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Land -
Ownership
-
Customary grants -
Declaration of title -
Perpetual injunction -
Cancelling title certificate -
Recovery of possession - Damages
for trespass -
Statute barred -
Whether the disputed land formed
part of a larger track of land
originally owned by the Asere
Stool or the Abola Piam family
- Whether or not the plaintiff
constructed fence wall around
the land before the defendant
entered the land - Whether or
not the defendant’s land
certificate was issued by
mistake - Whether the Land Title
Registry caused the defendant to
conduct a search at the Lands
Commission before issuing him
with the land Title Certificate
HEADNOTES
The
plaintiff is the owner of a
track of land of which the
disputed land forms part. She
has been in possession of the
disputed land since 1970. As at
1974, the disputed land was
registered in the name of
Naa-Moko Company Limited who
conveyed same to Charosse
Stores. When she discovered that
the land was plotted in the name
of Charosse Stores at the Lands
Commission she re-acquired same
from Charosse Stores and had it
registered in her name at the
Lands Commission.. In 1997, she
constructed a wall around the
disputed land and built three
stores which were not completed
and travelled to the United
States of America. Later it came
to her attention that there had
been encroachment on her land;
upon her return, she was able to
eject all the trespassers except
the defendant who claims
ownership
of the plot of land in dispute.
She described the acts of
trespass The defendant in his
response in his statement of
defence denied the plaintiff’s
claims and maintained that he
acquired the disputed plot of
land from the Abola Piam family
of Accra in 1997 and constructed
a two-bedroom house on it and
moved to live in the property
himself. He maintained it was in
the year 1998 that the plaintiff
put up the fence wall to
encompass his land and put up a
block of 4 stores. The defendant
pleaded the action was statute
barred, he had been in
undisturbed possession since
1997, if the plaintiff had any
interest in the property at all
such interest had been
extinguished. Moreover, he has a
registered title to the land,
his title therefore is
indefeasible. The trial court
resolved these issues in favour
of the plaintiff The defendant
aggrieved by the decision
appealed to the Court of Appeal
who gave judgement in favour of
the defendant The
plaintiff not satisfied with the
decision of the Court of Appeal
brought this appeal
HELD
t
is absurd for defendant to turn
round to plead that plaintiff’s
action is statute barred and her
title to the land is
extinguished. By his own
evidence, the plaintiff is
contending her title to the land
in the pending Circuit Court
suit. The present suit was
commenced by the plaintiff in
November 2011 obviously, because
the defendant had abandoned
prosecuting the earlier suit.
Time could not possibly start
running against plaintiff so
long as the Circuit Court suit
continues pending. A plea of
limitation under section 10 of
the Limitation Act cannot
operate against the plaintiff in
these circumstances. The
defendant would then be
benefiting from his own wrong.
From the foregoing, the appeal
succeeds on all the grounds. The
judgment of the Court of Appeal
is hereby set aside. The
Judgment of the High Court is
affirmed.
STATUTES
REFERRED TO IN JUDGMENT
Land
Title Registration Act, 1986 (PNDCL
152
Limitation Act, 1972 (NRCD
54)
CASES REFERRED TO IN JUDGMENT
Stephen
Adei & another v Grace Robertson
and Sempe Stool [2016] 101 GMJ
160.
Offei v Asamoah & Another
[2017-18] 1SCLRG 417
Owusu-Domena v Amoah
[2015-2016]1SCGLR 790
Mondial Veneer (GH) Ltd. V
Amuah Gyebu XV [2011]1SCGLR 466
University of Cape Coast v
Anthony [1977]2 GLR 2.)
Awuku v Tetteh [2011]1SCGLR
John Ekuban v Kojo Frimpong Suit
N0 FAL/300/11 (unreported)
Western Hardwood Enterprises Ltd
v West African Enterprises Ltd
[1998-1999] SCGLR 105
Brown v Quarshiegah [2003-2004]2
SCGLR 930
Barko v Mustapha [1964] GLR 78
Djin v Musah Baako [2007-2008]
SCGLR 686
Wallis’s Holiday Camp v Shell-Mex
& B P Ltd. [1975] 1 QB 94
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DORDZIE
(MRS), JSC:-
COUNSEL
FELIX
QUARTEY FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
S. K. AMOAH FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
DORDZIE (MRS), JSC:-
FACTS:
This matter originated from the
High Court Accra where the
plaintiff who is the appellant
herein initiated a suit against
the defendant for the following
reliefs:
1.
