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IN THE DISTRICT COURT
AGONA SWEDRU - A.D. 2023
BEFORE HIS HONOUR ISAAC APEATU
Civil Suit No A1/31/2022
14th April, 2023
F.K. ANTOBAM
……
Plaintiff
VERSUS
KOFI ATTAH QUANSAH
ABENA ABAM QUANSAH
……
Defendants
JUDGMENT
This is a suit filed by the Plaintiff to seeking among others, declaration of title to land.
The facts of the case admit of no controversy. Plaintiff claims that he is the owner of the
land in dispute having purchased it from the Yego family of Agona Kwanyako in 1984.
That he has been in possession of the land since that time to the knowledge of the
family including the Defendants. That quite recently, the Defendants purporting to
claim title to the land have trespassed onto same. That despite his attempts to get the
Defendants to back away from the land, they have persisted in their unlawfulness.
Unable to resist the Defendants’ attempts to wrestle the land from his hands, the
Plaintiff resorted to the court and filed the writ of summons claiming as follows:
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a. A declaration of title to and recovery of possession of all that piece or parcel of
land situate lying and being at Agona Kwanyako behind H/No. C6, C6I, C8
and Yaw Yeboah of the Yego Family.
b. Damages for trespass.
c. Perpetual injunction restraining the Defendants by themselves, agents,
personal representatives, assigns, servants, administrators, executors, privies
or howsoever from dealing with or having anything to do with the land.
d. Costs.
The Plaintiff served the writ of summons together with a summary of his claim. In view
of the nature of the claim being one for declaration of title and the complexity of the
issues, the court made an order for written statements to be filed by the parties in
accord with Order 18 rule 1 of the District Court Rules, 2009 (C.I. 59). The plaintiff thus
filed a written statement of his claims as ordered on 17 th May, 2022. In the nineteenparagraphed Statement, the Plaintiff averred to the effect that he is a farmer residing at
Agona Kwanyako while the Defendants are trespassers on his land. That he is the
owner in possession of a parcel of land situate at Agona Kwanyako. That on the 7 th day
of December, 1984, he purchased a parcel of land from the Yogo Family of Agona
Kwanyako represented by Kobina Konto who resides in H/No. C64, Abonse Street,
Agona Kwanyako and paid valuable consideration after which a document of sale
evidencing the purchase of the said parcel of land by the Plaintiff. That the Defendants
who are trespasser on the said land, have without his consent and authority,
demolished the self-contained building which he had caused to be erected on his parcel
of land. The Plaintiff averred that his said parcel of land is bounded on the three sides
by buildings belonging to the Yogo Family of Agona Kwanyako, namely: the building
known as H/No, C6; the building known as H/No. C61 and the building known as
H/No. C8; and the building of Yaw Yeboah of the Yogo Family Agona Kwanyako. That
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he has erected a self-contained building on his land up to the window level comprising
two rooms with a bath room a toilet and kitchen with a porch in front of the building.
That since 1984, he has been in effective occupation of the land to the knowledge not
only of the Defendants but also to all sundry. That the Defendants who belong to the
Asona Family of Agona Kwanyako have entered on his land without his consent or
authority and further sent a bulldozer on to the land and erased the building thereon
to the ground to his dismay and in spite of his protestation. The Plaintiff averred that
the cost of the building in his estimation is twenty thousand Ghana Cedis
(GH¢20,000.00).
The Plaintiff averred that the Defendants purported to summon him to an arbitration
at the palace of the Chief of Agona Kwanyako. That upon reaching there and before
the panel of arbitrators without going into any matter concerning him and the
Defendants simply threw at him an envelope the contents of which he does not know
and which he will tender in evidence at the trial of the present suit. That there and
then the so-called arbitrators through the secretary told him that they have purchased
his parcel of land whether he approves of it or not and a further order to the effect
that he had agreed to the purchase of his landed property. That the Defendants then
went onto the land with a bulldozer and pulled down his uncompleted building to
the ground to pave way for the Defendants to erect a new building on the land. The
Plaintiff averred that the conduct of the Defendants including the so called arbitrators
is unlawful and prayed the court to set aside the said arbitration of 2020 as null and
void and of no effect. The Plaintiff averred that the Defendants have seized his land
and are putting up a new structure on it in spite of protests from him. That the
Defendants threaten and intend to continue with their unlawful acts unless
restrained.
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The Plaintiff then repeated his claims against the Defendants jointly and severally as
contained in his writ of summons and added another relief as follows:
a. A declaration of title to and recovery of possession of all that piece or parcel of
land situate, lying and being at Agona Kwanyako behind H/No. C6,C61,C68 and
Yaw Yeboah of the Yogo Family
b. Special damages of GH¢20,000.00
c. Damages for trespass
d. Perpetual injunction restraining the Defendants by themselves, their agents,
personal representatives, assigns, servants, administrators, executors, privies or
howsoever from dealing with or having anything to do with the land
e. Costs
The writ together with a hearing notice was duly served on the Defendants by personal
service. Upon the service of the processes on the Defendants, they, by their lawyer, filed
a written Statement of Defence to the Statement filed by the Plaintiff. In their thirteenparagraphed Defence, the Defendants averred to the effect that the disputed area is
only a narrow strip of land abutting H/No. AB 8/1, Abonse, Agona Kwanyako and
forms part of the land on which H/NO. AB 8/1 stands. The land on which H/No. AB 8/1
stands was the legitimate property of one, Agya Annan, an ancestor of Defendants,
who acquired it several decades ago. That the said Agya Annan was variously
succeeded to after his death, the immediate past successor being, one Opanyin Ko fi
Asabre. That Defendants as grandchildren of the said Opanyin Agya Annan were
granted the disputed property by Opanyin Kofi Asabre to renovate and improve same
for their common use. That upon the grant made to the Defendants, it came to their
attention that the Plaintiff was occupying a portion of the land of their ancestor. That
the Defendants and their agents variously sought to remove the Plaintiff from the
portion he was occupying but to no avail. So, the Defendants instituted a customary
arbitration before an arbitration panel at Agona Kwanyako Chief's Palace. That the
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arbitration was determined on 4th August 2020, wherein the Plaintiff decided to relocate
after being assisted financially by the Defendants. That subsequent to that, the
Defendants gave the Plaintiff an amount of GH¢3,800 pursuant to his undertaking to
relocate after being paid, yet he refused to give vacant possession of the land in dispute.
That the Secretary to the panel therefore wrote to the Plaintiff demanding that he gives
vacant possession of the land by the 16 th of February 2022. That instead of giving vacant
possession of the land, the Plaintiff rather instituted the present action. Defendants
averred that the present action is an abuse of the court process as the Plaintiff has
received compensation in lieu of his possession of the land.
Defendants then counterclaimed against the Plaintiff as follows:
1. A declaration that Plaintiff is bound by the arbitration award given on 4 th August
2020.
2. An order of the Honourable Court enforcing the arbitration award given on 4 th
August 2020.
3. Costs.
In a Reply and Defence to the counterclaim filed by the Plaintiff on the 17 th day of June,
2022, the Plaintiff joined issue with the Defendants on their averments in the Statement
of Defence and Counterclaim. The Plaintiff averred that the land, the subject matter of
dispute was sold to him by the ancestor of the Defendants and all customary rights
were performed to confer the title on him. He denied that an award was given at an
arbitration insisting that no award was given at the said arbitration. The Plaintiff
averred further that an envelope, the contents of which he cannot tell, was hurled at
him at the arbitration and same was not opened to authenticate its contents. The
Plaintiff further averred that till this day, he is oblivious of the contents of the envelope.
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Now, both parties having stated their respective cases in their statements as mentioned
above, it is important at this stage to determine the matter of the onus/burden of proof.
Which of the two parties did the burden lie to lead evidence in view of the fact that they
both made averments as stated above? Which of the parties bore the burden of proof of
the matters in issue in this case? In other words, on which of them lay the greater
responsibility to establish a case against the other? The principles on proof have been
set out in by the Evidence Act, 1975 (NRCD 323) and pronounced upon in a plethora of
decided cases. The principle in sum is that where, in a civil action, the Plaintiff makes
assertions, he bears the burden to prove all those assertions. In the case of Abbey and
others v Antwi V [2010] SCGLR 17, the court held that in an action for declaration of
title to land, the Plaintiff must prove on the preponderance of probabilities acquisition
either by purchase or traditional evidence, or clear and positive acts of unchallenged
and sustained possession or substantial user of the disputed land. See also the cases of
Odoi v Hammond [1971] 1 GLR 375 at 382, CA; Akoto II v Kanage (1984-86) 2 GLR 365
at 371, CA”.
