• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  ACCRA - A.D 2018
  

AKWESI AMANKWA EVANS - (Plaintiff/Respondent)

vs.

KOJO PREMPEH - (Defendant/Appellant)

JUDGMENT

---

 

SUURBAAREH, J.A.

 

Per his writ of summons of 17^th November, 2012, the plaintiff/respondent claimed against the defendant/appellants the following reliefs:

 

A declaration of title to a piece of land particularly described in a schedule,

 

Perpetual injunction against the defendant and all persons claiming by or through him from interfering with the land,

 

Damages for trespass and,

 

Recovery of possession.

 

 

 

In support of the above reliefs, the plaintiff/respondent, called respondent hereinafter, averred that he acquired the disputed land from Arthur Hammond Tetteh Quarcoo, head and lawful representative of the Onamrokor Adain family. According to the respondent, he was earlier granted the land in 1999 by the then head of family, Paul Ayitey Tettey, but no document was issued to him.

 

 

 

The defendant/appellant, simply referred to hereinafter as the appellant, not only denied the respondent’s claim, but went on to contend that he acquired the disputed land in 1983 from James Hansen-Sackey family, through a customary grant, and has since 1985 erected a three bedroom wooden structure thereon which he has occupied either personally or through tenants, after he had initially constructed a fence wall around same. The appellant went on to contend that in 1964 the head of respondent’s grantor family issued a disclaimer in respect of the disputed land in favour of his grantor’s family.

 

 

 

In a reply, the respondent denied the appellant’s claim of acquisition and occupation of the disputed land and the fact of the disclaimer by the head of his grantor family respecting the disputed land.

 

 

 

The issues set down and adopted for trial included whether or not the appellant was a trespasser; whether or not the respondent’s grantors, the Onamrokor Adain family, are the owners in possession of the disputed land; and, whether or not the respondent has been granted the disputed land by the head and lawful representative of the Onamrokor Adain family.

 

 

 

The respondent gave an account of how in 1999 he was granted the disputed land by the then head of Onamrokor Adain family, Paul Ayitey Tettey, who did not give him any document of title, before he was subsequently granted same in 2004 and issued exhibit ‘A’, an indenture he proceeded to tender. Also tendered in evidence was exhibit ‘C’ a judgment in favour of his grantors in respect of the disputed land as against the James Hansen-Sackey family.

 

 

 

The respondents claim of acquisition and the fact of the land being that of the Onamrokor Adain family, was supported by the head, who executed exhibit ‘A’ in his favour, and who also went on to deny the James Hansen-Sackey’s family’s claim to the land as well as the disclaimer in their favour issued in 1964 by the head of the Onamrokor Adain family. To support his assertions, he tendered in evidence exhibit “D E¹”, which is the same as exhibit ‘C’.

 

 

 

The appellant, who during cross-examination of the respondent tried to show that the respondent in an earlier contempt application had deposed that the disputed land was granted him by one Benjamin Mensah Larkai, then head of the Onamrokor Adain family, went on to tender in evidence, exhibit 1 and 2, being the motion paper and supporting affidavit, as well as a supplementary affidavit in support. Also tendered in evidence was the judgment in the suit upon which the contempt application arose. Exhibit 3 refers:

 

 

 

The appellant, who gave evidence about his acquisition of the disputed land from the James Hansen-Sackey family in 1983 and his immediate and continuous occupation of same either by himself or through tenants, went on to tender in evidence exhibit 4, being á photograph of the wooden structure erected in 1985, and exhibit 5, a temporary building permit allegedly granted to one of his tenants.

 

 

 

To show that the disputed land belong to his grantors, the James Hansen-Sackey family, the appellant tendered in evidence exhibit 6, being the deed of transfer between Selma Beatrice Quartey and James Hansen Sackey; exhibit 7 being a search report showing the registration of the transaction evidenced by exhibit 6 as well as exhibit 8, the disclaimer in favour of James Hansen-Sackey family by the head of the Onamrokor Aduam family.

 

 

 

The appellant’s claim of acquisition and occupation of the disputed land was supported by two of the tenants, Dw1 and Dw2 who had occupied the wooden structure, as well as a member of this grantor family Dw3, who in particular tendered in evidence exhibits 11 and 12. His claim about his occupation of the land in dispute was also supported by a neighbour who has known him since 1989, i.e. Dw4, Emmanual Yiadom Boakye.

