JUDGMENT  
On 3rd September 2012, the plaintiffs issued out this writ of summons against the defendant in their capacity as the Chief of Koffe and Solowe Wulomo respectitively. On 29th April 2014, the plaintiffs were granted leave to amend their writ of summons and statement of claim within 5 days from 29th April 2014. No amended writ of summons was filed but in the amended statement of claim, the plaintiffs included their reliefs as follows; 
a) Declaration that the plaintiffs and the people of Koffe are the equitable owners of the land so described in the schedule below b) An order of perpetual injunction to restrain the defendant, its lessor, assignees, agents, workers, and all who cometh unto the land at their instance from interfering in the plaintiffs quiet enjoyment of the land c) Damages for trespass 
The schedule is as follows; 
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All that piece of land situated and located at Koffe Bortianor, measuring approximately 128.18 acres and bounded on north by a proposed road measuring 1400 feet more or less, on the south by proposed road measuring 1200 feet more or less, on the east by a proposed road measuring 4600 feet more or less and on the west by a proposed road measuring 4240 feet more or less. 
Reading the plaintiffs relief ‘a’ it can be inferred that the plaintiffs instituted this action in a representative capacity and should have endorsed the writ with a representative capacity as required by order 2 rule 4 of C.I 47 which says; 
1. Before a writ is filed it shall be indorsed a) Where the plaintiff sues in a representative capacity with a statement of the capacity in which the plaintiff sues.  
In Republic vs. High Court, Accra; Exparte Aryeetey (Ankrah Interested Party) (200304) SCGLR 398, the Supreme court held in its 2nd headnote that “The requirement that a party endorses on the writ the capacity in which he sues, is to ensure that a person suing in a representative capacity is actually invested with that capacity and therefore has the right to sue.” 
In this case the plaintiffs did not endorse the writ as a representative action but in paragraph 3 of the statement of claim, it was pleaded as follows “the land described in the schedule below is owned and possessed by the people of Koffe, a village near Bortianor. In paragraph 5 of the statement of claim, it was pleaded that in the year 1959, the government compulsorily acquired same with the intention of using it for irrigation projects. By the plaintiffs further pleading, the defendant without the consent of the plaintiffs entered unto this land in 2012 and dug trenches preparatory towards constructing a fence wall around the whole land. 
The defendant entered appearance and filed defence, which defence was amended on 27th March 2014. In the defendant’s defence, the capacity of the plaintiffs was denied and was specifically stated that the 1st plaintiff is not a chief of Koffe, which is an area within the Bortianor area, and that there is no chief or stool of Koffe.  That the 2nd plaintiff is also said to be a member of Solowe of Bortianor, which is a priestly clan at Bortianor. The defendant also pleaded that the land that it occupies is part of the land acquired by the government and since no compensation has been paid, the Bortianor stool is in discussion with the government on the payment of the compensation or release of the land to the stool. The defendant however acquired the land from the Nii Kwei Arku family which family acted per Nii Akotey IV Dzasetse and Acting Bortianor Mantse and the lawful 
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representative of the Nii  Kwei Arku Family of Bortianor by way of lease dated 1st November 2000 and has since been in possession of the land and started constructing houses on it, which houses are at various stages of development. That the defendant regularized the acquisition with Nii Kwei Arku V, the occupant of Bortianor stool. 
At the close of the pleadings the following issues were set down for determination; 
a) Whether or not the village of Koffe was discovered and settled by the plaintiffs’ ancestors? b) Whether or not Koffe lands are different from Bortianor lands? c) Whether or not the plaintiffs are the Chief and Wulomo of Koffe respectively? d) Whether or not the plaintiffs were in possession of the land, the subject matter of the suit prior to government’s compulsory acquisition in 1959? e) Whether or not the plaintiffs remained in possession of the land the subject matter of the suit after the government compulsorily acquired the land but failed to utilize that land for the purpose for which it was acquired? f) Whether or not the plaintiffs are the equitable owners of the land the subject matter of this suit? g) Whether or not the Nii Kwei Arku family of Bortianor can validly make grants in respect of the land situated and lying at Koffe and being Koffe lands? h) Whether or not the defendants have since July 2012 trespassed unto the land, the subject matter of the dispute. i) Whether or not the defendants can validly claim title from the chief of Bortianor in respect to the land the subject matter of the dispute? 
