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J U D G M
E N T
AKUFFO (MS), J.S.C.
I have been
fortunate to have had previous
sight of the opinion about to be
read by my learned brother Dr.
Date-Bah, JSC and I am in
agreement with his conclusion
that the substantive appeal must
be dismissed. I fully support
his reasons leading to this
conclusion. Unfortunately,
however, I cannot agree with his
conclusion regarding the
Respondent’s cross-appeal.
Rather, for the reasons stated
in his dissenting opinion on the
matter, I join my esteemed
brother Prof. Ocran JSC in the
view that the cross appeal
should succeed. I, however, wish
to express myself further on
this aspect of the matter before
us.
Throughout the trial of this
matter, the Respondent’s
original ownership of the
property was never in any
serious question, and,
therefore, once the trial judge
found that the Appellant had
never acquired any adverse title
to the same, it necessarily
followed that the Respondent
remained the owner thereof,
since his title had never been
affected by the government’s
confiscatory action and the
Appellant’s occupation of the
land. Hence, the trial judge’s
declaration of the Respondent’s
title was in the nature of a
consequential relief, a
verbalisation of a status that
was necessarily implied by his
findings.
It needs to
be noted that of the issues set
down for trial, issue 2 of the
Additional Issues read as
follows:-
“Whether or
not the Defendant holds full
legal title to the property in
question.”
Thus, in the
course of the trial, the
Respondent tendered, through the
Appellant, without any
objection, various
correspondence (exhibits 1 – 6),
which overwhelmingly establish
the Respondent’s title to the
land and the Respondent’s
entitlement to immediate
possession thereof.
Additionally, the Respondent’s
Land Title Certificate no. GA
8570, issued by the Land Title
Registry was placed into
evidence as exhibit 8. Now,
Section 43(1) of the Land Title
Registration Law, 1986
(PNDCL 152)
stipulates that:-
“Subject to
subsections (2), (3) and (4) of
this section and section 48 of
this Law, the rights of a
registered proprietor of land
whether acquired on first
registration or acquired
subsequently for valuable
consideration or by an order of
a Court, shall be indefeasible
and shall be held by the
proprietor together with all
privileges and appurtenances
attaching thereto free from all
other interests and claims
whatsoever.”
(It is clear
that the section and subsections
to which this provision is made
subject are inapplicable to the
facts of this matter).
The learned
trial judge, therefore, held
that the Respondent’s title was
indefeasible. In these
circumstances, it is my
respectful view that we would be
stretching procedural
technicality to the point of
absurdity to conclude that, just
because counsel for the
Respondent failed or neglected
to include in the Statement of
Defence a counterclaim against
the Appellant for a declaration
of title and an order for
recovery of possession, the
learned trial judge did not have
the jurisdiction to grant, as he
did, those reliefs to the
Respondent. Since the trial
judge was properly seised of the
action before him, and the
defence raised therein placed
into issue the title of both
parties to the subject matter in
dispute, the learned trial judge
had the power to consider the
title of both parties and award
reliefs that naturally and
logically flowed from his
findings; I am not aware of any
statutory rule to the contrary.
Until the
enactment of the Evidence
Decree, 1975 (NRCD 323)
conventional practice had
crystallised into a legal
principle that a person seeking
to recover land must do so by
the strength of his case rather
than the weakness of the other
person’s case. I, however, doubt
that the necessary implication
of this principle was that a
party must always bring her own
suit or counterclaim to be able
to succeed in her objective,
even when all the issues arising
from such an objective form part
of an action by the party
against whom she could have
claimed or counterclaimed. In
any event, it is also my
respectful view that, there is
no special procedural magic in
this principle; it was in fact
nothing more than a rule of
evidence, allocating the burden
of proof. As such, therefore, it
has been overtaken by Part II of
NRCD 323, the more relevant
provisions of which I wish to
set out for ease of reference.
“10.
(1) For the purposes
of this Decree, the burden of
persuasion means the obligation
of a party to establish a
requisite degree of belief
concerning a fact in the mind of
the tribunal of fact or the
court.
(2) The burden of
persuasion may require a party
to raise a reasonable doubt
concerning the existence or
non-existence of a fact or that
he establish the existence or
non-existence of a fact by a
preponderance of the
probabilities or by proof beyond
a reasonable doubt….
“11.
(1) For the purposes
of this Decree, the burden of
producing evidence means the
obligation of a party to
introduce sufficient evidence to
avoid a ruling against him on
the issue….
(4) In
other circumstances, (i.e.
civil matters) the burden of
producing evidence requires a
party to produce sufficient
evidence so that on all the
evidence a reasonable mind could
conclude that the existence of
the fact was more probable than
its non-existence.
“12. (1)
Except as otherwise provided by
law, the burden of persuasion
requires proof by a
preponderance of probabilities
(2)
“Preponderance of the
probabilities” means that degree
of certainty of belief in the
mind of the tribunal of fact or
the court by which it is
convinced that the existence of
a fact is more probable than its
non-existence….
“14.
Except as otherwise provided by
law, unless and until it is
shifted a party has the burden
of persuasion as to each fact
the existence or non existence
of which is essential to the
claim or defence he is
asserting.”
(the
exceptions referred to in these
provisions are, clearly, not
applicable to the matter at
hand.
Since the
enactment of NRCD 323,
therefore, except otherwise
specified by statute, the
standard of proof (the burden of
persuasion) in all civil matters
is by a preponderance of the
probabilities based on a
determination of whether or not
the party with the burden of
producing evidence on the issue
has, on all the evidence,
satisfied the judge of the
probable existence of the fact
in issue (see Odametey v.
Clocuh [1989-90] 1 GLR, 14;
Odonkor v. Amartei [1992-93]
GBR 59, Tuakwa v. Bosom
[2001-2002] SCGLR 61).
Hence, by virtue of the
provisions of NRCD 323, in all
civil cases, judgement might be
given in favour of a party on
the preponderance of the
probabilities ‘…rather than on
an archaic principle which might
not accord with reason or common
sense….’ (see Holding 2, Odonkor
v. Amartei).
In the
instant case, since the
Respondent, in his Statement of
Defence, claimed ownership of
the land, he bore the initial
burden of persuasion on
additional issue 2. As has been
pointed out above, he
successfully, by the operation
of PNDCL 152, carried that
burden to the required standard
that persuaded the learned trial
judge. Between the Respondent
and the Appellant, I cannot, in
the circumstances, see anything
further, or any additional
evidence, that will be required
from him to enable him establish
his entitlement to a declaration
of title and an order for
recovery of possession of the
property.
Furthermore,
I have combed through the rules
of court applicable at the time
of the High Court judgment and
have not come across any
provisions that forbade the
court from granting orders and
reliefs that a party (whether
Plaintiff or Defendant) has not
specifically claimed, where the
evidence on record amply
supports such orders or reliefs.
In my respectful opinion, the
opposite is rather the case.
Order 63 Rule 6 of the
former High Court (Civil
Procedure) Rules read as
follows:-
“Subject to
particular rules, the Court may
in all causes and matters
make any order which it
considers necessary for doing
justice, whether such
order has been expressly asked
for by the person entitled
to the benefit of the order or
not.”
