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Land – Ownership - Declaration
of title – Trespass - Perpetual
injunction –
Fraud – Adverse possession -
Statute of limitation -
Recovery of Land -
Whether or not
the
judgment is against the weight
of evidence - Whether or
not
the
Court of Appeal erred in not
dismissing the case of the
Plaintiff as caught by the
Limitations Act.
HEADNOTES
The
Respondent averred that he
acquired the land in dispute by
a deed of Conveyance dated 17th
July, 2001 and stated that his
grantor is Mary Akua Durowaa who
is said to have traced her root
of title from Giftie Mnomlokie
Plange Dugbartey who had
acquired the land from the Nii
Odoi Kwao Family by an indenture
dated1952. The Respondent also
deposed that upon purchasing the
land, he registered his interest
in the land and in 2004, a land
title certificate was issued in
favour of the Respondent. The
Respondent states that this
action was commenced at the High
Court after the Appellant
without the Respondent’s
permission, entered the land in
dispute and started erecting a
fence wall around same The
Appellant in her Defence
asserted that she had been on
the land for over 20 years. She
further asseverated that she was
the caretaker of the property
for and on behalf of the family
of one Margaret Korkor Dugbartey
who died intestate and childless
in 1952. She asserted that upon
the death of the said Margaret
Korkor Dugbartey, the family
appointed her to live on the
property and to take care of it
for them and also contended that
Giftie Mnomlokie Plange
Dugbartey had fraudulently
disposed of the land and that
the Appellant, as an appointee
of the family of Margaret Korkor
Dugbartey, had issued a writ to
set same aside on grounds of
fraud. At the close of trial,
the trial Court found as a
matter of fact that the
Appellant had been in possession
of the disputed land for over 20
years. The Court also found that
the Respondent had proved title
to the land. The Court however
dismissed the claim of the
Respondent on the sole ground
that the Appellant as an
appointee of the Dugbartey
family had issued a writ of
summons against Giftie Plange
Dugbartey for fraudulently
disposing of the land the
subject matter of this action
and the trial Judge dismissed
the Respondent’s action. The
Respondent, aggrieved by the
judgement of the trial High
Court, appealed against the said
judgment to the Court of Appeal
who upheld the Respondent’s
Appeal in part, by declaring
that the Respondent had proven
better title to the land in
dispute. The Appellant,
dissatisfied with the Judgement
of the Court of Appeal, filed
the instant Appeal to this Court
pursuant to Article 131 of the
1992 Constitution.
HELD
We are therefore of the view
that, we cannot, deny the
Respondent title to the said
land based on unproven verbal
assertions of the Appellant that
the land in question is the
family land of Dugbartey Family.
This Court cannot prefer oral
testimony that is not
corroborated especially when
such oral testimony is in
conflict with documentary
evidence, in this case, land
title documents evidencing
successive purchases and
transfers from one person to
another. This Court having found
that the Respondent is not
statute-barred, hereby dismisses
the appeal as unmeritorious and
affirms the judgment of the
Court of Appeal.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Limitations Act 1972 NRCD 54
Land Title Registration Act,
1986 (PNDCL 152).
CASES REFERRED TO IN JUDGMENT
Djin v Musah Baako [2007-2008]
SCGLR 686
Agyenim-Boateng vs. Ofori &Yeboah
(2010) SCGLR 861
Hanna Assi vrs. Attorney General
Civil Appeal No. J4/17/2016 9th
November, 2016
Armah v. Hydrafoam Estates (Gh.)
Ltd [2013-2014] 2 SCGLR 1551
Adjetey Adjei v. Nmai Boi
[2013-2014] 2 SCGLR 1474
Amidu and Another Vrs. Alawiye
and Others Suit No. J4/54/2018
24 July 2019
GIHOC v Hanna Asi [2005-2006]
SCGLR 458
In re Atkinson and Horsell’s
Contract [1912] 2 Ch 1
BOOKS
REFERRED TO IN JUDGMENT
Black‟s Law Dictionary, 8th
Edition, 2004
DELIVERING THE LEADING JUDGMENT
KULENDI, JSC
COUNSEL
NII AKWEI BRUCE-THOMPSON FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
S. K. AMOAH FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
KULENDI, JSC:-
This is an Appeal against the
judgement of the Court of Appeal
dated 3rd May, 2018,
which said judgment varied the
judgment of the trial High Court
delivered on 21st
June 2007. The Appellant herein,
dissatisfied with the decision
of the Court of Appeal, and
exercising her constitutional
right pursuant to Article 131 of
the 1992 Constitution, has
brought the instant appeal to
this Court.
