F.G.KORBIEH, J.A.

The following is a summary of the facts of the case leading to this appeal. The plaintiff/appellant (hereinafter simply referred to as the plaintiff) sued the defendant/respondent (hereinafter simply referred to as the defendant) in the Land Division of the High Court, Accra through his lawful attorney claiming the following reliefs: 1. Declaration of title to land situate at Adentan with Registration No. 397/1979 the subject matter of the suit; 2. An order for repossession; 3. Perpetual injunction against the defendant from entering or dealing with the land in any form; 4. Demolition of unauthorized structures put up by the defendant on the land and disposal of the waste at her expense; 5. General damages and 6. Costs. In a schedule the plaintiff described in detail the boundaries of the land in dispute. In the accompanying amended statement of claim, he averred, among other things, as follows: that the defendant is a trespasser who encroached on the plaintiff’s land during his absence and has put up illegal structures which she occupies without any reference to the plaintiff; that the plaintiff acquired two plots of land from the family of Nee Adjei Kpeen II of La, Accra in December 1976 and has been in possession as lawful owner; that an indenture dated 5^th December, 1976 and executed by the grantors as vendors on the 18^th January, 1979 was issued to him as purchaser of the land; that he fixed pillars to demarcate the land before he travelled out of the country; that in 1987 one Mante and later one Senyo Yaw Pongo challenged him over the ownership of the land and in 1991 the Zonal Secretariat of the Committee for the Defence of the Revolution (CDR) completed investigations into the matter and its findings are in a report. The writ and statement of claim were initially served on the defendant by substituted service and upon receipt of which she filed a statement of defence which she subsequently amended in which she denied most of the material averments of facts made by the plaintiff. She in turn averred as follows: that she is the lawful owner in possession of the land in dispute; that she commenced the development of the land in January 1993 and completed same in May, 1999 without challenge from any quarters and that the plaintiff’s action is statute barred by virtue of section 10 of the Limitations Act, 1972 (NRCD 54); that she acquired the land in December, 1991 from Gabriel Amankwa by an indenture stamped as LVB 9341/93 which she registered and has been issued with Land Certificate No. GA 17320; that her grantor had acquired his title from Joseph Yaw Pongo who had in turn acquired his title from Nee Adjei Kplene II and Afototse Onukpa, Joint Heads and Lawful Representatives of the Agbawe Family of Labadi; that she was not party to whatever took place at the CDR office and the report from that office was inadmissible against her. In his reply the plaintiff joined issue with the defendant on his defence. He denied that his action was statute barred and averred that the decision of the CDR was binding on the defendant because at the material time the CDR exercised judicial power.

The case went to trial on the basis of nine original and four additional issues that had been set down for trial. The first person to testify was the surveyor called by the court itself. He tendered in evidence exhibit CE1. Thereafter the plaintiff and his witness (PW1) testified. The testimony of the defendant’s attorney ended the trial of the case. The learned trial judge gave his judgment on the 1/2/2016 in favour of the defendant. It is that judgment that the plaintiff has appealed against on the following grounds:

(a) The judgment is against the weight of the evidence.

(b) The trial judge was in grave error when he failed or refused to consider in his judgment the superimposition, exhibit CE1; that failure or refusal to consider exhibit CE1 disabled him to properly evaluate and focus on the most important issues namely:

(i) Whether or not the parties were fighting over the same piece of land…

(ii) If not was it worthy of the judge to consider all matters like the acquisition of land and registration of land and possession of land or the defendant’s inability to show a prima facie case that he has any document to support her case covering the disputed area.

(iii) Limitation will not properly apply here the defendant being an outright trespasser.

(c) Additional grounds of appeal will be filed when the record of appeal is received.

The reliefs sought from this Court are to set aside the judgment of the trial high court and all consequential orders therein, to enter judgment for the plaintiff and to make such other orders that this Court considers justified. I want to state straightaway for the record that no additional grounds of appeal have been or were ever filed.

