HOME UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2006

IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA A.D. 2006

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CORAM: AKUFFO (MS) (PRESIDING)

DR. DATE-BAH, J.S.C.

PROF. OCRAN, J.S.C.

ANSAH, J.S.C.

ANINAKWA, J.S.C.

CIVIL APPEAL

NO. J4/11/2005

1ST FEBRUARY 2006

GIHOC REFRIGERATION & HOUSEHOLD

PRODUCTS LTD. APPELLANT

VRS.

JEAN HANNA ASSI RESPONDENT

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JUDGMENT

AKUFFO (MS), J.S.C.

I have been fortunate to have had previous sight of the opinion about to be read by my learned brother Dr.
Date-Bah, JSC and I am in agreement with his conclusion that the substantive appeal must be dismissed. I
fully support his reasons leading to this conclusion. Unfortunately, however, I cannot agree with his
 conclusion regarding the Respondent’s cross-appeal. Rather, for the reasons stated in his dissenting
opinion on the matter, I join my esteemed brother Prof. Ocran JSC in the view that the cross appeal should
succeed. I, however, wish to express myself further on this aspect of the matter before us.

Throughout the trial of this matter, the Respondent’s original ownership of the property was never in any
serious question, and, therefore, once the trial judge found that the Appellant had never acquired any
adverse title to the same, it necessarily followed that the Respondent remained the owner thereof, since his
title had never been affected by the government’s confiscatory action and the Appellant’s occupation of the
land. Hence, the trial judge’s declaration of the Respondent’s title was in the nature of a consequential
relief, a verbalisation of a status that was necessarily implied by his findings.

It needs to be noted that of the issues set down for trial, issue 2 of the Additional Issues read as follows:-

“Whether or not the Defendant holds full legal title to the property in

question.”

Thus, in the course of the trial, the Respondent tendered, through the Appellant, without any objection,
various correspondence (exhibits 1 – 6), which overwhelmingly establish the Respondent’s title to the land
and the Respondent’s entitlement to immediate possession thereof. Additionally, the Respondent’s Land
Title Certificate no. GA 8570, issued by the Land Title Registry was placed into evidence as exhibit 8. Now,
Section 43(1) of the Land Title Registration Law, 1986

(PNDCL 152) stipulates that:-

“Subject to subsections (2), (3) and (4) of this section and section 48 of this Law, the rights of a registered
proprietor of land whether acquired on first registration or acquired subsequently for valuable consideration
or by an order of a Court, shall be indefeasible and shall be held by the proprietor together with all
privileges and appurtenances attaching thereto free from all other interests and claims whatsoever.”

(It is clear that the section and subsections to which this provision is made subject are inapplicable to the
facts of this matter).

The learned trial judge, therefore, held that the Respondent’s title was indefeasible. In these circumstances,
it is my respectful view that we would be stretching procedural technicality to the point of absurdity to
conclude that, just because counsel for the Respondent failed or neglected to include in the Statement of
Defence a counterclaim against the Appellant for a declaration of title and an order for recovery of
possession, the learned trial judge did not have the jurisdiction to grant, as he did, those reliefs to the
Respondent. Since the trial judge was properly seised of the action before him, and the defence raised
therein placed into issue the title of both parties to the subject matter in dispute, the learned trial judge had
the power to consider the title of both parties and award reliefs that naturally and logically flowed from his
findings; I am not aware of any statutory rule to the contrary.

Until the enactment of the Evidence Decree, 1975 (NRCD 323) conventional practice had crystallised into
a legal principle that a person seeking to recover land must do so by the strength of his case rather than the
weakness of the other person’s case. I, however, doubt that the necessary implication of this principle was
that a party must always bring her own suit or counterclaim to be able to succeed in her objective, even
when all the issues arising from such an objective form part of an action by the party against whom she
could have claimed or counterclaimed. In any event, it is also my respectful view that, there is no special
procedural magic in this principle; it was in fact nothing more than a rule of evidence, allocating the burden
of proof. As such, therefore, it has been overtaken by Part II of NRCD 323, the more relevant provisions of
which I wish to set out for ease of reference.

