In this appeal against the judgment of the High Court Ho, delivered on the 21^st day of July 2015, the defendant/appellant (hereafter referred to as the defendant) seeks the setting aside of the judgment of the court below, and entry of judgment in favour of the defendant.

These are the matters antecedent to the appeal.

Sometime in the 1970’s the defendant, in pursuance of a project to extend electricity to the Volta Region, commenced engagement with the local authorities in the Volta Region. In further pursuance of the project, the defendant contacted persons who owned farms and buildings on land situate at the following areas of the Volta Region: Mafi Asiakpe, through Adaklu, to Ho and its environs.

Upon the understanding that the project would include the construction of electricity transmission lines, that is, the passing of high tension cables upon the erection of pylons, the owners of the farms and buildings in the areas specified were notified that a right of way for the purpose had been created through their lands. They were thus expected to yield their land to the Government for the purpose, and be paid compensation.

So it was that the plaintiffs were paid compensation, not for the land on which the transmission lines passed, but for the damaged crops and buildings on the affected lands. The electrification project was concluded in 1986.

In 2004, the plaintiffs commenced an action against the defendant seeking an order for the lands belonging to the plaintiffs to be valued for the payment of compensation to them. The court granted the order for the valuation of the lands at the expense of the plaintiffs, without the further order for the payment of compensation.

The parties then in 2007, commenced the instant suit at the court below, seeking the following reliefs: the payment of the sum of GHC1,124,984.25, being the amount found due upon the valuation of the land by the Land Valuation Board, pursuant to the order of the court made in the earlier 2004 suit. The plaintiffs also asked for the sum of GHC5,000 being the sum of money paid by the plaintiffs for the said valuation to be carried out.

After pleadings were closed, the court, upon application by the defendant, gave directions at the Application for Directions stage for the issues arising out of the pleadings to be resolved by legal arguments. The plaintiffs then amended their statement of claim to allege that their lands were taken from them wrongfully without the proper compensation payable. They contended that the Executive Instrument, requisite under the Lands (Statutory Wayleave) Act, 1963, Act 186 was not passed to acquire the Government’s right of way. Thus did the plaintiff’s plead fraud against the defendant with the following particulars:

i. Fraudulently representing to the plaintiffs and the general public that plaintiffs land have [sic] been acquired by the President of Ghana in accordance with the Lands (Statutory Wayleave) Act, 1963, Act 186;

ii. Making and publishing a deceitful, dishonest and fraudulent representation when defendant knew the same to be false, or did not have any reason to believe it to be true;

iii. Inducing plaintiffs by the fraudulent representations to acquiesce in the acquisition of their land;

iv. That by such fraudulent representations, plaintiffs suffered huge economic loss by not demanding the payment of adequate compensation for the use of their land.

By its amended pleading, the defendant denied fraud and contended that the lands of the plaintiffs had never been the subject of the Government’s compulsory acquisition. The defendant alleged that it was rather a right of way for use in the electrification project that had been created over their lands. Thus, the defendant contended that for the creation of a right of way by the Government, what the plaintiffs were entitled to by way of compensation, was payment for damage to crops and buildings but not for their lands per se. The defendant further contended that the plaintiffs’ action was statute-barred having been brought so long after the plaintiffs’ cause of action (if any), accrued. The defendant furthermore pleaded what amounted to a plea of estoppel per rem judicatam, alleging that in any event, the 2004 case, had already dealt with the dispute between the parties.

By reason of the allegation of fraud, the matter that had earlier been set for determination by legal arguments was not opened up for evidence to be taken. At the close of hearing the learned trial judge entered judgment for the plaintiffs.

The learned trial judge held inter alia that the defendant had failed to secure an Executive Instrument before it embarked on the activity to use lands belonging to the plaintiffs. He held also, that by narrowly interpreting the provisions of Act 186 to mean that compensation should be paid for damage to crops and buildings on the lands used for the electrification project, certain owners who did not have crops or buildings on their lands were deprived of due compensation for the use of their land by the defendant. He held further that the plaintiffs, whose lands had been rendered unusable, were entitled under S. 6 (4) of Act 186, to compensation for their lands in terms of the valuation that was carried out under the order of the court in the 2004 suit between the parties.

