Adverse possession Commented [K1]: Adverse possession is a doctrine under which

a person in possession of land owned by someone else may acquire

valid title to it, so long as certain common law requirements are

Nature
met, and the adverse possessor is in possession for a sufficient
period of time, as defined by a statute of limitations.

 Owner abandons land and the squatter enters into possession

of it
 Squatter drives the owner out of possession and takes
possession of it
 Owner gives the squatter a license to occupy, subsequently the
licenses expires but squatter remains in possession
 Owner grants a lease the lease expires and the squatter
remains on the land without the owners consent Commented [K2]: Tennat at sufferance

Effect of lapse of time

On the owner

 Owners right of action to recover land from the squatter is

extinguished as well as his right to the land Commented [K3]: NRCD 54 Section 10(6)
(6) On the expiration of the period fixed by this Decree for any

 Owner cannot revive his title by a later acknowledgement or

person to bring an action to recover land, the title of that person to
the land shall be extinguished.

payment made to him or by judgement obtained by default. He

cannot restore his position by re-entry

Nicholson v England

Effects on the squatter

 The owners title is not transferred to the squatter

Aidoo v Adjei
In 1911 the Jukwa stool sold a plot of land to a company called
Millers. There was a document of sale, and the appellant alleged
that the interest conveyed was the absolute interest. Millers
entered into possession and erected buildings, etc. thereon and
carried on business. In 1929 Millers amalgamated with another
[p.432] firm and became the United Africa Co. (U.A.C.) which
entered in possession of the land and was handed the document of
transfer of 1911. That document was subsequently lost, but U.A.C.
continued to enjoy undisturbed possession until 1960 when the
land was sold by deed (which was stamped and registered) to the
appellant. The recitals to the deed provided that, "and whereas
the company has been in possession of the property hereinafter
described for twenty (20) years and upwards without
acknowledgment of the title of any other person." Since 1911,
neither Millers nor U.A.C. nor the appellant were asked to in any
way acknowledge title in the Jukwa stool.
In 1972, the appellant's possession was disturbed by the first
respondent who erected a chop bar on part of the land. When
challenged, the first respondent said he had been authorised to
do so by the Omanhene of the Denkyira Traditional Area. The
appellant sued the first respondent for declaration of title and
damages for trespass and the Omanhene of the Denkyira
Traditional Area and the Jukwamuhene were joined as co-
defendants.
The omanhene deposed that in 1955 when he was enstooled the
elders told him that the land in dispute was granted to Millers on
payment of a sum of money and some drink to acknowledge the
stool's ownership. The grant was conditional in that "whenever
they left the land would revert to us. There was no formal
agreement." He therefore asserted that when in 1960 U.A.C.
vacated the land, it reverted to the stool which was free to allow
the first respondent to enter.
However, in 1972, the omanhene had caused to be written to the
U.A.C. a letter in which he asked U.A.C. "how your company
acquired the said land," and asked to be provided with certified
true copies of any documents made between the stool and U.A.C
or its predecessors.
The learned trial judge accepted the traditional evidence and
gave judgment for the respondents. On appeal,
Held, allowing the appeal:
(1) the appellant's evidence entitled him to a declaration of title.
A person in possession of land was presumed to be the absolute
owner. The effect of the recitals in the conveyance of 1960, was
that U.A.C., unable to produce the document of title between the
Jukwa stool and Millers, were pleading that they were owners in
possession. The recitals therefore gave no support to the
traditional evidence which stood alone.
(2) When tested that evidence was improbable. Had the story
about the transaction between the stool and Millers as recounted
in 1955 been true, it was most unlikely that the omanhene would
have written in such inquiring terms in 1972; he would have
expressed his dissatisfaction in no uncertain language. If he
knew the agreement was informal, he would have known that no
documents, such as he asked for, existed. It was further
improbable that a British firm like Millers would wish to invest
money, and agree to obtain for business purposes, landed
property on the very tenuous basis implicit in the omanhene's
testimony, and no stool conscious of its ownership of land would
enter into such an agreement.
(3) This was not a case in which the appellant sought to prove
prescriptive title. The evidence of long undisputed possession
was not the foundation of title, but was used to buttress it.
The origin of title was the misplaced deed of 1911 which loss
occurred while it was with U.A.C., a human organisation to
whom perfect attributes should not be attributed. Mieh v.
Asubonteng [1963] 2 G.L.R.

In Tichborne v Weir ([1891 – 94] All Er Rep 449, CA (Eng)) D

granted a lease to B. The lease contained a covenant requiring the
tenant to keep the property in repair. B granted an equitable
mortgage of the lease to G. When B disappeared, G went into
possession and paid rent to the landlord. After 40 years, G
conveyed his title to the defendant. The defendant went into
possession and also paid the rent. When the lease ended, the
landlord sought to require the defendant to perform the lease
covenant to keep the property in repair. The English Court of
Appeal held that the defendant was not subject to the covenant.
G’s title, transferred to the defendant, was based on his 40 years
of adverse possession. Adverse possession does not work by
transferring the relevant paper title (here the lease) to the
squatter.

Contract the above cases with

Gihoc v Hanna Assi

DR. DATE-BAH JSC: The bone of contention in this case is
Plot No. 19, Ring Road Industrial Area, Kaneshie, Accra, and the
buildings on it. The defendant/respondent/respondent (whom I
will subsequently refer to as the defendant) claims ownership of
the plot and holds a land title certificate relating to it. He was
also the principal shareholder in General Cold Industry Limited,
incorporated in 1974. This company was carrying on business on
the land and premises in dispute, when the Armed Forces
Revolutionary Council confiscated the proprietary rights of the
company and all shares in it by Decree in 1979 (AFRCD 31). That
Decree did not purport to confiscate the land and premises on
which the confiscated enterprise conducted its business. The
confiscated enterprise was given to the Ghana Industrial Holding
Corporation (GIHOC) to run. GIHOC took charge of both the
enterprise and the premises in which it did its business and
continued running the business on Plot No. 19.

The business was restored to the defendant, after the return of

constitutional rule in 1979. The defendant testified that he was
allowed through the courts to take back his properties in 1980
(p.113 of the Record). However, the business was re-confiscated
after the PNDC took power. This was done by PNDC Law 30 in
1982. GIHOC resumed the ownership and management of the
enterprise and changed its name to GIHOC Refrigeration and
Household Products Ltd. in 1984.

