JUDGMENT OF ASARE-KWAPONG J.
Ref.: Administration of Lands Act, S.8.
“In my view unlike the statutory provision in Chidiak v. Coker (supra), section 8 (1) of Act 123 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 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 made in the interest of 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 as 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. But beyond that there is no requirement that legality attaches to a disposition only if the minister’s concurrence is obtained before it is made.”
The plaintiff instituted this action in a representative capacity as the leader of a group of Akwapim farmers who joined together to form a company or syndicate with the purpose of purchasing farmland. Apart from a Togolese member of the syndicate, it appears that all the original members of the syndicate were dead at the time of the action; the plaintiff was the successor of his late uncle and elder brother Ahyiah and Yaw Gyebi respectively, the latter was the leader of the syndicate. It is the usual practice of such groups on the death of a member, for his successor at law to be substituted as a member; it is in accordance with this practice that the plaintiff became the leader of the group following the death of his uncle and elder brother respectively.
The case of the plaintiff was that in or about 1932 the original group left their native Akwapim and were prospecting for good farming land, and bought the land in dispute from Barima Nketia, the Chief of Pinaman, and his elders in or about 1932. He worked on the land with his uncle called Ahyiah who is now deceased and whom he inherited; documents were prepared on the sale which he tendered as exhibits A and A1.; he stated the value of the land and tendered a plan prepared on
the land and marked exhibit B. The syndicate went into cultivation of the land and made cocoa farms thereon and built cottages on it and after their death their lawful representatives succeeded them.
The cause of action arose when some years after, that is in 1964, some subjects of the stool, the defendants, started allocating portions of the syndicate’s land to themselves and to tenants. The evidence reveals that during the lifetime of Barima Boasiako II, the Chief of Pinaman (on whose stool land the land in dispute is) a dispute arose between the syndicate and Barima Boaslako II, the latter having been dissatisfied that the syndicate brought a surveyor unto the land without his consent and knowledge. The syndicate and Nana Boasiako II appeared before the Okyenhene the overlord of the land. According to the plaintiff the syndicate was found liable for having brought the surveyor unto the land without the knowledge of the chief and his elders of the stool despite the fact that the land was bought legally. Consequent upon this arbitration, it was decided that another document be prepared to cover the land in dispute. As a result of this decision an indenture exhibit D was prepared indicating that the land in dispute had been sold to the plaintiff syndicate for an agreed sum of £336 in 1932 by the predecessor of Nana Boaslako II, a certified true copy of the plan made in 1932, at the purchase of the land at the initial stage, was attached to it. He said the Okyenhene ordered all the trespassers to leave the land and that even though some had left, the present defendants continued their acts of trespass on the land; further even though he shares boundary with the stool of the co-defendant, he had never trespassed unto his land. In conclusion he said in his evidence that when they appeared before the Okyenhene, the defendants were also invited and during the inspection of the land, it was discovered that the defendants’ land was within the land sold to them.
The evidence of the first plaintiff witness was that she bought the land of one Donkor, who was a member of the syndicate by auction sale in respect of which he tendered exhibits E and F covering the purchase.
The linguist of the Okyenhene for 37 years, Kwasi Obugyei, in his evidence confirmed the evidence of the plaintiff as follows: He said in 1964 Nana Boasiako II complained to the Okyenhene that the members of the syndicate were on his land without his knowledge and consent; an arbitration was accordingly held between the complainant, Nana Boasiako II, and the syndicate by the Okyenhene; as a result of the arbitration a delegation was dispatched to inspect the land in dispute; measurements were taken by a surveyor and a meeting held again confirmed that the land was purchased by the syndicate, as a result of which exhibit D was prepared; he even signed exhibit D after it had been read to him.
When this case was proceeding, the defendants in order to convince the court that the land belongs to them expressed the desire to make a plan of the land in dispute for superimposition on exhibit B on 7 January 1984; both parties after filing their instructions went on the land and pointed out their boundary features. The result of this survey which could not be tendered until 26 November 1984, showed that the land cultivated by the defendants are within the boundaries of the land of the plaintiff syndicate edged blue in exhibit C.W. 1.
The defence is a complete denial of all the facts alleged by the plaintiff. The first defendant gave evidence for himself and on behalf of all the remaining defendants. Indeed, he put up the defence that he had never heard of the name Gyebi and Co; he said the land in dispute is nowhere near the land being claimed by the plaintiff. He admitted that the land is on Apinaman stool land and that as a result of a dispute between the plaintiff and the defendants the matter came before the Okyenhene; and according to him, the syndicate were found liable for cultivating the stool land of Pinaman. He said they had been on the land for well over 30 years and have built cottages on it; and further agreed that there was a survey of the land after the arbitration.
