|
Land - Ownership - Declaration
of title - Adverse possession -
Perpetual injunction -
Limitation Act, 1972 (NRCD) 54.
- Whether or not action against
the Defendants in the trial High
Court was statute barred.-
“Whether or not AFRCD 31, 1979
and PNDCL 30 1982 confiscated
plot No. 2 North Industrial
Area, Accra to the state.-
Whether or not the 2nd
Defendant divested Plot No. 2
Ring Road North Industrial Area
to Gold Coast Motors Limited in
1991 -
HEADNOTES
The Plaintiff averred that
he is the owner and title holder
of Plot No. 2, North Industrial
Area, Kaneshie, Accra (Plot No.
2). According to the facts from
the appeal record, the Plaintiff
acquired the land by purchase in
1976 from Gabco Metals and
subsequently built a factory, a
warehouse and a two-floor storey
building on it. Later, the
Plaintiff permitted A and B
Industries, of which he was
reputed to be a shareholder, to
use the warehouse, and occupy
the offices he had built. It
appears that, the Plaintiff
remained the owner of the said
properties until the passage of
the Transfer of Shares and Other
Proprietary Interests Decree
1979 (AFRD 31) which confiscated
the Plaintiff’s interest in his
company A and B Industries
Limited. Then in 1982, things
turned very bad for the
Plaintiff. This was as a result
of the forceful change of
government in Ghana by the
Provisional National Defence
Council (PNDC). Following the
coup d’etat the Plaintiff was
arrested and detained for
several months up to about
eleven (11) and upon his release
he was deported. He did not
return to Ghana until 1986 when,
he found that some other persons
were occupying his land. He has
averred that, the Government of
Ghana, passed another Law, PNDC
Law 30 to confirm the
confiscation of the assets of A
and B Industries and in the
process erroneously confiscated
his plot No. 2. The Plaintiff
later petitioned the 4th
Defendant, (Lands Commission) as
well as the President of the
Republic of Ghana in 1997 for
the return of the land and
properties to him. That, failing
the Plaintiff waited till 2006
when he instituted action in the
High Court, Accra
HELD It must be noted that, this chain of
adverse possession was continued
by the 5th Defendants
when they bought the property,
Plot No. 2 from Gold Coast
Motors. The statutory limit of
12 years in section 10 (1) of
the Limitation Act, NRCD 54
therefore begun to run against
the Plaintiff in 1991 and
effectively ended in 2003.
Having commenced the instant
action against the 5th
Defendants, in 2006, that is
three years after the period
allowed under the statute of
limitation had lapsed, the
plaintiff must be deemed to be
statute barred in commencing any
action in respect of Plot No. 2
against them.By now, it must be
apparent that the Plaintiff’s
reason of being under a
disability explaining why he did
not commence the action against
the 5th Defendant
cannot hold water. It is
therefore our considered view
that the 5th
Respondents have acquired title
to Plot No. 2 and the interest
of the Plaintiff is thereby
extinguished. It was for the
above reasons, that we
unanimously on 9th
November 2016 dismissed the
Plaintiff’s appeal against the
decision of the Court of Appeal
dated 6th February
2014. The Court of Appeal
decision of even date is hereby
affirmed.
STATUTES REFERRED TO
IN JUDGMENT
Transfer of Shares and Other
Proprietary Interests Decree
1979 (AFRD 31)
The State (Removal of Doubts)
Law 1982, PNDCL30
Limitation Act, 1972 (NRCD) 54.
Conveyancing Decree 1973, NRCD
175
Statute Law Revision Act of 1997
Act 543
CASES REFERRED TO IN JUDGMENT
Hanna Assi v GIHOC Refrigeration
and Household Products Ltd.
2005-2006 SCGLR 458
Hanna Assi (No.1) v GIHOC
Refrigeration and Household
Products Ltd. 2005-2006 SCGLR 1
Hanna Assi (2) v GIHOC
Refrigeration and Household
Products Ltd. 2005-2006 SCGLR at
16.
GIHOC Refrigeration
& Household Products Ltd.
(No 1) v Hanna Assi (No. 1)
[2007-2008] SCGLR
Adjetey Adjei and Others v Nmai
Boi & Others [2013-2014] 2
SCGLR, 147
Hughes v Griffin (1969) 1 ALL ER
460 at 464
Moses v Lovegrove (1952) 1 AER
1279 at 1285.
Salomon v Salomon 2002 1 WRN II
(1897) AC 22.
Kyenkyenhene v Adu [2003-2004] 1
SCGLR 142
Charles Osenton & Co. v Johnson
[1942] AC 130
Ballmoos v Mensah [1984-86] 1
GLR 725
Sappor v Wigatap [2007-2008]
SCGLR 676 at 679
Achoro v Akanfela [1996-97]
SCGLR 209,
Gregory v Tandoh & Anr [2010]
971
Obeng v Assemblies of God,
Church Ghana [2010] SCGLR, 300.
