IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ODWUMA LAKES FARMS & RURAL ESTATES LTD AND NAVAL CAPTAIN BAFFOUR ASSASSIE-GYIMAH - (Plaintiffs/Appellants)
MRS. VIVIAN AKU BROWN DANQUAH AND 3 OTHERS - (Defendants/Respondents)
DATE: 14 TH JUNE, 2018
CIVIL APPEAL NO: H1/117/2017
JUDGES: A. DORDZIE MRS. JA (PRESIDING), B. ACKAH-YENSU JA., H. KWOFIE JA
MR. BAFFOUR ASSASIE-GYIMAH FOR 2ND APPELLANT
COLONEL KOFI DANSO (RTD) FOR 1ST APPELLANT
MR. OBED WORDU FOR RESPONDENT
BARBARA ACKAH-YENSU (Ms) JA
In order to truly appreciate this appeal, one needs to recount the brief facts of the case leading to the appeal. Mrs. Vivian Aku Brown Danquah, 1st Defendant/Respondent herein, commenced an action (as plaintiff) at the High Court as Head of Adutso Family of Osu against Samuel Lanquaye Odartey, Head of Odartey Sro Family also of Osu (as defendant) for, inter alia, a declaration of title to a parcel of land said to be located at Abokobi in the Greater Accra Region covering over 500 acres. The said defendant denied that the plaintiff was entitled to her claims and counterclaimed, amongst others, for declaration of title and recovery of possession. At the end of the trial, the learned trial Judge dismissed the plaintiff’s claim and gave judgment for the defendant on his counter claim.
The plaintiff successfully challenged the judgment at the Court of Appeal resulting in it being set aside and judgment entered for the plaintiff. The Court of Appeal declared the plaintiff’s family, the Adutso family of Osu, as the beneficial and lawful owners of the disputed land. The defendant aggrieved by this decision then appealed to the Supreme Court. The Supreme Court however unanimously affirmed the decision of the Court of Appeal in Civil Appeal No. J4/4/2016 which is reported in the Ghana Monthly Judgments (2016) 103 GMJ 167.
The 1st and 2nd Plaintiffs/Appellants (hereafter referred to as “Appellants”) acquired parcels of land from the Odartey Sro Family. The Plaintiffs allege that they had been in peaceful possession of their land until November 2004 when the Defendants/Respondents (also to be referred to simply as “Respondents” hereafter) together with other people, without lawful authority trespassed on to the said land and properties thereon claiming that they had won a case at the Court of Appeal against the Appellants’ grantors. The 1st Respondent is the head of the Adutso Family to which the 2nd Respondent is said to belong, with the 3rd and 4th Respondents being sued as agents of the said family.
Appellants instituted the present action against Respondents for reliefs that included a declaration that they have been on the disputed land, for nearly thirty (30) years and that even if the Respondents won their case against Appellants’ grantors, that would not invalidate their adverse possession for well beyond the Statutory Limitation period of twelve (12) years. The Appellants were also seeking a declaration that they were “bona fide purchasers” for value without any notice of the Respondents’ encumbrance. They also argued that Respondents were guilty of laches having acquiesced to Appellants visible occupation and possession of the disputed land for almost thirty years without any complaint.
Before we proceed any further we want to comment on a procedural lapse by the Appellants which need to be corrected. The Appellants titled their pleadings “Joint Statement of Claim”. There is nothing like that. The position of the law is that when parties sue in common they file one statement of claim. Indeed, as they were acting by the same Counsel who issued the writ on their behalf, it is difficult to comprehend how they could in the said circumstances have filed separate statements of claim. We hasten to say that trial judges should exercise their power of superintendence over proceedings to ensure that procedural lapses such as this are avoided as an omission to direct the attention of parties to such deviations from the practice of the court tends to encourage their repetition in the future. Accordingly, in the exercise of the power conferred in the High Court Rules, C.I. 47, we hereby amend the said document to read simply “Statement of Claim”.