Declaration of title
to all that piece of land
described in the schedule to the
statement of claim as follows:
“All that piece of land situate
lying and being at West
Akweteman, Accra and bounded on
the North by Charosse stores
land measuring 67.7ft more or
less on the East by proposed
road measuring 103.3ft more or
less on the South by proposed
road measuring 67,6ft more or
less on the West by Charosse
Stores land measuring 1001.3ft
more or less and containing an
approximate area of 0.158 Acre
or 0.06 hectares which said
piece or parcel of land is more
particularly delineated.”
2.
Perpetual injunction
restraining the defendant, his
agents, assigns, successors from
interfering with plaintiff’s
quiet enjoyment.
3.
An order
cancelling the defendant’s title
certificate
4.
Recovery of possession
5.
Damages for trespass
These claims are based on facts
averred in plaintiff’s pleadings
which we will summarize as
follows:
The plaintiff is the owner of a
track of land of which the
disputed land forms part; the
Asere Stool is her grantor. She
has been in possession of the
disputed land since 1970. As at
1974, the disputed land was
registered in the name of
Naa-Moko Company Limited who
conveyed same to Charosse
Stores. When she discovered that
the land was plotted in the name
of Charosse Stores at the Lands
Commission she re-acquired same
from Charosse Stores and had it
registered in her name at the
Lands Commission. Exhibit A is
the registered instrument in
respect of the disputed land.
In 1997, she constructed a wall
around the disputed land and
built three stores which were
not completed and travelled to
the United States of America.
Later it came to her attention
that there had been encroachment
on her land; upon her return,
she was able to eject all the
trespassers except the defendant
who claims ownership of the plot
of land in dispute. She
described the acts of trespass
by the defendant thus: the
defendant pulled down part of
her fence wall and the
uncompleted store structures and
built two chamber and halls on
her land and rented same out to
tenants.
The defendant in his response in
his statement of defence denied
the plaintiff’s claims and
maintained that he acquired the
disputed plot of land from the
Abola Piam family of Accra in
1997. The same year, he
constructed a two-bedroom house
on it and put a caretaker in it.
In 1998, he moved to live in the
property himself. He maintained
it was in the year 1998 that the
plaintiff put up the fence wall
to encompass his land and put up
a block of 4 stores. The
defendant pleaded the action was
statute barred, he had been in
undisturbed possession since
1997, if the plaintiff had any
interest in the property at all
such interest had been
extinguished. Moreover, he has a
registered title to the land,
his title therefore is
indefeasible.
The trial court.
At the trial the following
issues were set down for trial-
1.
Whether the disputed land
formed part of a larger track of
land originally owned by the
Asere Stool or the Abola Piam
family.
2.
Whether or not the
plaintiff constructed fence wall
around the land before the
defendant entered the land
3.
Whether or not the
defendant’s land certificate was
issued by mistake
4.
Whether the Land Title
Registry caused the defendant to
conduct a search at the Lands
Commission before issuing him
with the land Title Certificate
5.
Whether or not the
plaintiff is entitled to her
claims.
The trial court resolved these
issues in favour of the
plaintiff
and gave her judgment granting
all the reliefs prayed.
The
defendant aggrieved by the
decision appealed to the Court
of Appeal. The Appeal Court
held that the judgment of the
trial court had no reasonable
support, the trial court erred
in granting plaintiff’s releifs;
the Court of Appeal therefore
overturned the decision of the
High Court and gave judgment to
the defendant.
The plaintiff not satisfied with
the decision of the Court of
Appeal brought this appeal
praying this court to reverse
the decision of the Court of
Appeal and affirm the decision
of the trial High Court.
The grounds of Appeal before
this court are -
1.
The judgment of the Court
of Appeal is against the weight
of evidence.
2.
The Court of Appeal erred
when it held that the land in
dispute does not form part of
land belonging to the Asere
Stool despite the overwhelming
evidence on record.
3.
The Court of Appeal
erred in law when it failed to
uphold the appellant’s overt
acts of possession on the land
since 1970
4.
The court of Appeal erred
in law when it held that the
trial judge could not rely on
the weakness in the case of the
defendant in granting judgment
to the plaintiff.