Adji and Company v Kumaning
[1982-83] GLR 1382 CA
Quagraine v Adams [1981] GLR 599
Antwi v Abbey, [2010] SCGLR 17
Odonkor and Others v Botchway
[1991] 2 GLR1
Klu v Kofi Konadu Apraku [2009]
SCGLR 741
Fairweather v St. Marylebone
Property Co. Ltd [1963] AC 510
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE JSC:-
COUNSEL
ANDREWS DANIELS FOR
PLAINTIFF/APPELLANT.
SAMUEL CUDJOE WITH HIM SESI
TETTEH FOR 5TH
DEFENDANT/RESPONDENT
---------------------------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------------------------
DOTSE JSC:-
On the 9th day of
November 2016 this court
unanimously dismissed the appeal
lodged by the
Plaintiff/Respondent/Appellant,
hereafter, referred to as “the
Plaintiff”, against the decision
of the Court of Appeal dated 6th
February, 2014 which was in
favour of the 5th
Defendant/Appellant/Respondent,
hereafter to be called, “the 5th
Defendant”. We accordingly
affirmed the decision of the
Court of Appeal wherein Plot No.
2, North Industrial Area,
Kaneshie, Accra, (Plot 2) was
adjudged to belong to the 5th
Defendants.
As we reserved our reasons for
the said decision on the 9th
of November 2016, we proceed now
to give the said reasons.
The determination of this appeal
turns squarely on whether the
Plaintiff’s action against the
Defendants in the trial High
Court was statute barred.
FACTS:-
The Plaintiff averred that he is
the owner and title holder of
Plot No. 2, North Industrial
Area, Kaneshie, Accra (Plot No.
2). According to the facts from
the appeal record, the Plaintiff
acquired the land by purchase in
1976 from Gabco Metals and
subsequently built a factory, a
warehouse and a two-floor storey
building on it. Later, the
Plaintiff permitted A and B
Industries, of which he was
reputed to be a shareholder, to
use the warehouse, and occupy
the offices he had built. It
appears that, the Plaintiff
remained the owner of the said
properties until the passage of
the Transfer of Shares and Other
Proprietary Interests Decree
1979 (AFRD 31) which confiscated
the Plaintiff’s interest in his
company A and B Industries
Limited.
Then in 1982, things turned very
bad for the Plaintiff. This was
as a result of the forceful
change of government in Ghana by
the Provisional National Defence
Council (PNDC). Following the
coup d’etat the Plaintiff was
arrested and detained for
several months up to about
eleven (11) and upon his release
he was deported.
The Plaintiff did not return to
Ghana until 1986 when, according
to the evidence, he found that
some other persons were
occupying his land. He has
averred that, the Government of
Ghana, passed another Law, PNDC
Law 30 to confirm the
confiscation of the assets of A
and B Industries and in the
process erroneously confiscated
his plot No. 2.
After the confiscations the
Government of Ghana assigned
Plot No. 2, to GIHOC Motors and
Machine Shop, and later sold it,
through the 3rd
Defendant, the Divestiture
Implementation Committee (DIC)
to Gold Coast Motors from whom
the 5th Defendant
herein acquired the said Plot
No. 2.
The Plaintiff later petitioned
the 4th Defendant,
(Lands Commission) as well as
the President of the Republic of
Ghana in 1997 for the return of
the land and properties to him.
That, failing the Plaintiff
waited till 2006 when he
instituted action in the High
Court, Accra, claiming the
following reliefs as per the
amended writ of summons.
RELIEFS PLAINTIFF
CLAIMED IN THE HIGH COURT
PLAINTIFF’S AMENDED
WRIT OF SUMMONS
1.
Declaration of title to
all that piece or parcel of
industrial property known as
Plot No. 2 North Industrial
Area, Accra.
2.
Declaration that the
Transfer of shares and other
proprietary interests (A and B
Industries Limited) A.F.R.C.D 31
1979 and Transfer of Shares etc.
to The State (Removal of Doubts)
Law 1982, PNDCL30 did not
confiscate Plot 2 North
Industrial Area, Accra to the
State of Ghana.
3.
Declaration that the
purported confiscation of Plot
2, North Industrial Area, Accra
to the State of Ghana by the
Defendants relying on AFRCD 31,
1979 and PNDCL Law 30, 1982 was
null and void and of no legal
effect.
4.
Special and general
damages for trespass.
5.
Possession of Plot No. 2
North Industrial Area, Accra.
6.
An order to compel the
Defendants to return Plot No. 2
North Industrial Area, Accra to
the Plaintiff.
7.
Mesne profits
8.
An injunction to restrain
the defendants whether by
themselves or by their agents
and servants or otherwise from
processing or registering any
documents in respect of Plot No.
