JELR 65099 (CA) 1

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[FIND RATIO DECIDENDI, SIMILAR AND CITING CASES, AND TREATMENTS]

BENJAMIN JOHNSON
V.
FATI WILLIAMS
(2011) JELR 65099 (CA)

COURT OF APPEAL · SUIT NO. HI/168/2011 · DEC. 1, 2011 · GHANA

CORAM

ABBAN J.A. (PRESIDING), DUOSE J.A, OFOE J.A

OFOE, J.A.

The claim of the plaintiff before the trial court was for:

"(a) a declaration of title to all that land lying and being at Korle-Dudor, Accra bounded on the north
by a road measuring 9,585 feet more or less, on the east by a road measuring 6,262 feet more or
less, on the south by a road measuring 4,395 feet more or less and to the south-east by a road
measuring 8,213 feet more or less and covering an approximate area of about 10.8 acres.

(b) an order for recovery of possession.

(c) damages for trespass.

(d) perpetual injunction restraining the Defendant either by herself, assigns, agents, servants or
privies from entering unto the land, the subject matter of dispute or in any other way interfering with
the Plaintiff's family user or quiet enjoyment of it.

(e) costs.

What do we have in the pleadings of the parties? The gist of the case of the plaintiff on the
pleadings is that his family acquired the land in dispute by a conveyance from the then government
of the Gold Coast on the 20th day of December 1928. Their head of family was by then Mr. Gilbert

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Johnson. Their ownership of the land was confirmed by a High Court judgment delivered on the
31st day of July 1973. This judgment, it is the pleadings of the plaintiff, is a declaration to the whole
world of their title to the land. Neither the defendant's predecessors nor her family had ever had
title to this land and had never exercised any acts of ownership or possession over this land. To
the plaintiff therefore, Madam Commeykai or James Afutu Korley on whom plaintiff based his title,
had never ever owned this land in dispute

Defendant's pleadings on the other hand were to this effect: that the land in dispute was granted
her predecessor Madam Commmeykai by James Afutu Korley in September 1917, registered with
number 366/1917. His predecessor developed this land 87years ago. Some of these developments
were pulled down to make way for erection of shops. For the whole period of 87years when the
predecessor was on this land neither the plaintiff's predecessors in title nor any other person from
plaintiff's family raised any objection to the occupation by her predecessors in title. It was only
recently when she pulled down the old structures to put up shops that the plaintiff sought to
challenge her ownership of this land. In respect to the 1973 judgment relied on by the plaintiff, it
was the case of the defendant that they were never parties to that suit and therefore not bound by
it. Defendant even doubts whether the plaintiff's land, if they had any land at all, covers that of the
defendant's land now in dispute.

Examining the writ of summons and the counterclaim of the parties, it is clear that the plaintiff is
claiming a wider area than what he is disputing with the defendant. The defendant also admits by
her counterclaim that plaintiff owns land in that area. She shares boundary with the plaintiff on the
North West.

The trial judge granted the plaintiff all his reliefs claimed on the writ of summons and general
damages of GH¢2,000. In addition he ordered the defendant to attorn tenant to the plaintiff on the
completed buildings. I must say here immediately that the trial judge provided no reason why he
had to grant this additional relief which was not sought for by any of the parties. But I believe it
could be because of the nature of defendant's possession of the land that was evident from the
proceedings before her.

Aggrieved at the trial courts judgment the defendant has appealed to this court on three grounds

That the judgment is against the weight of evidence adduced at the trial

That the learned judge erred in holding that a predecessor in title of the defendant/appellant was a
licensee of the predecessor in title of the plaintiff/respondent and was therefore only allowed to put
up a temporary structure on the disputed land after defendant/appellant predecessor's house had
been destroyed by the earthquake in 1939.

That the learned judge erred in holding that the plaintiff's claim against the defendant/appellant is
not statute barred.

I will continue to describe the parties as plaintiff and defendant as they were in the trial court.
Before looking at these grounds of appeal let me bring out the salient parts of the evidence of the
parties on record for a clearer appreciation of this judgment.

The plaintiff who spoke through a Nii Ansah Johnson told the court their grandfather, the late
Gilbert Johnson, had title to this land by a deed of conveyance from the Gold Coast Government

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on the 20th of December 1928. He tendered this document as Exhibit A. This grant according to Nii
Ansah was confirmed in a subsequent 1973 High Court judgment, exhibit B. From the tenure of his
evidence his claim to title to the disputed land hinged on these two exhibits. In respect of the swish
buildings that were on the land, which the defendant claimed she demolished to give way to new
structures, Nii Ansah told the court he did not know the owner, he knew not when the swish
buildings got unto the land but noticed them four years ago.

