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J U D G M E N T
ATUGUBA, J.S.C:
FACTS OF THE CASE
The Plaintiff / Respondent /
Appellant (herein-after referred
to as the plaintiff) and
co-defendant/appellant/respondent
(herein-after called the
co-defendant) assert rival
titles to plot no. 234 block 8
Section 114 situate at
La-Bawaleshi (East Legon).
Resolution of the rival titles
The trial judge resolved the
rival claims in favour of the
plaintiff on the grounds
inter alia, that the
plaintiff was a bona-fide
purchaser of the land without
notice of the fact that Nii Odai
Ayiku IV of Nungua the grantor
of his vendor had been, prior to
his vendor's purported
acquisition of title from him,
destooled. As to a judgment
affecting the land by an Accra
Circuit Court the trial judge
held that it is a settled
principle that a purchaser of
land is not estopped or affected
by a judgment adverse to his
vendor in proceedings commenced
subsequent to the acquisition of
his title. The trial judge also
held that if the co-defendant
had made the proper search at
the proper place he would have
known of the plaintiff's prior
title, secured by a Land title
Certificate, to the land and is
therefore bound by it.
The Court of Appeal reversed the
trial judge by a majority of 3 –
2, holding that on the principle
that Nemo dat quod non
habet, the plaintiff
acquired no valid title, in view
of the said destoolment of Nii
Odai Ayiku IV.
The Validity of the competing
Titles
Assuming that Nii Odai Ayiku’s
grant to the plaintiff’s vendor
is invalid by reason of his
prior destoolment that fact is
not decisive of the matter.
The Land Title Certificate
The effect of a Land Title
certificate has been considered
in a few local cases, see
Amegahie v. Okine (1992) 2
GLR 319, Republic v. Land
Title Registrar, Ex parte
Boahen II (2001-2002)1 GLR
42 and Brown v. Quarshigah
(2003 – 2004) 2 SC GLR 930.
Whether they are all
reconcilable, and if not which
should be preferred to the
other, needs not detain us in
this case as it can be decided
on less cloudy grounds.
The Limitation Decree
The appellant has pleaded in
paragraphs 18 and 19 of his
amended Reply to the amended
statement of defence of
co-defendant and Defence to
Counterclaim dated 30/7/1999 at
p.69 of the record of appeal as
follows:
“18. Plaintiff avers that with
all deference to the Judgment
Plaintiff was not party to Suit
No. CCL 67/89 which was
instituted after Plaintiff
has been in effective possession
and occupation of Plot No. 234
without let or hindrance since
1980 and has physical evidence
of occupation on the land.
19. Plaintiff avers
that he is protected by the
Limitation Decree 1972, N RCD54
and the Land Title Registration
Law, PNDC L 152” (e.s)
It is clear from the evidence on
record that since 1980 the
plaintiff has been in possession
of the disputed land until the
same was rocked as from around
June 1997 by the building
operations of the defendants.
The trial judge has rejected,
and rightly on the evidence, the
claim that other persons like
Freeman Mensah and his agents
did any acts such as building on
the said land. The trial judge
found that it is the plaintiff
who put up the outhouse on the
said land.
In the circumstances, assuming
his title from Nii Odai Ayiku IV
the Nungua Mantse is bad, yet
his adverse possession of the
said land for up to and even
over 12 years confers on him
possessory title by reason of
section 10 of the Limitation
Decree 1972 (NRCD 54). It
should be noted that such
acquisition of title prevails
even against a registered
proprietor of land under the
Land Title Registration Law,
1986 (PNDCL 152) by virtue of s.