2 North industrial Area, Accra
in the name and in favour of the
5th Defendant and any
other persons, individuals or
legal persons.
9.
Perpetual injunction to
restrain the defendants whether
by themselves or by their
servants agents or otherwise
howsoever from entering Plot No.
2 to do any business or anything
which is adverse to or
inconsistent with the title of
the Plaintiff to Plot No. 2
North Industrial Area, Accra or
to make any disposition in
respect of Plot No. 2 North
Industrial Area, Accra.
After pleadings had closed, the
following issues and additional
issues were set down for hearing
at the Application for
Directions stage.
ISSUES AND ADDITIONAL
ISSUES SETTLED BY THE HIGH COURT
FOR HEARING
a.
“Whether or not AFRCD 31,
1979 and PNDCL 30 1982
confiscated plot No. 2 North
Industrial Area, Accra to the
state.
b.
Whether or not the
Plaintiff’s claim herein is
statute barred.
c.
Any further or other
issues raised by the pleadings
in the suit herein.
The 2nd defendant,
filed the following additional
issues.
1.
Whether or not the 2nd
Defendant divested Plot No. 2
Ring Road North Industrial Area
to Gold Coast Motors Limited in
1991.
2.
Whether or not the 2nd
Defendant put Gold Coast Motors
Limited in possession of Plot
No. 2, Ring Road, North
Industrial Area in September
1991.” Emphasis
JUDGMENT OF THE HIGH
COURT
Thereafter, the case proceeded
to trial and on the 28th
day of February 2012, the High
Court, Accra, presided over by
E. K.Mensah J, delivered
judgment in favour of the
Plaintiff in the following
terms:-
“I will therefore be
right to conclude that the
plaintiff is entitled to his
claim. It is my considered view
that the purpose of AFRCD 31 of
1979 and PNDCL 30 is to
confiscate whatever interest,
legal or otherwise that A and B
Industries had in its own assets
and those of others. It is
however clear that at the time
that the two legislations were
passed the interest that A and B
industries had in the disputed
property was a licensee status
from Jean Hanna Assi. So what
the then Government took away
from A and B industries by the
said legislation was not the
legal interest of the Plaintiff
herein as there is no evidence
on record that Jean Hanna Assi
ever transferred or conveyed his
legal interest in plot No. 2
North Industrial area, Accra to
A and B Industries. I therefore
hold the view that to the extent
that AFRCD 31 of 1979 and PNDCL
30 of 1982 are applied to
adversely affect the legal right
and any other interest thereof
of Jean Hanna Assi in plot No. 2
North Industrial Area, Accra
that legislation, I submit with
respect is null and void and of
no legal effect per the evidence
on record therefore I am of the
view that the Plaintiff has
persuaded me on the principle or
basis of preponderance of
probability to believe that his
side of the case is more
probable than not. He is
entitled to judgment and I
accordingly enter judgment for
him on the reliefs sought
against all the defendants.”
APPEAL TO COURT OF
APPEAL AND IT’S JUDGMENT
Feeling aggrieved and
dissatisfied with the decision
of the High Court, the 5th
Defendants successfully appealed
that decision in the Court of
Appeal. In a unanimous decision
of the Court of Appeal, coram,
Henrietta Abban JA, presiding,
Acquaye and Margaret Welbourne
JJA, the Court of Appeal per
Welbourne JA, set aside the High
Court judgment in a well
considered judgment which we
feel must be referred to in
extenso for the correct
statement of the facts and law
that relate to the Statute of
Limitation, particularly
sections 10 (1) and 10 (6) of
the Limitation Act, 1972 (NRCD)
54. This is how the judgment of
the Court of Appeal put the
matter to rest.
“A perusal of the
record reveals that the
respondents was aware that Plot
No. 2 had been confiscated. He
also stated that he came to
Ghana in the 1990s and commenced
action against the Government
for another property of his
which said property is situate
in the same area as the present
property. The said property is
the subject matter which is
reported in 2005-2006 SCGLR at
458 Hanna Assi v GIHOC
Refrigeration and Household
Products Ltd. and Hanna
Assi (No.1) v GIHOC
Refrigeration and Household
Products Ltd. at page 1 and
Hanna Assi (2) v GIHOC
Refrigeration at page 16.
In the said Hanna
Assi v GIHOC Refrigeration &
Household Product Ltd. case,
the Supreme Court in the
2005-2006 report extensively
stated the law on limitations of
actions and when one would
qualify as an adverse possessor.
Date-Bah JSC quoted with
approval Adinyira JA (as she
then was) ruling in the Court of
Appeal as follows: - (see page
473 of Hanna Assi v GIHOC
2005-2006 SCGLR at page 473.
“My view on this
point is simple. The company by
name General Cold Industry
Limited was confiscated to the
state. The majority shareholder
in this company was defendant.
