THE 21ST CENTURY CONSTRUCTION LTD VRS. THE TRUSTEES OF THE SISTERS OF THE HOLY CROSS (E1/47/2021) [2024] GHAHC 473 (10 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON WEDNESDAY THE 10TH DAY OF JULY, 2024 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE. SUIT NO.: E1/47/2021 THE 21ST CENTURY CONSTRUCTION LTD - PLAINTIFF VRS THE TRUSTEES OF THE SISTERS - DEFENDANT OF THE HOLY CROSS _____________________________________________________________________ JUDGMENT The Plaintiff is a company registered under the laws of Ghana and a Real Estate Developer. The Plaintiff claims ownership to all that land described in paragraph four (4) of the further Amended Statement of Claim filed on 30th March, 2023. The Plaintiff states that there is an existing judgment against the grantor of the Defendant dated August 2015 and entitled Nana Abor Ewusie XIX vrs Kwame Botchway (Suit No. LS 44/90) on portions of Gomoa Fetteh Lands inclusive of the disputed land. The crux of the Plaintiff’s claim is that the Defendant has encroached upon a portion (16 acres) of its land located at Millenium City, near Kasoa. The Plaintiff’s case is that, as part of measures taken in protecting its land, it caused its lawyers to issue a Writ of Summons against the son of the grantor of the Registered Trustees of the Holy Cross (which is a sister institution to the Defendant) and four (4) others in respect of the disputed land. The Plaintiff subsequently obtained an injunction against them in respect of the disputed land. 1 The Plaintiff further states that, in the year 2012, it instituted an action against certain individuals who had encroached on portions of its large tract of land which includes the disputed land at High Court, Agona Swedru and eventually obtained an injunction against the said encroachers. In the light of the above injunctions granted in its favour in respect of its large tract of land (inclusive of the land in dispute), the Plaintiff contends that same negates the application of the principle of limitation in favour of the Defendant. The Plaintiff further states that neither the Defendant nor its predecessor have been in unchallenged, open and visible possession of the land in dispute. The Plaintiff states that the Registered Trustees of the Holy Cross of Ghana were able to develop nine (9) acres of land out of the sixteen (16) acres despite several injunctions in favour of the Plaintiff in respect of its larger tract of land inclusive of the disputed land due to the protection of land guards against the Plaintiff. The Plaintiff maintains that the development carried out on the land in dispute is without the authority and/or permission of the Plaintiff. The Defendant has refused to honour several invitations extended to it for negotiations towards the sale of the nine (9) acres of land to the Defendant. The Plaintiff states that apart from the nine (9) acres encroached upon by the Defendant, the Defendant has evinced clear intentions to encroach upon the remaining seven (7) acres of land. The Plaintiff therefore claims the following reliefs against the Defendant; a. Immediate vacation of nine (9) acres of land being occupied by the Defendant. b. An order to the Defendant to enter into immediate negotiations for the sale of the nine (9) acres already occupied by the Defendant. 2 c. Perpetual injunction to restrain the Defendant from entering unto the remaining seven (7) acres of land. d. Costs. e. Any other order(s) as the Honourable Court may deem fit. The Defendant, in its defence, states that the land on which has been constructed several structures is its bonafide property acquired in the year 2021 for valuable consideration and it does not require the permission of the Plaintiff to undertake any development thereon. The Defendant’s case is that in 1999, its sister institution, The Registered Trustees of Holy Cross Ghana approached the Patu Kona family of Gomoa Fetteh and commenced negotiations for the acquisition of a parcel of land. After conducting the necessary diligent searches confirming that the land was unencumbered and owned by its grantors, it finalised the acquisition on 16th October, 2001. A description of the land so acquired by the Registered Trustees of Holy Cross Ghana is as stated in paragraph 15 of the further amended Statement of Defence. The Registered Trustees of Holy Cross Ghana have been in open and uninterrupted possession of the land for so many years and the title of its grantor is also confirmed in a judgment of the High Court dated February, 1982 (Suit No. 64/78) in favour of Timothy Kwame Botchway. By virtue of the open, visible and unchallenged acts of ownership, possession, occupation, and use of the land by its predecessor in title and subsequently by the Defendant its self since 2001 to the date of the issuance of the Writ, the Defendant maintains that the Plaintiff is estopped by laches and acquiescence and also by limitation. The Defendant further state that if there are any defects in the title of its grantor, which is denied, the Defendant and its predecessor in title (which is The Registered Trustees of Holy Cross Ghana) are bona fide purchaser for value without notice. 