A. M. DOMAKYAAREH (MRS), J.A

1. This is an Interlocutory appeal from the Ruling of the High Court Cape Coast dated 7^th July 2008. In the said Ruling the Learned Trial Judge dismissed the Application of the Defendant/Appellant herein to invoke and rely on Section 10 of the Limitation Act, 1972 (NRCD 54).

2. The facts of the substantive case are that the Plaintiff/Respondent herein as Head of the Dadzie Kuma Kona family of Akatakyiwaa issued a Writ of Summons against the Defendant/Appellant herein in his capacity as Head of Adwinadze family of Biriwa. In an Amended Writ and accompanying Amended Statement of Claim, the Plaintiff/Respondent sought the following reliefs:

A declaration of title to all that containing tracts of land described as ANHIABAFUFU, PATAABU, EGYABIANAKYIR (portions of this are also referred to as ARABAAMU AND EGYABIRIM) AND ANKUMABOM

Declaration that the Defendant’s family are estopped per rem judicatam from the decision of the

Native Tribunal of Yamoransa in the Nkusukum State, Council dated 28^th day of September, 1937 in the case of KOBINA KYIREDE VRS OBAHIMA ADJOA EYIMAH (substituted by Kofi Akom)

Perpetual injunction to restrain the Defendant, his agents, servants, assigns, privies, workmen and the members of the Adwinadze family and anybody claiming through them from entering or developing the land described in paragraph 3 and 1 above or in any other manner interfering with the Plaintiff’s enjoyment or use of the land

An order of recovery of possession of the said tracts of land.

General damages for trespass

Costs

i. Any other relief(s) that the Honourable Court may deem fit to make.

3. It is the case of the Plaintiff/Respondent that his ancestors migrated from Techiman many years ago to the South and acquired the land in dispute by settlement; that sometime in 1931, the Defendant’s ancestors trespassed unto the disputed land. The Plaintiff averred that his ancestors instituted an action for declaration of title and recovery of possession of the said land at the State Council at Nkusukum at Yamoransa. The Plaintiff alleged that judgment was entered for his ancestors but on appeal by the Defendant, the judgment in favour of his ancestors was reversed on two grounds namely that the tribunal that tried the suit lacked jurisdiction and secondly that the Plaintiff in that case had no capacity to sue. The appellate court then gave the Plaintiff the right to institute a fresh action against the Defendant. The Plaintiff/Respondent claimed that on 28^th September 1937, the Native Tribunal delivered judgment in favour of his family and decreed possession of the land in his family; the Plaintiff/Respondent further averred that all the documents relating to the disputed land got lost and the Defendant/Appellant has taken advantage of the lull in the matter and is selling portions of the disputed lands and had through fraud and force, dispossessed some members of the Kona family from part of the land; hence the reliefs he is seeking from the court.

4. The Defendant/Appellant on his part resisted the action of the Plaintiff/Respondent. He contended that the Egyabirim and Anabamu lands form part and parcel of a larger stretch of land whose virgin forest was broken by the founder and first chief of Biriwa who is their ancestor. The Defendant argued that since the occupation of the Egyabirim and Anabamu lands which served as a source of water for them, they had been in exclusive possession and ownership of the said stretch of land. The Defendant/Appellant further argued that the Egyabirim and Anabamu lands were not part of the subject matter that went to court. The Defendant/Appellant conceded that the matter was determined in favour of the Plaintiff/Respondent’s ancestors by the Native Tribunal but his ancestors’ appeal against the judgment was upheld. The court however ordered a trial de novo which the Plaintiff’s ancestors commenced but abandoned. It was therefore the contention of the Defendant/Appellant that there is no court Ruling declaring the Plaintiff’s title to the lands in that suit.

5. The Defendants did not file any counterclaim. Issues were joined and six were set down for trial at the Application for Directions stage by the Plaintiff as follows:

Whether or not the Plaintiff is the head of the Kona Dadzie family

Whether or not the Plaintiff’s family owns the disputed land

Whether or not the Defendant and his family perpetrated fraud on the Plaintiff’s family

Whether or not the judgment in the case of “Abena Amakyewa vrs Adjoa Enyimah” conferred titled in the disputed land on the Defendant and the family

Whether or not the Defendants are estopped from denying the title of the family of the Plaintiff to the disputed lands.

Any other issue that may arise from the pleadings

6. The Defendant/Appellant also filed two additional issues for the trial. These are:

That it be set down for preliminary legal argument arising from the pleadings whether or not paragraph 25 of the Amended Statement of Claim constitutes a clear and unambiguous admission by the present Plaintiff that his ancestor Kobina Kyeredeh in the suit entitled KONBINA KYIREDEH VRS OBAHIMA ADJOA EYIMAH (KOFI AKOM) SUBSTITUTED, then pending before the Native Tribunal of Nkusukum State, failed and refused to refund the costs to the Defendant’s ancestor as directed by the West African Court of Appeal by its judgment dated 15^th day of May 1936 and also refused to pay a further cost awarded against him by the Native Tribunal of Nkusukum State on the 30^th October 1937 and did not pursue the action.