The defendant endeavoured to secure the return of his

confiscated properties and petitioned the authorities several
times to that end. Eventually, he thought his efforts had been
crowned with a degree of success when a letter (Exhibit 5) was
written on behalf of the Confiscated Assets Committee to the
Executive Secretary of the Divestiture Implementation
Committee (“DIC”). This letter advised the DIC as follows:

“1) Divestiture of GIHOC Refrigeration must be limited to only

those assets that belonged to General Cold Industry and taken
over by GIHOC Refrigeration plus any other assets acquired by
GIHOC Refrigeration since the take over.

2) The land and buildings there known as Plot 19 North

Industrial Area which for all practical purposes was never
confiscated is to be released to John Assi.”

When the plaintiff/appellant/appellant (hereafter referred to as

the plaintiff) failed to surrender the plot to the defendant, the
defendant instituted legal proceedings in 1997 against the
plaintiff for possession of the plot. His grounds were that it
belonged to him and not his company, General Cold Industry Ltd.,
and therefore the confiscations of 1979 and 1982 did not operate
to divest him of his title. The plaintiff in the present case, who
was the defendant in that case, raised the defence that it had
been in adverse possession of the plot for more than 12 years and
therefore had extinguished the title of the defendant in this
case and become the new owner of the property. The defendant
subsequently discontinued this action.

Because the plaintiff had not counterclaimed in the action

brought by the defendant, when the defendant discontinued it,
the plaintiff no longer had a forum to ventilate its claim that the
statute of limitation had vested title in it. Accordingly, it
brought the present action against the defendant claiming:

(i) “a declaration that it is the owner in possession of the

property known as Plot 19, Ring Road Industrial Area,
Kaneshie, Accra.

(ii) a declaration that the title and right which the

defendant hitherto had in the said property became
extinguished by reason of the adverse possession of it by
the plaintiff for a continuous period of more than 12
years from 1979 or 1982 when the plaintiff, then called
General Cold Industry Ltd., took adverse possession of it.

(iii) Order of perpetual injunction restraining the defendant

by himself, servants or agents from, in any way
whatsoever whether directly or indirectly, interfering
with the said property or the plaintiff’s title to or
possession of it.”

The learned trial judge, His Lordship Abada J., dismissed the
action. He held that, on the evidence, the plaintiff’s occupation
of Plot 19 was based on Government permission and that made
them licensees of the Government and therefore not adverse
possessors. He further held that the defendant, having acquired
a land title certificate, his interest in the land was indefeasible.
Accordingly, not only did he dismiss the plaintiff’s action, but he
also declared title in favour of the defendant and ordered that
the defendant should forthwith recover possession of the land in
dispute.

From this judgment, the plaintiff appealed to the Court of

Appeal. The Court of Appeal unanimously confirmed the learned
trial judge’s dismissal of the plaintiff’s action (using a different
rationale), but set aside the orders (except as to costs) made by
the learned judge, since the defendant had not counterclaimed
for the reliefs that the trial judge had granted.

Both parties were dissatisfied by this judgment and therefore

the plaintiff has appealed to this Court, while the defendant has
cross-appealed against the setting aside of the learned trial
judge’s orders.

The grounds of appeal urged on this court by the plaintiff are as

follows:

i. “The Court of Appeal misdirected itself in law in

holding that a person who has been in adverse
possession of land for the statutory period which
has extinguished the title of the ousted owner
cannot maintain an action against the ousted owner
if he disturbs the title and possession of the
adverse possessor.

ii. The Court of Appeal grossly misdirected itself in

law when it held that the provision of the Limitation
Decree on adverse possession can only be used by
the adverse possessor after the expiration of the
statutory period of 12 years as a shield and not a
sword.

iii. The Court of Appeal caused a substantial

miscarriage of justice against the appellant when it
held that the appellant became and was in
possession of the plot in dispute as a licensee of the
respondent when that was not the case put forward
by the respondent himself who pleaded that the
appellant was in occupation as a licensee of the
 government, thereby putting up a case for the
respondent other than the one he had put forward.

iv. The Court of Appeal misdirected itself in giving

effect to the letter of the Confiscated Assets
Committee to the effect that the plot be released
to the respondent when, on its own showing, the
appellant was on the plot as the licensee of the
respondent rather than the government.

v. The Court of Appeal misdirected itself in thinking

that the fact the respondent might have petitioned
against the confiscation of his shares in the
appellant as a company had relevance to the
question of acquisition of title to the plot, which
was never a confiscated property, by adverse
possession.

vi. The Court of Appeal failed to take cognisance of

the fact that if the appellant was indeed in
possession of the plot as a licensee of the
respondent would not have sued the appellant in
1997 as a trespasser for recovery of possession of
the plot.

vii. The costs of c10 million were excessive, exorbitant

and unreasonable.”

The ground on which the defendant has based his cross-appeal is:

“The Court of Appeal misdirected itself in law in holding

that the High Court had no discretion to declare title in favour of
the Defendant and order the said Defendant forthwith to
recover possession of Plot 19 Ring Road Industrial Area, Kaneshie
because the Defendant had not counterclaimed for the said
reliefs.”

The plaintiff, in its Statement of Case before this Court, argued

its first two grounds of appeal together. These are the grounds
that I will consider first. It should be noted, however, that
these two grounds are examined without prejudice to the fact
that if the plaintiff is held, on the facts and the law applicable to
this case, to have been a licensee of the defendant, then the case
for the plaintiff’s adverse possession would collapse. Thus, even if
the proposition of law the plaintiff is advocating in these two
grounds were upheld, it would not lead to the plaintiff’s success in
the appeal, if the finding that the plaintiff is a licensee of the
defendant were upheld.

The issue raised by the first two grounds of appeal is whether 12

years’ adverse possession of land by a plaintiff results, not only in
the original owner’s rights in the land being extinguished, but also
in the said plaintiff acquiring such title to the land possessed as
can found an action for declaration of title. The plaintiff
complained of the Court of Appeal’s view that section 10(1) of the
Limitation Decree 1972 (NRCD 54) is to be construed as a shield
rather than a sword. Section 10(1) provides that:

“No action shall be brought to recover land after the expiration

of twelve years from the date on which the right of action
accrued to the person bringing it or, if it first accrued to some
person through whom he claims, to that person.”

