IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2018
NUMO ALFRED QUAYE -(Plaintiff/Respondent)
LEMUEL MARTEY QUARSHIE AND LETICIA NARKOUR NARTEY- (Defendants/ Appellants)
DATE: 28TH NOVEMBER, 2018
CIVIL APPEAL NO: HI/31/2018
JUDGES: V.D. OFOE J.A (PRESIDING), B.F. ACKAH-YENSU J.A, I. O. TANKO AMADU J.A
NII AKWEI BRUCE THOMPSON FOR APPELLANT
KWAKU BOADU FOR RESPONDENTS
TANKO AMADU J.A
(1) This appeal lies from the Judgment of the High Court (Land Division) Accra dated the 19th day of October, 2016. In that judgment, the Trial Judge entered judgment in favour of the Plaintiff/Respondent (hereinafter referred to as Plaintiff)’ and held as follows: “In conclusion,
I enter judgment for the Plaintiff’s family as follows:-
(a) The Plaintiff’s family being Ayiku Gberbie family is declared titled to the land described in relief ‘a’ and covering an approximate area of 1,112.09 and that land covered by Schedule III falls within the Plaintiff’s family land.
(b) The Plaintiff is to recover all vacant land within the area described in relief ‘a’.
(c) All persons who have been granted portions of the Plaintiff’s family land by the 2nd Defendant should attorn tenancy (tenant) to the Plaintiff’s family or risk losing their land except the area where the Defendants have built their home and settled on at time of building those houses has not been given.
(d) The Defendants agents, assigns, servants, grantees etc. are restrained from making any claim over any portion of the said land and from disturbing the Plaintiff’s family right on the said land.
(e)The Plaintiff’s claim for damages for trespass is dismissed.
(f) The Defendant’s counterclaims are also dismissed, except that the Defendants are to continue to keep the land on which they have built their house or houses and live on but exclude where they farm.
(g) The Plaintiff is awarded cost of Gh₡15,000.00.
(2) It is against this judgment and consequential orders set out above that the Defendants/Appellants (hereinafter referred to as Defendants) appealed to this court upon a cocktail of grounds of appeal finally settled in the Amended Notice of Appeal filed on 15th December 2017 pursuant to leave granted by this court. We shall classify and determine all the grounds of appeal under three broad areas as follows:-
(i)The errors of law alleged including the Trial Judge’s determination of the Plaintiff’s capacity and subsequent amendments suo motu.
(ii) All grounds of appeal alleging misapprehension of the evidence under the omnibus ground that the judgment is against the weight of evidence.
(iii) Determination by the Trial Court of the issue of limitation statute raised by the Defendants and the equitable defences of laches and acquiescence.
(3) BACKGROUND FACTS:
The original writ commencing the action at the Trial Court was issued on the 4th day of April 2012. In the last Amended Statement of Claim filed on the 22nd day of July 2014 pursuant to leave of the Trial Court on 21st of July 2014 the Plaintiff sought the following reliefs.
(a) Declaration of title to all that land described as land situate, lying and being at Prampram and bounded on the South /East by Tema –Ho Road measuring 10,717.7 feet more or less on the South /West by Lessor’s Property measuring 9,725.1 feet more or less on the North /West by Lessor’s Property measuring 3,420.7 feet more or less …….
(b) Declaration that the land covered by schedule III above belongs to the Plaintiff’s family as part of the generality of the Plaintiffs family land and that the Defendants are trespassers onto the Plaintiffs family land
(c) Recovery of possession of the land described under schedule III herein
(d) Damages for trespass
(e) Perpetual Injunction restraining the Defendants, their assigns, servants ,agents and all person(s ) claiming any interest through the Defendants
(f) Costs including Solicitors charges.
(4) The Defendants denied the claim of the Plaintiff and contested the action per a Statement of Defence in which they set up a counterclaim. The Defendants contested the claim and prosecuted their counterclaim per a final Amended Statement of Defence and Counterclaim filed on 26th day of November. The Defendants raised inter alia legal and equitable defences, and challenged the Plaintiff’s capacity to commence the action. The Trial Court reserved the determination of the issue of the Plaintiff’s capacity and resolved same in the judgment of the court on appeal to this court. It is important however, to place on record that the capacity in which the Plaintiff commenced the action is that he is the head of the Ayiku Gberbie family who are the allodial owners of large tracts of land situate at Mateheko which encompassed the 152 acres sought to be recovered from the Defendants. The Plaintiff sought to prove his claim largely through traditional evidence.
(5) In their counterclaim, the 1st Defendant sought the following reliefs :-
“a) One Thousand and Four Hundred and Forty Ghana Cedis (Gh₡1,44.00) being damages for the destruction of two acres of maize belonging to the 1st Defendant by members of the family of the Plaintiff.
b) Compensation for the damage caused to the farm of the 1st Defendant
c) Costs on the full indemnity basis
d) Any other order(s) that the Hounourable Court may deem fit to make”.
(6) Further to the 2nd Defendant’s defence she set up a counter-claim as follows:-
“a) A declaration of title in favour of the 2nd Defendant of all that piece
or parcel of land situated Afiadenyigba in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 1183.08 acre more or less and bounded on the North-East by Land measuring 1,554.6 feet more or less on the South East by Land measuring 3,405.8 feet more less and on the South West by Land measuring 3,472.9 feet more or less which piece or parcel of land is more particularly and delineated on the Plan and shown edged PINK.
b) A declaration that the vesting assent dated 3rd March, 2000 with registration number AR/8410A/2003 and LVB 2937A/04 and made by Numo James Lartey Gberbie the customary successor on behalf of Numo Lartey Gberbie did not vest the 2nd Defendant’s lands in the Gberbie family.
c) An Order declaring the registration of the vesting assent dated 3rd March 2000 with registration number AR/8410A/2003 and LVB 2937A /04 and made by Numo James Lartey Gberbie the customary successor on behalf of Numo Lartey Gberbie and all subsequent registration based on it from the records.
d) An Order directed at the Lands Commission to expunge the registration of the vesting Assent dated 3rd March 2000 with registration number AR/8410A/2003 and LVB 2927A/04 and made by Numo James Lartey Gberbie the customary successor on behalf of Numo Lartey Gberbie and all subsequent registration based on it from its records.
e) Order directed at the Lands Commission to register all that piece or parcel of land situated Afiadenyigba in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 183,08 acres more or less and bounded on the North East by land measuring 1,554.6 feet more or less on the South East by Land measuring 3,405.8 feet more or less and on the South West by land measuring 3,472.9 feet more or less which piece or parcel of land is more particularly and delineated on the Plan and shown edged PINK in the name of the 2nd Defendant.
f) An Order directed at the Plaintiff to produce a true and proper account of all monies received from the sale and other disposition of parties of the 2nd Defendant‘s lands and upon the submission of the said account.
g) An order directed at the Plaintiff upon submission of the accounts to pay to the Defendants all monies received by them from the sale or other disposition of 2nd Defendant lands.
h) An Order for recovery of possession of any portion of the land described in the schedule attached hereto which is in the control custody or possession of the Plaintiffs their agents and assigns.
i) A perpetual injunction restraining the Plaintiffs, their agents, assigns and servants from interfering in any way with the Defendants family use quiet enjoyment or possession of the lands.
j) Damages for trespass against Plaintiffs.
k) Costs on full indemnity basis.
l) Any order (s) that the Honorable Court may deem fit to make”.
(7) The Plaintiff thereafter filed a reply and defence to the Defendants’ Amended Statement of Defence and counterclaim and pursued his case by an amended reply and defence to counterclaim filed on 10th December 2012 pursuant to the order of the Trial Court.
(8) THE CASE OF THE PLAINTIFF
The Plaintiff conducted his case by an Attorney, Joseph Nee Tetteh who described himself as secretary to the Ayiku Gberbie family. As per his pleadings, the Plaintiff claimed that he was the head of the Gberbie family of Prampram. He testified that his family is the allodial owner of a large tract of land covering approximately 1112.09 acres of land lying along the Tema - Ho highway on the left side of the road. On the south western and north western parts of the land, they shared boundaries with Kpone and Kofi Korpe whilst on the eastern part, they shared boundaries with small villages like Mempemehoasem, Afiadenyigba and the Akosombo road from Tema. The Plaintiff testified further that the land stretches from the Coastal Estates to a point before the Afienya toll booth. The Plaintiff testified that his family became owners of the land by way of first settlement by one Lartey Gberbie alias Agbokpanya, a fetish priest, hunter, warrior, and herbalist who settled on the land and named same as Mataheko after the Katamanso war in 1826 to treat wounded warriors who returned from the war.
(9) In establishing the capacity of the Plaintiff as the Head of Family of the Ayiku Gberbie family of Prampram, his attorney tendered Exhibit ‘C’ a letter signed by him and a head of family Francis Gberbie to solicit for a loan as well as Exhibit ‘A’ the Power of Attorney given him by the Plaintiff to prosecute the action. He also tendered Exhibit ‘B’ a Statutory Declaration made by the family and obituary notices, Exhibit ‘K’ series (K1-K6) attesting to Plaintiff’s position as Head of Family. He traced the Head of familyship from the death of James Lartey Gberbie who was succeeded by Francis Teye Numo Gbebie before the Plaintiff. He testified that on the death of James Lartey Gberbie, some members of the family were dissatisfied with the process by which Francis Gberbie was appointed and as a result they issued Exhibit ‘D’ a writ against the family and an injunctive application to prevent the burial of the late head of family.
