MENSAH-MONCAR v. CHAINARTEY [1972] 2 GLR 293
HIGH COURT, ACCRA
Date: 25 JULY 1972
BEFORE: ABBAN J.
CASES REFERRED TO
(1) In re Public Lands (Leasehold) Ordinance; Osu Mantse (Claimants) [1959] G.L.R. 163.
(2) Nsiah v. Asare [1959] G.L.R. 17.
NATURE OF PROCEEDINGS
RULING on an application for a declaration of title to land compulsorily acquired by the government.
The facts are set out in the ruling.
COUNSEL
Miss A. Ayisi for the plaintiff.
Dr. E. Ako-Adjei for the defendant.
E. N. Adjei, State Attorney, for the co-defendant and the third party.
JUDGMENT OF ABBAN J.
In this application it has been contended that, on the pleadings, the court should hold that in law the
plaintiff’s action is not maintainable, and the same should be dismissed by virtue of Order 25, rr. 2 and 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The said rules provide that:
“2. Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the
parties, or by order of the Court or a Judge on the application [p.295] of [1972] 2 GLR 293
of either party, the same may be set down for hearing and disposed of at any time before the trial.
3. If, in the opinion of the Court or a Judge, the decision of such point of law substantially disposes of
the whole action, or of any distinct cause of action, ground of defence, set-off, counterclaim, or reply
therein, the Court or Judge may thereupon dismiss the action or make such other order therein as may be just.”The plaintiff sued the defendant for a declaration of title to a piece of land fully described in the writ of summons. He also claimed damages for trespass and an order for perpetual injunction. In his statement of claim paragraphs (3) to (6) the plaintiff alleged as follows:
“By an indenture dated 29 March 1951 and registered in the Deeds Registry as No. 1290/1953 and made between Christopher Adjah Kwaku therein described as the vendor and the plaintiff herein described as the purchaser of the land described on the writ was conveyed to the plaintiff.
(4) The plaintiff says he entered into possession of the land in dispute and fixed corner pillars on the said land. (5) The plaintiff says he has been in uninterrupted and undisturbed possession of the land until November, 1970 when the defendant trespassed on the land and commenced building operations on the land. (6) The plaintiff says the defendant has ignored all warnings given him and persists in his acts of trespass on plaintiff’s land. Wherefore the plaintiff claims as per the writ of summons.”The defendant disputed the plaintiff’s claim to the land in question, and averred that the indenture being relied upon by the plaintiff could not confer title to the land on the plaintiff. The defendant further contended that he had been in undisturbed possession of the land since 17 August 1968, and it was the Government of the Republic of Ghana that granted the land to him. Paragraphs (8) and (9) of his statement of defence contain the following averments:
“(8) The defendant says that the defendant acquired the land in dispute in this action (the land on which he is building a dwelling house premises) as a leasehold property from the Government of the Republic of Ghana. (9) The lease of the land in dispute in this action, granted by the Government of the Republic of Ghana to the defendant, is registered in the Land Registry, Accra, as Deed No. 822/1969 dated 17 August 1968.”After filing his statement of defence, the defendant applied to have the Attorney-General of Ghana and the Lands Commission joined as co-defendant and a third party, respectively, and they were joined [p.296] of [1972] 2 GLR 293 accordingly. In their statement of defence, the co-defendant and the third party alleged that the disputed plot formed part and parcel of a larger area which the Government of the Gold Coast (now Ghana) acquired on 23 March 1951, under the Public Lands Ordinance, Cap. 134 (1951 Rev.), and that some years after the said acquisition, the portion in dispute was leased by the said government to the defendant
for a period of 99 years. I will refer, particularly, to paragraphs (9) to (14) of the statement of defence
filed on behalf of the co-defendant and the third party. In those paragraphs they averred that:
“(9) This description and plan of the land acquired by the Government are comprised in certificate of title granted by the Supreme Court dated 20 August 1951 as varied by an order of the Court dated 24 May 1956. (10) Notice of requirement by the Government of the land acquired was published in Gazette No. 97 dated 23 December 1950 as Notice No. 2559. (11) The certificate of title and the order of the court varying the certificate of title are registered in the Deeds Registry, Accra as No. 1078/1951 and No. 1438/1956 respectively. (12) The third parties aver that by an agreement for a lease dated 17 August 1968 executed between the Government and the defendant the Government granted to the defendant a leasehold of the land in dispute for a term of 99 years from 1 December 1967. (13) The agreement for a lease dated 17 August 1968 executed between the Government and the defendant is registered in the Land Registry, Accra as No. 822/1969. (14) The third parties deny that the plaintiff is entitled to the reliefs sought or at all.”