(my emphases)
It is
noteworthy that this provision
speaks of ‘the person entitled
to the benefit of the order’
rather than ‘the Plaintiff or
the claimant’. In my view,
therefore, it is for the judge
to determine whether, the order
is justified by all the evidence
on record, for the purposes of
doing justice. Unfortunately, it
appears that, rather than
utilising the power to do
justice granted by this rule,
over the years, the power was
parsimoniously applied, and
restrictive practices and
principles, such as that under
consideration herein, were
allowed to hold sway, thereby
stultifying the capacity of the
courts to assure effective
justice. It is, therefore,
heartening that the policy
behind this rule (i.e. to do all
that is necessary to achieve
justice between the parties) has
been reinforced and
re-emphasised in clearer terms
in Order 1 Rule 2 of the
current rules, the High Court
(Civil Procedure) Rules, 2004
(C.I. 47) as follows:-
“These Rules
shall be interpreted and applied
so as to achieve speedy and
effective justice, avoid
delays and unnecessary
expense, and ensure that
as far as possible,
all matters in dispute
between parties may be
completely, effectively and
finally determined and
multiplicity of proceedings
concerning any such matters
avoided.”
I could not
agree with my respected brothers
in the majority on this issue,
because to do so would militate
against the policy that
motivated the enactment of the
former Order 63(6), and which
has been made more patent in the
current Order 1(2). In my
respectful view, this provision
(Order 1(2)) declares in no
uncertain terms, a paradigm
shift from the way we have been
applying the Civil Procedure
Rules in the past. It is a
resounding affirmation of the
oft-quoted statement by Collins,
M.R. in In Re Coles and
Ravenshear, [1907] 1 KB 1
that:-
‘… the
relation of rules of practice to
the work of justice is intended
to be that of a handmaid rather
than mistress….’
Hence, the
provision reflects a commitment
to the objective of the ongoing
judicial reform programme, which
is to assure access to quality
justice through speedy, cost
effective and efficient justice
delivery systems and practices.
Unfortunately, the real outcome
of the position taken by my
brothers in the majority, on
this issue, is everything sought
to be avoided under the current
policy. Justice for the
Respondent, and an effectively
final determination of all
matters in dispute between the
parties, have been postponed
until he brings another action
for declaration of title and
recovery of possession; the
Respondent will be put to
unnecessary expense to establish
a claim he has, to all practical
intents and purposes, already
established; and there has been
no effort to avoid a
multiplicity of proceedings. In
the circumstances, I fail to see
what ends of justice have been
served by such an outcome.
S.A.B. AKUFFO
(MS)
JUSTICE OF
THE SUPREME COURT
DR.
DATE-BAH JSC:
The bone of contention in this
case is Plot No. 19, Ring Road
Industrial Area, Kaneshie,
Accra, and the buildings on it.
The
defendant/respondent/respondent
(whom I will subsequently refer
to as the defendant) claims
ownership of the plot and holds
a land title certificate
relating to it. He was also the
principal shareholder in General
Cold Industry Limited,
incorporated in 1974. This
company was carrying on business
on the land and premises in
dispute, when the Armed Forces
Revolutionary Council
confiscated the proprietary
rights of the company and all
shares in it by Decree in 1979
(AFRCD 31). That Decree did not
purport to confiscate the land
and premises on which the
confiscated enterprise conducted
its business. The confiscated
enterprise was given to the
Ghana Industrial Holding
Corporation (GIHOC) to run.
GIHOC took charge of both the
enterprise and the premises in
which it did its business and
continued running the business
on Plot No. 19.
The business
was restored to the defendant,
after the return of
constitutional rule in 1979.
The defendant testified that he
was allowed through the courts
to take back his properties in
1980 (p.113 of the Record).
However, the business was
re-confiscated after the PNDC
took power. This was done by
PNDC Law 30 in 1982. GIHOC
resumed the ownership and
management of the enterprise and
changed its name to GIHOC
Refrigeration and Household
Products Ltd. in 1984.
The defendant
endeavoured to secure the return
of his confiscated properties
and petitioned the authorities
several times to that end.
Eventually, he thought his
efforts had been crowned with a
degree of success when a letter
(Exhibit 5) was written on
behalf of the Confiscated Assets
Committee to the Executive
Secretary of the Divestiture
Implementation Committee
(“DIC”). This letter advised
the DIC as follows:
“1)
Divestiture of GIHOC
Refrigeration must be limited to
only those assets that belonged
to General Cold Industry and
taken over by GIHOC
Refrigeration plus any other
assets acquired by GIHOC
Refrigeration since the take
over.
2) The
land and buildings there known
as Plot 19 North Industrial Area
which for all practical purposes
was never confiscated is to be
released to John Assi.”
When the
plaintiff/appellant/appellant
(hereafter referred to as the
plaintiff) failed to surrender
the plot to the defendant, the
defendant instituted legal
proceedings in 1997 against the
plaintiff for possession of the
plot. His grounds were that it
belonged to him and not his
company, General Cold Industry
Ltd., and therefore the
confiscations of 1979 and 1982
did not operate to divest him of
his title. The plaintiff in the
present case, who was the
defendant in that case, raised
the defence that it had been in
adverse possession of the plot
for more than 12 years and
therefore had extinguished the
title of the defendant in this
case and become the new owner of
the property. The defendant
subsequently discontinued this
action.
Because the
plaintiff had not counterclaimed
in the action brought by the
defendant, when the defendant
discontinued it, the plaintiff
no longer had a forum to
ventilate its claim that the
statute of limitation had vested
title in it. Accordingly, it
brought the present action
against the defendant claiming:
(i)
“a
declaration that it is the owner
in possession of the property
known as Plot 19, Ring Road
Industrial Area, Kaneshie,
Accra.
(ii)
a
declaration that the title and
right which the defendant
hitherto had in the said
property became extinguished by
reason of the adverse possession
of it by the plaintiff for a
continuous period of more than
12 years from 1979 or 1982 when
the plaintiff, then called
General Cold Industry Ltd., took
adverse possession of it.
(iii)
Order
of perpetual injunction
restraining the defendant by
himself, servants or agents
from, in any way whatsoever
whether directly or indirectly,
interfering with the said
property or the plaintiff’s
title to or possession of it.”
The learned
trial judge, His Lordship Abada
J., dismissed the action. He
held that, on the evidence, the
plaintiff’s occupation of Plot
19 was based on Government
permission and that made them
licensees of the Government and
therefore not adverse
possessors. He further held
that the defendant, having
acquired a land title
certificate, his interest in the
land was indefeasible.
Accordingly, not only did he
dismiss the plaintiff’s action,
but he also declared title in
favour of the defendant and
ordered that the defendant
should forthwith recover
possession of the land in
dispute.
From this
judgment, the plaintiff appealed
to the Court of Appeal. The
Court of Appeal unanimously
confirmed the learned trial
judge’s dismissal of the
plaintiff’s action (using a
different rationale), but set
aside the orders (except as to
costs) made by the learned
judge, since the defendant had
not counterclaimed for the
reliefs that the trial judge had
granted.
Both parties
were dissatisfied by this
judgment and therefore the
plaintiff has appealed to this
Court, while the defendant has
cross-appealed against the
setting aside of the learned
trial judge’s orders.
The grounds
of appeal urged on this court by
the plaintiff are as follows:
i.