His witness, Gilbert Nii Ansah Johnson, described himself as an elder of the family. He introduced
evidence not pleaded at all by the parties but was admitted without objection. His evidence was
that the land of the family is large and occupied by various persons including the defendant. All
these persons are in occupation of this land on the permission and consent of their deceased
grandfather.

The Defendant, Grace Dede Fati Williams, testified that the land is owned by her grandmother,
Commeykai. As root of title she tendered exhibits 1 and 2 (the same indenture on the land). She
said she grew up to see the swish buildings on the land. They pulled down these buildings and put
up a storey building of 8 rooms on one side of the land. It was when they were putting up the
shops that they were challenged by the plaintiff. They currently have 4 stores in front of the old
swish building and a corn mill block also on the land before they started the new structure which
was challenged by the plaintiff. When asked in cross examination about the chop bar on the land,
she said it was being operated by her sister.

Her witness who happened to be the son-in-law of Commeykai also testified about the nature of
possession of the land in dispute. He said the defendant and family have four stores and a corn
mill room on the land before he was engaged to put up the second building which the plaintiff
demolished Witness mentioned that they had walled the property and before this was broken down
they had put up one storey building on the land. It was the second storey building they were
putting up that the plaintiff caused to be broken.

I would say the foregoing in substance were the pieces of evidence placed before the trial judge. I
can now examine the grounds of appeal. Ground 1

1. "That the learned judge erred in holding that a predecessor in title of the defendant/appellant
was a licensee of the predecessor in title of the plaintiff/respondent and was therefore only allowed
to put up a temporary structure on the disputed land after defendant/appellant predecessor's house
had been destroyed by the earthquake in 1939."

The trial judge found categorically that the predecessors of the defendant were granted license by
the predecessors of the plaintiff who were the real owners of the land. In dealing with this ground
of appeal and the other grounds I deem it useful to quote certain parts of the trial judges
consideration of the pieces of evidence put before him and findings he made thereon in relation to
Exh A (the Conveyance) and Exh B (the 1973 judgment) all tendered by the plaintiff. He stated

"...In that judgment it was stated that the government of the Gold Coast had to take over the
plaintiff's grandfather's land for road development and so the government replaced the land taken
over with the land in dispute. The government of the Gold Coast executed the Deed of transfer
dated 20th December 1928 to evidence the transfer of the land in dispute to Gilbert Johnson.

It is this same Deed of Transfer which the plaintiff had tendered as exhibit A in the trial. The said

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judgment tendered as Exh. B further explained the origin and circumstances by which the swish or
temporary buildings were erected on the land. It was by a license granted by the customary
successor of Gilbert Johnson to one Oko Mensah to erect the temporary structures to live in while
his house which had been destroyed by the earthquake of 1939 was being repaired. Oko Amah
died and his successors have since occupied the temporary structures and had ignored warnings
to vacate and remove them. The origin of these Swiss structures has now been established by the
judgment and it cannot be true that the defendant ancestor erected the Swiss buildings as of her
right to the ownership of that land."

The trial judge continued at page 148 of the judgment:

"In the instant case the defendant though has been in a long time possession of the Plaintiff's land,
exhibit "A" and "B" especially has given the reason why the ancestor or predecessors of defendant
came to occupy the land. A predecessor of the defendant was granted only a licence to put up a
temporary structure on the land when the predecessor's house was demolished by the 1939
earthquake. The Plaintiff's evidence was that there have been several warnings to the defendant's
predecessors and the defendant to vacate the land and or, not to put up any cement permanent
building on the land but the defendant had ignored the warning.

The Plaintiff has litigated with some people over the same land as evidenced in exhibit "B". These
could be the predecessors of the defendants since the subject matter in that suit was about the
same temporary structures on the same land. The defendant is bound by the judgment against her
predecessor and cannot rely on the Limitation Act to perfect her claim to ownership of the land.

The person who put up the Swiss buildings therefore did so upon a licence granted by the real
owners who were descendants of Gilbert Johnson. The licence was withdrawn and exhibit B shows
that a judgment of the High Court confirmed the title of the Plaintiff's predecessors. That judgment
is binding on all persons who are privies to the Plaintiff and the defendant in that suit.

Since the defendant claim that her mother occupied that Swiss building then her mother was a
privy to the defendant in that suit. The defendant cannot therefore rely on the Limitation Decree to
perpetrate their stay on the land in disobedience to that judgment to claim title to the same land".