It is pertinent to note that this finding was in spite of the learned trial judge’s finding that there was no fraud as alleged by the plaintiffs in the defendant’s process, this is the process that resulted in the creation of a right of way for the use by the defendant in the project. Lastly, the learned trial judge who appeared to have missed the last pleading of the defendant, held that the defendant could not avail itself of the pleas of limitation, and estoppel per rem judicatam, although same were in fact pleaded.

It is against the said judgment that the instant appeal has been brought.

The appellant set out seven substantive grounds of appeal (the eighth promised a further ground which was never brought). We set them out extensively:

The judgment is against the weight of the evidence;

The honourable court erred when it primarily based the judgment on the non-availability on an Executive Instrument of the Right of Way;

The honourable court erred when it failed to distinguish compensation paid under the Land (Statutory Way Leaves) Act, Act 186, from that under State Lands Act, Act 125;

The honourable court erred when it sustained the plaintiffs’ case even though their allegation of fraud failed;

The honourable court erred when it failed to accept that the whole suit was caught by limitation and acquiescence;

The honourable court erred when it laid no emphasis on the fact that relevant compensations had been paid and accepted by the plaintiffs without complaint;

The honourable court erred when it failed to accept that the matter had earlier been tried and compensation for land per se had been refused.

In our judgment, this court must first of all consider grounds (e) and (g) which complained of the failure of the court below to hold that the plaintiff’s suit was caught by limitation and acquiescence, and was in any case, res judicata, being the subject of a previous suit.

We agree with the said contention: that the learned trial judge ought to have concerned himself with, and determined the pleas of limitation and estoppel per rem judicatam, before proceeding to determine the substance of the suit before him. This is because the said pleas are jurisdictional in nature, and work to deprive a court of the jurisdiction to determine a matter caught either by limitation or by estoppel per rem judicatam.

We also, in our duty of rehearing the matter under Rule 8(1) of the Court of Appeal Rules CI 19 must have regard to the said matters which were pleaded at the court below as preliminary matters, to see whether the said pleas had substance and ought to have been upheld, thus preventing the trial court from going into the substance of the suit that was before him.

Was the suit statute-barred?

As aforesaid, this suit was commenced in 2007, following a valuation of land carried out per the order of the court in an earlier suit of 2004.

We recapitulate the matters that gave rise to both the 2004 suit, and the instant suit. The plaintiffs were approached by the defendant and informed that their lands were needed for the Governments’ electrification project to the Volta Region. These land owners who had lands on the Ho-Asiekpe route that was to be used for the project, were informed that they would be compensated for damage to crops and buildings which was expected to result from the project. The said lands were situate more particularly, at: Adaklu, Ahunda and Boso, Mafi Asiekpw, Hehekpoe, Kpetsu, Kordiabe, Sikama, Ahloefe, Agblefe, Ho Klefe, Hoviefe, among others.

The project was an electricity transmission line that would necessitate the passing of high tension cables over the lands belonging to the plaintiffs. The project having been duly carried out in 1985, the plaintiffs were duly paid for damage to crops and buildings. This was acknowledged by the three representatives of the plaintiffs who gave evidence for themselves and the other plaintiffs.

In 2004, the plaintiffs came to court to seek an order for valuation of their lands for the purpose of receiving payment for them. The valuation having been carried out, they brought suit at the court below contending that although they had been paid for damage to crops and buildings, they were entitled to payment for the land itself, not just what was on the land. There were two reasons for this: first, was the allegation that the land had been rendered unusable by reason of the high tension wires. In this regard, the plaintiffs also alleged that they were warned to keep off the pylons. The plaintiffs further alleged that as the buildings on the land within one hundred feet of the overhead transmission lines were demolished to create the right of way, it stood to reason that they could not build on the land, or farm thereat. Second, was the fact that as compensation was for farms and buildings, tenant farmers and farmers who had rented land were the ones eligible for compensation, not the land owners themselves - a matter that had worked injustice to land owners who could not use their lands.

