Quaynor and Another v Ofosuhene and Another (SUIT NO.H1/120/2024) [2026] GHACA 8 (16 July 2026)

ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 1 IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA, 2026 CORAM JEROME NOBLE-NKRUMAH, J.A (PRESIDING) GEORGE BUADI, J.A FRANKLINA GESILA ADANU, J.A SUIT NO.H1/120/2024 16TH JULY 2026 1. ROLAND KWENORTEY 2. MRS. IRENE GRACE QUAYNOR -------- PLAINTIFFS/RESPONDENTS VERSUS 1. PADMORE KWESI OFOSUHENE --------- DEFENDANTS/APPELLANTS 2. STEVEN OSEI OWUSU JUDGMENT ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 2 FRANKLINA GESILA ADANU, J.A: 1.0 General Overview This appeal, which arises from the decision of the High Court dated 31/05/2013, beckons this Court to decide whether the disputed land belongs to the Appellants or the Respondents, both of whom claim to be grantees of the Nii Abetia Family of Asofa. Sir Richard Torin Kindersley, in the long-standing case of Rice v. Rice [1853] 2 Drew 73; 62 ER 646 stated at page 648 as follows: “As between persons having only equitable interests, if their equities are in all other respects equal, priority of time gives the better equity; or qui prior est tempore polior est jure… and that, if the one has other grounds a better equity than the other, priority of time is immaterial… In examining into the relative merits (or equities) of two parties having adverse equitable interests, the points to which the Court must direct its attention are obviously these: the nature and condition of their respective equitable interests, the circumstances and manner of their acquisition, and the whole conduct of each party with respect thereto. And in examining into these points, it must apply the test, not of any technical rule or any rule of partial application, but the same broad principles of right and justice which a Court of Equity applies universally in deciding upon contested rights.” 2.0 Facts: The original Writ of Summons that commenced the suit in the trial court was issued against the first Defendant/Appellant. Subsequently, on the application of the Plaintiffs/Respondents filed on 12/02/2008, the second Defendant/Appellant was joined as Co-Defendant. 2.1 Plaintiffs/Respondents’ Case (“Respondents”) ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 3 By an amended Statement of claim filed on 20/02/2009 pursuant to the order of the court, the Respondents claimed as follows: i. “Declaration of title to all that piece of land situate lying and being at Asofa, in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 0.23 acre (plot no.250) and bounded on the North by a proposed road measuring 100’-0’ more or less on the South by Lessor’ s property, measuring 100’-0’ more or less on the East by Lessor’ s property measuring 100’-0 more or less on the West by Lessor’ s property measuring 100’-0 more or less which piece or parcel of land is more particularly delineated on the plan attached hereto and thereon shown edged pink. ii. Recovery of possession of the said land. iii. Damages for trespass. iv. An order for perpetual injunction restraining the defendant by himself his servants, workmen and/or agents from entering the land, occupying it or carrying on building activities on it or in any way interfering with plaintiffs’ use and enjoyment of the land.” The Respondents contended that by virtue of a High Court judgment dated 19/07/2004 decided in favour of John Atuquaye Korley & 7 Others in the consolidated Suit No. L318/02 intituled John Atuquaye Korley & 7 Others v. Lands Commission, the disputed land is not government land. The Respondents state that by a lease dated 24/06/2000, stamped as LVB12183/2000 and made between Nii Ayitey Tetteh, head and lawful representatives of the Nii Abetia family of Asofa as lessor and the Respondents as lessees, the disputed land was leased to the Plaintiffs for 99 years. Shortly after the grant, the Respondents say that they went into possession of the land and carried out various acts of possession thereon. They constructed a concrete structure , including the ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 4 foundation and walls of a building, on the land. It is the case of the Respondents that the Appellants entered the land and rapidly started building structures on top of the Respondents’ existing structure. They aver that upon discovering the signs of trespass, they made verbal warnings to the Appellants to desist from continuing with their trespassory acts, followed by a report to the Respondents’ grantor, who summoned the parties to appear before him on two occasions. Subsequently, the Appellants reported the matter to the police, who, after arresting and detaining the Respondents’ workmen, ordered all the parties not to enter the land again until investigations were completed. Despite the warnings, the Appellants continued in their trespassory acts, thus permanently altering the nature of the land and causing irreparable damage thereto to the detriment of the Respondents. According to the Respondents, their plot number is 250. However, a copy of the document provided by the Appellants to the police showed that the Appellants’ plot number is 248. Therefore, the Appellants have no title to the Respondents’ land. In their Reply and Defence to Counter Claim, the Respondents further stated that by the Appellants’ own showing, the alleged grant by the Nii Abetia Family to the Co-Appellant could not have been before 2006. They asserted the existence of evidence that the alleged grant to the Co-Appellant was made long after the grant to the Respondents and that part of the foundation they built long before the alleged grant to the Appellants, as well as walls they constructed to lintel level, exist on the land to present. The Respondents further say that they have submitted their lease to the Land Title Registry and have received a yellow card. Additionally, their application has been published in the newspapers as notice to the whole world. The Respondents asserted that the indenture relied on by the Appellants is invalid since it has not been properly executed by the Nii Abetia Family and their valid stamp is not embossed on it. ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 5 2.2 Defendants/Appellants’ Case (“Appellants”) In their Statement of Defence and Counterclaim filed on 08/02/2008 and 06/06/2008 respectively, the Appellants denied the Respondents’ contention that they are the owners of the disputed land. The Appellant asserted that they are beneficial owners of the land in dispute and that the Respondents’ alleged grantor could not have legitimately leased the disputed land to the Respondents, as it had been leased to the Co-Appellant since 01/02/2000 by the Nii Abetia family of Asofa, then lawfully represented by Nii Aryeetey Tetteh, the deceased head of family. The Appellants further stated that, assuming without admitting that the Respondents acquired the land as per the lease dated 24/06/2000 and stamped as LVB/2183/2000, the piece of land comprised in the said lease is different in location from the disputed land. They stated that upon acquiring the land, the Appellants went into immediate possession and commenced activities thereon without let or hindrance and that at the date of the commencement of the suit, a six (6) bedroom residential building had been constructed on the land at lintel level. It is the case of the Appellants that in the early part of 2006, the Respondents forcibly entered the Co-Appellant’s land and demolished part of his building and commenced building thereon without the consent of the Co - Appellant. The Appellants further state that the Respondents entered the land forcibly at a time when the Co-Appellant had long constructed his building thereon, which was at an advanced stage of completion. The Respondents used building materials on the land belonging to the Co-Appellant and quantified the cost of the demolished structure, among others. According to the Appellants, the matter was reported to the police, who in the course of investigations, caused the Survey and Mapping Department, Lands Commission, Accra, to conduct a survey of the respective land as comprised in the title documents of the parties and prepare a composite plan thereof. The ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 6 survey result showed that the Respondents’ land was located far away from the location of the disputed land whiles it showed the location of the land owned by the Co-Appellant as the land in dispute and that the police was in the process of arraigning the Respondents before court on criminal charges of trespass and causing