With this admittedly long quotation from the judgment we can now examine the views of counsel
for the defendant and the responses from the opposite side.

Arguing ground one of the grounds of appeal counsel for the defendant submitted that his clients
predecessors were never a party to the 1973 judgment it was therefore erroneous for the trail
judge to have concluded that the defendant was a predecessor in title to Charles Amoah and co-
defendants in the 1973 judgment and further erroneous for him to find that defendant's
predecessors and therefore the defendant were licensees to the predecessors of the plaintiff in
respect of this land. Counsel for the plaintiff, opposing this contention of the defendant, thinks the
trial judge was right in his conclusions drawn from the 1973 judgment. To him the judgment is a
judgment on the disputed land and therefore a judgment in rem. It was for the plaintiff to have led
evidence to contradict this judgment.

I have earlier stated that the trial judge made the observations and findings I have copiously
quoted above relying on exhibit A and B. Exhibit A is the conveyance from the Government of

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Ghana to the grandfather of the plaintiff, Mr. Gilbert Johnson. Exh. B is a 1973 judgment of the
High Court between a J.B Johnson v. Charles Armah 2. Ga Mantse 3. Gbese Mantse 4. Korle
Priest. This J.B Johnson is mentioned in this judgment as the son of Gilbert Johnson. A lot was
said in this judgment about Korle Dudor lands and Government acquisition of lands in the area for
development purposes. That some plots of land were taken over by the government from a Gilbert
Johnson, the father of plaintiff in this High Court case, and replaced with other lands in the Korle
Dudor area was clear from exhibit B, the judgment. What cannot be found in this judgment is a
license from the plaintiff's ancestors to defendant's ancestors and others as the trial court found in
his judgment. All he said as I have quoted above in his judgment had nothing to do with the
defendant because her ancestors were not parties to that case. There was no evidence before the
trial court linking the present defendant or her ancestors to that 1973 suit. There was also no clear
linkage between the lands mentioned in the judgment released to Gilbert Johnson in that case to
the land in dispute herein. A judgment plan to the judgment, Exh. B, could have served this
purpose but none was produced. In fact no evidence was led to link the defendant to this exhibit B.
The site plan of the 1928 conveyance tendered as Exh A which the plaintiff gave to the surveyor
for the super imposition has nothing in common by way of location of the land to the 1973
judgment. The plaintiff having failed to link the defendant to the 1973 judgment, it was erroneous
for the trial judge to have found that the defendant and her predecessors were bound by that
judgment Exh. B. The same can be said of failure to link the present subject matter to the 1973
judgment. Counsel for the plaintiffs submissions in support of this part of the judgment and
claiming that it was rather the defendant who had a duty to contradict the 1973 judgment, I believe
may be coming from misapplication of the principles governing the use of previous judgments. We
need not detain ourselves on the principles of estoppel which normally arises when issues about
previous judgments are under consideration because none has been pleaded and is not contended
by any of the parties. It is only where it is intended that a judgment should operate conclusively as
estoppel that the matter of estoppel should be expressly pleaded. The law does not however
prevent a judgment being used as a relevant fact from which the court may draw conclusions in
favour of the person who tenders it even though one of the parties to the subsequent suit was not
a party to the former suit. Refer to the cases of Peniana v. Affram (1966) GLR220 and Nana Akoto
II v. Nana Akwesi Agyeman (1962) 1GLR524. But the question is what type of conclusions is the
court capable of drawing from such previous judgment when one of the parties and predecessors
were not parties in the previous suit? A court definitely should have limits to what use it can make
of facts and finding in such previous judgments. In an adversarial system of ours where parties
have the sole duty marshalling evidence and defend such evidence in cross examination it won't
be difficult to appreciate the injustice that will arise if a court just draws any type of conclusion from
facts and findings in the previous judgment not known or tested by a party in the subsequent trial. It
is for this reason that the party tendering the previous judgment is obliged to use the trial
processes to get into the subsequent trial facts from the previous judgment that he believes will
inure to his benefit. It is my view that any such importation from previous judgments by a court
should be done such that it does not deny the other party a hearing on the imported fact and does
not cause any injustice to the other party. In the case before us for the trial judge to have drawn
conclusion of licensees and held the defendant bound by the previous judgment Exh.B I found
unfair to the defendants. I am of the view that it was erroneous for the trial judge to have picked
conclusions and findings from this judgment, exhibit B to indict the defendant's claim to the land
when the defendants ancestors were not privy to Charles Amoah and the co-defendant in the 1973
judgment. It appears to me therefore that these exhibits A and B cannot form the basis for the trial

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courts finding that the plaintiff's ancestors granted license to the predecessors of the defendant.
Again examining the evidence of the plaintiff and witnesses in court, I don't think any credibility can
be given to their evidence establishing a license. In the first place Nii Ansah Johnson who testified
for the plaintiff head of family mentioned no such license. And the witness of the head of family,
Gilbert, who said their grandfather gave license to the predecessor of the defendant could not tell
how the license was granted.

