COURT OF APPEAL, ACCRA
3 MARCH 1975
LASSEY SOWAH AND FRANCOIS JJ A
CASES REFERRED TO
(1) Waterpark (Lord) v. Fennell (1859) 7 H.L.Cas. 650; 33 L.T. (o.s.) 374; 23 J.P. 643; 5 Jur. (N.S.) 1135; 7 W.R. 634, H.L.
(2) Watcham v. Attorney-General of East Africa Protectorate [1919] A.C. 533; 87 L.J.P.C. 150; 120 L.T. 258; 34 T.L.R. 481, P.C. [p.307] of [1975] 1 GLR 305
(3) Attorney-General v. Drummond (1842) 1 Dr. & War. 353; 1 Con. & Law. 210.
(4) Van Diemen’s Land Co. v. Table Cape Marine Board [1906] A.C. 92; 75 L.J.P.C. 28; 93 L.T. 709; 54 W.R. 498; 22 T.L.R. 144, P.C.
(5) Lartey v. Hausa [1961] G.L.R. (Pt. II) 773.
(6) Painstil v. Aba [1964] G.L.R. 34, S.C.
(7) Oppong Kofi v. Fofie [1964] G.L.R. 174, S.C.
(8) Willmott v. Barber (1880) 15 Ch.D. 96; 49 L.J.Ch. 792; 43 L.T. 95; 28 W.R. 911.
(9) Abbey v. Ollennu (1954) 14 W.A.C.A. 567.
NATURE OF PROCEEDINGS
APPEAL from the decision of a circuit court in an action for the declaration of title to a plot of land. The facts are sufficiently set out in the judgment of Sowah J.A.
COUNSEL
Sackeyfio for the appellants.
Amponsah Dadzie for the respondent.
JUDGMENT OF SOWAH J.A.
This is an appeal from the judgment of her honour Miss Gaisie, circuit court judge, in which she delivered judgment dismissing the claim of the appellants. The parties will simply be referred to as the plaintiffs and the defendant.
The facts of this case are not much in dispute and they are as follows:
The plaintiffs had been on the land in dispute for which they sought a declaration of title and other reliefs for a period of well over eight decades. Their case was that their grand-uncle purchased this piece of land from a Mr. Osilbo about 1890 and immediately entered into possession and in addition to the palm trees already on the land planted thereon foodstuffs and cocoa. He died about 30 years ago leaving his estate to his successors at law who continued in possession until about three to four years ago when the defendant who was an adjoining landowner started breaking and entering upon the land by plucking cocoa planted by the appellants. After an unsuccessful attempt at getting police protection the plaintiffs issued a writ against the defendant.
The defendant’s case was that the whole of the area was the property of his ancestor one Kwadjo Kweidu and that the plaintiffs owned no land in the area in dispute; their land was south of the old Bobikuma-Abodom road. He maintained that the area in dispute was part of his ancestral land and the cocoa plucked was planted either by him or his predecessors in title. Issue was accordingly joined as to the owner of the land north of the old Bobikuma road which in the plan produced for the purposes of the litigation was edged red.
The plaintiffs based their root of title upon a sale evidenced by a document which was termed an indenture, exhibit A. The indenture is short and reads as follows:
[p.308] of [1975] 1 GLR 305
“FREE COPY No. 11
Knowing all men by those present that I Quocoe Osilbo of Bobikuma do hereby sold a portion of land to Kwamin Dodoo of same place under this indenture of this sum of four pounds ten shillings, Cudjo Duadoo, palm plantation call Busasu at Abodom road right man hand land Quasie Infafulan this east Quasi Judo on the west Quocoe Teynee on the north Koffi Saneey on the south the said land I Quocoe Osilbo do hereby give grant and the Kwamin Dodoo his executors and assigns for ever.
In the meantime we have set hands and deeds this thirteen day of October, one thousand eight hundred and ninety 13th October, 1890
Witnesses £4 10s. 0d.
Qainin Abani
Quasi Bann
Quasi Buabin
Cobbina Abaka.
Bobikuma 13th October, 1890
(Sgd.) Appiah, Writer. (Sgd.) Quocoe Osilbo.”
