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Land – Title
– Ownership – Trespass -
Limitation Act, 1972 (NRCD54 –
Section 10 (6) - Whether any
title had was extinguished after
12 years. – Whether the
defendant was an innocent
purchaser as at the time he
entered the land -
HEADNOTES
Both the
plaintiff-appellant-respondent
(plaintiff) and the
Defendant-respondent-appellant
(defendant) claimed title to the
disputed land situated at East
Legon. The identity of the land
was not in dispute. The trial
judge resolved the rival claims
in favour of the defendant on
grounds, inter alia, that the
defendant was able to establish
his root of title through the La
Klanaa Quarter that owns the
lands at Oteele-Bawaleshie of
which the land in dispute formed
part. As to the issue of
possession the trial judge held
that the fact that the plaintiff
acquired the land in 1974 and
erected walls did not mean she
was in effective possession as
against the true owner as she
was a mere squatter. The trial
judge also held that the mere
fact that the plaintiff has
registered title deeds as
against the defendant does not
validate the illegality since
registered documents does not
confer state guaranteed title to
the disputed land. The Court of
Appeal reversed the trial judge
holding that on the evidence the
plaintiff has been in long
uninterrupted possession from
1974/75 until 1998, which is 23
years before Mallam Musa
challenged her title.
.
HELD
From the
foregoing we hold that the Court
of Appeal rightly held that the
inconsistencies the trial judge
identified in the evidence of
the plaintiff and her caretaker
PW1 are not on material evidence
and as such cannot be used to
impeach the credibility of the
plaintiff and her witness and
thereby reject her claim. On the
totality of the evidence we hold
that the Plaintiff was able to
discharge the burden placed on
her to establish her title to
the land the subject matter of
the suit. The Court of Appeal
rightly upheld the Plaintiff’s
claim. From the foregoing we
hold that the appeal fails. The
appeal is dismissed. The
judgment of the Court is hereby
affirmed.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules, 2004
C.I. 47
Land
Development (Protection of
Purchasers) Act, 1960, (Act 2);
CASES
REFERRED TO IN JUDGMENT
Seraphim v
Amua-Sekyi [1971]2 GLR 132 at
134
Effisah vs.
Ansah [2005-2006] SCGLR 943 :
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ADINYIRA
(MRS), JSC
COUNSEL
S. K.
AMOAH ESQ. FOR THE DEFENDANT
/RESPONDENT /APPELLANT.
GEORGE
HEWARD- MILLS ESQ. WITH HIM
CHRIS KING FOR THE PLAINTIFF/
APPELLANT/RESPONDENT.
ADINYIRA
(MRS), JSC
Both the
plaintiff-appellant-respondent
(plaintiff) and the
Defendant-respondent-appellant
(defendant) claimed title to the
disputed land situated at East
Legon. The identity of the land
was not in dispute. The trial
judge resolved the rival claims
in favour of the defendant on
grounds, inter alia, that the
defendant was able to establish
his root of title through the La
Klanaa Quarter that owns the
lands at Oteele-Bawaleshie of
which the land in dispute formed
part. As to the issue of
possession the trial judge held
that the fact that the plaintiff
acquired the land in 1974 and
erected walls did not mean she
was in effective possession as
against the true owner as she
was a mere squatter. The trial
judge also held that the mere
fact that the plaintiff has
registered title deeds as
against the defendant does not
validate the illegality since
registered documents does not
confer state guaranteed title to
the disputed land.
The Court of
Appeal reversed the trial judge
holding that on the evidence the
plaintiff has been in long
uninterrupted possession from
1974/75 until 1998, which is 23
years before Mallam Musa
challenged her title. As to the
1991 judgment of the Circuit
Court that the La Klanaa Quarter
relied on to claim title to the
land, the appellate court held
it was given 17 years after the
plaintiff had been in
possession; and that by virtue
of the operation of section 10
(6) of the Limitation Act, 1972
(NRCD54), any title it had was
extinguished after 12 years. So
the appellate court held that at
the time Mallam Musa and
subsequently the La Klanaa
Quarter made their grants to the
Defendant they had no title to
the land. The Defendant in turn
appealed to the Supreme Court
from the judgment of the Court
of Appeal on grounds which would
be set out in full when being
considered in the course of the
judgment.