“The
Court of Appeal misdirected
itself in law in holding that a
person who has been in adverse
possession of land for the
statutory period which has
extinguished the title of the
ousted owner cannot maintain an
action against the ousted owner
if he disturbs the title and
possession of the adverse
possessor.
ii.
The
Court of Appeal grossly
misdirected itself in law when
it held that the provision of
the Limitation Decree on adverse
possession can only be used by
the adverse possessor after the
expiration of the statutory
period of 12 years as a shield
and not a sword.
iii.
The
Court of Appeal caused a
substantial miscarriage of
justice against the appellant
when it held that the appellant
became and was in possession of
the plot in dispute as a
licensee of the respondent when
that was not the case put
forward by the respondent
himself who pleaded that the
appellant was in occupation as a
licensee of the government,
thereby putting up a case for
the respondent other than the
one he had put forward.
iv.
The
Court of Appeal misdirected
itself in giving effect to the
letter of the Confiscated Assets
Committee to the effect that the
plot be released to the
respondent when, on its own
showing, the appellant was on
the plot as the licensee of the
respondent rather than the
government.
v.
The
Court of Appeal misdirected
itself in thinking that the fact
the respondent might have
petitioned against the
confiscation of his shares in
the appellant as a company had
relevance to the question of
acquisition of title to the
plot, which was never a
confiscated property, by adverse
possession.
vi.
The
Court of Appeal failed to take
cognisance of the fact that if
the appellant was indeed in
possession of the plot as a
licensee of the respondent would
not have sued the appellant in
1997 as a trespasser for
recovery of possession of the
plot.
vii.
The
costs of c10 million were
excessive, exorbitant and
unreasonable.”
The ground on
which the defendant has based
his cross-appeal is:
“The Court of Appeal misdirected
itself in law in holding that
the High Court had no discretion
to declare title in favour of
the Defendant and order the said
Defendant forthwith to recover
possession of Plot 19 Ring Road
Industrial Area, Kaneshie
because the Defendant had not
counterclaimed for the said
reliefs.”
The
plaintiff, in its Statement of
Case before this Court, argued
its first two grounds of appeal
together. These are the grounds
that I will consider first. It
should be noted, however, that
these two grounds are examined
without prejudice to the fact
that if the plaintiff is held,
on the facts and the law
applicable to this case, to have
been a licensee of the
defendant, then the case for the
plaintiff’s adverse possession
would collapse. Thus, even if
the proposition of law the
plaintiff is advocating in these
two grounds were upheld, it
would not lead to the
plaintiff’s success in the
appeal, if the finding that the
plaintiff is a licensee of the
defendant were upheld.
The issue
raised by the first two grounds
of appeal is whether 12 years’
adverse possession of land by a
plaintiff results, not only in
the original owner’s rights in
the land being extinguished, but
also in the said plaintiff
acquiring such title to the land
possessed as can found an action
for declaration of title. The
plaintiff complained of the
Court of Appeal’s view that
section 10(1) of the Limitation
Decree 1972 (NRCD 54) is to be
construed as a shield rather
than a sword. Section 10(1)
provides that:
“No action
shall be brought to recover 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.”
Her Lordship
Mrs. Adinyira JA, delivering the
judgment of the Court of Appeal,
said, in relation to this
provision:
“I quite
agree with counsel on this
submission that the said rule is
meant to be a defence to an
action to claim land occupied by
someone in adverse possession.
I have not come across any case
as yet where anyone has used
adverse possession as the
foundation of his or her title
to mount an action, except
perhaps in a counterclaim.”
The plaintiff
argues that this view of the
Court of Appeal overlooks the
implications of section 10(6) of
the Limitation Decree. That
subsection states that:
“On the
expiration of the period fixed
by this Decree for any person to
bring an action to recover land,
the title of that person to the
land shall be extinguished.”
The
plaintiff’s argument, in its
Statement of Case before this
Court, is to the following
effect:
“When
Adinyira JA said she had not yet
come across a case where anyone
has “used adverse possession as
a foundation of his or her title
to mount an action except
perhaps in a counterclaim” she
was obviously overlooking
section 10(6) of the Decree. If
she had adverted her mind to
that subsection which she had
herself quoted and not fixed her
eyes on only subsection 1 which
counsel for the respondent had
used as the foundation for the
proposition that adverse
possession can be used only as a
shield and not a weapon, she
would not have found herself in
agreement with the proposition.
An examination of the whole case
presented on behalf of the
company both at the High Court
and in the Court of Appeal, as
contained in the written
submissions at pages 118-143 and
page 208-247 of the record, will
reveal that the company’s case
was based on section 10(6) of
the Decree.”
I find the
plaintiff’s argument
overwhelmingly persuasive in
principle. The combination of
the extinguishing of the
original owner’s rights (section
10(6)) with the barring of
action against the adverse
possessor (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. Leach v Jay
(1868) 9 Ch.D.44 is persuasive
authority for the proposition
that a squatter may acquire an
actionable interest in the land
on which he or she squats. That
was a case in which R died
intestate leaving a sole
heiress-at-law, A. At the time
of R’s death in 1864, he was
seised of freehold houses.
After his death, his widow
wrongfully entered into
possession of these freehold
houses and retained possession
until her death in 1869. After
her death, her devisees entered
into possession of the houses.
A died in 1871, without ever
having taking possession of R’s
property. In her will, she
devised to L all real estate (if
any) of which she might die
seised. L brought action
against the devisees of R’s
widow for recovery of R’s
houses. The Court of Appeal
held that since A, at the time
of her death had no seisin, the
property had not passed under
her devise.
In the course
of the Court of Appeal’s
judgment in this case, James LJ
made some remarks which cast
light on the issue confronting
this Court. This is what he
said (at p. 44-45 of the
Report):
“I am of
opinion that there are such
things as seisin and disseisin
still. Mr. Joshua Williams
says in his late book on Seisin:
“If a person wrongfully gets
possession of the land of
another he becomes wrongfully
entitled to an estate in fee
simple, and to no less estate in
that land; thus, if a squatter
wrongfully encloses a bit of
waste land and builds a hut on
it and lives there, he acquires
an estate in fee simple by his
wrong in the land which he has
enclosed. He is seised, and the
owner of the waste is
disseised. It is true that,
until by length of time the
Statute of Limitations shall
have confirmed his title, he may
be turned out by legal process.
But as long as he remains he is
not a mere tenant at will, nor
for years, nor for life, nor in
tail; but he has an estate in
fee simple. He has seisin of
the freehold to him and his
heirs. The rightful owner in the
meantime has but a right of
entry, a right in many respects
equivalent to seisin; but he is
not actually seised, for if one
person is seised another person
cannot be so.” Upon the
allegations in this statement of
claim, it appears to me that
Mary Roberts [i.e. the
widow] was in the position of
the squatter in Mr. Williams’
book, that she squatted on the
land, and that she and her heirs
acquired an estate in fee by
wrong which in time might
eventually be turned into a
rightful estate.”
The learned
Lord Justice thus clearly
considered that a squatter may
eventually acquire an
enforceable and actionable
interest in land. The Privy
Council came to a similar
conclusion in Perry v
Clissold and Ors [1907] AC
73, where Lord Macnaghten said
(at p. 79):
“It cannot be
disputed that a person in
possession of land in the
assumed character of owner and
exercising peaceably the
ordinary rights of ownership has
a perfectly good title against
all the world but the rightful
owner. And if the rightful
owner does not come forward and
assert his title by process of
law within the period prescribed
by the provisions of the Statute
of Limitations applicable to the
case, his right is for ever
extinguished, and the possessory
owner acquires an absolute
title.”
