WESTERN HARDWOOD ENTERPRISE LTD AND ANOTHER vs. WEST AFRICAN ENTERPRISES LTD [1997-98] 1 GLR 645

CASES REFERRED TO

(1) Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, SC.

(2) Odametey v Clocuh [1989-90] 1 GLR 14, SC.

(3) Ghana Consolidated Diamonds Ltd v Boahene [1987-88] 1 GLR 87, CA.

(4) Schandorf v Zeini [1976] 2 GLR 418, CA.

(5) Crayam v Consolidated Trust Ltd (1949) WACA 443.

(6) Hockman v Arkhurst (1920) FC ‘20-’21, 101.

(7) Amuzu v Oklikah [1997-98] 1 GLR 89; [1998-99] SCGLR 141, SC.

(8) Moubarak v Eguakum (1956) 1 WALR 88.

(9) Dellenty v Pellow [1951] 2 KB 858; [1951] 2 All ER 716; [1951] 2 TLR 733, CA.

NATURE OF PROCEEDINGS

APPEAL by the defendant-appellant from the decision of the Court of Appeal reversing the judgment of the trial High Court in favour of the defendant dismissing the plaintiff’s claim for, inter alia, damages for trespass to a land it had purchased at a public auction. The facts are sufficiently stated in the judgment of Aikins JSC.

COUNSEL

J K Agyemang (with him K Oduro-Manu) for the first appellant.

Dr W C Ekow-Daniels for the respondent.

JUDGMENT OF AIKINS JSC.

The land in dispute was leased to Takoradi Brewery Ltd by the Apowa stool in 1968 for its business. Later Takoradi Brewery Ltd (TBL) became indebted to one Leroy Francis who sued TBL in the High Court and obtained judgment against TBL. The property of the company was attached for sale when it failed to pay the judgment debt. The property was purchased by the plaintiff company, West African Enterprises Ltd (WAEL) at a

[p.649] of [1997-98] 1 GLR 645 public auction organised by the court, and a certificate of purchase dated 29 July 1975 was issued to WAEL (exhibit A) accordingly.

When WAEL went into possession of the land, they said they took possession of the TBL buildings on the land made up of three buildings, a steam boiler, filtration plant, stainless tanks, 40 headfilling machines and a water treatment plant. They said they cultivated sorghum on the land for brewing beer, and established a new company, Tano Brewery and registered it for the manufacture of beer. There was a delay in the manufacture of the beer, they said, because of the political upheavals in the country at the material time. Any time a licence for the manufacture of beer was obtained there would be a political upheaval and they were compelled to start the process all over again.

According to WAEL, the company was in occupation of the land from 1969 until 1986 when their workers were driven away from the land by the first defendant company, Western Hardwood Enterprises Ltd (WHEL), who took possession of the land together with the buildings thereon. WAEL testified that they continued to pay rents as was obtained under the lease of Takoradi Brewery Ltd, and that these rents were accepted by the Lands Department as the administrators of stool lands. Further that before WHEL entered the land and drove away the WAEL workers, WAEL was not served with any notice of breach of covenant in the agreement (exhibit B).

WHEL on the other hand say that the disputed land was leased to them in August 1984 by the second defendant Ohene of Apowa (the Apowa stool) to enable them construct a sawmill. They later got the lease dated 2 August 1984 registered. On entering the land they only, found some old abandoned structures like sheds and houses. There were no farms on the land, but the watchmen on the land had planted cassava on it. They said they never destroyed any machinery belonging to WAEL but on entering the land they saw old machines which were scraps and which they put in a room under lock and key. Then they rebuilt two skeletons of bungalows on the land which they occupy.

Nana Amua Gyebu XIV admitted the lease granted to TBL by the Apowa stool in 1968, but said that in February 1976 when he visited the site he saw one big building like a warehouse full of weeds around it, the foundations of two buildings and an

[p.650] of [1997-98] 1 GLR 645 uncompleted building. He later re-entered the land and leased it to WHEL.

The pleadings A cursory glance at a few paragraphs of the pleadings will help in appreciating the respective stance of the parties. In paragraphs (5) and (6) of the statement of claim WAEL averred as follows:

“(5) The land was originally leased to Takoradi Brewery Co Ltd for purposes of its business by the Apowa stool.

(6) The Takoradi Brewery Co Ltd which was incorporated for the manufacture of beer took possession of the land and built bungalows, offices and a factory on the land. It duly paid its rents.”

While WHEL admitted paragraph (5) but denied paragraph (6) of the statement of claim, Nana Amua Gyebu XIV, Chief of Apowa admitted both paragraphs (5) and (6) of the statement of claim. In their statement of defence WHEL averred in paragraphs (5), (6), (7), (8) and (9) as follows:

“(5) The first defendant company conducted a search at the Lands Department, Sekondi which disclosed that part of the land was originally leased by the second defendant’s stool to Takoradi Brewery Co

Ltd sometime in 1969 but that the lease was not concurred in by the government.

(6) The search also disclosed that the land was re-entered by the second defendant sometime in 1983 on the ground that the land had not been developed by Takoradi Brewery Ltd.

(7) Relying on the result of the search the first defendant agreed to take a grant of the said land, and the land was granted to the first defendant company by the Apowa stool.

(8) The grant embodied in a lease dated 2 August 1984 and made between the second defendant and his elders on the one hand for and on behalf of the stool of Apowa and the first defendant company on the other which

[p.651] of [1997-98] 1 GLR 645 lease was concurred in by the government and registered at the Lands Registry as No 6154/1986.

(9) The second defendant also by agreement in writing dated August 1984 leased four dilapidated buildings on the land to the first defendant company.”

