SOWAH, J.A.:

The Circuit Court, Akropong-Akwapim on 18 September 2013 gave judgment in favour of plaintiff/respondent (who will be referred to as the plaintiff in this appeal) against the defendant/appellant (hereafter called the defendant) in the following terms:

1. Declaration of title to all that piece or parcel of land described in paragraph 9 of the statement of claim

2. Recovery of possession of the land

3. Damages of ¢5,000.00 against the defendant for the plaintiff.

4. Perpetual injunction restraining the defendant, by herself, assigns, agents, privies and servants from interfering with the land under dispute.

The plaintiff was also awarded costs of ¢2,000.00

The brief facts of the case were that the plaintiff sued in respect of half of a plot of land, which she said, formed part of a larger piece of land that was first settled by her great grandmother Nana Oye some 200 years ago. The land had passed from generation to generation in her family, namely Amene, Ayaw and Amma Agyaako. During Amma Agyaako’s time, the elders of the family decided to share the larger land among her seven children that included her father Martin Diabete Kumi. Kumi took possession of his portion, which was 1.94 acres. A portion of this was given to the Akwapim District Assembly, for a market, lorry park and public place of convenience. The Assembly pays rent to her.

The defendant trespassed onto the portion in dispute, which measures about one-half of a plot of land, and ignoring the protests of the plaintiff continued to build on the land.

The defendant on the other hand contended that her great grandmother Nana Amene first cultivated the land in dispute, and subsequently it devolved to her grandmother Kwabea and her mother Grace Boafoa who made a customary gift of the land to her in 2008. Subsequently a deed of gift was registered at the Lands Commission, Koforidua. She said her mother had planted cocoa on the land, and that her family had alienated portions of the land to other persons without let or hindrance.

Dissatisfied with the judgment of the trial court, the defendant filed a Notice of Appeal on 20th

September 2013 with the following grounds of appeal:

a. The judgment was against the weight of evidence adduced.

b. The trial Judge erred in law by relying on the plaintiff’s mere oral description of her supposed entire land without supporting same with documents.

c. The trial Judge erred by failing or refusing to consider and/or give weight to pieces of evidence of the defendant/appellant’s witnesses which were very vital to the matter.

d. The trial Judge failed to consider and apply the principles of the burden and standard of proof in this            case which resulted in a travesty of justice.

Two additional grounds of appeal filed pursuant to leave granted by this court are as follows:

a. The trial judge erred when she declared title to land which was not demarcated in the writ of summons and statement of claim, to the plaintiff in the matter.

b. The trial judge erred both in law and in fact when she gave judgment to the plaintiff over a large area of land in the face of evidence of grants and ownership acts by the defendant over that same undefined area of land.

Having perused the grounds of appeal and the submissions made under each of those five grounds, I shall first address the additional ground (a) since that is a fundamental point. I shall then address the grounds of appeal numbered (a), (b), (c), (d) and the additional ground (b) together under the omnibus first ground. This is because they are all in substance inviting this court to review the entire record of appeal as to whether the plaintiff who bore the burden of proof discharged that burden, and whether there is evidence to support the conclusions of the trial judge.

The additional ground (a) states that the trial judge erred when she declared title to land which was not demarcated in the writ of summons and statement of claim, to the plaintiff in the matter.

The main thrust of the submission of learned counsel for the defendant is that the order of the trial court granting “Declaration of title to all that piece or parcel of land described in paragraph 9 of the statement of claim” is otiose and unenforceable since paragraph 9 of the statement of claim did not contain a description of the disputed land. It is argued further, that paragraph 9 of the statement of claim and contained in the Order, did not disclose which land the plaintiff was claiming, and neither did the writ. Therefore, the trial judge was prosecuting plaintiff's case for her by granting a specific relief over land when on the record the plaintiff had not made a claim over a specific land. Dam vs. Addo [1962] 2 GLR 200 cited in support.

