THE REGISTERED TRUSTEE OF ASSEMBLIES OF GOD CHURCH VRS MENSAH (H1/88/19) [2021] GHACA 44 (6 May 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: - SENYO DZAMEFE, JA (PRESIDING) NICHOLAS C. AGBEVOR, JA JENNIFER DODOO, (MRS.) JA Civil Appeal Suit No: H1/88/19 6th May, 2021 THE REGISTERED TRUSTEE OF ASSEMBLIES OF GOD CHURCH - PLAINTIFFS/APPELLANTS VRS. ERNESTINA NAA AYELE MENSAH - CLAIMANT/RESPONDENTS JUDGMENT DZAMEFE, JA The plaintiff/appellant hereinafter referred to as the plaintiff issued this writ of summons against the defendant/respondent also referred to as the defendant in the High Court, Land Division, Accra for the following reliefs;- 1. Declaration of title to the land in dispute measuring approximately 0.14 acres and known as S.7 located at Musuli near Nigh market, Fadama. 2. An order of perpetual injunction restraining the defendant whether by himself, assigns, representatives licences for whatsoever from intermeddling with the land aforesaid. 1 | P a g e 3. Any other or further order(s) as the court may deem fit. The plaintiff’s case is that they are a church operating in Ghana and internationally. That the land in issue originally formed part of a lease executed on 10th September 1969 between the Government of Ghana acting per Maurice Kwasi Jones, Snr. Lands Officer and the Elders of Musuli Community of Musali village in Accra represented by Charles Kwame, Jonathan Codjoe Cobblah, Joseph Alottey Akwei and Lartey Quafio. That by the lease aforesaid the Government of Ghana devised all that piece of land containing an approximate area of 19.06. acres situate and lying and being at North Kaneshie resettlement area and gave the measurements (Para 4). Plaintiff avers that the said lease No. AC5670A/09 has a Land Registry No.16/09/1969 Plaintiff avers further that, acting per its registered trustees obtained a lease of the land in dispute on or about 20th June 1987 from the elders of the Musuli Community of New Musuli, a suburb of Accra acting per its lawful representatives and head of the Lartey Quafio family. Plaintiff said the land is located at Musuli near the night market, Fadama and is covered by a duly executed lease executed for 99 years and made between the lessor and the representatives of the plaintiff herein and measured approximately 0.14 acres and known as plot No.57 and more particularly described in plaintiff’s lease document and site plan. The plaintiff’s say it has not developed the said land for years but is now about to do so but for the defendants intermeddling with same, wherefore they issued this writ of summons praying for their reliefs. The defendant in his defense and counterclaim averred that his grandfather by name Papa Amuzu was the bonafide owner of the land in issue since 1967 and their family has 2 | P a g e always been in occupation of the property prior to the purported lease to the plaintiff. That prior to that purported lease to the plaintiff, the defendant’s family had been in active possession and had exercised acts of ownership over the land without any let nor hindrance from any person whatsoever since they were resettled on the land by the government. This was after the government of Ghana had acquired their settlement near the Kwame Nkrumah Circle in 1967. As a result of the acquisition and in line with the normal government of Ghana practices, each affected person was re-allocated the precise portion of land in the new settlement. Defendant aver further that his grandfather Papa Amuzu was allocated two plots of land properly described in the resettlement plan as plots number 7&8 Fadama. The grandfather Papa Amuzu put up a swish building on the land by himself, registered as H/No. D793/3 wherein he lived with his family. A member of the defendant’s family had established a shrine on the land and the family also in exercise of their right of ownership and possessory rights leased out some portions out to people to place containers on for shops. It is defendant’s case that the land in issue was never owned by the Elders of the Musuli Community for them to lease or sell same. That the land was allocated to individuals affected by the government acquisition and resettlement scheme. It is the defendant’s case that after the demise of their grandfather, the family continued to live on the land, enjoyed undisturbed occupation, peace and quiet all along dating back so many years without let or any hindrance whatsoever until the plaintiff herein brought a suit against the defendant and other members of the family in the District Magistrate Court, Adjabeng Accra. They entered appearance in the case only for the plaintiff to discontinue the action when it realized that it was losing its claim before the District Court. The defendant said the plaintiffs have unlawfully trespassed onto his ancestral 3 | P a g e land by their unlawful conduct and adverse claims. Wherefore the defendant counterclaim for the following reliefs; - a. A declaration of title to all that piece of land with buildings thereon and the adjoining plot of land being and lying at Accra North Resettlement Section covering an area of 0.16 acre more delineated on Plain