Adverse Possession: A Modern Outlook

Introduction

Land ownership and possessory rights have always been contentious issues for land law practitioners, and the concept of adverse possession adds a new layer of complexity to these old-age issues. In the words of one researcher, “It would appear that in the arena of problematic doctrines of law, adverse possession carries the trophy in the property law category.”^[1] The adverse possession doctrine posits that where a person enters another person’s land, without that other person’s permission and resides therein continually for a period stipulated by law, they acquire an interest in that land, potent enough to strip the cloak of ownership from the owner and to vest it in themselves.^[2]

In this comprehensive exploration, we delve deeply into the intricate realms of adverse possession, shedding light on the multifaceted aspects of land ownership, property right, and the interplay of legal dynamics.

Adverse possession, a legal concept with deep historical roots, has undeniably undergone significant transformations across the world, with Ghana being no exception. Accordingly, much ink has been spilled into providing valuable insights into its modern application and changing landscape under Ghanaian jurisprudence. In aspects where the courts are in agreement, the law is espoused in definitive terms, while in areas where controversy still abounds, the writer stops at proffering an opinion, so as not to fall into the temptation of making authoritative pronouncements on matters not yet settled by the courts.

Historical Background 

The origin of the doctrine of “adverse possession” cannot be stated with arithmetical precision. Historians believe that it is surrounded by a “historical tag.” It has sometimes been told that the first known codification of adverse possession appeared in the Code of Hammurabi around 2000 BCE. 

Law 30 of the Code stated, “If a chieftain or a man leaves his house, garden, and field … and someone else takes possession of his house, garden, or field and uses it for three years: if the first owner returns and claims this house, garden, and field, it shall not be given to him, but he who has taken possession of it and used shall continue to use it.” As with the modern adaptation of adverse possession, Hammurabi’s Code has exceptions to the rule: a soldier captured or killed in battle and a case of juvenile son of a land owner. Of the 282 rules, three deal directly with the concept of adverse possession.^[3]

In England, the concept was first introduced around 1275 and by 1623 a statute of limitation had been enacted to allow persons in possession of properties for 20 years or more to acquire title to that property. The doctrine emerged to prevent wastage of land by forcing the owner to either develop or monitor the property or suffer the consequence of losing title to it. 

Adverse possession is not a concept which the common law can proudly boast monopoly of. It is a cardinal principle in the property law of other legal systems, known in most civil law jurisdictions^[4] as “usucapione” otherwise called “acquisitive prescription”^[5]. According to Jennifer Hiatt,^[6] the entire Europe (which is predominantly civil law countries) has doctrines similar to adverse possession. The main thread which runs through the concept in the various jurisdictions is signified by the acronym – OCEAN; that is, the possessor must hold the land Openly, Continuously, Exclusively, Adversely and Notoriously to the interest of the land owner for the statutorily defined time period. 

The commonality of the concept notwithstanding, the limitation period required by law before a valid adverse possession of a land can be deemed to have been properly exercised to rout the original owner’s title varies from country to country. In France^[7] and Germany,^[8] the limitation period is fixed at 30 years, while in Sweden^[9] it is 20 years. India has two categories, 12 years for private properties and 30 years for government-owned lands. In some jurisdictions like Spain,^[10]different years apply for adverse possession acquired in good faith and those acquired in bad faith. Netherland law^[11] has as an example, a 10 year period for good faith possessors and a 20 year period for persons who possess the land in bad faith; Poland^[12] has 20 years and 30 years for good faith and bad faith possessors respectively.

In jurisdictions such as New Zealand,^[13] the determinant factors are whether the land is registered and whether it is owned by the Crown. In the case of registered private lands, the limitation period is 12 years and if it is not registered, 20 years applies. Where the action is brought by the Crown, the period is 60 years. On the contrary, public lands are not affected by adverse possession. Texas and California in the United States have limitation periods as short as 3 and 5 years respectively.

How the Law on Adverse Possession has Changed in Ghana Over Time

The concept of adverse possession was first introduced by legislation in Ghana in 1972, courtesy the Limitation Act, 1972 (NRCD 54). Prior to that, the English Limitation Act of 1623 applied as a statute of general application, but the courts did not apply its provisions to customary law transactions.^[14] The common law doctrine of laches and acquiescence were sometimes relied upon by the courts to resist stale claims.^[15] It is worth stressing the point that the Limitation Act has been in force in Ghana for over half of a century, and there has not been any significant amendment or repeal. Nevertheless, there seems to be a disharmony in its application in the past two decades. It may appear that the modern outlook of the concept of adverse possession materially crystallized in the case of Binga Dugbartey Sarpor v. Ekow Bosomprah.^[16]

This part of the paper takes a journey into the concept and presents its present disposition.

1. The Squatter’s Right to Rely on Limitation or Adverse possession 

One viewpoint that is collectively shared in property law by both common law and civil law jurists is the fact that adverse possession revolves around the squatter whose long occupation on a land ousts the title of the original owner.

