Division: IN THE COURT OF APPEAL
Date: 29TH MAY, 1959.
Before: KORSAH C.J., ACOLATSE J., AND SMITH J.
JUDGMENT OF SMITH
Plaintiff established that he obtained a grant in December, 1939 by the Anahor Stool. Prior to that, viz. in September, 1939, the Osu Stool (which includes the Anahor Stool) purported to grant land, including the disputed area, to the Chief Secretary by agreement. On the 24th October, 1940, the Legislative Council passed an ordinance under which Government acquired an indefeasible interest in the said land. In December, 1939, when the Shippi conveyed to the plaintiff, Government had not acquired that “indefeasible interest.”
The land in dispute was held under native tenure, and the parties are natives; therefore, sec. 87(1) of the Courts Ordinance applies. In consequence, the learned Judge was wrong in applying the purely English Rule against Perpetuities to this case. The land is Stool land granted by the Stool to subjects of the Stool. The agreement made by Government with Chiefs recognises native customary law, clearly showing that it was intended that under the agreement native customary law was not excluded. It follows that the English Rule against Perpetuities could not apply to defeat the rights of persons deriving title from the Chief or Chiefs. Yet the trial-Judge dismissed the claim because the grant sinned against that Rule.
In Danquah v. Ofei (2 W.A.L.R. 185) the rule against perpetuities was not applied. In Johnston v. Effie (14 W.A.C.A. 254) it was held that “a conveyance forms no part of a sale by native law and custom, mention of it in the receipt given by the vendor to the appellant-defendant, coupled with the other circumstances, indicated clearly that they intended their transaction to be governed exclusively by English Law.”
But in Ferguson v. Duncan (14 W.A.C.A. 316) it was held that “the parties being natives, the onus was on the defendant to satisfy the Court that native law and custom should not be applied, but he neither cross-examined the plaintiff nor himself gave evidence towards that end; and as for the subsequent mortgage, it was plainly an afterthought and formed no part of the original transaction. The evidence did not establish that the transaction was to be exclusively regulated by English law, and the Statute of Limitations did not apply.”
Even if the Rule against Perpetuities were applicable to grants between natives the grant to plaintiff-appellant was a vested grant, and therefore did not sin against that Rule. “The first remark to make about the Rule is that it does not apply to a vested interest, even though it does not take effect until a remote period” (Cheshire, “Modern Real Property,” 6th Edition, p. 482). Vested and contingent interests are distinguished on pp. 441 and 442 of the work cited. And the question what is a reversionary interest is examined in Suleman v. Johnston (13 W.A.C.A. 213 at p. 215, 3rd paragraph.)
The trial-judge misdirected himself as to the issue before him, which really was, “As between the parties, who had the better interest?” The question of title was not an issue. Where an owner of land brings an action to recover possession thereof, the defendant being in possession, the onus of proof of right to possession lies on the defendant. In a trespass action an averment of ownership is consistent
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with and amounts to an averment of possession, for ownership may be proved by proof of possession; the allegation, in such an action, that the plaintiff is owner puts possession and not ownership in issue, as possession is all that he need prove (England v. Palmer, 14 W.A.C.A. 659). The Judge was wrong in trying the case as if plaintiff s claim was for a declaration of title.
The defendants purchased the land from persons who obtained their grant from the Anahor Stool in 1951. The grant made by the Stool to defendants’ vendor was bad, null and void because at that time Government had acquired an indefeasible title. Defendant had sufficient notice of plaintiff’s title.
ARGUMENTS OF AKUFO-ADDO
Akufo-Addo for the defendant (Kwaddey). Quashie Idun J. made the following entry on the record on the 4th May, 1956:
“By consent it is directed that the issue to be tried is whether plaintiff is the owner of the land.”
This case is not on all fours with that of Danquah v. Ofei. In that case it was found as a fact that before the Stool conveyed the land in September, 1939 to the Government, the Stool had previously made a valid grant of it to Mabel Danquah. In the present case the plaintiff sought originally to bring his case into the same category as Mabel Danquah’s, but subsequently abandoned the attempt. He then relied on a deed of conveyance executed in December, 1939. Mabel Danquah had acquired title prior to the grant by the Stool to Government in September, 1939 and by Clause 9 she became entitled as owner.
Counsel for appellant has submitted that a reversion is by operation of law, whereas a remainder is by act of the parties.
He has contended that the 1939 grant to Government “merely” granted right, title and interest to Government. But in fact the Indenture recorded that “the Stool doth hereby grant and convey unto the said Governor? all the right title and interest of the Stool in or to all the parcel of land situate etc? absolutely excepting and reserving all those plots within the said parcel of land which prior to the date hereof have been allocated or conveyed by the Stool in conformity with the approved layout plan No. X1621 ? and upon which said plots have been erected buildings duly approved by the building Authorities.”