Submissions by Counsel
In arguing the above grounds of
Appeal counsel for the plaintiff
dwelt on the principle that an
appellate court must be slow in
interfering with the findings of
the trial court and could only
do so where the findings are not
supported by the evidence and
are clearly shown to be wrong.
Counsel submitted firstly, that
there is evidence on record
showing that the subject matter
of the dispute is materially the
same. He referred to the site
plans of both parties and
pointed out that the coordinates
of both plans are materially the
same. Moreover, the location of
the disputed land had never been
in issue; both parties in their
evidence agreed that the land is
located at Sowutuom. The Court
of Appeal however based its
findings on its misconception
that plaintiff’s land is situate
at West Akweteman, which is
different from Sowutuom. This
finding of the first appellate
court is erroneous and not
supported by the evidence.
Secondly, counsel argued that
the trial judge based her
rejection of the evidence of the
defendant and his witness on her
observation of their demeanor.
The appellate court who had no
chance of making those
observations had no
justification to disturb the
findings of the trial court on
the veracity of the defendant
and his witness.
Counsel further submitted that
though plaintiff and her
witnesses led evidence to
establish her root of title and
acts of possession the Court of
Appeal erroneously held that she
failed to prove her title to the
disputed property.
In response to the above
submissions, counsel for the
defendant argued the plaintiff
failed to discharge the burden
of proof of her title to the
disputed land. The Court of
Appeal was therefore justified
in reversing the judgment of the
trial High Court. Counsel
further submitted that there is
no evidence on record proving
that the disputed land belongs
to the Asere Stool, the findings
of the trial court on that issue
is not supported by the evidence
on record. In the supplementary
statement of case filed by the
defendant on 17 June 2020 upon
the orders of the court that
the parties address us on the
legal effect of a provisional
land certificate; defence
counsel referred us to the case
of
Stephen Adei & another v Grace
Robertson and Sempe Stool [2016]
101 GMJ 160. In that
case, according to counsel this
court held that the Abola Piam
family holds the allodial title
to Sowutuom lands therefore,
defendant’s claim of title to
the disputed land is well
founded.
On the issue of the provisional
land certificate counsel holds
the view (referring to section
24 (4) (b) of the
Land Title Registration Act,
1986 (PNDCL 152),) that a
provisional certificate does not
confer absolute title on the
holder but confirms the holder’s
possession. The defendant,
counsel argued had been in
undisturbed possession of the
property since 1997 as such
plaintiff’s interest if any has
been extinguished by the
limitation Act, 1972 (NRCD
54)
The omnibus ground of appeal
which is the first ground in
this appeal places the
obligation on this court, to
review the totality of the
evidence on record to ascertain
whether the findings made by the
trial court and the first
appellate court both factual and
legal on the issues joined
between the parties were
properly made. See the recent
decision of this court in the
case of
Offei v Asamoah & Another
[2017-18] 1SCLRG 417
in which this court
re-emphasized its position in
Owusu-Domena v Amoah
[2015-2016]1SCGLR 790
that a ground
of appeal that the judgment is
against the weight of evidence
‘throws up the case for a fresh
consideration of all the facts
and law by the appellate court.’
What then was the evidence
adduced before the trial court
by the parties?
Plaintiff:
She traced her root of title to
the Asere stool and said she
bought a track of land from the
Asere Chief part of which is the
subject matter of this
litigation. She was in
possession of the track of land
for about 25 years before the
defendant trespassed on the
portion which is now in dispute.
According to plaintiff, she had
built a fence wall around the
disputed land and constructed
stores in front of it. She
travelled out of the country,
when she came back, she found
the defendant on her land. The
defendant had pulled down one of
the stores to gain access and
had built a small house on the
land. She confronted the
defendant and made it known to
him that she owns the land he
had trespassed on. The defendant
responded that the land had been
sold to him and continued to
build. As a further proof of her
acts of possession, plaintiff
tendered photographs of the
development she made on the land
before she travelled. These are
exhibits ‘B’ and ‘C’ series.
These photographs she said show
the state of her property before
the defendant intruded. When she
came back to see the trespass to
her land, she took pictures of
it and consulted a lawyer.
Plaintiff said further that she
discovered from the records of
the Lands Commission that
Charosse Stores originally
acquired the land and had
registered same. She had to
re-acquire the land from
Charosse Stores. Charosse Stores
issued her the title deed
exhibit A. which is dated 24
July 2003. Plaintiff further
said the defendant took her to
court when she responded and
started attending court the
defendant ‘run away’ and stopped
coming to court.
