Hammond v. Odoi & Anor. [1982-83] GLR 1215, Holding 4 @ 1241, S.C.

HAMMOND v. ODOI AND ANOTHER [1982-83] 2 GLR 1215, Holding 4 at p.1241, per Crabbe J.S.C. SUPREME COURT, ACCRA ARCHER, ANIN, CHARLES CRABBE, ADADE AND TAYLOR JJ.S.C.
Ref.: Administration of Lands Act, SS. 1 and 8

By virtue of sections 1 and 8 of the Administration of Lands Act, 1962 (Act 123), a grant made of a stool land would not convey a valid title without the exercise of the powers conferred upon the minister by the provisions of sections 1 and 8 of Act 123. [NB: this authority is now subject to Chapter 21, particularly, Art. 267, of the 1992 Constitution]

JUDGMENT OF ARCHER J.S.C.
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This appeal has been brought with leave granted by the Court of Appeal in July 1972. In granting leave, the Court of Appeal

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(see Hammond v. Odoi [1972] 2 G.L.R. 459, C.A.) took the view that the substantial questions of law raised were so involved with other issues of fact and mixed law and fact that the leave granted should apply to all the three grounds to enable the Supreme Court to do full justice to the case.

With great deference to the court below, I wish to say that I do not find any complexities in this case, for it seems to me that this case should be disposed of by applying strictly, the conveyancing laws of this country and no more and I intend to adopt that attitude.

In March 1958, the Land Court at Accra found that:

(a) The Maamobi-Kotobabi-Dzorwulu lands are part of the Osu village or rural lands under the care and control of the head of the Ashanti Blohum quarter, namely the Mankralo.
(b) The Mankralo of Osu, head of the Ashanti Blohum quarter is the sole authority, acting with the consent of his principal elders, to make customary grants of portions of that land to Osu subjects.

When that case came before the then Supreme Court on appeal in 1960 (reported as Akwei v. Awuletey [1960] G.L.R. 231) that court held (as stated in the headnote at p. 232, S.C.) that:

“(2) the Osu Mantse is the proper person entitled to sue and be sued in respect of lands title to which is vested in the Osu stool,
“(3) the Osu Mantse is the proper authority to grant Osu stool lands, subject to the qualification that he cannot make a valid grant of quarter lands and outskirt lands attached to a quarter without prior consultation with the head and elders of the quarter concerned:
(4) the land in dispute was neither quarter land nor outskirt land adjacent or contiguous to the Ashanti Blohum quarter but Osu stool rural land which the Osu Mantse and his elders including the quarter headmen could grant.”

Since the delivery of that judgment in 1960 the Osu people have accepted the pronouncement as the final exposition of their customary land law. 22 years afterwards I do not think that it is open to this court to re-open the matter and to ascertain whether the judgment was erroneous or unjust on the sole ground that presumably, under the existing law constituting the Supreme Court, that decision is not binding on this court.

The land in dispute in the present appeal is Kotobabi land and it is governed by the 1960 judgment and nothing else. Before that decision was delivered, the present appellant (hereafter referred to as the plaintiff) had been granted a rectangular piece of land measuring 100 feet

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by 418 feet by his late uncle Nii Philip Tetteh Botchway, the then head of Nii We family and Gyasetse of the Mankralo stool of Ashanti Blohum quarter in Christiansborg, with the consent and concurrence of the elders and councillors of the Nii We stool. The grant was a customary gift and was made in November 1949. In February 1965, the plaintiff noticed through his caretaker, that the defendants had trespassed upon a part of the land measuring 100 feet by 140 feet. After failing to settle the matter, the plaintiff sued the defendants.

The defendants on the other hand denied that the plaintiff’s family were owners of the land in dispute but claimed that in November 1956, honestly believing that the land belonged to the Nii We family, the defendants took a deed of gift from that family and the deed was registered as No. 1488/1957 at the Deeds Registry, that is exhibit 1. The defendants further claimed that when the judgment of the Supreme Court in 1960 declared the Osu Mantse as the proper owner of the land according to customary law, they complied with a request from the Osu Mantse (through published notices to the general public) that all grantees, of persons other than the Osu Mantse should call to validate their grants, and took exhibit 1 to the then Osu Mantse, Nii Dowuona IV, who executed an indorsement on their earlier deed of gift from the Nii We family. The indorsement was registered as No. 530/1965 at the Land Registry. The defendants furthermore contended in their statement of defence as follows:

“15.The defendants will further contend that if in fact there has been any customary grant to the plaintiff as alleged herein and denied by the defendants, the said plaintiff who was at all material times at Osu would have answered the ex-Mantse’s notice to obtain a valid grant from the Osu stool and that the alleged customary grant is a bold invention by the plaintiff to deprive the defendants of the land of which the first defendant has remained in undisturbed possession for over nine years.”

This particular pleading raised a new matter to which the plaintiff properly was entitled to reply which he did in the following words:

“11.In answer to paragraph 15 of the statement of defence the plaintiff says that pursuant to the legal notice dated 26 October 1964 and published by the solicitor of the Osu stool, the plaintiff obtained confirmation of their customary title by a deed of gift executed by the Osu Mantse on 22 November 1964.”

After this reply, one would have thought that the issue was a straightforward one - a legal battle between the two deeds, one granted by the ex-Osu Mantse, Nii Dowuona IV, to the defendants in

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1962 and registered as No. 530/1965 (see exhibit 1) and the other granted to the plaintiff by the then Osu Mantse, Nii Dowuona V in November 1964 (exhibit E) which although stamped was never registered. It appears that the plaintiff was not equipped for a battle on that strategy. The plaintiff took advantage of the opportunity afforded him by the reply and pleaded further as follows:
“2. In answer to paragraphs 2 and 3 of the statement of defence, the plaintiff says that the land in dispute forms part of Osu rural lands which the Nii We family by virtue of being subjects of the Osu stool originally occupied at all material times.
3. The plaintiff and his brothers being descendants of the original occupiers of the land were granted a portion of these rural lands. In November 1949 they were allocated the portion described in paragraph 3 of the statement of claim by the then head of Nii We family.
4. The plaintiff therefore says that as subjects of the Osu stool their title to the said land which was originally occupied by their ancestors and which has been in their possession since 1949 is a good one.”

If one compares these three paragraphs in the reply with paragraph 2 of the statement of claim, one is constrained to ask whether or not, contrary to Order 19, r. 17 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), the plaintiff in his reply has not raised a new ground of claim and had not made allegations of fact inconsistent with the previous pleading. At the trial, learned counsel for the defendants did not object to these three paragraphs and the trial proceeded on the pleadings filed. The learned trial judge found and held that the earlier customary grant to the plaintiff in 1947 must prevail over the subsequent grant made to the defendants in 1956 and 1962 respectively. The learned trial judge also refused to apply the Land Development (Protection of Purchasers) Act, 1960 (Act 2), in favour of the defendants on the ground that by persisting with the constructional work on the land in dispute they acted in bad faith and were reckless.

On appeal, the Court of Appeal by a majority decision, held, as reported in Odoi v. Hammond [1971] 1 G.L.R. 375 C.A. that the customary grant by the Nii We family to the plaintiff in 1949 was nullified by the Supreme Court judgment in 1960 and as the defendants took their title from the Osu Mantse and had registered their document, their title should prevail over the unregistered document of the plaintiff. The Court of Appeal further held that the plaintiff by his reply did set up a case which was completely inconsistent with his former pleadings without asking leave to amend his statement of

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claim; and as such the learned trial judge should have disregarded those portions of the reply and the evidence in support thereof which were at variance with the case put forward in the statement of claim. Finally, the court held that the defendants acted in good faith and had not been guilty of recklessness.

In this court, ten elaborate grounds of appeal were filed and argued before us. The defendants did not appear but had earlier filed a statement of their case in which, inter alia, they contended that the appeal was not properly before this court. It seems to me that this contention was fully argued before the Court of Appeal when leave was being sought and the court gave a reasoned ruling why the appeal should proceed to this court. I do not think it is necessary to revive the contention in this court.

By a process of elimination, I intend to prune down the appeal to its proper and legitimate dimensions. The first question I wish to answer is whether the plaintiff departed from his pleadings in the statement of claim. Order 19, r. 17 of LN 140A is one of the vintage rules of civil procedure and is older than Sir Edward Coke who in his days reformulated it as follows:

“A departure in pleading is said to be when the second plea containeth matter not pursuant to his former, and which fortifieth not the same; and therefore it is called decessus, because he departeth from his former plea.”

See Odgers on Pleading and Practice (19th ed.), p. 226 and also Dam v. Addo [1962] 2 G.L.R. 200, S.C. and Bissah v. Gyampoh III [1964] G.L.R. 381, S.C. In my view, nowhere in the statement of claim did the plaintiff aver that his ancestors, being Osu subjects, settled at Kotobabi as of customary right. His earlier pleading conveyed only one impression, namely that he and his brothers were owners of the land in dispute because they took their grant from the Nii We family of Ashanti Blohum quarter of Osu. Nowhere in the statement of claim did they rely on any confirmation of this customary grant by the Osu Mantse, Nii Dowuona V. There is no doubt that if the defendants had not pleaded the 1960 Supreme Court judgment, the plaintiff would have stuck to his title derived from the Nii We family of Ashanti Blohum.

As pointed out earlier, paragraph 11 of the reply is a proper answer to the defendants’ plea that they had responded to the call by the Osu stool to grantees to regularise their grants. But it seems to me that as soon as the plaintiff introduced the new matter that he and his ancestors occupied the area in dispute as Osu subjects, he committed a decessus by changing his radical title and making new allegations of fact. In those circumstances, the appropriate course open to him was

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to have applied for leave to amend his statement of claim. The new pleading was clearly intended to circumvent the decision of the 1960 Supreme Court judgment which adjudged the Osu Mantse the sole legal owner of Osu rural lands.

Learned counsel for the plaintiff in his submissions relied on a passage in the judgment of Hall V.C. in the case of Williamson v. London and North Western Railway Co. (1879) 12 Ch.D. 787 at p. 795 as follows:

“[W]here, in fact, the plaintiff introduces new matter and new facts by way of set-off, or controverting the statements in the defence, that is all legitimate, provided always that it be done within reasonable compass and in a reasonable way.”

The averments in paragraphs 2, 3 and 4 of the reply were certainly not intended to be a set-off. Did they controvert anything which the defendants had pleaded in their statement of defence? They did not. On the contrary, they raised new matter and abandoned their earlier stand. If there was any controversion, then it was contained in paragraph 11 of the reply, which answered the defendants’ allegation that the plaintiff took no steps to approach the Osu Mantse to regularise his grant after notices had been published by the latter. To controvert means to deny. What did the defendants say in their statement of defence which the plaintiff thought he should deny in paragraphs 2, 3 and 4 of the reply?

In the Williamson case (supra), Hall V.C. had this to say at p. 794:

“With reference to the form of the reply, I hold, upon the construction of the several rules, that where a Plaintiff is putting in a reply to a defence in which the Defendants have set forth facts, it is sufficient, for the purpose of putting in issue by way of denial those facts stated in the defence, to reply generally. It is not necessary, in the reply, to traverse one by one the particular statements of facts which are contained in the defence; because Order XIX, rule 20, which requires that in every pleading the party is not to deny generally, but specifically, the facts alleged, is inapplicable to the case of a replication to an ordinary defence unaccompanied by any counter-claim.

Paragraphs 2, 3 and 4 of the reply did not deny generally or even specifically any allegation in the statement of defence because there was no such allegation to be denied. The plaintiff relied on title granted him by his family as owners; why should he change his stand in his reply and then rely on occupation by his ancestors as Osu subjects? I think a chameleonic pleading cannot be legitimate. The Supreme Court judgment in 1960 was a stumbling block in the path of the plaintiff and had to be removed. But it seems to me that

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the method adopted was not permitted by Order 19, r. 17 of L.N. 140A. I think that the words “provided always that it be done within reasonable compass and in a reasonable way” in the passage of Vice-Chancellor Hall’s judgment in the Williamson case (supra) at p. 795, should not be taken out of context and should not be construed to mean that notwithstanding what Order 19, r. 17 lays down, a trial court has the right to overlook the rule and then consider whether a reply is reasonable or not. In the Williamson case (supra) the reply was cluttered up with answers to interrogatories, new claims, evidence, argument and conclusions of law to be drawn or inferred from the facts pleaded; and Hall V.C. held that all these matters were not permitted by the rules to be included in a reply. Accordingly, he ordered the whole reply to be struck out with liberty. When the Vice-Chancellor used the words “reasonable compass and in a reasonable way” he had in mind the embarrassing reply which he was considering. He was not ousting the operation of Order 19, r. 17. On the contrary, he applied Order 19, r. 17 and disallowed and commented unfavourably and adversely on matters which should have been in the reply.

In the present appeal, I would hold that although paragraph 11 of the reply was legitimate and was pleaded in a reasonable compass and in a reasonable way, yet paragraphs 2, 3 and 4 were not legitimate at all because they introduced new grounds and new allegations of fact to support the plaintiff’s claim. In such a case it is not necessary to consider whether they were pleaded in a reasonable compass or reasonable way. Order 19, r. 17 of L.N. 140A must prevail. I have a feeling that perhaps if objection to paragraphs 2, 3 and 4 had been raised at the trial, the learned trial judge might have allowed his mind to travel further in order to ascertain whether the new matters pleaded in the reply should be permitted or not.
On the assumption that what is recorded as the address by counsel for the defendants in the record of proceedings is correct, it appears that no objection was raised to these new matters. Moreover, in the summons for directions and the additional issues filed, it does not appear that the title of the plaintiff was specifically anchored to prior occupation of the land by his ancestors by customary right as Osu subjects. A temptation to consider all the pleadings and the whole evidence before the court in such a case cannot be ruled out. It seems to me, with the greatest respect, that the learned trial judge should have resisted the temptation if he was aware of it. If he was unaware, then certainly Order 19, r. 17 and the decided authorities were against him.

Surely the plaintiff thought he had laid a net for the defendants but in reality that net was a gossamer net whereas Order 19, r. 17 is an iron net through which the plaintiff could not escape and which he

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could not blast. I therefore agree with the majority decision in the Court of Appeal that by his reply the plaintiff relied on a new ground and that ground together with the oral evidence led on it should have been disregarded at the trial. If that had been done, the parties would have been left with their grants from their common grantor, the Osu stool, because their earlier grants by the Nii We family in 1949 and 1956 respectively, had been declared null and void by the 1960 Supreme Court judgment. One of the two documents, exhibit E and exhibit 1, must prevail.

First of all, exhibit E has to be diagnosed to determine its wholesomeness. The Supreme Court decision of 1960 rendered the grant by the Nii We family null and void and therefore there was no grant. Yet the recital in exhibit E declared that the then Osu Mantse, Nii Dowuona V had agreed to confirm the customary gift made by the Nii We family. The obvious truth in law is that exhibit E confirmed nothing because in 1960 a judgment of the highest court at the time had decreed that there was no grant at customary law. It was therefore impossible for the Osu stool to resurrect a non-existent grant as if it were a phoenix rising from the ashes of its funeral pyre to live once more. The only legitimate mode of conveying title to the plaintiff would have been a fresh grant. I think it was patently wrong for the recital to state that the deed of conveyance was intended to confirm an earlier customary grant. Nevertheless, any defect in the recitals or premises was actually cured in the testatum when in fact the Osu Mantse, the donor, as beneficial owner, did convey the parcel delineated on a plan to the plaintiff. The conveyance in exhibit E could only be classified as a fresh grant because there was nothing to be confirmed. The conveyancing practice in this country is that only a valid customary grant can be confirmed in writing by the same grantor or his successor.

If one contrasts exhibit E with exhibit 1, the first defendant’s deed of conveyance, it becomes clear that in January 1962, the then Osu Mantse, Nii Dowuona IV made a fresh grant to the defendant. The indorsement in that deed reads:

“Whereas the land described in the written Indenture of Gift dated 22 November 1956 and made between Nii Yebuah Nortey (hereinafter referred to as donor) and Gottfried Yemo Odoi (hereinafter called the donee) is not the property of the said Nii Yebuah but forms part of the lands attached to the Osu Stool and Whereas the Donee has recognised that the land belongs to the Osu Stool and has approached the Osu stool with a request that the land be granted to him which the Osu stool has agreed to do NOW THESE PRESENTS WITNESSETH in pursuance of the said agreement and in consideration of a customary drink fee of

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Six Guineas (6.6 pounds) now paid by the Donee to the Osu Stool (the receipt whereof the Osu Stool hereby acknowledges) the Osu stool acting by me Nii Noi Dowuona IV Paramount Chief of the Osu Traditional Area with the consent and concurrence of the Elders of the Osu Stool HEREBY GRANTS AND CONVEYS the land described in the said Indenture of Gift to and unto the use of the Donee his heirs successors and assigns FOREVER.”

It is very interesting to note that this indorsement was witnessed by Nii Nortey Yebuah, head and lawful representative of the Nii We family of Osu Ashanti Blohum, who was the defendant’s donor in the earlier abortive customary grant. This witness did not join the Osu Mantse to confirm any earlier customary grant. On the contrary, he acquiesced in a fresh grant to the first defendant.

It seems to me that the court is then left with the two documents, exhibit E and exhibit 1, because neither party could legally prove the existence of an earlier valid customary grant in his favour. Exhibit E was executed on 22 November 1964; it was duly stamped but was not registered at the Lands Registry. The indorsement in exhibit 1 was executed on 9 January 1962; it was stamped and duly registered on 26 March 1965 at 4 o’clock in the afternoon. The only issue before this court is to determine according to law who has a valid title.

The Land Registry Act, 1962 (Act 122), came into force on 14 June 1962, and section 24 (1) of that Act provides:
“24.(1) Subject to subsection (2), of this section, an instrument other than,
(a) a will, or
(b) a judge’s certificate,
first executed after the commencement of this Act shall be of no effect until it is registered.”

It follows that as the plaintiff’s document, exhibit E, was first executed in November 1964, that is after the commencement of the Act on 14 June 1962, his document was caught by section 24 (1) of Act 122. The plaintiff should have registered his deed because his deed was an instrument defined in section 36 of Act 122 as “any writing affecting land situate in Ghana, including a judge’s certificate and a memorandum of deposit of title deeds.” The plaintiff did not register his document and therefore the statutory consequence of non-registration must follow. Section 24 (1) specifically uses the words the instrument “shall be of no effect until it is registered.” It means simply that exhibit E did not take effect and will not take effect until registered. In this connection I wish to refer to the case of Asare v.

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Brobbey [1971] 2 G.L.R 331 at p. 336, C.A. and repeat what I said then:
“What does the phrase’ shall be of no effect’ mean? It undoubtedly means that it shall be of no legal effect, in other words, it is either void or a complete nullity. Briefly no legal consequences flow from its execution. But the phrase `shall be of no effect’ should not be considered in isolation. There is the further qualification to the phrase by the expression `until it is registered.’ The qualification therefore renders the document not void but its effectiveness is non-existent until the document is registered.”

Then at page 337, I continued:

“It follows therefore that when section 24 (1) of the Land Registry Act, 1962, provides that a document shall be of no effect until it is registered, it means that the document and its contents cannot have any legal effect until registration has been completed. This also means that the document is not valid for all purposes because the formality of registration is necessary to complete its validity. In this respect a clear distinction should be drawn between what is void and what is invalid. What is void or null is always regarded by law as never having taken place. What is invalid has taken place but something remains to be done to validate it or to give it legal force. If a document is deemed to be valid then it must be valid for all legal purposes but where the law will not give it any effect then clearly the document is invalid.”

It follows that since exhibit E was not registered as required by Act 122 no court of law should give legal effect to it.

On the other hand, exhibit 1, although it was executed before the commencement of Act 122, the indorsement therein was registered on 26 March 1965 and accordingly under section 26 (2) could have taken effect from the date of execution if registration had been effected within fifteen days from its date. However, since it was registered nearly three years afterwards, the document took effect under section 26 (5) from the date of registration, that is 26 March 1965. At that date there was no other instrument to compete with it so far as priority under section 26 was concerned. The plaintiff’s document had not been registered on or before that date and could not compete with it.

It follows therefore that on 26 March 1965, the defendants had a registered valid title to the land in dispute whereas the plaintiff had no such valid competing title to the area in dispute. In such a case, it was totally unnecessary to invoke the provisions of Act 2, for the obvious reason that the defendants had acquired a good title to the land in dispute. Section 24 of Act 122 firmly sealed the defendants’ legal title

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through registration whereas the plaintiff was left with a deed of conveyance which had never taken effect at the time of the proceedings.

Undoubtedly, the trial court applied Act 2 as he had found that the plaintiff had legal title by reason of his being a grantee from his ancestors, Osu subjects, who had occupied Osu rural land as of right. But as pointed out earlier, this finding was based on a pleading in the reply which was a complete departure from the earlier pleading and should not have been tolerated by the trial court.

I have also found it not necessary to deal with the point whether the Osu Mantse, Nii Dowuona V, the grantor of the plaintiff, had power to convey the land in dispute to the plaintiff in view of section 7 (1) of the Administration of Lands Act, 1962 (Act 123) and the Accra-Tema City Stool Lands (Vesting) Instrument, 1964 (EI 108), which had vested the land in dispute in the President of the Republic of Ghana in trust for the Osu stool. I say this because the plaintiff did not attempt to register his document. If he had bothered to register it, no doubt the Land Registry should have discovered any defects in the title of the grantor.

The defendants’ deed, exhibit 1, has the concurrence of the then Minister of Lands with the indorsement of the fresh grant and therefore the validity to exhibit 1 cannot be challenged and legal effect must be given to it.
For the above reasons, I would dismiss the appeal.

Charles Crabbe J.S.C. The plaintiff-appellant (hereinafter referred to as the plaintiff) claimed against the defendants-respondents (hereinafter referred to as the defendants):

(a) a declaration of title to land;
(b) £G500 damages for trespass; and
(c) perpetual injunction against the defendants-respondents their servants, workmen and agents from entering the land in dispute.

Having heard all the evidence, the learned trial High Court Judge gave judgment in favour of the plaintiff. The defendants appealed. The appeal was allowed by the Court of Appeal. Hence the present appeal.

It seems to me that four issues arise for determination on the present appeal:

(a) Should the reply of the plaintiff have been disregarded by the trial judge as raising a new case and thus he should have disregarded the evidence in support thereof?
(b) What was the effect of the confirmation of the grants to the parties by the Osu Mantse?

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(c) The relevance of the Administration of Lands Act, 1962 (Act 123), and
(d) The operation of the Land Development (Protection of Purchasers) Act, 1960 (Act 2).

But then the facts. Both the statement of claim and the statement of defence appear to indicate that at one time or the other the land in dispute was under the “ownership” of the Nii We family of Osu. The defendants averred that: “... on or about 22 November 1956, under the belief that the said land belonged to the said Nii We stool they obtained the said land under a deed of gift from the head of the said Nii We family... “The plaintiff had averred that he acquired the land from the same family.

All the parties claim that they acquired confirmatory grants from the Osu Mantse after the decision of the Supreme Court in Akwei v. Awuletey [1960] G.L.R. 231, S.C. The Supreme Court decided, inter alia, as stated in the headnote at p. 232, that:
“(3) the Osu Mantse is the proper authority to grant Osu stool lands, subject to the qualification that he cannot make a valid grant of quarter lands and outskirt lands attached to a quarter without prior consultation with the head and elders of the quarter concerned.”

As a result of this decision all the parties to the present dispute felt that their respective titles to the land in dispute based upon the grants from the Nii We family of Osu needed perfection. This they sought from the Osu stool in the form of a confirmation of their respective grants. It would appear, however, that the Osu stool had confirmed to the plaintiff a larger piece of land and a piece of that larger land to the first defendant who later devised it to the second defendant.

All these were in the pleadings. But the majority of the Court of Appeal (see Odoi v. Hammond [1971] 1 G.L.R. 375, C.A.) took objection to the reply. The court, per Azu Crabbe J.A. (as he then was) stated at p. 385:

“In my view the plaintiff was by his reply setting up a case completely inconsistent with his former pleadings. His case no longer was, as disclosed in the reply, that the Nii We family were the owners of the land in dispute, but that the Osu stool were the real owners of the disputed land, and that the Nii We family, as subjects of the Osu stool, occupied that land, and that the plaintiff and his brothers, being also the subjects of the Osu stool, were entitled to occupy Osu stool lands which were formerly in the possession of their ancestors. After obtaining a grant from Nii We family in 1949, they remained in possession

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until 1964 when their customary title was confirmed by a deed executed by the Osu Mantse on 22 November 1964.