No. LD6671A. b. Perpetual injunction restraining the plaintiff, its agents, privies, assigns, workmen or whomsoever from entering the said property, interfering with the defendant’s quiet enjoyment, occupation, possession or dealing with the property of the defendant in a manner adverse to their proprietary rights over the said land. c. Recovery of possession d. General damages for trespass In reply to the defendant’s statement of defence and counterclaim, the plaintiff averred that it acquired a lease of the land in or about 1987 from the elders of the Musuli Community of New Musuli acting per its lawful representative and head of the Lartey Quafio family. E. K. Mensah father of the defendant and head of defendant’s family wrote a letter to the Greater Accra Branch of the Regional Co-ordinator of the then Civil Defence Organization on 5th August 1991 seeking their assistance to remove his son Armah, brother of defendant from the said land since ownership of the land had already been transferred to the plaintiff. That the swish building put up on the land was part of the intermeddling by the defendant on the plaintiff’s land- [page 26 ROA] ISSUES FOR TRIAL 4 | P a g e 1. Whether or not the land is dispute formed part of the lease executed in 1969 between the Government of Ghana and Elders of Musuli Community of Musuli Village in Accra. 2. Whether or not the land in dispute known as plot S.7 was leased to plaintiff by the elders of Musuli Community in1957. 3. Whether or not the defendant’s family trespassed on the said land acquired by the plaintiff. 4. Whether or not plaintiff is entitled to the claims. ADDITIONAL ISSUES 1. Whether or not the defendant’s family has always been in possession and occupation of the said land without any let or hindrance? 2. Whether or not the elders of Old Musuli could have made a valid disposition of the land in question without reference to defendant family. 3. Whether or not the defendant is entitled to his counterclaim? 4. Any other issues arising on the pleadings Rev Kofi-Cuma Manor, an employee of the plaintiff church in his witness statement said the plaintiff church had given him a power of attorney to speak on its behalf. He said the defendant is the son of the vendor of the land in question, Mr. E. K. Mensah of the Mensah 5 | P a g e family resettled at Musuli Community by the Government of Ghana in 1969. The land is located within the New Musuli Community near New Fadama, North Kaneshie. That the plaintiffs acquired the land in 1987 for 81years from the defendant’s father and same registered on 7th November, 1989 by the Lands Commission, demarcated and labelled as Plot S7. He said after the acquisition the plaintiff mounted corner pillars on the land and prepared an indenture dated 20th June 1987 with Registration No. LVB5369/90. The adjoining land forms part of defendant’s fathers land. He said they have fully paid for the land and deposited sand on same but their difficulty was that one son of the vendor called Armah Rasta (aka Sebeley) (deceased) who was a fetish priest had a shrine on the land. He said the deceased met them with such resistance as organizing his cohorts within the area to chase them away. The shrine he said is still there on the land. He said a search the plaintiff conducted at the Lands Commission dated February 2015 revealed the land in issue was part of a larger tract of land acquired by the Government of Ghana in 1965 under an Executive Instrument dated 12th August 1965 and leased to the Elders of Musuli Community for a term of 99 years. That the elders of the community consented to a sub-lease to the plaintiff church dated 7th November 1989. Alexander Akuetteh Hammond, the Estate Officer of the plaintiff church said he was assigned the duty to register the land for the plaintiff church. He said the land forms part of a larger tract of land government gave to the Musuli Community and the head of the community Lartey Quafio consented to the sale and prepared the indenture for the plaintiff. He said the plaintiff planted milk bush to protect the land and also deposited some trips of same and stone on the land. He said “each time we sought to enter the land, the said vendor’s son, Armah Rasta, a fetish would organize people to storm the land and prevent the 6 | P a g e plaintiff’s from exercising its rights over the land. Armah Rasta put the building materials we deposited on the land to his personal use”- [page 55 ROA] One Dauda Larlai Sulley, Head of the Musuli Community in his witness statement said he knows the defendant to be one of the grandchildren of the late Atta Amuzu. He confirms plots numbers S7 & S8 belong to the late Ataa Amuzu – [page 75 ROA]. He also co-signed a letter dated 4th July 2015 with Tettey Cobblah and Haruna Lartey Sulley as Head of the Musuli saying the plot in contention together with its adjoining plots i.e. S7 & S8 belong to Ataa Amuzu. That they do not know if the plot in contention has been sold to anybody. That the defendant is the grandchild of Ataa Amuzu – [page 77 ROA]. The defendant in his witness statement said he is a descendant of Papa Amuzu (deceased) whose landed property is the subject of this