue. It might not be deliberate, as the 1st Defendant largely lived outside Gbefi before his installation as chief of Gbefi Tornu in 1987. Indeed, he admitted under cross- examination that “[o]fficially, I did not play any traditional role” in the affairs of 12 | P a g e P a g e | 13 Gbefi Tornu. The 2nd and 3rd Defendants were either too young or were also staying largely outside Gbefi to notice and appreciate their history of the creation of the hitherto unknown stool for Plaintiffs’ late father coupled with the Stool’s persistent land boundary ‘battle’ with its neighbours. Indeed, it is intriguing, the circumstances of the creation of a divisional stool and the installation of the Plaintiffs’ father on the stool as Togbe Toryi IV of Gbefi Tornu. I say this, because, Defendant admitted under cross-examination that Togbe Toryi IV had no progenitor nor a successor after his death. I do not find as credible of belief the reason Defendant gave for the cessation or lack of succession of the stool after the death of Plaintiffs’ late father. The Gbefi Stool is amply endowed with vast land. It is however surrounded by Kpando, Sovie and Ve Traditional Areas. It is a notorious fact that there had been persistent boundary skirmishes and incursions by neighbouring stools leading to boundary litigation and arbitration involving its neighbours culminating in the case of Tsrifo v Dua that was reported as [1959] GLR 63. With incessant threats over its frontiers and fear of losing parts of its land as a result of poor representation and evidence, as recorded in Tsrifo v Dua, the Stool instinctively resolved and prepared itself to formally launch a formal suit to protect its land at the courts with better representation and evidence presentation. From the evidence on record, I have no reason to doubt the fact that not only did the Gbefi Stool grant a parcel of land to Plaintiffs’ late father in his private name but also created a hitherto unknown stool for Plaintiff’s late father Togbe Toryi IV purposely to assist in the preparation of a good brief and further presentation of a good case before the court. 13 | P a g e P a g e | 14 I have no reason therefore not to agree with the Plaintiffs that their late father was chosen by the Stool for this all-important task of prosecuting the land boundary litigation at the SLBSC for three main reasons: that, he was a direct descendant of the Kwaku Dua Stool, a great-grandson of Togbui Ametu Kwaku Dua I, who by extension was a direct descendant of Dakatekpo, the founder of Gbefi; that, he was the most educated among the elders of his time, having been the first person in the history of Gbefi-Tornu to have acquired his education in England. This became very necessary as Gbefi identified that the reason for its previous court losses in the 1958 Kpando Native Appeals Court and the Tsrifo v Dua id were due mainly to the presentation of unreliable witnesses; and lastly, indeed not denied that he was in a very lucrative transport business and therefore expected to provide leverage of his financial resources for the successful prosecution of the case. I find that Plaintiff’s father, as a native of Gbefi, indeed, hailing directly from the royal Kwaku Dua lineage, had an automatic usufructuary land use and ownership right to Gbefi stool land and therefore into large-scale farming during the era of Acheampong’s ‘Operation Feed Yourself’ program. All the same, Plaintiffs claim that the Gbefo Stool on 4 January 1978 made a customary grant including the portion he was working to the late father personally in his private name largely in anticipation of, indeed motivation for his expected crucial assistance the Stool needed in their land litigation with its neighbours. The customary grant is executed by the then occupant of the Stool Kwaku Dua VII and Togbui Golodo Kosi Leo. By the chronology of events, I find that the decade 1970s to 1980s was the period that the Gbefi Stool was facing critical boundary challenges from its neighbours. Indeed, the 1st Defendant admitted under cross-examination that following Gbefi; 14 | P a g e P a g e | 15 loss at the Native Appeal Tribunal and also in Tsirfo v Dua, the challenges of land boundary skirmishes and incursions by its neighbours persisted and did not cease. 