BACKGROUND:
The antecedent facts that
triggered the instant appeal are
captured as follows:
On the 29th of
October, 2004, the
Plaintiff/Appellant/Respondent
(hereinafter referred to as ‘the
Respondent’) instituted an
action in the High Court for the
following reliefs:
-
Declaration of title
to all that piece or parcel
of land in extent 0.15
hectares
(0.36 of an
acre)
more or less known as parcel
No. 24, Block 5 Section 021
lying situate at Asylum
Down, Accra covered by
Land
title Certificate No. GA
20228 in Land Register
Volume 10 Folio 473;
-
Damages of
¢
35,000,000 for
trespass;
-
An order for
perpetual injunction
against the
Defendant/Respondent/Appellant,
her agents, assigns or
anybody claiming through her
from further trespassing on
the land in dispute.
The Respondent averred in his
Statement of Claim that he
acquired the land in dispute
from Jogis Ltd by a deed of
Conveyance dated 17th
July, 2001. The Respondent
further stated in his Statement
of Claim that his grantor is
Mary Akua Durowaa who is said to
have traced her root of title
from Giftie Mnomlokie Plange
Dugbartey who had acquired the
land from the Nii Odoi Kwao
Family by an indenture dated 1st
March 1952. The Respondent also
deposed that upon purchasing the
land, he registered his interest
in the land and on 23rd
July, 2004, a land title
certificate was issued in favour
of the Respondent.
The Respondent states that this
action was commenced at the High
Court after the Appellant
without the Respondent’s
permission, entered the land in
dispute and started erecting a
fence wall around same.
The Appellant entered appearance
and filed her Statement of
Defence on 16th
December, 2004.
The
Appellant in her Defence
asserted that she had been on
the land for over 20 years. She
further asseverated that she was
the caretaker of the property
for and on behalf of the family
of one Margaret Korkor Dugbartey
who died intestate and childless
in 1952. She asserted that upon
the death of the said Margaret
Korkor Dugbartey, the family
appointed her to live on the
property and to take care of it
for them.
The Appellant, in her Defence,
also
contended that Giftie Mnomlokie
Plange Dugbartey had
fraudulently disposed of the
land and that the Appellant, as
an appointee of the family of
Margaret Korkor Dugbartey, had
issued a writ to set same aside
on grounds of fraud in a
Suit No.: BF/13/2005. A copy of
the writ of Summons and the
Statement of Claim in Suit No.:
BF/13/2005 were exhibited to an
affidavit in opposition to an
injunction application. The
processes were not tendered at
the trial.
At the close of trial, the trial
Court found as a matter of fact
that the Appellant had been in
possession of the disputed land
for over 20 years. The Court
also found that the Respondent
had proved title to the land.
The Court however dismissed the
claim of the Respondent on the
sole ground that the Appellant
as an appointee of the Dugbartey
family had issued a writ of
summons against Giftie Plange
Dugbartey for fraudulently
disposing of the land the
subject matter of this action.
The trial Judge was of the
opinion that the suit, which was
pending in another court, when
determined may vitiate the title
proved by the Plaintiff.
Accordingly,
the trial
Judge dismissed the Respondent’s
action. The Respondent,
aggrieved by the judgement of
the trial High Court, appealed
against the said judgment to the
Court of Appeal.
The Court of Appeal in its
judgement delivered on the 3rd
of March, 2018,
upheld
the Respondent’s Appeal in part,
by declaring that the Respondent
had proven better title to the
land in dispute. The Court
further granted an order of
perpetual injunction against the
Appellant, her agents, servants,
assigns, or anybody claiming
through her from further
encroaching on the said land.
The concluding part of the Court
of Appeal’s judgement reads as
follows:
“In conclusion, the appeal
succeeds in part as follows:-
declaration of title for the
parcel of land described in the
writ of summons of the Appellant
is hereby decreed in the
Appellant; and perpetual
injunction is hereby granted
against the respondent, her
agents, servant, and assigns
from interfering with
appellant’s quiet enjoyment of
the land. The judgement of the
trial Court dated the 21st
June 2007 is hereby varied in
terms of this judgement.”