dispute which the plaintiff is trying to use force to claim from them. He said after the government acquisition of Musuli lands around the Kwame Nkrumah Circle, they were resettled and each affected member allocated land to settle on. That their grandfather Papa Amuzu was allocated two plots S7 & S8. That he resettled on the land built a swish house on same and lived in till his demise. Thereafter the family took over ownership and occupation of the land till the plaintiff’s suit in the District Magistrate Court, Adjabeng and subsequently this writ. He repeated virtually all material averments in their statement of defence – [page 93 ROA] JUDGMENT The trial High Court held as follows; - 1. That the land in dispute is plot No. S7 as indicated in the sub-lease exhibit ‘C’ and forms part of a 19.06-acre land acquired for resettlement of the Musuli Community at New Fadama of North Kaneshie in exhibit ‘B’. It is also one of two plots given 7 | P a g e to one Papa Amuzu (defendants grandfather) which was sold to plaintiff by defendant’s father – [page 134 ROA]. 2. That the Musuli Elders executed the grant to plaintiff on the authority and with the consent of defendant’s father who was the Head of the defendant family. 3. That Rasta was a trespasser, his possession of the land in dispute is subject to the plaintiff who is the rightful owner in whom title is vested. The trial High Court said in conclusion I wish to summarize my findings as follows; - 1. I find that the land in dispute described as Plot No. S7 forms part of the land leased to the Musuli Community as part of the Resettlement Project in 1969. 2. I find that Plot No. S7 was sublet to Plaintiff by the Elders of the Musuli Community as Trustees after Mr. E. K. Mensah (Defendant’s father) had sold it to plaintiff as was the practice in the Musuli Community. 3. I find that Armah Rasta trespassed on the land in dispute which Defendant has tried to perpetuate. 4. I find that though plaintiff took possession of the land by planting corner pillars and a hedge Armah Rasta prevented Plaintiff from developing the land. 5. I find that Defendant’s family have been in possession of Plot No. S8. 8 | P a g e I find that defendant did not adduce sufficient evidence in support of his claim and therefore his counterclaim fails. From all the evidence before this court I find and hold that plaintiff has proved their claim on the balance of probabilities and I therefore enter judgment in favour of plaintiff for all the reliefs endorsed on the Writ of Summons. I make an order for declaration of title to the land in dispute, plot No. S7 measuring 0.14 acre situate at Musuli near night Market in favour of plaintiff. I grant an order of perpetual injunction restraining defendant by himself, his agents, assigns, representatives, licencees or whosoever is on the land from interfering with plaintiff’s land in whatsoever way howsoever described. It is further ordered that plaintiff recover the land in dispute from any persons however so described on the land. On 12th February, 2017 the applicants filed this; - MOTION ON NOTICE FOR AN ORDER TO SET ASIDE JUDGMENT, STAY FOR AN ORDER FOR THE JOINDER OF RITA ANNANG AND ERNESTIAN AYELEY MENSAH TO THIS SUIT AS 2ND & 3RD DEFENDANTS In her affidavit in support of their motion the applicant Ernestina A. Mensah aver that their attention has been drawn to a judgment by this High Court in the case. That the land with a building thereon belongs to her late father Samuel Armah Mensah who died intestate. That the defendant in the case is a brother to her late father. She averred further that the deceased father lived in the property built by him for over fifty (50) years i.e. H/No. D850/21 Musoh, Fadama, Accra, where he practiced his profession as fetish priest decades ago and the shrines are still there presided over by her. She had been granted Letters of Administration to administer the estate. 9 | P a g e It is her case that some few years ago the plaintiff’s brought an action against the defendant at the District Court Adjabeng on the same property. That they applied and joined suit and appeared in court several times only for the plaintiff to discontinue the action without any notice to them. She averred that the plaintiff as well as the defendant in the case therefore were aware of their adverse claim and yet chose to prosecute the case in the High Court without getting them involved to state their claim. That the property never belonged to the defendant who is believed to be in league with the plaintiff. The Claimant, Ernestina Naa Ayeley Mensah in her evidence said she is a caterer and affirmed her witness statement given to the court. In cross examination she said the land in issue was registered in the great grandfather Papa Amuzu’s name and the size is 100 & 90, demarcated as plot S7. She said the defendant in the case is his father’s half-brother and has never lived in the property so she cannot tell why the plaintiff sued him – [page 188 ROA]. She said she applied and joined the suit in the District Court Adjabeng because the plaintiff’s sought to evict the petty traders who were given the land by her father to ply