Cletus Babron Kufia & Abena Chonga Kufia v. Mr. Aikins, Sister Ama & Uncle Brown

1.0 General Overview

 

This appeal which arises from the decision of the High Court dated 20/02/2023 beckons this Court to make a determination between pure legal rights as against equitable proprietary rights.

Lord Camden stated in Smith vs. Clay (1767) Amb 645in reference to the court of equity that:

“Nothing can call forth this court into activity but conscience, good faith and reasonable diligence ...”

2.0 Facts:

2.1 The Plaintiffs/Appellants’ (“Appellants”) Case

The Appellants instituted an action against the Respondents in the Land Division of the High Court sometime in 2011. In their Amended Statement of Claim after they had commenced their evidence in chief pursuant to leave granted by the court on 17/02/2021, the Appellants described themselves as owners of the premises situate on Plot No 1A, Klana Avenue, Adenta, being No 4, Block 12. By a lease dated 9/07/2007 and executed between them and the State Housing Company (SHC), a parcel of land situate on Plot No. 1A, Klana Avenue, Adenta – Accra was conveyed to them absolutely. They asserted that they obtained a valid land certificate in respect of the conveyance. The Appellants averred that after the grant of the parcel of land to them, they immediately took possession of same and exercised acts of ownership over the land. According to them, the Respondents had recently trespassed on a portion of their property and were laying adverse claim to the property by erecting structures on the land, without authority and with no title in the disputed property. The Appellants pleaded that in 2010 (sic), the Respondents vendor and two others claiming to be directors sued the Appellants, SHC and other persons in the High Court claiming among others that the housing units comprising Aprotech Housing Estate which includes the property in dispute belongs to them but the suit was dismissed. That sometime in 1996, the Ministry of Works and Housing disassociated itself from any sale of the said housing units by one Dr. Kofi Sam. They further asserted that despite several warnings to stop the trespassers and their developments on the land, the Respondents have refused/failed to abide by the warnings but have persisted in their acts of wanton trespass.

They therefore claimed as follows:

1. (a) “Declaration of title to all that piece of land referred to and specially described in paragraphs 3 and 5.

2. (b) Immediate recovery of possession of the said land.

3. (c) injunction restraining the defendants by themselves, their agents assigns and all persons claiming through them from entering the said parcel of land or in any manner dealing with same.

4. (d) An order of demolition of all unauthorised structures on the land.”

2.2 Defendants/ Respondents’ (“Respondents”) Defence

The Respondents asserted that they had been in effective physical occupation since 1989. That the 2nd Respondent’s late father, Kojo Amachie and the 1st Respondent, then a foreman, were former employees of Aprotech Housing Scheme. The 3rd Respondent is married to the 2nd Respondent. They averred that Aprotech Housing Scheme was engaged by the Military junta to develop affordable housing schemes to Ghanaians. The scheme commenced construction sometime in 1985 with the construction of about 90 housing units comprising mainly semi-detached and two bed-room self-contained units which were sold upon completion. In consideration of their services rendered to the Scheme, the 1st Respondent and nineteen (19) other workers received very minimal monthly allowance. Subsequently, it was agreed with management of the scheme that they will receive payment in kind, in the form of a house at a minimum of three hundred thousand cedis (₵300,000) which was deducted from their salaries. The Respondents pleaded that the Appellants had never been in possession of the disputed land. They further contended that the purported transaction between the Appellants and SHC was void given that they have been in possession since 1989. It was therefore mischievous on the part of the Appellants to state that the development on the disputed land was recent. They reiterated the averment that Plaintiffs ought to have known of their occupation at the time they purportedly acquired the property from their supposed grantors and pleaded that their action was statute barred.

3.0 The Trial Court

At the trial, the Appellants did not call any witness. As a couple, they testified through the 1st Appellant. In proof of their legal title to the property, they tendered exhibit A which was a lease dated 09/07/2007 between the Appellants and SHC and; and exhibit B, a Land Certificate No. GA 29164 dated 27/03/2009. A site plan in their joint names was also exhibited as C. Exhibit E was Suit No. EI/03/10, a Writ of Summons and Statement of Claim in the case of Victor Odiko Nortei and 2 Others v. The State Housing Company and 72 others. The judgment of Justice Adjet Nasem dated 6/03/2015 in Suit No. EI/03/10 was exhibited as F. A letter from the Minister of Works and Housing to the Managing Director of SHC received by the latter on 24//01/1996 was also exhibited as G.

The Respondents on the other hand, testified by 1st Respondent, Charles Aikins, as well as Kwasi Adjei Gyimah, the Site Manager of Aprotech Housing Scheme. They tendered into evidence, exhibit 1 which was a letter from Aprotech Housing Scheme to the Secretary of Works and Housing dated 11/07/1994. A document captioned “Aprotech Housing Scheme – Allocation of houses to staff” dated 11/07/1994 was exhibited as 2.A site plan showing the layout of Adenta Housing Estate was exhibited as

3. Exhibit 4 was a report of Aprotech Committee dated 3/05/1996.

4.0 Decision of the Court

The trial High Court, dismissed the claim of the Appellants on grounds that the Respondents had obtained an interest in equity and that the action was statute-barred pursuant to section 10 of the Limitations Act, NRCD 54.

 

Nettled by the decision of the court below, the Appellants lodged this instant appeal based on the grounds detailed in their notice of appeal.

5.0 Grounds of Appeal

The Appellants canvassed the following grounds of appeal:

1. 1. "The judgment is totally against the weight of evidence on record.

2. 2. Having found that State Housing Company could have validly transferred the land on which the property is situate to the Plaintiffs, the learned trial Judge erred when he held that they (State Housing Company Ltd) could not have validly transferred the housing units on the parcel of land to the Plaintiffs.

3. 3. The learned trial Judge erred when he held that the Plaintiffs’ action is statute barred.

4. 4. The learned trial Judge erred when he held that title in the housing units on the land were not vested in the State Housing Company Ltd.

5. 5. The judgment is unsupportable in law.

6.0 Applying the Law and Analysis

Grounds two (2) and four (4) would be dealt with under ground one (1) which is the proper nomenclature used in civil cases when an appellate court is invited to review the entire case. This would be followed by ground three which is on a point of law. Ground five being the criminal law version of the civil appeals omnibus ground of appeal that the judgment is against the weight of evidence would be struck out as an improper ground of appeal.

6.1 Grounds 1, 2 and 4.

The first ground of appeal which is that the judgment is totally against the weight of evidence is essentially an invitation to this court to review the entire evidence on record and to determine whether or not the trial court arrived at the right conclusion based on the facts and evidence, as was the case in Oppong Kofi & Others v. Attibrukusu III [2011] SCGLR 176. This holding was reaffirmed in the case of Nana Kwasi Broni & Yaw Ahima Boampong v. Kwame Kwakye & 2 Others [2017] DLSC 5463 that:

“It is now settled and backed by a host of cases that where an Appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which if applied could have changed the decision in his favour, or that there are certain pieces of evidence that had been wrongly applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.”

Again in the case of Opanin Kweku Enu (Substituted by Kojo Tuakwa) v. Kweku Bosom [2001-2002] SCGLR 61, the court held as follows:

“… an appeal is by way of re-hearing particularly where the appellant alleges in his notice of appeal that, the decision of the trial court is against the weight of the evidence. In such a case although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon the appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on a preponderance of probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.”

To begin with, the Appellants’ exhibits A and B, which were the lease dated 09/07/2007between the Appellants and SHC and the Land Certificate No. GA 29164 dated 27/03/2009 respectively affirm the trial judge’s finding that prima facie, the property in dispute was Government of Ghana property which was leased to the SHC for 99 years on 07/08/1996 commencing from 1/11/1995. The SHC in turn, conveyed a portion of the lease to the Appellants on 9/07/2007, commencing from 07/08/1996. On 27/03/2009, the Appellants obtained Land Certificate No. GA 29164 in respect of the lease.

 

Sections 43 (1) and (2) of the repealed Land Title Registration Act, 1986 (P.N.D.C.L 152) (substituted by the Land Act, 2020 (Act1036)) which was the law in force at the time the contested transactions took place provides that:

“(1) Subject to subsections (2), (3) and (4) of this section and section 48 of this Law, the rights of a registered proprietor of land whether acquired on first registration or acquired subsequently for valuable consideration or by an order of a Court, shall be indefeasible and shall be held by the proprietor together with all privileges and appurtenances attaching thereto free from all other interests and claims whatsoever.”

(2) Any such rights of a proprietor shall be subject to any interests or other encumbrances and conditions, if any, shown in the land register.”

However, per the decision in the case of Appolo Cinemas Estates (Gh) Ltd v. Chief Registrar of Lands & Others [2003-2005]1GLR 167, the fact of registration by the Appellants only raised a rebuttable but not a conclusive presumption of the fact of ownership. As was held in the case of Brown v. Quashigah[2003-2004] SCGLR 930, a land certificate is not a state guaranteed document of title and will not pass to the proprietor an indefeasible title.

The date on the Appellants exhibit G which was a letter from the Minister of Works and Housing to the Managing Director of SHC is unclear but SHC receipt stamp embossed on the said letter was 24//01/1996. This means that the letter was duly received on the same day the Minister of Works and Housing wrote to the Managing Director of SHC.

Exhibit G sought to provide the background to the Aprotech housing scheme which was a government of Ghana project birthed in 1987 through the instrumentality of one Dr. Kofi Sam, the PNDC Secretary for the Ministry of Works and Housing at the time.

 

The project was subsequently abandoned and the scheme was suspended not stopped.

The letter further recounted that the little progress with the structures resulted in their deterioration for which some squatters had taken over and that the Commission for Human Rights and Administrative Justice (CHRAJ) had upheld the Ministry’s position that the said squatters should vacate the premises within a six-month period, which expired in 1995. The Ministry also identified a second category of persons occupying the houses in the letter, namely, persons to whom the said Dr. Kofi Sam “sold houses.”

For that category, the Ministry sought to dissociate itself from the sale. The ministry stated:

“… the Ministry is unable to take any legal step since it neither has title to the land nor associates itself with the sale carried out by Dr. Kofi Sam”

The question is why was the land leased to SHC at a time when the Ministry knew that there were unresolved issues arising from the government sponsored housing project which was suspended mid-stream? In law, official acts performed by public officials within their legal authority are presumed to be valid unless proven otherwise.

Typically, this presumption is not required to be explicitly pleaded as it is a matter of law that courts recognize automatically based on the facts. Therefore, assuming without admitting that there were some excesses on the part of Dr. Kofi Sam who was performing that public duty, his sins cannot be visited on the innocent parties who acquired equitable interest without notice of the irregularities in transactions carried out by the said public officer while in office.

The Appellants cross-examination of 1st Respondent in the record of Appeal (ROA) 254 showed that the workers at that level understandably

 

did not know or appreciate the mandate of Dr. Kofi Sam:

“… Q: I am putting it to you that the project was not the property of Dr. Kofi Sam.

A: As for that I cannot tell.

The Ministry, clearly mindful of this legal principle noted at the conclusion of the said letter that:

“In keeping with Government’s policy to leave real estate development to the private sector and after due consideration of all the factors surrounding the project , the Hon. Minister has directed that the State Housing Company Limited, being the landowners, assume responsibility for the project. You are to handle all matters regarding the land and the occupants including encroachment and the granting of titles as you deem fit” (Emphasis mine)

It also bears noting, that exhibit G recognized that even though legally, title to the land had passed to SHC, the latter was charged by the Minister to deal with all the implementation issues arising from the transfer of the land from the government, including the grant of titles as SHC deemed appropriate. Exhibit G served as explicit notice to SHC of the interest of persons such as the Respondents in the properties.

This charge from the then Minister to SHC was not without legal basis at the time. It was anchored in the recognition that some persons may have acquired an equitable right which in law, would override the legal interests of SHC and its respective future assigns. Section 46 (1) (f) and (g) of the repealed P.N.D.C.L 152 headed overriding interests stipulated as follows:

“Unless the contrary is recorded in the land register a land or an interest in land registered under this Act is subject to any of the following overriding interests whether or not they are entered in the land register as may for the time being subsist and affect that land or interest:

 

(f) rights, whether acquired by customary law or otherwise, of a person in actual occupation of the land except where enquiry is made of that person and the right are not disclosed (Emphasis mine)

(g) subject to this Act, rights acquired or in the course of acquisition by prescription or under the Limitation Act 1972…”

It would appear that in response to the need for the regularization of titles as directed by the Minister at the time in exhibit G, exhibit 4 dated 03/05/1996 was birthed just few months after the then Minster wrote the exhibit G letter which was dated 24/01/1996.

Exhibit 4 was a report put together by a joint committee made up of five members from SHC and four members from the Adenta Aprotech Residents Association. It is evident that there were residents occupying about the 100 units constructed by the Aprotech Housing Scheme although most of them were uncompleted. Some of the residents completed them. It was stated in the report that some staff of Aprotech Housing Scheme Project benefitted from the scheme and a list of that category of staff was given at page 130 of the ROA. The 2nd Respondent’s father Kojo Amachie was number 10 on the list and his allotted house number is the premises the 2nd Respondent and the 3rd Respondent are currently in possession of and over which the Appellants sued them in the court below. The 1st Respondent was also listed as number 12. The recommendations of the Committee were as follows:

“1. Sale of Units

a. The 85 sitting tenants who kept and maintained the Approtech (sic) units/structures for the past years, are to benefit under the sale ( Appendix A)

b. Substantial monies (i.e.₵ 200,000 - ₵300,000) paid by some of the Approtech (sic) project staff should be considered in determining the cost of their houses …”

 

Appendix A had the 2nd Respondent’s father Kojo Amachie and the 1st Respondent on the list. Exhibit 4 therefore confirmed the averments in the Respondents pleadings that as staff they were allocated some of the houses and they paid about ₵300,000 for the units. The report did not indicate whether SHC requested for proof of payment or the person who received the payments already made by some of the residents. What may be deduced from the report was that SHC did not consider that the payment made by some of the residents was enough consideration and therefore there was an indication of additional payment for which SHC was to consider the payments already made by some of them. It is mind boggling why the Appellants did not call SHC as one of their witnesses to shed more light on exhibit 4 which was tendered without objection and the Appellants did not deny that the Committee was set up.

In the cross-examination of Respondents’ 2nd witness Kwasi Adjei Gyimah by the Appellants on exhibit 4 at ROA 261, this is what transpired:

“… Q: At page 12 of your exhibit 4, the committee recommended a list of sitting tenants. Can

you tell this Court where yours can be found.

A: My Lord, I was not a tenant. I was a worker and a house was allocated to me. My

name is not among the list recommended by the committee because I am not a tenant.”