Upon entering appearance in the case herein the Respondents filed an application to dismiss Appellant’s action as inter alia, disclosing no cause of action and amounting to “an abuse of the legal machinery”. On 13th January 2016 the trial court gave its ruling and sustained the objection raised by the Respondents and granted the application. The appeal herein relates to the said Ruling in which the following grounds have been raised:
“The learned trial judge erred in law and in fact when she ruled that issues determined in the previous case involving Plaintiffs’ grantors and the 1st Defendant are the same as the issues in this case when in fact, the legal issues and the parties in both cases as found in the two writs are entirely different, both in form and in substance.
The learned trial judge erred in law by not appreciating the legal effect of the principle that a prior purchaser of land cannot be estopped or affected as being privy in estate by a judgment against his vendor which was commenced after the purchase and that the Plaintiffs had at the hearing cited two Supreme Court case – Attram v Aryee  GLR 341 and Klu v Konadu Apraku  SCGLR 741 at 744 to support the legal principle.
The learned High Court judge erred in law when she held that Plaintiffs’ case is an abuse of the court process and in effect shutting the doors of justice against the Plaintiffs.
The learned trial judge misdirected herself when she held that Plaintiffs should have applied to join in the original suit between their vendors and the Applicant when evidence available indicated that Plaintiffs were not aware and could not have been aware of the pendency of that suit.
The learned trial judge erred in law in not appreciating the legal effect of adverse possession of land as provided in the Limitation Law 1972 (NRCD 54) and by not pronouncing on Plaintiffs’ plea under that law, the learned judge’s ruling has occasioned a grave miscarriage of justice to the Plaintiffs/Respondents/Appellants.
The learned judge erred in law by not considering the legal effect of possession of Land Title Certificate as provided for in the Land Title Registration Law PNDCL 152 of 1986 and thus occasioning a miscarriage of justice to Plaintiffs/Respondents/Appellants.
The learned trial judge erred in law by not considering the legal effect of bona fide purchaser for value without notice of the encumbrance of the Defendants/Applicants/Respondents.
The learned judge erred in law by not considering the legal effect of acquiescence/laches which manifested when the Defendants/Applicants/Respondents stood by for so many years without challenging the Plaintiffs’ occupation of the land they now claim as theirs.
The ruling is against the weight of evidence presented to the Honorable Court.
) Additional grounds to be filed on receipt of the records.
The reliefs sought by the Appellants are that;
“1. The whole decision is reversed and case remitted to the High Court (another judge) for full trial.
2. Alternatively, the Court of Appeal re-years the case and makes a determination”.
Ground (9) is clearly incompetent. As enunciated by the Supreme Court in Asamoah vrs Marfo  2 SCGLR 832, an appellant’s ground of appeal against a judgment to the effect that the judgment was against the weight of evidence is completely misplaced if the matter did not go beyond the close of pleadings; in the instant case no statement of defence was even filed. This ground is clearly misconceived and without merit. We shall accordingly strike it out as unmeritorious.
Regarding the remaining grounds, Appellants are alleging errors of law in the Ruling of the trial Court. In their opinion, the learned trial Judge did not consider the relevant principles of law in arriving at her decision. The Appellants are therefore contending that the Ruling of the trial court was erroneous on a number of legal issues which have occasioned miscarriage of justice against them. We shall therefore consider all the grounds together in our judgment.
Before we do so however we will comment on the contention by Counsel for the Respondents that grounds 2,4,5,7 and 8 sin against Rule 8(5) of Court of Appeal Rules, 1997, C.I.19. We disagree with Counsel; we do not see the wrong in the way the said grounds have been set out.
The thrust of Counsel for the Appellants argument is that the trial Judge’s conclusion that the reliefs sought by the plaintiff in the earlier case are the same as those sought by the Appellants against the grantors of the said plaintiff, is wrong. Appellants’ Counsel argued in his written submissions that “their quest for judicial intervention with their claim based on the Land Title Registration Act  PNDCL 152, and their being bonafide purchasers for value without notice of Defendants incumbrance and their being in adverse possession of the lands for well over twelve years are distinct legal issues from whatever reliefs Defendants/Respondents sought against plaintiff’s grantors. The same goes for plaintiff’s legal remedy of laches as well as their claim based on the settled legal principle that purchasers of land are not affected or estopped as being privies in a judgment adverse to their vendor in proceedings commenced subsequent to the acquisition”.