The main purpose of a reply in pleadings is to raise in answer to the defence any matters which must be pleaded by way of confession and avoidance, or to make any admissions which the plaintiff may consider it proper to make. The reply is the proper place for meeting the defence by confession and avoidance: per James L.J. in Hall v. Eve (1876) 4 Ch.D. 341 at pp. 345-46, C.A. The plaintiff may allege new facts in his reply in support of the case pleaded in his statement of claim, but he is not permitted to set up in his reply a new claim or cause of action which was not raised either in the writ or in the statement of claim [except by way of amendment: see Order 19, r. 17 of the High Court (Civil Procedure) Rules, 1954. The plaintiff may, however, ‘new assign,’ that is to say, though he may not set up a new claim] in his reply, he can explain and define his original claim.

The plaintiff in this case did not ask leave to amend his writ of summons and the statement of claim, and in my opinion counsel for the defendant should have applied to have paragraphs (2), (3), (4), (5), (7), (11) and (12) of the reply struck out as being grossly defective.”

That is not the end of the pleadings. The plaintiff replies to the statement of defence. If the plaintiff does not serve a reply, “all the material facts alleged in the defence will be deemed to be denied by virtue of the implied joinder of issue.” Where the plaintiff serves a reply he is again required to plead any matter which might take the defendant by surprise or which “raises issues of fact not arising out of the defence.”

Earl Jowitt, in The Dictionary of English Law, defines a cause of action as “the facts or combination of facts which give rise to a right to sue.” It does mean, then, all those facts, all those circumstances upon which to found a right of action. It does mean “every fact which is material to be proved to entitle the plaintiff to succeed - every fact which the defendant would have a right to traverse”: see Cooke v. Gill (1873) L.R. 8 C.P. 107. And Strouds Judicial Dictionary (3rd ed.) says that a cause of action is “the entire set of facts that give rise to an enforceable action.”

Azu Crabbe C.J. in Spokesman (Publications) Ltd. v. Attorney General [1974] 1 G.L.R. 88 at p. 91. C.A. (full bench) said: “A party has a cause of action when he is able to allege all the facts or combination of facts which are necessary to establish his right to sue.” (The emphasis is mine.) He was relying on a dictum of Lord Esher M.R. in Reed v. Brown (1888) 22 Q.B.D. 128 at p. 131. How does one allege all the facts or combination of facts — not some of the facts – in

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order to establish his cause of action, his right to sue? I submit, it is in the pleadings in which one is required to allege the facts – all the facts or combination of facts. And without a cause of action how does one come to court?

After the reply there are subsequent pleadings, with the leave of the court. It is not necessary, for the purpose of this appeal, to go into all the details. It is sufficient only to mention that the next step after the reply is the serving of the rejoinder. This may be followed by the surrejoinder. The surrejoinder may be followed by the rebutter. This in turn is followed by the surrebutter. The rejoinder is the defendant’s answer to the reply. In this case there was no rejoinder. And for that the defendants cannot be held responsible. Nor should the trial judge.
The function of pleadings as indicating the role of the court is thus described by Master I. H. Jacob: “The Present Importance of Pleadings” in Current Legal Problems (1960), pp. 171-174 and 175-176:

“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings . . . For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without [due amendment properly made]. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realms of speculation . . . Moreover, in such event, the parties themselves, or at any rate one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised, by or against a party is equivalent to not hearing him at all and may thus be a denial of justice. The court does not provide its own terms of reference or conduct its own enquiry into the merits of the case but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called. ‘Any other business’ in the sense that points other than those specified may be raised without notice . . .

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Pleadings do not only define the issues between the parties for the final decision of the court at the trial; they manifest and exert their importance throughout the whole process of the litigation. They contain the particulars of the allegations of which further and better particulars may be requested or ordered, which help still further to narrow the issues or reveal more clearly what case each party is making. They limit the ambit and range of the discovery of documents and the interrogatories that may be ordered. They show on their face whether a reasonable cause of action or defence is disclosed. They provide a guide for the proper mode of trial and particularly for the trial of preliminary issues of law or of fact. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They act as a measure for comparing the evidence of a party with the case which he had pleaded. They determine the range of admissible evidence which the parties should be prepared to adduce at the trial. They provide the basis for the defence of res judicata in subsequent proceedings by reference to the record in the earlier proceedings.”

Pleadings are the nucleus around which the case - the whole case – revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case. And the reply is very much a part of the pleadings. And in this case the party most affected did not complain.

In their statement of defence, the defendants had averred in paragraphs 2 and 3 thereof that the plaintiff’s grantors were not the owners of the land in dispute. But the defendants had originally claimed that the land was first granted to them by the same grantor as granted the land to the plaintiff. The reply was thus stated in paragraph 2: “that the land in dispute forms part of the Osu stool rural lands which the Nii We family by virtue of being subjects of the stool originally occupied at all material times.”

It is pertinent here to ask the question: If the Nii We family were not in occupation of the land, how come that the defendants went, not to the Osu stool, in the first instance, but to the Nii We family for their grant? It is obvious that the decision in Akwei v. Awuletey (supra) had changed the complexion of the status in this regard of the Nii We family vis-a-vis the land in question. But before then, the

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evidence is clear that the Nii We family had been making grants of the land. Akwei v. Awuletey was decided on 29 November 1960.

In his evidence in support of the case for the plaintiff the Osu Mantse said:

“. . . the plaintiffs are members of my family from Nii We. They are from Ashanti Blohum quarter. I know the plaintiffs have land at Kotobabi. It [belonged] to their father. After their father’s death they shared the land among themselves . . .”

Later, in cross-examination, he said:

“. . . I know how the plaintiff’s father came by the land. It was the family that gave the land to the plaintiff’s father.

According to Osu custom all the children of a deceased together collectively succeed their father . . .”

The effect of this evidence is that long before Akwei v. Awuletey (supra) the Nii We family had given the land to the father of the plaintiff. If that is accepted - and there is nothing to challenge that assertion, prompted as it was in cross-examination, can the Osu stool be said to have “divested” itself of the land to the father? In what capacity? As subject of the stool? Or as a member of the stool family? And since the defendants in their statement of defence had laid claim to the confirmatory grant by the Osu Mantse, I do not see why objection should be taken to a reply or parts of a reply that seeks to bring out the facts leading to the confirmatory grant in favour of the plaintiff. Indeed, in an answer to the court the Osu Mantse said: “The Nii We family formerly lived on the Kotobabi land and as such in former times they were the persons who made grants...”

It is not disputed that both the parties to the suit each obtained a confirmatory grant from the Osu Mantse. Said the plaintiff, under cross-examination:

“On 26 October 1964 Nii Dowuona V caused notices to be published inviting persons who obtained grants of land in Kotobabi from persons other than the Osu stool to come forward. Upon hearing this I got a document prepared which I submitted to Nii Dowuona V. He executed this for me with his elders.

And thus said the first defendant, in examination-in-chief:

“ . . . about 1961, I saw a public notice published by Nii Dowuona IV. The notice was in the newspapers and said in effect that those who obtained plots of land from persons other than the Osu Mantse should submit their documents to him or call to see him . . .

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As a result of this, I approached the Osu Mantse Nii Dowuona IV. I took my document with me. He asked me to return in a week. I did so and he indorsed it for me . . .”

In cross-examination he said:

“It is my understanding that this land was occupied by members of the Nii We family. I am not a member of the Nii We family but I come from Ashanti Blohum which is the quarter from which the Nii We family hails.”

The grants by the Osu Mantse was each a confirmation. In each case it was a conveyance of an estate in esse. The effect is that it perfected the grant of title in respect of which the confirmation was given. Where there was a defect, the confirmation removed that defect. It becomes pertinent then, to establish who had prior title. For all the parties laid claim first to the grant from the Nii We family and then the confirmation from the Osu Mantse. In re-examination this is what the Osu Mantse said:

“. . . I said in my notice that all persons with documents should be brought to me. The plaintiff’s father died before Yeboah Nortey. The first defendant did not come to see me in answer to my notice. He came only after the dispute with the Hammonds . . .”

In examination-in-chief he had said:

“In 1964 the plaintiff came to me with a document. I and my elders signed it for him. It is exhibit B. I see my signature in it. After signing the document the plaintiff came to me. He complained that the first defendant stole his land. I told him to find a stick and white cloth to put on the land. It is a customary warning that the land belongs to someone. I did not go myself but I was informed it was done. My messenger went with the plaintiff but the plaintiff was to put the stick on the land. After this the plaintiff and his brothers went on the land and removed the iron sheets and pegs on the land.

Sometime after this, the first defendant and a brother of mine by name Dowuona came to see me. He said they saw a stick and white flag on the land and as he did not know what it was, he removed it. I told the first defendant the land belonged to the plaintiff so he should go and see him. He was holding a document but I did not even look at it. The first defendant asked me to sign the document for him. The first defendant is also an Osu man from Ashanti Blohum.

I read the document of plaintiff before signing it. I can read and write. The first plaintiff told me about the history of the land

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before he brought me the document. But before this I have an independent knowledge of the facts since we are all members of the same family. After this, the first plaintiff came to me and reported to me that he had been arrested. The last I heard was that the plaintiff had sued the defendants.

On 26 November 1964, I published a notice in the Graphic asking all persons having grants to bring their documents to me. This was because the lands were being sold indiscriminately. . .”

And in cross-examination he said:

“. . . I know what goes on in the Nii We family. The first plaintiff came to see me with two of his brothers in connection with the land. It was after the plaintiff left that I sent to find out whether he placed the stick and white flag on the land. It was the first plaintiff who placed the stick on the land.

I say the first defendant came to see me to sign a document for him. Not true the first defendant said the plaintiff asked him to see me. It is correct the second defendant came and told me that his elder brother could not come. So I told him to go and I did not take any interest in what he said. I am 86 years old. I was born in 1899. As a result of the notices which I put up a lot of people came to see me with their documents.

If you bring a document which we consider improper we see to it for you. If it is in order we send it to the Lands Department. If a person came with a document and said he had a customary grant and if we felt satisfied with it, we cause our solicitor to prepare a document...”

That was the Osu Mantse. But that was the Osu Mantse known as Nii Dowuona V. There are two Osu Mantsemei in this case. Nii Dowuona IV and his successor in office Nii Dowuona V. This brings into focus the significance of the date when Akwei v. Awuletey (supra) was decided and the dates of the confirmatory grants by the Osu Mantse, Akwei v. Awuletey (supra) was decided on 29 November 1960. The indorsement by the Osu Mantse to confirm the grant by the Nii We family to the defendants is dated 9 January 1962. The Osu Mantse then, was Nii Dowuona IV. The grant by the Osu Mantse to confirm the oral grant by the Nii We family to the plaintiff was executed on 22 November 1964. It was executed by Nii Dowuona V.

Why is it, and how come, that Nii Dowuona V issued his notice relying on Akwei v. Awuletey on 26 November 1964, when Nii Dowuona IV had, in 1961, already published notices on the self-same subject? Nii Dowuona V and the plaintiff, on the evidence, are members of the Nii We family.

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Despite the differences in the technique of conveyance adopted for each of the documents concerned, it is agreed by the parties that those documents were confirmatory grants. That of the plaintiff recites that the “... DONOR holding paramount title to the said land ... has agreed to confirm the said customary voluntary gift and disposition thereof to the DONEE...”

This recital is part of the document executed on 22 November 1964. The original grant to the plaintiff being an oral grant, there obviously is no document as evidence of that oral grant. But in 1949 documents to evidence customary grants of land were nothing new in the Gold Coast. They were quite common. A well-known fact in these courts.

On the contrary, the first defendant had a document executed on 22 November 1956, from the Nii We family — the same family that in 1949 did not execute a document for the plaintiff. This is the document which was indorsed by the Osu Mantse, Nii Dowuona IV, on 9 January 1962. That is, over a year after Akwei v. Awuletey (supra). Here is the indorsement.

WHEREAS the land described in the within-written Indenture of Gift dated 22 November 1956 and made between Nii Yebuah Nortey (hereinafter referred to as the Donor) and Gottfried Yemo Odoi (hereinafter called the Donee) is not the property of the said Nii Yebuah. But forms part of the lands attached to the Osu Stool AND WHEREAS the Donee has recognised that the land belongs to the Osu Stool and has approached the Osu Stool with a request that the land be granted to him which the Osu Stool has agreed to do NOW THESE PRESENTS WITNESSETH in pursuance of the said agreement and in consideration of a Customary Drink Fee of Six Guineas (6.6 pounds) now paid by the Donee to the Osu Stool (the receipt whereof the Osu Stool hereby acknowledges) the Osu Stool acting by me Nii Noi Dowuona IV Paramount Chief of the Osu Traditional Area with the consent and concurrence of the Elders of the Osu Stool HEREBY GRANTS AND CONVEYS the land described in the said Indenture of Gift to and unto the use of the Donee his heirs successors and assigns FOREVER.”

The effect of the confirmation is that on 22 November 1956, the first defendant had been seised, in law, of the land he claims legally from the Osu stool. On that date the Osu stool had divested itself of that land. It could not then be given to any other person by the same stool. The first defendant had acquired a property given “unto the use of [himself] and his heirs successors and assigns FOREVER. “That is

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the language of the indorsement of the Osu Mantse. That was in January 1962.

Then in November 1964, - the year is again significant - the successor in office of, and in title to, the donor of the first defendant grants a larger piece of land to the plaintiff, including the land already given to the first defendant. Could the Osu stool have done that? The answer is No! In 1964 it could not grant what it had already divested itself of consequent upon the confirmatory grant in 1962. Thus the document of 22 November 1964 gave unto the plaintiff, if at all, what the oral grant had given him less that already granted to the first defendant.

If it can be argued that the confirmation of 1964 validates a title effective from 1964, it should be appreciated that Akwei v. Awuletey (supra) would go even further back. For once it is admitted that the Kotobabi lands form part of Osu stool rural lands then on the strength of that judgment the Osu Mantse and his elders including the quarter heads became vested before as after the judgment with ownership. And the effect of that would be that the Nii We family had no title on their own even in 1949, in law, to give what they gave to the plaintiff.

It is indeed the confirmatory grant of the Osu Mantse that could give title to the plaintiff. And if in 1956 — for that is the effective date relying on the confirmation — the stool with the requisite consents had given the land to the first defendant, the successor in office of, and in title to, the donor of the first defendant, could not in 1964 make a valid grant of the same land with his elders effective from November 1949, to the plaintiff. The plaintiff could only take what his confirmatory grant gave to him excluding that area already given to the first defendant.

In 1964 when the confirmatory grant was made to the plaintiff the Land Registry Act, 1962 (Act 122), was in force. It must be emphasised that the confirmatory grant to the plaintiff was a completely new instrument confirming an oral grant in respect of which there was, obviously, no document. It was thus an instrument made after the coming into force of Act 122. It thus became subject to that Act. For it was an instrument which was a “writing affecting land situate in Ghana.” As such, under the provisions of section 24 of the Land Registry Act, 1962, it was of no effect unless registered under the Act, i.e. the Land Registry Act, 1962 Act 122. Its operation to confer a title effective from November 1964, depended upon its registration. Since it was not registered, it had not under the Act confirmed any title to the plaintiff which took effect from 1949. It was stamped on 29 March 1962, a few days after the first defendant had registered his document. The stamp is a far cry from the requirements of the Land Registry Act, 1962.

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Had it been registered under the Act, it would have “[constituted] actual notice [to the whole world] of the instrument and of the fact of registration to all persons and for all purposes... “But there was no such registration, which would have constituted a notice to the whole world.

On the contrary, the document of the defendants as indorsed by the Osu Mantse on 29 January 1962, was registered. The relevant oaths were sworn to on 26 March 1962 before the Chief Registrar of Lands, a few days before the plaintiff got his document stamped. And it contains the concurrence of the Minister of Lands. It had complied with the relevant requirements of the Land Registry Act, 1962. Notice to the whole world had been given.

One of the effects of Akwei v. Awuletey (supra) is that Kotobabi lands were Osu lands. In 1962 those lands came within the ambit of the management of stool lands by the minister. Thus, by virtue of sections 1 and 8 of the Administration of Lands Act, 1962 (Act 123), a grant made of a stool land would not thus convey a valid title without the exercise of the powers conferred upon the minister by the provisions of sections 1 and 8 of Act 123. There is no evidence on the confirmatory grant to the plaintiff that the minister had exercised his powers of management. But the indorsement on the document of the defendants bears evidence of the concurrence of the minister.

The Land Development (Protection of Purchasers) Act, 1960 (Act 2), requires the existence of good faith in order to protect a purchaser. The facts in this case show that the defendants had sufficient warning that their title was being challenged. The warnings were very serious ones. The learned trial judge had this to say:

“. . . I cannot think of an apter word - [the word `reckless’] - to describe the conduct of the second defendant. He knows that the origin of his title was the Nii We family. He also knows that the plaintiff was a member of that family and was claiming an earlier grant from his own family. Yet the second defendant said he could not suspend building operations and await the decision of the court because, as he put it, `I am confident that the person who is claiming the land is not the owner.’ If that is not reckless I do not know what else is. I think the second defendant did not erect the building in good faith and is disentitled to the remedy provided by Act 2 of 1960.”

The evidence on which these statements were based was given on 5 October 1967. That is some seven years after Akwei v. Awuletey (supra). The effect of the decision had become so known to the parties that each sought from, and got a confirmatory grant from, the Osu stool. Was the second defendant not right that the Nii We family

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were not the owners of the land? And if they were not, how could they have conveyed a valid title to the land in dispute? That was the layman, looking at the matter. For be it noted that the plaintiff was claiming title through the confirmatory grant to the oral grant. By virtue of Akwei v. Awuletey (supra), the Nii We family in law, did not have capacity in 1949 to convey title. Again the layman.

Then there were the issues of the prosecution and the refusal of the injunction. The plaintiff when he got to know of the presence of the foundation dug by the second defendant and other building materials on the land destroyed those things. As a result the plaintiff was prosecuted. He was discharged.

The plaintiff sought for an order of interim injunction against the defendants. This is what the court said:

“ . . . unfortunately I am of the opinion, after listening to counsel on both sides, that the applicant has not made out such a prima facie case as to entitle him to the injunction order he seeks. In the result I have no alternative but to refuse the application for injunction . . .”

If a judge of the High Court – a superior court of record — tells the layman that his opponent seeking a declaration of title to a land in dispute “has not made out such a prima facie case as to entitle him to an injunction” and thereby refuses to grant an interim injunction, sought at the instance of his adversary, the obvious reaction of the layman in Ghana would be to exclaim in exhilaration in the Twi language, medi bem! At that stage he would think that if the court says it could not – and would not – stop him, then “who is his adversary to stop him?”

This is where I have grave difficulties, accepting the facts relied on, to find bad faith in the defendants. No doubt it can be argued that he had been put on his inquiry. And on his guard. That was when the plaintiff first asserted his right. But then the court thereafter had said he could carry on. And carry on he did. A court of competent jurisdiction had found no fault in him. I think myself that the layman, under those circumstances cannot be said to have exhibited bad faith [disentitling him to protection under Act 2. If anything, I would say that the defendants had shown good faith in the courts. They had relied on the word of the courts. The application for an interim injunction was refused. To them, that was victory. Yes, medi bem!

In Akwei v. Awuletey (supra) both parties claimed on the basis of a customary grant. The plaintiff relied on a deed of gift. But he claimed that deed was confirmatory of a customary grant made in 1948, by the Osu Mantse. The defendant claimed ownership by virtue of a customary grant made in 1954 by the mankralo. The Osu Mantse joined as a

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co-defendant. The mankralo pleaded ownership of the Maamobi-Kotobabi-Dzorwulu lands. The basis of the ownership was that the lands were settled by the mankralo’s people of Ashanti Blohum. He and his elders were the people who could make a valid grant of any of those lands.

The mantse pleaded that such a settlement as claimed by the mankralo did not give to the mankralo and the people of Ashanti Blohum any title to the land. Less still any right of alienation. At the Land Court the plaintiff withdrew. The co-plaintiff, that is the Osu Mantse lost. On appeal, the defendant and the mankralo lost. The Supreme Court held per Sarkodee-Addo J.S.C. at p. 241 that:

“The land in dispute is neither quarter land nor outskirts land adjacent or contiguous to the Ashanti Blohum quarter but it is Osu stool rural land which the Osu Mantse and his elders including the quarter headmen could grant.”

What is the effect of the judgment? It seems to me that Akwei v. Awuletey (supra) is authority for the proposition, either directly or by necessary implication, that:

(a) where land is contiguous to a quarter land which can be described as outskirt land, the respective Osu quarter can lawfully make a grant;
(b) where land is not contiguous to outskirt land the Osu stool can lawfully make a grant;
(c) where land is an outskirt land, alienated, the Osu stool has no authority to deal with it;
(d) where land is an outskirt land, unalienated, the Osu stool can only deal with it with the prior consultation of the head and elders of the quarter concerned; and
(e) where land is rural land the Osu Mantse lawfully makes a grant.

Propositions (a) and (d) are based on Bonne v. Hammond (1954) 14 W.A.C.A. 492. Propositions (c) and (d) are based on Aryee v. Adofoley (1951) 13 W.A.C.A. 161 and Kwame v. Quaynor [1959] G.L.R. 269. All these authorities were cited in Akwei v. Awuletey (supra) as having “clearly enunciated the principles relating to alienation of Osu stool lands.” Ollennu J., as he then was, said that there are two categories of stool lands. Indeed, there are three categories, namely quarter lands, outskirt lands and rural lands. It is not in dispute that the land in dispute is Osu rural land. And the Osu stool is the proper authority to make a grant of any such land.

Akwei v. Awuletey (supra) refers to the cross-examination of Nii Okwei Omaboe, whose evidence the Supreme Court found “agreed materially with the Osu custom as to land tenure and the right of the

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Osu Mantse and his elders . . . “Nii Okwei Omaboe, at one time Ag. Osu Mantse, said, as reported at p. 237:

“Any subject of the Osu stool can without express grant occupy and build on any portion of the Osu stool land which is not outskirt land, not already occupied by another subject or grantee of the stool. But he cannot sell the portion he so occupies without the consent of the Osu stool... The Kotobabi-Maamobi-Dzorwulu lands are general stool lands, not outskirts lands. A subject occupying a stool land cannot alienate land adjoining the portion of that land he occupies.”

Nii Dowuona IV, Osu Mantse and the co-plaintiff in Akwei v. Awuletey (supra) said, inter alia, as reported at p. 237:

“The Maamobi-Kotobabi area was a farming area for the servants of the Osu Mantsemei. Occupation of this area began before the Katamanso War about 1826. The servants of the Osu stool final settled on the land, previously they used to go and farm and then come back home. When they finally settled on the land, the servants farmed it and reared sheep and other animals, for the service of the Osu Mantsemei and the Osu stool.”

The Supreme Court, in Akwei v. Awuletey (supra) appears to have accepted the customary law as expounded by Nii Okwei Omaboe and Nii Dowuona IV. The plaintiff at no stage of the proceedings asserted that his predecessors fell within the description of servants of the Osu stool. If anything, he asserted that they were members of the stool family. But, I conceive that being subjects of the stool they were “allowed free settlement anywhere in the village,” like any other subjects. And like any other subjects he – and his Nii We family – could not, under customary law, make any alienation of any stool land. The customary grant as relied on by the plaintiff could not therefore assist him – where the Osu Mantse claims a stand.

The effect of Akwei v. Awuletey (supra) is that as regards the Kotobabi lands – rural lands under the ownership of the Osu stool – the Nii We family never acquired it by original occupation. They were not servants of the Osu Mantsemei. They never had been. And thus never had title on which to rely to make a grant to any member of that family. On the evidence they could not have acquired it by a gift. Who made the gift? Nor by sale. Who sold it to them? The Osu Mantse could have made a gift of it to them. The Osu Mantse had not at any time made any such customary grant to that family. The argument based on original occupation cannot thus be sustained – where the Osu Mantse takes a stand and stakes a claim.
One last point. In the defendant’s case in their brief – the term is used in the American sense – counsel contended that “. . . in any

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case . . . the appellant’s appeal is not properly before this court...” on the ground, among others, that the Court of Appeal had no jurisdiction to grant leave to appeal. This is but a very small point.