The following are the additional issues also set down; 
1. Whether or not the plaintiffs have capacity to bring action in respect to the land in dispute which is a state acquired land? 2. Whether or not the defendant has been in possession of the land in dispute since the year 2000 and constructed numerous uncompleted buildings thereon? 3. Any other issues arising from the pleadings. 
The 1st plaintiff gave evidence and called three witnesses, the 2nd plaintiff however did not lead any evidence. The defendant gave evidence through Mr. Derrick Appiah Kyei who claimed to be the general manager of the defendant. 
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From the pleadings of the parties and their evidence, it is admitted by all the parties that the land in dispute falls within land acquired by the government. Having admitted by all the parties that the land in dispute falls within government acquired land, most of the issues set down for resolution may not be relevant. The presence of the Bortianor stool in this case would have been necessary in the resolution of some of the issues. D.W.1 however, gave evidence as Mantse of Bortianor. 
I believe that issues ‘d’; ‘e’; ‘f’; ‘g’; ‘h’; and ‘i’ together with additional issues 1 and 2 may be relevant but other issues may be resolved where necessary. I believe additional issue 1 is very relevant and must be determined first. 
From the pleadings of the parties and their evidence, the land in dispute falls within government acquisition. I believe the parties could have argued this issue on legal grounds as it is trite that when facts are admitted in pleadings, there is no need to lead evidence in proof. 
In paragraph 5 and 6 of the plaintiffs’ amended statement of claim it was pleaded as follows; 
5. Plaintiffs shall contend that sometime in the year 1959, the government compulsorily acquired same with the intention of using it for irrigation projects under the name irrigation project 2 6. Plaintiffs say that no compensation was paid to them by the government, however over the years the government did not use the land for the purpose for which it was acquired and for that matter they, the pre-acquisition owners, have been in undisturbed possession for several years in the exercise of their equitable interest in the land.  
The defendant also pleaded in its paragragphs 10-14; 17; and 18 of the amended statement of defence that, the land in dispute falls within land that was acquired from the Bortianor and other stools, and that the stool has been making demand for the payment of compensation or release of the land to the stool. 
To these pleading in the amended statement of defence, the plaintiffs filed a reply in paragraph 11 of the reply as follows; 
11. Plaintiffs in answer to paragraph 10 of the amended statement of defence says they are aware that some owners of land within that area whose lands were affected by the executive instruments compulsorily acquiring those lands to the state, had at one point or the other put in application for the release of the lands to 
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the stools. However, that in itself does not grant the Bortianor stool the right to claim the plaintiffs’ part of the land if indeed and in fact the Bortianor stool lands properly acquired by the state do not extend to that of the plaintiff.   
The import of the pleadings of the parties above referred to is that the plaintiffs are aware of the compulsory acquisition by the government and the effort of the stools whose lands were compulsorily acquired in getting compensation paid or getting the lands released to them. 
Apart from the pleadings, the 1st plaintiff gave evidence in chief on 26th November 2014 that in 1959, the government acquired the land at Koffe for farming, from the Koffe people. The government did not pay any compensation. Whilst the first plaintiff was under cross-examination, he admitted that the land in dispute forms part of government land, and as at today the land is still government land. P.W.1 gave evidence that he is aware that the government acquired these lands from Bortianor, Kokrobite and Weija stools for an irrigation project and that the land in dispute falls within the acquired lands. 
Since the plaintiffs admit that the land in dispute is government land, do they have the capacity to institute this action assuming the the government acquired the land form Koffe? What interest do the plaintiffs have in this government land? 
By the authority of Memuna Moudy vs. Antwi (2003-04) 2SCGLR967 it can be said  that even if the land was acquired by the Government from the Koffe stool, the plaintiffs will not have the capacity to initiate this action, since the Supreme Court held in its holding that “land compulsorily acquired by government under the Public Lands Ordinance, CAP134 (1951 Rev) vest automatically in the government upon a publication in the gazette and further that by virtue of Section 11 of the ordinance, the acquisition operates to bar and destroy “all other estates, right, titles, remainder, reversions, limitations trusts and interests whatsoever of and in the lands acquired. 
Even if the land were to be for Koffe as claimed since the plaintiffs admit that the government has compulsorily acquired it, the plaintiffs as the representatives of the people of Koffe have no capacity to claim the reliefs that they are claiming against the defendant, since all interest Koffe  had in the land was forever barred or destroyed upon a publication of the compulsory acquisition in the gazette. 