A cursory look at the writ of summons, confirm the fact that the writ of summons sought a “declaration of title to all that piece or parcel of land described in the paragraph 9 of the statement of claim”.

However, neither the original statement of claim nor the amended statement of claim filed on 26^th February 2010 contained a description of the land in their paragraphs 9.

The Record however shows that the amended statement of claim gives a comprehensive description of the land albeit not in its paragraph 9.

Paragraphs 3, 4, 6, 7 and 12 of the amended statement of claim plead as follows:

3. The disputed piece of land of about one half of one plot of land forms part of a much larger land which was first settled on by an ancestress of the plaintiff by name Oye Sumbroni more than two hundred years ago and she made farms here and there and she was succeeded by her daughter the late Amene and then by a grand-daughter late Ayaw and then by the late Amma Agyaako who died about 40 years ago and all these successors were in possession of the said larger land by making farms here and there.

4. The plaintiff states further that it was during the time of the said Amma Agyaako that she and the elders of family decided to share the larger land among her 7 children including the plaintiff's late father, Martin Diatebe Kumi.

6. The plaintiff states that her now deceased grandmother by name Nana Amma Agyaako was the owner of all that piece of land lying and being at Mamfe bounded on the West by the main Koforidua Mamfe road and measuring 227.7 feet more or less on the North by and belonging to Nana Otae and the Gyantuahemaa and her sisters measuring 186.3 feet more or less or on the East by Nana Twumasi land measuring 611.9 feet more or less and on the South by Nana Amanobea’s land measuring 186.3 feet more or less and covering an approximate area of 1.94 acres and which is more particularly delineated on a site plan.

7. The plaintiff further states that the said portion of the late Diabete is about 2 acres of land and bounded on the Western side by the Adawso Mamfe motor road and one the North-West by a proposed road leading to Cosby Hotel and all other sides by property of the said siblings of the said Martin Diabete Kumi and the whole area is now partially developed with a market and a lorry part both within the said larger land of the family of the plaintiff.

12. The plaintiff claims as per her writ of summons

The defendant filed an amended statement of defence in response to this, denying the averments and setting out her own root of title through her great-grandmother Nana Amene. [pages 45,46 of the Record].

In Reply, the plaintiff averred that neither the defendant nor any member of her family had ever been in possession of any portion of the land adjacent to any side of the disputed land. She pleaded at paragraph 7 as follows:

In further general reply, the plaintiff says that over the years, her family has maintained its ownership of the disputed land and its adjacent land by the following acts:

a. Her said family granted a portion of its larger land to the Akuapem Local Council, now Akuapem North District Assembly, which built a lorry park, market and toilets and the said Assembly has paid rents and continues to pay rents for the grant till date. [my emphasis]

b. That in a suit entitled David Ofosu vs. G.P.R.T.U, suit no. 2/96 at the Circuit Court, Akropong Akuapem, the then elders of the plaintiff’s family applied to be joined and they were accordingly joined as Co-defendants thereby protecting their family land from encroachers.

The question is whether the trial court’s declaratory order that wrongly referenced paragraph 9 of the statement of claim is otiose, pointless and unenforceable because it was not the said paragraph 9 that described the land?

Order 2 rule 3(1) of High Court (Civil Procedure) Rules 2004, C.I. 47 provides:

“Every writ shall be as in Form 1 in the Schedule and shall be indorsed with a statement of the nature of the claim, relief or remedy sought in the action.”

Plaintiff's writ, which sought a declaration of title, recovery of possession, damages for trespass and injunction, thus satisfies this Rule.

The other important requirement of the law is that in a claim for declaration of title to land, the land being claimed should be described. Thus if the writ of summons or statement of claim adequately describes the land in dispute, and if evidence is led to positively establish the identity of the land and prove the claim, then the requirements of the law would have been met. In order to do substantial justice, the pleadings of parties are read as a whole. Courts have moved away from using purely technical grounds to avoid determining matters on their merit.