 

 

 

After an analysis of the evidence, the trial judge, at page 11 of her judgment appearing at page 367 of the record of appeal, found that the disputed land belonged to the Onamrokor Adain family.

 

 

 

On the issue of whether or not the respondent was entitled to his claim, the learned trial judge at page 268 of the record, found that the respondent who was a party to exhibit 3 did not file any defence in the action and was also the one who filed the contempt application against the appellant despite attempts to deny same went on to hold as follows:

 

“The land in exhibit 3 adjoins the subject land. Dw1 and Dw2 testified they knew plaintiff who in the neighbourhood was described as a land agent. It seems to me that the plaintiff acquired the subject land because the Anamrokor Adain family knew they had not made any grant to defendant who had only put up a wooden structure. It was whilst the suit in exhibit 3 was in progress in 2010 that the defendant started to put up a 2-storey sandcrete block building which compelled plaintiff to apply to cite defendant for contempt because there was an injunction on the land in dispute…. Plaintiff has not produce (sic) any evidence of acts of ownership he personally exercised over the land apart from exhibit A, his lease from Onamrokor Adain family who I have declared the rightful owners of the land in dispute and all the adjourning lands.”

 

 

 

With regard to the issue of whether or not the appellant is a trespasser, the learned trial judge, after reference to paragraph 14 of the appellant’s statement of defence and his account of his acquisition and occupation of the land since 1983 and the corroboration of same by his witnesses, especially Dw1, Dw2 and Dw3, concluded that the appellant was indeed in possession of the disputed land. She however went on to consider the respondent’s contention that his grantor family had no notice of the appellant’s occupation and then stated thus at page 269 of the record:

 

“Plaintiff’s grantor said the family had no notice of defendant’s occupation because her land was vast.

 

Plaintiff’s indenture, exhibit ‘A’ is dated 16^th October, 2009 based on the 1999 grant by Paul Ayitey Tettey. This means the family is deemed to have notice of defendant’s possession from 1999. In 2010, plaintiff tried to commit defendant for contempt so that action ended the occupation without notice. Time began to run from when defendant himself said plaintiff began to disturb him.”

 

 

 

The learned trial judge, who raised issues about the name of the head of family who granted the appellant the land and the nature of the custom performed and to whom, and the fact that there being no writing evidencing the transaction in terms of sections 4 to 7 of the Conveyancing Act 1973 (NRCD 175), with particular reference to section 7(1), after comparing his account with the account of the respondent held as follows at page 270 of the record of appeal:

 

“Defendant’s story does not seem plausible; he could not even tell the court how much he gave as custom, neither was he able to show evidence of receipt of payment. The evidence of Dw3 creates the impression that the Hansen-Sackey family was not sure of their ownership of the land… How could a family which traced their ownership to a 1920 registered document hesitate to provide a document to a grantee? Defendant’s story appears to me as one in which defendant seeks refuge under the Hansen Sackey family, with the hope that if he wins this case then he would pay the Hansen-Sackey family who would then have a basis of claiming ownership of the Achimota lands.

 

It appears to me that the defendant saw the vacant land and first proceeded to put up the three-roomed wooden structure while he adopted a ‘wait and see’ approach. It was when the suit over the adjoining land started that defendant then proceeded to construct the sandcrete building by which time he had notice of the plaintiff and his grantor’s interest in the land.”

 

 

 

The learned trial judge who then referred to the submissions on behalf of the appellant on the provisions of section 10 of the Limitations Act 1972 (NRCD 54) and the fact that the criminal proceedings in the contempt application did not constitute an action for declaration of title to land, held thus at page 271 of the record:

 

“As I stated earlier defendant said it was in 2010 when plaintiff began to worry him. If his stay on the land was without notice because it was not obvious and open, the plaintiff grantor family cannot be said by their conduct to have encouraged defendant to believe that he owned the land in dispute. See s.26 of the Evidence Act 1975, NRCD 323.

 

Time began to run when the Onamrokor Adain family gave the land to plaintiff in 1999, and also took notice of defendant on the land. Defendant said plaintiff began to worry him in 2010, which means his undisturbed possession was terminated in 2010. The period spanning 2010 to 2013 is excluded from the period time run and therefore the time of undisputed possession does not amount to twelve years.”