The occupant of the Pinaman stool at the time of commencement of this action, Nana Barima Odame Asiate, upon his own application, joined as a co-defendant. His case was that the plaintiff and his people were given land by his predecessor but not the disputed land and that they stole the land they are currently claiming. He said that when the stool discovered that the plaintiffs had stolen the land a report was made to the Okyenehene, the overlord, who summoned the plaintiffs, himself and the defendants in or about 1966. As a result of such illegal sale of the land to the plaintiffs, the then chief, Nana Boasiako II, was destooled. He admitted that the plaintiff’s land shared a boundary with his stool land, and that the plaintiffs once trespassed into his land; he attended the survey ordered by the Okyenhene and pointed out his land to the surveyor. The co-defendant contended finally that the plaintiff and his people were not entitled to the reliefs they were praying for.
The witness for the co-defendant told the court that a similar case occurred in 1966 and he was a member of the committee that went into the case. In that case the Krontihene summoned Nana Boasiako II before the Okyenhene that he had sold some stool lands to Gyebi and his syndicate. According to him, Nana Boasiako II apologised to the Okyehene and the Okyenhene made an order that the subjects of the stool should go and occupy the land; in addition to this order Nana Boasiako II was destooled, and the Okyenhene further made an order that the syndicate should wait until a new chief was installed to negotiate a new property agreement. At this stage, the defendants
attempted to tender in evidence proceedings of the Akim Abuakwa Traditional Council held at Ofori Panin Fie on 9 June 1966 between Mankrado Danso and eight others and Barima Antwi Boasiako, Pinamanhene. This was rejected in view of the fact that it had no relevance to the issue before the court as that proceeding was purely in connection with the destoolment of Nana Antwi Boasiako and even if one of the charges concerned the sale of the land to the syndicate that charge alone, did not divest the syndicate of their title to the land. He was not aware whether the council went to inspect the land.
At the close of pleadings the issues therefore joined by the parties were fifteen, but could be summarised as follows: Whether or not the plaintiff has a valid title to the land in dispute having regard to section 8 (1) of the Administration of Lands Act, 1962 (Act 123), and if so whether he is entitled to recover possession of the said land from the defendants and the co-defendant and an order of perpetual injunction against the defendants.
On the issue as to what was the extent of the land, i.e. the parcel of land demarcated by the Pinamanhene and his elders for the said company of Akwapim people, i.e. the syndicate, and the title thereto, I prefer the account given by the plaintiff and his witnesses to the version given by the defendants and the co-defendant stool, as the plaintiff’s story was amply corroborated by the evidence adduced. The plaintiff’s evidence described the full extent of the boundaries of the land involved. This evidence was corroborated by the advance payment for the land of £30 in 1936, and another £30 in 1937, marked exhibits A and A1 respectively, as part-payments for the land the value of which was £140. These receipts did not describe the extent of the land purchased by the syndicate; exhibit B adequately showed the extent of the land giving the full names of the members of the syndicate on it who numbered nineteen persons including Kwasi Yawotse. The plaintiff’s evidence on this point is that Kwasi Yawotse was a member of the syndicate, and as indicated earlier on, it is the usual practice of such groups on the death of a member, for his successor at law to be substituted as a member; it is in accordance with this practice that the plaintiff became the leader of the group following the death of his uncle: see Adjowei v. Yiadom III  2 G.L.R. 90, C.A. It will not accord with commonsense if after the death of a member of the syndicate, the chief of Pinaman will come to plant himself among other members of the syndicate. It is the dead member’s lawful attorney who would take over, unlike a situation where when a person working on abusa basis died his land becomes atuogya which will entire to the benefit of the stool which gave such land to him. Again the evidence of the first plaintiff witness is a complete purchase of her part of the land from the auction sale of the land belonging to one Donkor who was a
member of the syndicate which originally bought the land in 1932. This sale was covered by exhibit E which is the auction notice after the parcel of land was purchased. An indenture, exhibit F, was prepared for her with the attendant plan within the confines of the land purchased by the syndicate.
