POKUA VRS GYAMPA & ANOTHER [2023] GHACA 183 (4 May 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA A. D. 2023 CORAM: JUSTICE HENRY KWOFIE (MR.) J. A (PRESIDING) JUSTICE SOPHIA ROSETTA BERNASKO ESSAH (MRS.) J. A. JUSTICE GIFTY AGYEI ADDO (MRS.) J. A CIVIL APPEAL NO.:H1/258/2022 DATE: 4TH MAY, 2023 MADAM AKUA POKUA H/NO. 40 HAATSO, ACCRA VRS 1. AMOAKO MIREKU GYAMPA 2. LANDS COMMISSION CANTONMENTS-ACCRA - PLAINTIFF/APPELLANT - 1ST DEFENDANT/RESPONDENT 2ND DEFENDANT J U D G M E N T __________________________________________________________________ SOPHIA R. BERNASKO ESSAH (MRS) JA: This is an appeal at the instance of the Plaintiff/Appellant against the judgment of the High Court dated 17th June, 2022, on the following grounds: a. The judgment is against the weight of evidence. b. Further grounds of appeal may be filed upon receipt of the ROA. Although Counsel for Plaintiff/Appellant indicated that further grounds of Appeal will be filed, this was not to be. In this delivery, the Plaintiff/Appellant will be referred to as Plaintiff, and the Defendants/Respondents as the Defendants. The back ground facts to this appeal are as follows: Plaintiff a Ghanaian but ordinarily resident in Belgium, alleged ownership of a leasehold property being and lying at Dome, Kwabenya measuring 230 feet by 80 feet and containing an approximate area of 0.46 Acres. For planning purposes the land was divided into two (2) and labelled Plots 26 and 36. She alleged that she acquired the said piece of land from the Administrators of the Estate of James I. A Quaye who had taken his title from Onamrokor Adain family of Accra in December 1993, after a High Court in Accra had granted them Letters of Administration on 14th December 1992. She registered the lease in 1998 at the Lands Commission with Registration No. AR/GB/13/94. She alleged further that she constructed a residential accommodation on part of the plot (No. 26) in 2001, and put caretakers in some of the rooms and left for abroad. Upon a visit to Ghana she found out that the 1st Defendant had started some construction work on the undeveloped part of the plot. She confronted him and he claimed he bought the land from a Bono man but did not help her to identify the alleged seller. According to her, 1st Defendant initially admitted that he had heard that the land belongs to her but pleaded that she allows him to buy that part of land. Negotiations in respect of that were however aborted. She alleged also that some time in October, 2014, she attempted to register her full piece of land with the Land Title Registry, the 2nd Defendant. Although she was duly registered as title owner of Plot No. 26, 2nd Defendant failed to register her title to Plot No. 36 which was the portion of land the 1st Defendant had encroached upon. That through her lawyer she drew the attention of 2nd Defendant to the omission. In response, the 2nd Defendant asked her to return the land title certificate issued to her for rectification. However, the reissued title certificate still did not cover the part of the land complained of and now subject matter of this dispute. Subsequent searches she conducted on the land, each time brought up different results, about the ownership of Plot No. 36, and at a time it showed that Plaintiff had transferred the land to the 1st Defendant and his wife, even though she had not done so. All attempts and petitions to the 2nd Defendant to amend the description of the land in her land title certificate to include the other part, Plot 36, have proved futile. The conduct of the defendants gives cause for her to believe that they are acting together to deprive her of that portion of her land for no just cause. She alleged that the 1st Defendant has put up an uncompleted building structure on the disputed land against protests that she has mounted, and continues with the construction of the land whenever she travels out of the country. She said 1st Defendant has trespassed onto her land, and it would be just for the Court to order him out of the land. In her Writ of Summons filed on 7th July 2020, she claimed the following: a. A declaration that the land described on land registry map No.006/166/1993 and labelled as Plot No. 26 and 36 on Block 3 section 166 situate at Dome (Haatso) being part of the land described in the Statement of Claim is the property of Plaintiff. b. An order directed at the Lands Commission to include the disputed land being Plot No. 36 in the land certificate no. GA 51559 Vol 71 it has issued to the Plaintiff within 90 days of the order of the Court. c. An order for recovery of Plot No. 36 from the 1st Defendant herein. d. An order of injunction to restrain the 1st Defendant, his privies, assigns, servants or howsoever described from interfering and or disturbing the quiet use and enjoyment of the Plaintiff or selling or developing any part of Plaintiff’s land described in the Statement of Claim particularly that part numbered plot No. 36 or doing any act that is detrimental to the interest