It is trite principle of law backed by the Evidence Act (supra) that the onus of producing
evidence of a particular fact in civil cases is on the party against whom a finding of fact
would be made in the absence of further proof. Popularly put, he who asserts has the
burden of proof: see Section 17(a) and (b) of NRCD 323.The authorities are also in
harmony that matters that are capable of proof must be proved by producing sufficient
evidence so that, on all the evidence, a reasonable mind could conclude that the
existence of a fact is more reasonable than its non-existence. This is the requirement of
the law on evidence stipulated under sections 10 (1) and (2) and 11(1) and (4) of the
Evidence Act, 1975 (NRCD 323). That burden of producing evidence has been defined
in Section 11 (1) of the NRCD 323 as follows;
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“11 (1) For the purpose of this Act, the burden of producing evidence
means the obligation of a party to introduce sufficient evidence to
avoid a ruling on the issue against that party”.
It bears stating that the burden of proof is not static but could shift from party to party
at various stages of a trial depending on the obligation that is put on that party on an
issue. This provision on the shifting of the burden of proof is contained in Section 14 of
NRCD 323 thus:
“14 Except as otherwise provided by law, unless it is shifted, a party has
the burden of persuasion as to each fact the existence or non-existence
of which is essential to the claim or defence that party is asserting”.
Following from the above, when the burden to produce evidence is cast upon a
Plaintiff, he must prove his case and win on the strength of the case presented and not
on the weakness of the defendant’s case. This principle was first established by the case
of Kodilinye v Odu (1935) 2 WACA 336. This principle has however been the subject of
judicial commentary and development in subsequent cases. In the case of Asare v
Appau II [1984-86] 1 GLR 599, CA, the principle was further re-echoed in the following
words:
“…the common run of land suits in the courts had, as the plaintiff, a person
who claimed title to land, suing as the defendant, a person in possession of
the land. Such a defendant needed not, and usually did not, seek any relief in
the proceedings, being content with things as they were. In that event, the
plaintiff must rely on the strength of his own case, i.e. prove his title and not
rely on the weakness of his opponent’s, i.e. lack of title in the defendant, so
that if the plaintiff failed to prove that he was entitled to have a declaration
made of his title to the land, the action ought to be dismissed, leaving the
defendant in possession of the land."
See Banga v Djanie [1989-90] 1 GLR 510, CA.
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Notwithstanding that the burden to produce evidence has been laid on the Plaintiff, this
burden to produce evidence is not static but could, depending on the issue asserted,
shift from party to party at various stages of the trial. This provision on the shifting of
the burden of proof is contained in Section 14 of NRCD 323 thus:
“14 Except as otherwise provided by law, unless it is shifted, a party has
the burden of persuasion as to each fact the existence or non-existence
of which is essential to the claim or defence that party is asserting”.
This position of the law on evidence is confirmed in the case of In Re Ashalley Botwe
Lands, Adjetey Agbosu and others v Kotey and others [2003-2004] SCGLR 420 at page
425 where the Supreme Court per Brobbey JSC held that under the provisions of the
Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case
was not fixed but shifted from party to party at various stages of the trial depending on
the issues asserted and/or denied. And unless the burden shifts, the Plaintiff bears the
burden of proof on all matters raised by the Claim and the standard of proof is on the
balance or preponderance of probabilities.
From the above exposition, the burden of proof in this case was on the Plaintiff initially
to establish the averments he had made that he was the owner of the legal title in the
land by purchase and that he has since 1984 been in possession of the land. From there,
the burden will shift to the Defendants having made several claims to the same piece of
land in their counterclaim. And the standard in each case is the standard of proof on a
preponderance of probabilities.
Having established on whom the obligations of proof lay in this case, I shall run
through highlights of the evidence led by both parties in proof of their respective
claims. In accord with procedure and as I stated above, the Plaintiff bore the initial
burden to lead evidence to prove the claims and averments he made in order to have
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judgment entered on those claims contained in his Writ of Summons. Plaintiff thus led
evidence in proof of the averments he had made as contained in his Writ of Summons.
The Plaintiff testified on his own behalf and called two witnesses in support of his case.
The nub of Plaintiff’s case from his testimony and those of his witnesses is that the land
in dispute on which resided his demolished building owing to the direct acts of the
Defendants, belonged to the elders of Kobina Kuntoh who inherited same. That in the
year 1984, being desirous of putting up his own building and living in same, he
contacted the Yogo Family of Agona Kwanyako who at the time was represented by
Kobina Kuntoh. That Kobina Kuntoh sold the said piece of land to him. He attached as
Exhibit 1, the sale agreement. That Kobina Kuntoh had three other siblings, Kwame
Aketsewa, Kwame Panyin and Kofi Asabre who had knowledge of this transaction.
That two of these siblings attested to the transaction as witnesses. That the last of the
brothers at the time of the transaction was not present and upon his arrival at Agona
Kwanyako, he gave his blessing to the transaction since it was prepared and executed
by his brothers.
According to Plaintiff, he put up a self-contained building on this land comprising two
rooms with a bathroom, a toilet and a kitchen with a porch in front of the building. That
the Defendants who as children lived in the house right in front of his together with all
persons had knowledge of the existence of his building on the piece of land and he has
been in occupation and possession of the land from 1984 aforementioned. That, the
Defendants just recently summoned him before an arbitral panel at Agona Kwanyako
who, after listening to the respective claims of the parties (where he made it clear to the
panel that he had purchased the land), decided to visit the land in order to make a
determination which they did after the agreed on fee was paid. That he waited patiently
for the panel to communicate the next adjourned date. That the panel called him and in
the absence of the Defendants who had summoned him, gave him an envelope (the
contents of which he is not aware of), under the instructions of Nana Asabre Kotoku III,
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who was a member of the panel. He claims that the envelope was hurled at him. He
attached a picture of the unopened envelope marked as Exhibit 2.
Plaintiff stated that he strongly opposed the acceptance of the envelope as he did not
know its contents and found it particularly odd that the persons that had summoned
him were absent and in their own estimation without any prior negotiations on the part
of all parties, could reach a conclusion and force the said conclusion. According to the
Plaintiff, the panel construed his act of resisting the envelope and what was being
proposed as an act of insult and a complete disregard of their office and demand ed that
he and his daughter immediately vacated their presence. That a note which had already
been prepared was presented to him to sign which he objected to as well. That even
though he carried the envelope with him, it was as a result of the harsh treatment of the
panel on that day and did not want to incinerate any existing feelings they had. That
that notwithstanding, it had never been his intention to accept the envelope and its
contents since the persons proposing whatever was in the envelope were absent on that
day, there had not been any prior mention of the envelope, no negotiations had taken
place and he was not desirous or intimated such a desire of sale of his land to the panel
and or the Defendants who had summoned him. That the next thing he heard from the
Defendants was their demolishing and clearing off of his building which took place on
a day and time he was not home. He attached as Exhibit 3, 3a and 3b, pictures of the
demolition of his building by the Defendants. Plaintiff stated that he reported the
matter to the police who advised him to take up the matter in court. He stated that the
acts of the Defendants have caused him great hardship and have caused him to rent a
room at Agona Kwanyako incurring unplanned expenses. That in spite of hi s strong
protests, the Defendants persist in their acts which has deprived him of a home and a
dwelling place
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When the Plaintiff closed his case, the Defendants were called upon to open their
defenses to the case made against them by the Plaintiff. 2nd Defendant gave evidence
through an Attorney, one Ebusuapanyin Kwesi Dadzie who tendered in evidence a
Power of Attorney as the source of his authority which was admitted and marked as
Exhibit 1. After he had completed his testimony, the Defendants called one other
witness and closed their defenses. Defendant’s case from the testimony of the Attorney
and their witness is to the effect that the disputed area is only a narrow strip of land
abutting H/NO. AB 8/1, Abonse, Agona Kwanyako and forms part of the land on which
H/NO. AB 8/1 stands. That the land on which H/No. AB 8/1 stands was the legitimate
property of one, Agya Annan, an ancestor of Defendants, who acquired it several
decades ago. That the said Agya Annan was variously succeeded to after his death, the
immediate past successor being, one Opanyin Kofi Asabre. That the Defendants as
grandchildren of the said Opanyin Agya Annan were granted the disputed property by
Opanyin Kofi Asabre to renovate and improve same for their common use. He attached
marked as exhibit 2, a copy of a declaration made by the said Opanyin Kofi Asabre. 1 st
Defendant’s attorney averred that upon the grant made to the Defendants, it came to
their attention that the Plaintiff was occupying a portion of the land of their ancestor.
That the Defendants and their agents variously sought to remove the Plaintiff from the
portion he was occupying but to no avail. That the Defendants through him [the
attorney], instituted a customary arbitration before an arbitration panel at Agona
Kwanyako. That the arbitration was determined on 4th August 2020, wherein the
Plaintiff decided to relocate after being assisted financially by the Defendants. He
attached marked as exhibit 3, a copy of the arbitration proceedings.
