Court name
Court of Appeal
Case number
277 of 2004

Dedaa and Another Vrs Tiwaa (277 of 2004) [2007] GHACA 1 (13 July 2007);

Law report citations
Media neutral citation
[2007] GHACA 1
Akamba, JA
Kusi-Appiah, JA
Dotse, JA





Coram: Akamba, J.A.     (Presiding)

Kusi-Appiah, Justice of Appeal

Jones Dotse,   Justice of Appeal.




13TH JULY 2007.














AKAMBA, J.A:  This is an appeal from the judgment of the High Court Nkawkaw delivered on 25th February 2002 in favour of the plaintiff/respondent and dismissing the counterclaim by the defendants/appellants.

A brief summary of the background to this case at the trial court will certainly help us appreciate matters. The plaintiff/respondent (hereinafter simply the respondent) initiated her claims against the defendants/appellants (hereinafter simply the appellants) jointly and severally at the Nkawkaw High Court for the following reliefs:

(i) Declaration of title to all that piece or parcel of land situate, lying and being at Kyemase Abetifi-Kwahu (Plot No 39) with buildings thereon bounded on the North by a road measuring 100 feet more or less, on the south by plot No 40 measuring 100 feet more or less, on the East by plot No 38 measuring 80 feet more or less, on the West by a road measuring 80 feet more or less and containing approximate area of 0.24 Acre more or less.

(ii) Recovery of Possession.

(iii) Damages for Trespass

(iv) Perpetual Injunction restraining defendants and all those claiming through them from entering upon the said land for dwelling or any other purpose.


Even though the appellants were served with respondent’s writ of summons and statement of claim, they only filed their appearance without filing an accompanying statement of defence a lapse which prompted the respondents to file for entry of default judgment which the court accordingly granted. The appellants took steps to set aside the default judgment and filed a statement of defence and counterclaim to the respondent’s claims. They counterclaimed as follows:

  1. Declaration of title to all that piece or parcel of land which in (sic) her ancestral land lying and being at Kyemase Kwahu, Abetifi, in the Eastern Region of Ghana with the building numbered K 241 measuring 160’00 on the Northern side and bounded by a lane on that side and on the East measuring 80’00 and bounded by an ACCESS Road constructed by the 2nd defendant and on the South measuring 160’00 and bounded by a lane on that side.
  2. Recovery of possession.
  3. A perpetual injunction to restrain the Plaintiff, her customary successors, personal representatives, her assigns and agents and all who claim title from her from interfering with the land of the 1st defendant.”



The respondent (plaintiff) and the 1st appellant (defendant) are sisters of full blood. The 2nd appellant (defendant) is the son of the 1st appellant. The parties all hail from Abetifi Kwahu in the Eastern Region of Ghana. The facts of this case are a sad demonstration of how far our family structures are giving way to alien dynamics and the extent to which families are prepared to tear each other apart to achieve their personal economic ambitions.

The respondent lives in Accra and was about 95 years old at the time of the trial and prosecuted her case through an Attorney. The bone of contention between the two sisters and a son is over the ownership of the properties described as per the statement of claim and the counterclaim, the same being the house on plot No 39 Kyemase Abetifi. The respondent claims that she owns the disputed house situate on plot No 39 by virtue of the house being built for her by her deceased husband,Yaw Obour. Narrating the circumstances of her acquisition of the land, the respondent’s attorney stated that the respondent was persuaded by her late husband to look for land from her village for him to develop for her. The respondent and her husband lived at Agona Swedru at the time whilst the 1st appellant lived at Awomaesaw some six miles away from Swedru. Respondent invited the 1st appellant who accompanied her to Abetifi. There they approached the Chief who gave them the land. According to respondent, plot No 39 was given to her whilst plot No 38 was given to the 1st appellant. The necessary customary rites were performed to the Chief even though the land was their ancestral maternal land. The respondent informed her husband about the acquisition and proceeded to prepare the necessary documents on the land which same were tendered in evidence. Approval was sought and obtained from Koforidua to put up the building. Respondent engaged the services of one Asiamah, a contractor from Swedru to build the house. Materials were bought but before the building could take off, the respondent’s husband died in 1963. It was not until 1966 that the Swedru contractor eventually brought his workers to Abetifi to put up the house in dispute. They dug the foundation and built the house to its completion whilst one Bagyina, a carpenter and one of the workers of the Swedru contractor roofed the building and handed over the keys to the house to respondent after completion. The respondent states that she then after gave some of the rooms to the sister 1st appellant and her son to stay in until such time that she (the 1st appellant) put up her own house. She also reserved some for herself to stay in whenever she came to Abetifi from Accra.