damage to Co-Appellant’s building, which proceedings had commenced and pending before the Circuit Court, Accra. The Appellants further say that pursuant to a judgment of the High Court, Accra, delivered on 19/07/2004, which confirmed the ownership of the Co-Appellant’s grantor to a vast area of land, including the land in dispute, Co-Appellant’s grantor, per a Daily Newspaper publication dated 08/07/2006, invited all land owners in the area for a confirmation and regularisation of their title documents. The Appellants say that when the Co-Appellant responded to the invitation, a new lease was executed in his favour, which said lease is in the process of registration. The Appellants, therefore, maintained that the Respondents are not entitled to their claim. The Appellants counterclaimed as follows: “ i. Declaration of title to all that piece of land situate lying and being at South Ofankor, Asofa Residential Area in Accra and bounded on the North by the Lessor’ s land, measuring 100 feet more or less, on the South by the Lessor’ s land measuring 100 feet more or less, on the East by a proposed road measuring 100 feet more or less and on the West by the Lessor’ s land measuring 100 feet more or less and covering an approximate area of 0.23 acre. ii. Recovery of possession of the said land. iii. Recovery of special damages of One Thousand, Two Hundred and Fifteen Ghana Cedis (GH₵ 1,215.00), being the total value of the Defendant’ s ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 7 principal’ s building demolished by the Plaintiff and the Defendant’ s principal’ s building materials used by the Plaintiff. iv. General damages for trespass. v. Perpetual injunction restraining the Plaintiffs either by themselves or their agents, workmen and assigns from entering the land, occupying it or carrying on building construction thereon or in any way interfering and disturbing defendant’ s and co-defendant’ s peaceful; enjoyment and use of the land in issue.” 3.0 The Trial Court By a court order dated 16/06/2008, the Regional Surveyor was requested to undertake a survey of the disputed land and to superimpose the respective plans of the feuding parties on his survey plan. A land surveyor, Frank Wontumi from the Regional Survey Department, who surveyed as ordered by the court, tendered his completed work in evidence as Exhibit CW.1 without any objection. The witness testified that the Respondents’ indenture was not given; only the site plan was presented. He produced the site plan signed by the surveyor on 15/12/2006 and by the Regional Surveyor on 18/12/2006 in evidence as Exhibit 1. The first Respondent testified by himself. According to his testimony, he first paid a deposit on 25/05/2000 to the Nii Abetia Family of Asofa, the receipt in respect of this payment was produced as Exhibit A. The receipt regarding the second payment made on 01/06/2000 was also tendered in evidence by the first Respondent as Exhibit B. He also produced in evidence the Appellants’ indenture dated 01/02/2000 between Nii Aryeetey Tetteh of Asofan and Stephen Osei Owusu as Exhibit C. The first Respondent further produced his indenture in respect of the disputed land dated 24/06/2000, granted by Nii Ayitey Tetteh, the family head as Exhibit D. Yellow Card No. 03029/2000 dated 12/09/2000 ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 8 received from Land Title Registry and its attachments were produced in evidence as Exhibit E. The receipt issued to the Respondents by the High Court Registrar when the Oath of Proof in respect of exhibit D was sworn dated 11/09/2000 was tendered in evidence as Exhibit F. Court notes for 19/07/2004 in Suit No. 318/202 was produced in evidence as Exhibit G. The Writ of Summons in Suit No L/318/02 with its accompanying Statement of Claim was produced in evidence as Exhibit H. Exhibit J dated 08/03/2001was a receipt from the Survey Department representing payment made by the Respondents for a site plan. The Respondents called their first witness, Francis Ayaah Tetteh, PW1, a farmer who lives at Asofah and is currently the head of family. He confirmed that the Respondents bought the land from the Nii Abetia family. According to him, it was through his senior brother, the late Nii Alex Tetteh Aryeetey, that the Respondents acquired the land and that he, as the family linguist at the time, led the surveyor and six other persons to the site. He produced the document signed by the deceased head of family with the round type of stamp embossed as Exhibit K. The obituary of the deceased head of family was produced as Exhibit L. The site plan of a boundary owner called Mr. Korbiah, dated 08/11/2006 , was tendered as Exhibit M. A photocopy of page 12 of the publication made by the family in the Daily Graphic of 08/07/2006 requesting grantees of Asofa lands to have their grants regularised, was produced as Exhibit N. He also tendered in evidence the Appellants’ indenture dated 12/03/2006 between Nii Francis Ayaah Aryeetey and Stephen Osei Owusu as Exhibit 2. David Odartei Lamptey (PW2), a surveyor, was the Respondents’ next witness who identified the current head of the Abetia family and confirmed knowledge also of his deceased predecessor. He confirmed demarcating the Respondents’ plot to them in 2000 and proceeded with the registration in 2001. He testified that he had never prepared any site plan ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 9 for the Co-Appellant in respect of Asofa lands. He affirmed that the exact plot for which he prepared the site plan for the Respondents was number 250, which was the last plot that the late family head, Nii Alex Aryeetey gave out from the sector 2 or B layout. His further evidence was that the Respondents were the first persons for whom the family erected pillars. He testified that the Respondents’ documents were submitted for stamping and registration in 2001, but in the process of preparing the cadastral plan, by the Survey Department it was discovered that there was a slight difference between the family’s grid line and that of the Survey Department. They pursued the site plan from 2001 to 2006 and later prepared a new one for PWI to sign for the Respondents. He signed it in 2006, and in that same year, they got to know from the Respondents that someone had encroached on the land. The round stamp used in stamping documents was missing in 2000, and a new square stamp was procured in 2001. Any document executed with a round stamp after 2000 cannot be a document executed by the head of family. He was recalled to produce in evidence the two separate layouts of the disputed land, headed “Asofa Residential Layout Phase I” and “Land Property of Asofa Family as and P1, respectively.” On the part of the Appellants, the Co-Appellant, who resides in Holland and purchased the disputed property in 2000, testified by himself. He testified that he met the head of Asofa family, Nii Ayeetey Tetteh, with a friend named Panyin. Nii Ayitey Tetteh informed him that the land was personally his, so he paid him after he had shown him the bushy land. He then had the land cleared , and a foundation was erected for a six-bedroom self-contained house. According to him, his building had reached floating level when he left it in charge of his brother, the Appellant for Holland. He visited the property any time he visited Ghana until October 2006, when he was informed by the Appellant that there were people at the site who had demolished part of his building and had started constructing a fence wall around his land. He maintained that he was the first to ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 10 start development on the land and that his building had reached lintel level. He produced in evidence the indenture dated 01/02/2000 between Nii Aryeetey Tetteh and Stephen Osei Owusu as Exhibit 3. Next to follow was the testimony of the Appellant, Padmore Kwasi Ofosuhene. He testified that in December 1999, the Co-Appellant was in Ghana in search of land to buy. He produced in evidence the report dated 17/12/2007, which was the composite plan commissioned by the police headed Padmore Kwasi Ofosuhene (for Stephen Osei Owusu) v. Mr. & Mrs Rolland K. Quaynor as Exhibit 4. The letter the family wrote to the police, dated 28/05/2007 that they have realized the land belongs to the Co-Appellant and that the Respondents would be given a different land was produced in evidence as Exhibit 5. 