In light of exhibit 4, it is evident that the premises were duly occupied by the Respondents at the time the transfer was made to the Appellants by SHC. Fixed with this actual knowledge, SHC conveyed the property to the Appellants without acting on the charge given it by the Ministry and the committee over a decade (1996-2007). It was on this basis that the Respondents pleaded and testified that the Appellants ought to have known of their occupation at the time they purportedly purchased the

 

property from their supposed grantors, SHC and asserted further that their action was statute-barred since the Appellants took action against them in 2011.

On what basis did the Appellants claim that after the grant of the parcel of land to them, they immediately took possession of same and exercised acts of ownership and possession over the disputed land and that the Respondents had recently trespassed on a portion of their property and were laying adverse claim to the property by erecting structures on the land, without authority and with no title in the disputed property? The Appellants further avowed that despite several warnings to stop the trespassers and their developments on the land, the Respondents have refused/failed to abide the warnings but have persisted in their acts of wanton trespass. These assertions were not borne out by the evidence on record.

The call for regularization (granting of titles) was further reechoed by the court in the Appellants own exhibit F which was Suit No. EI/03/10 Victor Odiko Nortei and 2 Others v. The State Housing Company and 72 others, when the Court opined as follows:

“There are squatters on some of the units. Some have regularized the occupancy. The State Housing Company(S.H.C.) should take steps to meet with all and streamline and regularize their occupancy … I am of the considered opinion that for now State Housing Company (S.H.C.) should regularize their occupancy as some have been done.”

The court then recommended the institution of a proper legal framework for title in the housing units to be properly vested in SHC, which recommendation was understandably but regrettably on the part of the court, not binding on the latter.

Recommendations of a court only qualify as obiter dicta.

 

However, in dismissing the Plaintiffs’ suit, the court held that:

“…There was Aprotech Housing Scheme and not Aprotech Housing Scheme Ltd as we have in this suit. The Aprotech Housing Scheme built the houses when Dr. Kofi Sam was then Minister of Works and Housing … The plaintiffs cannot lay absolute claim to the Housing Units for Aprotech Housing Scheme Limited because the Aprotech Housing Scheme when it was initiated was not a limited liability company.”

The court further held that though title in the land was vested in SHC, the housing units on it were not vested in SHC. The court reasoned that SHC did not provide any funding with respect to the housing units on the land in dispute and on which the defendants therein and others were in possession of. The Court found that:

“… The overwhelming evidence is that State Housing Company did not build the housing units.

They cannot be said to have ownership of those properties … Yet again the court found out that State Housing Company (S.H.C.) did nothing to be owners of the housing units but they are owners of the land …”

This finding with respect, was erroneous because it flies against the well- established maxim quicquid plantatur solo, solo cedit meaning, the owner of land owns not only the soil but also everything permanently attached to it, whether above or below it.

However, the maxim is not absolute. While the maxim quicquid plantatur solo, solo cedit states the general law, it application is subject to equitable interests and equity will intervene to prevent unconscionable reliance on strict legal ownership.

Respectfully my Lords, the inference to be drawn from exhibit F is that SHC had not given due recognition to the equitable interests of some of the occupants in the housing units and not, as the learned trial judge in the

 

instant appeal was also misled in erroneously finding that as at 2015, SHC had not been properly vested with title over the “Aprotech housing Units for it to have made a valid grant to the Appellants earlier on in 2007.”

The evidence on record shows that the 1st Respondent and the 2nd Respondent’s father who had long been in possession of the units coupled with the payments made by them have given them equitable rights in the property and their titles had been recommended to be regularized by SHC pursuant to exhibit 4 and the Appellant’s own exhibit G. The Appellants legal interest will overreach the Respondents equitable interest if it is proved that at the time the Appellants acquired the property, they had no notice of the Respondent existence in the property.

Exhibit G therefore put every potential buyer on notice that there are subsisting issues that a formal search may not reveal. Prospective buyers must not confine themselves only to official searches but must conduct proper investigations including asking adjoining land owners or property owners questions regarding their potential conveyances. In the case of Boateng v Dwinfour (1979) GLR 360 at 367 Anin Yeboah JA (as then) posited thus quoting Sneils Principles of Equity (26th Edition) at page 59:

“… If a purchaser has whether deliberately or carelessly abstained from making those enquiries into the title of his vendor that a prudent purchaser would have made, he will be affected with constructive notice of what appears upon the title of the vendor. Apart from investigating the deed, a prudent purchaser will inspect the land itself. If any land is occupied by any person other than the vendor, this occupation is constructive notice of the estate or interest of the occupier…” (Emphasis mine).

From the pleadings and evidence, the Respondents have been in possession of their units since 1989 based on allocations made to them. They do not fall in the category of squatters as the Minister explained in exhibit G. The Respondents were trespassers who had long been in possession before the Respondents obtained their grants and were

 

asserting an interest which was at variance with SHC’s interest and by extension, the Appellants’ interest. The Appellants investigations should have been more exhaustive and not limited to the search at the Lands Commission.

In Amidu Alhassan Amidu v. Mutia Alawiye & 6 Others (2019) JELR 68180, the Supreme Court held that while a squatter is a person who does not make any legal claim or title to a piece of land which he is in possession of, a trespasser on the contrary, claims an interest in a parcel of land which he is in possession of.

It is my opinion that from the cross examination of the 1st Appellant at pages 177-178 the Appellants only limited themselves to the exhibit G letter and drew their own conclusions:

“ … Q: These officers that took you took to the land did not see any of the defendants nor their dependents living on the land.

A: They saw people living on the land.

Q: Did you enquire from them how they got to live on the land? A: Yes, my Lord, I enquired but they are squatters.

Q: I am putting it to you that you did not bother to find out their presence on that land.

A: I bothered. I went to Works and Housing but the letter Works and Housing gave

is that they are squatters.

Q: Do you have a copy of that letter?

A: I have filed it in court. I went to State Housing and even brought their taskforce to

 

come and eject them but they were trying to be violent. That is why I brought them

to the first court.I had judgment against them.

Q: Is exhibit G the letter you are talking about ? A: That is true

These responses are contradicted by the overwhelming evidence on the record as I have analysed above. To reiterate, exhibit G identified two categories of occupiers. It did not refer to the Respondents as squatters. If the Appellants had judgment against the Respondents, why did they institute another action against the Respondents which is the subject matter of dispute in this appeal? The Appellants (lessees) had clearly been notified in exhibit G that their lessor (SHC) was responsible for the Aprotech project as land owners and that they were to handle all matters regarding the land and the occupants including encroachment and the granting of titles as they considered appropriate.

Furthermore, under cross-examination, the 1st Appellant who testified for himself and on behalf of the 2nd Plaintiff admitted that they have never been in possession of the premises contrary to their assertions that upon obtaining their grants, they immediately went into possession of same and exercised acts of ownership and possession over the land and that the Respondents had recently trespassed on a portion of their property and were laying adverse claim to the property by erecting structures on the land, without authority and with no title in the disputed property. See page 228 of ROA.

“… Q: Is this plot the subject matter of this suit? A: Yes, my Lord.

Q: You have never lived at Klana Avenue 1 A A: Yes, my Lord.”

 

Possession per se is prima facie claim of ownership unless another party has superior interest or title to the same piece of land. By itself, possession gives a good title & against the whole world except someone having a better legal title. The case of Anthony Sfeir v Daniel Sfeir Anor [2019] DLCA 7601 illustrates the above principle.

Looking at the totality of the facts and evidence on record in this case, can one objectively say that the Appellants in this case have a better or superior title in the disputed property than the Respondents? The answer is in the negative.

SHC never took any action against the occupants even after they had been put on explicit notice in 1996 by the Appellants own exhibit G and the Respondents exhibit 4, even if they disagreed with the contents of the documents. The Appellants legal action properly lies against SHC, not the Respondents. It is indeed a demonstration of bad faith for SHC having full knowledge that some persons such as the Respondents have acquired equitable interest by virtue of the fact that they have made some payments and are in possession of the units, to have executed lease agreements with the Appellants. Even if SHC believed that the Respondents were squatters, they should have instituted legal action against them to remove them from the land before giving the property to the Respondents herein.

In this case, the facts and evidence show that the Respondents have made some payments in both cash and kind for the properties, which payments were not disputed by the Appellants grantors as exhibit 4 shows. Besides, they have been in possession since 1989 with full notice to the Respondents and their grantors. The quicquid plantatur solo, solo cedit maxim must therefore yield. The maxim cannot be used as an instrument of injustice. In re Ashalley Botwe Land; Adjetey Agbosu v Kotey [2003-2004] 1 SCGLR 420.

6.2 Grounds 3 - The Defence of Limitation

 

It is the contention of the Appellants that the learned trial judge erred when he held that the Plaintiffs’ action was statute barred.

In this appeal, the record shows that the Appellants did not file a reply to the Respondents’ defence. However, the issues set down for the trial by the court, differently constituted, at the close of pleadings did not explicitly include the defence of limitation.

The learned judge in his wisdom dealt with the defence of limitation under the residual or omnibus clause which seeks to preserve the court’s jurisdiction and discretion beyond the specific issues expressly listed. A residual clause empowers the court to determine ancillary, incidental, or consequential issues that arise from the pleadings or record, that are necessary for the proper determination of the matter or are required to give effect to the court’s final orders. Courts invoke this residual clause to ensure substantive justice over procedural irregularity as it allows the courts to address issues that were not foreseen at the time of framing issues, or may have emerged during trial or submissions or issues that must be resolved to avoid multiplicity of actions.

The judge noted at page 294 of the ROA that:

“In their statement of defence, the defendants asserted that the plaintiffs’ action is statute barred. In raising this defence, the defendants are asserting that even if they do not have a right to be on the property in dispute, they have adversely dispossessed the plaintiffs and as such the plaintiffs cannot make any valid claim from the property “ (Emphasis mine)

A person is in adverse possession if he asserts ownership or possessory rights inconsistent with another’s title. It involves situations where persons including trespassers and squatters take possession of land and exercise rights that are at variance with the rights of the true owners for a continuous period of twelve (12) years. Under such circumstances, the true and proper owners’ rights are extinguished in favour of such persons.

 

Adverse possession depends on the nature of the claim, not the status of the person. The key test is whether the person’s acts and claims are inconsistent with the rights of the true owner. Adverse possession must be to the knowledge of the real owner. The limitation period operates only where a person is in adverse possession of the land and not where he is a licensee, tenant or he has been authorized to be on the land. The legal effect of adverse possession is that the person acquires possessory title by virtue of the Limitation Act, 1972 (NRCD 54) and can maintain an action for possession against anybody including the original owner.

Therefore, section 10 of NRCD 54 provides that:

“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 claims to that person.

2. A right of action to recover land does not accrue unless the land is in the possession of a person in whose favour the period of limitation can run…

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. … ‘adverse possession means possession of a person in whose favour the period of limitation can run.”

The policy of limitation is stated in the memorandum to NRCD 54 thus:

“The Limitation of actions is a rule of public policy which provides the automatic termination of litigation after a fixed period of time. After this statutory period, a person’s right of action is barred and sometimes his title is extinguished”. This rule of public policy is expressed in the Latin maxim “intereste republicae ut sit finis litium” (it is in the interest of the public that litigation should end).

In GIHOC Refrigeration & Household Products Ltd. (No 1) v Hanna Assi (No. 1) [2007-2008] SCGLR1 and Adjetey Adjei and Others v

 

Nmai Boi & Others [2013-2014] 2 SCGLR 1474, 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).”

In Awadali IV v. Gbadawu IV (2018) GHASC 1 the Supreme Court held that such a stranger who has adversely possessed the legal owner’s land acquires only possessory and user rights and may deal with the land in any manner he wishes including granting conveyances, albeit such conveyances are limited to such possessory and user rights he himself has inherited. The apex court also emphasised that such possessory rights cannot mature to absolute ownership rights as same would be vested in the legal owner.

Indeed adverse possession may be used as a shield and a sword. It may be employed as a sword to empower a Plaintiff to bring an action against another person disturbing or interfering with his possession, apart from the true owner. The phrase ‘true owner’ is about timing. Once the

 

limitation period expires, the true owner’s right of action is barred and his title extinguished. Possession only remains inferior to the true owner’s title until time perfects it. On the other hand, adverse possession has been deployed as a shield to ward off claims by rival claimants to landed properties. In the recent case of Binga Dugbartey Sarpor v. Ekow Bosomprah (2020) 170 GMJ 644, SC, Kulendi JSC., quoted with approval the dictum of Date-Bah JSC., in GIHOC v. Hanna Assi (2005- 2006) SCGLR 458 thus; “It is clear that title may be acquired by adverse possession…In my considered view, therefore, the possessory title of an adverse possessor can be used as a sword, and not only as a shield.”

The general rule is that equitable defenses such as acquiescence, laches and limitation are required to be specifically pleaded because they can take the opposite party by surprise if raised without notice in pleadings. The case of Armah v. Hydrafoam Estates (2014)JELR (SC) where the court rejected the plea which was raised for the first time on appeal when the pleadings did not disclose any factual basis and no evidence was led on it at the trial court, is apposite on this rule.

Order 11 Rule 8 (1) of the High Court (Civil Procedure) Rules, 2004, C. I.

47 which is headed “matters to be specifically pleaded” provides the legislative backing as follows:

“(1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality

(a) which the party alleges makes any claim or defence of the opposite party not maintainable; or

(b) which, if not specifically pleaded, might take the opposite party by surprise; or

(c) which raises issues of fact not arising out of the preceding pleading.

(2) Without prejudice to sub rule (1), a defendant to an action for possession of immovable property shall plead specifically every ground of defence on which the defendant relies, and a plea that the defendant is in possession of the immovable property in person or by a tenant shall not be

 

sufficient.”

However, the court has, in limited and exceptional circumstances, allowed equity to operate even where strict pleading rules were not complied with because substantial justice demanded it.

If the evidence on record supports the defence of acquiescence and laches, same may be upheld even if it was not pleaded. In Sasu v Amua-Sekyi [2003-2004] 2 GLR 771, the Supreme Court upheld a defence of estoppel although it was not pleaded. In holding (1), the court stated:

“Where on the facts, an estoppel which was not pleaded, should nonetheless be obvious to the party against whom it was raised, the court may ignore the failure to plead and give effect to it. The justification for this line of thought is that the party affected is not likely to be surprised where the evidence on record makes the estoppel obvious”.