Unsurprisingly, adverse possession at common law is colloquially called “the squatter’s right”.^[17] In Fairweather v. St. Marylebone Property Co. Ltd,^[18] Lord Denning stated the law as follows: “… [i] f a squatter wrongfully encloses a bit of wasteland 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 (deprived or dispossessed).” Denning’s use of the word “squatter” in the decision was not fortuitous, but intentional.

Looking back over the years, it could be observed that Ghanaian judges and textbook writers have often expressed their admiration for the proposition of the law on adverse possession by English judges, not overlooking the centrality of the role of the squatter. For instance, Atuguba JSC in Djin v. Musa Baako^[19] proudly embraced the dictum of Sir John Pennycuick in Treloar v. Nute^[20] by holding thus: “The law, as we understand it … is that if a squatter takes possession of land belonging to another and remains in possession for 12 years to the exclusion of the owner, that represents adverse possession and accordingly at the end of the 12 years the title of the owner is extinguished.”

In Adjetey Adjei & Ors. v. Nmai Boi & Ors.^[21], the Supreme Court speaking through Sophia Akuffo JSC (as she then was) held in like terms at holding (2) of the headnotes thus: “If a squatter took possession of land belonging to another and remained in possession for twelve years to the exclusion of the owner, that would represent adverse possession and, accordingly, at the end of twelve years, the title of the owner would be extinguished.”

Their Lordships in GIHOC Refrigeration & Household Products Ltd. v. Hanna Assi^[22] held that a squatter may eventually acquire an actionable and enforceable interest in land. On his part, the learned judge and author, Sir Dennis Adjei at page 255 of his book, Land Law, Practice and Conveyancing in Ghana, Third Edition discusses the possibility of a squatter benefitting from the Limitation Act thus: “A squatter who claims his title through the Limitation Act NRCD 54 may bring an action against the person whose interest has devolved unto him to transfer his unexpired interest in the land to him.” 

His Lordship Nana Yeboah Kodieh a.k.a. Justice Yaw Oppong J.A. in his book, “Contemporary Trends in the Law of Immovable Property”^[23] describes the Limitation Act which gives right to the stranger as “the Squatter’s Darling”, underscoring: “The title conferred by the Limitation Act is prescriptive and is usually conferred on squatters who obviously cannot and would not apply for a building permit as their initial entry on the land is by way of trespass. Until by length of time the Limitation Act shall have confirmed his title, the squatter may be turned out by legal process.”

However, in 2018, the Supreme Court through Pwamang JSC made serious incursions into the law when he drew a sharp distinction between squatters and trespassers in Amidu and Another v. Alawiya and Others,^[24] thus: “The difference in law between a squatter and a trespasser is that whereas a trespasser enters onto a land and claims an interest in it that is inconsistent with the rights of the true owner, a squatter does not claim any interest in the land he is in occupation of.” As clouds that thunder do not always rain, so it is, in their Lordships’ view, that not everyone who enters on a land, does so with the intention of owning it. Hence, their Lordships authoritatively pronounced thus “Therefore possession by a squatter is not adverse to the title of the true owner so a squatter cannot succeed on a defence of limitation.” 

Short of saying that it was departing from its previous decisions by Atuguba JSC and Sophia Akuffo JSC (as she then was) in Klu v. Konadu^[25] and Adjetey Adjei v. Nmai Boi^[26] respectively, His Lordship Kulendi reviewed the two cases in the light of His Lordship Pwamang’s new formulation in the case of Binga Dugbartey Sarpor v. Ekow Bosomprah^[27] and held thus: “It is worthy of note that the plea of adverse possession and the defense of limitation does (sic) not avail a squatter who lays no claim or a licence, but only someone whose claim of possessory title in the land is adverse to that of the true owner.”

Barely a year after their Lordships’ decision in Binga Dugbartey Sarpor case supra, my brother, Kwasi Anokye Gyimah J., decided in Madam Theresa Awuah v. Ben Nyarko and Another^[28] that “The position of the law is that adverse possession arises where a trespasser or a squatter stays on a land and exercises rights that are inconsistent with the rightful owner’s rights for a continuous period of twelve years.” It may seem that on that occasion the learned High Court judge was restating the law in its old shape when he discussed the principle of adverse possession in terms of the squatter. In reality, it was just a matter of time for him to be vindicated. 

Two years later in Ogyeedum Obranu Kwesi Atta VI v. Ghana Telecommunications Co Ltd. & Another,^[29] the Apex Court did not only rely on the old proposition of the law enunciated by Sophia Akuffo JSC in Adjetey Adjei & Others v. Nmai Boi and Others supra, but ensured that emphasis was placed on the squatter thus: “If a squatter took possession of land belonging to another and remained in possession for twelve years to the exclusion of the owner, that would represent adverse possession and, accordingly at the end of the twelve years, the title of the owner would be extinguished.” 