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. Lord Radcliffe
summarised the common law
position on this issue as
follows in Fairweather v St.
Marylebone Property Co. Ltd
[1963] AC 510 at p. 535:
“It is
necessary to start, I think, by
recalling the principle that
defines a squatter’s rights. He
is not at any stage of his
possession a successor to the
title of the man he has
dispossessed. He comes in and
remains in always by right of
possession, which in due course
becomes incapable of disturbance
as time exhausts the one or more
periods allowed by statute for
successful intervention. His
title, therefore, is never
derived through but arises
always in spite of the
dispossessed owner. At one time
during the 19th
century it was thought that
section 34 of the Act of 1833
had done more than this and
effected a statutory transfer of
title from dispossessed to
dispossessor at the expiration
of the limitation period. There
were eminent authorities who
spoke of the law in just these
terms. But the decision of the
Court of Appeal in 1892 in
Tichborne v Weir put an end
to this line of reasoning by
holding that a squatter who
dispossessed a lessee and
“extinguished” his title by the
requisite period of occupation
did not become liable in
covenant to the lessee’s
landlord by virtue of any
privity of estate.”
This passage
clearly recognises that the
squatter gains title, after the
limitation period, by his or her
dispossession of the original
owner, although that title is
not by transfer from the
original owner. The speech of
Lord Denning in Fairweather v
St. Marylebone Property Co. Ltd
[1963] AC 510 at p. 543
et seq. is also supportive
of this proposition.
Further
support for the existence of a
possessory title gained by
adverse possession is to be
found in para 785 of
Halsbury’s Laws of England 4th
Ed. Vol. 28, which states:
“The
operation of the statutory
provision for the extinction of
title is merely negative; it
extinguishes the right and title
of the dispossessed owner and
leaves the occupant with a title
gained by the fact of possession
and resting on the infirmity of
the right of others to eject
him.”
Taylor v
Twinberrow
[1930] 2 KB
16, at 23 and 28 is the
authority cited for this
proposition. It is clear from
this authority 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 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.
To succeed in establishing this
claim of adverse possession,
however, it has to persuade this
Court to reverse the finding
made by the Court of Appeal that
the plaintiff was a licensee of
the defendant on plot 19. This
is why it is to that finding
that I turn next.
The
Plaintiff’s case in relation to
ground 3 of its appeal was that
the Court of Appeal was in error
in finding that the plaintiff
was a licensee of the defendant
on the land, when, according to
the defendant’s own pleadings at
the trial, his contention was
that the plaintiff was a
licensee of the government. In
the Plaintiff’s Statement of
Case before this Court, it set
out its case thus, on this
issue:
“The case
fought at the trial was on the
issue whether the company was in
possession of the plot as a
licensee of the government or in
its right as a trespasser
without the respondent’s
consent. In the Court of Appeal
the same issue arose. If the
respondent had pleaded that the
company was in possession as his
licensee, it would have been
denied for the action instituted
in 1997 by the respondent
against the company was on the
basis that the company had been
in possession since the
confiscation as a trespasser
without the respondent’s
consent. The case would then at
the trial have been fought on
the issue whether the company
was in occupation with the
respondent’s consent or without
his consent. What the Court of
Appeal did amounted to putting
up for the respondent a new case
he himself did not put up and
which was quite inconsistent
with what he had put up and by
reason of its own decision on
the new case so put up the
company was deprived of the
opportunity to contest that
issue. This clearly infringed
the audi alteram partem rule in
natural justice and caused
substantial miscarriage of
justice to the company. The
Court of Appeal had no power to
do that by raising a case which
was not before it and using it
to give judgment against a case
which was not before it and
using it to give judgment
against the company without
giving it an opportunity to be
heard on that case. However
sound the reasoning of that
court might be in coming to the
conclusion, which is not
acceptable, that the company was
a licensee of the respondent on
the plot after the 1982
confiscation, to the extent that
that was not an issue before
that court the decision given on
that issue was misdirected, null
and void and must be
disregarded.”
Before this
Court, the plaintiff was given a
further opportunity to be heard
on the issue of the company
being a licensee, when at the
hearing of the appeal on 8th
November 2005, this Court
ordered that the parties be at
liberty to file further written
submissions on the issue of
licences. In any case, even
before this order, the issue had
been well ventilated in the
parties’ Statements of Case.
The plaintiff’s response to such
a contention would, I suppose,
be that, however well ventilated
was the issue before this court,
that would not cure the alleged
miscarriage of justice before
the Court of Appeal.
This Court
therefore needs to determine
whether there was any
miscarriage of justice by the
Court of Appeal and whether the
Court of Appeal had power to
hold that the plaintiff was a
licensee of the defendant. By
the language it uses in its
Statement of Case (quoted
above), the plaintiff seems to
make this a jurisdictional
issue. It argues that the Court
of Appeal’s decision on this
issue is null and void. Is this
position sustainable?
The passage
in the judgment of Mrs. Adinyira
JA, which is attacked by the
plaintiff as thus taking her out
of jurisdiction, is the
following:
“My view on
this point is simple. The
company by name General Cold
Industry Ltd. was confiscated to
the state. The majority
shareholder in this company was
the defendant. This company
carried on its business in
premises, which incidentally
were situated on this Plot No.
19, which belonged to its
majority shareholder, the
defendant herein. There was no
evidence as to the terms under
which the Ghana Cold Industries
Ltd. was operating on Plot No.
19 at the time that the company
was owned by the defendant. So
at best it can be said that the
company’s right to occupation of
the land was derived from the
owner, the defendant herein in
the form of permission, as by no
stretch of imagination could it
be described as a trespasser or
a squatter on the said land. So
that in effect the company was
operating on the defendant’s
land as a licensee. See the
case of Hughes v Griffin [1969]
1 All ER 460 at 464 and dictum
of Romer LJ in Moses v Lovegrove
[1952] 1 All ER 1279 at 1285. I
do not subscribe to the
submission by counsel for the
plaintiff that after the
compulsory acquisition the
company’s occupation on the land
became adverse. My reasoning is
that the Government having
acquired the proprietary rights
in the company is deemed to
continue to enjoy all the rights
that the company had, as the
company was distinct from the
defendant who lost his
shareholding as a result of the
confiscation of the shares in
the company to the State. See
the celebrated case of Salomon v
Salomon [1897]AC22,HL. As such
it is my considered opinion that
the company, the plaintiff
herein continued to be a
licensee on Plot No. 19 until
such time that the licence is
revoked. So for the whole
period of time that the
plaintiff was on the land as a
mere licensee he cannot be said
to be in adverse possession to
defeat the defendant’s title to
the land.”
To my mind,
the learned Justice of Appeal
was doing no more than drawing
an inference from the evidence
adduced at the trial and
spelling out the legal
implications of the evidence and
the inference from the
evidence. I do not see how any
decision arrived at through this
process is to be regarded as
null and void. There is no
infringement of the principle
embodied in the maxim audi
alteram partem. The
original trial process was an
embodiment of that principle.