WAEL’s reply to the above is as follows:

“(2) The plaintiff denies the averments as contained in paragraphs (4), (5), (6), (7), (8), (9), and (10) and will put the first defendant company to the strictest proof thereof.

(3) Furthermore, the plaintiff seriously contends that a real and proper search would have disclosed that the plaintiff was in actual possession of the land with the buildings, factories, machinery and other properties thereon and that the second defendant had no capacity or otherwise legal right to make any grant to anybody or the first defendant company.

(4) Thus, any purported grant or lease of the disputed land or agreement relating to the buildings or properties thereon is null and void and has no legal validity.

(5) The plaintiff seriously avers that the first defendant company was fully cognisant of its right, interest and title in the and in dispute and everything thereon and yet entered upon it under a pretext of a spurious grant or lease.

(7) That plaintiff says that a purported registration at the Lands Registry by the first defendant company of its said lease does not in any way divest the plaintiff of its right, interest and title in the land in dispute. In any case, the first defendant will be put to very, very strict proof of the said registration.”

Issues to be tried The above pleadings gave rise to the following issues to be tried:

(1) Whether or not the first defendant knew or ought to have known of the plaintiff company’s said right, title

[p.652] of [1997-98] 1 GLR 645 and interest and yet entered upon the land to perpetrate the acts called into question.

(2) Whether or not a mere registration at the Lands Registry of a purported grant or lease to the first defendant company divests the plaintiff company of its right, title and interest in the land in dispute.

(3) Whether or not there was any registration at all.

(4) Whether or not there has been a lawful re-entry or forfeiture by the second defendant. It will be seen from the foregoing that as a result of the admission of the defendants of paragraph (5) of the plaintiff’s statement of claim in respect of the lease to TBL, no question of registration or stamping of the document arose and so no issue on it was raised, neither was the plaintiff in law obliged to lead any evidence on it.

Trial before the High Court The plaintiff, WAEL claimed against the defendants jointly and severally:

“(a) Unlawful interference with the plaintiff’s right, and interest in respect of land at Apowa.

(b) Damages for trespass.

(c) An order of perpetual injunction restraining the defendants, their agents, servants, workmen and assigns from in any way interfering with the plaintiff’s said right and interest in the land.”

As stated earlier, no issue of the registration of exhibit B was raised, but it was during addresses by counsel that both counsel for the defendants submitted that exhibit B was not registered and therefore it offended against section 24 of the Land Registry Act, 1962 (Act 122). Quite rightly counsel for WAEL submitted in reply that the plaintiff had been taken by surprise by the defence of non-registration of exhibit B as it was not pleaded, and that the plea of non-registration was an afterthought and should not be countenanced. However, the trial High Court held that the defence of non-registration of exhibit B raised by counsel for the defendants was tenable and could not be ignored; that the question whether or not exhibit B was registered is a matter of law and

[p.653] of [1997-98] 1 GLR 645 could be raised at any time although it was not pleaded, and that failure to plead the non-registration of exhibit B was therefore not fatal. The court further held that exhibit B was caught by Act 122, was ineffective and invalid, and that since the title of TBL is based on exhibit B, the certificates of purchase (exhibit A) issued to the plaintiff never validly conferred title in the land in dispute on the plaintiff. This, the court held, means that at the time the first defendant company obtained their grant the Apowa stool had not effectively divested itself of title in the disputed land.

On the issue of re-entry, the court held that the first defendant company was entitled to believe and assume that the land had been re-entered. The court also made the following findings of fact:

(a) that at the time WHEL occupied the disputed land the place was in a state of abandonment and vacant;

(b) that WAEL had not done anything on the land since 1969 when it purchased the interest of TBL; and

(c) that since 1984 when WHEL obtained its grant it had invested huge sums of money, and it is presently effectively in possession of the land.

Dissatisfied with the judgment of the High Court, WAEL appealed to the Court of Appeal.

Appeal before the Court of Appeal

The Court of Appeal made a finding that exhibit B was neither stamped nor registered, and as a result section 14(5) of the Stamp Act, 1965 (Act 311) would forbid the tendering of the exhibit in evidence. The court consequently held that with the rejection of exhibit B there was no need to consider the applicability of Act 122 in relation to the exhibit: see West African Enterprises Ltd v Western Hardwood Enterprise Ltd [1995-96] 1 GLR 155, CA.

With respect to the same exhibit, the court held that once the fact of the lease by the Apowa stool to the TBL was admitted by both defendants in their pleadings, no proof was required of that admitted fact. The court stated, inter alia, per Acquah JSC at 168:

“In the face of such positive admission by the Apowa stool that they leased the land to Takoradi Brewery Ltd in 1968, together with the admissions to the same effect in the pleadings, the trial judge’s holding that there was no such

[p.654] of [1997-98] 1 GLR 645 lease and that the Apowa stool never effectively divested itself of title in the land simply because a written evidence of the transaction is ineffective by operation of law, is a direct negation of the pleaded admissions and evidence of the Apowa stool itself.

Indeed, because the fact that the Apowa stool granted a lease of the land to TBL was admitted by all the defendants and was therefore not in dispute, no issue was joined on it in the summons for direction.”

The court continued at 168-169:

“Thus on the state of the pleadings, exhibit B was unnecessary, and its inadmissibility does not convert the admission of the fact of the lease by the defendants into a denial. Consequently, the trial judge’s conclusion that the Apowa stool never divested itself of its title in the land to TBL conflicts with the pleadings and evidence of the defendants, and therefore cannot be supported.”