3 According to the Defendant, on 8th March, 2019 the Registered Trustees of Holy Cross Ghana executed a Deed of Gift in its favour and the Defendant thereafter proceed to the Lands Commission, Cape Coast to register its interest in the land. However, the Lands Commission notified the Defendant that it was unable to proceed with registration since the land was affected by a recorded transaction in favour of the Plaintiff. It is the case of the Defendant that the purported recorded transaction affecting the Defendant’s land in favour of the Plaintiff could only have been procured by fraud. In respect of the fraud the Defendant avers that in light of the prior registration of the land in dispute by Timothy Kwame Botchway by virtue of the judgment in Suit No. 64/78, same could not be expunged from the records of the Lands Commission without an order of the Court. Further, the said Kwame Botchway and his successor were never informed of any valid court order requiring the Lands Commission to expunge his interest. Therefore, any purported registration in favour of the Plaintiff could only have been occurred as a result of fraudulent collusion between the Plaintiff and the Lands Commission. The Defendant therefore counterclaimed for the following reliefs: a. A declaration of title to all that land described in the further amended Statement of Defence, b. A declaration that the lease covering the property described and executed in favour of the Plaintiff is null and void, c. An order of perpetual injunction to restrain the Plaintiff whether by itself, servants, workmen, agents or otherwise from trespassing or dealing with or in any manner interfering with the Defendant’s ownership as well as possession of the land d. Any other reliefs consistent with the pleadings e. Cost on full indemnity basis not limited to lawyer’s fees. 4 Directions were taken on the 22nd day of July, 2021 and this Court, differently constituted, set down the sole issue of whether or not the disputed land belongs to the Plaintiff Company or the Defendant society as the issue for trial. In view of the various amendments to the pleadings of the parties I am of the considered view that the following issue also arises from the pleadings and deserves the consideration of the Court: a. Whether or not the registration carried out by the Plaintiff ought to be expunged from the records of the Lands Commission; b. Whether or not this instant action is caught by the Statute of Limitation, laches and acquiescence. Having identified the issues for trial, I proceed with a brief discussion to whom the burden of proof lies. It is trite learning a Court cannot reach a conclusion is a vacuum. There must be a justification for every conclusion a court reaches on a proper evaluation of the law and the evidence on record. Therefore, it is not enough for a Party to make bear assertions in court without proof. The law requires the categorical establishment of a fact a Party alleges, most especially, when same has been denied by his opponent. See ZABRAMA V SEGBEDZI (1991) 2 GLR 221. Failing to adduce such evidence as to convince a reasonable mind, such as this Court, would be detrimental to the case of the person who alleges as he risks judgment entered against him and his case dismissed. In civil litigation the threshold for proof is on the preponderance of the probabilities. This has been defined by section 12(2) of the Evidence Act, 1975 (N.R.C.D. 323) to be the certainty of belief in the mind of the Court by which it is convinced that existence of a fact is more probable than its non-existence. See ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728. 5 However, the threshold changes where a Party alleges the commission of a crime which is directly in issue. In this case, section 13(1) of the Evidence Act requires proof beyond reasonable doubt. Section 13(1) of the Evidence Act stipulates as follows: “In any civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” See also FENUKU V JOHN TEYE [2001-2002] SCGLR 985 and SASU BAMFO V SINTIM [2012] SCGLR 136; JANET TAGOE V ALFRED NII TETTEH [2016] 98 GMJ 125 at p.147-148, C.A. It is instructive to note that the onus of proof is not static but moves from one Party to another depending on what is asserted or alleged and by which of the contesting Parties. The burden shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the Plaintiff leads some evidence to prove his claim. See ABABIO V AKWASI IV (1994-95) GBR 774. In view of the above, the burden primarily rests on the Plaintiff to convince this Court that the facts he is alleging are more probable than that of the Defendant. The success of the Plaintiff’s case solely depends on whether or not he is able to satisfy the onus on him. This equally applies to the Defendant in respect of its counterclaim for a counterclaimant is as good as a Plaintiff and thus assumes the same position or burden as the Plaintiff in respect of the counterclaim. See JASS CO. LTD. V