Binyam Vrs Talin & Another [2022] GHADC 230 (20 June 2022)

IN THE DISTRICT COURT, WULENSI HELD ON 20TH JUNE, 2022 BEFORE HIS WORSHIP BITAM LARI, ESQ. SUIT NO A1/O4/2021 JANGBOJA BINYAM OF LUNGNI VRS 1. DANA TALIN 2. DANA DAWUNI Both of Kotoya JUDGMENT The plaintiff sued the two defendants for the following reliefs: 1. 2. 3. Declarartion of title Perpetual injunction Any other as the court may deem fit. The summary of the plaintiff’s claim is that his late elder brother, David Yilgnan Binyam bought a parcel of land from the Gbungbaliga chief on July 7, 2012 but early 2021, the defendants started developing part of the land and when attempts to resolve the matter failed, he demolished a small part of it to prevent them from further encroachment but they have reorganised and are quickly raising up a building on it. Plaintiff described the land as bounded on the south by a stream, to the north by an old prayer camp occupied by Marries Kabre and Limpo Mabe, to the east by a Baptist Church and to the west cashew plantation owned by one Limpo. The plaintiff tendered the following documents as exhibit to make his case. Page 1 of 17 a. A land allocation letter on the letterhead of the palace, Gbungbaliga, bearing the name Ubor Binyam David II and signed for the chief of Gbungbaliga and dated 21 March, 2012 but the endorsement portion dated 21st June 2013. Those copied this document include the Town and Country Planning Dept., Bimbilla and Ben Tikuri has his name and signature under it. b. A receipt evidencing payment of GHC2,000 as demarcation fee dated 7th April 2012 and signed by Ben Tikuri Although the plaintiff filed an application for an interlocutory injunction, it was not moved because on that day one Cheriwia Mamani who introduced himself as the tindana of the community made a request to attempt a settlement and court granted it upon agreement by both parties. The attempt failed and the said tindana reported this back to the court. The court made an order for a composite plan of the disputed land to be drawn and presented to the court. This order was carried out and submitted to court on 22nd September 2021, signed by Surveyor Benjamin Jojoe Adu-Hanson, Regional Head, Survey and Mapping Division of the Lands Commission, Tamale. It contained the composite plan, survey report, observation and Recommendations. The evidence of plaintiff’s first witness, Bitabigi was essentially the same but had significant details. He said he was one of those sent by Mr. David Binyam to go and witness the demarcation of the 41 plots. He said the Gbungbaliga Lana sent a palace official to assist Mr. Ben Tikuri to demarcate the plots and that the current Tindana, Cheriwia Mamali was not there in person to witness the demarcation which was done by Mr. Ben Tikuri. Witness Bitabigi added that Mr. Ben Tikuri in 2016 sold one of the 41 plots to someone who completed a building project on same and there was little they could do to reclaim it. Page 2 of 17 Then in 2017, his brother David Binyam directed him to see Mr. Ben Tikuri to demarcate one plot from the parcel of 41 plots for one Emmanuel Limpo who had requested for same. Witness said Mr. Ben Tikuri did the demarcation on the instruction of David Binyam. According to this witness, when the defendants started the encroachment, it was Mr. Ben Tikuri who first drew his attention and asked him to verify and if true, he should take steps to stop it and he did just that by stopping the defendants. In paragraph 30 of his witness statement, Bitabigi said Mr. Ben Tikuri arranged a meeting between them at which meeting he was in support of them against the defendants and wondered why the Tindana was claiming the portion the defendants were developing was a vacant land when he knew there was no vacant land there. He said Ben Tikuri advised the Tindana against supporting the defendants’ development of the land but he ignored his advice and encouraged the them to go ahead with their development. The evidence of the second witness for the plaintiff corroborated the evidence of the first witness for the plaintiff. He said he was also one of those Mr. David Binyam sent to observe the demarcation of the 41 plots. He named other persons who constituted the delegation sent by David Binyam. The evidence of the third witness for the plaintiff was that he is a family friend of the plaintiff’s family and that in 2017 he made a request for a residential plot of land to develop and contacted first witness for plaintiff who was in turn contacted his family members and got back to him with the approval of the family. He said the first witness for plaintiff then directed him to Ben Tikuri for the