In the plaintiffs’ attempt to establish their root of title, they called one Kwaku Kwan who was alleged to be the present head of Osilbo’s family, but he appeared not to know anything about the land. This is not surprising, because if Osilbo had divested himself of title to that land as far back as 1890 and had no property left in the area generations after him might not know that he once owned property in the area.
In any case the plaintiffs proceeded effectively to prove possession after purchase. They produced evidence both oral and documentary to establish that not only had they been in possession but they had dealt with this property as absolute owners thereof and in a manner only consistent with ownership. The family had made cocoa farms thereon without paying tribute or rent to any overlord; more important still the original purchaser of the land in 1935 sold a portion of it to the African Universal Church of Bobikuma for use as a cemetery. The cemetery is at the boundary between the disputed land and the undisputed land of the defendant and the evidence shows that the defendant and his predecessor had been aware of its existence since 1935. On the eastern side of the boundary in dispute there were traditional boundary marks of trees planted by the plaintiffs and on their north of the area the plaintiffs called the person farming over their boundary one Kwaku Ewan, a grandson of the original owner of the land. He testified that he had been farming on his grandmother’s land and that the only persons he knew farming to the south were the plaintiffs. An attempt was made to discredit him by showing that he was not the head of his family and therefore was incompetent to give evidence. I think this argument is misconceived. The land on which he was farming belonged to Kyiriwa family of which admittedly he was not the head but a member, but he was the person for the time being farming on the land and he was speaking of his knowledge
[p.309] of [1975] 1 GLR 305
of the boundary of his land. This was clear evidence in support of the plaintiffs’ contention that he was in possession.
But the learned circuit judge was not a little worried about the difference between the boundary owners as shown in the document of sale dated 1890 and what appears to be the present boundary owners. Indeed she asked the plaintiff the following question:
“By court: Can you relate the boundary owners as contained in the plan to those contained in the document exhibit A?
Answer: I cannot because I was not present when the document was made.”
As will be adverted to later, the learned circuit judge made an issue of it and indeed rested her judgment, amongst other matters, on the premise that the plaintiffs were unable to reconcile this difference; for she held that the plaintiffs had been unable to establish the root of their title and went further to hold “from the evidence the land described in exhibit A could not be the land edged red.” She concluded:
“This claim being one for a declaration of title, the plaintiffs can only succeed by establishing their title and not merely possession. I must state here that if the defendant had issued the writ against the plaintiffs to decree their title in respect of this same land, different results would have ensued. The plaintiffs have led evidence which I accept that they have been in possession of this land and cultivated the cocoa thereon.
In spite of the fact that in examination-in-chief, and on cross-examination, the defendant had said the cocoa on the disputed land had been planted by his predecessor, when asked by whether he had personally cultivated any portion of the land, he said he had, and pointed to the area of trespass. He said he cultivated it since his appointment as successor. The defendant has been appointed only eight years. By 1970, it would have been only five years yet he would like the court to believe that the cocoa he plucked had been planted by him since his appointment. He had the confidence to say this after he said the cocoa trees are about 40 years old. This is a lie and I reject it.
Apart from making farms, the plaintiffs in 1936 sold a piece of the land to the Orthodox Church, this piece of land has since been used as a cemetery. This sale is evidenced by exhibit C. I must admit that boundaries mentioned in the document, exhibit C, do not correspond with those as marked on the plan. However, the existence of a cemetery on the land contended by the defendant to belong to him, could not have deluded him or his predecessors. When his predecessor, Yeboah, was asked to explain the existence of this cemetery on his land, he stated that he discovered it a year after his appointment as successor and he in fact approached the church leader but before he could take action to recover the land, he was removed as successor and the defendant was appointed. I think, this is a lie. Yeboah, according to him, was a successor for eight
[p.310] of [1975] 1 GLR 305
years before his removal. According to his evidence, it would mean that be had a whole seven years to contemplate over the question of the cemetery and yet he did nothing about it nor even told the defendant. As for the defendant, he said he thought this land had been sold by his late uncle Kweidu, until the plaintiffs caused his arrest by the police. Even if this were true, he is bound by the acts of his predecessor. Yeboah for at least seven years knew of the fact that the plaintiffs had sold this portion to the Orthodox Church.