Her Lordship Mrs. Adinyira JA, delivering the judgment of the

Court of Appeal, said, in relation to this provision:

“I quite agree with counsel on this submission that the said rule is
meant to be a defence to an action to claim land occupied by
someone in adverse possession. I have not come across any case
as yet where anyone has used adverse possession as the
foundation of his or her title to mount an action, except perhaps
in a counterclaim.”

The plaintiff argues that this view of the Court of Appeal

overlooks the implications of section 10(6) of the Limitation
Decree. That subsection states that:

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

The plaintiff’s argument, in its Statement of Case before this

Court, is to the following effect:

“When Adinyira JA said she had not yet come across a case
where anyone has “used adverse possession as a foundation of his
or her title to mount an action except perhaps in a counterclaim”
she was obviously overlooking section 10(6) of the Decree. If she
had adverted her mind to that subsection which she had herself
quoted and not fixed her eyes on only subsection 1 which counsel
for the respondent had used as the foundation for the
proposition that adverse possession can be used only as a shield
and not a weapon, she would not have found herself in agreement
with the proposition. An examination of the whole case presented
on behalf of the company both at the High Court and in the Court
of Appeal, as contained in the written submissions at pages 118-
143 and page 208-247 of the record, will reveal that the
company’s case was based on section 10(6) of the Decree.”

I find the plaintiff’s argument overwhelmingly persuasive in

principle. The combination of the extinguishing of the original
owner’s rights (section 10(6)) with the barring of action against
the adverse possessor (section 10(1)) must in logic result in the
adverse possessor being construed to have gained a right that is
enforceable by action. Otherwise, there would be the risk of
“ownerless lands” resulting from a contrary interpretation of
section 10(6) of the Limitation Decree. Indeed, there is
authority in support of the view that an adverse possessor of land
in relation to which the original owner’s rights have been
extinguished has rights in relation to which he can sue.

The adverse possessor gains a new estate of his or her own, which
is not by transfer from the original owner whose rights have been
extinguished by the limitation statute. Leach v Jay (1868) 9
Ch.D.44 is persuasive authority for the proposition that a
squatter may acquire an actionable interest in the land on which
he or she squats. That was a case in which R died intestate
leaving a sole heiress-at-law, A. At the time of R’s death in 1864,
he was seised of freehold houses. After his death, his widow
wrongfully entered into possession of these freehold houses and
retained possession until her death in 1869. After her death, her
devisees entered into possession of the houses. A died in 1871,
without ever having taking possession of R’s property. In her will,
she devised to L all real estate (if any) of which she might die
seised. L brought action against the devisees of R’s widow for
recovery of R’s houses. The Court of Appeal held that since A, at
the time of her death had no seisin, the property had not passed
under her devise.

In the course of the Court of Appeal’s judgment in this case,

James LJ made some remarks which cast light on the issue
confronting this Court. This is what he said (at p. 44-45 of the
Report):

“I am of opinion that there are such things as seisin and disseisin

still. Mr. Joshua Williams says in his late book on Seisin: “If a
person wrongfully gets possession of the land of another he
becomes wrongfully entitled to an estate in fee simple, and to no
less estate in that land; thus, if a squatter wrongfully encloses a
bit of waste land and builds a hut on it and lives there, he
acquires an estate in fee simple by his wrong in the land which he
has enclosed. He is seised, and the owner of the waste is
disseised. It is true that, until by length of time the Statute of
Limitations shall have confirmed his title, he may be turned out by
legal process. But as long as he remains he is not a mere tenant
at will, nor for years, nor for life, nor in tail; but he has an estate
in fee simple. He has seisin of the freehold to him and his heirs.
The rightful owner in the meantime has but a right of entry, a
right in many respects equivalent to seisin; but he is not actually
seised, for if one person is seised another person cannot be so.”
Upon the allegations in this statement of claim, it appears to me
that Mary Roberts [i.e. the widow] was in the position of the
squatter in Mr. Williams’ book, that she squatted on the land, and
that she and her heirs acquired an estate in fee by wrong which in
time might eventually be turned into a rightful estate.”

The learned Lord Justice thus clearly considered that a squatter

may eventually acquire an enforceable and actionable interest in
land. The Privy Council came to a similar conclusion in Perry v
Clissold and Ors [1907] AC 73, where Lord Macnaghten said (at p.
79):

“It cannot be disputed that a person in possession of land in the

assumed character of owner and exercising peaceably the
ordinary rights of ownership has a perfectly good title against all
the world but the rightful owner. And if the rightful owner does
not come forward and assert his title by process of law within the
period prescribed by the provisions of the Statute of Limitations
applicable to the case, his right is for ever extinguished, and the
possessory owner acquires an absolute title.”

There is thus persuasive authority to support the logically sound

conclusion that, where an original owner’s title in land has been
extinguished by a statute of limitation, the adverse possessor
gains a title equivalent to the title extinguished. The title is not
transferred from the previous owner to the adverse possessor,
but rather the squatter or adverse possessor gains a new title
that takes the place of the rights of the original owner. Lord
Radcliffe summarised the common law position on this issue as
follows in Fairweather v St. Marylebone Property Co. Ltd [1963]
AC 510 at p. 535:

“It is necessary to start, I think, by recalling the principle that

defines a squatter’s rights. He is not at any stage of his
possession a successor to the title of the man he has
dispossessed. He comes in and remains in always by right of
possession, which in due course becomes incapable of disturbance
as time exhausts the one or more periods allowed by statute for
successful intervention. His title, therefore, is never derived
through but arises always in spite of the dispossessed owner. At
one time during the 19th century it was thought that section 34 of
the Act of 1833 had done more than this and effected a
statutory transfer of title from dispossessed to dispossessor at
the expiration of the limitation period. There were eminent
authorities who spoke of the law in just these terms. But the
decision of the Court of Appeal in 1892 in Tichborne v Weir put
an end to this line of reasoning by holding that a squatter who
dispossessed a lessee and “extinguished” his title by the requisite
period of occupation did not become liable in covenant to the
lessee’s landlord by virtue of any privity of estate.”

