ACCRA - A.D 2017
ROLAND KOFI DWAMENA - (Plaintiff/Appellant)

DATE:  1ST JUNE, 2017
SUIT NO:  HI/16/2017


Plaintiff claims against the defendant a declaration of title to land he described as follows:

“a. A declaration of title to all that piece or parcel of land with building thereon containing an approximate area of 0.35 acre (o.14 hectare) situate at Osu-Accra and bounded on the North-East by a road measuring 187.4 feet more or less on the North-West by stool land measuring 96.8 feet more or less on the South-East by Osu stool land measuring 192.9 and 71.3 feet more or less respectively or and on the South-East by Osu stool land measuring 70.6 feet and 30.9 feet more or less which piece or parcel of land is more particularly described in Lease document dated 20th November2009 indexed at the Lands Commission as No. AR 1206/2010 and being processed on Lands Commission file No. 32000/243/2010.

b. An order directed at the Regional Lands Officer to delete from its records any transactions in the names of 1st and 2nd Defendants to enable the Lands Commission process his document currently pending with the Lands Commission”.


Before I proceed let me straighten up the records on the parties in this suit. The original defendants were Edward Kabu Otoo and Richard Nortey Otoo as 1st defendant and 2nd defendants respectively. The plaintiff who sued them did not know that Edward Kabu Otto had died as far back as 1944. When this came to the knowledge of the court he was struck out as a party and Richard Nortey Otoo became the 1st defendant.


The case of the plaintiff. He claims he bought the disputed land from the Osu stool in 1983 and started building thereon the same year. He is firm in his evidence that when he bought the land the grantors asked him to build while they prepared for him the deed of conveyance. He built 4 bed room house on the land and has been in occupation since 1983. The stool gave him the indenture in 2009. It was subsequently when he sought to register the land that it was brought to his attention that the land was registered in the name of Edward Kabu, the 1st defendant’s father as far back as 1940. From 1983 when he built the house to the date he visited the Lands Commission and sought to register the land, plaintiff admitted, was about 20 years. It was clear in his evidence that it was when he went to the Lands omission to register the land that he was confronted with the name of Edward Kabu Otoo as proprietor of this land. As to the state of the land before he bought and built on it plaintiff maintained that it was bare land. He did not know and never met the defendants until he caused a publication of the writ of summons and statement of claim to be served on them by a courts order by substituted service. This publication was made on the 30th of August 2012.


He called James Buckman who testified that he is a draughtsman and was the one who supervised the building of plaintiff’s land till completion. He did this in 1983 when the land was bare. There was no refuse dump on the land and he did not see a trotro station also on this land as contended by the 1st defendant.


The defendant’s case: That the land was registered in the name of Kabu Otoo, his grandfather in 1940 after he had acquired it from the Osu stool in 1939. According to the 1st defendant, Richard Otoo, he started registration of this land which was bare in 1992, in response to the Land Title Registration Law and currently he has a yellow card indicating he is indeed processing the registration of the land to acquire a Title Certificate. It was his father who sold the eastern side of the land to the Gyan family of Akropong. The adjoining land was occupied by his relatives. He testified that this disputed land was being used as a dumping ground and later was used by commercial drivers as their station. He was very firm in his denial therefore that the plaintiff had any land on the disputed plot as at 1983. The only period he was away from Osu was after he retired from the Bank of Ghana and had to go to the Brong Ahafo region to farm and this was in 2006 but he returned in 2009. And it was then that he saw building being constructed on the land. How come he did not know of any construction on the land when he had relatives abutting the land, 1st defendant said the relatives said they thought he had sold the land. The workers on the site will also not tell him who was building he had to wait since he knew the person will surface.


1st defendant called a Jordan Anang who was then a chairman of the GPRTU as witness to the fact that as at 1985 the land was being used as a station. This witness ended his evidence that he did not know the land the parties were fighting over.


The foregoing formed the substance of the case at the trial court. 1st defendant also counterclaimed:


“ i. Recovery of possession of all that piece or parcel of land situate lying and being at X’tansborg, Accra containing an approximate area of Zero point thirty seven(0.37) acre bounded on the North-East by a road called 10th Lane measuring one hundred and seventy five (175.00”) feet more or less on the South-East by the Djan’s property measuring seventy(70.00”) feet more or less twenty-five (25.00”) feet more or less on the South-West by T.A Kotey’s property measuring Ninety-five(95.00”) feet more or less.

ii. General damages for trespass

iii. Perpetual injunction restraining the Plaintiff his servants, agents, workmen, personal representatives and/or assigns interfering with 2nd defendant’s enjoyment of the property referred to in (I) supra”.


Since the Osu Stool had granted this plot earlier to plaintiff’s grandfather the trial judge found the subsequent grant of the same land to the plaintiff as ineffectual on the principle of nemo dat quod non habet relying on the authority of Brown vrs Quarshigah (2003-2004) 2SCGLR 930. So whether he got the land in 1983 or 2009 his purchase was ineffectual. The trial judge will also not accept any contention of the plaintiff that he did not know the land had a proprietor at the time he got unto the land and started construction because if he had searched he would have known of the defendant’s interest. For the plaintiff to have made the search 20 years after the grant was not prudent of a purchaser, the trial judge concluded.


The trial judge found that the land acquired by Kabu Otoo was about 12 plots, going by the site plan in the indenture tendered as exhibit 2A. It is part of this land that the plaintiff has developed. He held that if the plaintiff is contending not to be on the plot acquired by Kabu Otoo then he had the duty of leading evidence to that effect which he failed.


On the principle of acquiescence, the trial judge, after assessing the evidence, came to the conclusion that the 1st defendant was guilty of acquiescence. Based on the evidence of the 1st defendant that when he saw the construction of the building on his land in 2009, after returning from Brong Ahafo, he did nothing because he did not know who was developing the land and further waited until the plaintiff finished the building, the trial judge found this evidence supportive of acquiescence. He held that:


“In all the circumstances, defendant would be fixed with knowledge of the development of the building by the plaintiff but chose to stand by waiting for plaintiff to show up after finishing the construction of the building when defendant would assert his title. That attitude is what the principle of acquiescence would not allow.”


The trial judge continued that:


“In this case I hold that the defendant is guilty of acquiescence and he is therefore stopped from obtaining recovery of possession of the land from plaintiff because to hold otherwise, in the peculiar facts of this case, would be most unjust to plaintiff who had spent money in putting up his building, honestly believing (albeit legally unsupportable belief) that it had properly been granted to him by the Osu Stool.


From what has been said so far it is clear that plaintiff’s claim of declaration of title to the disputed land is misconceived and same is dismissed. Then also plaintiff’s claim to an order directed at the Regional Lands Officer of the Lands Commission to delete from its records any transaction on the land in the name of Edward Kabu Otoo is also bound to fail and same is dismissed.


