IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT

OF JUSTICE LAND COURT 7 SITTING IN ACCRA ON MONDAY THE 19TH

DAY OF DECEMBER, 2022 BEFORE HIS LORDSHIP EMMANUEL AMO

YARTEY (J)

SUIT NO. LDT00059/16

VICTOR ODARTEI MILLS … PLAINTIFF

VRS

DR. NII KOTEY DJANE … DEFENDANT

PARTIES: PRESENT

J UDGMENT

The case of the Plaintiff as captured by his Amended Statement of Claim is that he is

a Consultant in Project Management with the United Nations and lives at East Legon,

Accra.

The Defendant is the President and Founder of ILMA Institute of Science &

Technology, and resident at La-Bawaleshie, East Legon, Accra.

Plaintiff states that by an indenture of lease was made the 24th day of August 1998,

between Moufid El-Adas as “lessor” of the one part and him as “lessee” of the other

part in respect of all that piece or parcel of land situate, lying and being at Nungua

New Town, Accra, was demised unto the lessee for the residue of the term of ninety-

nine (99) years granted the lessor by a lease made the 1st day of May 1978, between Nii
VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 1 of 73
Odai Ayiku IV, Nungua Mantse and the lessor, subject to the rent thereby reserved

and to the covenants, agreements and conditions herein contained. The indenture of

lease has been duly presented at the Lands Commission, indexed, marked and

stamped as LVB10504/07.

The Plaintiff states categorically that, soon after the acquisition of the land, he erected

corner pillars thereon to secure and/or demarcate its extent and boundaries, and has

been in uninterrupted and undisturbed possession of the land ever since, and also that

he has exercised overt acts of ownership over same by excavating a foundation,

platform and the construction of a wooden structure without any challenge, let or

hindrance whatsoever from any stool, family and/or person(s) let alone Defendant.

Plaintiff states that it was only sometime in the year 2007, that an unidentified

trespasser forcefully entered unto the land and demolished the wooden structure.

The Plaintiff avers that his grantor Moufid El-Adas, had registered his Title Deed at

the Land Title Registry as No.3755/1978, after the site plan was duly plotted. Albeit,

he had also been presented with Land Certificate No. GA11502 in Land Register

Vol.53, Folio 487. It is the Plaintiff’s case that his title to the land was registered after

the Land Title Registry had complied with all statutory provisions and published

notice of his application for title registration as provided for in Section 11 of the Land

Title Registration Law 1986, PNDCL 152, and Section 6 of the Land Title Registration

Regulations, 1986, L1.1341.

Plaintiff further stated that on 20th October, 2012 he had a tip off that Defendant had

actually entered unto the land and destroyed the entire foundation with the pillars,

and this compelled him to lodge a complaint at the East Legon Police Station on

October 21st , 2012. At the Police Station, Defendant claimed rival ownership of the

land, and allegedly disclosed that he had in sometime past erected a fence wall around

the land, and also he was responsible for the demolition of the wooden structure. The

Police advised that since both of us were asserting title to the land, it was prudent that

a resolution of the matter be sought and/or determined in a court of competent

jurisdiction.
VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 2 of 73
The Plaintiff avers that, the Police advice notwithstanding, Defendant is persisting in

his blatant and apparent trespassory activities on the land, in such indecent haste and

frenzy with a prime view of stealing a march on him, although he has repeatedly

warned Defendant to desist from so doing.

The Plaintiff avers also that, after the acquisition of the land from the Nungua Mantse,

his lessor immediately thereafter went into possession and built a fence wall around

it, and had continued to remain in possession since 1978.

In the premises, Plaintiff will contend that by reason of the adverse possession of the

land by his lessor for up to and over twelve (12) years, Defendant alleged rival

ownership and/or challenge against him is statute barred, and also that he will plead

the Limitation Act, 1972(NRCD 54).

The Plaintiff will also contend that, the registration of his lessor’s title in the land

constituted notice to the whole world, inclusive of Defendant, and also that Defendant

cannot pretend to be unaware of his adverse claim. More significantly, having

regularly and lawfully procured a Land Certificate, his lessor’s title in the land is

indefeasible.

The Plaintiff will further contend that, he is the bona fide owner of the land without

notice of any encumbrance whatsoever, and that same was regularly conveyed to him

by Moufid El-Adas (his lessor), and also that, if Defendant had made any diligent

enquiries, he would have been put on alert of Plaintiff’s prior interest in and/or title to

the land.

The Plaintiff will furthermore contend that the incidence of his lessor’s possession and

ownership of the land notwithstanding, and having been in continuous,

uninterrupted and undisturbed possession of same all this while, Defendant is

estopped by his own conduct from challenging his title to the land; or more so purport

to have been made a grant of the same parcel of land by any stool, family and/or

person(s), and also that, his presence on the land is unjustified, unlawful and illegal.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 3 of 73

The Plaintiff will yet contend that, Defendant having stood by and allowed him to

develop the land, by excavating a foundation, platform and the construction of a

wooden structure without any protestation, Defendant is guilty of conduct which is

tantamount to laches and fraudulent acquiescence.

The Plaintiff maintains that Defendant has no interest in and/or title to the land, and

he is bent on continuing with his unlawful and illegal activities on the land, unless he

is specifically restrained by the Court from so doing.

The Plaintiff maintains that Defendant has no interest in and /or title to the land and

he is bent on continuing with his unlawful and illegal activities on the land, unless he

is specifically restrained by the Court from so doing.

Based on these facts the Plaintiff claims against the Defendant the following reliefs:

i. A declaration of title to all that piece and/or parcel of land situate, lying and

being at Nungua, Newtown, Accra more particularly described in a

schedule comprised in the Statement of Claim.

ii. Recovery of possession.

iii. Damages for trespass.

iv. Perpetual injunction restraining Defendant, by himself, agents, assigns,

privies, workmen, servants and however described from interfering,

dealing with or having anything to do in any manner whatsoever with the

land, subject-matter of this suit.

SCHEDULE

ALL THAT PIECE OF LAND situate, lying and being at Nungua New Town, Accra

in the Greater Accra Region of the Republic of Ghana bounded on the North-East by

a proposed road measuring 110 feet more or less on the South-East land measuring

100 feet more or less on the South-West by lessor’s land measuring 150 feet more or

less and on the North-West by the lessor’s land measuring 100 feet more or less and

covering an approximate area of 0.34 acres.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 4 of 73
Per his Amended Statement of Defence the Defendant pleaded as follows:

“1. Save as hereinafter expressly admitted, the Defendant denies each and every

allegations contained in the Plaintiff’s Statement of Claim as if the same were

set out in extenso and denied seriatim.

2. The Defendant is not in a position to admit or deny paragraph 1 of the Plaintiff’s

Statement of Claim.

3. Paragraph 2 of the Plaintiff’s Statement of Claim is admitted.

4. Paragraph 3 of the Plaintiff’s Statement of Claim is denied.

5. In further denial of paragraph 3 of Plaintiff’s Statement of Claim, the Defendant

says that the land the subject matter of this suit is his legitimate property and

same is situate at La-Bawaleshie.

6. Further, the Defendant says that La-Bawaleshie also known as East Legon lands

belong to Nikoi Tse We family of Klanaa Quarter, La and that Bawaleshie is a

village under La, and that Nikoi Tse We family of Klanaa Quarter is the

customary owner in possession of La-Bawaleshie also known as East Legon

lands since time immemorial.

7. The Defendant says that La-Bawaleshie is under La and that Nungua Stool is

not the owner of La-Bawaleshie lands and that any purported grant of any

portion of La-Bawaleshie lands by Nii Odai Ayiku IV is null and void in that

Nungua Stool has no interest whatsoever in La-Bawaleshie lands let alone

convey same to anybody.

8. Paragraphs 4 and 5 of the Plaintiff’s Statement of Claim are denied.

9. Further, the Defendant avers that the land the subject matter of this suit forms

part and parcel of a large parcel or piece of land, leased to him by Kotey Amli

III, head and lawful representative of Nikoi Tse We family of Klanaa Quarter,

La.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 5 of 73

10. The Defendant avers that the land in dispute does not fall within the land that

Nii Odai Ayiku IV wrongly and falsely granted to Plaintiff’s grantor.

11. The Defendant avers that La-Bawaleshie lands neither belongs to Nungua Stool

nor Nii Odai Ayiku IV and that they cannot convey La-Bawaleshie lands to

Plaintiff’s grantor or anybody.

12. The Defendant avers that his grantor obtained judgment in respect of

Bawaleshie/Oteele lands against Rebecca Kuffour.

13. The Defendant avers that at the material time that the land was leased to him, it

was bushy and or overgrown with bush and upon the said larger parcel of land

which the land in dispute forms part and parcel, he took immediate possession

of same, cleared it and constructed fence wall around the parameters of the land.

14. The Defendant states that he remained in undisputed possession of the land till

Ben Jonah and Henry McBryn trespassed on a portion of his lawfully acquired

property and they destroyed a portion of his fence wall and commenced

building project on a portion of the larger piece of land which the land in dispute

forms part and parcel of.

15. The Defendant avers that he consequently instituted an action at the High Court,

Accra against Ben Jonah and Henry McBryn and later, Alhaji Alpha Mush

applied and was joined as a party to the suit entitled:

Suit No. BL/114/2005

Nana Dr. Osae Yaw I [Ni Kotey Djane] … Plaintiff

H/No. 22, Christian Centre Road

Bawaleshie, East Legon

Ben Jonah and 4 others … Defendants

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 6 of 73

16. The Defendant avers that the land in dispute was the subject matter of a judgment

delivered by the High Court, Land Division in his favor in the said suit

BL114/2005 mentioned in paragraph-supra.

17. The Defendant says that Plaintiff and his grantor [Moufid El-Adas] knew very

well of the pendency of the said Suit No. BL 114/05 but folded their arms when

ownership of the land in dispute was being fought by parties in the said Suit

No. BL 114/05.

18. Accordingly, the Defendant contended that both Plaintiff and his grantor

[Moufid El-Adas] are stopped from claiming ownership of the land in dispute

of which he the Defendant has been in possession of.

19. Paragraph 5 of the Plaintiff’s Statement of Claim is denied and in further denial,

the Defendant says that the land the subject matter of this suit of which he has

been in possession of ever since it was granted to him belongs to Nikoi Tse We

family of La Klanaa Quarter and that any purported registration of any portion

of La Klanaa Quarter land in the name of Moufid El-Adas is a nullity.

20. Further, the Defendant says that all the La Klanaa Quarter lands belong to Nikoi

Tse We family of the Klanaa Quarter whose head is Nii Kotey Amli III who is

Defendant’s father.

21. The Defendant avers that a search conducted by him as well as the Police at the

Lands Commission revealed that the land in dispute belongs to him.

22. The Defendant says that Nii Odai Ayiku IV is not a chief and that he had long

been destooled before he purportedly granted Klanaa Quarter land which does

not belong to Nungua Stool and of which Nungua Stool has no interest in same

to convey.

23. The Defendant says that in all the Gold Coast Chief List in respect of Nungua,

there is no place or village under Nungua known as Nungua Newtown.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 7 of 73

24. Paragraph 6 of the Plaintiff’s Statement of Claim is vehemently denied and in

further denial, the Defendant says that the Plaintiff’s alleged Land Title

Certificate is a nullity in that it was obtained during the pendency of two

separate suits involving the Plaintiff at the High Court, Accra and the said two

suits are:

1. Suit No. BL 549/07

Victor Mills - Plaintiff

Alpha Musah - Defendant

2. Suit No. 160/2002

1. Alpha Musah Plaintiffs

2. Alhaji Aminu Sanaa

1. Benard Osei Defendants

2. Odartei Mills

and that the Defendant has copies of the Court processes in respect of the said

suit supra.

25. Save that Plaintiff knew of the fact that Defendant has been in undisputed

possession of the land ever since the land was granted to the Defendant and the

fact that Plaintiff reported the Defendant to the Police and told the Police that

Ayebi J [as he then was] gave judgment in his favour which was duly executed

in respect of the land against Ben Jonah and McBryn before they later set it aside,

paragraph 7 of the Plaintiff’s Statement of Claim is denied.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 8 of 73

26. The Defendant avers that the said judgment delivered by Ayebi J [as he then

was] was set aside, the case preceded at the High Court, Land Division and final

judgment was eventually given in his favour in the said Suit No. BL 114/05.

27. The Defendant states that when he and the Plaintiff met at the Police Station, he

showed the said judgment delivered in his favour both to the Police and the

Plaintiff.

28. Paragraph 7 of the Plaintiff’s Statement of Claim is vehemently denied and in

further denial, the Defendant states that the allegations in paragraph 7 of the

Plaintiff’s Statement of Claim are palpably false.

29. Paragraphs 8 and 9 of the Plaintiff’s Statement of Claim are denied.

30. Paragraphs 10, 11, 12 and 13 of the Plaintiff’s Statement of Claim are denied.

31. The Defendant emphatically reiterates that ever since the land in dispute was

granted to him by Nikoi Tse We family of the Klanaa Quarter, La he took

immediate possession of same and remains in possession up to date.

32. Wherefore the Defendant states that Plaintiff is not entitled to his claim and or

at all.”

On the 1st day of February 2013, the Plaintiff filed his Reply and pleaded as follows:

“1. Save and insofar as the same consist of admissions, Plaintiff joins issues

generally with the Defendant on his Statement of Defence.

2. In reply to paragraphs 5, 6, 7, 9, 17 & 18, of the Statement of Defence, Plaintiff

states rather categorically that, in Suit No. L502/96 intituled Nii Kotey Amli v

Moufid El-Adas, the High Court of Justice, presided over by Her Ladyship, Mrs.