(10) He testified further that after an amicable resolution of the differences between the family members, Francis Gberbie stayed away while the Plaintiff was appointed as head of family.
He tendered Exhibit’s ‘E’ and ‘F’ as evidence of the previous suit, as well as pictures taken after the purported appointment of the Plaintiff marked as Exhibit ‘H’ and ‘H1’. Also tendered, is Exhibit ‘G’ the minutes of meeting of the family at which the Plaintiff was appointed as head of family while Exhibit ‘J’ is a statutory declaration confirming same. The Plaintiff maintained that Francis Gberbie was not the head of family and that he had been removed on grounds of misconduct.
(11) In proof of ownership of the land by reason of recent and overt acts supporting the claim the, Plaintiff testified on grants of parcels to persons including the lease of 152 acres of the family land in 1999 for 25 years to Tee Teye Farms owned by Samuel Nartey now deceased. He testified further that Tee Teye Farms atoned tenant to the family and at their yearly festivals presented foodstuffs to the Plaintiff family as an acknowledgement of the Plaintiff’s family ownership of the land.
(12) The Plaintiff’s Attorney testified that Defendants had encroached on the 152 acres of land given to Tee Teye Farms and an additional 31 acres. That the family’s attention was drawn to the fact that the Defendants were selling portions of the land to third parties buyers. Further that, attempts to stop Defendants had fallen on deaf ears for which Plaintiff’s family lodged a complaint against the Defendants at the police station. In support of Plaintiff’s claim, reference was made to land marks on the land including a dam, trees and a school as the family had gifted portions of the family land to some persons.
(13) In respect of the claim by the Defendants Plaintiff’s Attorney testified that the 2nd Defendant could not hold herself as the head of the Kle Abordo family since Ga/Adangbe custom did not allow a woman to be a head of family. Plaintiff’s Attorney testified that when the conduct of the Defendants was challenged by his family, they contended that years ago they obtained permission from the Afienya and Prampram Stools to settle on the land. In addition, the Defendants claimed to originate from the Olowe Clan of Prampram and have over several years enjoyed uninterrupted possession of the land by virtue of their family ancestral rights.
(14) The Plaintiff’s Attorney rebutted the Defendants claim of ownership of 183 acres of land on the grounds that the Olowe Clan from which Defendants claim to hail are not owners of the land. He testified further that Prampram lands are family owned negating any claim by the Defendants to have obtained permission from the stool aforesaid to settle on the land.
(15) PW1, Okyeame Narh Kojo Foddie III a member of the Ayikuwe or Gberbie Ayikuwe and Prampram Royal family and chief linguist of the Prampram Stool testified on the capacity of Plaintiff as Head of the Ayiku Gberbie family. He also testified to the posting of obituary notices capturing different people as Head of Family upon the death of James Lartey Gberbie. He claimed issuing a writ in court to restrain the family from burying the deceased after which the family succeeded in settling all differences among the members of family leading to the stepping down of the previous family heads and the appointment of Plaintiff as the head in 2011. He could however not give the dates of the event but identified Exhibits ‘H’ & ‘H1’ as pictures taken during the outdooring of Numo Alfred Quaye during the ‘Homowo’ festival as Head of Family.
(16) He testified on the size of the family land as 1112.09 acres in area out of which 152 acres was granted to Tee Teye Farms. He confirmed the mode of attornment of tenant by Tee Teye Farms by the presentation of foodstuffs by Samuel Nartey who often came with his wife (PW2) during the ‘Kpledom’ festival. He could not remember when the grant was made to Tee Teye Farms nor the consideration paid. During cross examination, he answered to a question whether the grant made to Tee Teye Farms was subsisting thus: “The grant is still subsistent because as it has been given to him, it has been given to him”. He contended that there were family members living on the land at the time the portion was given to Tee Teye Farms; He testified however that: “The family members surrounded the portion that was given to Tee Teye Farms but not the exact area given to them”.
(17) He further testified on the features on the land given to Tee Teye Farms as including a pond used in watering the farm, a dug out, schools and houses. In respect of the 1112.09 acres of the family land he claimed is lying and situate at Afienya Mataheko, he testified to the presence of schools and buildings. He mentioned Gospel International School as an example of one of the schools on the land.
(18) In respect of the Defendants’ claim to the ownership of 183 acres of the land, he testified on the grant of land to Tee Teye Farms as for farming purposes only. He testified further that after the demise of Samuel Nartey (of Tee Teye Farms), his younger brother brought the site plan covering 152 acres given to Tee Teye Farms for endorsement and registration but his attention was drawn to another site plan covering 183 acres held by the Defendants which indicated that the Defendants had added 31 acres of land to the area given to Tee Teye Farms. He confirmed that Exhibit ‘N’ was the site plan of the land granted to Tee Teye Farms. He testified that the land granted to Tee Teye Farms shared boundaries with family members. He identified Exhibit ‘U’ as the site plan covering the 1112.09 acres claimed by the Plaintiff. He claimed that the Defendants were claiming the additional 31 acres at the north-eastern part by the Akosombo road towards the toll booth.
(19) He further testified to his family claim of ownership by first settlement and that it was their forefathers who first settled on the land. He testified further that there were four (4) clans in Prampram being Larkple, Anewe, Kle and Olowe Tsawenya and that the Chief of Prampram hailed from the Anewe clan.
(20) THE EVIDENCE OF PW2 VICTORIA AKWELEY ODONKOR
Victoria Akweley Odonkor the wife of Samuel Nartey of Tee Teye Farms (deceased) testified that she resided at Tema and also lived on a farm house built by the her husband. She testified that her husband hailed from Kle Abodo family and maintained that the location of Afiadenyigba was far from Mataheko. She testified that the land given to her husband by the Ayiku Gberbie family is situate at Afienya Mataheko and covers 152 acres bounded on all sides by the Ayiku Gberbie family. She could not remember the exact date the land was granted to her husband but stated that it could be about forty (40) years. In respect of her knowledge of the terms of the lease, she testified that the land was given to the husband for farming purposes and the arrangement between the family and her husband was for her husband to send food items during annual festivals and some money.
(21) The PW2 could not remember when the husband started cultivation but mentioned the cessation of farming activity about 12 years earlier having farmed for about 30 years. She claimed that they used about 70 acres and cultivated about 20 acres for rice. She testified that the husband was an employee of VALCO and as a result used his free time to cultivate the land. She tendered Exhibits ‘Y’, ‘Y1’, ‘Y2’, ‘Y3’ as the registration documents of Tee Teye Farms which she claimed was owned by the husband Samuel Nartey. She also tendered Exhibit ‘Z’ the site plan covering 152 acres of land given to Tee Teye Farms. She testified that she was present when the land was demarcated to Tee Teye Farms and that the late Samuel Nartey, her husband presented two bottles of schnapps and some money in an envelope as thanksgiving. She reiterated that during the month of August each year being the season for the annual festival, her husband presented schnapps, money and food items to the Ayiku Gberbie family as attornment. Some of the persons present at the presentation she identified in court included Mr. Ben Ablorh, Joseph Moses Nii Tetteh, Samuel Akuetteh, Samuel Bossman.
(22) On the relationship between her husband and the Defendants, she testified that the 2nd Defendant is the sister of her late husband. She testified that the 2nd Defendant hailed from Olowe. She claimed that it was her husband Samuel Nartey who invited 2nd Defendant to join the farming business and gave her a portion of the land to cultivate. She testified further that encroachments on the land commenced during the life time of her husband Samuel Nartey as several persons started building on same. She testified that Defendants were selling portions of the land inspite of several warnings from her late husband. Further that after the death of her husband, she approached Plaintiff’s family for assistance towards the funeral, and that Plaintiff’s family agreed and requested her to inform them of any prospective purchaser of the land. According to PW2 after selling portions of the land, Defendants prevented the buyer from development. She testified that she first saw a building spring up on the land about fifteen (15) years earlier and that the entire area has been turned into a residential estate. She could not provide evidence on the size of the land allegedly given to the Defendants by her husband to farm on, but acknowledged that the 1st Defendant is a nephew of her late husband. THE CASE OF THE 1st AND 2ND DEFENDANTS
(23) The Defendants fought their case per their Amended Statement of Defence and Counterclaim. They averred and testified that they became owners of the 183 acres of land by virtue of a request made from the Afienya and Prampram Stools. The foundation of their defence was that they approached the said stools several years back for a place to farm and being descendants of the Olowe clan/family, they were directed to the disputed land and were asked to farm as much as they could. They testified that the land was originally not demarcated to them but they became possessed of the present size by reason of their cultivation of various portions of same which altogether adds up to the 183 acres which has been in their uninterrupted possession for a period in excess of forty (40) years.
(24) THE 2ND DEFENDANT’S EVIDENCE:
The 2nd Defendant testified that she was the mother of the 1st Defendant and sister in law of PW2 who is the widow of her late elder brother Samuel Nartey claimed by Plaintiffs as the owner of Tee Teye Farms to whom Plaintiffs claim to have granted the land covering an area of 152 acres which Plaintiff alleges that the Defendants have encroached upon. She denied knowledge of the Plaintiffs except one Tetteh Akpah who worked for her and eventually married her daughter. The 2nd Defendant asserted that Tetteh Akpah‘s farm was located two (2) miles from her farm on the Afienya/Prampram road. In respect of her knowledge as to whether Tetteh Akpah hailed from the Gberbie family, the 2nd Defendant testified that “As far as I know Tetteh Akpah’s father, he is from the Odonkor family but Tetteh Akpah himself said he is a Gberbie. That is all that I know”. She maintained that before the said Tetteh Akpah married her daughter, he was called Tetteh Odonkor. But he changed his name to Tetteh Gberbie and has four children with her daughter all of whom answer Odonkor.