The plaintiffs also canvassed this point raised in support of their pleading of fraud, that the defendant had not followed due process in the whole process of creating a right of way for the use of the Government. This was because the Government had not passed an Executive Instrument for a right of way to be created for the use of the Government and its agencies, a requisite process under Act 186, the Lands (Statutory Wayleaves) Act, 1963, the legislation the defendants purportedly used in the process.

It was the case of the defendant which pleaded that as the lands of the plaintiffs were not acquired compulsorily, title thereto was still vested in the owners who could use the rest of the land not affected by the right of way. The defendant denied that the said lands had been rendered unusable and pleaded that the acreages attached to the plaintiffs’ land could not have been affected by the right of way used for the transmission lines as only a fraction was in fact used. In this regard, DW1 testified that the right of way corridor was thirty metres made up of fifteen metres on each side.

It was the further contention of the defendant that in any case, the parties had received payment for crops and buildings on their lands in accordance with Act 186, and could not be heard to come to court twenty years after the event to complain that they had been deprived of due compensation for their lands.

As aforesaid, the learned trial judge found that when the right of way was sought, the landowners were duly informed of it, and that the compensation for crops and buildings was duly paid. He therefore held that the defendant had not acted fraudulently. Having found thus, and furthermore, that the plaintiffs had received compensation for the right of way about twenty years previously with respect to damage to crops and buildings, the learned trial judge nonetheless held the plaintiffs entitled to payment of compensation again; this time, for the land itself.

Whether the learned trial judge’s reasons find support from the evidence is not a matter that we will concern ourselves with for reasons we will get into shortly.

Although this suit simply sought the payment of monies, the liability to pay the said monies arose out of a transaction relating to land. This was because in considering the claim of the plaintiffs for compensation, the court was bound to resolve the issue regarding whether or not the defendant’s use of the land was one which deprived the plaintiffs of the use of their lands which they said had become unusable. The defendant argued that the use to which the land had been put by the defendant deprived them of their possession in essence, such that the Government might as well have compulsorily acquired title to them. The claim was thus in essence, payment for the lands they had yielded up to the Government. In introducing the element of fraud, the plaintiffs had challenged the process of creating the right of way over their land which they said had been rendered unusable by them. The successful proof of fraud would have meant that the defendant was on the land of the plaintiffs’ unlawfully. That would surely have placed the defendant in adverse possession, which circumstance would have given the plaintiffs a cause of action in trespass to land. The said transaction with all the issues arising, could be the subject of a suit only if it remained viable and was not extinguished for any reason including the statute on limitation of actions: the Limitation Act, NRCD

Thus the court was bound to consider the plea of limitation raised and relied on by the defendant in pleading and in evidence. Being a matter that went to the jurisdiction of the court to entertain the suit, until a finding had been made discountenancing that plea, the hands of the court were tied. The limitation of actions ifs provided for by statute (supra) and the court was bound to have regard to it whenever the issue was raised as it affected the jurisdiction of the court to entertain the matter. That a successful plea of limitation is a jurisdictional issue, robbing the court before whom a successful plea was made of jurisdiction to go into the merits of the cause before it, is made clear in the judgment of the Supreme Court in Network Computer System Ltd v Intelsat Global Sales and Marketing Ltd [2012] 1 SCGLR 218. In that case, a repeat application for stay of execution, the court was concerned with the question of the legality of a conditional stay of execution ordered by the Court of Appeal upon an application for stay of execution pending an appeal which was filed out of time. Per Gbadegbe JSC: “Once the application before us is predicated upon an appeal process that was filed out of time, we have no discretion in the matter than to declare that we are without jurisdiction…In my opinion, the time frame for appealing, like the statute of limitation is not concerned with merits”; see also per Kpegah JSC in Republic v. High Court, Accra; Ex parte Aryeetey [2003-2004] SCGLR 398 at 405: “It is a proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is not concerned with merits so that if the axe falls, then a defendant, who is lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled to insist upon his rights”.