Justice Vida Akoto-Bamfo (JA) as she then was, sitting as an additional High

Court Judge, decreed judgment against Defendant’s grantor (Nii Kotey Amli),

and in favour of my grantor (Moufid El-Adas), in respect of my grantor’s title to

the parcel of land, subject-matter of this suit. In the premises, Plaintiff will

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 9 of 73

 contend that, Defendant is stopped per rem judicata from challenging his

interest in and/or title to the land.

3. In response to paragraphs 10, 12, 13, 14, 15, 16, 23 & 24, Plaintiff avers that, to

the extent that neither his good self nor his grantor, were parties to the action

between Nii Kotey Amli III & Rebecca Kuffour, and Suit No. BL/114/05 intituled

Nana Dr. Osae Yaw I, Nii Kotey Djanie v Ben Jonah & 4 Ors.; he is not bound by

any judgment as delivered in those matters, and also that he is not estopped

from claiming ownership of the land.

4. By reason of the matters aforesaid, Plaintiff will also contend in further answer

to paragraph 17 that, having complied with all statutory provisions and the

publication of notices of his application for title registration, the registration of

his grantor’s title in the land is not a nullity.

5. Save as hereinbefore, expressly or by necessary admitted, Plaintiff denies each

and every other material allegation of fact contained in the Statement of

Defence, as if the same were set out in extenso and traversed seriatim.”

At the Application for Directions Stage the following issues were set down for trial.

i. Whether or not Plaintiff’s indenture of lease made the 24th day of August

1998 between Moufid El-Adas as “lessor” of the one part and Victor Odartei

Mills as “lessee” of the other part in respect of all that piece or parcel of land,

subject-matter of this suit has been duly presented at the Lands

Commission, marked and stamped as LVB11263/07.

ii. Whether or not in accordance with the Land Title Registration Law 1986

(PNDCL 152), Plaintiff’s grantor has been regularly issued with Land Title

Certificate No. GA11502, as proprietor of all that piece or parcel of land,

subject-matter of this suit.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 10 of 73

 iii. Whether or not Plaintiff’s grantor having been regularly issued with Land

Title Certificate No. GA11502, his interest in and/or title to the land is

indefeasible.

iv. Whether or not the registration of Plaintiff’s grantor’s title in the land,

constituted notice to the whole world inclusive of the Defendant.

v. Whether or not Plaintiff’s grantor’s possession of the land since 1978, and

by reason of his adverse possession of the land, for upwards of over twelve

(12) years, Defendant’s alleged rival ownership and/or challenge against

Plaintiff is statute barred, by virtue of the Limitation Act 1972 (NRCD54).

vi. Whether or not by incidence of Plaintiff’s grantor’s continuous,

uninterrupted and undisturbed possession of the land all this while,

Defendant is estopped by his own conduct from challenging Plaintiff’s title

to the land.

vii. Whether or not Plaintiff is the bona fide owner and/or purchaser of the land

from Moufid El-Adas without notice of any encumbrance whatsoever.

viii. Whether or not Defendant having stood by and allowed Plaintiff to develop

the land by excavating a foundation, platform and the construction of a

wooden structure without any protestation, Defendant is guilty of conduct

tantamount to laches and fraudulent acquiescence.

ix. Whether or not by reason of the judgment in Suit No. L502/96 intituled Nii

Kotey Amli III v Moufid El-Adas, Defendant is estopped per res judicata

from challenging Plaintiff’s interest in and/or title to the land.

x. Whether or not Defendant has ever been in possession of the land whether

or not a search conducted by Defendant at the Lands Commission revealed

that the land in dispute belonged to him.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 11 of 73

 xi. Whether or not by reason of the judgment in Suit No. BL/114/05 intituled

Nana Dr. Osae Yaw/Nii Kotey Diane v. Ben Jonah & 4 Ors., Plaintiff is

estopped from claiming ownership of the land.

xii. Whether or not the registration of Plaintiff’s grantor’s title in the land, and

the issuance of the Land Certificate thereof is a nullity.

xiii. Whether or not the activities of Defendant on the land constitutes trespass.

xiv. Any other issues arising out of the pleadings.

ADDITIONAL ISSUES

1. Whether or not Bawaleshie is a village under La.

2. Whether or not Nikoi Tse We family of Klanaa Quarter is the customary owner

in possession of Bawaleshie lands.

3. Whether or not La Bawaleshie lands belong to Nungua Stool.

4. Whether or not the grant of La Bawaleshie land by Nii Odai Ayiku IV is null

and void.

5. Whether or not in the Gold Coast Chief List, there is any village under Nungua

known as New Nungua.

6. That the Court makes an order for composite plans to be drawn to ascertain as

to whether the land in dispute falls within the land granted to Moufid El-Adas

(Plaintiff’s grantor)

7. That both Plaintiff and Defendants be made to deposit their grantors’

proprietary site plans or title deeds as well as their respective title deeds to be

used for drawing of composite plans.

In prosecuting his claim the Plaintiff testified that he is a Project Management

Consultant and works with the UN as a Consultant.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 12 of 73

The Plaintiff testified that per an indenture dated 10th August 1998 he acquired the

subject land from one Moufid El-Adas. And that the subject land is located at an area

known as Nungua Newtown now known as East Legon.

Plaintiff continued that his grantor acquired the subject land from Nii Odai Ayiku, the

Nungua Mantse.

He tendered a copy of his grantor’s indenture as Exhibit A and his Land Title

Certificate as Exhibit B.

It is the evidence of Plaintiff that after the acquisition of the subject land, he erected

pillars to mark the boundaries of the land, dug a foundation and proceeded to put up

a platform and subsequently raised pillars on same.

He further told the Court he has a wooden structure on the land.

And that the wooden structure was occupied by his supervisor who also traded in

front of the structure.

A copy of Plaintiff’s indenture was admitted in evidence as Exhibit C subject to the

production of the original.

According to the Plaintiff the Defendant in the company of others went to destroy

some of his properties on the subject land for which reason he lodged a complaint

with the Police.

At the Police Station they were advised to seek for redress in the appropriate forum

since both were claiming ownership to the land.

Plaintiff tendered a copy of his Land Certificate covering the subject land as Exhibit

D.

Plaintiff further tendered a judgment his grantor obtained against one Nii Kotey Amli

as Exhibit E,

The Plaintiff subsequently tendered an indenture according to him covers the subject

land as Exhibit F.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 13 of 73

Plaintiff testified that Exhibit J is the indenture covering the subject land and not

Exhibit C.

In contesting Plaintiff’s claim the Defendant testified that the land in dispute is located

at La Bawaleshie also known as East Legon and that same belongs to the La Klanaa

Quarter which falls under the La Stool.

It is his evidence that the subject land belongs to him per a Deed executed in his favour

by Nii Kotey Amli III, the head and lawful representative of the La Klanaa Quarter

who is his biological father.

He tendered a copy of the Deed of Lease as Exhibit 4.

He thereafter caused his Title Deeds to be registered at the Lands Commission.

See Exhibit 5, a Search Report from the Lands Commission.

He continued that after the acquisition of the subject land in 1997 he took possession

of same and that at the time the land was bushy.

He constructed a fence wall around the land without any challenge from anyone until

the year 2001 when the Defendants in Suit No. BL 114/05 trespassed unto a portion of

the land and destroyed a portion of his fence, for which conduct resulted in a Court

action and judgment entered in his favour.

He tendered a copy of the Gold Coast Chief List showing that Bawaleshie is a village

under La as Exhibit 6.

He also tendered various Judgments in support of his case.

According to the Defendant even though the Plaintiff claim his grantor obtained

Judgment against Nii Kotey Amli, that Judgment does not cover the land in dispute.

And that the land in dispute falls outside the land granted to the Plaintiff’s grantor.

And that to the knowledge of the Plaintiff’s grantor he obtained judgment against his

grantees but the grantor never appeared in Court to defend his said grantees though

he was aware of the said case.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 14 of 73

He tendered Exhibit 8, a copy of a Judgment his grantor obtained against one Rebecca

Kuffour in respect of a large tract of land which includes the land in dispute.

He tendered a copy of the said judgment as Exhibit 8.

In the circumstance the Defendant contends that Plaintiff’s Land Certificate is a

nullity.

Plaintiff continued that Nikoi Tse We Family of the La Klanaa Quarter is the

customary owner in possession of all La Bawalashie Oteele lands and that same does

not belong to Nungua for them to grant same.

He tendered Exhibit 1A, a copy of the indenture executed between Nii Odai Ayiku IV

and Moufid El-Adas.

APPLICABLE LAW

The burden of persuasion lies on the party making a claim, see: Sebastian Dzasu and

92 Ors V Ghana Breweries Ltd 16 MLRG [2008] 128 and Owusu v Tabiri [1987-88]

GLR 287.

In Takoradi Flour Mills v Samir Farms [2005-6] SCGLR 882, it was held:

“It is sufficient to state that this being a civil suit, the rules of evidence require that the

Plaintiff produces sufficient evidence to make out his claim on a preponderance of

probabilities, as defined in Section 12 (2) of the Evidence Decree, 1975 (NRCD 323).

In assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the

Defendant, must be considered and the party in whose favour the balance tilts is the

person whose case is the most probable of the rival versions and is deserving of a

favourable verdict…”

See also Bank of West Africa Ltd v Ackon [1963] GLR 176 (holding 2); Fosua and

Adu Poku v Adu Poku Mensah [2009] SCGLR 310 (at 312) Yaa Kwesi v Arhin Davis

[2007-2008] SCGLR 580 and Section II(1), (4) and 12, Evidence Act, 1975 (NRCD 323).

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 15 of 73

The above evidential configuration however is discharged the moment the Plaintiff is

able to adduce sufficient evidence to elicit a ruling on title in his favour; in the absence

of counterbalance evidence from the Defendant. On “Allocation of Burden of

Persuasion”, Section 14 of NRCD 323 also provides:

“Except as otherwise provided by law, unless and until it is shifted a party has

the burden of persuasion as to each fact the existence or non-existence of which

is essential to the claim or defence he is asserting.”

Section 17 (1) and (2), NRCD 323 also provides:

“(1) Except as otherwise provided by law, the burden of producing evidence of a

particular fact is on the party against whom a finding on that fact would be

required in the absence of further proof.

(2) Except as otherwise provided by law, the burden of producing evidence of a

particular fact is initially on the party with the burden of persuasion as to that

fact”.

The burden of persuasion was on the Plaintiff per Section 14, NRCD 323. He had the

initial burden of producing evidence per Sections (17) (2) and 11 (1) NRCD (323). The

quality or degree of the evidence required is stipulated in Section 10 (1) and (2) and

Section 12(1) and (2) of NRCD 323.

In the case under consideration the parties are fighting over a parcel of land.

An action for declaration of title to land, recovery of possessing of land and perpetual

injunction, among others, as the instant suit, is first and foremost a civil action, and

carries with it the same evidential burden as every civil case. The Plaintiffs were

required by section 11(1) of the Evidence Act, 1975, (NRCD 323), to adduce admissible

and credible evidence in support of the reliefs sought. In Owusu v Tabiri & Anor

[1987-88] 1 GLR 287, (holding 7) it was held:

“It was the principle of law that he who asserts must prove and must win his case on

the strength of his own case and not on the weakness of the defence…”

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 16 of 73

The Plaintiffs burden of proof was discharged if they led evidence to persuade the

tribunal of fact that what they assert is more probable than not. In other words, they

were obliged to prove their case by preponderance of probabilities; as required by

section 12 (1) of the Evidence Act. A Plaintiff however has no duty to prove his case

with arithmetic exactness, or beyond reasonable doubt.

In explanation of the standard of proof, it was held in Bisi v Tabiri & Anor (1985-88)

1 GLR 386, (holding 2), SC, as follows:

“The standard of proof required of a Plaintiff in a civil action was to lead such evidence

as would tilt in his favour the balance of probabilities on the particular issue.”

Having explained the duty cast on the Plaintiffs, in particular, it is of moment to note

that the actual mode of presenting evidence in discharging the burden must also

conform to the law. The case of Majolagbi v Larbi & Ors [1959] GLR 190, has long

shown us the path to follow. Notice must however be taken of the principle of the

mode of proof of assertions as straightened out by the Court of Appeal in Zabrama v

Segbefia [1991] 2 GLR 223.

The discharge of the burden of proof must encompass proof of the nature of their

acquisition, the identity of their land and the fact of possession, or right to possession.

An action for declaration of title to land, recovery of possession or perpetual injunction

ought to fail if the Plaintiff is unable to lead credible and admissible evidence to prove

that he/she properly acquired the land from the appropriate grantor.

See: Kponuglo v Kodadja [1933] 2 WACA24 at 25 and Acquah v Pergah Transport

Limited & Ors [2010] SCGLR 728.

Secondly, the action cannot succeed unless the Plaintiff leads evidence to establish the

identity of the land acquired as being the same as the land claimed. See Anane v

Donkor [1963] GLR 188, SC; Bedu & Ors v Agbi & Ors [1972] 2 GLR 226.

There is evidence before me that the parties are fighting over a parcel of land.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 17 of 73

It is therefore the duty of a Plaintiff or a Defendant who counterclaims to adduce

credible and admissible evidence to establish the nature and mode of acquisition,

identity of his/her land and the act of possession or right to possession. [Emphasis

supplied]

The Supreme Court in Yaa Kwesi v Arhin Davis & Anor. [2007/08] SCGLR 580 held

per holding one (1) as follows:

“Since the Plaintiff sued not only for declaration of title but also for damages for

trespass and an order for perpetual injunction, he assumed the onerous burden of proof

of title to the disputed land by the preponderance of probabilities required by Section

11(1) and (4) and 12 of the Evidence Decree 1971 NRCD 323) or risk the prospect of

losing his case.”

Throughout the trial the Defendant maintained that the location of his land is totally

different from the land claimed by the Plaintiff.

It is my considered view that since the location of the land is in dispute there was the

need for a superimposition of the respective site plans of the parties to establish the

location of the land to enable the Court establish the location and identity of the subject

matter in issue.