This passage clearly recognises that the squatter gains title,

after the limitation period, by his or her dispossession of the
original owner, although that title is not by transfer from the
original owner. The speech of Lord Denning in Fairweather v St.
Marylebone Property Co. Ltd [1963] AC 510 at p. 543 et seq. is
also supportive of this proposition.

Further support for the existence of a possessory title gained by

adverse possession is to be found in para 785 of Halsbury’s Laws
of England 4th Ed. Vol. 28, which states:

“The operation of the statutory provision for the extinction of

title is merely negative; it extinguishes the right and title of the
dispossessed owner and leaves the occupant with a title gained by
the fact of possession and resting on the infirmity of the right of
others to eject him.”

Taylor v Twinberrow [1930] 2 KB 16, at 23 and 28 is the authority

cited for this proposition. It is clear from this authority that
title may be acquired by adverse possession. Such title, as
already pointed out, is not derivative, in that it does not flow
from the title extinguished. Nevertheless, it is title and it is
open to this court to declare such title, upon a suit by the
adverse possessor. Such a possessory title was held to be a good
title that could be forced on a purchaser in In re Atkinson and
Horsell’s Contract [1912] 2 Ch 1. In my considered view,
therefore, the possessory title of an adverse possessor can be
used as a sword, and not only as a shield. It follows, therefore,
that the plaintiff would be entitled to a declaration of title, if it
were able to establish that it has been in adverse possession of
plot 19 for more than 12 years. To succeed in establishing this
claim of adverse possession, however, it has to persuade this
Court to reverse the finding made by the Court of Appeal that
the plaintiff was a licensee of the defendant on plot 19. This is
why it is to that finding that I turn next.

The Plaintiff’s case in relation to ground 3 of its appeal was that

the Court of Appeal was in error in finding that the plaintiff was
a licensee of the defendant on the land, when, according to the
defendant’s own pleadings at the trial, his contention was that the
plaintiff was a licensee of the government. In the Plaintiff’s
Statement of Case before this Court, it set out its case thus, on
this issue:
“The case fought at the trial was on the issue whether the
company was in possession of the plot as a licensee of the
government or in its right as a trespasser without the
respondent’s consent. In the Court of Appeal the same issue
arose. If the respondent had pleaded that the company was in
possession as his licensee, it would have been denied for the
action instituted in 1997 by the respondent against the company
was on the basis that the company had been in possession since
the confiscation as a trespasser without the respondent’s
consent. The case would then at the trial have been fought on
the issue whether the company was in occupation with the
respondent’s consent or without his consent. What the Court of
Appeal did amounted to putting up for the respondent a new case
he himself did not put up and which was quite inconsistent with
what he had put up and by reason of its own decision on the new
case so put up the company was deprived of the opportunity to
contest that issue. This clearly infringed the audi alteram partem
rule in natural justice and caused substantial miscarriage of
justice to the company. The Court of Appeal had no power to do
that by raising a case which was not before it and using it to give
judgment against a case which was not before it and using it to
give judgment against the company without giving it an
opportunity to be heard on that case. However sound the
reasoning of that court might be in coming to the conclusion,
which is not acceptable, that the company was a licensee of the
respondent on the plot after the 1982 confiscation, to the extent
that that was not an issue before that court the decision given on
that issue was misdirected, null and void and must be
disregarded.”

Before this Court, the plaintiff was given a further opportunity to

be heard on the issue of the company being a licensee, when at
the hearing of the appeal on 8th November 2005, this Court
ordered that the parties be at liberty to file further written
submissions on the issue of licences. In any case, even before
this order, the issue had been well ventilated in the parties’
Statements of Case. The plaintiff’s response to such a
contention would, I suppose, be that, however well ventilated was
the issue before this court, that would not cure the alleged
miscarriage of justice before the Court of Appeal.

This Court therefore needs to determine whether there was any

miscarriage of justice by the Court of Appeal and whether the
Court of Appeal had power to hold that the plaintiff was a
licensee of the defendant. By the language it uses in its
Statement of Case (quoted above), the plaintiff seems to make
this a jurisdictional issue. It argues that the Court of Appeal’s
decision on this issue is null and void. Is this position sustainable?

The passage in the judgment of Mrs. Adinyira JA, which is

attacked by the plaintiff as thus taking her out of jurisdiction, is
the following:

“My view on this point is simple. The company by name General

Cold Industry Ltd. was confiscated to the state. The majority
shareholder in this company was the defendant. This company
carried on its business in premises, which incidentally were
situated on this Plot No. 19, which belonged to its majority
shareholder, the defendant herein. There was no evidence as to
the terms under which the Ghana Cold Industries Ltd. was
operating on Plot No. 19 at the time that the company was owned
by the defendant. So at best it can be said that the company’s
right to occupation of the land was derived from the owner, the
defendant herein in the form of permission, as by no stretch of
imagination could it be described as a trespasser or a squatter on
the said land. So that in effect the company was operating on the
defendant’s land as a licensee. See the case of Hughes v Griffin
[1969] 1 All ER 460 at 464 and dictum of Romer LJ in Moses v
Lovegrove [1952] 1 All ER 1279 at 1285. I do not subscribe to
the submission by counsel for the plaintiff that after the
compulsory acquisition the company’s occupation on the land
became adverse. My reasoning is that the Government having
acquired the proprietary rights in the company is deemed to
continue to enjoy all the rights that the company had, as the
company was distinct from the defendant who lost his
shareholding as a result of the confiscation of the shares in the
company to the State. See the celebrated case of Salomon v
Salomon [1897]AC22,HL. As such it is my considered opinion that
the company, the plaintiff herein continued to be a licensee on
Plot No. 19 until such time that the licence is revoked. So for the
whole period of time that the plaintiff was on the land as a mere
licensee he cannot be said to be in adverse possession to defeat
the defendant’s title to the land.”