It is worth commenting, respectfully, that Kulendi JSC who, in Bingo Dugbartey Sarpor v. Ekow Bosomprah^[30] lent support to Pwamang’s previous legal revolution of not recognizing the squatter as an adverse possessor was on the Ogyeedom v. Ghana Telecommunications Co Ltd. & Another ^[31] panel together with Prof Kotey JSC and Owusu JSC who delivered the latter decision on behalf of the panel.

After the Ogyeedom decision, the law on squatters’ right was somehow thrown into dubiety. The Court of Appeal panel sitting in Kumasi in the case of Rahinatu Mohammed v. Akatari Azingya & Another^[32] took a “smart decision” to avoid any trouble when they were called to duty. Therefore, their Lordships adopted what seemed like the “do before complain” mantra in the military establishment, by abiding by what they perceived to be the Supreme Court’s current construction of the law. Her Ladyship Angelina Mensah-Homiah (Mrs) J.A. in delivering the Court’s unanimous decision said thus “It has been held that … squatters cannot be in adverse possession because they do not exercise rights inconsistent with the interest of the legal owner.”   

• Caretakers and Licensees’ Right to Assert Adverse Possession 

The law seems to be that where a person entered on a land with the permission of the land owner and subsequently put up a claim inconsistent with the title of the land owner for a period of twelve years, he could lay a claim of adverse possession against the land owner who authorized him to first enter the land. 

Dennis Adjei at page 254 supra highlights: The limitation period operates only where a person is in adverse possession of the land and not where he was a licensee or was authorized by the owner of the land to occupy it.”

While the learned land law experts, BJ Da Rocha and CHK Lodoh, both of blessed memory, in their book, Ghana Land Law and Conveyancing, Second Edition partially agree with His Lordship Dennis Adjei’s position, they however did not rule out the possibility of a licensee transmogrifying into an adverse possessor. 

At page 315, they surmised thus: “… In general, occupation or user of land which is expressly or impliedly authorized or approved by the true owner cannot amount to adverse possession so long as the occupant does not challenge the title of the true owner. If, however, a person who goes into possession with the approval of and by the authority of the true owner does anything or uses the land in a manner which is not consistent with the terms under which he has gone into possession, this may amount to a challenge of the true owner’s title. Such an occupant may become an adverse possessor if, in the face of the open challenges to the title of the true owner, no appropriate action is taken to assert such true owner’s right or title.” (Emphasis supplied).

These episodes panned out in the cases of Nti v. Anima^[33] and Odonkor v. Botchway^[34] where the courts appeared to have found favour with the adverse claimants who had entered the land upon the concurrence and authority of the land owners. 

Nevertheless, in Binga Dugbartey Sarpor v. Ekow Bosomprah,^[35] Kulendi JSC held that a caretaker of a land cannot rely on an alternative plea of adverse possession, because any act of ownership he purports to exhibit will be seen as being done at the behest of the owner who put him there. As the buttocks may grow bigger, but can never choke the anus, so a caretaker/licensee can occupy a land for years, but can never dispossess the land owner. 

In Amidu and Another v. Alawiya and Others,^[36] the principle was laid to preclude licensees from laying inconsistent claims against the title of their licensors. Our elders say, no matter how long a log stays in water, it can never become a crocodile. Therefore, their Lordships’ approach is in harmony with the position of the law at common law. 

In Kirk v. Smith,^[37] Chief Justice Marshall, delivering the opinion of the court said: “It would shock that sense of right, which must be equally felt by legislators and judges, if a possession which was permissive and entirely consistent with the title of another should silently bar the title. Such a construction would make the statutes of limitations a statute for the encouragement of fraud, a statute to enable one man to steal the title of another by professing to hold under it. No laws admit of such construction.”  

Thus, in Hughes v. Griffin,^[38] a man conveyed land to his nephew, the plaintiff, although the grantor and his wife (the defendant) continued to live there. After the grantor’s death, the plaintiff brought an action to recover the land from the defendant. The defendant argued that she and her husband had lived on the property for twelve years subsequent to the conveyance of the property and that she had, therefore, acquired title by limitation. The English Court of Appeal held that she had occupied the land as a licensee of the plaintiff and, as such, was incapable of acquiring title in the land by long possession.

George Meade Emory in his 1890 Thesis on the topic, Title by Adverse Possession, preserved at the Cornell Law School Library explains at page 16, by giving the principle a  twist as follows: “A possession thus rightly begun can never initiate a right that may be perfected into a title, unless some express disclaimer of the relationship is made or such continued, open and notorious acts are done as will be presumed to inform the true owner and the world that the occupant claims to hold in his own right.”^[39]

The Supreme Court of India in the case of Sheodhari Rai v. Suraj Prasad Singh^[40] has clearly held that where possession is proved in its origin to be permissive, it will be presumed that it continued to be of the same character until and unless something occurred to make it adverse. Their Lordships further held in State Bank of Travancore v. A.K. Panicker^[41] that to make the possession of the licensee adverse, there must be open and explicit disavowal and disclaimer brought to the knowledge of the owner. 