APPAU [2009] SCGLR 265. Moving on to the merits of this case, the fundamental issue is which of the Parties own the land in dispute? Whiles the Plaintiff claims the land in dispute 6 forms part of a larger tract of land in its name, the Defendant alleges otherwise. The identity and/or boundaries of the land in dispute is not really in issue in this case. Although the Plaintiff does not expressly pray for a declaration of title in its Writ of Summons and further amended Statement of Claim, I am of the opinion that it is entitled to the reliefs contained therein upon satisfying this Court of its ownership to the land in dispute. The law is settled that in an action for declaration of title to land, a Party claiming this relief must prove, on the preponderance of probabilities, his acquisition either by purchase or traditional evidence, clear or positive acts of unchallenged and sustained possession or substantial user of the disputed land. See SAMUEL MENSAH v. CHRISTOPHER KWABLALIGBIDI [2014] 77 GMJ 157. The principle is stated much clearer by the Supreme Court in the case of MONDIAL VENEER (GH) LTD. V. AMUAH GYEBU XV [2011] 1 SCGLR 466 where the Supreme Court held that “In land litigation, even where living witnesses, directly involved in the transaction, had been produced in court as witnesses, the law would require the person asserting title and on whom bore the burden of persuasion... to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It was only where the party had succeeded in establishing those facts, on the balance of probabilities, that the party would be entitled to the claim”. In support of the Plaintiff’s case, Baba Alhaji Ibrahim stated in his Witness Statement filed on 13th December, 2021 that the sixteen (16) acres of land (subject matter of this suit) encroached by the Defendant forms part of the Plaintiff’s large tract of land which was acquired by Nana Abor Ewusie XIX in 1997. The 7 indenture evidencing the transaction between the said Nana Abor Ewusie XIX and the Plaintiff is in evidence as EXHIBIT A. Per Exhibit A, it is clear that the Plaintiff acquired over 400 acres of land. The Plaintiff’s witness further tendered in evidence a search conducted on 13th October, 2021 as EXHIBIT B which clearly states that the land edged red on the plan attached to the search falls within a lease dated 1st April, 1997 in favour of the Plaintiff. This clearly establishes the mode of acquisition of the Plaintiff land which, he maintains, includes the land in dispute. As evidence of acts of possession or ownership, the Plaintiff’s witness further stated that after acquiring the large tract of land inclusive of the 16 acres, the Plaintiff took immediate possession and control by spending millions of Ghana Cedis to establish its boundaries. The demarcated the land into sectors and grades and put up a layout for its estate housing project as per EXHIBIT C. Baba Alhaji Ibrahim again stated that the Plaintiff enjoyed the land peacefully until recently the Defendant resurfaced from nowhere to challenge the title of the Plaintiff. As further evidence of possession or ownership to the Plaintiff’s large tracts of land, Baba Alhaji Ibrahim in his Supplementary Witness Statement filed on 27th June, 2022 stated that the Plaintiff after the acquisition of the land has done its best in protecting the land from encroachers. He tendered in evidence, a Writ of Summons issued against, inter alia, the son of the Defendant’s grantor as EXHIBIT F. Also in evidence are an order of interim injunction against, inter alia, the son of the Defendant’s grantor, as EXHIBIT G, writ against certain some encroachers as EXHIBIT H, an injunction against the said encroachers as EXHIBIT I and J. It is interesting to note that at the time of the aforementioned suits and orders for injunctions, the evidence clearly establishes that the Defendant’s sister 8 institution, Registered Trustees of the Holy Cross, had overtly demonstrated that it owns the land in dispute and evidence in this regard would be shortly evaluated. For reasons known best to the Plaintiff, the Defendant nor its sister institution were never made Parties to the said suits and neither was any order of injunction directed against them. It is to be noted that an order of injunction acts in personam and it directly affects the person(s) against whom it is made and not the whole world. Further, there is no evidence before this Court that the aforementioned suit and orders of injunction relates to the land in dispute. The basis of this finding is that EXHIBIT F does not contain a description of the property which was the subject matter of the suit. This notwithstanding, from the Plaintiff’s Exhibit F, it can be gleaned that the subject matter of the suit was grants made by Nana Abor Ewusi XIX and his elders by leases dated 5th July, 1996, 28th July, 1997 and 11th August, 1997. It is further clear from Exhibit F that the Plaintiff herein, who was the 1st Plaintiff in Exhibit F, relied on a lease dated 10th March, 1996 which clearly is not Exhibit A (which is the Plaintiff’s