BEDU AND OTHERS v. AGBI AND OTHERS

JUDGMENT OF ARCHER J.A.

The plaintiffs-appellants, hereinafter called the plaintiffs, as representatives of the Dzutormawa family of Akpafu Todzi in the Volta Region sued the defendants-respondents, hereinafter called the defendants, for a declaration of title to a piece of land described in the statement of claim as follows:

"On the east by the family property of Matedua family headed by Efia Akrasi. On the south by the family property of Masakyiri family headed by Francis K. Odum of Akpafu Todzi. On the west by the Fio River. On the north by the property of three families:

(1) Dzakua family headed by one Doh who had died before the writ was issued,

(2) Kpadzia family headed by Atukura from Akpafu Odomi and lastly by the property of Masakyiri family of Akpafu Odomi whose head is Adra."

The plaintiffs also sought recovery of possession of the said land, perpetual injunction against the defendants, their agents or servants, damages for trespass, accounts for tributes and rents collected by the defendants and mesne profits. The basis for their claim was that the land in question was originally founded by their ancestor called Dzutor by settlement and that since Dzutor's death, all his lineal descendants, have been in possession and occupation of the land without interruption from anyone.

The defendants disputed the claim of the plaintiffs and asserted their claim to the land on the ground that the land was first settled by their own ancestor, one Tsitor, and that the land had been possessed by Tsitor's descendants, including the defendants, known as the Mako family. After hearing evidence from both parties, the High Court sitting at Ho dismissed the claim of the plaintiffs on the ground that although they had succeeded in proving, almost all the boundaries mentioned in their claim, they had failed to prove the northern boundary. The two grounds of appeal argued together before this court were that:

(1) The learned trial judge erred in law in holding that the plaintiffs-appellants have failed to prove their northern boundary.

(2) The judge erred in law in that he held that the plaintiffs-appellants have not discharged the onus of proof."

[p.240]

These arguments stemmed from the evidence of one witness for the plaintiffs. This witness, Francis Kwaku Odoom, in a previous litigation with the defendants at the High Court, Ho, had called the second plaintiff, Winfried Asamani, to testify that he, the witness, owned the land north of Odoom's land. The j