It is the further evidence of the 1st Defendant’s attorney that subsequent to that, the
Defendants gave the Plaintiff an amount of GH¢3,800 pursuant to his undertaking to
relocate after being paid, yet he refused to give vacant possession of the land in dispute.
He claimed that the Secretary to the panel therefore wrote to the Plaintiff demanding
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that he gives vacant possession of the land by the 16th of February 2022. He attached
marked as exhibit 4, a copy of the said letter. He continued that instead of giving vacant
possession of the land, the Plaintiff rather instituted the present action which action he
claimed is an abuse of the court process as the Plaintiff has received compensation in
lieu of his possession of the land.
From the written statements filed and the evidence adduced by the parties, I am of the
considered view that the determination of the following issues will completely dispose
of the instant case:
a. Whether or not the Plaintiff acquired title to the disputed land by purchase from
Kobina Kuntoh.
b. Whether or not the Plaintiff entered into possession and occupation of the land.
c. Whether or not the Defendants have trespassed onto the land and pulled down
Plaintiff’s building thereon.
d. Whether or not Plaintiff is entitled to Special damages of GH¢20,000.
e. Whether or not there was a valid arbitration held before Nana Asare Panin IV
and his panel of elders.
f. Whether or not the Plaintiff submitted to the arbitration.
g. Whether or not the hearing was fair
h. Whether or not the arbitration panel gave a ruling against the Plaintiff.
i. Whether or not the Plaintiff is bound by the award given.
j.
Whether or not the Plaintiff is entitled to the reliefs as endorsed on his Writ of
summons.
k. Whether or not the Defendants are entitled to the reliefs as endorsed on their
counterclaim.
I have concisely set out the necessary introductory, yet useful parts of the judgment
above. Having done that, I shall now evaluate the evidence led by the parties in a bid to
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determine the issues relevant to bringing a closure to this case. Even though in the
ordinary course of things, it is expected that the claims presented by the Plaintiff should
be determined first before the claims on the Defendants’ counterclaim, I shall deviate
from that norm in this present delivery. The Plaintiff prayed for declaration of ti tle to
the disputed land. However, in opposing the claim, the Defendants asserted that the
disputed land has been a subject of adjudication before a panel of chiefs set up at the
Kwanyakohene’s palace. That the panel had rendered an award in their favour.
Defendants therefore sought an order to enforce the said award which was given in
their favour. If the defendants are the beneficiaries of an award given in their favour, it
is immaterial that the Plaintiff now seeks a declaration of title to that land. It is therefore
prudent under the circumstances of the case to determine whether or not there was an
award given in the Defendants’ favour. So, I set out to determine the reliefs on the
Defendants’ counterclaim.
The principle of law is that a counterclaim is a different action in which the Defendant
counter-claimant is the Plaintiff and the Plaintiff in the action becomes a Defendant. In
the case of GIHOC Refrigeration and Household Products Ltd. v Jean Hanna Assi
(2006) 3 MLRG, the Supreme Court per Date-Bah JSC held that a counterclaim is
substantially a cross action and not merely a defence to the Plaintiff’s claim. It is said to
be a cross-claim which could be raised in the very action brought against the Defendant.
From the line of authorities therefore, it is settled that a counterclaim is in law a
separate and independent action which is tried together with the original claim of the
plaintiff. It follows that if in the course of an action in which there is a counterclaim and
the plaintiff’s claim is struck out, dismissed, discontinued or stayed, the defendant can
proceed to prosecute his counterclaim as it is independent of the original claim even
though a counterclaim has no separate suit number different from the original suit. See
John Atta Wusu v. Mr. Fosuhene, Civil Appeal No. J4/36/2009, 19th May, 2010;
Gbedema v. Awoonor-Wiliams [1970] CC 12; Winterfield v. Bradnum 3 QBD 324;
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Amon v. Bobbett [1889] 22 QBD 543. And where a Defendant seek reliefs in a
counterclaim, he/she bore the burden of proof and persuasion to prove conclusively, on
a balance of probabilities that he/she is entitled to the reliefs claimed.
It bears positing that adjudication of disputes between members of the African
traditional society is not a new phenomenon. It has been with us for generations. Thus,
before the advent of European style adversarial system of trial, the indigenes had
elaborate, if not more effective and efficient ways of adjudicating disputes which aimed
at restoring the balance between individuals in society. Chiefs therefore played crucial
roles in this system from the pre-European contact to the present day. The Alternative
Dispute Resolution Act, 2010 (Act 798) has been passed to regulate adjudication of
disputes outside the court structures. However, the Act did not do away with the
powers of chiefs to adjudicate disputes between members of their communities. Chiefs
not only maintain law and order within their jurisdictions, but also continue to settle
disputes between subjects ranging from common misunderstandings to complex
relationships and are only subject to section 89 (2) of Act 798 (supra) which bars
adjudication of criminal matters. An aggrieved party may either come to court to seek
redress or better still resort to the wisdom of a chief to use customary procedures to
settle a dispute with another person. It is the latter option that the Defendants claim
they opted for and summoned the Plaintiff before Kwanyakohene’s palace to use their
rich experiences garnered through years of practice, to arbitrate the dispute between
them and the Plaintiff.
The Defendants assert that took place at the chief’s palace can be termed as a customary
arbitration. If the definition of what a customary arbitration is has ever been in doubt,
then in the case of Pong v. Mante [1964] GLR 593, the court aptly described what
customary arbitration is in the following terms:
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“The . . . practice whereby natives of this country constitute themselves into ad
hoc tribunals popularly known and called arbitrations for the purposes of
amicably settling disputes informally between them or their neighbours which
has long been recognised as an essential part of our legal system; provided all
the essential characteristics of holding valid arbitrations are present, the courts
will undoubtedly enforce any valid award published by such ad hoc bodies”.
From the above, customary arbitration has long been recognised as an essential part of
our legal system. But it bears emphasizing that it is not every settlement that can pass
for customary arbitration. It also is not every complaint made by one aggrieved party to
an elder who calls the parties together that qualifies as a valid customary arbitration. I
must state that before a settlement will properly be described as a valid arbitration at
customary law, that settlement must satisfy some essential preconditions laid down by
the courts in a line of judicial decisions over the years. As early as 1965, the Supreme
Court pronounced on the elements of a customary arbitration. In the case of Manu v
Kontre [1965] GLR 375, SC the Court held that there were three essential characteristics
of a [customary] arbitration, as opposed to negotiations for a settlement which are:
(a) a voluntary submission of a dispute by the parties to arbitrators for the
purpose of having the dispute decided informally, but on the merits (i.e.
not an arbitrary decision);
(b) prior agreement by both parties to accept the award of the arbitrators; and
(c) publication of the award.
These are the elements of a valid customary arbitration. The courts have affirmed and
pronounced on these three elements in subsequent cases. It must however not be
forgotten that a party who founds his case on a customary arbitration must prove the
existence of these essentials before the court can confirm and hold the defendant bound
by it: see Bedaabour v. Duro, Court of Appeal, 31 July 1972, unreported; Donkor v.
Isifu [1963] 1 G.L.R. 418, S.C. and Mensah v. Esah [1976] 1 G.L.R. 424, C.A.
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The question which falls to be decided then became whether or not, with the elements
above stated in view, there was an arbitration on the land in dispute by the panel of
chiefs at the Kwanyakohene’s palace. And the onus of establishing that there has been a
valid customary arbitration is on the person relying on the arbitration, in this case the
Defendants. In the case of Vado v Sempede (1958) 3WALR 35, the principle of who the
burden lay to prove was enunciated in holding 2 of the report thus:
“To establish that an arbitration award exists that is to operate as an estoppel per
rem judicatam, the onus is upon the party relying upon it to prove that the
essential requirements of a binding arbitration have been complied with. If this is
done the award will be binding unless the other party can rebut, e.g., by proving
that the purported arbitration was invalid or by showing subsequent agreement
to avoid its effect”.
And as I stated above, it was the Defendants who, having relied on the award given by
the said panel, had the burden to establish the essential characteristics above.
I have already stated that the Defendants asserted that there was an arbitration held at
the Kwanyako palace which arbitrated the matter between them and the Plaintiff and
gave a ruling or award in their favour. The Attorney tendered in evidence a document
which is marked Exhibit 3 which the Defendants claim is the record of proceedings of
the hearing of the arbitration. Exhibit 3 shows that there was a hearing of some sort
where statements were made and questions asked by opponents and the panel
members. It has the form of an arbitration. However, it is the latter part of the
proceeding respecting the pronouncement of the award that arouses suspicion. It bears
the reminder that the Plaintiff asserted strongly that the panel of chiefs did not
pronounce a ruling in the matter. He insisted that throughout his case that the panel did
not publish an award in this matter. In his Statement of Claim referred to above, the
Plaintiff denied that there was a publication of an award. For the sake of emphasis, I
reproduce below paragraphs 12, 13, 14 and 16 of the Statement:
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12. The Plaintiff states that the defendants first and foremost purported to summon
him to an arbitration at the palace of the chief of Kwanyako.