Clause 9 of the document, providing for reconveyance by Government, does not create a reversionary interest; if anything, it creates a contingent interest. The Rule against Perpetuities does not apply to this case.
There are two types of conveyance in this country –
(1) a “conveyance” which does not of itself grant anything at all, but merely evidences a grant by native customary law; and
(2) a conveyance which itself creates an interest in land.
In the latter category of conveyance, if any provision needs interpretation it must be interpreted by English law. When the learned Judge said that the grant to Government created an equitable interest, he was being too charitable to the appellant. Clause 9 does not create a reversion or a remainder. The grant to plaintiff created no legal interest whatsoever, because the Stool had previously divested itself of all its interest in the land. If the grant to Government did create an equitable interest, then the Rule against Perpetuities applies; if, on the other hand, Clause 9 does not create any interest in the Stool, then the purported grant to plaintiff was null and void.
Under the grant to Government, Government was to be the sole arbiter whether or not any land should be re-conveyed to the Stool. As to equitable estates properly so called, estate contracts, restrictive covenants and a mortgagor’s
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equity of redemption, see Megarry and Wade, “Law of Real Property” pp. 125, 127, 128 and 169.
The judgment was based on the following three grounds:
(1) on 13th December, 1939, when the Anahor Stool purported to grant land to plaintiff, the Stool had no legal title to the land;
(2) if the grant created any equitable interest, it contravened the Rule against Perpetuities;
(3) as the Accra Town (Lands) Ordinance vested in Government as absolute and indefeasible title, which could be reduced only by a divestment order, that ordinance operated to squeeze out all other interests (like plaintiff s equitable interest, if any), though they could be revived by a divestment order under section 2(2) of the Ordinance.
It would be contrary to justice to hold at this state that, though plaintiff failed on the claim as owner, he was in possession by virtue of his prior occupation and could succeed as against another person who occupied later. If that was his case, he should have amended his claim in the court below, and put in issue the possessory title.
LASSEY IN REPLY
The issue which was essentially before the Court was as to possessory title. The writ of summons was for recovery of possession, not for a declaration of title; and the statement of claim was directed towards recovery of possession, not declaration of title. It is true that the agreed issue was “whether plaintiff is the owner of the land,” but the word “owner” was used in the sense of possessory ownership. Where the validity of a defendant’s conveyance is put in issue, and his grantors had purported to convey a title which they did not have, the plaintiff being in possession of the land can maintain a suit in trespass against him (Adeshoye v. Shiwoniku, 14 W.A.C.A. 86). As to the Rule against Perpetuities in Cooper v. Stuart (1889) A.C. 286) it was held by the Privy Council in an appeal from the then Colony of New South Wales that whether or not the Crown in England would be affected by the rule against perpetuities, such rule was inapplicable in 1823 to Crown grants of land in the Colony, or to reservations r defeasances in such grants to take effect on some contingency more or less remote and only when necessary for the public good. In the present case the Government, by the grant from the Stool, did not acquire an absolute interest in the land. The divestment clause limited the rights of Government to deal absolutely with the land.
JUDGMENT OF ACOLATSE
This is an appeal from the judgment of van Lare J. in the Land Court, in a suit whereby the plaintiff by his writ sought (a) recovery of possession, and (b) mesne profits. In his statement of claim, plaintiff bases his claim upon a grant made to him by the headman of Anahor, by an Indenture dated 13th December, 1939, confirmed by the Mantse of Osu (Paramount Chief). He says that he had been in “undisputed and undisturbed” possession of the said land from the date of the grant until February, 1955, when defendant “wrongly and unlawfully” entered upon a portion thereof. In spite of repeated requests to quit and vacate the said portion, defendant unlawfully continued to build on the land.
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The defendant, on the other hand, in her statement of defence contends that the headman of Anahor had no title in the said land to convey to the plaintiff in December, 1939, as the land was at that date vested in the Government. The plaintiff, therefore, had no title by the said grant; consequently, the purported confirmation by the Osu Mantse was of no effect. She further avers that she has built on a piece of land upon the authority of certain people in whose favour Government has given an undertaking to release the land, who, in turn, have contracted to convey the land to her.
In order to understand the issues raised by the pleadings, in so far as the land in question was affected by whatever rights the Government may have acquired prior to the plaintiff s grant, it is essential to refer to the grant made to the Government, the purposes thereof, and the subsequent statutory provisions made with respect to the interest of the Stool and others having interest in the land.