It is trite law that a Plaintiff in an action for declaration of title to land, recovery of

possession and perpetual injunction has the duty of establishing by positive evidence

(a) the identity of the land claimed, and (b) that the land claimed is the same as the

subject matter of the suit.

In Anane v Donkor [1965] GLR 188, SC, it was held, holding (1)

“A claim for declaration of title or an order for injunction must always fail, if the

Plaintiff fails to establish positively the identity of the land claimed with the land the

subject matter of his suit”.

In Nyiklorkpo v Agbedetor [1987-88] 1 GLR 165, holding (3) it was held:

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 18 of 73

 “To succeed in an action for declaration of title to land, recovery of possession and for

an injunction, the Plaintiff must establish by positive evidence, the identity and the

limits of the land which he claimed…”

In the case of Bedu v Agbi [1972] 2 GLR 226, CA, it was also held:

“The onus was on the Plaintiffs to establish the exact boundaries of the land in dispute

so that any judgment in their favour would be related to a defined area; or at least they

should have proved isolated acts of ownership over the land. They failed to do either of

these and the trial court was right in holding that they had not discharged the onus of

proof”.

This therefore called for an expert’s advice since the identity and location of the land

in dispute is crucial to the determination of the instant action.

NATURE AND EFFECT OF EXPERT EVIDENCE

In producing a composite plan, the Survey Department of the Lands Commission

provided expert evidence to the court. The court is not bound by such expert

evidence; even though it often provide immense assistance to the Court.

In Fenuku v John-Teye [2001-2002] SCGLR 985, at 990 holding b it was held:

“The principle of law regarding expert evidence was that the judge need not accept any

of the evidence offered. The judge was only to be assisted by such expert evidence to

arrive at a conclusion of his own after examining the whole of the evidence before him.

The expert evidence is only a guide to arrive at the conclusion.”

CONSEQUENCES OF ABSENCE OF A COMPOSITE PLAN WHERE THE

PLAINTIFF RESISTED ITS PRODUCTION

Where the absence of a survey plan makes the identity of the land claimed in relation

to the land in dispute uncertain, the Plaintiff who bore the primary burden of proving

the identity of his land with the land claimed must bear the consequences of resisting

or failing to ensure the preparation of a surveyor’s plan.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 19 of 73

It was accordingly held in Yaa Kwesi v Arhin Davis & Abor [2007-2008] 1 SCGLR

580 at 586:

“It was also part of the contention of the Plaintiff that the first Defendant, while tracing

his root of title from Basia Aya, failed to show the identity, the extent and position of

the land.

It is difficult to comprehend the force of this argument… by unwittingly resisting the

application for the appointment of a surveyor and the making of a plan, the Plaintiff

failed to acknowledge its effect to his own detriment. He failed to realize that as the

Plaintiff claiming in a land litigation it was he who bore the primary responsibility or

the burden of producing evidence on the issue of a surveyors plan to strengthen his

case.

If this had been done, the entire land he claims as his own to the exclusion of the

Defendants would have been clear on the evidence. We do not appreciate the legal or

moral basis for the Plaintiff’s attack against the Defendants on the issue of the extent

of the disputed land.”

In Yawson (substituted by) Tulasi & Anor v Mensah & Mensah [2011] 1 GLR 568 at

572, it was also held:

“As both parties were not contesting the issue of title from the evidence and the

pleadings but the issue of boundary it is imperative that clear findings on this ought to

have been made by the learned trial judge… but when a boundary dispute is in issue

with an adjourning land, a court of law is bound to ascertain the exact boundaries of

the parties. This could be done if parties had met the surveyor who was enjoined by the

order of the court to carry out the survey work.”

This Court in the presence or absence of a surveyor’s report (Composite Plan) is

obliged to determine the identity of the subject land and use same to determine the

reliefs before it.

In this regard the Court appointed a surveyor to conduct the said exercise.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 20 of 73

A copy of the surveyor’s report was tendered as Exhibit CE1.

The Court witness, CW1 testified as follows when he was cross-examined by Counsel

for the parties:

“Q: The last adjourned date I specifically asked you whether you are the one who drew

up the composite plan. Do you remember that?

A: Yes.

Q: So what is your answer.

A: I prepared it.

Q: Let us go to the legend, you said the land surveyed as showed by the Plaintiff is the

one edged what.

A: Red.

Q: And the land has showed on the site plan for the Plaintiff is edged what.

A: Green.

Q: The land surveyed as showed by the Plaintiff has numerals P1, P2, P3, & P4.

Correct?

A: Yes. [Emphasis supplied]

Q: And the land as showed on the site plan of the Plaintiff is shewn as what.

A: It is edged Green. We did not label it. [Emphasis supplied]

Q: So where exactly is it situate in the composite plan. The one edged Green.

A: A portion of it overlaps the site shown on the ground, a bigger size fall on the land

on western part of the land showed on the ground. The other portion falls on the

road showed on the ground

Q: Is there any indication of a road on the composite plan from your legend.

A: No. but that is what is on the ground.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 21 of 73

 Q: Can you physically point to the land you were describing shortly.

A: Yes. It is the one coloured Green. [Emphasis supplied]

Q: And you are also saying that the land shewn on the parcel plan for the Plaintiff is

edged what.

A: Cyan. [Emphasis supplied]

Q: And that is squarely in the land surveyed as shewn by the Plaintiff edged Red.

Correct?

A: Almost but not exactly.

Q: You say almost can you explain almost as you understand it.

A: The parcel plan we received from the Plaintiff a portion of it falls outside the site

showed on the ground by the Plaintiff. And also the site showed on the ground is

bigger than the size on the Plaintiff parcel plan.

Q: I want to believe that these occurrences are not novel i.e. the land surveyed as showed

by a party on the ground would be significantly smaller or bigger than what is

shewn on the parcel plan.

A: That is true.

Q: And the land surveyed as shewn by the representative of the Defendant is edged

what.

A: Purple.

Q: And that is depicted by the numerals D1, D2, D3, D4 & D5. Correct?

A: Yes. [Emphasis supplied]

Q: And the land as shewn on the site plan for Defendant is edged Yellow.

A: Yes. [Emphasis supplied]

Q: And the land as shewn on the site plan for the Klanaa Quarter is edged Black.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 22 of 73

 A: Yes.

Q: And it is more than obvious that the land surveyed as shewn by the representative of

the Defendant is bigger than the land shewn on the site plan for Defendant. Correct?

A: Correct.

Q: And also that the land shewn on the site plan for Defendant also falls outside unto

what you call the road. Correct?

A: No. Part of it.

Q: The area of dispute the subject matter of dispute in this litigation are not separate and

distinct. Is that right?

A: That is true. So they are fighting over the same land on the ground.

Q: And the area of dispute as shewn on the ground is what you have hatched Black.

A: Yes.

Q: With an approximate area 0.32 acre. Correct?

A: Yes.

Q: It cannot be the case if the Defendant should tell this Court from the composite plan

that his land is separate and distinct from that of the Plaintiff.

A: True. Because both parties showed the same piece of land.

Q: The composite plan you drew was borne out of the indenture, site plan and parcel plan

presented to you by the parties more so Plaintiff. Correct?

A: Yes. We actually used only the site plans.

Q: And you as a Government surveyor trained in your field of work did not find anything

wrong with the site plans as presented to you by both parties i.e. you did not question

the authenticity of the site plans.

A: No. We used what we received from the Court.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 23 of 73

 Q: And from your field work there is no structure on the land in dispute.

A: No. It is bushy.

Q: Both Plaintiff and Defendant’s representative were adamant that the parcel of land on

their site plans is what they showed to you on the ground preparatory to the drawing

of the composite plan. Correct?

A: What they showed on the ground we later superimposed the site plans received from the

Court on it. On the ground we did not talk about site plans.

Q: You will agree with me that the disputed area as hatched is far away from Moulfid El-

Adas land.

A: Yes. [Emphasis supplied]

Q: So the disputed land does not fall within Moulfid El-Adas land at all.

A: Yes. [Emphasis supplied]

Q: It is true that the Defendant constructed a fence around the disputed land as indicated

by you.

A: Yes. [Emphasis supplied]

Q: The Plaintiff’s site plan marked Green only covers a small portion of the disputed land.

Is that correct?

A: Yes.

Q: It is true that Defendant’s site plan covers about 90% of the disputed land.

A: I got almost 70%.

Q: It is equally true that the dispute land falls within the Klanaa Quarter land.

A: It falls outside.

Q: Take a look at Exhibit CE1.

A: Yes. It falls within the Klanaa land.”

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 24 of 73

In the case under consideration whiles the Defendant traces his root of title to the

Nikoi Tse We Family of the La Klanaa Quarter of La, the Plaintiff traces his root of title

to the Nungua Stool through Moufid El-Adas.

In the case of Egyir v Hayfron [1982] JELR 67522, the Court held the best person to

prove the title of a grantee is the grantor.

Surprisingly the parties failed to call their grantors in support of their respective cases.

However the site plans of their grantors were superimposed by CW1 in the composite

plan, Exhibit CE1.

There is evidence before me that the disputed land is far away from Moufid El- Adas’s

land, the Plaintiff’s grantor.

This was what transpired when the CE1, the Court’s Surveyor was cross-examined by

Counsel for the Defendant.

“Q: You will agree with me that the disputed land as hatched is far away from

Moufid El-Adas land.

A: Yes.

Q: So the disputed land does not fall within Moufid El-Adas land at all.

A: Yes.”

There is further evidence before me that the disputed land falls within Klanaa Quarter

lands and not Nungua.

This is the testimony of the CW1 respecting same.

“Q: It is equally true that the disputed land falls within the Klanaa Quarter land.

A: It falls outside.

Q: Take a look at Exhibit CE1.

A: Yes. It falls within the Klanaa land.”

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 25 of 73

In the circumstance I hold that the subject land forms part of the Klanaa Quarter lands

and not Nungua lands.

It is salient to note that the Plaintiff tendered Exhibit C, his indenture covering the

subject land, subject to the production of the original.

Exhibit C was numbered LVB112632/2007.

The Plaintiff subsequently withdrew Exhibit C and replaced same with Exhibit F,

another indenture with LVB No. 10504/2007.

In this regard the Plaintiff testified as follows when he was led in evidence by his

Counsel.

“Q: You recall that on the last adjourned date you produced an original of the

indenture of the lease executed between Moufid El-Adas and yourself in respect

of the subject land in dispute?

A: Yes.

Q: And you were in the process of tendering a photocopy of that document and the

photocopy of the site plan attached to the photocopy was not that legible and you

were ordered by the Court to have another one prepared.

A: Yes.

Q: Do you have a more legible one of the photocopy of that document.

A: Yes.

Q: Is that it.

A: Yes.”

This give birth to Exhibit F a photocopy of Exhibit C.

Exhibits C and F which are the original and photocopy.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 26 of 73

However a look at same depicts both have different Land Valuation Board’s numbers

whiles the original Exhibit C is numbered 11263/07 the photocopy Exhibit F is

numbered 10504/07.

The Court was never told how come the original and the photocopy have different

Land Valuation Board numbers.

In prove of his claim the Plaintiff relied on a Land Certificate, Exhibit D.

A look at Exhibit D, the Land Certificate depicts it is coming from the Land Title

Registry. The Land Certificate no doubt was procured under the Land Title

Registration Law PNDCL 152 as repealed by the Land Act, Act 1086.

By Section 119 of the Land Act (Act 1086) the right of a registered proprietor of land

acquired for valuable consideration shall be indefeasible.

An indefeasible title means a complete assurance to all adverse claims on mere

production of the certificate.

Her Ladyship, Mrs. Georgina Wood in the case of Amegshie v Okine [1992] 2 GLR,

319 held that the certificate raises a rebuttable presumption and not a conclusive

presumption of the holder’s title.

The certificate can therefore be challenged provided evidence is led in proof of its

irregularity.

By Section 20 of the Evidence Act (NRCD 323) a rebuttable presumption imposes upon

the party against whom it operates the burden of producing evidence and the burden

of persuasion as to the non-existence of the presumed fact. The duty of producing

evidence to question the validity of the certificate lies on the party challenging it.

In the case under consideration the Defendants contend Exhibits “A” and “B” were

fraudulently procured.

The Supreme Court in the case of Awuku v Tetteh [2011] 1 SCGLR @ 366 held:

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 27 of 73

 “Even if the appellant has registered his document of title, the registration per se would

not confer title on a person, what matters was the underlying facts. In the instant case

the evidence showed that the title of the appellant was null and void and that state no

amount of registration would save it and clothe it with validity”.

Anin Yeboah JSC (as he then was) put the issue to rest in the case of Yawson v Mensah

[2012] 38 MLRG 21 when he said “a Land Title Certificate is prima facie evidence of title to

property, its foundation or root must be shown to be in no doubt at all.”

There is evidence before me that the subject land is located at Bawalashie a village

under La belonging to the Nikoi Tse We Family of Klanaa Quartey who are the

customary owners in possession of La-Bawaleshie also known as East Legon.

There is further evidence before me that the Defendant acquired the subject land from

the said family.

The necessary inference is that acquiring the subject land from the Nungua Stool who

do not own the subject land makes the Plaintiff’s acquisition of same from them

invalid and I accordingly hold same as such.

On the issue of whether or not La Bawalashie falls under La or Nungua, the Defendant

tendered the Gold Coast Chief List as Exhibit 7.

A look at same depicts the subject land falls under La and not Nungua.

In Odonkor v Amratey [1992] 1 GLR 577 at 603 the Supreme Court per Wiredu JSC

(as he then was) held:

“…in Exhibit C, the Gold Coast Chief List, Eastern Region tendered in evidence in the

present proceedings dated 1934-35, Haatso is officially recorded as village No. 4 under

the Osu Mantse.”