 

 

 

The trial judge then held that the statute of limitation will not avail the appellant because time began to run from 1999 to 2010 when respondent began to disturb him. Referring to exhibit ‘C’, same as “D E¹” in support of the respondent grantor family’s title to the disputed land, the learned trial judge held at page 272 of the record that the appellant’s grantors had no land which they could grant to him and proceeded to hold thus:

 

“From the evidence before this court, the land in dispute belongs to the Onamrokor Adain family whose ownership defendant denied. The Onamrokor Adain has at no time made any grant to defendant. Since defendant unlawfully entered the land and took possession of it without permission from the Onamrokor Adain family, defendant is a trespasser.”

 

 

 

After reference to Wiredu v. Mim Timber Co. Ltd. [1963] GLR 168, the trial judge proceeded to award damages against the appellant for trespass.

 

 

 

Dissatisfied with and aggrieved by the judgment, the appellant has mounted the present appeal praying this court to interfere with and set aside the judgment of the trial judge on three grounds of appeal, with the usual proviso for filing further grounds upon receipt of the record. The grounds of appeal are:

 

“1. The judgment is against the weight of the evidence.

 

2. The learned High Court judge erred in not holding that if the plaintiff or his grantors ever had title to the disputed land, their title was statute barred.

 

3. The learned High Court judge erred in applying the High Court judgment retrospectively against the defendant who had his grant before the start of the litigation.”

 

 

 

Learned counsel for the appellant in his written submissions quoted extensively from the record of appeal and also made reference to provisions of the law as well as excerpts from the judgment of the trial judge to show why this court should interfere.

 

 

 

Arguing grounds 1 and 2 together which were mistakenly stated as grounds 1 and 3, learned counsel quoted section 10(1) and (6) of the Limitation Act 1972 (NRCD 54), and also referred to and quoted paragraphs 8, 10, 11 and 14 of the statement of defence and from the submissions made before the trial court on behalf of the appellant, as well as excerpts from the judgment, especially at page 270 and submitted at page 7 of the submissions that the “trial judge got it all wrong and that if she had analysed the facts properly and applied the law correctly, she would have found for the defendant/appellant on the issue of limitation of action and adjudged the matter in his favour.”

 

 

 

Learned counsel for the appellant who thereafter went on to analyse the evidence on behalf of the appellant about his acquisition and occupation, and quoted extensively therefrom, submitted at page 12 of the submissions that if the trial judge infact had made her findings from the evidence led, she would have found that the “period of limitation started at worst from 1985 when the defendant constructed a fence wall, built the three bedroom wooden structure and went into possession with Kwame Grant his in-law.”

 

 

 

Quoting from Djin v. Musah Baako [2007-2008] SCGLR 686 at holding (3) in the headnote on adverse possession as well as the extract from the judgment of Sir John Pennycuich in Treloar v. Nute [1977] 1 All ER 230 at 234 CA quoted with approval therein at 699, learned counsel for the appellant submitted at page 13 of his submissions that having accepted the fact of possession, the trial judge should have adjudged that the title of the respondent and his grantors, if ever they had title, was extinguished by virtue of the operation of the Limitation Act having issued the writ some 27 years after the appellant was in occupation from 1985.

 

 

 

According to learned counsel for the appellant, if the period of limitation was even calculated from 1999 as the trial court found at page 297 of the record, as when time will begin to run, that would work up to 13 years having regard to the time the writ was issued and that upon a proper evaluation of the evidence the trial judge should have dismissed the respondent’s case and entered judgment for the appellant.

 

 

 

In the view of the learned counsel for the appellant, since the appellant was in possession, the respondent was required to lead satisfactory evidence about his capacity to institute the action but that from his pleadings and evidence as well as his deposition in the contempt application arising from the suit as per exhibit 3, concerning his root of titled, it was clear that his grantors had no land to grant him in 2009, since

 

 

 

from the plan attached to the search report, exhibit ‘D’, the same parcel of land had been granted on 16^th December, 2005 to Akuno Annan, upon the principle of nemo dat as brought out in Sasu v. Amma-Sekyi [2003-2004] 2 SCGLR 742 and Brown v. Quashigah [2002-2004] 2 SCGLR 930.

 

 

 

Learned counsel for the appellant, in conclusion, submitted that since from the evidence the appellant was shown to be in possession, that even if he was a trespasser, the principle of “metior est conditio possidentis jus habet” would apply in his favour as held in Oshoderin v. Tetteh [1973] 1 GLR 1.