their trade on. On her capacity to make this claim she said she had the capacity to do so because the property belongs to the father – [page 234 ROA] The attorney of the plaintiff in cross examination said upon payment for the land, Mr. E. K. Mensah (D) gave them a site plan and indenture, but they saw that his name did not appear as the grantor in the indenture so they raised issues with him. He explained to them that the New Musuli Land was a re-settlement land which was held in trust for them by the Musuli Community elders and so anytime any individual or family wanted to let go their interest in the land resorted to the Community elders who are heads to prepare the indenture for them – [page 236 of ROA]. Defendant took the leadership of the church to the elders of the community headed by Lartey Kwaofio and the church paid them customary drink and ram in cash as known today as the signing fee. 10 | P a g e He said though the defendant issues them with a receipt, because of movement of documents they lost it – [page 237 ROA]. He said the church had cordial relationship with the defendant to the extent that, way beyond payment for the land, in his difficult times, the church many times helped in footing his medical bills because the church saw him more as part of the church – [page 237 of ROA]. He said though the defendant gave them no offer letter nor signed the indenture as a witness, they did not question that since they did not doubt the integrity of the leaders of the community. Counsel for the claimant drew the witness’s attention to the discrepancy in the acreage of the land on exhibit ‘2’ and their site plan, that is 19.06 acres and 29 acres. Then also is exhibit ‘3’, that though the witness said in his witness statement that the indenture was made in 1987, the document exhibit ‘3’ said 7th November 1989 – [page 240 ROA]. Again counsel put it to him that the consent in exhibit 3 was for an “unnumbered property” and not plot S7. That if the consent was for plot S7 would have been specifically stated. Asked in cross examination; - Q A Q - - - who prepared the consent I am unable to speak to that – [page 241 ROA] If you look at exhibit 2 which was allegedly issued by government four individuals represented and signed for the community, namely Charles Kwame, Jonathan Cudjoe Kwablah, Joseph Allotey Acquaye and Lartey Quafio. A - Yes my lord. 11 | P a g e Q - In exhibit 3 which you have presented as sub lease to your church was signed by only one of these four people named in exhibit 2, and that is Lartey Quafio. A - Yes my lord, except to say that the head lease was in 1969 and the sub lease was in 1987, so I am unable to say if some of the elders were not around Q - I am suggesting to you that the is document which you have presented as exhibit ‘3’ was a document prepared by you and the said Lartey Quafio without property authority from either Mr. E. K. Mensah or the elders of the Musuli Community. A Q - - I vehemently oppose counsel’s assertion I am further suggesting to you that exhibit ‘3’ is not a genuine document A - I am opposed to this same assertion – [page 241 ROA] The witness admitted in cross examination that in 2012 they instituted a suit in respect of this same land in the District Court Adjabeng and the Claimant and her mother applied to join the suit. Counsel for the claimant suggested to the witness that the claimant and her mother were joined as the 9th and 10th defendants in the case before the District Circuit, Adjabeng while Henry Mensah was 1st defendant. However, in the present suit in the High Court on the 12 | P a g e same subject matter after the discontinuance in the District Court, they decided to sue only the 1st defendant leaving out the claimant who were the 9th and 10th defendants. Counsel asked; - Q - I put it to you, you connived with the said Henry Mensah and brought him to court as the defendant in order to get judgment that will be on the blindside of the claimant and her mother. A Q - - It is not true And I am further suggesting to you that you refused to disclose to this court that the claimant and her mother were on the land and were also claiming interest in that land before judgment was delivered in that suit. A - Right from the District Court when they were not coming, but Henry Aryee Mensah and his lawyer were coming, and also realizing that Henry Aryee Mensah was the head of that Mensah family, that informed our decision to bring him to the High Court. Q - I am suggesting to you that you did not sue Henry Mensah as the head of any family, you sued him in his personal capacity. A - During the trial of the suit, at no point did Henry Aryee Mensah suggest that the was claiming the land in his personal capacity. 