I will now go on to consider the arguments of counsel for the two sides for and against the appeal. Counsel for the appellant put the Court on notice that he intended to argue grounds (a) and (b) “together as they relate to the main evidence and the assessment of that by the Judge.” Counsel then started his submissions by considering exhibit CE1, the Surveyor’s Report, which he claimed the trial judge had ignored thereby disabling himself from focusing on the important issues of the case. Counsel went on to point out certain pieces of evidence, which according to him, if the trial judge had taken into account, should have turned the case in favour of the plaintiff. He however first cited the case of Amuzu v. Oklikah [1998-99] SCGLR 141 and others and argued that prior registration did not by itself defeat the title of the plaintiff. Counsel also argued that the defendant’s predecessors in title were not innocent third parties without notice as it was Joseph Senyo Yaw Pongo who had sent the case concerning that very land to the Zonal Secretariat of the CDR and the CDR had declared the plaintiff owner of the land. That being the case, counsel continued, the defendant could not resile from the decision of the CDR. Counsel again took the learned trial judge to task for not giving due weight to the composite plan (exhibit CE1) tendered by the Court Witness. Counsel’s beef was that the trial judge merely relied on the respective dates of registration of the title deeds of the parties instead of dates of grant of the land. At this point learned counsel proceeded to engage in “surmising” and reached the conclusion that the defendant might have possibly backdated the registration date of her document. The response of learned counsel for the respondent to all these arguments did not follow the same pattern as that of his learned friend and may be summarized as follows: (i) He restated Ground 2(b)(i) and then argued as follows: It is clear from the judgment that contrary to the assertion of counsel for the plaintiff, the trial court found as a fact that the parties were ad idem that it is the same piece of land litigated upon at the CDR which is the subject matter of this dispute. (ii) He again restated Ground 2(b)(ii) and then argued that in so far as the parties were litigating over the same piece of land, issues of acquisition, possession and registration of documents were germane to the determination of the claims of declaration of title and recovery of possession. He submitted that the ground must fail. (iii) Counsel argued that in so far as the defendant had pleaded the Limitation Act in her pleadings and the trial court found evidence in support of that pleading, the trial court was right in law to apply the Limitation Act, even if the defendant had been a squatter, to find for the defendant. Counsel therefore submitted that the appeal must be dismissed as having no merit.

I will start my own assessment of the appeal by pointing out that even though I did not myself set down the issues for trial in extenso in this judgment, the learned trial judge more or less did so by combining issues that were related and dealing with them together under three thematic areas. Thus he combined issues (a), (b) and (e) of the original and issues (a), and (c) of the additional issues and dealt with them under acquisition. He also combined issues (c) with (f) of the original issues and dealt with them under possession and then he combined issues (c), (d) (f) and (g) of the original issues as well as additional issues (b) and (c) and dealt with them under identity of the land. (See page 137 of the ROA). It is trite law that a trial court must determine the case before it according to the issues arising from the pleadings. The suggestion by counsel for the plaintiff therefore that the trial judge should have tried this case according to a different set of criteria, such as those the issues he tabulated under ground (b) of his grounds of appeal, is a novelty, to say the least. Even then, as pointed out by learned counsel for the defendant, the learned trial judge did consider all the issues tabulated by counsel for the plaintiff. I will come to that matter shortly.

The plaintiff’s first ground of appeal is the omnibus ground that the judgment is against the weight of the evidence. It must be borne in mind that numerous decided cases have laid down the principle that an appellant who has put down this ground as the sole or one of his/her grounds of appeal has the legal burden to point out the weakness(es) in the judgment complained about. Maybe the locus classicus for this ground of appeal is the case of Djin v. Musa Baako [2007-2008] 1 SCGLR 686 where the Supreme Court made it clear that:

Where an appellant complained that a judgment was against the weight of evidence, he was implying that there 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 were wrongly applied against him. The onus was on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment appealed against.