The above holding by the Supreme Court per Wiredu JSC (as he then was) is aptly

applicable to the instant case. Under a (Labadi) as No. 45 Bawaleshie. It is patently

evident that Bawaleshie is a village under La Stool. Bawaleshie had been captured

herein as a village under La (Labadi) Stool.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 28 of 73
Under cross-examination, the Plaintiff admitted that Bawaleshie is also known as

Oteele, a village under La and that Bawaleshie lands fall under La. The Plaintiff was

cross-examined by Counsel for the Defendant in the instant case as follows:

“Q: Are you aware that La Bawaleshie also known as Oteele is a village under

La.

A: Yes.

Q: And you know as a matter of fact that La Bawaleshie lands falls under La.

A: Yes.”

In Achoro & Anor v Akanfela & Anor [1996-97] SCGLR 209 at 214 where the

Supreme Court held:

“…for the law is settled that where the witness of a party supports the evidence of

that party’s opponent on material issues, such as in the instant case, the party who

called the witness should lose the contest on that material issue. See Trifo v Duah

VII [1959] GLR 6; and Banahene v Adinkra [1976] 1 GLR 346 CA.”

There is further evidence before me that the Plaintiff admitted that the whole area

where the disputed land lies is known as La Bawaleshie. Plaintiff even admitted that

the Defendant told him that the land falls within his family land. The Plaintiff was

further cross-examined as follows:

“Q: When you told him that he should go to Court the Defendant responded that

since he is in possession of the land there is no need to go to Court.

A: Yes and I said you owned the land so he should go to Court.

Q: Again he told you that the land falls within Nikoi Tse Family of La Klanaa

Quarter.

A: Yes, and I said it is not true.

Q: Where the land is, is known as La Bawaleshie.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 29 of 73

 A: In the document we saw yesterday, it was La Bawaleshie.

Q: I am putting it to you that La Bawaleshie land is situate at Eastern part of the

University of Ghana Legon that is why the area is called Bawaleshie or East

Legon interchangeably.

A: Yes the names are used interchangeable.”

The Defendant further tendered a Search Report as Exhibit 5. The search shows the

land belongs to the Defendant and not the Plaintiff.

Paragraph 3(b) of Exhibit 5 reads:

“Lease dated 26th November, 1997 from: Nii Kotey Amli III to Nii Kotey Djane.”

Exhibit 5 is an Official Search coming from the Lands Commission.

There is no evidence before me that same was fraudulently procured for which reason

I presume same to be authentic.

See Section 151 of the Evidence Act, 1975, NRCD 323.

There is evidence before me that the parties relied on various judgments in support of

the respective cases.

These were the answers the Defendant gave during cross-examination:

“Q: On the last adjourned date my question to you was whether your father Nii Kotey Amli

III now deceased, your grantor was in litigation with Moufid El-Adas in respect of this

parcel of land, how say you.

A: Nii Kotey Amli III, my biological father had litigation with Moufid El-Adas, Plaintiff’s

grantor and that land was different from the land in dispute, however in a recent Civil

Appeal Case No. H1/232/2015, the Court of Appeal affirmed the judgment in Suit No.

BL/114/2005 meaning the case Counsel is referring to has been quashed. I have a copy

of that judgment.” [Emphasis supplied]

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 30 of 73

Q: Do you maintain that the land for which judgment was decreed in favour of the

Defendant in the litigation with your late father, a portion of that land is what was

leased off to Plaintiff by Moufid El-Adas.

A: No. That land does not form part of what was purportedly granted him, Moufid El-

Adas by Nii Odai Ayiku.” [Emphasis Supplied]

The findings of fact, establishing that the land belong to any of the parties family are

relevant facts that they could legitimately be used as proof of their acquisition of the

subject land.

In Nana Akoto III v Nana Kwasi Agyemang [1962] 1 GLR 524, at 529, SC, it was held:

“The law does not prevent a judgment from being used as a relevant fact from which

the court may draw a conclusion in favour of the person who tendered it.”

In Reindorf & Ankrah v Amadu Braimah & Kukei [1962] 1 GLR 508-523, the

Supreme Court held:

“Primary facts which a trial judge may find as having been proved to his satisfaction are

those necessary to establish the claim of a party, or in some cases the defence, and which

have been alleged on the one side and controverted on the other.

In the words of Lord Denning L.J, in British Launderers’ Research Association v

Borough of Hendon Rating Authority [1949] 1. K. 462:

“Primary facts are facts which are observed by witnesses and proved by oral testimony

or facts proved by the production of a thing itself, such as original documents”

It is my candid view that the Defendant is entitled to rely on the facts in the tendered

judgments in support of the present suit. It is concrete evidence that this Court can

rely on. That rule is well established in Nana Akoto III v Nana Kwesi Agyemang

[1962] 1 GLR 524.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 31 of 73

It is salient to note as already stated in this judgment, CW1, the surveyor testified that

the land granted Plaintiff does not fall within the land granted to his grantor, Moufid

El-Adas.

This piece of evidence clearly corroborates Defendant’s story that the said judgment

does not cover the land in dispute.

The Defendant further tendered a Judgment his late father obtained against one

Rebecca Kuffour in respect of a large tract of land within which the disputed land

forms part of it.

I have noticed one development this Court cannot gloss over.

A copy of the indenture of the Plaintiff’s grantor was tendered in evidence as Exhibit

1A.

Same was executed on 1st May, 1978. The lease was for a term of 99 years.

Exhibit F is a copy of the Plaintiff’s indenture. Same was executed on 24th day of

August 1998.

The necessary inference is that at the time the Plaintiff’s grantor allegedly granted the

land to him he had only 78 years left on the said lease.

Surprisingly the grantor granted him a 99 years lease.

There is no evidence before me that the Plaintiff gave any explanation for the above.

At least the Plaintiff could have called his grantor to explain since the Plaintiff told the

Court his grantor is alive.

This was what he told the Court during cross examination:

“Q: Your lessor Moufid El-Adas is he alive.

A: Yes.”

It is my candid opinion that Plaintiff’s grantor is a material witness to the success of

his case but he failed to call as a witness.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 32 of 73

I say so because the law is that the best person to prove the title of a grantee is the

grantor.

See the case of Hayfron v Egyir [1984-86] 1 FLR 570.

I must say that he would have been the best person to tell the Court how come the

disputed land is located far away from the land granted to him by the Nungua Stool.

In the circumstance I hold that the failure of the Plaintiff to call his grantor is fatal to

the success of his case.

There is evidence before me that the Deed of Lease which gave birth to Plaintiff’s Land

Certificate as can be found in Exhibit D bore the same wording and same LVB

Number. Exhibit C bore LVB 11263, (2) The Deed of Lease bore the same LVB 11263;

(3) both Exhibit C and the Deed of Lease bore the same wording.

Also Exhibit F bore the same wording as Exhibits C and D.

There is no dispute that it is Exhibit C which gave birth to Land Title Certificate No.

GA 31027 volume 53, Folio 1450 as patently evident in Exhibit D and same was also

pleaded by the Plaintiff in paragraph 6 of his Amended Statement of Claim.

There is evidence before me that the Plaintiff’s Land Title Certificate tendered in

evidence by him as Exhibit D was issued during the pendency of two suits in which

the Plaintiff in the instant case was involved. With regard to the said suits, the Plaintiff

was cross-examined as follows:

“Q: Look at this Writ of Summons. It is a Writ issued by you against Mallam

Musah. Is that not correct?

A: Yes.

The Writ of Summons was admitted in evidence as Exhibit 1.”

Q: It is true that you brought action at the High Court in respect of this very land.

Is that correct?

A: Yes.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 33 of 73

 Q: Look at this document. It (sic) that a copy of the Writ that you issued against

the Alfa Musa.

A: Yes.

The Writ of Summons and the Statement of Claim in Suit No. 549/2007 was admitted

in evidence and marked as Exhibit 2.

Q: You said you issued two Writs against Alpha Musa.

A: Yes.

Q: Look at this document that document is a judgment delivered by Justice Dapaah

against you in respect of an action you brought against Alpha Musa, is that

correct?

A: Yes.

The judgment in Suit No. BL.563/2007 dated on the 9th day of February, 2009 was

admitted in evidence as Exhibit 3.

Q: It is also correct isn’t it that Alpha Musa brought an action against you and

one Bernard Osei, is that correct.

A: Yes.

The process being Court Note in Suit No. L60/2002 dated 8th July, 2002 was admitted

in evidence as Exhibit 4.

Q: It is true isn’t it when Alpha Musa obtained judgment against you, you

appealed against the judgment is that correct?

A: Correct.

Q: Look at this document that is the Notice of Appeal, is that it?

A: Yes.”

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 34 of 73

It is salient to note that Plaintiff’s own witness Enos Agroh (PW1) admitted under

cross-examination that there was a dispute between Plaintiff and Alpha Musa in

respect of the land the subject matter of this suit.

PW1 was cross-examined as follows:

“Q: Are you aware that there was a dispute between the Plaintiff and Alpha Musa

in Court.

A: Yes, my lord.

Q: In respect of which land.

A: The same land.”

Significantly the Defendant in the instant case obtained judgment against Alpha Musa

and four (4) others in respect of the land the subject matter of this suit at an Accra

High Court Land Division entitled:

Suit No. BL 114/2005

Nana Dr. Osae Yaw … Plaintiff

1. Ben Jonah Defendants

2. Henry Mcbryn

3. Gelenn Jonah

4. Yaw Boakye

5. Alfa Musa

The above Judgment was tendered in evidence by the Defendant as Exhibit 6. In

Exhibit 6 particularly page 11 the learned High Court Judge found that Nii Odai Ayiku

IV was destooled. The learned trial Judge also granted the reliefs of declaration of title

and other allied reliefs in favour of the Defendant who was the Plaintiff in Exhibit 6. I

must state that the 1st to 4th Defendants were grantees of Moufid El-Adas but Moufid

El-Adas failed to join the action or testified. In the circumstances I hold that Moufid

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 35 of 73

El-Adas is therefore bound by Exhibit 6 as well as the Court of Appeal Judgment in

Civil Appeal No. H1/232/2015 (unreported).

See Rep v High Court, Ex Parte Sam Okudzeto & 5 Others (Samuel Adjei Mensah

& Anor - interested Parties) [2019-2020] 1 SCGLR 824 at 836 where the Supreme

Court speaking with one voice through Anim Yeboah JSC (as he then was) held:

“… The legal effect of the Judgment so delivered which binds the grantors also binds

the grantees. If the grantees, the Applicants herein, had been sued as parties in the

action and the grantors Ashong Miotse Family had knowledge of the suit but did not

join, they equally would have been bound by the Judgment.

See the case of Akwei v Cofie [1952] 14 WACA 142 and Fiscian v Tetteh 2 WALR

192”

There is evidence before me that the Defendant in the instant case obtained Judgment

against Alpha Musa and others who earlier defeated the Plaintiff in a legal contest

with regard to ownership of this very land which is the subject matter in dispute. In

his evidence the Defendant asserted that he earlier obtained judgment against Ben

Jonah and Others. The Defendant was led in evidence by his lawyer as follows:

“Q: Again at the last adjourned date you said that you obtained judgment against

Ben Jonah and Others in respect of the disputed land; before final judgment was

given in your favour tell the Court, what happened in that case.

A: I first sent Ben Jonah and Others to Court. I obtained Default Judgment before

Justice Ayebi and I went into execution of the Judgment on the 14th day of May,

2007, Nearly two (2) years after, the judgment was given it was set aside by

Justice Dzakpasu and a retrial was made before Justice Ocran.”

A copy of the Judgment delivered by Justice Ocran was tendered as Exhibit 6.

A look at same depicts judgment was entered in favour of the Plaintiff against the

Defendants including Alfa Musa who also before the said judgment had obtained

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 36 of 73

judgment against the Plaintiff in this suit in respect of the same land. These were the

answers the Plaintiff gave during cross-examination by Counsel for Defendant.

“Q: It is true that you brought action against Alpha Musa at the High Court in

respect of this very land, is that correct?

A: Yes. [Emphasis supplied]

There is no evidence before me that the judgment Alfa Musa obtained against the

Plaintiff in respect of the subject land has been set aside.

I therefore wonder why the Plaintiff is even in Court claiming title to the same land.

In sum I hold that Plaintiff’s Exhibit D, the Land Certificate is null and void since per

the evidence on record he is not the owner of the subject land.

In Awuku v Tetteh [2011] 1 SCGLR 366 holding 4 it was held:

“4. Even if the Appellant had registered his document of title, registration per se would not

confer title on a person; what mattered was the underlying facts.

In the instant case, the evidence showed that the title of the Appellants was null and void

and in that state, no amount of registration would save it and cloth it with validity.”

In the circumstance I hereby order the Land Title Registry to expunge same from their

records.

Counsel for the Plaintiff addressed issues (5), (10), (11), (13), (15), (16), (17), (18) & (19)

together i.e.

(5) Whether or not the Plaintiff’s grantor’s possession of the land since 1978, and

by reason of his adverse possession of the land for upwards of over

twelve(12) years, Defendant’s alleged rival ownership and/or challenge

against Plaintiff is statute barred, by virtue of the Limitation Act

1972(NRCD54)?

(10) Whether or not Defendant has ever been in possession of the land?

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 37 of 73

 (11) Whether or not a search conducted by the Defendant at the Lands

Commission revealed that the land in dispute belonged to him?

(13) Whether or not the registration of Plaintiff’s grantor’s title in the land and

the issuance of the Land Certificate thereof is a nullity?

(15) Whether or not Bawaleshie is a village under La?

(16) Whether or not Nikoi Tse We family of Klanaa Quarter is the customary

owner in possession of Bawaleshie lands?

(17) Whether or not La Bawaleshie lands belong to Nungua Stool?

(18) Whether or not the grant of La Bawaleshie land by Nii Odai Ayiku IV is null

and void and

(19) Whether or not in the Gold Coast Chief List, there is any village under

Nungua known as New Nungua?