13. That upon reaching there and before the panel of arbitrators without going into
any matter (sic) concerning him and the Defendants simply threw at him an
envelope the contents of which he does not know and which he will tender in
evidence at the trial of the present suit.
14. The Plaintiff will say that there and then the so-called arbitrators through the
secretary told him that they have purchased his parcel of land whether he
approves of it or not and a further order to the effect that he had agreed to the
purchase of his landed property.
16. The Plaintiff states that the conduct of the Defendants including the so-called
arbitrators is unlawful and will pray the court to set aside the said arbitration
of 2020 as null and void of no effect. (sic)
Under cross-examination, the Plaintiff held onto his assertion that there was no ruling
given at the said arbitration. In an answer to a question posed by counsel for the
Defendants, the Plaintiff denied that there was a ruling given by the arbitration. I have
reproduced portions of the cross-examination below:
Q: How much did you pay as inspection fee?
A: GH¢100
Q: At the end of the trial, it was agreed that defendants will assist you to relocate
from the property.
A: Not true. They have not given a ruling.
Then elsewhere, he stated as follows:
Q: You received a reminder from the Kyidom Divisional Council to vacate the
property.
A: Yes. But they have not given a ruling so I do not know why I should vacate.
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Clearly, the Plaintiff has been consistent in his assertion that the panel did not give a
ruling or award at the end of the deliberations. This assertion is crucial not just for the
fact that it is being made by the Plaintiff but that if proven, it has the ability to throw
overboard the arbitration undertaken at the Chief’s palace. This is because, if there was
no ruling or decision, then there is nothing for the court to enforce. As I have stated
above, the last of the three elements of a valid arbitration is that the award given must
have been published. Publication is the act of bringing the final decision or award to the
notice of the parties. Publication thus informs the parties what the final award is. It can
be oral or written. However, there should be certainty of the award or decision
rendered at the end of the arbitration. According to the learned S.A. Brobbey in his
Practice and Procedure in the Trial Courts and Tribunals of Ghana, 2 nd ed. at page 521,
there must be some evidence that the arbitrator has made up his mind. See Yaw v
Amobie (1958) 3 WALR 406. Thus, the mind of the arbitrator must be discoverable in
the award or decision he renders. This connotes that there must be a decision or award
at the end of the arbitration which is to be made known to the parties by publication.
However, I think that the focus of this analysis should not be confined to the assertion
by the Plaintiff that there was no publication of the award or decision. According to S.A.
Brobbey at page 518 (supra), care should be taken to scrutinize evidence led in support
of what is alleged to be “arbitration”. I therefore extended scrutiny of the primary
evidence put forward to prove the arbitration to determine whether there was an
arbitration between the parties. So, what did the evidence disclose concerning the
assertion by the Plaintiff? My finding is that besides the allegation by the Plaintiff that
there was no ruling delivered by the panel, there may not have been a voluntary
submission by the parties to determine their dispute by arbitration after they had
returned from the locus inspection.
I have taken a thorough read of the entire record as contained in Exhibit 3. The first
impression I gathered is that it cannot be in doubt that the parties voluntarily submitted
19
to the arbitration by the panel of chiefs at the Kwanyakohene’s palace. There is
abundant proof that the parties appeared before the chiefs and conducted the trial. The
trial is said to have commenced on 20th March, 2021. However, subsequent sittings are
said to have been conducted in 2020. I think that there was a mistake with the initial
date. It should have read 2020 instead of 2021. Be that as it may, at page 11 of the
Exhibit 3, the hearing of 31st July, 2020 ended with a visit to the locus. Parties are
represented to have accompanied the chiefs to the land where each showed their
respective lands. There is a note that inspection ended at 4.35pm and the case was
adjourned to Tuesday 4th August, 2020 at 2.00pm. Then on the 4th August 2020, the case
is reported to have continued at 2.15pm. Exhibit 3 carries a caption “REPORT”. The
contents under this caption is where my apprehension emanates. Before I set out to
comment on the contents, I have reproduced what is stated therein under the caption
“REPORT” below:
REPORT
Both parties appeared before the panel and agreed on settlement of the
case since they have for long lived closely together and have cordial
relationship. They then looked up to the panel for settlement.
The above quoted statement in exhibit 3 has many connotations which when analyzed
critically, do not support the contention that there was a valid arbitration held by the
panel. Better still, it creates doubts in my mind as to whether all the elements of a valid
arbitration were satisfied. The Statement quoted above is headed “Report”. The
procedure from such arbitrations is that after the parties have inspected the subject
land, they meet the arbitrators on a given date. The arbitrators then give a report of
their findings at the inspection and afford the parties the opportunity to ask any
questions that may have arisen from the inspection after which a date is set for the
decision or award. So, the caption is not new to me. It is the contents of the ‘report’
which deserves analyzing. The ‘Report’ states that both parties appeared before the
20
panel [presumably after the inspection]. The parties then “agreed on settlement of the
case since they have for long lived closely together and have a cordial relationship”. The
parties did not agree for the panel to render its award after the locus inspection. Rather,
the parties had taken a different course, a pathway completely different and
unassociated in any way with the arbitration they had held. They had opted for
‘settlement’ of the case stating reasons for their preference over arbitration.
In further confirmation that both parties opted against Arbitration and opted to settle
their dispute, the testimony of Mr. K.A. Imbeah, the secretary and recorder of the
arbitration proceedings who testified as DW1 comes in handy. From my understanding
of his testimony on the matter, he appears to confirm the obvious that at some stage in
the proceedings, the parties decided to end the arbitration and pursue a different course
of settlement of their dispute. I have reproduced portions of his testimony below i.e.
paragraph 9 of the witness statement, for the sake of clarity. Paragraph 9 is in the
following terms:
9. That both parties saw the need for common understanding among
themselves since they have lived together in the same area for long.
Paragraph 9 is a further fortification of the finding that both parties revoked their
consents for arbitration and opted to engage in amicable settlement of their dispute for
the reason that “they have lived together in the same area for long”.
I find that even though the parties had been engaged in an arbitration proceeding in
which they had testified and asked questions of each other and their witnesses, and
were on the verge of conclusion, at that material point in the arbitration, they had
revoked their consents for the chiefs to arbitrate their dispute and opted for a different
mode of ‘trial’ in determining their differences. That mode was through a settlement. A
‘settlement’ is materially different from an arbitration. An arbitration is not a settlement.
In a settlement, none or in some cases, not all of the elements stated above that qualifies
21
a hearing as an arbitration is present. As such, in a settlement, no award is rendered by
the facilitator or mediator. That is what I find the parties to have consented to.
Under normal circumstances, before a chief assumes jurisdiction to arbitrate a matter,
one party makes a complaint/summons against another. The chief serves the other party
summons to appear before him. Then having sought the consents of the parties to
arbitrate the dispute, he sets up a panel to arbitrate the matter. It is not every complaint
that is made to a chief over which he sets up a panel to arbitrate. There are cases in
which parties agree to attempt settlement at the behest of the chief and his panel. Where
the attempt at settlement fails, the chief and his panel do not render any award capable
of binding any party. In much the same way, I find that the parties gave their consents
to the chiefs to hear the matter under arbitration and make a determination. They had
voluntarily consented or submitted themselves to have their dispute determined by
arbitration, participate in the arbitration and be bound by the outcome. Without their
consents, the chiefs could not have constituted themselves into a panel and arrogated
unto themselves powers to hear and determine their dispute. It was that consent which
operated to legitimize their arbitration. That consent (voluntary submission) was given
for an arbitration to be held. The power to arbitrate the dispute between the parties
subsisted so long as both parties maintained their consents. To my mind, as soon as the
parties decided and agreed on ‘settlement’ as the new mode of determination of their
case, they had revoked their former consent given to the chiefs to arbitrate the matter.
The initial consent given to the chiefs had been revoked and the parties had given the
chiefs a new mandate to find a solution to their issues through ‘settlement’.
It follows then that all proceedings held prior to the revocation of consent to arbitrate
had expired and became otiose. The proceedings taken down prior to the withdrawal of
consent to arbitrate in preference for a settlement could therefore not have formed the
basis of any decision. Therefore, the panel of chiefs whose mandate to arbitrate had
22
been revoked by the parties could not have reconstituted themselves into an arbitration
panel and to purport to render an award (which I shall come to presently) in favour of
one of the parties. They had no such mandate. Their mandate to arbitrate had expired
and it is not stated that all the parties had consented again for them to rehear the matter
in an arbitration. I do not think that the overzealousness on the part of the chiefs to
render a decision at all cost in the matter should be given judicial blessings as it is
clearly shown that the parties had not voluntarily resubmitted themselves to arbitration
after their preference for a settlement. And in a settlement, the decision is the parties’ to
reach. It is not imposed on them by a panel. Therefore, the attempt by the chiefs to give
a decision after the parties had opted for a settlement is wrongful. I hold that such a
decision is contrary to the rules of natural justice and does not bind any of the parties
especially the Plaintiff.