1st Defendant stated further that “[y]es, it did not; that was why we petitioned the Supreme Military Council for demarcation of boundary of Gbefi Stool and its neighbours”. That was in July 1981 but the actual hearing commenced on 14 December 1981. Per the evidence on record, my view is that the Gbefi Stool found their ‘saviour’ in Plaintiff’s late father. Though not the one who ultimately filed the petition, nor represented the petitioner Kwaku Dua VII, Togbe Toryi was a vital witness in the suit. With ease, I find that the installation of Plaintiff’s father as Togbe Toryi in January 1978 was in earnest preparation for the filing of the petition in July 1981 by the Gbefi Stool represented by Kwaku Dua VII. 1st Defendant admitted under cross-examination that Togbe Toryi was the only witness of the seven witnesses the Stool presented that hailed from Gbefi. He admitted further that the SLBSC nearly dismissed the suit and that it was the evidence of the Plaintiffs’ late father that salvage it. Defendants discount the role that Togbe Toryi played in the case. They contend that the suit was prosecuted with the resources of the Stool and that it was not financed by Togbe Toryi. I find no proof of this claim; indeed, the 1st Defendant, under cross-examination admitted that he has no idea how the fees of their lawyer, Kludze, Esq. were paid, including how the mobilization of errands undertaken in connection with the suit. This is in contrast to Plaintiffs’ evidence that it was their father that not only paid for the legal services and fees of the lawyer but also the filing processes, the cost of running errands and also drawing of the judgment plan of the SLBSC. I have no difficulty, indeed reiterating my finding that Plaintiffs’ 15 | P a g e father performed all these roles and tasks on behalf of the Gbefi Stool possibly as a result of the customary grant to him of land. P a g e | 16 Besides all these, with Defendant’s claim that the Gbefi Stool filed the petition and financed its prosecution, including payment of court processes, filing fees, and most importantly cost of drawing the judgment plan that was ordered by the SLBSC, the presumption is that copies of the judgment and the judgment plan would be in their custody and possession. The Gbefi Stool does not have a copy of the judgment plan. It is rather Togbe Toryi that had a copy of the judgment plan. I find it easy to conclude therefore that the customary grant to Plaintiffs’ late father in 1979 in his private name was a motivation for the expected or anticipated assistance of the Stool anticipated from Togbe Toryi for the prosecution of the planned boundary litigation to be filed before the SLBSC. 1st Defendant denies the customary grant by the Stool to Plaintiffs’ late father. Defendants’ lawyer challenged the validity of the grant, on grounds, mainly that the elders who executed the plan were illiterates, and that Golodo’s name, in particular ends with an ‘h’ – Golodoh, and not Golodo. Exhibit B is the site plan accompanying the grant. It was made in the personal and private name of Togbe Toryi – Contance Hughes Amatoo-Monsie. 1st Defendant identified the site plan, indeed, and further identified under cross-examination the signatories as that of his predecessor Kwaku Dua VII and Golodo Kosi Leo who I find is not a stranger to the Stool. I find that neither Kwaku Dua VII nor Golodo Kosi Leo was illiterate. There was no proof of the illiteracy claim; neither do I find the claim that the name Golodo ends with an ‘h’. I find on the contrary that the documentary evidence that Defendants presented - Exhibit 1D1 - has the name written without the ‘h’. 16 | P a g e P a g e | 17 1st Defendant could not deny that Plaintiffs late father presented a ram and drinks to appreciate the grant and signify the acceptance of the grant. Neither could he deny, most importantly the presence of persons who witnessed the acceptance of the grant by Plaintiffs’ father. They are Emmanuel Ametu, Ambrose Tsepodoe, Paul Addo, Ben Agbeko, Yao Badu Sakpata, Anku Dzin, Agbozumetu, and Kofiga Gawu. These persons, according to the Plaintiffs are principal members of the Gbefi community. None of these persons was claimed at trial to be alive presently. Indeed, according to the Plaintiffs, they are dead except Kofiga Gawu. The response of 1st Defendant in all these is that “[he] had no idea of these facts”. My view is that Defendants who deny the validity of the grant assume the evidential duty to call this sole surviving material witness, but they failed to call him. Customary grant needs no writing. All the same, I find particulars in the site plan and its execution by the Stool very crucial in endorsing. I have no grounds in law to discredit the grant and label it as invalid. I endorse the customary grant as valid and that the Gbefi Stool is bound by it. Concerning Plaintiff’s claim