ACQUAYE, J. A.

 This is the judgment in respect of an appeal filed on 22^nd April 2010 against a judgment delivered by the Circuit Court sitting at Ho dated 9^th July 2008.

In their writ of summons the plaintiffs claimed against the defendants jointly and severally:

General damages for trespass unto all that piece or parcel of land situate, lying and being at Kpetoe known as Gangakpo bounded on one side by the Ho-Denu Road, on another side by River Kpetoe, on another side by the properties of Matti Gboya and Dappah families of Kpetoe and on the last side by the plaintiff's land.

Perpetual injunction restraining the ist defendant from selling or otherwise interfering with the said land and the 2nd defendant from continuing the building operations now going on by himself, his principal, workmen, servants, labourers etc pending the final determination of the suit. In their further amended statement of claim and evidence the plaintiffs stated that they are the head and principal members of the Bedze Agbedrafor clan of which their ancestor by name Teteh Kporku founded the land described in the statement of claim. Since then several generations headed by Teteh Bediaku, Ahortor 1, the II, the III, Mankralo Afetor Tetteh Kporku VI and the 1st plaintiff have been in exclusive possession of the land and have leased portions thereof to the government in 1921 for the preventive station now C. E. P. S, the Housing Corporation for the building of low cost housing. They had also leased portions of their land to Evangelical Presbyterian Church and Apostolic Church at Kpetoe for the building of a church and cemetery as well as to several individuals who built on them. Members of the family also have coconut and palm plantations as well as a poultry farm on the land.

The 1st plaintiff testified that in the seventy's one S. K. Attipoe who acquired part of the land from the plaintiff's successor Kporku VI sued Akuamoah and the 1st defendant when the latter trespassed unto a portion of their Kangakpo land at the Ho High Court and judgment was entered in favour of Kporku VI. In December 1994 the 1st Defendant sold a portion of their land at the left hand side of the Ho to Denu road not far from the poultry farm of Martin Ahor Mensah to the 2nd defendant who also sold it to Kudzo Tekpor. When Kudzo Tekpor started to clear the land they were confronted and a report was made to Togbe Gagli who is one of the preces chiefs of the Agortime Traditional area for arbitration and the arbitration ended in favour of the plaintiffs. The 3rd plaintiff/appellant who testified as PW2 confirmed the evidence of the 1st plaintiff that the land litigated about at the District Court at Ho between Nene Afetor Kporku Vl and S. K. Attipoe on the one hand and the 1st defendant and Togbe Akuamoah on the other hand concerned the land at Kangakpo. PW2 also testified that in 1951 there was another litigation between Akoto Sah VII of Kpetoe Agotime and Sam Doh Ahator. Whilst Akoto Sah VII who is related to the defendants claimed the land was called Selekpo, Sam Doh Ahator who is related to the plaintiffs claimed the land was called Kangakpo. The result of that case is that judgment was given in favour of Sam Doe Ahortor. PW2 tendered that judgment in evidence and it was admitted without objection and marked as Exhibit A. PW2 further testified that in 1963 Togbui

Akuamoah V sued Ahiagba Asem at the Ho-Anyigbe Local Court claiming inter alia declaration and recovery of land called Bedzame. The defendants in the 1963 case entitled: Togbui Akuamoah V Ahiagba Asem who are related to the defendants in the instant suit were found liable. PW2 again tendered the judgment in that suit in evidence and it was admitted without objection and marked Exhibit B. PW2 lastly confirmed that the arbitration before Togbe Gogli in January 1995 was given in their favour. PW3 Togbe Gagli III of Kpetoe in his evidence confirmed the arbitration of the dispute he presided over as narrated by the 1st and 2nd plaintiffs. Under cross-examination Togbe Gagli III emphasized that the defendants were found liable at the arbitration and denied that the decision was that the disputed land should be shared between the two parties.