Be that as it may, despite their unlawful attempt to give an award, it appears that the
chiefs well knew that their mandate to arbitrate had elapsed and that the parties had
opted for a settlement. I have reached the above conclusion from a thorough reading of
the Proceedings and have come to the conclusion that following the “Report” which
contents I have analysed above, the panel then caption what is meant to be their
decision in the term “Mediation”. I find that after an arbitration properly so called, the
panel render a decision and mostly title such awards “Decision”, “Judgment”, “Award”
or “Ruling” etc. Customary arbitral panels do not refer to their decisions as mediation.
They are not mediators. Arbitral panels do not mediate at the end of an arbitration
proceeding. They give an award or decision. What is contained in Exhibit 1 is not a
ruling or an award. This is an indication that because the parties had made a preference
for a ‘settlement’ over an arbitration, the chiefs did not even know how to present the
‘decision’ they had unlawfully decided to give.
23
The contents of the said mediation also speaks volumes to the fact that the parties had
opted against arbitration. I find that what is contained under the heading “Mediation”
are agreements purportedly reached between the parties for the Plaintiff to do or refrain
from doing certain acts. It also contains what the Defendants had ‘agreed’ to do for the
Plaintiff to appease or compensate him. The evidence of Mr. K.A. Imbeah is again
instructive here as it unveils the attempt to convert a settlement into an arbitration
award. I once again reproduce portions of his testimony below for elucidation:
10. The Plaintiff herein, F.K. Antobam agreed to relocate after the Defendants herein
have assisted him financially.
11. F.K. Antobam agreed and accepted cash an amount of GH¢3,000 from Plaintiff to
purchase same size of narrow strip of land.
12. F.K. Antobam again accepted twenty (20) bags of cement in cash (GH¢800) as
additional support.
13. Both parties agreed on three (3) months period for F.K. Antobam to vacate the
narrow strip of land.
Unlike an award, what is contained in the said ‘Mediation’ does not communicate the
mind of the arbitrators after the purported arbitration. It is no wonder that the Plaintiff
insisted that an award has not been given. I find what is purported to be an award or
decision of the panel titled ‘Mediation’ as a collection of what is purported to be
‘agreements’ reached between the parties after the settlement which they opted for. This
court will not lend its powers to aid the Defendants to convert a bundle of agreements
into an arbitration award. Without a clear indication of the mind of the Arbitrators, and
the Plaintiff having denied that an award was given, I hold that what is contained
under “mediation” falls short of an award. It is not an award, decision or ruling of the
arbitral panel capable of enforcement by this court. Being a bundle of agreements, it is
not binding on the parties including the Plaintiff.
24
Moreover, the plaintiff appears to deny that there were any such ‘agreements’ as
contained in the “Mediation” part of Exhibit 3. According to him, after the locus
inspection, the panel called him. That in the absence of the Defendants who had
summoned him before them, the panel threw an envelope at him. That he opposed the
acceptance of the envelope especially where no prior negotiations had been reached and
wondered how the chiefs could force him to accept a conclusion not based on the
collective agreement of the parties. That the panel took offence and construed his
refusal to accept the envelope as an act of insult and disrespect for them and demanded
his immediate vacation from their presence. He insisted throughout the cross
examination that the panel did not give a ruling neither did he agree to the terms as
contained in the report. So, to him, there was no conclusive agreement between them to
warrant the handing to him the envelope as they did. He appeared to say that he had
not agreed to receive any money as a condition to vacate the land. I think that the
plaintiff’s assertions have been vindicated by the evidence led. Indeed, as I have found
in this judgment, there was an attempt by both the Defendants and the panel of chiefs to
package the inconclusive proceedings as an arbitration award which they
surreptitiously sought the court to enforce. I condemn such practice by chiefs who
should know better. Such practices erode the trust and confidence bestowed on them by
members of the community in that they stand to jeopardize future attempts by them to
mediate or arbitrate disputes between members of the community. I think that such
arbitrariness as shown by them to get the Plaintiff to vacate the land at all cost in favour
of the Defendants does not bode well for the chieftaincy institution which has a special
role in the Ghanaian society. Should these biased attitudes continue, future advances by
them to determine disputes between members of their communities will be spurned.
Be that as it may, it is clear that the panel, by their actions of handing out the envelope
to the Plaintiff etc., sought to enforce or implement an agreement ostensibly reached
between the parties at a purported mediation. This has been denied by the plaintiff.
25
However, even if the parties reached a mediation agreement, what is there to prove
same? If indeed there was an agreement reached between the parties that the Plaintiff
should be assisted financially to vacate the land, before the plaintiff could be bound by
it, there ought to be evidence that there was such an agreement and that the plaintiff
consented to the terms of such an agreement by making his mark thereto i.e. if it was
written. But in this case, no such agreement was tendered in evidence by the
Defendants neither was there any evidence led to prove an oral agreement. There is
nothing to show that the parties reached any agreement by which the plaintiff
undertook to vacate the land in consideration for a sum of money or financial assistance
from the defendants. The result is that the purported attempt by the chiefs to enforce
such an agreement by first handing to the Plaintiff the envelope ostensibly containing
the financial assistance and also writing to the Plaintiff to vacate the land were
arbitrary.
It is observed in the proceedings and in the evidence that the parties each paid some
money to the chiefs before the hearing and in the course of the proceedings. Under
normal circumstances, such payment of money at the beginning of hearing by a chief
would have been viewed as a reaffirmation of a party’s commitment and consent to
arbitration by the chief. However, the situation is totally different in this case. Consent
was given to the chiefs to arbitrate the case. However, it was taken away by the parties
and a new mandate given to them. Once there was a new mandate to settle rather than
arbitrate, it mattered not that any of the parties paid any money to the chiefs initially to
arbitrate. The consent given was not a continuum but was revoked in the course of the
hearing over a new mode. Once that consent was revoked, it required that before the
chiefs could have continued the arbitration, the parties should have resubmitted
themselves to arbitration. There ought to have been some evidence of resubmission to
arbitration. But here, I do not think that there was a voluntary resubmission of the
dispute to the chief for arbitration by the parties including the Plaintiff. I find that at all
26
material times after the 4th day of August, 2020, the parties consented to have a
settlement but not an arbitration. Whatever they participated in at the chief’s palace
from the 4th day of August 2020 was a settlement over which an award cannot be given.
I have taken note of the fact that the Plaintiff did not apply to set aside the purported
arbitration within the time stipulated by section 112 of the Alternative Dispute
Resolution Act, 2010, (Act 798). That I think was not necessary in view of the reasons I
have given above that there was no arbitration in the first place for lack of consent.
There must have been an arbitration duly and properly held under Act 798 after which
a losing party would be required to comply with the provisions of section 112. There
having been no arbitration, the provisions of section 112 of Act 798 did not apply to this
case to require of the Plaintiff to have applied within three months to set aside the
award. There was no arbitration after the revocation of consents on the 4 th day of
August 2020 and no award was handed down in it.
On the back of the failure of the first element of voluntary submission or consents by
the parties to arbitration, there is no need to determine any other succeeding element(s)
of an arbitration. It mattered not that the parties undertook to be bound by the decision
of the panel. So long as the preceding element of voluntary submission or consent had
not been established, all that followed were nullities. For it is an accepted principle of
law that one cannot put something on nothing and expect it to stay there. It will
collapse. See Macfoy v. United Africa Co. Ltd. [1961] 3 All E.R. 1169. I hold that there
was no voluntary submission of the case to arbitration and as such there was no
arbitration. I also hold that because the parties had explicitly opted for a settlement over
arbitration, what the panel purported to do was not a ruling, award or a decision which
ruling, award or decision can be enforced by the court.
27
So, the Defendants having failed to get an order from the court to enforce the arbitration
award as contained in their Exhibit 3, what did they do in proof of their title to the land
as per the reliefs contained in their counterclaim? As I stated by way of introduction
above, the Defendants filed a counterclaim. However, all the reliefs contained in the
counterclaim dealt with proof of the arbitration and getting the court to enforce the
purported award. The Defendants did not make provision for any fall back cushion in
terms of alternative reliefs for declaration of title to the land etc. such that in the event
the claim for enforcement of the award failed, the court could have considered the
alternatives. There were none. Their total focus was on the enforcement of the award
which the court has declined. That leaves the Court with nothing more to consider in
respect of the Defendants’ counterclaim.