The mason who put up the fence
wall and shops for the plaintiff
testified as PW1. He gave a
pictorial description of the
property in dispute and said the
plaintiff engaged him in 1997 to
do construction work on her
land. The land consisted of two
plots, one has an existing
building on it and the other was
empty. He constructed a fence
wall around the empty plot with
a gate that leads to the second
plot that was already developed.
He constructed stores up to a
level when the plaintiff
travelled out of the country.
They suspended work on the
property during the absence of
the plaintiff. Two weeks after
she left, someone broke into the
empty plot that had been fenced
and commenced building thereon.
The plaintiff came back after 3
weeks and instructed them to
continue with the work on the
stores. Whiles they were working
the defendant brought soldiers
in a truck and caused their
arrest. The defendant at that
point owned up to be the one who
had broken in and was building
on the land.
The next witness who testified
on behalf of the plaintiff was
William Tetteh Nettey. He said
he is a nephew to the plaintiff;
when plaintiff’s land was
demarcated for her by the Asere
Stool, there was some left which
he expressed the desire to buy.
The plaintiff took her to the
chiefs and he was given the rest
of the land plaintiff bought, it
was four plots, he bought it and
developed it and that is where
he had lived since 1987 without
any challenge from anybody.
(This presupposes that William
Tetteh Nettey is plaintiff’s
neighbor) He stressed that the
land demarcated for them by the
Asere Stool has signboards that
bear the name Merley Tse Korle
Ansah, it is a name ascribed to
the Asere Stool.
Defendant:
he said he acquired the disputed
land from the Abola Piam family
in 1997. He was given an
indenture when he acquired the
land. The original he maintained
is missing so a photocopy of the
indenture was accepted in
evidence as exhibit 1. He
further tendered a provisional
land certificate as exhibit 2.
He built on the land in 1997 and
moved into it in 1998. He
tendered a photograph of the
house he built as exhibit 4.
According to the defendant, he
had built on the land before
plaintiff built her wall and
shops. His caretaker protested
when plaintiff’s workers were
building the wall. He later sued
the plaintiff in the Circuit
Court. He denied that he pulled
down plaintiff’s structures. The
defendant called a mason whom he
alleged put up his building on
the land as DW1. He was shown a
picture of the house he
allegedly constructed on the
land for defendant. The witness
denied that the house in the
picture was the house he built
on the land for the defendant.
Analysis of the evidence
From the evidence, the parties
are ad idem on the identity of
the land in dispute and both
parties maintain the land is
situate at Sowutuom. Exhibit A
plaintiff’s title document
however places the location of
the land the subject matter of
the suit at West Akweteman.
Evidence of both parties
demonstrates that the area name
reflected in the plaintiff’s
title document is not correctly
stated. However, the Court of
Appeal failed to ascertain the
fact that no issue had been
joined between the parties on
the location of the property in
dispute irrespective of the
error on exhibit A. We have
observed that the main axis on
which the judgment of the Court
of Appeal revolved is the
erroneous conclusion it came to
that the property in dispute is
not the same property that
plaintiff’s title document
describes.
It is worth commenting that in
this dear country of ours
especially in the city of Accra
names of localities are not
always accurate with names on
official plans or maps of the
municipalities in the city
because of fast-uncontrolled
developmental changes that are
ongoing all over in the
outskirts of the city. As a
result, nomenclature covering
area names in Accra vary
generally. It is a notorious
fact of public interest and we
do take judicial notice of that.
We further rely on the evidence
of both parties which confirms
that the disputed property is
situate at Sowutuom and come to
the conclusion that the property
in dispute is located at
Sowutuom.
This action being an action in
which the plaintiff is asserting
title to the disputed land, the
law requires that she produced
persuasive evidence establishing
her root of title, her mode of
acquisition and overt acts of
possession. See the case of
Mondial Veneer (GH) Ltd. V Amuah
Gyebu XV [2011]1SCGLR 466
On proof of her root of title
and mode of acquisition,
plaintiff’s evidence is that the
grant of the land was initially
made to her by the Asere chiefs,
she did not produce any document
to support this; this
presupposes that the grant from
the Asere chiefs was a customary
grant. The law recognizes that
customary
grants do not require
writing. (See
University of Cape Coast v
Anthony [1977]2 GLR 2.)
