Acquiescence of a family in the development of land
We are of the considered opinion that, even assuming that the lease executed by Asare Bossman was devoid of the requisite familial consent, the rather belated actions of the Appellant’s family estopped them from mounting a challenge to the interest of the Respondent and her husband, several years after they had through their inactivity, urged the Respondent on in the construction of the property on the land.
Again both from the principles of equity-which is now part of the Ghana common law-and the principle of customary law, the elements necessary to establish acquiescence are: (1) the person who enters upon the land of another person must have done so upon honest, though erroneous belief, that he had right to occupy the land, (2) he must have expended some considerable sum of money on or in respect of the land upon the faith of his mistaken belief, such that he cannot be compensated for in money’s worth, (3) the owner of the land must know all the time that he has right to the land which is inconsistent with the erroneous right claimed by the other, (4) the owner must know of the mistaken belief of the other person, and (5) the owner must by his silence or otherwise have fraudulently encouraged the other party to spend his money to develop the land and had not called his attention to his error
We must add that, the doctrine has, since 1975, also found statutory expression in Section 26 of the Evidence Act, 1975 (NRCD 323), which provides: “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, as against that party, be conclusively presumed in any proceedings between that party and such relying person or his successor in interest.” The section, though couched in the language of conclusive presumption rather than estoppel simpliciter, has been recognised by this Court in numerous decisions as the statutory embodiment of the equitable doctrine of estoppel by representation, of which promissory estoppel is but one species.
Estoppel by standing by while another litigates in the same interest
The case of Marbell v. Akwei (14 W.A.C.A.143) has in our opinion no application to the present case. The appellant in that case stood by whilst someone was disputing a title which he, the appellant, had conveyed. The possessor of that title defended to uphold it, and lost, and it was held that the appellant, who had stood by, must be bound by such decision. He had “stood by to see his battle fought by somebody else in the same interest.” The words” in the same interest” are of importance. It appears from the judgment of their Lordships in the Privy Council in the case of Ofori Atta II & anor v. Bonsra II & anor. ([1958] A.C. 95) that the test to be applied in deciding whether the interests are the same is “whether the matter to be determined in the present action was the same as the matter determined in the former action?” Applying this test, it seems to us clear that neither Amarh nor Nelson was defending any interest of the appellant or her predecessors, and that therefore the reasoning of Marbell v. Akwei cannot here be applied.
Further, upon the evidence in this case it cannot be said, and it was not pleaded in the defence, that the Nah Korley family were guilty of such laches as would support a case of acquiescence on their part, though there appears to be some such suggestion in the judgment. The second respondent very shortly after his entry on the land was subjected to a long litigation, and the land itself formed the subject matter of competitive claims in Native Courts and in the High Court. The first and second respondents cannot be said to have improved the land or developed it to the knowledge of the family or the appellant, or at all, so as to render it fraudulent on the part of the family to convey, and on the part of the appellant to enforce her title. If such a case were to be suggested, it is fatal to it that it was not pleaded.