Defendant’s counterclaim for recovery of possession and injunction are denied on equitable grounds as explained above. However, as the defendant has been able to show that his predecessor acquired the land and the land has devolved on him in his capacity as the customary successor, plaintiff’s entry unto the land was unlawful ab ignition and for that reason defendant is entitled to general damages for trespass. Accordingly, I award defendant the sum of GHC5000.00 as general damages. Having succeeded in the counterclaim in part, I award defendant costs of GHC5000.00”


From the above orders the plaintiff was denied an order of declaration of title and denied also the order directing the Lands Commission to delete the recording of Edward Kabu Otoo’s name as a proprietor of the land.


Defendant’s counterclaim for recovery of possession and injunction was also refused but he was awarded GHC5,000 with the reason that the land was acquired by his predecessor which was unlawfully entered into and developed by the plaintiff.


These conclusions of the trial judge have evoked both an appeal and cross appeal as follows


Grounds of appeal by the 1st defendant:

“a. The judgment is against the weight of evidence

b. The learned trial Judge erred in denying the Appellant reliefs of Recovery of possession and perpetual injunction he sought

c. Other grounds will be on file on receipt of the record of proceedings”.


Grounds for cross appeal by the plaintiff:

“a. The trial Judge’s finding of fact the land Plaintiff/Respondent/Cross-Appellant developed is no different from the land Edward Kabu Otoo acquired in 1939 cannot be supported by the evidence on record;

b. The trial Judge erred by failing to consider all the evidence on record in arriving at the finding of fact that Plaintiff/Respondent/Cross-Appellant failed to prove that the land Plaintiff/Respondent/Cross-appellant built on is different from the land Edward Kabu Otoo acquired in 1993;

c. The trial Judge erred in making finding of fact that the Osu Stool divested itself of any interest in the land in dispute at the time the stool sold the land to the Plaintiff/Respondent/Cross-appellant;

d. The trial Judge erred in dismissing Plaintiff/Respondent/Cross-Respondent’s claim for declaration of title to the land in dispute;

e. The trial Judge erred in granting Plaintiff/Respondent/Cross-Appellant respondent GHC 5000 general damages for trespass andGHC 5000 cost and

f. Having regard to the Supreme Court decision in the case of NORA OTTO& 2 ORS VRS REUBEN OTOO & 4 ORS (2015) 81 G.M.J. 90-140,1st Defendant/Appellant/Cross-Respondent has no capacity to sue or defend action in respect of the estate of the late Edward Kabu Otoo either in this court or at the court below”.


It is a common legal principle that appeal is by way of rehearing which involves a review of the evidence on record whether the trial judge can be faltered in any way in his assessment of the evidence.


Almost all the grounds bother on the assessment of the evidence by the trial court, what is commonly referred to as “judgment is against the weight of evidence”, the weight the trial judge attached to the evidence adduced before him. I will therefore bundle several of these above mentioned grounds of appeal together and deal with them differentiating them only when the distinction is necessary to make this judgment clearer.


I will begin with the issue whether the parties were, indeed, disputing over the same land. This was issue 5 set for trial by the trial court judge. The trial judge found that the plaintiff was on a portion of a 12 plot land owned by Mr. Kabu. But as to the exact portion the parties were litigating, the trial judge concluded that it was for the plaintiff to prove that the plot he had developed is different from that claimed by the 1st defendant. I have read the record of appeal and it is my view there is evidence on the probabilities that the parties were claiming the same plot. In the first place the Lands Commission did not hesitate with their result when the plaintiff made a search to find out who the proprietor of the land granted him by the Osu stool was. This can be found in exhibit ‘A’ dated the 4th of January 2012. Of course he would have used the site plan in his 2009 conveyance granted him by the stool. It appears the plaintiff made a further search dated the 19th March 2012 and the result was that the land was plotted in the name of the 1st defendant, Richard Nortey Otoo. Doubt whether the parties are litigating over a particular plot could have been entertained if all the evidence is that the plaintiff has built on a portion of Mr. Kabu’s land, in which case the question will arise as to which portion. But how can it be doubted the parties are litigating over the same plot when the 1st defendant told the court that when he returned from Brong Ahafo Region he saw the building but the artisans refused to show him who was the owner of the building. Of course he saw the building on a particular portion of land. Not only that but then when his family members saw the plaintiff building they did not tell him because they thought he plaintiff had sold the land. It is my opinion the parties were disputing over the same plot of land. But I will say further that in so far as the plaintiff’s land fell within the area plotted for Mr. Kabu, which whole area had been sold to Mr. Kabu by the Osu stool years back, the trial judge was right in his application of the nemo dat quod non habet rule. Having divested themselves of ownership of the land to Mr. Kabu they had no more that land to give to anybody, registration or no registration.


While the plaintiff maintained throughout the trial that he started his building with the permission of the stool in and around 1983 and has since been occupying his building without any interference or question from anybody, the 1st defendant contended that the land as at 1983 was a refuse dump and later used as a trotro station and that the earliest time the plaintiff would have started his land was in 2009. So when did the plaintiff put up his building? The trial judge did not give any positive answer. Of course if 1983 then there is evidence to even raise the Statute of Limitation even though not pleaded. The trial judge examined the evidence from the angle of acquiesce as pleaded by the plaintiff and concluded against the 1st defendant. From the evidence of the 1st defendant that when he returned from Brong Ahafo he saw the building but did not do anything because the workers refused to disclose who the owner was until the building was completed, the trial judge held him for acquiescence. The counsel for the 1st defendant posed the question, from what evidence and from what date did the trial judge proceed to hold the 1st defendant liable to the charge of acquiescence? I think this is a fair question. In the first place looking at the evidence before him it was necessary to have made a finding of fact as to whether the plaintiff was on that land in 1983 or thereafter since this finding would have made his findings on acquiesce clearer. Being an appellate court conducting a review exercise, the authorities allow me to put myself in the place of the trial judge and to make this finding which the trial judge failed to make. Now, the plaintiff testified and called someone who described himself as a draughtsman. I have alluded to his evidence earlier in this opinion. After assessing the evidence of the plaintiff and his witness I found it difficult to accept his evidence that he had been on this land since 1983. I thought the plaintiff had the opportunity to convince the court better with more convincing evidence of his occupation of this land in the 1983 as his abode and workshop. Wouldn’t it have been more convincing calling persons within the vicinity of this building to testify to the fact that he had been on this land since 1983 or call customers of his workshop to tell how long they had been using his workshop? I am not here advocating a new evidential principle that more than one witness should be called on an issue to win a case, which will be contrary to the legal authorities, but the point am making is that the circumstances of each case should decide which and how many witnesses will do for a case. In this case additional witnesses to plaintiff’s occupation and use of this land since 1983 would have met the preponderance of probability test more than the one witness he called. Reading the records of appeal and assessing the evidence in its entirety I will reject plaintiff’s claim that he has been on this land with buildings thereon since 1983.1st defendant said he saw plaintiffs completed building in December 2009. It would appear therefore that the plaintiff might started his building before December 2009.