of the Plaintiff. e. An order to demolish any structure or building put up on the disputed portion of the Plaintiff and the cost of demolition to be paid by the defendants. f. Damages. In his defence, 1st Defendant alleged that he lived and worked in Japan for many years. In 1995, he caused his brothers to purchase land for him which they did from Joe Donkor, Plaintiff’s uncle. The indenture to the land was prepared and dated 19th July, 2001, same was signed by Plaintiff and witnessed by her said uncle. His wife signed on her own and his behalf, since he was then out of the Country. According to him, Hon. Joe Donkor was managing director of SIC, a Member of Parliament and former deputy Minister as confirmed by Plaintiff. That since purchasing the land he has taken possession and caused his property to be built on it, and has been living in that house with his family for about 5 years since he returned from Japan without interference from anybody. He maintained that he did not receive any protests from Plaintiff throughout the time his property was being developed for him. That save for he meeting the Plaintiff 3 years prior to initiation of the suit and upon her inquiry, he told her that he bought the land from her own uncle, Hon. Joe Donkor, who had indicated that he was selling it on her behalf and with her consent, plaintiff has never confronted him. He contended that having acquired the land and built on it for about 19 years prior to Plaintiff’s commencement of the suit, and on account of Section 10 of the Limitation Act 1972 NRCD 54 the Plaintiff is estopped from making the claims she is making now. He denied being an encroacher or trespasser. Also that his name is not Burger as indicated in the title of the suit, but Amoako Mireku Gyampa. In an amended reply Plaintiff joined issue with the Defendant and said she will put the 1st Defendant to proof that he bought the land from her uncle Joe Donkor and if he did, that it was sold on her behalf. She questioned why 1st Defendant did not mention that he bought the land from her uncle whilst he was alive, to enable both of them confront him, but rather raised this defence knowing that Joe Donkor had passed away. She also said that the 1st Defendant’s workers started working on the land some eight or nine years prior to commencement of the suit. That she met with the 1st Defendant about 5 years ago and not three years as alleged and during their meeting he promised to negotiate and pay for the land. The 2nd Defendant entered appearance but did not file a defence. Interlocutory Judgment was entered against it, but was subsequently set aside by the Trial Court when the Plaintiff failed to prove her title to the land. The following issues were set down for resolution: i. Whether the Defendant bought the disputed land from Joe Donkor, an uncle of the Plaintiff. ii. Whether the sale of the land by Joe Donkor is true and if true whether it was a valid sale. iii. Whether there is any justification why the disputed land was not included in the land title certificate issued to the plaintiff by the 2nd Defendant. iv. Whether the Plaintiff is entitled to the reliefs endorsed on the writ. v. Any other issue arising from the face of the pleadings or evidence before the Court. vi. Whether or not the Plaintiff is estopped by virtue of Section 10 of the Limitation Act 1972 (NRCD 54) vii. Whether the 1st Defendant promised to pay the Plaintiff for the land during a conversation and viii. Whether same was recorded with the consent of the 1st Defendant. The last 3 issues arose from the face of the pleadings and the evidence adduced. In its judgment, the trial court found that the 1st Defendant’s quiet possession of the land is consistent with his claim that the disputed land was indeed sold to him by Joe Donkor. In arriving at this decision the court relied on the evidence of the 1st Defendant and DW1 that he had built his house since the year 2000, and nobody had resisted his construction of the house. The Court also relied on “Exhibit 4” which is the electricity bill on the house bearing 1st Defendant’s name and indicating the date of installation as 21/1/2005. The Court found it impossible that the Plaintiff and her uncle would have looked on the whole time for the 1st Defendant to put up his house without taking any legal action or reporting him to the police for criminal trespass if they had nothing to do with the alienation of the disputed land. The Court also took cognizance of the fact that the caretakers who had been engaged by Plaintiff to protect her interest, looked on when 1st Defendant entered the land for many years, to build and occupy the land without any form of resistance although the Plaintiff’s building and that of the 1st Defendant abut each other. In the Trial Court’s view, the care takers being there to protect the very land in issue they would have acted if the Plaintiff and her uncle were not aware of the transaction. The Court questioned why Plaintiff could not call her caretakers