On the preponderance of the evidence, I am of the view that plaintiffs have been in exclusive possession of this land and have exercised acts of ownership over it. Therefore, as I stated earlier; if the defendant had sought to have their title to the disputed land decreed the plaintiffs might have succeeded in pleading estoppel by acquiescence and laches. But unfortunately, this defence has not a double edge, it is merely used as a defence only, and it cannot form the basis of an action for a declaration of title.” (The emphasis is mine.)
I intend to examine the conclusions of the learned judge under three different heads for rejecting the plaintiffs’ claim and to determine if her rejection was valid having regard to the evidence and the law applicable to the matters before her.
She held, firstly, that the inference deducible from the evidence before her was that the defendant’s ancestor must at one time have been the owner of the whole of the area shown on the plan, including the area in dispute and that, the plaintiffs were squatters on the land. Secondly the area allegedly sold to the plaintiffs ancestor in 1890 must have been different from the area in dispute and finally that though the defendant and his predecessors in title were aware of the adverse occupation of the plaintiffs for the whole period and had cultivated cocoa trees thereon for half of that period yet the plaintiffs’ occupation could not in accordance with our common law ripen into ownership.
In coming to her first conclusion the learned judge examined the plan of the area and appeared to have been impressed by the numerous pockets of land owned by the defendant around the disputed area. Such examination ought also to have revealed that the plaintiffs’ undisputed land to the south of the area in dispute is flanked on either side by the defendant’s land, but the defendant did not claim this area and the evidence showed that the unclaimed portion was also purchased from a vendor who was not a member of the defendant’s family. The land in dispute is adjacent to the plaintiffs’ land and but for the old road which separates the two pieces of land, they would have been one contiguous stretch of land. If the inference from the evidence is correct, it ought equally to have applied to the land south of the old Bobikuma road but the defendant has not claimed the area. I am of the view that there was not sufficient evidence on record to warrant the deduction arrived at by the learned judge.
But the more important finding of the learned judge was that the land sold to the plaintiffs’ ancestor was not the area in dispute and the
[p.311] of [1975] 1 GLR 305
main reasons given, it would be recalled, were the inability of the plaintiffs to relate the boundary owners named in the 1890 document to the present boundary owners and the vagueness of the description contained in the said document.
I do not know of any principle of law that an owner of land must follow the fortunes of adjoining landowners to the extent that he must at all times inform himself of the devolution of titles to the properties surrounding his estate. It was for lack of proper title deeds and registration and more important still, absence of proper plans that boundary owners are invited by disputants to testify for persons with whom they have boundaries.
It is expecting too much of a landowner whose predecessor had been in possession over a very long period without any disturbance whatsoever to know the persons and recite those who were the original boundary owners of the land or their successors or how the present boundary owners became possessed of their land. I think it is sufficient if the present persons on the land can say with whom they form boundaries, although they may not know the nature of estate held by their neighbours.
The learned judge found the description of the land in the 1890 document very vague nevertheless she was able to hold:
“The Abodom road referred therein is undoubtedly the old Abodom road because the new one, according to the evidence was constructed only about 40 years ago. As both parties resided at Bobikuma, reference to the left or right side of the road would be made with the parties facing Abodom. Therefore, the ‘right man hand land’ described in the document will be referrable to land situate on the right side to the Abodam road (facing Abodom). It follows that the land in dispute marked in exhibit B cannot be the same land described in exhibit A.”
It is correct that the description is falsa demonstratio arising out of inelegant language and lack of a plan. I think, however, that the principles which should have offered guidance to the learned judge in the predicament that she was, were never brought to her notice. The document admittedly is vague, the only present day feature discernible and which the surveyor showed was “the old Abodom-Bobikuma road.” The question which arose for determination was when the parties defined one of the features as at “Abodom road right man hand land,” what did they mean?
