COURT OF APPEAL, ACCRA
Date: 15 JANUARY 1974
AZU CRABBE CJ
CASES REFERRED TO
(1) Ankrah v. Ofori [1963] 2 G.L.R. 403.
(2) Ofori v. Ankrah, Court of Appeal, 21 March 1969, unreported; digested in (1969) C.C. 58.
(3) Credland v. Potter (1874) 10 Ch.App. 8; 44 L.J.Ch. 169; 31 L.T. 522; 39 J.P. 73; 23 W.R. 36.
(4) Rodger v. Harrison [1893] 1 Q.B. 161; 62 L.J.Q.B. 213; 68 L.T.66; 41 W.R. 291; 9 T.L.R. 120; 37 S.J. 99; 4 R. 171, C.A.
(5) Dilworth v. Commissioner of Stamps [1899] A C. 99; 68 L.J.P.C.1; 47 W.R. 337; 79, L.T. 473; 15 T.L.R. 61, PC.
(6) Kassar v. Comptroller of Customs and Excise [1963] 1 G.L.R. 109, S.C.
(7) Bruce v. Quarnor [1959] G.L.R. 292.
(8) Cofie v. Otoo [1959] G.L.R. 300.
(9) Tei Angmor & Co. v. Yiadom III [1959] G.L.R. 157, C.A.
(10) Biei v. Akomea (1956) 1 W.A.L.R. 174.
NATURE OF PROCEEDINGS
APPEAL by the plaintiff against the judgment of the High Court that the defendants were entitled to protection under the Land Development (Protection of Purchasers) Act, 1960 (Act 2). The facts are fully set out in the judgment of Azu Crabbe C.J.
COUNSEL
E. D. Kom for the appellant.
No appearance by or for the respondents.
JUDGMENT OF AZU CRABBE CJ
The short, but nonetheless, interesting point that arises on this appeal is whether the learned trial judge was justified in holding that the respondents were entitled to protection under the Land Development (Protection of Purchasers) Act, 1960 (Act 2).
On 2 October J965, the appellant caused a writ of summons to issue in which he claimed against the respondents the following reliefs:
(1) A declaration of his title to a piece of land forming part of the Kokomlemle lands in Accra;
(2) Four hundred and eighty cedis (0480.00) damages for trespass;
(3) Recovery of possession of the said land; and
(4) Perpetual injunction.
The evidence was short and simple, and after a careful analysis of the case for the plaintiff and for the defence, the learned trial judge made four crucial findings. The first finding is contained in the following passage of the judgment:
“The first issue to be resolved is whether the plaintiff is the owner of the disputed plot which is edged green, red and yellow, respectively, on the plan, exhibit X. There is no doubt, whatsoever, that the plaintiff was granted the plot in dispute by one Ayitey Quaye who originally had his grant from Atukpai stool. This is borne out by exhibit B which was executed on 27 May 1952.”
This is immediately followed by the second finding:
“It is also clear that after the Kokomlemle consolidated suits, the plaintiff lost his title to the disputed plot and was finally dispossessed of this plot by the judgment and the order of the High Court, Accra.
I therefore find that in December 1958, the Osu Tetteh family was in lawful possession and occupation of the plot in dispute and that that family had a right, with the consent of the allodial owners, the Ga, Gbese and Korle stools, to dispose of the said plot. Consequently, the sale of this plot to Mr. E. A. L. Bannerman by the said Osu Tetteh family with the concurrence of the said stools, as evidenced by the deed of conveyance, dated 30 December 1958, (exhibit 1), was valid. Exhibit G, tendered by the plaintiff himself, confirms that the sale to Mr. E. A. L. Bannerman took place on 30 December 1958.
It will therefore be seen that Mr. E. A. L. Bannerman became the rightful owner of the plot in dispute on 30 December 1958.”
The Osu Tetteh family remained in lawful possession of the plot in dispute until 1960, when the Land Development (Protection of Purchasers) Act, 1960 (Act 2), was passed. The appellant availed himself of this Act by commencing proceedings in the High Court, Accra, against the Osu Tetteh family for the recovery of the disputed land. On 11 November 1963, Akainyah J. (as he then was) in Ankrah v. Ofori [1963] 2 G.L.R. 403 gave judgment in favour of the appellant, and an appeal against this judgment was dismissed by the Court of Appeal in Ofori v. Ankrah, Court of Appeal, 21 March 1969, unreported; digested in (1969) C.C. 58. It is no wonder, therefore, that in the instant case the learned trial judge had no difficulty in making his third finding in the following passage of his judgment:
“I am of the view that by virtue of the said judgment of the High Court, exhibit B, which was later confirmed by the Court of Appeal, on 21 March 1969, exhibit E, the ownership of the disputed plot can now be said to have reverted to the plaintiff. I therefore hold that the title to the disputed plot is now vested in the plaintiff.”