(see page 294 of the Record of
Appeal)
The Appellant, dissatisfied with
the Judgement of the Court of
Appeal, filed the instant Appeal
to this Court pursuant to
Article 131 of the 1992
Constitution.
The part of the decision of the
Court of Appeal complained of,
per the Appellant’s Notice of
Appeal is the whole of the
judgement.
GROUNDS OF APPEAL
The Appellant’s grounds of
Appeal as set out in her Notice
of Appeal which may be found at
page 297 of the Record of Appeal
are as follows:
1.
The judgment is against the
weight of evidence
2.
The Court of Appeal erred in not
dismissing the case of the
Plaintiff as caught by the
Limitations Act.
APPELLANT’S CASE
The Appellant contends per her
statement of case that the Court
of Appeal, having found as a
fact that the she had been in
undisturbed possession of the
land in dispute for well over 20
years, ought to have determined
the matter in her favour by
holding that the Respondent’s
action was
statute
barred.
The Appellant says that she
expressly pleaded in her
Statement of Defence,
particularly in paragraph 8,
that the Respondent was statute
barred. The said paragraph reads
as follows:
“8. Defendant says that having
been in undisturbed possession
for well over 12 years, the
Title of the Plaintiff’s
predecessor and by necessary
implication, the Plaintiff, if
they ever had title, is statute
barred.”
The question as to whether or
not the Respondent was statute
barred was set down as an issue
for determination by the trial
by the Court. The Appellant
therefore argues that the Court
of Appeal failed to apply the
provisions of the Limitations
Act in its reasoning and
therefore erred in upholding the
Respondent’s Appeal in the
manner it did.
Appellant premised this
assertion on the fact that it is
a well-established principle of
Law that where a judgement can
be supported by other evidence
on record other than that which
was relied upon by the trial
Judge, the Appellate court ought
not set aside the judgement of
the trial Court.
RESPONDENT’S CASE:
The Respondent in his statement
of case filed on 16th
March 2020 argues that the
Appellant cannot rely on a plea
of
adverse possession and the
statute
of limitation. According to
the Respondent, the Appellant
failed to prove that she had
been in adverse possession of
the land in dispute. The
Respondent further contended
that the Appellant, having
alleged in her pleadings and
evidence that she was in
possession of the land as a
care-taker of the family of the
late Margaret Korkor Dugbartey,
cannot rely on a plea of adverse
possession and the statute of
limitation since she was a mere
licensee.
Resolution of the Grounds
Before resolving the issues in
controversy in this appeal, we
wish to point out that the
Appellant did not address this
Court
on the first ground of Appeal,
being that the judgement is
against the weight of evidence.
The duty of an Appellant to
sufficiently point out the
lapses in the evidence and or
the analysis thereof to
demonstrate the allegation that
the judgment is against the
weight of evidence was
elucidated
in the case of
Djin v
Musah Baako [2007-2008] SCGLR
686 as follows:
“where (as in the instant case)
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 in his favor, could have
changed the decision in his
favor, 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 lapse in the
judgment being appealed against”
Similarly,
in the case of
Agyenim-Boateng vs. Ofori
&Yeboah (2010) SCGLR 861,
this Court held at page 867
that:
“…The appellate Court can only
interfere with the findings of
the trial Court where the trial
Court: (a) has taken into
account matters which were
irrelevant in law; (b) has
excluded matters which were
critically necessary for
consideration; (c) has come to
conclusion which no Court
properly instructing itself
would have reached; and (d) the
Court’s findings were not proper
inferences drawn from the
facts.”
In the submissions filed by
Appellant, Appellant has not
demonstrated any matters which
were irrelevant in law that the
Court of Appeal applied against
her. Appellant has not also
alluded to matters which were
critically necessary for
consideration which the Court of
Appeal failed to take into
consideration. Neither has the
Appellant alleged that the
conclusions reached by the Court
of Appeal are conclusions which
no Court, properly instructing
itself would have reached, nor
that the Court’s findings were
not proper inferences.
