NKUM v. ANDOH & ANOR

JUDGMENT OF ADUMUA-BOSSMAN J.

(His lordship referred to the history of the case, examined the evidence of the plaintiff and his witnesses, and continued: -)

From the foregoing examination of the evidence of the plaintiff and his two witnesses, it appears sufficiently clear that the sum-total of it falls very far short of establishing title. The trial-Court, in the light of that evidence alone and without regard even to the defendant's evidence, was amply justified in finding that the plaintiff had failed to prove that title to the land on which his claim to recovery of possession necessarily depended.

But even if the plaintiff's family did have title to the land at all (which was strenuously denied by the defendant), it seems to me that, in any event, the admissions of the plaintiff and his two witnesses establish two situations, in either of which he is legally precluded from maintaining his claim. These admissions establish, as the first of these two situations, estoppel by acquiescence of conduct, in that the defendant's family were allowed to obtain adverse possession of the parcel of land in dispute, as against the family of the plaintiff, and have been allowed to retain it from the time of the death of Tumfu Kwa right up to the date of the present proceedings. According to them, the period is about 15 years.

It was pointed out by the West African Court of Appeal in the case of Adu v. Kuma (3 W.A.C.A. 240 at p.241) that:

"There are a number of cases where the Courts have refused relief by way of decreeing possession to a plaintiff who has slept [p.362] on his rights, and others where in a dispute as to ownership long undisturbed possession has been accepted as evidence of title."

And in the subsequent case of Fiscian v. Nelson & anor. (12 W.A.C.A.1) M'Carthy Ag.C.J. was referring to the same legal situation when he said: -

"The view was expressed by the Full Court in the Bokitsi Concession Enquiry (1902, Renner, 239) that a former owner would not be allowed to claim land where he had stood by for a long time while someone else occupied the land and incurred pecuniary commitments under the impression that he was entitled to the land, notwithstanding that prescription is unknown to native customary law and that no statutory limitation applies to the case. This obiter dictum has been followed in many decisions, and the rule it enunciated is well established. The period of time which will justify the Court in acting upon it varies greatly accordi