4.0 Decision of the Court The trial High Court dismissed the claims of the Appellants on grounds inter alia that Exhibit 2 did not pass any interest in the disputed land in favour of the Co- Appellant or change the position of the Appellants on the disputed land as trespassers. Accordingly, the trial court made a declaration of title and recovery of possession orders to the land in favour of the Respondents against the Appellants. The relief of perpetual injunction was also granted in favour of the Respondents against the Appellants, and the Respondents were awarded GHC40,000.00 as damages for trespass. 5.0 Grounds of Appeal Aggrieved by the decision above, the Appellants lodged in the Registry of this Court a Notice of Appeal on 14/06/2013. The Appellants canvassed the following grounds of appeal set out in the Notice of Appeal found at page 320 of the Record ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 11 of Appeal (ROA) as: “ i. The learned trial judge failed to give full and proper consideration of the case of the Defendant and Co-defendant. ii. The learned trial judge erred in holding that the Plaintiffs’ title document legitimately conveyed title to the land in dispute to the Plaintiffs. iii. The learned trial judge’s disregard for the evidence of the members of the grantor’s family was erroneous and unfounded. iv. The learned trial judge erred in relying on the Plaintiffs’ site plan allegedly procured in the year 2006 in determining the exact location of the land in dispute. v. The learned trial judge’s finding that the Plaintiffs’ site plan supported their claim to the disputed land was based on a wrong evaluation of the evidence. vi. The judgment is against the weight of the evidence.” 6.0 Applying the Law and Analysis Rule 8 (4) of the Court of Appeal Rules, 1997 (C.I. 19) provides that where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated. The Appellants second ground of appeal that “the learned trial judge erred in holding that the Plaintiffs’ title document legitimately conveyed title to the land in dispute to the Plaintiffs” fails to give particulars of the error complained of. We therefore strike it out as an incompetent ground of appeal. A careful examination of the Appellants' six grounds of appeal shows that they can all be subsumed under the sixth ground of appeal, namely, that the judgment is against the weight of the evidence in determining which of the feuding parties owns the disputed land. ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 12 The ground of appeal that the judgment is totally against the weight of evidence is essentially an invitation to this court to review the entire evidence on record and to determine whether the trial court arrived at the right conclusions based on the facts and evidence. In the case of Nana Kwasi Broni & Yaw Ahima Boampong v. Kwame Kwakye & 2 Others [2017] DLSC 5463, that: “It is now settled and backed by a host of cases that where an Appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which if applied could have changed the decision in his favour, or that there are certain pieces of evidence that had 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.” In the case of Akuffo Addo v. Catheline [1992]1 GLR SCGLR 377, the Supreme Court pronounced that whenever an appeal is based on the omnibus ground that the judgment is against the weight of evidence, the Appellate Court has jurisdiction to examine the totality of the evidence before it and come to its own conclusion on admitted and undisputed facts. An appellant bears the duty to clearly demonstrate to the court the lapses in the judgment being appealed against. A dispute of this kind is a civil litigation. In all civil matters, the standard of proof is one on the balance of probabilities or preponderance of the probabilities, and the Respondents bear the legal burden of proof. Thus, where a party such as the Respondents in this case have sued for a declaration of title to land, the onus is on them to prove on a balance of probabilities ownership of the land in dispute. The law similarly places the burden on the Appellants to prove their claim on a balance of probabilities. This is the standard of proof hallowed in sections 10 (1) ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 13 11 (1), 11 (4) 12 (1) and 12 (2) of the Evidence Act, 1975 (NRCD 323) The Supreme Court cases of Adwubeng v. Domfeh [1996-1997] SCGLR 660, Odametey v. Clocuh [1989-90] 1 GLR 14 Jass Company Limited & Anor v. Appau & Anor [2009] SCGLR 265, Ackah v. Pergah Transport Ltd [2010] SCGLR 736, Acquie v. Tijani [2012] 2 SCGLR 1254 and Aryee v. Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] 1 SCGLR 721 all enunciate this legal principle that civil cases are decided on the preponderance of the evidence. Where the plaintiff has been able to lead sufficient evidence in support of his case, it is incumbent on the defendant to also produce sufficient evidence in rebuttal; otherwise, the defendant risks being ruled against on the issue. Pursuant to section 14 of the Evidence Act, 1975 (NRCD 323), this burden is not static or fixed; therefore, a party asserting a contrary position has the burden of adducing evidence in support of that position even if that party does not have a counterclaim. This has been enunciated in the case of Bank of West Africa Ltd v. Ackun [1963]1GLR 176. In the case of Jass Company Limited (supra), the apex court pronounced at 271 thus: “The defendant in an action for damages for trespass assumes a legal burden of proof when he counterclaims for declaration of title in his favour.” Therefore, in the case before us, since the action is one for a declaration of title, recovery of possession, damages for trespass and perpetual injunction in respect of the disputed land, the Respondents must discharge the burden of proof. Correspondingly, as the Appellants have also counterclaimed for declaration of title, recovery of possession, special and general damages and perpetual injunction in respect of the disputed land, they bear the burden of proving their counterclaim on a preponderance of the probabilities . A defendant who counterclaims for a declaration of title to land will not win on that issue only ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 14 because the original claim by the plaintiff failed, but would win on the strength of his own case and not on the weakness of the plaintiff’s case. See the case of Amidu Alhassan Amidu v. Mutia Alawiye & 6 Others (2019) JELR 68180. Sections 10 (1) and 11 (1) of the Evidence Act, 1975 (NRCD 323) state as follows: “10 (1) The burden of persuasion is the obligation of a party to establish the requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.” “11 (1) The burden of producing evidence is the obligation of a party to introduce sufficient evidence to avoid a ruling against him in this issue. The burden of persuasion in all civil cases is proof by preponderance of probabilities.” Adinyira JSC concisely clarified at page 736 in Ackah v. Pergah Transport Ltd (supra) that: “… The method of producing evidence is varied, and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed in establishing the requisite degree of credibility concerning a fact in the mind of the Court or tribunal of fact, such as a jury.” In the case of Acquie v. Tijani (supra) at 1258, His Lordship Anin Yeboah JSC (as he then was) on his elucidation of the burden of proof, also had the following to say: ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 15 “In any case, the law does not require a party to prove his case with absolute certainty in civil proceedings. A court must, however, satisfy itself that the evidence led on a particular issue is proved in accordance with the requisite standard required by law. In Hawkins v Powells Tillery Steam Coal Co Ltd (1911) KB 988 at 996, Buckley, L.J said: ‘When it is said that a person who comes to the Court for relief must prove his case, it is never meant that he must prove it with absolute certainty. No fact can be proved in this world with absolute certainty. All that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that the fact is so. That may be done either by direct evidence or by inference from facts. But the matter must not be left to rest in surmise, conjecture or guess.’” In actions for declaration of title to land particularly where both parties lay competing claims such as the case before us, the law imposes a threefold burden on each party, which are all derived from authorities on proof of title to land including the Supreme Court case of Mondial Veneer (Gh) Ltd v. Amissah Gyebi XV [2011] 1 SCGLR 466, where it was held at page 468 holding (4) thus: "In land litigation, even where living witnesses, directly involved in the transaction, had been produced in court as