See also the case of Tonado Enterprises & Others v. Chou Sen Lin [2007-2008] SCGLR

I must say counsel for the plaintiff made quite some valiant efforts to discharge the legal burden expected of his client. Whether he succeeded or failed remains to be seen. In the same vein counsel for the defendant was equally valiant in resisting the attempts of his leaned friend to turn the tables on his client. The result of his industry will also be seen at the end of the judgment. Be that as it may. One has to go back to the record of appeal and specifically to the judgment sought to be impugned to see whether indeed there is any justification for overturning it as prayed. Looking at that judgment, it is obvious that the learned trial judge reviewed all the evidence relating to the acquisition of the land by the two sides respectively and came to the conclusion, correctly, in my view, that the defendant had a better title to the land than the plaintiff. To that end the trial judge looked at exhibits A, 2 and 3 belonging to the plaintiff and defendant respectively and found that whereas the plaintiff’s indenture was dated 5/12/1976, it was executed on the 18/1/1979. This was an anomaly that needed clarification and only the plaintiff or his grantor could proffer that explanation. On the other hand the defendant’s indenture was dated December, 1977. The matter of the date of execution of the plaintiff’s indenture as against the date of the grant of the land to him had became an issue during the trial but the plaintiff made no effort to adduce the necessary evidence to convince the trial court why it should accept the earlier, rather than the later, date. In the two cases of Majolagbe v. Larbi Ors [1959] GLR 59 and Zabrama v. Segbedzi [1991] 2 GLR 221 the principle was well established that a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true and he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden. As observed by the trial judge the plaintiff failed to adduce evidence to explain how an indenture with an effective date of 5/12/1976 was executed on the 18/1/1979, three years later. The learned trial judge therefore made a finding that the grant made to Yaw Pongo in 1977 was earlier in time than the grant made to the plaintiff which was in 1979. The defendant traced his root of title to the afore-mentioned Yaw Pongo. I cannot fault the learned trial judge in reaching the conclusion that the defendant’s indenture was earlier in time than that of the plaintiff and hence the defendant had a better title than the plaintiff in terms of the acquisition of the land in dispute.

The learned trial judge next considered the thematic issue of identity of the land the subject matter of the dispute. He started by restating the legal principle that in an action for declaration of title to land, the plaintiff cannot succeed unless he can positively establish the identity of the land. I could not agree with him more. In the case of Anane and Others v. Donkor and Another [1965] GLR 188 the Supreme Court held as follows:

a claim for declaration of title or an order for injunction must always fail, if the plaintiff fails to establish positively the identity of the land claimed with the land the subject-matter of his suit.

The trial court found out from exhibit CE1, the composite plan tendered by the Court Expert, that the plaintiff’s land comprised of 75% of the land in dispute and the defendant’s land was about a plot away. He nevertheless found that the parties were ad idem about the identity of the land that they had litigated over at the CDR Secretariat. He therefore went on to determine the thematic issue of the possession of the land. Again he started by restating the legal maxim that a person is presumed to own the things he possesses. Section 48(1) and (2) of the Evidence Act, 1975 (NRCD 323) read as follows:

“(1) The things which a person possesses are presumed to be owned by that person.

(2) A person who exercises acts of ownership over property is presumed to be the owner of it.”

The evidence on record that the defendant was in possession of the land in dispute is too overwhelming to admit of any controversy. Counsel for the plaintiff tried very hard to point to evidence that the plaintiff had also been on the land at a point in time but his effort was simply not sufficient to dent the load of evidence stacked against the plaintiff. As pointed out by the trial judge on page 141 of ROA, even the plaintiff himself could not help matters. This is part of the judgment on page 141.

“Under cross-examination, the following transpired between the Plaintiff and the Defendant’s counsel:

‘Q: Neither you nor your elder brother did any construction on the land?

A. I cannot answer yes or no. We brought sand and stone there when we were doing the construction. Mr. Pongo sent the matter to the CDR.’”

From the totality of the evidence on the record, the plaintiff cannot in good conscience claim that he was ever in possession of the land in dispute save perhaps at the very early stages of his acquisition of the land. The question to ask is: Should that be enough justification to throw out the defendant who has been in possession of the land for 17 or 18 years?

The question is particularly relevant in view of the fact that the defendant pleaded the Limitation Act, 1972 (NRCD 54). In any case the allegation by counsel for the plaintiff that the trial judge did not consider exhibit CE1 has been given the lie by what I have just said. The trial judge did give serious consideration to exhibit CE1 and it was on the basis of that consideration that he arrived at the conclusion that the defendant’s land certificate was irrelevant for the determination of the case before the court but that nonetheless the parties were ad idem on the identity of the land in dispute. He backed all of these findings with evidence from the record. Hence the criticisms of counsel for the plaintiff in respect of ground 2 of the grounds of appeal are completely unfounded. I would therefore dismiss grounds 1 and 2 of the plaintiff’s grounds of appeal.