However, the case of Healey v. Hawkins,^[42] is sometimes cited as an authority for a licensee whose use of land was found to be adverse.^[43] In that case, the plaintiff sought and obtained permission from time to time to use a way in wet weather. The court held that the use ceased to be permissive from time to time when the plaintiff started using the way regularly, and stopped asking for permission. 

• Possession as a Means of Establishing Limitation

Most lawyers and judges are fond of viewing acts of possession by the defendant on land as means of establishing limitation through adverse possession. An observation I made in one of my latest decisions moved me to choose the instant topic. In Yvonne Garbrah v. Fanougou Sanogo,^[44] the Defendant who had pleaded limitation of the Plaintiff’s action alluded to facts of his possession on the subject matter land for more than 12 years in his particulars of the limitation and led evidence on same.  

Similarly, in the case of Binga Dugbartey Sarpor v. Ekow Bosomprah,^[45] the Court of Appeal concurred with the trial Court on the fact that the Appellant had been in possession of the subject matter land for more than 20 years. But in raising or pleading limitation in a claim to land, the trump card is adverse possession and not possession simpliciter.^[46]

In the English case of Wallis’s Cayton Bay Holiday Camp Ltd. v. Shell-Mex & B P Ltd,^[47] Denning MR stated thus: “Wallis’s state their claim on actual possession for 12 years. They farmed the land as their own for 10 years and used it as their own for another two years. They say that Shell-Mex ought to have brought an action for possession during those 12 years: and that not having done so, Shell-Mex are barred; and Wallis have a possessory title under the Limitation Act, 1939.

There is a fundamental error in that argument. Possession by itself is not enough to give a title. It must be adverse possession …” Atuguba JSC quoted Lord Denning with approval in Djin v. Musah Baako supra. Koomson JSC on his part held in Poultry Equipment Manufacturing Industry & Another v. Nii Sowah Okataban & 2 Others,^[48]  thus: “Possession by itself is not enough to give a title. It must be adverse possession. The true owner must have discontinued possession or have been dispossessed and another must have taken it adversely to him. There must be something in the nature of ouster of the true owner by the wrongful possessor.” 

Theoretically, not much difference exists between possession and adverse possession; but in practice, they are quite distinct in many respects. 

1. The legal presumption: A person in possession is presumed by law to be the owner of land,^[49] but in the case of the adverse possessor, not until after crossing the statutory limitation period, he remains a trespasser or squatter (not owner) in the eyes of the law.
2. Time frame for maturity of title: While adverse possession must not be less than 12 years before a stranger or trespasser can benefit from the “goodies” of the Limitation Act, there is no specific time frame for a person to establish possession. 
3. Uninterrupted possession: While adverse possession requires that the trespasser’s stay on the land must be continuous and uninterrupted within the period of limitation, the rule pertaining to the proof of possession simpliciter is relatively flexible, as a brief absence or interruption of the possessor on the land may be excusable in appropriate cases.
4. Actual/formal occupation on the land: In adverse possession, there must always be an actual entry to the land,^[50] but possession simpliciter may be constructive. In Akoto v. Gyamfi Addo and Another^[51] it was held thus: “In land law “possession” was used not in the proper sense of physical occupation of the land, but it included receipts of rents and profits or the right to receive same.”^[52]
5. Target of the legal suit: A person in possession of land can bring an action against the whole world, except the true owner.^[53] On the contrary, a person in adverse possession picks his battles for title mainly against the true owner with a view to dispossessing him and extinguishing his title.
6. Effect of their long stay on the land: Possession however long does not ripen into ownership, but adverse possession does mature into ownership upon the expiration of the limitation period.
7. Suing trespassers: An adverse possessor who has ousted the true owner’s title may sue trespassers as the new owner of the land, but a person in possession simpliciter may commence an action against trespassers by virtue of him being the first trespasser. In Okantey v. Kwaddey^[54], the Court of Appeal held: “That though government could have maintained an action for recovery of possession, and trespass against both plaintiff and defendant, the party who first obtained possession can maintain an action for recovery of possession against the intruder.”^[55]
8. Equity: A person in possession of land may be aided by equity. In Sykes v. Abbey,^[56] it was decided: “…where a party holds possession under an agreement for a lease,… the parties are treated in equity as being in the same position as regards their respective rights as if the lease had been granted.” Further, the equitable defences of laches and acquiescence are available to a person in possession,^[57] but strictly speaking, it is not for the person relying on adverse possession, which is purely legal and is regulated by the Limitation Act.^[58]In Karnataka Board of Wakf v. Gov’t of Indian,^[59] it was decided that: “A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”   
9. Efficacy of the title: In the Binga Dugbartey Sarpor case,^[60] it was held that adverse possession title prevails over all other interests including the interest of a registered title. However, that is not the case with possession. In George Kwadwo Asante and Eric Danpare Asante v. Madam Abena Amponsah and Peter Kofi Adu,^[61] the Court of Appeal held that the possessory rights of a squatter (trespasser) cannot override the rights of a legal title to land.
10. Their traditional functions: The traditional function of possession was to enable a plaintiff to bring an action against anyone who disturbed his possession, apart from the true owner. Adverse possession on the other hand, developed as a shield used by defendants to resist a claim by the true owner. So whereas possession acted as a sword, adverse possession acted as a shield.