witnesses, the law would require the person asserting title and on whom bear the burden of persuasion, as the defendant's company in the instant case, to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It was only where the party had succeeded in establishing those facts, on the balance of probabilities, that the party would be entitled to the claim" These three elements, as derived from the case supra, are acquisition (root of title), identity of the land and possession. A claimant must prove all three (3) elements to succeed in an action for declaration of title. In this case, each party bears this burden in respect of their own claim, the Respondents for the reliefs ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 16 sought, and the Appellants for their counterclaim. On acquisition or root of title, a claimant must show how they came to own the land, that is, whether by grant, purchase, inheritance or customary allocation. A court must resolve, logically and chronologically, the traditional or documentary evidence of how the land was acquired by the claimant. See Kponuglo v. Kodadja [1933] 2 WACA 25, Mondial Veneer (Gh) Ltd v Amuah XV (supra) and Akoto II and Others v. Kavege and Others [1984-86] 2 GLR 365. If a claimant fails to prove acquisition, their entire case collapses, the other two elements become irrelevant. In this case, both parties have shown by documentary evidence that they both derived their grants from the Nii Abetia family of Asofa, save that they are both laying claim to the same piece of land, to wit, Plot No. 250. Nonetheless, the nature of the instrument conveying the interest of the parties will be examined in due course. The identity of the land is the next element a claimant must prove. He must show that the land they are describing in court is, in fact, the same land in dispute. This involves a two-pronged inquiry: first, prove the identity of the subject land (its physical location, boundaries, extent) and secondly, link that identified land to the specific land being claimed through a land title certificate, indenture, receipt, other documents, or oral evidence regarding customary or equitable interests. The court held in Anane and Others v. Donkor and Another [1965] GLR 188 that a claim for declaration of title or injunction must fail if the plaintiff cannot positively establish the identity of the land claimed with the land that is the subject matter of the suit. This requirement is dispensed with only where the parties are ad idem (in full agreement) as to the identity of the land. In this case, the parties are not in agreement. The final element, which is possession, may be actual possession, physical occupancy or control, or constructive possession, which is the right to control ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 17 over the property without physical occupancy. Section 48 of NRCD 323 treats possession as evidence of ownership. In Amankwa v. Nsia [1994-95] 2 GBR 758, Abban JA cited Lord Fitzgerald's dictum in Danford v. McAnnulty [1883] 8 App Cas 456 (HL) that possession is "nine points of the law," meaning a defendant with no counterclaim need only plead that he is in possession. However, where a plaintiff or claimant successfully establishes title over the land, the burden shifts to the person in possession to justify why an order for recovery should not be made against them. See Odunsi v. Koforij [1948] 19 NLR 7. In Ghanaian land law, a good instrument conveying an interest in land advances a claimant’s case in proving the root of title, but it does not automatically prove possession. The rationale is not far-fetched; a person can hold a perfectly valid deed to a piece of land they have never actually occupied, or that someone else has occupied for years, or that was later sold again to somebody else who moved in first. The document tells you how ownership changed hands, but it is silent on who is sitting on the land, or who has been exercising control over it since an interest was conveyed. That becomes a factual question that the court must answer separately based on the evidence before it. Nonetheless, documentary evidence generally remains the best form of evidence as it can be decisive. The Supreme Court in Robert Amassah Kotey v. Isaac Nartey and 3 Ors [2018] DLSC 3049 recognised that there are basically two (2) main ways of proving title, to wit, by documents or by overt acts of long possession. Furthermore, the case of Ofori Agyekum v. Madam Akua Bio [2016] DLSC 2858 affirmed that where oral histories are inconclusive, the court may determine title by reference to authentic documentary evidence together with other indices of ownership. The Court of Appeal in Hayfron v. Egyir [1985] DLCA 922 treated reliable conveyancing documents as highly probative and refused to let weak oral claims displace them. Accordingly, where the documentary chain is clear, authentic, and tied to the precise land in dispute, a ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 18 court may not need to decide the case by resorting to possession as the decisive evidential factor. My Lords, in the matter before us, we have the benefit of the testimonies of the parties and their witnesses as well as documentary evidence. The Respondents’ Exhibit D indenture dated 24/06/2000 stamped as LVB12183/2000 made between Nii Ayeetey Tetteh, head and lawful representative of the Nii Abetia family of Asofa as lessor and the Respondents herein as lessees for a term of 99 years. The Respondents say that soon after the grant, they went into possession and exercised various acts of possession on the land, including the construction of a concrete structure (foundation) and walls of a building on the land. The Appellants also contend that the Co-Appellant in this case was granted a lease dated 01/02/2000 by the same grantor, to wit, Nii Ayeetey Tetteh, head and lawful representative of the Nii Abetia family of Asofa, per their Exhibit 3, same as Exhibit C. It is also the case of the Appellants that immediately after the grant, they went into possession and commenced building activities thereon without let or hindrance. In the testimony of the Co-Appellant at page 171 of the ROA, he had the land cleared, and a foundation was erected for a six -bedroom self- contained house. According to him, his building had reached floating level when he left it in charge of his brother, the Appellant, for Holland. A perusal of the Appellants’ Exhibit C (see pages 323-325 and 329-333A of the ROA) dated 01/02/2006, shows that the lease was executed on 25/04/2000. The date of execution of an instrument is very critical. It marks the beginning of when the respective rights, obligations and duties of the parties take effect. The date an instrument is made is different from the effective date or commencement date of an instrument. Where there is a discrepancy between the date when the instrument is made and the date of execution, the latter will be deemed as the effective date of the instrument. Where the date of execution corresponds with the date the ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 19 instrument is made, but the instrument is silent on the effective date, the date of execution will be deemed as the effective date of the instrument. The date of execution of Exhibit C was represented by the square stamp of the Abetia Family of Asofa. This date corresponds with the Oath of Proof by Charles Mankata that he was present and saw the parties execute Exhibit C on 25/04/2000 (see page 333 of ROA). An Oath of Proof is the critical bridge that validates private agreements into publicly recognised land titles. In land documents, it is a sworn statement by an independent witness confirming that they saw the parties involved voluntarily and correctly sign the indenture. The Oath of Proof is also a means by which the legal authenticity of an instrument of title is verified, and most importantly, should a dispute arise years later, and the original lessor is deceased (such as in the case before us) or cannot be located, the sworn, witnessed oath provides solid and permanent evidence that the transaction originally took place on the designated date. In this case, it was on 25/04/2000 that the deed of lease was executed by the parties and therefore, that serves as the effective date of the lease and not 01/02/2006. Curiously, the supposed Registrar of Lands administered the oath of Proof using a retrospective date of 24/02/2000. This date, which again appears on the Exhibit C lease at page 329 of the ROA shows that the last ‘0’ in the year ‘2000’ appears suspicious, contrary to the