In the present case, the pleadings described the land in dispute. The plaintiff led evidence on it. The court visited the locus. The judgment states reasons based on the pleadings and adduced evidence. The principle in Dam vs. Addo therefore has no application in these circumstances, as the trial court did not substitute a case contrary to, and inconsistent with that which the plaintiff had put forward by her pleadings and evidence. The error of the judge in referencing paragraph 9 has not occasioned any miscarriage of justice. This ground of appeal is accordingly dismissed as without merit.

Grounds (a), (b), (c), (d) and the additional ground (b) of the appeal call for an evaluation of the evidence on record and will be considered together. It is trite that an appeal is by way of a rehearing and an appellate court has a duty to examine the record of proceedings in order to be satisfied that the findings of the trial court are supported by evidence on the record. See the cases of Koglex Ltd. (No.2) v. Field [2000] SCGLR 175 and GIHOC V. Hanna Assi [2005-2006] SCGLR 458.

In support of these grounds of appeal, the defendant counsel made several arguments whose points of substance are summarized as follows:

1. The plaintiff could not prove her own boundaries. She failed to    prove that the land in issue was part of the land granted to the      District Assembly. Bedu vs. Agbi [1972] 2 GLR 226 C.A. cited                                                        

2. The trial judge erred in giving judgment for the plaintiff based on DW3’s supposed corroboration of plaintiff's evidence, when in fact DW3’s evidence corroborated the defendants’ evidence.                                       

The court misapplied the rule in Atadi vs. Ladzekpo [1981]   GLR    218     

3. The plaintiff failed to surmount the burden of persuasion  placed on her in sections 10 and 11 of the Evidence Act, by establishing with proof, the boundaries of the land claimed and this was fatal to her case. Judgment was granted to the plaintiff erroneously on the basis of the weakness of the defendants’ case even though the defendant had not counter-          claimed. Banga vs. Djanie & anor [1989-90] GLR 510 C.A            and      Kodilinye vs Odu [1935] 2 WACA 336 cited.

4. The trial judge erred when she gave judgment to the plaintiff over a large area of land in the face of evidence of grants and ownership acts by the defendant over that same undefined area of land.

The central issue in these submissions relate to the identity of the land in dispute. It is contended that the plaintiff did not discharge the burden of proof as she failed to establish the identity of the land in dispute.

For a plaintiff to succeed in an action for declaration of title to land, she has to lead credible evidence to discharge the onus or the burden of persuasion that lies upon her by virtue of sections 11 and 12 of the Evidence Act, 1975 NRCD 323.

Kodilinye vs Odu supra cited by the defendant, held that in a claim for declaration of title to land, a plaintiff is to rely on the strength of his own case rather than on the weakness of the defendants’ case. This decision has been followed and applied in numerous cases such as Banga vs. Djanie supra, which held that in a claim for declaration of title to land a plaintiff should win on the strength of her own case which must not be propped up by weaknesses in the case of the defence. In reliance on these authorities, the defendant submits that the burden was squarely on the plaintiff. It is contended that the plaintiff did not know her boundaries, did not produce any plans, and that even the statement of claim did not have the size and actual boundaries thus she failed to prove her case. Yet the trial court overlooked the burden on the plaintiff to focus rather on the evidence of DW3, and to grant judgment to the plaintiff on the basis of the weakness in defendant’s case.

The standard and burden of proof in claims for declaration of title is stated in Odametey vs. Clocuh & Anr [1989-90] 1 GLR 14. S.C which is considered the locus classicus. Odametey vs. Clocuh did not give full blessings to Kodilinye vs. Odu as wrongly argued by defendants' counsel, but rather whittled its influence. In his critique of Kodilinye vs. Odu, Taylor J.S.C. at page 27 stated:

“The mechanical application of this so-called principle in      actions for declaration of title—the genesis of which is traceable to [the dictum] of Webber C.J. in Kodilinye v. Odu that "the plaintiff must rely on the strength of his own case and not rely on the weakness in the defendant's case"— should be deprecated . . . If the dictum of Webber C.J. stated over half a century ago supports the proposition that a weakness in the defendant's case in an action for a declaration of title must not be considered in evaluating the strength of the plaintiff’s case no matter         the nature of the plaintiff’s case, then the dictum is now  no more true of the legal position in modern Ghana, at least since the coming into force of the Evidence Decree,         1975 (N.R.C.D. 323) . . .”