Meanwhile in 1965, the first and second respondents acquired the disputed land by purchase from Mr. E. A. L. Bannerman, who was then in Tanzania, and the sale was negotiated through Mr. Bannerman’s caretaker, one Wilkinson Sai Annan. The circumstances of the sale have been neatly summarized by the learned trial judge in his judgment as follows:
“In his evidence, the guardian ad litem, Ofori Atta, said he bought the plot in dispute and made the building plans of the buildings which have been constructed on the said plot in the names of the first and second defendants. He averred that in 1965 he was
[p.189] of [1974] 1 GLR 185
desirous of building for his children—the first and second defendants—and he therefore contacted one Wilkinson Sai Annan, the defendant’s first witness, who was then the acting head of the Osu Tetteh family. Annan could not sell Ofori Atta any plot of land. He rather introduced Ofori Atta to the father of Mr. E. A. L. Bannerman. The said father agreed to sell the plot of land in dispute to Ofori Atta subject to the approval of his son, Mr E. A. L. Bannerman, who was at that material time in Tanzania.
A cablegram was dispatched to Mr. E. A. L. Bannerman, asking for his approval. Mr. Bannerman cabled back to say that he was agreeable to the sale of the plot to Ofori Atta. A price of 0600.00 was then agreed upon and this amount Ofori Atta said he paid to the defendant’s first witness on the advice of the father of Mr. E. A. L. Bannerman; and Annan was to hold on to this purchase price of 0600.00, pending the preparation and the signing of the formal deed of conveyance by Mr. E. A. L. Bannerman on his return from Tanzania.
Being confident that Mr. E. A. L. Bannerman would not repudiate the sale of the said plot on his arrival from Tanzania, Ofori Atta said he made his building plans and went on to the plot and constructed thereon two separate buildings. It took him about nine months to construct the buildings, and he went into occupation immediately after completion. He contends that throughout the construction nobody warned him off the land, and nobody claimed adverse title to the plot. He also averred that he is a building contractor and he supervised the construction of the buildings himself. He was going to the land openly and never at any time did he meet or see the plaintiff on the land. Neither did he ever receive any verbal or written warning from the plaintiff or from anybody concerning the land. He further contends that he put up these buildings in good faith believing in and relying on the validity of the title of Mr. E. A. L. Bannerman. He said it was after he had completed the buildings and had taken occupation thereof that he saw the plaintiff who, for the first time, came to him in the house and claimed the plot as his property.
Wilkinson Sai Annan, the defendant’s first witness, confirmed that it was he who negotiated the sale of the plot in dispute to Ofori Atta. He said the father of Mr. E. A. L. Bannerman asked him to keep the purchase price of 0600.00 paid by Ofori Atta, until his son came back to Ghana, and signed the document of conveyance prepared for Ofori Atta in respect of the plot. He stated further that in 1958, when he was the acting head of the Osu Tetteh family, the said family sold to Mr. E. A. L. Bannerman two plots of land of which the plot in dispute was one. The defendant’s first witness lives in the neighbourhood of the said two plots and he used to act as a caretaker over those plots for Mr. E. A. L. Bannerman.”
[p.190] of [1974] 1 GLR 185
Following from these facts, the learned trial judge made his fourth and crucial finding:
“I believe that Ofori Atta went to the land believing in the validity of the title of Mr. E. A. L. Bannerman, his grantor; and at the time the plaintiff commenced the present action, a substantial portion of the buildings had in fact been constructed. Indeed, by the time Ofori, Atta, the guardian ad litem of the first and second defendants, became aware of the plaintiff’s claim, the construction of the buildings had been completed. Consequently, I hold that Ofori Atta erected the buildings on the disputed plot in good faith and without knowledge of the plaintiff’s title to the land. In the circumstances, I am of the view that the first and second defendants, acting through Ofori Atta as their guardian ad litem, cannot be said to have acted recklessly in putting up those buildings.”
In consequence of this decisive finding, the learned trial judge refused the appellant’s claim for the recovery of possession, damages for trespass and perpetual injunction, but awarded him, in lieu thereof, compensation of 01,200.00 with costs assessed at 0600.00.
Being dissatisfied with this decision of the learned trial judge, the appellant has appealed to this court, and the first of the original two grounds in the notice of appeal alleges that the judgment was against the weight of evidence. In my judgment, there is no merit whatsoever in the argument put forward in support of this ground. At the commencement of the hearing of this appeal, we granted leave for two additional grounds to be argued. These grounds were stated in these terms:
“(1) The learned trial judge erred in invoking the provisions of the Land Development (Protection of Purchasers), Act, 1960 (Act 2), since the defendants-respondents were not ‘purchasers’ as defined by the Act.