(25) According to the 2nd Defendant, members of the Plaintiffs’ family trespassed on her maize farm and she reported them to the Police. She testified further that Tee Teye Farms belonged to her mother one Kai Adu a wood cutter and saw miller at Ashaiman who inscribed the name at the back of vehicles she acquired. Further that, the name Tee Teye Farms originated from the names of her two male siblings in the family. She asserted that during the life time of her mother, Tetteh worked with the Volta Aluminium Company (Valco) while Teye essentially supervised the farm. The name Tee Teye was therefore adopted by the family and all possessions of their mother became known and branded as Tee Teye Farms. She claimed that they the Defendants, were an integral part Tee Teye Farms.
(26) On her acquisition of the land in dispute, she testified that together with her brothers Teye and Tetteh, they approached the Paramount chief of Prampram for a place to farm and dwell who directed them to the Afienya chief. The Afienya chief then made enquiry on their families origin since any person in search of land to settle on had to approach the chief who would conduct a background enquiry and verify the person’s ancestry. Consequently, being descendants of Olowe family, they were shown their family land and asked to farm as much as they could. The 2nd Defendant testified that they settled residing at Afiadenyigba and maintained that the land in dispute is situate at Afiadenyigba and not Mataheko as claimed by the Plaintiff. She denied Plaintiff’s claim of granting the land to Tee Teye Farms and for that reason were receiving annual presentation of farm produce as attornment.
(27) She further testified that she also hailed from Kle Abodo Afutuwe from her father’s line of ancestry. She asserted however that her Olowe ancestry is through her mother and she testified that she entered the land before the military coup of General Acheampong but before Ghana changed driving from right to left. From available official public record, this is between the period 1972 and 1974.
(28) On recent acts and possession, the 2nd Defendant testified and relied on construction of three (3) dams, rearing of cattle and grants made of portions of the land to family members who built houses thereon for a period of more than twenty (20) years. According to the 2nd Defendant, the Methodist Church was one of such beneficiaries who put up a church on the land more than ten (10) years before the Plaintiffs’ action. She asserted that being an illiterate, all documents involving transactions on the land were documented by her son, 1st Defendant herein.
(29) The 2nd Defendant contended that the land was initially not demarcated but the total acreage was arrived at after adding the various portions in their possession which they cultivated. She testified on her boundary owners, who are Akitse now deceased and succeeded by Akrofie, and Numo Eyeum. That some of her family members who had been given portions of the land included Tetteh Akrong, Akweley Donkor, Na Wayo Atta Tetteh to mention a few. In respect of Akweley Donkor who was a baker at Tema, the land was granted to her about 12 years earlier to put up a residential dwelling place. The 2nd Defendant claimed that the boundaries were arrived at by relying on landmark meeting points with others which included Baobab and Nim trees. She asserted that she still farmed on the land but had relinquished much of the work to the 1st Defendant her son.
(30) THE EVIDENCE OF 1ST DEFENDANT
The 1st Defendant testified to their ownership of the land situate at Afiadenyigba covering 183 acres by way of first settlement. He corroborated the evidence of the 2nd Defendant with respect to the role played by the Prampram and Afienya chiefs in locating their family land. He testified that the land lies between Afienya and Mateheko and from the Accra Tema Motor way towards Akosombo roundabout, immediately after Michel Camp to Emef Police Station near a sign post with the inscription rice city where they reside.
(31) He testified that the land in dispute is situate at Afiadenyigba and not Mataheko which used to be a small village of about five buildings far from Afiadenyigba. He claimed that settlers from Ada who lived there sought permission between 1964 and 1965 from Nene Anorkwei, the Chief of Prampram. He contended that Afiadenyigba was in existence before the coming into being of Mataheko. He tendered Exhibit ‘7’ the Gold Coast Chief List which shows the names of all the villages and Chiefs on which Mataheko is not named whilst Afiadenyigba is named as No.12 at page 23.
(32) The 1st Defendant further testified on the features on the land and their recent acts. He testified that the land is in two (2) parcels, the upper part which is fully developed with residential buildings and the lower part where his farms are located. He testified to the presence of a dam they had constructed for mechanized farming, two fish ponds, cattle ranch and rice farms and mills and a platform for drying. There were also artisans and mechanics as well as churches built on the land. He further testified to his knowledge of Tee Teye Farms where he has farmed for seventeen (17) years. He confirmed that his mother, the 2nd Defendant granted part of the land to his uncle Samuel Nartey who built on the land.
(33) The 1st Defendant denied the Plaintiff’s claim of being owners of the land and described Tee Teye Farms as a trade name of his grand-mother and that all their businesses like sawmilling, rice processing, transport were undertaken in the said name. He explained the relationship between the area of the land per Exhibit ‘N’ which is 152 acres and the 183 acres they now possess. He testified that the first surveyor in 2002 captured the land as approximately 152 acres. Thereafter, during the process of documentation, a second surveyor was instructed in 2012 when the first could not be traced, who captured the land as 183 acres with the use of GPRS equipment. The 1st Defendant denied the claim of the Plaintiff and testified on the prosecution of one Moses Awuley Gberbie, a member of the Plaintiff’s family for unlawful damage evidence of which he tendered per Exhibit ‘6’.
(34) At the application for directions stage the Trial Court adopted ten (10) original issues and eight (8) additional issues for determination. (See pages 103 and 104 of Vol.3 of the record). The Trial Court addressed the issues by amending issues ‘a’ and ‘e’. Issue ‘a’ was reformulated to read:- “whether or not the Plaintiff‘s family is the rightful and allodial owner of the land in issue”. Issue ‘e’ was reformulated to read “whether or not the land in dispute is family or stool land”?
(35) FINDINGS BY THE TRIAL COURT FROM THE EVIDENCE
From the record, the Trial Court made the following findings one of which was a definitive pronouncement on the propriety of the Plaintiff’s capacity to institute the action. The Trial Court made several other findings and proceeded to cure the Plaintiff’s lack of the capacity of head of family by amending same suo motu. The Trial Court had found that contrary to the endorsement on the writ and statement of claim the Plaintiff is not the head of Plaintiff’s family the capacity in which he has purported to invoke the court’s jurisdiction. Thereafter the Trial Court entered judgment for the Plaintiff for substantially all the reliefs endorsed in the writ and dismissed the Defendants’ counterclaim.
(36) THE APPEAL
The Defendants being aggrieved by the findings and judgment giving effect therefrom initially appealed to this court on the sole omnibus ground that the “judgment is against the weight of evidence”. Pursuant to leave granted by this court, an amended notice of appeal was filed on 18th December 2017 which set out 25 grounds as follows:-
1. The Judgment was against the weight of evidence at the trial.
2. The Trial judge erred in law when he held that the plaintiff did not have capacity as head of the Ayiku Gberbie family and yet went ahead and determined the merits of the case.
3) The Trial judge erred in law he suo motu amended the title of the plaintiff with capacity.
4) The Trial judge erred in law when he suo motu amended the proceedings of the Court changing the plaintiffs’ attorney to PW1. PW2, to PW2 and PW2 to PW3 in his judgment.
5) The Trial judge erred in law when he breached the audi alteram partem principle of natural justice by suo motu amending the Plaintiffs writ of summons, pleadings and proceedings in his judgment without granting any opportunity for the Defendants to defend their case against the Plaintiff in his new capacity.
6. The Trial Judge erred in law and in fact when he held that the Defendants did not challenge the Plaintiffs root of title on which basis he held that the Plaintiff is the owner of the 2nd Defendant land.
7) The Trial Judge erred in law and in fact when he held that by virtue of the 2nd Defendant belonging to a Patrilineal system of inheritance, she cannot own portions of the Olowe clan lands.
8) The Trial Judge erred in fact and in law when he held that the 2nd Defendant could not tell the court which family she hailed from and which family the land belong.
9. The Trial Judge erred in fact ad in law when he failed to determine the validity of the Plaintiffs power of Attorney Exhibit ‘A’.
10) The Trial Judge erred in fact and in law when he held that the 2ndDefendant cannot claim the land as hers for having occupied the land for farming since the land is not stool land.
11. The Trial Judge erred in fact and in law when he failed to consider the Defendants long standing possession of the land in dispute .
12. The Trial Judge erred in fact and in law when he accepted the Plaintiffs traditional evidence without considering recent acts of ownership and possession of the land in dispute by the Defendants.
13. The Trial Judge erred in fact and in law when he ordered the Plaintiffs to recover every vacant land including the Defendants farms except the land on which they built their houses.
14. The Trial Judge erred in fact and in law when he based his judgment on wrong principle of law.
15. The Learned Trial Judge erred in fact and in law when he failed to properly evaluate the evidence on record.
16. The Learned Trial Judge erred in fact and in law when he failed misconstrued the import of the Gold coast Chiefs list Exhibit ‘7’.
17) The Learned Trial Judge erred in fact and in law when he made erroneous findings of fact which did not arise either from the pleadings or from the evidence adduced at the trial.
18) The Trial Judge erred in fact and in law when he misdirected himself as to the issues set down for determination before the court.