All that the learned Justice of
Appeal did, during a re-hearing
by way of an appeal, was to draw
a reasonable inference from the
evidence on record, namely, that
plot 19 belonged to the
defendant and that a company of
which he was a principal
shareholder carried out business
on that plot. In the absence of
any evidence spelling out the
exact nature of the relationship
between the defendant and his
company as regards the plot, it
was legitimate to infer that the
defendant’s company was doing
business on his land with his
permission. This inference an
appellate court was entitled to
make, since the appeal is by way
of rehearing. An appellate
court’s right to make such an
inference is trite law and it is
hardly necessary to cite
authorities in support of it.
(Nevertheless, see for example,
Koglex (No.2) v Field
[2000] SCGLR 175 at p. 184,
per Acquah JSC, as he then
was: “…where the findings are
based on established facts, then
the appellate court is in the
same position as the trial court
and can draw its own inferences
from those established facts.”)
If the
plaintiff company was a licensee
of the defendant before its
confiscation, then the issue,
which arises, is whether the act
of confiscation automatically
terminated that licence. In my
view, the fact of confiscation
alone is not to be construed as
terminating the licence of the
plaintiff from the defendant.
The defendant, of course, had
the right to terminate the
licence and therefore one has to
identify what act or conduct of
the defendant could be
interpreted as having terminated
the licence. Prior to the
defendant’s institution of an
action against the plaintiff to
regain possession of the plot,
there was no evidence on record
of an unequivocal act that could
be construed as a termination of
the licence. Accordingly, in
my view, prior to the
institution of the defendant’s
action in 1997, the plaintiff
was a licensee of the
defendant. In my view, Her
Lordship Mrs. Adinyira JA’s
statement of the facts and law
in the passage quoted above is
unexceptionable and well within
her jurisdiction.
Even if her
legal interpretation of the
facts before her took the
plaintiff by surprise, in this
court the plaintiff has had
ample opportunity to contest the
view of the law espoused by
her. After carefully
considering the arguments of
counsel for the plaintiff on
this issue, I have come to the
same conclusion as Mrs. Adinyira
JA that the plaintiff was a
licensee of the defendant after
the confiscation of the shares
in the defendant’s company until
the institution by the defendant
of his action in 1997 and
therefore its occupation of the
plot was not adverse possession.
There was no miscarriage of
justice by the Court of Appeal.
I have reached this conclusion
in spite of the further
arguments by counsel for the
plaintiff which were submitted
to this Court in response to the
invitation to counsel on both
sides by this Court on 8th
November 2005 to make additional
submissions on the question of
licence. Counsel for the
plaintiff complained of
substantial injustice occasioned
the plaintiff because of the
Court of Appeal’s suo motu
finding that the plaintiff was a
licensee of the defendant.
Counsel’s
argument was in the following
terms:
“It is the
consent or licence of the person
who can complain of trespass in
respect of the particular entry
on the land that is relevant for
purposes of the doctrine of
adverse possession. It was in
the light of this that the Court
of Appeal sought to substitute
for government licence the
licence of the defendant himself
so that the occupation of the
plot by the company from 1982
would not be adverse or hostile.
In doing that the Court of
Appeal did what it was not
permitted to do, something which
caused substantial injustice to
the company because the nature
of the consent or licence on
which that court founded its
judgment was different from the
one which was pleaded. If the
defendant had pleaded that the
company was in possession of the
plot from 1982 as his licensee
and given evidence to that
effect at the trial the company
would have denied that in a
reply and pleaded the 1997
action which the Defendant
discontinued to establish that
the company was not there as a
licensee of the defendant but as
a trespasser.”
Counsel then
proceeds to quote the
endorsement on the 1997 writ and
paragraphs from the statement of
case. It seems to me that the
pleadings in those discontinued
proceedings have very little
probative value in this case.
What was pleaded is not
necessarily proof of the truth
of the matter pleaded. I am
content to limit myself to the
evidence on record in this
case. I do not think that the
inference made by the learned
Court of Appeal judge in this
case caused any substantial
injustice. Accordingly, I would
dismiss the third ground of
appeal.
This implies
that I think that the learned
trial judge was in error in
holding that the plaintiff was a
licensee of the Government.
Since the Government was not the
owner of Plot 19, I do not see
how it could validly give a
licence in relation to it.
Nemo dat quod non habet.
Nevertheless, the defendant’s
counsel persisted, even in the
additional Statement of Case
filed by him, pursuant to this
Court’s order of 8th
November 2005, in contending
that the plaintiff was a
licensee of the Government. I
do not consider that this line
of argument helps his case.
The dismissal
of the third ground of appeal,
in effect, disposes of the
plaintiff’s appeal. For,
without the establishment of
adverse possession, its case
collapses. It is thus not,
strictly speaking, necessary to
consider what the plaintiff
argued as its fourth ground of
appeal. This ground was in the
following terms:
“The Court of
Appeal misdirected itself in
thinking that the fact that the
respondent might have petitioned
against the confiscation of his
shares in the appellant as a
company had relevance to the
question of acquisition of title
to the plot which was never a
confiscated property, by adverse
possession.”
In relation
to ground 4 of its appeal, the
plaintiff argued as follows:
“It is
submitted that any petitions the
respondent was found to have
made had no legal effect
whatsoever on the company’s
occupation of the plot. If by
virtue of the provisions of the
limitation decree the company
had acquired title to the plot
after 12 years, its title was
wholly independent of a
confiscation and the title so
acquired could not be defeated
by the Confiscated Assets
Committee in the misguided
letter dated 12th
April 2000, Exhibit 6, said to
have been written to the company
to ask it to give up the plot it
had lawfully acquired by
operation of law, 6 years before
the letter was written.”
On this
point, the defendant responded
in his Statement of Case that
his protests were not directed
towards the return of his
company but rather more
generally towards the return of
the “disputed properties”. He
argues that:
“Thus where
the true owner continuously
makes various claims for his
land the trespasser cannot be in
adverse possession. Being in a
Military Government era the
Respondent had no option but to
petition continuously in the
hope that the properties would
be restored to him.”
It is clear
that, in view of my decision
earlier that the plaintiff had
not established adverse
possession, because he was in
occupation as a licensee of the
defendant, a determination on
the fourth ground becomes
unnecessary and hypothetical.
This Court should thus eschew
making a decision on this
ground.
Finally, in
relation to the plaintiff’s
appeal, Mr. Samuel Okudzeto,
counsel for the defendant,
during his oral argument before
this court on 8th
November 2005, drew attention to
the fact that according to a
search made at the Companies
Registry on 17th
February 2003 (Exhibit 7), the
defendant and his associates
remained the directors of the
plaintiff company, even under
its changed name. The directors
registered at the Companies
Registry had clearly not given
the company authority to
institute the present action.
Counsel was therefore
challenging the authority of the
plaintiff to bring the present
action.
This issue
was addressed by the learned
trial judge. His view on the
matter prompted a ground of
appeal from the plaintiff in the
proceedings before the Court of
Appeal. The learned trial
judge’s view was that the point
raised by Mr. Okudzeto was a
valid one, but that a decision
on this issue of locus standi
was superfluous, in the light of
his earlier holding that the
plaintiff was a licensee of the
Government. The Court of Appeal,
however, did not address the
issue in its judgment. Mrs.
