VANDERPUYE v. GOLIGHTLY AND OTHERS [1965] GLR 453

DIVISION: SUPREME COURT

DATE: 14 JUNE 1965

BEFORE: MILLS-ODOI, APALOO AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Coleman v. Shang [1959] G.L.R. 390, C.A.

(2) Manko v. Bonso (1936) 3 W.A.C.A. 62.

(3) Abbey v. Ollennu (1954) 14 W.A.C.A. 567.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Ollennu J., as he then was, dated 27 November 1961 delivered in the High

Court, Accra. The judgment declared the land in dispute to be the self-acquired property of the late

Odartey Golightly and that the lease of this land granted by the late Kojo Golightly was void and of no effect. The plaintiffs were granted an order for recovery of possession. Against this judgment, the defendant appealed to the Supreme Court. The facts as summarised in the headnote are taken from the judgment of Apaloo J.S.C.

COUNSEL

Dr. de Graft-Johnson for the appellant.

No appearance for the respondents.

JUDGMENT OF APALOO J.S.C.

This is an appeal from the judgment of Ollennu J. (as he then was) dated 27 November 1961. By that judgment, the court declared a piece of land situate at Adadainkpo and fully described in the writ, as the self-acquired property of the late Odartey Golightly and that a lease of this land granted by the late Kojo

Golightly was void and of no effect. The court also ordered in favour of the plaintiffs, who are the children of the said Odartey Golightly, recovery of possession of the said land. The facts of this case have no unusual features and I will relate them briefly in order that the complaint which is made against the judgment appealed from may be seen in its right focus. The Golightly family seem to have hailed from

Sempe in Ga Mashi where they owned a family house. The evidence shows that on a date prior to 1917, that house was mortgaged by the family to a firm known as J. J. Fisher & Co. It is perhaps not an unreasonable conjecture that the house was [p.455] of [1965] GLR 453 mortgaged to secure one of the members of the family in business. It would seem that that person fell into debt and the mortgagees took steps to realise the security by the sale of the house. To forestall this, the

Golightly family themselves sold the house and utilised part of the proceeds in paying off the debt. The balance of the purchase price remained, indubitably, family property. The head of the family at that time was the late Odartey Golightly and he appears to have had the custody of this money. There is evidence that he shared this money among various members of the family.

It would seem that not long after the disposal of the family house, some sections of the family removed to

Adadainkpo, another quarter of Accra, where Odartey had himself built a house. In July 1917, Odartey purchased from a Mr. Joseph Bossman, a piece of land at Adadainkpo. That land is the subject-matter of the present dispute. The sale was evidenced by a deed of conveyance executed in his favour by the said

Bossman (exhibit 1). The land was apparently undeveloped until Odartey’s death intestate on 22 February

1927. By the well-known canons of customary law, the land would become family property and would vest in the head of the family for the beneficial enjoyment of the entire family. As Odartey hailed from Ga

Mashi, his family, for the purpose of inheritance, would be members of the matrilineal family and his children qua children would be out of reckoning for the purpose of inheritance but for the matter to be presently mentioned.

On Odartey’s death, his younger brother of the full blood suceeded him and stood possessed of this land for and on behalf of the family. This brother was called Kojo Golightly. On 9 May 1945, the said Kojo

Golightly, in his capacity as head of the family of his late brother Odartey, granted a lease of the land in question to one C. A. Vanderpuye for the term of 99 years subject to the conditions and stipulations in the lease (exhibit A). It was a building lease and the evidence shows that the said lessee erected a building on the said land in or about 1946. Kojo Golightly died on 31 October 1952. The said C. A. Vanderpuye has also since died although there is no evidence as to the date of his death. But it seems plain that not only was Kojo Golightly’s right to grant this lease never disputed in his lifetime, but also the late C. A.

Vanderpuye was equally not disturbed in his enjoyment of the demised land.

The evidence establishes that the late Odartey contracted two successive marriages under the Marriage

Ordinance,1 and possibly a prior customary marriage although the evidence of this is rather slight. At his death in 1927, Odartey was survived by the widow of the

[p.456] of [1965] GLR 453 later statutory marriage and by some of the children of that marriage and the earlier two marriages. As I have said, the natural children of Odartey would, as such, have no interest in his property after his demise and, a fortiori, would have no locus standi to litigate about these properties, but by virtue of the provisions of section 48 of the Marriage Ordinance, these children would be entitled, in the events which have happened, to two-thirds of his self-acquired real and personal properties.