Having failed to address this
Court on the omnibus ground of
appeal, we shall deem the
omnibus ground abandoned. This
is because, although, alleging
that a judgment is against the
weight evidence requires us to
scrutinize the entire record of
Appeal, as demonstrated from the
cases cited above, the burden is
on the Appellant who alleges
this omnibus ground of appeal to
point us to those pieces of
evidence on record which
substantiates his or her claim.
Appellant, having failed so to
do, this ground of appeal is
hereby dismissed.
If the Appellant succeeds with
her second ground of Appeal,
which is the contention that the
Respondent’s action is statute
barred, the Appeal will succeed
and the discussion of the other
ground of appeal, even if
Appellant had addressed the
Court on it, would have become
otiose. Our distinguished
brother, Jones Dotse JSC
reiterated the above proposition
in an unreported judgement of
this Court dated
9th
November, 2016 in
Civil
Appeal No.J4/17/2016
entitled Jean
Hanna
Assi vrs. Attorney General
(Civil Appeal No. J4/17/2016)
as follows:
“If indeed it is [statute
barred], then there is no need
to look at the merits of the
case since the statute of
limitation is a venerable shield
that can be used to ward off
indolent and piecemeal
litigators.”
We shall therefore proceed to
further evaluate Appellant’s
contention of limitation and
adverse possession.
Section 10 of the Limitation
Act, 1972, NRCD 54 provides as
follows:
“10.
Recovery of Land
(1) A person shall not bring an
action to recover a 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 a person through whom
the first mentioned claims to
that person.
(2) A right of action to
recover land does not accrue
unless the land is in the
possession of a person in whose
favour the period of limitation
can run.
(3) Where a right of action to
recover land has accrued, and
before the right of action is
barred, the land ceased to be in
adverse possession, the right of
action does not accrue until the
land is again taken into adverse
possession.
(4) For the purpose of this
Act, a person is in possession
of a land by reason only of
having made a formal entry in
the land.
(5) For the purposes of this
act, a continual or any other
claim on or near a land does not
preserve a right of action to
recover the land.
(6) On the expiration of the
period fixed by this Act for a
person to bring an action to
recover land, the title of that
person to the land is
extinguished.
(7) For the purpose of this
section “adverse possession” means
possession of a person in whose
favour the period of limitation
can run.”
A plea of limitation cannot,
unlike other legal grounds, be
raised for the first time on
appeal. It must have been
pleaded in the pleadings of the
party at trial. This is because,
the law frowns upon ambushing a
party with such a cardinal point
of law that seeks to bar a
person from seeking reliefs in
court. This judicial principle
was stated by his Lordship Benin
JSC in the case of
Armah v.
Hydrafoam Estates (Gh.) Ltd
[2013-2014] 2 SCGLR 1551 at
pages 1568 to 1569 as follows:
“A party who seeks to rely on
laches, acquiescence or
limitation has a duty or
obligation to plead them or to
plead such facts as evince an
intention to rely on same. …
These matters like laches,
acquiescence and limitation are
all to be pleaded since the
party who is entitled to rely on
them may decide not to do so;
the other party should not be
taken by surprise and is
therefore entitled to notice in
the pleadings in order to raise
any answer he may have to these
claims. …. Thus they cannot
be raised for the first time on
appeal, unless the pleadings
disclose the factual basis and
evidence on it was led at the
trial. That is not the position
in this case, as there was no
such plea and no evidence was
forthcoming on the record.”
We are therefore to examine the
pleadings of the parties to
determine whether the contention
of Statute of Limitation was
canvassed in the pleadings in
the Court of first instance.
A perusal of the Statement of
Defence filed by the Appellant
from the Record of Appeal shows
that the Appellant pleaded
limitation against the
Respondent. Specifically,
Appellant pleaded in paragraphs
4 to 9 of the Statement of
Defence as follows:
“4. The Defendant denies
paragraph 8 of the statement of
claim and states that she has
been in undisturbed possession
of the land for over twenty
years through her tenants and
caretakers.
5. The Defendants deny
paragraphs 9 to 12 of the
Statement of claim
6. The Defendants state that
sometime prior to 1986, she put
some bottle dealers on the land
and they have been there till
now.
7. The Defendants further state
that in or about 1986, she put
two brothers who are carpenters,
mainly, Mensah, Koumasse and
John Koumasse on the land first
as tenants and subsequently as
caretakers and they have been
there since unchallenged.