Now to the principle of acquiescence which the trial judge used in protection of the plaintiff despite his utter recklessness in building on this land without conducting a search earlier at the land registry. I must make a quick confession that this part of the judgment gave us very anxious moments at conferencing. It is not surprising there is a dissenting view on this issue of acquiescence. How equitable is it giving cover of acquiescence to someone who could have known of someone’s interest in this land but simply did not check and went ahead to erect a building before searching for the owner? The other question is how equitable would it be granting possession to the 1st defendant who could have drawn the plaintiff’s attention to his mistaken possession and occupation of this land but did not? Should the plaintiff’s recklessness in not making a search before building necessarily deny him the equitable principle of acquiescence? These were some of the contending thoughts that prevailed at our conferencing.


The recent restatement of the principle of acquiescence was in the unreported Supreme Court case of Ernestina Frimpong vrs Mr. Biney & Another, Civil Appeal No J4/24/2015 of 11th May 2016 where it was stated that to succeed on the defence of estoppel by acquiescence in equity, a party is required to satisfy the following conditions; (i) the person who enters another’s land must have done so in honest but erroneous belief that he has a right to do so, (ii) he should have spent money developing and improving upon the land, (iii) the entry should have been known to the actual owner who should have fraudulently encouraged his development of the land by remaining silent and not drawing his attention to the error, (iv) it is otherwise unconscionable to allow the true owner to recover the land. See Nii Boi v. Adu [1964] GLR 410 SC.


The only ingredient that should engage our attention in this judgment is entry unto the land in honest but erroneous belief. And whether the actual owners act encouraged him by not drawing his attention to this error. Does the evidence support a finding that the plaintiff entered the land in the honest but erroneous belief that he has the right to do so? I have stated that the plaintiff was reckless in his approach towards developing this land. But does such recklessness negative honest but erroneous belief that he had the right to enter and develop the land? This question should be answered bearing in mind that registration at the Lands Commission is not evidence of ownership of land. That the land is registered in the name of Mr. Kabu does not amount to ownership. But where both parties have the same grantor then indication of ownership shifts to the one who purchased earlier in time and even went ahead to register as we have here in the case of Mr. Kabu. Registration is notice to the whole world that there is an adverse claimant to be dealt with, if need be in court.


It would appear however that several circumstances may exist for which recklessness may not necessarily negative honest belief. In the case of Dove vrs Wuta Ofei(1966) GLR299 at 316 the Supreme Court held that it is not in all cases where a builder was warned of adverse claimant but still went ahead to build that good faith, which was interpreted to include honest belief, would be denied the builder, even though his act of building amidst the warning was reckless. By this authority recklessness would not in all cases negative honest believe. In the instant case the plaintiff failed to conduct a search but then when he was building he had no warning until he completed. The 1st defendant testified that when his family members saw the plaintiff building they did not report to him (1st defendant) because they thought he 1st defendant had sold the land to the plaintiff. So family members of the 1st defendant were surely around and saw plaintiff building but raised no protest because they thought the 1st defendant had sold the land. I will come back to this point concerning the knowledge of family members. The 1st defendant testified that he returned from his travel in December 2009 to find a building but not occupied with workers still around. From the 1st defendant’s own evidence that the abutting houses are his relations and one other the father’s grantee,


it is strange that the best they could do for the 1st defendant was to think that he had sold the land to the plaintiff. It appears also unbelievable that the plaintiff himself could claim that he never knew of the plaintiff’s presence on the land for the whole period that he claimed he was out of Accra. We will take judicial notice of the fact that the land located in Osu, an intensively developed area with high land values, none of the relations called the 1st defendant to notify him of the presence of the plaintiff on this land. And even when plaintiff himself saw this building he did nothing with the belief that the plaintiff trespasser will emerge from wherever he was hiding. We now have a completed building at the stage we see in exhibit C1 and C2, a fairly big property with a workshop. What appears to put the 1st defendant in the firm clutches of acquiescence is the fact that it was not even he who instituted the suit but the plaintiff. Does it mean he would still have sat down doing nothing about the entry into his land? I think there is sufficient evidence in support of the trial judge’s finding of acquiescence. I find also that the plaintiff doing all that there is to locate the 1st defendant at the lands commission and even proceeding to issue a writ in 2012 to be served by substitution for a determination who owes this land should be confirmatory of his genuine and honest belief that he is entitled to the disputed land. I have not noticed any evidence to impute bad faith to the plaintiff, even though he was reckless.


It is necessary to note this date 2012 because the 1st defendant who claims he saw the building in 2009 did nothing until he was served with this writ issued in 2012 and by substitution. So from 2009 to the 2012 what did he do when he claimed he saw the plaintiff’s building. It is worth noting that at one point of his evidence he claimed he did nothing because he knew the plaintiff would by all means emerge from his hiding. From the foregoing I find the equities in favour of the plaintiff who should be offered the equitable principle of acquiescence to protect his removal from the disputed plot.


What capacity did the 1st defendant have in the suit? I ask this question not only because I intend to address the concerns of the plaintiff who questioned the trial courts findings that the 1st defendant is a customary successor, and indeed dwelt at length in his submissions on this issue of the capacity of the 1st defendant, but also to narrow this capacity issue into concerns raised on the application of this equitable principle of acquiescence. Firstly, I must mention that an issue of capacity is raised on the pleadings. The plaintiff in his statement of claim sued the two defendants in their personal capacities as persons who it has been disclosed to him at the Lands Commission were attempting to register his land. It was in the defence that the 2nd defendant described himself as the customary successor. The plaintiff in his reply joined issue generally with the defence filed by the 1st defendant. By Order 11 rule13(1) and rule 14(4) of C.I 47 of the High Court rules this general joinder of issue amounts to denial of every particular pleadings in the defence. Thus this claim to be customary successor was an issue that has to be proved by the 1st defendant. I don’t think I need to spilt any ink stating at length that the 1st defendant failed to establish his customary successor capacity. He did he not call any evidence on this capacity or give any evidence himself on his capacity, apart from his cross examination where he gave an answer that he is a customary successor. In cross examination he ended up with the following answers:

“Q. You went to the Land Title Registry to register the land in your capacity as what?

A. As head of the Otto Kofi family of Ashanti Blohum of Osu”.


The cross examination continued:

“Q. You know you are defending this action as customary successor to the late Edmund Kabu Otto?