The court held further that the trial judge’s holding that exhibit A, the certificate of purchase, confers no title on the plaintiff because it was based on exhibit B is obviously erroneous, because with the admission of the grant of the lease to TBL by both defendants, and the production of exhibit A, the plaintiff had successfully proved his root of title on the balance of probabilities, and the burden thus shifted onto the defendants to establish their defences.

On the issue of re-entry, the court held that it was contrary to section 29 of the Conveyancing Decree, 1975 (NRCD 175) which requires the lessor to serve on the lessee a notice specifying the particular breach complained of, and therefore invalid, and that having regard to the properties on the land, a proper mode of exercising its right of re-entry was for the Apowa stool to have issued a writ of summons for the recovery of the land.

As regards the trial judge’s finding that the land was vacant at that time the first defendant entered the land, the Court of Appeal held that this is clearly erroneous in view of WHEL’s evidence that on their entry they met watchmen who had planted cassava on the land, that they saw some structures and machines and in the

[p.655] of [1997-98] 1 GLR 645 face of positive admission in the pleadings. The court held that these physical structures, the cassava farm and watchmen at the site constituted actual notice of the interest and presence of the plaintiff on the land.

WHEL and the Apowa stool have now appealed to this court.

The appeal

The submissions of counsel for the first appellants were mainly based on three issues, namely:

(a) The grant by the Apowa stool to Takoradi Brewery Ltd (the respondent’s root of title) was void and of no effect in law in the absence of evidence of concurrence by the minister pursuant to section 8(1) and (6) of the Administration of Lands Act, 1962 (Act 123);

(b) the admission by the first and second appellants in their respective pleadings of a lease by the Apowa stool to the Takoradi Brewery Co Ltd (exhibit B) and the claim that even with the rejection of exhibit B there was enough evidence on the record to support the respondent’s claim; and

(c) the issue of re-entry was otiose where there was no evidence of a legally valid or enforceable lease.

In respect of the first leg, counsel for the first appellant submitted that the Court of Appeal failed to take adequate account of, and to articulate clearly the legal implication of the failure by the plaintiff to call or lead any evidence to establish that the lease transaction between the Apowa stool and TBL (the plaintiff’s root of title) received the requisite ministerial concurrence in compliance with the mandatory provisions of section 8(1) and (6) of Act 123. Counsel cited the following decisions, among others, to support his contention, namely, Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, SC; Odametey v Clocuh [1989-90] 1 GLR 14, SC; and Ghana Consolidated Diamonds Ltd v Boahene [1987-88] 1 GLR 87, CA.

In the Nartey case (supra) at 357 Taylor JSC noted thus:

“The La Mantse gave evidence that the land in dispute which he granted on 8 May 1976 by exhibit RI to Mr Rexford Aye Darku is La stool land. By the said provisions of sections 1

[p.656] of [1997-98] 1 GLR 645 and 8 of Act 123 he needs the concurrence of the Secretary for Lands and this has not been obtained. The inevitable legal consequence is that the grant is of no legal effect whatsoever and as long as it is even now without concurrence it is void . . . In the circumstances it is clearly a wrong appreciation of the legal position for the Court of Appeal to purport to give legal validity to such a void document as exhibit R1. In the circumstances by the statutory law of this Republic no person, company or institution can derive any title whatsoever from exhibit R1.”

As stated in the headnote, holding (5) in the Odametey case (supra) simply said, inter alia: “For lack of registration under the Land Registry Act, 1962 (Act 122), s 24(1) and concurrence under the Administration of Lands Act, 1962 (Act 123) s 8(1) and (6) the plaintiff could not maintain an action on the strength of the conveyance granted to her in 1990 by the Akumajay stool.”

And the headnote, holding 7(b) of the Ghana Consolidated Diamonds Ltd case (supra) also contain, inter alia, the following:

“Thus for a right of entry upon the land to dig, the plaintiff required a lease from the co-plaintiff. But by the provisions of the Administration of Lands Act, 1962, s 8(1) and (5) the grant by the co-plaintiff to the plaintiff, who even though a native was not a subject of the co-plaintiff’s stool and could not therefore claim to be entitled under customary law to the free use of the stool land, and who, in any case, obtained the grant for valuable consideration, required the concurrence of the minister for its validity. However, there was no evidence of any lease. And the granting of the digging licence was no evidence that the minister had concurred in the grant because the approval of the licence itself was subject to a valid lease. There was therefore no compliance with the provisions of section 8 of Act 123. And since by the provisions of section 8(6) any transaction entered into in contravention of section 8 was void, the plaintiff could not claim to have acquired any legal title to the land.”

[p.657] of [1997-98] 1 GLR 645

(The emphasis is mine.)

Counsel for the first defendant-appellant’s submission therefore is that if his contention that the transaction between the Apowa stool and TBL was void on account of the absence of the minister’s concurrence under section 8(1) and (6) is correct (and he saw no reason why it could not be) then all subsequent transactions rooted in the grant from the Apowa stool to TBL are similarly void and of no effect in law. Counsel felt poised in the correctness of his contention and ended thus:

“In the instant case there is no dispute that section 8 of Act 123 was enacted to secure ministerial control over the disposition of stool lands for valuable consideration, especially to strangers in order to protect the public interest or more specifically the interest of stool subjects. Its provisions can consequently not be waived on account of the conduct of a party or parties. The provisions of section 8(6) are clear and unambiguous and any transaction in violation of its provisions is void. Hence the void grant from the Apowa stool to TBL cannot on the evidence in the instant case be validated by the fact that the Apowa stool failed to interplead in proceedings leading to the sale of the subject land to the plaintiff; nor can it be validated by the fact that the Apowa stool had not in the past complained about non-payment of rent by the plaintiff.”

(The emphasis is mine.)