The plaintiffs contended that the land purchased was an area to the north of the road, the learned judge thought that the description should refer to the plaintiffs’ land in the south. There is a long line of cases giving guidance in such circumstance as the learned judge found herself. I will first refer to the case of Waterpark (Lord) v. Fennell (1859) 7 H.L.Cas. 650, H.L. The facts of this case were as follows: In 1704 a lease of certain land was granted in the county of Tipperary. The description of the land ran as follows: Lands in Scartany, containing 94 acres and in the Garryroan containing 104 acres and the village of Scartnaglowrane and part
[p.312] of [1975] 1 GLR 305
of Whitechurch and Tincurry containing 148 acres with all rights. There were several reservation in favour of the lessor .In the area there was also a mountain sometimes called by the name of Scartnaglowrane or Tincurry and on one side of the mountain were a collection of houses called the village of Scartnaglowrane. The houses in this village had from time to time been increased in number and extent at the pleasure of the lessee and his under-lessees who paid rent regularly to him, and their cattle alone grazed on the mountains.
About August 1854 the lessee entered upon the land called the Mountain of Scartnaglowrane or Tincurry and with dogs and guns hunted on the mountain. The plaintiff issued a writ claiming that on a true construction of the lease of 1704 the lessee committed trespass upon the said mountain. The lessee pleaded the lawfulness of his action and contended that throughout the then currency of the lease he and his predecessors had used the mountain without let or hindrance from the plaintiff and his predecessor in title. It became necessary: to construe the word “village” in the context of the lease as the word was ambiguous.
Crompton J. reading his opinion stated, inter alia, at pp. 664-665:
“It must be remembered also, in favour of this construction, that there is evidence of the mountains of Tincurry and Scartnaglowrane being the same, and that the lease is made subject to the rights of turbary, the exercise of which seems to have been on the waste part upon the top of the mountain, and probably not in the small portion of the measured lands of Tincurry.
This old lease, therefore, seems to me sufficiently ambiguous as to what was to pass under these doubtful expressions to let in parol evidence according to the rule laid down by Mr. Baron Parke, in The Duke of Beaufort v. Swansea (3 Exc.Rep. 425), where he says, I have no doubt that all ancient documents, when a question arises as to what passed by a particular grant, can be examined by modern usage.’ See also what is said by Mr. Justice Cresswell, in Doe d. Wilkins v. Beviss (7 Com. B. Rep. 511), referring to Wadley v. Bayliss (5 Taunt. 752 .
Parol evidence being, therefore, in my opinion, admissible to explain what passed under the general or doubtful words of the lease, I think that sufficient evidence was given from which the jury might find such a state of facts as would support the title of the Defendant.
Evidence was given of the mountain in dispute being grazed by the cattle of the Defendant’s tenants, and that no one else grazed it; that the Defendant had always sported over it, a right to do so being, under the circumstances, only attributable to the right of soil; and that the Defendant and his predecessors had from time to time taken in parts of the mountain, not the subject of the lease according to the contention of the Plaintiff, and had tilled the same. These acts were proved to have taken place from time to time as far as living memory could go. I think that the Plaintiff might well contend that it might be inferred from these acts of modern user, that the
[p.313] of [1975] 1 GLR 305
whole district in question at the time of the lease was part of the premises mentioned in the lease as being ‘now or lately in the occupation of Thomas Travers and his under-tenants,’ and that they passed under the general or ambiguous words of the lease.”
Williams J. stated at p. 669:
“I think there was evidence of occupation and enjoyment of the mountain of Scartnaglowrane as far back as living memory could reasonably be expected to go, from which the jury might have presumed, if they had thought proper, that the same course of enjoyment had prevailed ever since the lease was granted, and on which, therefore, the question might have been asked them by the Judge, whether, in point of fact, the lessees had always enjoyed the mountain, as of right, under the lease, as parcel of the lands thereby demised.”
(The emphasis is mine.)
In Watcham v. Attorney-General of East Africa Protectorate [1919] A.C. 533 at p. 539, P.C. it was held when there is ancient deed or other document extrinsic evidence of user under it may be used to ascertain its meaning. Lord Sugden in the oft quoted passage in Attorney-General v. Drummond (1842) 1 Dr. & War. 353 at p. 368 said:
“One of the most settled rules of law for the construction of ambiguities in ancient instruments is, that you may resort to contemporaneous usage to ascertain the meaning of the deed; tell me what you have done under such a deed and I will tell you what that deed means.”
Extrinsic evidence can be used to identify the subject-matter to which it refers.