The submissions of counsel for the plaintiff substantially and effectively answer the point. Cogent of all is that the same argument had been raised before and a ruling given. There has been no appeal from that ruling. It thus stands. It constitutes a res judicata which binds the defendants.

The point ought not to have been raised again. More importantly, the Court of Appeal had, in my view, jurisdiction to grant leave. It had done so. And for the purposes of the appeal, I do not think I need to belabour the point.

In all the circumstances, I would also dismiss the appeal.

TAYLOR J.S.C. This is an appeal concerning novel technical issues touching on practice and procedure in civil appeal to this court as well as the application of customary law, case law, statutory provisions and points of pleading to the claims of the parties. Indeed, it raises very “serious issues involving far-reaching questions of law” as Prempeh J.S.C. put it when one aspect of it went before the Court of Appeal in Hammond v. Odoi [1972] 2 G.L.R. 459 at p. 465, C.A. It is therefore essential for the purpose of a just resolution of the matters in controversy between the parties that the history of the case and the facts founding the judgment of the trial court be firmly grasped since it is the said facts which are also the basis of the decisions of the Court of Appeal.

It is significant that the trial judge, then a judge of the Court of Appeal of considerable experience, gave judgment for the plaintiff and on appeal he was supported in his view by Siriboe J.S.C. with Azu Crabbe and Sowah JJ.A. (as they then were) holding contrary views which had to prevail merely because they sat on the appeal: see Odoi v. Hammond [1971] 1 G.L.R. 375, C.A. I think his view of the law cannot be treated lightly, for the circumstances I have adverted to makes the decision of the Court of Appeal in favour of the defendants to be completely fortuitous. This is because if Sowah J.A. (as he then was) instead of Apaloo J.A. (as he then was) had sat at the trial and had given the decision which he gave in the Court of Appeal, an appeal to the Court of Appeal if heard by Azu Crabbe J.A., Siriboe J.S.C. and Apaloo J.A. (as they then were) would have resulted in a decision in favour of the plaintiff having regard to their respective reasoning. So that with the same judges, giving the same reasons while sitting on the same case, then as the case ascends the courts, but with the composition of the courts differently constituted, the decision in the final appellate court can be in favour of either the plaintiff or the defendants.

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This is a most unhappy feature of our judicial system which arises when a member of the final appellate court descends to a lower court. I recall an instance of its early occurrence in the unsatisfactory decision of the Full Court on the interpretation of the Land Registry Ordinance, 1895 (No. 1 of 1895), in Anyidoho v. Markham (1905) Ren. 319 where Sir William Brandford Griffith C.J. sitting as a trial judge had given judgment for the respondent. At the Full Court, Pennington J., with whom Purcell J. agreed reversed the decision and gave judgment for the appellant with Smith Ag.C.J. dissenting from their interpretation of the Ordinance and like Siriboe J.S.C. in this case, supporting the reasoning of the trial judge in his interpretation.

A modern illustration of this unfortunate trend is found in the case of Asare v. The Republic (No. 13) [1968] G.L.R. 804 where the decision of Akainyah J.A. sitting as an additional judge of the High Court convicting the appellants was reversed by the full bench of the Court of Appeal coram: Ollennu, Azu Crabbe, Apaloo, Lassey JJ.A. and Edusei J. with Apaloo, and Lassey JJ.A. dissenting. If Edusei J. as a High Court judge had sat on the case at the trial and had acquitted the accused, and the Republic had appealed ultimately to the full bench and Akainyah J.A. had been a member of the panel, a conviction and not acquittal would have been the result although the case as it goes through the courts would have been dealt with by the same judges with each giving the same reasons for his decision. In my view, such decisions because they are fortuitous, need to be given considerable thought in order to eliminate, if it can be done, the lotto element of luck implicit in them and to rest the decision for the lower courts and I think it is therefore desirable in the interests of the doctrine of judicial precedent and of certainty and consistency in the law that if possible members of the final appellate court do not participate in the decisions of the lower courts; on the contrary it is essential for the full complement of the court to handle appeals.

Be that as it may, I propose now to consider the history of the case and the facts founding the judgment of the trial judge: The appellant was the plaintiff in the trial court and the two respondents were the defendants.

The plaintiff led evidence which was accepted by the trial judge that he and his three brothers became owners of a piece of land measuring 418 feet by 100 feet, lying and being at Kotobabi in Accra, by virtue of a customary grant on 10 November 1949. He averred that the grant was from their late uncle, Nii Philip Tetteh Botchway, the then head of the Nii We family and Gyasetse of the Mankralo stool of Ashanti Blohum quarter of Osu with the consent and concurrence of the elders and councillors of the Nii We stool. He indicated in his said evidence that he is a member of the said Nii We family which he said

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were the owners of the land, and that one Yebuah Nortey was deputed by his said uncle to demarcate the land and after the said demarcation customary drink of twelve guineas was given to seal the transaction. He said that after the grant he put corner pillars on the boundaries and began to plant cassava, groundnuts and other food-stuffs on the whole land from 1949 when he had the grant until 1965. His junior brother, one of the beneficiaries of the said grant, corroborated his evidence and indicated that they asked for the land from their family in order to build on it. The evidence on behalf of the plaintiff is that as the land belonged to the Nii We family to which the grantees belonged they did not ask for any documents to cover the 1949 grant. The plaintiff’s further evidence is that on 14 February 1965, the second defendant alleging that a portion of the land belonged to his elder brother, the first defendant, commenced clearing the land with a tractor. He reported the matter to the Osu Mantse, Nii Noi Dowuona V, who sent his linguist to pour libation on the land and to put a white flag on the land. These customary rites were duly performed. They are the customary warning to keep trespassers off the land. On 15 February 1965 after attempts at settlement before the Osu Mantse, Nii Dowuona V, had failed, the plaintiff caused a letter to be written by his solicitors to the first defendant informing him that the land was part of a piece of land belonging to the Nii We family which was allocated to his family in 1949. The same day the first defendant reacted by replying and challenging the title of the plaintiff’s family and he asserted in his reply that the land was “granted to him by the traditional authorities of Osu stool land,” and that he had given it to his brother, the second defendant, to build on it.

According to the plaintiff’s evidence, the second defendant did not cease his building operations on the land. He rather put up profile for foundation with wawa boards and so he, the plaintiff, removed the boards. For this the first defendant lodged a complaint with the police and the plaintiff was arrested and prosecuted for causing damage but he was acquitted. It is in view of this stand of the defendants that the plaintiff sued them on 8 March 1965 claiming a declaration of title, £500 damages for trespass and perpetual injunction.

It is interesting to note that the evidence for the plaintiff delineated above accorded with the statement of claim which was filed by the plaintiff. On the next day after the plaintiff had filed the said statement of claim, he also applied by motion on notice for an order of interim injunction restraining the defendants from entering and carrying on building operations on the disputed land. The motion was supported by an affidavit sworn to by the plaintiff in which he virtually repeated the averments in his statement of claim.

Page 1248

The motion came before Asafu-Adjaye J. on 19 March 1965. In their affidavit in opposition to the plaintiff’s application the defendants swore that:
“2. The plaintiff claims title from the Nii We family of Ashanti Blohum quarter.
3. The plaintiff’s said grantors, the said Nii We family of Ashanti Blohum quarter of Christiansborg, have no title to the land, the subject-matter of the dispute.
4. That in civil appeal No. 79/58 dated 29 November 1960, between Nii Noi Dowuona IV, the Osu Mantse acting for and on behalf of the Osu stool as the co-plaintiff and Nii Nortey Afriyie II, Mankralo of Ashanti Blohum quarter acting as the co-defendant for and on behalf of the Ashanti Blohum quarter of Osu, the Dzorwulu-Maamobi-Kotobabi lands of which the land the subject-matter of this suit forms part was adjudged by the Ghana Supreme Court to belong to the Osu stool and not the Ashanti Blohum quarter from which the Nii We family claims title.”

Thus for the first time the first defendant elaborated on what he had hinted in his letter of 15 February 1965, that he had obtained his grant from the traditional authorities of Osu stool land. In his affidavit, he swore that acting under the erroneous belief that the Nii We family were the owners, he had obtained a grant from the said family which he registered in 1957. After the 1960 judgment had indicated the true owners, he obtained a valid grant from the Osu stool, the said adjudged owners of the land.

In view of these facts, the learned judge without hesitation dismissed the application and said:

“I am of the opinion after listening to counsel on both sides that the applicant has not made out such a prima facie case as to entitle him to the injunction order he seeks. In the result I have no alternative but to refuse the application for injunction. The motion before this court is accordingly dismissed.”

After the dismissal of the said motion, the defendants on 27 March 1965 filed a statement of defence and counterclaim and subsequently gave evidence at the trial in elaboration without any contradiction or apparent addition whatsoever. Before dealing with the evidence led on behalf of the defendants, I must remark that the evidence led for the plaintiff was given by the plaintiff, his brother, one Ayi Faafo, and Nii Dowuona V, the then Osu Mantse and that all these witnesses admitted that they were members of the Nii We family of Ashanti Blohum.

Page 1249

The first defendant led evidence which was equally accepted by the court to the effect that in 1956, thinking that lands in the Kotobabi area belonged to the Nii We family, he had approached Nii Yebuah Nortey, Gyasetse of Ashanti Blohum quarter of Osu and head of family of the Nii We family of Ashanti Blohum, for grant of the land in dispute. Nii Yebuah Nortey agreed to the grant and the land was demarcated for him by one Coleman, a surveyor and member of the Nii We family. The said head of family with the consent and concurrence of his elders and principal councillors executed a deed on 22 November 1956 in favour of the first defendant and the first defendant registered the document on 6 June 1957 in the Deeds Registry as instrument No. 1488 of 1957. The document was accepted in evidence as exhibit D.

In his further evidence which was not rejected by the trial judge, the first defendant stated that when he went on the land with the surveyor, there was nothing on the land to suggest that it was occupied by any person. Although it was not a built-up area, there were some swish buildings around and the land itself was bushy with crippling thorns. There were no corner pillars with Hammond brothers on them, and there were no cassava or groundnuts growing on the land. The land thus demarcated was 100 feet by 140 feet. The next day after the demarcation, he put corner pillars which bore the initials “G.Y.O.”, he then cleared the whole land and put sand on it and paid periodic visits to the land.
The sand thus placed on the land in 1956 was subsequently used by his brother, the second defendant in making concrete water storage in 1965. In 1961 he saw a public notice published by Dr. J. B. Danquah as the solicitor for Nii Dowuona IV in the newspapers to the effect that all persons who were claiming to have obtained plots of land in the Maamobi-Kotobabi-Dzorwulu area, where the plot in dispute is situated from any person other than the Osu stool should submit their documents to or call to see Nii Dowuona IV. Apparently following the decision of the Supreme Court in Akwei v. Awuletey (supra) the understanding was that the said Nii We family of Ashanti Blohum never had title to transfer and the advertisement was meant to enable persons with defective titles obtained from sources other than the Osu stool to endeavour to validate their titles. In answer to the advertisement the first defendant took his document to Nii Dowuona IV for indorsement and on 9 January 1962, Nii Dowuona IV with the concurrence of the elders of the Osu stool granted and conveyed the land afresh to the first defendant. The conveyance described as a deed indorsement and accepted in evidence as exhibit 1 is as follows:

“Whereas the land described in the within written indenture of Gift dated 22nd November 1956 and made between Nii Yebuah

Page 1250

Nortey (hereinafter called the Donee) is not the property of the said Nii Yebuah. But forms part of the lands attached to the Osu Stool and whereas the Donee has recognised that the land belongs to the Osu Stool and has approached the Osu Stool with a request that the land be granted to him, which the Osu Stool has agreed to do, NOW THESE PRESENTS WITNESSETH in pursuance of the said agreement and in consideration of a customary drink of Six Guineas (6.6/- pounds) now paid by the donee to the Osu Stool (the receipt whereof) the Osu Stool hereby acknowledges) the Osu Stool acting by Nii Noi Dowuona IV Paramount Chief of the Osu Traditional Area with the consent and concurrence of the Elders of the Osu Stool HEREBY GRANTS AND CONVEYS the land described in the said indenture of Gift to and unto the use of the donee his heirs, successors and assigns forever.”

This deed was signed by Nii Dowuona IV and his elders on 9 January 1962. It is clear in its recitals that the Osu stool as far back as 9 January 1962 had rejected the claim of the Nii We family to title to the land in dispute. It seems to me in the circumstance that the stool as grantor is estopped and bound by the recital and those claiming through it are equally bound by the recital and are estopped from subsequently asserting the title of the Nii We stool in the disputed land as against the grantee. The principle supporting this estoppel was explained long ago in Carpenter v. Buller (1841) 8 M. & W. 209 at p. 212 by Parke B. when he pointed out:

“If a distinct statement of a particular fact is made in the recital... or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true, that, as between the parties to that instrument, and in an action upon it, it is not competent for the party bound to deny the recital.”

Exhibit 1 was registered in the Deeds Registry on 26 March 1965 and it received the concurrence of the then Minister of Lands, Mr. A. K. Puplampu. In my view, this conveyance, exhibit 1, with the recital therein binds the Osu stool and Nii Dowuona IV and his successors in title.

It was given in evidence that in 1963, the first defendant transferred the land to his junior brother, the second defendant, and the second defendant commenced building operations on the land in February 1965. He put up a structure up to the foundation with wawa boards at a cost of 12 pounds 10s. He made concrete water storage using the sand the first defendant had deposited on the land in 1956 at a cost of 18 pounds 15s. and he made a temporary shed costing 70 pounds. The shed, the set-out and the concrete water storage were destroyed by the plaintiff

Page 1251

and the defendants reported the matter to the police. The damage thus caused to the shed, the set-out and the concrete water storage was the subject-matter of the counterclaim. The plaintiff was arrested and prosecuted at the magistrate court for causing damage but was acquitted and while the police case was pending the second defendant suspended his building operations, but after the said police case and after the motion for interim injunction had been dismissed, the second defendant resumed his building operations and completed his building in December 1965 at a cost of a little over 4,000 pounds. In evidence he said he continued with the building operations because he was confident that the person claiming the land is not the owner.

It is significant that the plaintiff also led evidence-in-chief that on becoming aware of the Akwei v. Awuletey (supra) judgment, he caused an indenture, exhibit E, to be made and he submitted it to the Osu Mantse, Nii Dowuona V who on 22 November 1964 executed it for him for and on behalf of the Osu stool as donor.

Although it was stated in the recitals of that deed of gift that it was a confirmatory grant, the relevant operative portion of the deed indicates that it was a fresh grant as from 22 November 1964. However, if one keeps in mind the fact that on this date the occupant of the Osu paramount stool was a member of the plaintiff’s Nii We family, one can understand the so-called confirmation grant and the unnecessary reference to the Nii We stool in the recitals. The operative portion, however, is what matters. It reads:

“NOW THIS INDENTURE WITNESSETH that in consideration of the natural love and affection of the DONOR for the DONEES and for divers good causes and services rendered by the DONEES to the Nii We Stool and the Osu Stool and in further consideration of the sum of Twelve pounds Twelve shillings ( 12. pounds 12/-) now paid to the DONOR as Customary Drink by the DONEES herein on or before the execution of these presents (the receipt whereof the DONOR doth hereby acknowledge and from the same doth hereby release the donees) the DONOR as beneficial owner doth hereby GRANT and CONVEY unto the DONEES their heirs successors and assigns ALL THAT PIECE OF PARCEL OF LAND situate lying and being at Kotobabi Accra in the Greater Accra Region aforesaid.”

This document does show that the plaintiff conceded that the Nii We family stool had no title to make a grant to him and he was approaching the Osu stool, the beneficial owner, for the proper grant. The document, although it was not registered and had not received concurrence of the Minister of Lands, was stamped and was accordingly accepted in evidence as exhibit E. In cross-examination, the

Page 1252

plaintiff said he at first took his document to Nii Dowuona IV but he kept postponing taking action on it until his destoolment when he was succeeded by Nii Dowuona V, a member of the Nii We family. Having regard to my view that exhibit 1 binds the Osu stool, it is my opinion that Nii Dowuona V, the successor in title of Nii Dowuona IV, is fixed with notice of exhibit 1 and exhibit E can only take effect if at all subject to exhibit 1.

This evidence touching the indenture was not pleaded in the statement of claim filed. It was rather contained in the reply to the defence. In paragraph 7 of the said reply to the defence the plaintiff also averred:

“The plaintiff says that the judgment in civil suit No. 79/58 did not divest him and his brothers of their title to the said land which they acquired through original occupation by their ancestors as subjects of the Osu stool in accordance with Osu customary land tenure.”

It is significant that the plaintiff led no evidence that as subjects of Osu stool he and his brothers on their own initiative occupied the land in 1949 in accordance with native custom. The evidence led for the plaintiff which in some way is supported in the recitals to exhibit E was rather that in 1949 the Nii We family, the exclusive owners, granted them a building plot. It is also clear from the evidence that the land was at the time of the alleged grant and purported allocation in 1949 not actually occupied by any person or persons.

It is upon the facts adverted to in this judgment that Apaloo J.A. (as he then was) sitting as additional judge gave judgment for the plaintiff. As I have already indicated, on appeal, coram: Azu Crabbe J.A. (as he then was) Siriboe J.S.C. and Sowah J.A. (as he then was), with Siriboe dissenting, reversed the said judgment and gave judgment for the defendants. The plaintiff appealed to this court from the said judgment. The judgment of the Court of Appeal was delivered on 21 December 1970 and on 16 April 1971, the plaintiff filed a motion on notice before the Court of Appeal for leave to appeal to the then Supreme Court by virtue of and in accordance with the provision of article 105 (1) (c) of the Constitution, 1969. The motion reads:

“TAKE NOTICE that pursuant to the provisions of paragraph (c) of clause (1) of article 105 of the Constitution the Court of Appeal will be moved on Monday 10 January 1972 at 9 o’clock in the forenoon or so soon thereafter as counsel can be heard on the hearing of an application for leave to the Supreme Court against the decision of the Court of Appeal given on 21 day of December 1970 in the case entitled: E. C. Hammond v. G. Y. Odoi and D. M. Odoi, Civil Appeal No. 6/69.”

Page 1253

And the said article of the Constitution, 1969, provides:

“105. (1) An appeal shall lie from a judgment, decree or order of the Court of Appeal to the Supreme Court,
(a) as of right, in any civil cause or matter where the amount or value of the subject matter of the dispute is not less than such an amount as may be determined by Parliament; or
(b) as of right, in any criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment, decree or order of the High Court of justice in the exercise of its original jurisdiction; or
(c) with the leave of the Court of Appeal, in any other cause or matter, civil or criminal, where the Court of Appeal is satisfied that the case involves a substantial question of law or is of public importance.”

At the date of the application Parliament had passed no legislation in relation to conditions precedent for an appeal to the Supreme Court under article 105(1) (a) and the applicable provision was therefore article 105 (1) (c). Under that article where there are substantial questions of law involved, as in this case, an appeal to the Supreme Court shall only lie with the leave of the Court of Appeal. Under rule 7 (1) of the Supreme Court Rules, 1970 (CI 13), it is provided that:
“7.(1)An application for leave to appeal pursuant to the provisions of paragraph (c) of the clause 1 of article 105 of the Constitution shall be by motion on notice in the Form 2 set out in the First Schedule to these Rules which shall be filed with the Registrar of the Court below within fourteen days of the date of the decision against which leave to appeal is sought.”

The Supreme Court Rules, 1970 (CI 13), were laid before Parliament on 23 February 1971 in accordance with the provisions of article 126 (6) (c) and consequently, having regard to the 21 days period under the said article 126 (6) (c) of the Constitution, 1969, the said rules came into force on 16 March 1971. The application to the Court of Appeal for leave to appeal to the Supreme Court was clearly incompetent under the rules. When the motion for leave came before the Court of Appeal the court accepted the position that the application was contrary to the provisions of rule 7 (1), since it was filed on 6 April 1971: see Hammond v. Odoi (supra) at p. 467, C.A. where Prempeh J.S.C. after examining the rule and article 126 (6) (c) concluded, “It follows therefore from this conclusion that the instant application having been filed on 6 April 1971, could not have been properly before court.”

Page 1254

After this holding, the Court of Appeal suo motu resorted to the provision of section 114 (4) of the Courts Act, 1971 (Act 372), which received the Presidential assent on 22 September 1971 to hold that the application was properly before the Court of Appeal. This point regarding the applicability of the said section 114 (4) was unfortunately never argued before the Court of Appeal by counsel for the parties.

Now section 114 (4) reads:

“114. (4) Subject to the provisions of the constitution and without prejudice to the power of any Court to grant extension of time under any enactment, an appeal to the Supreme Court from a decision of the Court of Appeal in a criminal case or in a civil cause or matter where the decision is a final one may,

(a) in the case of a decision given before the commencement of the Supreme Court Rules, 1970 (CI 13) or,
(b) in the case of a decision to which clause (1) (a) of article 105 of the Constitution applies, be brought at any time before the expiration of a period of two months from the commencement of this Act.”
(The emphasis is mine.)

In view of this provision, Prempeh J.S.C. with whom Jiagge J.A. and Sowah J.A. (as he then was) concurred, held at the same page 467:

“[S]ince the judgment in this case was delivered before the commencement of the Supreme Court Rules, 1970 (CI 13) . . . and since at the date of the coming into force of the Courts Act, 1971 (Act 372), the applicant had filed this notice for leave to appeal, it had been duly filed, and was properly before the court and therefore the respondents’ objection on this ground must fail.”

With the greatest respect, it seems to me that this reasoning is demonstrably erroneous and, consequently, the decision on the applicability of the said section 114 (4) is, in my opinion, per incuriam. A reading of section 114 (4) shows that it was a temporary device designed to cover cases decided before the coming into force of the Supreme Court Rules, 1970, in which no appeals have been lodged. Appeals in such cases were permissible at any time before the expiration of two months from 22 September 1971. The section has nothing to do with appeals already lodged before 22 September 1971. Furthermore, the said section 114 (4) of the Courts Act, 1971 (Act 372), was obviously meant to deal with “an appeal to the Supreme Court from a decision of the Court of Appeal.” The application before the Court of Appeal was for leave to appeal to the Supreme Court. It was not “an appeal to the Supreme Court from a decision of the Court of Appeal.”

Page 1255

Until leave is granted and the applicant in pursuance of the order granting leave is minded to exercise his right under the order to appeal to the Supreme Court the provision of the said section 114 (4) can hardly be even considered applicable. With respect, it is failure to draw these distinctions that mar the reasoning of the Court of Appeal. In fact, it is even difficult to hold that the provision applies to the case of a grant of leave to appeal because in such a case the order granting leave will be subject to the provisions of rule 8 of the Supreme Court Rules, 1970 (CI 13), and under that rule the appellant has fourteen days to appeal in the case of an interlocutory decision, or three months in the case of a final decision both periods calculated from the date on which leave is granted.

On 18 July 1972, the plaintiff did appeal in pursuance of the leave so granted. The plaintiff had quite obviously failed to comply with rule 7 (1) of CI 13 sanctioning appeals to the Supreme Court where leave is required and unless a rule of law can be called in aid to save the appeal, the application for leave to appeal ought to have been struck out by the Court of Appeal as incompetent and improper. Indeed, the defendants, the respondents in this appeal, have contended that the Court of Appeal lacked jurisdiction to grant leave.

This appeal involves serious questions of law, and I am anxious that it be considered on its merits if that is legally possible. The Court of Appeal granted leave to the plaintiff to appeal to the Supreme Court, their stated reason for granting leave is, as I have demonstrated, legally wrong, but in my view the relevant question is: In law would they in the proper exercise of their discretionary jurisdiction, have had power to grant leave although the plaintiff had not complied with the rules? CI 13 came into force on 16 March 1971 and gave the plaintiff fourteen days from the date of the decision, that is 21 December 1970, to apply for leave. But on that date it came into force, the time provision was never meant to apply to the case of the plaintiff. In any case, in the circumstances, failure to comply would not be wilful, but would rather be due to impossibility of compliance. In such a situation rule 66 (1) of CI 13 offers an answer as to how this court can deal with the matter. It provides:
“66. (1) Where a party to an action before the Court fails to comply with any provisions of these Rules . . . the failure to so comply shall be a bar to the further prosecution of the action unless the Court considers that the non-compliance was not wilful and that in the interests of justice the non-compliance should be waived.”

(The emphasis is mine.)