(1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a
requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or
non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of
the probabilities or by proof beyond a reasonable doubt….

(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to
introduce sufficient evidence to avoid a ruling against him on the issue….
(4) In other circumstances, (i.e. civil matters) the burden of producing evidence requires a party to
produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence
of the fact was more probable than its non-existence.

“12. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a
preponderance of probabilities

(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the
tribunal of fact or the court by which it is convinced that the existence of a fact is more probable
than its non-existence….

“14. Except as otherwise provided by law, unless and until it is shifted a party has the burden of
persuasion as to each fact the existence or non existence of which is essential to the claim or defence he is
asserting.”

(the exceptions referred to in these provisions are, clearly, not applicable to the matter at hand.

Since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof
(the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a
determination of whether or not the party with the burden of producing evidence on the issue has, on all the
evidence, satisfied the judge of the probable existence of the fact in issue (see Odametey v. Clocuh [1989-
90] 1 GLR, 14; Odonkor v. Amartei [1992-93] GBR 59, Tuakwa v. Bosom [2001-2002] SCGLR 61).
Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a
party on the preponderance of the probabilities ‘…rather than on an archaic principle which might not
accord with reason or common sense….’ (see Holding 2, Odonkor v. Amartei).

In the instant case, since the Respondent, in his Statement of Defence, claimed ownership of the land, he
bore the initial burden of persuasion on additional issue 2. As has been pointed out above, he successfully,
by the operation of PNDCL 152, carried that burden to the required standard that persuaded the learned
trial judge. Between the Respondent and the Appellant, I cannot, in the circumstances, see anything further,
or any additional evidence, that will be required from him to enable him establish his entitlement to a
declaration of title and an order for recovery of possession of the property.

Furthermore, I have combed through the rules of court applicable at the time of the High Court judgment
and have not come across any provisions that forbade the court from granting orders and reliefs that a party
(whether Plaintiff or Defendant) has not specifically claimed, where the evidence on record amply supports
such orders or reliefs. In my respectful opinion, the opposite is rather the case. Order 63 Rule 6 of the
former High Court (Civil Procedure) Rules read as follows:-

“Subject to particular rules, the Court may in all causes and matters 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.” (my emphases)

It is noteworthy that this provision speaks of ‘the person entitled to the benefit of the order’ rather than ‘the
Plaintiff or the claimant’. In my view, therefore, it is for the judge to determine whether, the order is justified
by all the evidence on record, for the purposes of doing justice. Unfortunately, it appears that, rather than
utilising the power to do justice granted by this rule, over the years, the power was parsimoniously applied,
and restrictive practices and principles, such as that under consideration herein, were allowed to hold sway,
thereby stultifying the capacity of the courts to assure effective justice. It is, therefore, heartening that the
policy behind this rule (i.e. to do all that is necessary to achieve justice between the parties) has been
reinforced and re-emphasised in clearer terms in Order 1 Rule 2 of the current rules, the High Court (Civil
Procedure) Rules, 2004 (C.I. 47) as follows:-

“These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid
delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between
parties may be completely, effectively and finally determined and multiplicity of proceedings
concerning any such matters avoided.”
I could not agree with my respected brothers in the majority on this issue, because to do so would militate
against the policy that motivated the enactment of the former Order 63(6), and which has been made more
patent in the current Order 1(2). In my respectful view, this provision (Order 1(2)) declares in no uncertain
terms, a paradigm shift from the way we have been applying the Civil Procedure Rules in the past. It is a
resounding affirmation of the oft-quoted statement by Collins, M.R. in In Re Coles and Ravenshear, [1907]
1 KB 1 that:-

‘… the relation of rules of practice to the work of justice is intended to be that of a handmaid rather
than mistress….’