(2) The learned trial judge erred in not granting an order of recovery of possession and damages for trespass.”
The second ground of the original grounds of appeal was argued together with the second ground of the additional grounds, because they were both expressed in almost identical terms.
Now, arguing the first ground of the additional grounds, counsel for the appellant referred us to the Land Development (Protection of purchasers) Act, 1960 (Act 2), s. 1 which reads in part: [His lordship here read the relevant provisions of the section as set out in the headnote and continued:] Counsel submitted that the Act was intended to protect only a “purchaser,” and that the respondents, not having acquired their plot of land by a “conveyance,” cannot claim the protection of the Act. Counsel next referred to section 4 which defines “conveyance” to include “a transfer of land by customary law,” and further submitted that there is no evidence that the respondents acquired the disputed
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land by customary law. When the attention of counsel was drawn to the words “or a person claiming through him” appearing in section 1 (1) ,b) and (c), counsel submitted that those words should be interpreted to mean a person who had himself acquired his land from the purchaser by a “conveyance.”
The Act itself does not contain an exhaustive definition of “conveyance,” but the interpretation clause, section 4, provides that the expression “includes a transfer of land by customary law.” The first question then is, what is a conveyance? In Credland v. Potter (1874) 10 Ch.App. 8 at p. 12, Lord Cairns L.C. stated: “There is no magical meaning in the word ‘conveyance’; it denotes an instrument which carries from one person to another an interest in land.”
And in Rodger v. Harrison [1893] 1 Q.B. 161, C.A. Lopes L.J. said at pp. 169-170:
“The term ‘conveyance’ is well known to conveyancers as meaning an instrument which passes a freehold interest in real property. It may perhaps include other things, but I think that in its ordinary use it implies that the document is under seal.”
In the same case Kay L.J. also said at p. 172:
“I think that, except so far as it is extended by that clause [s. 3 of the Yorkshire Registries Act, [1884], the term ‘conveyance’ must have its ordinary meaning among conveyancers, viz., of a deed by which a freehold interest in land is actually transferred from one person to another.”
In my judgment, the word “conveyance” in subsection (1) (a) of section 1 must be taken to bear its ordinary meaning, that is, an instrument in writing transferring title to land, and does not include an agreement for sale.
Section 4 leaves this meaning untouched, but enlarges it to include something else. What then is the meaning of the word “includes” in that section? In attempting a definition of this word, I think I can do no better than quote the following passage from the judgment of Lord Esher M.R. in Rodger v. Harrison (supra) at p. 167:
“The meaning of the word ‘include’ in such a definition as is given in this Act seems to be this. The word interpreted has its ordinary meaning. That meaning it still has in the Act. But then there are other meanings that the legislature wishes it to have in the Act. So the definition is used to enlarge the meaning of the term beyond its ordinary meaning and make it include matters which the ordinary meaning would not include. But this enlargement of meaning is confined to the matters expressly mentioned in such definition.”
In delivering the opinion of their Lordships of the Judicial Committee of the Privy Council in Dilworth v. Commissioner of Stamps [1899] A.C. 99, P.C. Lord Watson said at pp. 105-106:
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“The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include,’ and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.”
See also Kassar v. Comptroller of Customs and Excise [1963] 1 G.L.R. 109, S.C.
In my judgment, “conveyance” for the purposes of the Land Development (Protection of Purchasers) Act, 1960 (Act 2), comprehends that which is a conveyance either in the ordinary meaning among lawyers, or in the enlarged meaning given to the term by the interpretation section of the Act. That the respondents did not acquire the disputed land by a “conveyance” in the narrow or ordinary sense is not in doubt, but Mr. E. A. L. Bannerman from whom they obtained their title acquired the land by “conveyance” in the narrow sense. Mr. Bannerman was, therefore, in my view, a “purchaser” within the definition of section 1 (1) (a). The next question is whether the respondents can claim to be persons “claiming through him,” i.e. Mr. Bannerman? In my judgment, “a person claiming through him,” that is, the “purchaser,” means a person whose right of ownership or right to possession of the disputed land, depends upon the title of the purchaser. This right may be acquired either under an instrument or in accordance with the customary law.