A. Yes am aware.”


I believe that if he went to register the land as the Head of family, then it can safely be deduced that the land is a family land. In which case it is the head of family who should defend it and not a customary successor. We should not that the 1st defendant counterclaimed. The deduction that the land is family land finds support from the evidence that the land is for his grandfather, Edward Kabu Otoo. His own father is Gedalia Teye Otoo. Since there is no evidence that the property has descended from Edward Kabu Otoo unto anybody by testamentary disposition or some form of distribution by succession to individuals, then such property can be aptly described as family property. Not surprising that 1st defendant told the court he is registering the property in the name of the family. There was no evidence before the court for which he could be found a customary successor and no evidence also that he is the head of family. What then is the situation having lost the capacity as a customary successor, which was his case? I must emphasize that he was sued by the plaintiff in his personal capacity and it is in that capacity that he should face the plaintiff having failed to establish his customary successor status. What we have on the evidence is the 1st defendant in his personal capacity defending a family property. An interesting reverse of Agbosu’s case where a member can sue in protection of the family’s property in certain circumstances. Here we have nobody ready either to sue or to defend the family property but 1st defendant did, albeit unsuccessfully. In fact counsel for the 1st defendant admits in his submission that the land is family property defended by the 1st defendant for the family.


I have noted the long reference made by counsel for the plaintiff to a Supreme Court case of Nora Otoo &2 others vrs Rueben Otoo & 4 others (2015) 81G.M.J 90-140 but I found it of no moment to the case before us. It was the plaintiff who sued the 1st defendant. For him to now argue that the 1st defendant has no business being in court, because of a Supreme Court decision, to defend the matter strikes me as odd. In any case the case before us was tried at the High Court without any mention of this Supreme Court case. It can’t sneak into this appeal records the way the plaintiff sought to do.


I mentioned earlier in this delivery that I will come back to this issue of acquiescence in relation to the family. On the entire reading of the appeal records it would not be wrong to find that there is evidence that the disputed property is family property and other parts of the land is occupied by family members. A family is a corporate sole. A unit made up of persons descending from an identifiable person, in this case Kabu Otoo. Why would these family members, also beneficiaries of this plot as family members allow, without any question, the plaintiff building on this land to completion and full occupation just as was done by the 1st defendant? Silence by these family members also over the plaintiff’s development of the land strengthens the equitable principle of acquiescence, again in favour of the plaintiff.


Having come to such conclusion I will deny 1st defendant his title to the said land and title vest in the plaintiff. Plaintiff was therefore entitled to a declaration of title to the said disputed land. It was wrong for the trial judge to have refused to grant him that order. I accordingly grant the plaintiff an order declaring title in him of the land in dispute. In respect of the same land I will direct the Lands Commission to expunge the name of the 1st defendant or his successors name from the records of the Lands Commission in respect of this piece of land only. The trial judge having dismissed the counterclaim of the 1st defendant asking for recovery of possession and injunction he had no reason to make an award in general damages to the 1st defendant in the circumstances of this case. I will set aside the GHC5000.00 general damages awarded in favour of the 1st defendant. I dispose of the appeal and cross appeal in the foregoing terms.





Irene Charity Larbi (Mrs).J.A.

(1) The facts of this case have been given in the lead judgment delivered by my learned brother Victor D. Ofoe JA. I have had the opportunity of reading it and I am in agreement therewith. However, I have this addendum to make.

(2) In the judgment of the High Court dated 14th February 2015, which is the subject matter before this court, the Plaintiff’s claim for declaration of title to the disputed land was dismissed. The Plaintiff’s claim for an order directed to the Regional Lands Officer of the Lands Commission to delete from its records any transaction on the land in the name of Edward Kabu Otoo was similarly dismissed. The Defendant’s counterclaim for recovery of possession and injunction were denied him on the grounds of acquiescence.

The Defendant dissatisfied with the judgment, filed and argued several grounds of appeal. The Plaintiff also filed a cross-appeal against the judgment of the Trial Court for refusing some of his claims.

(3) Rule 15 (1) and (2) of the Court of Appeal Rules 1997 (C.I.19) provides that:-

“(1) It is not necessary for the Respondent to give notice by way ofcross-appeal, but if a Respondent intends on the hearing of the appeal to contend that the decision of the court below should be varied, the Respondent shall give, within one month after service of the notice of appeal written notice in Form 7 set out in part one of the schedule of the intention to every party who may be affected by the contention.

(2) The Respondent shall clearly state in the written notice the grounds on which the Respondent intends to rely and within the same period shall file with the Registrar of the Court below five copies of the notice, one of which shall be included in the record”.


Contrary to the Rules supra, I take notice that the counsel for the Plaintiff did file a cross appeal with six grounds and argued same in his written submission. Even though the process filed by the counsel for the Plaintiff did not comply with the rules of this court, I shall adopt the said process and treat same as if it was filed in compliance with Rule 15 of C.I.19.


In this appeal, the Plaintiff/Respondent/cross-Appellant shall for ease of reference be called “Plaintiff” and the Defendant/Appellant Cross-Respondent as “Defendant”.


(4) Under Rule 8(1) of the Court of Appeal Rules 1997 (C.I.19) it is provided inter alia that:-

“(1) An appeal is by way of re-hearing …………….”.

In TUAKWA VRS. BOSOM [2001-2002]SC GLR 61 at 65, the Supreme Court speaking through Sophia Akuffo JSC held that:-

“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 evidence. In such a case…………. it is incumbent upon the Appellate Court, in a civil case to analyze 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 balance of probabilities, the conclusion of the trial judge are reasonably or amply supported by the evidence”.




Further, the Appellant has to properly demonstrate what lapses in the judgment that he is complaining about. See DJIN VRS. MUSA BAAKO [2007-2008] SCGLR 686.


I have looked carefully at the grounds relied on by both the Plaintiff and the Respondent in this appeal. Apart from the Plaintiff’s complaint against the general damages of Gh5,000.00 for trespass and Gh5,000 costs to the Defendant and ground (e) of the cross-appeal all the grounds set out by the parties are criticisms of the Trial Court’s want of appreciation of the evidence led at the trial. They can therefore be subsumed and discussed under the omnibus ground that the judgment is against the weight of evidence.


(5) It is the claim of the Plaintiff that he acquired the land in 1983 from the Osu Stool and upon acquisition, he entered the land, took possession and developed a dwelling house where he and his family have since been living. According to the Plaintiff he “contacted the Osu Stool to perfect his grant by issuing him a lease document to process at Lands Commission to enable him perfect his title to the land”. Upon presentation of the documents to the Lands Commission, he found out that the land has been a subject matter of a transaction in the name of Edward Kabu Otoo.


(6) The Plaintiff asserted that a search from the Survey and Mapping Division of the Lands Commission disclosed that the Defendant had caused the land to be plotted in his name for land title registration. The Plaintiff was of the belief that the Defendant might own properties in Osu which might be different from his because since 1983 he (Plaintiff) had been in effective occupation of his land and building without any interference from any of the Defendants.


(7) The Plaintiff therefore sued Edward Kabu Otoo as 1st Defendant and Richard Nortey Otoo as 2nd Defendant. The Regional Lands Officer, Lands Commission, Accra was sued as 3rd Defendant in a nominal capacity since the third relief if granted by the Court would be directed at the Commission for compliance.