8. The Defendant says that
having been in undisturbed
possession for over twelve
years, the right to bring an
action for recovery of
possession of the Plaintiff’s
predecessor and by necessary
implication, the Plaintiff, if
they ever had title, is statute
barred.”
It is pertinent to mention that
the trial Court found as a
matter of fact that the
Appellant indeed had been in
possession of the land for well
over 20 years. At page 202 of
the Record of Appeal, the trial
judge stated as follows:
“From the totality of evidence
before me, Plaintiff was not
able to establish that his
vendor Jogis Ltd who allegedly
purchased the disputed land from
Mary Durowaa in 1995 was ever in
actual or constructive
possession of the disputed land.
No such evidence was led
throughout the trial. Quite
apart from that,
Plaintiff himself who pleaded
that he placed a carpenter and
his workmen on the land later
denied in his testimony that
there was a carpenter on the
land. Rather, what he said in
his testimony was that he
settled a lady who was operating
a communication centre in a
container on the land after he
had become owner contrary to his
pleading. He however could not
prove this assertion. He could
not call this so-called lady to
testify for him.
The Defendant told the Court
that it was rather she who
permitted this lady to place her
container on the land and called
the lady to support her case.
This lady, who testified as DW2
denied ever knowing or meeting
Plaintiff anywhere when
Plaintiff tried to suggest that
he permitted her to be on the
land.
Defendant again called one of
the carpenters she says she
permitted to work on the land
and then one of the bottle
dealers she said she settled on
the land somewhere prior to
1986. All of them confirm
Defendant’s claim that she
permitted them to stay on the
land over the past 20 years.
They again said that they have
been in undisturbed possession
since their occupation.
Plaintiff could not challenge
the testimonies of these
witnesses, which I find highly
credible.
This Court therefore finds as a
fact that, neither Plaintiff nor
his vendor has ever been in
possession of the disputed land
and that it is the Defendant who
has all along been in possession
of this disputed land even
before and after Mary Akua
Durowaa purported to have
purchased it from Gifty in
1994.”
The Court of Appeal concurred
with the trial court on the fact
that the Appellant had been in
possession of the land. In its
judgment dated 3rd
May, 2018 which is at page 291
of the Record of Appeal), the
Court of Appeal held as follows:
“Possession of land in law
includes the exercise of
physical control of the land and
the intention by a person to
exercise exclusive possession
and also prevent others from
owning the land. The evidence on
record is clear that the
Respondent had exercised control
over the land in dispute for
over 20 years as found by the
trial judge. From the
Appellant’s own pleadings, he
instituted this action when the
Respondent started fencing the
land in dispute. The evidence is
thus clear that the Respondent
was physically in possession and
also through her agents. The
evidence is that she even sought
to prevent others from taking
over the land by fencing the
land. From the evidence on
record the trial judge was right
in holding that the Appellant
failed to prove that he or his
predecessors were in possession.
The trial judge was therefore
right in holding that the
Respondent had proved possession
of the land.”
From the above, it is evident
that the Applicant has been in
possession of the land for over
20 years. The Appellant being in
possession of the land for over
20 years does not give the
Appellant a better title to the
land than the Respondent. Long
period of possession of land
does not guarantee title nor
does it by itself estop another
from challenging the title to
the land.
For the Appellant to succeed in
his plea of limitation, he must
demonstrate that he is by law,
in adverse possession of the
land. Section 10(2)(3) and (7)
of the Statute of Limitations
Act, 1972 (NRCD 54) states as
follows:
“10(2) A right of action to
recover land does not accrue
unless the land is in the
possession of a person in whose
favour the period of limitation
can run.
(3) Where a right of action to
recover land has accrued, and
before the right of action is
barred, the land ceased to be in
adverse possession, the right of
action does not accrue until the
land is again taken into adverse
possession.
(7) For the purpose of this
section “adverse possession” means
possession of a person in whose
favour the period of limitation
can run.”
From the above, the 12 years
limitation period does not run
unless the person against whom a
suit is instituted for the
recovery of land is in adverse
possession of same.
Was the Appellant in adverse
possession?