PW5 an elder of the Apostolic Church confirmed that the church acquired her lands from an ancestor of the plaintiff whilst, PW4 a farmer also testified that he got his farmland situate on Kangakpo from the plaintiff's Gbedze Agbedrafor clan. In their defence the 1st defendant testified that the name of their land which was founded by his grandfather called Agbeve is Gbedegugu. Their land is bounded on one side by the Dapaah family marked by a stone and baobab tree, on another side by the Abli family marked by two Huti trees and an Atidasa tree, on another side by the Akoto family marked by Lafiti tree stump and on the last side by the Kpetoe-Ho road. The 1st defendant testified that Agbeve was succeeded by Ahagba and then Akuamoah followed by Kofitsu Asem who stayed at Tafo. His grandfather sold portions of the land to Enock Ameodo, Kwesi Ahomegner, one Hunyahunya and Martin Ahortor who established a poultry farm. Part of the same land was sold to Kudjo Tekpor and two years later the plaintiffs came claiming ownership of the land so the matter went before Togbe Gagli’s Traditional Court.

According to the 1st defendant there was misunderstanding between the parties during the proceedings at Togbe Gagli's Court so the case did not end there and the plaintiff brought the case to the trial court. Before this case the 3rd plaintiff allotted a portion of the land to CEPS but he was challenged by Akuamoah and Asem so no compensation was paid to the plaintiffs. When the plaintiffs leased part of the land to the Apostolic Church too Kofitsu entered the land and the Apostolic Church issued a writ against them but that suit was still pending in court. The Ist defendant admitted that their Kofitsu Asem's mother came from the family of the 3rd plaintiff as a result of which Togbe Kporku IV gave her part of his family land. The 1st defendant denied that his family's Gbedegugu land abounds the plaintiffs Kangakpo land and that the two lands are far apart and have no connection at all. In his judgment the trial judge found that this case is basically a boundary dispute between the plaintiffs' Kangakpo land and the defendants Bedjemu land but did not accept the plaintiffs evidence that the boundary is marked by the Kpetoe rivulet because as the plaintiff concedes the Kpetoe rivulet dries up and ceases to exist during the dry season so it cannot be a proper permanent boundary feature.

With respect to the arbitration award the trial judge found that the defendant did not accept the award due to the confusion which arose during the proceedings and held that the arbitration was invalid. The trial judge considered the evidence of the 1st defendant and found that they were indicative of an in depth personal knowledge which did not include the river Kpetoe as a boundary feature. The trial judge considered the acts of possession recounted by the įst defendant and the fact that the land he gave to the principal of the 2nd defendant for building sparked the instant controversy and found that the land is within that claimed by the 1st defendant. The trial judge held that on a balance of probabilities the disputed land forms part of the larger land of the 1st defendant's clan. The trial judge accordingly entered judgment in favour of the 1st defendant. Dissatisfied with the judgment the plaintiffs lodged the instant appeal with the only ground of appeal being that the judgment is against the weight of evidence. Counsel for the plaintiffs/appellants submitted that the trial judge's rejection of river Kpetoe being a boundary feature because it dries during the dry season as unreasonable and unsatisfactory when physical features have long been admitted as marking boundary features.

Counsel submitted that in law title to land may be proved by possession and pointed to the long possession of the land by their grantees such as CEPS, the Evangelistical and Apostolic Churches as well as individuals cultivating coconut, palm trees as well as a poultry farm. Counsel for the plaintiffs/appellants referred to the judgments exhibits A and B as well as the Executive Instruments E.I. 12 of 1983 and the failure by the defendants to tender any document in evidence which showed that the trial judge did not properly consider the evidence before him in arriving at his judgment. Counsel also submitted that the tendering of Exhibit CEl by the Acting Commander of CEPS without objection by the defendants were not considered by the trial judge, proving that he did not consider these evidence which were in favour of the plaintiffs. Counsel submitted that had the trial judge considered the above evidence he would have arrived at a conclusion different from what he did in his judgment. Counsel submitted that there were pieces of evidence on record which if applied in their favour could have changed the decision in their favour. Counsel concluded by submitting that the appeal ought to succeed since the record is saturated with enough evidence indicating that the plaintiffs/appellants had a better title and that the judgment is therefore against the weight of the evidence and same ought to be set aside and judgment entered for the plaintiffs/appellants.

