REPUBLIC vs. HIGH COURT, ACCRA; EX PARTE LANDS COMMISSION (VANDERPUYE ORGLE ESTATES LTD, INTERESTED PARTY) [1995-96] 1 GLR 208

CASES REFERRED TO

(1) MacFoy v United Africa Co Ltd [1962] AC 152; [1961] 3 WLR 1405; [1961] 3 All ER 1169, PC.

(2) Mosi v Bagyina [1963] 1 GLR 337, SC.

(3) Howard v Patent Ivory Manufacturing Co (1888) 38 ChD 156.

(4) Underwood Ltd v Bank of Liverpool [1924] 1 K.B 775, CA.

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(5) Amankwah v Kyere [1963] 1 GLR 409.

(6) Chahin & Sons v Epope Printing Press [1963] 1 GLR 163, SC.

(7) Abbey v Ollenu (1954) 14 WACA 567.

(8) Mercantile Investment and General Trust Co v River Plate Trust, Loan and Agency Co [1894] 1 Ch 578; 63 LJCH 366; 70 LT 13 1.

(9) Nettey v Odjidja (1955) DC (Land) ‘52-’55, 344.

(10) Attram v Aryee [1965] GLR 341, SC.

(11) Golightly v Ashrifie [1961] GLR 28, PC; affirming (1955) 14 WACA 676; affirming sub nom Ashrifi v Golightly (1951) DC (Land) ‘48-’51, 312.

(12) Dancherelebi v Kofi (1952) DC (Land) ‘52-’55, 50.

(13) Okyere v Adjei [1961] GLR 34.

NATURE OF PROCEEDINGS

APPEAL by the Lands Commission to the Court of Appeal from the decision of the High Court granting an order of mandamus against the commission, on the application of the respondent, to compel the commission to restore to its property records the deeds of a leasehold of a tract of James Town stool land granted the respondent in 1973 by the then James Town Mantse, Nii Adja Kwao II, and his elders and which had received the assent of the commission and been registered but which the commission had later expunged from its records on the ground that the enstoolment of Nii Adja Kwao II had subsequently been declared by the National House of Chiefs to be null and void and therefore all dispositions of James Town stool lands he had made, including that of the respondent, were also null and void. The facts are sufficiently stated in the judgments of Wood and Brobbey JJA.

COUNSEL

Felix Nyaletey, State Attorney, for the applicant.

Nii Aponsah for the respondent.

JUDGMENT OF WOOD JA.

By an indenture dated 28 September 1973 and registered as LR No 374/78, the respondent in this appeal acquired a leasehold interest in a large tract of the James Town stool land on the Winneba Road known as Korkor Dzor. The grant was made by Nii Adja Kwao II in his capacity as the James Town Mantse and with the consent and concurrence of the accredited elders. This grant also received the

[p.211] of [1995-96] 1 GLR 208 concurrence of the appellant, the body statutorily empowered to give due recognition to all grants of stool lands and record them in its books.

Unfortunately, the said chief was subsequently destooled in the year 1974. This was after a declaration by the chieftaincy tribunal that his enstoolment was null and void. In spite of the valuable consideration the respondent had already paid to the stool, it however renegotiated the grant with the stool and provided yet another valuable consideration.

When the appellant however threatened to withdraw the concurrence it had earlier granted by expunging the said lease from its records, and indeed further refused to recognise a sublease made by the respondent, it was compelled to apply to the High Court for an order of mandamus directing the appellant to restore to its property records the deed of lease in question. The learned trial judge granted the order and the appellant who was dissatisfied with the decision appealed to this court on three grounds.

At the hearing of the appeal, however, counsel elected to argue only one ground—ground (a) and abandoned the others. That ground reads: “The learned High Court judge misdirected himself on the effect of the chieftaincy tribunal of the National House of Chiefs declaring Nii Adja Kwao never to have been a chief of James Town.” The argument in support of this ground is simple. It was urged upon us that the judgment of the National House of Chiefs which was referred to by the learned trial judge in his judgment, declared the election and enstoolment of Nii Adja Kwao II a complete nullity, The argument then was that it followed that all dispositions of stool lands made by him in his purported capacity as James Town Mantse are accordingly null and void, since on the authority of the time honoured principles stated in: MacFoy v United Africa Co Ltd [1962] AC 152, PC and Mosi v Bagyina [1963] 1 GLR 337, SC, one cannot build or found anything valid on nothing, or a nullity. By this argument, counsel invited us to draw a sharp distinction between this instant case where the very basis of the chief’s position is declared null and void and those cases where the original position is affirmed but he is subsequently destooled or removed on stated grounds. The latter, it was urged would not render earlier dispositions, ie those made during his tenure of office, invalid, whereas in the former instances, as in this

[p.212] of [1995-96] 1 GLR 208 present case, all such grants or dispositions would become complete nullities.

