GYAESAYOR, JA

The defendant/appellant in this appeal is seeking to reverse the judgment of the High Court dated 25th day of April 2012. That judgment granted ownership of the disputed land to the plaintiff/respondent. The defendant/appellant on 2nd May 2012 filed the notice of appeal to challenge the decision of the High Court. Before I deal with the grounds of appeal I intend to give a brief history of the case which culminated in this appeal.

It is the case of the plaintiff/respondent that he became the owner of the disputed land at Tantra hills as a result of a gift to him by one Madam Mary Prempeh sometime in 1980. By his statement of claim, he averred that his grantor also got the land as a gift from Dr. Charles Elias Reindorf, the then head and lawful representative of the Onamrokor Adain family. The plaintiff claimed to have erected corner pillars and dug foundation for the construction work on the land.

In recent times according to the plaintiff, the defendant who claimed to have acquired title to the same piece of land from the Onamrokor family, had constructed a fence wall and attempting to build a residential facility. Subsequently, the statement of claim was amended with leave of the court and this was filed on 20th June 2011.

The amended statement of defence was filed on 23rd April 2011. The defendant denied every material allegation by the plaintiff and said the land is a subject of a lease between him and Nii Quarshie Solomon acting head and lawful representative of the Onamrokor Adain family of Accra for a period of 99 years.

After acquiring the land, he went into possession by erecting a fence wall around the perimeter of the land. He then put up a dwelling house on one of the plots and a structure on the second plot, put in a caretaker and allowed him to farm on it. It was bare land when he acquired it.

The defendant further averred that he was on the land from 1988 and it was not until April 2009 when plaintiff/respondent started laying claim to the land. The defendant denied receiving any letter from plaintiff’s lawyer in 2009 because he was at all material times in the USA. He then proceeded to plead the limitation decree NRCD 54 of 1972.

After taking evidence, the trial court gave its judgment. I found no evidence on record that a fresh application for directions was filed and neither do I find evidence that a reply was filed to the amended statement of defence filed by the appellant. The notice of appeal can be found at page 146 of the ROA.

Grounds of Appeal

i. The learned trial judge’s finding that the land being claimed by the plaintiff was in a different location from that of the defendant was inconsistent with the plaintiffs own admission that the land subject matter of dispute between the parties was the same.

ii. In view of the uncontroverted evidence before the court that the land subject matter of dispute was compulsorily acquired by the government under the State Lands (Olympic Sports Complex) Instrument 1975 (E.I.61) and therefore state land, the learned trial judge erred in law in granting the plaintiff declaration of title to state land.

iii. Having regard to the fact that the plaintiff did not dispute that the defendant had been in adverse possession of the land for over twenty years the learned judge erred in not dismissing the plaintiff’s claim as statute barred under Section 10 of the Limitations Act (NRCD 54).

iv. The award of damages to the plaintiff is not supportable by law and the evidence on record.

v. The judgment is against the weight of the evidence on record.

vi. Further grounds of appeal to be filed upon receipt of the record of appeal.

In this appeal, the defendant/appellant has the burden to show that the trial court erred in taking into account irrelevant matters or ignored relevant matter or acted without due regard to the facts and the law. This is so where in ground 3(v) in the notice of appeal the appellant is alleging that the judgment is against the weight of evidence.

This proposition has received support in the case of Djin vrs Baako [2007-2008] SCGLR 686; where it was held that:

“Where (as in the instant case) 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 in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapse in the judgment being appealed against”.

See also Tuakwa vrs. Bosom [2001-2002] SCGLR 61:

“An appeal is by way of rehearing, 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… 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 it arrives at its decision, as to satisfy itself that on a balance of probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence”.

In this appeal therefore the defendant/appellant must satisfy the court that the verdict could have been different if the matters complained of were properly applied to his case. In the first place, the striking issue which ought to have been considered and which stood out clearly for determination was the issue of capacity.

A search report marked as exhibit 2 and found at page 208 of the ROA shows that the land is State land by a compulsory acquisition by the State in 1975. The search reports reads:

“The land edged red on the plan attached has been made with the following result;

1. The site affects:

State land acquired under executive instrument dated 23rd April 1975 for National Sports Complex”.

Indeed E.I.61 of 1975 compulsorily acquired and vested the land in the State. The effect of the compulsory acquisition as rightly submitted by counsel for the appellant is that the rights and title of the original owners had been extinguished and they ceased to be owners of the land. At Page 104 of the ROA, the plaintiff respondent was asked the following question;

By this admission, the plaintiff, had admitted that he lacked the requisite capacity to sue because he is not the owner of the land. The effect of compulsory acquisition by the State pursuant to the State Lands Act, 1962 is to vest the allodial title and all other subordinate titles and interest and that includes the customary free hold, in the State free from all encumbrances whatsoever”. See page 21 of Ghana Land Law and Conveyancing 2nd Edition by B. J. DA Rocha and C. H. Lodo. In the case of Asante Appiah vrs. Amponsah [2009] SCGLR 90, the Supreme Court held that “where the capacity of a person to sue is challenged he has to establish it before he can be heard”. Indeed before a case is heard on its merits the issue of capacity which can be raised at anytime even on appeal as has been done in this case ought first to be determined. It is clear that the learned trial judge did not comment on the capacity of the plaintiff/respondent and the effect of the compulsory acquisition although this came to his notice during the trial.