to explain what accounted for that. The trial court was also satisfied with the validity of 1st Defendant’s indenture document, “Exhibit 1.” The Court identified the name and signature of the Plaintiff as Donor and her uncle Joe Donkor as witness to her signature on “Exhibit 1”, and compared them with the name and signature of the same persons on “Exhibit A” (which is the indenture executed in favour of Plaintiff by her grantors), Plaintiff as donee therein and Joe Donkor as witness, and concluded that there was no difference in the signatures on the documents and thus “Exhibit 1” was executed by the Plaintiff and her uncle Joe Donkor. The Court discredited the denial by the Plaintiff of her signature on “Exhibit 1” as untrue. The Trial Court identified yet another connection between the two documents - “Exhibit A” and “Exhibit 1”, which is that, even though the 1st Defendant claimed he bought the land from Plaintiff’s uncle, the conveyance was rather a Deed of Gift which described the 1st Defendant as a Donee and not a purchaser. Similarly in “Exhibit A” even though the Plaintiff claimed she purchased the land, the conveyance was a Deed of Gift and she was similarly referred to as a Donee and not a purchaser. In the Trial Court’s opinion the consistent signatures of the Plaintiff and her uncle on both documents coupled with how they were termed and described in their conveyance linked the Plaintiff and her uncle to “Exhibit 1”. The trial Court, also questioned the failure of Plaintiff to produce her passport to show where she was at the time of the execution of “Exhibit 1”, as well as her failure to call for forensic examination of her signature on the said exhibit if she had no input in the Exhibit. On the basis of the above, the Trial Court concluded that the Plaintiff’s claim that she did not sign “Exhibit 1” and also did not authorize her uncle to sell the land rested on bare assertion without any proof. That to the extent that the Plaintiff’s signature is found on “Exhibit 1” that transaction remains valid as it complied with Section 1 and 2 of the Conveyancing Act 1973 (NRCD 175). In determining Issue (vi) the Trial Court took into consideration the fact that 1st Defendant had testified that he had been in possession of the disputed land from 1995 and by the year 2000 he had completed his building. Also that “Exhibit 4”, evidences that Electricity Company of Ghana installed a meter in 1st Defendant’s house in 2005 connecting electricity to the house. That since the Plaintiff claims that neither she nor her uncle put the 1st Defendant on the land then the 1st Defendant was in adverse possession. The Trial Court reasoned that if even the duration of construction is ignored and the year 2005 is used as the time when the 1st Defendant went into the supposed adverse possession, the Plaintiff’s action is caught by the Limitation Act, Section 10 which grants a grace period of 12 years for actions to be brought against a person in adverse possession of a piece of land. The instant suit was mounted in July, 2020 which is 18 years after the electricity was connected to the house. The Court was of the opinion that Plaintiff having engaged caretakers to mind the disputed land for her because she was domiciled in Belgium implied that she had actual or constructive knowledge of the supposed adverse possession by the 1st Defendant. Additionally, the Court discredited Plaintiff’s claim that upon confronting the 1st Defendant he said the land in dispute was sold to him by a Bono man because that should not have stopped her from mounting an action against the 1st Defendant as soon as she found him on the land. Rather she waited until the death of her uncle to sue. The trial court found from the evidence that the Plaintiff’s action is caught by Section 10 of the limitation Act and her title if any is extinguished by law. Regarding a recording which was tendered in evidence as “Exhibit H” by the Plaintiff to prove her allegation that 1st Defendant promised to pay for the land, the Court was of the view that 1st Defendant having denied giving his consent to the said recording the onus was on the Plaintiff to prove same. However save for the bare assertion that 1st Defendant gave his consent Plaintiff did not attempt to positively prove same. The Court consequently rejected “Exhibit H” as infringing on Article 18(2) of the 1992 constitution which has been interpreted by the Supreme Court in the case of Cubagee vs Asare & Others (2017-2020) 1 SCGLR 305 to cover any recording in a permanent form, done without the consent of the person, against whom it is being used. Flowing from these observations and findings the trial judge concluded that the Plaintiff just sought to capitalize on the death of her uncle to cause mischief and drag the 1st Defendant into needless litigation. Also that the 1st Defendant’s case is more probable than that of the plaintiff. The Trial Court therefore dismissed the entire reliefs of the Plaintiff. In his written submissions