Page 1256

The Court of Appeal could have given consideration to this provision in the exercise of its discretion to grant leave; it did not do so and the question is: assuming rule 66 (1) is applicable, can the Supreme Court consider as done that which ought to have been done and validate the leave granted? I think we can! Within the context of rule 66 (1) “court” appearing twice therein means quite obviously “Supreme Court” as rule 70 of the said rules so clearly shows. So the Supreme Court can waive the non-compliance as we so recently did in Sowah v. Bank for Housing and Construction, Supreme Court, 7 June, 1982, unreported. In that case, we waived the non-compliance with rule 14 (1) of the rules by granting an extension of time within which the appellant was to file his statement of case having regard to rule 66 (1) in a case where the appellant had breached the three-week period provided in the said rule. I hold on this authority that we are perfectly entitled to waive the apparent non-compliance with rule 7 (1) of the rules. I would accordingly waive it. Moreover, under article 116 (4) of the Constitution, 1979, it is provided:
“116. (4) For the purposes of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any such matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any Court established by this Constitution or any other law.”

I will also resort to this provision to validate the leave given by the Court of Appeal since in the proper exercise of its discretion it can grant leave, because in my opinion the failure to comply with rule 7 (1) of CI 13 was obviously not wilful and in view of the complex legal issues involved, I think it would be right and in the interest of justice to admit the appeal for hearing on its merits. I will for this reason, reject the contention of the respondent that the Court of Appeal had no jurisdiction to grant leave.

Assuming that I am wrong and that CI 13, r. 66 (1) is inapplicable, we will have a clear case of a right to ask for leave to appeal granted by the Constitution to the plaintiff with no time limit given by the Constitution for the exercise. In such a case, it will be illegal and unconstitutional for any court or a statute to deprive him of the said right and therefore any exercise of the right at any time or at least within a reasonable time will not be objectionable. I think having regard to the delay in passing the necessary legislation, the filing of his application for leave before the passing of the legislation was reasonable. For this reason also, if the Court of Appeal had refused leave,

Page 1257

I think an appeal from its decision would be successful. In the circumstance, I hold that the Court of Appeal had jurisdiction to grant leave and the leave granted is on the facts and the applicable law unexceptionable.

Before dealing with the substance of the appeal, there is a point of procedure supposed to be of extreme importance in this appeal. It was canvassed in a rather exhaustive manner in the judgment of Azu Crabbe J.A. (as he then was) and it was dealt with also in the dissenting opinion of Siriboe J.S.C. In his statement of claim and in the evidence led on his behalf the plaintiff claimed that the land in dispute which is situated at Kotobabi belonged to the Nii We family stool of Ashanti Blohum. It is his case that the Nii We stool as owner granted the land in dispute to him and his three brothers who were members of the said family on 10 November 1949. They gave the usual customary drinks. In his reply to the statement of defence and counterclaim the plaintiff averred that the land in dispute is part of Osu rural land which the Nii We family as subjects of the Osu stool originally occupied at all material times and which the Nii We family granted to them and so as subjects of the Osu stool their title to the land was good and that, in any case, by a deed dated 22 November 1964, the Osu stool confirmed the customary grant of 10 November 1949.

Azu Crabbe J.A. (as he then was) in an elaborate analysis of the English case law position on pleadings came to a conclusion that by his reply the plaintiff was departing from his pleadings; he held that this was not a tolerable course to take having regard to the views of James L.J. in Hall v. Eve (1876) 4 Ch.D. 341 at p. 345, C.A.; of Hall V.C. in Williamson v. London and North Western Railway Co. (1879) 12 Ch.D. 787 at pp 793-794 and the decision of the House of Lords, particularly the speech of Lord Radcliffe in Esso Petroleum Co., Ltd. v. Southport Corporation [1956] A.C. 218 at p. 244, H.L. In his view, the substantive portions of the reply raised new issues and these should have been struck out.

Siriboe J.S.C. on the other hand held that it is competent for a plaintiff to introduce new matter by way of set-off or by way of controverting the statements in the defence provided that he does so within a reasonable compass and in a reasonable manner and his authority for this proposition is also the view of the same Hall V.C. referred to by Azu Crabbe J.A. (as he then was) in the said Williamson v. London and North Western Railway Co. (supra) at pp. 794-799 and another English case Breslauer v. Barwich (1876) 36 L.T. 52 at p. 53. In his view, these cases show that it is not the introduction of every new matter or fact in a reply that amounts to setting up a new case and in the instant case, he held that the plaintiff’s reply read together with his evidence and that of his witnesses did not create any difference

Page 1258

between his pleadings and the case he put forward so as to necessitate an amendment without which as Azu Crabbe J.A. (as he then was) held, the claim must fail.

I am afraid I cannot agree with the appraisal of the facts contained in this view. As I have already indicated, the evidence which the plaintiff led did not contain any material facts which support the averments in paragraph (7) of his reply. Speaking for myself, I do not think it is necessary for the purpose of a decision in this case to engage in any meticulous examination of the points contained in these rival views. It is sufficient for the purpose of this judgment to observe that if the plaintiff had, in fact, led evidence to support the claim in his reply that he, as a subject of the Osu stool, in pursuance of his rights as such subject, did occupy the land in dispute as from 10 November 1949, I would, with respect, find it difficult to hold as Azu Crabbe J.A. (as he then was) would seem to have been prepared to hold, that the said evidence should be rejected with the resultant effect that the claim, if well founded, should be dismissed. Whatever the position may be in England it seems to me that it is not right in the interests of justice in such circumstance to reject a claim for such reason if before trial the parties by their pleadings have indicated their respective cases. After all, the parties can amend their pleadings to reflect the true nature of their respective claims.

The alleged rule that a departure from a claim reflected in a reply ipso facto nullifies the reply even after evidence had been led to substantiate the averments contained in the reply is so technical and so unjust that unless adequate reasons are advanced for it, and I have not been made aware of any, I would without hesitation hold that such a rule if it exists in England should not be adopted in this country. This dubious rule seemed to have had a genesis of a sort in the closing years of the nineteenth century. I do not wish to burden this judgment with examining its nature and ambit. Suffice it to say that in my opinion, it is not applicable in this case. That nineteenth century rule if it had ever existed in this country, is now certainly archaic and contradicts the whole philosophy which animates our present civil procedure system and our appellate jurisdiction.

Under article 114 (3) of the Constitution, 1979, as under article 104 (2) of the Constitution, 1969, the Supreme Court can depart from its own previous decision if it appears right so to do, a fortiori in the exercise of its appellate and other jurisdictions, the Supreme Court can decide any point of law if it appears right so to do. Furthermore, we are committed in our determination of matters, especially appeals as is provided in rule 23 (3) of the Supreme Court Rules, 1970 (CI 13), to endeavour to deal with the real matters in controversy between the parties; a duty equally imposed on the other courts in our judicial

Page 1259

hierarchy in the exercise of their various jurisdictions. In the circumstance, the paramount duty to deal with appeals on their merits must inhibit this court from accepting the said rule which would seek to frustrate the demands of justice.

In this case, the plaintiff and his witnesses led no evidence at all that he and his brothers occupied the land in dispute in 1949 in their capacity as subjects of the Osu stool minded to occupy Osu stool land in accordance with Osu customary law. Indeed, they did not lead evidence that at the date of their acquisition the land was Osu rural land belonging to the Osu stool. Their evidence which is summarised in the plaintiff’s evidence-in-chief is, in fact, a denial that in 1949, the land was Osu stool land:

“The land in dispute is situated at Kotobabi. Kotobabi lands belong to Nii We family stool. Our ancestors migrated from Amafrom and settled in Kotobabi. So for many generations it became our property. Nii We has a family stool which is under the Mankralo who in turn is under the paramount stool. Formerly our family controlled the land exclusively but since 1960 it had been adjudged to belong to the Osu stool...

On 10 November 1949, Nii Tetteh Botchway and the elders of Nii We family granted the land to us. It was a customary grant and we gave drink of twelve guineas...”

Since no evidence was led that in 1949 the plaintiff and his brothers occupied the land as Osu stool rural land-in-their capacity as subjects of the Osu stool, it is clear that the rule, even if it exists in Ghana, is clearly inapplicable; the case resolving itself into a situation where a party has pleaded facts but led no evidence in support of the facts. Such facts merely pleaded cannot be the foundation for a judgment on the merits.

Furthermore, the evidence of the plaintiff, referred to herein, that the land in dispute has only since 1960 been adjudged the property of the Osu stool is not quite very accurate, for on 24 November 1959 in Nii Nortey Afriyie v. U.A.C., suit No. L.139/55 (unreported) Sarkodee-Addo J. (as he then was) held at the Land Court that the Maamobi-Kotobabi-Dzorwulu lands were “attached to the stool of the Osu Mantse” and that they “could only lawfully or validly be alienated by the Osu Mantse.” An appeal to the erstwhile Supreme Court from this ruling was abandoned and on 14 February 1961, the erstwhile Supreme Court dismissed the said appeal for want of prosecution. On application, it was conditionally relisted subject to the payment of costs, but on 10 April 1961 counsel for the appellant informed the court that, “It is not the intention of the appellant to proceed with the appeal.” The appeal therefore stood dismissed.

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Conceding, however, that the land is Osu stool land the plaintiff and his brothers as subjects of Osu stool wanted it for building purposes as was his case; what is the customary law position? Can he on his own allocate to himself and his brothers in accordance with custom, a portion of the said land no matter the extent as he would seem to maintain in his reply?

In Oblee v. Armah and Affipong (1958) 3 W.A.L.R. 484 at p. 492 Ollennu J. (as he then was) explained Osu custom in regard to the acquisition of building plots in some Osu lands thus:

“By custom a subject who requires land for farming need not obtain express permission of the stool to occupy vacant stool land. That fact is admitted by both the defendant and co-defendant in their pleadings. But if to avoid a clash with other subjects already occupying land in the area it should become necessary for the stool to make an express grant of stool land to a subject for farming, all that the elders would do is to take this subject to the land and show him the boundary from which and the direction in which he can farm.
It is different in the case of lands adjoining the town which are ready for development for the extension of the town; the suburban area which in Christiansborg and other Ga towns are called outskirt lands. In the case of such lands express permission of the stool is always required, and limits are set to the extent of land which one subject may occupy, in order to maintain proper administration of the land, and ensure that each subject who requires land to build gets his fair share. It is in the case of such grants that the area granted to the subject is demarcated. Demarcation therefore is evidence that a grant is not solely for farming but for occupation and building purposes.”

I think the principle applies to all Osu stool lands.

The same judge had noted a similar custom among the people of Teshie, another Ga speaking community, in Mensah v. Ghana Commercial Bank (1957) 3 W.A.L.R. 123 at p, 128: “By custom, a native of Teshie requiring a portion of vacant stool land for building purposes must first apply to a quarter for grant of the land. “See also the views of the same judge in Amoeda v. Pordier [1962] 1 G.L.R. 200 at p. 207.

It seems to me that if the plaintiff’s position in his reply is to be sustained then under Osu customary law the land, since it is for a building purpose, should have been allocated to him by express or actual grant after demarcation by the Osu stool and not the Nii We stool. In any case, in my opinion, the old Osu custom for occupying the land suo motu has given way or to put it more accurately has been

Page 1261

modified to a custom by which the land if it is for a building purpose, is deliberately and expressly allocated to the subject after demarcation. The idea that a subject of the Osu stool can without express grant help himself to Osu stool land by allocating to himself as a building plot any portion of Osu stool land no matter how large, is certainly unreasonable. Surely, it is because of its rational foundation having regard to native ideas that customs obtain the assent of the people. A similar claim by counsel in Bonne v. Hammond (1954) 14 W.A.C.A. 492 at p. 494 that a quarter, i.e. a sub-stool, can claim unoccupied Osu stool land more than 100 feet from its last outskirt building and to an indeterminate extent was rejected by Jackson J. whose view was upheld by the West African Court of Appeal.

Old customs under the pressure of changing circumstances give way to new ones. Since custom is merely conduct which by long usage has been accepted without question by a community and has crystallised as practice which they will invariably follow to regulate their affairs, it is clear that when a particular practice is no more followed and a new practice is invariably substituted for it, then the new practice so followed becomes the new custom. Modification of custom under pressure of changing circumstances has for long been accepted as a normal characteristic of customary law. In Balogun v. Oshodi (1929) 10 N.L.R. 36 at pp. 53-54, Webber J. had this phenomenon in mind when he said: “The chief characteristic feature of native law is its flexibility - one incident of land tenure after another disappears as the times change. “As Lord Atkin reading the opinion of the Privy Council in Eleko v. Officer Administering the Government of Nigeria [1931] A.C. 662 at p. 673, P.C. also observed:

“An interesting question arose at the hearing as to the modification of an original custom to kill into a milder custom to banish. Their Lordships entertain no doubt that the more barbarous customs of earlier days may under the influences of civilization become milder without losing their essential character of custom. It would, however, appear to be necessary to show that in their milder form they are still recognized in the native community as custom, so as in that form to regulate the relations of the native community inter se... It is the assent of the native community that gives a custom its validity, and, therefore, barbarous or mild, it must be shown to be recognized by the native community whose conduct it is supposed to regulate.”

In the application of the customary law, I think the courts must constantly keep in mind what
Foster-Sutton P. observed in Golightly v. Ashirifi (1955) 14 W.A.C.A. 676 at p. 684 when he said:
“native law or custom . . . must be not the native law or custom or usage of

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ancient times, but existing native law or custom”; a point also made by Granville Sharp J.A. in Sasraku v. David [1959] G.L.R. 7 at p. 14, C.A. when he said: “Stagnation of the law in a fast developing State should be regarded with abhorrence.”

With regard to the appeal before this court it is now necessary to elicit firstly, the issues which called for a determination before the trial judge. Secondly, the issues which went before the Court of Appeal and thirdly, the issues which are now before this court. The issues before the trial court were formulated and agreed to by the parties themselves on the summons for directions. The plaintiff formulated the issues as follows:

“(a) Whether or not the plaintiff and his brothers obtained good title in November 1949.
(b) Whether or not the judgment in that appeal No. 79/58 dated 29 November 1960 divested the plaintiff and his brothers of their customary title.
(c) Whether or not the defendants as strangers obtained title to the said land by the deed of gift dated 22 November 1956.
(d) Whether or not the defendants are entitled to their counterclaim.”

The defendants put forward the following additional issues:

“(1) Whether the first defendant has been in possession of the land in dispute after the grant to him by the Nii We family in 1956.
(2) Whether Nii Dowuona IV, the then occupant of the Osu stool, made a valid grant to the first defendant by indorsing the title deed of the first defendant dated 22 November 1956.
(3) Whether the present Osu Mantse (Nii Dowuona V) was fixed with notice of the said indorsement of the first defendant’s document by Nii Dowuona IV.
(4) Whether the said indorsement of the first defendant’s document by Nii Dowuona IV, the predecessor in office of the present Osu Mantse (Nii Dowuona V), is binding on the said Nii Dowuona V.
(5) Whether the deed of gift dated 22 November 1964 and executed by the present Osu Mantse (Nii Noi Dowuona V) in favour of the plaintiff confers any title on the plaintiff or whether in the alternative the execution of the said document perfected or validated the plaintiff’s title.”

Although it is not very important it is worthy of note that the parties did not even raise the omnibus issue relating to “any issues raised by the pleadings.”

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On the basis of the evidence led by both the plaintiff and the defendants, the learned trial judge by his judgment in effect answered issue (a) raised by the plaintiff in the affirmative and the three other issues in (b), (c) and (d) in the negative. With regard to the additional issues raised by the defendants, he in the course of his judgment answered the first one in the affirmative, the second one in the negative. He would seem to have considered the rather very important points contained in issues (3) and (4) as irrelevant and he did not seem to have answered them, but he answered the two alternative questions in issue (5) in the affirmative. In the result, judgment was given for the plaintiff.

Having regard to the evidence, what is the reasoning sustaining the judgment? Before answering this question it is necessary to note that the issue of an Osu stool subject qua Osu stool subject occupying Osu rural land without actual grant in accordance with Osu customary law was clearly never raised as an issue before the High Court as can be gathered from the issues filed and as I have already pointed out no evidence was led as to such an acquisition although the plaintiff pleaded that in his reply. In fact, after considering the evidence the learned judge inferentially rejected this plea in the reply when he found positively:

“I think therefore that I can find in comfort and I do find that an area of land measuring 418 feet by 100 feet and lying at Kotobabi was granted to the plaintiff and his three brothers by the Nii We family in November 1949. I find that the plaintiff and his brothers acknowledged that grant by gift of drinks in accordance with custom. I find it proved that the land in dispute is a portion of that land.”

This finding, in my view, completely disposes of the claim of the plaintiff in his reply that he acquired Osu stool land as a subject of the Osu stool by occupation without grant in accordance with Osu customary law. That is not how the High Court judge saw the problem.
The reasoning of the High Court rather proceeded on the assumption that as both obtained their grants from the Nii We family, the grant to the plaintiff and his brothers being first in time prevails. Assuming that the title of the plaintiff was defective, which the court apparently did not feel inclined to accept, then that of the first defendant would be equally defective. The reasoning then proceeds: After the judgment in the Awuletey case (supra) in 1960 the titles of the parties were ratified and as he held that the said titles upon ratification operated retrospectively, he held that the plaintiff’s title being first in time still prevailed. As the judge put it:

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“Both in truth obtained their grants from Nii We family. After the Akwei judgment in 1960, both obtained the confirmation of the Osu stool. The effect of these, was, that the stool set the seal of its approval on the grants made to both parties and ratified the grants retroactively. The result was that the Osu stool ratified the grant to the plaintiff with effect from November 1949 and that of the defendant with effect from November 1956. Documents were in fact executed in favour of both sides by the Osu stool in which their earlier grants from Nii We were recited and confirmed. That leaves the parties where they began.”

He brushed aside the question of registration since he held that it was by virtue of the grant of 1949 that the plaintiff had title. As he put it:

“The argument based on section 24 of the Land Registry Act, 1962 can be valid only if it can accurately be said that it was the 1964 deed of confirmation that purports to vest title to the land in the plaintiff. In my opinion, title to the land became vested in the plaintiff by the customary oral grant of 1949 and it was by reason of this that the plaintiff since that date entered into possession of the land.”

He equally rejected the argument of the defendants’ counsel based on the provisions of the Administration of Lands Act, 1962 (Act 123), holding that as the plaintiff had title in 1949 and since Act 123 is not retrospective, the Act is not applicable. He said:

“Unless it can be argued that the Administration of Lands Act, 1962 had a retroactive effect, I cannot see how its provision can be said to reach the plaintiff who on my findings had a valid customary grant in 1949. In any event as this was a grant of stool land by a stool to a subject who was entitled by customary law to free use of the land and as the consideration for the grant was purely nominal, the concurrence of the minister was not on my reading of the Act required.”

And finally, he suo motu gave consideration to the question as to whether he should exercise his powers under section 1 of the Land Development (Protection of Purchasers) Act, 1960 (Act 2), and confer a statutory title on the second defendant. He held that the second defendant was reckless and did not erect the building in good faith and that in view of the decision of the erstwhile Supreme Court in Dove v. Wuta-Ofei [1966] G.L.R. 299, he is disentitled to the remedy provided by the Act.

With respect, I think one glaring fallacy in the whole argument is the process of driving, so to speak, a coach and four through the

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The majority judgment per Azu Crabbe J.A. (as he then was) also considered the applicability of Act 123 and came to a conclusion, contrary to the opinion of the trial judge, that the provisions of the Act were applicable and that therefore exhibit E required the President’s assent as trustee of the land. He again examined section 24 of Act 122, and with regard to that also he concluded that exhibit E is registrable barring which it is of no effect: He put it this way at p. 391:

“In section 36 it is provided that, unless the context otherwise requires ‘instrument’ means any writing affecting land situate in Ghana, including a judge’s certificate and a memorandum of deposit of title deeds. Surely, exhibit E is a ‘writing affecting land situate in Ghana’, for it purports to confirm or revive an interest in land, and, therefore, it is caught squarely by section 24. For this reason also, I think exhibit E is void and of no effect.”

The majority judgment also analysed in detail the evidence as to the conduct of the second defendant particularly his conduct in putting up a building on the disputed land at a time when his title was apparently being challenged and came to a conclusion, contrary to the view of the trial judge, that the defendant built in good faith and therefore on the assumption that his title was defective he was entitled to the protection accorded by Act 2.

The dissenting judgment of Siriboe J.S.C. agreed with the central reasoning of the trial court as to retroactive confirmation of the plaintiff’s title by the Osu stool and although he also agreed with the trial court’s conclusion that the plaintiff should succeed, his appraisal of the effect of the case of Akwei v. Awuletey (supra) on who the plaintiff himself considers, on his evidence, as the proper grantors of the land in dispute in interesting. He said at p. 407:

“ . . . long before the inception of the action in the instant case, the plaintiff had recognised the Osu stool’s absolute ownership of the land in question and he cannot, therefore, be said to claim title through the Nii We family. The plaintiff’s approach to the occupant of the Osu stool for confirmation of his grant would have been meaningless if subsequent to that, he holds the view that the Nii We family were the owners of the land.”

And after discussing the Awuletey case and examining the evidence of the Osu Mantse and the Osiahene in that case he said at p. 408:

“. . . the plaintiff’s entry to the land in 1949, whether it was with or without the stool’s consent, cannot be said to be null and void, in view of the evidence of the Osiahene supported by the Osu Mantse, that an Osu
subject can without express grant of the stool occupy position of the stool’s rural land not already

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occupied. In this connection, what seems to be material is the question of occupation or possession, and since that question has been decided in favour of the plaintiff, unless the defendants can show that they are the true owners, their entry to the land cannot be justified.”

In this court ten grounds of appeal were filed on behalf of the plaintiff-appellant as follows:
“1. That the learned appeal judges (Azu Crabbe and Sowah JJ.A.) who gave the majority judgment in favour of the defendants were wrong in holding that the customary grant to the plaintiff in 1949 was null and void when there was ample evidence on record to prove that the plaintiff belongs to the Nii We family under the Mankralo stool of Osu which in turn is under the Osu paramount stool and that the plaintiff at all times acknowledged and recognised the absolute title of the Osu stool.
(2) That the learned majority of the appeal judges failed to appreciate the full force of the customary land tenure of Osu lands by which a subject of the Osu stool such as the plaintiff obtained only a determinable title and not an absolute title to a vacant land which he occupied himself or which if previously occupied by his family as subjects of the stool, is granted to him for building purposes and that whether the said occupation or grant is with or without the paramount stool’s consent or confirmation, it cannot be said to be null and void.
(3) That the learned majority of the appeal judges misdirected themselves on the legal principle that a stool cannot alienate stool land already in possession of a subject of the stool and that the said subject can successfully maintain an action against the whole world including even his stool.
(4) That the learned majority of the judges of the Court of Appeal erred in law in holding that the plaintiff’s reply to the defendants’ statement of defence and counterclaim was no proper reply but was a departure from the pleadings and that the statement of claim should have been amended.
(5) That the learned majority of the judges of the Court of Appeal misdirected themselves on the law when they held that it is not competent for the plaintiff to introduce a new matter by way of controverting the statements in the defence and to explain when certain things happened in the case and that they failed to appreciate that it is not the introduction of every new matter or fact in a reply which amounts to setting up a new case.

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occupied. In this connection, what seems to be material is the question of occupation or possession, and since that question has been decided in favour of the plaintiff, unless the defendants can show that they are the true owners, their entry to the land cannot be justified.”

In this court ten grounds of appeal were filed on behalf of the plaintiff-appellant as follows:
“1. That the learned appeal judges (Azu Crabbe and Sowah JJ.A.) who gave the majority judgment in favour of the defendants were wrong in holding that the customary grant to the plaintiff in 1949 was null and void when there was ample evidence on record to prove that the plaintiff belongs to the Nii We family under the Mankralo stool of Osu which in turn is under the Osu paramount stool and that the plaintiff at all times acknowledged and recognised the absolute title of the Osu stool.
(2) That the learned majority of the appeal judges failed to appreciate the full force of the customary land tenure of Osu lands by which a subject of the Osu stool such as the plaintiff obtained only a determinable title and not an absolute title to a vacant land which he occupied himself or which if previously occupied by his family as subjects of the stool, is granted to him for building purposes and that whether the said occupation or grant is with or without the paramount stool’s consent or confirmation, it cannot be said to be null and void.
(3) That the learned majority of the appeal judges misdirected themselves on the legal principle that a stool cannot alienate stool land already in possession of a subject of the stool and that the said subject can successfully maintain an action against the whole world including even his stool.
(4) That the learned majority of the judges of the Court of Appeal erred in law in holding that the plaintiff’s reply to the defendants’ statement of defence and counterclaim was no proper reply but was a departure from the pleadings and that the statement of claim should have been amended.
(5) That the learned majority of the judges of the Court of Appeal misdirected themselves on the law when they held that it is not competent for the plaintiff to introduce a new matter by way of controverting the statements in the defence and to explain when certain things happened in the case and that they failed to appreciate that it is not the introduction of every new matter or fact in a reply which amounts to setting up a new case.