claims made by counsel for the Appellants. Most importantly, the site plan attached to Exhibit C, at pages 325 and 329, shows that the Appellants were assigned Plot number 248 and therefore does not establish the Appellants’ claim that the disputed land was granted to Co -Appellant on 01/02/2000. The Co-Appellant stated under cross-examination at page 182 that he arrived in Ghana in December 1999. He further admitted that his lease was executed in ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 20 April 2000 by the deceased head of family but could not produce the receipt for the payment of the land in February 2000. At page 191 of the ROA, the following discourse transpired between counsel for the Respondents and the Co-Appellant under cross-examination: “Q: I put it to you further that Exhibit 3 was not executed on 1st February 2000. A: I paid for the land in February 2000. Exhibit 3 was signed in April. But I paid for the land in February 2000.” On page 195, he stated that he came to Ghana in December 1999 and stayed till February 2000. How did he even sign the document in April 2000? The Co- Appellant was emphatic in his answer under cross-examination: “Nii Osah: Are you saying therefore that you came to Ghana in December 1999 and stayed till February 2000. Osei-Owusu: Yes, I came in 1999 and stayed till February 2000.” My Lords, the Co-Appellant was requested to produce his receipt evidencing the purchase of the disputed land at a later date, as well as his travel passports to confirm the assertions above. At page 194 of the ROA, this is what transpired: “COURT: You were asked on the last adjourned date to produce in Court today extracts from your passports showing the dates when you were in Ghana in February, the year 2000 and you were also to produce the receipt in respect of the land in dispute. Have you brought them? ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 21 Osei-Owusu (Co-Defendant):- My Lord, the receipt is missing. The passport in respect of the periods in issue has expired and has been surrendered to the Dutch authorities.” Receipts for payment of land may be used as corroborative evidence to establish ownership, but they do not by themselves establish legal title to land. Legal land title requires a higher degree of proof. In the case before us, with the conflicting dates on the Exhibit C lease, the Appellants receipts of payment would have assisted this Court in confirming whether the claims by the Appellants that they were the first to enter the disputed land and take possession thereof and the first in time to commence the registration of the land in contention, were factual. The Respondents, per their Exhibit A and B receipts, showed that they made payments in two installments on 25/05/2000 and 01/06/2000, but went on the land shortly after the grant. It is to be noted that from the testimony of PW2, the deceased head of family had some building materials on the land which were sold to the Respondents. Furthermore, they commenced the registration of their Exhibit D lease in September 2000. The Yellow Card number 03029/2000 dated 12/09/2000 received from Land Title Registry and its attachments were produced in evidence as Exhibit E (see page 339 of ROA). The receipt issued to the Respondents by the High Court Registrar when the Oath of Proof in respect of Exhibit D was sworn, dated 11/09/2000, was tendered in evidence as Exhibit F (see page 343 of ROA). The learned trial judge noted that the site plan in Exhibit D was made on 15/12/2006 and thus, could not be the site plan referred to in Exhibit D. Nonetheless, he held correctly that the operative words and the parcels clause in Exhibit D dated 24/06/2000 show that the subject matter of the grant was Plot No. 250. The reference by counsel for Appellants at paragraph 28 of his address ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 22 that per the Notice of Application for Registration of Title to Land, published in the Spectator on 26/05/2007, and by which the Respondents’ grant was stated as “152” (see page 338 of the ROA), meant that the Respondents also suffered an error in their documentation. The said error, therefore, made the equities equal; thus, the first in time being the Appellants, ought to have prevailed, was flawed. My Lords, an explanation for the second site plan in respect of Exhibit D was proffered by the testimony of the first Respondent and PW2 David Odartei Lamptey, the family surveyor. Under cross-examination of the first Respondent by counsel for the Appellant at page 87 of the ROA, he referred the first Respondent to the fact that the documents he tendered had two site plans by which it becomes evident that his land is differently located. The first Respondent responded in answer that there was a variation in 2001. Their discourse went as follows: “Q: What necessitated the drawing of the second site plan drawn in 2006? A: We went to the grantors in 2006 to retrieve what was given them to sign and stamp. They could not trace it and they therefore gave me the 2nd plan. Q: You said in the year 2001 you went back to the grantors for a variation of the original site plan. Is that right? A: Yes, my Lord” Q: Was the site plan made for you? A: Yes, that is what I said was made. This particular error was seen between 2000 and 2001 when I processed my document from Land Title. Q: So as at now, have they given you any new site plan? A: The new site plan is the 2006 site plan I have referred to. The first site plan is still with them. Q: I suggest to you that you did not call for any new site plan to be made. ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 23 A: That is not true.” At page 88 of the ROA the cross-examination continued: “Q: The site plan dated 2006 was not issued by your grantors. It was issued by yourself A: That is so. The grantors signed the back of that site plan. Q: Your grantors never signed the back of that site plan. A: My grantors did Q: Your grantors never saw any defect in the site plan they issued originally. That is why they never bothered to issue you with a new site plan. A: They saw it. It was during the series of meetings we had with the grantors that those people who sold the land to the Defendant and Co-Defendant that they saw that particular defect. They then quickly brought the document on plot no. 248. Plot Nos. 246 and 248 belong to one Mr. Korbieh and Plot No. 250 belongs to me. The site plan of the Defendant shows 248 as their property.” Counsel for Appellants at page 91 of the ROA suggested to the first Appellant under cross examination that he deliberately failed to submit the 2000 site plan because he wanted to conceal the fact that the original site plan depicts a plot of land which was differently located from the land in dispute and that since the document he submitted to the court had two (2) site plans, he should have submitted both to the surveyor (see page 92 of the ROA). At page 98, their discourse went thus: Q: So, your title document does not contain the site plan you obtained from the Survey Department, is that the case? ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 24 A: My title document contains a site plan from my grantors but not the site plan from the Survey Department. My title document has a site plan from my grantors which was done in April 2001 from the Survey Department which was given to the grantors for their indorsement. That site plan is not available. They say they cannot trace it. It relates to Exhibit J. Exhibit 1 is what the family gave to replace the site plan that they could not trace. Q: So your title document does not contain the site plan you allege you obtained from the Survey Department in respect of which Exhibit J was issued. A: That is so, my Lord. The above testimony of the first Respondent was confirmed by David Odartei Lamptey, PW2, the family surveyor. Under cross-examination by counsel for the Appellants at page 138, PW2 explained further: “Q: As you said the other day, in the process of registration there was a difference in respect of grid lines about the plan you prepared for the Plaintiffs A: When we submitted the Plaintiffs document for registration, we realized that there was 30 feet shift with the grid. Q: So a new site plan was made in 2006. A: It was in 2001 that a new site plan was made. But the signing was done in 2006. “because the family head was sick. See also page 139 on the site plans not bearing the name of the surveyor who prepared it.” The Respondents’ witness PWI Francis Ayaa Tetteh also produced the site plan of a boundary owner called Mr Korbia-Amanfi, dated 08/11/2006, as Exhibit M (see page 351 of ROA) to show that he knows the boundary owners of the Respondents. This evidence was not assailed under cross-examination of the witness. ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 25 A site plan is principally a means of identification and registration and not a source of title itself. Therefore, where the parcel clause in the instrument adequately describes the land, the defect in the plan is a curable discrepancy, and the grant remains valid. A defective site plan or a site plan whose coordinates, boundaries, or contents are inconsistent with the parcel clause in any given instrument to which it is attached does not by itself invalidate the grant made in the said instrument. A site plan remains descriptive, not dispositive. In the case of Victoria Akoukor Akotia v. Tiokor Mawugbe and 2 Ors (2017) DLCA 4775, such a contradictory site plan became a point of contention on appeal, and the Court of Appeal, speaking through Dzamafe, JA (as he then was), had this to say regarding inconsistent dates on the instrument and on the site plan: “In the lay man’s language, the site plan is a survey sketch or map drawn by the surveyor, based on his points of demarcation, to show the exact location of a piece of land, the size and all dimensions as well as its relation to other fixtures nearby or adjoining. It is the physical description of the property, stating its character, where it is situated and its dimensions. The purpose of the site plan in short is to show the exact location of the property, its size, extent and all the fixtures attached. The site plan therefore has nothing to do with title nor ownership of the property in issue. A mistake in the site plan can always be remedied. It has nothing to do with title to the property. A wrong location of property by a survey map does not affect the ownership of the property. It can always be rectified. The value in producing site plans in conveyances is to introduce some degree of accuracy and certainty in identifying the land, the subject matter of the conveyance. In this case before us the site plan did perform that duty. It conformed to the description provided in the parcel’s clause. What went wrong with it was to introduce a date not consistent with that on the conveyance itself.” ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 26 The court also held that a valid site plan is not an essential requirement for a valid transfer of interest in land. Parties can validly transfer land without a site plan. The court buttressed this point, relying on sections 4 and 16 of the repealed Land Registry Act, 1962 (Act 122) and section 4(2) of the Conveyancing Act, 1973 (NRCD 175). The appellate court noted that these provisions treat a plan as germane mainly for registration purposes and accuracy, “if available,” not as a precondition for a valid conveyance. Accordingly, the learned trial judge made the right findings in respect of Exhibit D dated 24/06/2000. He found thus: - A reading of the Respondents site plan in Exhibit D, with the assistance of the grid lines, shows that the Respondents’ land on the said site plan and the land edged pink on Exhibit CW.I (the court-commissioned composite plan) fall at the same place. - The site plan in Exhibit D was made on 15/12/2006. - The operative words and the parcels clause in Exhibit D, however, show that the subject matter of the grant was Plot No. 250. - The Co-Appellant’s land (Exhibit C or 3) is different from the land edged pink on Exhibit CW.I read with the assistance of the grid lines. In the parcels clause of Exhibit 3, the Co-Appellant’s land is referred to as Plot No. 250, which appears to be same land granted to the Respondents by Exhibit D dated 24/06/2000. - Plot No. 250 on Exhibit 3 also appears to be the same land edged pink on Exhibit CW.I. The Appellants contended that, per a newspaper publication, the Abetia family of Asofa invited all grantees of the land in the area to appear before the family members for their title documents to be confirmed or regularised, following a judgment dated 19/07/2004 (Exhibit G). A photocopy of page 12 of the ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 27 publication made by the family in the Daily Graphic of 08/07/2006 for affected parties to contact the family for regularisation was produced as Exhibit N. The background to Exhibit N can be traced to Exhibit G judgment and Exhibit H Statement of Claim. It is the case of the Appellants that when they complied with the family’s directive, a new lease dated 12/06/2006, which is Exhibit 2, was executed in favour of the Co-Appellant in respect of the disputed land and that the original of this document is with the Lands Commission for registration. Among the reliefs obtained by the Nii Abetia Family of Asofa in the judgment of 19/07/2004 was a declaration that Asofa lands had not been acquired by any Executive Instrument to warrant any grants in respect thereof by the Lands Commission, an order revoking any grants made by the Lands Commission of any portion of Asofa lands to any person or persons or institution and an order of recovery of possession of all Asofa lands purportedly acquired under Executive Instrument 82 dated 12/05/1978. At page 109 of the evidence in chief of PWI, he stated that “We did so because some of them did not acquire the land in a proper manner. The publication was to enable us to know those who acquired the land from us.” PW2 under cross- examination at page 144 of the ROA stated that Exhibit N publication was directed at their boundary neighbours who were encroaching on their lands. He explained that they had four neighbours who had sold portions of the Asofa lands to others. They were the targeted for the regularisation of their grants, thus, the publication was not for the Respondents per se. PWI also tendered in evidence the Appellants’ indenture 12/03/2006 between Nii Francis Ayaah Aryeetey and Stephen Osei Owusu as Exhibit 2 (see page 357 of the ROA), which was issued to the Appellants after the Exhibit N regularisation exercise. Exhibit 2 was executed on 26/06/2007. The original of this Exhibit was never produced in evidence because the Appellants said it was with the Lands ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 28 Commission. PWI, Nii Francis Ayaah Aryeetey, who is the purported lessor in the Exhibit 2 lease, denied executing the lease on behalf of the Appellants, although he knew of the Gyaasetse, Nii Kofi Manu, who also allegedly thumb- printed the indenture on behalf of the family and admitted that the signature on the indenture was his. At page 119, the following discourse ensued: “Q: The Co-Defendant responded to this call and was issued with a new document by the family; is that not so? This was in the year 2006. A: If he had gone to a different place, I would not know. But he did not come to me. Q: You are Nii Francis Ayaah Aryittey. A: Yes my Lord. Q: In fact, you executed the document on behalf of the family as the family Head. A: I did not execute any document to him. He has not come to me.” At page 124 the cross-examination of PWI continued: “Q: The family does not know that the land belongs to the Defendant or Co- Defendant. There is an explanation to their document (Exhibit 2). Anytime we sell land to anybody, it is our secretary who prepares documents and traces the documents to the land Registry. Exhibit 2, I do not know if it was prepared beyond my knowledge and brought to me for my signature. Because part of the family supports the Co-Defendant, that may be the reason why this document was prepared without my knowledge for me to sign. Q: Are you telling the Court that as a Head of Family, you signed land documents without knowing what they were about? A: My Lord, because I am illiterate, that is the reason why we have appointed a secretary to check all documents that come to us for me to sign if there is no problem with it. ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 29 Q: So with respect to Exhibit 2, when your secretary signed as your witness, the Secretary looked at the document and indicated that it was okay for execution before you signed. A: Because the Secretary supports the Co-Defendant, the outs are two – A and B, and the plaintiffs occupied B, I was deceived and I signed unknowingly. Q: I suggest to you that your secretary does not support the Defendants. He was acting in accordance with the instructions of the family. A: The Secretary supports the Defendant. The reason is that he knows very well that we have sold all the plots B and yet he prepared Exhibit 2 on B that had already been sold. Q: This your statement about an area designated as A and another area designated as B is not true. A: It is true and the Secretary is aware.” The learned trial judge found correctly that the Appellants ' Exhibit 2 appears to be same land edged pink on Exhibit CW.1, and Plot No 248, which sits on top of it, appears to be the same land shown on the site plan I Exhibit 3 as having been granted to the Co-Appellant in February 2000. The Appellants’ Exhibit 2 cannot be salvaged despite the attempts by the Appellants’ counsel in his cross - examination of PW1. Documentary evidence is always stronger in the evaluation of evidence. Between April 2000, when Exhibit C was executed, and March 2006, when Exhibit 2 lease was made, the Appellants had no document or instrument by which they could lay claim to the disputed land, that is, Plot No. 250. The record of appeal does not also show any form of transaction by which the Appellants could claim ownership of Plot No. 250 before June 2007. In Nana Asiamah Aboagye v. Abusuapanyin Kweku Apau Asiam [2018] JELR 65224 the Supreme Court pronounced that: ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 30 “Where oral evidence conflicts with or is inconsistent with documentary evidence that has not been impeached on legal grounds or through cross examination, then the court must prefer the documentary evidence to the oral testimony.” However, in the case before us, the oral evidence was not impeached. PWI admitted to signing Exhibit 2 but explained that he was misled by the family secretary. In respect of the Respondents, PWI stated at page 123 of the ROA under cross-examination that no new indenture had been executed in favour of them after the regularisation exercise by him. He only indorsed their site plan for them. The Co-Appellant could also not tell the plot number assigned to him when he acquired his property in 2000. At page 184 of the ROA, this is what ensued between him and the counsel for the Respondents: “Q: The land that you acquired, what was the plot number that you were given at the time you bought it? A: There were several plots and mine was the 3rd one. They have now changed the system. Q: Are telling the Court that you do not know the plot number of the land you say you acquired at the time you acquired it? A: I know (sic) the number at that time, but I can’t remember. The family representative will come and give the number. Q: Look at Exhibit 3 and tell the Court the plot number. I suggest to you that the plot number was plot No. 248 according to Exhibit 3. A: That is so.” Counsel for Respondents challenged the Co-Appellant under cross-examination that in the year 2000 when Exhibit C (same as 3) was executed, the Nii Abetia ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 31 family were using a round stamp but his Exhibit C lease of 01/02/2000 had a square stamped. The Co-Appellant insisted that the family was using a square stamp. (ROA 187) However, this was denied by PWI at page 115 of the ROA as follows: “ Q: I suggest to you further that in the year 2000, when exhibit C was executed, you were using the square stamp well. A: In 2000 we were not using the square stamp. That is how we got to know that we did not prepare the document.” Q: I suggest to you that Exhibit K was fraudulently made for the sole purpose of assisting the Plaintiff in this matter. A: That is not true.” In arguing out the ground of appeal that the trial judge failed to give full and proper consideration of the case of the Appellants, counsel for the Appellants submitted at paragraphs 11 and 12 of his written address that the judge failed to avert his mind to the material evidence of Co-Appellant at page 170 of the ROA when he stated that the deceased head of family told them he had his own personal plot to sell to them. However, the Co-Appellant could not sustain this testimony under cross-examination. At page 187 of the ROA, he gave a different account: “Q: I put it to you further that the Head of Family did not tell you he was going to sell you his personal land as you claim. A: The land is not a personal of the Head of Family. He was Head of Family and he was selling it as Family property. Q: Have you informed the Court at any time that the Head of Family said he was selling his personal land to you? A: He told me about the land, and I thought the land was his personal land. Later he took me to the Family and I realised the land was Family land.” ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 32 Furthermore, at pages 187-188, the Co-Appellant stated under cross-examination that the original of Exhibit 2 indenture dated 12/03/2006 (issued in 2006 after regularisation exercise) was with his friend at the Lands Department and that it had already been registered. “Q: Where is the original of that indenture? A: I don’t have it at the moment. Q: Where is it? A: It is at the Lands Department. Q: Does it mean you are trying to register it? A: It has already been registered. It is with my friend at the Lands Commission.” Yet, when the Appellant was being questioned in respect of the original of Exhibit 2 under cross-examination by counsel for the Respondents, he stated that the registration had not been completed. At pages 208-209 of the ROA, he responded as follows: “Q: Do you have the original of the second document that was executed? A: The second document has been submitted to the Lands for registration. Q: Can you produce the original of the document? A: As I have said it is at Lands and I cannot produce it. Q: Can you tell the Court in which year and in which month it was submitted at Lands Commission for registration? A: I cannot remember, but it was after 2006. Q: Now we are in 2012, is that not so? A: It is so. Q: Now, who has been following up on the registration? A: The Co-Defendant said he gave it to his friend. His friend is taking it up. ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 33 Q: Has registration been completed? A: No my Lord. Q: Has there been any publication in the newspapers concerning that registration? A: I have not seen anything like that. Q: Are you telling the Court that registration has not been completed? A: That is what I have said. The Co-Appellant who could not produce his receipt evidencing the original purchase made in February 2000 (Exhibit C or 3) elected to register the Exhibit 2 indenture of 12/03/2006. The answers given by the Co-Appellant under cross- examination at page 189 of the ROA bear noting: “Q: Now, are you telling the Court that Exhibit 2 is a regularization or confirmation of the sale of the land to you. A: Yes, my Lord Q: I suggest to you that the Notice, Exhibit N, was a notice directed to only those persons who had acquired land from the Family and there was a problem with the acquisition. A: My Lord, after the land had been acquired it was published that those who had acquired land should bring their documents so that they would be confirmed. Q: Mr. Osei Owusu, when I asked you for your receipt you said it was not with you; can you tell the Court when you can produce the receipt? A: My Lord, the receipt is not here, but the 2nd document they issued is proof of receipt of payment.” My Lords, a scrutiny of the entire record of appeal in this case did not show a scintilla of evidence of registration of the interest of the Appellants in this case, not to talk about evidence of the registration which was said to be completed. The ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 34 suspension of the registration of the Respondents ’ interest because of the preparation of the new site plan in 2006 did not curtail the registration of their interest. The Appellants’ interest could not have superseded their registration when evidence of that purported registration was conspicuously missing from the scrutiny of this court. Counsel for the Appellants argued at paragraph 14 of his address that since the issue of documentation of the parties was problematic, the trial judge ought to have placed more emphasis on acts of possession by the parties to decide which of them gave a probable account. When a land title is established by valid documentary evidence, possession is rendered otiose. In this case, the principle of possession does not also inure to the Appellants’ advantage by the evidence on record, and the trial judge made the right finding in respect of possession. Pursuant to the Supreme Court case of Yehans International Ltd v. Martey Tsuru Family and Anor [2018] DLSC 2488 which was cited by counsel for the Appellants, both the Appellants and Respondents, who were claiming title to the