indenture dated 1st April, 1997 herein). As stated supra, at the time of the aforementioned suits and orders for injunctions, the evidence clearly establishes that the Defendant’s sister institution, Registered Trustees of the Holy Cross, was on the land in dispute and had overtly demonstrated that it owns the land in dispute. From the testimony of Brother Michael Amakyi (D.W. 1), the Trustees of the Holy Cross in the year 2001 concluded the acquisition of the land in dispute which is approximately 15.22 acres from the Patu Kona Family of Gomoa Fetteh at Nyame Nadom. The purchase of the land was done after all the necessary searches had been conducted both at the site and at the Lands Commission, Cape Coast to confirm that the land in dispute was vacant and was not affected 9 by any recorded transaction in favour of a third Party. D.W. 1 tendered in evidence a copy of a letter from the Lands Commission and a search report confirming the ownership of Nyame Nadam lands in favour of their grantor as EXHIBIT 1B series. D.W. 1 further stated that the Trustees of the Holy Cross took immediate possession of the acquired land, cleared the land, erected concrete pillars and barbed wire fenced the entire land to the notice of all and sundry. In support of his testimony, D.W.1 tendered in evidence pictures of the land clearing, erection of concrete pillars and barbed wire fencing as EXHIBIT 3 series. A picture of the sod cutting ceremony in also in evidence as EXHIBIT 4. Pictures of the construction are also in evidence as EXHIBIT 5 series. D.W. 1 again stated that the Trustees of the Holy Cross has so far wall-fenced the entire land, erected a Convent, Boarding School Facilities, basketball court, school playground, among others on the acquired and have been in effective possession of the land without any challenge from any quarters, be it the Plaintiff or his grantor since 2001 until the issuance of the Writ of Summons in 2021, about twenty (20) years of effective possession. Although the pictures of the development bore no dates on them D.W.1 categorically stated in cross-examination that the Exhibit 4 was taken as far back as 2001. The following ensued during cross-examination on 26th March, 2024: Q: Take a look at your Exhibit 4, there is a picture of individuals, you will agree with me it is an undeveloped land? A: The picture was taken in 2001 when we took possession of the land and depicts a ground breaking ceremony to commence construction. The testimony of D.W. 1 is corroborated by Sister Martina Dery (D.W.2). D.W. 2, confirmed that the Registered Trustees of the Holy Cross had been in 10 possession of the land since 2001. The following ensued during cross- examination of D.W.2 on 21st May, 2024: Q: I am putting it to you that it is not true that the Defendant and his predecessor had been in an unchallenged, opened and visible possession of the disputed land? A: We have been on it since the acquisition of the land and there has been no challenge Q: Tell this court when the Holy Cross of Ghana took possession of the disputed land? A: 2001. Q: You will agree with me that there are several portions of the disputed land not developed by the Holy Cross of Ghana? A: All the portions of the land has been developed. First a convent was built after the fencing of the wall we commenced with concrete pillars, a school built, a basketball court, playground, dormitories and school dining hall. The testimony of Baba Alhaji Ibrahim under cross-examination supports the evidence of the Defendant that the development of the land was done overtly and to the notice of all and sundry. The following ensued during cross- examination on 17th July, 2023: Q: You are aware that the disputed land has a fence wall around its length and breadth? A: Yes. It was wire mesh. It is on now concrete blocks. Q: You are also aware that the Defendant has constructed various structures on the disputed lands? 11 A: There was an old structure but went ahead to construct a new one. Q: What do you mean by old structure? A: No it’s not old. It’s a tarazo house. Q: Have you had an opportunity to enter the premises of the Defendant to order any Surveyor to work on the premises? A: Yes. Q: Your evidence that the Defendant has constructed school building on 9 acres of 16 acres of the disputed land is false? A It is true Clearly, from the above, the Plaintiff had been in the know of the development of the land in dispute but never did the Plaintiff commence any suit against the Registered Trustees of the Holy Cross. There is no evidence of a challenge or confrontation by the Plaintiff for the land in dispute. From the evidence, the Plaintiff had from 2008 commenced actions against trespassers and was successful in obtaining interim injunction against such trespassers. The only logical inference I draw from the failure to challenge the ownership of the Registered Trustees of the Holy Cross is that the Plaintiff acknowledged the ownership of the Registered Trustees of the Holy Cross to the land in dispute. On the balance of the probabilities, I am