This company carried on its
business in a premises, which
incidentally was situate 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 the
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 L.J in Moses v Lovegrove
(1952) 1 AER 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 2002 1 WRN II
(1897) AC 22. 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 license 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.”
On page
475, Date-Bah JSC further held
as follows:-
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, the
statement of the facts and law
per Adinyira JA, in delivering
the judgment of the Court of
Appeal in the passage quoted
above is unexceptionable and
well within the Court’s
jurisdiction.”
In the instant case
before me, the DIC, who
according to the above mentioned
suit (i.e. GRHP v Assi) do
not have any title to the land,
sold the land to Gold Coast
Motors (“Gold Coast”) in 1991
for a valuable consideration of
one hundred and ten million
cedis). The said Gold Coast
Motors exercised absolute
ownership of the land from 1991
without any opposition and or
complaints from any person
including the respondent herein.
The Respondent herein has stated
that he did not go there at all
and therefore did not challenge
the occupation of the land by
Gold Coast Motors and later by
appellant.” Emphasis
The Court of Appeal, per
Welbourne JA, continued their
delivery in the following
terms:-
We have carefully and
painstakingly perused the entire
record and read the submissions
of both counsel and we are of
the view that indeed, the action
is caught by the Statute of
Limitation particularly sections
10 (1) and 10 (6).
Limitation Act, 1972
(NRCD) 54 Section 10 (1), (6)
and (7)
“(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 claim to that person.”
(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.”
We are of the view
that the sale was regularly done
in 1991 from which time the time
of limitation began to run.
Assuming without prejudice that
the transfer of the shares did
not include his personal
properties, the respondent would
still be caught by the Statute
of Limitation.
It therefore renders
any petitions that he sent to
the Government as otiose. In the
first place, the Government had
divested itself of the property
and therefore was in no position
to take any meaningful action.
Secondly, he had been caught by
acquiescence.” Emphasis
It must be observed from the
above quotations from the Court
of Appeal judgment that, the
decision of the High Court was
reversed principally because of
the fact that the Plaintiff’s
case was caught by Section 10
(1) and (6) of the Limitation
Act, 1972, NRCD 54, in that, the
Plaintiff had acquiesced in the
5th Defendant’s
occupation of the land.
It must also be emphasized that
the Court held that the 5th
Defendant had acquired title to
the land by adverse possession.
It is from this Court of Appeal
judgment that the instant appeal
has been lodged by the
Plaintiff.
GROUNDS OF APPEAL TO
THE SUPREME COURT
Grounds of Appeal filed on
10/7/2014 pursuant to leave
granted by Court of Appeal on
9/7/2014.
a.
The judgment is against the
weight of the evidence.
b.
The Honourable Court of Appeal
erred in law in finding that the
sale of the land, the subject
matter of the writ was
“regularly done in 1991” and
that the
Plaintiff/Respondent/Appellant
was “caught by the Statute of
Limitations”, the Limitation Act
1972 Sections 10 (1) and 10 (6).
c.
The Honourable Court of Appeal
erred in law in finding that the
Plaintiff/Respondent/Appellant
is “caught by acquiescence”.
d.
The Honourable Court of Appeal
erred in law in finding that it
is precluded from looking into
the merits of the case due to
the provisions of the Limitation
Act 1972.
PARTICULARS OF ERRORS
OF LAW
1.
The Honourable Court of
Appeal failed to give due weight
to the evidence that DIC in
purporting to sell the plot of
land to the Gold Coast Motors
Limited acted in breach of S. 22
of the Conveyancing Decree 1973
rendering the purported
conveyance invalid.
2.
The Honourable Court of
Appeal failed to give due weight
to the evidence that the 5th
Defendant/Appellant/Respondent
did not conduct due diligence
before purporting to purchase
the plot and consequently had
actual notice that the
Plaintiff/Respondent/Appellant
had title to the land.
3.
The Honourable Court of
Appeal failed to give due weight
to the evidence that adverse
possession could not have arisen
during the period of “armed
invasion” under the
unconstitutional military regime
of the Armed Forces
Revolutionary Council.
4.
The Honourable Court of
Appeal failed to give due weight
to the evidence that the
Plaintiff/Respondent/Appellant
should be entitled to relief
from the provisions of the
Limitation Act 1972 on the
grounds of mistake.
5.
Further grounds of appeal
will be filed upon receipt of
the Records of Appeal.
LEGAL ARGUMENTS BY
COUNSEL
We have painstakingly analysed
the legal arguments of learned
counsel for the plaintiff,
Jacinta Gayle and for the 5th
Defendant, Samuel Codjoe in
their respective statements of
case.
PLAINTIFF’S ARGUMENTS
Before we deal with the points
of substance, learned counsel
for the Plaintiff, commenced her
legal arguments thus:
“The Court of Appeal
erred in failing to exercise its
judicial discretion properly
when it ruled without
explanation at pages 727 and 729
of the appeal record to the
effect that, we are of the view
that the sale was regularly done
in 1991 from which time the time
of limitation began to run.