As I stated before, I decided to consider the Defendants’ counterclaim first because, if
they had succeeded, it had the potential to put matters to rest thereby curtailing a
consideration of the Plaintiff’s claim to title to the land. However, because the
Defendants failed as reasoned above, I shall analyze the case of the Plaintiff as
presented in the evidence to determine whether or not he was able to prove his claims.
The crux of Plaintiff’s case has been succinctly stated in this judgment. However, to
recap what has been extensively stated, the Plaintiff asserted that the land in dispute
belonged to the elders of Kobina Kuntoh who inherited same. That in the year 1984,
being desirous of putting up his own building, he contacted the Yogo Family of Agona
Kwanyako who at the time was represented by Kobina Kuntoh. That Kobina Kuntoh
sold the said piece of land to him. He attached as Exhibit 1, the sale agreement. That all
three siblings of Kobina Kuntoh whose names he gave as Kwame Aketsewa, Kwame
Panyin and Kofi Asabre attested to the transaction as witnesses. That he put up a two
roomed self-contained building on this land. That the Defendants had knowledge of the
existence of his building on the piece of land. That he has been in occupation and
possession of the land from 1984. That the Defendants have since demolished and
28
cleared off his building while he was not home. He attached as Exhibit 3, 3a and 3b,
pictures of the demolition of his building by the Defendants.
As I stated elsewhere in this judgment, the burden of proof was on the Plaintiff to prove
the assertions he made. It was not the Defendants’ to disprove the claims made by the
Plaintiff. The onus of proof is said to be on the party who asserted. Having asserted
strongly that he acquired title to the land by purchase, it was the Plaintiff who retained
the burden to prove that acquisition on a preponderance of probabilities. The burden
having been cast on the Plaintiff, he must prove his case and win on the strength of his
own case as presented and not on the weakness of the Defendants’ case. See Kodilinye
v Odu (supra). The effect is that even if the Defendants had not led sufficient evidence
in their rebuttal of the claims, that alone would not have established a case for the
Plaintiff. The Plaintiff remained the Plaintiff and the one who has made assertions
capable of proof. As such, he bore the burden at all times in proof of his assertions.
There was therefore the need to scrutinize the evidence led by the Plaintiff to assess
whether it was sufficient to prove the claims on the standard stated above. So, what did
the Plaintiff do in proof of his claims?
The Plaintiff had asserted that he purchased the land in dispute from the Yogo family in
1984. That at the time of the purchase, the family was led by one Opanyin Kuntoh. That
the purchase was evidenced in writing which evidence he tendered as Exhibit 1. My
initial assessment of the document is that I do not think that it did anything meaningful
to prove what it was intended to prove. It was not titled. However, it is more in the
nature of an indenture. It described the land it purports to affect and gave its
boundaries. It was signed by the supposed vendor as well as the purchaser and duly
stamped. It was clearly an indenture. Being an indenture, it ought to have borne the
marks of an indenture. One critical requirement of such an indenture being an
instrument that affects land is that it should be registered. However, it was not
29
registered in accordance with law. The law on unregistered instruments affecting land
has been firmly grounded in a line of cases. It is trite law that a document purporting to
transfer title to land or affect land in any way must be registered in order to be valid.
That is to say, an unregistered indenture is invalid to convey title in land to any person.
Since the instrument relied on by the Plaintiff was executed after 1962, it was squarely
caught within the ambit of the Land Registry Act, 1962 (Act 122). I have taken note of
the fact that the indenture was executed in the year 1984. That was not disputed. There
is a new Land Act, 2020 (Act 1036) which has repealed the Land Registry Act. Even
though Act 122 has been repealed, since the instrument was executed before the new
Act came into force, it is the now repealed Land Registry Act, 1962 (Act 122) which
governs the transaction. Section 24 of Act 122 states:
“24. (1) Subject to subsection (2), of this section, an instrument other than,
(a) a will, or
(b) a judge's certificate, first executed after the commencement of this Act shall be of no
effect until it is registered.”
The legal effect of section 24 of Act 122 has been considered and stated by the superior
courts of our land. In Odoi v. Hammond [1971] 1 G.L.R. 375at p. 391, C.A. Azu Crabbe
J.A. (as he then was) said:
“Again, I dissent, with the greatest respect, from the view expressed by the
learned trial judge that the plaintiff's case was not affected by the nonregistration of exhibit E. It was not disputed that exhibit E was not registered
in accordance with the provisions of the Land Registry Act, 1962 (Act 122).
Section 24 of the Act makes registration a sine qua non for the validity of an
instrument other than a will or a judge's certificate.”
See the cases of Lamptey v Hammond (1987-88) 1 GLR 286; Kwadwo Safo Bamfo v
Kwesi Sintim, Civil Appeal No J4/26/2011, SC.
30
In the instant case, the indenture on which the Plaintiff claimed the valid sale of the
land to him was not registered. The effect is that it should have been objected to when it
was being tendered in evidence. Even though no objection was raised to its admission,
the Evidence Decree, 1975 (NRCD 323), s 8 empowers the Court, on its own motion to
exclude evidence which ought to have been excluded as inadmissible. This provision
has been the grounds for the rejection as inadmissible evidence admitted at the trial
even if there was no objection to them when they were first tendered in a number of
cases. It has been held in such cases as Juxon-Smith v KLM Dutch Airlines [2005-2006]
SCGLR 438, Edward Nassar & Co Ltd v McVroom [1996-97] SCGLR 468, Ussher v
Kpanyinli [1989-90]2 GLR 13 and Amoah v Arthur [1987-88] 2 GLR 87 that it was a
duty of the trial judge to reject inadmissible evidence which had been received with or
without objection during the trial when he came to consider his judgment, and if he
failed to do so, that evidence would be rejected on appeal.
In the end, having found that the indenture, i.e. Plaintiff’s Exhibit 1, was unregistered
under section 24 (1) of Act 122, I hold that the instrument i.e. Plaintiff’s Exhibit 1
tendered by the Plaintiff is not valid for all purposes and its contents cannot have any
legal effect until registration has been completed.
I have stated above the principle of law laid down by the Supreme Court’s decision in
the case of Abbey and others v Antwi V (supra) to the effect that in an action for
declaration of title to land, the Plaintiff must prove on the preponderance of
probabilities, acquisition either by purchase or traditional evidence, or clear and
positive acts of unchallenged and sustained possession or substantial user of the
disputed land. The Plaintiff attempted in the first instance, to prove title to the land by
purchase by resort to documentary evidence. He was not successful in that as that
attempt has undoubtedly failed. That attempt to prove title by documentation having
failed, what other evidence did the Plaintiff lead to prove acquisition of the land in
31
dispute? Although the Plaintiff failed to prove title by purchase through the document
he tendered, I think that he succeeded in establishing acquisition through other pieces
of evidence found in the record.
It is the Plaintiff’s case that he went into possession of the land in dispute in 1984 after
acquisition of same from Opanyin Kuntoh. That he put up a 2 bedroom building on the
land. That he has been in possession of the land since 1984. Plaintiff’s first witness who
gave her name as Philemon Mensah testified to the effect that he had, prior to the
demolishing of the building, lived in it for over 29 years. Plaintiff’s second witness
whose name was given as Faustina Mensah also testified that she lived in the building
with the Plaintiff and their family since she was born. None of these assertions intended
to corroborate Plaintiff’s claims to possession of the disputed land were denied by the
Defendants. Not only were the assertions not denied, I find from the evidence that the
2nd Defendants’ attorney admitted, to some extent, that Plaintiff had been in possession
of the land as he asserted. He stated under cross-examination that the Plaintiff had not
put up a building on the land as he had claimed but that he had put up a structure on it.
I am not so much as concerned about the nature of the edifice on the land as I am about
the effect of the statement making the admission. What I take out from the statement is
that Plaintiff was in possession of the land and had put up a structure on the land.
Whether or not it was a complete 2 bedroom building or just a structure or not matters
not under the present circumstances. That statement is an admission that the Plaintiff
had put up an edifice on the disputed land. That I think was all that mattered.
Moreover, there is no dispute or denial of Plaintiff’s claims that he entered into
possession of the land in 1984. The Defendants failed to cross-examine the Plaintiff on
that issue when he took his turn to testify. As I stated before, the Defendants appeared
preoccupied with getting the Exhibit 3 contents enforced and did not advert their
attentions to Plaintiff’s claims. The law is that when a party made an averment and the
32
averment was not denied, no issue was joined and no evidence should be led on that
averment. Similarly, when a party had given evidence of a material fact and was not
cross-examined upon it, he need not call further evidence of that fact. It implies an
admission. I therefore deem it admitted that Plaintiff went into possession of the
disputed land in 1984. See Akyea Djamson v. Duagbor [1989-90] I GLR 223 @ 228; Kusi
& Kusi v Bonsu (2010) SCGLR 60; Hammond v Amuah & Another (1991) 1 GLR 89;
Western Hardwood Enterprises Ltd. & Another v West African Enterprises Ltd. (19981999) SCGLR 105; Fori v Ayirebi & Others (1966) GLR 627 SC; Danielli Construction
Ltd. v Mabey & Johnson Ltd. (2007-2008) 1 SCGLR 60.