In the Court of Appeal case of Joyce Koranteng and I.K. Acheampong v Nana John Ekow Ghunney [2017] DLCA 5006, almost similar facts compelled the court to invoke the Sasu v. Amua-Sekyiprinciple to allow the appeal based on evidence of laches and acquiescence although same had not been pleaded per Order 11 r.8 (1) of C.I. 47.

In the Supreme Court case of Kwaku v. Serwah and Others (1993- 1994) 1 GLR 429, it was also held that the Defendant in that case was entitled to raise the defence of laches and acquiescence even though same had not been pleaded nor set down as an issue at the summons for directions stage.

Similarly, in Ebenezer Kwaku & 2 Ors v Mankralo Tetteh Otibu IV Civil Appeal No. J4/53/2021 dated 7th July 2021 the Supreme Court also held that:

“… In the Sweater & Socks case, this Court noted the well-established principle of the plea of estoppel per rem judicatam, which is that; a party,

 

who intended to rely on that plea, must do so expressly and make full of all the material facts on which it was anchored. Though the defendant in that case did not put up such a plea as practice required, this Court held: ‘the failure to do so with specificity, employing the well-known legal terminally ‘estoppel per rem judicatam’ is not fatal to a party’s case.’ According to the Court: ‘Courts of justice must always strive to strike a proper balance between substantive justice and procedural laws. Whenever legally justifiable or appropriate, substantial justice must never be sacrificed on the alter of technicism, or technical rules of procedure.’ Thus where, where the plea has not explicitly been set out, but the defendant’s statement of case points unequivocally or substantially to the plea, the court is bound to consider it, as if the defendant had explicitly raised same.”

The above-mentioned case was cited with approval in the case of Nana Korkor Ntim v. Stephanie Ansaa Opare [2022] DLSC 11860 where the Supreme Court, speaking through Kotey JSC ordered that the case should be remitted to the High Court and tried afresh for the sole reason that there was no evidence on the record based on which the Court could determine whether the action was statute-barred. The Court duly recognized that:

“Litigation must come to an end therefore where a cause of action accrues to a person and that person fails to take advantage of it, that right must come to an end at a point in time. Therefore, although a Plaintiff can bring a cause a cause, they lose the right to enforce it through the judicial process if the period that the law provides for such actions has already elapsed. “

In this appeal, it is our considered opinion that the case put forward by the Respondents raised the issue of limitation. From the Appellants original Statement of Claim and the Writ of Summons, and the Respondents’ original Statement of Defence dated 09/07/19 (ROA 54), Issues for Direction dated 22/11/19 filed by the Appellants, the Additional Issues for Directions dated 3/12/19 filed by the Respondents and the entire evidence on record it can be gleaned that the defence of limitation was palpably

 

evident. The Respondents’ original Statement of Defence was not materially different from the Amendment Statement of Defence except that the latter explicitly pleaded that the action was statute barred. Ergo, even if the Statement of Defence of the Respondent was struck out, the defence of limitation would still prevail in their favour as the defence goes to the roots of the conscience of the court. A demand of strict pleading invariably leads to manifest injustice.

In arguing this ground of appeal, the Appellants submitted that the Amended Statement of Defence that pleaded the defence of limitation in compliance with Order 11 r.8 (1) of C.I. 47 was filed out of time, therefore same should be struck out. In a quick rebuff, Counsel for the Respondents submitted that the judge did not decide in their favour based on the plea of limitation alone, therefore, it should not be an issue.

It is evident that the Respondents filed the said process out of time having obtained the leave of the court to file within seven (7) days from 10/06/2021. The Respondents rather filed the amended process on 23/06/2021, about six (6) days late without seeking any further leave by the court for extension (ROA 194).

Should this six (6) days lateness disbar the Respondents from relying on the defence of limitation?

The question, however, to ask is why the Appellants failed to raise the issue before the trial court but waited this long before raising it for the first time in this appeal. A close scrutiny of the proceedings and the record of appeal would reveal the following;

That the fact of the Amended Statement of Defence being filed out of time did not form part of the issues adopted for resolution at the end of the trial. The Appellants could have called for an amendment of the issues to be determined.

 

After the Respondents filed their Amended Defence out of time, the records show that evidence in Chief of the Respondents first witness, Kwasi Adjei Gyimah continued on 9/07/2021which was followed by cross examination by Appellants’ counsel on the same day after which the witness was discharged by the court (ROA 198-206).

 The Appellants did not draw the trial court’s attention to the flouting of the court order but participated in the said proceedings and even acknowledged the said impugned process in their written submission to the court below. (ROA 242), until final judgment was delivered.

If the Appellants considered that the Defendant’s Amended Statement of Defence should have been struck out for non-compliance with the trial court’s order, why did they acknowledge the process as the basis for the prosecution of the action in their written submission to the court below? Given that the trial continued on 9/07/2021 without any objection after the belated process was filed and the Appellant waived it by taking steps inconsistent with challenging the process by referring to it as part of the basis for the action in the court below, it is our opinion that the irregularity was cured by acquiescence and adoption by the court.

In the case of Nana Ampofo Kyei Baffour v. Justmoh Construction Co. Ltd [2017-2018] 2 SCGLR 488 the Supreme Court speaking through Adinyira JSC affirmed the Court of Appeal’s decision and held that the Court did not commit any error of law when it stated at page 364 that:

“The setting aside of the default judgment, ordering the suit to take it normal course and penalizing the fifth defendant for the late filing of the statement of defence is ample evidence that the court had admitted the statement as a valid process henceforth. There was no application by the fifth defendant for leave to file the statement of defence out of time. But by these orders the court made, the said statement of defence filed on 2 August 2013 was deemed to have been regularized and ratified by the

 

court.”

Where it is established that the party making the application for pleadings or suit to be struck out has taken a fresh step after knowledge of the said irregularity the court will not strike out same. It was for this reason that order 81 rule 2(2) of C.I.47 was provided for as follows:

“No application to set aside any proceedings for irregularity shall be allowed unlessit is made within a reasonable time and the party applying has not taken any fresh step after knowledge of the irregularity.” (Emphasis mine).

Moreover, Order 81 rule 1 of C.I. 47 directs that non-compliance with rules of civil procedure ought to be regarded as irregularities which do not render proceedings void.

Besides, though the said Order does not even allow applications to set aside proceedings for irregularity unless they are made within a reasonable time and the party applying has not taken any further steps after knowledge of the irregularity.

In the case of The Republic v High Court, Accra: Ex Parte Allgate Co Ltd (Amalgamated Bank Ltd Interested Party) [2007-2008] SCGLR 1041, the Supreme Court gave directions on the effect of any defect in compliance with civil procedure rules within the context of Order 81 of CI

47. The court held unanimously in holding 1 that:

“Noncompliance is to be regarded as an irregularity that does not result in nullity, unless the non-compliance is also a breach of the Constitution or a statute other than the rules of court or the rules of natural justice or otherwise goes to jurisdiction.”

This position was echoed by Atuguba JSC in in the case of Opoku & Ors (No.2) v Axes Co. Ltd (No.2) [2012] 2 SCGLR 1214 at 1231 as

 

follows:

“For the avoidance of doubt however, I would emphasise that rule 1 of Order 81 of C.I.47 is truly a comprehensive insurance policy covering all procedure defects arising from the provisions of C.I.47 except where the same also have a constitutional pedestal ….” (Emphasis mine).

As pointed out by Lyndhurst L.C. in St Victor v Devereux [1845] 14

L.J. Ch. 244, at 246:

“it is a fixed rule of this Court and Courts of Common law that where an irregularity has been committed and where the opposite party knows of the irregularity, he should come in the first instance to avail himself of it, and not allow the party to complain of that irregularity of which, if he had availed himself in the first instance, all that expense would have been rendered unnecessary” (seeAbabio v Tutu [1962] 1 GLR 489 SC).

In the instant appeal, it is clear that the Respondents’ failure to file the Amended Statement of Defence within the stipulated time ordered by the trial judge does not go to jurisdiction, neither does it constitute a constitutional or statutory breach as contemplated inthe Ex Parte Allgate and therefore as an irregularity, same is amenable to be regularized by the application of Order 81 rule (1) and therefore the failure to file the Amended Defence within time should not result in the striking out of that defence.

In any case in as much as the Appellants were aware of the omission of the Respondents’ counsel, but went on to take fresh step by proceeding with the trial as well as acknowledging it as the basis of the action, the Appellants cannot be heard to complain of any procedural irregularity, nor will the amended statement of defence be struck out. See the Court of Appeal case of Nobi v. Buawolor [2016] DLCA 5594.

 

In practice, objections to non-compliance after neglecting to raise same promptly and participating in the trial are not countenanced by the courts. For instance, taking part in the proceedings with knowledge of the irregularity and seeking an adjournment to call a witness as was the case in Fah v Bediatuo [1964] GLR 468and taking part in the proceedings without raising the irregularity as enunciated in the case of Inspector- Plastico Moulds Ltd. v Atico Ltd. [1967] GLR 593 and Clerk v Clerk [1976] 1 GLR 123, CA

Unquestionably, the Appellants in this case are dabbling in and harping on technicalities to strengthen their case whilst the need to do substantial justice is sacrificed. Kpegah J (as he then was), commenting on technicalities as against the substantial justice argument said in Kuma v Bart-Plange [1989-90] 1 GLR 119 at 128 that: “I am aware that it is the duty of every court to ensure that in a given situation justice is done. Technicalities must not be permitted to frustrate this primary and all important function of the court if only the matter or decision lies within the discretion of the judge. To do otherwise, the judge may unwillingly be opting against justice and be seen to be in favour of technicality”. (Emphasis mine).

In Republic v High Court, Accra; Ex parte Darke XII [1992] 2 GLR 688, Kpegah JA again,(as then) at page 801 cited the case of Pontin v Wood [1962] 1 QB 594 at 609, CAwhere Bowen LJ is quoted as having stated that: “It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step, in his litigation”.

It is manifest that this belated objection by the Appellants founded on the late filing of the Amended Statement of Defence is brought in bad faith, neither have the Appellants demonstrated that they were prejudiced or they have suffered a miscarriage of justice.

 

Besides, they had also fully participated in the trial and had in their final submission to the court below acknowledged the impugned process as the pivot around which the action rests. Why this dramatic shift after judgment has been delivered? The element of surprise does not arise in this case. The Appellants knew exactly what they were about.

It is also important to restate the principle in the case of Abdilmasih v. Amarh [1972] 2 GLR 414 at 422, CA.where Apaloo JA as he then was, said “Nobody has vested right in procedure and modern notion of justice require that a Court should do substantial justice between parties unhampered by technical procedural rules”. See also: Awuni v West African Examination Council (2003-2004) SCGLR 471, and Luke Mensah v. Attorney General [2003-2004] 1 SCGLR 122

Therefore, the Appellants’ prayer that because the Respondents Amended Statement of Defence which sought to plead that the action was statute- barred was filed out of time and therefore, the learned trial judge should not have relied on the said process without any further extension of time fails. As stated by Dr. Twum JSC in Boakye v Tutuyehene [2007-2008] 2 SCGLR 970 at 980:

“… the new Order 81 has made it clear that perhaps apart from lack of jurisdiction in its true and strict sense, any other wrong step taken in any legal suit should not have the effect of nullifying the Judgment or the proceedings. This means that the principle stated in Mosi vr Bagyina [1963] 1 GLR 997 SChas been rendered otiose.” (Emphasis mine).

Finally, the need to do substantial justice after both parties participated in the proceedings supervised by the presiding judge was further reinforced by the erudite dictum of Atuguba JSC. In the case of Major Mac Dorbi and W. O. Saviour v Richard Adom Frimpong and 2 Others [2013] DLSC 2727, the appellant, W. O. Saviour who had not filed an appearance participated in the trial and emerged victorious. The Supreme Court saved the judgment in favour of the said W. O. Saviour after the Court of Appeal

 

had set it aside. The Supreme Court speaking through Atuguba JSC stated:

“From the record of appeal and the Court of Appeal held it to be fundamental, W.O. Saviour did not enter appearance let alone file a defence. He however participated to the hilt in the proceedings and emerged from them as a victorious counter claimant. As to this we wish to point out that the battle for substantial, as opposed to technical and fastidious justice, has been irreversibly won. At the time of the institution of the consolidated suits herein, as noted by Kanyoke J.A. in the Court of Appeal, the new High Court (Civil Procedure) Rules 2004, C.I. 47 had come into force. The comprehensive terms of Order 81 rule 1(1) and 2(2) have indubitably given statutory stamp to the ancient maxim cuilibet licet renunciare juri pro se introducto, i.e. a person can waive what the law has ordained for his own advantage. In Obeng v. Boateng (1966) GLR 689 Amissah J.A. (as J) did not invalidate the participation in the proceedings of certain third parties who had filed no appearance thereto.”

Even in the above cases where the party did not file any process at all, the proceedings were saved by the apex court, how much more the instant matter where the process was filed, albeit six (6) days late and the Appellants had acknowledged it as the pillar around which the action revolves?

The Appellants cannot be seen to approbate and reprobate. Ergo, the Plaintiff’s prayer that the Amended Statement of Defence be struck out cannot be granted as that point is wholly devoid of merit and without any basis in law.

The point must be reiterated that the key objective of our rules of procedure is to achieve speedy and effective justice, avoid delays and burdensome cost and ensure that “as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided” Order Rule 1 (2) of C.I. 47

 

Subsequent amendments to C.I.47 have also sought to remove the element of surprise by shunning ambush litigation which denigrates the honour and nobility associated with legal practice. The court exists to do justice, not to reward sharp practice or indolence. In this case, the facts and evidence justifying the equitable defence of limitation are clear on the record, that this court cannot shut its eyes merely because the defence was pleaded out of time. Equity looks at conduct, not trifles. It will always step in where a party sleeps on their rights for unreasonable time, and seeks to enforce those rights only after the offending party has altered their position. Procedural rigidity must always give way to substantial justice.

The heavy reliance on the quicquid plantatur solo, solo cedit maxim is defeated because the Respondents have acquired an equitable right in the property and the action is statute-barred.

The appeal is dismissed. Costs of Ghc20,000.00 awarded in favour of the Respondents.

SGD.

Franklina G. Adanu (Mrs) (Justice of Appeal)

CONCURRING

BARIMA OPPONG, J.A.

1. 1. My Lords, I fully align myself with the opinion and the underpinning reasoning exquisitely rendered by my respected Sister Adanu JA which is the majority decision of this case. I however wish to express my thoughts more deeply on particularly the aspects that concern the effect of the defendants’ failure to implement the order of the court below to file their Amended Statement of Defence within the period specified by the court, and plaintiffs’ endorsement of same by their conduct up until

 

at this Court of Appeal where they are for the first time raising an issue on it.