satisfied that the Registered Trustees of the Holy Cross had been in quiet and peaceful possession of the land in dispute from 2001 until the institution of this instant action on 8th February, 2021. I am more convinced of the ownership of the Defendant to the land in dispute. The Defendant has led cogent evidence of possession and/or ownership to the land in dispute and thus makes its claim of ownership more probable than that of the Plaintiff’s. 12 Granted that the above finding of ownership has not been made, the cogent evidence of possession by the Registered Trustees of the Holy Cross clearly invokes the application of the presumption of ownership under section 48 of the Evidence Act which provides as follows: (1) The thing which a person possesses are presumed to be owned by him. (2) A person who exercises act of ownership over property is presumed to be the owner of it. By this provision, possession bespeaks ownership and the law presumes a person in possession of a property or who exercises acts of ownership in respect of the property as the owner thereof. The application of section 48 of the Evidence Act in favour of the Defendant therefore puts the onus to the Plaintiff to rebut same. This is supported by section 20 of the Evidence Act which provides thus; A rebuttable presumption imposes upon the party against whom it operates the burden of producing evidence and the burden of persuasion as to the non- existence of the presumed fact. I have thoroughly combed through the record and I find no evidence in rebuttal to the presumed fact of ownership. Therefore, I hold that the Registered Trustees duly had title to transfer the land in dispute to the Defendant. Consequently, I find the Defendant as the owner of the land in dispute. In addressing the issue of whether or not the registration carried out by the Plaintiff ought to be expunged from the records of the Lands Commission, the evidence clearly establishes that unlike the Defendant, the Plaintiff has not adduced positive evidence of possession or ownership over the land in dispute save for the registration of the land and the various suit commenced by the 13 Plaintiff. It is worth stating that the mere fact of registration of the land in dispute by the Plaintiff did not confer a state guaranteed title. See AMUZU V OKLIKAH (1998-99) SCGLR 141. It is also common learning that the mere fact of registration does not dispense with the equitable doctrine of fraud and notice. See AMUZU V OKLIKAH supra; WESTERN HARDWOOD ENTERPRISE LTD & ANOTHER V WEST AFRICAN ENTERPRISES LTD (1998-99) SCGLR 105. Further, in the unreported case of ROSINA ARYEE V SHELL GHANA LTD & FRAGA OIL (CIVIL APPEAL NO. J4/3/2015) DATED 22ND OCTOBER, 2015 (DELIVERED BY THE SUPREME COURT), the Supreme Court further held that notice does not mean only notice of registration of the title but also notice of possession by the first purchaser, grantee or lessee or their agent as the case may be. In this instant case, the evidence establishes a prior registration of the land in dispute by the Registered Trustees of the Holy Cross. This is clear on the face of the Defendant’s indenture (Exhibit 1A). From Exhibit 1A, the land in dispute was registered in favour of the Registered Trustees of the Holy Cross in 2003 with registration number 1514/4/2003. On the other hand, the Plaintiff’s indenture (Exhibit A) was presented for registration and same was registered in the year 2008 (that is, five years after the registration by the Registered Trustees of the Holy Cross). Within this period, as already established in this case, the Defendant had abundantly exercised overt acts of ownership over the land in dispute. Clearly, the Plaintiff had notice of the possession of the Registered Trustees of the Holy Cross and Defendant and also by operation of law, had notice of the earlier registration by the Registered Trustees of the Holy Cross. Section 25(1) 14 of the Repealed Land Registry Act, 1962, (Act 122) which was the applicable enactment at the time of registration provides as follows: 25. Registration to be actual notice (1) The registration of an instrument constitutes actual notice of the instrument, and of the fact of registration to all persons and for all purposes, as from the date of the registration, unless otherwise provided in an enactment. This is in accordance with the equitable maxim to the effect that where the equities are equal, the first in time prevails. By application of law, the registration of the Plaintiff done in 2008 cannot take precedence over the earlier registration done by the Registered Trustees of the Holy Cross. The Lands Commission ought to have refused the Plaintiff’s registration of the entire land alienated to the Plaintiff on the ground that the disputed land had already been registered in the name of the Registered Trustees of the Holy Cross. Section 20 of the repealed Land Registry Act gives a Registrar the discretion to refuse registration of lands on the grounds stated therein. For the purposes of this judgment, section 20 of the Land Registry Act is