The term “adverse possession”
was explained by Atuguba JSC in
the case of Djin v. Musah
Baako [2007-2008] 1SCGLR 686
at 699 when he stated that
“The law as we understand it… is
that if a squatter takes
possession of land belonging to
another and remains in
possession for 12 years to the
exclusion of the owner, that
represents adverse possession
and accordingly at the end of 12
years the title of the owner is
extinguished. That is the plain
meaning of the statutory
provisions, which I have quoted
and no authority has been cited
to us. The simple question is:
did the squatter acquire and
remain in exclusive possession?”
In the case of
Adjetey Adjei v. Nmai Boi
[2013-2014] 2 SCGLR 1474
Her Ladyship Sophia Adinyira
JSC in explaining adverse
possession, had this to say:
“Adverse possession must be
open, visible and unchallenged
so that it gives notice to the
legal/paper owner that someone
was asserting a claim adverse to
his. And section 10 of the
Limitation Act, 1972 (NRCD 54)
has reflected substantially the
provisions of the English
Statute of Limitation and the
common law. Under the present
law, the person claiming to be
in possession must show either (i)
discontinuance by the paper
owner followed by possession; or
(ii) dispossession or as it was
sometimes called ‘ouster’ of the
paper owner. Clearly possession
concurrent with the paper owner
was insufficient. If a squatter
took possession of land
belonging to another and
remained in possession for
twelve years to the exclusion of
the owner, that would represent
adverse possession and,
accordingly, at the end of
twelve years, the title of the
owner would be extinguished. In
the circumstances, assuming the
defendants’ title was bad, their
adverse possession of the land
for a period of twelve years and
over, had conferred on them
possessory rights by virtue of
section 10 of the Limitation
Act, 1972 (NRCD 54). The
interest acquired by
prescription or under the
Limitation Act, 1972 (NRCD 54),
was an overriding interest,
which was further protected
under the
Land Title Registration Act,
1986 (PNDCL 152).”
It is worthy of note that the
plea of adverse possession and
the defense of limitation does
not avail a squatter who lays no
adverse claim or a licensee but
only someone whose claim of
possessory title in the land is
adverse to that of the true
owner.
In the case of
Amidu and
Another Vrs. Alawiye and Others
in Suit No.: J4/54/2018
(Unreported) this Court in a
judgment dated 24 July 2019,
per Pwamang JSC, expatiated on
the above salutary principle as
follows:
“The defendants in their
statement of case submitted that
squatters can acquire title to
land after 12 years of
occupation. That is an erroneous
statement of the law. The legal
definition of a squatter in
Black‟s
Law Dictionary, 8th Edition,
2004 is “A person who
settles on property without any
legal claim or title.”
The difference in law
between a squatter and a
trespasser is that whereas a
trespasser enters onto a land
and claims an interest in it
that is inconsistent with the
rights of the true owner, a
squatter does not claim any
interest in the land he is in
occupation of. Therefore,
possession by a squatter is not
adverse to the title of the true
owner so a squatter cannot
succeed on a defence of
limitation. Section
10 (2)&(3) of NRCD 54 provide
that; “ 2) A right of action to
recover land does not accrue
unless the land is in the
possession of a person in whose
favour the period of limitation
can run. 3) Where a right of
action to recover land has
accrued, and before the right of
action is barred, the land
ceases to be in adverse
possession, the right
of action does not accrue until
the land is again taken into
adverse possession.” Similarly,
possession of land by a licensee
is not inconsistent with the
rights of the true owner, so
such possession is not adverse
and cannot ground a defence of
limitation. In the case of
GIHOC v
Hanna Asi [2005-2006] SCGLR 458,
this court rejected a defence of
limitation put up by a licensee
of a true owner for the reason
that his possession was not
adverse.”
In the instant case, the
Appellant alleged that she was
on the land as a caretaker on
behalf of the family of Margaret
Korkor Dugbartey who died
intestate and childless in 1952.
In fact, the above assertion of
was repeated on oath by the
daughter of the Appellant, who
testified on behalf of the
Appellant. During
cross-examination of the
attorney of the Appellant, the
following ensued:
“Q: You said the Defendant is
caretaker of this land. Do you
still maintain this?
A: Yes my Lord.
Q: When did she become caretaker
of the land?
A: She became the caretaker more
than 20 years ago.
Q: Who appointed her as a
caretaker of the land?
A: My principal’s family, the
Dugbartey family.”