for a declaration of title in their favour, the law is settled that a plaintiff who seeks the relief has the evidential burden to discharge proof of his perceived title to the land. The plaintiff needs to lead evidence of their root of title, possession and user. A balance of probabilities of belief is enough, indeed the requisite standard to secure a victory. Banga & Ors vs Djanie & Anor [1989-90] 1 GLR 510; Akoto II v Kavege [1984-86] 2 GLR 365 CA; See also Odoi v Hammond [1971]2 GLR 375, at 382 CA. What is meant by a good title to land, as provided in the earlier Land Title Registration Act, 1986 (PNDCL152) s. 23(5), had been repeated in the Lands Act, 2020 (Act 1036) s. 64. The law had at all material times defined a good title in a case in which the title is founded on a documentary 17 | P a g e P a g e | 18 piece of evidence as one that consists of or commences with “[a]n enactment; a grant or conveyance from the Republic; a grant, conveyance, assignment or mortgage which is more than thirty years old and establishes that a person is entitled to deal with the land, or a final judgment of a Court of competent jurisdiction. (Emphasis added). It is important to add here that it was not contended nor suggested in this suit that the decision of the SLBSC and the accompanying judgment plan that captured the Plaintiffs’ late father site plan of P has been contested or a subject matter of a successful appeal. Though not formally reduced in writing, I deem the accompanying site plan Exhibit B as crucial. Besides, the site plan was prepared by a licensed surveyor whose credentials were not challenged. By customary law, it is only the occupant of the stool, in this instance, Nana Kwaku Dua VII and the principal elders or some of them that can validly alienate stool land. The law requires the identity of the elders who executed the grant. I have found in this case not only that the site plan that signified and endorsed the grant has been executed by the then occupant of the Gbefi Stool as well as a principal elder of the Stool, but also that, the grant was received and accepted with a ram and drinks by Plaintiffs’ father by a presentation to the Stool that was also witnessed by principal members of the Gbefi community. I have also found in this case that the grant was in anticipation of services from the grantee, who I have found discharged those services during the preparation and prosecution of the Stool’s land suit at the SLBSC. I hold therefore that customary grant Exhibit B is a crucial documentary piece of evidence of good title according to the law cited above. Further to all these crucial findings, I find also that the site plan had been endorsed, and impliedly validated by SBSC in its judgment plan featured very well in the work of the Surveyor this 18 | P a g e P a g e | 19 work appointed. I have the calmness to hold and conclude that the customary grant evidenced by Exhibit B and endorsed by the Gbefi Stool to the Plaintiffs’ father is a veritable good root of title. I find that Plaintiffs late father was in the early 1970’s cultivating the land in the exercise of his usufructuary land use rights before the customary grant in 1979 and that after the grant, he had been in possession thereof. I find evidence of effective possession or ownership of the land not only by their late father who had a settlement village on the land but also that Plaintiffs who not only had subjected portions of the land to food crops cultivation but also once challenged the removal of pillar boundaries on the land by acts instigated by the Defendants. I find as more probable that it was Plaintiffs’ late father who constructed a 2-mile long road from the main Kpando- Golokuati road to the land. This road became the only motorable road to the land and the surrounding farms. According to Plaintiffs, the road can also be seen on the SLBSC’s judgment plan or map of 1983; starting from the main Kpando-Golokuati road and cutting through Togbui Toyi’s land until it ends on the western bank of River Dayi. Whilst Plaintiffs aver that their father used a bulldozer to construct the road, Defendants contend that the road was constructed by the feet of charcoal producers, which I find hard to believe. On the issue of laches or acquiescence by conduct that the Defendants raised concerning grants to the 4th Defendant, I cannot find such credible evidence that satisfies the law on estoppel. Given the chronology of the grants by the Stool, I find Defendants, the 1st Defendant in particular as the chief and occupant of the Stool rather estopped