In answer to the submissions made on behalf of the plaintiffs/appellants’ Counsel for the defendants/respondents submitted that the appellant's reliance on Exhibits A and B is a clear demonstration that the appellants failed to prove the identity of the land claimed because whilst the land in Exhibit A concerned Sebekpo lands, that in Exhibit B concerned Bedzema land both of which have no relationship to the Gangakpo lands claimed by the plaintiffs in their writ of summons. Counsel for the defendants/respondents referred to Counsel on the other side's submission that the two Exhibits A and B have no bearing on the instant suit and submitted that the trial judge was right in finding that the plaintiffs/appellants failed to prove the identity of the land they claimed. Counsel for the defendants/respondents referred to what he called inconsistencies in the plaintiffs/appellants case and submitted that these made the defendants/respondents case more probable.

The only ground set out and canvassed in this appeal is that the judgment is against the weight of evidence led at the trial. It has been held in a number of cases that in such situations, what the appellant is implying is that “There were certain pieces of evidence on record which if applied in his favour, could have changed the decision in his favour or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against. See the case of Djin Vrs Musah Baako (2007-2008) SCGLR 686. Additionally, the appeal is by way of re-hearing and the appellate court is under an obligation to examine the entire record to ascertain whether the trial judge's findings are supported by the evidence on record and to arrive at its own conclusions. See Abbey and Others vrs Antwi V (2010) SCGLR 17.

Thus in Koglex Limited (No. 2) vrs Field (2000) SCGLR 175 the Supreme Court summarized some of the circumstances under which an appellate court would interfere with the findings and conclusions of a trial court as follows:

·         Where the said findings are clearly unsupported by the evidence on record or where the reasons in support of the findings are unsatisfactory.

·         Where the trial court improperly applied a principle of evidence or where the trial court failed to draw an irresistible conclusion from the evidence.

·         Where the findings are based on a wrong proposition of law and if that proposition is corrected, the findings would disappear and

·         Where the findings are inconsistent with crucial documentary evidence on record.

Applying the above principles to this case we find that the plaintiff/appellant's evidence that his family owned the Gangakpo land and that the governments acquired part of the land for CEPS in 1921 was supported by the Court Witness Major (Rtd) Christopher Dzigbordi Kwame Norviewu tendering the site plan Exhibit C.E.I on which the name of Mankralo Tetteh Kporku VI appears. The plaintiffs evidence of his family granting portions of their Gangakpo lands to the Evangelical Presbyterian and Apostolic Church were also corroborated by PW5 who also tendered Exhibit C registered in 1977. In his submissions Counsel for the defendants/respondents quoted Counsel for the plaintiffs/appellants admission that Exhibits A and B concerned Sebekpo and Bedzumu lands so they do not relate to Gangakpo land. In evaluating evidence submissions of Counsel is helpful but do not take precedence over the testimony of the party himself.