disputed land, proved their root of title, their mode of acquisition and the various acts of possession exercised on the disputed land. However, the oral and documentary evidence produced in support of the Respondents’ case gave them the upper hand. There is evidence that the Respondents acquired the land and started work on it before the Appellants. The testimony by the Appellants that they started building the six-bedroom apartment in the year 2000 is not borne out by the evidence. The effective date of their conveyance was 25/04/2000 per Exhibit C dated 01/02/2000. There is no evidence on the record that the grantor permitted them to commence construction when the instrument had not been signed. The Respondents therefore established a better title to the disputed land, thereby ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 35 extinguishing any purported rights of the Appellants. Under cross-examination at page 190 of the ROA, the Co-Appellant responded thus: “A: It is not true. In the year 2001 the place was overgrown. It was only in 2006 that I got to know this.” Although both Appellants testified that the area was bushy when they first went to the site early 2000 to clear it up for construction of the six-bedroom apartment, the Appellant under cross-examination at page 210 of the ROA admitted that there was a structure on the building: “Q: Now, I put it to you that at the time you went to the site, it had already been cleared by the 1st Plaintiff. A: That is not true, my Lord. The place was bushy … Q: I put it to you further that those who share boundaries, at least two of them, had already began developing the site. A: My Lord, that is not true. At the time we went there, there was only one structure. Apart from that the whole place was bushy and we cleared it. Q: I also suggest to you that you demolished part of the structure being put up by the Plaintiffs. A: That is not true, my Lord. It was the Plaintiffs who demolished our building.” The submission by counsel for the Appellants at paragraph 43 of his address that the Co-Appellant’s testimony that he went into immediate possession of the disputed land and commenced construction by clearing the bushy land was not subjected to cross examination and therefore his testimony was not successfully impeached cannot be true. As can be gleaned above, when the Appellant was subjected to cross-examination regarding the same testimony, the evidence was shredded into pieces ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 36 Under further cross-examination of PW2 at page 143 of the ROA, stated thus: “Q: Are you also aware that when the Plaintiffs submitted their document the family realised that the land was differently located from where the land in dispute is? A: My Lord, it is not true. The land was a forest when I first demarcated the land and put the pillars of the former Head of Family on it. When we sold the land to the Plaintiffs, we put the Plaintiffs name on it. The late Head of Family put his materials on the land and that was sold to the Plaintiffs. Q: I suggest to you that it was the Defendants who deposited the building materials on the land. A: No my Lord.” Per the Appellants’ own evidence, it is to be observed that the land which the Appellants had authority to enter upon from April 2000 when the conveyance was executed, was Plot No. 248 per Exhibit C which is different from the land in dispute. It was in March 2006, that the Appellants purportedly obtained a grant in respect of the disputed land. Therefore, when they commenced the foundation of their six-bedroom property allegedly on the disputed land from February 2000, which reached floating level by April 2000, they had no authority to enter upon that land. As observed early on, evidence that the Appellants were permitted to enter the disputed land before the lease was executed on 24/04/2000 is lacking. The learned trial judge did not err when he found that Exhibit 2 did not change the position of the Defendants as trespassers in respect of the disputed land. Thus, the Appellants’ overt act of ownership alluded to by counsel for Appellants at paragraph 20 of his address were undertaken at a material point in time when the Appellants were bereft of any instrument conveying an interest in the disputed land in their favour. The Appellants were therefore stark naked when they ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 37 purported to undertake the construction of the six-bedroom property with the speed of lightning on the disputed land. The principle established in the cases cited by counsel for the Appellants at paragraphs 21 and 22 of his address, to wit, Tetteh v. Hayford [2012] 1SCGLR. 417 and Bruce and Quaynor [1959] GLR 292 at 294 that a grantor, lessor or owner of land is obligated to ensure that any grant he purports to convey to any grantee or lessee is guaranteed and to stand by to defend the interest so conveyed cannot avail the losing party in this case since they chose not to join the grantors to this suit. An observation that the trial judge correctly made in his judgment. The court below could not make any consequential orders against the Nii Abetia family of Asofa since they were not a party to the case. Court cases are decided by facts, admissible evidence and the law, even in criminal cases, not by pure emotion or sympathy. It has no place in determining the justice of a matter between two parties. In the Supreme Court case of Frimpong and Another v. Nyarko [1998-99] SCGLR 734, Edward Wiredu, JSC made a direct and forceful statement on the role of sympathy in adjudication: “The justice to be dispensed is justice within the law and not one of sympathy. Judicial sympathy , however plausible, can never be elevated into a principle of law. The appellants are out of court, and their case will be put out of court as it deserves according to law.” The statement made by counsel for the Appellants that “the unfortunate aspect of the 2nd Appellant’s (sic) case was that when the suit commenced his grantor who was the then Head of Family had passed on and the successor was rather in bed with the Respondents. The Headship of a family being a continuum it was expected that the current head of family would have insisted on the grant to the 2nd Appellant …” is therefore unfounded. ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 38 It is also worth reiterating the equitable maxim urged on the trial court by counsel for the Appellants in this case in his written address to the court below at page 229 of the ROA as follows: “Thus, assuming without admitting that the plaintiffs even had title to the land, the equitable maxim ‘qui prior est tempore, potior est jure’ which means ‘he who is stronger in time is the stronger in law’ must be applied in the settlement of this matter.” From the totality of the evidence adduced in this case, the above equitable maxim, when applied in the settlement of this matter, tilts the balance in favour of the Respondents. An analysis of the “legal trinity”, to wit, acquisition (root of title), identity of the land and possession as laid down in the case of Mondial Veneer (Gh) Ltd v. Amuah Gyebu XV (supra), weighs heavily in favour of the Respondents. The learned trial judge did not err in his evaluation of the documentary evidence in arriving at his conclusion. The learned trial judge’s statement at page 307 of the ROA that he found the documentary evidence more reliable and helpful than the oral testimonies of the witness from the family was unnecessary, and it is hereby set aside. That was an appropriate exercise of his discretion, which he could have done without more. On the totality of the evidence, both oral and documentary, the learned trial judge came to the right conclusions fully supported by the record. We do not find any errors warranting a reversal of the judgment. 7.0 Disposition The appeal is dismissed in its entirety. We award costs of GHC30,000.00 in favour of the Respondents against the Appellants. ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 39 FRANKLINA GESILA ADANU (MRS.) (JUSTICE OF THE COURT OF APPEAL) JEROME NOBLE-NKRUMAH (JUSTICE OF THE COURT OF APPEAL) GEORGE BUADI (JUSTICE OF THE COURT OF APPEAL) COUNSEL: EMEFA OSEI FOR PLAINTIFFS/RESPONDENTS FELIX NANA OSEI FOR DEFENDANTS/APPELLANTS ROLAND KWENORTEY QUAYNOR & ANOR V. PADMORE KWESI OFOSUHENE & STEVEN OSEI OWUSU - JUDGMENT pg. 40 SGD ……………………………………… FRANKLINA GESILA ADANU (MRS.) (JUSTICE OF THE COURT OF APPEAL) I agree SGD JEROME NOBLE-NKRUMAH (JUSTICE OF THE COURT OF APPEAL) I also agree SGD GEORGE BUADI (JUSTICE OF THE COURT OF APPEAL)