In the case of Van Diemens Land Co. v. Table Cape Marine Board [1906] A.C. 92 at p. 98, P.C. it was stated:
“The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it, and when the obvious intention is to give a title to what has been taken and retained before the actual grant, it is manifest that what has been so taken and retained is cogent evidence of what is granted.”
Thus the only way to resolve the ambiguity in the expression “right man hand land” was for the learned judge to have looked at what the parties did soon after the purchase. Her own finding appeared to be that the purchaser went into possession, planted boundary trees, cash and food crops. She ought to have applied the maxim, contemporanea expositio est optima et fortissima mlege, in other words the best way of construing a document is to read it as it would have been read when it was made. But there was an import piece of evidence which the learned trial judge over-looked, from which if she had considered it, she would have drawn no other conclusion than that the land described in exhibit A is the piece or parcel of land to the north. We have in exhibit C the conveyance executed between the plaintiffs’ predecessor in title, old Kwamin Dodoo and the African Universal Church of Bobikuma evidencing the sale of the land for use as a cemetery the following description of the area:
[p.314] of [1975] 1 GLR 305
“I the said Vendor do say it truly in the presence of the within-named witnesses that the said plot of land situate lying and being at Bobikuma Omain Abodom road on the right side sold to the vendee herein, is my own bona fide property by right and is entirely free from all incumbrances.”
This instrument was executed on 6 March 1935, that is to say, 45 years after the plaintiffs’ predecessor had bought the land. The description given is almost a verbatim reproduction of the description in exhibit A. The cemetery is in the disputed area. There can be no question after this real evidence that the description refers to the disputed land. In so far as the learned judge held that the land purchased by the plaintiffs’ predecessor was in an area other than the one in dispute she was wrong. There can be equally no doubt that the plaintiffs’ predecessor knew the land he bought and occupied the same in his lifetime.
This brings me to the issue of admissibility of exhibit A, the instrument which purports to be a conveyance of the land in issue. The learned circuit judge after having examined exhibit A intensively and made findings thereon proceeded thus:
“Having examined the contents of it, I must now look at the document exhibit A, itself. This is the document which embodied the sale agreement. It purports to transfer the land described therein. It is, therefore, a document which attracts stamp duty, but it is not stamped. When this document was tendered, no objection was raised, and as the defendant was well represented, I did not examine the document. It was during the address by counsel when I discovered that in fact the document had not been stamped. Being unstamped, the document is altogether inadmissible. In the case of Angmor v. Yiadom III [1959] G.L.R. 157 at p. 160, the Court of Appeal per the learned Chief Justice stated: ‘it purports to be an agreement relating to transfer of interest in or title to land. It is therefore an instrument which is liable to stamp duty. It is unstamped, and therefore could not be pleaded or admitted in evidence in any Court (vide sec. 15 of the Stamp Ordinance). Thus in Antu v. Buedu (F.C. ‘26-’29, 474) it was held that when a document which is liable to stamp duty has not been stamped a copy thereof is inadmissible in court proceedings.’
In this case, even though counsel for the defendant raised no objection to the document, it is nevertheless inadmissible and I cannot base any decision on it. In Abowaba v. Adeshina (1946) 12 W.A.C.A. 18 at p. 20, a Nigerian case, it was pointed out by the court:
‘There are certain types of evidence, such as hearsay, and unstamped . . . documents which are inadmissible per se, they cannot form the basis for a decision, and objection to them may be taken at any stage of a trial or on appeal . . .’ See also Ntim v. Boateng [1963] G.L.R. 97 at p. 111, S.C. where Adumua-Bossman J.S.C. treats the subject and refers to the authorities above. It follows that exhibit A, the title deed on which the plaintiffs ask for a declaration must be excluded from the evidence’.”
[p.315] of [1975] 1 GLR 305
In my view upon a proper construction of this instrument it is not conveyance in the technical sense as the word “conveyance” is a term of art in conveyancing and the law of property. At best it can be described as an instrument evidencing sale of land. Thus when this instrument is excluded evidence can still be led as to the mode of acquisition. That other evidence is contained in exhibit C.