counsel for Plaintiff contended that the trial judge having identified that the disputed land forms part of the land acquired by the plaintiff in 1993, rightly proceeded to cast the burden of proof on 1st Defendant to prove his source of acquisition of his land, since he admits that he knew the Plaintiff owned the land. However the court did not delve into the legal interest of 1st Defendant but rather took interest in looking at the 1st Defendant’s claim that plaintiff’s action is caught by Section 10 of the Limitation Act 1972 NRCD 54. He contended further that a close look at the interest of the 1st Defendant in the land, showed that the said Hon Joe Donkor lacked the capacity and authority from the Plaintiff to sell the land without a power of attorney from Plaintiff. The sale was therefore a nullity and void. He submitted that the High Court erred in not determining the capacity of the Plaintiff’s uncle to sell the land to 1st Defendant. In so saying counsel for plaintiff relied on the following cases to buttress his point: Sarkodie 1 vs Boateng 11 (1982-83) GLR 715, Asante Appiah vs Amponsah vs Amponsah alias Mansah (2009) SCGLR 715; Sokpui 11 vs Tay Agbozo 111 (1951) 13 WACA 241. In further support of the fact that the Plaintiff had no hand in the conveyance of the land to 1st Defendant, Counsel for Plaintiff contended that, the Plaintiff was at all material times domiciled abroad so it was improbable that she ever made a deed of gift of the land in dispute to 1st Defendant. That “Exhibit 1” which was allegedly signed by her indicated a Post Box number in Accra, whereas the fact that she lived abroad was corroborated by DW1 during cross examination when he testified that Joe Donkor informed him of same. He contended that it was therefore wrong for the trial Court to say that Plaintiff needed to produce her passport to show where she was during the time of the transaction. He also contended that the Plaintiff’s uncle having no authority or capacity to transfer/convey interest in the land to 1st Defendant the maxim/principle of NEMO DAT QUOD NON HABET, should be raised against him, and the conveyance to the plaintiff declared null and void and of no effect. He also said that even though the 1st Defendant asserted that he bought the property from Joe Donkor yet he failed to produce any receipt of payment. He concluded on this issue that the finding reached by the Trial Judge that the 1st Defendant’s claim was more probable than that of the Plaintiff is against the weight of the evidence and underscores the fact that the trial judge failed to consider the case of the Plaintiff and did not thoroughly evaluate the evidence. Regarding the issue of the Limitation Act, Counsel for the Plaintiff submitted that in order to assert an adverse claim the acts and conduct of the trespasser must be visible and unchallenged so as to give notice to the legal/paper owner that someone was asserting a claim adverse to his. That in the instant case, the evidence showed that plaintiff lived outside the jurisdiction and it was within a period of 3 years that she got to know of what had transpired in her absence and as a result mounted this action. Therefore the trial judge in coming to the conclusion that the 1st Defendant was in adverse possession and applying Section 10 of the Limitation Act NRCD 54 was erroneous. He concluded by saying that the judgment was perverse and not supported by evidence on record. Accordingly the judgment dismissing the claim of the Plaintiff should not stand and should be set aside and Judgment entered for the Plaintiff. In his written submission counsel for 1st Defendant contended that contrary to the plaintiff’s submission that the said Joe Donkor, did not have the authority or capacity to sell or gift the land in dispute to the 1st Defendant, the evidence as contained in “Exhibit 1” showed that it was the Plaintiff herself who signed the indenture granting the land to the 1st Defendant and his wife. Joe Donkor only signed as witness. Having reproduced the salient portions of the Judgment relied on by the Court in coming to its conclusion, he said that the dismissal of the plaintiff’s claim was supported by the evidence adduced and correctly analyzed by the trial Court. He contended in the alternative that the plaintiff acquiesced, in that, the 1st Defendant went upon the disputed land upon honest belief that he had a right to the disputed land based on “Exhibit 1”. He expended so much money in putting up the property in which the 1st Defendant and his family now live. The Plaintiff put caretakers on plot number 26 which adjoins the disputed land. She at all-times knew that she had a right to the land which is inconsistent with the right the 1st Defendant was claiming. Plaintiff knew of the mistaken belief of the 1st Defendant of his right, but remained silent which encouraged the 1st Defendant to put up money to develop the land and had not called the attention of the 1st Defendant to the error. He concluded therefore