Counsel for the defendants in his submission invited the court to hold that the plaintiff has not been able to prove his case. The plaintiff has produced exhibits A and A1 being payments his predecessors made as part-payment for the land purchased by the syndicate. The plan exhibit B described the land so purchased, spelling out the names of the members of the syndicate. They worked on the land for a considerable length of time until the present defendants entered the land some time in 1964. As a result of the harrassment of the plaintiff, the case went before the Okyenhene, where the defendants and the co-defendant appeared. What happened there was narrated by the plaintiff and the second plaintiff witness, the linguist of the Okyenhene, who had been holding that post for 37 years. This means that he was at the settlement of the issue joined by the plaintiff and the Krontihene of Pinaman. I believe his evidence as against that of the co-defendant and then witness of the co-defendant.
The evidence of the second plaintiff witness, the linguist of the Okyenhene, showed that as a result of a complaint made by the Krontihene of Pinaman that the plaintiff had brought a surveyor onto the land without his knowledge, the Okyenhene found the plaintiff liable and dispatched an emissary to go onto the land to inspect and measure the extent of land purchased by the plaintiffs predecessor, the syndicate, This was done, and the plaintiff perfected the sale by paying the balance left unpaid. To this end, an indenture was prepared in 1965, with its attachment, a plan, a replica of the one made for the syndicate in or about 1936. This indenture confirmed the amount paid by the syndicate to be £336 being the cost of 56 ropes at £6 per rope. This indenture was signed by the Okyenhene and his elders gave their consent to such sale to the syndicate. Even though the co-defendant’s witness came to give evidence for the co-defendant, his evidence is a red herring trying to cover up facts which do not support the evidence on record and which do not accord with commonsense and reality of life. How can the Okyenhene ask the citizens of the area to farm the land and for the syndicate to wait until a new chief was installed to negotiate with him for the purchase of the land; if that happened and the citizens had already made farms on the land were the members of the syndicate going to throw out the citizens from the land and take their farms? This conclusion exposes the lie of the witness for the co-defendant.
The defendants tendered in evidence a document purported to have been prepared by the Okyeman Council in June 1966 concerning the destoolment charges preferred against Barima Antwi Boaslako who sold the land in dispute to the syndicate. Seven charges including seven supplementary charges were preferred against him, one of them was that he sold farms and land to Akwapim people, meaning the syndicate. He was, however, destooled by reason of the fourteen charges. The defendants are saying that in view of the destoolment of Nana Antwi Boasiako, the sale to the syndicate was null and void. However since this sale was confirmed by the acting Omanhene of Akim Abuakwa, the overlord of the Pinamanhene in December 1965, exhibit D, even if an attempt was made to nullify the sale which had already taken place in 1932, which attempt was not even made, such a nullification would have been null and void as the present Pinamanhene is estopped.
The arbitration which gave rise to the indenture dated 1965, exhibit D., took place in the presence of Barima Boasiako II and consequently he was bound by it; it did not take place in his presence only but he was a signatory to it; his successor was bound by the arbitral award of 1964: see Asano v. Taku  2 G.L.R. 312. The rule is stated in Halsbury’s Laws of England (3rd ed.), Vol. 15, p. 198, at para. 374 as follows:
“In order that a judgment [in this case an arbitration award] may be conclusive against a person as privy in estate to a party litigant it is necessary to show (apart from his taking with a notice of a pending action) that he derives title under the latter by act or operation of law subsequent to the recovery of the judgment, or at least to the commencement of the proceedings, and that the judgment was one affecting the property to which title is derived.”
In this case the co-defendant’s title is derived subsequent to the proceedings, and by operation of law or act he is the successor of Nana Boasiako and so is privy to the estate and consequently estopped per rem judicatam. This principle, was set out in Hockman v. Arkhurst (1920) F.C. ‘20-’21, 103. In that case the facts shortly were that Hockman bought a plot of land from the Omanhene of Sekondi in 1914 and paid for it. In 1918 the stool sold the same land to Arkhurst. The principle under consideration was stated at 105 by the court as follows:
“Now it is an 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 as a fact sold to the Plaintiff as he alleges in 1914 ... 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.”
In my opinion it will not lie in the mouth of the defendants to say that the stool allowed the defendants as the citizens of the stool to cultivate the land in dispute, this is so because apart from exhibit D, the second plaintiff witness, the linguist of Okyenhene, had confirmed the decision of the Okyeman Council that the land had been sold to the plaintiff’s predecessor. The evidence of the witness for the co-defendant is, however, a complete red herring exploited by the defendants to confuse the issues herein.