That it be set down for preliminary legal argument as raised by the Plaintiff (sic) Defendant by paragraphs 48 and 52 of the Amended Statement of Defence that the Plaintiff’s right to commence this action for declaration of title, possession, perpetual injunction etc. is extinguished, foreclosed and caught by Sections 10(1) and 10(6) of the Limitation Decree, 1972 (NRCD 54) since the Plaintiff’s family went to sleep for more than 65 years after the abandonment of the suit before the Native Tribunal of Nkusukum State before commencing the present action and therefore the action is statute barred.

7. For better clarity, we reproduce herein below paragraph 25 of the Amended Statement of Claim and paragraphs 48 and 52 of the Amended Statement of Defence.

Paragraph 25 of the Amended Statement of Claim:

“The Plaintiff says that the West African Court of Appeal ordered that the cost the Defendant therein paid to the Plaintiff therein should be refunded. In addition to the cost awarded against the

Plaintiff/applicant on the 30^th October, 1937 the Plaintiff says that the inability to pay the cost weighed down his ancestors to pursue the matter any further when the fraudulent acts of the Defendant’s ancestor occurred”.

Paragraph 48 of the Statement of Defence (P. 291 of ROA):

“The Defendant therefore avers that the present Plaintiff’s action and claim against the Defendant and for that matter his Adwenadze family is foreclosed and caught by Sections 10(1) and 10(6) of the Limitation Decree 1972 (NRCD 54) from commencing the present action against the Defendant. The Defendant therefore shall raise this preliminary point of law for determination by this Honourable Court.”

Paragraph 52 of the Statement of Defence (page 291 of ROA):

“The Defendant avers that the Plaintiff’s claim per the endorsement on the Writ of Summons in respect of Anhwiabafufu, Pataabu, Egyabinakyir and Ankumabuom parcels of land and the other ancillary reliefs are caught and foreclosed by Sections 10(1) and 10(6) of the Limitation Decree 1972 (NRCD 54).”

8. As procedure demands, the preliminary legal issues had to be taken first. After the arguments on the two preliminary legal issues, the Learned Trial Judge delivered his Ruling on 7^th July 2008 dismissing the Defendant/Appellants Application. His reasons for dismissing the Defendant’s Application were that evidence was required to be taken to prove adverse possession which is one of the conditions precedent to a successful invocation of S.10(1) and (6) of the Limitation Act and that this could not be by affidavit evidence. The Trial Judge also held that the judgment on which both parties relied was taken against a Stool which is separate in customary law from the Family; in other words, that in law, the Stool and the Family are two different and distinct legal entities. The Trial Judge concluded that the Application at that stage was premature, indicating that when evidence is taken and it is clear Section 10 of the Limitation Act should fall on the Plaintiff, it will.

9. The Defendant/Appellant, being dissatisfied with this interlocutory Ruling filed his Notice of Appeal against same on 24th July 2008. He anchored his appeal on six grounds. These are:

The trial judge erred by not holding in his ruling that paragraph 25 of the Amended Statement of Claim which stated that the judgment of the West African Court of Appeal dated 15^th day of May 1936 which ordered the Plaintiff/Respondent’s ancestor to refund the costs awarded before the Nkusukum Native Tribunal as well as the cost awarded by the Nkusukum Native Tribunal dated 30^th October 1937 to be paid by the Plaintiff/Respondent’s ancestor to the Defendant/Appellant’s ancestor to pursue the suit de novo before the Nkusukum Native Tribunal, Yamoransa as ordered by the West African Court of Appeal in its judgment dated 15^th May 1936 constituted an admission of abandonment of the said suit by the present Plaintiff/Respondent.

The trial judge therefore erred in his ruling by not holding that the Plaintiff/Respondent, being a privy to the acts of his ancestor Kobina Kyiredeh in the suit entitled Kobina Kyeredeh vrs Obaahima

Adjuah Enyima of Biriwa Kofi Ackon substituted dated 30^th day of October 1937 is affected by the Limitation Act of 1623 (21 Jac 1c 16) being a stature of general application which was replaced by the Limitation Decree 1972 (NRCD 54) from commencing the present action.

The trial judge erred in his ruling by separating the interest of the Stool of Biriwa from the interest of the Royal Adwenadze family of Biriwa when the occupant of the stool of Biriwa is a member of the Royal Adwenadze family and for that matter have the same interest and constitute one entity.