1. 2. This opinion will also focus more intensely on the part of the case that has to do with the effect of the Limitation Act and acts of adverse possession by the defendants herein. Where necessary, I shall adopt as my own, the facts so competently rendered by my Sister Adanu JA.

1. 3. The plaintiffs described themselves as husband and wife and asserted that they were the owners of the property in dispute which they acquired from State Housing Company Ltd in July 2007. They described their property, being the land in dispute, as “Plot No. IA, Klap Avenue, Adenta, Accra covering an approximate area of 0.07 hectare (0.18 of an acre) and more or less being parcel No. 4, Block 12.”

1. 4. It is the plaintiffs' case that they were issued with a Land Certificate covering the land in dispute. The plaintiffs further pleaded that after the grant of the land in dispute, they immediately took possession and have been exercising acts of ownership and possession over the land in dispute.

1. 5. The plaintiffs stated further that the defendants, without authority and with no title to the property in dispute, had “recently trespassed onto a portion” of their property and were laying adverse claim to the property by erecting structures on the land. This act of the defendants was preventing the plaintiffs from using their land for its intended purpose.

1. 6. The plaintiffs further averred that in the year 2010, the vendor of the defendants, including other persons who claimed to be directors of the

 

defendants' vendor, sued the plaintiffs, their vendor State Housing Company Ltd and other persons in the High Court claiming amongst others that the housing units comprising the Aprotech Housing Estate which included the property in dispute belonged to them but the suit was dismissed by the court. They further state that the Ministry of Works and Housing also dissociated itself from any sale of the said housing units by one Dr Kofi Sam to the defendants.

1. 7. The plaintiffs further asserted that all attempts to persuade the defendants from their acts of trespass on the plaintiffs' property have yielded no positive result and it was only the court that could intervene on behalf of the plaintiffs, hence the present action claiming the following reliefs against the defendants:

2. (i) Declaration of title to all that piece or parcel of land referred to and specifically described in paragraphs 3 and 5 of the statement of claim.

ii. Immediate recovery of possession of the said land.

iii. Perpetual injunction restraining the defendants by themselves, their agents, assigns and all persons claiming through them from entering the said parcel of land or in any manner dealing with same.

iv. An order for the demolition of all unauthorised structures on the land.

DEFENDANTS’ DEFENCE

1. 8. In their Amended statement of defence, the defendants denied all the averments of the plaintiffs. It is the case of the defendants that the 1st defendant and the father of the 2nd defendant are former employees of the Aprotech Housing Scheme which was set up by the then Ministry of Works and Housing under the PNDC Government. They asserted that the scheme was engaged by the Government of Ghana to build

 

affordable housing units for Ghanaians and the construction of the houses commenced sometime in 1985 with about ninety housing units.

1. 9. The defendants further averred that as employees of the scheme who were actively involved in the construction of the housing units, the 1st defendant and nineteen other workers including the 2nd defendant's father received a minimal monthly salary on the understanding that on the completion of the housing units, they would each be allocated a house at a minimum cost of three hundred thousand old Ghana cedis. They stated further that on completion of the project, sometime in 1989 they were allocated the said houses with the 1st defendant being allocated House No. A12 at a cost of three hundred thousand old cedis which amount was deducted from their salaries.

1. 10. It is the case of the defendants that after the said allocation of the houses, they took immediate possession without any interference from any quarters and as such the plaintiff had at no point in time ever been in possession or physical occupation of the property in dispute. The defendants further stated that the plaintiffs knew or ought to have known of their occupation of the property before attempting to acquire same from State Housing Company Ltd. They further asserted that whatever grant the plaintiffs supposedly had postdated their grant which is earlier in time and the plaintiffs could therefore not use their later grant to overreach their earlier grant.

1. 11. The defendants further stated that the properties of which they continue to be in possession are not recent developments on the land in dispute were constructed as far back as 1989. The defendants therefore asserted that it was mischievous on the part of the plaintiffs to state that the defendants commenced developments on the land only recently. The defendants further averred that the plaintiffs' action, is statute-barred. They therefore prayed the court below to dismiss the plaintiffs' suit. In

 

any event, it is their case that plaintiff’s case is statute-barred.

ISSUES FOR TRIAL

1. 12. The plaintiffs did not file a reply to the defendants' defence but at the close of pleadings, issues were joined between the parties, and the following issues were set down by the court, differently constituted, as the issues for the trial of the suit:

2. (i) Whether or not the Aprotech Housing Scheme could lawfully make a transfer of the subject matter of litigation to the defendants.

3. (ii) Whether or not the defendants have been squatters and continue to be squatters on the land.

4. (iii) Whether or not House Nos. A12 and A10 are the same as Plot No. 14, Klana Avenue, Adenta.

5. (iv) Whether or not the plaintiffs are the lawful owners of Plot No. 14, Klana Avenue, Adenta, Accra.

6. (v) Whether or not plaintiffs are entitled to their claims.

7. (vi) Whether or not State Housing Company Ltd. could have validly alienated the disputed property to the plaintiff.

8. (vii) Whether or not the defendants have been in possession of the disputed land Since 1989.

9. (viii) Any other issues the court may deem fit.

JUDGMENT OF THE COURT BELOW

1. 13. At the end of the trial the court below dismissed appellant’s case on a number grounds, including that the case of the appellants was statute- barred. In so holding, the court computed time from 1996 when SHC took possession of the land after same had been granted them by the

 

Government through the Ministry of Works and Housing and not when plaintiffs’ interest took effect in the year 1996.The court below relied on the ratio decidendi in a number of authorities, including those established in David Amon-Kotei v. Claudia Boateng & 3 others Suit No. FAL/117/14 (Jh October 2019) to arrive at the said conclusion and

1. 14. In the Amon-Kotei case, the plaintiff had argued that he only became a leasehold owner of the land in 2008 and if anything at all, time only started running against him from that date and by the time he institute the action it was only five years.

The court rejected the said argument on grounds that:

“If this argument is to be accepted, what it will mean is that when a landowner realises that per section 10 of NRCD 54 he cannot bring an action to recover his land, he can go around it by transferring it to a third party who can now have a clean slate. The drafters of the law contemplated such a mischief and they made provision in section 10 (1) of NRCD 54 to deal with such ingenious land owners… The plaintiff is therefore fixed with all deficiencies of the title of his grantors and he cannot be heard to say that he only got the land in 2008 and as such the Court should ignore all that happened before that date."

CONSIDERATION OF THE APPEAL

1. 15. My Lords, in my considered view, the appellants’ ground 4 must be the first to be considered. This is because, the same contains a fundamental issue that goes to the root of the case for our determination. It is therefore absolutely necessary to set down that ground and the issues emanating from it for a determination and depending on the decision on it I shall then determine whether or not it would be necessary to consider the other grounds.

 

The said ground reads as follow:

“The Learned Trial Judge erred when he held that the plaintiff’s (sic) action is statute-barred.”

That fundamental issue is whether or not plaintiffs’ case is statute-barred

ARGUMENT BY PLAINTIFFS/APPELLANTS

1. 16. In arguing this ground learned counsel for Defendants expended enormous energy to drive home his point that in law defendant (Appellant herein) did not plead that the plaintiffs’ case was statute- barred and therefore the trial court erred when it held that since at the time plaintiffs’ commenced that action at the court below respondents had been in possession for more than the statutorily provided 12 years.

1. 17. Counsel for plaintiffs is not by this argument saying that there is no pleading filed by the respondent which contains facts grounding a defence that the suit is statute barred. What he is saying is that respondents by filing their amended statement of defence outside the period ordered by the trial court to file it same is deemed to be a nullity and therefore the trial court ought not to have considered it at all.

1. 18. The plaintiffs put the argument pointedly in their Written Submission thus:

“As earlier briefly narrated in the preliminary facts, the only valid Statement of Defence on record is the one filed by the Defendants/ Respondents on 9/7/2019 and not the purported Amended Statement of Defence filed on 8/06/2021.

 

The said valid Statement of Defence filed on 9/7/2019 can be found at pages 54 to 56 of the record of Appeal. The said purported Amended Statement of Defence which to my mind is void ab initio in that it was not filed within the time stipulated by the order for leave to amend. Why have I said so? The Defendants/Respondents filed an application to amend their Statement of Defence. With regard to the said application see pages 180 to 186 of the record. The said application for leave to amend was moved and was granted by the court below.

Indeed on 10th June 2020, the said application was duly moved and the learned trial Judge granted same and ordered the Defendants/Respondents to amend their Statement of Defence within seven (7) days. For clarity sake, I wish to reproduce the said order granting the Defendants/Respondents leave to amend their Statement of Defence…”

1. 19. The plaintiffs reproduced the said order on pages 73-74 of the written submission. As if the above and the reproduction of the order aforesaid do not make the point clear enough, plaintiffs stated further with an unusual vehemence, as if imbued with imperious disposition thus:

“As patently evident in the order quoted supra, the Defendants/ respondents were granted seven (7) days to amend their Statement of Defence commencing from the date of order and same was 10th day of June, 2021.

By parity of reasoning, the said Order made on 10th June, 2021 automatically lapsed on 17th June, 2021 or at most lapsed on 18th June, 2021. Contrary to the above Order, the Defendants/Respondents neglected or totally failed to file the Amended Statement of Defence within seven (7) days as ordered by the learned trial Judge but chose to file it out of the time. Thus the purported Amended Statement of Defence filed on 23d June, 2021 was void ab initio.”

 

1. 20. Plaintiffs then moved on to found their position above on the effect of the filing of Amended Statement of Defence out of the time ordered by the court by citing what they referred to as cases containing the “well settled” law on the matter under consideration. This is what their Lawyer in their Written Submission had to say:

“The law is well settled that if a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose, an expiration of such limited time, the order for amendment became ipso facto void.” See Ayiwah & Anor v. Badu & Ors (1963) 1 G.L.R. 86 particularly part 1 of Holding 1 where the Supreme Court held:

"The leave to amend the writ and statement of claim ipso facto became void upon the plaintiffs' failure to take steps to implement it. Leave may operate to bring into existence an effective amendment.”

1. 21. Learned Counsel further referred to Agbesi & Ors. v. Ghana Ports & Harbours Authority(2007-2008) 1 SCGLR 469 at 481 to 482. The classic case of Dolphine v. Speedline Stevedooring Co. Ltd. [1997- 98] 1 GLR 786 was also relied on heavily by learned counsel for the plaintiffs to buttress the position he has taken on the matter particularly at page 794 wherein BAMFORD ADDO JSC Had this to case:

“Suffice it to say that the Limitation Decree, 1972 (NRCD 54) adverted to is essentially a special plea that must be pleaded: see Order 19, r 16 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). It must be borne in mind that if this special plea is not pleaded, it cannot be adverted to in submissions to the court. The court on its part will not also of its own motion take notice that the action is out of time.”

1. 22. Counsel then concluded that in “the light of the above well settled rule, it is abundantly clear that the said Amended Statement of Defence filed by the Defendants/Respondents on 23/06/2021 is void ab initio and indeed a nullity…”

 

On account of the foregoing counsel submitted finally thus:

“Applying the above principles, it is manifestly clear that the learned trial Judge erred when he held that the Plaintiffs/Appellants action is statute barred. The concluding chorus is that the Defendants/Respondents never pleaded in their Statement of Defence that the Plaintiffs/Appellants action is statute barred.”

ARGUMENTS BY DEFENDANTS

1. 23. Respondents have resisted the assertions by Appellants and insisted that appellants’ case is statute-barred.

Analysis of Ground 4

1. 24. My Lords, we have taken the pains to read the cases cited by learned counsel for the appellants for a particular purpose which will be clear in no time. The facts and holdings are represented herein starting with the classic case of Ayiwah v. Badu supra. In that case, the relevant facts as narrated in the summary to the report were as follows: that prior to the hearing date, the plaintiffs applied for leave to amend the writ and statement of claim by deleting “cancellation of the mortgage deed and substituting “re-opening of the loan transaction.”

1. 25. Leave was granted but the plaintiffs did not take any further steps to effect the amendment as required by the Supreme [High] Court (Civil Procedure) Rules, 1954, Order 28, rr. 7-10. The trial proceeded on the basis of the original writ and statement of claim, the second plaintiff alone giving evidence in support of the claims by herself and her mother.

 

1. 26. Apaloo J. accepted her evidence, gave judgment for the plaintiffs as follows:

2. 1. the leave to amend the writ and statement of claim ipso facto became void upon the plaintiffs' failure to take steps to implement it. Leave may operate to bring into existence an effective amendment if the amendment is ordered by the court proprio motu but it is still advisable for counsel in whose favour it has been granted, to enquire about and if necessary see to its implementation. Smith v. Roberts (1892) 8 T.L.R. 506; Ecklin v. Little (1890) 6 T.L.R. 366, C.A. and England v. Palmer

(1955) 14 W.A.C.A. 659 cited.

1. 27. Next is Agbesi & Ors. v. Ghana Ports & Harbours Authority supra. In that case, lawyer for plaintiffs had obtained an order of the court for joinder of several persons to the suit as plaintiffs. He however failed to amend the writ of summons to reflect the names of these persons on whose behalf the joinder application was made. So the case was fought to the end with only the original plaintiffs and with the original writ of summons and statement of claim. In short there was no amended writ on record.

Effectively the order of the court for joinder was not implemented at all.

1. 28. Plaintiffs have also relied heavily on the ratio in the Dolphine v. Speedline Stevedooring Co. Ltd supra. This case is not different in substance from those above.

What transpired was crisply summarised by Bamford-Addo JSC thus:

“I have considered the application for leave to amend the second defendant's pleading to enable him to rely on the Limitation Decree, 1972 (NRCD 54) to defeat the plaintiff's claim. The defence that a claim is statute-barred must be pleaded as set out in Order 19, r 16 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) which also applies to the

 

circuit court. The defendant failed to plead the statute of limitation in his pleading; neither did he apply at the circuit court for amendment to plead it but chose to rely on the equitable principles of laches and acquiescence, and under which the case was fought and decided right up to the Court of Appeal. Now at this late stage he intends to defeat the plaintiff's claim by relying on the said statute. It is trite law that the courts have power to amend pleadings at any stage of the proceedings. But it is a discretionary power which would be granted in very deserving cases. It would be granted when it is necessary for determining the real issue or question in controversy between the parties, provided of course it can be made without injustice to the [pg. 790] other party.”

