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JUDGMENT
BY COURT:
The Plaintiff by his Writ of
Summons issued on 11th
May, 2007 claimed the following:
1.
Declaration of title to All that
piece or parcel of land situate
lying and being at West Korle
Gonnor, Accra aforesaid and
bounded on the North by Proposed
Road measuring One Hundred and
Forty Feet (140’) more or less
on the South by Proposed Road
measuring One Hundred and forty
Feet (140’) more or less on the
East by Proposed Road measuring
Two Hundred Feet (200)’ more or
less and on the West by Property
of D. A. Addo measuring Two
Hundred Feet (200’) more or less
and covering an approximate area
of Decimal Six four (.64).
2.
Recovery of possession.
3.
Perpetual Injunction restraining
the Defendant, their agents and
assigns from building on the
land and
4.
Damages.
By the statement of claim that
accompanied the Writ of Summons,
the Plaintiff indicated that he
has issued this writ as the
Administrator of the Estate of
the late Christopher Addo, who
died intestate on 12th
April 1966. Letters of
Administration to administer the
Estate of the late Christopher
Addo was granted to the
Plaintiff by the High Court,
Accra on 1st
December, 1983. According to
the Plaintiff’s pleading, the
land was gifted to his late
father, who was a subject of the
Sempe Stool, by the occupant of
that Stool Mante Nii Tetteh
Kpeshie II in 1959. The
document covering the
transaction was registered as
Document No. 2566/1977. The
Defendant had however entered
the land lately, and refused to
vacate even though he had been
warned to vacate from the land.
The Defendant resisted the
Plaintiff’s claim and by his
Amended Statement of Defence
filed on 14th May,
2009 pleaded that he purchased
the land in dispute from Nii
Tetteh Kpeshie II the then Sempe
Mantse, with the consent and
concurrence of the principal
members of the Stool in 1958.
However as no document was given
to him, at the time of the
acquisition, he took one on 3rd
January 1977 and numbered as AC
5609/77. According to the
Defendant he was put in
possession and occupation, and
exhibited acts of ownership and
possession and had built and
lived thereon for over thirty
(30) years with his family. The
Defendant pleaded estoppels by
laches and acquiescence, and
also Section 10 of the
Limitation Decree.
By the application of the
parties and their Counsel the
Regional Director of the Survey
and Mapping Division of the
Lands Commission Accra was
appointed to prepare a composite
plan of the land in Dispute, by
showing the land that each party
claimed, and the superimposition
of their respective site plans.
After this had been concluded,
it was established that the land
on which the Defendant had built
does not belong to any of the
parties. Since from the
composite plan, the land did not
belong to the Plaintiff, his
Counsel failed and or refused to
cross-examine the surveyor, who
gave evidence as C.W.1 after the
parties had closed their
respective cases.
The Plaintiff however gave
evidence that when he came to
Accra from Tamale in 1980, he
saw that somebody had built on
the land. When he saw this he
himself, his auntie and his
mother confronted that person,
but he failed and or refused to
vacate from the land, and he the
Plaintiff left to Lagos in
1981.
There is no evidence that any
steps were taken after finding
out that the Defendant had built
as at 1980. Apart from the fact
that the Cadastral Plan showed
that the land did not belong to
the Plaintiff’s father, exhibits
5 and 6 also indicates that the
land claimed by the plaintiff
did not belong to his father.
The plaintiff’s father’s land
had been registered by 1977, if
it’s the same land as covered by
exhibits 5 and 6 dated 28th
November, 2008 and May, 2009
respectively the search report
would have indicated that the
land was in the name of the
Plaintiff’s father, but it did
not.
Even though the Cadastral plan
showed that the land in dispute
is not the land covered by the
Defendant’s site plan, there is
evidence by the parties that the
Defendant had been in actual
possession of the land, even
before 1980. From 1980 to 2007
when this writ was issued is
about 27 years. From the
Plaintiff’s own evidence, he
does not know when the
construction of this house was
commenced but since it had been
built by 1980, I accept the
Defendants evidence that he had
been in occupation of the land
for over 30 years. As between
the plaintiff and the Defendant
this court ought to protect the
Defendants possession for over
30 years. This is so because in
the case of Summey vrs. Yohuno
(1962) 1 GLR 160 at page 167,
Van Lare J.S.C. held that in a
claim for title to land, where
non was able to show title
because of want of evidence, or
that the evidence was confusing
and conflicting, the safest
guide to determine the rights of
the parties was by reference to
possession. Again in Twifo Oil
Plantation Project Ltd vrs.
Ayisi & Others (1982-83) GLR 881
the Court of Appeal held in its
5th holding that “as
between the parties the matter
was who was in physical
possession and could
consequently be dispossessed
only by a demonstration of
superior title or a better right
to possession”.
In GHIOC REGRIGERATION &
HOUSEHOLD PRODUCTS LTD VRS.
HANNA ASSI (2005-06) SC GLR 458,
the Supreme Court held that
title to land might be acquired
by adverse possession, but such
title was not derivative in that
it did not flow from the title
of the original owner which had
been extinguished by such
adverse possession. Such a
possessory title could be forced
on a purchaser. Consequently a
person who had been in adverse
possession of land for more that
twelve years in term of Section
10 (1) and (6) of the Limitation
Decree 1972 (N.R.C.D 54) would
be entitled to a declaration of
possessory title. Contrary to
the decision of the Court of
Appeal, such adverse possessory
title could be used both as a
sword and a shield.”
In this case, even though the
Defendant gave evidence that he
had been in occupation of the
land for over 30 years and
pleaded Section 10 of the
Limitation Decree 1972 (N. R.C.
D. 54), the Defendant did not
counter-claim. As such Judgement
cannot be entered for him.
I therefore dismiss the
Plaintiff’s claim, and award the
defendants cost ofGH¢600.00.
(SGD.)MR. JUSTICE S.H.
OCRAN
Justice
of the High Court
Counsel: Mr. Wisdom
Anthonio for plaintiff.
Mr.
Kobena Asiedu for Defendant
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