Surely, if the Apowa stool had leased property to TBL and had intended to re-enter it for non-compliance with the provisions of the lease, does this not envisage that as far as the vendor and the purchaser are concerned there is a strong presumption that the lease is valid to all intents and purposes? In any event, if there is a case in court involving the lessee in respect of same property and the vendor stood by unconcerned, and the property is purchased at a public auction, and he later deals with the new purchaser, WAEL, without complaining about the validity of the lease and later continues with the question of re-entry whilst WAEL is in possession, and later WAEL sues the vendor as in the instant case,

[p.658] of [1997-98] 1 GLR 645 and yet the vendor fails to question the validity of the lease, does it not mean acquiescence on the vendor’s part? Surely, it is so.

In such a situation where the pleadings of the parties are ad idem that there was a valid lease between the Apowa stool and TBL, the plaintiff would not be bound to lead evidence to emphasise the validity of such a lease. Such being the case, why should the Court of Appeal be compelled to take any account of, and go to the extent of articulating the legal implications of the failure of the plaintiff to call or lead evidence to establish that the lease transaction received the requisite ministerial concurrence under Act 123?

Now, on the question of the lease being void because of the alleged non-compliance with the provisions of section 8(1) and (6) of Act 123, I must say that the submission cannot be tenable. To me holdings (3)(b) and (5) in the headnotes of the Nartey case (supra) and the Odametey case (supra), respectively, are wrong as having been given per incuriam. Sections 8(1) and (6) of Act 123 stipulates:

“8. (1) Any disposal of any land which involves the payment of valuable consideration or which would, by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of such consideration and which is made,

(a) by a stool;

(b) by any person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of consideration or in exchange for a nominal consideration, shall be subject to concurrence of the Minister and shall be of no effect unless such concurrence is granted . . .

(6) Any transaction entered into in contravention of the provisions of this section shall be void.”

(The emphasis is mine.)

It must be noted that section 8(1) of Act 123 does not require the concurrence of the minister to precede the disposition. The subsection contemplates the holder of the land to make all

[p.659] of [1997-98] 1 GLR 645 arrangements to secure the minister’s concurrence after the disposition. By this provision the disposition remains of no effect until the concurrence is given. But it must be emphasised that the disposition is not void in the sense that it cannot ever be strengthened any time thereafter. It is therefore in the interest of the lessee to secure the minister’s concurrence; the vendor need not bother himself with that. The provision in subsection (6) relating to a transaction entered into in contravention of the provisions of section 8 as being void, does not affect the position as far an[sic](3) section 8(1) is concerned. What it means is that any transaction purposely entered into to evade the requirement of the minister’s concurrence would be struck down: see Schandorf v Zeini [1976] 2 GLR 418 at 440-441, CA.

This position is amplified by the quotation in the Ghana Consolidated Diamonds Ltd v Boahene (supra) stated earlier. There the plaintiff was claiming a right of entry upon a land to dig and for that matter he required a lease from the co-plaintiff. There was no such lease. The court held that the granting of the digging licence was no evidence that the minister had concurred in the grant because the approval of the licence itself was subject to a valid lease. Here it was the licence that was held to be void, a transaction entered into in contravention of the provisions of section 8 of Act 123 which gave the impression that the plaintiff had a valid lease with the concurrence of the minister, and not the said lease that was held to be void in the absence of the concurrence of the minister. The court concluded that “since by the provisions of section 8(6) any transaction entered into in contravention of section 8 was void [that is, the transaction of obtaining the licence], the plaintiff could not claim to have acquired any legal title to the land” [that is, title to dig the land].

This accords with the reasoning in the Schandorf case (supra) whose judgment was delivered in 1976. It is my view that if the judges in the Nartey (supra) and Odametey (supra) cases had adverted their minds to the Schandorf case (supra), they probably would have come to a different conclusion on the lease itself being held to be void. In the Schandorf case (supra) Amissah JA who delivered the lead judgment in the Court of Appeal made the position clear at 440-441 of the report as follows:

[p.660] of [1997-98] 1 GLR 645

“. . . this section 8(1) does not require the concurrence of the Minister to precede the disposition. The wording of the subsection contemplates the holder of the land making all arrangements for a disposition being first made and then the Minister’s concurrence being sought afterwards. It is common practice that these transactions requiring the Minister’s concurrence are entered into before the conveyance is submitted to the Lands Department for the necessary concurrence. The disposition remains of no effect until the concurrence is given. Without the concurrence it is not void in the sense that it cannot ever be activated thereafter. And on this matter, it is more in the interest of the the grantee or transferee of the land to secure the Minister’s concurrence. So generally he applies for it and pursues his interest. When section 8(6) speaks of transactions entered into contrary to the provisions of the section being void, as far as section 8(1) is concerned, it does not make any difference to the position as stated. It would, of course, strike down transactions purposely entered into to evade the requirement of the Minister’s concurrence.”

(The emphasis is mine.) It is therefore not correct for counsel for WHEL to contend that any disposition of stool land which requires the minister’s consent under section 8 of Act 123 remained void and of no effect till the necessary concurrence is given.

Be that as it may, I think it would have have been necessary for counsel to plead the lease being void in point of law under Order 19, r 16 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) to obviate WHEL being taken by surprise. Merely pleading that the concurrence of the minister was not given is not enough. Order 19, r 6 of LN 140A says:

“16. The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the

[p.661] of [1997-98] 1 GLR 645 preceding pleadings, as, for instance, fraud, Statute of Limitations, re-lease, payment, performance, facts showing illegality either by statute or common law, or Statute of Frauds.”