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(6) That the learned majority of the judges of the Court of Appeal were wrong in holding that the evidence and pleadings of the plaintiff tendered to show that the plaintiff acquired absolute title through the Nii We family as against the Osu stool when there was ample evidence on record to the effect that the plaintiff at all times recognised the absolute title of the Osu stool which hitherto allowed the Nii We family to occupy and grant Kotobabi lands to both subjects and strangers until the early 1960s and that what the plaintiff acquired in 1949 from the Nii We family was a determinable or possessory title by customary grant of which even the Osu stool could not deprive him, being a subject of the said stool who is entitled to free use of such vacant land.
(7) That the learned majority of judges of the Court of Appeal erred in law in finding for the defendants who failed to call any witness to prove the demarcation of their land and to describe the condition in which the land was at the time of the demarcation and to prove that they in fact fixed pillars bearing the initials `G.Y.O.’ to mark the said land as alleged by them.
(8) That the judgments of the learned majority of the judges of the Court of Appeal (Azu Crabbe and Sowah JJ.A.) were against the weight of evidence, contrary to law and are otherwise unsupportable.
(9) That the learned majority of the judges of the Court of Appeal were wrong in law in holding that the plaintiff’s confirmatory deed (exhibit E) offended against section 7 (1) of the Administration of Lands Act, 1962 (Act 123), and section 24 (1) of the Land Registry Act, 1962 (Act 122), when the learned judges well knew that the two Acts have no application to a customary grant of stool land by a stool to its subject such as the plaintiff, who is entitled by customary law to free use of the land and who is proved to have been in effective occupation or possession of the land since November 1949, many years before the two Acts were passed in 1962.
(10) That the learned majority of the judges of the Court of Appeal (Azu Crabbe and Sowah JJ.A.) misdirected themselves in holding that the defendants acted in good faith in erecting a house on the land in dispute when there was sufficient evidence to prove bad faith and recklessness on the part of the defendants, who, in spite of several warnings and

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notice of a pending action against them for declaration of title and trespass, started and completed a building on the land in dispute. The learned majority of the judges of the Court of Appeal were wrong in holding that the defendants were entitled to the protection of section 1 of the Land Development (Protection of Purchasers) Act, 1960 (Act 2).”

And particulars of five errors of law alleged to be contained in the judgment of the majority were itemised as follows:

“(a) That the customary grant made by the Nii We family to the plaintiff-appellant in 1949 and later confirmed by the Osu paramount stool was null and void.
(b) That the plaintiff-appellant’s reply to the defendants-respondents’ statement of defence and counterclaim was no proper reply but was a departure from the pleadings and that it was not competent for the plaintiff-appellant to introduce new matter by way of controverting statements in the defence and to explain why certain things happened in the case.
(c) That the plaintiff-appellant cannot claim absolute title to the disputed land which he based on his inherent right of entry as a subject of the Osu stool and that his long possession of the said land cannot be an effective bar to subsequent alienation of the same portion of land either by the Osu paramount stool or the Nii We family.
(d) That the plaintiff-appellant’s confirmatory deed (exhibit E) executed by the Osu paramount stool confirming the customary grant of 1949, offended against section 7 (1) of the Administration of Lands Act, 1962 (Act 123), and section 24 (1) of the Land Registry Act, 1962 (Act 122).
(e) That the defendants-respondents were entitled to the protection of section 1 of the Land Development (Protection of Purchasers) Act, 1960 (Act 2), even if they erected a house on the land in dispute subsequent to several warnings, criminal proceedings in the District Court Grade 1, Accra New Town, and the commencement of a civil action in the High Court.”

The grounds of appeal and the specified errors of law can all be grouped under 4 headings for convenience of exposition: The first group consists of errors (a) and (c) and grounds 1, 2, 3, 6 and 8. This group is in effect alleging that having regard to the evidence adduced, the customary law on Osu customary land tenure was not properly applied in this case and these grounds and alleged errors necessitate an examination of the relevant Osu customary land law relating to the

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ownership of Osu lands with particular reference to the nature and ambit of the decision in Akwei v. Awuletey (supra).

The second group is error (b) and grounds 4 and 5. These grounds and error are founded on the unhappy rule exhaustively canvassed by Azu Crabbe J.A. (as he then was) relating to the legal effect of introducing new material in the reply of a plaintiff to the defence. I have already dealt with this matter in this appeal and my decision on it shows that it is irrelevant to the final decision of the Court of Appeal and does not in any way advance the cases of the plaintiff or defendants in this court.

The third group is error (d) and ground 9 and they deal with the legal validity of the deeds, exhibits D, E and 1, having regard to the provisions of Act 123 and Act 122.

And finally the last group is error (e) and ground 10 which deal with the application or otherwise of Act 2.

Ground (7) is of course quite irrelevant. The trial judge having heard the witnesses for the defendants and having examined the documents tendered in support of their case made positive findings which completely dispose of this ground. He said:

“The first defendant says he obtained a grant of the land in dispute in 1956... The evidence of the grant of this land and its attendant circumstances, appears to me to have been most ineffectively challenged. I accept the evidence of the first defendant and find that a grant of the land in dispute was made to him in 1956 and that exhibit D truly evidences that grant.”

These findings demonstrate that the said ground (7) is misconceived and should be rejected. Indeed, having regard to the satisfactory manner the trial judge approached the issue as to whether a grant was or was not made to the first defendant it is clear that this point has nothing to do with the ratio decidendi of the trial judge or the reasoning of the majority of the Court of Appeal. A decision on this ground would be meaningless and can have no effect on the final judgment in his case.

I propose now to consider the first group by examining land tenure under Osu customary law in so far as it concerns the interests of the parties in the disputed land, the subject-matter of this appeal. Before that, however, there are two relevant principles which have been consistently applied by the courts of this country to stools owning proprietary interests in land from the earliest time when statutory courts were established in this country. The effect of the first principle is that a paramount stool can own land which is not under the control of its sub-stool. This is rejected by Ollennu in his second lecture on “The Basic Principles of Customary Land Law of Ghana” and in

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chapter 2 of his book, Customary Land Law in Ghana. All the authorities, however, which he quoted and discussed in denial of the principle did not, in fact, repudiate the principle. In some of the cases, the principle was, in fact, specifically and in terms accepted and in others, the decisions can only be understood on the basis of the validity of the said principle. Indeed, as far as Osu land tenure is concerned, the moment it was decided by the courts that land of more than 100 feet from a quarter is not attached to a sub-stool but is the property of the Osu paramount stool, the whole basis of the Ollennu thesis also disappeared. That thesis alleged to be founded on the ratio decidendi of decided cases is stated at p. 20 of the book as follows:

“[A] head stool or skin cannot acquire an absolute title to land unless that land belongs to, or is vested in a sub-stool or sub-skin under the head stool or head skin. Therefore if any land is proved to be vested in a head stool or skin for an absolute estate, that land must of necessity belong to or be vested in a sub-stool or sub-skin or a quarter also for a sub-paramount estate.”

An examination of Osu land tenure and the tenurial system in other tribal areas vindicates the said first principle and repudiates the Ollennu principle. Mensah Sarbah the distinguished Ghanaian jurist, when appearing for the appellants in Wiapa v. Solomon (1905) Ren. 410 enunciated the first principle thus: “All unoccupied land within territory under a paramount stool belongs to such stool.” The Full Court accepted this principle and appreciating that a sub-stool under a paramount stool may also own lands formulated the principle to take account of these interests. In the above case, Sir William Brandford Griffith C.J. speaking for the Full Court said:

“Any unoccupied land within the recognised boundaries of the subordinate stool or the family land or private land would of course belong to the subordinate stool or the family or the private individual as the case might be; but any unoccupied land not being a part of the land of a subordinate stool or family or a private person would be attached to the paramount stool.” (The emphasis is mine.)

I am aware that this principle is only applicable to land owning stools or stools with proprietary interests. Where the stool has merely jurisdictional as opposed to proprietary interest, I apprehend the principle will be inapplicable as the excellent judgment of Apaloo J.A. (as he then was) so clearly demonstrates in Amoeda v. Pordier [1967] G.L.R. 479, C.A., a judgment which finds support in the views of Dr. Kludze in Ewe Law of Property, p. 114. Although Dr. Kludze in an article in (1974) 11 U.G.L.J. 123 criticised the further principle inherent in Wiapa v. Solomon (supra) that there are no ownerless land in

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Ghana, I am afraid I cannot share his views for I think that that principle is, at least, now well entrenched in the land owning stool areas of Ghana and it is too late in the day to challenge its customary law foundation in those areas.

The second principle is that a subject of a stool can by reducing stool land to his possession by actual occupation acquire an interest in the land which the stool cannot take away from him. Thus in Lokko v. Konklofi (1907) Ren. 450 at p. 451 where it was shown that Konklofi, a stool subject, has exercised acts of ownership on stool property without allocation by the stool, Sir William Brandford Griffith said:

“Konklofi had other farms... but the land in question he permanently settled upon. He made a village on the land probably 20 years ago, made a sugar cane farm close by, where the canes would be allowed to grow as long as the soil continues good and about five years ago made a cocoa farm... The land has never been definitely allotted to him as his portion of the stool land, but it is recognised as his land and I am satisfied that it could not be taken from him by the stool.”

The judgment in the case was upheld by the Full Court in Lokko v. Konklofi (1908) Ren. 454. And Michelin J. in Sam v. Tham (1924) D.C. `21-`25, 63 at p. 66, quoted the principle in Lokko v. Konklofi (1907) Ren. 450 with approval. The principle is recognised by many writers in relation to rights of the subjects of land owning stools.

It is now necessary to keep these two principles in mind and examine in historical perspective the proprietary rights of the paramount and subordinate stools of Osu in Osu lands as the stools have exercised them from 1866 to 1961. Under the paramount stool of Osu, there are four quarters with sub-stools, they are Kinkawe, Ashanti Blohum, Anahor and Alata. The nature of the land tenure of these sub-stools in relation to the paramount stool has been the subject of many judicial decisions. I propose to examine all the relevant cases which my research has reached. H.A. Hage Ltd. v. C.A. Holm (unreported) decided at the Lands Division of the High Court, Accra on 7 November 1959 held, inter alia, upon evidence:

“The Osu stool with its principal members and councillors granted ... land to the Basel Mission in 1866 for missionary and educational purposes. It lies between Anahor quarter on the east and Ashanti Blohum on the west and on the north of Alata quarter as from the market with Lokko Road between the market and the mission land.”

The grant was never shown to have been impugned. In In re European Residential Area Extension and
Public Lands Ordinance (1931) D.C. `29-`31, 77, it was conceded that in 1894 the government

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acquired a large piece of land on both sides of the Dodowa Road for a Hausa reserve from the Osu stool. The Osu stool was also shown to have conveyed lands on the Dodowa Road by a number of conveyances dating from 1916 to 1930 to many firms which built on the east side of the Dodowa Road not far from the Ridge Hospital. In Sampson v. Lutterodt (1946) D.C. (Land) `38-`47, 195 at p. 197 Coussey J. (as he then was) indicated the proprietary interest of the Osu stool and sub-stool in land situated at Osu in a case dealing with the rival claim of title derived from the Anahor quarter against a title derived from the Osu stool. In that case he enunciated the principle governing Osu land-tenure thus:

“... all land in Christiansborg which is not owned by individuals or families is attached to the Stool of Osu. Unalienated lands are in the charge of the several Quarters of Osu for the Manche’s Stool. By native custom, grants of such lands are made by the Head and Elders of the Quarters to members of the Quarter at a nominal customary fee for the purpose of building.

In the case of a grant to a stranger, no grant can be made by the Elders of a quarter. Such grant must, according to the custom of the Stool, be by the Stool, and some of the principal elders of the Quarters concur in the grant.”

In Baddoo v. Ayorkor (1949) D.C. (Land) `48-`51, 149 at p. 151 Wilson C.J. dealt with the respective rights of the Alata quarter and the Osu stool to grant a piece of land in Osu. He decided that the land in question is:

“... unoccupied land lying within the boundaries of the Osu stool lands and did not form part of the lands recognised as belonging to any of the quarters and that for this reason it was within the disposition of the Osu Mantse, subject to the consent of his immediate stool elders, and was not within the disposition of the headman of the Alata Quarter.”

In Adjin v. Onano (1945) 14 W.A.C.A. 472, it was held that land granted to the Osu stool in its own right by the Labadi stool and which the Osu stool had abandoned, reverted to the Labadi stool.

In Aryee v. Odofoley (1951) 13 W.A.C.A. 161, the West African Court of Appeal, overruled the decision of Wilson C.J. in Aryee v. Odofoley (1949) D.C. (Land) ‘48-51’, 176, where the Chief Justice had in effect apparently decided that the Osu Mantse as the holder of the paramount interest in the land could grant an unalienated outskirt land attached to the land of a quarter without any obligation to notify the quarter. Blackall P. with whom Lewey J.A. and Coussey J. concurred said:

Page 1274

“ . . . under Christiansborg customary law the position as to ‘outskirt land’ is this: Where unalienated land is in the charge of the head and elders of a Quarter the Osu Mantse may not grant any part of such land without prior consultation with the head and elders of the Quarter.”

In Bonne v. Hammond (1954) 14 W.A.C.A. 492, the question which arose was, inter alia, who had a right to grant outskirt land in Osu, i.e. land which is not more than 100 feet away from the existing buildings at Osu. Was it the quarter immediately contiguous to the land or the Osu stool? Windsor Aubrey J., with whom Foster Sutton P. and Coussey J.A. concurred, held at p. 494, upholding the decision of Jackson J., that under Osu customary law:
“(1) that until land is allotted to a Quarter by the Osu Stool it remains the property of the Osu stool;
(2) that members of a Quarter may, however, extend their Quarter by building on the land adjacent to or attached to a Quarter up to a distance of about 80-100 feet of existing buildings.”

And it was held that land outside these limits are legally only disposable by the Osu stool not the quarter.

In In re Public Lands Ordinance (Afriyie II) (1955) D.C. (Land) ‘52-’55, 273 at p. 277, Manyo Plange J. (as he then was) quoted with approval Aryee v. Adofoley (supra) as laying down the proposition that:

“. . . outskirts’ land belong to the Osu Stool but under the control of the quarters and that the Osu Mantse has the right to dispose of such `outskirt’ land without the consent or approval of the quarter under whose control such land is, provided such land has not already been alienated by the quarter and that after consultation with the quarter concerned.”

The decision of Manyo Plange J.(as he then was) applying this principle was upheld by the Court of Appeal in an unreported judgment delivered on 28 April 1958.

The locus classicus of the Osu stool cases is Danquah v. Wuta-Ofei (1955) D.C. (Land) ‘52-’55, 311. The case was complicated by the fact that at the time of the dispute the government had under the Accra Town (Lands) Ordinance, Cap. 87 (1951 Rev.) acquired title to the land in dispute. In my view, however, if one ignores this Ordinance, then as between the parties to the action, the statement and application of the customary law by van Lare J. (as he then was) is without doubt authoritative and unimpeachable. The land in dispute was in the Osu stool area and at a considerable distance

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from the Osu Alata quarter. The plaintiff had her grant from the Osu stool and the defendant had her’s from the Osu Alata stool represented by the Osu Alata Mantse, the co-defendant. The decision of van Lare J. stated in the headnote as holding (1) is as follows:

“(1) by reason of its position, this land could not be Osu Alata Quarter land or outskirt land. Since it had not been allotted to the quarter, the co-defendant could not alienate it to anyone over the head of the Osu Stool. The grant to the defendant was null and void.”

(The emphasis is mine.)

The principle thus enunciated was not impugned by the West African Court of Appeal when the case went on appeal in that court sub nom. Danquah v. Wuta-Ofei and Bonne (1956) 2 W.A.L.R. 185 at p. 188 where Verity Ag. C.J. with whom Coussey P. and Korsah C.J. concurred said of the customary law position: “... it would appear to be beyond doubt that the paramount stool could grant unallocated land even if it fell within the `outskirt land’ of a Quarter.”

Of course in such a case the Osu Mantse would need to consult the quarter stool as was held in Bonne v. Hammond (supra) and in the subsequent case of Kwame v. Quaynor [1959] G.L.R. 269 at p. 273. The most relevant authority on Osu stool land and one virtually on all fours and so applicable to the land in dispute in this case is Akwei v. Awuletey (supra). That case dealt with Maamobi-Kotobabi-Dzorwulu lands within which area the land in dispute is situated. The said land is a considerable distance from Osu. It is not at Osu and it is not outskirt land. It is described as Osu rural land and the judgment of the erstwhile Supreme Court setting aside the judgment of the trial court held unequivocally that the Maamobi-Kotobabi-Dzorwulu lands are Osu rural lands and that the Osu Mantse and his elders are the proper authority to grant portions of the said land. A similar decision had previously been given on 24 November 1959 as I have already indicated herein in the judgment of Sarkodee-Addo J. (as he then was) in Afriyie v. U.A.C. (supra), an appeal from which was, as I have also pointed out, dismissed on 14 February 1961 for non-prosecution by the erstwhile Supreme Court, coram: Korsah C.J., van Lare and Akiwumi JJ.S.C.

In this case the plaintiff claims that a portion of the said Maamobi-Kotobabi-Dzorwulu lands was granted to him not by the Osu stool but by the Nii We family stool which is under the Mankralo stool of Ashanti Blohum. In Akwei v. Awuletey (supra), the Mankralo stool of Ashanti Blohum had asserted a similar right to make such a grant based on the allegation that Osu subjects in the villages hail from Ashanti Blohum. The erstwhile Supreme Court rejected the

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claim. In Osu Mantse (Claimants); In re Public Lands (Leasehold) Ordinance [1959] G.L.R. 163, the head of the Nii We family and Mankralo of Ashanti Blohum, Nii Yebuah Nortey, had previously claimed Kotobabi rural lands as his ancestral land granted to his ancestor by the Osu stool. The claim failed, but the judge Ollennu J. (as he then was) suggested that the failure of express grant did not mean that his claim necessarily fails since a subject of a stool is entitled to free use of stool land. In so far as the discarded principle regarding rural land canvassed in Akwei v. Awuletey at the Land Court on 18 March 1958 (unreported), was applied in Osu Mantse (Claimants) (supra) the decision must be taken to be per incuriam.

In this respect the claim of the Nii We family stool of Ashanti Blohum in Osu Mantse (Claimants) (supra) and in this case is not unlike the claim of the Atukpai stool of Gbese in Golightly v. Ashirifi (1955) 14 W.A.C.A. 676 at p. 682. It would be recalled that in that case, the claim of the Atukpai stool based on an actual grant having failed, the fact that individuals from Atukpai and their descendants as families had for 50 years or more occupied farms and a few villages on portions of the disputed land was held by the West African Court of Appeal to mean no more than that as individuals and families they had the usufructs of localities actually occupied by them consistently with the rights of other subjects of the Gbese stool and that the Atukpai stool constituted as such could not make any valid grant of any interest in such land. Ollennu J. (as he then was), who was one of the counsel for the Atukpai stool drew attention to several grants made by the Atukpai stool as evidence of the ownership of the stool. These were all held to be null and void by the trial judge and his view was upheld on appeal.

In my opinion, for almost 100 years all the authorities on Osu customary law without exception show that as the Maamobi-Kotobabi-Dzorwulu lands are Osu rural lands, only the Osu stool can make valid grant of the said lands to grantees. The Nii We family stool has no title to pass in these lands and its customary grants in this case are therefore null and void. This disposes of the first group of the grounds of appeal, namely grounds 1, 2, 3 and 6 and errors (a) and (c).
It follows from the conclusion which I have arrived at on this group of grounds, that I entirely agree with the conclusion of the majority as expressed in the judgment of Azu Crabbe J.A., (as he then was) at p. 390 that:

“[T]he Osu Mantse and his elders are the only proper authority to make a grant of the Kotobabi land. The purported customary grant of a portion of the land by the Nii We family of Ashanti Blohum quarter to the plaintiff in this case was therefore null and void and of no effect, and in my view the Osu stool cannot

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subsequently confirm, orally or by deed, a void grant: Ex nihilo nihil fit.”

The judgment of the trial judge and the dissenting view of Siriboe J.S.C. would seem to have recognised the paramount right of the Osu stool to grant and conceded the incompetence of the Nii We family stool to grant the said land having regard to the Awuletey case. Their judgments were consequently founded on their considering exhibits 1 and E as confirmatory grants.

This brings me to a consideration of the third ground of the grounds of appeal. I have already set down in this judgment the operative provisions of these two deeds. The most cursory reading of the operative provisions of the deeds and the evidence of the parties show quite clearly and without any ambiguity whatsoever, that they are without doubt fresh grants and not confirmatory deeds. All the lawyers in the case at the High Court and Court of Appeal and all the judgments in the case, from that of the trial judge to the majority judgment in the Court of Appeal including the dissenting judgment of Siriboe J.S.C. proceeded curiously on the bald acceptance clearly inadvertent in the circumstance that the deeds, exhibits E and 1, are confirmatory grants.
This is plainly not supported by a reading of the dispositive provisions of these deeds which I have already set down in this judgment. Indeed, in his evidence, the plaintiff never mentioned a confirmatory deed and the deed itself is clearly a fresh grant. Now apart from the plaintiff’s unregistered document, exhibit E, an ineffective instrument for want of registration, which used the word “confirm” in the recital, the defendant’s conveyance, exhibit 1, repudiated the early grant of 1956, there was no other document or conveyance tendered, which remotely evidenced any confirmatory grant.

As far back as 1852 in Holiday v. Overton (1852) 14 Beav. 467 at p. 470 Romilly M.R. said, “It is impossible by recital to cut down the plain effect of the operative part of a deed.” And in Dawes v. Tredwell (1881) 18 Ch.D. 354 at p. 358, Jessel M.R. laid down the same principle with characteristic clarity, “The rule is, that a recital does not control the operative part of a deed where the operative part is clear.” (The emphasis is mine.) In Mackenzie v. Duke of Devonshire [1896] A.C. 400 at p. 408, H.L. authoritative pronouncements from the lords in the highest court in the United Kingdom indicated that it is a well-recognised and accepted principle of law. Lord Davey for example put it succinctly at p. 408, H.L.:

“I take it to be a settled principle of law that the operative words of a deed which are expressed in clear and unambiguous language are not to be controlled, cut down, or qualified by a recital . . .”

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Mackenzie v. Duke of Devonshire (supra) and the statement of Lord Davey therein were quoted with approval and applied in the dissenting opinion of Apaloo J.A. (as he then was) in the Court of Appeal decision in Buckle v. Bassil [1967] G.L.R. 237, C.A.

In that case Apaloo J.A. (as he then was) said at p. 257, “I believe it to be well-settled law that the recital does not control the operative part of a deed where the operative part is clear.” (The emphasis is mine.) This view which echoes and adopts as can be seen, the ipsissima verba of the great Jessel M.R. was accepted by the full bench when the case was reviewed and Apaloo J.A.’s dissenting opinion approved. Reading the leading judgment of the full bench of the Court of Appeal in Bassil v. Buckle, Court of Appeal, 18 August 1969; digested in (1970) C.C. 6, Archer J. (as he then was) in a masterly exposition of the principle upholding the dissenting view of Apaloo J.A. (as he then was) concluded, “It is settled law that where the operative part of a deed is clear and unambiguous, then the operative part prevails notwithstanding what the recital say.”

The operative parts of exhibits E and 1 used clear and unambiguous language indicating fresh grants. With all due respect, it is difficult to understand, in the teeth of the operative provisions, how the notion of confirmatory grants came to be associated with these deeds. In tendering his documents as exhibit E, this is what the plaintiff said, “After the judgment in 1960, I caused an indenture to be made and I submitted it to the Osu Mantse. He executed it together with his elders. I have a stamped copy of it. I
tender it in evidence.”

