carboo ltd vs akua mintu 12-12-11 - Jtighana.org

The Claimant also failed to prove that his interest over-rides that of Akua
Mentu. My understanding of Section 46 (1) (F) which is the closest provision
the claimant could have relied on is that the one claiming the over-riding
interest must have been in actual occupation of the land before the acquisition
of the purported interest giving rise to the registered title. The rationale
behind this provision should not be for fetched. It should be preposterous for
one to take a grant of land whilst another person is in actual occupation. So
that if one takes that grant and mindlessly proceeds to register that title then
under the provision the interest of the one in actual occupation will over-ride
that which was registered unless of course an inquiry was made of the
occupant’s interest and was not disclosed.
There is no evidence that the claimant or even his predecessor Rose Amoah
was in actual occupation of the land before same was granted to Akua Mentu
in 1999. The Claimant said he deposited gravels and also made a dwarf wall
on the land. But he admits he acquired the plot in 2002. So if he did anything
on the land it could have been in 2002 or thereafter. That should be 3 years or
so after Akua Mentu had been granted the land. The Claimant therefore could
not have been in actual occupation of the land before 1999 when the land was
conveyed to Akua Mentu.
The Claimant said he had made a dwarf wall on the land. Of course that has
not been disputed by the defence. But the Claimant does not also dispute the
fact that Akua Mentu has constructed drains and culverts on the land. For me,
this is suggestive of a scramble between the two. The Claimant cannot claim
to have been in actual occupation of the land. His evidence that he had fenced
the plot does not hold water. He admits that he did the fencing in 2010. The
record shows that as at 2010 the land had even been attached by the instant
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