In consequence of the earthquake which occurred in 1939 there was extensive damage to buildings in Accra. In order to provide accommodation for those whose houses had been destroyed or damaged beyond repair, the Osu Stool at the request of the Government conveyed a large piece or parcel of Stool land, including the plot in dispute, to the Government “For the purpose of erecting thereon two room structures for the temporary accommodation of subjects of the Stools of the Ga State in Accra rendered homeless as a result of earthquake and by the demolition of buildings and for purposes connected therewith or necessitated thereby”. The other recitals and covenants therein contained further explain the purposes, and define the rights and obligations created by the Indenture.
As the defendant admits that she has built on a piece of land upon the authority of certain people in whose favour Government has given an undertaking to release the land, and who in turn have contracted with her to convey the same to her, the covenant in the Indenture upon which this defence is based may be quoted in full.
“The Government will reconvey to the Stool or such Stool or person as shall have been duly adjudicated to be the previous owner thereof any plots situate within the land hereby conveyed which shall be found by the Government not to be required either for the purposes thereof or which shall not be required for public purposes such as roads, streets, lanes, latrines, dustbins, incinerators, open spaces, markets, schools and such like purposes of public health and convenience or which shall not have been conveyed to an allottee in accordance with clause 7 hereinbefore contained provided nevertheless that where a two-room
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structure has been erected upon any plots so reconveyed to the Stool as aforesaid the Stool of [1959] glr 24i-249shall and doth hereby covenant to pay to the Government prior to such reconveyance the cost of construction of such structure or such other price as the Government may agree to accept and in such manner as may likewise be agreed upon.”
The short history, which emerged from the evidence, of the conveyances with respect to the land by the chiefs and elders of the Osu Stool, and persons deriving title from the said Stool, may be briefly summarised.
By an Indenture dated 24th September, 1939, the Osu Mantse and his sub-chiefs (including the Shippi and others of Anahor) conveyed a large piece of land to the Government for the purposes aforementioned. About 3 months later, i.e. on 13th December, 1939, Anahor Stool, a sub-Stool of Osu, conveyed a piece of land, including the plot in dispute, to the plaintiff, who immediately took possession and erected boundary pillars to mark the area conveyed to him. This conveyance was approved by the Osu Mantse, the Paramount Chief. About 12 years later, by an Indenture dated 6th December, 1951, Shippi (or headman) of Anahor conveyed a piece of land to one Obodai Annan; and by another Indenture dated 10th December, 1951 Shippi or headman of Anahor conveyed a piece of land to one Clement Adjei Kweitey. About 4 months later the said Obodai Annan conveyed his plot of land to one Frank Aja Torto, who by an Indenture dated 24th June, 1954, conveyed his plot of land to the defendant Beatrice Okyerewa Kwaddey, who commenced to build on the land.
Samuel Christopher Otoo, who describes himself as the Chief Linguist to the Chief of Anahor Quarter, was called as a witness for defendant. He explains the matter thus:
“The Anahor Quarter had no plan to ascertain as to whether or not any quarter land has been granted to anyone. Since my time we now take a copy of the plan of plots going out to grantees. But in this case we did not know that the Stool had previously granted that area to the plaintiff. This was when Akweitey went and broke down the plaintiff’s pillars on the land. This was in 1952. When we granted the land to Akweitey he came and told us that some one had already put his pillars on the land. I went on the land myself and saw the pillars”.
It is obvious from the above evidence of the Chief Linguist that the Anahor Stool admits responsibility for a mistake, resulting in the
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land which had been previously conveyed to plaintiff being subsequently conveyed again to Akweitey and Obodai Annan, who in turn conveyed the plot to defendant.
The facts remain, however, that both plaintiff and defendant derive title from the Anahor Stool, and that the documents purporting to convey the land to each of them were executed after the date of the conveyance in respect of the larger piece or parcel of land to the Government. In these circumstances it is clear that neither plaintiff nor defendant could maintain an action for recovery of possession or trespass against the Government, though the Government could have maintained such an action against both of them.
But as between plaintiff and defendant, we are clearly of the opinion that the party who first obtained possession of the land can maintain an action for recovery of possession against the other, who wilfully broke down the former occupant’s pillars in order to occupy the land. This principle of law was applied by the West African Court of Appeal in the judgment delivered by Verity Ag. J.A.: in the case of Danquah v. Ofei & anor., (2 W.A.L.R. at p. 190).