(8) In defence, the Defendant on the other hand claimed that his predecessor (Edward Kabu Otoo) acquired the land from Osu Stool in 1939, obtained a conveyance dated 12th August 1939 and registered the land as Number 235/1940. With the death of his predecessor on 8th May 1944, he became the customary successor and took over the land. He claimed he had since granted portions of the land to his family members who have put up buildings thereon. The Defendant contended that if the Plaintiff had conducted a comprehensive search required of every prudent purchaser, he could have discovered that the land was encumbered. Defendant contended further that if Plaintiff had put up any structure at all on the land, it might have been done only recently because between 1985-1991, the residents in the area appealed to the authorities by letters to stop the local Trotro drivers from using the land in dispute as Trotro Station and the use of the land as dumping site. Defendant counterclaimed for recovery of possession of the land, general damages for trespass and perpetual injunction.


(9) Based upon the disclosure in the statement of defence filed by the 2nd Defendant that Edward Kabu Otoo was deceased, the Plaintiff filed an application to have the name of 1st Defendant struck out as a party. The original 1st Defendant’s name was accordingly struck out leaving two Defendants. The original 2nd Defendant therefore became the 1st Defendant.


(10) The Trial Court, relying on the testimony of the Plaintiff that upon the acquisition of land from the Osu Stool the latter without giving him an indenture urged Plaintiff to go and build on the land, expressed not only outrage at this piece of testimony but held the view that the Plaintiff took a huge risk, threw caution to the winds and unwittingly accepted to take that risk urged on him by the Osu Stool. The Trial Court, on further evaluation of the evidence adduced, held that whether Plaintiff acquired the land in 1983 or 2009, the grant of the land by Osu Stool to Plaintiff was ineffectual and void for lack of interest in the Osu Stool to have purported to grant the land to plaintiff. This holding was in support of the evidence of the Defendant that his grandfather, who was his predecessor in title acquired the land in 1939 from the Osu Stool and he registered the conveyance evidencing the acquisition in 1940 as No.235/1940. The said conveyance was tendered by the Defendant as Exhibit ‘2’ and the Exhibit ‘2A’ tendered by the Defendant is the same as Exhibit ‘2’.


I observed just as the Trial Court did that the Exhibit ‘A’ tendered by the Plaintiff corroborated the Defendant’s assertion that this grandfather acquired the land from the Osu Stool in 1939. The Exhibit ‘A’ is a letter from Lands Commission addressed to the Plaintiff dated 4th January, 2012.  The said letter contained the fact that the Plaintiff’s transaction is “affecting a Deed of Gift dated 12th August 1939” made between Osu Ashanti Blohum Stool and Edward Kabu Otoo.


(11) The Trial Court, based upon these documentary evidence made a finding of fact that as far back as 1939, the Osu Stool had divested itself of whatever interest it had in the land in favour of the predecessor in title of Defendant and held therefore that the principle of nemo dat quod non habet operated against the Osu Stool to purport to grant title or interest it did not have in the land to Plaintiff. The Trial Judge applied the ratio in BROWN VRS. QUARSHIGAH [2003-2004]2 SCGLR 930 and AMETINU VRS. ODAMETEY [1977)2 GLR `135.


(12) As the Trial Court opined and rightly so the assertion of the Plaintiff that he did not know that in 1983 when the Osu Stool purported to grant the land to him, the stool had already granted the same piece of land to the Defendant’s predecessor in title would not avail him. This is because the law expects a prudent purchaser of property, particularly land, to take steps to make inquiries not only from adjoining land owners but from Land Title Registry and other statutory bodies that keep official records of lands in Accra. It is clear from the Plaintiff’s own testimony that no such prudent searches and inquiries were made from 1983 when he alleges he was granted the land by the Osu Stool until 2009. It was for these reasons supra that the Trial Court refused the claims supra of the Plaintiff.


(13) The Defendant on his part, counter-claimed for recovery of possession, general damages and perpetual injunction therefore the Defendant assumed the burden that on the preponderance of probabilities, he deserved a ruling to be made in his favour. No matter the claim, a person who comes to court must be able to make a good case for the consideration of the court, failing which the person must fail. See NARTEY VRS. MECHANICAL LIOYD ASSEMBLY PLANT LTD. [1987-88]2 GLR, 314.


In his testimony, the Defendant apart from Exhibit ‘2A’ and ‘2B’ which are the same conveyance granted to Edward Kabu Otoo in 1939 by the Osu Stool, also tendered Exhibit ‘4’ a letter from the Regional Lands Office which confirmed the aforesaid transaction.


(14) The Defendant tendered Exhibit ‘5’ dated 12th September, 1985 headed “Collective Petition” to support his assertion that the Plaintiff was not and could not have been in possession of the land by virtue of the said petition. The petition complained to the Accra Metropolitan Assembly (AMA) about the nuisance being caused by Trotro drivers plying the Osu R.E. Accra route who had since 9th September, 1985 moved their parking lot to an undeveloped plot opposite House No.F.802/1 in the residential area being on the 10th lane in the neigbourhood of the American and Egyptian Embassies.


(15) In the words of the Defendant;

“There was a (SIC) Area Committee in this area who looked after sanitation. This Task Force wrote to AMA about a vacant land being used as Trotro Station which they object to. Later on the Trotro Chairman was arrested and was made to quit the land. Later on it was used as refuse dump and the same people organized and the refuse dump was removed. This was 1985 and 1991 respectively”.


(16) The Defendant in cross-examination stated as follows:-

Q. When did you travel to Brong Ahafo?

A:  2006

Q. When did you return?

A. 2009 December.

Q. I suggest of you that before you travelled to Brong-Ahafo therewas a building on the land.

A:  No.

Q. When you returned in 2009 December you noticed there was a building on the land, what steps did you take?

A: In 2009, the building was not occupied, there were still some works going on. And when you talk to the workers, they would tell you it was certain contractor who was working on it, nobody wanted to disclose the identity.

Q. Because of that you could not do anything.

A. No. We could not do nothing”.


(17) The Trial Court after evaluating the evidence of the Defendant and his witnesses held that in all the circumstances, the Defendant would be fixed with knowledge of the development of the building by the Plaintiff, but chose to stand by, waiting for the Plaintiff to show up after finishing Plaintiff’s construction of the building so the Defendant could assert his title.


The Trial Court found it strange that the Defendant’s relatives who were on part of the land, could not inform the Defendant about the development on the land nor ask the Plaintiff who gave the land to him.


(18) The Trial Judge, relying on the decision in the case of ADJI & CO VRS. KUMANIN [1982-1983] GLR 1382 held that the Defendant is guilty of acquiescence and therefore is estopped from obtaining recovery of possession of the land from the Plaintiff because to hold otherwise would be most unjust to Plaintiff who had honestly believed (albeit legally unsupportable belief) that the land had been granted to him by the Osu Stool.