 

 

 

In response to the submissions on behalf of the appellant, it was contended on behalf of the respondent that not only did the evidence show that the disputed land was for the Onamrokor Adain family, grantors of the respondent, but also that the trial judge considered and rejected the defence about the Limitation Act 1972 (NRCD 54) being applicable here. In the view of learned counsel for the respondent the statute of limitation was not applicable and so was the principle of nemo dat quod non habet. He concluded by calling on the court to dismiss the appeal as same was without merit.

 

 

 

It is provided in Rule 8(1) of the Court of Appeal Rules, 1997 C.I.19 that:

 

“An appeal to the court shall be my way of rehearing and shall be brought by a notice of appeal.”

 

 

 

The Supreme Court, in a number of cases has held that when an appellant appeals on the ground that “the judgment is against the weight of the evidence”, it is a call to the appellate court to review the entire evidence to satisfy itself whether the judgment is supported by the evidence led at the trial. Upon such a ground of appeal, the appellant is alleging that there are certain pieces of evidence on record which were either wrongly applied against him or that pieces of evidence in his favour were ignored or overlooked. See Djin v. Musah Baako (supra) at 691 and Tuakwa v. Bossom [2001-2002] SCGLR 61 at 65. In Akakpo v. Ayaa Iddrisu [2010] SCGLR 891 at 899, the court quoted the following page from Akuffo v. Catheline [1972] 1 GLR 337 at holding (3) in the headnote on the duty of an appellate court upon such a ground of appeal:

 

“Where an appellant exercises the right vested in him by rule 8(4) of L.I.218 and appealed against a judgment on the general ground that the judgment is against the weight of the evidence, the appellate court had jurisdiction to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts.”

 

 

 

Upon such a ground of appeal, the appellant therefore assumes the burden of demonstrating to the satisfaction of the appellate court that pieces of evidence in his favour were either overlooked or that some pieces of evidence were wrongly applied against him. See Friesland Frisco DOMO@Friesland Foods BV vrs. Danchel Co. Ltd. [2012] 1 SCGLR 41.

 

 

 

The Supreme Court in Bonney v. Bonney [1992-93] Prt. II GBR 779 at 787, whilst acknowledging that an appeal is by way of rehearing and entitling the appellate court to make up its own mind on the facts and draw inferences therefrom, however cautioned thus, per Aikins JSC:

 

“That may well be so. But what has to be borne in mind is that the appeal court should not, under any circumstance, interfere with findings of fact by the trial judge except where they are clearly shown to be wrong,

 

or that he did not take all the circumstances and evidence into account, or has misapprehended certain of the evidence or has drawn wrong inferences without any evidence to support them or that he has not taken proper advantage of his having seen and heard the witnesses.”

 

 

 

The appellant, after pleading in paragraph 8 of his defence about his acquisition through a customary grant from the James Hansen-Sackey family in 1983, went on in the next paragraph to describe the land and then pleaded in paragraphs 10, 11 and 14 as follows:

 

“10. The defendant after the grant in 1983 went into immediate possession built a fence wall and erected a three bedroomed wooden structure on the land in 1985; lived in two bedrooms, and his in-law called Kwame Grant in one and he subsequently put in tenants and have remained in undisturbed possession ever since.

 

11. Defendant says that in January 1997, he granted one Theresa Djanie a tenancy of part of the land and she erected a structure thereon from which she operated her chop bar after being granted a building permit to construct a temporary structure by the Ga District Assembly in 1998.

 

14. The defendant says that he has been in undisturbed possession of the land since 1983 and that the title of the plaintiff and his grantors, if they ever had any is statute barred.”

 

 

 

The appellant concluded his defence by saying that the respondent has no capacity and calling on the court to dismiss the suit in limini. See paragraphs 18 and 19 respectively of the statement of defence with the latter being stated as 10.

 

 

 

In the address filed on his behalf before the trial court, learned counsel for the appellant quoted section 10(1) and (6) of the Limitation Act and submitted that from the evidence, the title of the true owner if any exists is statute barred.

 

 

 

The leaned trial judge whilst admitting the fact of the appellant being in possession, and that the respondent at least became aware of his presence on the disputed land from 1999 when he was first granted the land, however made some calculations and concluded that the Limitation Act was not applicable and did not avail the appellant.