The respondent’s counsel advanced two reasons why the appeal must fail. First he argued that the law protects innocent third parties who acquire rights from chiefs whose election and enstoolments are subsequently declared nullities. This, in my view, adequately answers the question raised by this appeal. I shall deal with it in depth presently. The second, in my view, ought to fall. The reason is that that issue did not arise and there were no facts in support of them. It was not raised either on the affidavits or at the hearing. It is this that the (the respondent) is guilty of laches and acquiescence.

In my view then, the question raised by this appeal is this: What happens to a valid disposition made by a chief whose nomination, election and installation is subsequent to the disposition, declared a complete nullity? Would this declaration consequently nullify in toto such a grant? It is to the learned trial judge’s credit that he identified this as the main bone of contention between the parties. His answer which I, indeed, affirm by this appeal was couched in the following manner:

“I believe that purchasers or innocent third parties ought to find protection under the law in such situations and certainly a court of equity would never sanction or support the respondent’s contention because the confusion and absurdity arising therefrom can very well be imagined.”

In this instant case, the respondent demonstrated by its affidavit in support of its application that it was an innocent purchaser for value without any notice of any defect in the chief’s capacity. On the contrary, all the evidence it had at the time of the grant showed that he was indeed, both in law and in fact the lawful chief at the time. We have first the evidence that he had been duly gazetted and recognised as the occupant of the stool—see exhibit B, being the Ghana Gazette Extraordinary, No 69 published by authority and dated 1 August 1959. See also the James Town Mantse (Recognition) Order, 1959 (LN 201). This latter enactment is interesting as it makes it a criminal offence to challenge the chief’s position. Thus, all were by law bound to recognise him as a chief. Second, we have the accredited elders concurring to the grant and executing the lease agreement. There is no [p.213] of [1995-96] 1 GLR 208 evidence that these have also subsequent to the transaction been removed or adjudged to have acted to the knowledge of the purchaser fraudulently, by misrepresenting themselves as elders. On the contrary, indeed by their very concurrence or the lack of any evidence from the appellant or both that, indeed, they drew the respondent’s attention to the fact that he was not the accredited occupant, they confirm the respondent’s position that it acted innocently and was never at any time put on its inquiry or guard that it was indeed acting with the wrong person. Indeed, the appellant did not challenge any of the material facts upon which the respondent maintains that it is an innocent purchaser for value without notice of the chief’s incompetence or lack of capacity. If it should turn out, as it has in this instant case, that the nomination, election and installation of the de jure and de facto chief from whom the respondent obtained a valid lease is declared a nullity, ought not the law afford this innocent third party complete protection and hold the title still valid? Ought not the acts of this chief bind the stool? I have had no difficulty in answering in the affirmative.

The closest analogy I can immediately think of comes from company law. It is a basic rule in company law, and one which is based on the normal or general agency principles, that where an outsider deals with a company through an officer who is or is held out by the company as a particular type of officer (eg managing director) and who purports to exercise a power which that sort of officer would usually have, the company is liable for the officer’s acts, even though the officer has not been so appointed or is even in fact exceeding his actual authority. Of course, no protection is given that outsider if the officer is in fact exceeding his actual authority and (a) that person knows the officer has not been so appointed or has no actual authority: see Howard v Patent Ivory Manufacturing Co (1888) 38 ChD 156; (b) the circumstances are such as to put him on his guard or inquiry: see Underwood Ltd v Bank of Liverpool [1924] 1 KB 775, CA; and (c) the public documents made it clear that the officer has no actual authority. So we see clearly that the law affords protection to such innocent third persons when the agent had exercised an authority which that sort of officer would normally have, differently put, when that officer has acted within the scope of his usual authority. It is these same principles of law which prompted the learned trial judge in Amankwah v Kyere [1963] 1 GLR

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409 at 413 to pose the hypothetical problem of going to Kingsway Stores and making payment out to a man who holds himself out as a cashier and issues an official stamped receipt when in fact the man had been dismissed from their services and he of course absconds with the money. The learned trial judge asked “Does my payment constitute a valid settlement of my account?” Of course he answered in the affirmative.