Hence, the provision reflects a commitment to the objective of the ongoing judicial reform programme,
which is to assure access to quality justice through speedy, cost effective and efficient justice delivery
systems and practices. Unfortunately, the real outcome of the position taken by my brothers in the majority,
on this issue, is everything sought to be avoided under the current policy. Justice for the Respondent, and
an effectively final determination of all matters in dispute between the parties, have been postponed until he
brings another action for declaration of title and recovery of possession; the Respondent will be put to
unnecessary expense to establish a claim he has, to all practical intents and purposes, already established;
and there has been no effort to avoid a multiplicity of proceedings. In the circumstances, I fail to see what
ends of justice have been served by such an outcome.

S.A.B. AKUFFO (MS)

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 COURT

ANSAH, J.S.C.: I have had the privilege of reading beforehand, the opinion just read by the learned
Justice Dr. Date-Bah and I concur that the appeal be dismissed. I also agree with the reasons he gave for
arriving at his conclusion.

J. ANSAH

JUSTICE OF THE SUPREME COURT

ANINAKWA, JS.C.: I also agree.

R. T. ANINAKWA, J.S.C.
 JUSTICE OF THE SUPREME COURT

PROF. OCRAN, J.S.C.:

I adopt the facts of this case as presented by my learned brother Dr. Date-Bah and therefore make no
attempt to restate them.

I am also of the firm view that the appellant company never acquired title to the property because the
confiscation of the defendant/respondent’s business in 1979 and again in 1982 never included the land or
premises on which the enterprise conducted its business. Further, I am in complete agreement with Justice
Date-Bah’s opinion that no question of adverse possession by the plaintiff/appellant company arises
because it was in occupation of the land in question as a licensee. An occupant of land under licence is not
a trespasser; and the occupant cannot be a licensee of the rightful owner and simultaneously assert
adverse possession against that owner.

However, this conclusion does not by itself identify the grantor of that licence. The identification of the
grantor in this case has been hotly argued both at the Court of Appeal and in this Court. Like my brother
Date-Bah, I do not see how the appellant company could have been a licensee of the Government,
particularly in view of the letter of 29 May 1996 from the Chairman of the Confiscated Assets Committee to
the Executive Secretary of the Divestiture Implementation Committee (page 197 of the Record of Appeal),
which flatly stated that: ‘‘ the land and the buildings there known as Plot 19 North Industrial Area… for all
practical purposes was never confiscated…”

Therefore, I also dismiss the grounds of appeal urged on us by the Plaintiff/Appellant.

However, I take a different view of the matter when it comes to the defendant/respondent’s cross-appeal. I
take issue with the Court of Appeal’s position that it had no discretion to declare title in favour of the
defendant/respondent because that relief had not been specifically counterclaimed in the High Court.

The position taken on the cross-appeal in the opinion delivered by my learned brother not only reduces our
substantive holdings into a Pyrrhic victory for the Defendant/Respondent; but it may also mean that the
latter might have to return to court in a fresh suit to seek a formal declaration of title for self-protection in the
future as regards third parties. Such a position does not bode well for judicial economy and the need to
defuse unnecessary court litigation. It is the sort of judicial stiffness that we, as the final court of the land
charged with the administration of justice, should be hesitant to embrace.

It is crystal clear that at all material times in this litigation, title to Plot No. 19, North Industrial Area, remained
the essence of the controversy. We also know from the record that strong attempts were made to interfere
with the title of the defendant/respondent, first under a statutory color of law through AFRC Decree 31 and
PNDCL 30, and later by a claim of adverse possession by the plaintiff-appellant.