The 1st appellant (defendant) for her part contends that she also acquired the land the subject of dispute from her uncle who was the successor to her mother and that the land is family property. The appellants admit that the respondent’s late husband begun the building on the disputed land for the occupation of respondent and appellants using blocks belonging to 1st appellant as well as his own but after his demise the structure could not be completed. It was at this stage that the 2nd appellant recounts being summoned by his maternal uncle, Chief Obour and challenged as the senior son to both women i.e. (respondent and 1st appellant)  to complete the structure by  adding more rooms for their occupation with their children, since no one else would do it for them. The 2nd appellant further states that both respondent and the 1st appellant welcomed the idea when he brokered the deal to both of them during a trip in his car to Abetifi. As a result of their positive responses to the proposal, the 2nd appellant testified that he stopped by the project site when they entered Abetifi. There were only straight blocks of building which were not to lentil level with the whole place overgrown with weeds. Later the 2nd appellant said he marshaled the necessary material to complete the building by making additional structures to ensure that each family member had a room.




The main ground of appeal we propose to deal is that the judgment is against the weight of evidence. It is obvious that the instant dispute is over land and as such it is governed by sections 11 (4) and 12 of the Evidence Decree (NRCD 323)which require that proof of the divergent claims , being civil claims, should be by preponderance of probabilities. In other words, the successful party must show that her claim is more probable than that of the other. From our evaluation of the evidence in the record of appeal, one fact stands out clear and that is that the disputed property is situate on ancestral maternal family land of both parties. This fact is conceded by both appellant and respondent even though the latter as per her Attorney appeared to be blowing hot and cold on the issue during cross-examination as would be demonstrated anon. In view of this state of affairs, whatever development was carried out by both parties or any one of them cannot escape the description of the property as family property with the right of life occupancy for the party or parties who developed it. [See Amissah-Abadoo vs Abadoo (1974) 1 GLR 110 at 125.] The customary law position is that where individuals and families first cultivate on land, the stool which first settled on the land had the allodial title in the land. Even though the occupation of land by individuals or families, quarters and sub-divisions of a community is a sine qua non to acquisition of land by a stool, any portion of unoccupied or vacant land which individual members of that community or tribe were able by their labour to reduce into their possession became the individual’s property, and land so occupied would belong to their families after the individual’s death. [See Nyamekye vs Ansah (1989-90) 2 GLR 152, holding 2].

In the judgment of the court below, the trial judge rejected the 1st appellant’s evidence on the construction of the house in dispute because he found the evidence ‘conflicting and inconsistent’.  To put matters in perspective, we think that the trial judge was obliged to consider the evidence of the plaintiff (respondent herein) in support of her claims first before descending upon the appellants’ evidence in support of their counterclaim. This is so because the respondent as plaintiff, has the initial burden of producing evidence of particular facts without which her claim cannot be sustained   Section 17 (1) and (2) of the Evidence Decree (NRCD 323) is the relevant provision on this. It provides:


 “17. (1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof.

(2)Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.”


Admittedly a party with the burden of producing evidence is entitled under section 11 (4) of NRCD 323 to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. This may be achieved by pointing to evidence introduced by another party which meets or helps meet the test of sufficiency. If these rules on the burden to be met were borne in mind, it would have been obvious to the trial judge that the respondent (plaintiff) led conflicting and inconsistent evidence on crucial matters in her effort to discharge that burden. For instance at pages 44 (line 44) to 45 (line 9) of the record of appeal the Plaintiff’s Attorney testified to the following:


“The house which was built on plot No 39 Abetifi i.e. H/No K 241 is the plaintiff’s ancestral land on her mothers side. I know the 1st defendant is the younger sister of the plaintiff therefore it would not be wrong for the 1st defendant to say that the land is also her ancestral land. But plot No 39 on which the building stands was allocated to the plaintiff Madam Yaa Tiwaa by the chief and not to the 1st defendant.”