13 | P a g e Q - I am further suggesting to you that you got the judgment which you have exhibited as Exhibit ‘7’ because you refused to disclose the full details of the property in contention to this court. A - That is not true, to the best of our knowledge we disclosed to the court the kind of things that had been put on the land in dispute. Q - I am suggesting to you that you concealed vital information on the property including the claim of the claimant from this court, and the court did not know all the details on that property before coming to the judgment you have exhibited as exhibit ‘7’ A - That is not true my lord The witness did admit in cross examination that at the time they bought the land, the claimants father Mr. Armah Mensah was living on the land. That he lived on the land till he passed on in July 2011. He also admitted that in 1989, the police granted the claimant’s father permission to celebrate his “Dwarf festival” on the land as evidenced by exhibit ‘C’. The witness also admits for all these years AMA and ECG issued bills on the land in the name of Papa Amuzu, but agreed exhibit ‘B4’, the ECG Bill of May 1986 was in the claimant father’s name. The witness did admit further that the claimant’s father exercised ownership over the disputed land and live there until he died in July 2011 but said the exercise was illegitimate since he made all physical violent efforts to resist them from entering onto the land. He did admit the church first went to court in 2011 after the death of the claimant’s father – [page 250 ROA] 14 | P a g e Asked in cross-examination Q - I put it to you that even if your church acquired any interest in the land at all, it has lost same for its failure to take any action for a period of over 30 years that the claimant has been on the land. A - That cannot be true because I have explained to this court that several actions taken by the church to show ownership of the land and the efforts made to actually take possession, but for the confrontation of the claimant’s father and his cohorts. JUDGMENT The High Court held that there was no credible evidence to support the claimant’s assertion in that her father Samuel Armah Mensah bought the land in dispute in 1985. The court held that the electricity bills confirms that claimant’s father was living on the land and paid for electricity as far back as 1984. The High Court is of the view that the plaintiff/respondent’s assertion that claimant stood by when it took action against Henry Nii Aryee Mensah who defended the case on behalf of Papa Amuzu’s family is untrue in the light of the evidence in exhibit ‘A’ series. That the plaintiff had notice of the claimant’s interest in the property but decided to ignore her and the mother when he took out the writ at the High Court. 15 | P a g e The court held that no issue of Res judicata will arise against the claimant since she and her mother did not stand by as plaintiff want the court to believe – [page 299 i, j ROA] The trial high court said, it is the plaintiff/respondent’s duty to bring all interested parties in the first suit for all matters in controversy to be adjudicated upon once for all. They knew the claimants’ abode, at least the fathers house and at worst could serve her by substituted service but to totally ignore Claimants purported interest was most unfortunate since her application for joinder indicated her interest in the land. The court went on further to say that exhibits ‘B &B1’ of the utility bills in claimants’ fathers name indicate that apart from the kiosks and containers and the shrine, there is a house on the land in dispute and the occupiers should have been joined to the suit. That the plaintiff/respondent admitted under cross examination that it knew of claimant’s father’s presence on the land. The plaintiff said all attempts to take possession failed because of the claimant’s fathers’ behaviour but this the claimant denied. The High Court is of the view that with that denial the plaintiff needed evidence of their attempts at evicting him than just repeating same on oath. Plaintiff/Respondent never led any positive nor cogent evidence to show their acts of possession like pictures of the “milk bush” nor their fence wall. They also never reported the claimants’ father to police for eviction nor sued him in court for recovery of their land from 1987 till after his death in 2011 when they went to court. That is over twenty (20) years. The High Court also held that the plaintiff/respondent having allowed the claimants’ father to continue to live on the land from 1987 when it acquired the land till 2011 had by its conduct acquiesced their right to possession and their conduct constitutes estoppel and cannot be allowed to deny claimant’s possession of the land. 16 | P a g e The High Court held further that the plaintiff/respondent’s right is extinguished by laches and acquiescence and plaintiff/respondent cannot recover possession from claimant and the family of S. A. Mensah who plaintiff/respondent allowed to live on the land for more than 12 years. The plaintiff/respondent’s claim is therefore statute barred. On capacity, the High Court held that since the claimant was a beneficiary of the father’s estate and knowing that the property is being claimed by the plaintiff/respondent, she has the right to protect the property for herself and her family and does not need the permission of the head of family to do so since the property was on the verge of being taken into execution by the plaintiff/respondent who had discontinued the case at the District Court after she