I will now come to the last ground of appeal. It reads as follows: “Limitation will not properly apply here the defendant being an outright trespasser.” The original formulation of this ground of appeal makes it look like it is a sub-set of ground (b) of the plaintiff’s grounds of appeal but both grammatically and conceptually it cannot fit into ground (b) as a sub-set. So I have decided to treat it as a separate and complete ground of appeal on its own. The trial judge pointed out that the defendant had pleaded that she would be relying on section 10 of the Limitation Act, 1972 (NRCD 54) to argue that the plaintiff’s action was statute-barred. She went on to say that the evidence on record supported the operation of the statute of limitations. She contended that the plaintiff and his agent abandoned the plot from 1991 until 2011 when he took the action. As opposed to the position of the plaintiff, the court accepted as the truth, the defendant’s attorney’s version that the defendant commenced development of the land in 1993 and completed it in 1999 without any challenge from anyone. Using both legal and equitable principles therefore, the trial judge held that the plaintiff’s title, if he had any at all, had been extinguished by the effluxion of time. The learned trial judge cannot be faulted on this score. Between 1991 and 2011 is a period of 18 years. Section 10(1) and (6) of NRCD provide as follows:

(1) 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.

(6) On the expiration of the period fixed by this Decree for any person to bring an action to recover land, the title of the person to the land shall be extinguished.

Given the evidence on record, there can be doubt that the plaintiff’s title in the land in dispute became extinguished long before he even commenced his action in court. It was contended by counsel for the plaintiff that the defendant being a trespasser, limitation could not come to her assistance. To buttress his point counsel cited the case of Kangberee v. Mohammed 2011 GMJ (Incomplete citation) (where the coram is given only as Justice Kanyoke JA) who is supposed to have said that:

“It must be noted that a trespasser cannot acquire a lawful title or interest in the land that he has unlawfully trespassed upon by his long occupation and development of the land.”

Even though I have to thread gingerly on whatever I have to say on this case (especially that the decision of Kanyoke, JA et al was confirmed on appeal by the Supreme Court – see the case of Kangberee v. Mohammed [2012] 51 GMJ 173 - I make bold to say that my learned brother made this particular statement per incuriam. I say so because going by the provision of section 10(6) of the Limitation Act, 1972 (NRCD 54) if a person’s title in a land is extinguished, then a trespasser who is in possession of that land can hold it against the whole world including that person himself or herself. In any case there are decided cases that clearly over-rule the statement made by Kanyoke JA in Kangberee v. Mohammed (supra). One is a case cited by counsel for the defendant. It is the case of Klu v. Konadu Apraku [2009] SCGLR 741 where the Supreme Court held that:

“The adverse possession of the said land by the plaintiff for up to and even over twelve years conferred on him possessory title by reason of the provisions of section 10 of the Limitation Act, 1972 (NRCD 54) Such acquisition of title would prevail even against registered proprietor of land under section 18(1) and (2) of the Land Title Registration Act, 1986 (PNDC 156).”

Even though the Supreme Court did not specifically mention trespasser, it is my respectful submission that the “adverse possession” here includes “adverse possession” by a trespasser. This is because, as argued earlier, after twelve years, the title of the original owner is extinguished by operation of law. So whoever is in adverse possession of the land for at least twelve years, even if the person is a trespasser, acquires it by virtue of the provisions under section 10 of NRCD 54.

Following from the above, it is manifestly clear that the Limitation Act is very much applicable here and that the plaintiff has been caught squarely by its provisions; his title in the land in dispute has been extinguished and he has no interest in the land in dispute to fight over. The last ground of appeal also fails and is therefore dismissed.

The appeal therefore fails in its entirety and is hereby dismissed as being without merit.

SGD.

F.G. KORBIEH

(JUSTICE OF APPEAL)

                                                                          SGD.

LOVELACE JOHNSON, J.A.           I AGREE         A. LOVELACE JOHNSON(MISS)

                                                                              (JUSTICE OF APPEAL)

                                                                           SGD.

SOWAH (MRS), J.A. I ALSO AGREE         C. H. SOWAH (MRS)

                                                                                 (JUSTICE OF APPEAL)