To my mind, the learned Justice of Appeal was doing no more than

drawing an inference from the evidence adduced at the trial and
spelling out the legal implications of the evidence and the
inference from the evidence. I do not see how any decision
arrived at through this process is to be regarded as null and void.
There is no infringement of the principle embodied in the maxim
audi alteram partem. The original trial process was an
embodiment of that principle. All that the learned Justice of
Appeal did, during a re-hearing by way of an appeal, was to draw a
reasonable inference from the evidence on record, namely, that
plot 19 belonged to the defendant and that a company of which he
was a principal shareholder carried out business on that plot. In
the absence of any evidence spelling out the exact nature of the
relationship between the defendant and his company as regards
the plot, it was legitimate to infer that the defendant’s company
was doing business on his land with his permission. This inference
an appellate court was entitled to make, since the appeal is by way
of rehearing. An appellate court’s right to make such an
inference is trite law and it is hardly necessary to cite authorities
in support of it. (Nevertheless, see for example, Koglex (No.2) v
Field [2000] SCGLR 175 at p. 184, per Acquah JSC, as he then
was: “…where the findings are based on established facts, then
the appellate court is in the same position as the trial court and
can draw its own inferences from those established facts.”)

If the plaintiff company was a licensee of the defendant before

its confiscation, then the issue, which arises, is whether the act
of confiscation automatically terminated that licence. In my view,
the fact of confiscation alone is not to be construed as
terminating the licence of the plaintiff from the defendant. The
defendant, of course, had the right to terminate the licence and
therefore one has to identify what act or conduct of the
defendant could be interpreted as having terminated the licence.
Prior to the defendant’s institution of an action against the
plaintiff to regain possession of the plot, there was no evidence
on record of an unequivocal act that could be construed as a
termination of the licence. Accordingly, in my view, prior to the
institution of the defendant’s action in 1997, the plaintiff was a
licensee of the defendant. In my view, Her Lordship Mrs.
Adinyira JA’s statement of the facts and law in the passage
quoted above is unexceptionable and well within her jurisdiction.

Even if her legal interpretation of the facts before her took the
plaintiff by surprise, in this court the plaintiff has had ample
opportunity to contest the view of the law espoused by her.
After carefully considering the arguments of counsel for the
plaintiff on this issue, I have come to the same conclusion as Mrs.
Adinyira JA that the plaintiff was a licensee of the defendant
after the confiscation of the shares in the defendant’s company
until the institution by the defendant of his action in 1997 and
therefore its occupation of the plot was not adverse possession.
There was no miscarriage of justice by the Court of Appeal. I
have reached this conclusion in spite of the further arguments by
counsel for the plaintiff which were submitted to this Court in
response to the invitation to counsel on both sides by this Court
on 8th November 2005 to make additional submissions on the
question of licence. Counsel for the plaintiff complained of
substantial injustice occasioned the plaintiff because of the
Court of Appeal’s suo motu finding that the plaintiff was a
licensee of the defendant.

Counsel’s argument was in the following terms:

“It is the consent or licence of the person who can complain of

trespass in respect of the particular entry on the land that is
relevant for purposes of the doctrine of adverse possession. It
was in the light of this that the Court of Appeal sought to
substitute for government licence the licence of the defendant
himself so that the occupation of the plot by the company from
1982 would not be adverse or hostile.

In doing that the Court of Appeal did what it was not

permitted to do, something which caused substantial injustice to
the company because the nature of the consent or licence on
which that court founded its judgment was different from the
one which was pleaded. If the defendant had pleaded that the
company was in possession of the plot from 1982 as his licensee
and given evidence to that effect at the trial the company would
have denied that in a reply and pleaded the 1997 action which the
Defendant discontinued to establish that the company was not
there as a licensee of the defendant but as a trespasser.”

Counsel then proceeds to quote the endorsement on the 1997 writ

and paragraphs from the statement of case. It seems to me that
the pleadings in those discontinued proceedings have very little
probative value in this case. What was pleaded is not necessarily
proof of the truth of the matter pleaded. I am content to limit
myself to the evidence on record in this case. I do not think that
the inference made by the learned Court of Appeal judge in this
case caused any substantial injustice. Accordingly, I would
dismiss the third ground of appeal.
This implies that I think that the learned trial judge was in error
in holding that the plaintiff was a licensee of the Government.
Since the Government was not the owner of Plot 19, I do not see
how it could validly give a licence in relation to it. Nemo dat quod
non habet. Nevertheless, the defendant’s counsel persisted, even
in the additional Statement of Case filed by him, pursuant to this
Court’s order of 8th November 2005, in contending that the
plaintiff was a licensee of the Government. I do not consider
that this line of argument helps his case.

The dismissal of the third ground of appeal, in effect, disposes of

the plaintiff’s appeal. For, without the establishment of adverse
possession, its case collapses. It is thus not, strictly speaking,
necessary to consider what the plaintiff argued as its fourth
ground of appeal. This ground was in the following terms:

“The Court of Appeal misdirected itself in thinking that the fact

that the respondent might have petitioned against the
confiscation of his shares in the appellant as a company had
relevance to the question of acquisition of title to the plot which
was never a confiscated property, by adverse possession.”

In relation to ground 4 of its appeal, the plaintiff argued as

follows:

“It is submitted that any petitions the respondent was found to

have made had no legal effect whatsoever on the company’s
occupation of the plot. If by virtue of the provisions of the
limitation decree the company had acquired title to the plot after
12 years, its title was wholly independent of a confiscation and
the title so acquired could not be defeated by the Confiscated
Assets Committee in the misguided letter dated 12th April 2000,
Exhibit 6, said to have been written to the company to ask it to
give up the plot it had lawfully acquired by operation of law, 6
years before the letter was written.”

On this point, the defendant responded in his Statement of Case

that his protests were not directed towards the return of his
company but rather more generally towards the return of the
“disputed properties”. He argues that:

“Thus where the true owner continuously makes various claims for
his land the trespasser cannot be in adverse possession. Being in
a Military Government era the Respondent had no option but to
petition continuously in the hope that the properties would be
restored to him.”

It is clear that, in view of my decision earlier that the plaintiff

had not established adverse possession, because he was in
occupation as a licensee of the defendant, a determination on the
fourth ground becomes unnecessary and hypothetical. This Court
should thus eschew making a decision on this ground.

Finally, in relation to the plaintiff’s appeal, Mr. Samuel Okudzeto,

counsel for the defendant, during his oral argument before this
court on 8th November 2005, drew attention to the fact that
according to a search made at the Companies Registry on 17th
February 2003 (Exhibit 7), the defendant and his associates
remained the directors of the plaintiff company, even under its
changed name. The directors registered at the Companies
Registry had clearly not given the company authority to institute
the present action. Counsel was therefore challenging the
authority of the plaintiff to bring the present action.