He was asked

"Q. How was the consent of your father obtained?

I know my father controlled the lands but the defendant had come unto it but I don't know exactly
how my father consented

In another breath, in further cross examination, he said the predecessor of the defendant came to
beg their grandfather to be allowed to stay temporarily on the land. He said he was present when
they went to beg to occupy the land. One other answer he gave in cross examination was that "I
may think it was my father who granted her permission to build the swish building on the land". It
should be noted that witness even said he did not know the owner of the swish buildings and he
noticed these buildings 4 years ago. Noticed these swish buildings 4 years ago? With these pieces
of evidence I don't think there was reliable evidence establishing a grant of license to the
predecessors of the defendant who have been on this land since Gold Coast years and for which
they also have a 1917 registered document. I will uphold this ground of appeal.

The defendant's next ground of appeal is that the trial judge 'erred in holding that the plaintiff's
claim against the defendant/appellant was not statute barred. We have read the position of the trial
judge on the limitation bar. He found the defendant and predecessors bound by the 1973 judgment
and that the defendant and ancestors got unto the land on license of the plaintiff's ancestors they
therefore cannot rely on the Limitation Act. Counsel for the plaintiff feels comfortable at the trial
court's assessment of the evidence and this conclusion of the trial judge. But as expected, the
defendant and her counsel have a different view. They question the trial judge's findings that they
are bound by the 1973 judgment and the further finding that they are licensees. To them the
Limitation Decree is therefore applicable.

There is no dispute the defendant did not plead the Limitation Act, 1972 (NRCD54) as demanded
by the rules of court, Order 11 rule 8 of C.I 47. But he pleaded facts that should have prevented
any surprise to the defendant if evidence was subsequently led on the limitation bar, as happened
in this case. And this is accepted by the legal authorities. She pleaded clearly in paragraph 6 and 7
of her defence that her predecessor had developed the land about 87 years ago which
development they were pulling down to make way for erection of stores. She pleaded further that
for all these number of years when their predecessors were on the land neither the plaintiff's
predecessors, nor anybody in plaintiff's family, raised any objection to the occupation. Looking at
Exhibits 3 series, pictures of the swish building and other zinc structures on the disputed land and
the evidence relevant to these exhibits on record, I have little doubt that the predecessors of the
defendant have been in effective possession of the disputed land for ages. Being in possession is
not all that there is to the invocation of the Limitation Decree, specifically section 10, which
provides for the extinguishing of the owners title after 12 years possession by a trespasser or
claimant. The Decree can successfully be invoked only where there is evidence of knowledge, be it

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imputed or constructive, by the real owner of the adverse possession but he took no step to
challenge the trespasser or squatter for the whole limited period of 12 years. On knowledge of
possession of the trespasser (adverse possessor) which is inconsistent with the real owners title to
the land for a minimum period of 12 years, the real owners title to ownership of the land will forever
be statutorily barred if he fails to question those acts of the trespasser within this period. That is
generally the import of the Limitation Act as it relates to ownership of land. Refer to the cases of
Djin v. Musah Baako (2007-2008) SCGLR 686 and Memuna Moudy v. Antwi (2003-2004) 967. The
evidence on record is that the defendants have been on this land at least since 1981. They have
had these swish buildings on the land for ages. Mr Walter Nii Ansah Johnson, a principal member
of the family who testified as the head of family told the court he did not know the owner of the
swish buildings and also did not know when they were put up. He noticed the swish buildings about
4 years ago. But when another elder of the family testified, it appeared clear that his best was to
throw more of the rough planks into the evidence of the acting head of family. He said he got to
know the defendant when she started building on the land and they had to go and confront her.
Surprisingly this same defendant who he got to know at this point in time, was the same defendant
he told the court came with her mother Commeykai to beg for permission to stay on this land.
Indeed his further evidence was that the predecessors of the defendant and others got unto this
land with the permission of his father, a John Ben Johnson. In other parts of his evidence he said
the consent was given by his grandfather and defendant was one of those who had this consent to
be on the land. I have already found that there is no reliable evidence for a conclusion that the
grandfather or father or anybody in plaintiff's family granted consent to the defendants predecessor
or defendants to be on this land. The evidence discloses clear acts on the land inconsistent with
any claim of ownership by any person who claims to be the real owner. These swish buildings
have been there for years during defendants grandmother Commeykai and additions have been
made before the death of the mother of the defendant in 1981. Going by the evidence of the
plaintiff that he noticed the swish buildings 4 years ago, that he does not know how the buildings
got there and he does not also know the owner of the swish building, it sounds reasonable to ask
him the question what prevented him the owner taking action all these number of years to establish
his ownership of the land? I am of the view that there is sufficient evidence for the invocation of the
limitation bar against any claim of ownership of this land by the plaintiff. His claim, if he had any at
all is statute barred on application of the Limitation Act. I am of the view this grounds of appeal
should also be allowed

