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JUDGMENT

Following two earlier judgments at the lower courts, the issues to be determined in this case have considerably narrowed down.

ANINAKWAH, J.S.C.:

The Defendant by his Statement of Defence denied the plaintiff's claim. He, too, pleaded in paragraphs 3 and 5 by which he set up strong Defence against the plaintiff's claim, and went on to claim by way of counterclaim thus:

(i) Declaration of title to all that piece or parcel of land situate lying and being at Sabon Zongo Accra- particularly (described) on the Counterclaim.

(ii) Perpetual Injunction against the plaintiff, his personal

representatives, assigns, agents, servants and workmen.

(iii) General Damages for trespass.

The plaintiff in his reply and defence to the counterclaim denied the defendant's counter claim and by way of defence raised the defences of Estoppel and the defence under the Statute of Limitations against the Defendant

.It is observed from the pleadings that both parties relied heavily on documentary evidence of Indentures and past judgments

Plaintiff pleaded in paragraphs l(a), 2, 3(a), 4, 5, 6, 7 and 8 of his Amended Statement of claim, indentures and judgments as bases of his claim to title to the land in dispute.

Declaration of title to all that piece of land at Laterbiokorshie Accra described on the indorsement to the Writ of Summons.

General Damages for trespass.

Special Damages for destruction of Wall around the said land.

Perpetual Injunction against, the defendant his agents, servants, workmen and assigns.

The main issue which the Plaintiff/Respondent/Appellant (hereinafter referred to as the Plaintiff) considers as his core issue to be determined by this court is-whether the Counterclaim of the Defendant/Appellant/Respondent (hereinafter referred to as the Defendant) is statute barred.

On 5th February 1999, the plaintiff filed this action at the High Court Accra, claiming against the Defendant the following reliefs:

The trial court after a full trial and having carefully weighted all the evidence contained in the various exhibits tendered in the case before it, had no problem decreeing title in the defendant's family. In doing so, the trial judge held thus:

" This right of the Baako family as against the Ablorh Mills family over Sabon Zongo land dates back to 1909 when the said lands were granted to the Baako family as a settlement for the Hausa community, with the knowledge and consent of the Ablorh Mills family who are the grantors of Plaintiff's father. Exhibit 4, which is a 1912 judgment of the then chief Justice, Sir Philip Crampton Smyly and the other judgments of the Superior Courts tendered as Exhibits SA, sB and sC attest to this.father as they did in 1960, thus making the grant and the corresponding registration of same in 1972 null and void."

Having made the said finding the next best thing open to the trial judge, if he had adverted his mind to the legal effect thereof, would have been to dismiss the plaintiff's claim and to enter judgment in favour of Defendant.

This notwithstanding, the trial judge went ahead to grant the plaintiff the reliefs he was seeking. It was the opinion of the trial judge that the Defendant's family had slept on its rights for more than the statutory period. The trial judge computed that the plaintiff's family had been in adverse possession for more than 30years, before the Defendant filed his counterclaim. Thus on the application of the Limitation Decree 1972 NRCD, 54, the counterclaim was declared by the trial judge to be statute barred and under sub-section (6) of Section 10 of the Decree, the title of the Defendant's family became extinguished.

On the defendant's counterclaim the trial judge also held that apart from the fact that defendant's family's interest had become extinguished under the statutes of Limitations, the Defendant's family was also estopped from laying any claims or at all to the land. And who In some of these judgments it were the grantors of plaintiff's father, Emma and Helena Ablorh Mills who were castigated for selling portions of Sabon Zongo lands when they had no authority to do so. With this issue settled by our Courts as stated above this court finds as a fact that the Ablorh Mills family represented by Emma and Helena Mills had no proprietary right to grant the disputed land to plaintiff'sA ruling of the Land Adjudicating Committee in favour of the plaintiff's family had been allowed to go against defendant's family without any appeal. The trial court also held that the defendant lacked capacity to institute the counterclaim.

It sounds strange at this stage to hear the plaintiff crying foul that the judgment is against the weight of the evidence

The trial court decreed title in favour of the defendant's family. This never worried the plaintiff. He found nothing wrong with the evidence forming the basis of the trial court's said finding.

He never appealed against the same because the trial court had gone a step further to apply the provisions of the Limitation Decree in his favour and had granted the reliefs being sought by him.

It has been held in several decided cases, and the authorities are many, that where an appellant complains that judgment is against the weight of evidence, then he is implying that there were certain pieces of evidence on the record which if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.