(19) Counsel for the Defendant questioned whether the Defendant was estopped in 1983 when it is clear that the disputed land was bare from the evidence, or 2009 when the Plaintiff did not plead that he put up the building at that time. He argued that if the Plaintiff had been in occupation in 2009 with his family, his identity would not have eluded the Defendant at all but because he operated under a state of anonymity, it was difficult to trace him.


(20) On the facts, although it is clear that in 1983, the Plaintiff could not have been in possession of the land, the uncontroverted evidence of the Defendant is that he saw the building in 2009. What is clear from all the evidence is that from 1983 up to 1991, the Defendant had stood by unconcerned and not interested in what was happening on the vacant portion of the land. The Defendant did not protect and prevent the Trotro drivers who had encroached on the land and were using it as a station with all attendant nuisance. It took the neighbours to petition the AMA to intervene by ejecting the Trotro drivers to curtail the nuisance caused. Further, from the Defendant’s own testimony, the land was turned into a refused dump and it took the same neighbours to act and curtail the nuisance.


(21) In 2009 when the Defendant claimed he saw the building for the first time, he, true to his character decided not to take any action to curtail the activity of whoever was building on his land. The Defendant, with the full knowledge of the trespass stood by, willfully passive and by so doing encouraged the Plaintiff to expend money in constructing the building shown in the Exhibit ‘C’ series.



(22) From the evidence, the land is sited in a very good residential area of Osu within the environ of the American and Egyptian Embassies. Owner of a land in such a residential area in the capital city of the country would be expected to be vigilant in ensuring that the land is at all material times protected. Registration of the Land although notice to all the world is not a hundred percent guarantee that the land is protected against encroachers and trespassers.


(23) The case of RAFAT VRS. ELLIS [1954] 14 WACA 430 is a good guide in circumstances such as this. At page 431 of the report, the West African Court of Appeal, per Lord Winsdor-Aubrey J, quoted with approval the case of RAMSEN VRS. DYSON:


“if a stranger begins to build on my land, supposing it to be his own, and I perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that when I saw the mistake into which he had fallen, it was my duty to be active, and state my adverse title; and that it would be dishonest in me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented”.


The West African Court of Appeal concluded its judgment thus at the same page:

“This is not a question of the Plaintiff and his family simply neglecting to enforce a claim. I am satisfied that they had, by their conduct, be held to have acquiesced, and knowingly permitted the Defendant to incur expenditure on renovating and adding to the building. They have thereby waived and abandoned any right which they possessed, and cannot enforce them”.


(24) Further, the dicta of JUSTICE THESIGER IN DE BUSSCHE VRS. ALT [1875]8 CH D.286, explains acquiescence thus:

“if a person having a right and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and might otherwise have abstain from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act. This…………… is the proper sense of the term “acquiescence”.


In NII BOI VRS. ADU [1964] G.L.R. 410 the Supreme Court held that:

“To establish acquiescence under equity and customary law, five conditions must be satisfied: the person who enters upon another’s land must have done so in honest but erroneous belief that he has the right to do so; he should have spent money in developing the land; the actual owner must be aware of this person’s entry upon the land and his mistaken belief which is inconsistent with his ownership; and finally he should have fraudulently encouraged his development of the land by not calling his attention to the error”.


(25) The Plaintiff erroneously believed that he had acquired a good title from the Osu Stool and the land in dispute was different. Meanwhile, in 2009 when the Defendant claims he saw the Plaintiff’s building on the land, the Defendant knew of his legal rights in respect to the land. He knew from that time that there was a violation of that right by the one carrying out the construction of the building. The Defendant remained and stood by while the violation of Defendant’s right continued and progressed. This in my view, is the passive acceptance and inaction on the part of the Defendant which encouraged the Plaintiff in his belief that he had acquired good title from the Stool and as a result the Plaintiff was encouraged to expend resources resulting in the building in Exhibit ‘C’ and ‘C1’ which the Defendant intends to recover.


I agree with the Trial Court application of the equitable principle of acquiescence against the Defendant. This in my view serves the interest of justice in all circumstances of this case.


Concerning the argument raised by the Plaintiff that the Trail Court failed to appreciate that the parties were talking about two different land, the evidence of the Plaintiff was that it was when he attempted to register the land granted him by the Osu Stool at the Lands Commission that it emerged there were previous and earlier transactions affecting the land in dispute. Obviously, the Lands Commission would have superimposed the site plan of the Plaintiff on the cadastral plan of the area to arrive at this disclosure which eventually led to the Plaintiff’s suit. Therefore, I find no basis at all from the evidence to support the aforesaid argument.


(26) On the issue of capacity of the Defendant, I agree with my learned brothers decision in respect thereof. I also agree with him that, the Trial Court having dismissed the counter-claim of the Defendant for recovery of possession and injunction ought not to have awarded him the damages of Gh5000.00.


I further agree with him on his decision that the Plaintiff is entitled to his relief for declaration of title to the disputed land and the direction that the Lands Commission expunge the name of the Defendant from their records.




(Justice of Appeal)



I had the privilege of reading beforehand the opinions of my learned and respected brother and sister. However, I find myself unable to support their conclusions that the cross appeal of the plaintiff be allowed and the appeal of the 1st defendant/appellant be dismissed.


I will attempt to briefly state the reasons for my dissenting views as to why the appeal of the 1st defendant should succeed.


The facts of the case have been set out in the majority opinions and I find no need to repeat them. Indeed, I entirely agree with all the findings of fact made by the trial judge and endorsed in the majority decision.


My view however is that the core question which we have to decide in this appeal is whether on the facts, the evidence, and the primary findings of fact made by the trial court, the defence of acquiesance was available to the plaintiff/respondent.


In this judgment, the 1st defendant/appellant shall be referred to as the appellant while the plaintiff/respondent/cross-appellant will be referred to as the respondent.


The main issues raised by the appeal and the cross appeal are the self-same issues determined at the trial court. They are:


Whether or not the land claimed by the Plaintiff is the same as the land claimed by the defendant, i.e. the identity of the land in issue; and


Whether or not the equitable doctrine of acquiescence is applicable on the facts and in the circumstances of this case.


The first issue about the identity of the land arises from the 1st and 2nd grounds of the respondents cross-appeal in which he takes issue with the finding of the trial court that the land the respondent developed is no different from the land the late Edward Kabu Otoo acquired in 1939 from the Osu Stool; and that the plaintiff failed to prove that the land he developed is different from the land the late Edward Kabu Otoo acquired in 1939 from the Osu Stool.