Having positively stated the ancestral nature of the land in dispute supra, the Plaintiff’s Attorney at page 76 (lines 37 to 45) of the record of appeal, under cross examination, testified to the contrary as follows:


“Q. I am putting it to you that the house has been erected on an ancestral land.

  1. It is not true.

Q. And therefore a family house on a family land.

A. It is not true.

Q. The plaintiff is not entitled to any reliefs at all.

A. It is for the plaintiff and not a family house.”


During the cross-examination of the 1st appellant by the respondent’s counsel the following questions and answers were recorded at page 89 (lines 26 to 34) of the appeal record:


“Q. I am putting it to you that the land was acquired by the plaintiff.

  1. It is not true. I acquired the land but not the plaintiff when I acquired the land she was not there.

Q. It is an ancestral land for both of you.

A. It is true but when I was given the land the plaintiff was not there.”


Given the conflicting answers by the Plaintiff’s Attorney and their line of cross-examination on the nature of the land in dispute, whether ancestral land or otherwise, one wonders how the trial judge concluded at page 142 (lines 13 to 21) as follows:


“A careful study of the evidence adduced by plaintiff and her witness the 1stdefendant and the evidence of the 2nd defendant who is well educated and gave evidence in English language clearly shows that the land, the subject matter of the suit was acquired by the plaintiff and also House No K 241 Kyemasi Abetifi was built by the plaintiff on plot No 39 her ancestral land since 1966.”  [Underline for emphasis]


To further illustrate the confusion in the plaintiff’s case we refer to the line of cross examination by the plaintiff’s counsel of the 1st appellant at page 95 (lines 24 to 33) of the appeal record as follows:


“Q. You agree with me that ancestral land for you is equally an ancestral land for the   plaintiff because you are sisters.

  1. Yes I agree.

Q. I put it to you that at Abetifi it is not the Council which grants land but rather the chief and not the Council.

A. The person who demarcated the land for me is my witness. He was appointed by the Government to do the demarcation for me.”


One important principle which should guide any tribunal of fact in determining the credibility of a witness is the need to test the story of the witness as to its consistency with the probabilities that surround the currently existing conditions. In short, the test is whether the story of the witness is in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in those conditions. [See the British Columbia Court of Appeal (Canada) decision in Faryna vs Chorny (1951) 4 WWR (NS) 171]. Unfortunately, the lower court failed to be so guided. 

While it is not correct to state that the 1st appellant was a witness of the respondent as erroneously captured in the judgment of the trial court at page 142 quoted supra, the respondent’s only witness was PW1 Fuseini Wangara, who had nothing to say about the ownership of the land on which house No K241 was built except that he participated in constructing the building. On the other hand at page 108 of the appeal record the 2nd appellant who appeared to be admitting that the disputed land belonged to the respondent retracted from this to state rather that it belonged to his mother the 1st appellant. One cannot read into this to mean that the 2nd appellant was corroborating the testimony of the respondent when it is obvious from the trend of the witness’s narration that he had made a slip which he immediately corrected.

There is sufficient evidence on the appeal record to support the view that the disputed land is indeed the parties’ matrilineal ancestral land. As such ancestral family land the family at customary law has freehold interest in the land. It is only the family that can occupy, cultivate or build on it. The allodial owner cannot alienate or in any way deal in that land except with the consent of the proprietor or those for the time being in possession. Any purported alienation or disposition by the allodial title owner without the consent of the customary freehold proprietor is of no effect and does not bind the customary freehold proprietor who is himself the allodial owner of the ancestral land. [See Nyamekye vs Ansah (1989-90) 2 GLR 152; Ohimen vs Adjei (1957) 2 WALR 275]

