JOHN K. A KLU vs. MAVIS DARKO & DR. KOFI KONADU APRAKU [2009]DLSC2497

Date	2009-11-25
Suit No.	CIVIL APPEAL J4/15/2007
Citation No.	[2009]DLSC2497

ATUGUBA J.S.C. (PRESIDING)

ANSAH J.S.C

ADINYIRA (MRS) J.S.C

OWUSU (MS) J.S.C.

BAFFOE-BONNIE J.S.C.

CHARLES HAYIBOR FOR APPELLANT.

KULENDI @ LAW FOR THE RESPONDENTS.

[2009]DLSC2497
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													<main id="main" class="content" style="min-height: 60rem" >JOHN K. A KLU<o:p></o:p>vs.<o:p></o:p>MAVIS DARKO &amp; DR. KOFI KONADU APRAKU<o:p></o:p>[SUPREME
COURT]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CIVIL
APPEAL J4/15/2007&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:25 NOVEMBER,2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>CHARLES
HAYIBOR FOR APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

KULENDI
@ LAW FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ATUGUBA,
J.S.C. (PRESIDING), ANSAH, J.S.C., ADINYIRA (MRS), J.S.C., OWUSU (MS), J.S.C.,
BAFFOE-BONNIE, J.S.C.<o:p></o:p>

</div>J U D G M E N T<o:p></o:p>ATUGUBA,
J.S.C:<o:p></o:p>FACTS
OF THE CASE<o:p></o:p>The
Plaintiff / Respondent / Appellant (herein-after referred to as the plaintiff)
and co-defendant/appellant/respondent (herein-after called the co-defendant)
assert rival titles to plot no. 234 block 8 Section 114 situate at La-Bawaleshi
(East Legon).<o:p></o:p>Resolution
of the rival titles<o:p></o:p>The
trial judge resolved the rival claims in favour of the plaintiff on the grounds
inter alia, that the plaintiff was a bona-fide purchaser of the land without
notice of the fact that Nii Odai Ayiku IV of Nungua the grantor of his vendor
had been, prior to his vendor's&nbsp;
purported acquisition of title from him, destooled.&nbsp; As to a judgment affecting the land by an
Accra Circuit Court the trial judge held that it is a settled principle that a
purchaser of land is not estopped or affected by a judgment adverse to his
vendor in proceedings commenced subsequent to the acquisition of his title.&nbsp; The trial judge also held that if the
co-defendant had made the proper search at the proper place he would have known
of the plaintiff's prior title, secured by a Land title Certificate, to the
land and is therefore bound by it.<o:p></o:p>&nbsp;<o:p></o:p>The
Court of Appeal reversed the trial judge by a majority of 3 – 2, holding that
on the principle that Nemo dat quod non habet, the plaintiff acquired no valid
title, in view of the said destoolment of Nii Odai Ayiku IV.<o:p></o:p>The
Validity of the competing Titles<o:p></o:p>Assuming
that Nii Odai Ayiku’s grant to the plaintiff’s vendor is invalid by reason of
his prior destoolment that fact is not decisive of the matter.<o:p></o:p>The
Land Title Certificate<o:p></o:p>The
effect of a Land Title certificate has been considered in a few local cases,
see Amegahie v. Okine (1992) 2 GLR 319, Republic v. Land Title Registrar, Ex
parte Boahen II (2001-2002)1 GLR 42 and Brown v. Quarshigah (2003 – 2004) 2 SC
GLR 930.<o:p></o:p>Whether
they are all reconcilable, and if not which should be preferred to the other,
needs not detain us in this case as it can be decided on less cloudy grounds.<o:p></o:p>The
Limitation Decree<o:p></o:p>The
appellant has pleaded in paragraphs 18 and 19 of his amended Reply to the
amended statement of defence of co-defendant and Defence to Counterclaim dated
30/7/1999 at p.69 of the record of appeal as follows:<o:p></o:p>“18.&nbsp;&nbsp; Plaintiff avers that with all deference to
the Judgment Plaintiff was not party to Suit No. CCL 67/89 which was instituted
after Plaintiff has been in effective possession and occupation of Plot No. 234
without let or hindrance since 1980 and has physical evidence of occupation on
the land.<o:p></o:p>19.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Plaintiff avers that he is protected by
the Limitation Decree 1972, N RCD54 and the Land Title Registration Law, PNDC L
152” (e.s)<o:p></o:p>It
is clear from the evidence on record that since 1980 the plaintiff has been in
possession of the disputed land until the same was rocked as from around June
1997 by the building operations of the defendants.&nbsp; The trial judge has rejected, and rightly on
the evidence, the claim that other persons like Freeman Mensah and his agents
did any acts such as building on the said land.&nbsp;
The trial judge found that it is the plaintiff who put up the outhouse
on the said land.<o:p></o:p>In
the circumstances, assuming his title from Nii Odai Ayiku IV the Nungua Mantse
is bad, yet his adverse&nbsp; possession of
the said land for up to and even over 12 years confers&nbsp; on him possessory title by reason of section
10 of the Limitation Decree 1972 (NRCD 54).&nbsp;
It should be noted that such acquisition of title prevails even against a
registered proprietor of land under the Land Title Registration Law, 1986
(PNDCL 152) by virtue of s. 18 (1) and (2) thereof.&nbsp; It is as follows:<o:p></o:p>&nbsp;“Section 18 – Conclusiveness of the Register<o:p></o:p>(1)&nbsp;
The land register shall be conclusive evidence of title of the
proprietor of any land or interest in land appearing on the register <o:p></o:p>(2)&nbsp;
Nothing in subsection (1) shall affect any right or interest in land
acquired under the law relating to prescription or the Limitation Decree, 1972
(N.R.C.D 54); provided that where title to registered land has been acquired
under the law relating to prescription or the Limitation Decree, 1972 (N.R.C.D.
54) the registered propri</main>