The respondent had expressed the belief that the land he was claiming was probably different from the land the appellant was registering. The appellant however tendered the registered conveyance which showed that the land registered by the late Otoo was 2.91 acres. The appellants' evidence was that the land was walled and was being used by trotro drivers who were evicted in 1985. A surveyor who testified as DW3 stated that when he went to the land in 1992 to plot it for registration, the land was walled and undeveloped.


The learned trial judge evaluated the evidence and stated his conclusion thus:


It appears that it is the undeveloped portion of the land inclusive of where the trotro drivers operated from as a station that defendant is now attempting to register with the Land Title Registry under PNDCL 152….In view of the vastness of the land Edward Kabu Otoo acquired and the fact that some family members of the defendant have put up their dwelling houses just as the plaintiff has also developed his dwelling house, I hold that the land plaintiff developed is no different from the land Edward Kabu Otoo acquired in 1939”


These inferences are supported by the evidence. A resume of the facts that culminated in this appeal clearly shows that the respondent instituted the action at the Court below on 13th June 2012 when he faced obstacles in registering title to the plot of land on which he had built his house.


He averred that the Regional Lands Officer indicated that his application for registration could not be successfully processed because the land was at the time of the application affected by a transaction in the name of one Edward Kabu Otoo and the appellant herein.


One can draw two inferences from these set of facts: First, that the geographical coordinates of the land claimed by the respondent is exactly the same as those of the land plotted by the appellant or second, that the coordinates of the land claimed by the plaintiff fell within the area of the land claimed by the appellant. In other words, that the respondents land is part of the land claimed by the appellant. Indeed, as the 2.91 acres of land was registered as a single entity it was right to consider that the land in dispute included encroachment on any part of that land.


In the circumstances, the trial judge was right in holding that the land in dispute between the parties is the same piece of land, except that the trial judge based his ruling on his belief, instead of articulating the evidential basis for his ruling on this issue.


A contrary finding by the trial judge on this issue would necessarily have meant that the respondent’s had no cause of action against the appellant. Grounds (a) and (b) of the cross-appeal thus fail.


I am also in full agreement with the trial judge’s finding of fact that the Osu Stool had already divested itself of any interest in the land in dispute at the time the stool purported to sell the land to the respondent. Nor did the trial judge err in dismissing the respondent’s claim for declaration of title to the land in dispute.


The law is well settled that registration under the Land Registry Act 1962, Act 122 does not vouch for title. See Amuzu v Oklikah [1998-99] SCGLR 141. However, due registration under the Act 122 constitutes actual notice to prospective purchasers of any instruments affecting the land which they intend to buy. This is the effect of Section 25 of the Land Registry Act, 1962 (Act 122) which states that:


“The registration of any instrument shall be deemed or constitute actual notice of the instrument and of the fact of registration to all persons and for all purposes, as from the date of registration, unless otherwise provided in any enactment.”


A subsequent encumbrancer cannot therefore claim priority as a bona fide purchaser for value without notice even if the prior registered interest is only an equitable interest.


In the present case the trial court found as fact that there was sufficient cogent evidence of the prior customary grant of the land to the appellants' predecessor in title. There is also no dispute that the land in dispute was registered in 1940. This was long before Act 122 was enacted in 1962. However, section 35 of Act 122 repealed and saved the Land Registry Ordinance (Cap 133) which I presume was the applicable law at the time the late Otoo registered his land. Section 35(2) of Act 122 provides as follows:


(2) Any instrument made under the repealed enactment and in force immediately before the commencement of this Act and fees and costs in relation to any matter for which provision is made by this Act shall, until otherwise provided by regulations under this Act, continue in force.


Thus in law, the plaintiff is fixed with actual notice of the defendants' interest on the basis of Section 25 of the Land Registry Act.


There was the opportunity for a search at the Land Registry by the Plaintiff when he was about to purchase the land in 1983, almost twenty years after the Land Registry Act was passed. A search conducted then would have revealed to him that his purported grantor had no good title to give since the late Otoo had acquired the land as far back as 1939. The trial judge was right in applying the ‘Nemo dat quod non habet’ rule and holding that the Osu stool having divested itself of title to Otoo did not have anything to give to the plaintiff.


The other grounds of cross-appeal also fail.


The second issue is the question that has agitated my mind: whether the application of the equitable doctrine of acquiesance which was the sole basis of the decision in favour of the respondent at the trial High Court was appropriate in the circumstances of this case.


It is worth noting that the respondent did not rely on the Limitations Act or make a claim of adverse possession for twelve years or more by which he could have maintained an action for possession. He sued for declaration of title and relied only on the equitable doctrine of acquiesance.


Acquiesance as an equitable relief prevents an owner of land who allows a stranger to spend money to develop his land, having seen the mistake of the stranger, but sits down without correcting the stranger from, benefiting from the mistake he could have corrected. The owner of the land is deemed to have acquiesced or waived his right to the land.


This doctrine of acquiesance is applied in the right circumstances by a court with equitable jurisdiction even though it is not up to the twelve years within which the person in adverse possession could legitimately invoke section 10(1)(6) of the Limitations Act.


Likewise, a court may also refuse the relief if the circumstances do not merit it. Section 31 of the

Limitations Act 1975 [NRCD 54] provides that:


‘Nothing in this Decree shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise.’


As it is an equitable relief, acquiesance is conditional on the maxims of equity; such as equity follows the law, equity aids the vigilant, and, he who comes to equity must come with clean hands.


The issue of when the respondent acquired the land and when he built on it were important issues in deciding whether acquiesance was proved. Unfortunately, the trial court glossed over the issue of when the respondent went into actual possession. No specific finding of fact was made of the contested issue as to when the respondent put up the building on the land. It was an important issue since long possession is advantageous in proving acquiesance. It was not sufficient for the trial judge to state as he did at page 131 of the Record;


‘Plaintiff made it his case that in 1983 he acquired the land and built on it. PW1 insisted that the building of the house of plaintiff on the land was constructed in 1983. Nevertheless, the defendant wanted the court to believe that plaintiff built on the land somewhere in 2009 or thereabout. Whichever year one takes, it seems to me that defendant became aware of plaintiffs' development on the land and yet he did not raise any cognisable objection.’


Since the above conclusion of the trial judge was not based on his assessment of the credibility of the parties and witnesses, this court is entitled to evaluate the evidence and come to its own conclusion as to which of the parties effectively established their case and discharged the burden of proof on the balance of probabilities as to whether it was in 1983 or 2009 that the respondent built on the land in dispute. Duah vs Yorkwa [1994-95] GLR 217.


The general principle is that an appeal is by way of rehearing and an appellate is entitled to make up its own mind on the facts and to draw inferences from them to the extent that the trial court could. See Praka vs.Ketewa [1964] GLR 423. Furthermore, the first ground of the appellants' appeal is that the judgment is against the weight of evidence. It is settled 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 in his favour, could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him”. See Djin vs Musa Baako [2007-2008] SCGLR 686 at 687.