A reading of the two Exhibits A and B disclose that it was the plaintiff's adversaries who called the land they were litigating upon Sebekpo and Bedzumu whilst the plaintiffs maintained the name Gangakpo. The evidence led by the plaintiffs and their tendering of the Exhibits A and B was consistent with their claim of ownership of Gangakpo lands and their reliance on res judicata. As can be surmised from the evidence as a whole long after the plaintiff's family have leased out their Gangakpo lands to others in 1921 and 1977 the 1st defendant later came from Tafo and laid adverse claims to same as was testified to by 1st defendant at page 202 of the record of proceedings “After Ahiagba was succeeded by Akuamoah as the head of family. There was no litigation over the land during his period. He was succeeded by Kofitsu Asem as head of family. He was not at home during the period of Akuamoah. He was at Tafo and on his return home he realized that the land of his father was encroached upon by some people. So he started sacking the people from the land” It must be noted that it was the challenge to the right of the Apostolic Church to be on the land by Kofitsi Asem that sparked the litigation which ended in the Ho High Court, which by the answers of 1st defendant under cross-examination at page 212 of the Record of Proceeding, the Apostolic Church won and the defendants appealed. Sight must also not be lost of the fact that it was Kofitse Asem's grant of the land to Kudjo Tekpor that sparked the dispute which was referred to Togbe Gagli's traditional court for arbitration.

Even though the plaintiffs called the land Gangakpo and the defendants called it Gbedegugu, the evidence disclose that it is the same piece of land that the parties are litigating over. In all the evidence before the trial court the plaintiff produced and tendered in evidence about four documents in proof of their title whilst the defendants did not produce any document. In the case of Yorkwa vrs Duah (1992-1993) GBLR 278 it was held that

“whenever there was in existence a written document and oral evidence over a transaction, the practice in the court was to lean favourably towards the documentary evidence, especially if it was authentic and the oral evidence conflicting”. In the same way where a party is unable to produce documentary evidence in support of his case and his adversary does, the court would lean in favour of the party who produces documentary evidence in support of his case. Thus in the case of Fosua and Adu vrs Dufie (Deceased) and Adu-Poku (2009) SCGLR 310 it was held that “It was settled law that documentary evidence should prevail over oral evidence. Thus where documents supported one party's case as against the other, the court should consider whether the latter party was truthful but with faulty recollection”

It must also be pointed out that these grants were made more than 12 years before the defendants' challenge hence the plaintiffs have acquired possessory title. See also Atadi vrs Lodzekpo (1981) GLR 219. The above analysis of the evidence led at the trial show that the plaintiff led evidence which if the trial judge had properly considered in his judgment, the result would have been different. Another area of the evidence not properly evaluated by the trial judge is the arbitration which was held before Togbe Gagli's Traditional Court.

This is the verbatim evidence of the 1st plaintiff on the arbitration which appears at page 45 of the Record of proceedings. “When the matter was before Togbe Gagli, he appointed four other elders from Agoe excluding himself. The names of the four elders are Mensah Agbong, Kwadzo Doba, Sohefia Tetteh Oka and Zikpuitor Amenya.

After the case was brought before Togbe Gagli, he summoned the Ist defendant who denied that he trespassed unto our land. As a result, Togbe Gagli and his four elders requested each party to pay 4 bottles of life star gin, which 4 bottles we paid. The arbitration commenced in January 1995 and ended in April the same year. When the case commenced it was the 1st plaintiff who gave evidence first, after which I was cross-examined by both the panel and the 1st defendant. After I gave evidence 2nd plaintiff herein also gave evidence. He was also cross-examined by Ist defendant and panel. The 2nd plaintiff herein also gave evidence and he was also cross-examined by the panel members. Thereafter the panel asked us to call our witnesses. We called Adolf Ahortoi, Yao Akate and G. G. Agbana. After each of these witnesses gave evidence, they were also cross-examined. I know one Kwadzo G alias Todze. I saw him also at the arbitration. He was one of our witnesses. In all we called 4 witnesses. After 1st plaintiff and our witnesses gave evidence and were cross-examined the panel called on the 1st defendant also to give evidence and he did. The ist defendant was also cross-examined by both we plaintiffs and the panel. The 1st defendant also called his witness Zikpuitor Kpor Korku and the late Tublu Kwame. I can remember that įst defendant called only 2 witnesses. They were also cross-examined by both we the plaintiffs and the panel. After hearing the case for 3 months we took adjournment for one month to hear the award. Before judgment was given the panel asked each party to bring a bottle of gin and ¢40,000.00 each and we paid same each. It was one month after payment that an award was published in favour of we the plaintiffs herein. After the award was published, defendants did not comply with the order. We asked the purchaser to carry on the building on the land, as a result we instituted this action”.