Even though the plaintiffs did not endorse the writ and the statement of claim with the capacity that they have instituted this action, it was pleaded in paragraphs 1 and 3 of the amended statement of claim as follows; 
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1. Plaintiffs are Chief and Wulomo respectively of Koffe near Bortianor and bring this action in that capacity. 
3. Plaintiffs say that the land described in the schedule below is owned and possessed by the             people of Koffe a village near Bortianor.  
For this pleading, the defendants denied and pleaded that the 1st plaintiff is a member of the Solowe of Bortianor which is a priestly clan at Bortianor and that Koffe is an area within Bortianor. The 2nd plaintiff did not lead evidence but in the 1st plaintiff’s evidence in chief he gave the following evidence 
Q: Do you know the 2nd plaintiff; that is Numo Commey? 
A: Yes my Lord, I know the 2nd plaintiff 
Q: Who is he? 
A: He is the Wulomo of Bortianor, he is a member of Nii Komiteey family 
When the 1st plaintiff was under cross-examination on 15th January 2015, the 1st plaintiff gave the following answers; 
Q: The 2nd plaintiff, Nii Commey the Wulomo is a native of Bortianor? 
A: Yes my Lord 
Q: He is resident at Bortianor? 
A: Yes my Lord 
P.W.1 also said the plaintiffs are indigenes of Bortianor 
Q: You admit that up to date both Ofoliwe and Solowe people still live in Bortianor? 
A: Yes my Lord 
P.W.3 gave the following answer under cross-examination 
Q: This D.C Obgami was he a native of Bortianor?  
A; Yes my Lord, he was a native of Bortianor 
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The import of the evidence from the 1st plaintiff and his witnesses is that the plaintiffs are indigenes of Bortianor. As for the 2nd plaintiff, the 1st plaintiff’s own evidence is that he is the Wulomo of Bortianor and that he is not Wulomo of Koffe. 
Not being from Koffe as has been pleaded but being from Bortianor, the plaintiffs have no capacity to initiate this action for and on behalf of the people of Koffe, even if the land in dispute belong to the Koffe people. 
It has been held in Sarkodee I vs. Boateng II (1982-83) GLR715 that “It was elementary that a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence. And it was no answer for a party whose capacity to initiate proceedings had been challenged by his adversary to plead that he should be given a hearing on the merits because he had a cast-iron case against his opponent..” 
In Fosua & Adu-Poku vs. Dufie (Deced) and Adu-Poku Mensah (2009) SCGLR310, it was held in the 6th holding that “On the facts of the instant case, the issue whether the plaintiffs had the requisite capacity to sue was mad an issue for trial…” 
Capacity to sue was a matter of law and could be raised by a party at any stage of the proceedings even on appeal. It could also be raised by the court suo motu. Since the plaintiffs pleaded that the land is for the people of Koffe, and evidence led by the plaintiffs’ own witnesses show that the plaintiffs are indigenes of Bortianor, and the 2nd plaintiff is the Wulomo of Bortianor, the plaintiffs will have no capacity to initiate this action even if the land was for the people of Koffe. 
From the analysis above, I hold that the 2nd plaintiff is not the Wulomo of Koffe. 
With regard to the issue of the 1st plaintiff being the chief of Kofffe, I do not intend to comment on that since this court has no jurisdiction in chieftaincy matters. There is however contradictory evidence that D.C. Ogbame was not a chief. Since they said Koffe land is said to be stool land, D.C. Ogbame could not give it to P.W.3 and his father, since he was not a Chief. 
On original issue ‘b’, the evidence adduced by the plaintiff supports the defendant’s case that Koffe is an area within Bortianor. 
The 1st plaintiff’s evidence is that Koffe and Bortianor have a relation. The eldest son of Nii Commey left Bortianor and founded Koffe. He went to farm there. To a question by the plaintiffs’ own counsel 
Q: When he went there (Koffe) what did he do? 
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A: He went to farm there 
To another question, the 1st plaintiff answered as follows; 
“When he founded Koffe, he farmed with his family and sold the products at Oduponkpehe, which is now Kasoa. Because they hailed from Bortianor, they went there during festival time. 