latter to mark and carve out a part of their 41-plot parcel of land for the witness and Ben Tikuri did exactly that and he paid him his demarcation fee. He said it was the same Ben Tikuri who first informed him of the trespass of the defendants. Page 3 of 17 In paragraph 18 of this witness’s statement he said that recently, Ben Tikuri came and told him that the plot he (Ben Tikuri) measured for him was not for the plaintiff’s family but rather a portion of a free space. According to this witness, he reminded Ben Tikuri that when he wanted the plot, he did not come to he (Ben Tikuri) but rather the plaintiff’s first witness who directed him to him to demarcate one plot out of their 41 plots for him. Significant evidence came up in cross examination of the plaintiff by D1. The latter wanted to know who sold the land to David Binyam. When the plaintiff said it was the Gbungbaliga lana, the next significant one was whether there was a Tindana in Lungni. When the plaintiff answered in the affirmative, D1 asked who had ownership and the authority to dispose of land through sale. The plaintiff said it was the Gbungbaliga lana who sent his representative and the local surveyor, Mr. Ben Tikuri who did the demarcation but one demarcation pillar at one end got removed through farming activities at that end and it has not been replaced. The defendan suggested to the plaintiff that it was probably because this pillar was not replaced that is why same place was sold to them. In his cross examination of the first witness for the plaintiff, Dana Talin dived into tribal sentiments on the issue. In answer to his question, witness said his family acquired the land from the Gbungbaliga lana. The defendant then asked how many chiefs there are in Lungni, to which the witness said there were two, he asked him to name them and witness did. He then asked witness how many of them sold the land to his family. Witness said it was the Gbungbaliga lana who sold it to them and not any of the two chiefs. Defendant pressed the witness to name the two chiefs, to which the witness said they have the Konkomba chief and the Bassari chief. The defendant then asked the witness to state which of the palaces he belongs to. The witness said he Page 4 of 17 was from the Konkomba chief’s palace, to which the defendant then asked if it was the reason they wanted to take the land from them. Witness answered in the negative. In his cross examination of the second witness for the plaintiff, the first defendant again centred his questions on tribal affiliation. He asked witness to tell how many chiefs there were in Lungni and demanded he should name them. He also asked witness whether he was making a case for the plaintiff to take the land because of his relationship with the Konkomba palace. The witness replied that he was not taking any land from them but that he was only a witness in the matter. In his cross examination of PW3, the defendant suggested to the witness that Adam Musah who sold the land to plaintiff’s late brother was the same person who also sold the plot to them. Witness objected to this suggestion and stated that the one who sold the plot in dispute to defendants was Cheriwia. The defendant then asked a significant question worth quoting; “will you dispute with the same grantors and demarcators who sold to you and also sold to us?” the witness’ answer was, “yes because after selling it out you cannot sell a part of it to another person”. The case of the defendants is that they were directed by one Emmanuel, the Assemblyman for Lungni to the Tindana and bought the land in dispute from the Tindana of Lungni and one Mr. Ben Tikuri demarcated and sold the plot for them on 16th May 2012 at a cost of GHC60. The defendants claimed that the Tindana of Lungni is the allodial owner of the lands in Lungni but added that Lungni falls under the supervision of the Gbungbaliga Lana. The defedants said in their witness statement that when plaintiff’s first witness confronted them over the development they were making on the land, they reported the matter to the Tindana who in turn consulted Ben Tikuri and the two told plaintiff’s witness that the portion defendants were developing did not form part of the land they sold to David Binyam. Defendants tended the following documents as exhibits to make their case Page 5 of 17 a. A land allocation letter on the letterhead of the palace, Gbungbaliga, bearing the name Talen Dawuni (first defendant) The writing is so faint it can hardly be read but the date 16th May 2012 can be seen and name Adam Musah, chief of Gbungbaliga has a thumbprint as endorsement. b. A receipt bearing first defendant’s name and