From conclusions I have come to in respect of the foregoing grounds of appeal I find the last
ground of appeal, that the judgment is against the weight of evidence adduced at the trial, not too
difficult to dispose off. Now both parties before the court relied on ancient documents as their title.
The plaintiff's is a 1928 conveyance purporting to be a grant of the land from the Government of
the Gold Coast to Gilbert Johnson. This grant is supposed to be a replacement of some land
compulsorily taken over by government from Gilbert Johnson somewhere else for public use. The
defendant's is a 1917 document purporting to be a grant from James Afutu Korley to Madame
Kormeykai. Being ancient documents they are granted statutory authentication. Refer to section
146 of the Evidence Decree. What can't escape notice on examination of these documents is that
both documents do not disclose in their recitals the root of title of the grantors. Where the
Government and Afutu Korley got this disputed land from to grant to Gilbert Johnson and
Kormeykai respectively is not disclosed by the indentures. One would have expected the
government's title to originate from a government acquisition but that is not what we have on the

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evidence. Unless there was a government compulsory acquisition of this disputed land which would
have taken precedence over any other interest in this land, whether registered or not, plaintiff had
the duty to lead evidence to prove his claim to the land. The defendant has a counter claim and
therefore had an equal duty to lead evidence to establish this counterclaim. From the evidence on
record it would appear both parties, especially the plaintiff laid his case heavily on the 1928
indenture and the 1973 judgment. Unfortunately the 1973 judgment was not, in my humble view,
properly made use of as to get its evidential worth imported into his case. Of course the defendant
had other defences she made use of in this case i.e. the statute of limitation and possession. In
respect of the conveyances tendered by the parties, it is clear that the purported grants did not
emanate from the same grantor for us to consider the principle of priority of grants. Who had the
grant of the land first should not be the concern of this judgment since on the evidence it won't
inure to the benefit of any of the parties. The important duty cast on the parties was rather for each
to lead evidence of his or her title in support of his conveyance. The plaintiff from the preceding
examination I have made so far failed in this duty. All he did was to repeat what he had in his
statement of claim, tendered the 1928 conveyance and the 1973 judgment. As if that was not
enough to lead him into failure in his bid to claim the disputed land, his next witness also out of the
blue introduced a licensor- licensee issue which, as I have already explained, did more injury to the
plaintiff's case than a healing. The defendant on the other hand led evidence which barred the
plaintiff from litigating over this land and also clear evidence of effective possession for years
dating at least to the days of her grandmother who she never knew. I think the appeal on this
ground that the judgment is against the weight of evidence, in my view, also succeeds.

I will have to conclude this judgment upholding the defendant's appeal and consequently reversing
the judgment of the trial judge. In its place the evidence on record allows me to grant the
counterclaim of the defendant i.e. a declaration of title to the disputed land situate at Agbogbloshie
bounded by the plaintiff's land in the northwest measuring 85.6 feet or thereabout on the North
East by a road measuring 75.2 feet more or less and to the south east by a neighbours land
measuring 100 feet more or less and on the south west by a lane measuring 70.2 feet more or
less. Defendant is entitled to an injunction restraining the plaintiff, his agents, assigns and privies
from disturbing the peace and quiet enjoyment of this land.

VICTOR OFOE

JUSTICE OF APPEAL

HENRIETTE ABBAN, JA

I agree

HENRIETTA ABBAN

JUSTICE OF APPEAL

ISSAC DUOSE, JA

I also agree

ISSAC DUOSE

JUSTICE OF APPEAL

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APPEARANCES

MR. AGALGA FOR DEFENDANT/APPELLANT ,MR. ALBERT ADDARE FOR PLAINTIFF

RESPONDENT

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