In any event whether this instrument is a conveyance or an instrument evidencing a sale it still attracted stamping duties as the first Stamps Ordinance came into force on 1 July 1885 and exhibit A was executed in October 1890. But the provisions of the Stamp Act, 1965 (Act 311), made the following mandatory provisions and the learned circuit judge on discovery that exhibit A had not been stamped ought to have directed that the duty and penalty be exacted:
“14. (1) Where any instrument chargeable with any duty is produced as evidence in any court in a civil matter, or before any arbitration or referee, the judge, arbitrator or referee, as the case may be, shall take notice of any omission or insufficiency of the stamp on the instrument.
(2) If the instrument is one which may legally be stamped after its execution, it may, on payment to the registrar of the court or to the arbitrator or referee, of the amount of the unpaid duty, and the penalty payable on stamping such instrument, be received in evidence, saving all just exceptions on other grounds:
Provided that any instrument which is sufficiently stamped under the provisions of this Act shall be receivable in evidence although such instrument may be unstamped or insufficiently stamped according to the laws in force in the place where such instrument was executed.”
It is also necessary to refer to the Stamp Act, 1965 (Amendment) Decree, 1967 (N.L.C.D. 160), which amended section 14 (5) of this Act.
Exhibit A is an instrument which could properly be stamped at any time provided both duty and penalty are paid. In my view the learned circuit judge having erroneously admitted it, ought to have called upon the plaintiffs to give undertaking to pay the fee. I will in this connection refer to Cross on Evidence (2nd ed.), p. 507. He stated: “If an unstamped document can be lawfully stamped after execution, it may be received in evidence against undertaking to pay the appropriate stamp and penalty.” In civil proceedings stamp objections are taken by the court. Having discovered while listening to addresses that the instrument had not been stamped, she should have invited counsel to give an undertaking or to have it stamped in accordance with the law in force at the date of its execution that is the Stamps Ordinance, 1885.
Whatever be the state of the law before, there is nothing in the Stamp Act, 1965 (Act 311), which precludes the reception of an unstamped document which could properly be stamped upon the proper payment of fees and both the law and ordinary justice demand this be so in the circumstances of this case. Accordingly we will order that the document be
[p.316] of [1975] 1 GLR 305
stamped in terms of the Act. As said before even if the instrument were inadmissible the plaintiffs had abundantly proved by evidence aliunde that they were placed in actual possession after sale.
The learned judge delivered herself of the opinion that though the plaintiffs’ possession had been uninterrupted for a period of 37 years at least and they have cultivated cocoa, nevertheless, it is not enough merely to prove long possession, for at customary law, now part of our common law, possession however long does not ripen into ownership: see Lartey v. Hausa [1961] G.L.R. (Pt. II) 773 at p. 775.
The headnote of this case can be misleading therefore reference must he made to the text itself. Ollennu J. (as he then was) in that judgment held inter alia at p. 775:
“By customary law a stranger does not acquire any title to land merely by farming and growing seasonal or other food crops on it, no matter how long he continues to farm it. Again, upon the defendant’s own evidence he is nothing more than a tenant or licensee; therefore neither under customary law, nor under the principles of natural justice, equity and good conscience can he, a tenant or licensee, become owner of land by reason of the duration of his tenancy or his licence.”
But the Lartey case is distinguishable in that the plaintiffs herein planted cash crops and cocoa, at that. It is common knowledge that in those days cocoa ripened in seven years. The life of a cocoa tree is anything but short. The expenditure involved in the cultivation of cocoa is heavy. In my view no reasonable owner of land would sit by and watch his land cultivated into a cocoa farm by a stranger without protest unless he is aware that the stranger is in possession under a grant either from him or persons claiming title through him. In any case where the stranger disposes of a portion of the land to the knowledge of the alleged owner to third parties who openly enter into possession and make use of it, as in the circumstances of this case, there certainly would be a presumption that the stranger had title to the land. These overt acts of ownership took place when the defendant’s ancestor, the original owner of the land was alive, yet no steps were taken by him to assert his title. His ancestor must have known that the portion of the land occupied by the plaintiffs’ predecessor did not form part of his estate.
In any event the plaintiffs are not claiming title through the defendant; if they were, our customary law says it is not sufficient to rely on a mere possession however long as evidence of absolute title, for under customary law other estates are capable of being carved out of the absolute title and some of such estates are possessory titles while the owner retains the absolute or allodial title, or a pledge: see Painstil v. Aba [1964] G.L.R. 34, S.C.