What is required of the
plaintiff is oral evidence in
proof of her customary grant
from the Asere Stool. This she
succeeded in doing through the
evidence of her second witness
William Tetteh Nettey. That her
grant was from the Asere chiefs
is confirmed by the evidence of
this witness who said he shares
boundary with her. He said his
property, four plots of land on
which he had built and occupies
since 1987 without any challenge
was granted him by the Asere
chiefs. His property was the
remnant of the portion of land
the chiefs demarcated for the
plaintiff. It was the plaintiff
that led him to the chiefs of
Asere to be granted the remnant
of what they granted plaintiff.
To confirm that the Asere Stool
is the plaintiff’s grantor PW2
testified that the land
demarcated to them has the
signboards of the Asere Stool on
it the signboards have the
inscription – ‘Merle Tse Korle
Ansah’ which is the same as the
Asere stool. Moreover, his
indenture was signed by ‘Asere
Owosika.’
The defendant’s evidence on
proof of root of title on the
other hand is his assertion that
he bought the land from the
Abola Piam family, evidence of
the said transaction is a copy
of an indenture, (the original
of which he said is missing) and
exhibit 2, the provisional land
certificate. What then is the
evidential value of exhibit 2
plaintiff’s provisional Land
certificate which he averred
conferred indefeasible title on
him.
Section 23 of the Land
Title Registration Act, 1986
(PNDCL 152) sets out the
procedure the Registrar of Lands
follows in determining when to
issue a provisional certificate
to a claimant. Section 23 (1)
provides: “Subject to
sections 13 and 22, a person who
claims to be a proprietor of
land or an interest in land
situated in a registration
district shall apply, setting
forth that claim, in the manner
and within the period specified
in the notice given under
section 11.”
Section 23 (3) & (4)
spell out the next steps of the
Registrar of Lands when he
receives an application of claim
the subsections state as
follows- (3) The land
registrar shall, after the
expiry of the notice given under
section 11 of this Act, proceed
to examine the title of a person
who has made a claim to a land
or an interest in land under
subsection (1) or is deemed to
have made that claim under
subsection (2) of this section,
and may for that purpose examine
an instrument relating to that
interest.
(4) If as a result of the
examination the land registrar
is satisfied that, (a) a person
claiming to be a proprietor of
land has a good title to the
land referred to in the claim
and that another person has not
acquired a title inconsistent
with that of the claimant of the
land under a law or has acquired
proprietorship of that land by
prescription, the land registrar
shall record that person as the
proprietor with absolute title
of the land and declare the
title to be absolute.”
The defendant’s evidence on how
he came by the provisional
certificate as captured on page
60 of the record is that when he
received the indenture exhibit 1
from the Abola Piam family, he
took it to the Lands Commission
to acquire land certificate.
Land Commission caused a
publication to be made in the
“Spectator” he tendered the
publication as exhibit 3; that
fulfils the requirement under
section 11 of the Act. Prior to
issuing a certificate or a
provisional certificate the
above quoted sections require
that the registrar examines the
title of the applicant and
satisfies himself that the
claimant has good title to the
land and there are no other
title acquired which is
inconsistent to the applicant’s
title. This can be achieved by
the registrar examining the
records of the Land Registry.
From the recitals in exhibit A
it is clear that as far back as
1974 the records of the Lands
Commission has the disputed land
forming part of lands that had
already been registered. The
details of these are as follows:
a) A Deed of Conveyance dated 27th
October 1974 made between
Emmanuel Adjaayi Tagoe, Okai
Lartey and Alfred Awuley to
Naa-Moko Company Ltd. Stamped as
N0 AC 9038/74 and registered as
N0 3003/1974. b) A Deed of
Conveyance dated 26 of May 1975
made between Naa-Moko Company
Ltd and Charosse Stores Stamped
as N0 AC 4100/75 and registered
as N01958/1975.
If indeed the registrar had
examined his records at the
Lands Registry as required by
section 23 (3) of the Act, he
would have discovered the
registration of interests in the
land the defendant was claiming
and seeking to register. By our
understanding of the provisions
of section 23 of the Act, it is
after the registrar satisfies
himself that there are no
registered titles which are
inconsistent with the title of
the claimant that he can
consider declaring the claimant
as the absolute owner of the
land or consider the provisions
of section 23 (4) (b) as in the
case of the defendant.