reproduced as follows: A registrar may, subject to sections 21, 22 and 23 refuse to register an instrument affecting a particular land if: a. the registrar is satisfied that the instrument deals with the land or part of it in a manner inconsistent with an instrument previously executed, whether by the same grantor or a predecessor in title or by any other person, or b. on the face of the records, the grantor does not appear to be entitled to deal with the land as the instrument purports to do, or 15 c. the instrument is made in contravention of, or is void by virtue of, an enactment or d. it contains an interlineation, a blank, an erasure or alteration not verified by the signatures or initials of the persons executing the instrument. On account of the above, I am of the considered opinion that the registration done in favour of the Plaintiff is erroneous in so far as the Plaintiff’s instrument deals with the disputed land already registered in favour of the Registered Trustees of the Holy Cross. There cannot be two registrations in the name of two different persons at a time. By virtue of the prior registration by the Registered Trustees of the Holy Cross, any search in respect of the land in dispute should have revealed the interest of the Registered Trustees of the Holy Cross. This, by virtue of section 20(a) of the Land Registry Act, should have been an impediment to the subsequent registration of the instrument of the Plaintiff. Therefore, the said registration of the Plaintiff’s indenture to include the land in dispute, duly registered by the Registered Trustees of the Holy Cross is erroneous and same ought to be expunged from the records of the Lands Commission. This leaves me with the final issue of whether or not the Plaintiff acquiesced to the Registered Trustees of the Holy Cross’ ownership of the land in dispute thus the instant action is caught by the Statute of Limitation, laches and acquiescence. The 9th Edition of the Black’s Law Dictionary defines acquiescence as a person’s tacit or passive acceptance; implied consent to an act. Laches is also defined as the unreasonable delay in pursuing a right or claim - almost always an equitable one – in a way that prejudices the party against whom relief is sought. Basically, 16 the doctrine of laches and acquiescence is invoked to protect a Party against one who has stood by and allowed another to exercise overt acts of ownership over the property of the former and to his knowledge. Equity, indeed, aids the vigilant and not the indolent. It is instructive to note that the equitable doctrine of laches and acquiescence can be invoked even when the statutory twelve (12) years stipulated in section 10(1) of the Limitation Act, 1972 (N.R.C.D. 54) has not elapsed for the Act to apply. The case in point is the Court of Appeal case of MORGAN KWAME OPOKU V AKOSUA OSAA (CIVIL APPEAL NO. H1/214/2018) DATED 21ST MARCH, 2019. To be entitled protection under this doctrine, the following conditions must be satisfied: a. The person who enters upon another’s land must have done so in honest but erroneous belief that he has the right to do so; b. He should have expended some considerable sums of money in the development of the land upon the faith of his mistaken belief; c. The actual owner must be aware of this person’s entry upon the land and his mistaken belief which is inconsistent with his ownership; d. The owner must by his silence or otherwise have fraudulently encouraged the other party to spend his money to develop the land by not calling his attention to the error. See NII BOI V ADU [1964] GLR 410 SC; ERNESTINA FRIMPONG V MR. BINEY & ANOR (CIVIL APPEAL NO. J4/24/2015) DATED 11TH MAY, 2016 (DELIVERED BY THE SUPREME COURT). In the case of GOLIGHTLY AND OTHERS V VANDERPUYE [1961] 2 GLR 716-720, the Court quoted with approval a passage on this subject contained in 17 Spencer Bower on Estoppel by Representation page 61, section 4, para. 77 as follows: “Where a person, having a title, right or claim to property of any kind perceives that another person is innocently, and in ignorance, conducting himself with reference to the property in a manner inconsistent with such title, right, or claim, it is the duty of the former to undeceive the other party forthwith; if he omits to do so, and if all the other conditions of a valid estoppel are satisfied, he is precluded from exercising or asserting his right or title or claim as against such other party on any subsequent occasion. In such cases, the law follows the language of the Church in the Marriage Service,—‘let him now speak, or else hereafter for ever hold his peace,’—and regards the absence of notice or protest as a representation of the absence of the right, title, or interest which should have been the subject of such notice or protest. The same consequence follows the suppression of any incumbrance, charge, or lien, which the party may have on the property”. Assuming the title of the Registered Trustees of the Holy Cross to the land in dispute was defective by virtue of the Plaintiff’s EXHIBIT E which is a