(see
page 119 of the Record of
Appeal)
The question therefore is,
having claimed to have been on
the land as a caretaker of the
family of Margaret Korkor
Dugbartey, could she by law,
claim adverse possessory title
in herself and for her benefit
as an alternative claim by
virtue of the fact that she has
been in possession of the land
for over 20 years?
We are of the view
that an Appellant who alleges
that he or she is a caretaker of
a land cannot rely on an
alternative plea of adverse
possession. Any act of ownership
purported to have been exhibited
by the caretaker is done at the
behest of the person who put the
caretaker there. The
relationship between the
caretaker and the person who put
him in possession is synonymous
to that of a principal and an
agent. Therefore, just as an
agent cannot claim title for his
benefit and for himself, but on
the instructions and for the
benefit of the Principal, so
will a caretaker not be able to
claim adverse possession for
himself.
Since the plea of adverse
possession cannot avail the
Appellant, the statute of
limitation also cannot lie
against the Respondent in this
case. We are therefore inclined
to dismiss the above ground of
appeal on the issue of
limitation.
On the strength of each party’s
claim, we find that the
Respondent has better title than
the Appellant. The Appellant
failed to call the Dugbartey
Family to join the suit and to
contest its title. The nature of
adverse possessory title in land
is such that, once the Court
upholds it, it prevails over all
other interests including the
interest of a registered
proprietor of land under the
Land Title Registration Act,
1986, PNDCL 152, by virtue of
section 18 (1) and (2) thereof.
Thus in GIHOC vrs, Hanna
Assi case, Supra,at 468 –
469 Dr. Date-Bah JSC elegantly
stated the legal nature of an
adverse possessory title as
follows:
“The combination of the
extinguishing of the original
owner’s rights under section
10(6) of the Limitation Decree,
1972 (NRCD 54), with the barring
of action against the adverse
possessor under section 10(1),
must in logic result in the
adverse possessor being
construed to have gained a right
that is enforceable by action.
Otherwise, there would be the
risk of “ownerless lands”
resulting from a contrary
interpretation of section 10(6)
of the Limitation Decree.
Indeed, there is authority in
support of the view that an
adverse possessor of land in
relation to which the original
owner’s rights have been
extinguished has rights in
relation to which he can
sue. The adverse possessor
gains a new estate of his or her
own, which is not by transfer
from the original owner whose
rights have been extinguished by
the limitation statute”
The learned Justice further
opined as follows:
“There is thus persuasive
authority to support the
logically sound conclusion that,
where an original owner’s title
in land has been extinguished by
a statute of limitation, the
adverse possessor gains a title
equivalent to the title
extinguished. The title is not
transferred from the previous
owner to the adverse possessor,
but rather the squatter or
adverse possessor gains a new
title that takes the place of
the rights of the original
owner…
It is clear that title may be
acquired by adverse possession.
Such title, as already pointed
out, is not derivative, in that
it does not flow from the title
extinguished. Nevertheless, it
is title and it is open to this
Court to declare such title,
upon a suit by the adverse
possessor. Such a possessory
title was held to be a good
title that could be forced on a
purchaser in the case of In
re Atkinson and Horsell’s
Contract [1912] 2 Ch 1.
In my considered view,
therefore, the possessory title
of an adverse possessor can be
used as a sword, and not only as
a shield. It follows, therefore,
that the Plaintiff would be
entitled to a declaration of
title, if it were able to
establish that it has been in
adverse possession of plot 19
for more than 12 years.”
In effect, the Appellant’s claim
of adverse possession is
contradictory and opposed to
that of the very people who put
her on the land.
We are therefore of the view
that, we cannot, deny the
Respondent title to the said
land based on unproven verbal
assertions of the Appellant that
the land in question is the
family land of Dugbartey Family.
This Court cannot prefer oral
testimony that is not
corroborated especially when
such oral testimony is in
conflict with documentary
evidence, in this case, land
title documents evidencing
successive purchases and
transfers from one person to
another.
This Court having found that the
Respondent is not
statute-barred, hereby dismisses
the appeal as unmeritorious and
affirms the judgment of the
Court of Appeal.
E. YONNY KULENDI
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
M. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
G. TORKORNOO (MRS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
NII AKWEI BRUCE-THOMPSON FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
S. K. AMOAH FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
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