Holding 1 of Odametey v Clocuh [supra] thus states the present position as follows:

“The present position was that if the plaintiff in a civil suit failed to discharge the onus on him and thus completely failed to make a case for the claim for which he sought relief, then he could not rely on the weakness in the defendant's case to ask for relief. If, however, he made a case which would entitle him to relief if the defendant offered no evidence, then if the case offered by the defendant when he did give evidence disclosed any  weakness which tended to support the plaintiff's claim,        then in such a situation the plaintiff was entitled to rely on the weakness of the defendant's case to strengthen his case. That was amply supported by sections 11 and 12, particularly section 11 (4) of the Evidence Decree, 1975 (N.R.C.D. 323). It was therefore wrong for the Court of Appeal to rely on the strength and weakness criteria mentioned in the Kodilinye principle without ascertaining whether the plaintiff did or did not make a case even if it was a weak one, having regard to the fact that it was only when a plaintiff failed completely to make a case that the principle would apply.”

The defendants in Odonkor vs Amartei [1992] 1 GLR 577, like in this present case on appeal, had not filed any counterclaim. Nevertheless the Supreme Court declined to strictly follow the Kodilinye principle, stating that the Evidence Act of 1975 coupled with Judicial decisions like Odametey vs. Clocuh had made tremendous and far reaching inroads into the over half a century decision of Kodilinye vrs Odu. The Court held that the fact that the defendant had not counterclaimed in itself did not mean that the Defendant’s case should not be evaluated at all.

More recently in Christiana Edith Agyakwa Aboa vs. Major Keelson (Rtd); And Okyeame Yima vs. Major Keelson (Rtd) [Consolidated] S.C. [2012] 37 MLRG 127, the correct ambit of the application of the Kodilinye principle was re-stated.

Dotse JSC referred to the unreported Court of Appeal case of Ebusuapanyin Kwame Ohember & Anr vrs Nana Obura Asankoma III and Anr Suit No. 39/2000 dated 17th July, 2009, where the court stated the following steps as deducible from the ratio in the decisions in Odametey v Clocuh supra.

“i. It has to be considered whether the plaintiff has been able to make a case upon his or her testimony to entitle him or            her to be granted reliefs upon his claim.

ii. Secondly, it has to be considered whether the plaintiff’s case will entitle him to relief in view of the defendant’s evidence.

ii. Thirdly, it has to be considered whether if the plaintiff having failed to make a case from his testimony can rely on the weakness in the case of the defendant and ask for relief.

iv. Consideration of the weakness of the defendants case when he testified.

v. Whether the weaknesses in the defendants case enure to the benefit of the plaintiff’s case.

vi Finally, the court has to consider whether the plaintiff can rely on the weakness of the defendants’ case, to strengthen his case – this latter stage would seem to be contrary to the principle laid down by Webber C.J in

Kodilinye v Odu [1935] 2 WACA, 336 at 337.”

Now, applying the above stages of proof to the circumstances of this appeal, I am of the considered view that the plaintiff was able to lead credible and convincing evidence supported by the evidence of PW2, PW3 and DW3.

As stated earlier, the crucial issue is whether plaintiff established the boundaries of the disputed land. As held in Bedu vs Agbi [1972] 2 GLR 226 C.A. the onus was on the plaintiffs to establish the exact boundaries of the land in dispute so that any judgment in their favour would be related to a defined area; or at least they should have proved isolated acts of ownership over the disputed area. If a plaintiff fails to do this then she has not discharged the onus of proof on them.