For good measure, the defendants’ counsel at the last moment threw in section 8 (1) of the Administration of Lands Act, 1962 (Act 123). He submitted that as the land involved in the transaction was stool land, it came under section 8 (1) of that Act which subjects dealings in stool lands to the concurrence of the Minister responsible for Lands. And as the consent of the minister was neither sought nor obtained, exhibit D notwithstanding, the sale of the land was void as offending the clear provisions of the Act. That subsection says:
“8. (1) Any disposal of any land which involves the payment of any 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 any such consideration, and which is made,
- by a Stool;
- by any person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any 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.”
Section 8 (6) further provides that, “Any transaction entered into in contravention of the provisions of this section shall be void.”
This question arose in Chidiak v. Coker (1954) 14 W.A.C.A. 506 and Baines v. Tweddle  Ch. 679, C.A. In Chidiak v. Coker (supra) the question was whether a sublessee of Crown land was liable on the convenant to repair, when the Crown Lands Ordinance (No. 45) of Nigeria in section 7 provided that in all leases of Crown lands shall be implied a convenant, not to assign, sublet or otherwise part with the possession of the land without the previous consent of the Governor in writing.
The appellant had before then been the sublessee of the respondent who was himself the lessee of the Crown land in question. The initial term having come to an end, the appellant had negotiated and executed a fresh sublease which was not executed by the respondent before a
year and a half had passed. In any case the Governor’s consent even though backdated to the commencement of the fresh sublease was not forthcoming before the year and a half had run out. Meanwhile, the appellant continued in possession. While ‘in possession but before the Governor’s consent, the house burnt down. The respondent sued the appellant on the covenant to repair in the sublease. The West African Court of Appeal held, and this after the necessary consent had been obtained, that without the prior consent of the Governor, the sublease could not be granted; that consent could not have been assumed. Therefore at the time of the fire, there was no sublease.
In my view unlike the statutory provision in Chidiak v. Coker (supra), section 8 (1) of Act 123 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 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 made in the interest of 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 as 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. But beyond that there is no requirement that legality attaches to a disposition only if the minister’s concurrence is obtained before it is made.
Here, the defendants triumphantly proclaim that the minister’s concurrence was never sought or obtained. This is true, but whose fault was it? They and the co-defendant never made the effort to obtain the concurrence themselves. There is no merit in this contention of the defendants’ since I have already stated that after the registration of the land at the Lands Department the plaintiff can at any time obtain the minister’s consent. It always comes ill from the mouth of a man who has benefited from a contract to resist the performance of his obligation on the ground that the contract was illegal. It is particularly odious where that man takes that point only after he has attempted deliberately to perpetrate a bare-faced deception on the court and has been found out. In any event, this is a case in which I share the sentiments of Lord Wright in Vita Food Products Inc. v. Unus Shipping Co. Ltd.  A.C. 277 at 293, P.C. where he said:
“Each case has to be considered on its merits. Nor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a wider sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds.” See also Schandorf v. Zeini  2 G.L.R. 418, C.A.
It is crystal clear from the above that the chief and his elders sold the land in dispute to the syndicate represented by the plaintiff, but the present chief is suing in trespass as a ploy to retrieve the land from the plaintiff in order to support the defendants’ claim as citizens of the land to invade the plaintiff’s land lawfully purchased by them. The syndicate have never trespassed onto the land of the co-defendant and it was wrongful for him to seize the maize planted by the plaintiff. I cannot make any order to retrieve it as the plaintiff made no serious effort to canvass this issue. For the reasons I have given, I give judgment for the plaintiff against the defendants and co-defendant jointly and severally for:
- a declaration of title and recovery of possession of all that piece of land with cocoa and foodstuffs farms thereon lying and situate at a place commonly known as “adenkyensu” on Apinaman stool land and bounded on the north by Adenkyensu stream and measuring 63 ropes 7 fath 9 ft., on the south by Asuawo stream and measuring 64 ropes, 2 fath 10 ft., on the east by Apinaman stool lands and measuring 24 ropes, 8 fath 8 ft., and on the west by Kwabena Odoi and Co’s property and measuring 29 ropes, 6 fath 7 ft.;
- ¢25,000 damages for trespass;
- perpetual injunction restraining the defendants, their agents and/or servants from in anyway entering upon or interfering with the land in dispute; and
- costs for the plaintiff against the defendants and co-defendant in the sum of ¢10,000.
It is obvious that the defendants have been on the land for well over two decades and have made farms thereon at a considerable expense. It is my fervent hope that the plaintiff, the victor in this case, will allow the defendants, the vanquished, to attorn tenancy to him.
Judgment for the plaintiff.