The contention of the Respondents’ Counsel in his written submissions, and which was affirmed by the trial Court was that the Appellants claimed their title through the Odartey Sro family, against whom the Supreme Court made a pronouncement to the effect that the said Odartey Sro family had no title to the disputed land. The Appellants in the instant case therefore could not re-litigate the issue of title, recovery of possession, perpetual injunction etc. That, it would be nothing but sheer abuse of the courts process. Respondents relied on the doctrine of res judicata as expatiated in the case of Re Sekyedumase Stool: Nyame vrs Kese Alias Konto [1998-99] SCGLR 476 at 478. Counsel also argued that the Appellants, as lessees of Odartey Sro family who lost the case, cannot re-litigate the same issues which were determined against their grantor. That, he contended, would constitute an abuse of the court process.
The learned trial Judge opined in her Ruling that because the issues in both the earlier and the instant cases were the same, the institution of the instant action was an abuse of the court process. This is what the trial Judge stated at page 3 of her Ruling (page 63 of ROA): “I have given careful thought to the reliefs sought by the Respondents in this court and I have no doubt in my mind that the same were the reliefs granted 1st Applicant by the Court of Appeal”.
For a clearer understanding of the opinion we are about to deliver, we will reproduce the reliefs sought by the Respondents (as plaintiffs) at the High Court in the earlier suit (as can be gleaned from page 26 of the judgment of the Court of Appeal), and those sought by the Appellants in the present case.
The Respondents claim was for the following reliefs:
1. A declaration that the Plaintiffs’’ family on the Adutso family of Osu are the beneficial and lawful owners of the disputed land.
2. That the Plaintiffs’’ family are entitled to recover possession of the disputed land from the defendant family.
3. A declaration that the Statutory Declaration made by the Defendant’s family covering Plaintiffs’ land and registered as No. 3303/74 was wrongful, null and void and of no effect.
4. That the Lands Commission and Land Title Registry are ordered to expunge the plotting and registration of Plaintiffs’ family land, the subject matter of the suit in the name of Defendant’s family (Odartey Sro family of Osu) from its record.
5. That the Defendant’s family, their agents, servants, assigns, successors, privies or anybody claiming through them are hereby restrained from dealing or interfering with the enjoyment of the said land by the Plaintiff’s family herein”.
Appellants on the other hand sought the following reliefs in their Statement of Claim: -
a. Declaration of title to all parcels of land described in the Joint Statement of Claim below by virtue of the Plaintiffs’ registered interests and Land Title Certificate acquired under the Land Title Registration Act (1986) PNDCL 152.
b. Declaration that the Plaintiffs’ are the bona fide purchasers for value of the parcels of land described in the Statement of Claim without notice of any encumbrance on the land other than that of their Lessor the Odartey Sro Family.
c. Declaration that the Plaintiffs having been in effective possession of those lands described in the claim, for periods well over twelve years are the owners of those lands by virtue of Limitation Act of 1972 (NRCD 54) and that the titles of the Defendants, if any extinguished.
d. Declaration that the Defendants even if they have any interests in the land have acquiesced to the Plaintiffs long possession and are guilty of laches.
e. Declaration that the Plaintiffs who are purchasers of land are not affected or estopped by any judgment adverse to their vendor in proceedings they were not parties and commenced subsequent to their acquisition of title.
f. Declaration as null and void all grants to known and unknown developers by the Defendants or their agents.
g. Recovery of possession of all the parcels of land trespassed upon by the Defendants and their agents with force of arms.
h. Order for the removal of all unwanted structures on the land and the cost of removal borne by the defendants jointly and severally.
i. Punitive damages against the Defendants for trespass committed with the use of force of arms and for physical assault and mental distress.
j. Perpetual injunction to restrain the Defendants, their and guard, agents, workers, servants, privies or anyone claiming through them from entering or dealing in any manner whatsoever with the said parcels of land.
k. Further or other reliefs”.