 

 

 

Before proceeding to consider the evidence to see if her view is supported or not, it is necessary to consider the effect of the provisions of section 10(1) and (6) of the Limitation Act 1972 (NRCD 54) as well as the doctrine of adverse possession. The sub-sections are as follows:

 

“10(1) A person shall not bring an action to recover a land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or if it first accrued to a person through whom the first mentioned claims to that person.

 

10(6) On 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 above provisions are loud and clear in their effect to admit of any dispute. A defendant who therefore has a defence based on statutory limitation is entitled to insist on it and once he is able to prove it the merits of the case become immaterial.

 

 

 

Even though courts have a discretion to enlarge time beyond twelve months for the renewal of a writ that has not been served, the practice is to refuse such an enlargement where a grant will deprive a defendant a defence based on Statutory Limitation. See Alhassan v. Boadu [1977] 2 GLR 248 where Edward Wiredu J. (as he then was), quoted the following passage from the editorial note in Battersby v. Anglo-American Oil Co. Ltd. [1944] 2 All ER 387:

 

“RSC Order 64 r.7 gives a wide discretion to renew a writ more than twelve months after the date of issue, but a line of cases commencing with Doyle v. Kaufman [1877] 3 QBDJ 34 has held that the discretion ought not be exercised where the remedy is barred and the effect of exercise would be to deprive a defendant of the benefit of a defence based on statutory limitation…”

 

 

 

In Ofori v. Larley [1978] GLR 490 CA at 495, Francois J.A. (as he then was), after an analysis of the English statutes and some decided cases said at pages 495/496:

 

“These rules have no equivalent in Ghana the old principle prohibiting enlargement of time to effect a renewal of writ to defeat vested rights remains in force, notwithstanding the court’s power to exercise a discretionary intercession contained in Order 64 r.6.”

 

 

 

On adverse possession, Mantha Ramia Murphy in his book, Law of Adverse Possession, 3^rd ed. p.200, published by Delhi Law House, appears the following passage:

 

“Adverse passion, to entitle the possessor to a protection order must be settled possession and not a stray act done most probably during the absence of the true owner from the place. Possession must be distinguished from mere occupation or detention. Possession in the eyes of the law consists of the act of physical occupation and the mental act of holding the subject of possession to the exclusion of others. The unity of these two elements namely occupational and animus possidendi is recognised as constituting ‘possession’ in the eyes of the law. The physical element is not necessarily connected with any bodily contact with the subject possession. It implies the physical power or possibility of dealing with the subject immediately. Legal possession include cases of constructive possession, permissive possession and other kinds of possessions where the owner is not in direct physical contact. There is perhaps no conception more open to a variety of opinion than ‘possession’. Possession is a flexible term and it is not restricted to mere occupation. Legal possession is occupation with the intention of exercising the right of ownership in respect of it.”

 

 

 

Black’s Law dictionary with Pronunciations, 5^th edition at page 49 has the following under adverse possession:

 

“A method of acquisition of title to real property by possession for a statutory period under certain conditions…

 

Adverse possession consists of actual possession with intent to hold sole for possessor to exclusion of others and is denoted by exercise of act of dominion over land including making of ordinary use and taking ordinary profits of which land is susceptible in its present state.”

 

 

 

As to what amounts to adverse possession sufficient to extinguish the title of the true owner, the Supreme Court in Adjeley Adjei and Others v. Nmai Boi and Others [2013-2014] 2 SCGLR 1474 held thus at holding (2) in the headnote:

 

“(2)   Adverse possession must be open, visible and unchallenged so as to give notice to the legal/paper owner that someone was asserting a claim adverse to his. And section 10 of the Limitation Act, 1972 (NRCD

 

54). has reflected substantially the English Statutes of Limitation and the Common Law. Under the present law, the person claiming to be in possession must show either (i) discontinuance by the paper owner followed by possession; or (ii) dispossession or as it is sometimes called, ‘ouster’ of the paper owner. Clearly possession concurrent with paper owner was insufficient. If a squatter took possession of land belonging to another and remained in possession for twelve years to the exclusion of the owner, that would represent adverse possession and, accordingly, at the end of twelve years, the title of the owner would be extinguished. In the circumstances, assuming the defendant’s title was bad, their adverse possession of the land for a period of twelve years and over laid conferred on them possessory rights by virtue of section 10 of the Limitation Act 1972 (NRCD 54)…”

 

 

 

The Court of Appeal in Antwi v. Abbey [2015] 90 GMJ 85 held that a claim of adverse possession cannot be based on clandestine payment of tribute alone but must be visible, unchallenged and apparent so that it gives notice to the legal owner that someone may assert a claim. The court also went on to give the various acts that amount to adverse possession to include the following; leasing the property, erecting sign posts, planting crops, building or raising animals in a manner that any diligent owner could be expected to react.