Given the position we have all taken on the substantive appeal as regards title to the land, and the
background threats to the Defendant/Respondent’s quiet enjoyment of his property, I wonder why we
should then shy away from a positive declaration of title in the latter’s favour. If we take away the issue of
title and the related matter of licence, there is virtually little else left to decide in this case. The core issue
sounds like a declaration of title; it smells like a declaration of title; it feels like a declaration of title; and it
looks like a declaration of title. Why not end our judgment with a declaration of title, unless there is a rule of
law specifically and unequivocally disallowing this course of action even at the level of the Supreme Court?
Is there actually a rule of procedure or substantive law that commands us to take the position that we
cannot positively declare title in favour of the Defendant/Respondent in the circumstances of this case? Or
is this conclusion merely the result of a preferred interpretation of certain precedents in our courts? If it be a
matter of interpretation, then I prefer an approach that avoids arid technicism of the sort that suffocates the
ends of justice.

My attention has been drawn to our procedural rules on counterclaims in the High Court (Civil Procedure)
Rules, 2004 (C.I. 14), and the equivalent provisions in the older Rules of 1954(L. N.140A).

Rule 1(1), Order 12 of the current rules states the essential purpose of counterclaims as providing an
option or facility to the defendant to make her own claim against the plaintiff in the context of the case
presented, instead of having to pursue the other available option of bringing a separate action on her own.
Where she decides to pursue the option of a counterclaim, Order 12 obliges her to follow the procedures in
Rule 1(2) as well as the rest of the procedures under Order 12. There is no rule in the said Order making
counterclaims a prerequisite to the grant of declarations of title or other appropriate reliefs sought in the
form of cross-appeals at the level of the Supreme Court, or even at the Court of Appeal.

At any rate, even at the trial level, the High Court Rules have maintained sufficient flexibility both in the old
and the new Rules of procedure to allow courts to make such orders dealing with the proceedings as it
considers just, or necessary for doing justice to the case. Now, we sit here, not as a trial court or even as a
first-level appellate court, but as a court of last resort to do justice. Under our Supreme Court Rules, Rule
23(3) empowers our Court in any civil appeal to make any order necessary for determining the real issue or
question in controversy between the parties. Furthermore, in a system where appeals are said to be in the
nature of a re-hearing, our inclination to make such a declaration in the face of an openly argued cross-
appeal is made even easier.

A few decided cases have been cited to us in support of the proposition that a cross-appeal seeking a
declaration of title cannot be upheld if the relief was not raised as a counterclaim at the trial court level.
Among the cases is Kannin v. Kumah & Others [(1959] GLR 54)], which involved a dispute in which a sale
of a house to a group of purchasers was challenged by a member of the original family owners on the
grounds that the sale was conducted without the knowledge and consent of other members of the owning
family. The trial court-Kumasi Magistrate Court B-found for the purchasers, and also declared them the
owners of the land, even though they as defendants had not made a counterclaim for declaration of title.
Because there was no counterclaim, the Court of Appeal set aside that part of the trial court judgment
decreeing ownership in the defendants/purchasers. It is worth noting that there was no cross-appeal at any
appellate level of the Kanin case-neither in the Asantehene’s Court B, the Land Court, nor the Court of
Appeal.

Thus by this decision, the Court of Appeal in 1959 introduced a rather doctrinaire proposition in our judicial
process that an oversight or possible mistake made by a defendant in the very first court— in this case a
court as rudimentary as the Kumasi Magistrate Court B as it stood in 1955—should stick with the
defendant, with no possibility of intervention or correction, even if this meant the denial of the only relief to
which the successful party was entitled in law.

At any rate, Kannin was a rather terse, one-and-a half- page judgment that made no attempt to explain the
reason for the denial of authority in an appellate court to declare title in the absence of a prior counterclaim
in the very first court; nor did it cite any rule of procedure demanding such a result. If the reason possibly
lies in the need to avoid surprise and to provide the other party the opportunity to respond to the
defendant’s claim, it is rather difficult to accept this as a justification in a situation where a matter has been
raised in cross-appeal and the issue squarely laid out in open court for argument. I am inclined to reject
Kannin as precedent because its application to the concrete facts of this case would provide a perfect
example of what I regard as unproductive and unhelpful technicism in the law.

