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Land - Property - Declaration
of title - Recovery of
possession - Laches and
acquiescence - Whether
or not the Court of erred when
it held that the respondent
procured her Land Title
Certificate fraudulently -
Whether or not the respondent’s
action is caught by the
Limitation Act and the action is
therefore statute barred -
HEADNOTES
According to appellant by a
conveyance dated the 5th
day of July 2007 made between
her as purchaser (the lawful
attorney of the Administrators
of the Estate of Stephen
Coleman) as vendor, she acquired
the property, part of which is
now in dispute. The property in
question adjoins a piece of land
owned by the respondent’s family
of which respondent is the head.
The respondent’s family has a
storey building on their land,
which contains a number of
stores including the encroached
portion, to confirm her
boundaries and to ensure that
any renovations or
reconstruction that she would
carry out eventually, would not
affect the respondent’s
adjoining land. She drew the
respondent’s attention to this
fact and suggested the
appointment of a neutral
surveyor but the respondent
refused the request or
suggestion. The respondent
denied ever encroaching on
appellant’s land as pleaded. His
case was that his family has
been an adjoining neighbour of
appellant’s grantor for the past
seventy (70) years without any
dispute between them. According
to him, Respondent contended
that his family never had any
dispute with appellant’s
grantors until 2007 when
appellant purchased the
Coleman’s portion of the
property. Again, when the
appellant embarked on the survey
of the land she purchased for
which she procured the Land
Title Certificate dated 6th
May 2008, she never informed his
family before the measurements
were taken. Any land certificate
obtained without any notice to
his family was therefore
fraudulently procured The trial
High Court which heard the
matter found for the appellant
and granted her all the reliefs
claimed. Not satisfied with that
decision, the respondent
appealed against same to the
Court of Appeal. The Court of
Appeal, in a well-reasoned
judgment dated upheld the
respondent’s appeal and reversed
HELD
We agree with the Court of
Appeal that the trial High Court
erred when it decreed judgment
in appellant’s favour on all her
reliefs. The findings made by
the first appellate court, for
which the appellant is seeking
our intervention, were
appropriate and unblemished.
There is therefore no
justification on our part to
disturb these findings. We
accordingly dismiss the appeal
and affirm the judgment of the
Court of Appeal in its entirety.
STATUTES REFERRED TO IN JUDGMENT
Land Title Registration Act,
1986 [PNDC Law 152]
Limitation Act, 1972 [NRCD 54],.
CASES REFERRED TO IN JUDGMENT
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
APPAU, JSC:
COUNSEL
PHILIP JIMANOR FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
BABA AVIO FOR THE
DEFENDANT/APPELLANT RESPONDENT,
WITH HIM COL. MAHAMA IDDRISU
(RTD).
JUDGMENT
APPAU, JSC:
The appellant before us was the
plaintiff in the trial High
Court whilst the respondent was
the defendant. On 14th
November 2008, the appellant
sued the respondent in the trial
High Court claiming inter alia;
a declaration of title to a
piece of land at Derby Avenue
described in the endorsement of
the writ of summons and recovery
of possession of the said land.
The appellant succeeded on his
claim in the trial court but
subsequently lost in an appeal
lodged by the respondent against
the judgment of the trial court
at the Court of Appeal. The
appeal before us is a
manifestation of the appellant’s
displeasure with the decision of
the 1st appellate
court, for which she is inviting
our opinion on the matter.
The pleaded case of the
appellant in the trial court was
very brief. According to her, by
a conveyance dated the 5th
day of July 2007 made between
her as purchaser and Mr Ken
Brookman-Amissah, (the lawful
attorney of the Administrators
of the Estate of Stephen
Coleman) as vendor, she acquired
the property, part of which is
now in dispute. The property in
question adjoins a piece of land
owned by the respondent’s family
of which respondent is the head.