All things said and done, one would ask, what is the purpose of obtaining the minister’s concurrence after obtaining the disposition? Is it not to draw the attention of the minister to the lease and facilitate the administration of the stool land as required by law, for example the payment of rents under the lease, etc? If therefore without factual proof of the said concurrence, but the evidence shows that the minister has been effectively administering the land including re-entry matters, what else does one require to prove that concurrence has been given?

The minister or the Lands Department is estopped by conduct or representation to deny that the minister’s concurrence has been given. Section 26 of the Evidence Decree, 1975 (NRCD 323) amplifies the law in this respect. It stipulates:

“26. Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest. “

At least by the very behaviour of the Lands Department, it behoves one to assume that the concurrence of the minister had been given. The Apowa stool also took it for granted that the necessary concurrence of the minister had been given as a result of the transactions relating to rents and re-entry. In the circumstance the Lands Department must be taken to have acquiesced.

Having said all that, it is pertinent to note that a close examination of exhibit B, the lease under consideration, shows clearly that the minister’s concurrence had been obtained. The back page of the exhibit has the following clearly printed on it:

[p.662] of [1997-98] 1 GLR 645

“I, CHARLES DJAN TACKEY, Chief Lands Officer hereby certify that I concur to the disposal of the rights and interest in the land advanced by the within written document subject to the conditions set out in the schedule hereunder.

SCHEDULE ABOVE REFERRED TO The rent payable under the Lease shall be paid to the Chief Lands Officer or his duly authorized agent. Dated the day of 1969.

(Sgd) C D Tackey CHIEF LANDS OFFICER.”

Counsel had therefore no legs to stand on. Both legs having thus been amputated, that ground of appeal fails, and fatally too.

Counsel for WHEL then criticised the holding of the Court of Appeal that even with the rejection of exhibit B there was sufficient evidence on the record to sustain the plaintiff’s claim, and submitted that by that the court set so much store by the fact that both the first and the second defendants had admitted the grant of the lease between the Apowa stool and Takoradi Brewery Co Ltd in their respective pleadings.

He submitted that the court erroneously assumed the admission in this pleadings to necessarily imply that the first and the second defendants had also admitted the sufficiency of that lease in law, and continued to contend that the plaintiff consequently needed to call some evidence to establish at least that the lease was concurred to by the minister.

I have so elaborately discussed this issue in the first ground of appeal that I need not repeat myself. Suffice it to say that this ground of appeal also fails .

Re-entry of the land

The third ground argued relates to the issue of re-entry of the land in dispute. Counsel for WHEL submitted that one of the grounds upon which the Court of Appeal reversed the judgment of the High Court is that the second defendant’s purported re-entry of the land in dispute before regranting same to the first defendant is invalid because the second defendant did not serve on the plaintiff a valid legal notice of the Apowa stool’s intention to re-enter the

[p.663] of [1997-98] 1 GLR 645 land, as required under section 29 of the Conveyancing Decree, 1975 (NCRD 175). Counsel contended that given that the purported grant of the subject stool land by the Apowa stool to TBL is void and of no effect either in law or equity on account of the absence of the minister’s concurrence, the issues of notice and re-entry in terms of NRCD 175 become otiose, and that the first defendant can consequently not be imputed with notice—actual or constructive—of an interest which did not exist.

Let us now remind ourselves of the provisions of section 29 of NRCD 175. The section states:

“29. (1) A right of re-entry or forfeiture under any provision in a lease for a breach of any convenant, condition or agreement in the lease shall not be enforceable, by action or otherwise, until— (a) the lessor serves on the lessee a notice:

(i) specifying the particular breach complained of;

(ii) if the breach is capable of remedy, requiring the lessee to remedy the breach; and (iii) (except where the breach consists of a non-payment of rent) requiring the lessee to make reasonable compensation in money for the breach; and

(b) the lessee has knowledge of the fact that such notice has been served; and the lessee fails, within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and (except where the breach consists of a non-payment of rent) to make reasonable compensation in money, to the satisfaction of the lessor, for the breach . . .

(3) This section applies notwithstanding any provision to the contrary in the lease.”

The provisions of section 29 of NRCD 175 show clearly that the lessee must be served with a notice of the breach complained of, and must have knowledge of the fact that such notice has been served. Furthermore, the enforceability of the re-entry shall be by

[p.664] of [1997-98] 1 GLR 645 action or otherwise, and by section 30(1) of NRCD 175 where the lessor proceeds by action or otherwise to enforce his right of entry or forfeiture under any provision in a lease, or for non-payment of rent, the lessee may, either in the lessor’s action or in any action brought by such person for that purpose, apply to the court for relief. It means, therefore, that the Apowa stool can only legally divest the plaintiff of his lease and resell the property to the first defendant by action in court. The purported leasing of the property to the first defendant under the circumstances of this case is therefore illegal and unenforceable.

The Court of Appeal’s holding that has been attacked by counsel is in the following vein at 171: “Now, the right of a landlord to re-enter or forefeit a lease is restricted by section 29 of the Conveyancing Decree 1975 (NRCD 175). Section 29(1) of NRCD 175 provides that a right of re-entry or forfeiture under any provision in a lease for breach of any covenant, condition or agreement in the lease shall not be enforceable, by action or otherwise, until: ‘(a) the lessor serves on the lessee a notice (1) specifying the particular breach complained of . . . ‘ Section 29(3) provides that the above restriction applies to all leases and cannot be avoided by any provision in the lease to the contrary. Since exhibit 10 was not served on the plaintiff, it follows that the second defendant’s re-entry was in breach of section 29 of NRCD 175.”