The trial judge should by his ruling have dismissed the writ of the Plaintiff/Respondent as a nullity on grounds that the Plaintiff/Respondent’s ancestor having failed to pursue his action before the Native Tribunal of Yamoransa after the said 30^th day of October 1937 ruling of the said Nkusukum Native Tribunal, the present Plaintiff/Respondent could not by law commence the same action in 2005 in the High Court against the Defendant/Appellants Adwenadze family of Biriwa.

The ruling of the trial judge is against the weight of pleadings, affidavit and documentary evidence

Additional grounds of appeal with the leave of the Court of Appeal will be filed on receipt of a copy of the Record of Appeal.

No additional grounds of appeal were filed.

10. By way of preliminary remarks on the grounds of appeal, we note that grounds (a) to (d) patently offend Rule 8(5) of the Court of Appeal Rules 1997 C. I. 19. The said provision directs as follows: -

“8. Notice and grounds of appeal

(5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.” (Emphasis added)

For that infringement alone, they ought to be struck out as being argumentative and or narrative. However, since this is a matter of non-compliance with procedure and not statute per se, this court will exercise its discretionary power under Rule 63 of CI 19 and waive the non-compliance. The said Rule 63 provides as follows: -

“63. Waiver of non-compliance Rules

When a party to any proceedings before the Court fails to comply with these rules or with the terms of any order or directions given or with any rule of practice or procedure directed or determined by the Court, the failure to comply shall be a bar to the further prosecution of proceedings unless the Court considers that the non-compliance should be waived.”

Evaluation of the Defendant/Appellants Written Submission

11. The Defendant/Appellant filed a four-page Written Submission on 27^th April 2012. Two pages are taken up by a repeat of the reliefs claimed by the Plaintiff/Respondent and the grounds of appeal filed by the Defendant/Appellant. A third page is taken up by a narrative of the Defendant’s case before the Trial Court. The arguments part of the Written Submission made blanket submissions without reference to any of the grounds of appeal. Suffice it to say that it will be a legitimate inference to say that the Defendant/Appellant’s Written Submission is hardly related to the grounds of appeal filed by him.

12. However, since every appeal is by way of rehearing pursuant to the directive in Rule 8(1) of C I 19 and a plethora of decided cases, despite the unhelpful Written Submission by the Defendant/Appellant this court still has the duty to evaluate all the evidence on record and come to its own conclusion as to whether the trial judge was right or wrong in dismissing the application by the Defendant/Appellant.

13. Ground (a) of the appeal deals with the alleged abandonment of the suit before the Nkusukum Native Tribunal by the ancestors of the Plaintiff/Respondent. Ground (b) deals with the application of the Limitation Act, 1972 (NRCD 54) while Ground (c) deals with the separation of the interest of the Stool of Biriwa from the interest of the Royal Adwinadze family of Biriwa. Ground (d) is a repetition in different words of the abandonment of the 1937 suit. It is the contention of the Appellant that the trial judge erred in the conclusions he came to in respect of these issues. The final ground (e) is the omnibus ground that the ruling is against the weight of the pleadings, affidavit and documentary evidence. Instead of pointing out very clearly the piece of evidence in his favour that the trial judge did not apply to him and or the wrong pieces of evidence or law that was wrongly applied to him to his disadvantage, the Defendant/Appellant’s scanty Written Submission merely repeated the position he stated in the trial court that the Plaintiff’s ancestor abandoned the suit in respect of the land in dispute in 1937 and is therefore estopped from re-litigating the same matter and that the suit is also caught by Sections 10(1) and (6) of the Limitation Act, 1972.

14. For better clarity, the entire Section 10 of the Limitation Decree is reproduced herein below: - “Section 10—Recovery of Land.

(1) No action shall be brought to recover any land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.

(2) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (in this section referred to as "adverse possession").

(3) Where a right of action to recover land has accrued, and thereafter, before the right of action is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to accrue until the land is again taken into adverse possession.

(4) For the purposes of this Decree, no person shall be deemed to have been in possession of any land by reason only of having made a formal entry thereon.

(5) For the purposes of this Decree, no continual or other claim upon or near any land shall preserve any right of action to recover the land.

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

15. It is apparent from the above provision, that for limitation under Section 10 to succeed, it must be used as a shield and not as a weapon. It must therefore be specifically pleaded, for the court will not out of its own motion take notice that an action was out of time. See the case DOLPHYNE (NO 3) V SPEEDLINE STEVEDORING CO LTD and another [1996-1997] SCGLR 514. Fortunately, the defendant/Appellant pleaded Limitation.

There must also be adverse possession, which must be open, visible and unchallenged by the legal owner and where such a “trespasser” remains in possession for an uninterrupted period of twelve years or more to the exclusion of the owner, the title of the owner will be extinguished. See ADJETEY ADJEI & ORS V NMAI BOI & OTHERS (2013-14) 2 SCGLR 1474, at Holding 2.