Clearly the two sets of reliefs cannot be said to be the same. We must also add here that the size of the parcel of land declared by the Court as owned by the Adutso Family was said to be over 500 acres. In their Statement of Claim however, the Appellants only lay claim to approximately 15 acres for the 1st Appellant and approximately 6 acres for the 2nd Appellant. As aforesaid, Counsel for Respondents relied on res judicata in his written submissions. The doctrine of res judicata has been described by Spencer Bower (G. Spencer Bower, The Doctrine of Res Judicata, 1924 at p.1) as applying to “a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the parties thereto”. To constitute an estoppel per rem judicatam, there must be identity of subject-matter. This comprises, as Bower explains, “not only identity of subject-matter in a physical sense, but also identity of subject-matter in a juridical sense, identity of the question or issue raised. This position has been espoused in the Ghanaian case of Nii Akramah II & Ors vrs. Robertson (Consolidated)  2 GLR 301. Clearly, evidence had to be adduced to determine the identity of the land being claimed by the Appellants.
Counsel for Respondents relied on two Supreme Court cases on the rule of public policy that litigation should not drag on forever; see Assafuah vrs. Arhin Davis [2013-2014] SCGLR 1459; and Naos Holding Inc. vrs. Ghana Commercial Bank  1 SCGLR 492. In our view, the said Supreme Court cases can be distinguished from the instant one. The Appellants herein are not challenging the factual findings of the Court of Appeal and Supreme Court as the Appellants did in the said cases. The apex court held therein that in the absence of “special circumstances”, the parties could not return to the Court.
The question to ask therefore is; is the Appellant’s writ therefore an abuse of the court process as contended by the Respondents? The statement of Wigram VC in the course of his judgment in Henderson vrs Henderson  3 Hare 100 at 114 has come to be accepted as the genesis of the exposition of the doctrine. The rule though is primarily based on public policy which prevents the same question being tried twice, it also secures to the private individuals the advantage of not being vexed with a litigation on a subject matter which has been concluded and merged in the judgment of a court of competent jurisdiction. In the course of his judgment in a matter in which the plaintiff sought an injunction to restrain the enforcement of a previous judgment the following statement was made by Wigram VC.
“…. where a given matter becomes the subject of litigation in, and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstance) permit the same parties to open the same subject of litigation in respect of matter(s) which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, advertence, or even accident, omitted part of their case. The plea of res judicata applies except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward the time”.
In a restatement of the above in an article published in 1929 by Robert Von Moschzisker in
Volume 38 of the Yale Journal, he wrote as follows:
“Speaking broadly, the rule of res judicta means that when a court of competent jurisdiction has determined on its merits, a litigated cause, the judgment entered, until reversed is, forever and under all circumstances, final and conclusive as between the parties in the suit and other privies, in respect to every fact which might properly be considered in reaching a judicial determination of the controversy, and in respect to all points of law there adjudged, as those points relate directly to the cause of action in litigation and affect the fund or other subject-matter then before the court. And under some circumstances, a judgment will, in certain respects, so establish the legal status of an object or person directly involved in a suit as to bind all parties who may subsequently deal with it or him, even though those thus dealing may have had no connection with the litigation in which the judgment was entered. Issues of fact actually determined in a prior suit, and also those which were relevant subjects for determination therein, cannot be re-examined in a subsequent legal proceeding, between the same parties or their privies, involving the identical cause of action formerly tired. Even where the cause of action in a pending suit is not identical with that previously litigated between the parties, all relevant issues of fact that were actually raised in the prior litigation are res judicata between the parties and their privies, - though, under such circumstances (that is, where the second suit turns on a different cause of action) issues which might have been, but were not, raised and determined in the prior suit, are not accounted in law as res judiciata. Finally, the rule of res judiciata holds good not only in the court which rendered the judgment in question, but in other tribunals where the same facts or points of law may later be directly in issue”.
There are therefore exceptions to the rule. And one of the exceptions is that to constitute res judicata a judgment must have a different cause of action. This position was emphasized by our own Supreme Court in the case of Dzidzienyo vrs Tsaku and Others [2007-2008] SCGLR 531.