This issue was addressed by the learned trial judge. His view on
the matter prompted a ground of appeal from the plaintiff in the
proceedings before the Court of Appeal. The learned trial judge’s
view was that the point raised by Mr. Okudzeto was a valid one,
but that a decision on this issue of locus standi was superfluous,
in the light of his earlier holding that the plaintiff was a licensee
of the Government. The Court of Appeal, however, did not
address the issue in its judgment. Mrs. Adinyira JA was of the
view that, although the plaintiff had appealed on several grounds,
the main question to be decided was whether the plaintiff had
acquired title to the land by adverse possession or was a mere
licensee of the Ghana Government.

Accordingly, if the defendant was aggrieved by the Court’s failure

to address this issue of the authority of the plaintiff to sue, he
should have cross-appealed on the issue. Not having done so, I do
not believe that he can be heard, as of right, on the issue at this
stage. (See Rule 6(6) of the Supreme Court Rules, 1996 (CI 16)).
The issue has not been raised in any ground of appeal before this
Court. In any case, even if this Court were to consider this issue
and rule in favour of the defendant, there would not be any
difference in the result of the appeal. Although this Court has
power, under Rule 6(7)(b) of the Supreme Court Rules, 1996 (CI
16), to consider issues not specifically raised in a ground of appeal
before it, this is not an appropriate case in which to exercise that
power since such exercise would not affect the result of the
case. For ease of reference, let me set out subrules (6) and (7)
of Rule 6 of the Supreme Court Rules, 1996:

“(6) The appellant shall not, without the leave of the Court,
argue or be heard in support of any ground of appeal that is not
mentioned in the notice of appeal.

(7) Notwithstanding sub rules (1) to (6) of this rule the

Court –

(a) may grant an appellant leave to amend the ground

of appeal upon such terms as the Court may think
fit; and
(b) shall not, in deciding the appeal, confine itself to
 the grounds set forth by the appellant or be
precluded from resting its decision on a ground
not set forth by the appellant.”

For the reasons set out above, I would dismiss the plaintiff’s
appeal from the Court of Appeal. It now remains for me to deal
with defendant’s cross-appeal. The issue raised in that cross-
appeal is whether the defendant is entitled to a declaration of
title in his favour and an order of recovery of possession, when he
had not counterclaimed for these reliefs. It seems to me that,
under the system of pleading that the Ghanaian legal system has
inherited from England and continues to follow, the defendant
cannot defend the grant of these reliefs by the learned trial
judge. Upholding these reliefs would be tantamount to giving
remedies to a person who has not sued. The courts are not in the
business of conferring unsolicited remedies on those who have not
invoked the courts’ jurisdiction. The fact that the plaintiff’s
action had failed and it had been denied a declaration of title
could not be a basis for positively declaring title for the
defendant, when he had not thought it fit to counterclaim for
such relief. In the context of this case, it was only on a
counterclaim, which is, in effect, a cross-action, that the positive
reliefs of a declaration of title and an order of recovery of
possession could validly be granted.

It is settled law that a person seeking the recovery of land must

do so by the strength of his or her own title and not by reason of
the weakness in the title of the person in possession. (See
Oppong Kofi v Fofie [1964] GLR 174; Dompreh v Pong [1965] GLR
126 and Lyell v Kennedy (1882) 20 Ch.D. 484, at 488, 490.) This
implies that he or she must bring his or her own suit or
counterclaim to enable the court to assess his or her claim and
grant him or her the reliefs sought.
The defendant has relied on remarks I made in Butt v Chapel Hill
Properties Ltd. [2003-2004] SCGLR 636 at 652 in support of his
case. There I said:

“The High Court, under Order 63, r6 of the High Court (Civil
Procedure) Rules , 1954 (LN 140A), has authority to make any
order which it considers necessary for doing justice, whether
such order has been expressly asked for by the person entitled
to the benefit of the order or not. This is an appropriate case
for the Supreme Court to exercise this power of the High Court,
pursuant to section 2(4) of the Courts Act, 1993 (Act 459), under
which the Supreme Court has all the powers, authority and
jurisdiction vested in any court established by the Constitution or
any other law.”

These remarks do not derogate from the fundamental principle I

have expressed above, namely, that before particular reliefs or
orders can be considered, there has to be a suit or counterclaim
in the context of which the reliefs or orders are to be granted.
In the Butt case, the above dictum was uttered in the course of
granting interest on a debt, when it had not been expressly
claimed. However, the distinction between this case and that
case is that there a suit had been brought by the plaintiff and he
had pleaded material facts on the basis of which the court could
validly grant him the relief that he had not expressly claimed. In
this case, in contrast, the defendant had not brought any
counterclaim in the context of which the positive reliefs of
recovery of possession and declaration of title could be granted
him.

The defendant also relied on other cases in support of his case.

Let me next consider them. The defendant cited the dictum in Re
Lewis’s Declaration of Trust [1951] 1 All ER 1005 at p. 1008 that
“this relief was not specifically claimed in the writ, but, in my
judgment, that does not preclude me from awarding it under the
claim to further or other relief.” It seems to me that this dictum
is distinguishable on the same grounds as I have already set out in
relation to the Butt case. This was a case in which the writ
provided the umbrella for a further relief to be granted. A
counterclaim is like a writ in this context. Without it, there is no
umbrella under which to provide an unclaimed relief.

In yet another case cited by the defendant, Yeboah v Bofour

[1971] 2 GLR 199 at p. 222, Azu Crabbe JSC (as he then was)
rejected a preliminary objection by counsel for the respondent
against a vague ground of appeal. The learned judge thought that
the intention of the appellant in question to appeal against those
parts of the judgment affecting him was clear from the notice of
appeal and the surrounding circumstances. It was in this context
that he expressed the following view, which has been cited by the
defendant in this case in support of his cross-appeal:

“Even if the plaintiff had not cross-appealed, this court has

power under rule 32 to grant the only relief to which the plaintiff
is entitled by law: see Chahin v Boateng [1963] 174 S.C.”