In their pleadings, both parties relied on traditional evidence for their root of title. It was not in dispute that neither party had any documents covering the land. [I shall presently discuss the purported deed of gift that the defendant belatedly pleaded and tendered in evidence]. It was also clear from the pleadings that the land claimed by the plaintiff, [and for that matter the defendants “claim”, in quotes, as she did not counterclaim] related only to a small portion of a larger piece of land in both cases.

As is normal in such cases, the plaintiff narrated the history of the family land up to the present and described her boundaries. She sought to establish long uninterrupted possession and unchallenged acts of ownership by calling PW2 and PW3. In her examination in chief at pages 66 of the record, the plaintiff testified as follows:

“The size of my father’s land is 1.94 acres. The part of the land remaining after the District Assembly is about ½ an acre at the Northern side. The part of the land in this court is the Northern part where the defendant had encroached upon. On the Northern part our land abuts a road. The land was given to the District Assembly when J. S. Martinson became the clerk of council but cannot recollect the date. The council had been making payments to me and still making it. I noticed the presence of the defendant it was November, 2008. I saw someone had gone on the land and wanted to develop it. My brother, Mensah Kumi Diabete. He wrote to Koforidua Town and Country Planning asking whether someone had been allocated that portion of land. The Koforidua wrote to enquire nothing happened.

My father did not give the whole 1.94 acres to the Council. It was only the market, car park and place of convenience. Legally council cannot give my land to someone. At the time I issued this writ, the defendant had deposited sand on the land. I took photograph of the land. A brother of mine who is deceased, Group Captain Frank Darko Kumi had died. We were busy. We could not go to the site and saw trenches had been dug or constructed and fixed iron rods erected on the land indicating defendant was ready to put up a building. It is correct defendant had put up a structure on the land but the land does not belong to her.”

Part of the cross-examination of plaintiff went like this:

Q: Are you saying for a fact that all that parcel of land allegedly acquired by your father measured 1.94 acres.

A. Yes

Q: Are you saying it was out of this 1.94 acres land that portions were allocated for the market, Lorry Park and a public place of convenience.

A. Yes

Q: Do you know demarcating the land into parts of about 100 feet   by 90 feet, 1.94 acres is about 6 plots? Every acre is 4 plots.

A. That is correct

Plaintiff called PW1, PW2 and PW3 all in the effort to prove that her family owned the larger land that included the disputed portion and that her family had been receiving rent for several decades from the District Assembly for a market, lorry station, and a place of convenience built on portions of the 1.94 acres she had testified about.

PW2 Samuel Asante Appenteng who said he was the presiding member of the Akuapim District Office between 2004 – 2010 corroborated the evidence of the plaintiff. He testified that he dealt with plaintiff’s family on issues to do with the market, lorry park and place of convenience during his tenure, and the ground rent payable to the family was increased in 2005. He mentioned that the records of the Assembly showed that rent was being paid from the late 1960’s. He mentioned one P. M. Offei as the person who had been collecting the rent on behalf of the family. Under cross-examination, it was suggested to him that rent was being paid to plaintiffs family only in respect of the public place of convenience but he insisted that a parcel of land was given by Diatebe family for a public latrine, market, refuse dump eventually part of it being used for a lorry station.

PW3 Frimpong Manso Addo, a district finance officer with the Akuapim North District Assembly in charge of receipts and payments testified that from 1974 to date, the Assembly has been paying rent to plaintiffs family. He said documentation proved the fact that the Assembly had acquired land from plaintiff’s family. He tendered as exhibit A the Assembly’s records from 1977 up to 2010 which indicate payments to representatives of plaintiff’s family.

Thus, as rightly found by the trial judge, there is evidence of payment of rents to the plaintiff’s family by the District Assembly in respect of adjacent land close to the land under dispute thus part of large tract of land.

In the absence of any evidence to the contrary from the defendant, the plaintiff would have made her case and be entitled to the reliefs claimed.