The Defendant
submits that the Court of Appeal
erred when it based its judgment
on the Limitation Act which was
not pleaded as required under
Order 11 rule 8(1) of the High
Court (Civil Procedure) Rules,
2004 C.I. 47
We are of the
view that this case can be
decided on other grounds as
indeed in this court, no
judgment is upset on the ground
that its ratio is erroneous if
there is another sound basis on
which it can be supported -per
Apaloo J.A as he then was in
Seraphim v Amua-Sekyi [1971]2
GLR 132 at 134
Validity of
the competing titles
There is no
doubt as to the identity of the
land the subject matter in
dispute on which the Defendant
has a completed house. It is
clear from the evidence on
record that the Plaintiff in
1974 obtained a lease from Nii
Odae Ayiku IV the Nungua Mantse;
and had registered her indenture
at the Lands Registry in 1975.
The land was vacant and
unoccupied and she enjoyed
undisturbed possession for 24
years until the Defendant
entered the land and rapidly put
up a building on it.
The
Defendant on the other hand has
no registered document to the
land he is laying claim. He
conceded he made no search at
the Land Title Registry to
ascertain whether the land was
encumbered. The evidence show
that he first bought the land
from Mallam Musah in September
1999, at a time that he knew his
vendor is litigating with
Plaintiff over title and
recovery of the same land. He
went for a fresh grant of the
same plot from the La Klanaa
Quarter which transaction is
evidenced by an unregistered
document dated 5 May 2004. This
was after the Plaintiff has
confronted Defendant, a Deputy
Commissioner for Human Rights
and Administrative Justice, in
his office for trespass and an
attempt at settlement had failed
in 2002 and her counsel had
subsequently written to warn the
Defendant off the land by a
letter dated 30 June 2003. He
presented the documents for
registration on 16 June 2004 and
this was after he has been
served with the writ of summons
issued on 1 June 2004 and he had
entered appearance on 10 June
2004.
The defendant
pleaded in the alternative
protection under the Land
Development (Protection of
Purchasers) Act, 1960, (Act 2);
on the grounds that by the time
the plaintiff confronted him, he
had already completed the
house. It is crystal clear from
the evidence that the defendant
was not an innocent purchaser as
at the time he brazenly entered
the land and rapidly built the
house he did not hold any
conveyance on the land. He was a
trespasser and he knew there was
adverse claim to the land and a
pending suit in which the
Circuit Court has restrained his
vendor and all others claiming
title through him from dealing
with the land. It is obvious
that the Defendant was trying to
overreach the Plaintiff.
Accordingly the Defendant is not
protected by Act 2.
On the
preponderance of the evidence
and the law, we do not have any
difficulty in holding that the
Plaintiff has proved her title
as best as one may in this
country. The Plaintiff not only
relied on her registered title
but also relied on overt acts of
ownership and possession and the
efforts she made to resist
encroachers The Plaintiff said
in 1998 she saw someone laying a
foundation on the land and when
she raised an objection Mallam
Musah claimed ownership of the
land from the same vendor and
sued her. She defended the
action and on 8 May 2002 she
obtained an order of interim
injunction by the Circuit Court,
Accra, restraining Mallam Musa
his assignees, agents etc from
dealing with the land. From the
record Mallam Musa has since
abandoned the case. Her
caretaker PW1 also tried to ward
off the two sons of Mallam Musa
when they forcibly entered the
land and removed Plaintiff’s
corner pillars and was beaten
up. Furthermore, the Plaintiff
who resides in the UK did not
acquiesce to Defendant’s
encroachment on the land when on
a visit she discovered the
Defendant was the culprit. She
confronted the Defendant in his
office, and he offered to
replace the land but it did not
materialize. She then got her
solicitor to warn off the
Defendant by a letter dated 30
June 2003 and when that failed
she instituted this action.
In spite of
this overwhelming evidence in
support of Plaintiff’s case, the
trial judge found for the
defendant because to him the
Plaintiff and her witness were
inconsistent in their evidence.
The Court of Appeal upon
examining the inconsistencies
found by the trial judge held
the inconsistencies were
immaterial.
The Defendant
contends in two of his grounds
of appeal that the Court Appeal
erred in upholding the appeal
regardless of the
inconsistencies in the evidence.
The Defendant however concedes
that some of the inconsistencies
found by the trial judge in the
evidence of the plaintiff and
her witness PW1 could be
trivial; but submitted that
there were material
inconsistencies in the evidence
on the issue of possession.
The defendant
submits that the only evidence
that the plaintiff led on her
alleged possession of the
disputed land was the erection
of a fence wall and there were
inconsistencies between her
evidence and that of her witness
PW1 on the year the wall was
constructed. He contends that
evidence of possession is very
crucial and therefore
inconsistencies on such evidence
cannot be said to be trivial.