The record shows that the respondent, who had asserted the fact that he had acquired the land and built on it in 1983 and lived on the land since 1983 to the knowledge of the defendant bore the burden to prove that fact by cogent evidence.


Other than PW1 who gave evidence that he had supervised the construction of the building in 1983, the respondent failed to call any of the Osu stool elders to testify as to his claim that he had actually been granted the land in 1983 and not in 2009 which is the date on his conveyance. Nor was any witness called to corroborate the claim that he had lived in a house on the land since 1983. This fact should have been easy to prove.


The defendant resisted the claim that respondent had a building on the land in 1983. He said that was impossible considering that the land in issue had been a trotro station and as late as 1992 a surveyor had been sent to map out the land for title registration. DW1 and DW3 were called to testify about these facts. The defendant however conceded that he had been away from Accra for 3 years and had seen the building on the land in 2009 when he returned. He said he did not sit down unconcerned when he found a near completed house on the land. He made enquiries but the workers on site would not divulge who was undertaking the development.


The degree of proof required of a plaintiff is by preponderance of the probabilities as held Adwubeng vrs. Domfeh [1996-97] SCGLR 660 at 670. Commenting on the evidence adduced by the respondent, the trial judge found it ‘outrageous’ that the respondent had allegedly been granted land in 1983 without any written conveyance but had been told by the Osu stool to go and build, and that he had thrown caution to the winds and accepted to take that risk. The respondent had not conducted a search to satisfy himself as to the genuineness of the grant.


The totality of the evidence leads me to the conclusion that the appellants' evidence is the more probable. It is difficult to give credit to the facts alleged by the respondent that he immediately built on the land without conducting any search and waited over 25 years to conduct a search in 2009 and then waited another 3 years before he acted on the result of that search and sued the defendants. On the whole of the evidence, 2009 appears to be the date at which the respondents put up the building on the land.


Considering that the respondent had to make a search at the Land Registry in 2009 which brought up the appellants' name, and then had to serve his writ of summons by substituted service, the appellant makes a good point when he questions how he could be faulted for not taking action against a trespasser who was unknown and who also did not know him although he claimed to have been on the land for over 20 years?


Apart from the law imputing that the respondent had actual notice of the appellants’ interest in the land, it is worth noting that despite his claim that he acquired the land in 1983, and built on it and was in occupation from 1983, the respondent did not plead adverse possession and the Limitations Act. His failure to do so is the clearest indication that either; he did not acquire the land in 1983 as he claims or that he did not build on the land until 2009.


The question to be answered is this; why if the respondent was acting bona fide as is required of a party who wants the aid of equity did it take him until 2012 to institute action? Could it be that the plaintiff was trying to overreach the defendant by establishing some period of possession and thereby acquiesance? I think it is acceptable to wonder why the respondent did not take advantage of the window created by the Limitations Act if indeed he had been on the land since 1983, and in view of this, to carefully consider whether the appellants' counterclaim should be defeated by acquiesance for the comparatively short period of 3 years between the respondents building in 2009 and instituting his action in 2012.


Section 10(1) of the Limitations Act, 1972, NRCD 54 provides:


“(1) A person shall not bring 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.’


The effect of such twelve years’ adverse possession of the land is provided for in sub-section (6) as follows:


(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.


The trial judge was critical of the appellant for not immediately taking action when he saw the building in 2009, much as if it is a landowner’s strict responsibility or duty to police his property, and ignoring the fact that the appellant could exercise a right to recover the land any time within 12 years, of course unless there was strong evidence of his acquiesance.


The conditions to satisfy in order to succeed in establishing acquiesance were stated by the Supreme Court in Nii Boi v. Adu [1964] GLR 410. Holding 2 was that: ‘To establish acquiescence under equity and customary law, five conditions must be satisfied: the person who enters upon another's land must have done so in honest but erroneous belief that he has the right to do so; he should have spent money in developing the land; the actual owner must be aware of this person's entry upon the land and his mistaken belief which is inconsistent with his ownership; and finally he should have fraudulently encouraged his development of the land by not calling his attention to the error.’


In this present case, the respondent failed to satisfy several of these conditions. The learned trial judge was therefore wrong in coming to a conclusion that acquiescence was proved.


The primary findings of fact made by the trial court are supported by the evidence on record. However, in my view, the learned trial judge fell into error in applying the equitable relief of acquiesance despite the findings of fact and when on the facts the respondent had failed to justify its application. The claims of the respondent ought to have been dismissed in limine.


The equitable doctrine of acquiescence, potent as it may be, will not come to the aid of a party seeking the equitable relief in circumstances where the party is unable to bring himself within the rules of equity. He must have clean hands and must have acted in good faith, amongst others.


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


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


As found by the trial judge in this present case, “if the plaintiff had been prudent to enquire from the Deeds Registry, he would have known that Osu stool had sold or granted the very land he was seeking to acquire to Edward Kabu Otoo”.


It is said that equity aids the vigilant. If, as he alleges, he was granted the land in 1983, how does the respondent justify his failure to make the necessary enquiries for over 25 years? Clearly the respondent had not acted with reasonable diligence.


The appellant was in possession of part of the land as he had granted portions of the land to his relatives who have since built on the land. The law recognizes that one can enter part of land acquired in the name of the whole. This act of possession, coupled with registration of the Deed of conveyance by the appellants' predecessor was enough to put the respondent on notice that the land was not vacant.


In Willmott vs. Barber (1880) 15 Ch D 96 where the plaintiff could have reasonably found out who the owner of the property was but failed to do so, he was fixed with constructive notice of the owner of the property so as to prevent him from benefiting under the doctrine of acquiescence. Constructive notice was enough to prevent the Court from applying the equitable principle of acquiescence in that case.


A fortiori, a respondent who by our laws is deemed to have actual notice of the ownership of the land, ought not to have the relief of acquiescence unless it is sufficiently established when he went into possession which is critical in acquiesance, that he had acted honestly, and that the owner had fraudulently encouraged his development of the land.


Finally, I will comment briefly on respondents’ submission that the appellant lacked capacity to defend the action. It is ironic that the respondent who dragged the appellant to court would now raise objection to his capacity to defend the action whilst in the same breath seeking declaration of title by reason of the appellants' acquiesance to the building he has put on the land. I would think that it is not possible for the respondent to be given what he seeks if the appellant is the wrong person he sued.


In any case, the law is that a person in possession has an interest which is valid against the whole world except to a person who can establish a better title.


As I have noted earlier in this judgment, the appellant was the party in possession of the disputed land as evidenced by grants to members of the family. Furthermore, the appellant did not seek declaration of title to the property in his counterclaim but merely sought recovery of possession. The appellant was thus perfectly entitled to defend the action notwithstanding any dispute within his family.


It is for the above reasons that I would dismiss the cross-appeal of the respondent in its entirety and allow the appeal of the 1st defendant/appellant from the judgment of the trial court.