In this case, the respondents claim to have acquired the disputed land through sale from Mr. E. A. L. Bannerman, the original legal owner of the land. The parties are all Ghanaians. The sale was conducted through Mr. Bannerman’s caretaker, Mr. W. S. Annan, and the evidence shows that the sum of 0600.00, the full purchase price, was paid to Mr. Annan by the respondents. The evidence further shows that Mr. Annan put the respondents into possession, and that the respondents immediately and openly started to construct a building on the land without opposition from anybody. A deed of conveyance of the land was prepared to be executed subsequently between the respondents and Mr. Bannerman, but this event never took place. I do not think that the omission to execute a deed of conveyance could affect
[p.193] of [1974] 1 GLR 185
the respondents’ title, for as Ollennu J. (as he then was) said in Bruce v. Quarnor [1959] G.L.R. 292 at p. 297, “Conveyance of land made in accordance with customary law is effective as from the moment it is made. A deed subsequently executed by the grantor for the grantee may add to, but it cannot take from’ the effect of the grant.” And in Cofie v. Otoo [1959] G.L.R. 300 the same learned judge said at p. 301:
“Her [defendant’s] main point is that she has been in active possession of the land in dispute as owner thereof long before the date of her deed; and that even though the deed does not recite the fact that it was executed to evidence a fact already in existence, that omission to recite the original sale does not affect the transfer already completed, or make the deed more than a mere written evidence of a transfer of land already effected as between natives.”
The crucial question in this case, therefore, is whether the sale of the disputed land was valid according to customary law. The first and most essential requirement for any alienation of land by customary law is publicity. During the trial a plan (exhibit X) was prepared on the order of the court, and whilst the appellant claimed the area edged red on exhibit X, the respondents claimed the area edged green. It was agreed that it was that area coloured yellow, red and green that formed the subject-matter of the dispute in the action. The plan showed that the appellant had already built a house on another plot of land which formed the northern boundary of the land in dispute, and there was a fence-wall which divided the two plots. Soon after the payment of the purchase price, the respondents went into possession of the disputed land and started the construction of buildings which took about nine months to complete. In my judgment, this act of taking possession constituted sufficient publicity to the appellant, who owned a house nearby, and to the whole world, that the disputed land had been sold to the respondents.
In ancient times, however, and, to a great extent, among the rural communities in some parts of contemporary Ghana, the customary law required the performance of some ceremonies before the sale of land was finally concluded: per Korsah C.J. in Tei Angmor & Co. v. Yiadom III [1959] G.L.R. 157 at p. 161, C.A. Among the Gas the ceremony was known as sikpon yi baa foo; as Ziba yi baa pom among the Adangbes, as guaha or trama among the Akans, and as Ahatutu anyigba dzi among, the Ewes. In Ollennu, Customary Land Law in Ghana at p. 116, the learned author, dealing with the alienation of land in the area where the disputed land in the present case is situated, writes:
“The demarcation having been completed, the purchase price or a portion of it is paid on the spot, if not already paid; a sheep is then slaughtered. By the custom of some lands, e.g., Kokomlemle lands a goat is slaughtered followed by the real ceremony of transfer, the cutting of guaha or of yi baa foo.”
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Then, after describing the full ceremony and the rationale underlying it, the learned author continues at pp. 117-118:
“In these days of literacy, and with the services of legal practitioners available, documents are generally prepared to serve as lasting evidence of any transfer or alienation of land and the nature thereof. It may therefore seem unnecessary that the cutting of guaha or the yibaa foo should be performed by children or younger members of the family. It must, however, be borne in mind that documents which are prepared after the alienation by customary law serve merely as documentary evidence of the transaction, they do not alter the nature of the transaction: see the case of Cofie v. Otoo.”
In my view, the cutting of guaha or of sikpon yi baa foo is only of evidentiary value, for where the sale is disputed and satisfactory evidence is led that the custom was performed this would be conclusive that the transaction between the parties was nothing other than a sale.
In the present case, the assertion that the alienation of the land to the respondents was a sale was not challenged, and consequently I hold that the absence of evidence of the slaughtering of a goat or the performance of the custom of sikpon yi baa foo, did not affect the validity of the sale of the disputed land to the respondents. I would, in any case, echo the words of Lingley J. in Biei v. Akomea (1956) 1 W.A.L.R. 174 at p. 176, that “This court cannot allow local customs to override general principles and practice in these days of changing conditions.” It seems clear to me beyond doubt that the respondents were “purchasers” within the definition of the Land Development (Protection of Purchasers) Act, 1960, and that the learned trial judge was right in giving them protection under the Act.
In view of the conclusion I have arrived at, I think the other grounds of appeal must equally fail, and in the result I would dismiss this appeal.
JUDGMENT OF LASSEY J.A.
I agree.
JUDGMENT OF HAYFRON-BENJAMIN J.A.
I also agree.
DECISION
Appeal dismissed.
SO.