The plaintiffs in this case are relying on their possession as part of their case in support of their title. In Oppong Kofi v. Fofie [1964] G.L.R. 174 at pp. 178-179, S.C., Adumua-Bossman J.S.C., discussing the effects of possession stated inter alia that:
[p.317] of [1975] 1 GLR 305
“it would seem to follow that their de facto possession by itself is prima facie proof of their title to the said farms; for, was it not observed by Mellor J. in Asher v. Whitlock ((1865) L.R: 1 Q.B. 1 at p. 6) that: ‘possession is prima facie evidence of seisin in fee?’ See also two old cases (a) Doe. d. Hughes v. Dyeball ((1829) 173 E.R. 1184) where, in ejectment to recover a room in a house, possession of which the defendant had forcibly taken from the plaintiff, the latter proved a lease to himself of the house and a year’s occupation and rested his case there; whereupon the defendant’s counsel submitted that the title of the demising party was not proved and that the respondent therefore had not proved his claim; Lord Tenterden C.J., however, held: ‘. . . there is ample proof; the plaintiff is in possession, and you come and turn him out: you must shew your title,’ and (b) Doe. d. Hall v. Penfold ((1838) 173 E.R. 607 at p. 608) where, in ejectment, the lessor to the plaintiff commenced his title by showing a conveyance in fee from one Stroud in 1807, but all the evidence of Stroud’s title was that he was in possession in 1806 and 1807, and counsel for the defendant submitted that there was not sufficient evidence of the seisin in fee of Stroud, who by the deed put in, assumed to convey an estate in fee. Patterson J., however, held: ‘If he [Stroud] was in actual possession, that is evidence that he was seised in fee, unless there be something to shew that he had a less estate. I think thatbif nothing further be shewn, it is, at least, some evidence of a seisin in fee’; and lastly, the much more modern case of Perry v. Clissold ([1907] A.C. 73 at p. 79, P.C.) where Lord Macnaghten, delivering the judgment of the Privy Council in an Australian appeal which raised the question whether a mere squatter was entitled to compensation upon the compulsory acquisition of land including his holding, stated: ‘It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner’.”
It would seem that the plaintiffs had made out at least a prima facie case which the defendant was unable to destroy. All he tried to prove was that he had land on either side of the plaintiffs’ land and that the land to the north was originally his but had been granted to a relation called Kyiriwa. What the nature of this grant was, was not stated.
In my view the plaintiffs are relying on the strength of their case, namely, their possession, their acts of ownership which are inconsistent with any other explanation except as being owners. The burden shifted on the defendant to rebut this presumption or at least explain how the plaintiffs came to occupy the land. The presumption of ownership was not rebutted and the plaintiffs ought to have succeeded.
There was yet another aspect of this matter to which the learned judge’s attention was not drawn by counsel, namely, the legal effect of the inertia amounting to acquiescence on the part of the defendant and his ancestor in the exercise of acts of ownership by the plaintiffs and their
[p.318] of [1975] 1 GLR 305
predecessor. It ought to be recalled, for emphasis, that the plaintiffs had occupied the land in dispute, invested therein what appeared then to be the most valuable form of investment; alienated a portion thereof, all to the knowledge of the defendant who took no steps to vindicate his title or at least to inform the plaintiffs of their mistaken belief that the property they had purchased, was not the land they were occupying. In my view the defendant’s conduct would amount to the kind of fraud which was envisaged in the case of Willmott v. Barber (1880) 15 Ch.D. 96 at p. 105 adopted in Abbey v. Ollennu (1954) 14 W.A.C.A. 567 at p. 568 and it is:
“It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What then are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal rights, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights.
Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal rights. Where all these elements exist, there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it, but in my judgment nothing short of this will do.”
The plaintiffs led abundant evidence for the court to exercise its discretion in their favour in granting the declaration sought.
Accordingly I would allow the appeal, set aside the judgment of the circuit court and enter judgment for the reliefs sought.
JUDGMENT OF LASSEY J.A.
I agree.
JUDGMENT OF FRANCIOS J.A.
I also agree.
DECISION
Appeal allowed.