Accordingly, the children of the late Odartey Golightly took their stand on the rights conferred upon them by the Marriage Ordinance and claimed that inasmuch as they are interested in two-thirds of the demised land, the lease granted of the whole of it by their father’s successor and then head of family without their knowledge and consent was void and of no effect. They prayed that the lease be set aside and sought an order for recovery of possession of that land. They also asked the court to make a declaration of title in their favour. As I said, the original lessee has since died and the reliefs which the plaintiffs claimed were sought against the present head of his family, namely, Christiana Vanderpuye. She averred that the land in dispute was family property inasmuch as it was purchased with the proceeds realised from the sale of the Golightly family house at Sempe and denied that its devolution was in any way affected by the provisions of the Marriage Ordinance. Accordingly, the defendant contended that as the plaintiffs being issues of the late Odartey, were in the eyes of customary law, strangers to the Golightly family, they had no locus standi to litigate about property in which they had no interest. Latterly, the defendant sought and obtained leave to contend in the alternative, that even if the land in dispute belonged to Odartey in his own right and that the provisions of the Marriage Ordinance applied to vest title to two-thirds of the land in the plaintiffs, they were estopped by their conduct from now asserting the rights which they claimed. Issue was joined on all these matters, and in this manner the case proceeded to trial. In the course of his address, counsel for the defendant also relied on the Land Development (Protection of Purchasers) Act,

1960,2 which Act, according to its preamble, was passed “to protect purchasers of land and their successors, whose titles are found to be defective after a building has been erected on the land.”

The learned trial judge determined all these issues in favour of the plaintiffs. He held that the land in dispute was the self-acquired property of the late Odartey Golightly and that the provisions of the

Marriage Ordinance applied to vest title in two-thirds of the

[p.457] of [1965] GLR 453 land in the plaintiffs. On the question of estoppel by conduct, the learned judge held that the defendant’s predecessor-in-title acquired the land with full knowledge of the defect in his title and that the defence did not avail him. With regard to the statutory defence based on the Land Development (Protection of

Purchasers) Act, 1960, the court held that it was inapplicable for two reasons, namely, first, to quote the ipsissima verba of the judgment “That Act applies to conveyance of land, not to creation of an interest in land, it does not therefore apply to a lease,” and secondly, that “the late Mr. Vanderpuye acquired the land in bad faith.” It is against these findings that this appeal has been brought.

The notice of appeal contains the usual omnibus ground of appeal, to wit,”The judgment is against the weight of evidence.” When hearing of this appeal commenced before us on 17 May, last, we granted leave to counsel for the appellant to argue eleven additional grounds of appeal filed by him. Most of these grounds contain very trifling complaints against the judgment and were, save for four, all abandoned.

Also abandoned, was the original ground that the judgment was against the weight of evidence. Thus counsel for the appellant offered no argument against the crucial finding that the land in dispute belonged to Odartey Golightly in his own right and was not the property of his family. I apprehend counsel for the appellant must have realized that he could not attack the finding with the slightest prospect of success. In my opinion, on the evidence, the learned trial judge was bound to conclude that the land in dispute belonged to Odartey in his own right and his finding on this score is unimpeachable.

It was contended on behalf of the appellant that the learned judge was in error inasmuch as he granted to the plaintiffs reliefs not sought by them. The reason for this submission is that while the plaintiffs claimed a declaration of title to the land, the learned judge merely declared that land to be the self-acquired property of their father. There is some force in this contention but I would not myself regard it as fatal to the judgment. The plaintiffs were joint-owners of this land with Odartey’s maternal family in the proportion of two-thirds and one-third and as the family were not parties to the action, to make a declaration of title simpliciter in favour of the plaintiffs, might be construed as an adjudication of ownership of the entire land in their favour. But the fact that the late Odartey’s family have not sought to join this action to impeach the lease, is of some importance when the correctness or otherwise of the consequential orders which the learned judge made, fail to be considered.