signed by Ben Tikuri for payment of GHC60 as demarcation fee and dated 16 May 2012 c. A government of Ghana receipt for payment of GHC30 bearing the name of first defendant The first witness for the defendants was Chewia Mamani, the Tindana of Lungni. He stated that he oversees the whole of Tampoaya and Lungni. according to Chewia, when the defendants consulted him for a plot, he contacted Ben Tikuri, who was the town planner and he demarcated the place and they sold it to them and later consulted his chief, Adam Musah and the necessary documentations were issued to them. He added that when the dispute arose, he told plaintiff’s witness that the disputed plot was not part of what he sold to their late brother. The second defence witness, Ben Tikuri introduced himself as the former town planner who demarcated plots in the whole of Lungni. In his witness statement he said the Lungni lands belong to both the Gbungbaliga lana and the Tindana of Lungni and that he was instructed by the two to demarcate a plot of 72x72 plot to the defendants and that was what he did and the land was sold to the two defendants. He said the plaintiff was not present when he did the demarcation of 41 plots for David Binyam. He stated that he has lost his sight completely now but believes that the said plot in dispute is not part of the 41 plots sold to plaintiff’s late brother David Binyam. The third defence witness, Jibreel Shamweel introduced himself as a teacher and from Sakpe community and spokesperson for the chief of Lungni. He said the defendants bought the land in dispute from the regent of Gbungbaliga, Adam Page 6 of 17 Musah and the chief of Lungni was subsequently informed of the sale to the defendants. According to this witness, when the dispute arose, and was reported to the Lungni chief, the chief asked him to meet the parti es and settle it but the plaintiff was not cooperating. He stated that the plaintiff did not know the particular place that was sold to his late brother David and was defending a case he was not aware of or having enough evidence. The witness then attached a report on a failed attempt to settle the matter at the palace. In cross examination of the third defence witness, it was established that he did not sell the land to the plaintiff’s elder brother, he was not part of the team that did the demarcation of the land. He was also not part of those that sold or demarcated the plot in dispute to the defendants. It is not in contention that the plaintiff’s elder brother bought a parcel of land which makes up 41 residential plots. It is not in doubt that this plot was sold to the plaintiff’s elder brother before the subsequent sale of the one plot in contention to the defendants. The issues that stand out for resolution to determine this case are: 1. Whether it is the Gbungbaliga Lana or the Tindana of Lungni who has the prerogative in the sale of land in Lungni? 2. Whether the Gbungbaliga lana, resold a part of the parcel of 41 plots belonging to the plaintiff’s family to the defendants. 3. Whether or not it was the Gbungbaliga Lana or Tindana of Lungni who sold the disputed plot to the defendants. 4. Whether the plot in dispute falls within the 41 plots of the plaintiff. 5. Whether or not the structure A and B in the composite plan falls within the plaintiff’s parcel of land. Before delving into the resolution of the issues, I want to address the issue of capacity of the plaintiff to take this action. Page 7 of 17 It is trite knowledge that it is only the head of family who can institute an action to protect or recover family property. Looking at the title of the case, the plaintiff apparently instituted the action in his own name against the two defendants. However, in the opening paragraph of his witness statement, he introduced himself as the head of the Binyam family. Again, in paragraphs 4 and 6 he repeats that he is the head of the Binyam family. The rest of his evidence is replete with details of how he has used that capacity to deal with this case albeit unsuccessfully till he came to court as a last resort. The first witness for the plaintiff made references to acting on the instructions of the plaintiff. These references corroborate the claim of the plaintiff as being the head of the family. The defendant did not question the capacity of the plaintiff. Surprisingly it is the first defence witness, Chewia Mamani who is the tindana of Lungni who attacked the capacity of the plaintiff to take this action. In paragraph 14 of his witness statement he said, “That I as the Tindana have not seen any authority from either the late brother or the family head of the plaintiff, authorizing him to