• Limitation as a Sword cum Shield

As pointed out, adverse possession traditionally functioned as a shield.^[62] Only Defendants could take advantage of it.^[63] In the case of Jean Hanna Assi v. Attorney General,^[64] it was decided that “the statute of limitation was a venerable shield that can be used to ward off indolent and piecemeal litigators.” 

The law has however developed to a point where limitation now operates both as a shield and a sword. In Binga Dugbartey Sarpor case supra, Kulendi JSC stated of the concept thus: “It is clear that title may be acquired by adverse possession … In my considered view, therefore, the possessory title of an adverse possessor can be used as a sword, and not only as a shield.”

Similarly, in GIHOC v. Hanna Assi,^[65] the Apex Court held as follows: “A person who had been in adverse possession of land for more than 12 years in terms of section 10 (1) and (6) of the Limitation Decree, 1972 (NRCD 54) would be entitled to a declaration of possessory title… such adverse possessory title could be used both as a sword and shield.” The Court of Appeal in Seth Nii Quaye Hammond v. St. Lukes Methodist Church^[66] and the High Court in Kofi Agyei Bempah v. Samuel Amoo Tobin^[67] both applied the Hanna Assi ratio that adverse possession can now be used as a sword in Ghana.

The English Courts had for more than a century ago recognized the right of a squatter to maintain an action for land he unlawfully possessed for the period stipulated by the Limitation Act. In Leach v. Jay^[68] (1878) 9 Ch. D 42, the Court held: “… a squatter may acquire an actionable interest in the land on which he or she squats.”

• Raising Limitation on Appeal for the First Time

The law generally is that points of law can be raised at any stage of the proceedings even on appeal. In Kwame v. Serwaa & Ors.,^[69] the Supreme Court stressed: “The law was that a point of law arising on the record could be canvassed in an appellate court even though it had not been raised in the court below if it involved a substantial point of law, substantive or procedural and would not require the adduction of further evidence.”^[70]

The Court of Appeal also held at holding (1) of the headnotes in Fuseini v. Moro^[71] that: “…[A]ny legal or constitutional issue … was a matter of law which could be raised at any stage of the proceedings, even on appeal…”

Per the above decisions, nothing at all should, ordinarily make anybody imagine for a moment that, limitation, being a point of law, cannot be raised on appeal for the first time. The general notion about points of law capable of being raised at any time notwithstanding, it is worth stating that the defence of limitation stands in isolation on this, because in reality, the law does not permit limitation to be raised on appeal for the first time. Kulendi JSC in the Binga Dugbartey Sarpor case supra succinctly affirmed: “A plea of limitation cannot, unlike other legal grounds, be raised for the first time on appeal.”

While the principle was unequivocally stated by the Supreme Court in Armah v. Hydrafoam Estates (Gh.) Ltd.,^[72]their Lordships seemed on that occasion to have designed an emergency exit through the back door for appellate courts to entertain the plea for the first time on appeal when the justice of the case beckons. Benin JSC, as our guide, postulated: “Thus they (matters like acquiescence, laches and limitation) cannot be raised for the first time on appeal, unless the pleadings disclose the factual basis and evidence on it was led at the trial.” (my emphasis).

• Reliance on Limitation that has not been Pleaded

The law enjoins a party seeking to rely on limitation to plead it expressly, or it could not be raised later by the party or considered by the court.^[73] Order 11 rule 8 (1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides: “A party shall in any pleading subsequent to a statement of claim, plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality (a) which the party alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading.” 

In Dolphyne (No. 3) v. Speedline Stevedoring Co. Ltd and Another (No. 3),^[74] the Supreme Court decided: “The Limitation Decree 1972 (NRCD 54) was essentially a special plea which must be pleaded as required by the High Court (Civil Procedure) Rules …. If not pleaded, it could not be adverted to in submissions to the Court, and the Court would not of its own motion take notice that an action was out of time.”

The above proposition of the law and the general legal principle to the effect that points of law could be raised at any stage even by the court suo motu seemed to be at loggerheads.^[75] In Nana Bronin Abankro V & Another v. Solomon Ntiamoah & Others,^[76] the Court of Appeal fanned the conflict when it rejected limitation that had not been pleaded but had been introduced in an affidavit for the first time. 

Fortunately, the differences that existed between the two principles were reconciled recently by the Supreme Court in Ebenezer Kwaku and 2 Others v. Mankralo Tetteh Otibu IV,^[77] where their Lordships took a magnanimous view about the strict rule thus: “Whenever legally justifiable or appropriate, substantial justice must never be sacrificed on the altar of technicism, or technical rules of procedure. Thus, where the plea has not explicitly been set out, but the defendant’s statement of case points unequivocally or substantially to the plea, the court is bound to consider it, as if same had been specifically raised by the defendant.” (my emphasis). Their Lordships subsequently reaffirmed their new position in Nana Korkor Ntim v. Stephanie Ansaa Opare^[78] as a reassurance that some air of flexibility has now been breathed into the rule.