The available evidence shows that the respondent in obedience to the laws of this land at the time, dealt with the de jure and de facto chief of the James Town stool. All available public documents show he was the lawful chief. His functions included the disposition or transfer of James Town stool lands. This he is entitled to do with the concurrence of the accredited elders of the stool. The respondent obtained a lease and it gave good value for it. All the facts available to the respondent at the time of the transaction confirmed rather that he had capacity to act and was indeed the lawful chief. On the contrary, it had nothing to put it on its inquiry or to suggest he has not been so appointed.

In my opinion, where a chief validly makes a disposition of any stool land to an innocent third person, and subsequent to this disposition, his nomination, election and installation is declared a nullity, that disposition shall be protected and not nullified on account of the declaration. That disposition shall remain valid, and bind both the stool and the successor chief. It is clear that to succeed then, the purchaser must demonstrate that the acquisition was from one who was, at the material time, the chief. Also the said grant was obtained in good faith without any knowledge of any defect in the title of the chief.

In coming to this conclusion, I have adverted mind to those two cases relied on by the respondent’s counsel: Mosi v Bagyina (supra) and MacFoy v United Africa Co Ltd (supra). These were cited in support of the proposition that once a matter is found to be null and void any other thing founded on that matter must also automatically be declared a nullity. The necessary implication being that once the chief’’s status has been declared a nullity, the respondent’s lease also becomes void. The conclusion I come to is that none of these cases is applicable to this one under consideration. In other words they are distinguishable.

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We do find in the case of Mosi v Bagyina (supra) that the learned trial judge made an order not warranted by law or rule of procedure.

That is to say, he acted without jurisdiction. The law (the public documents) show he has no power to act as such. Therefore his act was clearly void and nothing valid could be founded on it. In this present case, however, at the material time that Nii Adja Kwao II concluded the agreement, he was both in law and in fact the chief of James Town, and empowered to dispose of stool lands.

Again what distinguishes the MacFoy case (supra) as well as the case of Chahin & Sons v Epope Printing Press [1963] 1 GLR 163, SC from this one under consideration is that the acts complained of were voidable, as opposed to entirely void acts. They were acts capable only of being set aside, or affirmed. Even so, I do not think it can ever be said that the stool has taken steps to avoid the agreement. On the contrary, I would find the fact that the successor acting chief, Nii Okpe III, in his capacity as the occupant of the stool renegotiated the agreement with the respondent, and indeed accepted another valuable consideration from it is evidence that the stool, who is the owner and has been held to be a corporation sole has affirmed the transaction. In such circumstances, I would find it difficult to declare the lease a nullity. In my view then, this appeal fails and the same ought to be dismissed.

JUDGMENT OF BROBBEY JA.

The facts which gave rise to this appeal were as follows: In 1959 Nii Adja Kwao II was enstooled chief of James Town. In 1973 the respondent acquired a vast plot of land from the James Town stool acting per Nii Adja Kwao II, as Mantse, together with the elders of the stool. In 1974 destoolment proceedings were commenced against Nii Adja Kwao II. The proceedings culminated in the National House of Chiefs finally ruling in 1983 that the election, installation and enstoolment of Nii Adja Kwao II was null and void.

Following that decision, the Lands Commission (hereinafter referred to as the appellant) wrote a letter to the respondent. That letter was tendered as exhibit C. In exhibit C, the appellant warned that it intended to expunge the deeds on the respondent’s leasehold on the plots from its records.

The respondent eventually applied to the High Court for an order of mandamus compelling the appellant to restore to its property records [p.216] of [1995-96] 1 GLR 208 the deeds on the said leasehold. The High Court granted the order. Dissatisfied with the ruling of the High Court, the appellant appealed to this court. In the High Court, and before this court too, the parties seemed to have accepted that the appellant exercised a statutory function in respect of which an order of mandamus could be made if the application is properly grounded. There is therefore no need to consider whether or not an order of mandamus could be issued against the appellant.

