MOASA CO vs. SAARA [1999-2000] 1 GLR 538

CASES REFERRED TO

(1) Amuzu v Oklikah [1998-90] SCGLR 141.

(2) Vanderpuye v Pioneer Shoe Factor Ltd [1981] GLR 181, CA.

(3) Asare v Brobbey [1971] 2 GLR 331, CA.

NATURE OF PROCEEDINGS

APPEAL by the plaintiff-appellant company from the judgment of the trial court declaring title to the plot of land at New Abossey Okai, Accra in dispute in the defendant. The facts are sufficiently stated in the judgment of Benin JA.

COUNSEL

James Ahenkorah for the plaintiff-appellant.

J O Dadey for the defendant-respondent.

[p.541] of [1999-2000] 1 GLR 538

JUDGMENT OF BENIN J A.

The issue before the trial court was, which of the parties herein is the rightful lessee of a piece of land measuring 70 by 105 feet lying at New Abossey Okai, Accra. Both parties sought declaration of title to the said land so they assumed the burden of persuasion on the question of title.

The plaintiff’s case as pleaded was that it acquired it from one Nii Boye Maclean and remained in undisturbed possession since the acquisition. It was only around February 1990 that the defendant and her agents began to disturb the plaintiff’s enjoyment of this land. The defendant averred that she obtained a grant of this land about 1965 from the late Nii Abossey Okai II, Odorkor Mantse. A deed of conveyance executed in her favour got lost. She obtained a building permit in 1971. In or about 1990 she approached the incumbent Odorkor Mantse, Nii Boye Maclean II to execute another document in her favour. She was made to pay some money. Subsequently, the stool secretary demanded another 440,000 before the document would be prepared for her. When she sent the money to the Mantse he refused to accept it saying he had sold it to someone else. Hence the counterclaim.

At the end of the oral testimony and addresses, judgment was entered in favour of the defendant. The plaintiff has appealed to this court on the following grounds:

“(1) The judgment is against the weight of the evidence.

(2) The evidence of the plaintiff-appellant was not sufficiently evaluated.

(3) The damages awarded were harsh and excessive.

(4) The learned trial judge misdirected herself in not adverting her mind to the statutory provisions on disposal of stool lands in force in 1965 and 1988 when the two grants to the defendant and the plaintiff were made.”

The identity of the land in dispute is agreed upon by both parties, the different names given to it notwithstanding. It is clear from the record that both parties claim title to the land through the same stool. It is also certain that the plaintiff obtained his registered documents during the pendency of this action. Hence, whereas the plaintiff sought declaration of title and an order of perpetual injunction, the

[p.542] of [1999-2000] 1 GLR 538 defendant went beyond these reliefs and sought damages for trespass, recovery of possession and an order to cancel the land certificate.

According to the plaintiff, before it took this land its representative conducted a search which disclosed that the land was the subject of a sale to a certain Lebanese. The then Akumajay Mantse, Nii Boye Maclean, told him that the Lebanese was no longer in the country so he would sell the land to him if he was interested. He paid for it and obtained a document which he submitted to the Lands Department. This document as well as the search report were tendered in evidence. These documents show the lease was backdated to 1988 though it was prepared in 1991 when the actual transaction took place.

Under cross-examination the plaintiff’s representative admitted that the plot is in a built-up area and that two sides thereof have been fenced. He denied any knowledge of an earlier grant of the same land to the defendant from the same stool. He said he did not consider it necessary to inform the Land Title Registry about the defendant’s competing claim of ownership of this land since he already possessed a 99-year lease agreement. He denied meeting the defendant’s caretaker on the land, let alone beating him.

The defendant said she obtained this land through her sister who is closely linked to the grantor stool. She obtained a document—the nature of which is not described—but that it got lost. She was given a site plan which was tendered in evidence. The site plan, exhibit 4, shows it was prepared and signed by a licensed surveyor on 16 December 1971. She said she deposited sand and stones on the land. An approved building permit for her was tendered as exhibit 5. She said when her document got lost, she and her sister approached the stool for a fresh one. She was made to pay ¢5,000 but the document was not given to her. She was again made to pay ¢6,000 for the same purpose yet she could not get it. A further sum of ¢40,000 was demanded but she could not immediately pay that. Later when she returned to the stool, she was told the land had been sold to another person. She added that her caretaker had warned the plaintiff off the land and this resulted in the plaintiff taking him to the Kaneshie police.