• The Title or Interest Gained by An Adverse Possessor

At common law, concerns have often been raised by legal commentators that while adverse possession operates to extinguish the title of the true owner, there are uncertainties regarding the nature of the title obtained by an adverse possessor and the extent to which it is dependent upon the title of the previous owner.^[79]

Coming home, it may seem that Ghanaian judges^[80] and textbook writers have had their share of the difficulty in stating the correct position of the law, as gleaned from the local “legal el clasico” between Sir Dennis Adjei on one hand and Da Rocha & Lodoh on the other, principally on the effect limitation has on a reversionary interest of an extinguished title. Paradoxically, we discovered later in unbelief when the learned jurists confessed in their commentaries that the Limitation Act, 1972, (NRCD 54) was their respective chief sponsor. 

Sir Dennis Adjei J.A. expressed his opinion on the reversionary title,^[81] simply thus – “Limitation applies to reversionary interests as in ordinary land cases …”^[82] At variance with Sir Dennis Adjei’s view on the applicability of limitation to reversionary interest in land is that of Da Rocha and Lodoh, who believe that since the long beard, according to our elders, came to meet the eyebrow, the adverse possessor’s interest after extinguishing the title of a lessee, pales into insignificance in the face of the original lessor or the person with the reversionary interest. Hence, they expounded in their book thus: “Where land is subject to a lease, the squatter’s adverse possession operates against the lessee only. It does not affect the lessor’s reversionary interest because the lessor’s right to possession does not arise until the lease has come to an end. The squatter’s adverse possession cannot therefore extend beyond the period of the lease.”^[83]

In Binga Dugbartey Sarpor v. Ekow Bosomprah supra, His Lordship Kulendi JSC held that if the adverse possessor succeeds in ousting the true owner, he gains title equivalent to that held by the true owner which was extinguished. It may seem, therefore, that if the interest of the person ousted by the trespasser was leasehold, it is the lease that would be extinguished for the adverse possessor to enjoy the land for the entire duration that the lease would last.

Going by Da Rocha and Lodoh’s position that an adverse possession over a leasehold interest would not affect the reversionary, we are likely to set the stage for a “show down” (a legal one of course) between the principle and the concept of estoppel by standing by, which is to the effect that if a grantor does not join forces with the grantee to fight a potential adversary on the land and he fails, they would share the same unlucky fate. That being the case, one may question why in the case of a claim by an adverse possessor, it is only the grantee or lessee who bears the brunt and not with the lessor. On the contrary, it could be argued that since the law enjoins the lessor to give quiet enjoyment of the land to the lessee during the subsistence of the lease, it would be unfair to make him lose his interest for the lessee’s laxity.

In Klu v. Konadu,^[84] the Supreme Court’s restatement of the law, though not explicit, seemed to suggest that adverse possession could be mounted against the lessor. Atuguba JSC on that occasion held: “ … since the stool did not assert its title against him (the plaintiff) for upwards of and even over the limitation period of 12 years, he thereby has acquired title thereto by his adverse possession.” 

It is often said that the law is an ass, and that phrase is plainly manifested in this area of the law. While adverse possession may effectively extinguish the title of the prior owner, there are possible ways by which the ousted owner can stage a “come-back” to re-repossess his land. In Djin v. Musah Baako^[85] the Supreme Court held that “If a trespasser can acquire title to land through adverse possession by reason of the period of limitation, nothing prevents the ousted owner from re-acquiring title to the same land through a similar process.”

In the case of a lessee whose title is ousted, the lessor will be able to recover possession of the land from the adverse possessor, if he takes lawful steps, such as forfeiture, to terminate the lease or where the lessee surrenders the lease.  As Da Rocha and Lodoh amply illuminated: “The squatter may therefore be resisted in any circumstance which terminates the lease, eg by the lessor, if the lease is surrendered by the lessee, or if the lease is forfeited, by the lessor, and by the lessee, if he has acquired the reversion, for in that event, the lease is merged into the reversion and is extinguished, and the lessee steps into the shoes of the lessor.”

Da Rocha and Lodoh’s position reflects the England law, where a tenant could surrender his lease for the landlord to take possession of the land rather than having to wait till the expiration of the lease, as gleaned from Tichborne v. Weir.^[86]  However, in Ireland, this view was rejected in Perry v. Woodfarm House Ltd.^[87] where it was held that a dispossessed tenant could not terminate a lease through surrender or merger as the adverse possession had extinguished their interest in the land. It needs pointing out that Sir Dennis Adjei’s position appears to be in sync with the Irish law.

Conclusion                             

The current framework relative to the concept of adverse possession is plagued with crucible of uncertainty and inconsistency leading to unfair outcomes for land owners and occupiers alike. The Limitation Act of 1972 (NRCD 54), which is the primary legislation regulating the subject seems to have lost touch with the realities of the day and is contributing to the confusion, as played out in the commentaries of His Lordship Sir Dennis Adjei and Da Rocha and Lodoh.