It was in the defendant’s interest to produce evidence in rebuttal if she desired for the court to conclude that her case was more probable than the plaintiff’s and make a determination in her favour. See Tabiri alias Asare [1987-88] 1 GLR 360, Ababio v. Akwasi III [1994- 95] 2 GBR 774, Adwubeng vs. Domfeh [1996-97] SC GLR 660, In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors vs. Kotey & Ors [2003-2004] SCGLR 420]

Thus, the defendant gave evidence and called three witnesses.

In the course of her evidence in chief, the defendant amended her statement of defence on 1^st August 2012 [page 88-89 of the Record] to plead at paragraph 9, a deed of gift executed in her favour by her mother. She tendered the Deed as exhibit 1 and said she had given the customary ‘aseda’ prior to the registration of the deed. She was cross-examined at length about the dates appearing on the face of the Deed exhibit 1 and her boundaries. She mentioned that she shared a boundary where the market is, with one Kwame Ofori a.k.a. King David and stated that she knew of a case between King David and the GPRTU at the Akropong Circuit Court. When her father was alive, King David called on him and made him show him his boundary. It is worthy of note that it is in respect of this King David that the plaintiff had pleaded at para 7(b) of her Reply that her family had joined the GPRTU in a suit to protect her family’s land from encroachment.

DW1 Nana Akuffo Asante said he was from the same family as the plaintiff. He corroborated plaintiff’s ancestry but said the land in dispute did not form part of plaintiff’s family land. His basis for so saying was that he was a Government appointee to the Assembly in 1995 when it was decided to expand the market. A gong gong was beaten for owners of earmarked land to come forward. It was the defendants’ mother with others who came forward but no claim was laid by the plaintiff or any member of her family. He however admitted that he did not see any document covering the land. Nor could he remember for how long the land was used as market before it collapsed and was expanded. He did not know which family took rent from the Assembly. He was aware of the litigation between King David and the plaintiff’s family over the land covering the lorry station.

DW2 Barima Owusu Akyem Tutu II said his two sisters had acquired land from the defendants’ mother in 1977 and a paper was prepared. This paper was not tendered. He said he would not know how the defendant came to own the land.

An evaluation of the evidence clearly shows that the defendant’s description of her boundary owners was confused. It is also obvious that the defendant scrambled to produce exhibit 1 as answer to the suit filed by the plaintiff on 26^th November 2008. The document does not contain recitals. This is an indication that prior to the deed there was no documents on the disputed land. That being the case, the fact that the defendant did not call her mother who allegedly gifted the land to her as recently as 2008, or any witnesses to the purported customary gift, or any of the persons the defendant alleged her mother had sold adjacent lands to, or documentary proof from DW2 of the purported sale to his sisters, weakened her case.

Furthermore, and as rightly pointed out by plaintiff’s counsel, exhibit 1 has several irregularities on the face of it. For example, the site plan purportedly signed on 28^th November 2008 post-dates the execution of the deed on 18^th August 2008, meaning that at the time of the deeds execution there was no site plan. Moreover, there is nowhere in her evidence that the defendant disclosed that her mother who was the owner had identified any land to her. In her examination in chief, as already noted, she made reference to her father [See at page 93] and in cross-examination she admitted that she had identified the plot to the surveyor for preparation of the site plan attached to the Deed. [see page 97 of the Record].

As the deed of gift Exhibit 1 was so discredited as a reliable or a valid document, little probative value could be assigned to it. The trial judge was therefore not wrong in giving as one of the reasons for the judgment, the fact that “the documents tendered by the defendant has inconsistencies thus as of the time the deed of gift was prepared, there was no site plan for it was signed after execution of the document.”