Against the backdrop of the authorities quoted supra, the respondent was obliged to produce evidence to avoid a ruling against her as to the source of her grant. At page 39 of the appeal record the plaintiff’s attorney made no secret of the respondent’s case that she not only went with the 1st appellant to Abetifi, but that they got the land from the chief for which they had performed the necessary customary rites. The 1st appellant denies participating in this quest. Obviously therefore the Chief of Abetifi is the source of the respondent’s grant of the in dispute. There is no evidence as to who was this chief of Abetifi who granted this land. Equally absent but important is testimony to show whether the said chief was a member of the respondent’s and appellants’ family, given that the land is ancestral maternal family land or if he was not a member whether he sought the approval of the family. It is therefore amazing how the trial judge could have resolved all these unanswered questions in favour of the respondent who had the initial burden on these matters. Given the circumstances of this case it is only reasonable to presume that the Chief who purported to grant the disputed land to the respondent did so not as a member of the respondent and appellants family but at best as the allodial title holder for which he was not entitled to do. So that if indeed the Chief of Abetifi did grant the land to the respondent in these circumstances it could not bind the customary freehold proprietor who in this case is the head of the family of both respondent and appellants. In simple language the Chief could not grant what he did not have. It is our view that from the evidence on record the respondent had not led sufficient evidence to convince a tribunal of fact that the existence of the facts asserted by her are more probable than their non-existence. The respondent had not discharged her evidential burden sufficiently to warrant a determination in her favour. In concluding the evaluation of the respondent’s evidence, it is important to recap that the respondent acted per an Attorney whose powers are governed by Act 549 of 1998. The arguments of counsel were without reference to Act 549. The Act requires that a written notice specifying the reason why the power is given only where the donor is a trustee-See section 5 (3) (d) of Act 549. This stipulation for reasons to be given in writing does not appear to be a requirement for a holder of a general power of attorney as was the case with the respondent hence the objection by counsel based on this absence lacks merit.


Turning to the counter-claim it is important to observe that the appellants (as the counterclaimants) in a counterclaim assume the same burden that a plaintiff in the substantive writ had if they are to succeed. Put in another way, the appellants in this counterclaim assume the initial burden to prove that they are entitled to a declaration of title to that ancestral land at Kyemase, Kwahu, Abetifi in the Eastern Region described therein together with the building thereon numbered K. 241; recovery of possession of same and perpetual injunction to restrain the respondent (plaintiff), her customary successors, personal representatives, assigns and agents and all who claim title from her from interfering with the land of the 1st appellant (defendant). The demands of this ground of appeal that the judgment is against the weight of evidence are that this court is obliged to examine the totality of evidence before it and to come to its own conclusion as to the admitted and disputed facts. [See Akufo Addo vs Catheline (1992) 1 GLR. 377].   The Supreme Court in a recent decision put a seal on this principle when it held per Date-Bah JSC in Boafo vs Boafo (2005-2006) SCGLR 705 at page 715 the following:


“I think in exercising his powers the learned judge erred either in

  1. applying wrong principles, or
  2. taking into account unproven facts, extraneous matters,
  3. failing to take some important matters into consideration.

Under which circumstances, we as an appellate court would have the power to substitute our own finding on what the equities are in this case.”


 The 1st appellant’s contention in this matter is that she obtained the disputed land which is her ancestral maternal ‘Etena’ family land from both her uncle Kwasi Donkor and the mother’s successor Akua Biamah. 1st appellant denied going to any chief for the land. When she decided to put up a house on the land she first went to obtain a site plan from Government and a surveyor in the person of DW1 Martin Akuamoah was assigned to demarcate the land for her. DW1 attested to the fact that he worked with the Abetifi Local Council as their surveyor and draughtsman in charge of allocation of plots and in that capacity he demarcated two plots for the 1st appellant on 14/6/64. The respondent disputed the role of the DW1 in their cross-examination of the witness suggesting that by the 14/6/64 the land had already been assigned to the respondent by the chief. The most significant point in the appellant’s testimony is her claim that she obtained the land from her uncle Kwasi Donkor and the mother’s successor Akua Biamah both of whom are demised. While this fact was not seriously countered by the respondent the point when juxtaposed with the abundant evidence to the effect that the disputed land is indeed family land, makes one doubt the party that traces her grant rather to the chief, more so when the chief is not stated to be doing so as a member of the family. Hear the cross-examination of the Plaintiff Attorney by counsel for the appellants recorded at page 50 (lines 18 to 47) of appeal record:

 “Q. You remember you told this Court that this building is an ancestral land and so if the sister i.e. the 1st defendant stays in the building is an ancestral land it is not wrong.