I prefer the decision in Chahin and Another v. Boateng[1963] 2 GLR 174, a money lending and mortgage
case delivered by the Ghana Supreme Court four years after the Court of Appeal decision in Kannin. As in
Kannin, there was no counterclaim in Chahin. Yet in the latter case, the Supreme Court, relying on rules 31
and 32 of the 1962 Supreme Court Rules, made it clear that it had power to make any order necessary for
determining the real question in controversy in the appeal; and to give any judgment and make any order
that ought to have been made. Further, that such powers might be exercised by the Court notwithstanding
that the appellant may have asked that part only of a decision may be reversed or varied, or that such
respondents or parties may not have appealed from or complained of that decision. Based on these Rules,
the Supreme Court ruled on its own that the plaintiff-respondent was entitled to a declaration that the
defendant could not enforce the obligations arising out of the transaction in question, and that he was also
entitled unconditionally to an order for the delivery up of the mortgage deed for cancellation.

In the GIHOC case currently before us, it is worth noting that, even though we are not applying the 1962
Rules, the Respondent had actually raised the declaration of title in the form of cross-appeal. He had not
been silent about his intentions. Moreover, there are echoes of the 1962 Rules in our current Supreme
Court Rules [C.I. 16, 1966], already cited.

The 1971 Court of Appeal decision in Yeboa and Another v. Bofour [(1971) 2 GLR 199] has also been cited.
To my mind, this case contains the strongest argument for rejecting the holding in Kannin, and for
distancing myself from the position taken in the main opinion on the cross-appeal in the GIHOC case. Like
Chahin, Yeboa was a money lending case in which the plaintiff won at the trial court. The defendant made
an appeal, while the plaintiff cross-appealed against a section of the judgment dismissing the claim against
a third defendant who had purported to purchase the plaintiff’s mortgaged property at a public auction. A
preliminary objection had been raised against the cross-appeal on the ground that it was carelessly stated,
vague and utterly unintelligible, and that it did not conform to the mandatory provisions of the relevant
Supreme Court Rules.

Chief Justice Azu Crabbe, writing for the Court, rejected the preliminary objection in these words: “…I do
not think the third defendant has suffered, or will suffer, any substantial injustice by the plaintiff’s breach of
[Rule 8(4)…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…’’

In GIHOC, we have a defendant who has not only cross-appealed, but has done so in clear, concise and
intelligible terms, seeking a relief in the form of a declaration which appears to me to be the inevitable
byproduct of his victory in this court. In my view, the existence of such a cross-appeal, argued fully and
openly in the Statements before this Court, dealing with an issue that stands at the very core of this case,
does away with any unjust and unwelcome surprises that the absence of a counterclaim in a trial court
might otherwise have produced.

My Lords, permit me to refer to Collins, Master of the Rolls, in In Re Coles and Ravenshear [1907] 1 K.B. 1
at p.4, in my attempt to draw a distinction between technicism, which I totally reject as a judicial approach to
case resolution, and our collective fidelity to technicalities in the law, which is an inevitable part of any
mature legal system. Collins M.R. wrote: “ Although I agree that a Court cannot conduct its business without
a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that
of a handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are
after all only intended as a general rules of procedure, as to be compelled to do what will cause injustice in
the particular case.”

I am not aware of any technical rule which commands me to uphold cross-appeals only when preceded by
counterclaims in the trial court; I reject Kannin as baseless technicism; and I see the declaration of title
sought by the defendant in his cross-appeal as a sound and logical byproduct of our main decision on the
matters that lie at the core of the controversy in this case.

I therefore allow the cross-appeal and declare title in favour of the defendant/respondent.
 PROF. T. M. OCRAN

JUSTICE OF THE SUPREME COURT

COUNSEL:

Ahenkorah for Appellant Cross-Respondent.

Amegatcher with Mrs. Afarley Dadson, Edmond Foley and Mrs. Victoria Barth & Peter Okudzeto for
Respondent Cross Appellant.

gso*

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