take the action he is under taking”. From the totality of the evidence of the plaintiff, he pursued the case as head of family even though the title is captured in his personal name. I am satisfied that the plaintiff is the head of Binyam family and that he is the right person to litigate this matter to protect what he thinks is his family property. The first defence witness in his witness statement used his status as tindana to question the capacity of the plaintiff and postured himself in his witness statement as if he is the one to approve the appointment of a head of the plaintiff’s family before it will be recognized. I accordingly treat the title as de minimis and inconsequential as it is the substance and not the form that is crucial in such matters as capacity. Page 8 of 17 Now I address the first issue as to whether it is the Gbungbaliga Lana or the tindana who has the prerogative of land sale in Lungni, According to the plaintiff, his late brother bought the parcel of land containing the 41 plots from the Gbungbaliga Lana on 17th April 2012. The receipt he tendered showed it was 7th April 2012. in his 10th question at page 138, defendant asked, “who is the actual person who has ownership and can dispose of land through sale? Plaintiff’s answer was, “he is Gbungbaliga lana Adam Musah. The defendant also averred at page 142 that the plaintiff’s grantor was also their grantor, ie. The Gbungbaliga lana. First witness for plaintiff, in cross examination also stated that Lungni falls under the Gbungbaliga chief. In their joint witness statement, the defendants stated at paragraph 4 that the chief of Gbungbaliga oversees the whole of Tampoaya and Lungni. Their 3rd witness also stated in his witness statement that the chief of Gbungbaliga oversees the whole of Lungni. From the converging evidence of both sides, the Gbungbaliga chief has the prerogative of land sale in areas under his jurisdiction. The second witness for plaintiff in his witness statement at paragraph 4 stated that the Gbungbaliga Lana sent one of his officers, one Yaboare to assist Mr. Ben Tikuri to do the demarcation and after the demarcation, the witness, Gmabalika M-morikiba added that he was the one late David Binyam sent with money to go and pay for the plots at the Gbungbaliga palace and he did just that. There is however evidence that Gbangbaliga chief may inform the tindana. However, the plaintiff’s firs two witness asserted that the tindana of Lungni was not present in person at the time of the demarcation of the 41 plots. On the second issue, the defendants in their witness statement stated that when they wanted a plot in Lungni to develop, they contacted a former assemblyman who directed them to the Tindana of Lungni and the Gbungbaliga lana who oversees the whole of Tampoaya and Lungni. At paragraph 5, defendant stated Page 9 of 17 that on 16th May 2012, the tindana and Ben Tikuri, both defence witnesses, sent them to the land and sold it to them at a cost of sixty Ghana Cedis and issued them with an allocation document. This evidence is corroborated by their first witness, the Tindana who stated that the defendants came to him in search of a building plot to buy and he went with them to Mr. Ben Tikuri who demarcated the plot in dispute and “we sold same to them at the cost of sixty Ghana Cedis” after which he then consulted his chief, the Gbungbaliga lana and the necessary documents were issued to the defendants.. However, the second witness for defendants said that he demarcated the plot for the defendants at the instruction of the Gbungbaliga lana and the Tindana. This is a contradiction. The third witness for the defendants, Jibreel Shamweel said in his witness statement that the defendants bought the plot from the regent of Gbungbaliga and afterwards informed the Tindana of the sale. The contradiction is that the defendants and their first witness are saying one thing and the second and third witness are saying a different thing. The two sets of witnesses are divided as to whether it was the tindana who sold the plot to the defendants or it was the regent of Gbungbaliga, Adam Musah. what is clear is that whereas in the case of the plaintiff, payment was made to the Gbungbaliga lana directly, in the case of the defendants, their first witness was the one who sold to them. The first defendant in his cross examination of the third witness of the plaintiff, stated that that it was the Adam Musah, the Gbungbaliga lana who sold the plot to them. This is in sharp contradiction to their joint witness statement and the evidence on record. D1 in cross examination made effort to cure the contradiction in their witness statements