From the evidence, I find that the Plaintiff’s building or structure, as the 2nd Defendant
would want the court to believe, has been demolished and cleared off the land by the
Defendants. This according to the Plaintiff was carried out while he was away. He
tendered in evidence his Exhibits 3 series being photographs of the purported
demolishing of his building by the Defendants. The Defendants did not deny that they
demolished the Plaintiff’s building. It is also deemed to be admitted by them. Be that as
it may, I find that the Plaintiff was in possession of the land before the Defendants
demolished and cleared it off the land. From my earlier holding and the reasons given
above, I find that their demolishing and clearing off of the building from the disputed
land was not lawful as it was not backed by any permission legally obtained. So, the
fact that the Defendants have removed the structure of the Plaintiff from the land does
not, of itself, operate to halt or determine Plaintiff’s possession. Plaintiff is in law still in
possession of the disputed land. As such possessor of land, the Plaintiff becomes a
vulnerable party who is accorded protection by law. Plaintiff’s possession, user and
control of the land in law, arouses important legal ramifications. For instance, in
determining ownership, resort has often been made to possession. This is because
possession has been held to be the original form in which ownership manifests itself.
Thus, aside systems of public registration which are statutory interventions made in
33
that area, possession is ultimately the only means of proving ownership. By his
possession and user of the land since 1984, the Plaintiff, by operation of law, acquired
crucial incidental rights. Both at common law and under sections 35 and 48(1) and (2)
of the Evidence Act, 1975 (N.R.C.D. 323), legal title to the disputed land was vested in
the Plaintiff. By his acts of possession including building on the land, the law makes a
presumption of ownership in his favour. The Evidence Act, 1975 (NRCD 323) states in
section 48 (1) and (2) thus:
(1) The things which a person possesses are presumed to be owned by
him.
(2) A person who exercises acts of ownership over property is
presumed to be the owner of it.”
The clear and unquestioned exercise of rights of possession and ownership over the
property in dispute raised a rebuttable presumption of ownership in favour of the
Plaintiff. The consequences of Plaintiff’s user and possession of the land giving rise to
ownership has been the subject of many judicial decisions. So, in the case of AkyeaDjamson v Duagbor (supra), the Supreme Court, at page 234, held that a person in
possession (of land) has “nine-tenths of the law” in his favour in regard to ownership
with the outstanding one-tenth reposed in any person aspiring to oust him, to make out
his claim as to his entitlement to be declared an owner. And by the provisions of
sections 10-14 and 20 of NRCD 323, the person against whom such a rebuttable
presumption operated or who sought to oust the possessor had the burden of leading
evidence to dislodge it. See Sally Horne v. Jomoro District Assembly, Suit No.
E1/32/19, High Court, Sekondi, dated 17th December 2021; Adwoa Pinamang v Nana
Osei Agyemang Opambour Civil App No. H1/06/2021, Court of Appeal, Kumasi,
dated 28th January, 2021; Ababio and Others vs. Mensah and Others (NO. 2) [1989-90]
1 GLR 573 at 595. In this case, the Defendants did not make any attempt to dislodge that
presumption established in the Plaintiff’s favour. As I observed above, their main focus
34
was on proof of the arbitration award thereby neglecting the claims made by the
Plaintiff.
I find that the Plaintiff has maintained a continuous stay on the land for a long time to
the knowledge of the Defendants. By law, the Plaintiff’s long user and possession of the
land bestowed on him another incidental right i.e. acquisition of title adverse to that of
the Defendants’. The title of the Defendants would have been extinguished and the
Plaintiff being the adverse possessor of the land would have had rights in relation to
which he could sue. See: GIHOC Refrigeration v Hanna Assi [2005-2006] SCGLR 458;
Djin v Musah Bako [2007-2008]1 SCGLR 686; Klu v Konadu Apraku [2009] SCGLR
741. This principle has been codified in Section 10 of the Limitation Decree, 1972,
(NRCD 54). But to enjoy the benefits of adverse possession, it has been held that it must
be specifically pleaded by the party intending to derive that benefit. Despite the finding
that the Plaintiff has been in unfettered possession of the land since 1984, he did not
plead adverse possession. As a result, he cannot take the guaranteed benefit therefrom.
Be that as it may, I find the Plaintiff’s long user and possession of the land as sufficient
to prove acquisition of the land as he claimed. That substantial period of possession of
the disputed land to the knowledge of the Defendants cannot be ignored. Its
significance is far too weighty to be brushed under. The nature of Plaintiff’s occupation
and user of the disputed land and his continued user of it does not lend credence to the
idea that he was granted a permission or license (as the Defendants appear to claim), to
put a ‘structure’ on it. This is so even though the Defendants claimed that the land
which they described as a narrow strip abutting house number AB 8/1, Abonse, Agona
Kwanyako was the subject of a transfer to them by Opanyin Kofi Asabre.
Having made the point above, I think that it would be worthwhile to deal specifically
with the issue of the Statutory Declaration, the basis of the purported transfer to them of
35
the house together with the land in dispute by Opanyin Asabre. This appears to be the
backbone to the Defendants’ claim to the land in dispute and the pivot in their attempt
to eject the Plaintiff therefrom. I have had a look at the Defendants’ case. I find that the
Defendants attempted to justify their title to the disputed land which empowers them
to remove the Plaintiff from it. However, I do not think that they led sufficient
convincing evidence in that respect. Paragraph 6 of 2nd Defendants’ evidence referred to
a Statutory Declaration granted to the Defendants by one Opanyin Asabre. They
tendered the Declaration in evidence marked as Exhibit 2. The Statutory Declaration
was made to transfer house numbered AB 8/1, Abonse, Agona Kwanyako to the
children and grandchildren of Opanyin Agya Annan i.e. the defendants. No mention
was made of the land in dispute in Exhibit 2 tendered by the Defendants. Even though
the Defendants had mentioned elsewhere that the land in dispute forms part of the
house numbered above, there is no proof of it; not even on Exhibit 2. So, on the face of
the Statutory Declaration, the land on which the Plaintiff had put up his building was
not affected by the purported transfer of the subject house to the Defendants.
However, assuming without admitting that the disputed land was part of the building
numbered AB 8/1, Abonse, Agona Kwanyako, I do not think that the said Opanyin
Asabre had succeeded in transferring legal title to the house together with whatever it is
supposed to transfer to the Defendants. I say so because the medium by which such
transfer was effected viz, by a Statutory Declaration, was inappropriate in law and
rendered any intended transfer of title void. The effect of the resort to a Statutory
Declaration to transfer title in property has received many judicial pronouncements
over the years. It is crystallized as a principle of law that a statutory Declaration was not
a registered document under the Land Registry Act, 1962 (Act 122), now repealed by
the Land Act (supra), nor was it a deed or a conveyance capable of conferring legal title
in landed property. The courts have held that a Statutory Declaration made under the
Statutory Declarations Act, 1971 (Act 389) was a mere self-serving document stating
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facts within a person’s knowledge and nothing more. It does not have the potency to
transfer legal title in property to another. See the case of Ayekpa v Sackey [1984-86] 1
GLR 172. As such the purported transfer of the house together with the land on which
the Plaintiff had put up his building by the Statutory Declaration was ineffective in law.
As such, the Defendants obtained to benefits from that purported transfer to them of the
house together with the disputed land.
I also have taken note of the Defendants’ assertion that after the Statutory Declaration
was made for them, it came to their attention that the Plaintiff was occupying a portion
of the land of their ancestor. That statement presupposes that before the Statutory
Declaration was made for them, the Plaintiff was occupying the land. I surmise that
Opanyin Asabre who deposed to the declaration on their behalf knew that the Plaintiff
was on the land. If indeed the Plaintiff had been permitted to put up a building on the
land as a licensee or some kind of tenant, why did Opanyin Asabre who, as he deposed
in the declaration, was and had been in peaceful possession of the house, not take steps
to eject the Plaintiff from the land all these years? Why did the Defendants and their
predecessors dilate for that long to remove Plaintiff from the land if indeed he was only
a permissive possessor of the land? I also wonder how a licensee or a person permitted
to occupy land which the Defendants and their predecessors deem to be part of their
house be allowed to put up a 2 bedroom house on such land which PW1 and PW2
stayed and grew up? Such open acts as seen to have been done by the Plaintiff on the
land are inconsistent with suggestions that he is in possession of the land by the
permission of the Defendants. I find that the Plaintiff had shown by his user, control
and long possession of the land that he acquired outright title to it.