We agree
that evidence of possession is
essential in a claim for
trespass and recovery of
possession, so there must clear
and cogent evidence in support
and not mere assertion. So we
scrutinized the Plaintiff’s
evidence in chief on this issue
found at page 101 of the record
of proceedings (RoP) and
reproduce the relevant excerpts:
Q. After you
had been granted this, what did
you do on the land?
A. I erected
three round wall and a dwarf
wall at the front
Q. Can you
explain what this structure mean
A. I erected
walls on three sides and a
shorted (sic) one in front
Q. Do you
recall which year you did the
construction?
A Around 1994
and 1995
Cross-examination by Counsel for
Defendant at page 105 of RoP:
Q. It is not
true that in 1994 and 1995 you
did construction on the land
A. It is not
true, I erected a wall
We did the
same with that of PWI refer and
we reproduce the relevant
excerpt from PW1’s evidence in
chief found at page 108of RoP:
“I am a
caretaker for Mr. Shamo Ocquaye
that is where I live. The
Plaintiff’s land is just
opposite where I live. Plaintiff
appointed me caretaker.
At the time
I was appointed there was
nothing on the land but before I
met her she put a fence wall on
the land. 3 sides of the wall
were tall but the frontage had a
dwarf wall. She called me and
said she was not living here so
I should take care of her land
for her.”
Cross-examination of PW1 by
counsel for defendant, found on
page 109 of RoP:
Q. For how
long have you been living in
East Legon?
A. In 1989
Q. Have you
been living there all along at
where you are?
A. Yes
Q. The wall
you said has been built on the
land, can you tell when?
A. In 1994-
1995
Q. In which
year did you get to know the
plaintiff?
A. In 1994-95
when she came to put up the
fence.
From the
above we find no inconsistency
in Plaintiff’s evidence. It was
PW1, who though confirmed the
wall was built in 1994-95 by
Plaintiff; was inconsistent on
whether the fence wall was built
by the Plaintiff, before or
after she appointed him
caretaker. However we consider
this discrepancy insignificant
and irrelevant and we hold it
did not in any way contradict
the Plaintiff’s evidence that
she built the fence wall and she
built it in 1994-95. Obviously
it was these overt acts of
ownership listed supra, that
caused Mallam Musa to sue the
Plaintiff in 1998 at the Circuit
Court. As a court we must not
dwell upon insignificant or
non-critical inconsistencies to
deny justice to a party who has
substantially discharged her
burden of persuasion. See
Effisah vs. Ansah [2005-2006]
SCGLR 943 at 960 per Georgina
Wood JSC:
“In the real
world, evidence led at any trial
which turns principally on the
issues of fact, and involving a
fair number of witnesses, would
not be entirely free from
inconsistencies, conflicts or
contradictions and the like. In
evaluating evidence led at a
trial, the presence of such
matters per se, should not
justify a wholesale rejection of
the evidence to which they might
relate. Thus in any given case,
minor, immaterial, insignificant
or non-critical inconsistencies
must not be dwelt upon to deny
justice to a party who has
substantially discharged his or
her burden of persuasion. Where
inconsistencies or conflicts in
the evidence are clearly
reconcilable and there is a
critical mass of evidence or
corroborative on crucial or
vital matters the court would be
right to gloss over these
inconsistencies.”
From the
foregoing we hold that the Court
of Appeal rightly held that the
inconsistencies the trial judge
identified in the evidence of
the plaintiff and her caretaker
PW1 are not on material evidence
and as such cannot be used to
impeach the credibility of the
plaintiff and her witness and
thereby reject her claim.
On the
totality of the evidence we hold
that the Plaintiff was able to
discharge the burden placed on
her to establish her title to
the land the subject matter of
the suit. The Court of Appeal
rightly upheld the Plaintiff’s
claim.
From the
foregoing we hold that the
appeal fails. The appeal is
dismissed.
The judgment
of the Court is hereby affirmed.
(SGD) S. O. A.
ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) V. AKOTO BAMFO
(MRS)
JUSTICE OF THE SUPREME
COURT
COUNSEL
S. K. AMOAH
ESQ. FOR THE DEFENDANT
/RESPONDENT /APPELLANT.
GEORGE HEWARD-
MILLS ESQ. WITH HIM CHRIS KING
FOR THE PLAINTIFF/
APPELLANT/RESPONDENT.
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