Adinyira JA was of the view
that, although the plaintiff had
appealed on several grounds, the
main question to be decided was
whether the plaintiff had
acquired title to the land by
adverse possession or was a mere
licensee of the Ghana
Government.
Accordingly,
if the defendant was aggrieved
by the Court’s failure to
address this issue of the
authority of the plaintiff to
sue, he should have
cross-appealed on the issue.
Not having done so, I do not
believe that he can be heard, as
of right, on the issue at this
stage. (See Rule 6(6) of the
Supreme Court Rules, 1996 (CI
16)). The issue has not been
raised in any ground of appeal
before this Court. In any case,
even if this Court were to
consider this issue and rule in
favour of the defendant, there
would not be any difference in
the result of the appeal.
Although this Court has power,
under Rule 6(7)(b) of the
Supreme Court Rules, 1996 (CI
16), to consider issues not
specifically raised in a ground
of appeal before it, this is not
an appropriate case in which to
exercise that power since such
exercise would not affect the
result of the case. For ease of
reference, let me set out
subrules (6) and (7) of Rule 6
of the Supreme Court Rules,
1996:
“(6) The
appellant shall not, without the
leave of the Court, argue or be
heard in support of any ground
of appeal that is not mentioned
in the notice of appeal.
(7)
Notwithstanding sub rules (1) to
(6) of this rule the Court –
(a)
may
grant an appellant leave to
amend the ground of appeal upon
such terms as the Court may
think fit; and
(b)
shall
not, in deciding the appeal,
confine itself to the grounds
set forth by the appellant or be
precluded from resting its
decision on a ground not set
forth by the appellant.”
For the
reasons set out above, I would
dismiss the plaintiff’s appeal
from the Court of Appeal. It
now remains for me to deal with
defendant’s cross-appeal. The
issue raised in that
cross-appeal is whether the
defendant is entitled to a
declaration of title in his
favour and an order of recovery
of possession, when he had not
counterclaimed for these
reliefs. It seems to me that,
under the system of pleading
that the Ghanaian legal system
has inherited from England and
continues to follow, the
defendant cannot defend the
grant of these reliefs by the
learned trial judge. Upholding
these reliefs would be
tantamount to giving remedies to
a person who has not sued. The
courts are not in the business
of conferring unsolicited
remedies on those who have not
invoked the courts’
jurisdiction. The fact that the
plaintiff’s action had failed
and it had been denied a
declaration of title could not
be a basis for positively
declaring title for the
defendant, when he had not
thought it fit to counterclaim
for such relief. In the context
of this case, it was only on a
counterclaim, which is, in
effect, a cross-action, that the
positive reliefs of a
declaration of title and an
order of recovery of possession
could validly be granted.
It is settled
law that a person seeking the
recovery of land must do so by
the strength of his or her own
title and not by reason of the
weakness in the title of the
person in possession. (See
Oppong Kofi v Fofie
[1964] GLR 174; Dompreh
v Pong [1965] GLR 126 and
Lyell v Kennedy
(1882) 20 Ch.D. 484, at 488,
490.) This implies that he or
she must bring his or her own
suit or counterclaim to enable
the court to assess his or her
claim and grant him or her the
reliefs sought.
The defendant
has relied on remarks I made in
Butt v Chapel Hill Properties
Ltd. [2003-2004] SCGLR 636
at 652 in support of his case.
There I said:
“The High
Court, under Order 63, r6 of the
High Court (Civil Procedure)
Rules , 1954 (LN 140A), has
authority to make any order
which it considers necessary for
doing justice, whether such
order has been expressly asked
for by the person entitled to
the benefit of the order or
not. This is an appropriate
case for the Supreme Court to
exercise this power of the High
Court, pursuant to section 2(4)
of the Courts Act, 1993 (Act
459), under which the Supreme
Court has all the powers,
authority and jurisdiction
vested in any court established
by the Constitution or any other
law.”
These remarks
do not derogate from the
fundamental principle I have
expressed above, namely, that
before particular reliefs or
orders can be considered, there
has to be a suit or counterclaim
in the context of which the
reliefs or orders are to be
granted. In the Butt
case, the above dictum was
uttered in the course of
granting interest on a debt,
when it had not been expressly
claimed. However, the
distinction between this case
and that case is that there a
suit had been brought by the
plaintiff and he had pleaded
material facts on the basis of
which the court could validly
grant him the relief that he had
not expressly claimed. In this
case, in contrast, the defendant
had not brought any counterclaim
in the context of which the
positive reliefs of recovery of
possession and declaration of
title could be granted him.
The defendant
also relied on other cases in
support of his case. Let me
next consider them. The
defendant cited the dictum in
Re Lewis’s Declaration of Trust
[1951] 1 All ER 1005 at p.
1008 that “this relief was not
specifically claimed in the
writ, but, in my judgment, that
does not preclude me from
awarding it under the claim to
further or other relief.” It
seems to me that this dictum is
distinguishable on the same
grounds as I have already set
out in relation to the Butt
case. This was a case in which
the writ provided the umbrella
for a further relief to be
granted. A counterclaim is like
a writ in this context. Without
it, there is no umbrella under
which to provide an unclaimed
relief.
In yet
another case cited by the
defendant, Yeboah v Bofour
[1971] 2 GLR 199 at p. 222,
Azu Crabbe JSC (as he then was)
rejected a preliminary objection
by counsel for the respondent
against a vague ground of
appeal. The learned judge
thought that the intention of
the appellant in question to
appeal against those parts of
the judgment affecting him was
clear from the notice of appeal
and the surrounding
circumstances. It was in this
context that he expressed the
following view, which has been
cited by the defendant in this
case in support of his
cross-appeal:
“Even if the
plaintiff had not
cross-appealed, this court has
power under rule 32 to grant the
only relief to which the
plaintiff is entitled by law:
see Chahin v Boateng
[1963] 174 S.C.”
In Chahin
v Boateng, the Supreme Court
of the First Republic held that
it had power to give any
judgment and make any order that
ought to have been made even
though the appeal may be from
part of the judgment only. This
assertion of jurisdiction, based
on rule 32 of the Supreme Court
Rules 1962 (LI 218), must, to my
mind, be distinguished from an
assertion of jurisdiction to
grant a positive relief to a
defendant who has not
counterclaimed. Yeboah v
Bofour is thus, in my view,
not a helpful authority in this
case. In relation to an absence
of counterclaim, the more
relevant authority is Kannin
v Kumah [1959] GLR 54. In
that case, the pre-Republican
Court of Appeal held that, in
the absence of a counterclaim by
the defendants, judgment in
their favour against the
plaintiff should not have been
accompanied by a declaration
that they were owners of the
property. That is the
persuasive authority that I
propose to follow.
I think that
the current Court of Appeal
applied the existing law
correctly to this case when it
declined to give a declaration
of title that had not been
claimed by the defendant. The
defendant could, even after the
Court of Appeal’s judgment, have
applied for an amendment of its
statement of defence to add a
counterclaim, but declined to do
so. I must say I am surprised
that counsel for the defendant
did not apply for such an
amendment. Counsel having
failed to make such an
application, I believe that this
Court would risk doing damage to
the architecture of the law on
pleadings, if it were to give a
declaration of title that has
not been claimed. In my view,
none of the authorities cited by
the defendant (supra)
supports the proposition that
where a defendant has not
counterclaimed in a suit, the
High Court has jurisdiction to
give him or her a positive
relief such as a declaration of
title, which is only available
under the umbrella of an action
or cross-action (or its
equivalent). The rule enforced
in Kannin v Kumah is not
a pointless technicality. It
has an underlying purpose. The
jurisdiction of the trial court
was invoked in this case by the
issue of the Writ of Summons. A
counterclaim, similarly, would
have invoked the jurisdiction of
the trial court in respect of
the defendant’s cross-claim.