The respondent’s family has a
storey building on their land,
which contains a number of
stores including the encroached
portion, from which respondent
enjoys rent from the tenants
occupying the said stores. Since
she had intentions to
reconstruct the purchased
property, she appointed
professionals to survey the land
after purchase, to confirm her
boundaries and to ensure that
any renovations or
reconstruction that she would
carry out eventually, would not
affect the respondent’s
adjoining land.
When the surveyors she appointed
embarked on the assignment, they
informed her that the
defendant’s family, in the
construction of their stores,
encroached on her land by the
following margins; 19 ft. in the
North, 50 ft. 1 inch in the
West, 19 ft. in the South and 43
ft. in the East. She drew the
respondent’s attention to this
fact and suggested the
appointment of a neutral
surveyor from the Survey
Department to re-survey the land
to confirm or deny this finding,
but the respondent refused the
request or suggestion. She went
ahead to register her land as
surveyed by the surveyors she
appointed. On the 6th
day of May 2008, she was issued
with a Land Title Certificate
No. GA 26540 to cover the
re-surveyed land. She therefore
took this action to claim the
reliefs as endorsed on the writ
of summons.
The respondent denied ever
encroaching on appellant’s land
as pleaded. His case was that
his family has been an adjoining
neighbour of appellant’s grantor
for the past seventy (70) years
without any dispute between
them. According to him,
somewhere in the year 1957, both
the appellant’s grantor and his
family leased their respective
adjoining lands to Richard
Hassan Jojo and Wafick Hassan
Jojo for a period of fifty (50)
years. The said lessees
constructed one storey building
containing a number of shops on
the two adjoining lands; with
appellant’s grantors having a
number of shops on their portion
and the respondent too having a
number of shops on their
portion, with a defined
boundary. The lessees operated
these shops from 1958 to 1969
when they decided to leave the
country. When they were leaving,
they assigned the respondent’s
portion of the property to one
Baah Sackey and others while
appellant’s grantors; i.e.
Coleman’s section, was assigned
to one Wiafe for the remaining
number of years of the lease,
which was to expire in 2007.
Respondent contended that his
family never had any dispute
with appellant’s grantors until
2007 when appellant purchased
the Coleman’s portion of the
property. Again, when the
appellant embarked on the survey
of the land she purchased for
which she procured the Land
Title Certificate dated 6th
May 2008, she never informed his
family before the measurements
were taken. Any land certificate
obtained without any notice to
his family was therefore
fraudulently procured, since
that venture was contrary to the
Land Title Registration Act,
1986 [PNDC Law 152].
Respondent contended further
that since his family and
appellant’s grantors knew their
respective boundaries before Ken
Brookman-Amissah sold Coleman’s
portion to the appellant in
2007, the appellant is estopped
from changing the boundaries of
the two adjoining properties.
Again, appellant’s action was
caught by section 10 of the
Limitation Act, 1972 [NRCD 54],
granted what she is contending
is true. He prayed the trial
court to dismiss appellant’s
action as same was vexatious and
calculated to harass his family.
The trial High Court which heard
the matter found for the
appellant and granted her all
the reliefs claimed. Not
satisfied with that decision,
the respondent appealed against
same to the Court of Appeal. The
Court of Appeal, in a
well-reasoned judgment dated 17th
July 2014, upheld the
respondent’s appeal and reversed
the judgment of the trial court.
It accordingly, ordered the Land
Title Registry to cancel the
Land Title Certificate No. GA
26540 granted the appellant on
the 6th of May 2008.
The appellant filed six (6)
grounds of appeal before this
Court. They are:
a The Court of Appeal erred
when it held that the respondent
procured her Land Title
Certificate fraudulently and
declared it invalid and ordered
the Land Title Registrar to
cancel same.
b The Court of Appeal erred when
it held that the respondent’s
action is caught by the
Limitation Act and the action is
therefore statute barred.
c The Court of Appeal erred when
it held that the period for
adverse possession started to
run when the Jojo brothers left
Ghana and not when the fifty
(50) year lease granted the Jojo
brothers expired.
d The Court of Appeal erred when
it held that respondent’s
predecessors-in-title were
caught by laches and
acquiescence and thus lost any
right to re-assert ownership of
the land in dispute.
e The Court of Appeal erred when
it held that respondent
purchased the building or shops
and not the land on which the
building is situate.
fThe judgment is against the
weight of evidence.