that the Plaintiff is estopped by laches and acquiescence. In this appeal we take cognizance of our function as a rehearing Court as provided in Rule 8(1) of CI19. An appellate Court has a duty to conduct its own independent examination of the Record of Proceedings to determine whether indeed, the appeal should succeed, taking into account the totality of the evidence. The following cases referenced: Akufo-Addo Vrs. Catheline (1992) 1 GLR 377; Abbey Vrs. Antwi V. (2010) SCGLR 17, 20; Aryeh & Akakpo Vrs. Ayaa Iddrisu (2010) SCGLR 891. In so doing, we are mindful not to interfere with the findings of fact of the trial Court unless it is established with absolute clearness that some blunder or error resulting in a miscarriage of justice, is apparent in the way in which the lower Court dealt with the facts: See Achoro vrs: Ankefena (1996-97) SCGLR 209. Generally, where an Appellant alleges that the Judgment is against the weight of evidence before the Court, then the Appellate Court is required to analyse the Record of Appeal entirely, so as to satisfy itself that on the balance of probabilities the conclusions of the trial judge are reasonable or amply supported by the evidence. But the Appellant also has a duty to point out the pieces of evidence which if the trial Court had taken into consideration would have resulted in a finding in his favour. The Supreme Court case of Tuakwa vs Bosom (2001-2002) SCGLR 61 refers. We will be guided by these principles in determining this appeal. We must say from the outset that we find no merit in this appeal. Plaintiff complains that the court should have concerned its self more with evaluating and determining the source of acquisition of the land by the 1st Defendant and his legal interest rather than the 1st defendant’s claim that Plaintiff’s action is caught by Section 10 of the Limitation Act 1972 NRCD 54. But from our reading of the Judgment, we are of the view that the Court did evaluate the evidence to determine if the 1st Defendant had proved his source of acquisition of the land, as well as the legal interest he claimed to have. In doing so, the Trial Judge first considered the document the 1st Defendant relied on as proof of his title which was “Exhibit 1”, a Deed of Gift and found as fact that same satisfied the legal requirement under the Conveyance Act 1973 NRCD (175). The court also found that the Plaintiff and her uncle signed Exhibit 1, conveying the land to the 1st Defendant. The Trial Court having expressed doubt that the said Joe Donkor, who was a former member of parliament of the third parliament of Ghana for Tano North constituency, and a former deputy minister of education, employment and labour, would stoop so low as to sell his nieces land without her consent and knowledge, concluded as follows on page 206 of the ROA: “His signatures on both documents in my view gives “Exhibit 1” the same credibility as “Exhibit A.” This is a finding of the Court, the trier of fact, which we have no basis to countermand. The above apart, the court having analyzed the following evidence was trenchant in its view that the disputed land was indeed sold to 1st Defendant by Joe Donkor with the approval of the Plaintiff: the fact that Plaintiff and her uncle looked on all the while for the 1st Defendant to put up his house without taking any legal action or reporting him to the police, for criminal trespass; Plaintiff’s own account that she had caretakers living in her house during her absence who would have acted if the Plaintiff and her uncle were not aware of the transaction given the closeness and proximity of Plaintiff and 1st Defendant buildings to each other. Based on the above evidence the court concluded rightly in our view, that the disputed land was indeed sold to 1st defendant by Joe Donkor, with the knowledge of the Plaintiff, hence his enjoyment of quiet possession. Although counsel for the Plaintiff contended that the failure of the uncle of Plaintiff to show the 1st Defendant any power of attorney from the Plaintiff evidenced his lack of authority and capacity to deal with the said land, the law does not require such a document to validate the transfer of interest in land. Section 1 and 2 of the Conveyancing Act provides that the mode of transfer of an interest in land shall be in writing and signed by the person making the transfer. The section provides as follows: (1) A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorised in writing, unless relieved against the need for such a writing by the provisions of section 3. (2) No contract for the transfer of an interest in land shall be enforceable unless—(a) it is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorised to sign on behalf of such person; or (b) it is relieved against the need for such a writing by the provisions of section 3. Therefore, ones the Deed of conveyance satisfied the requirements of writing in the Conveyancing Act NRCD 57, and same was signed by the plaintiff as was apparent on Exhibit 1, and found by the