The defendant’s sister, Odofole, the first witness for the defendant, confirmed that she acquired this land for the defendant and that her own land shares boundary with the defendant’s land. She con-

[p.543] of [1999-2000] 1 GLR 538 firmed also that the defendant put sand and stones on the land. The second witness for the defendant, a daughter of the chief who granted the land, confirmed that it was the first witness of the defendant who took the land for the defendant. The trial court gave judgment for the defendant on the strength of her prior title and the fact that the plaintiff could not get a superior title despite registration.

It is to be noted that at the commencement of this action on 13 May 1991, the plaintiff did not possess any legally valid document on the land. The lease which he took and which is embodied in exhibit C was registered in November 1991. Thus the parties had to satisfy the court that as at the date the writ was issued they had a valid grant from the owner of the stool; and this was precisely the basis upon which the case was contested.

The defendant led evidence, which was in material respects confirmed by the first and second witnesses for the defendant, that she obtained this land way back in the 1960’s. The first witness for the defendant is her common boundary owner and she was the one who secured the land for her. The second witness for the defendant also confirmed these facts. The fact that she deposited sand and stones on the land was also confirmed, and so too was the fact that the defendant had a caretaker on the land. The fact that the stool took various sums of money from her in order to give her a fresh document was confirmatory of the fact that she had previously been granted the land by the stool and that she had a direct dealing with the stool.

The plaintiff came in much later, at the earliest in 1988. Its representative saw that the area was built-up with two sides of the plot fenced up. He surely must have seen the sand and stones on the plot if he had carried out a prior inspection of the land. He definitely saw or met the defendant’s caretaker on the land since he (the plaintiff) took him (the caretaker) to the police, a fact not denied during the cross-examination of the plaintiff’s representative. It is very significant to note that, according to the testimony of the first witness for the defendant, the plaintiff approached her saying he wanted to buy this plot which he thought was for her—the first witness of the defendant—but she told him it was owned by her sister. She sent for the defendant but when she came, she refused to sell it.

[p.544] of [1999-2000] 1 GLR 538

In the plaintiff’s representative own words, he paid for the land in 1991 following his search, exhibit A, which is dated 18 June 1991. And before then he had been warned by the defendant through a letter dated 23 February 1990, receipt of which he duly acknowledged by his own solicitor’s letter of 28 February 1990, exhibit 2, concerning the defendant’s prior interest in this property. Yet he went ahead to pay for the land in 1991 and got a document which was backdated to read 1988.

From the foregoing pieces of evidence which from the record were not challenged or seriously disputed, the court was entitled to conclude that the plaintiff was fixed with actual notice that the land was owned by the defendant and was in her possession per a caretaker. It seems very clear that the plaintiff chose to rely on its search result and not what he had physically seen and learnt. With clear acts of possession and knowledge of the ownership of the land vested in somebody else, the plaintiff nonetheless decided to proceed to acquire the land because the new stool occupant gave him the go-ahead since a Lebanese who previously owned it was no longer in the country. A grantor of land must not derogate from his grant, this is the law; hence the same stool which had earlier granted this land to the defendant had no right to regrant same to the plaintiff or for that matter to any other person unless the defendant had breached a condition of the grant and steps had been taken by the stool to re-enter the land.

More importantly, the plaintiff who was aware of the fact that ownership was vested in somebody else and saw clear acts of possession on the land, cannot even pray in aid bona fide purchaser or grantee for value without notice which alone have helped him claim a valid grant to himself. Thus so long as the plaintiff had prior notice of defendant’s interest in the land he could not have a valid grant. And the fact that he saw evidence of possession made it obligatory on him to make the necessary inquiries on what terms the person in possession of the land was occupying it, albeit by her caretaker. And the fact that his vendor-grantor did not disclose the relevant facts to him or even lied to him did not relieve him of the onus to investigate, for registration per se does not guarantee title to a person who otherwise has none. The foregoing legal points were firmly confirmed by the unanimous decision of the Supreme Court [p.545] of [1999-2000] 1 GLR 538 in the case of Amuzu v Oklikah [1998-99] SCGLR 141. For these reasons, the trial court’s conclusion cannot be faulted.

However, before this court, the point has been raised, by way of the additional ground of appeal, that the trial judge did not consider the relevant legislation then in force. The said legislation is the Administration of Lands Act, 1962 (Act 123). Counsel referred to section 8(1) thereof which provides:

“8. (1) Any disposal of any land which involves the payment of any valuable consideration or which would, by reason of it being made to a person not entitled by customary law to the free use of land, involve the payment of any 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 nay3(3)[sic] consideration or in exchange for a nominal consideration, shall be subject to the concurrence of the Minister and shall be of no effect unless such concurrence is granted.”