joined as having an interest in it. The claimant’s action therefore falls within the exceptions to the rule in Kwan v. Nyieni and is entitled to bring this action to save her family property. The court also found that claimant having acquired adverse possession from her father under Section 10 (1) of NRCD 54, is clothed with capacity to institute this interpleader action against the plaintiff/respondent with or without Letters of Administration after the demise of the father. The plaintiff/respondent having been caught by the Limitation Act NRCD 54, the claimant’s father’s family have acquired adverse possession of the land in dispute. The High Court gave judgment to the claimant that she is entitled to her claim having acquired interest in the land by adverse possession and plaintiff/respondent’s claim fails because its right has been extinguished. The court granted declaration of title to claimant for all that piece or parcel of land described as plot No. S7 covering an area of 0.14 acres at Musuli Community near Night Market, Fadama more particularly delineated on the plan attached to the sublease, Exhibit ‘3’. Notice of Appeal: 17 | P a g e The plaintiff/respondent dissatisfied with the judgment launched this instant appeal on the following grounds: i. The learned judge erred in law in holding that plaintiff/creditor/respondent’s action was statute barred. ii. The learned judge’s conclusion that the claimant was clothed with the requisite capacity to sue or make the claim was misconceived and same was an abuse of the court process. iii. Further grounds may be filed upon receipt of the record of appeal. No further grounds of appeal had been filed so that third ground is dismissed. Ground I: The learned judge erred in law in holding that plaintiff/respondent was statute barred. Counsel submits that a party to a suit intending to rely on the statute of limitation must specifically plead same and outline the particulars to enable the plaintiff respond appropriately to them. This he said was omitted from the pleadings of the claimant. Counsel submits further that the claimant never led any evidence to prove that they had been on the land for over 40 years except saying so on oath. That it was in 2012 that the appellant found the undesirable persons and structures on the land. Counsel for the respondent in his response said the claimant led evidence to prove that the land was occupied by her and her mother and had even been occupied by her grandfather. Claimant said she had been on the land continuously for at least 37 years ago since she was born. The claimant therefore stated that the appellant is statute bared and cannot claim any interest in the property after more than forty (40) years of her occupancy of same. 18 | P a g e It is trite that when a party makes an assertion which is a material fact and the opponent fails to cross-examine the party on it, there is no need for the party who led the evidence to call further evidence on the fact. The claimant gave evidence that she was born on the land and stayed on the land for over 37 years that she was born. The plaintiff/respondent failed to cross-examined her on that assertion and so counsel for the plaintiff/respondent was wrong in saying she failed to lead any evidence to establish that fact. – See (i) (ii) Fori vrs. Ayirebi [1966] GLR 627 Takoradi Flour Mills vrs. Samir Faris [2005/6[ SCGLR 882 The Limitation Decree 1972 (NRCD 54) provides time limit beyond which certain actions cannot be instituted in any court or tribunal. The operative period is to be calculated from the date the cause of action actually accrued or when it was brought to the notice of the plaintiff or his representative that the cause of action had accrued. An action to recover land is 12 years. As a rule, a party seeking to rely on limitation must plead it. The party must plead limitation expressly or plead facts as would evince an intention to rely on limitation – Bassil vrs. Kaffara [1966] 1 GLR 102 at 105. The essence of specifically pleading these rules is to give notice or information or alert the other party of his intention to rely on same to enable him prepare on the issue. In the instant appeal the pleadings and the evidence of the claimant is very clear signal to the plaintiff/respondent that she intends relying on the plea of limitation. Her evidence clearly evince her intention to rely on limitation. She expressly stated it that even if the plaintiff/respondent had any right in the land in issue, that right is extinguished by the fact of their conduct and are therefore statute barred. The trial judge on this issue rightly held; “I find and hold that the plaintiff/respondent’s right is extinguished by laches and acquiescence and the plaintiff/respondent cannot recover possession from claimant and the family of S. A. Mensah who plaintiff/respondent allowed to live on the land 19 | P a g e for more than twelve (12) years. I find and hold that plaintiff/respondent’s claim against claimant is statute barred.” Section 10 of the Limitation Act, 1975 (NRCD 54) says: “10 (1) No action shall be brought to recover any land after the expiration of twelve years from the date of 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. 