The instant suit was on the showing of the plaintiffs, brought about twenty years after the land was used as a right of way for the Government’s electrification project in the Volta Region. The second plaintiff admitted that the works for which the right of way was acquired, were completed in 1985. Granted that the plaintiffs had been promised compensation which was paid later, the second plaintiff admitted that before the said compensation was paid to them, an assessment was made and brought to their attention, but they did not protest same. On the plaintiffs’ showing, the compensation upon the said assessment was paid up till 1997, but their cause of action regarding what was payable arose at the point of the taking of their land, whether under a proper creation of right of way or otherwise. That was before 1985.

We agree with the plaintiffs/respondents that contrary to the defendant/ appellant’s assertions, this suit which is not for recovery of possession, does not fall into the category of suits barred after a period of twelve years, see S. 10 of NRCD 54. Nor is this is a claim for damages for trespass, in respect of land wrongfully taken. In either case, the prerequisite for the suit: that the defendant be in adverse possession is absent. This is because it is common cause that the plaintiffs herein received compensation for their lands after the land was assessed to their knowledge. The defendant could then not said to be in adverse possession.

The closest category in which the present suit may fall with regard to the time for bringing an action, is: that the suit was simply to recover a sum of money by virtue of an enactment.

It was the plaintiffs’ case that Act 186 was not complied with when the right of way was purportedly created in that no Executive Instrument was published. Yet though the learned trial judge held that no

Executive Instrument was published to acquire the right of way over the plaintiffs’ lands, he nevertheless held, in upholding the claim of the plaintiffs, that compensation was payable to the plaintiffs for the land itself under Act 186. There has been no appeal against that holding. In line with that holding, we consider the period of limitation for the instant suit, and note that for actions to recover monies due under an enactment, the limitation period is six years, see S. 4(f) of NRCD 54.

Having regard to these matters, the plea of limitation was therefore relevant to the suit begun after such a lengthy period, and it ought to have been considered once it was pleaded by the defendant. We daresay that the only circumstance under which the suit may be heard no matter the effluxion of time, is if a finding of fraud regarding the defendant’s dealings with the plaintiffs had been established, see: S. 22 of NRCD 54: “Where, in an action for which a period of limitation is fixed by this Act

(a) The action is based on the fraud of the defendant or the agent of the defendant… the period of limitation shall not begin to run until the plaintiff has discovered the fraud… could with reasonable diligence have discovered it.”

The learned trial judge held that the allegation of fraud was not proven, and we find his reasoning and conclusion supportable from the evidence.

Sadly, by some unfortunate circumstance, the learned trial judge was unaware that a pleading of limitation had been made by the defendant. And it is small wonder that such a circumstance became possible, for the instant suit was characterized by such a multiplicity of pretrial applications as well as amendments to pleadings, through successive judges, that the learned trial judge may have missed the defendant’s amended statement of defence, its last pleading filed on 12^th January 2010. It was by this process that the defendant raised among other matters, the defences of limitation and res judicata.

The learned trial judge, concluding his judgment stated that: “…I should say that I found it most unfair for counsel for defendant to make submissions bordering on estoppel per rem judicata [sic] and limitation. These are issues that must be pleaded specially and proved by evidence. Defendant’s amended statement of defence filed on 4^th May 2009 was very silent on these issues. Not having led any evidence on them, counsel was not entitled to raise it for the first time in his address where the plaintiffs would have no chance of rebuttal.”

As aforesaid, the defendant did in fact raise the said defences of limitation and res judicata in pleading: its last pleading filed on 12th January 2010.

We have found, with regard to the plea of limitation, that same has merit, and we are minded to uphold it in our determination of the instant appeal.

The defendant pleaded in its Amended Statement of Defence of 12/1/10 as follows:

“11. Defendant will contend further that under Act 186 therefore Plaintiffs are estopped by limitation from raising this issue now;

14. Defendant in further denial shall contend that even if the Plaintiffs had any right for further compensation that right has been extinguished by effluxion of time and is therefore statute barred by limitation.”

At the trial, DW1’s evidence was replete with the time the transaction occurred: that negotiations leading up to the purported creation of the right of way was in the 1970’s, and during cross-examination, he reiterated that the defendant went onto the land in the 1970’s. The defendant also cross-examined the plaintiff’s representatives at length regarding when the cause of action, if any, arose.