The document, exhibit E, was executed on 22 November 1964 by Nii Dowuona V who was gazetted as Osu Mantse on 23 March 1963. It granted the land to the plaintiff on 22 November 1964. The document was not registered. Section 24(1) of the Act 122 provides:

“... an instrument other than,
(a) a will, or
(b) a judge’s certificate, first executed after the commencement of this Act shall be of no effect until it is registered.”

Act 122 came into force on 2 November 1962. And in the leading case of Asare v. Brobbey [1971] 2 G.L.R. 331 at p. 339, C.A., Archer J.A. (as he then was) delivering the judgment of the Court of Appeal remarked:

“Before 2 November 1962, there was nothing like compulsory registration of documents relating to land . . . However since November 1962, all documents relating to land must be registered in order to have any legal effect at all. This is an innovation

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and it has such serious consequences that no conveyancer should fail to advise his client to comply with section 24 of Act 122.”

I agree completely with this view. In my opinion, exhibit E as an unregistered document was clearly incapable of confirming any grant or transferring any interest in land. A contrary conclusion will be tantamount to what Archer J.A. (as he then was) in the concluding passage of his judgment in Asare v. Brobbey (supra) at p. 340 designated as:
“. . . a judgment contrary to the express provision of section 24 (1) of the Land Registry Act, 1962, by conferring rights when the statute provides that no legal rights can arise from an unregistered document affecting land.”

Clearly exhibit E while unregistered is ineffective to create legal rights or liabilities or to have any legal validity whatsoever. I am aware that in Ussher v. Darko [1977] 1 G.L.R. 476 at p. 489, C.A., Apaloo J.A. (as he then was) held that an unregistered conveyance because it described the premises, stated the price and was signed by the proper vendor satisfied section 4 of the Statute of Frauds, 1677, as preserved by section 19 of the Contracts Act, 1960 (Act 25), and is on that account capable of operating to confer an equitable title to a purchaser. With respect, I think this contradicts the clear and unambiguous provisions of section 24(1) of Act 122 and the interpretation of it in Asare v. Brobbey (supra) where Archer J.A. (as he then was) said: “since November 1962 all documents relating to land must be registered in order to have any legal effect at all.” A conveyance giving an equitable interest is one also giving a legal effect to the document.

Equity and law have coalesced for so long now that like the husband and wife of the old common law they are now one. It is now too late for courts of law to maintain the old distinction by creating new equities which will not be legal interests and which are said to have no legal effect but equitable effect. In my view, an equitable effect is a legal effect. Since by section 36 of Act 122 an “instrument” has been defined as “any writing affecting land situate in Ghana including a judge’s certificate and a memorandum of disposal of title deeds,” it seems to me that an unregistered document affecting land in Ghana on or after 2 November 1962 cannot operate to confer equitable title on a vendor and if section 19 of Act 25 can be construed as permitting such grants when Act 122 is subsequent to it, it must be taken to have by implication repealed that effect of that section. If this is not so and the document is capable of passing an equitable interest, then the document is a valid document; valid to convey an equitable interest in land and the description of such a document in Amefinu v. Odametey

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[1977] 2 G.L.R. 135, C.A. as an invalid document which I hold it is, must be considered right. I think the contrary view of the law contained apparently in Ussher v. Darko (supra) was clearly not necessary for the decision in that case. In so far, therefore, as Ussher v. Darko (supra) sought to give effect to an unregistered document, it is my opinion that, that part of the decision must be considered to have been given per incuriam.

In the majority judgment of the Court of Appeal, it was said that “exhibit E is void and of no effect.” I agree that exhibit E is of no effect, but I am unable to subscribe to the view that it is void, because on registration at any time, it would from the date of registration or confirmation, acquire same legal validity. Assuming, however, that exhibit E had been registered, can it confirm the oral void grant of the Nii We stool? It must be remembered that Act 122, did not establish a register for the registration of title to land.
Registration therefore has nothing to do with title to land and if the person who conveys property to another has no title, registration or confirmation cannot impart title to the grantor for transmission to the grantee. If the transaction is void as regards title it will still remain void even after registration or confirmation. I think therefore that a void transaction cannot be made valid by confirmation or registration and I agree with the view of Azu Crabbe J.A. (as he then was) in the Court of Appeal when he said in effect that the oral grant to the plaintiff because it is void cannot subsequently be confirmed.

In this case, it would seem the learned trial judge has clearly interpreted the recital in exhibit E as evidence of confirmation of prior void grant by the proper authority to grant, namely the Osu stool in spite of the apparently fresh grant purported to be given in the operative part. This treatment of recitals is not new to our jurisprudence. A somewhat similar point arose in Golightly v. Ashirifi (supra) at pp. 684-685 and Foster-Sutton P. dealt with it thus:

“In our opinion since the only rights in the land of any member of an Atukpai family at the material time were rights of the same degree as that of any other subject of the Gbese Stool, a conveyance by a so-called Atukpai Oluopai Stool alleged to be constituted with elders and councillors is an entity to which, upon the conclusions we have reached, land was never granted. That entity therefore could not convey any land or otherwise deal with it. The recited conveyances by Nii Tettey Gbeke for the Atukpai Stool are null and void, and being a nullity they cannot be authenticated.” (The emphasis is mine.)

If for “Gbese” is substituted “Osu,” for “granted” is substituted “vested” and for “Atukpai” and “Tettey Gbeke” are substituted

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respectively “Nii We” and “Philip Tettey Botchway,” this statement of the law will apply perfectly well to the relevant facts of this case; in regard to any confirmation by the Osu stool of any grant by the Nii We stool.

It follows from this that even if exhibit E had been a registered document it could not confirm the void grant of the Nii We stool. Furthermore, the grant to the first defendant by the Osu stool, exhibit 1, was registered. It was made on 9 January 1962 and was registered on 26 March 1965 and it obtained the concurrence of the Minister of Lands and Mineral Resources. By the time the trial of the case commenced, which was 2 October 1967, there was in existence two documents which were executed by the proper authority to grant the land in dispute. Exhibit E for the plaintiff executed on 22 November 1965 which was unregistered and had no concurrence of the minister, and exhibit 1 executed on 9 January 1962 in favour of the first defendant which had been registered and had the concurrence of the minister. Which of these two documents has priority?

Without referring to decided authority on the matter I have no hesitation at all in saying that by the clear terms of section 24 (1) of Act 122, exhibit 1, the first defendant’s document is valid as against the plaintiff’s and the whole world including the grantor, the Osu stool. Indeed, it is not even a question of priority since there is no other competing instrument. This is made clear from the excellent judgment of the Court of Appeal in Amefinu v. Odametey (supra) at p. 144 where Annan J.A. reading the judgment of the court said:

“No question of priority arises whatsoever as between a registered instrument and an unregistered instrument . . . By virtue of section 24 of the Act [122] an unregistered instrument has no validity or legal effect and no issue of priority can consequently arise in respect of such an invalid instrument and a later registered instrument. In terms of section 24 of Act 122 issues of priority of instruments governed by the Act arise only where the instruments are registered, that is priority arises only between competing registered instruments.”

If the plaintiff’s document had been registered after the defendant’s, the defendant’s would certainly gain priority since at the date he was registering his, the plaintiff’s was an unregistered document. The matter as to priority of such documents had already been considered by the courts of this country as far back as 1905 under the comparative old provisions in the Land Registry Ordinance, 1895. For instance on 27 February 1911 the Court of Appeal in Concession Enquiry 1016 (1911) Ren. 592, and again the Full Court in Arkaah and Morrison v. Tarquah Mining Exploration Co. (1911) Ren. 604

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overruled the contrary view contained in the unfortunate decision of the Full Court in 1905 in Anyidoho v. Markham (supra). The matter is completely covered by authority and there is no need to re-open it. If anything the language of the 1962 enactment, i.e. Act 122, has now entrenched the early interpretation consistent as it is with the view of the Court of Appeal in Asare v. Brobbey (supra) and Amefinu v. Odametey (supra).

In this case, it seems the trial court was prepared to raise an equity in favour of the plaintiff. Because it will defeat the whole purpose and the policy behind Act 122, I am reluctant to acquiesce in this new equity which would seem to be a revival of a discarded equity first hinted at in 1920 by Nettleton J. in Hockman v. Arkhurst (1920) F.C. ‘21-’22, 101 at p. 105 in interpreting the comparative old provision of the Land Registry Ordinance, 1895, which provided:

“Every instrument executed on or after the 24 March 1883... shall so far as regards any land affected thereby take effect as against other instruments affecting the same land, from the date of its registration.”
The facts are that Hockman bought land in 1914 from the Sekondi stool. He did not obtain a deed. In 1918 Arkhurst not knowing of the earlier grant bought the same land from the stool and had a deed executed in his favour which he registered in 1918. On finding Arkhurst in possession Hockman hurried to obtain a deed from the stool which he registered in 1919. Upon these facts Hockman sued for title in the Native Tribunal and obtained judgment. This judgment was on appeal reversed by the Provisional Commissioner’s Court, on the ground that as Arkhurst purchased without notice his registration which is first in time prevails. The Full Court supported this decision and Nettleton J. in his judgment said:

“. . . 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 (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 if the Defendant, bought the land as Defendant contends, from the Stool without notice actual or constructive of that 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 emphasis is mine.)

Page 1283

The effect of this view being that after the first conveyance and before registration, the vendor held the legal estate in trust for the purchaser. The purchaser is thus given an equitable estate and consequently any registration of a subsequent conveyance with notice of this equity would not acquire priority against the prior unregistered conveyance. Leaving aside the question of fraud which in my view vitiates most transactions, I think the very clear wording of section 24 (1) of Act 122 so different from the earlier provision, is incapable of sustaining and maintaining the Nettleton interpretation put on the 1895 Ordinance. In my view, this new equity must be considered as still-born and in Amefinu v. Odametey (supra) at pp. 141-143 in a faultless argument Annan J.A. sounded the death-knell of this new equity and he buried it as far as section 24 (1) of Act 122 is concerned. In my opinion, this new equity should not be resuscitated.

With regard to the applicability or otherwise of the provisions of the Land Administration Act, 1962 (Act 123), the trial court was of the view, with which I agree, that the enactment is not retrospective. It held the view, however, with which, with respect, I disagree having regard to my conclusions on the first group of grounds of appeal, that the grant to the plaintiff of the stool land in question was in 1949 and not 1964 and so he held that the Act was not applicable in his case. In my opinion, the grant to the plaintiff was by the unregistered conveyance of 22 November 1964 and since as at that date Act 123 was a subsisting statutory provision applicable to stool lands, the concurrence of the minister was sine qua non to the legal validity of the conveyance quite apart from the matter of registration. On this aspect I am in entire agreement with the opinion of Azu Crabbe J.A. (as he then was) and I have nothing further to add to his reasoning except to remark that without registration and concurrence the plaintiff will not even at the present time have any proprietary interest, equitable or legal in the property the subject-matter of the conveyance he took in 1964.
I apprehend though that if he were to register the document now and obtain the concurrence as well, then on the assumption that there is no other registered document relating to the land he will be an effective owner of the large area he took minus the smaller area conveyed to the defendant and of which the said defendant had by prior registration become the effective owner.

The last group of the grounds of appeal deal with the application of the provisions of Act 2. In view of the conclusion I have come to as regards ownership of the land in dispute, it seems to me that Act 2 is really inapplicable in this case. The first defendant on whose authority the second defendant developed the land has a valid title from the proper owner-grantor and it is therefore not necessary to give him any statutory title. It was, however, the decision of the trial court that he

Page 1284

did not build in good faith. Citing the case of Dove v. Wuta-Ofei [1966] G.L.R. 299, S.C. the learned trial judge said of Act 2:

“The power under the Act should not be exercised if the person erecting the building though not guilty of bad faith can be held on the evidence to have been reckless. I cannot think of an apter word to describe the conduct of the second defendant. He knows that the origin of his title was the Nii We family. He also knows that the plaintiff was a member of this family and was claiming an earlier grant from his own family. Yet the second defendant said he could not suspend building operations and await the decision of the court because as he put it “I am confident that the person who is claiming the land is not the owner.’ If that is not recklessness, I do not know what else is. I think the second defendant did not erect the building in good faith and is disentitled to the remedy provided by Act 2 of 1960.”

It seems to me, with great respect, that the charge of recklessness is not made out and cannot be supported by the uncontroverted evidence before the court. In Dove v. Wuta-Ofei (supra) at p. 315 the learned trial judge when delivering his opinion, had apparently accepted and applied counsel’s definition that recklessness “denotes an attitude of mental indifference to obvious risks.” In this case it was said that “the defendant knows that the origin of his title in the Nii We family” and that “he also knows that the plaintiff was a member of that family and was claiming an earlier grant from his own family.”

This knowledge apparently imputed to the second defendant is, with the greatest respect, not supported by any evidence whatsoever. At the time the action proceeded to trial, and before the trial the first defendant knew, as well as the second defendant, and his evidence and pleadings support him that the origin of his title is the Osu stool not the Nii We family stool. He knew at the commencement of this case that the Nii We family stool had no title of any sort in the disputed land and the second defendant shared this view and Akwei v. Awuletey (supra) supported his view. A judge of the High Court, Asafu-Adjaye J., when exposed to the facts before trial when the plaintiff applied for an injunction, confirmed these views and had no difficulty at all in dismissing the application and refusing to stop the second defendant from continuing with his building operation as the plaintiff was unable to show prima facie title to the disputed land. When the plaintiff was put to court on causing damage to the defendants’ property the second defendant suspended his building operation to await the result of the court case and when the application for injunction was pending before the court he also refrained from further building operation. If in the circumstances he continued the building

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and maintained: “I am confident that the person who is claiming the land is not the owner,” will he not in effect be repeating what the Supreme Court had categorically stated in Akwei v. Awuletey (supra)? Assuming the first defendant’s title is defective, in my view, to accuse the second defendant in the circumstances of recklessness in order to deny him the benefit of the Act would, with respect, not be right. In the circumstances of this case what is the risk to which he has shown indifference? I think none!

In any case, it is my view that reckless conduct has nothing to do with the operation of Act 2. The relevant matter to consider at all times is “good faith.” Under the relevant provision contained in section 2 (1) (b) of Act 2, statutory title in disputed land is given, inter alia, where “the purchaser or a person claiming through him in good faith erected a building on the land.” In Abdilmasih v. Amarh [1972] 2 G.L.R. 414 at p. 426 this way of looking at the problem was rightly approved by the Court of Appeal when Apaloo J.S.C. (as he then was) said: “A court to be able to grant statutory title under Act 2 of 1960 must be satisfied that the defendant erected the building in good faith. “In Dove v. Wuta-Ofei (supra) the leading authority on the matter, “good faith” in the section was interpreted rightly, in my view, as meaning that the purchaser erected the building in honest and reasonable belief that he had title.” As Apaloo J.S.C. (as he then was) succinctly put it at p. 314:

“As the declared policy of the Act is to confer valid title on purchasers who build on land on the faith of title subsequently adjudged to be invalid, it seems to me only natural, that the Act should require that the purchaser, to avail himself of the statutory protection, should have acted honestly and reasonably at the date of the original acquisition of the land, and having so acted should have believed in the validity of his title.” (The emphasis is mine.)

If subjected to this test, the first defendant, if his title is defective, would have satisfied the statutory provisions and he or the second defendant claiming through him would have been entitled to the protection of the Act.

As I have already pointed out in view of the conclusions I have arrived at, a decision on Act 2 is actually not necessary. Furthermore, I do not think it is really necessary in this appeal to consider whether it is right or wrong for the trial judge suo motu to apply the provision of the Act if the parties neither pleaded it nor raised it in the course of the trial and in their addresses. I would leave that matter for the proper occasion when a decision on it would be a relevant and determining consideration in the appropriate case.

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I am aware of course that in the first reported cases decided by the High Court on the applicability of Act 2, notably Lartey v. Hausa [1961] G.L.R. 773 at p. 776 and Akwei v. Agyepong [1962] 1 G.L.R. 277 at p. 278 Ollennu J. (as he then was) had no difficulty in suo motu considering the provisions of the Act as the trial judge and the majority did in this case. I have not lost sight of the fact that in Abdilmasih v. Armah (supra) at p. 426 it was suggested as a modification to the suo motu invocation of the Act that “where the Act was not in fact pleaded,” then before the judge on his own considers its applicability, he “should either invite the defendant to plead the Act or at least draw the plaintiff’s attention to its provisions.”
I do not, with respect, think there ought to be any hard and fast rule in this matter. Whether the court can suo motu apply the provisions or follow the Abdilmasih guideline would depend on the particular facts led in evidence at the trial. I would not wish to clog the future operation of the Act by the formulation of any a priori guidelines. I should think, speaking for myself, that in an appropriate case the judge suo motu may very well be perfectly entitled to apply the provisions and in other cases it may be necessary to follow the Abdilmasih guidelines. It all depends on the available facts!
It follows from my views and the reason I have advanced on all the grounds of appeal which I have canvassed in this appeal that I would also dismiss the appeal with costs and accordingly affirm the judgment of the Court of Appeal.

ADADE J.S.C. It is with much regret that I dissent from the majority decision that the appeal should be dismissed. I would like first to deal with a matter of procedure which has been raised in limine by the defendants, i.e. the respondents to this appeal. It was first raised in the Court of Appeal; and it has been raised here too.

Counsel for the defendants says, in substance, that there is no proper appeal before this court, because the application filed in the Court of Appeal asking leave to appeal to this court was filed out of time, and therefore the leave was improperly granted. The ruling on the application appears in the record of proceedings at pp. 103-112 and is reported: see Hammond v. Odoi [1972] 2 G.L.R. 459, C.A.

The judgment of the Court of Appeal, which is on appeal to this court, was given on 21 December 1970: see Odoi v. Hammond [1971] 1 G.L.R. 375, C.A. At that time the position of the law (under the Constitution, 1969, art. 105 (1) (c) was such that the plaintiff could only appeal to the Supreme Court: “with the leave of the Court of Appeal . . . where the Court of Appeal [was] satisfied that the case [involved] a substantial question of law or [was] of public

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importance.” The plaintiff filed his application for leave to appeal on 6 April 1971, namely some four months after the decision.

Article 121 of the Constitution, 1969, had set up a rules of court committee to make rules, by constitutional instrument “for regulating the practice and procedure of all courts in Ghana.” By December 1970 the rules of court committee had not promulgated any rules to regulate the practice in the Supreme Court, including rules governing the procedure by which appeals were to be made to the Supreme Court. And the Courts Act, 1971 (Act 372), had not been passed either, it received the Presidential assent on 22 September 1971. Therefore although judgment was given against him on 21 December 1970, the plaintiff had no rules to guide him as to how he could exercise the right of appeal granted him by article 105 (1) (c) of the Constitution, 1969. He waited.

In March 1971 the Supreme Court Rules, 1970 (CI 13), were promulgated. By rule 7 (1), an application for leave to appeal was to be made within fourteen days of the decision sought to be appealed against. CI 13 expressed itself as coming into force on 25 March 1971.

Notice that the date from which to compute the times for applying for leave under rule 7 (1), or for appealing under rule 8 (2) (a), are calculable, not from the commencement date of the rules, but from the dates of the decisions and judgments themselves.

When bringing out CI 13, however, the rules of court committee must have realised that there were a number of decided cases which had been waiting for the rules before being processed for appeal. It was necessary to make special rules for those cases, to enable would-be appellants to appeal, otherwise, having regard to the time limits, it would forever be impossible to comply with rule 7 or 8. Accordingly, rule 72 was added, providing that:
“72. (1) Subject to the provisions of subsection (2) of section 13 of Part IV of the First Schedule to the Constitution, and notwithstanding any other provisions of these Rules, the right of any person to bring an action in, or to appeal to, the Court in any cause or matter, civil or criminal, conferred by the Constitution or by any other law which has accrued at any time,
(a) after the coming into force of the Constitution; and
(b) before the coming into force of these Rules, shall be deemed, for the purposes of these Rules, to have accrued on the coming into force of these Rules.

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(2) Pursuant to the provisions of the immediately preceding sub-rule the time within any such person may bring an action in, or to appeal to, the Court shall be calculated from the date of the coming into force of these Rules.” (The emphasis is mine.)

The instant case was decided after the Constitution came into force, but before the rules were made. Therefore in order to determine whether the application for leave was filed timeously or not, it is necessary to fix with certainty the date on which the rules came into force. The rules themselves say they came into force on 25 March 1971, in which case the 6 April 1971 would be well within the limitation period of fourteen days from that date.

But Mr. Peter Adjetey, counsel for the defendants, says that the 25 March 1971 inserted in CI 13 cannot be right. He says that by article 126(6) of the Constitution, 1969:
“126. (6) Any Orders, Rules or Regulations made by any person or authority pursuant to a power conferred in that behalf by this Constitution or any other law,
(a) shall be laid before the National Assembly;
(b) shall be published in the Gazette on the day they are so laid before the National Assembly; and
(c) shall come into force at the expiration of a period of twenty-one days of being so laid unless the National Assembly, before the expiration of the said period of twenty-one days, annuls, any such Orders, Rules or Regulations...” (The emphasis is mine.)

CI 13 was proved to have been laid before Parliament and published in the Gazette “on Tuesday, 23 February 1971.” Therefore, counsel, contends, according to article 126 (6) (c) it must have come into force 21 days from 23 February 1971, which was 16 March 1971, and not 25 March 1971. Fourteen days from 16 March 1971 would be 30 March 1971. So that, the application of 6 April 1971 was a whole week out of time.

The Court of Appeal (Prempeh J.S.C., Jiagge and Sowah JJ.A.) as reported in Hammond v. Odoi (supra), agreed with this interpretation of article 126 (6) (c). Prempeh J.S.C. delivering the ruling of the court observed at p. 466:

“The provisions of article 126 (6) are mandatory, and in the absence of any other evidence properly brought before us to show why the commencing date should be 25 March 1971 instead of 16 March 1971, it is my view that this submission of

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learned counsel for the respondents was not only invulnerable, but also unanswerable. . .”

He then concluded at p. 467: “It follows therefore from this conclusion that the instant application having been filed on 6 April 1971, could not have been properly before the court. “The court, however, felt that the application was, nonetheless, saved by section 114 (4) of the Courts Act, 1971 (Act 372), which provided that:

“114. (4) . . . an appeal to the Supreme Court from a decision of the Court of Appeal... where the decision is a final one may,

(a) in the case of a decision given before the commencement of the Supreme Court Rules, 1970 (CI 13) or,
(b) in the case of a decision to which clause (1) (a) of article 105 of the Constitution applies,
be brought at any time before the expiration of a period of two months from the commencement of this Act.”

Having regard to my interpretation of article 126 (6) (c) which follows, it is unnecessary to consider the applicability or otherwise of section 114 (4) of Act 372. The Court of Appeal had said, as quoted above, that the rules, laid before Parliament, on 23 February 1971 came into force on 16 March 1971. I am afraid I do not share this interpretation of article 126 (6) (c).

The article, of course, talks of “21 days of [the Rules] being so laid” before Parliament. But what is the meaning of this phrase? The Court of Appeal, agreeing with Mr. Peter Adjetey, interpreted this to mean a mere arithmetic addition of 21 days to the date on which the rules were laid before Parliament, i.e. 23 February 1971 plus 21 days.

It seems clear to me that the purpose of this article is to ensure that Parliament as a body will have at least 21 days within which to study and scrutinise any draft order, rules or regulations, in order to make up its mind whether to allow them to pass or to annul them. As the opportunity is intended for Parliament as a body it is safe to assume that the 21 days are meant to be 21 days, i.e. 21 days on which Parliament shall be sitting, not just any 21 days whether Parliament is sitting or on short recess. This interpretation would exclude non-sitting, days, usually Saturdays, Sunday and public holidays. The Constitution, 1979, puts the matter beyond doubt when, re-enacting the same article 126 (6) in its article 4 (7), it introduced the word “sitting” between “21” and “days,” as if to say: when we spoke of “21 days” in 1969 we meant 21 sitting days.”

It should be noted that papers “laid before Parliament” are “laid on the [Parliamentary] table” for Parliament to see. So how does

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Parliament see a paper laid on its table if Parliament is not present, i.e. sitting? And if it is to see this paper for 21 days, then surely those days must be sitting days. Besides, supposing a member of Parliament wants to raise an objection to certain rules, with a view to inviting Parliament to annul them, how does he do this if Parliament is not sitting? I am convinced, as indicated earlier, that the 21 days in article 126 (6) (c) are meant to be 21 sitting days. Any other interpretation will lead to absurdity, for, then, it will be possible to lay rules on the table on the last day of term before, say, the Christmas recess, and they will come into force during the recess. Such an absurd situation could not have been contemplated by the constitutional fathers.