The grant made to the plaintiff by the said Mary Prempeh was in 1980 while the land was compulsorily acquired in 1975. The compulsory acquisition was done before the said gift was made to the plaintiff/respondent. At the time the gift was made to plaintiff/respondent, the land was not vested in the said Mary Prempeh for her to make a valid gift to the plaintiff/respondent. Any such gift if made was null and void. It is trite knowledge in law that a person cannot give out what he/she does not have. This is expressed in latin as nemo dat quod non habet or the nemo dat rule.

See also

(i) Fosua & Adu Poku vrs Dufie (decd) Adu Poku Mensah [2009] SCGLR 310,

(ii) Sarkodie I vrs Boateng II [1982/3] 1 GLR 715,

(iii) Akrong vrs Bulley [1965] GLR 469 SC,

All these authorities point out clearly that where a party lacked capacity to sue, it renders the writ and subsequent proceedings thereon null and void. Clearly then, the learned trial judge in failing to take into account these vital issue of want of capacity had erred for if he had done so he would have arrived at the decision that the plaintiff/respondent did not have the capacity to bring the action and therefore provides justification for inference by the Appellate Court for an appellate court would not interfere with the findings of a trial unless there are very compelling reasons for doing so.

The Supreme Court in the case of Amoah vrs Lokko and Alfred Quartey [2011] SCGLR 505 laid down the principles upon which an appellate court would interfere in the findings of a court below; when it held that the appellate court can only interfere with the findings of the trial court if they are wrong because (a) The court had taken into account matters which were irrelevant in law (b) the court had excluded matters critically necessary for consideration (c) the court had come to a conclusion which no court properly instructing itself would have reached and (d) the court findings were not proper inference drawn from the facts.

It is also true that the defendant pleaded the statute of limitation. S.10 of the Limitation Decree NRCD 54 provides that “no action shall be brought to recover any 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 some person through whom he claims, to that person”.

As we have already said the plaintiff did not have any valid gift from Madam Prempeh and has never had a cause of action vested in him to sue. He has never been the owner. Assuming without admitting that the land belonged to him, it was not until 2009 that he issued the writ even though the defendant/appellant had been in occupation from 1980. The defendant/appellant erected a fence wall and put up a house without any challenge from the plaintiff respondent. When asked in cross examination where he was during all these while, he said he was around.

He did not produce any evidence to show that he had been in occupation and that he had corner pillars broken by the defendant appellant. Flowing from the answer he gave about his where about, it is obvious that the plaintiffs/respondent was not being candid with the court. A plaintiff must at all times rely on the strength of his own case before he can proceed to rely on the weakness of his opponent’s case. He cannot be heard to say that the defendant also acquired the land in 1980 so he the plaintiff had a better title especially in a case like this when the defendant filed no counter claim and had nothing to prove. In Jass Co Ltd vrs Appau 2009 SCGLR page 268. The Supreme Court held that “the 1st plaintiff in our considered opinion failed to lead that kind of evidence to satisfy the trial court that on its own strength and not on the weakness of the opponent’s case it has been able to make out a case sufficient to convince the court on a balance of probabilities”

Indeed in E.1.3 of 2000, government realising that there has been extensive development on the land on humanitarian and social grounds gave liberty to those who have built thereon to regularize their presence there through the lands commission.

E.I.3 provides “whereas Government realizes that there has been extensive development of the area for residential purposes and on social and humanitarian grounds considers that the land be used for residential purposes instead of the Olympic Sports Complex and titles of all holders regularized as land leased to them by Government subject to the payment of such penalties as the lands commission may determine”

Clearly the owner of the land i.e. the State on compassionate grounds had allowed persons who have developed their areas of occupation to regularize their stay. There is abundant evidence on record that the appellant has a building with tenants while the plaintiff has no development on the land. It is not true to say government reacquired the land in 2000 since the ownership of the land had since 1975 been vested in the state having divested the title of Onamrokor Adain family as owners of the land and consequently the purported gift from Madam Prempeh to plaintiff/respondent was infact no gift. She had nothing to give since capacity is fundamental and must be proved before the case is heard on its merit. See Asante Appiah vrs Amponsah (supra) where it was held that “The failure of the plaintiff to establish the capacity in which the action was prosecuted was sufficient basis on which to dismiss the plaintiff’s claims. Put differently, even before considering the merits of the case, want of capacity alone was sufficient for the plaintiff to have lost the case.”

In the matter now before us, the title to the land has been put beyond doubt by E.I.61 of 23rd April 1975 and E.I.3 of 2000 and this court cannot circumvent it by pretending not to have seen it.

Since the plaintiff/respondent did not have title and for that matter lacked the requisite capacity to sue, the writ and subsequent proceedings thereon are all a nullity. The trial judge erred in decreeing title of the disputed land in plaintiff/respondent when he infact acquired nothing by way of a gift since his grantor had nothing to give out and his prayer as endorsed on his writ ought to have been refused. In the circumstances, this court finds that the appeal has merit and must be allowed. Accordingly the appeal is allowed and the judgment of the High Court dated 25th day of April 2012 together with all consequential orders made are hereby set aside.

sgd

P. K. GYAESAYOR

(JUSTICE OF APPEAL)

sgd

ACQUAYE, JA          I agree                                K. A. ACQUAYE

(JUSTICE OF APPEAL)

sgd

DZAMEFE, JA,          I also agree                        SENYO DZAMEFE

(JUSTICE OF APPEAL)