The Court of Appeal continued later at 172:

“Accordingly, at the time the second defendant issued exhibit 10, he knew that the TBL was no longer his lessee, and that the lessee, by exhibit A, was the plaintiff’s company which he went to at Teshie-Nungua to collect a carton of schnapps. Yet the second defendant served no notice of the re-entry on the plaintiff. It was after the re-entry that exhibit 12 was served on the plaintiffs. The re-entry was therefore contrary to section 29 of NRCD 175, and therefore invalid.”

[p.665] of [1997-98] 1 GLR 645

I on my part do not see anything wrong with this holding of the Court of Appeal, and yet Mr Agyemang, counsel for WHEL, submitted that since there was no valid lease either in law or in equity between the Apowa stool and TBL, the Apowa stool had the right under common law to repossess its stool land by peaceful re-entry. To me this is a strange proposition of the law. Counsel rightly conceded, however, in paragraph (32) of his statement of case that: “The final notice of the second defendant’s intention to re-enter this disputed land should properly have been served on the plaintiff who was the lessee at the material time.” But he contended that the crucial point here is that the second defendant who is not a lawyer believed that he served proper notice and was consequently entitled to re-enter the land. He contended further that the second defendant was also misled by the fact that the plaintiff did not react to the final notice of re-entry (exhibit 12) when it was served on him to think that the plaintiff accepted the re-entry, with the result that the second defendant subsequently went on to regrant the land as part of a larger plot to the first defendant. Surely, ignorance of the law is no excuse, and counsel perfectly knows this.

But counsel went on to contend that the second defendant could not be held in the instant case to have acted fraudulently or with intention to cheat the plaintiff out of his interest in the land. I must say, without mincing words, that in my view the second defendant is a fraud and a cheat of the superlative degree, and the first defendant is also clearly involved in the fraud, a particeps crimi-nis. By their behaviour they wanted to cheat and defraud the plaintiff of the property he had acquired by purchase at an auction sale. Here is a case where a land had been leased out and the lessee had paid the necessary consideration, proceeded to erect buildings on the land, and while in financial difficulties his interest in the land had been acquired by another by purchase at an auction sale organised by a court of competent jurisdiction. Later he was chased out of the property under the pretext that the property had been re-entered and taken over by another.

Under such circumstances, the law is that where a party has actual notice that the property is in some way encumbered, he will be held to have constructive notice of all that he would have discovered. In the instant case, since WHEL has admitted that

[p.666] of [1997-98] 1 GLR 645 prior to purchasing the property they were aware that there were buildings on the land and that some persons other than agents of the Apowa stool were in occupation, the company was in duty bound to investigate fully the title of the vendor. Failing such investigation before purchasing the property, they must be deemed in equity to have had notice of all that a reasonably prudent purchaser would have discovered. The company cannot be said to be innocent purchasers for value without notice.

In the instant case, it is argued that since the lease between the Apowa stool and TBL was not registered under section 24(1) of Act 122, the deed between the Apowa stool and WHEL had priority. The law is that a later instrument can by registration obtain priority over an earlier one only if it was obtained without fraud and without notice of the earlier unregistered instrument: see Crayem v Consolidated Trust Ltd (1949) 12 WACA 443; Hochman v Arkhurst (1920) FC ‘20-’21, 101; and Amuzu v Oklikah [1996-97] 1 GLR 89, SC. Lemey JA who delivered the judgment of the court in the Crayem case (supra) at 447 referred, with approval, to the following dictum of Nettleton J in the Hochman case (supra) at 105 relative to the law on the subject:

“Now it is elementary principle of law that Nemo dat quod non habet, in other words a vendor of land can give no better title than he possessed himself, and if the Stool had in fact sold to the plaintiff in 1914 (remaining in law a constructive trustee for him until his legal estate was perfected by conveyance) a subsequent conveyance by the same Stool of the same piece of land to another party. i.e. the defendant, would clearly not avail the latter. But it[sic](4) the defendant sought the land from the Stool without noticeactual[sic](5) or constructive of the sale to the plaintiff, and obtained a proper assurance in the shape of a conveyance as a bona fide purchaser for value and without being party to any fraud, and without notice registered it in the Lands Registry, the position is altered . . . “

The sale therefore of the disputed property by the Apowa stool to WHEL who had clear notice of the plaintiff’s prior estate or interest in possession cannot avail the latter. The plaintiff com-

[p.667] of [1997-98] 1 GLR 645 pany can take advantage of the nemo dat rule, especially when the equitable doctrines of notice and fraud have not been abolished by Act 122. Furthermore, Act 122 does not contain any provision which confers on the registered instrument of WHEL a state-guaranteed title. In other words, registration does not create absolute title.

Counsel for the second defendant-appellant argued on the same lines as did counsel for the first defendant-appellant, especially with respect to Act 122 (registration of documents); Act 123, s 8(1) and (6) (dealing with concurrence of the minister); and the question of re-entry under section 29 of NRCD 175. My views on these issues apply equally to the submissions of counsel for the second defendant-appellant. His grounds of appeal therefore fail.

In the result, I would dismiss the appeal of both appellants. The three reliefs sought by the plaintiffs and granted by the Court of Appeal are confirmed, namely I would grant an order of perpetual injunction restraining the defendants-appellants, their agents, servants, workmen and assigns from in any way interfering with he plaintiff’s rights and interest in the disputed land. The award of ¢500,000 damages for trespass stands.

JUDGMENT OF BAMFORD-ADDO JSC.