It is essential that policy makers take a comprehensive approach to revise the law and reconcile the competing interests of all the relevant parties. Judges may also consider offering clarity on the existing law. The future of adverse possession depends substantially on its ability to strike a fair balance among the competing interests of landowners, occupiers and the general public. 

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^[1] Sussie Mutahi, “Indefeasibility of Title and Adverse Possession in Kenya: An Uneasy Relationship”, Strathmore Law Journal, 7 (1) 2023.

^[2] Op-cit.

^[3] Jennifer Hiatt, “Adverse to Change: A Modern Look At Adverse Possession.” 1^st January, 2019.

^[4] See British Institute of International and Comparative Law, “Adverse Possession”, 2006, 1-14.

^[5] Prescription, according to Black’s Law Dictionary, refers to “the effect of the lapse of time in creating and destroying rights.” Prescription, Black‘s Law Dictionary (11^th ed. 2019). Acquisition prescription thus means acquiring rights (here, property rights) after a certain period of time.

^[6] See footnote 3.

^[7] See Article 2229C Civ.

^[8] See s 900 BGB (German Civil Code).

^[9] See Chapter 16 of the Real Property Code of Sweden.

^[10] See Article 1941 of the Spanish Civil Code.

^[11] See article 3: 99 (1) of the Dutch Civil Code.

^[12] See Articles 172-176 of the Polish Civil Code.

^[13] See the Limitation Act 1950 and the Land Transfer Amendment Act 1963.

^[14] See BJ da Rocha & CHK Lodoh at p. 1 of their land law book, Manu v. Kuma (1963) GLR 464 and Ennin v. Pra (1959) GLR 44.

^[15] See Adjabeng v. Kwablah (1960) GLR 37.

^[16] [2020] 170 GMJ 644, SC.    

^[17] See E Scholarly Community Encyclopedia.

^[18] (1963) AC 510 at p. 543.

^[19] (2007-2008) SCGLR 686.

^[20] (1977) 1 All ER 230 at p. 234, C.A.

^[21] (2013-2014) 2 SCGLR 1473.

^[22] (2005-2006) SCGLR 458.

^[23] 1^st edn. see page 303-304.

^[24] [2019-2020] 1 SCGLR 772 (Adaare).

^[25] (2009) SCGLR 741.

^[26] (2013-2014) 2 SCGLR 1473.

^[27] [2020] 170 GMJ 644, SC.       

^[28] Suit No. LD/0910/2016, dated 15^th January 2021, H.C. (Accra), unreported.

^[29] Civil App. No. J8/96/2020, dated 5^th June 2023, S.C., unreported.

^[30] [2020] 170 GMJ 644, SC.       

^[31] [2019-2020] 2 SCGLR 1 (Adaare).

^[32] Civil App. No. H1/74/2023, dated 12^th March 2024, C.A., unreported.

^[33] (1984-86) 2 GLR 134.

^[34] (1991) 2 GLR 1.

^[35] [2020] 170 GMJ 644, SC.       

^[36] [2019-2020] 1 SCGLR 772 (Adaare).

^[37] 9 Wheat., 241-288.

^[38] {1969} 1 All E.R.460. Accord, Haywood v. Challoner, {1967} 3 All E.R. 122.

^[39] See Zeller’s Lessee v. Eckert, 4 Howard, U.S., 280.

^[40] AIR 1954 SC 758.

^[41] AIR 1971 SC 996.

^[42] [1968] 1 W.L.R. 1967.

^[43] Although it was in relation to easement.

^[44] Suit No. LD/0479/2021, dated 17^th January 2025, H.C. unreported.

^[45] [2020] 170 GMJ 644, SC.       

^[46] See Quarshie v. Ankoma, No. J4/59/2022, dated 10^th May 2023, S.C., unreported; Nana Korkor Ntim v. Stepanie Opare Ansaa, Civil App. No. J4/64/2022, dated 7^th December 2022, S.C., unreported & Naa Dedei Aryee suing per her lawful attorney Leopold Nii Armah Aryee v. Mrs Philomina Aduhene (Rtd) and Supt Aduhene, Suit No. FAL/599/14, dated 19^th November 2018, H.C., Tema.

^[47] (1975) 1 QB 94 at 103, C.A.

^[48] Civil App. No. J4/57/2022, dated 5^th July 2023, S.C., unreported.

^[49] See section 48 (2) of the Evidence Act, 1975 (NRCD 323); Amponsah v. Amoah Nyamaah (2009) SCGLR 361 at p. 368 and Nana Otuo Antwi Boasiako v. Nana Adjei Panin, No. J4/14/2021, 18^th January 2023, per Torkornoo JSC as she then was).

^[50] See section 10 (4) of the Limitation Act, 1972 (NRCD 54).

^[51] (2005-2006) SCGLR 1018 at holding (2).