It will therefore be seen from the pleadings that the plaintiff is claiming title through one Christopher
Adjah Kwaku who was supposed to have sold the land to the plaintiff on 29 March 1951. While the
defendant claims the Government of the Republic of Ghana to be his grantor. Thus so far as the
ownership of the disputed plot of land is concerned, the plaintiff is likely to succeed if he is able to
establish that his vendor, Christopher Adjah Kwaku at the time of the said sale on 29 March 1951, had a valid title to the plot, and that the plot was never acquired by the Government of the Gold Coast (now Ghana).
Counsel for the co-defendant and the third party has brought the present application, asking that the suit be dismissed, because on the pleadings the plaintiff has no cause of action. He argued that the whole area including the plot in dispute was acquired by the Government of the Gold Coast as far back as 23 March 1951. Two documents dealing with the said acquisition were tendered. That is, the certificate of title dated 20 August 1951, with the Deeds Registry No. 1078/1951. The
[p.297] of [1972] 2 GLR 293 other is the order varying the said certificate of title, and dated 24 May 1956, with the Deeds Registry No.
1483/1956. Learned counsel for the co-defendant and the third party submitted that the plaintiff’s vendor had no right to sell the plot in dispute; and, even if he had any interest in the land, that interest was commuted into money which he should have claimed within three months after the publication of the notice of acquisition. Consequently, the purported conveyance of the land to the plaintiff, on 29 March 1951, was invalid and passed no title to the plaintiff.
Dr. Ako-Adjei, learned counsel for the defendant associated himself with the submissions of learned
counsel for the co-defendant and the third party. He, however, added that section 1 (3) of the State Lands Act, 1962 (Act 125), should be read together with section 12 (4) of the Public Lands Ordinance, Cap. 134 (1951 Rev.).
In her reply, Miss Ayisi, learned counsel for the plaintiff contended, inter alia, that the plot of land in
dispute did not fall within the area of acquisition. She further argued that, in any case, the provisions of the Public Lands Ordinance should not be construed as having taken away the common law right of the plaintiff to bring an action where his rights in respect of this plot of land have been infringed. I think learned counsel for the plaintiff has misconstrued the purpose of the provisions of the Ordinance in question. By the acquisition, the right of the subject to the property is neither diminished nor extinguished, but it is compulsorily changed in form and the subject can still maintain a claim for compensation against the government, provided the said claim is made within three months of the publication of notice of the acquisition.
Learned counsel for the plaintiff again contended that despite the alleged acquisition under the said
Ordinance, the co-defendant and the third party should be held to have acquiesced in the title of the
plaintiff by accepting the plaintiff’s conveyance for registration, the said registration having been done by an agency of the co-defendant and the third party, namely, the deeds registry. In the circumstances, counsel submitted that the co-defendant and the third party are estopped not only by acquiescence but also by laches from disputing the plaintiff’s title to the land, and that the action is maintainable in law.
In view of the submission of the plaintiff’s counsel that the plot of land in dispute is outside the area
acquired by the Government of the Gold Coast, I considered it necessary, at the conclusion of arguments, to order a plan of the disputed plot to be drawn up and to be superimposed on the cadastral plan which was used in the acquisition and which in fact showed the extent of the land involved in the said acquisition. [p.298] of [1972] 2 GLR 293 Accordingly, by consent of counsel, Messrs. Hanson & Partners, licensed surveyors of Accra, were appointed to undertake the said survey. The order for survey was eventually carried out. Two plans were made and by consent of the parties, they were tendered in evidence by Mr. Henry Ritcher Quist, a licensed surveyor of Messrs. Hanson & Partners as exhibits A and B respectively. Mr. Quist also gave evidence to show how he conducted the survey. His evidence clearly showed the relative positions of the plots of land being claimed by the plaintiff and the defendant, respectively, and the land acquired by the
Government of the Gold Coast. I have examined the evidence of Mr. Quist as well as the plans, exhibits A and B, and I have come to the conclusion that both the plaintiff and the defendant are claiming the same plot of land and which plot is edged red and blue, respectively, on exhibit A. I also find that that said plot is the subject-matter of dispute in this action and it falls within the area which was acquired by the Government of the Gold Coast.
The next question to be considered is whether on 29 March 1951, the date of the plaintiff’s conveyance, the rights in respect of this plot had become vested in the Government of the Gold Coast. Notice of the acquisition of the area was published by the then Commissioner of Lands in accordance with the provisions of the Public Lands Ordinance, Cap. 134 (1951 Rev.), and the first notice appeared on 23 December 1950 in the Gold Coast Gazette No. 97 (Gazette Notice No. 2559). The following was in the usual form and stated, inter alia, that:
“Any person claiming to be possessed of, or to have any right or interest in the said land is required within three months from this date to send to the Commissioner of Lands (which may be done through the District Commissioner of Accra), a statement of the particulars of his right or interest and of the evidence thereof and of any claim made by him in respect of the value of such land or of his interest therein. Such statement shall be in writing signed by or on behalf of the claimant.”