I agree entirely with the opinion of my brother Aikins JSC that the appeal should be dismissed. He had adequately covered all the issues raised in the appeal and I have nothing useful to add.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

I also agree that this appeal should be dismissed. In this appeal the second appellant took his principal stand on exhibit B, the document made between the second appellant’s own stool and the Takoradi Brewery Ltd. The second appellant claimed that the document, being such as related to stool land, was not only “unregistered and unstamped” but also lacked concurrence in consonance with the provisions of the Administration of Lands Act, 1962 (Act 123). Consequently, exhibit B was void and conferred no title on the Takoradi Brewery Ltd which could devolve on the respondents by virtue of the certificate of purchase issued by the High Court, Sekondi pursuant to a judicial sale in execution of the judgment against the Takoradi Brewery Ltd. The second appellant contended that his

[p.668] of [1997-98] 1 GLR 645 stool rightly exercised their right of re-entry unto the land in dispute and having thus forfeited the tenancy of Takoradi Brewery Ltd, the stool was free to grant a new lease to the first appellants, which in due time was registered and concurred in by the minister.

Even though the two appellants were represented by different counsel, they, nevertheless, appeared to present very similar submissions and grounds of appeal. Upon close examination of their respective submissions, five issues presented themselves for resolution. For the sake of brevity they may be summed up thus:

(a) Whether exhibit B not having been stamped, the plaintiffs (the respondents before us) were entitled to judgment upon the basis of other evidence as to their title;

(b) whether the document, exhibit, B not having been registered, the document made in contravention of section 24(1) of Act 122 was valid to form a good root of title. The respondent was in possession of a certificate of purchase issued by the High Court, Sekondi. The appellants were right in contending that a certificate of purchase could not by itself confer an indefeasible title on the purchaser of land if the execution-debtor did not himself have a valid title to the land. In other words, in the second appellant’s submission, since exhibit B was “unstamped and unregistered” the holder of a certificate of purchase per se would not acquire any title to the land;

(c) whether since it was agreed that the land in dispute was stool land, exhibit B was void in the absence of concurrence by the Minister responsible for Lands;

(d) whether the second appellant validly re-entered the land and his stool was therefore free to convey the land to the first appellant; and

(e) whether the respondents or Takoradi Brewery Ltd had abandoned the land.

It seems to me that all through the journey of this appeal from the High Court to this court, their lordships dealt with the issue in a peripheral manner. In this court, my attention was drawn to exhibit B as recorded in the record of appeal presented to us and I [p.669] of [1997-98] 1 GLR 645 felt a little uneasy about the treatment which their lordships below had given to it. For there on exhibit B was clearly written:

“CERTIFIED TRUE COPY Signed ????????

For EXECUTIVE SECRETARY LANDS COMMISSION SECRETARIAT.”

If, indeed, exhibit B was a certified true copy signed by the Executive Secretary of the Lands Commission Secretariat, then the original of the exhibit was in the custody of the Lands Commission or the Executive Secretary had had sight of the original before he certified the copy. My apprehensions were confirmed when at the hearing of this appeal learned counsel for the respondents showed to this court photostated copy of the original which bore all the marks that it had been stamped, registered and the concurrence of the Lands Commission had been noted on the document. My further research revealed that there was yet another photocopy of exhibit B which had been so tendered in the High Court, Sekondi. It is to the credit of learned counsel for the appellants that they conceded the correctness of the photostated copy of exhibit B. With the appellants’ counsel’s concession as to the validity of exhibit B, much of their argument became largely academic.

Exhibit B clearly bore an ad valorem stamp. It also had the certification of the Commissioner of Income Tax visibly stamped on it thus:

“IN ACCORDANCE WITH SECTION 12 OF THE STAMP ACT 1965, I CERTIFY THAT IN MY OPINION THIS INSTRUMENT IS CHARGEABLE WITH A DUTY OF ¢660.00 SEKONDI 8th October, 1986.

Commissioner for Income Tax.”

Again on exhibit B were other markings which clearly indicated that the exhibit had passed through other official hands. In my respectful opinion, therefore, on the principle of omnia praesumuntur rite esse acta, I would hold that exhibit B satisfied the requirements of stamping, registration and concurrence. The

[p.670] of [1997-98] 1 GLR 645 factum of concurrence is exemplified by the payment of land rents for 1981. At the foot of exhibit 11 is the note: “Rent in arrear of ¢1,400 for the period 1/1/81-31/12/81 @ ¢700.” Exhibit 11 also stated that: “This cheque is being kept pending the settlement of the re-entry issue.” The cheque under reference in exhibit 11 is numbered No 35990/01576. Then again by a letter dated 20 March 1984 the Regional Lands Officer purported to return to the respondents their cheque No 200/010241 on the ground that the premises had been re-entered.

Now, it is evident that between 1 January 1981 and 20 March 1984 rent had been tendered by the respondents to the Lands Department in respect of this land in dispute. Considering that this litigation commenced in June 1987, it is difficult for a court to accept that the respondents had abandoned the land. The important aspect of this matter is that the respondents by the cheques mentioned above were asserting their title to the land. In my respectful opinion, these and other facts accepted in evidence went to show that the respondents had not abandoned the land in dispute.

One more matter remains to be addressed and it .is whether the first appellant’s purported re-entry on the disputed land giving rise to the execution of exhibit 4 in favour of the second appellants was valid. Exhibit B was in my view properly admitted in evidence and as I have said, the appellants took their stand on that exhibit. As its validity is no longer in doubt, it will be useful to examine that exhibit to ascertain whether it conferred any rights of re-entry on the first appellants. Thus in exhibit B it is agreed, inter alia, that: “ . . . if any covenants on the lessee’s part shall not be duly performed and observed it shall be lawful for the government to re-enter upon the said demised premises or any part thereof . . .” (The emphasis is mine.) It is therefore clear from the foregoing that the first appellants’ have no right of re-entry in respect of any breaches of covenants on the part of the lessees. Indeed, from earlier correspondence, it is obvious that the regional lands officer issued the re-entry notices and where necessary revoked them. Exhibit 4 executed on 2 August 1984 between the first and second appellants was so done without authority and it is void. I would therefore cancel its registration.