Assuming without prejudice that
the transfer of shares did not
include his personal property,
the respondent would still be
caught by the statute of
Limitation and also when it
stated again as follows:-
“…because it took its interest
in the land independent from the
original confiscation by the
Government.”
Learned counsel for the
Plaintiff then concluded that
the Court of Appeal failed to
give due weight, in the exercise
of its judicial discretion, to
the provisions of the
Conveyancing Decree 1973, NRCD
175 and the evidence on record
that the Plaintiff, (Appellant
therein) was under a disability
until 1997. Learned Counsel then
referred to the cases of
Kyenkyenhene v Adu
[2003-2004] 1 SCGLR 142 which
relied on a statement of
Viscount Simon LC in the case of
Charles Osenton & Co. v
Johnson [1942] AC 130
and also the cases of
Ballmoos v Mensah
[1984-86] 1 GLR 725 and
Sappor v Wigatap
[2007-2008] SCGLR 676 at 679
respectively.
We have duly considered the
effect of the principles of law
stated in the said cases and are
of the view that the statements
of the Court of Appeal referred
to above were a correct
application of the relevant
principles to the facts of this
case. Where a trial court in its
judgment makes erroneous and
perverse findings based upon a
wrong appreciation of the facts
established in a case an
appellate court is entitled to
reverse those findings. We
endorse the conclusion reached
by the Court of Appeal because
we find that the trial Judge did
not properly apply the
principles of the statute of
limitations to the facts in this
case.
Accordingly, the statement of
law in the following cases which
permits an appellate court to
depart and reverse findings of
fact made by a trial court on
perverse and erroneous grounds
would be applied. See
Achoro v Akanfela
[1996-97] SCGLR 209,
Gregory v Tandoh & Anr [2010]
971 and Obeng v
Assemblies of God, Church Ghana
[2010] SCGLR, 300.
On the basis of the above
authorities, and others too
numerous to recount here, we are
of the view that the exercise of
discretion by the Court of
Appeal, to depart from the
findings made by the trial court
was properly exercised and that
the Court acted under a proper
appreciation and application of
the facts which were wrongly
applied by the learned trial
Judge.
THE POINTS OF
SUBSTANCE OF LEGAL ARGUMENTS
Learned counsel for the
Plaintiff, argued very
strenuously that title to (Plot
No. 2) was never transferred to
the state. She therefore argued
that the Plaintiff remained the
owner of the land and that the
Government could therefore not
transfer title to the land to
any other person based on the
principle of “nemo dat quod non
habet” which literally means, a
person cannot transfer what he
does not have. In this respect,
learned counsel referred and
relied on sections 13 (2) and
(3) of the Conveyancing Decree,
1973, NRCD 175 which are to the
effect that title or right
is not conveyed unless the
transferor has the power to make
such a conveyance.
Secondly, learned counsel for
the plaintiff, also argued that,
had the 5th Defendant
undertaken due diligence they
would have discovered that the
root of title declared by Gold
Coast Motors Limited was
defective. The argument of
learned counsel for the
Plaintiff is based on the
submission that as at 2002, a
search at the Lands Commission
would have confirmed that the
legal title in Plot No. 2 had
been transferred to the
Plaintiff in 1978 and had
remained with him since then.
Learned Counsel for the
Plaintiff finally submitted
that, it was erroneous to have
concluded that the Plaintiff
acquiesced in the dealings such
as would have resulted into his
loss of title.
Learned Counsel for the
Plaintiff argued in her
statement of case that if the
disability that the Plaintiff
was under had been properly
appreciated, (i.e. the fact that
the plaintiff was imprisoned in
1979 and thereafter deported
from Ghana) it would have been
reasonable for the plaintiff to
have had apprehension of fear
that returning to Ghana would be
unsafe, and even though he
eventually returned, there was
this apprehension that he had
lost his “civil rights and
liberties”. It was further
contended on behalf of the
plaintiff that it was the
Statute Law Revision Act of 1997
Act 543 which repealed both PNDC
Law 30 and AFRCD 31 the laws
that had confiscated Plaintiff’s
properties as well as the laws
that had deported him. Learned
counsel then argued that, even
though Ghana had returned to a
constitutional democracy on 7th
January 1993, the provisions of
section 35 (1) of the
Transitional Provisions of the
Constitution 1992 were in force.
Those provisions are as
follows:-
“Subject to the subsection (2)
of this section, any
confiscation of any property and
any other penalties imposed by
or under the authority of the
Armed Forces Revolutionary
Council and the Provisional
National Defence Council shall
not be reversed by any authority
under the Constitution.”
This meant that, until the
enactment of Act 543, the
Plaintiff still suffered the
disability that was attached to
his person despite the return to
constitutional rule in 1993.