10 (2) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (in this section referred to as “adverse possession”) It is trite learning that the plea of limitation is not concerned with the merits of the case. Once the axe falls, it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitation is entitled of cause to insist upon his strict rights – Op. Kwasi Donkor vrs. Kofi Lomaya & Ors. [2006] 8 MLRG 157 CA In the instant appeal, the plaintiff/respondent allegedly bought the land in 1987 from E. A. Mensah, the grandfather of the claimant. There is evidence uncontroverted that before the sale, the son of the vendor called Armah Rasta, who is the claimant’s father was living on the land. He had a shrine on the land and practicing as a fetish priest. There is also evidence that Mr. Mensah wrote a letter to the CDO seeking their help to eject Rasta Armah from the land. This letter is dated August, 1991. The information in the letter is clear evidence that there was somebody on the land in adverse possession and this was as far back as 1991. The action therefore accrued to the plaintiff/respondent as far back as 1991 to say the least. However, they sat on their rights till after the death of the 20 | P a g e occupant (Rasta) in 2011 before they took action in court. That was clearly over 20 years. See; i. ii. Klu vrs. Konadu Apraku [2009] SCGLR 741 GIHOC Refrigeration & Household Products Ltd. vrs. Hanna Assi [2005-6] 8 GLR 456 at 469 The trial High Court Judge was thus right in her judgment that the plaintiff/respondent by his conduct had been caught by laches and acquiescence and therefore status barred. We think the Judge was right in the finding and we shall not disturb same. That ground of appeal lacks merit and same is dismissed. Ground II: That the learned Judge’s conclusion that the claimant was clothed with the requisite capacity to sue or make the claim was misconceived and same was an abuse of the court process Counsel for the appellant submits that the claimant’s ought to have disclosed their capacity but which they failed to do. It is his case that the defendant in the substantive suit is the claimant’s uncle. He defended that suit on behalf of the family and lost. That the learned trial judge was wrong in her attempt to place the claimant in the exception to the rule in Kwan vrs. Nyeini Counsel for the respondents in response submits that the claimant had capacity to bring the action as claimant in possession and adverse possession of the disputed land. The general rule recognized in Kwan vrs. Nyeini is that the head of family was the proper person to sue and be sued in respect of family property but this was not inflexible. There are situations or special circumstances or exceptions in which ordinary members of the family could in their own right sue to protect the family property without having to prove 21 | P a g e that there was a head of family who was refusing to take action to preserve the family property. One of the special or exceptional circumstances is upon proof of necessity to sue. The question whether any particular case falls within the stated exception rather than the rule, or even an exception not identified in Kwan vrs. Nyeini is dependent on the particular facts of the given case per Wood JSC (as she then was) – Adjetey Agbosu & anor. vrs. Kotey & anor. [2003/4] SCGLR 420. The claimant said she is a beneficiary of her father’s estate and knowing that the property was being claimed by the plaintiff/respondent, she has a right to protect the property for herself and the family. Assuming she was even in adverse possession, the right of the plaintiff/respondent was extinguished by the Limitation Act and therefore the action was statute barred, and by that, the claimant became the adverse possessor and can sue for the property as she did. She does not need the permission of any head of family to protect her own interest and that of her family in the property which was on the verge of being taken in execution by the plaintiff/respondent who had discontinued the suit in the District Court after she had been joined as having an interest in the land. We think the trial Judge was right in holding that this action by the claimant falls within the exceptions to this rule in Kwan vrs. Nyeini. We agree with the learned trial Judge that the claimant having acquired adverse possession from her late father under Section 10 (1) of NRCD 54 is clothed with capacity to institute this interpleader action against the plaintiff/respondent with or without Letters of Administration after the demise of her father. We think the trial Judge was right in holding so and same shall not be disturbed. That ground of appeal lacks merit and same is hereby dismissed. On the totality of evidence before us, the whole appeal is unmeritorious and same is dismissed in its entirety. 22 | P a g e sgd SENYO DZAMEFE (JUSTICE OF APPEAL) sgd NICHOLAS C. AGBEVOR (JUSTICE OF APPEAL) sgd JENNIFER A. DODOO (JUSTICE OF APPEAL) I AGREE I ALSO AGREE COUNSEL JOSEPH KAPONDE FOR PLAINTIFF /APPELLANT K. AMOFA AGYEMAN FOR CLAIMANT/RESPONDENT 23 | P a g e