I shall now come to determine the issue of damages to cap this judgment. The Plaintiff
claimed in his writ of summons for damages for trespass. It is trite law that when
trespass to land was proved or admitted, damages flowed as a matter of legal
37
consequence. See Hassan v Kassardjian Construction Limited, Tamale (1964) GLR 370.
It has also been held that proof of title was not required in order to succeed on a claim
for damages because the law did not require that a person in possession could not have
the possessory remedy of damages unless he/she proved title. Thus, trespass was a
wrong to possession and one of the known remedies for trespass was damages.
So, having laid out the law in respect of damages for trespass, did the Defendants
commit trespass capable of grounding damages in law? There has been undisputed
evidence of acts of trespass committed by the Defendants in the evidence. The Plaintiff
claimed that since the Defendants entered onto his land on which he had constructed
his 2 bedroom house and in which he lived and demolished it. They then cleared the
entire building off the land. As I have stated above, he tendered in evidence
photographs marked as Exhibit 3 series which he claims is evidence of the demolishing
and clearing off of his building from the land by the Defendants. The Defendants did
not deny that they demolished and removed the building from the land. They however
appear to say that it was agreed by the Plaintiff at the settlement which I have referred
to above that the Plaintiff would relocate from the land with financial assistance from
them. I have already given my opinion on the said proceedings before the panel and
also of Defendants’ unilateral demolishing of Plaintiff’s building. I find from the
evidence that the Defendants did not have any legal capacity to have entered onto the
Plaintiff’s land to demolish his building. I find these acts sufficient trespass onto the
Plaintiff’s property. I find that their entry onto the land could not have been done
lawfully since the land has been declared to be the Plaintiff’s and remained so from the
time he acquired it by purchase from Opanyin Kuntoh. To demolish the Plaintiff’s
building when they knew that was his dwelling was barbaric and deserves all the
contempt necessary. So in the case of Mahama v. Kotia & Others [1989-90] 2 GLR 24,
where the Plaintiff sued the Defendants for the demolition of her building, the Court of
Appeal held that in addition to the replacement value of the building, the Plaintiff was
38
also entitled to damages for being deprived of the use of her building. Also in the case
of Ayisi v. Asibey III & Others [1964] GLR 695 @ 696-7, the Supreme Court held that
even in damages for trespass, exemplary damages could be awarded in addition to the
normal nominal and actual damages suffered. The Court held as follows:
“In assessing damages for trespass consideration should be taken not only of
the extent of the land on which the trespass had been committed by the
individual defendants, but also the length of time that the plaintiff had been
wrongfully kept off the land.…”
From the undisputed facts and evidence in this case, I hold that Defendants committed
gross acts of trespass against the Plaintiff and that the Plaintiff is entitled to damages for
trespass for deprivation of a dwelling place and for the inconvenience caused him to
look for another place to stay.
The Plaintiff again claimed a relief for GH¢20,000. He did not explain the basis for the
sum he claimed. But I surmise from the generality of the evidence that it is meant to be
the cost of the building the Defendants demolished. It bears emphasizing that the claim
made by the Plaintiff was special in nature. The claim for the sum of GH¢20,000 being
the alleged cost of the building the Defendants demolished was in effect, a claim in the
nature of special damage; a different character of damage which requires a different
approach. The law has been that special damages are such a loss a will not be presumed
by law. They are special expenses incurred or monies actually lost. They are such losses
as the law will not infer from the nature of the act. They do not follow in the ordinary
cause and are exceptional in character. They are liquidated, verifiable and provable
sums. The legal position therefore is that special damages must be specially pleaded,
particularized and strictly proved. In the case of Delmas Agency Ghana Ltd v Food
Distributors International Ltd [2007-2008] SCLR 748 the Supreme Court laid down the
distinction between general damages and specific damages and held among others that
general damages are such as the law will presume to be the natural or probable
39
consequence of the defendant’s act. It arises by inference of the law and therefore need
not be proved by evidence. The law implies general damage in every infringement of an
absolute right. The catch is that only nominal damages are awarded. However, where
the Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss
and prove it strictly. If he does not, he is not entitled to anything unless general
damages are also appropriate. See also Attorney General v Faroe Atlantic [2005-2006]
SCGLR 271 at 276-277; Yungdong Industries Ltd v Ro Ro Services [2005-2006] SCGLR
816 at 819; Bogoso Gold Ltd v Ntrakwa [2011] 1SCGLR 415.
The law on this point is further stated in Halsbury’s Laws of England (3rd. ed.), Vol. 11,
p. 305, paragraph 494 as follows:
“Although minute accuracy is not essential in pleading or in proving the
special damages claimed, the special damage which is pleaded should make
clear what measure of damage is relied on; the method whereby the figure
claimed is calculated should, in appropriate cases be set out so as to enable
the defendant to know what is the case against him and to obtain evidence
for his defence. It is not sufficient merely to plead a certain figure.”
Also, in the case of Bonham-Carter v. Hyde Park Hotel Ltd (1948) 64 T.L.R. 177 at p.
178, the law is stated in these words:
“Plaintiffs must understand that if they bring actions for damages it is for
them to prove their damage; it is not enough to write down the particulars,
and, so to speak, throw them at the head of the Court, saying: 'This is what I
have lost; I ask you to give me these damages.' They have to prove it.”
The law as espoused above is very clear and need no further elaboration. What was
required of the Plaintiff is clear: plead, particularize and prove by leading evidence to
establish the various particulars of damage allegedly suffered. In my opinion the
Plaintiff failed in that task. As has been established already, the Plaintiff stated his claim
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for a sum of GH¢20,000 as special damages presumably for of the building the
Defendants demolished. So, I can safely conclude that he was able to satisfy the first
requirement of pleading.
However, save stating the sum in his writ of summons and repeating same in his
Statement of Claim, he failed to lead any credible evidence to prove the cost of the
building the Defendants demolished. I think that the figure of GH¢20,000 put there by
the Plaintiff was a bit arbitrary and ought to have been proved in order to have merited
anything from the court. As I have stated above, there is evidence on the land to show
trespass by the Defendants. There is evidence to show that the Defendants demolished
his building. However, it stood to be proved that the cost of the building the
Defendants demolished was GH¢20,000. Such a sum ought to be determined based on
verifiable data and not just by assumption.
On the preponderance of probabilities, I make the following findings of fact from the
evidence on record adduced by the parties:
1. That the land in dispute was originally owned by the Yoko family of Agona
Kwanyako.
2. That the Plaintiff acquired the land by purchase from Opanyin Kobina Kuntor acting
on behalf of his siblings.
3. That the Plaintiff has since 1984 been in effective user, control and possession of the
land and put up a building thereon in which he stayed.
4. That the Defendants claiming that the land on which the Plaintiff had put up his
building belonged to them summoned the Plaintiff before the Kwanyakohene’s
palace. That in pursuance of the summons, a panel was set up to arbitrate the
dispute.
5. That before the panel could render a decision, the parties withdrew their consent to
the arbitration and opted that their dispute be determined through settlement. That
41
no ruling, decision, award or judgment was given by the panel. As such the court
cannot be called upon to enforce what is not in existence.
6. That the Plaintiff succeeded in leading evidence to prove that he acquired the land
in dispute. That the Defendants’ unilateral demolishing and removal of the building
put up by the Plaintiff on the land did not oust him from possession of the land.
On the totality of the evidence on record, the Plaintiff succeeded in proving his claims
against the Defendants. I enter judgment for the Plaintiff in terms as follows:
i) Judgment is entered in favour of the Plaintiff as per the reliefs endorsed on his
writ of summons and declare title to the disputed land at Agona Kwanyako
behind H/No. C6, C61, C68 and Yaw Yeboah of the Yogo Family as described in
the writ of summons to be vested in the Plaintiff herein.
ii) I further order perpetual injunction against the Defendants, by themselves,
agents, personal representatives, assigns, servants, administrators, executors,
privies or howsoever from dealing with or having anything to do with the land.
iii) Accordingly, I enter judgment for the Plaintiff on his claim for damages for
trespass. General damages were normally said to be at large and their
quantification was peculiarly within the province of the court. Given the nature
of the trespass succinctly established above, i.e. the demolishing of the Plaintiff’s
building on the land which has deprived him of the use of his building, I would
award a reasonable sum of Twenty Thousand Ghana Cedis (GH¢20,000) as
general damages against the Defendants.
iv) The Plaintiff however failed to lead any evidence in proof of his claim for
GH¢20,000 as special damages. That claim is dismissed as unproven.
v) The Defendants failed to prove the claims as endorsed on their counterclaim. The
claims as endorsed thereon are dismissed in their entirety as unproven.
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Considering the length of time this case has had to take to complete and the fact that the
Plaintiff engaged the services of counsel throughout the proceedings in court, I assess
cost at GH¢5,000 against the Defendants in favour of the Plaintiff.
(SGD)
HIS HONOUR ISAAC APEATU
DISTRICT MAGISTRATE