Learned counsel for the
Plaintiff therefore sought to
distinguish his case from the
principles of law enunciated in
cases like Adji and
Company v Kumaning
[1982-83] GLR 1382 CA and
Quagraine v Adams [1981]
GLR 599.
Plaintiff concluded his legal
arguments by asserting that,
even though on the facts he
returned to Ghana, he was
nonetheless living therein with
a disability and he did not have
the rights of an ordinary
citizen as envisaged under the
Constitution. He argued further
that, he did not have the
opportunities and confidence to
assert his legal rights in
respect of his Plot No. 2. The
plaintiff therefore argued that
he was not caught by the Statute
of Limitation.
It will be prudent to set out
the legal arguments of the 5th
Defendants as well and deal
holistically with the central
issue of the Statute of
Limitation. This is because in
our considered view, that was
the central and core legal issue
which influenced our decision of
9th November 2016, as
all the other arguments of law
have been subsumed under this
very heading.
5TH
DEFENDANT’S LEGAL ARGUMENTS AS
PER THE STATEMENT OF CASE
In response to the Plaintiff’s
legal arguments, learned counsel
for the 5th
Defendant, Samuel Codjoe argued
as follows:-
1.
The crux of the case of
the 5th Defendant is
that, the Plaintiff’s action is
statute barred. This according
to the 5th Defendant
was because, upon a diligent
search carried out before
purchasing Plot No. 2, (the
property) it discovered contrary
to the assertions of the
Plaintiff that there was in
existence a lease agreement
executed between the Government
of Ghana and Gold Coast Motors,
(the previous owners). The 5th
Defendant further argued that
after purchasing the property,
he was issued with a receipt and
a certificate of sale by the
High Court.
2.
Secondly, the 5th
Defendant sought to distinguish
this case from the case of
Hanna Assi v GIHOC SCGLR
[2005-2006]458, it was
held by the Supreme Court in the
said case that after the
Government confiscated the
plaintiff’s company, the
government became licensees of
the Plaintiff in respect of the
land on which the company was
situated and was not in adverse
possession. However, in the
instant case, the 5th
Defendant argued that, the
Divestiture Implementation
Committee, the 2nd
Defendants therein, did not have
title to Plot No. 2. In selling
Plot No. 2 to Gold Coast Motors,
the Divestiture Implementation
Committee (2nd
Defendants) was exercising a
possession quite inconsistent
with the right of ownership of
the Plaintiff. They
submitted further that, Gold
Coast Motors therefore became an
adverse possessor as it took
it’s interest independent from
the original confiscation by the
Government. They argued
that, Gold Coast Motors never
recognised the Plaintiff’s
title. The continued
possession of the property by
the 5th Defendant,
continued this adverse
possession of the Plaintiff’s
property.
3.
Finally, learned counsel
for the 5th
Defendant, submitted that the
Plaintiff was very much aware
upon his return to Ghana that
the property Plot No. 2 had been
occupied. As a matter of fact,
this evidence is on record
during cross-examination of the
Plaintiff wherein he admitted
that he knew the property was
occupied but did not challenge
it because he was faced with
another legal problem which he
wanted to deal with first. It
was therefore argued on behalf
of the 5th Defendant
that since the plaintiff did not
contest the title of Gold Coast
Motors (it must be noted that
they were those who purchased
Plot No. 2 in 1991) and
subsequently of the 5th
Defendant thereafter after they
became the new owners after Gold
Coast Motors, the action of the
Plaintiff in 2006 is statute
barred. Their argument was that,
the period of limitation begun
to run in 1991 and as the
Plaintiff commenced the action
in 2006, some fifteen (15) years
after 1991, the action was
statute barred with the
effluxion of time.
DETERMINATION BY THE
COURT
A perusal of the grounds of
appeal and the various
particulars of errors of law set
out in the notice of appeal,
show quite clearly that, all the
said grounds and particulars can
be subsumed under the general
ground of whether or not the
Plaintiff’s action which he
commenced against the five
defendants in 2006 is statute
barred.
If indeed it is, 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 of indolent and
piece meal litigators.
THE EVIDENCE
There is uncontroverted evidence
on record that the Plot No. 2
had been conveyed by sale to
Gold Coast Motors by DIC. CW2,
Timothy Anyidoho, the official
from Lands Commission who
testified during the trial of
the case at the High Court was
emphatic that the property had
been conveyed and transferred to
Gold Coast Motors in 1991.
It therefore appeared that the
period of limitation started
running from 1991, and the
Plaintiff admitted during
cross-examination that he was
aware that the property had been
divested by DIC to Gold Coast
Motors, the vendors of the 5th
Defendants herein.
The Plaintiff answered as
follows during the cross
examination:-
Q. “I put it to you that you
were aware that the property had
been divested by DIC?