In the Supreme Court case of Attorney-General vrs. Sweater & Socks Ltd [2013-2014] 2 SCGLR 346, the position of the law on abuse of the court process has been exhaustively discussed. Georgina Wood, JSC (then Chief Justice), posited that when matters on law are raised in subsequent cases, it cannot be an abuse of the court process. Her Ladyship at page 968 had this to say: “We would quote in extenso the observation of Dr. Date-Bah, (JSC) (as stated at pages 768-769 of the Report Sasu vrs Amua Sekyi) as follows:
“The rule in the Henderson vrs Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise”.
Her Ladyship continued at page 969 with an explanation of “the special circumstances” thus;
“More importantly, it is very clear from the abuse of process doctrine as discernible from all the decisions of this court, without a single exception, that SPECIAL CIRCUMSTANCES (emphasis mine) would justify its exclusion or applicability and allow the litigation of issues which could have or ought to have been brought up for adjudication in a previous action, but were not. Given that estoppels of all kinds cannot override the laws of this land, we would include, constitutional questions arising from alleged CONSTITUTIONAL or STATUTORY VIOLATIONS (emphasis mine) such as the one raised before us, as some of the exceptional grounds on which, in fresh action involving the same parties or privies, a defendant cannot successfully rely on the plea of abuse of process in defence. A plaintiff would therefore be at liberty to raise any such fundamental issue in a subsequent law action, with the success or otherwise of a plaintiff’s plea or claim, among an altogether different matter for the court’s consideration”.
Special circumstances, would thus include a resort to statutory reliefs. The fundamental issue raised in this appeal therefore is whether the Appellants made a case for consideration by the trial court that there were special circumstances that would justify or allow litigation of issues that could have or ought to have been adjudicated in the previous action.
As aforesaid, Counsel for the Appellants argues in his Written Submissions that although the decision of the Court of Appeal (which was affirmed by the Supreme Court) in which 1st Respondent was adjudged owner of the disputed land; the Appellant’s grantor’s registration ordered to be expunged; and the Appellant’s grantor’s family, their agents,
assigns, privies etc. restrained from interfering with the 1st Respondent’s enjoyment of land, did not preclude Appellants from asserting any or all the rights conferred on them by law whether they were privies or not.
So what are these rights conferred on the Appellants by law that give rise to special circumstances in the case herein?
Counsel for the Appellants referred to the legal effect of the principle that a prior purchaser of land cannot be estopped or affected as being privy in estate by a judgment against his vendor which was commenced after the purchase. This principle becomes relevant consequent on the opinion of the trial Judge as follows (see page 63 ROA).
“Respondents who contended that a decision of the court would not in law effect the prior grant failed to support the assertion with any precedent whatsoever. It is trite that the decision of a court of competent jurisdiction is binding on the parties, their privies, agents and assigns and those deriving title from them. It is obvious that the respondents’ grantor has no title to pass on to the respondents. The “nemo dat” rule applies. To my mind respondents should have applied to be joined as parties to protect their interest in the earlier suit. Judgment having been entered against their grantors, they cannot as privies or assigns assert that their interest in the land was prior to the decision of the court and therefore they are not affected by the decision. I uphold the submission that reliefs sought in the instant suit were determined in the earlier suit and the decision of the appellate court are binding on the privies, assigns or persons claiming through the defendants in the suit. Respondents are estopped from re-litigating issues relating to declaration of title and recovery of possession which have been adjudicated upon by the Court of Appeal in favour of the applicants while they sat by. The suit is dismissed as abuse of the court process”.
In Ghana most land cases are determined according to Ghanaian customary law because of the choice of law rules. One question, however, has since early colonial times always been decided by common-law principles: the question whether a party is estopped by previous litigation from making a claim. Thus a court often applies common law to determine whether an issue may be raised, and then, having given an affirmative answer, applies customary law to determine its validity. Since 1960 however statute has confirmed the practice.
Counsel for the Respondents in his written submissions relied on the case of Gyimah & Brown vrs Ntiri (Williams-Claimant) [2005-2006] in which Dr. Date-Baah JSC stated at page 256 thus:
“…. The High Court has already made a final determination on the entitlement to a particular piece of property, which is binding on the claimant to the property either because he is a privy of a party to the suit in which that final determination was made or because he is in a situation analogous to that of a privy”.