1. 29. Indeed, Hayfron-Benjamin JSC also threw further light on it when he said at page 790 thus;

“I need not expend any useful time in unravelling this incoherent statement of the law. Suffice it to say that the Limitation Decree, 1972 (NRCD 54) adverted to is essentially a special plea that must be pleaded: see Order 19, r 16 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). It must be borne in mind that if this special plea is not pleaded, it cannot be adverted to in submissions to the court. The court on its part will not also of its own motion take notice that the action is out of time. Consequently, there was no real defence to the plaintiff's claim for damages for the fraud. I am of the view that Ampiah JSC in his opinion offered in this appeal, when it was before their lordships, amply demonstrated the strength of the appellant's claim.”

1. 30. Indisputably, all the cases cited by learned counsel for the appellant have some things in common. In the Ayiwah and Agbesi cases (supra), an order was obtained from the court which was completely abandoned. In other words after obtaining the relevant order, the applicant failed to implement same. That is they failed to carry out the order as provided for by the rules applicable at the time.

 

1. 31. In short they took no further step at all. In respect of Dolphine case defendant did not plead that the case was statute-barred. In short there was nothing on record by way of pleadings from the Circuit Court right up to the supreme court. It was at the supreme court that counsel for the defendant sought to apply to amend the pleadings to incorporate a plea that the action was statute barred.

1. 32. My Lords a number of burning questions arise from the foregoing. They include the following with answers:

2. 1. In the cases cited by the plaintiffs did the relevant party obtain an order of the court? In respect of Ayiwah and Agbese respectively, the answer is Yes. In respect of the Dolphine case, there was no such order in the first place, as there was no application for any such order. In respect of the instant case did the Defendants herein obtain an order of the court for amendment? Answer – Yes.

3. 2. In the Agbese and Dolphine case did the relevant parties carry out the orders of the court? Answer – No.

In the instant case before us did the Defendant herein carry out the orders of the Court? Yes. albeit out of time. In the Ayiwa and Dolphine case, did the parties participate in the respective cases based on the relevant orders that were made?

Answer - No. In the instant case before us, did the parties participate in the proceedings on the basis of the Amended Statement of Defence which was filed out of the time contained in the order of the court? Yes

3. In the instant case before us, did the Plaintiffs take any step at the trial court under relevant provisions of the High Court (Civil Procedure Rules) 2004 C.I.47 to set aside the Amended Statement of Defence which was filed in contravention of relevant provisions of C.I.47.

Answer - No.

 

1. 33. Clearly therefore, the instant case before us is distinguishable from the ratio in Ayiwah and Agbese cases. Indeed, there is overwhelming evidence on record to the effect that the Plaintiffs herein acknowledged that the Defendants herein were prosecuting the case on the basis of the amended Statement of Defence which they are now belatedly characterizing as null and void ab initio. For instance, at page 242 of the record, specifically in the Written Address of the Plaintiffs at the Court below, this is what the Plaintiffs’ lawyer stated on their behalf:

“The pleadings of the parties are fully captured in the Plaintiffs’ amended statement of claim and the Defendants’ amended statement of defence and has been the basis for the prosecution of this matter”.”

1. 34. Indeed, long before Defendants applied and obtained the order of the Court to amend their statement of Defence, they had filed Additional Issues for Directions on 3rd December, 2019 paragraph 2 of which states:

“Whether or not the Defendants have been in possession of the Disputed land since 1989”

1. 35. In setting down the issues for trial the said additional issue 2 was incorporated in the issues for trial filed by plaintiffs and renumbered issue (g). Inherent in this issue are facts that border on the legality of Plaintiff’s action as far as the statute of limitation is concerned.

1. 36. My Lords, if Plaintiffs’ argument that the failure of the Defendants to comply with relevant provision of C.I.47 relating to the effect of the filing of a process of the court outside the time ordered by the court or stipulated by the rules is to hold, then it may also be said that defendants had no defence at all on record.

 

1. 37. We say so because, the statement of defence on record which appellant has characterised as the “only valid” statement of defence of the defendants was itself filed out of the time ordered by the court. This is because the court made an order for defendants to file their defence out of time within 14 days from the date of the order which is 11th day of June 2019. It is however noticed on the face of the Statement of Defence filed by the Defendants, that same was filed on 9th day of July 2019.

1. 38. This means that that statement of defence was filed some 20 days after the expiration of the time within which defendants were ordered to file their defence out of time. The said order is found on pages 52-53 and the Statement of Defence filed on pages 54-56. Interestingly, not only are the Plaintiffs herein not complaining and raising issues about same being filed after the expiration of the order of the court, but indeed Plaintiffs endorsed the same by inter alia filing a reply to the said statement of defence found at pages 59-60 of the ROA.

1. 39. Indeed Plaintiffs herein did not at any material time during the prosecution of the case at the court below assert that the amended statement of defence was a nullity. It has been filed outside the stipulated period ordered by the court and therefore contrary to relevant provisions of the High Court Civil Procedure Rules. It is also the case that even this court Plaintiffs are not complaining about the filing of the statement of defence 20 days after the expiration of the order of the court to do so. But are up in arms lamenting and with imperious disposition declaring that the amended statement of defence filed 7 days after the expiration of the order of the court and therefore contrary to relevant provisions of C.I47 is ab initio. The answer gathered from the conduct of the Appellant themselves does not appear to be farfetched.

 

1. 40. It may only mean that Appellants are comfortable and thus endorsing the statement of defence that was filed some 20 days after the expiration of the order of the court, because the matters contained therein appear to be reasonably answerable, but that they are in this court declaring that the Amended Statement of Defence is void for its noncompliance with the order of the court founded on the relevant provisions of C.I.47 because it contains averments such as that the plaintiffs case is statute-bared under the Limitation Act, NRCD 54. One may perfectly ask the question: If plaintiffs had won the case at the trial court, would they have been in this court agonizing about the legal effect of the filing of the Amended statement of defence contrary to the order of the court and relevant provisions of C.I.47?

1. 41. My Lords the rule under C.I.47 relevant to the issue at hand is order 16 rule 8 states:

“Where the court makes an order giving a party leave to amend a writ pleading or other document then if that party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in the order or if no period is so specified within 14 days after the order is made, the order shall cease to have effect but without prejudice to the power of the court to extend the period”

1. 42. Ordinarily, plaintiffs’ failure to comply with the said order 16 rule 8 would have rendered both the statement of defence and amended statement of defence void for non-compliance.

1. 43. Under C.I.47, a fundamental fact that arises from the circumstances of this case is that the failure of the Defendants to implement the order of the court within the time contained in the court order amounts to non-compliance with the said order 16(8).

 

The question that necessarily follows is:

“What is the effect of proceedings undertaken contrary to the relevant provisions of C.I.47?”

1. 44. The answer is that such proceedings are generally not ipso facto rendered void. Order 81 of C.I.47 contains the full answer to the question. Its reads:

“ORDER 81—EFFECT OF NON-COMPLIANCE WITH RULES

Rule 1—Non-Compliance with Rules not to Render Proceedings Void

(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall not be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it.”

1. 45. The above rule has been interpreted and applied in a ship load of binding authorities to mean that a failure to observe a provision of any of the rules ‘shall be treated as an irregularity’. In the groundbreaking case of Republic v. High Court, Accra; Ex parte Allgate Co. Ltd (Amalgamated Bank Ltd Interested Party) [2007-2008] 2 SCGLR 1041, the Supreme Court held that non-compliance with the rules which do not go into jurisdiction is not fatal to the validity of the proceedings. The court emphasised that where the breach or violation of a rule borders on want of jurisdiction of the court, such a defect is fundamental and cannot be waived. Proceedings tainted by lack of jurisdiction are a nullity and may be set aside at any time, even after judgment.

 

1. 46. As stated in rule 1(1) of Order 81, a failure to observe a provision of these rules ‘shall [not] nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it’. See also Boakye v. Tutuyehene [2007-2008] 2 SCGLR 970.

1. 47. Order 81 (2) (1) and (2) however grants a party aggrieved by her opponent’s act of non-compliance a remedy which entitles him to apply to have the impugned proceeding struck out provided the application is brought within a reasonable time and the applicant has not taken any fresh step. It provides:

“Rule 2—Setting aside for Irregularity

(1) An application may be made by motion to set aside for irregularity any proceedings, any step taken in the proceedings or any document, judgment or order in it, and the grounds of it shall be stated in the notice of the application.

(2) No application to set aside any proceeding for irregularity shall be allowed unless it is made within a reasonable time and the party applying has not taken any fresh step after knowledge of the irregularity.”

1. 48. Also, of exceptional relevance is Order 1 Rule (I) sub-rule (2). It reads:

“(2) These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.”

1. 49. My Lords, the above provision is one of the most significant innovative procedural legal frameworks introduced by C.I.47 as an

 

improvement on LN 140A. This therefore makes it imperative for those who wish to apply ratio decidendi in judicial authorities established under LN140A, to bear in mind that the overriding purpose of the rules is to achieve substantial justice by all the parties in cases brought before us as judges.

1. 50. Will the ends of substantial justice be served where a party has participated in a case based on a proceeding and consequent processes, which he expressly endorses, in this case-, the amended statement of defence-up to the end of the case in which the court also rests part of its judgment on the said process, only for him to complain on appeal that the judge was wrong in relying on the said process as part of the reasons to give judgment against him? We do not think that even good conscience alone ought to accede to such a performative lamentation from a sore loser.

1. 51. My Lords, we are not by the foregoing endorsing defendants’ failure to strictly comply with the Rules of court and the pursuant orders of the court in which timelines have been provided towards the enforcement of such rules and orders. Indeed, we deprecate in no uncertain terms such opprobrious conduct.

1. 52. That said, I do not think that in the circumstances of the said reprehensible conduct of the defendants vis-a-vis that of the Plaintiffs who had at the trial court positively endorsed the proceedings and pursuant processes they are now seeking to impugn before us, after judgment having been entered against them, is sufficient to deprive this court of the jurisdiction to render substantial justice in by the parties herein.

 

1. 53. In our view it is too late in the day for the plaintiffs to urge on us in this appeal to invalidate the very process that they have expressly and by their conduct validated. To hold otherwise is to sanction plaintiffs’ act of approbating and reprobating or blowing hot and cold depending on what their desires are. On this, the enduring words of Honeyman J in Smith v. Baker & Sons (1873) LR 8 CP 350 at 357, approved by Baker MR in 19 QBD 347 at 350 and cited with approval in Ogbarmey-Tetteh

v. Ogbarmey-Tetteh[1993 - 4] 1 GBR 91 – 149 resonate resoundingly thus:

“A man cannot say at one time that the transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another time say it is void, for the purpose of securing some further advantage.”

1. 54. In summary I state that:

2. 1. (a) There is on Record before us an Amended Statement of Defence filed by the Defendants which is their subsisting defence. It contains an averment to the effect that Plaintiff’s case is statute- bared. See Paragraph 15 of the Amended Statement of Defence. There are also other facts in the said Amended Statement of Defence on which the plea that Plaintiff’s case is statute-bared is founded.

1. 1. (b) There is evidence before us that Plaintiffs fully acted on Amended Statement of Defence and indeed asserted that the Defendants prosecuted their case on the bases of the said Amended Statement of Defence

 

1. 1. (c) Plaintiffs did not take any step to have the said Amended Statement of Defence struck out. Indeed, they did not raise any issue about its impropriety at the Court below. They are raising this issue for the first time before us on appeal. These factual matters and the applicable laws fortify us to reject the same inlimine.

1. 55. I therefore hold that the plaintiffs’ argument and indeed their ground 4 of the appeal before us are untenable. Consequently, I hold that same is dismissed.

SUBSTANTIVE ANALYSIS OF GROUND 4

1. 56. My Lords, I am compelled to state that Plaintiffs, through their Counsel undertook an extremely fatal adventure or speaking mildly, risky gamble. I say so because, in view of the position they took on the effect of the filing of the Amended Statement of Defence out of time, they failed to traverse in any way throughout the proceedings in the court below relevant averments in the said Amended Statement of Defence on which defendants founded their defence that plaintiff’s case was statute-bared.

1. 57. Instead of accepting the fact that they let themselves down by taking a path doomed to end them in damnation, they are before this court on appeal chastising the trial judge for relying on the very process they had by their conduct endorsed as forming the basis of the case of the defendants. Let us listen to their uncharitable ‘condemnation’ of the trial judge:

“Amazingly, the learned trial Judge relied on the pleadings in the said Statement of Defence (sic) particularly the plea that Plaintiffs/Appellants action is statute barred and found that the Plaintiffs/Appellants action is statute barred…”

 

1. 58. Learned counsel for plaintiffs did not end here. He continues to throw more ballistics thus: “Undoubtedly, the learned trial Judge finding that the Plaintiffs/Appellants action is statute barred is totally wrong and received no support in the realm of law at all. This is because, the purported Amended Statement of Defence filed out of the period and or time stipulated by the Court’s below (sic) said order for leave to amend and thereby rendered the said purported Amended statement of defence void.”

1. 59. The question arising naturally from the foregoing is this:

Was appellants’ case statute barred. Below is what the trial court found:

“In their statement of defence (sic) the defendants asserted that the plaintiffs' action is statute barred. In raising this defence, the defendants are asserting that even if they do not have a right to be on the property in dispute, they have adversely dispossessed the plaintiffs and as such the plaintiffs cannot make any valid claim to the property.

Adverse possession arises where a trespasser takes possession of land and exercises rights that are inconsistent with the rightful owner's rights for a continuous period of twelve years. When that happens, the rightful owner's right over the land are deemed to have extinguished in favour of the trespasser.

This is usually referred to as adverse possession and it has been given statutory recognition in section 10 of the Limitation Act, 1972 (NRCD 54) which provides, inter alia, as follows:

“(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 claims to that person.”

 

(2) A right of action to recover land does not accrue unless the land is in the possession of a person in whose favour the period of limitation can run.

……

(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 purposes of this section adverse possession' means possession of a person in whose favour the period of limitation can run. …”

At the time the plaintiffs instituted the present action before this court on 5th August 2011, fifteen years had elapsed commencing from the time the plaintiffs and their predecessor in title got to know about the defendants' rights in 1996. This if for nothing at all, the present action of the plaintiffs before this court per the evidence on record and the analysis above is statute barred and I so hold.” "In their statement of defence, the defendants asserted that the plaintiffs' action is statute barred. In raising this defence, the defendants are asserting that even if they do not have a right to be on the property in dispute, they have adversely dispossessed the plaintiffs and as such the plaintiffs cannot make any valid claim to the property.”

1. 60. My Lords, upon realising that their ship was inevitably sinking down the abyss of the ocean, plaintiffs thought they had discovered a lifeboat when they claimed that “the defendants, without authority and with no title to the property in dispute, had “recently trespassed onto a portion” of their property and were laying adverse claim to the property by erecting structures on the land.