19. The Trial Judge erred in law when he misapplied the principle in AGBOSU AND ORS VS. KOTEY AND ORS [2003-2004] SCGLR 420 in justifying his decision to amend the plaintiff capacity.
20) The Learned Trial Judge erred in fact and in law when he held that the evidential value of Exhibits ‘GG, DD’ and the ‘W’ series plus the evidence of D2 is that the attempt to lease portions of the land is a recent act of the Defendant and therefore the Limitation Act 1972 (NRCD 54 ) will not apply.
21) The Trial Judge erred in fact and in law when he failed to consider the issues if laches and acquiescence and the Limitation Act (NRCD 54).
22) The Trial Judge erred in law when he misconstrued the evidence adduced on record.
23) The Learned Trial High Court Judgment erred in not dismissing the suit as caught by the Limitation Act 1972 (NRCD54).
24) The Learned Trial Judge erred in holding that the Land is owned by the Plaintiff/Respondent.
As already indicated in this judgment these grounds will be appropriately dealt with in the three broad areas which we have earlier set out in this judgment.
(37) DETERMINATION OF GROUNDS OF APPEAL
It is the case of the Defendants that the findings and conclusions made by the Trial Judge and the final orders emanating therefrom is not consistent with the evidence adduced at the trial. They further alleged that the findings are at variance with the applicable principles of law and authorities relied on in arriving at those conclusions. On the omnibus ground that the judgment is against the weight of evidence, this court will have proceed on the basis of its power of rehearing pursuant to Rule 8(1) of C.I.19. In doing so, we shall re-examine the entire evidence with a view to determining the merit or otherwise of the ground set out by the Defendants. This will involve a re-examination of the findings of the Trial Court vis a vis the evidence adduced at the trial in order make a determination whether or not there has been an improper evaluation or non-evaluation as alleged.
(38) In the exercise of its appellate jurisdiction, this court will be guided by the principles laid down in cases such as KOGLEX LTD. (NO.2) VS. FIELD  SC GLR 175 and other line of judicial authorities such as ACHORO VS. AKANFELA [1996-1997] SC GLR 209, (DECD) DODOO VS. OKINE [2003-2004] SC GLR 582 and KOGLEX LTD. (NO.2) VS. FIELD  SC GLR 175 where the test by which this Court would be justified in interfering with the findings made by the Trial Court were held to include situations where:
a) The said findings of the Trial Court are clearly unsupported by the evidence on record, or where the reasons in support of the findings are unsatisfactory.
b) There has been improper application of a principle of evidence or where the Trial Court has failed to draw an irresistible conclusion from the evidence.
c) The findings are based on a wrong proposition of law or that
d) The findings are inconsistent with crucial documentary evidence on record.
(39) SUBMISSIONS OF THE DEFENDANTS/APPELLANTS
(i) We shall first consider the ground of appeal which seeks to challenge the Plaintiff’s capacity and the decision of the Trial Court to amend Plaintiff’s suo motu and in consequence amended parts of the Plaintiff’s pleadings. The Defendants submitted that the Trial Judge rightly found and held at page 108 of Vol.3 of the record thus; “The import of Exhibit ‘2’ is that as at 14th March 2014, Francis Teye Numo Gberbie considered himself as the head of the Plaintiff’s family. The Plaintiff having given evidence that Francis Teye Numo Gberbie was once appointed as the head of Plaintiff family and there being no evidence that he has been removed as head of family, I hold that the Plaintiff is not the head of Ayiku-Gberbie family”. According to the Defendants from the Trial Court’s own finding a review of Exhibit ‘2’ reveals that as of 14th March 2014, Francis Teye Numo Gberbie was the head of Plaintiff’s family. Further that there being no evidence that he had been removed as head of family, the Trial Court ought to have dismissed the action for want of capacity by the suing Plaintiff.
(40) The Defendants’ counsel referred to Oder 4 Rule 9 of the High Court (Civil Procedure Rules (C.I.47) and argued that the law provided that it is the head of family who is clothed with capacity to institute actions on behalf of the family or represent the family. And that if for any given situation, the head is unable to act or refuses to act to protect the interest of the family, any member of the family may subject to the sub rule (3) sue on behalf of the family. Where as in the instant case, a member of the family who is not the head issues the writ, under sub rule (3) a copy of the writ shall be served, on the Head of Family. The Head of Family so served may within three days of service of the writ apply to object to the writ or be substituted as Plaintiff or joined as Plaintiff. The Defendants’ counsel submitted that compliance with Rule 3 and 4 of Order 2 was mandatory with the introduction of ‘shall’ as the language defining the duty. Therefore, the failure to serve the writ on the Head of Family nullified the writ and all subsequent proceedings therefrom.
(41) The Defendants’ counsel argued further that having found and held that the Plaintiff was not clothed with capacity, the subsequent amendment and determination of the matter on its merits based on the principle of in re ASHALLEY BOTWE LANDS; ADJETEY AGBOSU VS KOTEY [2003-2004], decided under the old High Court Rules LN 140 A was wrongful and could not be applied to the instant case. The Defendants’ counsel submitted that the Trial Court in the discharge of its duty ought to have dismissed the Plaintiff’s case save where it came within the exceptions propounded in the case of KWAN VS. NYIENI  GLR 6.
(42) The Defendants argued further that the amendment of the capacity of the Plaintiff which the Trial Court had found to be defective when challenged by the Defendants’ was wrongful as the proof of capacity was a prerequisite for invoking the jurisdiction of the Court. The Defendants have referred to the case of SARKODEE (1) VS. BOATENG (II) [1982-83] 1GLR 715 SC where the Supreme Court held inter alia as follows: “It was elementary that a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence. And it was no answer for a party whose capacity to initiate proceedings had been challenged by his adversary to plead that he should be given a hearing on the merits because he had a cast iron case against his opponent”.
(43) To further anchor their submissions on this issue, the Defendants have referred to the unreported judgment of the Supreme Court on the case of STANDARD BANK OFFSHORE TRUST COMPANY LTD. VS. NATIONAL INVESTMENT BANK LTD & ORS.; Civil Appeal No 14/63/2016 dated 21st June 2017. There, the Supreme Court held at pages 12 and 13 thus: “In conclusion we restate the position of the law that failure to comply with prerequisite to the issuance of a writ under Order 2 Rule 4 renders the writ void and it can neither be saved by an amendment nor can it be waived by the court. Where the writ of summons issued by a foreign based firm claims to be suing on behalf of “certain investors” it is not an acceptable disclosure of the identity of the “certain investors”; thus it becomes an essential ingredient or prerequisite for the Plaintiff to disclose who the persons are on whose behalf it is suing. And it is repeated for emphasis that being void, the writ could neither be perfected by a waiver under Order 81 nor by an amendment ………….’
(44) The Plaintiff in response to the Defendants” submission distinguished the applicability of Order 2 Rule 4 and Order 4 Rule 9 and challenge Defendants’ reliance on STANDARD BANK OFFSHORE TRUST COMPANY principle. We agree with the position of the Plaintiff but only theoretically because the principle underlying the case under reference was the need to identify clearly the number and all parties to the suit at the commencement stage. In contradistinction, however, the provision of Order 4 Rule 9 of C.I.47 is the mandatory requirement for the service of the issued writ on the family head within three days of service where a member of the family issues the writ instead of the Head of Family. This requirement is therefore clearly different from the requirement to be met under Order 2 Rule 4.
(45) We have examined the Trial Court’s approach in determining the issue of capacity of the
Plaintiff to commence the action against them. And indeed the Trial Court’s finding that the suing Plaintiff is not the head of family and consequently lacked the authority to sue. There is however established legal authority for the Trial Court’s election to suo motu amend the capacity in which the Plaintiff brought the action which the Defendants both at the Trial Court and in this court find objectionable. The position of the law as stated in the case of NYAMEKYE VS. ANSAH [1989-90]2 GLR 152 at 163 is that: “as a general rule, the head of family as the representative of the family was the proper person to institute suits for recovery of family land. And where the authority of a person to sue was challenged, the onus was upon him to prove that he had been duly authorized. He could not succeed on the merits without satisfying the court on that important preliminary issue. The customary law position was that when a successor was appointed, he was ipso facto the head of the immediate family”. See also the case of FOSUA & ADU POKU VS. DUFIE (DECD) & ADU POKU MENSAH  SC GLR 310 at 344.
(46) In the context of this particular suit, the Trial Court after holding that the suing Plaintiff lacked the capacity proceeded to amend the Plaintiffs capacity. There is judicial support for the Trial Judge’s approach. In the case of OBENG VS. ASSEMBLIES OF GOD CHURCH, GHANA  SC GLR 300 at 323-324 the Supreme Court endorsed as proper the step taken by the Court of Appeal by suo motu emending the capacity of the Plaintiffs therein in order to clothe them with capacity to maintain the action. At page 324 of the report, the Supreme Court held as follows: “In this court we take the view that since the court exist to do substantial justice, it could be manifestly unjust to non-suit the Plaintiffs because they added “Executive Presbytery” to their names on the writ of summons. Courts must strive to prevent and avoid ambush litigation, by resorting and looking more at the substance that of form “…………………….In the circumstances of this case, we are of the considered opinion that the Court of Appeal was right in amending the capacity of the Plaintiffs in order to do substantial justice, avoid mere and fanciful technicalities and bring out the real issues in controversy for resolution”.