It is curious as to why the defendant subpoenaed DW3 Phillip Manukure Offei a nephew of the plaintiff to testify. His name came up in the evidence of PW1 who said P.M. Offei was the person collecting the rent on behalf of plaintiff’s family. As PW1 was challenged on this assertion in cross-examination, I conjecture that DW3 was subpoenaed to prove that evidence incorrect and so discredit PW1. DW3 however confirmed in his evidence that indeed from 1977 he was being sent by his grandmother, the mother of the plaintiff to collect rent for the lorry park from the Assembly. He thus corroborated PW1’s evidence and a key point of the plaintiff’s case that the lorry park close to the land in dispute belonged to plaintiff’s family. He also said his grandmother had sent him to collect money from Mr Martinson which she said was for land she had given for the place of convenience and refuse dump.

The defendants counsel is of the view that judgment was given in favour of the plaintiff on the single basis that DW3’s testimony corroborated that of the plaintiff. He submits that Atadi vs Ladzekpo was misapplied by the trial judge, in that the trial judge used the supposed contradiction in defendants evidence to overlook or extinguish the obligation of the plaintiff to prove her case without reliance on the weakness in defendants case.

I agree with defendants' counsel only to the extent that Atadi vs. Ladzekpo was misapplied. The circumstance of this case did not line up with the decision in the Atadi case. Atadi vs. Ladzekpo held that 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 a conflict and make a specific finding on that issue in favour of the party whose case contained the conflicting evidence on the issue. Odametey vs. Clocuh and Manu vs Nsiah [2005-06] SCGLR which held that where the party’s own witness corroborated the evidence of the other party on the same issue, the court should accept the corroborated evidence unless for some good and apparent reason, the court finds the corroborated version is incredible or unacceptable, would have been more appropriate authorities.

The evidence of DW3 did strengthen the plaintiff’s case. DW3 was a witness called by the defendant and without treating him as a hostile witness. His evidence corroborating the plaintiff’s case was a weakness in defendant’s case and deserving of special mention as the trial judge did, citing this as one of the reasons for finding in favour of the plaintiff.

The contention that the plaintiff failed to describe the boundaries is not borne out by the record. The plaintiff clearly stated that the disputed piece of land was about one half of one plot of land and formed part of a much larger land which was first settled on by an ancestress of the plaintiff. In the evidence of the plaintiff the portion in dispute was placed in the context of the 1.94 acres. The market, lorry park and toilets were described as part of the 1.94 acres that was given to the Assembly for those purposes. The defendant also made reference to “the land in dispute”, an indication that the identity of the land was not in issue. It is clear from the pleadings and the evidence adduced at the trial that both parties were talking about the same land that had the defendants' structure on it. Quite apart from this, after the evidence, the court visited the locus where both parties showed the land they were claiming. The registrar tendered the locus report and the parties cross-examined each other on the visit.

We are satisfied that the identity of the disputed land was adequately established. We are also satisfied that the plaintiff led sufficient evidence to discharge the onus that lay on her. She proved acts of ownership over the disputed area, which is the one-half plot of land where the defendant had an unfinished structure. Any judgment in plaintiff’s favour related to this defined area.

After a careful evaluation of the evidence on record, we are satisfied that the plaintiff proved her claim on a balance of probabilities as required by sections 10, 11(4) and 12 of the Evidence Act 1975, NRCD 323. The evidence on record amply supports the conclusions and judgment of the trial judge.

We find no cause to disturb the judgment except to substitute the first relief granted to the plaintiff with:

“Declaration of title to all that piece or parcel of land described in paragraphs 6 and 7 of the amended statement of claim”

Our only criticism of the judgment appealed is that the learned trial judge could and ought to have done a better job of evaluating the evidence and making specific findings of facts.

For the reasons given, the judgment of the trial court is upheld.

The appeal is dismissed in its entirety as without merit.

(Sgd.)

CECILIA H. SOWAH

(JUSTICE OF APPEAL)

(Sgd.)

 ADJEI, (J. A.)            I agree                                 DENNIS ADJEI

  (JUSTICE OF APPEAL)

(Sgd.)0

MENSAH, (J. A.)        I also agree                  LAWRENCE L. MENSAH

      (JUSTICE OF APPEAL)