Three grounds of appeal were initially filed. Two were abandoned. The only one argued was this: The leasehold was granted by Nii Adja Kwao II in 1973 in his capacity as the James Town Mantse. There is no doubt that by the decision of the National House of Chiefs in 1983, his election, installation and enstoolment were ruled null and void. The appellant interpretated that part of the judgment to mean that Nii Adja Kwao II was deemed never to have been appointed a chief and therefore all actions taken by him in his capacity as the James Town Mantse were null and void. The leases he granted were equally null and void and that was why the deeds on the leasehold on them had to be expunged from the appellant’s property records. The respondent opposed the arguments on a number of grounds.

The decision of the National House of Chiefs was given in the case of Nii Otokunor Sackey, James Town Mantse, substituted by Nii Ayikwei v Nii Adja Kwao, James Town Mantse dated 25 March 1983. It was exhibited in the arguments before us. Simply put, all that the case decided was that the election, installation and enstoolment of Nii Adja Kwao II as James Town Mantse were null and void. The case never decided that Nii Adja Kwao II “was deemed never to have been a chief.” That was an interpretation put on the judgment by officials of the appellant as shown in the letter, exhibit C, or the legal advisors of the appellant as was put across in the course of the hearing of this appeal.

In the light of the special facts of the case, I do not think that that is a correct application of the interpretation put on the decision of the National House of Chiefs, ie that the election, installation and enstoolment of Nii Adja Kwao II were null and void. The facts were that he was elected, installed and enstooled as a chief on 16 July 1959 as appearing in exhibit B attached to the motion for leave to apply for the order of mandamus filed on 18 March 1993. The same exhibit B

[p.217] of [1995-96] 1 GLR 208 showed that his enstoolment was gazetted on 1 August 1959. That was not all. On the same 1 August 1959, Nii Adja Kwao II was recognised as James Town Mantse by the government of the day in the James Town Mantse Recognition Order, 1959 (LN 201). Indeed, LN 201 of 1959 stated emphatically that:

“2. The enstoolment of Mr. Samuel Eric Golightly Odartei Thompson otherwise Nii Adja Kwao II as James Town Mantse is recognised and any person failing to recognise Mr. Samuel Eric Golightly Odartei Thompson otherwise Nii Adja Kwao II as the enstooled James Town Mantse commits an offence against the Chiefs (Recognition) Act, 1959, and shall be liable accordingly.

To all intents and purposes, therefore, Nii Adja Kwao II was the de facto and de jure James Town Mantse. The writ which culminated in the decision of the National House of Chiefs was issued, according to the judgment, in 1974. To my mind, the expression “deemed never to have been a chief” would not have been correctly applied when on the facts and according to the laws of the country at the relevant times, Nii Adja Kwao II was the James Town Mantse. The word “deemed” only raised a presumption. That presumption was clearly rebutted by the facts of the case as appearing on the record.

In 1973 when the lands were leased to the respondent by Nii Adja Kwao II, he was the de facto and de jure James Town Mantse. Anyone who had any business to transact with the James Town stool could not but deal with the one and only person then known to the stool as the James Town Mantse and he was Nii Adja Kwao II. No one could therefore fault the fact that the respondent dealt with the then occupant of the James Town stool, Nii Adja Kwao II, in the lease transaction on the lands. In fact, I would say that in 1973, the respondent dealt with the right persons as far as the James Town lands were concerned.

There is no doubt that the decision of the National House of Chiefs given in 1983 affected the very position of Nii Adja Kwao II as the James Town Mantse. But that decision was given in 1983. Naturally, when a position is said to be null and void, that position is ineffective in taking actions. There is also no doubt that as a general rule a position which has been nullified is rendered ineffective from its roots. That is the common law situation. However, the law in its wisdom has laid down other common law principles which provide exceptions to

[p.218] of [1995-96] 1 GLR 208 that general rule and by which the courts are enabled to do justice to parties in appropriate cases. Some of them have been enunciated in decided cases.