 

 

 

In Jean Hannah Assi v. A.G. [2017] 107 GMJ 1 at 32 to 33, Dotse JSC, after reference to decided cases on what constitute adverse possession to extinguish the title of the real owner, quoted the following passage from the judgment of Lord Denning in Fairweather v. St. Marylebone Property Ltd. [1963] A.C. 510 at 543:

 

“If a person wrongly gets possession of the land of another he becomes wrongfully entitled to an estate in fee simple and to no less in that land, thus, if a squatter wrongly encloses a bit of waste land and builds a hut on it and lives there, he acquires an estate in fee simple by his wrong in the land which he has enclosed. He is seised and the owner of the waste is disseised. It is true that, until by length of time the statute of limitation shall have confirmed his title, he may be turned out by the legal process. But as long as he remains, he is not a mere tenant at will, nor for years, nor for life, now in tail, but he has an estate in fee, simple. He has seising of the freehold to him and his heirs. The rightful owner in the meantime has but a right of entry, a right in many respects equivalent of seising, but he is not actually seised, for if one person is seised another person cannot be so.”

 

 

 

The case of Essuon v. Yemo [1982-83] GLR 562 at 573 held that the provisions of section 30(3) of the Limitation Act 1972 (NRCD 54) made it applicable to actions regulated under customary law.

 

 

 

Even though by section 10 of the Limitation Act 1972 (NRCD 54) an owner’s right to land is extinguished after twelve years where he takes no action to assert his right against a trespasser, a defendant who has the benefit of the defence of statutory limitation must plead it in order to get the benefit. It was therefore held in Dolphyne (No.3) v. Speedline Stevedoring Co. Ltd. [1996-97] SCGLR 514 at 521 where the statute of limitation was not pleaded but counsel sought in his address to invoked equity to have the action declared stale on grounds of laches and acquiescence the court said:

 

“I need not expend any useful time in unravelling this incoherent statement of the law. Suffice it to say that the Limitation Decree, 1972 (NRCD 54) adverted to is essentially a special plea and must be pleaded. See Order 19 r.15 of the High Court (Civil Procedure) Rules 1954 (LN 140A). It must be borne in mind that if this special plea is not pleaded, it cannot be adverted to in submissions to the court. The court will not also of its own motion take notice that the action is out of time…”

 

 

 

As indicated in this judgment, the appellant not only pleaded in paragraphs 10, 11 and 14 quoted earlier that by virtue of the period he has been in possession the action is statute barred, but also gave evidence which was amply corroborated by as many as three witnesses about his being in occupation of the disputed land since 1985 when he erected a fence around same and constructed a wooden structure thereon in which he lived or rented out to others. The respondent did not seriously challenge the appellant and his witnesses on the appellant’s occupation of the land and for the period indicated except to merely tell the appellant and his witnesses that they were not being truthful. It is my considered opinion that the respondent needed to do more than merely deny their accounts by confronting with facts from which the court could infer that they were either suborned witnesses or they had other motives for supporting the appellant’s case. In any case, from exhibit 4, the photograph of the wooden structure, it is clear that the structure had been there for some time.

 

 

 

Where a defendant pleads and raises the issue of a statute of limitation, unless the plaintiff is able to show that he was under a disability in the sense of being an infant or a person of unsound mind, or alleges fraud on the part of the defendant, as to the effect of computation of time from the time of discovery, the case will be squarely caught by the Limitation Act. See Grippman v. Nigerian Airways [1992] 2 GLR 80 at 85/86. In that case the learned judge also quoted the following passage from Chitty on Contract (25 ed.) vol. 1 at page 1045 on the effect of negotiations by the parties:

 

“The fact that the parties have entered into negotiations for settlement of their dispute will not, without more, suspend or otherwise affect the running of time or prevent the defendant from relying on the statute even though the limitation period may expire before the negotiations are completed.”

 

 

 

In this case the respondent in his reply merely denied the appellant’s averments but never raised any issue of disability or fraud on the part of the appellant about the calculation of the limitation period.