said it was the Gbungbaliga lana’s representative Yaboare, the Tindana and Ben Tikuri who sold the plot to them and Ben Tikuri did the demarcation of the plot for them but they paid the money to the Cherwia who is the tindana. The plaintiff dwelt extensively on the demarcation receipts issued and signed by the surveyor, Mr. Ben TIkuri who is the second witness for the defendants. He was Page 10 of 17 making a point that the signature of Mr. Ben Tikuri the surveyor on the defendants’ demarcation receipt was significantly diferent from that on his receipt issued by the same Ben Tikuri. All three witnesses and the defendants denied this claim. However, being a document on the record, it is observed without needing a signature expert that the signature of author of the demarcation receipts issued to the defendants was significantly different from what appears on the plaintiff’s allocation letter and demarcation receipt when looked at cursorily. Yet the defendants’ receipt was claimed to have been issued one and half months after that of the plaintiff by the same Ben Tikuri. It appears clearly that the sale of the plot is dispute was done by the tindana, Mamani Chewia, the tindana of Lungni and also the first witness for the defendants. They then worked out documents to regularize this subsequent sale to the defendants. The Gbungbaliga lana Adam Musah did not sell the disputed land to the defendants. It was done by the Chewia and Ben TIkuri and documents from the Gbungbaliga palace procured to seal the deal. Indeed, it is observed that Adam Musah, the regent acting as chief of Gbungbaliga signed on the plaintiff’s allocation letter but the defendants’ allocation paper issued one and half months later bearing the same chief’s name is thumb printed. This noted difference gives some credence to the plaintiff’s case that the subsequent sale of part of his family plot was done intentionally by the tindana and Ben Tikuri who did the demarcation and both are witnesses to the defendants. I will now take the fourth and fifth issues together as the two are directly connected. One the evidence, the defendants and all their witnesses relied heavily on the fact that the plaintiff has no personal knowledge of the land sold to his elder brother David Binyam and so cannot tell exactly where the boundaries to the parcel of land containing the 41 plots are located. These appear both in their witness statements and also in cross examination. Page 11 of 17 It is accepted that the plaintiff sued in a representative capacity. In his witness statement he has not made any claim that he had personal knowledge of the boundaries of the land till this dispute came up. Reading through his witness statement, it is clear that he attributed the purchase to his elder brother and his first witness, Bitabigi Binyam as the resident caretaker of their family lands in Lungni who was also involved in the two processes of purchase and demarcation. There is collaborative evidence that plaintiff and this first witness agreed to release a plot out of the 41 to plaintiff’s third witness and then it was this first witness who sent the third witness to see Ben Tikuri with instruction to mark out and give out one plot of their family land to this third witness, Emmanuel Limpo Yimbilnyan. There is also collaborative evidence from the second witness for the plaintiff who was also an eye witness and participant in the purchase of the plaintiff’s 41 parcel land from the palace at Gbungbaliga. This witness was the one who was sent to pay the amount of GHC2,000 to the chief at Gbungbaliga. The personal knowledge and participation of these two key witnesses virtually relieved the plaintiff from relying or depending on his personal knowledge to pursue this case. Plaintiff’s capacity as head of his family is what he relied on to sue and indeed he is right in law to have done what he did. The position of the law is that only a head of family or his duly appointed representative can sue on behalf of the family in respect to family property. Defendants and their witnesses had no explanation as to how structures A and B came to be on the land as depicted in the composite plan. The first witness for plaintiff said that while David Binyam was still alive, it came to his notice as caretaker that someone had trespassed on a portion of the land and completed a building and Ben Tikuri was discovered to have been the one who sold out this plot to the trespasser. After David Binyam passed on, the second structure was voluntarily given out to the third witness for plaintiff and to build Page 12 of 17 and settle his sister. This witness in his statement stated that he was