“The facts as they appear from the evidence accepted by the learned trial-Judge are that the plaintiff having been given an oral grant in 1939, confirmed by deed in 1945, entered into actual possession of the land by placing pillars thereon to demarcate her area of occupation. In 1948 the first defendant entered upon the land and dispossessed the plaintiff, who brought this action to recover possession. The simple question is whether this action is maintainable. I think that it clearly is. At the date of the first defendant’s entry the plaintiff had been in possession for three years, even if it is to be assumed that she did not enter into possession until the deed of 1945. It is true that at any time during that period the Chief Secretary, in whom was vested title to the land, could have ejected her but otherwise as against all the world the plaintiff was entitled to maintain her possession, and if dispossessed to evict the intruder. This principle has been long established, but perhaps I may cite the words of Cockburn C.J. in Asher v. Whitlock (1865) L.R. 1 Q.B.1.), “I take it as clearly established that possession is good against all the world except the person who can show a good title; and it would be mischievous to change this established doctrine’, and again at p.6…’if the lord has acquiesced and does not interfere, can it be at the mere will of any stranger to disturb the person in possession?”
It will be observed that the facts upon which the judgment in Danquah v. Ofei & anor. is based are very similar to those in this
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appeal. Mabel Danquah claimed to have acquired title to Osu land by an oral grant from the Stool or Osu Mantse in 1939, but prior to 24th September, 1939, when the Osu Mantse and his sub-chiefs, etc., conveyed the larger piece of land (including the plot in dispute) to Government for the purposes aforementioned. By virtue of the conveyance to Government and the subsequent statutory provisions, title to the plot vested in the Government; yet the Court held that
“At the date of the first defendant’s entry the plaintiff had been in possession for three years, even if it is to be assumed that she did not enter into possession until the deed of 1945. It is true that at any time during that period the Chief Secretary, in whom was vested title to the land, could have ejected her but otherwise as against all the world the plaintiff was entitled to maintain her possession.”
It will further be observed that in the case of Danquah v. Ofei the plaintiff sued for declaration of title, but on the facts the Court held that she was entitled to an order for recovery of possession. In the present case, although the claim is for recovery of possession, and there is ample evidence on record to support such a claim, the trial Judge in his judgment said:
“While I must admit that the defendant’s legal interest in the land may be defective, it is nevertheless not necessary for me to go into the details, as she is a defendant in possession and does not counterclaim any right of title or interest against the plaintiff, on whom rather the onus lies to establish his title in support of his claim to recovery of possession and for mesne profits”.
With respect, we are unable to agree with this view of the case, for if this were to be accepted as the principle of law, then a person who is in possession of a piece of land could be dispossessed by another through the latter’s merely entering upon the land forcibly, and then saying to the original occupant, “I am now in possession, therefore you must prove your title.” Clearly as against all the world (except the Government) the plaintiff, who had been in possession since 1939, could maintain an action for recovery of possession, and evict the defendant as an intruder.
The following passage occurs in the judgment of Lord Watson in the case of Sundar v. Parbati ((1889) 5 T.L.R. 683, at page 684):
“Their possession was lawfully attained, in this sense, that it was not procured by force or fraud, but peaceably, no one interested opposing. In these circumstances it did not admit of doubt that they were entitled to maintain their possession against all comers except the heirs of Praimsukh or of Baldeo
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Sahai, one or other of whom (it was unnecessary to say which, was the only person who could plead a preferable title. But neither of these possible claimants was in the field, and the widows had therefore, each of them, an estate or interest in respect of her possession which could not be impaired by the circumstance that they might have ascribed their possession to one or more other titles which did not belong to them.”
In the case of England v. Palmer (14 W.A.C.A. 659) it was held:
“(1) In a trespass action an averment of ownership is consistent with, and amounts to, an averment of possession, for ownership may be proved by proof of possession.
(2) The allegation, in such an action, that the plaintiff is owner puts possession and not ownership in issue, as possession is all that he need prove”.
The ratio decidendi was similar in the case of Adeshoye v. Shiwoniku (14 W.A.C.A 86).
In the case of England v. Ofei, Mabel Danquah claimed declaration of title, but the evidence merely entitled her to an order for recovery of possession. The Appeal Court in that case held that the trial-Judge erred in making a declaration of her title to ownership in view of the fact that the ownership of the Chief Secretary had not then been terminated, but the Court endorsed an order for recovery of possession and mesne profits.
With reference to the principle of law relating to the Rule against Perpetuities, to which the learned Judge referred, there is in our view no evidence on record to justify the application of the rule in any way. As Counsel for respondent does not support the view that that rule applies in this case, there is no object in labouring a question which in our view is irrelevant.
DECISION
We therefore allow this appeal, set aside the judgment of the Land Court, and grant plaintiff-appellant recovery of possession and mesne profits against the defendant-respondent, with costs of the Court below to be taxed. The costs of this appeal are fixed at £70 11s.7d. for the appellant.