P.W.1 also gave the following evidence under cross-examination; 
Q: Are you aware that at a point in time the government of Ghana acquired these land from the Bortianor stool, Kokrobite stool, the Weija stool for irrigation project? 
A: Yes, I am aware 
Q: You know the land in dispute falls within the acquired lands? 
A: Yes I am aware 
Q: At a point in time, the Bortianor stool, Krokrobite stool and Weija stool petitioned the government for the release of the land to them? 
A: Yes I am aware 
If the government acquired land from the Bortianor, Kokrobite and Weija stools for irrigation project, but not from the Koffe stool and the land in dispute falls within the acquired lands, then the land in dispute will not be for Koffe but for Bortianor or Kokrobite or Weija. 
P.W.3 gave evidence that he is at Bortianor but farm at Koffe and that Koffe is a farming area within Bortianor. P.W.3 gave further evidence that since the land was being developed, he went back home; that is Bortianor. 
The import of these pieces of evidence is that since Koffe is a farming area within Bortianor, they go there to farm and come back to Bortianor. This may explain why the 1st plaintiff gave evidence that the 2nd plaintiff is the Wulomo of Bortianor. Apart from Bortianor that is claiming this area, the other two stools have not claimed this land. 
The 1st plaintiff tendered exhibit A as the site plan covering the land that he claims to belong to Koffe. Exhibit A covers an area of 3,245.60 acres and this is more than what was contained in the schedule. Whereas the schedule said the land is 128.18 acres, exhibit A said the land covers 3,245.60 acres. Exhibit A has not been signed by the surveyor who prepared it. The Director of the Survey or his representative has also not signed it as 
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required by Regulation 3(1) of the Survey [Supervision and Approval of Plans] Regulation 1989 (L.I 1444). In Nortey (No.2) vs. African Institute of Journal and Communication and Others (No. 2) (2013) ISCGLR 703, in holding 4, the Supreme Court held that “The Court of Appeal had rightly held that exhibit A (a site plan) tendered in evidence by the plaintiff in apparent proof of his claim of title to the disputed land i.e. as his root of title had no probative value because it was not signed by the Director of Survey or his representative, contrary to regulation 3(1) of the Survey (Supervision and Approval of Plans) Regulations 1989 (L.I. 1444). The said regulation 3(1) made it mandatory for plans of any parcel of land attached to any instrument for registration of such instrument to be approved by the Director of Surveys or any official surveyor authorized in that behalf…” 
No evidence was given as to how exhibit A came into existence. It has also not been registered to give it validity. There is no indication in exhibit A as to who that land shares boundary with. Which boundary owners were present when the 1st plaintiff went to demarcate his boundary? It has been held in the case Anto vs. Mensah (3WALR) 218, that it is a principle of native custom that where a boundary is to be demarcated this is to be done by the owners of the bounded areas acting in conjunction with each other. A unilateral attempt to demarcate by one owner is ineffective. Again in the case of Oppong Kofi and Other vs. Attibrukusu III (2011) ISCGLR 176, the Supreme Court held in its 7th holding as follows “The mode of marking out the boundaries of the land specified in the statutory declaration was not an acceptable customary law practice. The customary law was that a person could not unilaterally fix a common boundary between his land and that of an adjoining owner…” 
On the other hand, the defendant tendered exhibit 2, which is a supplementary affidavit filed by the 1st plaintiff in support of their application for interlocutory injunction. In that supplementary affidavit, the plaintiff exhibited terms of settlement in a suit entitled Nii Komey Otsi Atta IV vs. Nii Akotey IV and 4 others. 
The plaintiff gave evidence that Nii Komey Otsi Atta IV was Solowe family head and that he was his blood relation. In the Nii Komey Otsi Atta IV vs. Nii Akotey IV and 4 others case, the terms of settlement that was accepted by Nii Komey Otsi Atta included the statutory declaration that was registered by Nii Kwei Arku IV on 30th June 2005. Mr. Justice G.A. Aryeetey who sat in the High Court Accra gave the following ruling; 
“This is an originating summons filed on 21st June 2005 for the determination of the following questions; 
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1. Whether by this consent judgment the parcel of land registered as LR No 122/1997 reverses to the Bortianor stool and can only be administered by the incumbent chief of Bortianor and his elders? 2. Whether the consent judgment having been arrived at from plaintiff’s allegation of fraud against the defendants, the grants made by the 2nd defendant to other parties are null and void as the 2nd defendant obtained the parcel of land registered as LR No. 122/1997 in fraudulent circumstances? 