It must be remarked that by the provisions of the Ordinance no claim could validly be made against the government after the expiration of three months from the date of service and publication of the notice. It should also be observed that the acquisition in question, as was the practice at that time, came before the Land [High] Court Accra, which after due inquiry, issued the said certificate of title. The certificate dated 20 August 1951, was signed by Jackson J. This certificate was, subsequently, varied by the order of the Land [High] Court, dated 24 May 1956. (See the certificates marked A and B and attached to the motion paper of the co-defendant and third party). These two certificates were all registered with the deeds registry, as already indicated. [p.299] of [1972] 2 GLR 293
At this stage, it is necessary that I set out the relevant portion of the said certificate of title, issued to the Government of the Gold Coast by the Land [High] Court, Accra. Among other things the certificate has the following endorsed on it:
“It is hereby certified and declared that pursuant to the Public Lands Ordinance the title in and to all those four pieces or parcel of land hereinafter described … is hereby vested in the Governor of the Gold Coast Colony and his successor in office to the use of His Majesty, according to the true interest and meaning of the said Ordinance.”
Considering the form of this certificate, the terms of the gazette notice already referred to supra, and the general purpose of the said Ordinance, I am inclined to agree with the submissions of learned counsel for the co-defendant and the third party. Because, even if the plaintiff’s vendor, Christopher Adjah Kwaku, had title to the plot in dispute, that title was compulsorily acquired by the Government of the Gold Coast.
All that the plaintiff’s said vendor could have done was to claim monetary compensation for whatever
interest he might have had in that plot of land. I am also of the opinion that the plaintiff’s vendor ought to have made any such claim within three months from 23 December 1950. That is, on or before 23 March 1951.
After the said 23 March 1951, it was doubtful whether the plaintiff’s vendor could have made even the
claim for compensation. However, whether the plaintiff’s said vendor did put in a claim for compensation or not, after the publication of the notice of the said acquisition in the Gazette he had no right thereafter to negotiate with the plaintiff for the sale of the said plot. In other words, the plaintiff’s vendor had no right after the said publication and without the consent of the Government of the Gold Coast (now Ghana) to convey title to the land to the plaintiff. The purported conveyance to the plaintiff was therefore null and void ab initio, irrespective of the fact that the plaintiff registered his conveyance with the deeds registry.
Even if it is assumed that the plot was properly conveyed to the plaintiff by the said deed of conveyance, dated 29 March 1951, and therefore the plaintiff had a valid title to the disputed plot, I would still hold that upon the issue of the said certificate of title to the Government of the Gold Coast by the Land [High] Court, on 24 August 1951, the plaintiff’s said title would no longer be valid and effective: See sections 11 and 12 (4) of the Public Lands Ordinance, Cap. 134 (1951 Rev.). In re Public Lands (Leasehold) Ordinance; Osu Mantse (Claimants) [1959] G.L.R. 163 at p. 167 Ollennu J. (as he then was) made the following observation:
“Under Section 11 of the Public Lands Ordinance the acquisition operates ‘to bar and to destroy all other estates, rights, titles, remainders, reversions, limitations, trusts and interests whatsoever
[p.300] of [1972] 2 GLR 293 of and in the lands’ acquired; and in virtue of section 12 a Certificate of Title issued by the Court in respect of the land acquired confers upon the Governor-General to whom it is issued ‘an absolute and indefeasible right to the lands . . . free from all adverse or competing rights, titles, interests, trusts, claims and demands whatsoever’.”
His lordship then referred to section 10 of the Public Lands (Leasehold) Ordinance, Cap. 138 (1951
Rev.), and at p. 168 he continued: “Acquisition under either of the two Ordinances determines the rights of the subject in the land acquired, or deprives the subject of his possessory title in it.” I will also cite the case of Nsiah v. Asare [1959] G.L.R. 17 at p. 20 where in the course of his learned judgment, Ollennu J. (as he then was) discussed various sections of the Public Lands Ordinance and concluded as follows:
“Upon the issue of the Certificate of Title, the land becomes vested in and held by the Government in the manner provided in Section 2 of the Ordinance, and the only thing left to the owner in possession at the date of the acquisition is the right to compensation.”
I therefore hold that the plaintiff has no title to the plot in dispute. Indeed, he has no interest whatsoever in that plot to entitle him to make the claim herein. His claim, if any, was effectively barred by section 12 (4) of the said Ordinance which provided that:
“The production of the certificate of title shall be held in every Court to be an absolute bar and estoppel to any action or proceeding by which the right of the Governor to the land therein described is sought to be impugned or questioned.”
In the circumstances, the plaintiff cannot, in law, maintain the present action against any of the parties involved in this dispute. The claim is completely misconceived and it will be dismissed.
Accordingly, judgment is entered in favour of the defendant, the co-defendant and the third party, and each of them will be entitled to his costs. The defendant is awarded costs of ¢150.00; the co-defendant and the third party are together awarded costs assessed at ¢53.00.
DECISION
Action dismissed
S. O.