Of all the exceptions, the one most pertinent to the facts of this case is this: a purchaser of landed property cannot be estopped or affected by litigation involving the vendor initiated after the purchase has been concluded. There are several authorities on this, some of which are these: In Abbey v Ollenu (1954) 14 WACA 567 land was sold and conveyed to the defendant. He built on it in ignorance of the fact that after his purchase but before he built, the plaintiff had sued his vendor and obtained declaration of title in his favour. The plaintiff’s action against the defendant for that land failed, the West African Court of Appeal holding that the defendant was not estopped as being privy in estate by a judgment in an action against his vendor commenced after the purchase. That West African Court of Appeal case relied on the authority of Mercantile Investment and General Trust Co v River Plate Trust, Loan and Agency Co [1894] 1 Ch 578. That English authority was also applied in Nettey v. Odjidja (1955) DC (Land) ‘52-’55, 344. In that case one Fiscian sold land on behalf of the Aruna family to Nelson who in turn sold it to the defendant. The latter erected corner pillars on the boundaries and put his tenant in occupation. Subsequently, the Narh Korley family obtained declaration of title in their favour in respect of the land and proceeded to sell it to the plaintiff.

The plaintiff’s action against the defendant failed for the same reason that the purchaser could not be estopped as being privy in estate by action against his vendor commenced after the purchase. A more modern authority which followed on the same trend and the same English authority was Attram v Aryee [1965] GLR 341, SC. In that case, the plaintiff claimed to have derived title to the disputed land from the Sempe stool by virtue of a gift to her in 1952. The defendant claimed his title to the same land from the Alata stool. While the dispute was pending between them, in court, litigation arose between the Sempe and Alata stools. Judgment was eventually given in favour of the Alata stool over, inter alia, the disputed land. The argument that the judgment was binding on the parties to the pending suit as being privies to the stools failed for the reason that the parties were not estopped by judgment obtained in litigation commenced after the

[p.219] of [1995-96] 1 GLR 208 purchase.

Declaration of title to the lands implied that those who sold the lands earlier had title which they could have passed to the purchaser or lessee. The effect of those judgments was the same as saying that the capacity of those who sold or leased the lands were null and void or “deemed never to have existed” as the appellant would put it. Nevertheless, the purchasers did not lose the lands merely because those who sold or leased them were ruled by the court never to have had any title which could have passed or never to have had capacity to pass any title.

It would be observed from the above authorities and others on the issue that once the sale has been concluded the purchaser’s right under the sale is not annihilated by a judgment on litigation commenced after the sale. There is no precedent for the proposition canvassed on behalf of the appellant that a judgment subsequent to a land transaction which nullifies the capacity of the party to conduct the transaction automatically led to the nullification of the entire transaction. Counsel for the appellant was not able to point to any authority in support of his proposition because there is none. Merely using the literal meaning of the expression “null and void” as appearing in Mosi v Bagyina [1963] 1 GLR 337, SC will not assist in solving the peculiar issue raised in this case which relates to the effect of a judgment given after sale or lease of land has been concluded. An equally authoritative case on the issue was Golightly v Ashrifi [1961] GLR 28, PC. In that case, the Atukpai family claiming to be owners of Kokomlemle lands, sold portion of it to strangers who put up buildings on them. That was in 1942. Since 1875 however, the Okaikor Churu family had been given the right to farm on those Kokomlemle lands. That right was granted by the Gbese stool. In 1943 the Okaikor Churu family sued for declaration of title to the disputed lands. The trial judge, Jackson J, held that, the Atukpai family had no right to the land at all. He held further that the Korle stool, in conjunction with the Ga and Gbese stools, had right over those lands as allodial owners, with Okaikor Churu family as the possessory owners. That decision was affirmed by the West African Court of Appeal in Golightly v Ashrifie (supra) in the Privy Council.

In the headnote to the report of the Privy Council case at 29 it was held, inter alia:

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“(3) that the Korle priest as the caretaker of the lands may make grants of lands to members of the stool for specific purposes, that is, to farm or to build for the purposes of residence or trade; but this right can only be exercised over land which is deemed to be unappropriated;

(4) that an outright alienation or sale of the lands can only be effected with the prior consent of the three stools, the Ga, Gbese and Korle stools, and that publicity is necessary in such transactions . . .

(5) that the three stools cannot, however, alienate stool land without obtaining the consent and concurrence of individuals or families who are lawfully in occupation of the land, such as subjects of the Gbese stool who are in occupation, or strangers who have been properly granted some interest, be it farming or occupation interest, in the land.”