A thorough reading of the Court of Appeal judgment gives an indication that the Court of Appeal, very mindful of the principle that Appeal is by way of rehearing, did in fact evaluate the whole evidence before arriving at its decision. The Appellant's attack on the Court of Appeal is, therefore unfounded.

The next fundamental issues which this court is called upon to determine are

i) The Capacity of the Defendant to institute his counterclaim.

ii ) Whether or not on the facts and evidence before this court, the Limitation period had run against the Defendant's family

The judgment is against the weight of the evidence.

The plaintiff has now appealed to this Court on five (5) main grounds. He, however, intimates that in this Appeal he is raising three main issues- namely:

Dissatisfied with the judgment of the trial court, the defendant appealed to the Court of Appeal, which on very good and cogent grounds reversed the decision in favour of the defendant.

On the Defendant's capacity to institute his counterclaim, reference should be made to the pleadings and the evidence on record. Plaintiff pleaded in paragraph 1 of his Statement of Claim that he is the administrator of the Estate of his father Andrew Yao Kwasi Djin (deceased).

" I brought this action in my capacity as the Administrator of the estate of my late father by name Andrew Yao Kwasi Djin (deceased)"

The Defendant, too, in his evidence in chief stated thus:

"................................... My father had a land at Sabon Zongo. I was then

in Nigeria. On my return I was told that Plaintiff, too, was laying

adverse claim to the land............................ My father was called Mallam

Musah Baako. He is now deceased. I was granted Letters of Administration to administer his estate"

Letters of Administration was tendered without objection. It is then observed from both the Statement of Claim and the evidence in chief, by the two parties that they are both litigating in their respective capacities as the administrators of their late fathers. They both derived their capacities from their Letters of Administrations

Plaintiff's challenge to Defendant's capacity is, therefore misplaced.

On the last ground which Plaintiff prefers to describe as his core ground and which covers grounds (IV) and (V) of the grounds of Appeal-namely:

(iv) The Court of Appeal erred when it failed to follow the only

case it cited in the applicability of the Limitation Decree 1972 NRCD 54.

(v) The Court of Appeal erred in Law in holding that the Defendant's counterclaim is not statute barred under the Limitation Decree 1972 NRCD 54 Section 10.

In resolving this ground, it is to be considered whether on the facts and evidence on the record, Defendant's counterclaim ought to be barred.

Before going on a fact-finding mission to determine this ground, plaintiff's ground (iv) requires to be dealt with first.

This is a ground which by its nature and contents sins against Rule 6(5) of the Supreme Court Rules 1996 c.!. 16, and could be struck-out; on the authority of this rule however if the court of Appeal erred in failing to follow the only case it cited in the applicability of the Limitation Decree, 1972 NRCD 54, this Court is not debarred from following it.

This court finds the case of Manu v Yeboah (1982-83) GLR 34, to be applicable and very germane to this case.Manu v. Yeboah following the decision in Marfo v. Adusei (1964) GLR, 365 SC - is the authority for the proposition that where the sale is irregular, it is voidable at the instance of a debtor who proves that she has sustained substantial injury from the irregularity. But where the sale is illegal, the sale is void ab initio and no title passes

In Manu v. Yeboah (supra) Francois and Wiredu JJA, (as they then were) decreed the sale to be irregular and therefore voidable and dismissed the Appeal whilst Coussey J.A declared it to be void and on the authority of Mosi v. Bagyina (1963) 1 GLR 337 SC allowed the appeal.

In his judgment, the trial judge made such a finding by which if he had adverted his mind to the logical effect of it he would not have gone further to grant title to the land in dispute to plaintiff.

The trial judge stated in his finding that with this issue settled by our Courts as stated above this Court finds as a fact that the Ablorh Mills family represented by Emma and Helena Mills had no proprietary right to grant the disputed land to plaintiff's father as they did in 1960 thus making the grant and the corresponding registration of same in 1972 " null and void". This finding of thetrial judge should have put paid to plaintiff's claim, and should have dismissed the plaintiff's case, as already stated.

The trial judge, however, quite erroneously kept the plaintiff's case alive and computed the period which plaintiff's family had allegedly been in adverse possession from 1996 and concluded that on the authority of Section 10(6) of the Limitation Decree 1972 NRCD 54, any interest the Defendant's family had, if any, has been extinguished.

This holding cannot escape criticism. In 1966, the Limitation Decree had not been born, having come into effect in January 1973. Again, the plaintiff himself conceded that even though the period during which his father was in possession of the land was never interrupted, and his father died in 1982,when the statutory period had not accrued against the Defendant's family, his own possession was interrupted by several interventions from Defendant and other members of his family. It is not, therefore, clear which period the trial judge rested his findings on.