from purportedly offering grants of land that is or forms part of the land that had earlier been granted to Plaintiffs’ late father to any person including 4th Defendant. Indeed, under the circumstances, any subsequent grant of land from 19 | P a g e P a g e | 20 or of Plaintiff’s land is a nullity as the Gbefi Stool currently represented by 1st Defendant does not have any such power or right over the land that has been granted to Plaintiffs’ late father. All the same, per the settled law a plaintiff who has good title as defined by the law above is not estopped by acquiescence or conduct. This is because mere possession of land no matter how long it takes cannot ripen into a title to deny a person who shows proof of good title to the land. Indeed, for a person to be estopped by acquiescence, his conduct must amount to fraud; he must have encouraged the Defendant who must have been acting in ignorance of his title to change his position concerning the land in such a way that he cannot be compensated in money or money’s worth. See Bampoe (Subst. for Odehye Awere) Amuku v. Edwin Manukure (Subst. for Kwame Opanyin Ofori) [2006] 3 GMLR 144 CA (Holding 4) This is not the circumstances I find here in this case. Besides, I find that the grant of land by the Gbefi Stool to Plaintiffs’ late father had been demarcated and distinguishable from the larger Gbefi Stool land. Indeed, the extent of Plaintiff’s father’s land and his village or farm settlement has been well captured in the final judgement map/plan Exhibit E that was drawn according to the judgment by the SLBSC which settled the boundary dispute between larger Gbefi Stool land and its neighbours per the order of the presiding Commissioner Justice Amorin in 1983. I reiterate the fact that the customary grant was made by the Gbefi Stool in 1978. That is over forty-two years ago. The law – PNDCL s. 23(5) id and the current law Act 1036 id is that a grant more than thirty years old that establishes that a person is entitled to deal with the land, or a final judgment of a Court of competent jurisdiction is a good root of title. I hold once again that the Plaintiff’s late father has a good title of the land in dispute. 20 | P a g e P a g e | 21 Indeed, according to his evidence in chief that I find not to have been successfully assailed, 2nd Plaintiff stated that: It is also important to note that the two most important pieces of evidence in this case; which are the Site Plan of 197[9] and the Judgment Plan of 1983 are mutually authenticating each other in many respects. In other words, several key landmarks can be pinpointed on both maps … (Emphasis added) 2nd Plaintiff went on further to state in his evidence in chief that: Last but not the least, the actual parcel of land belonging to Togbui Toyi has been represented on both maps. On the Site Plan of 1978, it was depicted as an area occupying 814.68 acres of land and on the Judgement Map of 1983, it was landmarked as “Togbe Toyi’s Village”, with both depictions occupying the same positions on the two maps. Indeed, 2nd Plainitiff went ahead in his evidence to recite 29 instances of features and landmarks that are mutually identifiable on both their father’s site plan Exhibit B as embedded or captured in the belly of the judgment plan/map Exhibit E of the larger Gbefi Stool land. The position of the law is that a person cannot unilaterally fix boundaries between his land and that of his neighbours and when a boundary dispute is in issue with adjoining land, a court of law is bound to ascertain the exact boundaries of the parties. See Yawson (Subted) by Tulasi & Anor v. Mensah & Mensah [2011] 1 SCGLR 21 | P a g e P a g e | 22 568; Oppong Kofi & Ors v Attibrukusi III [2011] 1 SCGLR 176; Vanderpuiye v. Adam [1961] IGLR 733; Zacca v. Oda Sawniyis Ltd (Practice Note) [1961] GLR 83. The fact of the matter however is that the grant is more than 40 years, ten years more than the statutory 30 years for the adornment of the statutory good title. Besides, the boundary identities as shown by Plaintiffs covering the site plan of the late father had vividly been captured and certified by the final judgement plan/map of a court of competent jurisdiction which I repeat lies within the belly of the larger Gbefi Stool land. To ascertain possible trespass; that is, whether the grant to Emil Akwettey and further to the 4th Defendant had encroached, the court ordered for a composite site plan to be drawn by the Regional Surveyor of the Land Commission, Ho. His work was subjected to scrutiny by way of cross-examination by the lawyers. I