A careful analysis of the evidence on the record would have demonstrated not only the erroneous approach and conclusions

[p.671] of [1997-98] 1 GLR 645 arrived at by the High Court, but also the unnecessary lengths which their lordships in the Court of Appeal went in finding arguments to dismiss this appeal. The appellants’ (the defendants’) case was flawed from the beginning and was grossly deficient in merit.

JUDGMENT OF ADJABENG JSC.

I have had the privilege of reading beforehand the comprehensive and well-reasoned judgments of my learned brothers, Aikins and Amuah JJSC. I agree entirely with the conclusions they have reached in their respective judgments and the reasons therefor. I have nothing useful to add. I concur in the decision, therefore, that the appeal be dismissed.

JUDGMENT OF AMUAH JSC.

I have been considering the reasons given by the second defendant Nana Amua Gyedu XIV, the chief of Apowa for terminating the lease exhibit B. They are three, namely, for non-payment of rent, abandonment and breach of covenant to build.

The issue of rents:

The plaintiff purchased by public auction the property of Takoradi Brewery Ltd in 1975 and after that the Apowa chief re-entered in 1983. There is evidence to show that payments of rents by cheque were made for the years 1982 to 1984: see exhibits 1 and 2, but that the Lands Department refused to accept them. Ejectment can always be ordered if there is a “history of continued default” on the part of the tenant: see Moubarak v Eguakum (1956) 1 WALR 88 at 89 per Windsor Aubrey; and Dellenty v Pellow [1951] 2 KB 858, CA.

If the Apowa chief had served the plaintiff with notice and the case had gone to court, the plaintiff could have tendered the rent and it would have been unreasonable to make the order. The plaintiff was not given that opportunity. Assuming that the case had gone to court it was unlikely for the court to grant an order of ejectment, if the conduct of the Apowa chief and the lands officer had been brought to the notice of the court together with the fact that the plaintiff had buildings on the disputed land which he purchased.

[p.672] of [1997-98] 1 GLR 645

Abandonment

Whether the land in dispute was abandoned or not when the first defendant entered it, was challenged. This line of defence cannot avail the first defendant. In its evidence in-chief, the first defendant stated that the watchman on the land had planted cassava on it. The land was therefore not abandoned.

Breach of covenant

I now come to the third reason given by the second defendant for determining the lease. Under native law and custom one of the methods for determining a lease is by the grantor forfeiting the lease on account of a breach of covenant. Re-entering brings the lease to an end. If the tenant can be made to give up possession peacefully then there is no need for the forfeiture to be enforced by action in court. In the instant case, the evidence shows that the plaintiff-company has uncompleted brewery factory and three residential bungalows (see exhibit A) on the land, was willing to pay his rent: see exhibits 1 and 2 and kept a watchman on the land. He was reluctant therefore to give up possession and the second defendant must exercise its right of forfeiture subject to statutory restriction and the terms of the lease. The learned author Kludze in his book entitled Ghana Law of Landlord and Tenant at p 421 discusses the rights and remedies of a landlord when a lease is liable to forfeiture. He writes:

“ . . . Although the right of forfeiture may be automatic, forfeiture itself is not automatic and the landlord may elect not to enforce his right of forfeiture. Even though as a general statement it is said that a breach of a condition terminates the lease, it is only true to the extent that the lease is liable to be forfeited. Therefore when a right of forfeiture accrues, whether as a result of the breach of a condition or a covenant, the effect truly is that it renders the lease voidable at the instance of the landlord, the lease does not, thereby become authomatically void . . . “

The second defendant’s misapprehension of the law is contained in his evidence in-chief. It is wrongful and unlawful for;

[p.673] of [1997-98] 1 GLR 645

(1) the second defendant not to have issued a writ. The right to forfeit may be barred by delay: see the Limitation Decree, 1972 (NRCD 54), ss 4(1)(b) and 5(1) (a);

(2) the second defendant to exercise the right of forfeiture because the exercise of the right is reserved in the lease, in the government;

(3) the second defendant not to have served the plaintiff with reasonable notice requiring the plaintiff to remedy the breach when he knows that it was the plaintiff company and not the Takoradi Brewery Ltd that was in possession: see section 29 of the Conveyancing Decree, 1973 (NRCD 175).

The exercise of the right of entry is ineffective and invalid.

Finally, concerning the requirement for ministerial approval: The subject matter of this dispute being a stool land, its valid disposition requires the concurrence of the Minister for Lands: see section 8 of the Administration of Lands Act, 1962 (Act 123) and article 267 of the Constitution, 1992. Under the Constitution, 1992, a Regional Lands Commission has to “certify that the disposition or lease is consistent with the development plan approved by the planning authorities of the area concerned.” Further, failure to give consent or concurrence may be the subject of appeal in the High Court. When the case started in the lower court it was not known that the minister gave his concurrence to the disposition of the land in exhibit B. Now that this has been brought to the notice of the court, it stands to reason that the concurrence granted by the minister to the disposition of the same piece of land in exhibit 4 at a later period is a nullity and so also is the registration number given to the document in exhibit 4. Both of them have to be quashed.

I agree with the judgment read.

DECISION Appeal dismissed.

Endnotes

1 (Popup – Footnote) sic same in document 2 (Popup – Footnote) [sic] same in content. 3 (Popup – Footnote) [sic] same in content. 4 (Popup – Footnote) [sic] same in content. 5 (Popup – Footnote) [sic] same in document