The pertinent question now is whether on the facts and evidence before the Court, the Limitation period did, in fact run against the Defendant's family

The Defendant pleaded in paragraph 14 of his Statement of Defence that his father died in 1967 and the land in dispute devolved upon him in accordance with Islamic Custom and Letters of Administration granted him in October 1998.

Defendant averred in his evidence in chief that he filed his counterclaim as an administrator of his father's estate

Section 10(1) of the Limitation Decree 1972 NRCD 54 states:

"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".

Halsbury on Accrual of Cause of Action after death states in the 4th Edition, Vol. 28 para. 625 thus:

"Where the deceased has appointed an executor, time begins to run from the accrual of the cause of action, provided the executor acts or takes out probate. If the probate is not granted within the relevant limitation period and no action is begun before probate, the executor's claim is barred, but, if probate is granted within the period and later revoked and administrator is appointed, time does not run against the administrator until Letters of Administration are granted. Chan Kit San vs Ho Fung Hang (1902) AC 257:

1) Ho I. Shek died intestate on June 1880.

2) No administration to his estate was taken out until the

month of November 1886, when probate of an alleged will was granted by the Supreme Court in its probate jurisdiction to Ho Chik Fuk, the person named as executor in such alleged will, but Ho Chik Fuk did not intermeddle with the shares claimed in the alleged partnership transactions.

3) On November 17, 1896, the alleged will was declared to be

a forgery, and the probate was revoked.

4) On June 21, 1897, administration was granted to the respondent. The relevant Statute of Limitations is contained in S.8 of Ordinance No. 13, 1864, whereby it was enacted that all actions of account must be commenced within six years after the cause of such actions. These are the same words as those of 21 Jac. 1, c.16.

It was not seriously, and could not be successfully, disputed that, according to the well-established rule in English law, the statute runs against an intestate's estate from the date of the grant of letters of administration only. But the appellants contended (1) that, according to the law of the Colony, a right of action accrued on the intestate's death to the registrar of the Court, and the statute therefore ran from that date; or, alternatively, (2) that the statute commenced to run from November, 1886, when the grant of probate of the forged will was made to Ho Chik Fuk.

On the trial of the issue the Supreme Court (Original Jurisdiction) decided in favour of the respondent, and its decision was affirmed by the Supreme Court (Appellate Jurisdiction). "

Under our local Laws, the Court of Appeal referring to Section 104 of the Administration of Estates Act 1961, Act 63, stated thus:

"Time does not begin until the end of the year after the death of the intestate as the Customary Successor is not bound to

distribute the estate of the deceased before the expiration of one year from death. If the property requires to be vested in the future then time does not run until that event has occurred. This in effect postpones the rights of a beneficiary under intestacy. His rights do not begin to run on death but only when the right to receive his inheritance has accrued to him. The Learned Lords at the Court of Appeal cited the case of PRAH v. AMPAH (1992) 1 GLR 34 in support.

In Prah v Ampah death intestate occurred in May 1967, a revised grant was finally granted in December 1972. It was held that the beneficiary's right accrued from December 1972 and not in 1967

The undisputed evidence was that after the death of Defendant's father, in 1967, Defendant left for Nigeria in 1969.

In his absence his uncle acting in the capacity of the Customary Successor, (and here a customary successor must be distinguished from the beneficiary of an estate), together with other members of the Defendant's family undertook to protect the property for the Defendant. It was when the Defendant came back from Nigeria that he was granted Letters of Administration in 1998. It was only then that cause of action accrued to the estate, which he started to administer. He however averred that the estate belonged to him in accordance with the Islamic Law. This has not been challenged. In his capacity as the ultimate beneficiary, there is no evidence that any steps have been taken to have the property vested in him.

It therefore could not be said that both as an administrator and as beneficiary, time had run against him. Assuming time hadeven run against him; on the authority of Manu v Yeboah, plaintiff's appeal fails. Plaintiff's appeal is therefore dismissed.

Court of Appeal decision is hereby affirmed

R. K. ANINAKWAH

JUSTICE OF THE SUPREME COURT

W. A. ATUGUBA

JUSTICE OF THE SUPREME COURT

MRS. G. T. WOOD

JUSTICE OF THE SUPREME COURT

PROF. T. M. OCRAN

JUSTICE OF THE SUPREME COURT

J. ANSAH

JUSTICE OF THE SUPREME COURT