A. Yes”
Furthermore, there is evidence
to support the fact that even
though plaintiff was aware of
the adverse claim to his
property, plot No. 2 since 1991,
and that he even took action in
the High Court to claim another
property of his that was
confiscated in similar
circumstances in the same
Kaneshie, North Industrial Area,
yet he failed or refused to take
any action until much later when
he was out of time. This is how
the cross-examination was
captured in the appeal record.
Q. Even though you were aware
that the disputed property had
been taken by DIC and given to
GIHOC and sold to Gold Coast
Motors you never complained or
went to Court?
A. I had to finish one
case before moving on to the
other property which is the
current suit.
Q. You were aware that Lands
Commission had given a lease to
Gold Coast Motors?
A. That was done behind
me because I had the original
lease.
Q. At the time you came or
returned to Ghana in 1990’s,
Ghana was in a constitutional
era?
A. Yes
Q. You were so free that you
commenced action against GIHOC
for one of the properties?
A. Yes “ emphasis
From the above, what is clear is
that the Plaintiff even though
was aware of the adverse
possession and claims to his
property Plot No. 2 by Gold
Coast Motors and thereafter by
the 5th defendants
since 1991 or thereabout, he
never made any enquiries and or
challenged the said adverse
claims.
Secondly, it should be noted
that, the defence of the
Plaintiff that he was under a
disability because he had
previously been detained and
deported by the AFRC and PNDC
regimes, the fact remains that
he returned peacefully to Ghana
and successfully instituted a
suit against the Government of
Ghana for the unconstitutional
take over or confiscation of
another property of his, now
known as the celebrated
Hanna Assi v GIHOC
cases, which travelled along all
courts in Ghana up to the
Supreme Court. It is a locus
classicus.
The lesson to be drawn from the
above is that, if the Plaintiff
was really minded to challenge
the presence of the 5th
Defendants on the land or that
of Gold Coast Motors before
them, he could have done so.
The following evidence again on
record and elicited during
cross-examination of the
Plaintiff by counsel for the 5th
Defendant puts the claim of the
Plaintiff that he was under a
disability into shreds and
rather strengthens the defence
of the 5th Defendants
on the Statute of Limitation.
Q. Since Poly Products became
owners you have never been to
the property? (Note that Poly
Products are the 5th
defendants)
A. No please
Q. Have you had contacts with
Poly Products since they became
owners of the property?
A. No please
Q. Don’t you think you were
careless and reckless in not
looking for your property?
A. No please
A. I do pass in front of
the property but has never
contacted anybody to know who is
the owner
Q. If you pass there you will
see that there are a lot of
renovations on the property
A. Yes, I see it but do
not know exactly what
Q. Don’t you think you should
have gone to Poly Products to
tell them you are the owner of
the property?
A. No, because it is not
under my control.” Emphasis
We have considered the effect of
the pieces of evidence of the
Plaintiff referred to supra
alongside his legal arguments
that because the 5th
Defendant’s interest originates
from the Government of Ghana
which were at all times his
licensees, the 5th
Defendants cannot be in adverse
possession. In this respect,
Plaintiff relied on his own case
of Hanna Assi v GIHOC
Refrigeration and Household
Products Ltd.
[2005-2006] at 456 and the other
related cases Hanna Assi
No. 1 and No. 2
respectively. In that case, the
Supreme Court held that upon
confiscation of the
respondent’s, (Plaintiff herein)
property, the Government of
Ghana became licensees of the
Respondent. The Government could
not therefore become adverse
possessors.
The position in this appeal is
therefore as follows:-
Gold Coast Motors, from whom the
5th Defendants
purchased Plot No. 2 were in
adverse possession of the land
since 1991. The 5th
Defendants therefore continued
that adverse possession when
they purchased the Plot No. 2
from Gold Coast Motors. However,
as was contended by the 5th
Defendants herein, the Plaintiff
is statute barred from bringing
the action as the statutory time
limit for bringing the action
had elapsed, in 2003, three
years before the Plaintiff
commenced the action in the
trial court in 2006.
WHAT ARE THE LEGAL
POSITIONS OF THE VARIOUS
STAKEHOLDERS IN THIS CASE
In our view, the Government of
Ghana remained licensees of Plot
No. 2 even after the
confiscation of A and B
Industries. The critical and
core issue to consider is
whether or not Gold Coast Motors
and the 5th
Defendants subsequently also
remained licensees or exercised
a possession inconsistent with
the right of ownership of the
Plaintiff.
If we find that Gold Coast
Motors remained licensees, then
their occupation of Plot No. 2
cannot be adverse possession.
However, as we have stated
elsewhere in this judgment, both
Gold Coast Motors and the 5th
Defendants herein were adverse
possessors.
What is the
justification for this position?