urged by first witness for plaintiff to help keep watch over the parcel of land. Thus, from 2017, Emmanuel Limpo has been on the land and so his personal knowledge of it cannot be in doubt. From the facts on record, it is accepted that the two structures A and B depicted on the composite plan are both situated within the parcel of land making up the 41 plots of the plaintiff. As to whether the disputed plot falls within the plaintiff’s 41 plot or not, it has already been established that the corroborative evidence of the plaintiff’s three witnesses clears doubt on that. The defendants’ claim that it falls outside the plaintiff’s parcel of 41 plots is so flawed that it cannot be accept. Firstly, the two defendants do not live in Lungni. They both live in Kotoya. At the time Ben Tikuri was demarcating out the plot to them, they had no knowledge of the plaintiff’s family interest in that land, so they relied on Ben Tikuri and Chewia’s averments to repeat same. The first witness of the defendants, Mamani Chewia who is the tindana of Lungni gave a very clear statement on how the defendants got the plot from him. But what is also clear in the witness statements of the first and second witnesses of the plaintiff is that Chewia was not personally present when the 41 plots were being demarcated by Ben Tikuri. They named all those who were present when they went to do the demarcation. On the defendants’ side, only Ben Tikuri was present. The most discredited witness among the defendants’ witnesses is Ben Tikuri. In the statements of both second and third witnesses of the plaintiff’s witnesses, it was Ben Tikuri who drew their attention to the trespass of the defendants and ought to have been a witness for the plaintiff. For unknown reasons, he rather switched camp. In cross examination, Ben Tikuri said when the surveyor came to do the composite plan, he, Ben showed the surveyor where the plaintiff’s Page 13 of 17 boundaries were. Evidence is profuse on the record that at the time Ben Tikuri was the local surveyor demarcating plots including that of the parties he had his eye sight. He has subsequently lost his sight and is completely blind. How he was able to show the surveyor where plaintiff’s boundaries are can only be a mystery. There is no evidence on record showing that the third witness for the defendants has any personal knowledge of the boundaries of the 41-parcel plot of the plaintiff. He was not present when the parcel of land was being demarcated for David Binyam. He was also not present when Ben Tikuri demarcated the plot in dispute to the defendants. He relied more on the fact that he has some traditional authority, being a royal of the Bungbaliga palace to assist Chewia Mamani to regularize the sale of the plot to the defendants. The evidence of Ben Tikuri and Shamweel contradicts that of Chewia and the defendants. The defendants stated that it was the tindana (Chewia) and Ben Tikuri who sold the plot to them. Chewia also said it was he and Ben Tikuri who sold the plot to the defendants. He added that it was after that that he contacted the Gbungbaliga palace for the necessary documents to be made for the defendants. Ben Tikuri who is second witness for defendants said he was contacted by both Adam Musah, the chief of Gbunagbaliga, and the tindana to demarcate the plot for the defenants. In paragraph 4 of his witness statement, Shamweel said it was Adam Musah, the regent of Gbungbaliga who sold the plot to the defendants and afterwards informed the tindana. This witness was testifying in either gross ignorance or trying to mislead the court. The evidence of the defendants and their first witness, Chewia, corroborate the statement by the plaintiff that it was Chewia who sold the plot to the defendants after same had been sold to them by a higher authority, the Gbungbaliga chief Adam Musah. Page 14 of 17 In CHOU LIN v TONADO ENTERPRISES LTD [2007-2008]SCGLR at p139, the plaintiff was granted three plots of land from one Tandoh ho had acquired it from the TDC. The same TDC in 1976 sold one of the three pots already sold to Tandoh to the defendants. They attempted to develop their single plot but the plaintiff resisted it. The case travelled from the High Court to the Supreme Court. The Supreme Court ruled that that was a definite case of nemo dat quod non habet rule. The evidence is established that the plaintiff’s brother bought the 41-parcel land in March 2012 and the defendants bought a part of the same parcel in May 2012. It has been established that the plot is dispute was properly demarcated and the plaintiff’s first two witnesses, Bitabigi Binyam @Nayola and Gmaballika M- morikiba were