It must be noted that the discussion by Dr. Date-Bah was regarding the law on priority between two competing equitable interests. An issue raised in the said case was whether the plaintiffs’ failure to take possession after the creation of their equitable interest affected the equality of the equities. Dr. Date-Bah quoted Prof. Kludze JSC, in his book Modern Principles of Equity (Fortis Publications, 1988) p35, where he summarized, the circumstances in which a prior equitable interest may be postponed to a subsequent one to include the purchaser without notice.
In the same case of Gyimah & Brown vrs Ntiri (supra) the then Chief Justice, Georgina Wood (JSC) posited thus:
“The Claimants unchallenged affidavit, as stated in paragraph (3) thereof dated 18th February, 1998, as well as the exhibit BB1 disclose that the sale was concluded on 7th September, 1995, where’s the proceedings were begun by issue of the writ a year later, on 7th February, 1996. Since the purchases took place well before the original action was instituted, the judgment obtained therein cannot bind the Claimant I am of the opinion that the Claimant is not estopped per rem judictam”.
This is the law and it is settled; and the law is not only settled, but is binding on the trial court. In our view, the trial Judge’s approach to estoppel was too simplistic. It is not the learning we know of estoppel by previous judgment. The learned trial Judge appears to have made a determination of estoppel prematurely; she could only have determined it if she had come to the conclusion after the reception of evidence in support of the Appellants’ case that it was inapplicable.
Furthermore, the opinion of the trial Judge that Appellants should have joined the original action between their grantors and the defendants to take care of their legal interest cannot be sustained. There is nothing on the record to suggest that the Appellants were aware of the pendency of the suit, and the Respondents have not provided any evidence to show that the Appellants knew of the existence of the earlier suit between their grantors and the 1st Respondent’s family. In that regard, Counsel for Respondents’ submission relying on Bruce vrs Quaynor  GLR 292 is rejected by us.
The Appellants have averred in their pleadings that they are relying on the legal principle of being bonafide purchasers for value without notice of any encumbrance from any person including the Respondents (see para 19 of Statement of Claim). Their case is that before they registered their title deeds they conducted searches and went through all the registration process to ascertain that they were with the right grantors. In effect, they in good faith dealt with their grantors who had even registered their interest as No.3303/74 in the land by declaration.
Appellants claim further that the Respondents were not physically present on the land and neither were their tenants nor assigns to give notice of their interest to the Appellants. Having gone through all the requisite acquisition processes without the interest of the Respondents being made manifest, and having expended money and time in the acquisition, it is their contention that they are genuine bonafide purchasers of the disputed land for value without notice of the Respondents’ interest.
It is trite learning that a purchaser who acquires land in good faith without knowing of someone’s prior equitable interest in the land has a valid defence in land law. It is one of the equitable doctrines meant to protect people who genuinely purchase land in good faith and it later turns out that the ownership of the land was not vested in his grantor at the time he acquired the land. The Respondents had a duty to lead evidence to show that Appellants did not have a valid defence in law, if that was their position.
In their Statement of Claim, the Appellants also averred in paragraph 16 (page 4 of ROA) that: “…… that for over twenty years they have been in possession of the lands, built and worked on the lands without any interruption from the Defendants and that oven if the Defendants have any titles to the lands their title is extinguished by virtue of the Limitation Act (NRCD 54) of 1972”.
The Appellants, in their Affidavit in Opposition to the Motion to Dismiss Plaintiffs Action (pages 48-58 of ROA), exhibited their title deeds. The lease document of 1st Appellant is dated 12th December 1986. The title document of 2nd Appellant is also dated 17th June 1977. These dates, on their face value, indicate that the Appellants have been on the disputed land for more than the twelve (12) years after which section 10(1) and (6) of the Limitation Act bars action to recover land as title to such land is extinguished. Their claim is thus based on the principle of adverse possession.
Adverse possession of land means possession which is inconsistent with the title of the true owner of the and. A person in adverse possession is known as a squatter. The policy of limitation is stated in the memorandum to NRCD 54 thus: “The Limitation of actions is a rule of public policy which provides the automatic termination of litigation after a fixed period of time. After this statutory period, a person’s right of action is barred and sometimes his title is extinguished”. This rule of public policy is expressed in the Latin maxim “intereste republicae ut sit finis litium” (it is in the interest of the public that litigation should end).