judgment against Kwame Botwe, there is cogent evidence on record that the Registered Trustees of the Holy Cross, as prudent purchasers, conducted due diligence into the title of its grantor and all necessary inquiries proved their grantor as the owner of the land in dispute. From the testimony of Brother Michael Amakyi, the acquisition of the land was concluded after all necessary searches had been conducted at both at the site and at the Lands Commission to confirm that the land in dispute was not affected by any recorded transaction. EXHIBIT 1B series is, to this effect, in evidence. From the letter dated 22nd June 2001 from the Lands Commission and titled NYAME NADOM LAND AT GOMOA FETTEH, the Lands Commission 18 clearly confirmed the title of the grantor of the Registered Trustees of the Holy Cross as follows: “In accordance with the decision of the Cape Coast High Court (on 10th July, 2000) which quashed the conviction of Ebusuapanyin T.K. Botchwey, the Commission directed that your client’s title to the 640 acre parcel of land be restored in our records.” There is also a search report dated 3rd July, 2001 and addressed to Timothy Kwame Botchwey, Gomoa Fetteh which clearly confirmed his ownership of the land in dispute. The Registered Trustees of the Holy Cross therefore proved itself to be a prudent buyer. The evidence establishes the Registered Trustees of the Holy Cross as a bona fide purchaser of the land in dispute without any notice of defect. As established above, the Registered Trustees of the Holy Cross exercised overt acts of ownership to the knowledge of the Plaintiff from 2001 until the institution of this instant suit in 2021 with no evidence of opposition from the Plaintiff within this period. Applying the authorities on the equitable doctrine of acquiescence and laches to this instant case, the Plaintiff clearly acquiesced to the ownership of the Registered Trustees of the Holy Cross. The Plaintiff, knowing very well that the land in dispute forms part of its larger tract of land stood by for the Registered Trustees of the Holy Cross to develop same only to drag them to court after substantial development has been made. Granted that the land in dispute belongs to the Plaintiff the evidence is clear that the Registered Trustees of the Holy Cross entered the land in 2001 in the honest but erroneous believe that it is the beneficial owner of same. The Registered Trustees of the Holy Cross, in reliance of this honest believe, has expended considerable sums of money in the development of the land. The 19 Registered Trustees of the Holy Cross had built a convent, concrete pillars, a school, basketball court, playground, dormitories and a school dining hall. The Plaintiff, being aware of activities of the Registered Trustees of the Holy Cross, never challenged nor demonstrated any opposition to the adverse possession by the Registered Trustees of the Holy Cross at the initial stages of the developments. The Plaintiff had cause to issue Writ of Summons against several encroachers from the year 2008 but never did the Plaintiff challenge the possession of the Registered Trustees of the Holy Cross until the commencement of this suit. Therefore, the Plaintiff by its silence had fraudulently encouraged the Registered Trustees of the Holy Cross to spend money to develop the land. On this basis, the Plaintiff’s action is defeated by the principle of acquiescence and laches. Further, in light of the overt acts of ownership exercised by the Registered Trustees of the Holy Cross contrary to interests of the Plaintiff, if any, this action is statute barred by virtue of section 10(1) of the Limitation Act which proscribes the commencement of an action for recovery of possession of land after twelve (12) years of adverse possession. In this instant case, the Registered Trustees of the Holy Cross had, at the time of the execution of the Deed of Gift in favour of the Defendant, been in occupation of the land for eighteen (18) years. In effect, the interest of the Plaintiff, if any, was extinguished by the adverse possession of the Registered Trustees of the Holy Cross. On totality of the evidence adduced and for the foregoing reasons, I am satisfied the Defendant owns the land in dispute as it obtained good title from the Registered Trustees of the Holy Cross. The evidence adduced by the Plaintiff, in my view, did not meet the threshold of proof. According the Plaintiff’s case fails. Judgment is hereby entered in favour of the Defendant on its 20 counterclaim. The Defendant is declared the owner of all that land described in paragraph 15 of the further amended Statement of Defence. The Plaintiff, its servants, workmen, agents and all claiming through or under it are hereby perpetually restrained form dealing with or in any manner interfering with the Defendant’s ownership of the land in dispute. Cost of GH₵15,000.00 is awarded in favour of the Defendant against the Plaintiff. (SGD) BERNARD BENTIL J. [HIGH COURT JUDGE] COUNSEL: ISAAC AGGREY-FYNN ESQ. FOR THE PLAINTIFF. PHILIP YOUNG ESQ. FOR THE DEFENDANT. 21