It is significant to point out that this case too, like the others already referred to, never ruled that because the Atukpai family had no right over the land which it could grant or that the Gbese stool alone had granted land, those grants should be considered as nullified by those decisions in the West African Court of Appeal and the Privy Council. It was carefully decided that the rights of the rightful owners could only be exercised over lands “deemed to be unappropriated.”

To my mind, the most important factor in the instant case is whether or not at the material time that the lease was entered into, Nii Adja Kwao II had authority to grant the lease on behalf of the James Town stool. There could be no doubt whatsoever that on 28 September 1973, when the lease was entered into, Nii Adja Kwao II was the acknowledged James Town Mantse, which position was confirmed and recognised in Gazette No 69 of 1 August 1959 as well as LI 201 of 1959.

A similar issue arose in Dancherelebi v Kofi (1952) DC (Land) ‘52-55, 50. In that case, there was a time when there was no Asere Mantse. During that time the Akwashong Mantse was the caretaker of the Asere lands. The plaintiff acquired a piece of Asere land from the Akwashong Mantse who granted it with the consent and concurrence of his elders. At the time of the grant, the authority of the Akwashong Mantse had been terminated but that was unknown to the plaintiff. The defendant later obtained another grant of the same land from the Asere

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Mantse and built on it. In a dispute as to title to the land between the plaintiff and the defendant, it was held as stated in the headnote that:

“. . . The signature of a recognised caretaker to Ga lands was frequently accepted by the courts as that of the person authorised by custom to execute such documents. In the absence of publication that the authority of the Akwashong Mantse had ceased, the plaintiff had dealt with him in good faith as the person held out by the stool as its agent for dealings in land.”

In the instant case too, the respondent dealt with Nii Adja Kwao II in 1973 in good faith as the person held out by the James Town stool elders and the then prevailing law as the authority for granting leases on James Town lands. The lease he granted on behalf of the stool was therefore valid, and will remain valid until ruled otherwise by a court of law, not the Lands Commission. The fact that subsequently litigation erupted which culminated in his installation being ruled as void could not nullify the lease transaction entered into when he was properly clothed with authority to grant the lease. From the authorities quoted above, the James Town Mantse installed after Nii Adja Kwao II could only alienate such lands as are deemed to be unappropriated. Lands granted to the respondent remained the property of the respondent in terms of the lease under which they were granted until ruled otherwise by a court of law, not the Lands Commission.

In the light of the foregoing, the appellant clearly erred in its interpretation that all grants made by Nii Adja Kwao II were void because his enstoolment had been declared void. I am of the opinion that those grants were not void, and so there was no basis for concluding that records on the grants should be expunged. Since the appellant had no legitimate reason for removing the deeds from the records, it was correctly ordered to restore or to retain in their records the documents in respect of which concurrence had been granted.

When the facts leading to this case are seriously considered, one cannot but impugn the decision of the appellant’s officials as an unwarrantably officious action which does not fully take into account the due process of the law. I make this point for a number of reasons. The first reason is that the lease was actually executed between the stool represented by the James Town Mantse and the stool elders on the one hand, and the respondent on the other. The participation of the

[p.222] of [1995-96] 1 GLR 208 stool elders was indispensable in validating the lease transaction. The chief alone could not have validly executed exhibit C. The judgment of the National House of Chiefs did not rule that the appointments and positions of the stool elders who executed the lease with the stool occupant were also null and void. They presumably remain the same stool elders today. Needless to say, they must be presumed to be working with whoever is the current James Town Mantse who is the properly elected and enstooled chief. It is the stool, the stool occupant and stool elders who must take legal action to recover the lands from the respondent. This is because several questions will arise in such an action which will have to be adjudicated upon before it can properly be decided whether the leases were valid or invalid. It was only after they had been ruled invalid that the appellant could properly expunge them from its records. Until then, the appellant cannot constitute itself into an authority on its own and use its own interpretation of the National House of Chiefs’ judgment to expunge the records. What will happen if the appellant is allowed to have its way but relying on its interpretation, some other authority alienates the lands to others who build on them or develop them and thereafter a court of law rules that interpretation erroneous? The harm and chaos that would ensue may very well be imagined. If these three take action against the respondent in court, one of the obvious issues which will arise is; whether those elders and principal members who acted with Nii Adja Kwao II to make the grants in exhibits C can morally and legally turn round to join the current chief to dispossess the respondent of the lands or cancel the leases? Would the elders and principal members not be estopped by their own conduct? The same question may be addressed to the stool as an institution. Will it not be similarly estopped?