The terms of the settlement filed by the parties, which form the basis of the consent judgment are as follows; 
1. That Bortianor lands are stool lands as registered per the declaration by Nii Kwei Arku IV as LR 5/1978 2. That the grant of 805 acres of land to Alrotech Co. Ltd. Purporting to be a grant form Nii Kwei Arku family is not a proper grant of Bortianor stool lands 3. That it is only the Bortianor stool represented by Bortianor Mantse with the concurrence of the accredited elders that can grant Bortianor stool lands. 4. That the parties have agreed that the above-mentioned grant to Alrotech Co. Ltd. be expunged from the records of the Lands Commission. 
By the consent judgment entered for the parties on 21st June 2004 all the Bortianor lands are stool lands as registered per the statutory declaration by Nii Kwei Arku IV as LR5/1978. The court therefore declares that it is only the incumbent chief of Bortianor and his elders who can grant or alienate Bortianor stool land…” 
The statutory declaration of Nii Kwei Arku IV has been tendered as exhibit 9. Even though the contents of exhibit 9 are not very clear, the site plan attached to the statutory declaration indicates that it covered 13,959.68 acres of land. 
Considering the fact that the plaintiffs exhibit A covers only 3,245.60 acres, it is presumed that the 3,245.60 acres of land falls is within the 13,959.68 acres of land registered by Nii Kwei Arku IV. I am strengthened in this presumption because the plaintiff admits that the land, within which the defendant’s land falls is within the compulsorily acquired land by the government. The plaintiff has however not produced any evidence that when the government acquired the land, Koffe put in a claim for compensation. Section 4(1) of the State Lands Act, 1962 (Act 125) says; 
“A person who claims a right or has an interest in land subject to an instrument made under section 1 or whose right or interest in that land is affected shall, within six months 
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form the date of the publication of the instrument made under section 1, submit in writing to the Lands Commission 
a) Particulars of the claim or interest in the land of that person b) The manner in which the claim or interest is affected by the executive instrument issued under this Act c) The extent of the damage done  d) The amount of compensation claimed and the basis for the calculation of the compensation 
In the original Act, the period for submitting claims was three months but the State Lands (Amendment) Act (Act 586) of 2000 amended the three months period to six months. Apart from the fact that the plaintiff has not been able to lead evidence that Koffe has any interest in the land, they have also not led any evidence that after the acquisition Koffe made a claim on the government to release the land. In exhibit 10, Nii Anto Nyame II, Weija Mantse; Nii Ofei, Mantse of Kokrobite; Nii Akwetey IV, Bortianor Mantse; Nii Emmanuel A. Tagoe, Asafoatse and Secretary of Kokrobite; Nii Arde Nkpa, Mantse of Plerno; and Nii Ali Agbonarh, Tuba Mantse wrote to the Ministry of Food and Agriculture for the executive instrument 60 and 61 to be revoked. There is no indication in exhibit 10 that Koffe took part in the request to government to revoke the two executive instruments. I therefore hold that Koffe does not own any part of the land acquired by the government for the irrigation project.  
Since, the land occupied by the defendant falls within the land acquired by the government for the irrigation project and Koffe represented by the plaintiffs does not own part of the irrigation land, I hold that the land claimed by the plaintiffs is part of the land acquired for the irrigation project from the Bortianor stool and that the land claimed by the plaintiffs is part of Bortianor land compulsorily acquired by the government. Again, even if Koffe has land as claimed by the plaintiffs, that land cannot be the land occupied by the defendan since the plaintiffs have not been able to prove the boundaries of the claimed land. 
In the plaintiffs’ statement of claim, the boundaries of the land was given as follows “bounded on the north by proposed road measuring 1,400 feet more or less, on the south by proposed road measuring 1,200 feet more or less, on the east by a proposed road measuring 4,600 feet more or less, and on the west by proposed road measuring 4,240 feet more or less. The land is said to be located at Koffe Bortianor, and measures approximately 128.18 acres. 
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The defendant denied paragraph 3 of the amended statement of claim and pleaded further that that land is part and parcel of a larger land which was the subject of a statutory declaration. 