find from the Surveyor that the Plaintiffs supplied him with the judgment plan Exhibit E and that the Surveyor relied on it among others “to indicate the farm villages on [the judgment plan] to be transferred unto the composite plan Exhibit CW2”. Indeed the Surveyor identified the Plaintiffs’ father’s farm settlement marked P as Togbe Toryi village as lying within the area in dispute marked yellow. The Surveyor also found that an area of 257.06 acres of 4th Defendant palm plantation lies within the area Plaintiff claims as forming part of their late father’s land. I find also that the acres of land on the respective site plans of the parties were both not the same as their acreages on the ground. Whilst the land shown on the ground by the Plaintiffs measured 806.43 acres rather than the 814.68 acres that is shown on the face of their site plan Exhibit B, the Defendants’ land as shown on the ground measured 580.21 acres rather than the 731 acres that is shown on their site 22 | P a g e P a g e | 23 plan. It is conceivable that surveyors are not likely to achieve scientific accuracy in acres on site plans and actual acres on the ground but the difference or shortfall in the acreage of the Defendants’ site plan is far from normal. 4th Defendant stated in his evidence that the Defendants promised to alienate 500 acres of land from the land they have granted to DW1 but ended up securing just 300 to 400 per the site plan, “so we asked them to go back and capture [the] full size of land they promised i.e. 500 acres”. Possibly to secure the remaining acreage of the 300 or thereabout acres, the 4th Defendant under cross-examination agreed to Plaintiffs’ lawyer’s suggestion that in 2019 the 3rd Defendant started mounting boundary pillars on the land in dispute. The 4th Defendant contends further under cross-examination however that he is unaware that the 3rd Defendant was met with a stiff challenge from the 2nd Plaintiff, who in protest pulled out some of the pillars back home as evidence to the 2nd Defendant and the Toryi family. 2nd Defendant on his part admitted these facts. I find that the 2nd Defendant and the Toryi family did not address Plaintiffs concern and interest. They rather taunted the Plaintiffs and derided the existence and the validity thereof of their late father’s site plan Exhibit B and the SLBSC judgment plan Exhibit E, events which culminated in the commencement of the action. 4th Defendant could not admit or deny whether the plant and machinery their witness had recited in the paragraph of the witness statement including their farm structures are within their site plan or Plantiff's late father’s land. His response rather is “I do not know the boundaries of Plaintiffs land, … [o]ur factory building is on the land given us. I cannot tell whether it is within or outside Plaintiffs land” (Emphasis added) I reiterate my earlier finding from the Surveyor’s Report that an 23 | P a g e area of 257.06 acres of 4th Defendant palm plantation lies within the area Plaintiff claims as forming part of their father’s land. P a g e | 24 Defendants’ counsel raised issues of inconsistencies in the Plaintiffs’ case. I believe to have addressed some of these perceived inconsistencies, including one that relates to Plaintiffs earlier claim that it was their late father who represented the Gbefi Stool in commencing the petition but later changed their story that their father was the lead witness, as well as the location of the alleged trespass including boundary landmarks. I do not see these as major inconsistencies that must compel to no other conclusion other than one of a failure to discharge the burden the law lays on Plaintiffs. Indeed, I find no such inconsistencies, as the site plan as well as the judgment plan in my view addresses any such perceived inconsistencies. All the same, the context of inconsistencies that could compel disbelief in the probability of the existence of facts in issue is not what is being recounted here. As decided by the Supreme Court in Efisah v Ansah [2005-2006] SCGLR 943, it is only major discrepancies that go to the root of testimonies that affect the weight that must be attached to evidence given at a trial. The Court held that: In the real world, evidence led at any trial which turned principally on issues of fact, and involving a fair number of witnesses, would not be entirely free from inconsistencies, conflicts or contradictions and the like. In evaluating evidence led at a trial, the presence of such matters per se, should not justify a wholesale rejection of the evidence to which they might relate. Thus, in any given case, minor, immaterial, insignificant, or non- critical inconsistencies must not be dwelt upon to deny justice to a party who had substantially discharged [the]burden of persuasion. 