The appellant, in her written
statement of case filed on
29/02/2016, argued grounds (b),
(c), & (d) together, then each
of (e), (a) and (f) separately.
The respondent’s statement of
case in answer also followed the
same pattern.
We have meticulously considered
the submissions of both parties,
vis-à-vis the judgments of the
trial High Court and the Court
of Appeal from which this appeal
emanated. We hold the view that
the Court of Appeal has, in a
brilliant fashion, exhaustively
dealt with the facts and the law
raised for determination in this
appeal in its judgment of 17th
July 2014 and nothing
substantial has been urged on us
by the appellant to justify our
interference with it.
The crux of the matter before
the trial court was; what
property did the appellant
purchase from the lawful
attorney of Coleman? Was it a
bare land or an already
developed property? How many
stores did Coleman’s tenants
control at the time of the sale
of Coleman’s portion to the
appellant?
The facts on record do not
support appellant’s pleaded case
that she bought land adjoining
respondent’s property from
Coleman’s attorney and when she
surveyed same, she discovered
that the respondent’s family in
constructing their stores on
their portion, had encroached on
the land she purchased. The
facts of the matter are that
respondent’s family did not
construct the stores by
themselves. The stores were
constructed by the original
lessees of both the appellant
and the respondent; i.e. the
Jojo brothers as far back as
1957. It was one long storey
building containing a chain of
stores constructed on the two
separate adjoining lands
belonging to the appellant’s
vendors and the respondent’s
family. From the record, there
is a thick wall demarcating
their boundary indicating the
number of stores that each of
the original owners was entitled
to.
When the original lessees; i.e.
the Jojo brothers, were
compelled to leave the country
as a result of the Aliens’
Compliance Order, they did not
lease the whole block of stores
to only one person. They made
separate leases or assignments.
The portion belonging to
appellant’s vendor, i.e.
Coleman, was assigned to one
Wiafe while the defendant’s
portion was assigned to one Baah
Sackey and others. When the
original fifty-year lease
therefore expired, the
respondent’s family took action
against Baah Sackey and others
to claim the reversionary
interest whilst Coleman also
claimed his from Wiafe and the
others. This testimony was not
challenged.
Granted that the Jojo’s made a
mistake in setting up the
boundary between the two
separate lands after
constructing the stores, the
original owners never complained
with each having advanced
knowledge of the number of
stores each was entitled to. If
the stores in possession of
appellant’s vendor were
identifiable and these were the
ones appellant purchased in
2007, then why is it that the
appellant now wants to reset the
boundary between her vendor and
the respondents?
As the Court of Appeal rightly
concluded, the appellant’s
predecessor in title had slept
on whatever right appellant is
now claiming, for the past fifty
years if indeed he had any right
at all. Appellant cannot
therefore make a new site plan
after her purchase and
incorporate two additional shops
belonging to the respondents’
family into the site plan made
by her without any input from
the respondent.
We agree with the Court of
Appeal that the trial High Court
erred when it decreed judgment
in appellant’s favour on all her
reliefs. The findings made by
the first appellate court, for
which the appellant is seeking
our intervention, were
appropriate and unblemished.
There is therefore no
justification on our part to
disturb these findings. We
accordingly dismiss the appeal
and affirm the judgment of the
Court of Appeal in its entirety.
(SGD) Y. APPAU
JUSTICE OF THE SUPREME COURT
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL:
PHILIP JIMANOR FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
BABA AVIO FOR THE
DEFENDANT/APPELLANT RESPONDENT,
WITH HIM COL. MAHAMA IDDRISU (RTD).
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