(47) In the instant case the conduct of the Trial Court was therefore not novel and this court in appropriate cases has the power to do so. Consequently all the grounds of appeal in respect of the Trial Court’s order suo motu in amending the Plaintiff’s capacity and the consequential amendments therefrom are not maintainable and are hereby dismissed.
(48) THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE AND CHALLENGE TO
SPECIFIC FINDINGS BY THE TRIAL COURT
With respect to the omnibus ground and the Defendants’ allegation that the Trial Judge’s conclusions are inconsistent with its own findings, the Defendants submitted that the Trial Court set out the requisite burden needed to be discharged by the Plaintiff and Defendants respectively. And that the Trial Court found that the Plaintiff based his family’s claim on first settlement and long possession through Lartey Atsuru. Further that it was after the Katamanso war that that Lartey Gberbie effectively settled at Mataheko near Afienya lands to heal warriors. The Trial Court observed that the Defendant failed to cross examine the Plaintiff on the root of title as given per their traditional evidence. Based on this, the Trial Court accepted the case of the Plaintiff and ruled that the land occupied by the Defendants fell within the land of the Plaintiff. The Defendants submitted further that after a thorough evaluation of the evidence proffered, the Trial Court made various findings of fact against the Plaintiff and Defendants respectively.
(49) MODE OR ACQUSITION - TRADITIONAL EVIDENCE
FIRST SETTLEMENT OR OCCUPATION
In the Amended Statement of Claim filed on 22nd July 2014, the Plaintiff pleaded per paragraph 4 as follows:-
“a) Plaintiff will say that Afienya was founded by one Lartey Atsru who was a hunter and used to hunt during the dry season at the water bodies at Afienya. Hence the Gberbie Family already knew the terrain of the said Afienya land before the said Katamanso war.
b) Plaintiff avers that on or about 1826 immediately after the Katamanso war the Ayiku Gberbie Family of Prampram through Lartey Gberbie alias Agbokpanya who was a fetish priest, herbalist, hunter and farmer effectively settled on the Mataheko/Afienya land to heal wounded warriors and for the fact that the place abounded in herbs and water and have remained there ever since. He later named the place Mataheko. The aforementioned family are the allodial title holders of the Afienya lands.
(50) The 2nd Defendants submitted that the Plaintiff’s Attorney in his evidence in chief merely repeated the averments at page 120 of Volume 2 of the record as follows:- “My family became owner by one of our ancestors called Lartey Atsru who first settled on Afienya land and was farming and rearing animals there. He was a hunter. He knows all the boundaries of Afienya and the surrounding villages”. At page 121 the Plaintiff’s Attorney further testified that:-
“After the katamanso war Lartey Gberbie brought the wounded soldiers to Mataheko to cure them of the wounds and allowed them to go to their various homes he said he would remain at Mataheko to see whether the soldiers who fought in the war will come back. This is the meaning of Mataheko”.
(51) The 2nd Defendant on the other hand contended that more forty (40) years prior to the commencement of the Plaintiff’s action they approached the Chief of Prampram and Afienya and were granted permission being members of the Olowe family to be shown where the family land was. They contended that they were given the right to farm as much as they could. The Defendants testified that they farmed at various portions of the land which is about 183 acres in total area which has been in their possession for more than forty (40) years.
(52) REFUSAL TO CROSS EXAMINE AS PROOF OF OWNERSHIP AND OCCUPATION
The Defendants submitted that that they fought the case on the basis that the land in dispute belonged to the Olowe family from which they originate and that Plaintiff’s family did not own the land covering an area of 183 acres. The Defendants deprecated the acceptance by the Trial Court of the of Plaintiff’s first settlement claim on the land through their great grand-father Lartey Gberbie only because as the Trial Court held, the Defendants had failed to cross examine the Plaintiff’s Attorney on that evidence. They submitted further that the Plaintiff’s evidence could not be substantiated. At page 12 of his judgment and page 71 of Volume 3 of the record, the Trial Court had as follows:-“PW1 gave evidence on this on 3rd and 10th July 2014. He gave further evidence that Lartey Gberbie is the great grandfather of lartey Atsuu and these two people belonged to the Ayiku Gberbie of Prampram. PW1 continued the evidence of the family’s occupation of the land on 10th July 2014. Strangely enough PW1 was never cross examined on the root of title of the Plaintiff i.e. The founding of the land and the settlement .It was rather the vesting assent counsel concentrated on”.
(53) The Defendants have challenged the observation by the Trial Court in that it is not supported by the evidence and maintained their denial of paragraph 4 of the Amended Statement of Claim with respect to the reference to settlement by Lartey Gberbie where they averred that they were not in a position to deny or admit same. The Defendants further submitted that the Plaintiff had failed to lead evidence consistent with the principle enunciated in the case of ADJEIBI KOJO VS. BONSIE  3 WALR 257 to the effect that for traditional evidence to have probative value, it ought to be tested by a consideration of recent events and possession in order to determine which of the rival accounts appeared more probable especially within living memory.
(54) The Defendants submitted further that that the avowed position of the law that failure to cross examine on particular testimony of an adversary amounted to an admission of the account of an opponent was not without exception and not inviolable. The Defendants referred to the case of GIWAH VS. LADI [2013-2014] SCGLR 1139 where the Supreme Court held that it was not proper for the Trial Court to hold that the Defendant therein had admitted the claim of a customary gift for the only reason that he had not cross examined the first Plaintiff. The Supreme Court held in Holding ‘2’ that: “The High Court Judge concluded that the Defendant had admitted the claim of a customary gift for the bare reason that he had not cross-examined the first Plaintiff on his evidence on making of the customary gift. It was not in every situation of failure to cross examine that would amount to an admission, especially where there was evidence on the record that the party had disputed that piece of evidence, or if the party has had notice to the contrary beforehand, or if the story itself was incredibly romancing in character ………”
(55) The Defendants submit that there was no way of testing the truth of the story of the Plaintiff’s traditional evidence on his family ownership except by resorting to the test in ADJEIBI KOJO VS. BONSIE (supra) which was adopted by the Supreme court in the cases of ADJEI VS ACQUAH  I GLR 13 & HILODJIE VS. GEORGE [2005-2006] SCGLR 974 on the principle that traditional evidence had to be tested in order to determine the title to the land to properly defeat Defendants’ possession.
(56) EVIDENCE OF RECENT ACTS AND EVENTS WITHIN LIVING MEMORY
The Defendants submitted that the Plaintiff failed to lead evidence on acts or events in recent memory to support his claim to ownership of the land. At page 83 Vol.3 of the record, the Trial Court summed up the Plaintiff’s evidence in the following words:- “These pieces of contradictory evidence of the Plaintiff on the lease of the land and the payment of rent made me reach the conclusion that the Plaintiff’s family did not lease the land occupied by the defendants to Tee Teye Farms. The 2nd Defendant and her brothers went unto the land on the authority of the Prampram Stool”. Then at page 86, the Trial Court contradicted itself follows:-
“Since I have found that the 2nd Defendant and her brothers got their grant from the Prampram Stool they should have attorned tenancy (tenant) to the Plaintiff’s family when the Plaintiff’s family called on them .Not having done so, the Defendants cannot rely on their recent acts of giving the land out as building plots to found a claim of laches and acquiescence since that act is a modern development which is a less that twelve (12) years”. The Methodist and those taken formal grants because they are aware of the Plaintiff’s family’s claim. The farming right by the Prampram Stool was only a jurisdiction act”.
(57) According to the Defendants, the Plaintiff’s references to recent events can only be referred to in its claim to have presented documentation on the land to the Lands Commission in 2003 as per Exhibit ‘M’. The Defendants submit that Exhibit ‘M’ which is a Vesting Assent has no evidential value in proof of ownership of family interest in land. The Defendants argued that the Plaintiff admitted their long possession of the land covering 183 acres at the time the writ was issued. This is deducible from the claim by Plaintiff for the recovery of possession of the described land in both the writ of summons and statement of claim. The Defendants in support of their case referred to page 120 of Vol.2 of the record and the evidence in chief of the Plaintiff’s Attorney where the following evidence was elicited.
“Q: Tell us why you brought the Defendant to Court?
A: My Lord because they are living and farming on the land without our permission and when we asked for their documents they could not produce it and said the Traditional Council gave the land to them but the Traditional Council has no power to give them the land so we sued them”. At pages 149 to 150 of Vol.2 of the record in an answer to a question, Plaintiff’s attorney testified thus: “I don’t know when they came to live on the Mataheko land but something happened and we reported to the Afienya Police and then she said she had lived on the land for thirty years ………..”
(58) Another piece of evidence supporting Defendants’ long possession of the land is the allegation by Plaintiff that Defendants were selling lands. The Defendants have challenged Plaintiff’s claim to the land and argued that they were in possession of 183 acres of land and had buildings on same, having given land to family members and the Methodist Church. They also claimed that the land was not initially demarcated to them but they were told that they could and did farm from place to place. From pages 234 of Vol.2 of the record, Defendants asserted that they cultivated various types of crops. The 2nd Defendant indicated that she had handed over active farming to her son. The 1st Defendant also gave evidence of possession and at page 274 of Vol.2 of the record described their land as falling under residential and farming zones with cattle ranch, ponds, dam and that they practiced mechanized and irrigation farming .In addition he testified that they had for several years allocated portions of the land to artisans who ply their trade on the land. On the totality of the evidence on record, the Trial Court made the following crucial finding of fact as follows:-
“These pieces of contradictory evidence of the Plaintiff on the lease of the land and the payment of rent made me reach the conclusion that the Plaintiff‘s family did not lease the land being occupied by the Defendant to Tee Teye Farms. The (2nd) Defendant and her brothers went unto the land on the authority of the Prampram Stool”.