court below, then the legal requirement was satisfied. The Plaintiff’s document constituted a valid transfer of interest in the land under the Conveyancing Act. The Defendants contention otherwise hereunder is clearly misconceived. Although Counsel for Plaintiff urged on this court that the principle of NEMO DAT QUOD NON HABET, must be raised against the Plaintiff’s uncle, we do not see from the facts and evidence in this case that the Plaintiff’s uncle, Joe Donkor, ever claimed ownership of the land in order for the principle to be applied against him. We will be remiss if we fail to comment on the cases relied on by Counsel for Plaintiff in support of his contention that the said Joe Donkor lacked capacity or authority to act on behalf of the Plaintiff in relation to his dealings with the 1st Defendant. He referenced the following cases: Sarkodie 1 vs Boateng 11 (1982-83) GLR 715, Asante Appiah vs Amponsah vs Amponsah alias Mansah (2009) SCGLR 715; Sokpui 11 vs Tay Agbozo 111 (1951) 13 WACA 241. But these cases, are in respect of lack of Capacity to sue, and are therefore inapposite. Regarding the court’s finding that the Plaintiff’s action is caught by the statute of Limitation, counsel for Plaintiff contends that the Trial Judge’s conclusion that the 1st Defendant was in adverse possession and his application of Section 10 of the Limitation Act NRCD 54 was erroneous. We think otherwise. Now the overriding objective of the Limitation Act, is that litigation must come to an end. Therefore although a plaintiff may have a cause of action, he will lose the right to enforce it through the judicial process if the period that the law provides for such actions has already lapsed. Section 10 of the Limitation Act (1972) NRCD 54 provides: 10. Recovery of land (1) A person shall not bring an action to recover a land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to a person through whom the first mentioned claims to that person. (2) A right of action to recover land does not accrue unless the land is in the possession of a person in whose favour the period of limitation can run. (3) Where a right of action to recover land has accrued, and before the right of action is barred, the land ceases to be in adverse possession, the right of action does not accrue until the land is again taken into adverse possession. (4) For the purposes of this Act, a person is in possession of a land by reason only of having made a formal entry in the land. (5) For the purposes of this Act, a continual or any other claim on or near a land does not preserve a right of action to recover the land. (6) On the expiration of the period fixed by this Act for a person to bring an action to recover land, the title of that person to the land is extinguished. (7) For the purpose of this section “adverse possession” means possession of a person in whose favour the period of limitation can run. For a person to succeed in a plea of Limitation, he must demonstrate that he is by law in adverse possession of the land. Sections 10 (2) (3) and (7) of the Limitation Act (supra), The meaning of adverse possession, was discussed by Prof N. A, Kotey (JSC) as follows in the case of Nana Korkor Ntim vs Stephanie Ansaa Opare Civil Appeal No. J4/64/2022, 7th December 2022: “What then constitutes adverse possession? In the case of Adjetey Adjei v. Nmai Boi [2013- 2014] 2 SCGLR 1474, Her Ladyship Sophia Adinyira JSC (as she then was) had this to say in explaining adverse possession: Adverse possession must be open, visible and unchallenged so that it gives notice to the legal/paper owner that someone was asserting a claim adverse to his. And Section 10 of the Limitation Act, 1972 (NRCD 54) has substantially reflected the English Statute of Limitation provisions and the Common Law. Under the present law, the person claiming to be in possession must show either (i) discontinuance by the paper owner followed by possession; or (ii) dispossession or as it was sometimes called ‘ouster’ of the paper owner’.” He also referred to the case of Mrs. Vivian Aku-Brown Danquah v. Samuel Lanquaye Odartey (Supreme Court Civil Appeal. No. JA/4/2016 dated 29th July 2016), where Pwamang JSC held: “A party who seeks to rely on the Statute of limitation as a defence in an action to recover land must prove that he had been in adverse possession of the land subject-matter of the action and that such adverse possession has been continuous for more than twelve years to the knowledge of the true owner. It is also trite that to prove that the Defendant has the right over some property through adverse possession, they must fulfill the essential ingredients of nec vi, nec clam, nec precario, meaning without force, without secrecy, and without permission of the paper owner.” From the above definition of “adverse Possession” we are satisfied that the Trial Court found correctly, that the 1st Defendant can be said to have been in adverse possession of the land for purposes of raising the Limitation Act if the Plaintiff claims