 

 

 

Even though ground 2 of the grounds of appeal is an issue of law, since the calculation of the period of adverse possession is a matter of fact, that aspect can be dealt with under the ground about the judgment being against the weight of the evidence.

 

 

 

I shall now proceed to consider whether the judgment is supported by the evidence led at the trial. It was held in Mensah v. Ahodjo [1961] GLR 296 at holding (2) in the headnote at page 297 that where a defendant is in possession, a plaintiff who sues in trespass must prove that he has a better title than that of the defendant.

 

 

 

From the evidence of the respondent, he was first granted the land in 1999 by the head of the Onamrokor Adain family. Even though the head of family, who testified in support of his case, stated that the family land is vast, it is assumed that in 1999 the respondent was taken on to this vast family land and a portion of it demarcated for him. I say so because exhibit ‘A’ the indenture issued to him in 2009 has a plan attached to it which is the same as the one attached to the Search Report exhibit ‘D’ appearing at page 350. The respondent, from his account, was given the land in 2009 that was granted him earlier in 1999. If he was shown a particular piece of land, which from the evidence is the same as the land in dispute, he and his grantors or their representatives who went to demarcate the land for him, could not fail to see the fence wall constructed by the appellant or the three bedroomed wooden structure constructed on the land. The respondent and his grantors, are therefore deemed to have notice of the presence of the appellant on the land from 1999 when the respondent was first granted the land.

 

 

 

Having regard to the undisputed facts that the appellant acquired the land in 1983 and by 1985 had constructed a fence around same and put up a three bedroomed wooden structure in which he lived, it means that the time the Onamrokor Adain family purported to grant the land to the respondent in 1999, the appellant had been in undisturbed possession for fourteen years and the title of the family would be deemed to have extinguished by operation of law and so upon the principle of nemo dat, the respondent got nothing. As also submitted on behalf of the appellant on the authority of Oshoderin v. Tetteh [1973] 1 GLR 1, even if he was a trespasser, the maxim melior est conditio posidentis ubi neuter jus habet would enure to his benefit. Also see Mensah v. Ahodjo (supra) at 300.

 

 

 

Apart from the fact that the Onamrokor Adain family could not have failed to notice the presence of the appellant for these fourteen years having regard to the structures and activities that the appellant or his tenants undertook thereon, assuming without admitting that they became aware in 1999, when the land was being demarcated for the respondent, what efforts have they made to assert their title to the land in dispute? If the respondent was given land on which there was a structure, common sense would require that he finds out from his grantors if they were aware of it or at least confront the owner as to how he came to be on the land. One would also expect that he would inform his grantors even if someone was sent by them to demarcate the land. The respondent’s conduct in standing by all these years without asserting his claim is not in tune with reality. The Onamrokor Adain family could not also fail to notice the presence of the appellant on the land since 1985 as same was open and visible.

 

 

 

The trial judge at pages 269 and 271 of the record found that the respondent was deemed to have knowledge of the presence of the appellant on the disputed land at least from 1999. Despite this finding, she went on to say that time began to run from 2010 when the appellant admitted the respondent began to worry him and that the period of undisturbed occupation therefore began to run from 2010. There is absolutely no basis for saying that the limitation period began to run from 2010. In fact this conclusion by the trial judge is in conflict with her own findings of fact. A simple mathematical calculation will show that between 1999 and November 2012, when the action was initiated, would amount to thirteen and not three years as found by the trial judge.

 

 

 

As has been demonstrated, the findings of the trial judge with regard to when the respondent was deemed to have notice of the appellant’s occupation or presence on the land in dispute conflict with her own conclusions and calculations as to when time began to run. There is also no mathematical basis for her calculation which are clearly wrong and upon which she wrongly held that the statute of limitation did not avail the appellant. Her judgment cannot be allowed to stand as it is completely at variance with the evidence led at the trial.

 

 

 

With this conclusion, it becomes unnecessary to consider the merits of the case concerning whether the respondent’s grantors have any title to the disputed land. As held in Dede and Others v. Tetteh and Others (supra), the statute of limitation is intended to keep the tardy plaintiff out of court and to free defendants from stale claims. In this case the appellant’s possession and occupation of the land consisted of both physical acts as well as mental desire to hold onto same to the exclusion of all others.

 

 

 

In sum therefore, the appeal succeeds and the judgment of the trial court dated 19^th July, 2016 is hereby set aside.