(59) According to the Defendants, the holding by the Trial Court in that they did not acquire the land from the Plaintiff’s family defeats the Plaintiff’s case as to how Defendants came to be in possession of the land through a lease it granted to Tee Teye Farms. The Plaintiff had testified through his Attorney that the Ayiku Gberbie family granted a lease covering an area of 152 acres to one Samuel Nartey who was decease (2nd Defendant’s brother) Plaintiff tendered a site plan covering 152 acres of land. The Plaintiff submitted that Defendants had added additional 31 acres of land to the 152 acres they had encroached upon. PW2, the wife of Samuel Nartey testified that she and her husband presented foodstuffs yearly to attorn tenant and that the 2nd Defendant who is the sister of her late husband was invited on the land by her late husband. It is this crucial part of the Plaintiff’s case which the Trial Court by the aforementioned finding by the Trial Court rejected and significantly the Plaintiff has not appealed against this finding.
(60) It is submitted by the Appellants that the Trial Court also made findings based on the wrong application of the principle of law in the case of SAFO & ANOR VS. BADU  2 GLR 63 “Having been permitted by the traditional authority to farm on the land could the 2ndDefendant claim the land as hers even if the land was communal land ? I think the 2nd Defendant cannot claim the land as hers. It has been held in the case of BRIMPONG VS. BAWUAH  2 GLR 20 that under customary law, the person in possession of land or a caretaker or an agent of the owner was supposed to protect the title of the owner and to litigate over the land if need be. But the mere fact that the plaintiff was litigating over the land did not make him the allodial owner of the land as a caretaker, he could take action in respect of the land without necessarily being the owner of it”. In applying the above principle, the Trial Court further stated at page 84 that:-
“In this case PW2 Okyeame Narh Foddie III who is Chief Linguist at Prampram testified that the Prampram Traditional council played a role in the alienating of the land that falls within the jurisdictional area of Prampram but that was some five years ago. They stopped because some people sent the Prampram Traditional Council to court and the court said only the families should alienate Prampram land This explains why the 2nd Defendant and her two brothers went to the Chief of Prampram and as I have held asked for permission to farm on a portion of Prampram land .……..”
The Defendants have challenged the Plaintiff’s rights to the land and having failed to prove a better title the Defendants should lose the farming right that they have had on the land as held in SAFO AND ANOR VS. BADU  2 GLR 63’’.
(61) It has been submitted by the Appellants that the above case is not applicable since it involved a case of tenancy which is a sharp distinction from the relationship between the parties in this case. The Trial Court also held at page 87 of the record as follows:-The claim for damages fails because the Plaintiff’s own witness PW2 has given evidence that her husband whom Plaintiff claims to have granted the land for farming permitted the 2nd Defendant to occupy a portion of the land. Having given the land as claimed by the plaintiff to Tee Teye Farms the Plaintiff cannot sue for trespass since they were not in possession of the land, especially since PW2 said his family granted the land to PW3 husband and the grant is persisting ………….”. This reasoning for refusing the Plaintiff’s claim for damages in that it is Plaintiff’s family which gave the land to Tee Teye Farms is clearly inconsistent with and contradicts the Trial Judge’s own finding against the Plaintiff’s case on page 83 of the record earlier referred to.
(62) With respect to the evidence of the Plaintiff’s Attorney at pages 149-150 of Vol.2 of the record, the Defendants submit that the Plaintiff admitted the that Defendants were in possession of the land and that they had reported Defendants to the police when Defendants were engaged in selling portions of the land forming part of the 183 acres.
(63) EVIDENCE OF FIRST SETTLEMENT BY DEFENDANTS’ ANCESTRY
The Defendants submitted that they led evidence in proof of the ownership of the land in dispute by the Olowe family from which the Defendants originate. The 2nd Defendant claimed that they were an integral part of Tee Teye Farms. At page 265 of record, she testified as follows:- “Tee Teye Farm is a family and a machine or tractor is also Tee Teye Farms. It doesn’t mean that Tee Teye Farms is farming on the land. I will like to plead with the court to go and on to the land to verify and compare the evidence given in court and what is on the ground”.
(64) It is the case of the Defendants that the Trial Court’s finding that the Plaintiff did not lease the 152 acres to Tee Teye Farms presupposes that the Plaintiff had failed to discharge the burden of proof and fails on his claim entirely as the case of the Defendants who are in possession of the land and whose account concerning Tee Teye Farms was preferred by the Trial Court. The Defendants argued further that the Trial Court’s finding further supports their possessory rights based on evidence of recent acts and events within living memory of more than forty (40) years which the Plaintiffs neither prevented nor challenged until recently.
(65) The law is settled that a person in possession of land has a good title against the whole world save the true owner. In the case of MUMUNI VS. NYAMEKYE  58 GMJ 35 CA 66 this court upheld that position of the law in the following words:-“Since the Plaintiff is in possession the maxim” in pari delicto portior melior est conditio possidentis” (better is the condition of the possessed) applies in that a person in de facto possession of land is the assumed character of the owner and exercising all the ordinary rights of ownership has perfectly good title against the whole world except the rightful or real owner……….” In the case of BROWN VS. QUASHIGAH [2003-2004] 2 SCGLR 930 951 Kludze JSC speaking for the Supreme Court posited that:………….”. Possession is a matter of law but it is established by physical acts. Possession is generally regarded as implying physical control, but physical control cannot mature into possession in law unless accompanied by other facts”. In the instant case, the fact of physical possession combined with the matrix of other facts including the finding by the Trial Court that the land on which Tee Teye Farms is located which is about 152 acres in area was not acquired by the Defendants through the Plaintiff’s family cumulatively favour the case of the Defendants.
(66) The Defendants submitted that they have been in possession of the entire 183 acres of land and exercised control over same for several years as far back as around 1974. The Trial Court accepted this account of the Defendants’ case and stated at page 82 Vol.3 of the of record as follows:- “It is however not in dispute that the 2nd Defendant has occupied the land for some time .The question is did the 2nd Defendant take the land for farming or for settlement from the plaintiffs”. At page 84 record, the Trial Court embarked on a self-interrogatory as follows:-
“Having occupied the land for forty (40) years as claimed by the 2nd Defendant can she claim to own the land”. It is submitted that this statement amounts to an acknowledgement by the Trial Court of the possession of the land by 2nd Defendant for close to forty (40) years. And having held that the land was not acquired from the Plaintiff’s family, the case of the Plaintiff irredeemably fails.
(67) In her testimony, the 2nd Defendant testified on how her brothers approached the Prampram and Afienya Chiefs who directed that they be shown the Olowe family land of which they belong. The Trial Judge then proceeded to make the following findings which are at variance with the principles for the evaluation of traditional evidence thus:-
(i) 2nd Defendant failed to lead evidence on how the Olowe clan acquired that land and the 2nd Defendant also failed to prove that she is a member of the Olowe clan”.
(ii) I do not believe the evidence of the 2nd Defendant on the family she belongs to and the family that owns the land”.
(iii)Considering the fact that DW1 says he is about 90 years old and the head of the Samantuaawe family, he should have been able to tell the court how the ancestors came to own the land”.
(iv) I believe that the 2nd Defendant is from Kle Abodo Afutuwe as she claims her father is from the Kle Abodo Afutuwe was given as the sixth answer to the question on 27th November 2014”.
(68) The Defendants have inter alia challenged the judgment on the grounds that the 2nd Defendant testified that she hailed from both Olowe and Afutuwe clans through her patrilineal and matrilineal lines. In any case, granted the Trial Court considered this as inconsistency, discrepancies o slips in evidence do not necessarily amount to deception for the Court to form such opinion of the witness. In the case of KUSI & KUSI VS. BONSU  SC GLR 60 at 80 the Supreme Court per Wood C.J stated thus: “Speaking on behalf of the Court, I concluded in the case of EFFISAH VS. ANSAH [2005-2006 ] SCGLR 943 that it is only major discrepancies that goes to the root of testimonies that affect the weight to be attached to evidence given at a trial …………………’’in the real world evidence led at a trial which turned principally on issues of fact and involving a fair number of witnesses would not be entirely free from inconsistencies, conflicts or contradictions and the like. In evaluating evidence led at a trial the presence of such matters per se should not justify a wholesale rejection of the evidence to which they might relate .Thus in any given case, minor immaterial, insignificant or no critical inconsistencies must not be dwelt upon to deny justice to a party who has substantially discharged his or her burden of persuasion”. In the instant case the evidence of the 2nd Defendant’s link with the Olowe family was neither disputed rebutted nor discredited.
(69) As we have earlier pointed out in this judgment, the Trial Court was emphatic in making the most crucial finding in its judgment as follows: “I donot believe the Plaintiff’s evidence that it is their family that made a grant to Samuel Tetteh Nartey (deceased ) in 1974 for farming”. Samuel Tetteh Nartey is from the evidence, the 2nd Defendant’s (deceased) brother. This finding was based on the examination of the totality of the evidence after which the Trial Court found the evidence of Plaintiff concerning the grant to Tee Teye Farms incredible and rejected it. Having so found, the Trial Court ought to have determined the case in favour of the Defendants since Plaintiff had lost on that crucial issue . The provision of Section 11 (1) of the Evidence Act 1975 (NRCD 323) supports this position. It provides that: “For the purposes of this Act the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue”.