24 | P a g e P a g e | 25 Plaintiffs’ lawyer, as part of his written submission, raised the issue of forgery of Defendants Exhibits 1D1 and 1D6 as arising from the evidence. According to learned counsel Exhibit ID1 and ID6 “have proven to be forgeries and that same were presented to elicit fraudulent judgement in Defendants favour by deceiving the court”, asking the court therefore to decide on them. I find as a fact that an expert witness, the Deputy Regional Surveyor of the Land Commission, Ho confirmed in his testimony that those documents were not authentic but that they were forged. Conceding that they did not plead fraud or forgery, learned counsel argued all the same that where there is clear evidence of fraud on the face of the records the court cannot ignore it even if fraud or forgery were not pleaded, citing Amuzu v. Oklika [1998-99] SCGLR 141. See also Apeah & Anor v Asamoah [2003-2004] SCGLR 226 at 243. Well, my view is that the decision of the court is not grounded on the issue; neither is the conclusion or judgment in the matter connected with the said evidence. I shall therefore choose to avoid making any determination on the matter Conclusion I recall having stated the core issues of controversy that call for determination in this suit. I recall further the burden Plaintiffs assumed in their claim for a declaration of title to land, and that the standard of proof is by a preponderance of probabilities. My view is that by the totality of the evidence adduced in the trial, Plaintiff has discharged the evidential burden of proof. I hold therefore that a hitherto unknown stool was created by the Gbefi Stool purposely for the Plaintiffs’ late father in preparation for and with the intent to motivate him to provide the requisite necessities including the traditional clout to assist prosecute the Gbefi boundary disputes with its neighbours at the SLBSC. I hold that the Plaintiffs’ 25 | P a g e P a g e | 26 father faithfully discharged the task in fulfilment of and as also as consideration to the customary grant. I hold that neither the Plaintiffs’ father nor the Plaintiffs are estopped by conduct or acquiescence. I hold further that in furtherance of Gbefi Stool’s preparation for the boundary litigation at the SLBSC, the Stool represented by its requisite leaders made a customary grant of 814.68 acres to the Plaintiffs’ late father, and that the said grant was demarcated and made distinguishable from the larger Gbefi Stool land as distinctly shown on the SLBSC judgment plan/map. I hold the custiomary grant as having been validly made in accordance with law. I hold also that the farming activities of the 4th Defendant had encroached on the Plaintiffs late father’s land, the subject matter in dispute. I hold therefore that the Plaintiff's action succeeds and declare them as entitled to their reliefs ONLY in the following terms:  I declare the title of the 806.43-acre land in favour of the Plaintiffs on behalf of their father’s estate as administrators of the estate for the benefit of the surviving children of their late father.  I make thereby order for recovery of possession of the 257.06-acre land established to have been trespassed upon by VOLPALM LIMITED (4th Defendant) palm plantation; OR in the alternative an order compelling 4th Defendant Volpalm Limited to attorn tenancy henceforth to Plaintiffs concerning the said stretch of land.  Damages of GH¢50,000 against 4th Defendant Volpalm for trespass, and by extension GH¢50,000 each against 2nd 3rd and 1st Defendant jointly and severally for instigating the trespass. 26 | P a g e P a g e | 27  An order restraining the 4th Defendant from any further dealings with the 1st 2nd and 3rd Defendants on the 257.06-acre stretch of land and any other portion of land within the 806.43-acre land, and further  An order for a perpetual injunction restraining Defendants whether by themselves or their assigns, workers, agents, etc from interfering with Plaintiff’s ownership, use, possession and control of the 806.43-acre land as established and properly described in Exhibit CW2 and Exhibit E. Ordered accordingly.11 (Sgd.) George Buadi, J. High Court (1), Ho Lawyers: 1 George Loh, Esq. for Plaintiffs 2 George Aborgah, Esq. for Defendants End of the judgement: Franlynn Amato & Anor Togbe Kwaku Dua VIII & 3 Ors – Suit No. E1/35/2020 27 | P a g e