Not having taken this
opportunity of invoking that
jurisdiction, the defendant can
hardly complain that a
jurisdiction that he has
declined to invoke has not been
exercised in his favour. If
that jurisdiction were now to be
exercised by this Court, it
would undermine the rule of
procedure whereby a defendant’s
positive claim is required to be
set out in a counterclaim.
Let me
conclude by praying in aid the
historical background to
counterclaims, as recounted in
Bullen & Leake and Jacob’s
Precedents of Pleadings (12th
Edition) at pp. 96 – 97:
“A
counterclaim is substantially a
cross-action, and not merely a
defence to the plaintiff’s
claim. It is a cross-claim
which the defendant may raise in
the very action brought against
him by the plaintiff, instead of
himself bringing a separate,
independent action against the
plaintiff. At common law, such
a cross-action could not be so
raised, since the law did not
allow the action of the
plaintiff against the defendant
to be met by an independent
claim of the defendant against
the plaintiff, against whom the
defendant had to bring a
separate cross-action. The
right to maintain a counterclaim
was first introduced by the
Judicature Act 1873, and the
procedure by counterclaim has
been greatly extended in its
operation and application by the
rules, so that as far as
practicable, the counterclaim is
assimilated to the position of a
statement of claim indorsed on a
writ of summons.”
The position
that I have taken above,
therefore, flows logically from
the inherent nature of a
counterclaim, as pithily set out
in the passage above. (The
current Ghanaian provisions on
counter-claims set out in Order
12 of the High Court (Civil
Procedure) Rules 2004 (CI 47)
retain, as did the relevant
provision (Order 21 rule 9) in
the repealed 1954 High Court
(Civil Procedure) Rules, this
quintessence). My position
amounts to saying that to allow
a positive relief to be asserted
by a defendant without pleading
it in a counterclaim is the
exact equivalent of allowing a
trial court to give a remedy to
a purported plaintiff who has
not bothered to issue a writ
indorsed with the appropriate
statement of claim.
In the
result, I consider that the
defendant’s cross-appeal should
also be dismissed.
DR. S. K.
DATE-BAH
JUSTICE OF
THE SUPREME COURT
ANSAH,
J.S.C.: I have
had the privilege of reading
beforehand, the opinion just
read by the learned Justice Dr.
Date-Bah and I concur that the
appeal be dismissed. I also
agree with the reasons he gave
for arriving at his conclusion.
J. ANSAH
JUSTICE OF THE SUPREME COURT
ANINAKWA,
JS.C.:
I also agree.
R. T.
ANINAKWA, J.S.C.
JUSTICE OF THE SUPREME COURT
PROF.
OCRAN, J.S.C.:
I adopt the
facts of this case as presented
by my learned brother Dr.
Date-Bah and therefore make no
attempt to restate them.
I am also of
the firm view that the appellant
company never acquired title to
the property because the
confiscation of the
defendant/respondent’s business
in 1979 and again in 1982 never
included the land or premises on
which the enterprise conducted
its business. Further, I am in
complete agreement with Justice
Date-Bah’s opinion that no
question of adverse possession
by the plaintiff/appellant
company arises because it was in
occupation of the land in
question as a licensee. An
occupant of land under licence
is not a trespasser; and the
occupant cannot be a licensee of
the rightful owner and
simultaneously assert adverse
possession against that owner.
However, this
conclusion does not by itself
identify the grantor of that
licence. The identification of
the grantor in this case has
been hotly argued both at the
Court of Appeal and in this
Court. Like my brother Date-Bah,
I do not see how the appellant
company could have been a
licensee of the Government,
particularly in view of the
letter of 29 May 1996 from the
Chairman of the Confiscated
Assets Committee to the
Executive Secretary of the
Divestiture Implementation
Committee (page 197 of the
Record of Appeal), which flatly
stated that: ‘‘ the land and the
buildings there known as Plot 19
North Industrial Area… for all
practical purposes was never
confiscated…”
Therefore, I
also dismiss the grounds of
appeal urged on us by the
Plaintiff/Appellant.
However, I
take a different view of the
matter when it comes to the
defendant/respondent’s
cross-appeal. I take issue with
the Court of Appeal’s position
that it had no discretion to
declare title in favour of the
defendant/respondent because
that relief had not been
specifically counterclaimed in
the High Court.
The position
taken on the cross-appeal in the
opinion delivered by my learned
brother not only reduces our
substantive holdings into a
Pyrrhic victory for the
Defendant/Respondent; but it may
also mean that the latter might
have to return to court in a
fresh suit to seek a formal
declaration of title for
self-protection in the future as
regards third parties. Such a
position does not bode well for
judicial economy and the need to
defuse unnecessary court
litigation. It is the sort of
judicial stiffness that we, as
the final court of the land
charged with the administration
of justice, should be hesitant
to embrace.
It is crystal
clear that at all material times
in this litigation, title to
Plot No. 19, North Industrial
Area, remained the essence of
the controversy. We also know
from the record that strong
attempts were made to interfere
with the title of the
defendant/respondent, first
under a statutory color of law
through AFRC Decree 31 and PNDCL
30, and later by a claim of
adverse possession by the
plaintiff-appellant.
Given the
position we have all taken on
the substantive appeal as
regards title to the land, and
the background threats to the
Defendant/Respondent’s quiet
enjoyment of his property, I
wonder why we should then shy
away from a positive
declaration of title in the
latter’s favour. If we take
away the issue of title and the
related matter of licence, there
is virtually little else left to
decide in this case. The core
issue sounds like a declaration
of title; it smells like a
declaration of title; it feels
like a declaration of title; and
it looks like a declaration of
title. Why not end our judgment
with a declaration of title,
unless there is a rule of
law specifically and
unequivocally disallowing this
course of action even at the
level of the Supreme Court?
Is there
actually a rule of procedure or
substantive law that commands us
to take the position that we
cannot positively declare title
in favour of the
Defendant/Respondent in the
circumstances of this case? Or
is this conclusion merely the
result of a preferred
interpretation of certain
precedents in our courts? If it
be a matter of interpretation,
then I prefer an approach that
avoids arid technicism of the
sort that suffocates the ends of
justice.
My attention
has been drawn to our procedural
rules on counterclaims in the
High Court (Civil Procedure)
Rules, 2004 (C.I. 14), and the
equivalent provisions in the
older Rules of 1954(L. N.140A).
Rule 1(1),
Order 12 of the current rules
states the essential purpose of
counterclaims as providing an
option or facility to the
defendant to make her own claim
against the plaintiff in the
context of the case presented,
instead of having to pursue the
other available option of
bringing a separate action on
her own. Where she decides to
pursue the option of a
counterclaim, Order 12 obliges
her to follow the procedures in
Rule 1(2) as well as the rest of
the procedures under Order 12.