(70) In our civil jurisprudence, the burden of proof until it is shifted is on the person who alleges. The Plaintiff therefore carried the burden to lead evidence in proof of the reliefs it sought from the court. The Defendants carried a similar burden with respect to their counterclaim. Therefore having found that it was not the Plaintiff’s family which granted 152 acres of land to Tee Teye Farm which forms a substantial part of land in dispute, the Plaintiffs ought to have lost on their claim.
(71) The statutory position accepted by a number of judicial decisions is that the burden of proof is always on the one who asserts. In ANANE VS. DONKOR; KWARTENG VS. DONKOR (consolidated)  GLR 188 SC cited with approval in the case of JASS CO LTD & ANOR. VS. APPAU  SC GLR 265 at 272 the judicial position has been reemphasized that:- “The burden of proof is always on the Plaintiff to satisfy the court on a balance of probabilities in an action for declaration of title to land”. And where as in the instant case, there is a counterclaim the same standard and burden of proof applies in evaluating and assessing the case of the Defendant because being an independent action, the Defendant in the counterclaim becomes the Plaintiff. Where however a Defendant is in possession and the Plaintiff fails to discharge the burden placed on him, the Plaintiff loses, regardless of the paucity of the evidence of the Defendant who is in possession.
(72) Therefore, the order of the Trial Court that ‘the Plaintiff family being the Ayiku Gberbie family is declared entitled to the land described in relief ‘a’ and covering an approximate area of 1,112.09 acres and that the land covered by Schedule III falls within the Plaintiff’s land” is inconsistent with the Trial Court’s own finding on record. The said order is not only unjust but oppressive as it is not supported by the Trial Court’s finding and evidence on record. It is obvious that the Trial Court' in the absence of any difficulty in arriving at its findings misapplied same and by misapprehending the natural effect of its own findings. In our view, the Trial Court erred in departing from its own expressed finding on record by granting the claim of the Plaintiff in respect of the 152 acres occupied by Tee Teye Farms and the Defendants and the additional 31 acres which is contiguous to it.
(73) Another crucial evidence the Trial Court clearly misapprehended arises from its finding thus:- “With regard to issues ‘c’ and ‘iv’ which deals with the place where the land is situated, I am of the view that the name is not material. In this suit, the fact that Mataheko is not in the Gold Coast Chief List does not mean it had not existed or did not exist”. On the contrary, given the nature of the dispute and evidence adduced at the trial, the Trial Court ought have made a finding as to whether the land in dispute was situate at Afiadenyigba as asserted by the Defendants or Mateheko where Plaintiff claims their 1,112 acres of land is situate. The Court however had found that the Defendants’ land falls within the larger area claimed by the Plaintiffs. However documents issued by Defendants referred to Afiadenyibga. In seeking to resolve this issue, the Defendants referred to the Jackson Report where the name Afiadenyigba is captured while and that of Mataheko is absent. Exhibit ‘P’ the Jackson Report falls within the purview Section 146 of the Evidence Act (NRCD) 323 which provides that:- “authentication or identification of a writing may be by evidence that the writing
a. is in such condition as to create no suspicion concerning its authenticity
b. is at least 20 years old at the time it is offered”.
(74) Inspite of the effect of Exhibit ‘P’, which was not discredited, the Trial Court arrived at its conclusion without any evidential basis that: “Since the land claimed by the 2nd Defendant is within the land claimed by the Plaintiff and the Defendants have not been able to establish which family originally owned the land and by what means that family came to own the land, I hold that the land occupied by the Defendants is part of the land claimed by the Plaintiff”. This falls within the purview of the grounds which compel and authorize Appellate interference.
(75) In our view, the said conclusions, is not only perverse but inconsistent with the Trial Court’s own primary findings and this court has the power to set it aside. In their submissions, the Defendants have allege that though the Trial Court found the Plaintiff’s case of the grant of the 152 acres to Tee Teye Farms as unproven, it nevertheless entered judgment for the Plaintiff and that same amounted to departure from the Trial Court’s own findings.
(76) ISSUE OF LIMITATION STATUTE
The Limitations Act 1972 (NRCD 54) provides as follows:-
“(1)No action shall be brought to recover land after the expiration of twelve (12) years from the date on which the right of action accrued to the person bringing it, or if it first accrued to some person through whom he claims to that person.
(2) A right of action to recover land does not accrue unless the land is in the possession of a person in whose favour the period of limitation can run”.
These provisions presuppose that a party who seeks to rely on statute of limitation as a defence in an action to recover land must prove that he had been in adverse possession of the land, subject matter of the action and that such possession has been continuous for more than twelve (12) years to the knowledge of the true owner. See the cases of MMRA VS. DONKOR [1992-93] part 4 GBR 1632 and the unreported judgment of the Supreme Court dated 29/6/2016 in Civil Appeal No.J4/4/2016 in the case of MRS. VIVIAN AKU-BROWN DANQUAH VS. SAMUEL LANQUAYE ODARTEY.
(77) Under the provisions Order 11 Rule 8 of the High Court (Civil Procedure) Rules the defence of limitation provision is one which ought to be specifically pleaded. We have examined the amended statement of defence and counterclaim filed by the Defendants on 26/11/2012. Nowhere in the entire 33 paragraphed pleadings did the Defendants specifically plead the defence of the limitation provisions as they are enjoined to do by the provisions of Order 11 Rule 8 of C.I.47. They are therefore estopped from raising it for the first time in this court.
(78) Having said that however, with respect to the equitable defence of laches acquiescence, it was the Trial Court which in its judgment made references on to the duration and exercise of possessory rights by the Defendants and concluded that the Defendants defence cannot be anchored on long interrupted possesion because physical developments by the Defendants and their grantors is less than twelve (12) years when the undisputed evidence on record is that the Defendants had been in possession for nearly forty (40) years. At page 86 of Vol.2 of the record the Trial Court held as follows: “Since I have found that the 2nd Defendant and her brothers got their grant from the Prampram Stool, they should have attorned tenancy to the Plaintiff’s family when the Plaintiff’s family called on them. Not having done so, the Defendants cannot rely on their recent acts of giving land out as building plots to found a claim of laches and acquiescence, since that act is a modern development which is less than twelve (12) years. At any rate, none of the leases have been registered. The Methodist and those who conducted on search have not taken formal grants because they are aware of the Plaintiff’s family claim. The farming right by the Prampram Stool was only a jurisdictional act”.
(79) This finding was made inspite of the abundance of evidence on record that the Defendants have been in uninterrupted possession for a period of about forty (40) years coupled with the Trial Court’s own finding that it was not the Plaintiff’s family which granted the 152 acres of land to Tee Teye Farms and for that matter the Defendants herein. However, the Trial Court reduced the period of possession to twelve (12) years even where the evidence on record including the evidence of Plaintiff’s own PW2 manifestly shows that the 2nd Defendant had been disposing portions of the land to third parties during the life time of the husband of PW2 who is the brother of the 2nd Defendant. While we dismiss the grounds of appeal which give rise to the determination of the issue of limitation for reasons aforesaid, we uphold the leg of the Appellants’ submissions on the Defendants reliance on the equitable defences of laches acquiescence even if the land in dispute belonged to the Plaintiff’s family which Defendants have denied and have demonstrated so by the evidence.
(80) There are questions which naturally follow from the Trial Court’s erroneous finding earlier stated. Firstly, since from the evidence on record, 152 out of the 183 acres has been in the possession of the Defendants for a period of about forty (40) years, and the Trial Court itself has held that at least the 152 acres granted through Tee Teye Farms was not granted by the Plaintiff’s family how then will the same Trial Court expect the Defendants to attorn tenant to the Plaintiff’s family? There is no doubt that the finding and conclusion of the Trial Court was based on a selective application of the evidence on record to salvage the
Plaintiff’s case. Secondly, the 2nd Defendant in her evidence testified that they became seized of the land by virtue of the 2nd Defendant’s ancestral link with the Olowe family who are the ancestral owners of the land upon consultations with the Prampram and Afienya Chiefs who acted as pointers and consistently denied the Plaintiff’s Gberbie family as the owners.
(81) Indeed the selective application of the evidence to the defence put up by the Defendants became more manifest in the final orders of the Trial Court where it held as follows: “The Defendants’ counterclaims are also dismissed except that the Defendants are to continue to keep the land on which they have built their house or houses and live on but exclude where they farm” The question which also arises from this order is; what interest in land did the Trial Court create in favour of the Defendants by this order? Thirdly, have the Defendants by this orders become lessees, or customary tenants of the Plaintiff’s family? Fourthly, if the Defendants are legally and equitably entitled to the developed portion as of right on the strength of the evidence adduced and application of the relevant law, why should the Trial Court not apply the same law and equities to the entire 183.3 acres which was contested by the Defendants together?
(82) As we have already observed, from the Plaintiff’s own evidence per PW2 the widow of Samuel Nartey who operated Tee Teye Farms covering the 152 acres, the Defendants began alienating the land even during the life time of her husband. On 20th November 2014 when she testified, PW2 confirmed that, she saw buildings springing up fifteen (15) years earlier. What this simply means is that PW2 saw buildings spring up in or about 1999 which is more than twelve (12) years before the date the writ in the Trial Court was first issued in 2012.