Section 23 (4) (b) Provides:
“ a person claiming to be a
proprietor of land he is in
possession of, or has a right to
possession or right of or in
occupation of, the land referred
to in the claim, but does not
have a sufficiently good title
to be recorded under paragraph
(a) as the proprietor with
absolute title, the land
registrar may, with the consent
of the applicant, instead of
rejecting the application,
record that person as proprietor
with provisional title of the
land, and, if the land registrar
does so, shall also record
(i) the date on which the
possession or occupation of that
person began or is deemed to
have begun,
(ii) the particulars of an
instrument or any other evidence
under or by virtue of which a
right or an interest in the land
adverse to or in derogation of
the interest of that person
might exist, or
(iii) a qualification which
affects the title;
By the provision of section 23
(4) (b) therefore, for the
registrar to consider issuing a
provisional certificate, the
applicant must (i) be in
possession, or has the right to
possession (ii) be in occupation
or have the right to occupation.
The defendant’s own evidence on
record, which confirms
plaintiff’s evidence, is that
since 1997 when the defendant
alleged to have acquired the
land, both parties have been in
possession. The photographs of
the property since the dispute
arose, that is the exhibit B and
C series confirm this. The
defendant instituted suit N0
CC555/98 in the Circuit Court
against the plaintiff in October
1998, praying for an order for
plaintiff to vacate the disputed
land. A suit the defendant never
prosecuted. That is a further
confirmation that the defendant
had not been in exclusive
possession since he entered the
land. Plaintiff has at all
material times asserted her
possessory right.
From the narrations so far, it
is clear that the registrar of
lands would not have issued the
provisional certificate if he
had investigated and complied
with the provisions of section
23 of the Land Title
Registration Act. The indenture
which was the instrument that
formed the basis for the
issuance of the provisional
certificate was lodged in the
Land Registry in June 1999; the
lands register already had
registration of the same land
details of which we have already
quoted. The Provisional
Certificate was issued on 6
October 2009. The
registrar of lands had ample
time to do the investigation
statutorily required of him but
he failed to do so. The issuance
of the provisional certificate
was wrong. The trial court
therefore, cannot be faulted in
its decision that the
provisional certificate was
issued by mistake. Section 122
of the Land Title Registration
Act gives power to the court to
order the rectification of the
Land register on grounds of
fraud or mistake. We do hereby
affirm the decision of the trial
court that the provisional
certificate exhibit 2 was issued
by mistake; it is null and void
and ought to be cancelled. This
court in the case of
Awuku v Tetteh [2011]1SCGLR
held that a land certificate
found to be null and void should
be cancelled and the Land Title
Register could do so suo motu.
As per the records of the Lands
Registry disclosed in the
recitals in exhibit A it has
never been part of the records
of the Lands Registry that the
Abola Piam family owns the area
in dispute. However, counsel for
the defendant in his
supplementary statement of case
referred us to the decision of
this court in Adei & another v
Robertson & and another (cited
supra) in which there is a
holding that the Sowutuom lands
are owned by the Abola Piam
family. There is no doubt that
there are conflicting decisions
emanating from the courts on
ownership of land in various
communities in the
municipalities in Greater Accra
making land litigation very
murky. In this case, for example
the trial court relied on a High
Court decision in the case of
John
Ekuban v Kojo Frimpong Suit N0
FAL/300/11 (unreported) to
hold that Sowutuom lands belong
to the Asere Stool. In the
Stephen Adei & another v
Robertson & another case, it can
be observed that the Sempe Stool
also contended ownership over
Sowutuom Lands. We have
commented earlier on the issue
of nomenclature for areas in the
Greater Accra municipality. What
may be described as Sowutuom may
not be Sowutuom at all in
official records. It may be
Akweteman as we have seen in
this case. It is a situation
which the Lands Commission must
help the courts to address in
order to reduce the multiplicity
of land cases in the court and
the confusion that emerges in
the areas affected by the
conflicting decisions of the
courts. This court’s decision in
the Adei v Robertson case was
based on the evidence placed
before it that the appellants
produced documentary evidence
that they acquired the disputed
plot from Madam Abena Esi who
acquired it from Abola Piam We.
In the documentary evidence
before us, the Land Registry
Record does not ascribe
ownership of the area within
which the disputed land falls to
the Abola Piam family. We would
therefore in this case confine
ourselves to the evidence before
us on who made a valid grant of
the particular plot of land in
issue in this case.