The party who relies on limitation must first claim that he/she is in adverse possession to the knowledge of the owner continuously for 12 years or more. The Defendant/Appellant however denies that he is in adverse possession and that he is in possession as of right by virtue of his ancestor having broken the disputed land as a virgin forest. Evidence will be required to establish adverse possession and this cannot be determined by the affidavit evidence on record.

It is an uncontested fact in this case that the Defendant’s family has been in possession of the land for more than 12 continues years, thus satisfying the requirement of S.10(1) of NRCD 54. However, the issue of adverse possession as per S10(2) of NRCD 54 cannot be established based on the affidavit evidence on which the issue was contested since both parties claim possession as of right, the Plaintiff/Respondent by reason of settlement by his ancestor and the Defendant/Appellant as already noted by reason of his ancestor have broken the virgin forest of the land in dispute.

The Supreme Court held, under Holding 4 of DJIN V MUSAH BAAKO (2007 - 08) SCGLR 686 that when it comes to limitation, the essence of the matter is “adverse possession” and not the history of the original title. Also see the English case of J.A. PYE (OXFORD) LTD AND ANOTHER V GRAHAM AND ANOTHER (2002) 3 ALL ER 865 HL.

16. The Plaintiff/Respondent has also pleaded fraud against the Defendant/Appellant. Under Section 22(1) of the Limitation Act, time does not run where fraud is pleaded and proved. Hear what Section 22(1) of the Limitation Act says.

“Section 22—Fraud and Mistake.

(1) Where, in the case of any action for which a period of limitation is fixed by this Decree—

(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or

(b) the right of action is concealed by the fraud of any such person, or

(c) the action is for relief from the consequences of mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or mistake, as the case may be, or could with reasonable diligence have discovered it:

Provided that, for the purposes of this Decree, concealed fraud by one of concurrent wrongdoers shall not suspend time for another or others.”

Proof of fraud requires the taking of evidence. Section 22(1) does not however apply to bona fide purchasers. The Defendant/Appellant does not claim to be a bonafide purchaser.

Counsel for the Defendant/Appellant made submissions on estoppel by acquiescence against the Plaintiff/Respondent. Counsel for the latter took objection to the submission on the ground that it was not embodied in the grounds of appeal and we agree with him. We therefore invoke this courts discretionary power under Rule 8(8) of C I 19 against that submission. Rule 8(8) provides as follows: -

“8. Notice and grounds of appeal

8) Notwithstanding sub rules (4) to (7) of this rule, the Court in deciding the appeal shall not be confined to the grounds set out by the appellant but the Court shall not rest its decision on any ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.” (Emphasis added)

17. Counsel for the Plaintiff/Respondent submitted that the paragraph 25 of their Amended Statement of Claim on which the Defendant/ Appellant based his first ground of appeal was taken out of context. Counsel submitted that a reading of paragraphs 21 to 26 of the Amended Statement of Claim will bring out the full import of the said paragraph 25. It is observed that paragraph 22 of the Amended Statement of Claim alleges fraud on the part of the Defendant/Appellant’s family with the particulars of fraud itemized therein. It is trite learning that fraud vitiates everything and thus if proved, will do away with the issue of abandonment of the 1937 litigation under the ambit of Section 22(1) of the Limitation Act cited supra. Evidence will be needed to establish the veracity or otherwise of the particulars of fraud listed. The outcome of this will then determine whether the suit can be deemed to have been abandoned or not.

The Plaintiff/ Respondent also argues that limitation is not applicable because the earlier suit was in respect of Stool land while the instant suit is in respect of Family land and that this matter cannot be resolved without taking evidence.

18. This court also agrees with the Learned Trial Judge that the issue of limitation as a preliminary legal point is premature because a critical pre-requite for limitation (adverse possession) cannot be determined on the affidavit evidence relied upon. This is because the Plaintiff/Respondent pleaded possession of portions of the land from time immemorial and admitted that the Defendant’s family is in possession of some parts. The affidavit evidence could not help in determining who is in possession of which part and whether adverse possession has been established according to law.

In conclusion, upon an entire and critical evaluation of the evidence on record we affirm the decision of the trial court and accordingly dismiss the interlocutory appeal. The case is remitted to the trial court to be determined on its merits.

(SGD)

Angelina M. Domakyaareh (Mrs)

(JUSTICE OF APPEAL)

(SGD)

Irene C. Larbi (Mrs) JA           I agree                     Irene C. Larbi (Mrs)

     (JUSTICE OF APPEAL)

(SGD)

Lawrence L. Mensah, JA        I agree                        L. L. Mensah

(JUSTICE OF APPEAL)