Counsel submits that our laws set the limits of time that parties involved in a dispute

are to initiate legal proceedings from the date of an alleged wrong. And that the

proponents of the statute of limitations argue that for practical reasons, it is most

equitable to limit the initiation of legal proceedings to a reasonable period after the

event. Counsel continued that it is obvious that Plaintiff’s cause of action for the reliefs

endorsed thereon is backed by Section 10 of Statute of Limitation Act 1972 (NRCD 54)

and as such Defendant’s claim of ownership of the land is statute barred.

On actions to recover land, Section 10 (1-7) of the Act provides:

“10 Recovery of Land

(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.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 38 of 73

 (2) A right of action to recover land does not accrue unless the land is in the possession

of a person in whose favour the period of limitation can run.

(3) Where a right of action to recover land has accrued, and before the right of action

is barred, the land ceased to be in adverse possession, the right of action does

not accrue until the land is again taken into adverse possession.

(4) For the purpose of this Act, a person is in possession of a land by reason only of

having made a formal entry in the land.

(5) For the purposes of this act, a continual or any other claim on or near a land does

not preserve a right of action to recover the land.

(6) On the expiration of the period fixed by this Act for a person to bring an action to

recover land, the title of that person to the land is extinguished.

(7) For the purpose of this section “adverse possession” means possession of a person

in whose favour the period of limitation can run.”

It is trite learning that issues on limitation of actions is a matter of law, and where it is

found that an action is barred, this Court would not have to determine the action on

its merits. The question of limitation is very important and fundamental when raised.

See Assi v Attorney General Civil Appeal No. J4/4/17/2016, where the Supreme Court

speaking through Dotse JSC in determining whether or not the Plaintiff’s action which

he commenced against the Defendant was statute barred concluded as follows; “if

indeed it is (statute barred), then there is no need to look at the merits of the case since the

statute of limitation is a venerable shield that can be used to ward off indolent and piece meal

litigators”

The Courts have in a number of cases discussed the necessity for a party seeking to

rely on limitation to specifically plead it, in tandem with Order II rule 8 (1) of C.I. 47.

See Amankwa v. Nsiah [1994-95] GBR 758, Dolphyme v Speedline Stevedoring Co.

Ltd. [1997-98] 1GLR 786 SC.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 39 of 73

See also Bassil v. Kabbara [1966] GLR 102 where it was held that “the statute of

limitation may be pleaded by the title or by making such averments in the pleading as would

evince an intention to invoke the statute”.

Again in the more recent decision of the Supreme Court in Kwaku Ameyaw v Dr.

Francis Osafo Mensah & Anor. [2021] DLCA10779, the Court opined about the

application of the statute of limitation to cases; “the short answer as was held by this Court

in Lartey v Netey [2010-2012]1 GLR 370 (GIHOC Refrigeration Household Products

Ltd. v Hanna Assi [2005-2006] SCGLR 458; Hanna Assi (No.2) v GIHOC Refrigeration

& Household Product Ltd (No.2) [2007-2008] SCG LR 160 & Amuzu v Oklikah [1997-

98]1GLR 89,SC is that the Limitations Act being a statute, it is the duty of the Court to apply

the law to the facts of the case even if the parties are not aware of it, or irrespective of how the

parties wrongly perceived the law.”

The Plaintiff pleaded in paragraphs 3, 4 & 9 of the Amended Statement of Claim as

follows:

“3. By an indenture of lease made the 24th day of August 1998, between Moufid El- Adas

as “lessor” of the one part and Victor Odartei Mills as “lessee” of the other part, all

that piece or parcel of land situate, lying and being at Nungua New Town, Accra,

was demised unto the lessee for the residue of the term of ninety-nine (99) years

granted the lessor by a lease made the is day of May 1978, between Nii Odai Ayiku

IV, Nungua Mantse and the lessor, subject to the rent thereby reserved and to the

covenants, agreements and conditions herein contained. The indenture of lease has

been duly presented at the Lands Commission, indexed, marked and stamped as

LVBI0504/07.

4. Plaintiff states rather categorically that, soon after the acquisition of the land, he

erected corner pillars thereon to secure and/or demarcate its extent and boundaries,

and has been in uninterrupted and undisturbed possession of the land ever since,

and also that he has exercised overt acts of ownership over same by excavating a

foundation, platform and the construction of a wooden structure without any

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 40 of 73

 challenge, let or hindrance whatsoever from any stool, family and/or person(s) let

alone Defendant. In fact, it was only sometime in the year 2007, that an unidentified

trespasser forcefully entered unto the land and demolished the wooden structure.

9. Plaintiff avers also that, after the acquisition of the land from the Nungua Mantse,

his lessor immediately thereafter went into possession and built a fence wall around

it, and had continued to remain in possession since 1978. In the premises, Plaintiff

will contend that by reason of the adverse possession of the land by his lessor for up

to… and over twelve (12) years, Defendant’s alleged rival ownership and/or

challenge against him is statute barred, and also that he will plead the Limitation

Act, 1972 (NRCD 54)”

Plaintiff in his evidence-in-chief on 25th day of June 2015 at pages 1-4 testified as

follows:

“Q: Do you know the Defendant, Dr. Nii Kotey Djane?

A: Yes.

Q: When and how did you get to know him?

A: It started with my acquisition of a piece of land by an indenture of lease. This was

when he trespassed on the piece of land that I had acquired in East Legon.

Q: Can you recollect the year?

A: In 2012.

Q: This parcel of land, how and when did you acquire it?

A: By an indenture of lease dated 24/08/98 between Moufid El-Adas and Victor Odartei

Mills, that is me. I acquired this piece of land situated in Nungua New Town, Accra.

This piece of land had been acquired by Moufid El-Adas on a 99 year lease, and so

by my acquisition I was to own it for the rest of the period because he had acquired

it 20 years earlier at least in 1978.

Q: At the time you acquired this parcel of land, that area was called Nungua New Town.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 41 of 73

 A: Yes.

Q: At the time you acquired this piece or parcel of land, the area was called Nungua

Newtown. Is it still called Nungua New Town?

A: Yes (sic). I know the area is now called East Lego.

Q: You just told the Court that you acquired the land from Moufid El-Adas.

A: Yes.

Q: And that Moufid El-Adas also acquired the land sometime in 1978?

A: Yes.

Q: Do you know how Moufid El-Adas acquired the land?

A: Yes. I know that the land was acquired from Nii Odai Ayiku, Nungua Mantse.

Q: Have you per chance sighted any instrument or document to that effect about this

acquisition?

A: Yes. I have seen Land Title Certificate from Moufid El-Adas that states that the land

was acquired from Nii Adai Ayiku IV,Nungua Mantse.

Q: Is there any document covering the transaction?

A: Yes. There is a Land Title document that states this clearly.

Q: Take a look at this document, can you identify it?

A: Yes I can.

Q: What is it?

A: This is the indenture between Nii Odai Ayiku IV and my grantor tendered and

marked Exhibit A. (witness asked to read preamble of the document).

Q: You also spoke of a Land Certificate from your lessor, Moufid El-Adas.

A: Yes.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 42 of 73

 Q: Also have a look at this document, can you identify it?

A: Yes I can.

Q: What is it?

A: It is the indenture dated 24th day of August 1998 between Moufid El-Adas and

Victor Odartei Mills.

Q: This is a photocopy, where is the original.

A: Yes I have. (exhibit shown to him), the original is with my lessor. Tendered and

marked as Exhibit B. (witness is shown) this is the indenture dated 24/08/98 between

Moufid El-Adas and myself. I have the original. (witness asks to bring original)

tendered and marked Exhibit C.”

Again, Plaintiff in his evidence-in-chief on 09/03/16, testified as follows;

“Q: When did you acquire your land?

A: I think 1998.

Q: What about Moufid El-Adas, do you know when he acquired his land?

A: Yes it was in 1972 I think but I want to look at the document. (reads Exhibit A), is

day of November 1978.

Q: And when did you say or recall the challenge of the Defendant as to your ownership

or presence on the land, in which year?

A: My lord if I may refer to the document. In 2011, thereabout.

Q: From 1978 to 2011, how many years is that?

A: 33 years.

Q: What about from 1998 to 2011 when you had your grant, how many years is that?

A: 13 years”

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 43 of 73

I must state that a careful reading of Section 10 of NRCD 54 on recovery of land is

explicit that, the section only applies to land held in adverse possession. The Section

10 (3) of the Act reads:

“Where a right of action to recover land has accrued, and before the right of action is

barred, the land ceases to be in adverse possession, the right of action does not accrue

until the land is again taken into adverse possession”.

In Black’s Law Dictionary, 9th Edition by Brian A. Garner, Adverse possession is

defined as;

“The enjoyment of real property with a claim of right when that enjoyment is opposed

to another person’s claim and is continuous, exclusive, hostile, open, notorious.”

The Shorter Oxford Dictionary (Deluxe Edition), defines the term as, “the occupation of

land to which another person has title with the intention of possessing it as one’s own.”

Counsel for the Plaintiff contends that the evidence on record is unequivocal that

Plaintiff’s grantor and as such Plaintiff has been in undisturbed possession of the

disputed land for over thirty-three (33) years, and have engaged in acts of ownerships

such as building a fence wall, a wooden structure, raising platforms, digging

foundation and raising corner pillars among other structures on the land. Plaintiff also

testified that after acquiring the disputed land from his grantor Moufid El-Adas, in

1998, he was in actual and/or constructive possession of the disputed land through the

presence of his workers and caretaker who were at all material times in effective

occupation of the land, and his possession was undisturbed and uninterrupted for a

continuous period of well over thirteen (13) years, until sometime in the year 2011

when Defendant forcefully entered unto the land to destroy his properties and lay an

adverse claim. Altogether, Plaintiff through his grantor had been in continuous and

free possession and occupation of the land for well over thirty-three (33) years.

Possession of land in law includes the exercise of physical control of the land and the

intention by a person to exercise exclusive possession and also prevent others from

owning the land.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 44 of 73
In Binga Dugbartey Sarpor v. Ekow Bosomprah [2020] DLSC992 the Supreme Court

was ad idem with the Court of Appeal on its definition of possession as stated in its

judgment thus;

“Possession of land in law includes the exercise of physical control of the land and the

intention by a person to exercise exclusive possession and also prevent others from

owning the land. The evidence on record is clear that the Respondent had exercised

control over the land in dispute for over 20 years as found by the trial judge From the

Appellant’s own pleadings, he instituted this action when the Respondent started

fencing the land in dispute. The evidence is thus clear that the Respondent was

physically in possession and also through her agents. The evidence is that she even

sought to prevent others from taking over the land by fencing the land.”

Plaintiff pleaded in paragraphs 4, 7, 9, 12 & 13 of the Amended Statement of Claim as

follows:

“4. Plaintiff states rather categorically that, soon after the acquisition of the land,

he erected corner pillars thereon to secure and/or demarcate its extent and

boundaries, and has been in uninterrupted and undisturbed possession of the

land ever since and also that he has exercised overt acts of ownership over same

by excavating a foundation, platform and the construction of a wooden

structure without any challenge, let or hindrance whatsoever from any stool,

family and/or person(s)let alone Defendant. In fact, it was only sometime in the

year 2007, that an unidentified trespasser forcefully entered unto the land and

demolished the wooden structure.

7. On 20/10/12, Plaintiff had a tip off that Defendant had actually entered unto the

land, destroyed the entire foundation with the pillars, and this compelled him

to lodge a complaint at East-Legon Police Station on 21/10/12. At the Police

Station, Defendant claimed rival ownership of the land, and allegedly disclosed

that he had in sometime past erected a fence wall around the land, and also that

he was responsible for the demolition of the wooden structure The police

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 45 of 73

 advised that since both of them were asserting title to the land, it was prudent

that a resolution of the matter be sought and/or determined in a Court of

competent jurisdiction.

9. Plaintiff avers also that, after the acquisition of the land from the Nungua

Mantse, his lessor immediately thereafter went into possession and built a fence

wall around it, and had continued to remain in possession since 1978. In the

premises, Plaintiff will contend that by reason of the adverse possession of the

land by his lessor for up to and over twelve (12) years, Defendant’s alleged rival

ownership and or challenge against him is statute barred, and also that he will

plead the Limitation Act, 1972 (NRCD 54).

12. Plaintiff will furthermore contend that the incidence of his lessor’s possession

and ownership of the land notwithstanding, and having been in continuous,

uninterrupted and undisturbed possession of same all this while, Defendant is

estopped by his own conduct from challenging his title to the land; or more so

purport to have been made a grant of the same parcel of land by any stool,

family and/ or person(s), and also that, his presence on the land is unjustified,

unlawful and illegal.

13. Plaintiff will yet contend that, Defendant having stood by and allowed him to

develop the land, by excavating a foundation, platform and the construction of

a wooden structure without any protestation, Defendant is guilty of conduct

which is tantamount to laches and fraudulent acquiescence.”

Again, Plaintiff testified in his evidence-in-chief on 25/06/15 at page 5, as follows:

“Q: After you acquired the land, what did you do?

A: I first proceeded to erect pillars to mark the boundaries of the land to demarcate

the land and I even went further to excavate the foundation and proceeded to

build the platform and subsequently raised pillars on the platform. I also built a

wooden structure on the plot of land.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 46 of 73

 Q: What for?

A: I engaged the services of a young man to supervise the land for me and to alert

me in case there was a trespasser.

Q: What was the wooden structure used for?

A: It was used by the supervisor. He actually lived in the wooden structure, he also

sold a few things in front of the wooden structure.”

Plaintiff further testified in his evidence-in-chief on 09/02/16 at pages 1-3 as follows:

“Q: When you acquired the land, what did you do subsequently?