1. 61. However, upon being confronted menacingly with the stark reality of the overt acts of ownership by the defendants, plaintiffs now adopt a strategy that may be best described as faux pas. This they do by

 

resorting to the related argument that even if the defendants herein had been in possession of the property in dispute for the length of time they claim they have been in possession of, they are at best squatters. It was argued that the position of the law was that squatters were exempted from laying a claim to the benefits derivable from the Limitation Act.

1. 62. The above proposition of law which has gained enormous currency and championed by some advocates on the basis of which the above assertion is made, is- without sounding repetitive-that a squatter, unlike a trespasser cannot successfully lay a claim to the land on which he has been in adverse position no matter how long.

1. 63. The adherents of that school of thought usually cite the Supreme Court case ofAmidu Alhassan Amidu v. Mutia Alawiye & 6 Others (2019) JELR 68180. In that case, the Supreme Court held that the assertion by the defendants in their Statement of Case “that squatters can acquire title to land after 12 years of occupation…is an erroneous statement of the law.”

1. 64. The Supreme Court made the above declaration and drew the distinction aforementioned based on its reliance on a definition contained in Black's Law Dictionary, 8th Edition, 2004 thus:

“The legal definition of a squatter in Black's Law Dictionary, 8th Edition, 2004 is 'A person who settles on property without any legal claim or title' The difference in law between a squatter and a trespasser is that whereas a trespasser enters onto a land and claims an interest in it that is inconsistent with the rights of the true owner, a squatter does not claim any interest in the land he is in occupation of.”

1. 65. In fact, the trial court cited the above case and endeavoured to distinguish the conduct of the respondents herein as amounting to

 

persons who are in trespass to the land in dispute and not as mere squatters. Below is what that court said:

“From the pleadings and the evidence on record, there is no doubt that the defendants are currently in possession of the property in dispute. In the case of Amidu Alhassan Amidu v. Mutiu Alawiye & 6 others, Civil Appeal No. J4/54/2018 (24th July 2019) and reported online as (2019 JELR 68180, the Supreme Court stated the distinctions between a squatter and a trespasser by holding that while a squatter is a person who does not make any legal claim or title to a piece of land which he is in possession of, a trespasser however claims an interest in a parcel of land which he is in possession of. The Supreme Court noted through Pwamang JSC as follows:

“The legal definition of a squatter in Black's Law Dictionary, 8th Edition, 2004 is ‘A person who settles on property without any legal claim or title.’ The difference in law between a squatter and a trespasser is that whereas a trespasser enters onto a land and claims an interest in it that is inconsistent with the rights of the true owner, a squatter does not claim any interest in the land he is in occupation of.”

For the defendants to be classified as squatters as asserted by the plaintiffs therefore, they should not have made any legal claim or title to the property in dispute. In the present case however, the defendants have asserted title over the property in dispute and are claiming that their respective properties were transferred to them after they had made payment for the said properties. Per their pleadings and the evidence led before me therefore, and in the light of the authorities on the subject, the defendants cannot be squatters as asserted by the plaintiffs. The evidence on record however reveals that the defendants have been in possession of the property in dispute as far back as the year 1989 and they are still in possession of the property in dispute.

The fact of the defendants being in possession of the property in dispute was known to the plaintiffs at least, as far back as the year 1996. This is confirmed in the averments in paragraphs 7 and 8 of the statement of claim.”

 

1. 66. My Lords, as the ensuing analysis will no doubt show there may not have been any need for the trial court to go to town on the legal effect of adverse possession by a squatter as against a trespasser respectively. I say so because at the time the Judgment in the Amidu Alhassan Amidu case supra was delivered, the dominant position of the law was that a squatter, like a trespasser, can acquire an interest in land by the operation of the Limitation Act and his acts of adverse possession. The following cases support this assertion.

1. 67. Armar Nmai Boi and 2 Others v. Adjetey Adjei and 12 Others [2014] Civil Appeal No J4/8/2013 is touted as being the most outstanding on the dominant position of the law which is by no means settled that a squatter could acquire a right in land through the doctrine of adverse possession and the Limitation Act. No distinction was drawn between a squatter and trespasser for the purposes of acquisition of interest in land by way of adverse possession aided by the statute of limitation. In that case, the Supreme Courtclarified that:

“... the rights conferred by section 10 of the Limitation Act can be enjoyed by a person who remains in adverse possession of land over a period of 12 years irrespective of the fact that they entered the land and developed same without a building permit. The title conferred by the Limitation Act is prescriptive and is usually conferred on squatters … Until by length of time the Limitation Act shall have confirmed his title, the squatter may be turned out by legal process.”

1. 68. In that case, the Supreme Court seised the opportunity to, as it were, set the record straight on the pristine understanding of Section 10 of the Limitation Act which reflects substantially the provisions of English Statutes of Limitation and the common law. In so doing, their Lordships referred to the ratio in Treloar v. Nute [1977] 1 All ER 230 at 234 which had earlier been cited with approval by Atuguba JSC in Djin v. Musah Baako [2007-2008] 1SCGLR 686 at 699) In that,

 

case Sir John Pennycuick tutored thus:

“The law as we understand it… is that if a squatter takes possession of land belonging to another and remains in possession for 12 years to the exclusion of the owner, that represents adverse possession and accordingly at the end of 12 years the title of the owner is extinguished. That is the plain meaning of the statutory provisions, which I have quoted and no authority has been cited to us. The simple question is: did the squatter acquire and remain in exclusive possession?”

1. 69. The Supreme Court then concluded in the ArmarNmai case that: “in the circumstances assuming the defendants’ title is bad, their adverse possession of the land for a period of twelve years and over confers on them possessory rights by virtue of section 10 of the Limitation Act.”

See also Wallis’s Clayton Bay Holiday Camp Ltd v Shellmex & B P Ltd [1975]1QB 94 @ 103.

1. 70. Faced with a similar issue, Dotse JSC cited with approval the dictum of Lord Denning inFairweather v. St. Marylebone Property Co. Ltd [1963] AC 510 at page 543 where it was made crystal clear that in a case where a squatter had wrongfully taken over another person’s land and exercised overt acts of possession adverse to the interest of the true owner up to the time allowable by the statute of limitation, that squatter can eventually be held as having acquired an interest in the said land which is alienable and inheritable. He eminently proclaimed 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 Klu v. Kofi Konadu Apraku [2009] SCGLR 741.

1. 71. Relatedly, any act of a person who may be characterised as a squatter on a land which amounts to possession ought not be discounted as same may be significant for other purposes including being a signpost to a prospective purchaser of the land that same may have been encumbered. This was the dictum of Benin JSC in Aryee v. Shell Ghana Ltd & Fraga Oil [2017–2020] 1 SCGLR 721. We deem it necessary to quote a portion of same ex abundanti cautela:

“The person you consider a squatter sleeping in a kiosk might have been placed there by the landlord as caretaker or overseer. It is equally his duty as a prudent purchaser to find out who must have erected the structure there. For registration under the law does not dispense with the requirements of the equitable doctrines of fraud and notice; see the following Supreme Court decisions: Amuzu v. Oklikah [1998–99] SCGLR 141; Western Hardwood Enterprise Ltd. and Another v. West African Enterprises Ltd. [1998–99] SCGLR 105. Notice does not mean only notice of registration of the title but also notice of possession by the first purchaser, grantee or lessee or their agent as the case may be. That is why an intending purchaser must make reasonable enquiries in respect of the property he seeks to acquire. This involves legal searches at the land registry, but more critically it involves a physical inspection of the land to ensure it is free from any encumbrances.”

1. 72. Incidentally, the above case, like the instant, concerned a piece of land that State Housing Company (SHC) purported to alienate to the

 

Defendants. That land formed part of the larger land of which the land in dispute in the case before us also forms part. In that case also the SHC had characterised some persons on the land as squatters as a result of which the defendants became convinced that the land was thus not encumbered.

1. 73. My Lords writing on the foregoing with the subtitle ADVERSE POSSESSION: “A SQUATTER’S DARLING”, the author, Yaw D. Oppong in his book entitled “CONTEMPORARY TRENDS IN THE LAW OF IMMOVABLE PROPERTY IN GHANA” (2ed. 2021) on page 312,

reviewed the law on the circumstances under which adverse possession by a squatter for example, can, in accordance with law, be a means by which an interest in land may be acquired albeit by prescription and/or operation of law which extinguishes any interest that even the true owner may have had in the land.

1. 74. The ubiquitous case of GIHOC Refrigeration & Household Products Limited v. Hanna Assi [2005–2006] SCGLR 459, puts the matter beyond a shadow of doubt. In that case, the Supreme Court declared, that “an adverse possessor of land in relation to which the original owner’s rights have been extinguished, gains a title equivalent to the title extinguished.”

1. 75. As things stand at the moment, unless the apex court has affirmatively departed from either position of the law espoused in the Armar Nmai line of cases vis-a-vis that stated in the Amadu Alhassan case supra, one is presented with two diametrically opposed ratio decidendi which forces an invidious choice on a court of obeying the law established in the Armar Nmai case supra or that stated in the Amadu Alhassan case supra.

 

1. 76. I do not think that in view of the peculiar facts of this case couple with the decision taken on it, it is necessary to engage in a lengthy discussion on the law relating to when the Supreme Court can be said to have departed from its previous position on a particular point of law. It is enough, as already posited in this opinion, to leave the matter to the apex court to finally give clarity to the position of the law under reference for the sake of certainty-that is if it has not yet done so.

1. 77. Be that as it may, an outstanding question that calls for an urgent answer is this: what are the conditions on which a party may found a case of adverse possession? The answer is however not farfetched. The law as I understand it is that a party relying on a claim or defence of adverse possession must successfully lead evidence to establish that he had engaged in open, visible and apparent acts of ownership without any challenge from any person. There must additionally be evidence that these overt, unchallenged acts of ownership have effectively served as notice to the legal owner that someone might be asserting a claim adverse to hers. See Abbey & Others v. Antwi,[2010] SCGLR17 at 20 and Klu v. Konadu Apraku[2009] SCGLR 741 at 743.

1. 78. Armar Nmai Boi and 2 Others v. Adjetey Adjei and 12 orssupra adds to the long list of cases on this subject. In this case the respective case of the parties as summarised by the Supreme Court makes interesting reading:

“The facts were that the defendants by their pleadings and evidence stated that they were in effective occupation of the land in dispute. They had built houses and structures on the land in which they lived and carried on their businesses respectively. They all claimed they acquired their respective parcel of land from the Tsie We family of the Kle Musum Quarter and had been in undisturbed possession for periods of 12 years and above. DW1, Abraham Nmai Adjei gave evidence that the Tsie We family of Teshie gave the land to the defendants. The defendants tendered some indentures and receipts of property rates and utility bills.

 

In our view the only evidential value of the receipts and utility bills is to establish the residential addresses and occupation by the defendants on the land in dispute.

The indentures were also merely stamped and not registered. Hence the defendants could not show any valid document of title to the land, except that they had customary grants from the Tsie We family and had been in uninterrupted occupation ranging over a period of 12 years.

The plaintiffs on the other hand relied on an indenture exhibit A and a Land Title Certificate No GA 20047, exhibit B in proof of their ownership of the land. In the opinion of the court even if, for purposes of argument, the plaintiffs purchased the land in dispute in 1961, “exhibit A, the indenture covering the sale, became effective when it was registered in 1985. They were not in effective occupation apart from claiming they had put corner pillars on the land which they weeded at times and warded off trespassers. PWI said the land was bushy. From the period 1985 until 2007 when the plaintiffs commenced their action the evidence shows the defendants were in effective uninterrupted possession of a portion of the land in dispute.”

It is crystal clear that relevant facts of the case before us are similar in material particularity to that of the ArmarNmai case supra. In the instant case, as beautifully narrated by my respected Sister Adanu JA, in the majority opinion herein incontrovertible evidence of overt acts of possession including construction of houses of the land in dispute which commenced long before appellants’ grantors were granted the land by the Government abound.

Significantly, the facts of the Armar Nmai case also teach us that even where a person in adverse possession of land had sought to establish that she took possession of the land pursuant to payment of some monies to the original owner but the court finds that the purported evidence of purchase could not sustain her claim, the court would still affirm her right to

 

ownership of the land once there is evidence that establishes that she has been in adverse possession of the land for at least twelve years, as stipulated by Section 10 of the Limitation Act.

Therefore, even if Defendants may not have been able to establish conclusively that they made payment of various sums of money to the Government-which assertion I, in any case do not share-there is ample evidence on record that supports defendants’ claim to ownership of the land albeit by way of adverse possession beyond the statutorily stipulated period of twelve years.

Thus, Defendants in this case do not have to trace their title to or interest in the land to the original owner, in this case, the Government, but to the fact that they have acquired a new title to or right over the land by dint of their adverse possession of the land and the Limitation Act.

I am emboldened by the dictum of Professor Justice Date-Bah JSC in GIHOC REFRIGERATION HOUSEHOLD PRODUCTS LTD. V HANNA ASSI

(2005 – 2006) SC GLR 458 at 468 – 469 to make the above declaration. In that, case the eminent jurist masterly proclaimed the settled position of the law with accustomed surgical precision thus:

“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.” See also DJIN v. MUSAH BAAKO (2007-2008) SC GLR 686.”

 

1. 79. My Lords, the position of the Law is that the Statute of Limitation is not concerned with the merit of the case. Consequently, there being sufficient facts and supporting evidence on record as stated above, that at the time plaintiffs commenced their case at the trial court, the same was statute-bared which extends to plaintiff’s grantors, State Housing Company, who had notice that as at 1989, defendants had been in possession of the land they acquired from the government, plaintiffs are for ever barred from asserting the contrary

1. 80. In any case, without the application of the statute of limitation, I affirm that there are sufficient facts and evidence on record that support a ruling in favour of the defendants herein, as found and held by the trial Court. Thus, from all the circumstances of this case it is not difficult to hold that the entire case of the plaintiffs is-to borrow the words of Atuguba JSC in Klu v. Kofi Konadu Apraku supra-, “a complete simulation emanating from testes diabolices qui magis fama quam fame moventur.”

1. 81. In conclusion, the appeal fails. The judgment of the High Court dated 20th February 2023 is hereby affirmed.

 

Baffour J.A:

INTRODUCTION

 

SGD.

Barima Yaw Kodie Oppong, JA

(Justice of Appeal)

 

1. 1. I have had the privilege of reading the draft opinions of my learned brother and sister and I admire the scholarship exhibited by both

 

accomplished legal jurists. I am nonetheless, not persuaded by their submissions and I think it necessary to express my dissent with my own opinion. We have been called upon to rehear the suit and make a determination as whether the findings and conclusions of the trial Judge was right. Our task is to review the evidence on record for the purpose of affirming the decision on appeal or upending the determination made by the trial Judge. This will necessitate an examination of the respective cases present by both parties. The Plaintiffs/Appellants would be referred to in this judgment as Appellants whilst the Defendants/Respondents as simply “Respondents”.