In the ancient case (but still good law); Ohimen vrs Adjei and Another  2 WACA 275, the position of the law was succinctly stated thus:
“The Native court’s statement of law and custom that undisturbed occupation of land for fifteen years vested the person in such possession with title to land is of course a misdirection. There is no prescriptive right in this country; undisturbed possession of land by a stranger for however long a time cannot ripen into ownership. See the case of Kuma vrs Kuma . It may, however, work the other way and operate as estoppel against as estoppel against an owner who has been guilty of laches amounting to fraud. Where the true owner sits by and allows a stranger to occupy his land, spend money or energy in improving it in the honest belief that it belongs to him, equity will not permit the true owner afterwards to recover possession of the land. See the case of Fiscian vrs Nelson & Baksmaty, and Abbey & Another vrs Ollenu. The correct position is that the true owner loses his right to assert his title and to recover possession of the land not that the stranger acquires title to it, through in actual fact he does thereby acquires title to the land”.
The learned trial Judge opined in her judgment that; “it is obvious that respondents grantor has no title to pass on to the respondents. The “nemo dat” rule applies”. In the case of Klu vrs Konadu Apraku  SCGLR 741) however, the Supreme Court ruled that adverse possession beyond the statutory limitation period deflated the “nemo dat quod non habet” principle.
Counsel for Respondents argued that the plea of Limitation was invoked by the Odartey Sro Family but was dismissed by the Supreme Court and therefore Appellants cannot be heard to be making the same plea. It must be pointed out that the fact that the plea of Limitation was invoked by the Odartey Sro Family, (as defendants in the earlier suit) does not preclude the Appellants from raising it in the present suit.
We are of the view that the issue regarding limitation ought to have been investigated by adducing evidence.
The Appellant also averred in their pleadings that they had acquired their parcels of land since 1986 from a grantor they had no reason to doubt was owner of the land. That, they had been in effective occupation of the land without the 1st Respondent laying any adverse claim. They used the land for residential and farming purposes, and also put up structures in pursuance of the purpose of acquisition. And that, they were never at any time challenged by the 1st Respondent’s family until they won the appeal against Appellants’ grantors and then went on the land to forcibly take over the properties. Counsel in support of their case, relied on Smith vrs Clay  3 Bro. C.C.639 in which Lord Camdon, Lord Chancellor said:
“A court ……….. has always refused its aid to state demands, where the party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith and reasonable diligence; where these are wanting, the court is passive and does nothing”.
Appellants are clearly relying on the rule of laches and acquiescence. This is a rule developed by the courts and not emanating from statute. It was developed in the English case of Ramsden vrs Dyson  LR 29. The doctrine prevents an owner of land who allows a stranger or squatter to develop his land and having, seen the mistake of the stranger or squatter sits down for the stranger or squatter to spend money to develop it within a reasonable time from benefiting from the mistake he could have corrected. The owner of the land would be deemed to have acquiesced or waived his right to the land. This doctrine, like the Statute of Limitations applies to people asserting adverse claim that is, strangers and squatters.
The Respondents’ Counsel submitted that Appellants never investigated their grantors’ title to the land. That, there were Adutso family’s tenant farmers on the land. There also existed Krobiworho and Masha Alahu villages on the land. Their further contention is that any intending purchaser of property would be put on his enquiry to make such investigations as to title to enable him rely on a plea of bona fide purchaser of value without notice. All this however would have to be pleaded by the Respondents and evidence led to prove the assertions. This however had not been done since no statement of defence was filed.
Again, in paragraphs 8 to 17 of their Statement of Claim, Appellants averred that on acquiring the parcel of land they had them registered either at the Deed Registry or the Land Title Registry. It is the case of the Appellants that before they could register their title all the known processes for registration were complied with. Publications were made in the newspapers which served as notice to the whole world. It is therefore their case that the fact of registration puts the whole world on notice that the Appellants had interest in the disputed land. Furthermore, if anybody had adverse interest they were required to so indicate. At the end of this process, the Appellants had their interest registered without any objection from anybody including the 1st Respondent’s family.