A: Subsequently, I presented the indenture to the Lands Commission who then

marked and stamped it, I then went on to erect pillars at the corners of the land

as part of the process of securing the land and proceeded to excavate a foundation

and a platform and then went on to erect pillars at various points of the

platform. And then we went on to erect a wooden structure commonly known

as kiosk on the piece of land. The person from whom I had acquired the land

showed me a document which was from land title registry which was a land title

certificate he had acquired in respect of the land. Subsequently, I also proceeded

to present my document, the indenture, to the land title registry from whom

eventually I obtained a land title certificate. Prior to my obtaining the land title

certificate, some persons I did not know entered the land and destroyed the

wooden structure which I had earlier referred to.

Q: You spoke about having erected a wooden structure on the land, what exactly

was this wooden structure used for?

A: This was meant to be used by a caretaker who I hired to stay in the wooden

structure and to stay on the land to look after my property for me.

Q: And you said you had information that unknown persons had entered the land

and destroyed the wooden structure, what did you do when you heard this?

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 47 of 73

 A: I went to the piece of land and made inquiries, the caretaker who had come to

find the wooden structure demolished could not tell me who the people were.

After that incident, nothing much happened for a long period of time. This

incident actually took place in the year 2007. In October 2012, 1 got information

again that there were people on the plot of land who were engaged in the

demolishing and destruction of the foundation and platform I had erected

several years before and were destroying all the properties I had on the piece of

land. I rushed to the place and found three gentlemen busily engaged in

destroying my property. I inquired from them why they were doing this and

who had engaged them to do this, they mentioned the name of the Defendant.

Upon which I rushed to the East Legon Police Station and made a complaint to

the Police. The Police asked one of their officers who was incidentally armed to

accompany me to the piece of land. The Police when we got to the piece of land

managed to dissuade them from continuing with their activity. They had

managed to destroy a few columns and had managed to extract the iron rods

from the pillars, had loaded these iron rods unto a mini truck which was then

taken away. We then went back to the Police Station where I made a formal

complaint and the leader of the team and I were asked to come back the following

day. The following day, I went back to the Police Station and the Defendant sent

his people to the Police Station. The Police advised both parties that given the

fact that both parties were claiming ownership of the piece of land, it will be

advisable to take the matter to a competent Court to resolve the matter.

Q: What was the actual physical state of the land when you acquired the parcel of

land in 1998?

A: When I acquired it, the land was bare and Moufid El-Adas, the person who sold

the land to me had constructed a wall i.e. half a wall along the side facing the

road. The Defendant also claimed at the Police Station he was the one who

constructed part of the wall earlier.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 48 of 73

 Q: Aside the fence wall which you said your lessor had built partially around the

land, was there any other thing on the land when you acquired same?

A: There were pillars at the corners demarcating the plot of land.

Q: These pillars you just spoke about, who did they belong to?

A: They belong to Moufid El-Adas.”

According to Counsel from the above, it is evident that Plaintiff had been in physical

possession and occupation of the land through his grantor who had built a fence wall

on the land since 1978. Plaintiff continued in possession by constructing a wooden

structure, digging a foundation platform and erecting corner pillar which Defendant

and his agents destroyed and other overt acts on the land confirming Plaintiff’s

possession and depicting Defendant’s act of trespass. The activities on the land are a

manifest indication to any prospective purchaser and adverse ownership claimant

that the land is encumbered. Admittedly, being in physical possession of the land

through his grantor for over thirty (30) years does not necessarily bestow on Plaintiff

a better title to the land than the Defendant. Long periods of possession of land does

not guarantee title nor does it by itself estop another person from challenging one’s

title to the land. For Plaintiff to succeed on his plea of limitation, he is required by law

to show adverse possession of the land. The twelve (12) years limitation period does

not run unless the person against whom a suit is instituted for the recovery of land is

in adverse possession of same. The term “adverse possession” was explained by

Atuguba JSC in Din v Musah Baako [2007-2008]1 SCGLR 686@699,when he stated;

“The law as we understand it is that if a squatter takes possession of land belonging to

another and remains in possession for twelve (12) years to the exclusion of the owner,

that represents adverse possession and accordingly at the end of twelve (12) years the

title of the owner is extinguished. That is the plain meaning of the statutory provisions,

which I have quoted and no authority has been cited to us.”

In Adietey Adjei v Nmai Boi [2013-2014] 2 SCGIR 1474 in explaining adverse

possession, Her Ladyship Sophia Adinyira JSC had this to say:

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 49 of 73
“Adverse possession must be open, visible and unchallenged so that it gives 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 provisions of

the English Statute 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 was sometimes called

‘ouster’ of the paper owner. Clearly possession concurrent with the 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 Defendants’ title was bad,

their adverse possession of the land for a period of twelve years and over, had

conferred on them possessory rights by virtue of Section 10 of the Limitation Act, 1972

(NRCD 54). The interest acquired by prescription or under the Limitation Act, 1972

(NRCD 54) was an overriding interest, which was further protected under the Land

Title Registration Act, 1986 (PNDCL 152).

Aside establishing acts of ownership and physical possession, Plaintiff’s reliance on

the plea of adverse possession and defence of limitation is required to establish their

root of title. Thus, a squatter who lays no adverse claim or a licensee cannot rely on

the plea of adverse possession and limitation but only someone whose claim of

possessory title in the land is adverse to that of the true owner.

In Amidu & Anor. v. Alawiye & Ors. in Suit No. J4/54/2018(Unreported) the

Supreme Court in a Judgment dated 24th July 2019, per Pwamang JSC, expatiated on

the above salutary principle as follows:

“The Defendants in their statement of case submitted that squatters can acquire title to

land after 12 years of occupation. That is an erroneous statement of the law. The legal

definition of a squatter in Black’s Law Dictionary 8th Edition, 2004 is “A person who

settles on property without any legal claim or title”. The difference in law between a

squatter and a trespasser is that whereas a trespasser enters onto a land and claims an
VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 50 of 73
 interest in it that is inconsistent with the rights of the true owner, a squatter does not

claim any interest in the land he is in occupation of. Therefore, possession by squatters

is not adverse to the title of the true owner so a squatter cannot succeed on a defence of

limitation.”

Counsel for Plaintiff submits that in his pleadings and evidence on record, Plaintiff

established his root of title to and acquisition of the land as opposed to the adverse

claim by the Defendant. Plaintiff pleaded in paragraphs 3, 5 & 6 of the Amended

Statement of Claim as follows:

“3. By an indenture of lease made the 24th day of August 1998, between Moufid El-Adas

as ‘lessor’ of the one part and Victor Odartei Mills as ‘lessee’ of the other part, all that

piece or parcel of land situate, lying and being at Nungua New Town, Accra, was

demised unto the lessee for the residue of the term of ninety-nine (99) years granted the

lessor by a lease made the 1st day of May 1978, between Nii Odai Ayiku IV, Nungua

Mantse and the lessor, subject to the rent thereby reserved and to the covenants,

agreements and conditions herein contained. The indenture of lease has been duly

presented at the Lands Commission, indexed, marked and stamped as LVBI0504/07.

5. Plaintiff asseverates that, his grantor Moufid El-Adas, had registered his title deed at

the Land Title Registry as No.3755/1978, after the site plan was duly plotted. Albeit,

he had also been presented with Land Certificate No. GA11- 502 in Land Register

Vol.53, Folio 487, and also that his title to the land was registered after the Land Title

Registry had complied with all statutory provisions and published notice of his

application for title registration as provided for in Section 11 of the Land Title

Registration Law 1986, PNDCL 152, and Section 6 of the Land Title Registration

Regulations, 1986, L.I. 1341.

6. Plaintiff says that, he has also been presented with Land Title Certificate No.GA3l027

in Land Register Vol. 53, Folio1450, and also that he was issued with a certificate after

the Land Title Registry had similarly complied with all statutory provisions and

published notice of his application for registration.”

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 51 of 73

Counsel states that Plaintiff on 25/06/15 in his evidence-in-chief at pages 1-4 testified

as follows:

“Q: This parcel of land, how and when did you acquire it?

A: By an indenture of lease dated 24/08/98 between Moufid El-Adas and Victor

Odartei Mills, that is me. I acquired this piece of land situated in Nungua New

Town, Accra. This piece of land had been acquired by my grantor Moufid El-

Adas on a 99 year lease, and so by my acquisition I was to own it for the rest of

the period because he had acquired it 20 years earlier at least in 1978.

Q: At the time you acquired this parcel of land, that area was called Nungua New

Town.

A: Yes.

Q: At the time you acquired this piece or parcel of land, the area was called Nungua

Newtown. Is it still called Nungua New Town?

A: Yes. (sic)I know the area is now called East Legon.

Q: You just told the Court that you acquired the land from Moufid El-Adas.

A: Yes.

Q: And that Moufid El-Adas also acquired the land sometime in 1978?

A: Yes.

Q: Do you know how Moufid El-Adas acquired the land?

A: Yes. I know that the land was acquired from Nii Odai Ayiku, Nungua Mantse.

Q: Have you per chance sighted any instrument or document to that effect about

this acquisition?

A: Yes. I have seen land title certificate from Moufid El-Adas that states that the

land was acquired from Nii Adai Ayiku IV, Nungua Mantse.

Q: Is there any document covering the transaction?

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 52 of 73

 A: Yes. There is a land title document that states this clearly.

Q: Take a look at this document, can you identify it?

A: Yes I can.

Q: What is it?

A: This is the indenture between Nii Odai Ayiku IV and my grantor tendered and

marked Exhibit A. (witness asked to read preamble of the document).

Q: You also spoke of a Land Certificate from your lessor, Moufid El-Adas.

A: Yes.

Q: Have you per chance sighted that Land Certificate?

A: Yes.

Q: Also have a look at this document, can you identify it?

A: Yes I can.

Q: What is it?

A: It is the indenture dated 24th day of August 1998 between Moufid El-Adas and

Victor Odartei Mills.

Q: This is a photocopy, where is the original

A: Yes I have. (Exhibit shown to him), the original is with my lessor. Tendered

and marked as Exhibit B. (witness is shown) this is the indenture dated

24/08/98 between Moufid El-Adas and myself. I have the original. (witness asks

to bring original) tendered and marked Exhibit C.

See also cross-examination of Defendant on 24/07/19 at page 2.

“Q: In what year exactly was the land demised to you?

A: In 1997.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 53 of 73

 Q: At all material times your grantor has been Nii Kotey Amli III, your biological

father.

A: Absolutely.

Q: You have sighted Plaintiff’s title deeds in this Court, have you?

A: Yes I have sighted Plaintiff’s title deeds which I maintain is not proper because

it is in breach of Section 12(2) of the Land Title Registration Law. Moreover,

the certificate was issued during the pendency of several suits some of which

had been tendered in this matter and the valuation number LVBII263/07 on the

indenture attached to the certificate Exhibit D. The number was fictitiously

used. It belongs to one Mr. S.N.A Mensah and the land that is connected to this

particular number is situate at East Pantang and not Oteele and or La

Bawaleshie hence the certificate not being proper.

Q: You also know for a fact that at all material times Plaintiff’s grantor was Moufid

El-Adas.

A: I do not know that. That is the claim of the Plaintiff.

Q: I am putting it to you that Plaintiff’s grantor was and still remains Moufid El-

Adas.

A: That is Plaintiff’s claim.

Q: At least you have sighted the lease dated the 01/05/78 on the Plaintiff’s bundle

of documents filed in this Court.

A: Yes I have.

Q: You have also sighted Plaintiff's lease dated 24/08/98 between Moufid El-Adas

as lessor and Plaintiff as lessee.

A: I have sighted two documents with the same date and I wish to refer to Exhibits

D and F. These are identical documents. The only difference are the land

valuation numbers. One is LVB11263/07 and the other is LVB10504/07.”

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 54 of 73

Again, see cross-examination of Defendant on 12/02/20 at page 2.

Q: You also know for a fact that Plaintiff has said in this Court that his grantor

registered his title deeds in respect of the larger portion of the land in 1978 and

has been issued with a Land Certificate regularly by the Land Title Registry.

A: I know for a fact that Moufid El-Adas grantor of Plaintiff has several land title

certificates all emanating from the Deed of 1978 that Counsel mentioned and

they were fraudulently procured.

According to Counsel per the evidence adduced, Plaintiff has demonstrated his root

of title and acquisition of the land in dispute and indeed both parties claim an interest

in the land which is inconsistent and/or adverse to the rights of each other, whoever

is the true owner. Most importantly, Plaintiff has established possessory rights in

addition to his adverse claim and as such qualifies to be described as having been in

adverse possession in terms of Section 10 of NRCD 54. From the evidence, particularly

Exhibit A, the indenture of lease between Nii Odai Ayiku IV and Moufid El-Adas,

Plaintiff’s grantor dated 01/05/78, and Exhibit B, an indenture of lease between

Plaintiff’s grantor and himself dated 24/08/98, covering the disputed land, Plaintiff’s

grantor acquired the land in 1973 and conveyed the residue of his interest to Plaintiff

in 1998, and until sometime in 2011/12 when Defendant trespassed on the land,

Plaintiff had been in possession and had demonstrated acts of possession to that effect.

Plaintiff remained in adverse possession well after the judgment in Suit No. L502/96

intituled, Nii Kotey Amli v Moufid El-Adas which decreed title to the disputed land

in his grantor, continued in possession when the land was allegedly granted to

Defendant in 1997, up and until 2011/12 when Defendant forcibly entered unto the

land, destroyed the foundation platform and wooden structure claiming ownership

by way of an indenture dated 26/11/97 executed between Nii Kotey Amli III, Head

and Lawful Representative of La Klanaa Quarter and himself. At the time this

supposed transaction took place, Plaintiff was in active possession. We make bold to

state, there was ample evidence of Plaintiff’s possession of the land at the time of

Defendant’s supposed acquisition. And that it has been well established by a number
VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 55 of 73
of decided cases that where a purchaser of land had the opportunity of seeing

evidence of possession no matter how slight on any part of the land he intended to

purchase, but he fails to investigate the authority behind the adverse possession he is

fixed with notice of the adverse possessor.