BACKGROUND

1. 2. In or about 1985, the government of Ghana instituted the Aprotech Housing Scheme under the auspices of the Ministry of Works and Housing. It began with the construction of about ninety to hundred housing units at Adenta, all using locally manufactured materials. The land upon which these houses were constructed was acquired by the government of Ghana for State Housing Company (SHC). Most of the houses were uncompleted and some appears to have been completed by some of the workers who later moved into the properties. The Ministry of Works and Housing returned the houses to the owners of the land being SHC in 1996.

1. 3. The Appellants claims that they had a valid transfer of parcel No 1A, Klana Avenue, Adenta, being No 4, Block 12 from SHC and the conveyance evidencing the transfer has been validly registered with the issuance of a land certificate from the Land Title Registry of the Lands Commission. They averred that upon grant of the land they went into immediate possession by exercising acts of ownership. It was the case of the Appellants that the Respondents had trespassed on to a portion of the property and had laid adverse claim to the property by erecting structures on the land to prevent the Appellants from using the land for

 

its intended purpose.

1. 4. On that basis the Appellants sought for:

2. (a) A declaration of title to all that piece of land referred to and specially described in paragraphs 3 and 5.

3. (b) Immediate recovery of possession of the said land.

4. (c) Perpetual injunction restraining the defendants by themselves, their agents assigns and all persons claiming through them from entering the said parcel of land or in any manner dealing with same.

5. (d) An order of demolition of all unauthorised structures on the land.

DEFENCE OF THE RESPONDENTS

1. 5. Respondents by the essence of their defence denied the claims of the Appellants.

1st Respondent is a former worker of Aprotech Housing Scheme. The 2nd and third Respondents are married couple. The 2nd Respondent’s father by name Kojo Amachie, was also one time a worker of Aprotech Housing Scheme and claim to have been granted the property, the subject matter of the litigation by Aprotech Housing Scheme by way of purchase.

1. 6. Respondents agree that it was the Aprotech Housing Scheme that commenced the construction of about ninety houses in 1985 at Adenta. That in consideration of their services rendered to the Aprotech Housing Scheme, the 1st Respondent and the father of 2nd Respondent, together with eighteen others received minimal monthly allowance and it was later agreed with management that payment would be made in kind to

 

them. That they were offered the houses in consideration of the payment of Three Hundred Thousand cedis (300,000) each that were deducted from their salaries.

1. 7. That the workers were formally allocated the houses. They denied the claim of the Appellants that they had never been in possession of the land. Besides, Respondents contended that any purported grant by the SHC to the Appellants post-dated their grant. That the Appellants ought to have known of their occupancy at the time they purported to have purchased the property. They concluded that any transaction between the Appellants and SHC was void as they had an interest in the property as far back as 1989.

1. 8. 1st Appellant testified on his own behalf and on behalf of the 2nd Appellant as couple who jointly purchased the property. The Respondents on the other hand, testified by 1st Respondent, Charles Aikins, as well as Kwasi Adjei Gyimah, the Site Manager of Aprotech Housing Scheme. In the judgment of the court below, it dismissed the claim of the Appellants and found that the Respondents had obtained an interest in equity to be on the land. It also rested its reasons on section 10 of the Limitations Act, NRCD 54 that with the Respondents having been on the land for more than ten (10) years, any supposed interest of SHC and the Appellants in the property had been extinguished.

1. 9. Piqued by that determination, the Appellants have mounted this appeal on the following grounds contained in the notice of appeal:

2. (i) The judgment is totally against the weight of evidence on record.

3. (ii) Having found that State Housing Company could have validly transferred the land on which the property is situate to the Plaintiffs, the learned trial Judge erred when he held that they (State

 

Housing Company Ltd) could not have validly transferred the housing units on the parcel of land to the Plaintiffs.

4. (iii) The learned trial Judge erred when he held that the Plaintiff’s action is statute barred.

5. (iv) The learned trail Judge erred when he held that title in the housing units on the land were not vested in the State Housing Company Ltd.

6. (v) The judgment is unsupportable in law.

7. (vi) Further grounds of appeal shall be filed upon receipt of a certified true copy of the proceedings.

RESOLUTION OF THE GROUNDS OF APPEAL

1. 10. There appears to be no additional grounds of appeal filed by the Appellants.

With the exception of the third ground of appeal that the learned trial Judge erred in holding that the action was statute barred, virtually the rest of the grounds of appeal could be conveniently dealt with under the omnibus ground of appeal that the judgment was against the weight of evidence. The fifth ground of appeal that the judgment is unsupportable in law may be another rendition of the judgment being against the weight of evidence. However, that is more seen in criminal cases where a convict appellant cannot state that the judgment was against the weight of evidence due to the nature of the burden of proof in criminal cases. If in criminal cases the burden is one of proof beyond reasonable doubt, then the generally acceptable ground of appeal by a convict is that having regard to the nature of evidence adduced at trial, the conviction is unsupportable by the evidence on record. See section 31 of the Courts Act, 1993, Act 459.

 

1. 11. Ground five would accordingly be struck out as not technically belonging to a proper ground of appeal in a civil appeal. This will leave four out of the six grounds standing to be determined by the court. With ground three being on statute of limitation, which is a question of law, it may stand on its own, the rest of the grounds being ground one, two and four may all be subsumed under the omnibus ground for determination as they all deal and attack the factual findings of the trial court.

1. 12. With the germane ground of appeal being that the judgment was against the weight of evidence adduced at trial, the essence of it is now beyond argument that a duty is thrust on the appellate court to review the entire evidence on record to satisfy itself that the findings and conclusions drawn by the trial Judge are ably anchored on the evidence on record. The Supreme Court explained the ground in the case of In Re Asamoah (Decd); Agyeiwaa & Others v Manu [2013-2014] SCGLR 909, that:

“the general principle in determining the omnibus ground of appeal that the judgment is against the weight of evidence, which is by way of re- hearing, is that the appellate court is placed in the same position as if the exercise was original re-hearing. The court may in exceptional circumstances, receive evidence in additional way review the whole case and not merely the points as to which the appeal is brought. This is however subject to the rule of practice in our court which requires the plaintiff to invoke it by filing appropriate grounds of appeal. In setting down the grounds of appeal, the so-called omnibus ground should be distinguished from misdirection or error of law, challenge to jurisdiction or want of capacity, etc … An appeal based on omnibus ground of appeal allows the party to argue solely issues or points of fact. It does not permit reliance or arguments on point of law. The rules make specific provisions for invoking arguments on point of law which must be adhered to.”

1. 13. On this see also Nkrumah v Ataa [1972] 2 GLR 13; Abbey v Antwi [2010] SCGLR 17; Djin v Musah Baako [2007-2008] SCGLR 893; Oppong Kofi v Atibrukusu II [2011] SCGLR 176

 

. One must be quick to point out that the requirement that it was only factual matters that was to be argued when the ground of appeal was one of a judgment against the weight of evidence, was clarified in the famous case of Owusu-Domena v Amoah [2015-2016] 1 SCGLR 790 that:

“Where the appeal was based on the omnibus ground that the judgment was against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters.”

1. 14. Does a review of the evidence on record demonstrate that the judgment was against the weight of evidence? This would obviously be one of pitching the case of the Appellants against the Respondents to find out which of the competing claims was more compelling to have swayed the pendulum of the case in its favour. The land in contention with buildings on it is government acquired land by virtue of an executive instrument. The government leased the land to the State Housing Company. The Exhibit “A” of the Appellants show that its lessor is the State Housing Company.

1. 15. This is a finding that was made by the trial Judge that “prima facie the property in dispute was government of Ghana property which was leased to State Housing Company Ltd and who by Exh “A” assigned the residue of their unexpired term in the lease to the Plaintiffs.” At page 82 of the record of appeal is the search results of the ownership of the res litiga from the Lands Commission which affirms the lease of the government to State Housing Company Ltd. Then on the 3rd of July, 2007, there is a lease from the State Housing Company Ltd to the Appellants.

1. 16. It must not be glossed over that before the ownership of the properties were assumed by State Housing Company Ltd, there had

 

been Exh “G” authored by the Chief Director of The Ministry of Works and Housing, that State Housing Company, being the owners of the land should assumes responsibility for the project and to handle all matters regarding the land and occupants as well as encroachment of the land. Exh “G” referred to persons occupying the properties as squatters and reminded the recipient of that letter of the Commission for Human Rights and Administrative Justice (CHRAG) decision that the “squatters” vacate the premises.

1. 17. The claim of any person occupying the properties as a tenant or owner who had bought same was completely rubbished in Exh “G”. Appellants further strengthened their case with the tendering of the land certificate being Exh ‘B’ found at page 86 of the record of appeal. That evidence finds legal anchor under sections 43 of the Land Titled Registration Law, PNDCL 152 (now repealed) but being the relevant law at the time when the transaction was undertaken, as the Land Act, 2020, Act 1036 cannot operate retrospectively by virtue of Article 107 of the Constitution.

The said section 43 of the repealed PNDCL 152, which dealt with the effect of registration states that:

“(1) Subject to subsections (2), (3) and (4) of this section and section 48 of this Law, the rights of a registered proprietor of land whether acquired on first registration or acquired subsequently for valuable consideration or by an order of a Court, shall be indefeasible and shall be held by the proprietor together with all privileges and appurtenances attaching thereto free from all other interests and claims whatsoever.

(2) Any such rights of a proprietor shall be subject to any interests or other encumbrances and conditions, if any, shown in the land register.”

1. 18. Compared to the claim of the Respondents, it should be borne in mind that per the Respondents’ own statement of defence, found at

 

page 54 of the record of appeal, but not what is found at page 194 as an “amended statement of defence”, which I exhaustively deal with infra: One thing that should not be lost on any casual observer is that the gravamen of the defence of the Respondents is rooted in a claim of ownership of the res litiga but not one of adverse possession. From the statement of defence, 1st Respondent posit that he was a former employee of Aprotech Housing Scheme whiles the 2nd Respondent is the customary successor and daughter of one Kojo Amachie, a former worker for Aprotech Housing Scheme. That being former workers of Aprotech Housing Scheme, in consideration of their services, the two together with eighteen other workers, received meagre or minimal monthly allowance and were paid in kind with allocation of houses to those workers, so the Respondents claimed.

1. 19. For the Respondents that is how come, they came to occupy houses Nos A12 and No 10 in pursuance of grant made by Aprotech Housing Scheme in consideration of the sum of C300,000. This is the defence of the Respondents that they are in the houses by virtue of sale to them by Aprotech Housing Scheme. If that is the essence of their defence, then, I had combed the record to find evidence of payments made to Aprotech Housing Scheme as they claimed that 300,000 cedis was paid as consideration. There is none on record. I have combed the record to find evidence of receipts issued to the Respondents and tendered in evidence.

There is none on record. I have combed the record to find evidence of ownership of the properties at any period in time by Aprotech Housing Scheme, the supposed owner, I have found no such evidence on record.

1. 20. From the record, the ownership of the houses as an issue went before Ajet Nasam J, in Suit No E1/03/10 in an action instituled Victor Odiko Nortei & Others v Sate Housing Company & 61 Others. The court found even though Aprotech Housing Scheme was different from

 

Aprotech Housing Co Ltd.

However, one thing is clear whether Aprotech Housing Scheme or Aprotech Housing Co. None of the Aprotech(s) had at any point in time been the owner of the houses that were constructed at Adenta. State Housing Company was adjudged the owner of the land. The attempt to claim that SHC owns the land and another the houses on it seems preposterous due to the principle of quicquid pantatur solo, solo cedit (whatever is affixed to the soil belongs to the soil).

However, one thing is clear that Aprotech Housing Scheme not being the owner of the houses, could not have granted the houses to the Respondents and eighteen other workers.

1. 21. Not being the owner of the land then, ipso facto, Aprotech Housing Scheme could not also be the owner of the houses on it to make any valid transfer to anybody, even if there was evidence to that effect. This principle is so trite in land law as “nemo dat quod non habet.” One cannot grant or give what he does not have. And if the land and the houses were not the property of Aprotech Housing Scheme, which in any way did not have any juristic status, but only a programme of the Ministry of Works and Housing, it had no power or authority to have made a grant to the Respondents. See cases such as Samuel Kakra Mensah v Christopher Kwabla Ligbidi (Unreported) H1/202/201 dated 20/03/2014; Christian Edith v Major Keelson & Othrs, Suit No. J4/11/2010.

1. 22. This court finds much wisdom in the case of Edward Awuku (Subs by Dinah Awuku) v Bryne Kofi Tetteh [2011] 1 SCGLR 366, a case in which the derivative title of the appellant was defective, Ansah JSC reading the judgment of the apex court minced no words in declaring that the appellant had no title to land in the following words:

 

“[A]lso, “Ex nihilo nihili fit” (nothing comes out of nothing). The maxim of old is still good and applies to this appeal. I believe I state the law correctly that where an appellant’s title was derivative, he ought to demonstrate that the predecessor in title held a valid title which he could pass to his grantee, for if the foundation was tainted the superstructure was equally tainted.”

1. 23. Indeed, there is a long line of authorities to that effect that if it was the Osu Mantse that had power to grant Osu lands, then no other person was clothed with capacity to grant same. See Akwei v Awuletey & Others [1960] GLR 231; Odoi v Hammond [1971] GLR 385; Hammond v Odoi [1982-1983] 1 GLR 1215 etc. It is my humble view on this, that the derivative title that the Respondents latched onto had no such power to grant the land and the houses on the land to the Respondents. It is even more startling that by Exh “G” there was a flat denial by the Ministry of Works, that the Respondents together with eighteen others were only squatters. And that is how they were described in Exh “G”.