Section 43(1) and (4) and Section 48 of the Land Title Registration Act 1986 (PNDCL 152) provide that the rights of a registered proprietor of land acquired for valuable consideration or by an order of a court shall be indefeasible. An indefeasible title means a complete answer to all adverse claims on mere production of the certificate subject to S.46(1) and (f), and also fraud.
This law was expatiated in Brown vrs Quashigah [2003-2004] SCGLR 930. It is therefore for the Respondents to debunk the Appellants’ claim, and this cannot be done in the written submissions of Counsel.
Counsel for Respondents argues that the order of the Supreme Court to the Lands Commission and Land Title Registry to expunge the plotting and registration of the Odartey Sro Family land from its record, clearly destroyed the root of the Appellants’ Land Title Certificate thereby rendering it null and void. Furthermore, the registration of the land by Appellants cannot defeat 1st Respondent’s family’s title to the land in dispute.
It is trite learning that even if a party had registered his document of title, registration of deeds and documents of title per se would not confer title on a person; what matters are the underlying facts. So the question to ask is, what are the underlying facts in this matter? This question can only be answered when the parties are given the opportunity to adduce evidence.
The position taken by the Respondents and affirmed by the trial court, therefore, does not accord with the principle of law that third party rights acquired before the commencement of proceedings that resulted in the decision against the vendor did not operate to extinguish such rights. It was held in the case of Attram vrs. Aryee  GLR 341 SC inter alia, that a prior purchaser of land cannot be estopped as being privy in estate by a judgment against the vendor commenced after the purchase. As observed by Ollenu JSC who delivered the unanimous opinion of the court at page 345. “As regards the second point that the plaintiff who obtained his grant of the land from the Sempe Stool as far back as 1952, is bound as privy in estate to the Sempe Stool, by the judgment in a suit instituted subsequent to his grant, the court drew attention of learned counsel to the law that on the point as enunciated by Romer L.J. in Mercantile Investment & General Trust Co. vrs River Plate Trust, Loan & Agency Co.  1 Ch.578 at p.593 C.A, namely that “a prior purchaser of land cannot be estopped as being privy in estate by a judgment commenced after the purchase. See also Abbey vrs Ollenu  14 WACA 567 where the same principle was applied”.
The Supreme Court has had occasion to elucidate further on this position in the case of In Re Ashaley Botwe Lands: Adjetey Agbosu & Ors vrs. Kotey and Ors [2003-2004] SCGLR 420. Georgina Wood, JSC succinctly put the issue thus:
“I see an order directed at the beneficiaries who were never parties to this action, persons who have acquired lands from the defendants, but who were however not heard in these proceedings, contrary to the fundamental and plain rule of natural justice, the “audi alteram patem rule”. To order an annulment or cancellation of their documents without any notice to them and without having given them a hearing is, in my view, erroneous as the intention clearly is to dispossess them of their properties. I do not think we should in the interest of justice allow the order to stand”.
With all the legal issues raised by Appellants in their pleadings we are of the view that they raised a reasonable probable case to be enquired into. It was not for the trial Judge to even conjecture that their case was weak. The court ought to have enquired into these matters. It is clear therefore that the Ruling of the trial Court that the Appellants could not be heard because they were privies and that the institution of their action was an abuse of the court process was in error.
In conclusion, in the light of all the legal issues espoused and the fact that the parties needed to adduce evidence to prove their various contentions, the trial Judge erred by truncating the matter before her without allowing it to proceed to trial.
The appeal is allowed. The ruling of the High Court dated 13th January, 2016 is hereby set aside.
We do hereby evoke Rule 31(a) and 32(1) of the Court of Appeal Rules, 1997 C. I. 19 and order that the Registrar of the High Court restores the suit to the list to be tried by a court differently constituted as will be directed by the Chief Justice.
Cost of Gh¢5,000 awarded to the Plaintiffs/Appellants.
(JUSTICE OF APPEAL)
DORDZIE, JA I AGREE A.M.A DORDZIE (MRS.)
(JUSTICE OF APPEAL)
KWOFIE, JA, I ALSO AGREE H. KWOFIE
(JUSTICE OF APPEAL)