From our analysis of the
evidence above, the evidence of
PW1 on the plaintiff’s acts of
possession gave a vivid
description of these acts, he
said, as at the time the
defendant entered the land,
there was a wall around it with
a gate that opens to an
adjoining building belonging to
the plaintiff. Shops were under
construction in front of the
property at the time defendant
entered. Exhibit C series are
pictures of the property
confirming plaintiff’s evidence
on her acts of possession and
defendants acts of trespass.
Exhibits C, C1 and C5 show a
completely walled property.
Exhibit C shows the existing
stores the plaintiff spoke
about. Exhibit C2 and C6 show
the portions of the fence wall
the defendant broke down to gain
access. It is clear from the
evidence that at the time the
defendant chose to accept an
offer of sale of the property
plaintiff was in active
possession. The plaintiff’s
existing house which has a gate
that opens to the disputed
property adds up to the
plaintiff’s evidence of long
possession. The activities on
the land are clear indication to
any prospective purchaser that
the land is encumbered.
The defendant admitted in his
evidence that he took no steps
to conduct a search before
purchasing the land. There was
ample evidence of possession on
the land at the time of
defendant’s acquisition. It had
been well established by a
number of decided cases that
where a purchaser of land had
the opportunity of seeing
evidence of possession no matter
how slight on any part of the
land he intended to purchase but
he fails to investigate the
authority behind the adverse
possession he is fixed with
notice of the adverse possessor.
See the case of
Western Hardwood Enterprises Ltd
v West African Enterprises Ltd
[1998-1999] SCGLR 105
In the case of
Brown v Quarshiegah [2003-2004]2
SCGLR 930 at
page 957 this court per
Professor Kludze JSC put it
bluntly this way
“Procuring a lease and a
subsequent land certificate in
circumstances when the
plaintiff, on the evidence, knew
or ought to have known that the
land had been previously granted
to a prior incumbrance, is
tantamount to fraud”
The defendant was nothing but an
intruder. In such a
circumstance, the
onus lies on the defendant to
establish a right to possession
of the land in dispute. The
defendant has failed to
establish such right; his entry
to plaintiff’s land is therefore
wrongful. This
court’s decision in
Barko v Mustapha [1964] GLR
78 referred with
approval. The defendant’s
behavior is similar to the
behavior of the defendants in
the Barko v Mustapha case. In
that case, the plaintiff had
been in possession of the
grandmother’s farm and had
cultivated same for some years
without any disturbance from the
children of her grandmother who
are the rightful owners. The
defendants who were distant
relatives entered the farm
destroyed the plaintiff’s crops
and started fresh farms on
portions the land plaintiff had
long been cultivating. The Court
per Van Lare JSC held: “To
dismiss the plaintiff's claim in
such circumstances and enter
judgment for defendants would
amount to allowing an intruder
to eject an occupant so that the
intruder may change place with
the occupant. Nothing would be
more chaotic were the law to
permit such a state of affairs.”
The defendant’s defence in this
whole action is hinged on his
provisional land certificate and
his presence on the land. The
provisional certificate we have
clearly stated was illegally
issued therefore null and void.
Evidence has also firmly
established his presence on the
land to be that of an intruder
and trespasser.
The plaintiff had been able to
establish her root of title and
mode of acquisition of the
disputed property; she
customarily acquired the land
from the Asere Stool
subsequently when she got to
know that the land was
registered in the name of
Charosse stores she re-acquired
the property from Charosse
stores. The evidence of this is
exhibit A. She has also adduced
sufficient evidence to establish
her overt acts of possession
since 1997. On the balance of
probabilities, therefore the
plaintiff ought to succeed in
her claims.
Section 10 of the Limitation
Act
The defendant by paragraph 10 of
his statement of defence pleaded
thus “Defendant says in further
answer to paragraph 7 and 8 of
the statement of claim that
having been in undisturbed
possession of the disputed land
since August 1997 granted
without admitting that the
plaintiff has any interest in
the land the said interest has
been extinguished by the
Limitation Act (1972) NRCD 54”
Section 10(1) & (6) of the
Limitation Act read “A person
shall not bring an action to
recover a land after the
expiration of twelve years from
the date on which the right of
action accrued to the person
bringing it or, if it first
accrued to a person through whom
the first mentioned claims to
that person.
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.”