See Western Hard wood Enterprises Ltd. v West African Enterprises Ltd. [1998-1999]

SCGLR 105.

Counsel further submits that detailed analysis of the totality of evidence on record

shows that Plaintiff through his grantor has been in adverse possession of the land

since 1978 until 2011 i.e. approximately thirty-three (33) years when Defendant

forcefully entered the land. And that Plaintiff’s grantor Moufid El-Adas was granted

the land in 1978 by Nii Odai Ayiku IV, Mantse and occupant of the Nungua Stool with

the consent and concurrence of the principal elders and councilors of the Nungua

Stool whose consent and concurrence are requisite under the Ga customary law in the

disposition of Nungua Stool lands, went into immediate possession and passed on the

residue of his lease period and possession to Plaintiff who continued in possession

from 1998.Moreover,the alleged grant of the disputed land from Nii Kotey Amli III to

Defendant in 1997 was nineteen (19) years from 1978, thirteen (13) years from 1998 to

2011 when Defendant forcefully entered the land and thirty-three(33) years from 1978

to 2011.

Per the stated reasons Counsel prayed the Court to enter judgment for the Plaintiff.

It is trite law that no action shall be brought by any person after the expiration of

twelve (12) years from the date the cause of action accrued to recover possession of

land and it shall be applicable to that person’s successor’s in title.

The limitation period shall start running from the time the person who is in adverse

possession or who is being claimed against took possession of the property.

See Section 10 (1) and (2) of the Limitation Decree, 1972 (NRCD 54).

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 56 of 73

It is salient to know that limitation is a right and a person claiming benefit under the

law must specifically plead it. In the case of Dolphyne (No. 3) v Speedline

Stevedoring Co. Ltd and Another the Supreme Court in explaining the requirement

stated that limitation must be specifically pleaded stated that:

“The Limitation Decree, 1972 (NRCD 54), was essentially a special plea which must

be pleaded as required by the High Court (Civil Procedure) Rules, 1954 (LN 140 A).

If not pleaded, it could not be adverted to in submissions to the Court; and the Court

would not of its own motion take notice that an action was out of time.”

The cases in which the Court suo motu raised the issue of limitation have ceased to be

good law as some of them have been specifically overruled.

In the recent Supreme Court decision in Binga Dugbartey Sarpor v Ekow Bosomprah

[2020] DLSC9922 the Court commented on when and how the statute of Limitation

becomes applicable.

Per Kulendi JSC the Court stated as follows:

“From the above, it is evident that the Applicant has been in possession of the land for over

20 years. The Appellant being in possession of the land for over 20 years does not give the

Appellant a better title to the land than the Respondent. Long period of possession of land

does not guarantee title nor does it by itself estop another from challenging the title to the

land.

For the Appellant to succeed in his plea of limitation, he must demonstrate that he is by

law, in adverse possession of the land. Section 10 (2) (3) and (7) of the Statute of Limitation

Act, 1972 (NRCD 54) states as follows:

“10(2) a right of action to recover land does not accrue unless the land is in the

possession of a person in whose favour the period of limitation can run.

(3) where a right of action to recover land has accrued, and before the right of

action is barred, the land ceased to be in adverse possession, the right of action

does not accrue until the land is again taken into adverse possession.

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 57 of 73

 (7) For the purpose of this section “adverse possession” means possession of a

person in whose favour the period of limitation can run”

From the above, the 12 years limitation period does not run unless the person against whom

a suit is instituted for the recovery of land is in adverse possession of same.”

Also in the case of Adjetey Adjei v Nmai Boi [2013-2014] 2 SCGLR 1974 Her Ladyship

Sophia Adinyira JSC in explaining adverse possession, had this to say:

“Adverse possession must be open, visible and unchallenged so that it gives 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 provisions of

the English Statute 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 (iii) dispossession or as it was sometimes called

‘ouster’ of the paper owner. Clearly possession concurrent with the 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 Defendants’ title was bad, their

adverse possession of the land for a period of twelve years and over, had conferred on

them possessory rights by virtue of Section 10 of the Limitation Act, 1972 (NRCD 54).

The interest acquired by prescription or under the Limitation Act, 1972 (NRCD 54),

was an overriding interest, which was further protected under the Land Title

Registration Act, 1986 (PNDCL 152).”

“Where a right of action to recover land has accrued, and before the right of action is

barred, the land ceases to be in adverse possession, the right of action does not accrue

until the land is again taken into adverse possession.”

The Plaintiff further pleaded that he is a purchaser for value without notice.

To claim to be a bona fide purchaser is to claim to have made the purchase in good

faith. What amounts to good faith in the acquisition of land has often been discussed
VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 58 of 73
by the Courts in cases where the issue as to whether a party is entitled to the protection

of the Land Development (Protection of Purchasers) Act, 1960, (Act 2), has arisen for

consideration.

The expression “good faith” is not defined in Act 2, but concerning what it might

mean, Apaloo JSC, as he then was, observed in the case of Dove v Wuta-Ofei [1966]

GLR. 299, that it was:

“only natural, that the Act should require that the purchaser, to avail himself of the

statutory protection, should have acted honestly and reasonably at the date of the

original acquisition of the land, and having so acted should have believed in the validity

of his title.”

This view appears to have been endorsed by Francois JA, as he then was, when, in the

case of Ayitey v Mantey [1984-86] 1 GLR 552, he acknowledged that the expression

had been accepted to mean an honest belief in the validity of a party’s title even though

it turned out by subsequent adjudication to be an erroneous view. He underscored,

as Apaloo JSC had suggested in Dove v Wuta-Ofei, that the good faith to be examined

must relate to the time of acquisition of the land, which was a matter of fact for the

trial Judge.

In the latter case of Amua-Sekyi and Another v Sasu and Another [1984-86] 2 GLR

479, Francois did not consider the Defendant to have acted in good faith when he

defied signs as to the risk he was taking and continued with this building activity. His

Lordship considered that the Defendant in that case was reckless and took a gamble

in continuing with his building project.

In Dzade v Aboagye [1982-83] GLR 209, Edusei JA while considering the opinion of

the trial judge as to the good faith of the Defendant, had reflected on the evidence on

record as follows:

“When the Defendant went to the Osu Mantse for the execution of the so-called

conveyance, did he honestly believe that he had acquired a valid title to the land? Did

the Defendant satisfy himself that there had been no previous grant of the land? He
VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 59 of 73
 says that he did not make a search; he says he did not have the document given him

stamped and registered. He says he acquired the land in 1976 but this action was

commenced on 16th March 1978. I ask again, what precluded him from stamping and

registering the document before completion of the building? The Osu Mantsu, Nii

Nortei Owuo III who was the Defendant’s only witness, said that no records of previous

grants made by the Osu Stool were kept by the Stool, and this is my view should have

put the Defendant on his guard to make a search.”

The trial Judge in that case had viewed with suspicion the Defendant’s conduct in

starting his building even before he had obtained a building permit, and he had

described the Defendant’s attitude as one of “Let’s get a building on the land first and that

would take care of everything”. This view of the trial Judge was endorsed by Edusie JA,

who went further to observe that the Defendant could not honestly have believed that

he had title to the land. His Lordship was certain that the construction of the building

by the Defendant was not done in good faith, that there was mala fide on his part and

that he had to suffer for his conduct.

It is important to be reminded that the plea of bona fide purchaser for value without

notice, if established, constitutes an absolute defence and for that reason, the onus is

firmly on the party who resorts to it to establish it convincingly.

In the recent Supreme Court case of Hydrafoam Estates (Ghana) Limited v Owusu

[2013-2014] SCGLR 117, the Plaintiffs, like the Defendant in the present case, had

relied on the plea not as a defence or shield, as was the case in many of the Act 2 cases

reviewed above, but as a sword or a basis for judicial relief. In that case, regarding

how a party relying on the plea could establish that he had been prudent as a

purchaser, the Supreme Court per Anin-Yeboah JSC, emphasized:

“Even though the facts of each particular was may determine how prudent a purchaser

of land must act under such circumstances, we think that at least, official searches at

the Lands Commission in this case would have clearly established that the land was not

designated as the property of the Plaintiff’s vendor. An official search in the Lands

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 60 of 73

 Commission to make enquiries as to the official records covering the land would have

alerted the Plaintiffs about the ownership of the disputed property. The fact that they

were not professionals but were laymen, in our view, did not take away the necessity to

be prudent under the circumstances”.

The 1st Plaintiff in that case claimed to have derived his title from a Judgment, which

was a Default Judgment which had subsequently been set aside, and on this, the

Supreme Court observed as follows:

“In these proceedings, the hard facts conclusively establish that no effort was made to

conduct proper investigations. A certified true copy of a Default Judgment could not

under the circumstances be accepted as a basis for the plea of bona fide purchaser for

value without notice of any adverse title. In any case, the Default Judgment was

subsequently set aside, it not being final, in every respect.

We are of the opinion that the Plaintiffs as purchasers were not prudent in the whole

transaction when they limited themselves to only the Default Judgment. No

investigations were done to further their desire to acquire good title to the land”.

Now, it is clear to me, from a review of the authorities, that for a purchaser of land to

be considered to have made his acquisition in good faith or to have conducted himself

as a prudent purchaser, he must have acted honestly and reasonably in making the

acquisition. It must be evident from his conduct that he honestly and reasonably

believed in the validity of his title, and failure to conduct official searches at the Lands

Commission would undermine any claim on his part that he reasonably believed in

the validity of his title. The conduct must be relevant in making a determination as to

his honesty or the reasonableness of his belief, is his conduct during and about the

time of the original acquisition.

Indications that the purchaser was aware or should have been aware that he was

taking a risk in making the acquisition and yet went ahead with the acquisition would

be evidence of bad faith. Circumstances suggesting recklessness on his part in making

the acquisition could defeat his claim of having acted in good faith. A purchaser who,

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 61 of 73

as in the Hydrafoam Estates Ltd. Case (supra), fails to conduct an official search about

ownership of the land he intends acquiring, for example, will not find it easy

establishing that he acted in good faith or was prudent in making his acquisition. And

a purchaser will find it difficult to persuade the Court about good faith on his part

where he develops the acquired land in circumstances which suggest that he was

trying to steal a march on some other party. Commencing constructional works when

a building permit has not been procured, for example, would provide evidence of

trying to steal a march or trying to overreach another party.”

Throughout the trial the Plaintiff maintained that he and his grantor have been in

possession of the subject land since 1978 and till date without any challenge from

anyone.

And that assuming the land belongs to the Defendant they have been in adverse

possession of the subject land since 1978 till date. Thus 44 years.

If I may ask, should the forty-four (44) years of the Plaintiff’s stay on the disputed

property ripe into adverse possession assuming his claim is true.

It is my considered view that unfortunately the principle of adverse possession cannot

come to the aid of the Defendants.

I say so because the position of the law is that possession however long does not ripe

into ownership.

The decided cases on this fact are legion. In the case of Osei (substituted by) Gilard

v. Korang (2013-2014) 1 SCGLR the Supreme Court had this to say:

“The evidence Act, 1975, NRCD 323 provided in Section 48(2) that “(2) A person who

exercises acts of ownership over property is presumed to be the owner of it. But

possession, cannot ripe into ownership no matter how long it had been held or had”

In the case of Saaka v Dahali (1984-86) 2GLR 774 the Court of Appeal came to the

same conclusion, when their Lordships held that:

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 62 of 73

 “Long possession per so does not avail the possessor against a claimant, if the claimant

was the true owner or could show that he or she derived title from the true owners”

There is evidence before me that the Defendant asserted that he is the owner in

possession of the disputed land.

He testified as follows:

“Q: Who is the owner of the land in dispute in respect of which an action had been

brought by the Plaintiff?

A: I am the legitimate owner of the land in dispute.

Q: Please tell the Court how you came to be the owner of the land?

A: I became the owner of the land by virtue of a deed executed in my favour by Nii

Kotey Amli III, the head and lawful representative of the La Klanaa Quarter, who

is also my biological father.

Q: Look at this document, is that the deed of lease granted to you by Nii Kotey Amli

Ill, the head of Klanaa Quarter.

A: Yes, it is.”

The Defendant in his testimony said that upon acquiring the subject land which was

overgrown with bush, he took immediate possession of the same, cleared it and

constructed a fence wall around the perimeters of the subject land.

The Defendant was led in evidence by his Counsel as follows:

“Q: Upon acquiring the land what did you do?

A: I cleared it as it was overgrown with bush. I then erected a fence wall around

the perimeters and went into immediate possession.”

Significantly, the above evidence adduced by the Defendant was corroborated by

Plaintiff’s own Witnesses-Enos Agroh (PW1) and Legodzo Asiwome (PW2) to the

effect that when they went to the land at the instance of the Plaintiff, there was an

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 63 of 73

existing fence wall, a portion of which was broken. The evidence was elicited through

cross-examination of PW2 (Legodzo Asiwome) as follows:

“Q: Did you see any fence wall on the land?

A: We saw bricks and a broken wall on it.

Q: Do you know who constructed the wall which was broken?

A: No my Lord.

Q: From your own evidence the wall was there before you allegedly went on the

land?

A: Yes my Lord.

Q: I am putting it to you that the land belonged to the Defendant.

A: I cannot tell.

Q: Up to date that wall is still there.

A: It is not the land.

Q: Have you ever been to the land recently?

A: Yes my Lord.

Q: I am putting it to you that you are not truthful to the Court when you say that

the fence wall was not on the land.

A: The broken wall we saw on the land is not the same as it is now.

Q: So which fence wall is on the land as we speak today?

A: A block fence wall.

Q: And you know that that fence wall belonged to the Defendant?

A: I do not know.”