18 (1) and (2) thereof. It is
as follows:
“Section 18 –
Conclusiveness of the Register
(1)
The land register shall be
conclusive evidence of title of
the proprietor of any land or
interest in land appearing on
the register
(2)
Nothing in subsection (1) shall
affect any right or interest in
land acquired under
the law relating to prescription
or the Limitation Decree,
1972 (N.R.C.D 54); provided
that where title to
registered land has been
acquired under the law relating
to prescription or the
Limitation Decree, 1972
(N.R.C.D. 54) the registered
proprietor shall hold the land
upon trust for the person who
claims to have acquired the
title” (e.s)
The defendants’ resort therefore
to the Nungua stool authorities
for a grant to the co-defendant
is misconceived as in the
circumstances by reason of s. 10
(1) and (6) of the Limitation
Decree the stool’s title
therefore had become
extinguished. Thus in GIHOC
REFRIGERATION HOUSEHOLD PRODUCTS
LTD. V HANNA ASSI (2005 –
2006) SC GLR 458 at 468 – 469
Dr. Justice Date-Bah JSC
masterly stated the legal
position as follows:
“The combination of the
extinguishing of the original
owner’s rights under section
10(6) of the Limitation Decree,
1972 (NRCD 54), with the barring
of action against the adverse
possessor under section 10(1),
must in logic result in the
adverse possessor being
construed to have gained a right
that is enforceable by action.
Otherwise, there would be the
risk of “ownerless lands”
resulting from a contrary
interpretation of section 10(6)
of the Limitation Decree.
Indeed, there is authority in
support of the view that an
adverse possessor of land in
relation to which the original
owner’s rights have been
extinguished has rights in
relation to which he can sue.
The adverse possessor gains a
new estate of his or her own,
which is not by transfer from
the original owner whose rights
have been extinguished by the
limitation statute”(e.s).
See also DJIN v. MUSAH BAAKO
(2007-2008) SC GLR 686.
There is no doubt that a grantee
or purchaser of stool property
can enforce the same against
that stool and enjoys such
property as of right. In this
case since it is clear that the
plaintiff perceived himself as
holding a valid grant of the
land from the Nungua stool by
devolution from his grantor, it
follows that his control,
possession and activities on the
said land were done by him
purportedly as of right and
since the stool did not assert
its title against him for
upwards of and even over the
limitation period of 12 years,
he thereby has acquired title
thereto by his adverse
possession.
In the circumstances the
defendants’ acts on the said
land are clear acts of trespass
committed vi et armis et
contra pacem publicae .
It must all along be borne in
mind in this regard that the
story constituting the
acquisition of title to the said
land by the co-defendant has
been rightly, on the evidence
and the findings of the trial
judge, held to be a complete
simulation emanating from
testes diabolices
qui magis fama quam fame
moventur. All this was
a grand design to overreach the
plaintiff. How can such conduct
and acts of the defendants
attract the amnesty of the Land
Development (Protection of
Purchasers) Act, 1960 (Act 2)?
On the contrary, if it were
necessary on the facts of this
case, it is the plaintiff who
would rather be the fit and
proper beneficiary of Act 2.
Conclusion
On the facts and law of this
case the judgment of the trial
judge, is in the main, correct
as against that of the Court of
Appeal.
It is worth emphasizing that if
even the contention of the
co-defendant that neither party
herein has title to the disputed
land is sustainable at all, he
will still not profit from it
since in that case the prior
possession of the plaintiff will
still prevail against him as a
trespasser.
For the avoidance of doubt I add
that since it is clear on the
evidence and the law that the
plaintiff has a better case than
the defendants it will profit no
none to consider matters
touching and concerning other
persons since it is trite law
that in a land suit the
defendant cannot set up a plea
of jus tertii. It
is plain however on the facts
that the plaintiff’s case would
withstand even such side winds.
For all the foregoing reasons
the appeal is allowed, the
judgment of the Court of Appeal
is set aside and the reliefs
granted by the trial judge are
restored.
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
I agree: ANSAH, J.S.C.
J. ANSAH
JUSTICE OF THE SUPREME COURT
I also agree: ADINYIRA,J.S.C.
S. O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
I also agree: OWUSU, J.S.C.
R. C. OWUSU (MS)
JUSTICE OF THE SUPREME COURT
I also agree:
BAFFOE-BONNIE,J.S.C.
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL:
CHARLES HAYIBOR FOR APPELLANT.
KULENDI @ LAW FOR THE
RESPONDENTS.
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