The plaintiffs’ averment having been denied, the plaintiffs are under an obligation to prove the boundaries, as held in Barkers Wood vs. Nana Fitz (2007-08) SCGLR 879, where the Supreme Court speaking through Dr. Date-Bah JSC at page 891 considered section 10(1) of the Evidence Act 1975 (NRCD 323) and held that “Since the defendant claimed that the admitted oral contract between himself and the plaintiff had been rescinded by mutual agreement, the persuasive burden clearly was on him to prove that assertion ei incumbit probation qui decit non qui negat. This burden of persuasion remains on the defendant even if the evidential burden shifts as a result of any assertion made by the plaintiff in response to this claim. The common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim”.  
Since in this case, it is the plaintiffs who claimed a particular piece of land, the plaintiffs were under an obligation to prove the boundaries of the land as held in Akoto II and Others vs. Kavege and Others (1984-86) 2GLR 365, where the Court of Appeal considered the issue of adjoining boundary between two villages or towns. The court considered the cases of Egyin vs. Aye (1962) 2GLR 187 at 191 where Van Lare JSC answered a similar point in the Supreme Court as follows “It was submitted on behalf of the appellant that the issue in the 1920 consolidated actions related to boundary only and that title was not involved. The submission is ingenious but misconceived as a boundary dispute between owners or occupiers of adjoining lands necessarily raises title to the section of land enclosed between the two conflicting boundaries asserted by the opposing parties.” 
The Court of Appeal again referred to the case of Abakam Effiana Family vs. Mbibado Effiana Family (1959) GLR362 at 363-36, where the Court of Appeal held that: 
 “We think that this case being in the nature of a boundary dispute between two adjoining land owners, and the burden therefore rested upon the plaintiffs to establish with particularity the extent of the land which they claimed and the boundaries of it…” 
The Court of Appeal after analyzing these cases held that “the boundaries of the land were not established. No boundary neighbours were called to testify to the ownership of the adjoining lands. The failure to prove boundaries even of only one side was fatal and the fact that the defendant had counterclaimed did not lessen that burden.” 
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In this case, the 1st plaintiff did not make any effort to lead evidence on the boundary as pleaded. The 1st plaintiff however led evidence on the boundaries of Koffe town. 
These were the questions and the answers given by the 1st plaintiff in his evidence in chief 
Q: Where exactly is Koffe? 
A: Koffe is a town after Bortianor 
Q: This Koffe does it share boundaries with any town? 
A: Yes my Lord 
Q: Can you mention the towns? 
A: These towns are Weija, Bortianor, Kokrobite and Amanfro 
If however these are said to be the boundaries of Koffe lands, then it does not reflect the boundaries pleaded in the amended statement of claim. The 1st plaintiff was challenged on the boundaries given: 
Q: Are you aware that Bortianor stool land share boundary with Weija stool? 
A: It is not true 
Q: I am putting it to you that your allegation that Koffe lands boundaries with Weija stool, Bortianor stool, Kokrobite and Amanfro lands is false 
A: It is true 
Having been challenged on the boundary owners, the plaintiffs should have called their named boundary owners even if what was pleaded differed from the evidence that the 1st plaintiff gave. 
The boundary owners of Koffe given by P.W.1 in evidence in chief are different from the evidence of the boundary given by the 1st plaintiff. This is evidence given by P.W.1: 
Q: Where exactly is this Koffe? 
A: Koffe shares boundaries with Ngleshie Amanfro, Tuba, Kokrobite, Oshieye, Bortianor and Weija. 
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Whereas the 1st plaintiff himself did not mention Tuba and Oshieye, P.W.1 mentioned them as boundary owners. 