^[52] See also Akwesi Amankwa Evans v. Kojo Prempeh, Civil App. No. H1/130/2017, dated 29^th March 2018, C.A., unreported, per Suurbaareh J.A.

^[53] See Osei (substituted) by Gilard v. Korang (2013-2014) 1 SCGLR 221 at p. 234; Buckman v. Essien (1963) 1 GLR 426; Mensah v. Ahodjo (1961) GLR 292; Richard Ofosu-Darko v. Stella Dede Mensah, Civil App. No. 24/2002, dated 16/05/2003, C.A., unreported and Roland Kofi Dwamena v. Richard Nortey  Otoo & The Regional Lands Officer (2017) 113 GMJ 46 at p. 116.

^[54] (1959) GLR 241.

^[55] See alsoTwifo Oil Plantation Project Limited v. Ayisi & Others (1982-83) GLR 881, C.A.

^[56] [1995-96] 1 GLR 81. See also Walsh v. Lonsdale (1882) 21 CH. D 88.

^[57] This can better be understood in the light of the law prior to the enactment of the Limitation Act. While customary law transactions were not affected by the English Limitation Act, the common law laches and acquiescence were applicable.  

^[58] On the contrary, a person relying on laches and acquiescence to justify his possession on land may fail if his hands are not clean and does not satisfy the demands of the equitable maxims. An adverse possessor’s hands need not be clean. He enjoys the land as of right, by virtue of section 10 of the Limitation Act.

^[59] (2004) 10 SCC 779 at para 11.

^[60] [2020] 170 GMJ 644, SC.       

^[61] Suit No. H1/29/2017, dated 14^th March 2019, C.A., unreported.

^[62] See Ebenezer Kwaku & 2 Ors. v. Mankralo Tetteh Otibu IV, No.J4/53/2021, dated 7^th July 2021, S.C., unreported, per Appau JSC.

^[63] Nana Kow Kyeredeh v. Ebusuapanin Kobina Tawiah, Civil App. No. H1/139/2011, dated 18^th April, 2018, C.A., unreported & Togbui Lugu Awadali IV v. Togbe Gbadawu IV, Civil App. J4/50/2016, dated 24^th January 2018, S.C., unreported. 

^[64] Civil App. No. J4/17/2016, dated 9^th November 2016, S.C., unreported.

^[65] (2005-2006) SCGLR 458.

^[66] Suit No. H1/06/2020, dated 25^th February 2021, C.A., unreported.

^[67] Suit No. FAL/153/2014, dated 28^th July 2016, unreported.

^[68] (1878) 9 Ch.D 42.

^[69] (1993-94) 1 GLR 429 at p. 438-439.

^[70] See Fatal v. Wolley (2013-2014) 2 SCGLR 1070.

^[71] (2010-2012) 2 GLR 434.

^[72] (2013-2014) 2 SCGLR 1551 at p. 1568.

^[73] See Sage Ghana Ltd v. J.K. Nyarko and 21 Others, Suit No. H1/157/04, dated 11^th June 2004, C.A., Nana Bronin Abankro V and Another v. Solomon Ntiamoah and Others, Suit No. H1/14/2017, dated 12^th July 2017, C.A. and Nii Kwei Okang Badu (substituted by Joseph Nii Adjei Laryea) v. Daniel Mensah, Suit No. H1/202/2009, 5^th July 2018, C.A., unreported.

^[74] (1996-97) SCGLR 513.

^[75] Tindana (No.2) v. CDS and Another (2011) 2 SCGLR 732 and Nana Kow Mensah King v. Opanin Kweku Kyikiribi Gyan Civil App. No. J4/5/2015, dated 22^nd July 2015, S.C., unreported.

^[76] Suit No. H1/14/2017, dated 12^th July 2017, C.A., unreported.

^[77] Civil App. No. J4/53/2021, dated 7^th July 2021, S.C., unreported. 

^[78] Suit No. J4/64/2022, 7^th December, 2022, S.C., unreported.

^[79] See Wyles, “Adverse Possession” An Ailing Concept?, 16 N. IR. L.Q. (1965); Ballentine, “Claim of Title in Adverse Possession”, 28 YALE L.J. 219(1919); Challis, “The Squatter’s Case”, 5 L.Q. REV. 185 (1889) and Jeremy S. Williams, “Title by Adverse Possession’, 6 Val. U.L. Rev. 26 (1971).

^[80] See Ebenezer Kwaku & 2 Ors. v. Mankralo Tetteh Otibu IV, No.J4/53/2021, dated 7^th July 2021, S.C., unreported, per Appau JSC.

^[81] The learned judge relied on the provisions of sections 11 and 12 of the Limitation Act.

^[82] See page 254 of his book supra.                          

^[83] See page 318 of their book supra, where the learned authors relied on section 11 (2) of the Limitation Act, NRCD 54 to share their thoughts on the issue.

^[84] (2009) SCGLR 741.

^[85] (2007-2008) SCGLR 686 at holding (4).

^[86] (1892) 67 LT 735.

^[87] [1975] I.R. 104.