There is no rule in the said
Order making counterclaims a
prerequisite to the grant of
declarations of title or other
appropriate reliefs sought in
the form of cross-appeals at the
level of the Supreme Court, or
even at the Court of Appeal.
At any rate,
even at the trial level, the
High Court Rules have maintained
sufficient flexibility both in
the old and the new Rules of
procedure to allow courts to
make such orders dealing with
the proceedings as it considers
just, or necessary for doing
justice to the case. Now, we sit
here, not as a trial court or
even as a first-level appellate
court, but as a court of last
resort to do justice. Under our
Supreme Court Rules, Rule 23(3)
empowers our Court in any civil
appeal to make any order
necessary for determining the
real issue or question in
controversy between the parties.
Furthermore, in a system where
appeals are said to be in the
nature of a re-hearing, our
inclination to make such a
declaration in the face of an
openly argued cross-appeal is
made even easier.
A few decided
cases have been cited to us in
support of the proposition that
a cross-appeal seeking a
declaration of title cannot be
upheld if the relief was not
raised as a counterclaim at the
trial court level. Among the
cases is Kannin v. Kumah &
Others [(1959] GLR 54)],
which involved a dispute in
which a sale of a house to a
group of purchasers was
challenged by a member of the
original family owners on the
grounds that the sale was
conducted without the knowledge
and consent of other members of
the owning family. The trial
court-Kumasi Magistrate Court
B-found for the purchasers, and
also declared them the owners of
the land, even though they as
defendants had not made a
counterclaim for declaration of
title. Because there was no
counterclaim, the Court of
Appeal set aside that part of
the trial court judgment
decreeing ownership in the
defendants/purchasers. It is
worth noting that there was no
cross-appeal at any appellate
level of the Kanin case-neither
in the Asantehene’s Court B, the
Land Court, nor the Court of
Appeal.
Thus by this
decision, the Court of Appeal in
1959 introduced a rather
doctrinaire proposition in our
judicial process that an
oversight or possible mistake
made by a defendant in the very
first court— in this case a
court as rudimentary as the
Kumasi Magistrate Court B as it
stood in 1955—should stick with
the defendant, with no
possibility of intervention or
correction, even if this meant
the denial of the only relief to
which the successful party was
entitled in law.
At any rate,
Kannin was a rather terse,
one-and-a half- page judgment
that made no attempt to explain
the reason for the denial of
authority in an appellate court
to declare title in the absence
of a prior counterclaim in the
very first court; nor did it
cite any rule of procedure
demanding such a result. If the
reason possibly lies in the need
to avoid surprise and to provide
the other party the opportunity
to respond to the defendant’s
claim, it is rather difficult to
accept this as a justification
in a situation where a matter
has been raised in cross-appeal
and the issue squarely laid out
in open court for argument. I am
inclined to reject Kannin
as precedent because its
application to the concrete
facts of this case would provide
a perfect example of what I
regard as unproductive and
unhelpful technicism in the law.
I prefer the
decision in Chahin and
Another v. Boateng[1963] 2 GLR
174, a money lending and
mortgage case delivered by the
Ghana Supreme Court four years
after the Court of Appeal
decision in Kannin. As in
Kannin, there was no
counterclaim in Chahin.
Yet in the latter case, the
Supreme Court, relying on rules
31 and 32 of the 1962 Supreme
Court Rules, made it clear that
it had power to make any order
necessary for determining the
real question in controversy in
the appeal; and to give any
judgment and make any order that
ought to have been made.
Further, that such powers might
be exercised by the Court
notwithstanding that the
appellant may have asked that
part only of a decision may be
reversed or varied, or that such
respondents or parties may not
have appealed from or complained
of that decision. Based on these
Rules, the Supreme Court ruled
on its own that the
plaintiff-respondent was
entitled to a declaration that
the defendant could not enforce
the obligations arising out of
the transaction in question, and
that he was also entitled
unconditionally to an order for
the delivery up of the mortgage
deed for cancellation.
In the GIHOC
case currently before us, it is
worth noting that, even though
we are not applying the 1962
Rules, the Respondent had
actually raised the declaration
of title in the form of
cross-appeal. He had not been
silent about his intentions.
Moreover, there are echoes of
the 1962 Rules in our current
Supreme Court Rules [C.I. 16,
1966], already cited.
The 1971
Court of Appeal decision in
Yeboa and Another v. Bofour
[(1971) 2 GLR 199] has also
been cited. To my mind, this
case contains the strongest
argument for rejecting the
holding in Kannin, and
for distancing myself from the
position taken in the main
opinion on the cross-appeal in
the GIHOC case. Like Chahin,
Yeboa was a money lending
case in which the plaintiff won
at the trial court. The
defendant made an appeal, while
the plaintiff cross-appealed
against a section of the
judgment dismissing the claim
against a third defendant who
had purported to purchase the
plaintiff’s mortgaged property
at a public auction. A
preliminary objection had been
raised against the cross-appeal
on the ground that it was
carelessly stated, vague and
utterly unintelligible, and that
it did not conform to the
mandatory provisions of the
relevant Supreme Court Rules.
Chief Justice
Azu Crabbe, writing for the
Court, rejected the preliminary
objection in these words: “…I do
not think the third defendant
has suffered, or will suffer,
any substantial injustice by the
plaintiff’s breach of [Rule
8(4)…Even if the plaintiff had
not cross-appealed, this court
has power under rule 32 to grant
the only relief to which the
plaintiff is entitled by law…’’
In GIHOC,
we have a defendant who has
not only cross-appealed, but has
done so in clear, concise and
intelligible terms, seeking a
relief in the form of a
declaration which appears to me
to be the inevitable byproduct
of his victory in this court. In
my view, the existence of such a
cross-appeal, argued fully and
openly in the Statements before
this Court, dealing with an
issue that stands at the very
core of this case, does away
with any unjust and unwelcome
surprises that the absence of a
counterclaim in a trial court
might otherwise have produced.
My Lords,
permit me to refer to Collins,
Master of the Rolls, in In Re
Coles and Ravenshear [1907] 1
K.B. 1 at p.4, in my attempt
to draw a distinction between
technicism, which I totally
reject as a judicial approach to
case resolution, and our
collective fidelity to
technicalities in the law,
which is an inevitable part of
any mature legal system. Collins
M.R. wrote: “ Although I agree
that a Court cannot conduct its
business without a code of
procedure, I think that the
relation of rules of practice to
the work of justice is intended
to be that of a handmaid rather
than mistress, and the Court
ought not to be so far bound and
tied by rules, which are after
all only intended as a general
rules of procedure, as to be
compelled to do what will cause
injustice in the particular
case.”
I am not
aware of any technical rule
which commands me to uphold
cross-appeals only when preceded
by counterclaims in the trial
court; I reject Kannin as
baseless technicism; and I see
the declaration of title sought
by the defendant in his
cross-appeal as a sound and
logical byproduct of our main
decision on the matters that lie
at the core of the controversy
in this case.
I therefore
allow the cross-appeal and
declare title in favour of the
defendant/respondent.
PROF.
T. M. OCRAN
JUSTICE OF
THE SUPREME COURT
COUNSEL:
Ahenkorah for
Appellant Cross-Respondent.
Amegatcher
with Mrs. Afarley Dadson, Edmond
Foley and Mrs. Victoria Barth &
Peter Okudzeto for Respondent
Cross Appellant.
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