that neither she nor her uncle put the 1st Defendant on the land in dispute. Time for purposes of limitation will start to run when the cause of action arises. The Limitations Act Section 10 requires that the Plaintiff’s cause of Action should have accrued and from the said date, time starts to run. Lord Guest in Central Electricity Board v Halifax Corpn [1963] AC 785 at 806 has described accrual of cause of action as follows: “the date when a cause of action accrues may be said to be the date on which the Plaintiff would be able to issue a statement of claim capable of stating every existing fact which, if traversed, it would be necessary for the Plaintiff to prove in order to support his right to Judgment”. And a cause of action has been defined by Esher MR in Read v Brown 22 QBD 128 “as every fact which if traversed the plaintiff must prove in order to obtain Judgment”. Reference also Bennett v White [1910] 2 KB 643. Diplock LJ in Letang v Cooper [1965] 1 QB 232.3 also described a cause of action as “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”. The Trial Court, computed the Plaintiff’s cause of action to have arisen on or about the 21st of January, 2005 when the electricity was connected to the 1st Defendant’s house as per “Exhibit 4”. The Court held as follows: “The 1st Defendant said he has been in possession of the disputed land from 1995 and by the year 2000 he had completed his building. He said that ECG installed a meter in the house in 2005. Exhibit “4”, which is the electricity bill shows that as late as 2005 electric meter was connected to the 1st Defendant house. If we even ignore that duration of construction and use 2005 as the time when the 1st Defendant went into the supposed adverse possession, the Plaintiff’s action is caught by the said Act. Section 10 of the Limitation Act 1972 [NRCD54] grants a grace period of 12 years for actions to be brought against a person in adverse possession of a piece of land. This suit was mounted in July, 2020 which is 18years after the electricity was connected to the house.” We have no justification to vary this finding. The court was also satisfied that the Plaintiff had actual notice or constructive notice of the possession by the 1st Defendant. It held as follows: “As I have indicated, even though the Plaintiff is domiciled in Belgium, from her own showing she purposely engaged caretakers to mind the disputed land for her. This implies, she had actual or constructive knowledge of the supposed adverse possession by the 1st Defendant.” He continued: “The Plaintiff’s claim that she did not sign “Exhibit 1” and also did not authorize her uncle to sell the land rested on bare assertion without any prove. If she did not sign and had no knowledge of the sale, how does she explain this long possession by the 1st Defendant? Why did her caretakers look on for the 1st Defendant to build and occupy the land without any form of resistance? She could not call her caretakers to explain what accounted for that.” “……………………. She did not find the need to mount an action against the 1st Defendant as soon as she found him on the land but was satisfied with the explanation that the land was sold by a Bono man and did not sue until the death of her uncle. ………. It appears from the evidence that the Plaintiff just wants to capitalize on the death of her uncle to cause this mischief and drag the 1st Defendant into this needless litigation. Indeed from the evidence, the Plaintiff’s action is caught by Section 10 of the Limitation Act (supra) and her title if any is extinguished by law.” We agree with the Trial Court that the Plaintiff’s action is barred by statute. The Court rightly ruled that on the balance of the probabilities, the 1st Defendant’s claim was more probable than the Plaintiff. Before concluding, we must state though that the trial Court, ought to have determined the issue of Limitation of action first, basing same on the facts and evidence before it, and when it found that the action was barred by statute, it was unnecessary to have gone into the determination of the other issues raised. Its failure to do same does not however prejudice the judgment and the conclusions it reached. Guided by all the principles that direct an Appeals Court in its deliberations when exercising its powers of rehearing, we come to the conclusion that the Appellant has failed to convince us that the judgment is against the weight of evidence. We accordingly dismiss the appeal confirming in all material the trial judge’s reasoning and judgment. Costs of GH¢10,000.00 awarded in favour of the 1st Defendant/Respondent. SGD …………………………………………………… JUSTICE SOPHIA ROSETTA BERNASKO ESSAH (MRS) (JUSTICE OF THE COURT OF APPEAL) I AGREE SGD …………………………… JUSTICE HENRY KWOFIE (JUSTICE OF THE COURT OF APPEAL) I ALSO AGREE SGD ………………………………. JUSTICE GIFTY AGYEI ADDO (JUSTICE OF THE COURT OF APPEAL) COUNSEL: ADJEI LARTEY WITH MUDA LAWAL FOR THE PLAINTIFF/APPELLANT RICHARD KWAKU KYEI BOAKYE FOR THE 1ST DEFENDANT/RESPONDENT 19