I think this legislation, like the Land Registry Act, 1962 (Act 122), does not entitle a person, who had no right to the land, to acquire title to it by the bare fact that he has secured the concurrence of the minister. This legislation is also subject to the common law doctrines of fraud and notice. Thus the plaintiff, who had prior knowledge of the defendant’s ownership and possession of the land, would not be able to defeat the defendant’s right to the land by quickly running to the minister for his concurrence without disclosing the defendant’s adverse claim to the land.

Secondly, the point raised relates to a breach of a statute or non-compliance therewith. This court has decided in the case of Vanderpuye v Pioneer Shoe Factory Ltd [1981] GLR 181 at 184, CA, holding (8) as stated in the headnote, that whenever there was a breach of a statute which enured to the benefit of a party, it ought to be pleaded and made an issue for trial. If the plaintiff wanted to rely on this legislation to defeat whatever title the defendant might have acquired in the land, it ought to have pleaded it, especially so too

[p.546] of [1999-2000] 1 GLR 538 when, by the provisions under reference, it is not every grant of stool land which is affected. It becomes a question of fact to prove and not law per se. I am mindful of this court’s decision in Asare v Brobbey [1971] 2 GLR 331 at 335, CA that where a point has not been pleaded and all the facts are before the court and no element of surprise results, the court may consider it. But it should, I believe, be in very obvious cases like where, for instance, a contract clearly is illegal in the light of a statute. In this case, it was necessary to plead the statute or such facts as evinced an intention to rely on it. That would have enabled the defendant to meet it by leading the necessary rebuttal evidence as regards consideration or free use of the land. It is clearly taking her by surprise to allow this submission at this stage, and more particularly when the facts are not obvious from the record.

Counsel for the plaintiff in his address said:

The defendant by her name, is not a Ga and therefore not a person entitled by customary law to free use of Ga stool land. According to her evidence she lives at Apam. It is her sister’s father who was one of the elders of Abossey Okai II and she got the plot through the sister who is called Odofoley.”

This statement by counsel makes the case for pleadings on this point even more compelling. There is no doubt that in this country, as a result of inter-tribal marriages it will be wrong to assume that a person comes from a particular place because of his name. Moreover, as a result of the free movement of people and the tendency to settle wherever one likes, especially in search of jobs, you cannot simply determine where a person comes from by the place he or she resides. Thus, counsel’s argument that the plaintiff is not a Ga because she bears what appears to be a non-Ga name and also lives in Apam is a non sequitur. It is noted that there is undisputed evidence that the defendant is the sister of Odofoley. And it is not in dispute that Odofoley relates the stool occupant. Thus, if anything at all, the most reliable or acceptable inference to be drawn from these pieces of evidence is that the defendant is also related to the stool occupant. Such speculative conclusions are not allowed on appeals; hence the need to plead the statute so that all the facts will be considered. Counsel’s argument is rejected on this ground also that the statute was not pleaded directly or otherwise.

[p.547] of [1999-2000] 1 GLR 538

In this suit both parties entered the contest relying on the grant obtained from the stool. As at the date the action was instituted, the plaintiff himself did not have the minister’s concurrence so it was not pleaded, let alone to put in issue. So that if this is an acceptable issue to raise now, then the plaintiff will also be thrown out of court on that account for he had no title to rely upon. Title is not to be acquired during the pendency of an action; for a plaintiff, it must exist at the time he sues. That explains why as of now the plaintiff has never pleaded these documents for its root of title, for they did not give a cause of action as they were non-existent when he took out the writ.

Be that as it may, the point relevant for our consideration is that Act 123 envisages that an earlier grant of stool land has been made by the appropriate person before the minister’s concurrence is to be obtained. There is no time limit imposed by the section as to when the minister’s concurrence is to be secured. In my view, a second person will not be able to defeat an earlier grant of stool land made to a first person simply by obtaining the minister’s concurrence if the second person was affected with notice of the first person’s grant. The second person’s grant will be void since the grantor has nothing to grant him.

Thus, like Act 122, only a bona fide purchaser or grantee without notice may be protected by Act 123. That necessitates the pleading of the statute and also the party’s bona fides and lack of notice, and these should accordingly be issues for trial. But in this case, even if the statute—Act 123—is properly invoked, yet it does not avail the plaintiff for it was effectively affected with notice of the defendant’s existing prior interest in the land. The appeal fails for the foregoing reasons and is accordingly dismissed.

JUDGMENT OF WOOD J A.

I agree that the appeal be dismissed.

JUDGMENT OF BROBBEY J A.

I agree that the appeal should be dismissed because there is no merit in it.

DECISION

Appeal dismissed.

LSNA

Endnotes

1 (Popup – Footnote) 1 same in original.

2 (Popup – Footnote) 2 same in original.

3 (Popup – Footnote) 3 same in original.