Speaking for myself, I find it difficult to see the justice in this whole exercise. If Nii Adja Kwao II, the stool elders and the stool under him had by their actions brought some benefit, profit or reward to the stool, would the current stool occupant, stool elders and the stool throw away those benefits, profits or rewards merely because he was not properly enstooled? The answer will obviously be in the negative. Why should they now be permitted to repudiate contracts properly entered into by all of them merely because the occupant alone was not properly enstooled? If there was an error in the enstoolment, was it the making of the respondent? Surely it was the stool elders and the stool who put

[p.223] of [1995-96] 1 GLR 208 him on the stool who should suffer, not the innocent third party or innocent outsider like the respondent.

Another question which should not be ignored is this: How many times will the purchaser or grantee of stool land have to pay over and over again for the same land merely because the appointment, election, installation and enstoolrnent of one of those who participated in the transaction are subsequently ruled by a court to have been null and void? If the appellant’s arguments in exhibit C were valid it would be a recipe for insecurity for those who deal with stool property. It is a well-established law that a stool land can be disposed of only by the occupant acting with the consent and concurrence of the principal elders of the stool. Today, it is the position of the chief whose nullification is being used to nullify the transaction. Next time it will be the dzaasetse or any of those whose participation is a sine qua non to the validation of transaction involving stool property. At any time one appointment is nullified it would follow that the entire transaction could be nullified.

The insecurity apart, the argument canvassed on behalf of appellant will be a dangerous instrument for those who conduct land business on behalf of stools to perpetrate fraud on those who enter into such transactions with them. My reason for this view is this: When stool land is sold, the money is presumably to be used on behalf of the stool by those who conduct stool affairs. The effect of the appellant’s argument would mean that after the stool had sold land and the money had been used on the stool, the same stool could turn round to demand more money for the same transaction because one person wrongly happened to have participated in the transaction. If the wrong person entered into the transaction does that justify the stool keeping the original money and demanding more? Again, if the case goes to court, it is not inconceivable for a grantee faced with a situation like that of the respondent to back out of the transaction and demand from the stool and its elders, the money expended on the grant, and perhaps with interest too? Such a grantee may perhaps be justified in demanding a refund of what he paid for the land because in actual fact, he paid the money to the stool, its occupant and its elders for consideration which had failed or which these same people had caused to fail by their own decision to recover the land from the grantee. Thus considered, exhibit C will be found to be dangerous because it short circuits the process for

[p.224] of [1995-96] 1 GLR 208 terminating leases involving the stool without opportunity being given to the grantee to demand justice to be done to him as well.

The insecurity which will be created by the argument in exhibit C would definitely stunt the investment drive currently being pursued in this country in so far as any investment will involve the ownership of stool property. Further, the apparent fraud which will be fanned by that argument will be devastating to the image of the noble institution of chieftaincy. I have taken the trouble to mention all these questions to highlight the fact that there are a lot more issues involved in the instant case than the simplistic literal application given to the effect of the expression “null and void.”

These questions raised herein will be conveniently parried by the stool, its elders and even the current stool occupant if the appellant is allowed to have its way as portrayed in exhibit C. For these reasons, the Lands Commission should not be allowed to fight the battle of the stool and its elders for them. If the stool, its occupant and its elders believe that they have a case against the grantee, ie the respondent, they should take legal action against it, so that it will have the opportunity to defend the grants in the light of the law.

In any case, all the decided cases which I have quoted already stipulated categorically that the current chief and stool elders can only take control of such land “as are deemed unappropriated.” By implication, the decisions do not touch lands already appropriated. There is therefore no legal justification for the appellant taking upon itself to expunge the documents on the respondent’s lands from its record when by law those lands remain validly granted to the respondent. For the foregoing reasons, I do not see any merit whatsoever in this appeal and I would dismiss it.

JUDGMENT OF BADDOO JA.