If the Court of Appeal had interpreted the phrase correctly, it would have had no difficulty at all in rejecting the objection raised by counsel for the defendants. CI 13 was undisputably laid before Parliament on Tuesday, 23 February 1971. I have checked from the Parliamentary calendar of that period, and have discovered that Parliament adjourned for the Christmas recess on 18 December 1970, and re-assembled on Tuesday, 23 February 1971, which was the first sitting day in the new year. There was no sitting on 24 February 1971; but there were on 25 and 26 February. Thereafter Parliament sat throughout March, except on Saturdays and Sundays. Checked the way I have done, I have discovered that the 21 sitting days expired on Wednesday, 24 March 1971. These are matters of public record which, in my view, the court can take judicial notice of.

Incidentally, I have found, in this regard, that the calendar for 1971 agrees in every material particular with that for 1982: the 23 February 1971 was a Tuesday, so was the 23 February 1982. In both 1971 and 1982 February had 28 days; and in both years the 25 March was a Wednesday.

Article 126 (6) (c) required the rules to come into force at the expiration of a period of 21 days of their being laid before Parliament. As the 21 days expired at mid-night on 24 March 1971 the rules came into force the day next after the 24 March 1971, i.e. 25 March 1971. Hence the date 25 March 1971 inserted at the back of CI 13 is not an error, as counsel contended. It is correct.

It stands to reason that the application for leave filed on 6 April 1971 was filed within time under rule 7 (1) of CI 13, and there was no need as the Court of Appeal did, to resort to section 114 (4) of Act 372 to validate it.

The land in dispute is part of Osu stool lands. It is within the Ashanti Blohum quarter of Osu. The Nii We family is a group within the Ashanti Blohum quarter, and is naturally subservient to the Osu stool through the Mankralo of Ashanti Blohum. The plaintiff and his brothers are members of the Nii We family.

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The evidence shows that the title portion claimed by the plaintiffs is part of a larger area settled on by the Nii We family some years back, and which was controlled by the said family and had come to be regarded by them as their property. The head of family and his elders had been making grants of portions of the land to strangers and subjects alike ad lib, without any question or interference of any kind either from the Mankralo of Ashanti Blohum quarter, or from the Osu stool itself. As the plaintiff put it: “Formerly our family controlled the land exclusively, but since 1960 it had been adjudged to belong to the Osu stool.” To this, the first defendant says: “It is my understanding that this land was occupied by members of the Nii We family. I am not a member of Nii We family, but I come from Ashanti Blohum which is the quarter from which the Nii We family hail.”

The other essential facts of this case were either admitted by the parties, or were otherwise clearly established by evidence and can be said to be beyond controversy. These may be listed as follows:

(i)In November 1949 the plaintiff and his brothers obtained a grant of piece of the land from the Nii We family. It was a grant according to custom. No document was executed in respect of this grant.
(ii)The plaintiff identified the land by fixing four pillars at the four corners.
(iii)In 1956 a portion of the land already demarcated for the plaintiff, about one third of it, was given by the same Nii We family to the first defendant by way of gift. The grant was also by custom. A document was executed in favour of the first defendant (exhibit D).
(iv)The first defendant too fixed four corner pillars to identify his land.
(v)In 1960 Akwei v. Awuletey (supra) was decided by the Supreme Court pronouncing judgment for the Osu stool, and reversing the judgment in the High Court (Ollennu J., as he then was), for the defendant and co-defendant in that case.
(vi)In 1962 the first defendant obtained from the Osu stool an indorsement to exhibit D, confirming his grant in 1956 by the Nii We family. The document (exhibit 1) was registered.
(vii)In 1964 the plaintiff got the Osu stool to sign a document (exhibit E) to confirm the grant of 1949. This document was not registered.
(viii)In February 1965 the second defendant, a brother of the first defendant, began to clear the land preparatory to putting up a building. The plaintiff and his brothers challenged his title.

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(xi)Failing a settlement, the plaintiff, on 8 March 1965 commenced action in the High Court, Accra, for a declaration of title to the portion claimed by the defendant; damages for trespass and perpetual injunction.

The High Court, presided over by Apaloo J.A. (as he then was) found for the plaintiff. On appeal, as reported in Odoi v. Hammond (supra), the Court of Appeal by a majority of two to one (Azu Crabbe and Sowah JJ.A.; Siriboe J.A. dissenting) reversed that finding and pronounced for the defendants, dismissing the plaintiff’s action. From that decision the plaintiff has appealed to this court.

The trial judge reasoned that the customary grant to the plaintiff in 1949 preceded that to the first defendant in 1956, and that in those circumstances the grant to the first defendant “was ineffective and passed no title to him.”

He said the confirmatory documents of 1962 to the first defendant (exhibit 1), and of 1964 to the plaintiff (exhibit E) which purported to confirm the grant retrospectively to the dates of the original customary grants, i.e. 1956 and 1949, were ineffectual, and therefore left the parties where they began, i.e. the plaintiff’s earlier customary grant defeated the first defendant’s later customary grant by the same Nii We family.

This conclusion was rejected by the Court of Appeal, particularly by Azu Crabbe J.A. (as he then was) To him Akwei v. Awuletey (supra) had decided in 1960 that the Maamobi-Kotobabi-Dzorwulu lands belong to the Osu stool, and that “the Osu Mantse and his elders are the only proper authority to make grants of Kotobabi lands.” Therefore, he went on at p. 390, C.A.:

“The purported customary grant of a portion of the land by the Nii We family of Ashanti Blohum quarter to the plaintiff in this case was therefore null and void and of no effect, and ... the Osu stool cannot subsequently confirm, orally or by deed, a void grant: Ex nihilo nihil fit.” He concluded.

The learned judge, Azu Crabbe J.A.’s (as he then was) conclusion is a complete non sequitur, in the light of his own pronouncements on the factual situation and of the customary law. At p. 394 of the report the learned Judge says: “The parties are all subjects of the Osu stool, and it is not denied that the plaintiff was the first to take possession.” And at p. 395 he expresses approval of the statement of customary law made by Ollennu J. (as he then was) in Seraphim v. Amua-Sekyi [1962] 1 G.L.R. 328 at pp. 334-335, viz:

“A stool has no right to alienate stool land in the possession of a subject or grantee of the stool or anyone who derives title from a

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subject or grantee. Any such grant made by a stool without the consent and concurrence of the subject in such possession is a nullity . . . Therefore although the stool is the owner of the absolute estate in the land, yet if it is shown that subjects of the stool were in occupation of the land at the date when the stool made the conveyance to the plaintiff, those conveyances would be null and void ab initio. The possession by the subject may be by implied grant, i.e. by his entry upon the land as agricultural or rural land and farming it, or it may be by actual grant; it does not matter which.”

Of this statement of the customary law, the learned Azu Crabbe J.A., (as he then was) says at the same page: “I have no doubt that these passages from the judgment of Ollennu J. (as he then was) express the correct principles of the customary law.”

If this is so, and I have no doubt it is, then the Court of Appeal had no business tinkering with the decision of the trial judge since it is beyond doubt that in 1956 when the Nii We family or in 1962 when the Osu stool, purported to grant the land to the first defendant, the plaintiff, a subject of the stool, was already in possession by virtue of the customary grant of 1949. And Azu Crabbe J.A. (as he then was) concedes, as already mentioned, that “the plaintiff was the first to take possession.” But to find some justification for his refusal to confirm the trial court’s decision, the learned Azu Crabbe J.A. (as he then was) appears to opine that the plaintiff failed to establish the identity of the land in dispute. Thus he said at p. 395: “But the onus is on the person in possession to prove that it is the identical land which has again been granted by the stool to the other subject.” And after reviewing, rather unconvincingly, the trial judge on this issue he concluded at the same page [“The trial judge] should have held that the plaintiff had failed to establish that the land occupied by the defendants formed part of the land in his possession.”

With the greatest respect, the learned Azu Crabbe J.A.’s appraisal of the evidence on this score (of identity of parcels) is tantamount to giving the dog a bad name to justify its being hanged. There was, throughout this trial, no dispute whatever about the identity of the land. The defendants never put that in issue; they could not possibly have.

The plaintiff’s caretaker, Ayi Faafo, the third plaintiff witness, sees some activity going on, on land of which he had been caretaker for the plaintiff for a number of years. He queries the plaintiff for putting a portion of the land to use without informing him. The plaintiff denies knowledge of whatever activity is going on. He visits the land, satisfies himself it is his land, reports the interference to his head chief, plants a customary warning white flag on the land; the

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defendants approach the plaintiff in his house to attempt an amicable settlement of the issue; the settlement fails and action commences.

Meanwhile the plaintiff forcibly removes or destroys the defendant’s shed and water storage tank on the land; he, according to the defendants, persistently goes on the land to harass the defendants’ workmen; an application for injunction is filed by the plaintiff. The defendants oppose, not on the ground of identity of parcels, but of defect in the title of the plaintiff’s grantor.

In his affidavit filed on 17 March 1965 to oppose the plaintiff’s application for interim injunction the first defendant states in his defence:

“3. That the plaintiff’s said grantors, the said Nii We family of Ashanti Blohum quarter of Christiansborg, have no title to the land the subject matter of the dispute...
4. That the Dzorwulu-Maamobi-Kotobabi lands of which the land the subject matter of this suit forms part was adjudged by the Ghana Supreme Court to belong to the Osu stool and not the Ashanti Blohum quarter from which the Nii We family claims title...
8. That after the above-cited judgment I accordingly obtained a valid grant of the said land from the Osu stool, the declared owners of the land, the subject matter of the dispute.” (The emphasis is mine.)

And the second defendant states in evidence:

“I know the land in dispute. In 1963 the first defendant transferred the land in dispute to me. Since the transfer I have put up a single storey building on the plot. I know the plaintiff. In February 1965, the plaintiff came on the land and disturbed my possession.”
Where then, one may ask, is the dispute as to the identity of the land? In spite of all the evidence and other material on record the Court of Appeal per Azu Crabbe J.A. (as he then was) was able to say that the identity of the land was in dispute and that the plaintiff failed to establish this identity, all because the learned trial judge had said that there was nothing “to discredit about either story,” viz. the plaintiff’s story that he pillared the plot on acquisition, and the first defendant’s story that he put corner pillars to demarcate the plot. Both could have done this, except that the plaintiff went further to say that when he met the second defendant on the land to assert his ownership he noticed that his “pillars had been removed and in its place [he] saw new pillars with no initials.” This was confirmed by his brother, the second plaintiff witness, when he said: “In 1964 or 1965 I discovered that someone had removed our pillars but we could not know who.”

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As the trial judge found, the plaintiff’s story of the acquisition and identity of the land was:

“Clinched by the evidence of Ayi Faafo who swore that he took part in the demarcation and thereafter looked after the land for the plaintiff. Indeed it was as a result of a tip given by him that the defendants’ entry upon the land became known to the plaintiff and his brother.”

As I have stated earlier the defendants themselves never at any time put the identity of the land in issue; and even if it can remotely be said that they did, the evidence was too overwhelming to defeat them on that score. I am of the opinion that given the evidence; given the facts admitted or found or both by the trial judge; given the customary practices and the customary law as enunciated in a whole range of cases, and as re-stated by Ollennu J. (as he then was) in Seraphim v. Amua-Sekyi (supra) and conceded and accepted by the Court of Appeal as a statement of the “correct principles of the customary law”; and given that the identity of the land was never in dispute, and even if it was, the evidence was all one way that the portion given to the first defendant is part of the larger area granted to the plaintiff;, given all this, I am forced to the conclusion that as between the plaintiff and the first defendant, the plaintiff acquired a better title at customary law than the first defendant. Indeed, the grant to the first defendant was, at customary law, void ab initio.

This brings me to the gloss attracted by the case following the Supreme Court decision in Akwei v. Awuletey [1960] G.L.R. 231. It arises from the acquisition by the parties of “documents of title” from the Osu stool.

Before proceeding further, therefore, there is need for an appreciation of Akwei v. Awuletey (supra) not so much for what it decided, as for what, in my humble view, it did not decide. The case assumed a central role in these proceedings. It determined the course of conduct of the parties in relation to the land itself; it was the basis of the defendants’ case; and was the pivot around which the majority decision of the Court of Appeal was woven.

For instance we are told that almost immediately after that decision, the Osu Mantse caused notices to issue inviting all persons who had taken grants from any source, other than the Osu stool, to report, with details of their grants, for confirmation by the Osu stool. This could only have been done on the basis that Akwei v. Awuletey (supra) had adjudged the Osu stool the sole competent grantor.

According to Azu Crabbe J.A. (as he then was) in Odoi v. Hammond (supra) at p. 390, Akwei v. Awuletey:

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“. . . has established that the Osu Mantse and his elders are the only proper authority to make a grant of the Kotobabi land. The purported customary grant of a portion of the land by the Nii We family of Ashanti Blohum quarter to the plaintiff in this case was therefore null and void and of no effect . . .” (The emphasis is mine.)

And Sowah J.A. (as he then was) supporting Azu Crabbe J.A. (as he then was), observed at p. 399 that the Supreme Court held in the Akwei v. Awuletey (supra) case that:

“Title to Osu rural lands generally, and more particularly the area then in dispute which is a portion of the land now in dispute, was vested in the Osu stool; that only the Osu stool with the consent and concurrence of the elders of the main quarters of Osu could make grants of land designated Osu rural lands.” (The emphasis is mine.)

Siriboe J.S.C. who delivered the dissenting judgment, did not make an independent appreciation of Akwei v. Awuletey (supra). He based his decision on the plaintiff’s occupation and possession of the land in dispute.

So, what did Akwei v. Awuletey (supra) decide? A summary of the facts, as reproached in the headnote at p. 231 becomes relevant.

“The plaintiff, a subject of Osu brought this action for declaration of title to a piece of land forming part of a larger area known as the `Maamobi-Kotobabi-Dzorwulu’ lands which again were part of Osu rural lands. The plaintiff relied on a deed of gift dated 16th August, 1952, executed by the acting Osu Mantse, one Nii Okwei Omaboe. In his evidence, although he had not pleaded it, he claimed that this document was confirmatory of a customary grant made to him in 1948 by the then Osu Mantse. The defendant also claimed ownership of the land by virtue of a customary grant made in 1954 by the Osu Mankralo, to whose stool, he said, the land belonged. The Osu Mantse and the Osu Mankralo were joined as co-plaintiff and co-defendant respectively. The Osu Mantse claimed a declaration that the land in dispute was part of the Osu stool lands and that the plaintiff by virtue of the deed of gift had acquired a good title. The Osu Mankralo in his application for joinder, claimed that the land in dispute belonged to the Osu Mankralo stool and in his statement of defence averred that the `Maamobi-Kotobabi-Dzorwulu’ lands had been settled upon exclusively by the people of the Ashanti Blohum quarter of Osu (the quarter under the Osu Mankralo Stool) and that any grant of a piece of those lands required his consent and that of his elders. The Osu

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Mantse, in reply, pleaded that the fact of such settlement did not give to the people of the Ashanti Blohum quarter either title to the land or the right of alienation. During the course of the trial in the Land Court, Accra, the plaintiff withdrew his claim. The co-plaintiff continued the action and judgment was at the close of the case given in favour of the defendant and co-defendant. The co-plaintiff appealed to the Supreme Court.

Held: (1) the co-plaintiff was entitled to continue proceedings after the plaintiff had discontinued his action. If he had stood by and allowed the defendant and co-defendant to obtain judgment, the Osu stool would have been estopped from reopening the issue as to title of ownership of the land, which was involved in the case. Marbell v. Akwei 14 W.A.C.A. 143 applied.
(2) the Osu Mantse is the proper person entitled to sue and be sued in respect of lands title to which is vested in the Osu stool.
(3) the Osu Mantse is the proper authority to grant Osu stool lands, subject to the qualification that he cannot make a valid grant of quarter lands and outskirt lands attached to a quarter without prior consultation with the head and elders of the quarter concerned.
(4) the land in dispute was neither quarter land nor outskirt land adjacent or contiguous to the Ashanti Blohum quarter but Osu stool rural land which the Osu Mantse and his elders including the quarter headmen could grant.”

Holding (4) is a reproduction, word for word, of the last but one paragraph of the judgment and appears at p. 241 of the report.

Remember that the plaintiff in that case had obtained his grant from the Osu Mantse. The defendant had obtained the same land from the Osu Mankralo, under whose stool is the Ashanti Blohum quarter. The Mankralo’s plea was that the land was attached to his stool and that any grant of a piece of those lands required his consent and that of his elders.

If indeed, the Osu stool granted the land without the consent of the Ashanti Blohum quarter headman and his elders, as appears to have been the case, then in view of holding (4), I find it rather incongruous, that the Supreme Court (Korsah C.J., Sarkodee-Addo and Akiwumi JJ.S.C.) reversed the judgment of the High Court (Ollennu J., as he then was) and found for the Osu stool.

In any case, considering that with the joinder of the Osu stool as co-plaintiff, and the Mankralo as co-defendant, a larger area of land came to be at stake, the wording of holding (4) is significant: that the land is Osu rural land “which the Osu Mantse and his elders including the quarter headmen could grant.”
(The emphasis is mine.) In other

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words, the Osu Mantse, in appropriate circumstances, can also make valid grant of these rural lands. The implication is obvious, that there are other competent grantors in addition to, or apart from, the Osu Mantse. This is a far cry from Azu Crabbe J.A.’s assertion that the “Osu Mantse and his elders are the only proper authority to make grants of Kotobabi lands. “Or Sowah J.A.’s that “only the Osu stool [with the appropriate consents] could make grants of land designated Osu rural lands.”

With the greatest respect to their lordships, I do not read Akwei v. Awuletey (supra) as deciding that much. To hold otherwise and agree with their lordships will be to acquiesce in writing a new law on the customary relationship between a stool subject and vacant village or rural lands of the Osu stool. The subject no longer has the customary right (or is it a privilege?) to occupy and use such vacant stool land; the land must be expressly allocated to him, not even by his local headman or chief, but by the paramount stool itself.
There is no longer any such thing as an implied grant. In addition, the distinction between urban or quarter lands (sometimes called outskirt lands) on the one hand, and village or rural lands on the other hand, is, by this inadvertent interpretation abolished for all time. The two categories of land are now governed by the same customary law regime: they must be expressly granted by the paramount stool. I refuse to believe that such radical changes in the customary law ever, even remotely, entered the contemplation of the learned justices who decided Akwei v. Awuletey (supra). It will be wrong to force such an interpretation into their otherwise innocent and harmless ruling.

The body of the report in Akwei v. Awuletey (supra) makes the position even clearer. Interestingly enough the learned editor took the unusual step of prefacing the report with an extract from the judgment of Ollennu J. (as he then was) from which the appeal was taken to the Supreme Court, as if to say: “Read the two together or else...” And how justified he had been proved to be!
Ollennu J., (as he then was) had found, as reported at p. 232, inter alia, that:
“(g) . . . express grants of portions of the rural or village lands are made by the heads of the quarter acting with the concurrence of the village headman.
(h) It is not in accordance with custom that the Osu stool itself should make grants of either outskirt or village lands to a subject.”

He also found “the following specific facts” as reported at p. 233:
“(a) The Maamobi-Kotobabi-Dzorwulu lands are part of the Osu village or rural lands under the care and control of the head

Page 1299

of the Ashanti Blohum quarter namely, the Mankralo (co-defendant).
(b) The co-defendant, the Mankralo of Osu, head of the Ashanti Blohum quarter is the sole authority, acting with the consent of his principal elders, to make customary grants of portions of that land to Osu subjects...” (The emphasis is mine.)

By the finding in (b) Ollennu J. (as he then was) had put the matter in absolute terms, eliminating completely any participation by, or role for, the Osu Mantse.

It is this absolute nature of the finding which the Supreme Court, in my view, disagreed with; and remembering that the land in dispute in that action had been granted by the Osu Mantse, the Supreme Court’s finding in holding (4) can only be interpreted as intended to water down Ollennu J’s finding, by including the Osu paramount stool within the category of competent grantors, the Osu stool being the overlord of both the Mankralo stool and therefore of the Nii We family, and the land in question being admittedly Osu rural or village land. Hence the Supreme Court found that the Osu stool could also make valid grants of portions of this land, contrary to Ollennu J’s finding that the Mankralo of Osu is the sole authority to do this.

But this modification introduced by the Supreme Court left untouched Ollennu J’s specific finding in p. 232 that:
“(f) Subjects of the Stool may with express or implied permission of the head of the quarter occupy any portion of the [Osu] stool’s rural or village lands.”

The finding was not queried by the Supreme Court and stays valid. It is consistent with the evidence of custom given by the acting Osu Mantse, Nii Okwei Omaboe in the case. With respect to that evidence the Supreme Court said at p. 239 of the report:

“As it happened in this case the evidence of Nii Okwei Omaboe agrees materially with the Osu custom as to land tenure and the rights of the Osu Mantse and his elders including the quarter headmen to make grants.”

The evidence itself appears at p. 237 where, under cross-examination, Nii Okwei Omaboe said:

“Any subject of the Osu stool can without express grant occupy and build on any portion of the Osu land which is not outskirt land, not already occupied by another subject or grantee of the stool. But he cannot sell the portion he so occupies without the consent of the Osu stool . . . the Kotobabi-Maamobi-Dzorwulu lands are general stool lands, not outskirts lands . . .”

Page 1300

Hence the consent of the Osu stool becomes requisite only when the subject-occupier of rural land is selling the land, obviously to a stranger and possibly even to a subject. It is not so requisite when the subject is acquiring it from his village or quarter headmen. I do not doubt that this is the customary practice.

The justification for this practice is not hard to find. For it does appear strongly that unlike quarter and outskirt lands, these rural or village lands were until recently virtually unknown to the paramount stools. They seem to have become stool lands more by virtue of occupation by the stool subjects (with their village headmen) than anything else. The village headmen were, due to the exigencies of scraping a living, pushing out their frontiers, reducing vacant lands into their occupation. And because the headmen owed allegiance to paramount stools, and depended on them for protection, the acquisition of the headmen enured to the benefit of the paramount stools.

Hence in early days the stools had nothing to do with the management and disposal of the rural lands by the headmen. The stools took an interest in these matters in relatively recent times when, with increase in population, and economic activity, and therefore pressure on the lands, these lands acquired value. The evidence in this case, as in other cases, bear testimony to this.

Take for instance this evidence by Nii Noi Dowuona IV, the Osu Mantse, and the co-plaintiff in the Awuletey case (supra) at pp. 237-238:

“The Maamobi-Kotobabi area was a farming area for the servants of the Osu Mantsemei. Occupation of this area began before the Katamanso War about 1826. The servants of the Osu stool finally settled on the land, previously they used to go and farm and then come back home. When they finally settled on the land, the servants farmed it and reared sheep and other animals, for the service of the Osu Mantsemei and the Osu Stool...The head of each quarter is allowed to expand his quarter in certain directions, and to develop them. There is a limit to the privilege of the head of the quarter for the expansion, development and extension of the quarter. This applies to the old township. In the village of Maamobi and Kotobabi which we know to be village lands this limitation of extension and expansion does not strictly apply. In this village any subject of the Osu stool . . . is allowed free settlement anywhere in the village. The Osu stool and its elders, as the value of land has become very important, have now decided that they themselves will help in developing the place . . . The stool now grants portions in the usual way to stool subjects .

Page 1301

In the cyclostyled report of this decision in the July-December 1960 Cyclostyled Reports, we know that Nii Dowuona IV was granted permission to join the Awuletey case as co-plaintiff on 6 September 1957. Ollennu J,’s judgment was given on 18th March 1958. So that when Nii Dowuona IV, giving evidence obviously between September 1957 and March 1958, uses now (meaning in recent times) he will be understood to be referring to a period not very much earlier than say 1950-55, if not later.

Nii Dowuona IV’s evidence agrees in every respect with what the plaintiff says in this case at page 19 of the record of appeal:

“Nii We has a family stool which is under the mankralo who in turn is under the paramount stool. Formerly our family controlled the land exclusively, but since 1960 it had been adjudged to belong to the Osu stool.”