  1. What I said was that the land is their ancestral land but the Plaintiff Madam Yaa Tiwaa went to the chief with drinks and provided some drink to the chief before the land was demarcated for the Plaintiff.

Q. So you agree that the land on which House No. K 241 Kyemase Abetifi is standing is an ancestral land.

A. What I am saying is that in Kwahu we do not buy land as pertains in Accra whether it is an ancestral land or a family land  it belongs to the chief and so if you want some of the land you go to the chief and he allocate a portion to you to build on it.

Q. I am suggesting to you that the Plaintiff and the 1st defendant never went to any chief to ask for land for which to put up a building.

A. They went.

Q. Since the 1st defendant knows that the land she was going to put up a building was an ancestral land she never went to any chief to ask for the land.

A. She went to the chief.

Q. Not even with Madam Tiwaa.

A. Both of them went to the chief.”


This therefore makes the appellant’s assertion that she obtained the land from their mother’s successor more cogent than the respondent who said her grant was by the Chief.  It is also obvious from the trend of the respondent’s attorney’s testimonies that he was orchestrating rather than recounting from personal knowledge. Hear the Plaintiff’s Attorney at page 51 (lines 25 to 48):

“Q. I am suggesting to you that the 1st defendant was herself trying to put up a building at Tia a suburb of Abetifi so she would not accompany the Plaintiff to look for a land.

A  She accompanied my uncle’s wife to ask for the land.

Q. You told the court that you were away for some time and did not know when the building was completed.

A. Yes I said so.

Q. Therefore you cannot tell who actually put up the building to its final conclusion.

A. When I came my uncle’s wife, the Plaintiff told me that it was the contractor by name Asiamah Swedru Contractor built the house and a carpenter by name Kwaku Begyina from Kwanyako roofed the building

Q. Did she tell you the year the Swedru Contractor built the house and the carpenter roofed the building.

A When she started I was here but when it was completed I was not here and they started in 1966 but when it was completed I was not here.”  [Underlined for emphasis]


In the event, we find the trial judge’s conclusion that the disputed land was obtained by the respondent from the Chief inconsistent with the facts on record and also not reasonably probable and same is set aside


The next crucial issue to determine relates to the building. Between the respondent and the appellants who put it up? In other words who owns it? From the testimonies of the parties whereas the respondent claims the building to have been constructed by her late husband for her and her family, the defendants assert that the construction was initiated by the respondent’s late husband using the 1st appellant’s blocks. The building was eventually completed by the 2nd appellant. The only concession made by the respondent’s attorney was that the 2nd appellant put up a kitchen when his mother the 1st appellant was going to stay in the house with no kitchen facility. This is how he stated it during cross-examination at page 53 (lines 4 to 35) of record:


“Q. I am suggesting it to you that when your uncle died i.e. husband of Plaintiff died there was one chief Donkor who came to the 2nd defendant and pleaded with him to continue the building. That Chief Kwadwo Donkor was a member of the paternal family I now say maternal side of the family. He called the 2nd defendant and suggested to him that he should complete the building started by the husband of the plaintiff for the use of the whole family.

  1. The truth is that after the house has been completed and Okomfour the 1st defendant was going to stay there, there was no kitchen and therefore chief Donkor told the 2nd defendant to go and build a kitchen there so that when his mother the 1st defendant goes there she will get a place to cook but not that it was the 2nd defendant who completed the building.