(83) In answer to a question under cross-examination PW2 testified as follows:-
Q. When did you notice buildings springing up on the and land ?
A. About 15 years. The whole land has now been turned into an estate.
This statement in our view amounts to an admission by a witness of the Plaintiff in support of the case of the Defendants as against that of the Plaintiff. The testimony is also inconsistent with the Trial Court’s finding that the Defendants’ acts of alienation of portions of the land is less than or just about twelve (12) years. In the case of ATADI VS. LADZEKPO  GLR 218 CA this court held that: “………….also whenever the testimony of a party on a crucial issue was in conflict with the testimony of his own witness on that issue …..it was not open to a trial court to gloss over such conflict and make a specific finding on that issue in favour of the party whose case contained the conflicting evidence on the issue”.’ Further in RE ASERE STOOL; NIKOI OLAI AMONTIA IV (Substituted by TAFO AMON II V AKOTIA OWOROSIKA (Substituted by LARYEA AYIKU III [2005-2006] SCGLR 637 the Supreme Court held at page 615 per Dr. Twum JSC that: “Where the adversary of a party has admitted a fact advantageous to the cause of a party what better evidence does the party need to establish that fact than relying on his own admission. This is really an example of estoppel by conduct. It is a rule whereby a party is excluded from denying the existence of some state of facts which he had formerly asserted”. See also the case of MANU VS. NSIAH [2005-2006] SC GLR 25 where the Apex Court held in Holding (1) that “It is a well-established rule that where the evidence of a party on a point in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good and apparent reason, the court finds the corroborated version incredible, impossible or unacceptable”.
(84) There is nothing on the face of the judgment of the Trial Court to justify the rejection of the version of the Defendants as corroborated by the Plaintiff’s own witness with respect to the period of possession in preference for the Plaintiff’s uncorroborated version. In the result the Trial Court erred by making a finding which is clearly inconsistent with the evidence on record.
(85) In conclusion, after our re-evaluation of the entire evidence and application of the relevant law, we find that there exists overwhelming pressure from parts of the evidence not properly evaluated by the Trial Court such that they render the findings and conclusions against the Defendants glaringly perverse and contrary to compelling evidence on record. This in our view justifies and authorizes appellate interference with the conclusion reached and the orders giving effect to them in the judgment.
(86) It is relevant in support of our position to quote in extenso the statement by Sophia Akuffo
JSC (as she then was) in the celebrated case of TUAKWA VS. BOSOM [2001-2002] SC GLR 61 where she said: “with all due respect to the Learned Judges of the Court of Appeal, we find their conclusion to be rather odd. The adjudication process is nothing if it is not a process guided by law. Admittedly, a judge is not required to cite any particular law in every case, particularly where it turns essentially on the facts. However, the evaluation of evidence is a legal process, and the law of evidence is expected to be and must be seen to have been applied fully without any exception, save such exception as permitted by law. Thus whether or not the Trial Judge makes specific reference to the particular legal provisions he applies in the evaluation of evidence, the law of evidence must run as the undercurrent guiding the flow of his assessment and if the outcome of the exercise is such that it is alleged that the Trial Judge’s evaluation offends against the applicable rules of evidence, it is incumbent on an Appellate court to review the record in the light of the rules of evidence”.
Accordingly, we allow the appeal and set aside the judgment of the Trial Court.
(87) From the record, the Defendants had sought reliefs per their counter claim at the Trial Court. We have examined the 2nd Defendants’ counterclaim which goes to the root of the substantive issues in the action. With respect to the 1st Defendant, we are unable to grant the reliefs for compensation in the absence of specific evidence as to quantum of loss, they being in the nature of special damages.
(88) We shall however grant the 2nd Defendants’ counterclaim as varied as follows:
a) A declaration that the 2nd Defendant is beneficial owner in possession of all that pierce or parcel of land situated at Afiadenyigba in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 183.08 acres .more or less and bounded on the North-East by Land measuring 1,554.6 feet more or less on the South East by Land measuring 3,405.8 feet more less and on the South West by Land measuring 3,472.9 feet more or less which piece or parcel of land is more particularly and delineated on the Plan and shown edged PINK.
b) That the registration of a vesting assent does not evince interest in a family property .The registration of same is of no effect and we will order for its cancellation. Accordingly we grant the relief of declaration that the vesting assent dated 3rd March 2000 with registration number AR/8410A/2003 AND LVB 2937A/04 and made by Numo James Lartey Gberbie the customary successor on behalf of Numo Lartey Gberbie did not vest the 2nd Defendant ‘s lands in the Gberbie family ;
c) We further hereby order that the Lands Commission shall expunge from their records the Vesting Assent dated 3rd March 2000 with Number AR/8410A /2003 and LVB 2927A/04 and made by Numo James Lartey Gberbie the customary successor on behalf of Numo Lartey Gberbie.
d) We refuse the claim for an order to be directed at the Plaintiff to produce a true and proper account of all monies received from the sale and other disposition of parcels of the 2nd Defendant ‘s lands the same being speculative. In our view, the 2nd Defendant is at liberty to pursue any persons on her land without her consent subject to applying due process.
e) We refuse the relief for an order for the recovery of possession of any portion of the land forming part of the 2nd Defendant’s land which is in the control, or possession of the Plaintiff’s assigns because they not being parties to this suit the order for recovery of possession against them will be prejudicial. The principle IN RE: ASHALLEY BOTWE LANDS ADJETEY AGBOSU VS. KOTEY [2003-2004] SC GLR 420 applied.
f) We hereby grant perpetual injunction restraining the Plaintiffs, their agents and servants from interfering in any way with the 2nd Defendant’s possession, use and quiet enjoyment of the land subject matter of this appeal.
The learned Judge also made the following findings that defendant challenges as not emanating from the evidence and pleadings .
@ Page ……….of record
‘’I therefore hold that the 2nd defendant cannot claim the land as hers having occupied same for farming since the land is not stool land .The authorities relied on by defense counsel refers to a subject who occupies vacant stool land but not family land ‘’
@Page ……….of record
‘’I do not believe the evidence of the 2nd defendant on the Family she belongs to and the family that owns the land ‘’
@ Page ……..of the record
‘’ I hold that the defendants have failed to prove the family that owns the land .I however accept the Plaintiffs case that the land occupied by the defendants fall within the larger land claimed by the Plaintiff ‘’
@Page ……….of the record
‘’Since the land claimed by the 2nd defendant is within the land claimed by the Plaintiff and the defendants have not been able to establish which family originally owned the land and by what means that family came to the land .I hold that the land occupied by the defendant is part of the land claimed by the plaintiff ‘’.
@ page 81 of the record
Since the defendants have challenged the rights of the plaintiffs family and also used the land for purposes other than the purposes the traditional authority permitted the 2nd defendant and her brothers to use the land for the plaintiffs family claim for recovery of possession of the land is granted except the area that the defendants have their residential accommodation .’’
In the case of AGO SAI & OTHERS V KPOBI TETTEH TSURU III  SCGLR 782 @771 & 785
(2) This appeal is from the judgment of the High Court, Accra dat
a. ‘I hold that the Plaintiff is not the head of Ayiku Gberbie family ‘
b. ‘I therefore hold that the 2nd defendant cannot claim the land as hers having occupied same for farming since the land is not stool land .The authorities relied on by defense counsel refers to a subject who occupies vacant stool land but not family land
c. ‘Since I have found that the 2nd defendant and her brothers got their grant from the Prampram Stool they should have atoned tenancy to the Plaintiffs when the Plaintiffs family called on them
.Not having done so the defendants cannot rely on their recent acts of giving the land out as building plots to found a claim of laches and acquiesces since that act is a modern development which is less that 12 years .
d. ‘I hold that the land occupied by the defendants is part of the land claimed by the Plaintiff ‘
e. ‘ I hold that the defendants have failed to prove the family that owns the land .I however accept the plaintiffs case that the land occupied by the defendants fall within the larger land claimed by the Plaintiff ‘
f. I do not believe the evidence of the 2ND Defendant on the family she belongs to and the family that owns the land ‘g. The only inference from the Defendants pleadings in paragraph 7 is that the land at Mataheko is not family land but stool land that is why they asked permission from the Prampram stool to farm on a portion of the land .The Defendants did not however lead any evidence to show that the land is stool land but rather family land.
h. ‘’Since there is documentary evidence that the plaintiff is a principal member of Ayiku Gberbie family as per exhibit B which is a declaration by the principal members of the family on 5th May 2010 that Francis Numo Gbebie is the head of family in place of James Lartey Gberbie and exhibit C dated 29 June 2010,I amend the title of the suit to read as follows ;Numo Alfred Quaye suing for and on behalf of Ayiku Gberbie family as a principal member of the said family .
i. ‘’In this case ,the attorney ( of Alfred Quaye ) who is referred to as PW1 gave evidence as family member and secretary of the Ayiku-Gberbie family and PW2 is also a member of the same family and the Linguist at the Prampram Traditional Council .These persons are qualified to give evidence for the Ayiku Gberbie family ‘’
j. ‘’Since all the parties agree from their pleadings and evidence that the land in dispute is family land but not stool land I hold that the land in dispute is family land.
k. ‘’These pieces of contradictory evidence of the plaintiff on the lease of the land and the payment of rent makes me reach the conclusion that the plaintiffs family did not lease the land occupied by the defendants to Tee Taye farms .The defendant and her brothers went unto the ;land on the authority of the Prampram stool ‘