And at page 24 of the record of appeal, Nii Dowuona V, Osu Mantse and successor to Nii Dowuona IV says:

“The Nii We family formerly lived on the Kotobabi land and as such in former times they were the persons who made grants. It was after the appeal [in the Awuletey case] that government decided that that land should come under the Osu stool. Even before this the Osu Mantse had power because he looks after all these lands. The village lands were settled upon by Osu subjects who owe allegiance to the Osu Paramount Stool, and on this account the land becomes the subject of the Osu stool...” (The emphasis is mine.)

The inference is clear, that the lands became Osu lands because they were settled upon by Osu subjects; not the other way round. With the customary law thus clearly settled, the first question to ask is whether the land in question in this case had, in fact, been previously alienated to or otherwise occupied by a subject of the Osu stool, prior to the grant to the first defendant in 1956?

On the evidence, this question can be answered in only one way: Yes, prior to 1956, i.e. in 1949, the land had been alienated to the plaintiff, a subject of the Osu stool; and, as the trial judge found and Azu Crabbe J.A. (as he then was) agreed, the plaintiff had taken possession. In these circumstances, no valid alienation could be made by anybody whatsoever - the Osu stool included - after 1949 without the consent of the plaintiff. The land was no longer available for treating.

I find further support for this proposition, if support is needed, in Bruce v. Quarnor [1959] G.L.R. 292, supporting facts almost on all fours with those in this case. In Bruce v. Quarnor(supra) the plaintiff claimed a piece of land by virtue of a customary grant to him in about

Page 1302

1929. Subsequently, in 1956, he obtained from the then occupant of the James Town stool, Nii Kofi Akrashie II, a deed of conveyance to confirm the said grant. The defendant, Quarnor, claimed the same land by reason of a grant made to him by an uncle, and then by a deed of gift executed in his favour in 1954 by the same Nii Kofi Akrashie II, confirming the gift. The defendant contended at the trial that his deed being prior in time to the plaintiff’s afforded him a better title to the land. It was held (as stated in the headnote) at p. 293:

“(2) conveyance of land made in accordance with customary law is effective as from the moment it is made. A deed subsequently executed by the grantor for the grantee may add to, but it cannot take from, the effect of the grant already made by customary law;
(3) the subject of a stool is entitled by customary law to occupy any vacant portion of the stool’s land, either upon actual or implied grant. Plaintiff was farming the land prior to 1923, and his possession and occupation of the land as a subject of the stool constituted good title, whether or not it was in virtue of an actual grant. Such title would take precedence over any grant which the stool might purport to make subsequently to another, for by customary law a stool has no right to grant land which is in the occupation of anyone (subject or stranger) without the consent of the person in occupation;
(4) once land has been granted, it cannot be taken away from the grantee, and another piece given him in substitution, without his consent. A subsequent purported grantee’s entry on the land would be a trespass.” (The emphasis is mine.)

At page 297 of the report appears the following passage:

“The most important point is that both the plaintiff and the first defendant rely principally upon a grant made in accordance with customary law. They used the deeds only as documentary evidence of the grant already completed under customary law . . .”

Conveyance of land made in accordance with customary law is effective as from the moment it is made. A deed subsequently executed by the grantor for the grantee may add to, but it cannot take from, the effect of the grant. Thus, a stool can by deed convey to a person the absolute ownership in the land which it originally granted to that person by customary law, and thereby exempt the grantee from the performance of customary services which might normally have been due from the grantee to the

Page 1303

stool; but such a deed cannot operate to revoke the grant made by custom.”

And at page 298 the court again said:

“The defence put up by the second and third defendants is simply that they occupied the land as grantees thereof from the James Town Stool. This defence cannot avail them so long as that portion of the land is not vacant stool land, but land already granted to the plaintiff, and in his possession and occupation.”

See also the case of Osu Mantse (Claimants); In re Public Lands (Leasehold) Ordinance [1959] G.L.R. 163 at p. 166 where it is stated:

“. . . the subject [of a stool] has a right to occupy any vacant portion of the stool land. The grant may be express or implied. Occupation of stool land by the subject (whether an individual, or the head of a family with members of the family, or the head of a recognised section of the community with members of that section or community) is presumed by custom to be upon a grant of that land from the Stool to the individual, family or section in such occupation.”

In these circumstances the decision in Akwei v. Awuletey (supra), cannot avail the defendants. It could only have been of help if it had been established in this case that the plaintiffs are not subjects of the Osu stool. But given that they are Osu stool subjects, and that the land is Osu stool rural or village land, the occupation and possession by the plaintiff whether by express or implied grant, it does not matter which, will avail against the whole world including the Osu stool itself.

What then is the status of the deeds of conveyance obtained by the defendant in 1956 and the plaintiff in 1964, including the fact that the defendant registered his document whilst the plaintiff did not? As I have earlier indicated, Akwei v. Awuletey did not put the Osu stool in any position different from what it enjoyed at customary law. In my view the Osu stool was wrong, relying on Akwei v. Awuletey to require subject-occupiers to obtain conveyances from the stool in respect of land already occupied by them. Even so, the so-called conveyances could only add to, not take away from, the titles already acquired by the subject-occupiers at customary law, which titles were effective from the date of the customary grants, not from the date of the conveyances. The trial judge, in my respectful view, was right when he said the document “[left] the parties where they began.” The documents effected no change in the relative positions of the parties.
In further support of this proposition I may also refer to a dictum in Aryee v. Adofoley (1951) 13 W.A.C.A. 161 at p. 162:

Page 1304

“The first question to be considered, then, is whether there had, in fact, been a previous alienation. As to this, the conveyance of 12th December, 1947, to the defendant (exhibit “B”) is admittedly subsequent to the conveyance to the plaintiff (exhibit “A”) which was made on 12th November, 1947. The Chief Justice, however, held that a prior oral grant had been made to the defendant and that under native law and custom it is the oral grant which is decisive. That is a correct statement of the law.” (The emphasis is mine.)

So that where a prior oral customary grant can be established, no amount of subsequent conveyances, registered or not, can defeat the customary title. And in this case the prior oral customary grant to the plaintiff was more than sufficiently established. Even if it were held to be otherwise, the admittedly prior possession of the land by the plaintiff, a subject of the stool, is enough to defeat any subsequent conveyance: As was stated by Ollennu J. (as he then was) in Seraphim v. Amua-Sekyi (supra) at p. 335:

“The possession by the subject may be by implied grant, i.e. by his entry upon the land as agricultural or rural land and farming it, or it may be by actual grant; it does not matter which.”

It follows that the documents of title did not advance the case of either party one jot. From this standpoint they were valueless.

In the nature of things, it is unnecessary to examine exhibit 1 critically and pronounce upon its genuineness, in view of the plaintiff’s insinuation that there is something unwholesome about exhibit 1. See, for instance, paragraph 8 of the plaintiff’s reply to the defendants’ statement of defence, where the plaintiff contends: “... that the indorsement on the first defendant’s copy of the deed of gift [exhibit 1] is not valid and not binding on the plaintiff and that the said indorsement is not kept in the Deeds Registry.”

It is somewhat baffling that although exhibit D and exhibit 1 purport to be photostat copies of the same document in the Lands Department and photocopied by the same department, exhibit 1 copied on 20th November, 1961 should have “cancellations” which do not appear on exhibit D copied four years later on 27th February, 1965. The result is that at page 131 of the record we have three indorsements signed by a “G. Higginsen,” all of which indorsements are missing from exhibit 1 at page 136. Why did the later copy exhibit D, not show the same cancellations as the earlier copy exhibit 1? Being of the opinion that exhibit 1 is valueless anyway on other grounds, I do not need to give myself the extra task of closely appraising exhibit 1.

Page 1305

This brings me to a point of pleading which took so much of the Court of Appeal’s valuable time. At the hearing of the appeal (see Odoi v. Hammond [1971] 1 G.L.R, 375, C.A.) the Court of Appeal, made great play with what it described as a departure in the pleadings of the plaintiff. This arose from the fact that, according to Azu Crabbe and Sowah JJ.A. (as they then were), the plaintiff’s reply to the defendant’s statement of defence raised a new claim because reading the opinions of Azu Crabbe and Sowah JJ.A. (as they then were) there is some confusion as to whether their lordships’ quarrel with the reply was that it raised a new cause of action, or that it barred additional grounds in support of the same cause of action. For while Azu Crabbe J.A. (as he then was) at p. 385, C.A. said that the reply set up “a case completely inconsistent with [the plaintiff’s] former pleadings,” Sowah J.A. (as he then was) at p. 399 said, “An examination of the pleadings and the issues, however evinces a situation ... in which the learned trial judge ignored the issues before him and decided the case on entirely different grounds.” (The emphasis is mine.)

Whatever it is, I do not share the view of their lordships that the reply constituted a departure. It did not set up a new claim, inconsistent with the plaintiff’s original claim. The plaintiff had pleaded in paragraph 1 of the statement of claim that he and his brothers belong to the “Nii We family of Osu Ashanti Blohum quarter, Christiansborg, Accra ... “and that (as pleaded in paragraph 2 of the statement of claim) they became owners of the land “by virtue of a customary gift on or about 10 November 1949 from their uncle Nii Botchway, the then head of the Nii We family and Gyasetse of the Mankralo stool of Ashanti Blohum quarter ...” This pleading immediately classified the plaintiff and his brothers as Osu stool subjects who acquired the land by customary grant.

The defendants pleaded in paragraph 2 of the statement of defence that:

“the plaintiffs said grantors are not the owners of the land the subject-matter of the suit herein and that the alleged customary grant, which is denied, confers no title in respect of the said land to the plaintiff or at all,” and that:
“3. the said land is a portion of Osu stool lands known as Maamobi-Kotobabi-Dzorwulu and not the property of the plaintiff’s alleged grantors.”

The defendant’s then recited that they had themselves obtained a deed of gift from the plaintiff’s grantors in 1956, registered as

Page 1306

1488/57, and that after the Akwei v. Awuletey case (supra) they had approached the Osu of stool which had indorsed and confirmed the gift.

It must be observed here that the statement of claim no where raised the question of the ownership of the lands generally. The word owners was used only once in the whole statement of claim. It occurs in paragraph (2), and only in relation to the plaintiff’s acquisition: that he and his brothers became owners of the land by virtue of a customary gift. And here owners must obviously be understood in the native sense, not in the English common law sense.

It was the statement of defence which raised ownership generally, i.e. allodial ownership, as an issue. Was the plaintiff not entitled to comment upon this in his reply? Of course he was. His comment was (paragraph 2) agreeing that the land “forms part of Osu stool rural lands which the Nii We family by virtue of being subjects to the Osu stool originally occupied at all material times”; that the plaintiff and his brothers are descendants of the original occupiers, and that:
“4. The plaintiff therefore says that as subjects of the Osu stool their title to the land which was originally occupied by their ancestors and which has been in their possession since 1949 is a good one.”

So far I do not see what there is in this reply which departs from the original position of the plaintiff that the land came to him via a customary grant by the Nii We family and the Mankralo stool.

Then, as to the issue of the effect of the decision in Akwei v. Awuletey (supra) raised in the statement of defence, the plaintiff commented that that case (paragraph 7) “did not divest him and his brothers of their title to the said land which they acquired through original occupation by their ancestors as subjects of the Osu stool in accordance with Osu customary land tenure, “a pleading which, on the law and the evidence, was perfectly correct.

The plaintiff then said that following a notice published by the Osu stool (after the Awuletey case) he “obtained confirmation of their customary title by deed of gift executed by the Osu Mantse on 22 November 1964.” As I have earlier observed, this confirmation was unnecessary. Even at that stage the plaintiff held on to his original position that he acquired the land by customary law.
In view of the many paragraphs lavished by the Court of Appeal on the question of departure, I have carefully studied the pleadings, but I find nothing which remotely lends any support whatever to the positions taken by Azu Crabbe and Sowah JJ.A. (as they then were) in Odoi v. Hammond (supra) that the plaintiff’s reply constituted a departure. It did not set up a new claim or cause of action inconsistent with the plaintiff’s original claim. The evidence on record was therefore properly led and admitted, and the learned trial judge was in order to

Page 1307

consider the whole of that evidence in coming to a fair conclusion in the matter.

After finding for the plaintiff on the issue of title the learned trial judge, of his own motion, considered whether he should invoke the Land Development (Protection of Purchasers) Act, 1960 (Act 2), in favour of the second defendant, in view of the “fairly substantial building” which he had erected on the land. On a review of the evidence, the learned judge came to the conclusion that the defendant acted recklessly in rushing to complete the building in the teeth of opposition from the plaintiff, and that in all the circumstances, the second defendant was not entitled to the protection of the Act.

This finding was the subject of merciless strictures by the Court of Appeal, in particular Azu Crabbe J.A. (as he then was) who, devoting eight pages of his 22-page ruling (a full one-third) to the applicability of Act 2, came to the conclusion that the second defendant was not guilty of bad faith and was therefore entitled to the benefit of the Act.

In my view, on the facts of this case, the Act did not apply at all. Section 1 (1) of the said Act 2, which is the only relevant section for our purposes, reads as follows:
“1. Where—
(a) a person (in this section referred to as `the purchaser’) has taken a conveyance of land . . . and
(b) the purchaser or a person claiming through him has in good faith erected a building on the land, and
(c) proceedings are brought to obtain a possession order . . .

“the court, where it considers that if this Act had not been passed the possession order would fall to be made . . . but that to make the order would cause hardship and injustice [to the purchaser] . . . may, instead of making the possession order, make an order providing that the conveyance taken by the purchaser shall be deemed for all purposes to have operated to confer on him the title to the land.” (The emphasis is mine.)

The learned Justice Azu Crabbe J.A. (as he then was) analysed the section correctly but then proceeded to apply it wrongly, because, like Justice Siriboe J.S.C. in the Court of Appeal, and Apaloo J.A. (as he then was) in the High Court, he concentrated all his attention on the question of “good faith” at large. In this, the learned justices misled themselves.
The arrangement of the several parts of the said section 1 (1) of Act 2 is significant:

Page 1308

(i) the purchaser must have taken a conveyance; and
(ii) he must have created a building on the land in good faith; and then
(iii) proceedings are brought by another person to obtain possession.

In other words, the building must have been erected in good faith, before the commencement of proceedings for possession. The good faith attaches to the act of building, not to the acquisition of the plot. If the acquisition itself was in bad faith, so much the worse. Section 1 requires that the building must have been erected in good faith.

A careful reading of the Act will show that the intention is to protect persons from unjustly losing buildings (not empty plots). It is the same old principle of unjust enrichment statutorily enacted in relation, specifically to buildings, to stop a person unjustly enriching himself by sitting by, watching his land developed by an innocent purchaser, and then suddenly swooping down on him by reason of superior title to take the building away from him. I see nothing more to the Act than this. It is not intended for empty building plots of land. It deals with buildings only. Therefore if the purchaser has not built on the land at the commencement of proceedings then the Act does not apply at all. It is perhaps another way of saying that a person who builds knowing that his title to the land is in dispute is being reckless; he cannot be said to be doing so in good faith; and cannot take advantage of the Act.

I prefer, however, to put the matter on the footing that where at the commencement of proceedings the building is not erected, the Act does not apply, and the matter falls to be decided under the general law. If, on the other hand the building is in place before commencement, then the question whether the builder deserves to be protected under the Act will depend on whether he built in good faith. And by section 4 (2), the purchaser is deemed to have erected a building if he had “carried out the greater part of the work . . .” i.e., if the building can be said to be substantially completed, not necessarily fully completed. This will be a question of fact for the trial judge to decide.
On the facts in this case there was virtually nothing at all by way of building on the site at the commencement of the proceedings. There were, on the defendants’ own showing, no more than:
“(i) a well for building valued at £18.15
(ii) a building profile 12.10
(iii) a shed 70.00
£100.25”

The second defendant says at page 30 lines 42-48 of the record that:

Page 1309

“In February 1965 the plaintiff came on the land and disturbed my possession. When I was setting up the building the plaintiff came with his brother and destroyed the wawa I used in making it. They also broke down a concrete container I made for storing water. The plaintiff and his brother also used an axe and a pick-axe and destroyed a materials’ shed I constructed on the land.”

He then gives the value as detailed above.

The plaintiff’s brother, the second plaintiff witness, confirms their entry on the land, and says at page 26, lines 1-14 of the records:
“But on 14 February 1965 when we visited the land again we saw labourers working on the land. They had set up the building and had just begun to dig the foundation. We removed the wawa and the labourers stopped work... We were going to demolish the material’s shed but before we could do so, the police arrived. We did not destroy it.”

The writ of summons and statement of claim were filed on 8 March 1965. A motion for interim injunction was filed on 9 March 1965. All the process, i.e. writ of summons, statement of claim and motion were served on the first defendant on 11 March 1965, and on the second defendant on 12 March 1965 (see page 5 of the record). It is clear therefore that there was nothing like a building on the plot at the commencement of the proceedings. The second defendant says he stopped the work when the motion for injunction was served on him, and commenced work again only after the application had been heard and refused. The motion was heard and dismissed on 19 March 1965. But the action was still pending.

Whatever building that there was by the date of the judgment, in October 1967, came into being only after the proceedings had begun. The second defendant says, “I continued the building in spite of the writ and I completed it in December 1965. I went into occupation... in March 1966.”

The defendants therefore, rushed to build to take advantage of both his opponents and the law. He built with a motive, to steal a match on others; he did not build innocently. I do not see how a person in that position can be said to have built innocently. I do not see how a person in that position can be said to have built in good faith. However, as earlier indicated, on my interpretation of section 1 of Act 2, as the building was not in situ when proceedings began, the Act did not apply, good faith or bad faith notwithstanding. The learned trial judge was right to refuse to apply the Act in favour of the defendants. I agree with the conclusion he came to on this score, even though I do so for different reasons.

Page 1310

But the Court of Appeal in its majority judgment (supra) per Azu Crabbe J.A. (as he then was) basing himself on Dove v. Wuta-Ofei [1966] G.L.R. 299, said at p. 398:

“It would [on the evidence] be impossible to impeach the good faith of the first defendant . . . and consequently... having regard to the criterion which the learned trial judge himself applied in the Wuta-Ofei v. Dove case (supra) . . . the learned trial judge grievously erred in depriving the defendants of the protection of Section 1 of the Land Development (Protection of Purchaser) Act, 1960 (Act 2).”

No doubt Azu Crabbe J.A. (as he then was) sitting in the Court of Appeal felt bound by the previous decision of that court in Dove v. Wuta-Ofei (supra). In this he cannot be blamed.

I share his concern. for if the criterion defined by Apaloo J. (as he then was) in the Wuta-Ofei case (supra) for determining good faith is the right one, then one can hardly fault the defendants in the case on good faith. The circumstances in this case are almost indistinguishable from those in the Wuta-Ofei case (supra).

Wuta-Ofei (supra) was decided under section 2 of Act 2, not under section 1. At the time when the issues between the parties were fought and decided by the High Court in 1955, Act 2 had not been passed. Appeals to the Court of Appeal and thereafter to the Privy Council had been dismissed in 1956 and 1961 respectively, and Wuta-Ofei had lost his house to Mabel Dove. Meanwhile in 1960, Act 2 had been passed, section 2 of which permitted the “re-opening of past cases.” The plaintiff, Wuta-Ofei, took advantage of section 2 of Act 2, and sued to have his houses returned to him.

The High Court, Akainyah J. (as he then was) gave judgment for the plaintiff. On appeal, the Court of Appeal (Sarkodee-Addo C.J., Apaloo and Siriboe JJ.S.C.) affirmed Akainyah J.’s decision and dismissed the appeal.

The evidence showed that although Wuta-Ofei had acquired the land in good faith, as he had no knowledge of any adverse interest of Mabel Dove, yet when he commenced to build, the latter, through her solicitor, had written to declare her interest and to warn him off. He ignored the warning, and continued to build even after action had been instituted against him. He also resisted, successfully, an application for interim injunction, and even wrote to warn Mrs. Dove to desist from further interference with his building operations. All this took place, of course, before 1957, and before Act 2.

The question that fell for decision was whether he erected the building in good faith, and was therefore entitled to protection under section 2 of Act 2. Akainyah J. said he was. Mabel Dove appealed.

Page 1311

Apaloo J.S.C. (as he then was) stated in Dove v. Wuta-Ofei (supra) at p. 314, S.C.:

“The relevant section of the Act which fell to be construed was subsection (1) (b) of section 2 which enacts that `the purchaser, or a person claiming through him, [has] in good faith erected a building on the land.’ The learned trial judge construed that as meaning that the purchaser erected the building in the honest and reasonable belief that he had title. That can only mean title on the land. Neither counsel who argued this appeal sought to quarrel with the construction and indeed both were agreed, I think, that that was the right construction. I share that view of the matter myself because I cannot see how a man can be said to have erected a building in good faith if he thought or had grounds for believing that his title to the land was not in order. As the declared policy of the Act is to confer valid title on purchasers who build on land on the faith of title subsequently adjudged to be invalid, it seems to me only natural, that the Act should require that the purchaser, to avail himself of the statutory protection, should have acted honestly and reasonably at the date of the original acquisition of the land, and having so acted should have believed in the validity of his title.” (The emphasis is mine.)

It will be seen from the above that both the trial judge (Akainyah J.) and the Court of Appeal (per Apaloo J.S.C. (as he then was) interpreted bona fides in relation to the acquisition of the empty plot of land, the title, rather than to the erection of the building. Apaloo J.S.C. (as he then was) quipped in the passage quoted above: “. . . I cannot see how a man can be said to have erected a building in good faith if he thought or had grounds for believing that his title to the land was not in order . . . “That may well be so. But it is possible to acquire title bona fide. If the building is erected before commencement of proceedings the fact that the purchaser knew or had reason to believe that his title was defective at the time of building will be relevant evidence to prove that he erected the building in bad faith. Under the Act faith is relative to the putting up of the building, not, as Apaloo J.S.C. (as he then was) put it, to “the date of the original acquisition of the land.”

This position under Act 2 is distinguishable from that under the Farm Lands (Protection) Act, 1962 (Act 107), where the faith attaches to the acquisition of the land, not the making of the farm. The relevant section of the said Act reads:
“2. (1) Where a farmer has, in good faith, . . . acquired any land by customary law or otherwise in a prescribed area for

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purposes of farming . . . this section shall, notwithstanding any defect in the title to the contrary, operate to confer valid title on such farmer . . .” (The emphasis is mine.)

In this respect, Act 2 is not in pari materia with Act 107, and reliance on Baabu v. Appiah, Court of Appeal, 15 May 1967, unreported, as Azu Crabbe J.A. (as he then was) did, at pp. 72-73 of the record, can be misleading. The line of distinction between the two positions may be very thin indeed, at times even indiscernible, but a distinction there surely is.

In my opinion, in so far as Dove v. Wuta-Ofei (supra) lays down a criterion for determining good faith in relation to the acquisition of the title to the land, Dove v. Wuta-Ofei (supra) is, with the greatest respect to their lordships, difficult to support, and may be regarded as an authority of doubtful validity.

In the instant case, the Court of Appeal, with respect, fell into the same error. The evidence shows that the defendants rushed to build after action had commenced. It is conclusive that they could not have built in good faith, which is another way of saying that they put themselves outside the Act.

By this criterion it would seem that Dove v. Wuta-Ofei (supra) was wrongly decided, except that as Siriboe J.S.C. pointed out at page 308 of the report, there was some evidence to show that the building had “reached an advanced stage” before action was commenced, implying that the building had been erected within the definition in section 4 (2) of the Act before the action, which will put an entirely different complexion on the situation. In any case, the Wuta-Ofei case (supra) is not on appeal before us, and there is no intention of reopening it.

For the reasons stated above, I am in full agreement with the learned trial judge that in the circumstances of this particular case, the defendants were not entitled to the protection afforded by Act 2, and I support the learned trial judge in his finding on this issue, save that, as stated above, I prefer to put the matter on the footing that as the building had not been erected at the commencement of the proceedings, the Act did not apply at all. The Court of Appeal was, respectfully, wrong in the view it took of this aspect of the case.

On the whole, for the reasons stated, I am unable to agree with my brothers in the opinion they have formed of this appeal. It is my opinion that this appeal should be allowed. Conscious, however, that my opinion is a minority opinion, it is futile to make any pronouncements on the award of damages or on the fate of the house.

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ANIN J.S.C. I agree with the judgment delivered by my brother Adade that the appeal should be allowed.

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