It was next urged that the capacity in which all the plaintiffs jointly brought the action was not sufficiently set out in the pleadings [p.458] of [1965] GLR 453 or in the evidence and that the learned judge was wrong in giving judgment in their favour without specifying in what capacity each of the nine is entitled. I was at first attracted by this submission but a consideration of the evidence leads me to conclude that that criticism is not well made. The first plaintiff was without doubt born before either of the two successive statutory marriages was contracted. There was only one issue of the first marriage under the Ordinance and that is the third plaintiff. According to the evidence, eight children were begotten of the second statutory marriage with Sarah, one of whom is no more. Henry Golightly testified that the remaining seven are all parties to this action. It follows that of the nine plaintiffs, eight are issues of a marriage contracted under the Marriage Ordinance and the first plaintiff alone was begotten by marriage contracted in accordance with customary law. The case of

Coleman v. Shang3 decides that all these children are collectively entitled to share in the two-thirds of the property that descends to children by operation of law. It follows that the evidence disclosed the capacity in which the plaintiffs collectively brought the action and that the learned judge’s finding on this part of the case is unassailable. In any event, the court was not asked to decide rights of the children inter se, and in my judgment, the learned judge was not obliged to decide the several individual rights of these children in the land in dispute.

That brings me to the most serious complaint made against the judgment. It was submitted for the appellant, that as the land was ostensibly family property, its alienation by the undisputed head of the family without the consent of the principal members was voidable and not void. Accordingly, it was said, that the plaintiffs in order to set the lease aside, ought to have acted timeously. Counsel argued that although the plaintiffs were aware of the erection of a building on the land as far back as 1946, they took no steps to assert their rights or warn the lessee of the defect in his title until the issuance of the writ in the instant action. Counsel referred to and relied on the case of Manko v. Bonso,4 and contended that the plaintiffs ought to have been held estopped by conduct from pursuing the present claim.

In my judgment, that contention is plainly right. For myself, I cannot think of a clearer case of acquiescence by conduct. The first plaintiff herself said she saw a building going up on the land in dispute in 1946. She learnt from her uncle that that building was

[p.459] of [1965] GLR 453 being put up by the late Mr. Vanderpuye. She also admitted that she knew all along that that land belonged to her father and had descended to themselves. Yet neither herself nor any of the children of the late Odartey took steps to warn Mr. Vanderpuye of their rights. The first plaintiff admitted that her father’s youngest child was between 43-44 years old in 1961. That shows that at the date that the first plaintiff saw this building, Odartey’s youngest child was at least between 27-28 years old. Accordingly, the plaintiffs were all legally emancipated and cannot claim that they were under any form of parental dominion. Yet fully cognisant of their rights, they chose to go to sleep and for fourteen years made no attempt to assert their rights. In 1960, they apparently awoke from their slumber and thereafter sought to avoid the lease at a time, as they must have known, Mr. Vanderpuye was no more and his successor could not be restored to his former position. In my judgment, the plaintiffs were properly met with the defence of estoppel by conduct and this action ought to have failed.

The learned trial judge himself appreciated that the defendant raised against the plaintiffs, a serious case of acquiescence by conduct and he himself restated the well-known principles of this doctrine and quoted at length from Spencer Bower on Estoppel by Representation and the oft-cited case of Abbey v.

Ollennu.5 He however concluded that that defence did not avail the defendant because her predecessor-in-title obtained his title in bad faith. For my part, I do not find that the evidence led in this case justified any ascription of bad faith to Mr. Vanderpuye. He was plainly unaware of the plaintiffs’ interest and thought he was acquiring a lease of what, to all intents and purposes, was family land. In the course of his investigation into title, he was made aware that in order to obtain an unimpeachable title, he must in addition to the head of the family, obtain the consent of two members of the late Odartey’s maternal family. They are Naadu and Mr. Odametey. The only evidence of this, is contained in a letter which Mr. Vanderpuye wrote to Mr. Odametey in the Congo to obtain this consent. That letter shows clearly that Naadu consented to the lease. Mr. Odametey’s evidence suggests that he did not comply with

Mr. Vanderpuye’s request to send a written intimation of his consent because he was then ill in hospital.