In the amended statement of claim the plaintiffs claimed that the plaintiffs and people of Koffe are the equitable owners of the land so described in the schedule below, which is as follows; 
b) An order of perpetual injunction to restrain the defendant, its lessors, assignees, agents, workers and all who cometh onto the land at their instance from interfering in the plaintiffs’ quiet enjoyment of the land. c) Damages for trespass 
The reliefs claimed by the plaintiffs are such that, the plaintiffs put their title in issue. The plaintiffs should have therefore led evidence on the identity and extent of the land that they claim. The plaintiffs claim that before the government compulsorily acquired the land, they and the Koffe people were the equitable owners of the land. In Sagoe and Others vs. Social Security and National Insurance Trust (2012) 2SCGLR1093, the Supreme Court held in its first holding that “Since the claim of the plaintiffs had included damages for trespass and an order of perpetual injunction, the reliefs sought by them necessarily required their title to the lands to be determined even though there was no claim for declaration: 
In this case the defendant denied that the land that they occupy had ever been for the people of Koffe, the plaintiffs should have called all the persons or towns that they shared boundary with. Interestingly, the plaintiff never mentioned any town or village that shares boundary with Koffe. The boundaries as pleaded in the plaintiffs pleading may not refer to Koffe land, but to the settlement called Koffe. Having pleaded that it is bounded on north by proposed road measuring 1,400 feet more or less, on the south by proposed road measuring 1,200 feet more or less, on the east by a proposed road measuring 4600 feet more or less and on the west by a proposed road measuring 4,240 feet more or less, the plaintiffs were under an obligation to prove these, as it has been held by the Supreme Court in the case of Hammond vs. Odoi and Another (1982-83) GLR1215, and speaking through Charles Crabbe JSC at page 1231 to 1235 of the report and concluded at page 1235 that: 
“Pleadings are the nucleus around which the case-the whole case- revolves. Their very nature and character thus demonstrate their importance in the actions as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case 
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of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case…” 
The plaintiffs did not lead evidence in proof of the boundaries as pleaded. Whereas in the pleading proposed roads were said to be Koffe’s boundary, in evidence, the 1st plaintiff mentioned towns. This is a departure from the plaintiffs pleading with regard to Koffe’s boundaries. 
Apart from the fact that the 1st plaintiff departed from the pleaded boundaries, the names that he gave as Koffe’s boundary neighbours did not appear in exhibit A being the plan of Koffe’s land. This plan has also not been registered as envisaged by section 24(1) of the Land Registry Act 1962 (Act 122). In Asare vs. Brobbey and Others (1971) 2GLR 331, at page 336 the Court of Appeal speaking through Archer J.A referred to section 24 (1) of Act 122 and posed a question 
“What does the phrase “shall be of no effect” mean? It undoubtedly means that it shall be of no legal effect, in other words, it is either void or a complete nullity. Briefly no legal consequences flow from its execution” 
The plaintiffs also called only one of the boundary neighbours mentioned by the 1st plaintiff in his evidence to give evidence for the plaintiffs. In Akoto II and Others vs. Kavege and Others (1984-86) 2GLR365, the Court of Appeal held as one of its holdings that “…boundaries of the land were not established. No boundary neighbours were called to testify to the ownership of the adjoining lands. The failure to prove boundaries, even of only one side was fatal and the fact that the defendant had counterclaimed did not lessen that burden”. Refer also to Yaa Kwesi vs. Arhin Davies and Another (2007-08) SCGLR 580. 
I therefore hold that even if the land were not government land, the plaintiffs had failed to prove that identity of the land that they claim. 
The defendant on the other hand has no counterclaim. The defendant gave evidence that it is in possession of the land. The plaintiffs themselves admit that the defendant is in possession of the land and had walled it. Since the land is government land, and the defendant is in possession, it is the government that can recover the land from the defendant but not the plaintiffs. In Duah vs. Yorkwa (1993-94) IGLR217, the Court of Appeal held that “It was a settled principle that a person in possession and occupation was entitled to the protection of the law against the whole world except the true owner or someone who could prove a better title…” 
Judgment of Nii Commey Dadienko  I Vrs. Glico Properties 16 | P a g e  
Again in Osei (substituted by) Gilard vs. Korang (2013-14) ISGLR 221 at page 234, the Supreme Court speaking through Ansah JSC, said “Now in law, possession is nine-tenths of the law and plaintiff in possession has a good title against the whole world except one with a better title. It is the law that possession is prima facie evidence of the right to ownership and it being good against the whole world except the true owner, he cannot be ousted from it”. 
From the totality of the evidence, I dismiss the plaintiffs’ claims. 
Considering the fact that an Interlocutory Injunction had been placed on the land since 26th November 2012 and that injunction had stalled all developments on the land, I am of the view that cost of GHC20,000.00 may reasonably compensate the defendant for this suit. 
The defendant is therefore awarded cost of GHC20,000.00  
         (SGD) 
        JUSTICE S. H. OCRAN 
       JUSTICE OF THE HIGH COURT   