In Justice S.A. Brobbey's Practice and Procedure. In the Trial Courts and Tribunals of Ghana as well as in various judgments especially Budu II vrs Ceasar and Others (1959) GLR 410, it has long been established that the prerequisites of a valid customary arbitration are:

Voluntary submission by the parties of their dispute to an arbitrator for the purpose of having the dispute decided informally but on its merits

      i.        Prior agreement by both parties to accept the award and

     ii.        The award must not be arbitrary, but must be arrived at after the hearing of both sides in a judicial manner

    iii.        The practice and procedure for the time being followed in the Native Court or Tribunal of the area must be followed as nearly as possible

   iv.        Publication of the award.

In the evidence of the 1st plaintiff quoted extensively supra which was corroborated by Togbe Gagli who chaired the arbitration all the prerequisites enumerated above were satisfied. The voluntary submission of both parties to submit to the arbitration was proved by each party paying 4 bottles of Life Star gin in the beginning and going through the process of listening to and cross-examining the other side; the prior agreement to accept the award is proved by the payment of 1 bottle gin and $40,000.00 after the evidence had been concluded after 3 months hearing but before the award, the judicious hearing by the manner the hearing was conducted and the publication of the award. In the words of PW1, Togbe Gagli III at the end of his examination in chief “The parties came on that 14th June 1995. We went into consultation came back we found defendant liable because he had nothing on the land. After the award was published the children of ist defendant wanted to beat me up”.

Counsel for the defendant/respondent in his submissions played down the arbitration because the defendants did not accept the award and their children caused trouble after the award was delivered. In the case of Oyete and Ntim vrs Edumawu and Aduo (1956)1 WALR 278 it was held that there is no right in the parties to an arbitration to resile from the award once this has been made. In Suka vrs Glavee (1991) 1 GLR 195 it was held that “unlike a negotiated settlement, once there was a prior agreement to be bound by the award of the arbitrators, the subsequent reaction of a party to the arbitration award was immaterial and could not affect its validity. Accordingly, the defendant's contention that the arbitration award could not bind him because he did not accept it is untenable. See also Kwaw vrs Awortwi (1989-90)1 GLR 190 and Nuamah vrs Adusei (1989-90)1 GLR 457. From the evidence on record there was sufficient evidence to prove the plaintiff/appellants' pleading at paragraph 12 of the amended statement of claim that “Both defendants are therefore bound by the said award”. The trial judge's finding that the defendant did not accept the award due to the confusion which arose during the proceedings was made contrary to the evidence on record and is hereby set aside.

After a perusal of the evidence led at the trial we find that the trial judge erred in his evaluation of the evidence as there were pieces of evidence which if properly applied would have changed the result of the judgment. We agree with Counsel for the plaintiffs/appellants that the judgment appealed from is against the weight of evidence which was led at the trial.

We therefore set aside the judgment of the trial court dated 9th July 2008 and enter judgment in favour of the plaintiffs/appellants.

We award the plaintiffs/appellants GH¢10,000.00 general damages for trespass and order perpetual injunction restraining the defendants/respondents from having anything to do with the disputed land.

The appeal succeeds and it is hereby allowed.

We award costs of GH¢5,000.00 against the defendants/respondents in favour of the plaintiffs/appellants.

(SGD)

K. A. ACQUAYE

(JUSTICE OF APPEAL)

S. K. GYAN, J.A,       I AGREE

(SGD)

S. KWEKU GYAN

(JUSTICE OF APPEAL)

M. M. AGYEMANG (MRS) J.A,       I ALSO AGREE

(SGD)

MABEL M. AGYEMANG (MRS)

(JUSTICE OF APPEAL)