This is an appeal against the ruling of Lartey J (as he then was) on 15 September 1993 granting an application for mandamus filed against the Lands Commission. The brief facts of the case are that the applicant-respondent company hereinafter referred to as the respondent) obtained the grant of a leasehold of land on James Town stool land from Nii Adja Kwao II the then occupant of the James Town stool. The grant was made with the consent and concurrence of all his accredited elders. The grant was evidenced by an indenture dated 28 September 1973 stamped as AC No 8780/73 and registered as LR No

[p.225] of [1995-96] 1 GLR 208

374/78. The chief had been duly gazetted and recognised as such and was considered competent to deal with the James Town stool lands.

The indenture dated 28 September 1973, did receive the concurrence of the Lands Commission. However, in 1974, Nii Adja Kwao II was involved in a chieftaincy dispute which subsequently led to his destoolment. In spite of the fact that the indenture of the lease had received the concurrence of the Lands Commission, the commission wrote to the respondent on 7 February 1990, that the commission intended to expunge the respondent’s leasehold from its records on the grounds that its grantor, Nii Adja Kwao II was adjudged in the destoolment proceedings never to have been a chief and therefore all grants made by him in his capacity as James Town Mantse are null and void.

After the destoolment of Nii Adja Kwao II, the respondent renegotiated a fresh leasehold for further valuable consideration, with the new Mantse, Nii Okpe III on one hand and the respondent on the other on 28 July 1976. Still the Lands Commission rejected a sublease made by the respondent-applicant to one Adamu Maigah on the ground that the respondent-applicant had no title to give.

The respondent applied for an order of mandamus to compel the Lands Commission to restore in its records the deed and lease made and dated 28 September 1973 between the James Town stool acting by Nii Adja Kwao II on one part and the respondent on the other part. The High Court on 15 September 1993 granted the application for an order of mandamus against the Lands Commission to carry out its public duty in respect of the two instruments, submitted by the respondent.

It is against the order that the Lands Commission has appealed to this court. It was argued for the Lands Commission by Mr Nyaletey, State Attorney, that since the enstoolment of Nii Adja Kwao II has been declared null and void by the chieftaincy tribunal of the National House of Chiefs, any dispositions of stool lands made by him as the James Town Mantse were null and void. This was the main ground of appeal. He referred to Mosi v Bagyina [1963] 1 GLR 337, SC to support his submission.

For the respondent, it was argued by Nii Aponsah that since the right of third parties must be protected, a person who deals with another person who is in de facto possession of property, must be deemed to have dealt with the proper person. He referred to Okyere v

[p.226] of [1995-96] 1 GLR 208

Adjei [1961] GLR 34. Counsel also referred to the James Town Mantse Recognition Order, 1959 (L.N 201 ). This order said:

“2. The enstoolment of Mr. Samuel Eric Golightly Odartei Thompson otherwise Nii Adja Kwao II as James Town Mantse is recognised and any person failing to recognise Mr. Samuel Eric Golightly Odartei Thompson otherwise Nii Adja Kwao II as the enstooled James Town Mantse commits an offence against the Chiefs (Recognition) Act, 1959, and shall be liable accordingly.”

The question which this court is called upon to answer is, whether grants made by a chief whose enstoolment was later declared to be null and void, can be valid. A stool is likened to a corporation sole. Therefore if a person deals with the occupant in good faith, he is entitled to his remedies, provided the occupant was properly and customarily elected and installed as a chief: see Amankwah v Kyere [1963] 1 GLR 409.

Nii Adja Kwao II was customarily elected and installed as a chief. An Act of Parliament, LN 201 of 1959, was passed, recognising his status as the James Town Mantse. The Act declared that it was an offence for any one who failed to recognise him as the James Town Mantse. With this statutory recognition by the government in 1959, it becomes clear that Nii Adja Kwao II was clothed with legitimacy to dispose of the James Town stool lands with the consent and concurrence of the elders. Therefore, title to land which has lawfully vested in a third party like the respondent, ought not be impeached or disturbed, on account of the subsequent destoolment of the mantse who made the grant, provided the grant was valid and was made with the consent and concurrence of the elders of the stool.

I shall dismiss the appeal against the ruling of the High Court, and affirm the order of mandamus directed against the Lands Commission to carry out its public duty with regards to the two instruments submitted by the respondent-applicant.

My brother and sister have dealt with all the other issues raised and I do not propose to repeat them. The appeal is dismissed.

DECISION Appeal dismissed.

DRKS