In the case of Antwi v Abbey,
[2010] SCGLR 17, the Supreme
Court stated the essential
characteristics of an adverse
possession as follows:-
“A claim of an
adverse possession cannot be
based on clandestine payments of
tribute alone. They must be
open, visible, unchallenged and
apparent so that it gives notice
to the legal owner that someone
may assert claim; for such
payments as were met with
opposition and were made
irregularly but were done only a
few times, could hardly support
a claim of adverse possession.
Acts amounting to establishing
adverse possession are many and
may be in the nature of fencing
the property, posting sign
posts, planting crops, building
or raising animals in a manner
that a diligent owner could be
expected to know about them. The
list may be taller still.”
See also Odonkor and Others v
Botchway [1991] 2 GLR1,
where, it was held that, “the
mere fact that a grantor does
not collect tolls from the
grantee for his land would not
make the grantee an absolute
owner of the land, if infact
that grant was only for
possession.”
It would be
otherwise, however, if the
grantee exercises ownership
rights adverse to the grantor’s
rights for a long time without
the grantor raising objection or
taking steps to protect his
rights.”
Emphasis
See also the cases of Klu v
Kofi Konadu Apraku [2009]
SCGLR 741 and Fairweather v
St. Marylebone Property Co.
Ltd [1963] AC 510 at page 543
where Lord Denning stated the
law as follows:-
“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 in
that land, thus, if a squatter
wrongfully encloses a bit of
wasteland 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.” Emphasis
See also the following cases,
GIHOC Refrigeration &
Household Products Ltd. (No 1) v
Hanna Assi (No. 1)
[2007-2008] SCGLR and
Adjetey Adjei and Others v Nmai
Boi & Others [2013-2014]
2 SCGLR, 147, where the court
stated as follows
“Adverse possession must be
open, visible and unchallenged
so as to give 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
Statutes of Limitation and the
Common law. Under the present
law, the person claiming to be
in possession must show either
(i) discontinuance of the paper
owner followed by possession, or
(ii) dispossession or as it was
sometimes called “ouster” of the
paper owner. Clearly possession
concurrent with 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
Defendant’s 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).”
From the above authorities, it
is certain that the adverse
claim must be inconsistent with
the legal owner’s right of
ownership.
The question which we then have
to ask and answer is whether
Gold Coast Motors exercised a
claim which was inconsistent
with the Plaintiff’s title and
whether that claim was open,
visible, unchallenged and
apparent? From the record, it is
clear that, by selling Plot No.
2 to Gold Coast Motors, the
Government of Ghana acted
contrary to the interest of the
Plaintiff. It must however be
noted that, Gold Coast Motors
acquired an interest that was
independent of the
licensor-licensee relationship
that existed between the
Government of Ghana and the
Plaintiff.
Gold Coast Motors started
exercising rights that were
clearly inconsistent with the
ownership rights of the
Plaintiff. Note must be taken of
the fact that, Gold Coast Motors
started exercising these
inconsistent rights of
possession over the property,
Plot No. 2 in 1991 when the
lease agreement (exhibit 2)
between the DIC and Gold Coast
Motors was executed. It was
after this that Plot No. 2 was
subsequently sold to the 5th
Defendants, who on record
carried out extensive
renovations to the property in
the open and in the full view
and knowledge of the Plaintiff
who acknowledged same during
cross examination. Factually and
legally, Gold Coast Motors and
the 5th Defendants
became adverse possessors from
1991 and have never recognized
the title of the plaintiff since
then, who sat by for over twelve
years and did nothing contrary
to section 10 (1) and (6) of the
Limitation Act, 1972 (NRCD 54).
It must be noted that, this
chain of adverse possession was
continued by the 5th
Defendants when they bought the
property, Plot No. 2 from Gold
Coast Motors. The statutory
limit of 12 years in section 10
(1) of the Limitation Act, NRCD
54 therefore begun to run
against the Plaintiff in 1991
and effectively ended in 2003.
Having commenced the instant
action against the 5th
Defendants, in 2006, that is
three years after the period
allowed under the statute of
limitation had lapsed, the
plaintiff must be deemed to be
statute barred in commencing any
action in respect of Plot No. 2
against them.
By now, it must be apparent that
the Plaintiff’s reason of being
under a disability explaining
why he did not commence the
action against the 5th
Defendant cannot hold water. It
is therefore our considered view
that the 5th
Respondents have acquired title
to Plot No. 2 and the interest
of the Plaintiff is thereby
extinguished.
It was for the above reasons,
that we unanimously on 9th
November 2016 dismissed the
Plaintiff’s appeal against the
decision of the Court of Appeal
dated 6th February
2014. The Court of Appeal
decision of even date is hereby
affirmed.
(SGD)
V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO – BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD)
G. PWAMANG
JUSTICE OF THE
SUPREME COURT
COUNSEL:
ANDREWS DANIELS FOR
PLAINTIFF/APPELLANT.
SAMUEL CUDJOE WITH HIM SESI
TETTEH FOR 5TH
DEFENDANT/RESPONDENT. |