The letter to Mr. Odametey in Thysville, Congo, was dated 23 February 1945 (exhibit 2) and the lease was executed about three months later, that is, on 9 May 1945. Mr. Odametey never at any time refused to consent and indeed took sides with the defendant in this action and testified on her behalf.

[p.460] of [1965] GLR 453

One can conceive of many good reasons why Mr. Vanderpuye might be prepared to accept a lease of this land without waiting much longer for Mr. Odametey’s written consent. Kojo Golightly, for instance, might have persuaded Mr. Vanderpuye that Odametey was not likely to object. Odametey’s subsequent stand in this matter would justify any such assurance. For my part, I cannot believe that Mr. Vanderpuye would have spent, what in the mid-forties, was an enormous amount of money in developing this land, if he was not made to believe that all was well with the title and that the consent of Odametey was unlikely to be withheld. If that is a reasonable view to take of this matter, and I think it is, I should hold that the late Mr. Vanderpuye obtained the lease in good faith. I appreciate, of course, that this way of looking at the matter involves some sort of speculation, but this seems to me unavoidable in a case where the court is asked to determine the state of a man’s mind in relation to a transaction which took place so long ago and when the man is himself prevented through no fault of his own (in this case death) from making an explanation. I hold that Ollennu J. (as he then was) was in error when he held that the late Mr.

Vanderpuye acquired the lease in bad faith. I hold that he acquired it in good faith and that the plaintiffs having stood by and suffered him to incur expenditure on developing the land ought to be deemed to have waived and abandoned any rights they possessed and cannot now enforce them. On this ground alone, I should be prepared to allow the appeal.

The learned trial judge also declined to grant the defendant the relief provided by the Land Development

(Protection of Purchasers) Act, 1960, on the ground that the late Mr. Vanderpuye acquired the land in bad faith. I have already held the contrary and that reason cannot hold good. The judge also thought that the

Act applies only to a “conveyance” of land not to a lease. I think, with respect, that the learned judge put too narrow a construction on the word “conveyance” which cannot be justified either by the policy of the

Act or the ordinary legal meaning of the word “conveyance.” According to Wharton’s Law Lexicon,

“conveyance” is an instrument which transfers property from one person to another and includes a mortgage, charge, lease, vesting declaration or any assurance of property or any interest therein. Section 4

(1) of Act 2 itself provides that “conveyance” includes “a transfer by customary law” and it is well known that often customary transfers involve the creation of interests in land rather than out and out alienation or the transfer of what is sometimes called the allodial title.

[p.461] of [1965] GLR 453

I think the learned judge put an equally narrow construction on the word “purchaser.” It is obvious from his reasoning that he did not regard a tenant as a “purchaser” within the meaning of the statute. He only construed it in its popular sense. But Wharton says, purchase in its popular sense is an acquisition of land obtained by way of bargain and sale for money or more other valuable consideration but in its legal acceptation, an acquisition of land in any lawful manner. That it is in its legal rather than its popular sense that the word “purchaser” is used in the Act, is shown by the fact that the Act defined “purchaser” as a person who has taken a conveyance of land in a prescribed area, et cetera.

In my opinion, the late Mr. Vanderpuye took a “conveyance” of land in a prescribed area after 3

December 1944, and has in good faith, erected a building on that land. Proceedings were taken against his successor-in-title for possession on the ground that the plaintiffs are the persons entitled to the land. It seems to me plain that it would, in the circumstances of this case, cause hardship and injustice to the defendant that an order for possession should be made. It follows, in my judgment, that the defendant brought herself within the four corners of section 1 of Act 2 and was entitled to the relief provided by the

Act. Accordingly, I am satisfied for my part, that the learned judge was wrong in declining to accord to the defendant that statutory remedy.

I concluded therefore that neither of the grounds on which the learned judge decided the case in favour of the plaintiffs can be supported. I would therefore allow the appeal and set aside the judgment appealed from. In lieu of it, I would dismiss the plaintiffs’ claim and enter judgment for the defendant. The defendant is entitled to her costs in the High Court. I would assess them at 50 guineas. She will also have her costs in this court.

JUDGMENT OF MILLS-ODOI J.S.C.

I agree.

JUDGMENT OF SIRIBOE J.S.C.

I also agree.

DECISION

Appeal allowed.

S. K. D. -B.