The above provisions in effect
mean that a person in adverse
possession of land for over 12
years acquired a possessory
title in the said land and the
right of the original owner in
that land would become
extinguished.
The question however is can it
be said that the defendant was
in adverse possession therefore
had acquired possessory title
and section 10 of the Limitation
Act would avail him?
This plea cannot avail the
defendant for two reasons.
Firstly, he has no adverse
possession of the land. This
issue was effectively addressed
by this court in the case of
Djin v Musah Baako [2007-2008]
SCGLR 686.
The provisions of Section 10
of the Limitation Act (1972)
NRCD 54 are similar to the
English Statutes of Limitation.
This court per Atuguba JSC in
considering the circumstances
that operate to bar the title of
an owner of land under the
Limitation Act made reference to
the English case of
Wallis’s
Holiday Camp v Shell-Mex & B P
Ltd. [1975] 1 QB 94 at 103
The position taken by Lord
Denning in that case as quoted
by Atuguba JSC in the Djin v
Musah Baako case aptly
represents our view on this
issue and we would reproduce the
said quote as stated at page 697
of the report.
“Wallis’s state their claim on
actual possession for 12 years.
They farmed the land as their
own for 10 years and used it as
their own for another two years.
They say that Shell-Mex ought to
have brought an action for
possession during those 12
years: and not having done so,
Shell-Mex are barred; and
Wallis’s have a possessory title
under the Limitation Act 1939.
There is a fundamental error in
that argument. Possession by
itself is not enough to give a
title. It must be adverse
possession. The true owner must
have discontinued possession or
have been dispossessed and
another must have taken it
adversely to him. There must be
something in the nature of an
ouster of the true owner by the
wrongful possessor.”
The plaintiff in this case is
the true owner and is still in
full possession of the property.
The learned judge went on at
page 701 to state the general
position of the law on this
issue by quoting Ormrod LJ’s
view in the Wallis’s Holiday
Camp v Shell-Mex & B P Ltd. Case
thus “The overall
impression by the authorities is
that the courts have always been
reluctant to allow an encroacher
or squatter to acquire a good
title to land against the true
owner, and have interpreted the
word ‘possession’ in this
context very narrowly”
The second reason why the
defendant cannot rely on section
10 of the Limitation decree is
that there is a pending case in
the Circuit Court in which
plaintiff is contending her
title to the land in dispute
with the defendant. Time cannot
start running against her so
long as that suit is pending and
had not been determined.
It is part of the defendant’s
own evidence per exhibit 5 that
he instituted a suit against the
plaintiff in the Circuit Court.
The record has it, page 38 to 41
of the proceedings, that, the
defendant sued the plaintiff in
the Circuit Court in 1998
praying the court to order the
plaintiff to vacate his land. He
applied for interim injunction
which the court granted
restraining both parties from
developing the land. This order
was made on the 30 November
1998. The defendant flouted the
order and completed the
structure he was raising on the
land. Plaintiff said she was
defending the suit but the
defendant stopped coming to
court. In his evidence in chief
page 61 of the record defendant
said the case he instituted in
the Circuit Court is still
pending.
The defendant had constructive
notice of the plaintiff’s
ownership of the land. Yet he
forcibly entered, commenced
developing it and turned around
to sue plaintiff, in 1998, a
suit plaintiff was contending he
abandoned prosecuting. However
he told the trial court on April
3rd 2014 that the
said suit is still pending. This
conduct of the defendant points
to only one thing a fraudulent
behavior.
It is absurd for defendant to
turn round to plead that
plaintiff’s action is statute
barred and her title to the land
is extinguished. By his own
evidence, the plaintiff is
contending her title to the land
in the pending Circuit Court
suit. The present suit was
commenced by the plaintiff in
November 2011 obviously, because
the defendant had abandoned
prosecuting the earlier suit.
Time could not possibly start
running against plaintiff so
long as the Circuit Court suit
continues pending. A plea of
limitation under section 10 of
the Limitation Act cannot
operate against the plaintiff in
these circumstances. The
defendant would then be
benefiting from his own wrong.
From the foregoing, the appeal
succeeds on all the grounds. The
judgment of the Court of Appeal
is hereby set aside. The
Judgment of the High Court is
affirmed.
A.
M. A. DORDZIE (MRS)
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
COUNSEL
FELIX QUARTEY FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
S. K. AMOAH FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
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