Q. I am putting to you that what you are saying is not true there was a kitchen in the house.

A. There was a kitchen attached but faced a room so whenever they cooked the smoke was going into the room that was the reason why chief Donkor suggested to the 2nd defendant to put up a kitchen for the 1st defendant his mother away from the room”


From the perspective of the appellants however, the evidence is that the building was started by Yaw Obour the respondent’s deceased husband using the 1st appellant’s blocks. At page 87 (lines 13 to 46; page 88 line 1 to 2) of the record she testified thus:


 “Ekyemase is where the land in dispute is situate. I conveyed the blocks from Etia to Ekyemase. They were 5,000 cement blocks (five thousand) cement blocks. Ekyemase is the same as Nsemankyire. The actual land where the building is situate is called Nsamankyire but the whole area is called Kyemase……..After bringing the blocks from Etia and also having my site plan and before God and man when I informed Yaw Obour, ya Obour is the husband of my sister the plaintiff when I informed him he started the building by using my blocks and together with his own blocks to start building the house in dispute i.e. the big building which comprised of six rooms. Why Yaw Buor came in was that when I informed Yaw Buor about the building I wanted to put up he said he could assist me to put up the building because my sister had told him that they had given birth to three children and they had all died and that my sister the plaintiff said she would not allow her husband to build for her because even as the husband had not built for her the children were dying and for that reason Yaw Buor the plaintiff’s husband said he would assist me to put up that house for all of us myself and my sister, my children and her children to stay at one place and in the same house.”


It is obvious from the evidence on record that the building was constructed to completion using resources of both sisters. This is so whether viewed from the perspective of the respondents who maintain that the appellants only put up an additional kitchen for the use of the 1st appellant or that of the appellants who state that the house was constructed using in part blocks owned by the 1st appellant  to lentil stage and eventually completed by the 2nd appellant. The evidence points to the conclusion that the building is the family property of the appellants and the respondent. This conclusion is inevitable in view also of the corroborative evidence such as non payment of rent by any of the parties living in the property since 1968 [See page 55 (line 21 to 22) of record]. The respondent’s attorney is not even aware of the conditions under which they occupy the house. (See page 75 lines 9 to 11of record). It is equally significant that before members of the family went into occupation of the disputed property, one Opanin Kwabena Osei who is the customary father of both respondent and 1st appellant was invited to pour libation and to slaughter a sheep. (See page 75 lines 37 to 48 of record)

In conclusion we find from the evidence on record that the disputed land is ancestral family land of both respondent and the 1st appellant; that the land was granted to the 1st appellant; that the house in dispute was put up with material provided by both parties and in consequence of which we grant the declaration that the said house No. K 241 being at Kyemase, Kwahu, Abetifi in the Eastern Region of Ghana is the family property of both respondent and appellants. To this extent we allow the appeal.


The last point we propose to deal is whether or not the action of the respondent is statute barred in view of the provisions of NRCD 54. The appellants pleaded in their amended statement of defence and counterclaim filed on 25th July 2000 pursuant to the order of court given on 29th May 2000 as follows: “21. The claim of the Plaintiff is statute barred by the provisions of the statute of Limitations NRCD 54.”  The appellants did not give the factual basis for their objection. However from the respondent’s attorney’s evidence at page 43 line 11 (of record) he returned from his travels in 1968 to find the property occupied. On the other hand the 2nd appellant testified that he went to complete the house in about 1972 [See page 108 line 36 to 37] and that the two families have been living in that house ever since. The appellants do not see the house as belonging to only the respondent but to the two families. Section 10 of NRCD 54 regulates the time within which an action can be brought to recover any land. It states as follows:


 Section 10 – Recovery of Land.

  1. No action shall be brought to recover any land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.
  2. No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (in this section referred to as “adverse possession”)
  3. Where a right of action to recover land has accrued, and thereafter, before the right of action is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to accrue until the land is again taken into adverse possession.”  


From the foregoing provision it is important to establish the date the cause of action arose to enable the court determine whether the time set has been met or not. Under these circumstances the two different dates of 1968 and 1972 proffered by the respondents and the appellants respectively as the dates they occupied the premises with their divergent claims both render the present action outside the twelve year (12) limit provided by the limitation decree supra. In conclusion, the respondent was out of time at the time she mounted her action on 15th April 1999. The appeal on this ground is accordingly allowed.

We make no order as to costs. 




                                                                                              J.B. AKAMBA



Justice Kusi Appiah: -     I agree                                                    KUSI APPIAH






Justice Jones Victor Dotse: -.  I also agree.



                               JONES VICTOR DOTSE






G.K.Quaye, Esq. for Defendants/Appellants

G.K.Apee Agyemang, Esq. for Plaintiff/Respondent.