Briefed by Prince Ganaku

Facts

In 1911, the Jukwa stool conveyed a plot of land to Millers, who erected buildings and carried on

business on the land. According to Millers, the conveyance was an absolute sale, evidenced by

a document of sale. That notwithstanding, that document was lost when Millers merged with

Russels to form the United Africa Company. In 1960, the United Africa Company sold the piece

of land to Aidoo (appellant), who possessed it undisturbed until 1972. In the period between

1911, since the land was first conveyed, and 1972, neither Millers, the United Africa Company nor

the appellant had been asked to, in any way, acknowledge title in the Jukwa stool.

In 1972, Adjei (first respondent) erected a chop bar on the land, claiming hed been authorized

to do so by the Omanhene of the Denkyira Traditional Area (second respondent). The second

respondent claimed that when he was enstooled, he was informed by the elders that the land in

question was granted to the Millers on sufferance, and that that grant would expire whenever

they left the land. He emphasized that the grant was not formalized or documented.

The crux of his argument then was that in 1960, when the United Africa Company left, the title

reverted back to them, and could not have been transferred to the appellant. To further buttress

his point, evidence was tendered in, showing that the Omanhene had caused a letter to be

sent to the United Africa Company asking them to prove their ownership of the land, by

explaining how they came into ownership of the land, providing documents to back up their

claim.

Issues

1. Whether or not the long undisturbed possession of the land by Millers cum - the United

Africa Company from 1911 to 1960 created a presumption of their ownership of the land.

2. Whether or not the inaccessibility of the evidence documenting the 1911 conveyance of

the land to Millers vitiates their apparent title to it.

 Briefed by Prince Ganaku

3. Whether or not, the erection of the chop bar on the land constituted a trespass to the

property of the appellant

Holding & Reasoning

On the first and second issues, the court held that a person in possession of land was presumed

to be the owner. Consequently, although the United Africa Company were unable to produce

the document of title flowing from the initial conveyance, they had enjoyed possession of the

land undisturbed, and without having to recognize title in anyone else, for twenty years and

upwards, and had thus established their title in the land, giving them the right to alienate it. The

Court was also quick to stress that it did not consider the long possession of the land by the

United Africa Company, in itself, as creating the title to the land, merely that it buttressed their

claim to the title.

On the third issue, the court held that the erection of the chop bar on the land constituted a

trespass to the land of the appellant, as the United Africa Company, did indeed have the right

to convey the land to the appellant.

Extract

Apaloo JA at 439: The learned judge spent some effort in dilating on the customary notion that

prescriptive title is unknown to it and cited legal authorities in support. But that approach seems

to me to be beside the point. The appellant's case was not that his vendors acquired title only

by long possession. He produced evidence that his vendors' predecessors that is, Millers

bought the land outright and both they and the U.A.C. exercised all the rights of ownership,

including the right of alienation. The evidence, of long undisputed possession was not the

foundation of their title, it was used to buttress it. Indeed the case of Mieh v. Asubonteng [1963]

2 G.L.R. 37, S.C. which the learned judge sought to distinguish was in point. It was said in that

case at p. 41 that:
 Briefed by Prince Ganaku

"A claimant to title to land may base his claim entirely on the fact that he has been in

uninterrupted possession of the land for a certain number of years, and without proving his

source of title, claim to be entitled to be declared an owner of the land. This is prescription or

usucapio as it is termed in Roman Law, and the emerging title is described as a prescriptive title.

There is of course no such title known to the law of Ghana. On the other hand a claimant to title

to land gives evidence of his source of title and relies on his long undisturbed possession as

further evidence of his title."

I think this is precisely what the appellant had done. It is wrong to think he relied on anything like

prescriptive title.

Apaloo JA at 440. As a purely evidential question, a person in possession of land is presumed to

be the absolute owner. That is why any declaration which such person makes that he has a

lesser interest is construed as an admission against him or a declaration against interest

receivable as an exception to the hearsay rule if he is dead. On the caption dealing with

declarations against interest Phipson wrote:

"And as in the absence of other proof mere possession implies seisin in fee, any declaration of an

occupier tending to cut down charge or fetter his presumably absolute interest will be

receivable under this head."

(See Phipson on Evidence (8th ed.), p. 274.)

Far from making any admissions against interest, the appellants immediate vendors and their

predecessors-in-title, have held themselves out as owners in possession of the plot in dispute and

performed acts consistent with such ownership. In my opinion, the appellant has produced as

good evidence of his title to the plot as any one may in this country and should have been

adjudged the owner.