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 64 of 73

PW1 (Enos Agroh) in his evidence as well as evidence elicited through cross-

examination of him said that when he and his boys went to the land they saw fence

wall on one side of the land. In his evidence-in-chief he testified as follows:

“Q: You know why Mr. Mills is in Court with the Defendant?

A: Yes I know.

Q: What is it that you know between them?

A: The Plaintiff called me to build a house for him at Christian Centre behind A &

C Shopping Mall. When we met he gave me architectural drawing, electricals,

and the site plan. When we went to the site, one side of the plot had been fenced

with burnt bricks and part of it was broken.” [Emphasis supplied]

PW2 admitted that at the material time that they went to the land, there was a fence

wall on the land. The evidence was elicited through cross-examination of the Plaintiff

as follows:

“Q: You know as a matter of fact that there was a fence wall on a portion of the land

in dispute?

A: Yes as I said the last time there have been a fence wall on one side of the plot and

part of it was broken before we entered the land.”

Thus it is abundantly clear that PW1 and PW2’s testimony corroborated the

Defendant’s evidence to the effect that he had long been in possession of the subject

land before Plaintiff sent PW1 and PW2 to the land. The above much revealing answer

by PW1 and PW2 which amply corroborated that Defendant’s assertion that he was

already in possession of the land before Plaintiff did.

See Re Asere Stool, Nikoi Olai Amontia IV substituted by Tafo Amon II) v. Akotia

Oworsika III (substituted by Laryea Ayiku III [2005-2006] SCGLR 637 particularly

part 1 of holding 2 where the Supreme Court held:

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 65 of 73

 “2. Where an adversary has admitted a fact advantageous to the cause of a party,

the party does not need any better evidence to establish that fact than by relying

on such admission, which is an example of estoppel by conduct. It is a rule

whereby a party is precluded from denying the existence some state of facts

which he had formerly asserted. That type of proof is a salutary rule of evidence

based on common sense and expediency."

Again, See Asante v. Bogyabi [1966] GLR 323 at 240 where the Supreme Court held:

“Where admissions relevant to matters in issue between parties to a case are made by

one side, supporting the other, as appears to be so in the instant case on appeal, then it

seems to me right to say that that side in whose favour the admission are made is entitled

to succeed and not the other.”

This clearly depicts that once the Defendant is in possession of the land he deserves

the protection of the Court.

In Adjei v Acquah [1991] 1 GLR 13 SC it was held at page 29 that:

“The basis of this Law is derived from established principle that possession is

a good title against the whole world save the true owner or someone claiming

through the owner. Such possession is entitled to the protection of the Courts.”

See Wiredu v MIM Timber Co. Ltd [1963] 2 GLR 167 at 168 SC”

See also the case of Amankwa v Nsiah part 2 [1994-95] GBR 758 at 772 where Acquah

J.A. (as he then was) said:

“… for possession is nine points of the law, and a Defendant in possession who has no

counterclaim only has to plead that he is in possession. In such situation, as Lord Fitz

Gerald said in Danfor v McAnnity [1883] App. Cas. 456 HL.

“....The Plaintiff could succeed only on the strength of his own title and could not found

his claim on the weakness of the Defendants. For the law respected possession and deemed

it lawful until some Claimant established in proof that he had a title to the land and a right

of entry to oust the Defendants. The party who sought to change the possession should first
VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 66 of 73
 show a legal title to it in himself. Indeed the presumption of ownership raised by the fact of

possession has received statutory recognition in Section 48 of our Evidence Decree 1975

NRCD 323 wherein it provided:

“48 (1) The things which a person possesses are presumed to be owned by him.

(1) A person who exercises acts of ownership over property is presumed to be the owner

of it.”

Again, See Osei (substituted by) Gillard v Korang [2013 – 2014] 1 SCGLR 221 at 234

the Supreme Court speaking through Ansah JSC said:

“In the present appeal, the stark fact is that the Plaintiff-Appellant was in possession

of the house just as was the sixth Defendant witness. Now in law, possession is nine-

tenths of the law and a Plaintiff in possession has a good title against the whole world

except one with a better title. It is the law that possession is prima facie evidence of

the right to ownership and it being good against the whole world except the true

owner, he cannot be ousted from it: See Summey v Yohuno [1962] 1 GLR 160, SC; and

Barko v Mustapha [1964] GLR 78, SC.”

In the light of the above evidence which eloquently established that the Defendant

had long been in possession of the subject land before Plaintiff sent PW1 and PW2 to

the said land coupled with the cases cited supra, I hold that the Plaintiff’s attempt to

invoke Limitation Act collapses.

Plaintiff alleged his grantor put up the wall during cross-examination as follows:

“Q: What is the actual physical of the land when you acquired it?

A: The time I acquired it the land was bare and Moufid El-Adas who sold the land

to me had constructed a half a perimeter wall not along all sides but one side

facing the street and the other side facing the other street. The Defendant also

told me at the Police Station that he had also constructed part of the wall earlier.”

[Emphasis supplied]

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 67 of 73

Under the fiery heat of cross-examination, the Defendant contested that Moufid El-

Adas never constructed fence wall on the disputed land. With regard to this the

Plaintiff was cross-examined as follows:

“Q: It is true isn’t it that Moufid El-Adas never put any structure on this land?

A: Moufid El-Adas never put up any structure on this land.”

In the light of the above answer given under cross-examination by the Plaintiff, there

is no shadow of doubt that Moufid El-Adas never built any fence wall on the disputed

land.

In fact the Plaintiff failed to call his said grantor in prove of his claim.

There is further evidence before me depicting that the subject land is registered in the

name of the Defendant.

See Exhibit 5, a Search Report from the Lands Commission.

This clearly depicts that if the Plaintiff had conducted a search at the Lands

Commission same would have revealed that the subject land belongs to the

Defendant.

l hold that the Plaintiff cannot therefore claim to be a purchaser for value without

notice.

In the case of Gihoc Refrigeration & Household Products Ltd v Jean Hanna Assi

[2005-2006] SCGLR 458, the Supreme Court held:

“A person who acquires possessory title by virtue of the Limitation Act can maintain

an action for possession against everybody including the original owner whose title

became extinct as a result of adverse possession.

A person who has been in adverse possession of a land for twelve years & more could

maintain an action for possession in terms of Section 10(1) and (6) of the Limitation

Act, NRCD 54. Adverse Possession could be used as both a sword and a shield.”

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 68 of 73

Per the totality of the evidence led I hold that statute limitation cannot however

protect the Plaintiff in this case as discussed in this judgment.

This brings the Court to issues 9 and 12.

“ (9) whether or not by reason of the judgment in Suit No. L502/96 intituled Nii Kotey

Amli III v Moufid El-Adas, Defendant is estopped per res judicata from

challenging Plaintiff’s interest in and/or title to the land and

(12) Whether or not by reason of the judgment in Suit No. BL/114/05 intituled Nana

Dr. Osae Yaw (Nii Kotey Djane v Ben Jonah & 4ors, Plaintiff is estopped from

claiming ownership of the land?”

The Black’s Law Dictionary (eighth ed.) defines, “Res Judicata as a doctrine barring the

same parties from litigating a second suit on the same transaction or any other claim arising

from the same transaction or series of transactions or that could have been raised but was not

raised in the first suit. For the proper invocation of the doctrine, these elements must exist:

(1) there must be an earlier decision on the issue,

(2) a final judgment on the merits; and

(3) the involvement of the same parties or parties in privity with the original parties.”

In Justice Quave v Koiwah Investment Co. Ltd & 3ors [2019] DLSC 5258, the

Supreme Court held;

“It is trite learning that related to the principle of cause of action and issue estoppel is

the doctrine of abuse of process, commonly referred to as the rule in Henderson v

Henderson[1843] Hare 100,whose essence was set out in the case of Barrow v

Bankside Agency Ltd. [1996]1WLR 257 at 260, as follows:

“The rule in Henderson v Henderson [1843] Hare 100 is very well known. It requires

the parties, when a matter becomes a 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

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 69 of 73

 absence of special circumstances, the parties cannot return to the Court to advance

arguments, claims or defences which there could have put forward for decision on the

first occasion but failed to raise. The rule is not based on the doctrine of res judicata in

a narrow sense, or even on any strict doctrine of issue or cause of action estoppel. It is

a rule of public policy based on the desirability, in the general interest as well as that of

the parties themselves, that litigation should not drag on forever and that a Defendant

should not be oppressed by successive suits when one will do. That is the abuse at which

the rule is directed. On the above principle of law the case of Greenhalgh v Mallard

[1947]2 All ER 255, is very instructive and throws more light on the estoppel issues

raised in this case at page 257 of the report the Court observed that res judicata: “is not

confined to the issues which the Court is actually asked to decide, but that it covers

issues or facts which are so clearly part of the subject matter of the litigation and so

clearly could have been raised, that it would be an abuse of the process of the Court to

allow a new proceeding to be started in.”

This principle of law has been applied by this Court in several cases, such as Brown v

Ntiri (Williams Claimant) [2005-2006] SCGLR 247 and Dahabieh v SA Turqui &

Bros [2001-20-02] SCGLR 498, where the Court stated at page 507 of the report that:

“It is well settled under the rule of estoppel that if a Court of competent jurisdiction has

tried and disposed of a case, the parties themselves and their privies cannot, thereafter,

bring an action on the same claim or issue. The rule covers matters actually dealt with

in the previous litigation as well as those matters which properly belonged to that

litigation and could have been brought up for determination but were not raised.”

[Emphasis supplied]

The Plaintiff pleaded in paragraph 3 of his Amended Statement of Claim, thus;

“3. By an indenture of lease made the 24th day of August 1998, between Moufid El-

Adas as “lessor” of the one part and Victor Odartei Mills as “lessee” of the other

part, all that piece or parcel of land situate, lying and being at Nungua New

Town, Accra, was demised unto the lessee for the residue of the term of ninety-

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 70 of 73

 nine (99) years granted the lessor by a lease made the 1st day of May 1978,

between Nii Odai Ayiku IV, Nungua Mantse and the lessor, subject to the rent

thereby reserved and to the covenants, agreements and conditions herein

contained. The indenture of lease has been duly presented at the Lands

Commission, indexed, marked and stamped as LVBI0504/07.

Plaintiff again pleaded in paragraph 2 of his Reply to Defendant’s Statement of

Defence;

“2. In reply to paragraphs 5, 6, 7, 9, 17 &18 of the Statement of Defence Plaintiff

states rather categorically that, in Suit No. L502/96 intituled Nii Kotey Amli v

Moufid El-Adas the High Court of Justice, presided over by her Ladyship, Mrs.

Justice Vida Akoto-Bamfo (JA) as she then was, sitting as an additional High

Court Judge, decreed judgment against Defendant’s grantor (Nii Kotey Amli),

and in favour of my grantor (Moufid El-Adas) in respect of my grantor’s title

to the parcel of land, subject -matter of this suit. In the premises, Plaintiff will

contend that Defendant is estopped per rem judicata from challenging his

interest in and/or title to the land”

Again, Plaintiff testified in his evidence-in-chief as follows;

Q: Do you recall ever whether your lessor had anything to do with this Nii Kotey

Amli III.

A: Yes. I think he had earlier issues with the bigger plot of land which includes the

piece of land that we are talking about in this Court.

Q: Do you know what this issue was?

A: It was about claim to ownership of land of which the piece of land we are talking

about in this Court is part.

Q: Was that claim of ownership between your lessor and Nii Kotey Amli III settled

in any form or manner that you remember?

A: Yes.
VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 71 of 73
 Q: How was it resolved?

A: It was resolved in favour of Moufid El- Adas in the Court of law.”

Plaintiff further testified in his evidence-in-chief on 09/03/ 16 at pages 1-2 as follows:

“Q: You spoke about the judgment in a case or action instituted between Moufid El-

Adas, your lessor and Nii Kotey Amli.

A: Yes I did.

Q: And you also told the Court that the judgment went in favour of your lessor. Is

that so?

A: That is so.

Q: Have you sighted a copy of this judgment that you speak about?

A: Yes I have: (Judgment is tendered in evidence and marked Exhibit E)”

It is salient to note though Defendant admits there was a litigation between their

grantors, he insisted that the subject land in that suit is distinct, separate and different

from the one in dispute.

There were the answers he gave doing cross-examination:

“Q: You also know for a fact that Moufid El-Adas was strewn in litigation with

your grantor Nii Kotey Amli in respect of the larger tract of land out of which

a portion was hived off or delimited to Plaintiff.

A: It is true that Moufid El-Adas litigated with my grantor, my biological father

but on a different land other than the land in dispute. Moufid El-Adas has no

land and so such cannot give any land. He cannot give what he does not have.

The same applies to Nii Odai Ayiku, the grantor of Moufid El-Adas. He has no

land at Oteele/La Bawaleshie and as such cannot grant La Bawaleshie/Oteele

lands. [Emphasis supplied]

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 72 of 73

 Q: And that case, Moufid El-Adas was decreed as title owner of the parcel of land

in dispute.

A: Yes he was decreed owner but it was not about this land in dispute.”

There is further evidence before me that per the evidence of CW1, the Court’s

appointed surveyor, the disputed land does not form part of Plaintiff’s grantor’s land.

In the circumstance I hold that the plea of rejuidcata does not apply in this case.

In conclusion I hold that a critical evaluation of the evidence on record depicts the

Plaintiff failed to prove his claim for which reason I dismiss same accordingly.

Cost of GH¢40,000 against the Plaintiff in favour of the Defendant as agreed by

Counsel for the parties.

(SGD)

EMMANUEL AMO YARTEY (J)

COUNSEL:

KWADWO BOAMAH BOAKYE FOR FRANK DAVIES FOR

PLAINTIFF PRESENT

OBED WORDU FOR PROSPER NYAHE FOR THE DEFENDANT

PRESENT

VICTOR ODARTEI MILLS V DR NII KOTEY DJANE Page 73 of 73