In Chahin v Boateng, the Supreme Court of the First Republic

held that it had power to give any judgment and make any order
that ought to have been made even though the appeal may be
from part of the judgment only. This assertion of jurisdiction,
based on rule 32 of the Supreme Court Rules 1962 (LI 218), must,
to my mind, be distinguished from an assertion of jurisdiction to
grant a positive relief to a defendant who has not counterclaimed.
Yeboah v Bofour is thus, in my view, not a helpful authority in this
case. In relation to an absence of counterclaim, the more
relevant authority is Kannin v Kumah [1959] GLR 54. In that case,
the pre-Republican Court of Appeal held that, in the absence of a
counterclaim by the defendants, judgment in their favour against
the plaintiff should not have been accompanied by a declaration
that they were owners of the property. That is the persuasive
authority that I propose to follow.

I think that the current Court of Appeal applied the existing law
correctly to this case when it declined to give a declaration of
title that had not been claimed by the defendant. The defendant
could, even after the Court of Appeal’s judgment, have applied for
an amendment of its statement of defence to add a counterclaim,
but declined to do so. I must say I am surprised that counsel for
the defendant did not apply for such an amendment. Counsel
having failed to make such an application, I believe that this Court
would risk doing damage to the architecture of the law on
pleadings, if it were to give a declaration of title that has not
been claimed. In my view, none of the authorities cited by the
defendant (supra) supports the proposition that where a
defendant has not counterclaimed in a suit, the High Court has
jurisdiction to give him or her a positive relief such as a
declaration of title, which is only available under the umbrella of
an action or cross-action (or its equivalent). The rule enforced in
Kannin v Kumah is not a pointless technicality. It has an
underlying purpose. The jurisdiction of the trial court was
invoked in this case by the issue of the Writ of Summons. A
counterclaim, similarly, would have invoked the jurisdiction of the
trial court in respect of the defendant’s cross-claim. Not having
taken this opportunity of invoking that jurisdiction, the
defendant can hardly complain that a jurisdiction that he has
declined to invoke has not been exercised in his favour. If that
jurisdiction were now to be exercised by this Court, it would
undermine the rule of procedure whereby a defendant’s positive
claim is required to be set out in a counterclaim.

Let me conclude by praying in aid the historical background to

counterclaims, as recounted in Bullen & Leake and Jacob’s
Precedents of Pleadings (12th Edition) at pp. 96 – 97:
“A counterclaim is substantially a cross-action, and not merely a
defence to the plaintiff’s claim. It is a cross-claim which the
defendant may raise in the very action brought against him by the
plaintiff, instead of himself bringing a separate, independent
action against the plaintiff. At common law, such a cross-action
could not be so raised, since the law did not allow the action of
the plaintiff against the defendant to be met by an independent
claim of the defendant against the plaintiff, against whom the
defendant had to bring a separate cross-action. The right to
maintain a counterclaim was first introduced by the Judicature
Act 1873, and the procedure by counterclaim has been greatly
extended in its operation and application by the rules, so that as
far as practicable, the counterclaim is assimilated to the position
of a statement of claim indorsed on a writ of summons.”

The position that I have taken above, therefore, flows logically

from the inherent nature of a counterclaim, as pithily set out in
the passage above. (The current Ghanaian provisions on counter-
claims set out in Order 12 of the High Court (Civil Procedure)
Rules 2004 (CI 47) retain, as did the relevant provision (Order 21
rule 9) in the repealed 1954 High Court (Civil Procedure) Rules,
this quintessence). My position amounts to saying that to allow a
positive relief to be asserted by a defendant without pleading it
in a counterclaim is the exact equivalent of allowing a trial court
to give a remedy to a purported plaintiff who has not bothered to
issue a writ indorsed with the appropriate statement of claim.

In the result, I consider that the defendant’s cross-appeal should

also be dismissed.

DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME

Acknowledgement
Where a right of action to recover land has accrued to the owner
and his title to the land is alter acknowledged by the adverse
possessor his right of action is treated as having accrued on and
not before the date of the acknowledgement

 Section 17(1) of NRCD 54

1) In the following cases the right of action shall be deemed to
have accrued on and not before the date of the
acknowledgement:-

(a) where any right of action has accrued to recover any debt
and the person liable therefor has acknowledged the debt; or

(b) where the right of action of a mortgagee of land to recover

the mortgage debt has accrued, and the person in possession
of the land acknowledges the mortgagee's title to the land; or

(c) where any right of action has accrued to recover any claim
to the movable estate of a deceased person or to any share or
interest therein, and the person accountable therefor
acknowledges the claim; or

(d) where the right of a mortgagee of land to bring an action to

recover land has accrued, and the person in possession of the
land or the person liable for the mortgage debt acknowledges
the debt;

(e) where there has accrued to any person (other than a

mortgagee) any right of action to recover land, and the person
in possession of the land acknowledges the title of the person
to whom the right of action has accrued; or

(f) where the right of a mortgagee of land to bring an action to

recover the land has accrued, and the person in possession of
the land acknowledges the mortgagee's title to the land; or
 (g) where the right of an encumbrancer of land to bring an
action claiming sale of the land has accrued, and the person in
possession of the land or the person liable for the debt
secured by the encumbrance acknowledges the debt; or

(h) where a mortgagee is by virtue of the mortgage in

possession of any mortgaged land, and the mortgagee
acknowledges the title of the mortgagor or his equity of
redemption; or

(i) where a right of action has accrued in respect of a lien for

money's worth in or over land for a limited period not
exceeding life, or in respect of a right in the nature of such a
lien, such as a right of support or a right of residence, not
being an exclusive right of residence in or on a specified part
of the land, and the person in possession of the land
acknowledges such lien or other right.

 Section 18(1) of NRCD 54

(1) An acknowledgement of a debt shall bind the person making
it and his successors but not any other person.

Effect of acknowledgement on the owners title Commented [K4]: Period of adverse possession ends

Section 17(2) of NRCD 54

Every acknowledgement shall be in writing and signed by its maker.

Browne v Perry
Any acknowledgement of title must be in writing. Lord Templeman explained the rule against
relience upon oral acknowledgements in adverse possession cases: ‘If an oral acknowledgment were
allowed to constitute an interruption litigation would be encouraged and litigants would dispute
what was said, by whom and to whom . . Once an acknowledgment has been reduced to writing,
there is certainty about the words used and the court need only decide whether the words which
have been written amount to an acknowledgment. There is no room for fraud, mistake or failure of
memory. The written word speaks for itself.’