participants in the negotiations and purchase of the land and both were also present at the demarcation. Their knowledge of same is more credible than Shamweel who depended on what he probably got to know later. As for Chewia Mamani, he is the source of this apparent controversy. He created the dispute and then turned around to use traditional authority, including the palace, to enforce an illegality on the plaintiff. The legal implication of the nemo dat quod non principle is that Chewia Mamani could not have sold the plot in dispute to the defendants because it had been sold already to the David Binyam and therefore not available for resale. Section 277 (2)© of the Land Act 2020 makes it a criminal offence to make conflicting grants in respect of the same piece of land to more than one person. Chewia conducts walks on the corridors of that offence created by the Act. I accordingly apply the nemo dat quod non habet rule and declare that the plot in dispute as part of the 41-parcel plot of land purchased by David Binyam in March 2012. The defendants got nothing when they paid GHC60 to Chewia because there was nothing for him to sell to them. They were misled by his status as tindana and Page 15 of 17 without any due diligence, relied on his authority to transact for the purchase of what was part of plaintiff’s plot. Judgement goes for the plaintiff for title to all that parcel of land bounded by a stream on the south towards Kpandai, the north by an old prayer camp occupied by Marries Kabre and Limpo Mabe, on the eastern part by the Baptist Church and the west by a cashew plantation owned by one Limpo. For the avoidance of doubt this area is properly designated in red colour on the composite plan submitted by the survey department of the Lands Commission, Tamale at the order of this court. The plaintiff is should establish a more permanent land mark at the boundary of the land as specified in the composite plan. By the discretion of this court reflected in relief 3 on the plaintiff’s particulars of claim, the plaintiff should recover possession of the plot without any hindrance from any person whatsoever. The defendants shall remove anything they have put or caused to be put on the plot within seven days of this judgement and leave the land bare as they met it. Defendants, their agents, assigns, servants, workmen and any person or group of persons who derive through them are permanently barred from interfering with the plaintiff’s quiet enjoyment of the land. It is worth commenting on the attitude of the Lungni palace since this matter was properly before this court. A letter signed by Tahiru A. Abdallah as chief of Lungni and bearing the letterhead of the Lungni palace was filed in this court on 16th June 2021. The content of this letter sought to instruct the court to apply the decisions of the palace after their attempts at settlement failed and the plaintiff came to court. It also contains allegations of criminality on the part of the plaintiff and directed this court to make sure the plaintiff bears responsibility for the alleged assault and pay for the cost therein. The chief was making these requests for the defendants when they did not even make any such request in their defence. Page 16 of 17 Interestingly, the third witness for the defendants, Jibreel Shamweel who identified himself as the spokesman for the chief and had the chief’s authority to witness on his behalf and on his own behalf, attached a copy of the same letter from the palace. This attachment discredited the witness’s evidence as it is not allowed to for a witness in a case to testify on behalf of another witness. Order 11 (1) of CI 59 empowers the court to allows a party to appear by proxy but a witness is not a party. If the chief cannot come to court, no one can testify on his behalf because he is not a party. That explains why Jibreel who on the evidence was not a witness to any of the events leading to the dispute appeared in court to give evidence to events he did not witness. He only qualifies as one who tried to settle to dispute after the tindana had committed the illegality leading to this dispute. The failure at customary arbitration does not stop any party from proceeding to court to have redress to his grievances. Evidence from such failed attempts cannot be tendered in court by any of the parties, let alone the arbitrator. The court takes and deals with the matter de novo. It was therefore wrong and unfortunate for the chief to be feeding the court with what he had done. He could also not be directing the court on what to do. It is never done by any court in Ghana. …………………………sgd…………………………….. Magistrate Page 17 of 17