1. 24. Pitching the claim of the Appellants against the Respondents and being a civil matter, I am impelled by the dictum of the Supreme Court in Fosua & Adu-Poku v Dufie (Decd) & Adu Poku Mensah [2009] SCGLR 310 where the apex court noted as follows:

“It was settled law that documentary evidence should prevail over oral evidence. Thus, where documents supported one party’s case as against the other, the court should consider whether the latter party was truthful but with faulty recollection. The documents tendered by the defendants pointed to a high probability that the house could not have been built in 1955. “Given the high evidenciary potency of documentary evidence in the eyes of the law, the trial Judge should have given cogent reasons for doubting the veracity of exhibit 2, …”

 

1. 25. With nothing by the Respondents to offer before the trial court as proof of their ownership of the property by way of sale to them, it invokes the principle that was rehashed in the case of Klah v Phoenix Insurance Co Ltd [2012] 2 SCGLR 139 that:

“The pleadings of a party would constitute allegation and not evidence. Thus where an averment in a statement of claim has been positively denied, it would be incumbent upon the party asserting those averment to substantiate them by leading evidence in compliance with the cardinal rule of pleadings under Rule 7(1) of Order 11 of the HCCPR, 2004, CI 47, namely that the material facts relied upon by a party for his claim but not the evidence by which those facts were to be proved should be contained in the statement of claim”

1. 26. I find it bizarre the finding of the trial court that in Exh “4” the Respondents together with others were sitting tenants and State Housing Co Ltd was enjoined to have sat with them. I see in the judgment of Victor Odiko Nortei v State Housing Company & 61 Others where John Ajet-Nasam J concludes that:

“I am of the considered opinion that, for now, State Housing Company (SHC) should regularize their occupancy as same have been done. The State Housing Company should as a matter of urgency engage the Ministry of Works and Housing with respect to the properties on their land for the appropriate laws be (sic) put in place as to who should take over the Aprotech Housing Scheme.”

With profound, as far back as 1996, the Ministry of Works has written by way of Exh “G” to State Housing Co to take over the houses with the houses being on their land.

 

1. 27. A judgment of a court is only binding to the effect of its ratio decidendi but not even its obiter dictum. The recommendation of a High Court Judge as to what a State Housing Company should do, is not binding on the latter. It was not an order. It was not a decree but a mere expression of the opinion of the Judge. The finding made by the trial Judge at page 291, being page 16 of the judgment of the court below, that State Housing Company had not even properly been vested with title is not correct. The State Housing Company is the owner of the properties but no other institution.

1. 28. State Housing Company being the entity for which the government compulsorily acquired the land in its favour, it is not correct for the claim to be made that State Housing Company was nor properly vested with title over the Aprotech Housing Units for it to have made a valid grant to the Appellants in 2007. From the record that finding is perverse and I reverse the trial Judge.

1. 29. With the above analysis, it is still necessary to deal with the finding made that Respondents were sitting tenants and had acquired an equitable right over the properties they occupied. And that the Appellants legal title could not overreach the Respondents. In the view of the trial court, at page 292 of the record, if the Appellants had taken time to enquire as to how the Respondents came to be on the land, it would have appeared to the Appellants that the Respondents “were there as a result of an allocation that was made to them after having paid some consideration.”

1. 30. It is true that in law possession is prima facie evidence of ownership. For in Brown v. Quashigah(2003-2004) SCGLR the court stated that:

“Purchasers of land who ignore signs of possession by a party other than their vendor on the land, do so at their own risk’’.

 

And in the case of Gilard v Korang [2013-2014] 1 SCGLR 221 the court expressed the relevance of possession at @234 as follows:

“In the present appeal, the stark fact is that the Plaintiff appellant was in possession of the house just as was the 6th Defendant witness. Now in law, possession is nineteenth of the law and a plaintiff in possession has a good title against the whole world except one with a better title. It is the law that possession is prima facie evidence of the right to ownership and it being good against the whole world except the true owner, he cannot be ousted from it. See Summey v Yohuno [1962] 1 GLR 160; Barko v Mustapha [1964] GLR 78 SC; Adjei v Acquah [1991] 1 GLR 13 SC; Yorkwa

v Duah [1992-93] PT 1 G.B.R 278 CA

1. 31. As by section 48 of the Evidence Act, NRCD 323, a person who exercises ownership of a property is deemed to be the owner, the question for our determination in this suit is whether the Appellants ignored acts of possession or failed to investigate the title of the Respondents. For the trial court has found that if the Appellants had investigated the title of the Respondents, they would have realised that they were there due to an allocation made to the Respondents upon payment of valuable consideration.

1. 32. From the evidence on record, as found supra, the claim that the Respondents were allocated houses by Aprotech Housing Scheme was unproven and without any shred of evidence at all. No amount of investigation done by the Appellants would have proved that Respondents paid a valuable consideration when factually that has not been shown by the Respondents, who put up that story to be so. Receipts as evidence of payment would have been shown. Pay slips during their working days at Aprotech Housing Scheme showing the deductions made towards the payment of the houses would have also been gravely helpful. And with no such valuable consideration, there

 

was no way Appellants would have stumbled upon such a finding. The exhibits on record show that the Aprotech Housing Scheme had no mandate from the Ministry of Works to allocate a house to anybody.

1. 33. In any way, for the trial court to claim that no investigation was done is not borne out by the record of the court. At page 177 of the record of appeal, when 1st Appellant was under cross examination, this is what transpired:

“Q: Did you enquire from them how they got to live on the land

A: Yes, my Lord. I enquired but they are squatters.

Q: I am putting it to you that you did not bother to find out their presence on that land.

A: I bothered. I went to Works and Housing but the letter Works and Housing gave is that they are squatters.”

1. 34. From the exchanges above quoted that 1st Appellant said he went to Ministry of Works and Housing, and had a letter that the Respondents were squatters, is borne by the evidence on record. That cannot be said to be incorrect. There is Exh “G” that shows that the Respondents did not obtain any lease from the Ministry of Works and Housing. Indeed Exh “G” described the sitting occupants as “squatters” in the properties. I reject the finding by the trial Judge that the Appellants did not investigate the presence of the Respondents on the land. They did and found them to be squatters. The fact that a person had been on a land and was in possession did not necessarily mean that he has acquired an indefeasible title to the property. Possession is good against the whole world but not the true owner of the property.

 

1. 35. For this is how the Supreme Court put it in the case of Awulae Attibrukusu III v. Oppong Kofi & Ors [2011] SCGLR 176 that:

“If long possession were enough to found title in their favour, it would mean that whenever anyone took possession of another person’s property and held on to it for a very long time, he becomes the owner of that property. That kind of acquisition of ownership by long possession would lead to chaos. The principle is that long possession is valid and is evidence of title but not against the true owner. Whenever the true owner surfaces, the one in possession should give way to that true owner”.

1. 36. In fact, the question is who is a squatter? Michael Bowen in his work, “What Are Squatters’ Rights? states as follows:

“Trespassing involves entering into a property unlawfully, either a moment or with intention to linger. Squatting is technically a type of trespassing but squatters take it a step further. They have the intention of taking an ownership claim and/or making the property their permanent residency. Oftentimes squatters will take possession of unattended real estates, such as vacant building.”

1. 37. Lord Denning in the English case of McPhail v Persons Unknown (McPahil) [1973] Ch. 447 @ 456 states on squatters as follows:

“What is a squatter? He is one who without any colour of right enters on an unoccupied house or land, intending to stay there as long as he can. He may seek to justify or excuse his conduct. He may say that he was homeless and that this house or land was standing empty, doing nothing.”

 

1. 38. This court speaking through Francis Kusi Appiah JA, in the case of

Sarpong v Danso (2011) 30 GMJ 185 @ 199 defined squatters as:

“[S]quatters are people who occupy abandoned or disused spaces that do not belong to them. In other words, squatters occupy a space without permission.

1. 39. In the case of Amidu v Alawiye [2019-2020] 1 SCGLR 772, Pwamang JSC writing for the majority saw and described squatters as follows:

“The legal definition of a squatter in Black’s Law Dictionary, 8th Edition, 2004 is “A person who settles on property without any legal claim or title.” The difference in law between a squatter and a trespasser is, that whereas a trespasser enters onto a land and claims an interest in it that is inconsistent with the rights of the true owner, a squatter does not claim any interest in the land he is in occupation of. Therefore, possession by a squatter is not adverse to the title of the true owner so a squatter cannot succeed on a defence of limitation.”

1. 40. Though with deep respect, the appreciation of who a squatter is in Amidu v Alawiye seems to be different from how the English Judges sees it, nonetheless, squatters and trespassers are classified in law as adverse claimants to land. It is now trite law that a claim of ownership of land by virtue of purchase or sale or inheritance or gift etc in the same breath is inconsistent with a defence of adverse possession. For one cannot legitimately be on a property for which he is the legal owner and also assert that he is on the land by virtue of long possession. For whether it is a claim of a squatter who has been on the land for long and is asserting adverse possession, then his entrance on the land was not by virtue of being the owner of the land. And as I have found that long possession is good title but not against the true owner of the land.

 

1. 41. This is a fundamental point of departure from the views expressed by my respected colleagues on affirming the decision of the trial court on the bases of adverse possession. I am satisfied that the necessary investigations were conducted by the Appellants as to the presence of the Respondents on the land. It revealed that Aprotech Housing Scheme did not deduct any monies from the Respondents in lieu of sale of houses to them. And that Aprotech Housing Scheme did not even have that capacity to sell the house to the Respondents. The presence of the Respondents was one of being squatters. And the law does not allow a person to claim ownership of land by virtue of purchase and the same time invoke adverse possession. The two are inconsistent.

STATUTE OF LIMITATIONS

1. 42. The final point I wish to make is in respect of the ground of appeal that the trial Judge erred when he held that the Appellants’ action was statute barred.

The trial Judge at page 294 of the record of appeal latched onto a supposed amended statement of defence of the Respondents that the action of the Appellants was statute barred by virtue of section 10 of the Limitations Act, NRCD 54. And in the view of the trial Judge, even if the claim of ownership made by the Respondents could not be sustained, the defence of having been on the land for more than twelve years was an iron clad defence that should operate against the Appellants and their successors in title, State Housing Com Ltd.

1. 43. I reckon the statement of defence that the trial Judge was referring to was a purported “amended statement of defence pursuant to leave of court dated the 10th June, 2021” and which was filed on the 23rd of June, 2021. At page 187 of the record of appeal, is the Order for leave

 

granted the Respondents to amend the statement of defence. The Order of the court below was granted on the 10th of June, 2021. And it stated as follows:

“IT IS HEREBY ORDERED that the defendants are granted leave to amend their statement of defence within seven (7) days from today. The suit is adjourned to 16th and 21st of June, 2021 at 11:00am daily for continuation.”

1. 44. The seven (7) days granted by the trial court for the statement of defence to be amended expired on the 18th of June, 2021. Without any further leave by the trial court for extension of time, I do not think, that the amended statement of defence filed on the 23rd of June, 2021, was proper and regular. When a court has granted leave for amendment to be effected to a writ or a pleading, a party must file the pursuant process within the time set by the court or extended by the court.

Where no specific time was stated for the amended process to be filed, then within a period of fourteen (14) days. If not done, the order of the court becomes automatically void. This is made clear by the reading of Order 16 Rule 8(1) of the High Court (Civil Procedure) Rules, 2004, C. I. 47 which states that:

“Failure to amend after order.

Where the Court makes an order giving a party leave to amend a writ, pleading or other document, then, if that party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in the order or, if no period is so specified, within fourteen days after the order is made, the order shall cease to have effect but without prejudice to the power of the Court to extend the period.”

 

1. 45. Where the amendment was effected but not within the time period fixed by the court or at the leisure of the party, the courts have insisted that the amendment effected is as bad as not having complied with the order and the amendment effected is ipso facto void. The case of Ayiwah & Another v Badu & Others [1963] GLR 86 is to that effect. The court noted when the amendment was not effected within the time specified by the court that:

“[T]he leave to amend the writ and statement of claim ipso facto became void upon the plaintiffs’ failure to take steps to implement it. Leave may operate to bring into existence an effective amendment if the amendment is ordered by the court proprio motu but it is still advisable for counsel in whose favour it has been granted, to enquire about and if necessary see to its implementation.”

1. 46. See also Bonney & Others (No 1) v Ghana Ports and Harbours Authority (No 1) [2013-2014] 1 SCGLR 436; Agbesi v Ghana Ports

and Harbours Authority [2007-2008] 1 SCGLR 469. The reference to paragraph 15 of an amended statement of defence that was filed out of time, and more so when the trial Judge had not extended time for the Respondents, I rule was perverse and uncalled for.

I set aside all the findings on statute of limitation that the trial Judge sought to anchor his judgment that both the Appellants and State Housing Com Ltd were caught, as untenable. The statement of defence that can be relied on in the suit is the one found at page 54 of the record of appeal. There is nowhere in that statement of defence that the Respondents pleaded statute of limitations.

1. 47. The law is well-settled, that the defences of acquiescence, lashes and statute of limitation are to be specifically pleaded. See Amidu v Alawiye supra, Dolphine (No.3) v Speedline Stevedooring Co. Ltd [1996-97] SCGLR  514.

 

For Order 11 Rule of the High Court (Civil Procedure) Rules, 2004, C. I.

47 clearly also requires such a defence to be pleaded. It states as follows:

“Matters to be specifically pleaded

8. (1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality

(a) which the party alleges makes any claim or defence of the opposite party not maintainable; or

(b) which, if not specifically pleaded, might take the opposite party by surprise; or

(c) which raises issues of fact not arising out of the preceding pleading.

(2) Without prejudice to sub rule (1), a defendant to an action for possession of immovable property shall plead specifically every ground of defence on which the defendant relies, and a plea that the defendant is in possession of the immovable property in person or by a tenant shall not be sufficient.”

1. 48. I am satisfied that the statute of limitations not having been pleaded in the statement of defence of the Respondents and the amended statement of defence effected out of the period allowed by the court, the court could not have relied on the amendment without any extension of time. Granted arguido, that the filing of the amended statement of defence beyond the period granted by the trial court was remediable by the saving grace of Order 81 of C. I 47, the fundamental position I have maintained still holds: that the Respondents having hinged their defence of being entitled to the res litiga by virtue of sale to them as owners, they cannot in the same breath latch onto the defences of statute of limitations, laches and acquiescence as legitimate defences. As maintenance of a claim of ownership by virtue of sale is completely incompatible with a defence of adverse possession. This is the kernel of the point of departure from the position of my learned brethren but not

 

necessarily on the superficial and technical ground of whether or not a statement of defence filed out of time should be admitted or rejected.

CONCLUSION

1. 49. On the totality of the evidence adduced at the trial, I agree that the judgment delivered by the trial court in favour of the Respondents was against the weight of evidence. If the trial court had meticulously attended to the evidence on record, it would have been made clear to him, that long possession as well as the statute of limitations that he relied on to ground his affirmation of the title of the Respondents could not have availed the Respondents. I reverse the trial court and enter judgment in favour of the Appellants and decree title in their favour. The order for perpetual injunction is also granted. With the grant of an order of possession, I find it superfluous to grant a separate order for demolition. Upon taking possession, Appellants are at liberty to determine the fate of all unauthorised structures on their land and need no separate order.