We reproduce excerpts of such cross-examination:

2^nd Plaintiff:

“Q. I am putting it to you that by 1985 the transmission lines had been completed on the land.

A. It is correct.

Q. Do you remember the first time you brought this matter to court? I mean the suit by which you sued for the computation of the value of the land.

A. 2005

Q. at the time that you were bringing that suit the transmission lines had been on the land for 20 years.

A. That is so.”

3^rd Plaintiff:

“Q. What you are telling the court is that when defendant acquired the land in 1975 you did not write asking for the Executive Instrument until 2002

A. I do not know if our lawyer wrote a similar letter earlier on

Q. But you know of the 2002 letter.

A. That is so.

Q. the first time you brought up this whole matter was in 2004

A. That is so.”

We have noted that the plaintiffs did receive compensation for damage to crops and buildings when the right of way was created, and there is no evidence that the material time, they protested in any way or made a claim for anything other than what they received compensation for.

It is our view that if the plaintiffs had believed themselves entitled to compensation for the land itself, being a separate claim from what they received compensation for, they would have made such claim at the time compensation was due, and if same had been refused, they would have had a cause of action against the defendant. A claim in this regard ought to have been brought timeously, within six years, being a claim of money, and even for recovery of possession, twelve years.

This claim which came so many years after such cause of action arose, if at all, that is more than six years, was extinguished, being statute-barred, and the court below ought not to have entertained it, and determined it on the merits once it was raised. We daresay that the only circumstance under which the suit may be heard no matter the effluxion of time, is if a finding of fraud regarding the defendant’s dealings with the plaintiffs had been established, see: 22 (1)(a) of the Limitation Act NRCD 54 (supra). As aforesaid, the learned trial judge did not find the allegation of fraud proven and we find his reasoning and conclusion supportable from the evidence.

It is for this reason that the findings made by the learned trial judge upon the merits of the suit when a plea of limitation had been raised, was in violation of the Limitation Act NRCD 54 (supra) which defined the time for limitation of actions and in the instant case, made same statute-barred. They cannot be made to stand. These merits were the issues raised regarding whether or not the land was acquired; whether or not a right of way was properly created or otherwise; and whether or not Act 186 could be read to include compensation for the land itself, the matters considered by the learned trial judge and in respect of which he made findings of fact.

Once the plea of limitation was raised in pleading (and which we have found it to have merit), we also are precluded from going into the merits of the suit, and we decline to do so.

On the ground of limitation, which is to say that the suit brought by the plaintiffs was statute-barred, this appeal succeeds.

With regard to the plea of res judicata, we are not persuaded that there was any merit to it. It is trite that the plea of estoppel per rem judicatam, has as its underpinning, the rationale that there must be an end to litigation. With that rationale, suits that have been determined on merits may not be brought again by the same parties on the same issues, see: Foli and Ors v Agya Atta and Ors (Consolidated) [1976]1GLR 194. This includes even issues that could have been determined in the earlier suit.

The 2004 suit: Henry Yao Klu and Ors. v Volta River Authority E12/19/04, was not determined on its merits at all. From the record, the order for valuation that was sought, was made without going into the merits of whether or not compensation was due to the plaintiffs. By reason that there was no determination of issues on the merits regarding the defendant’s liability in that suit E12/19/04, the order of valuation made could not ground estoppel against the plaintiffs in a subsequent suit seeking a relief that was included in the prior suit, but was left undetermined.

However, as aforesaid, on the ground of limitation, this appeal succeeds and is accordingly allowed.

The judgment of the court below is set aside.

No order as to cost.

SGD

MABEL M. AGYEMANG (MRS)

(JUSTICE OF THE APPEAL COURT)

SGD

ACQUAYE, J. A.       I agree                                   K. A. ACQUAYE

      (JUSTICE OF THE APPEAL COURT)

SGD

GYAN, J. A.              I also agree                               S. K. GYAN

(JUSTICE OF THE APPEAL COURT)