 If after acknowledgement the squatter thereafter remains in

possession, the owners title becomes statute barred at the
expiry of twelve years from the date of acknowledgement Commented [K5]: Acknowledgement after 12 years does not
revive title

Criteria for adverse possession

 Adverse possessor is the exclusive possessor and actually

entered the land
 Possession must be open and notorious in order to give the
owner opportunity to eject him
 Possession must be adverse to the owners claim
 Possession must be continuous upto 12 years

Dispossession

Where an owner in possession goes out and another person takes

possession.

Littledale v Liverpool College

Lord Lindley MR
Ratio: The mere storage of items in a property was insufficient to demonstrate the necessary
intention to dispossess the rightful owner. It was a mere exercise of the rights under an
easement. Enclosure of land is not necessarily decisive. Lord Lindley MR said: ‘In order to
acquire by the Statute of Limitations a title to land which has a known owner, that owner
must have lost his right to the land either by being dispossessed of it or by having
discontinued his possession of it.’

To constitute dispossession acts must have been done:

 Inconsistent with the enjoyment of the land by the person

entitled for the purposes for which he had a right to use it
 Fencing off or planting of boundary trees is the best evidence
of possession of land
  Cultivation of the land without fencing off has been held
sufficient to prove possession.

Methods by which time maybe prevented from running

Time which has begun to run under the limitations act is stopped
when:

 Owner asserts his rights by commencing legal proceedings

 Owner makes an effective entry into the land
 Owners right is admitted by the adverse possessor

Part payment

 If after a right of action has accured and any part payment is

made, there is a fresh accrual of the right of action from the
date of the part payment
 Part payment maybe made by the agent of the person by whom
it is required to be made and shall be made to the person or
the agent of the person in respect of whose claim the part
payment is being made

Section 19(1&2)of NRCD 54

(1) In the following cases the right of action shall be deemed to have accrued on and not before the
date of the payment:-

(a) where any right of action has accrued to recover any debt, and the person liable therefor makes
any payment in respect thereof, so however that for the purposes of this provision payment of
interest in whole or in part shall be treated as a payment in respect of the principal debt;

(b) where any right of action has accrued to recover any claim to the movable estate of a deceased
person or to any share or interest therein, and the person accountable therefor makes any payment
in respect thereof;

(c) where the right of a mortgagee of land to bring an action to recover the land has accrued, and
the person in possession of the land or the person liable for the mortgage debt makes any payment
in respect thereof, whether of principal or interest;

(d) where the right of an encumbrancer of land to bring an action claiming sale of the land has
accrued, and the person in possession of the land or the person liable for the debt secured by the
encumbrance makes any payment in respect thereof, whether of principal or interest;

(e) where a mortgagee is by virtue of the mortgage in possession of any mortgaged land, and
receives any payment from the mortgagor in respect of the principal of the mortgage debt or the
interest thereon.

(2) A payment under this section may be made by the agent of the person by whom it is required to
be made, and shall be made to the person or the agent of the person in respect of whose claim the
payment is being made.

Cases

Menuna Moudy v Antwi

Highlights
In the action which culminated in the said appeal, the

first appellant (hereafter called the first plaintiff)

on behalf of herself and two other children of her

late father, had sought for an order of ejectment

against the respondent, hereinafter called the

defendant, on the ground that as their licensee, the

defendant, by asserting that the title to the land in

dispute was not vested in them (the lessors) but the

Government of Ghana, he had denied his lessor's title

and had therefore forfeited his right to remain

thereon.

 The learned trial judge (Sawyerr-Williams J)

 found, as did appellate court, that ownership of
the land was, indeed, vested in the government.
In the case of the trial judge, she understood
the claim as one for a declaration of title in
which the plaintiffs failed to prove their title
 I am in complete agreement with Twumasi JA that land
compulsorily acquired under Cap 134 vests automatically in the
government upon a publication of the gazette notice and
further that by virtue of section 11 thereof, the acquisition
operates to bar and destroy "all other estates, rights, titles,
remainders, reversions, trusts and interests whatsoever of and
in the lands acquired." (The emphasis is mine). Also that under
section 12, a certificate of title issued by the court in respect
of the land so acquired confers upon the title holder, "an
absolute and indefeasible right to the lands free from all
adverse or conflicting rights, titles, interests, trusts, claims
and demands whatsoever." I believe that the rights, estates,
limitations, etc under reference are those existing in the land
at the date of the acquisition, ie at the date of the publication
of the gazette. Those are the interests which are forever
barred or destroyed. Since the statute does not expressly bar
the acquisition of any interest whatsoever in the land by the
previous owner or persons claiming through him, in the future,
I find it difficult to agree with the proposition that an owner
who nevertheless continues to remain on the land even after
the land was vested in the State, cannot maintain an action or
defence based on his adverse possession, nor raise the
Limitation Decree, 1972 in support of his claim to title. In
actuality, a previous owner can maintain an action or defence
based on such adverse possession. The success of the action is
an altogether different matter. It does follow that as
provided, for under section 30(1) of the Limitation Decree,
1972 (NRCD 54), contrary to the Court of Appeal's decision,
the owner can pray the statute of limitation in aid of his claim
 or defence. The section stipulates: "30(1) This Decree shall
apply to proceedings by or against the Republic as if the
Republic were a private individual."
 whether the defendant who had gone on the land allegedly
owned by the plaintiffs as their licensee could deny their title
in that land while still in possession of it. The plaintiffs' case,
and, indeed, claim to ownership/title is therefore founded on
their alleged long uninterrupted possession after the
government acquisition, to the extent that the government's
title has been totally extinguished.
 I have been constrained to come to this conclusion in view of
the incontrovertible evidence which shows that the land in
dispute, is unquestionably government land. In this regard, the
plaintiffs' evidence must not only be consistent with their
pleadings—the case they had set up—but it must measure up to
the standard required under the statute, namely, sections 10,
11 and 12 of the Evidence Decree, 1975 (NRCD 323). The well
established rule is that a court should not substitute for a
party a case inconsistent with, or contrary to that which the
party had himself put forward by his pleadings and evidence:
