Kuma & Anor. v. Koi-Larbi [1991] 1 GLR 537.

KUMA AND ANOTHER v. KOI-LARBI [1991] 1 GLR 537.

JUDGMENT OF AIKINS J.S.C.

STATUTORY REFERENCE
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Aikin J.S.C. delivered the judgment of the court. In March 1980 the plaintiff-respondent who in this case claims that he is a member of the Akwapim Union (a friendly society) obtained two pieces of land by way of assignment, the first from the Akwapim Union represented by its president, Mr Philip Kwabi Arthur-Baidoo on 9 March 1980 and stamped as AC 321/80, and the second from Mr Philip Kwabi Arthur-Baidoo on 27 March 1980 and stamped as AC 2336/80. Both pieces of land, the subject matter of the plaintiffs claim against the defendant, form part of a piece of land belonging to the Nii Odoi Quao family of Christiansborg and Accra and which land the family leased to the Akwapim Union for a period of 99 years for residential purposes. The deed of conveyance was dated 9 May 1940 and among the signatories for the family was Edmund Laud Nikoi O’Lai Kotey, described as a principal member of the family, and for the union,

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Philip Kwabi Arthur-Baidoo described as president. It was agreed that the land should be divided into 120 plots of 60 feet by 100 feet to provide living accommodation for 120 members of the union. For the 120 plots the rent was to be £36 (thirty-six pounds) or six shillings for each plot. This agreement was registered in the Lands Registry as No. 515/1950.

About five years later, to be precise on 20 December 1945, a supplementary agreement to that of 1940 was entered into by the parties to replace a portion of the land which had been taken over by the government for public purposes. This lease was registered as No 1066/1945 at the Lands Registry. By a lease registered at the Lands Registry as No 986/68, the Akwapim Union demised a portion of its land to
Philip Kwabi Arthur-Baidoo. It is this lease that the said Arthur-Baidoo assigned to the plaintiff on 27
March 1980.

During the early 1950s the family claimed that the land had become forfeited through the failure of the members to obtain individual grants from them as stipulated in clause 2(a) of the 1940 lease. That clause stipulates:

“(a) That they the members of the Akwapim Union (lessees) may during the continuance of the term hereby granted obtain individually Indenture of lease from the superior Landlord (Nii Odoi Kwao Family) within one year from the first day of January, 1940 and will also pay to the Lessor the said yearly rent of six shillings herein before reserved on the said first day of January, 1941 failing to obtain such lease within one year the Lessor shall have, the right to re-enter upon the whole or portion thereof”

On 29 December 1954 the family, represented by Nikoi O’Lai Kotey and others, executed in favour of one Moses Emmanuel Kwaku Addo, a member of the union, an 85-year lease of two plots within the area covered by the 1940 lease at an annual rent of £90. The following year two other documents dated 26 November 1955 were executed, one by Kwaku Addo assigning his interest under the lease to Nikoi O’Lai Kotey and others, and the other by O’Lai Kotey and the others leasing the land to a Lebanese, Rose Nasif Mallah, for the erection of a night club.

The Akwapim Union became infuriated and led by their president, Mr. Arthur-Baidoo, they issued a writ against Rose Mallah and Kwaku Addo. By order of the High Court presided over by Ollennu J. (as he then was) the family was joined as a co-defendant, and on the application of Rose Mallah and Addo, O’Lai Kotey and the other assignees were also added as co-defendants. In 1957 Ollennu J. (as

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he then was) in Baidoo v. Mallah, Land Court, 19 September 1957, unreported, gave judgment in favour of the plaintiff for recovery of possession of the land and commented on clause 2(a) of the 1940 lease as follows:

“Now in addition to stating that members of the union may take individual leases from the family, clause 2(a) goes on to say that, the right to grant was to be exercised within one year, and stipulates the payment of rents, not whenever they become due, but specifically the rents which fall due on 1 January 1941.

These stipulations in my opinion put a limit upon the right conferred by that clause as to the period within which it could be exercised, namely within a year of 1 January 1940.”

During the course of the trial, Kwaku Addo disclaimed all interest in the land in dispute as by a document dated 26 November 1955 he had assigned his interest to O’Lai Kotey and others. Though the Odoi Kwao family was joined in the action, no appearance was entered on behalf of the family, neither was any
defence filed on their behalf.

Two years after the death of Kwaku Addo, that is on 18 August 1978, the family executed a conveyance of the land and an adjoining plot in favour of his widow, Adelaide Newman, who is the co-defendant-appellant to the appeal before this court, in total disregard of the judgment given against them by Ollennu J. (as he then was).

On 22 May 1980, the plaintiff-respondent issued a writ in the circuit court against the defendant, a licensee on his land and who had refused to attorn tenant to the plaintiff in spite of several warnings. As stated above, the co-defendant, Adelaide Newman, applied for an order of the court to join as co-defendant because, according to her, she was the owner of the land the subject matter of the action and would be affected by any order or judgment that might be given by the court. The order was granted.

In his statement of claim, the plaintiff-respondent pleaded the two documents executed in his favour by
Mr. Arthur-Baidoo and prayed for damages for trespass and an order of perpetual injunction against the defendant-appellant. The defence is contained in paragraph 2 of the amended defence, namely:

“2 In answer to paragraph 2 of the statement of claim the co-defendant says:

(a) Although the land was leased to the Akwapim Union the union defaulted in payment of rent and the landlord gave the requisite [notice] and re-entered the said land and the lease was thereby determined, i.e. by the Nii Odoi

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Kwao family.

(b) Furthermore, the said plaintiff’s grantor, Arthur-Baidoo as the only surviving signatory could not properly convey the land without having taken steps to have other continuing trustees or substituted trustees.

(c) Even if the said Arthur-Baidoo could convey the land alone, which is denied, he had been removed from office as trustee or signatory or both by the union and he was not entitled to convey the land.”

The co-defendant relied on the conveyance executed in her favour by the family.

The main issue which arose for determination at the close of pleadings was whether the union or the family had the right to make grants of land in the area covered by the lease. On 13 February 1984 the trial judge dismissed the plaintiff’s claim, and declared title in the co-defendant, and made an order restraining the plaintiff, his agents and servants from entering the land in dispute or in any way interfering with it. Against this judgment the plaintiff appealed to the Court of Appeal.

On 4 February 1988 the Court of Appeal, after an exhaustive examination of the facts of the case and the relevant law relating thereto, allowed the appeal, set aside the judgment of the circuit court and gave judgment for the plaintiff on his claim and dismissed the counterclaim of the co-defendant. As the defendant did not challenge the title of the plaintiff his plea that he should be permitted to attorn tenant to whoever is declared entitled to the land was granted.

The Court of Appeal held that since the Akwapim Union as a body and individuals derived title from the union they were the only persons entitled to the possession of the leased land; the union was therefore the only body which could give away a valid title to the land. It also held that the grant to the co-defendant was a fraud on the union, and that it was only the union which could set aside the grant made to the plaintiff. It was further held that the import of clause 2(a) of the document of 1940 having been considered and a pronouncement made thereon by Ollennu J. (as he then was), it was not open to the learned trial judge suo motu to re-open the matter.

It is against this decision of the Court of Appeal that the co-defendant appellant has appealed to this court.
The following grounds of appeal were filed by counsel for the co-defendant-appellant:

“(1) The Court of Appeal misdirected itself on the fact that the plaintiff-respondent himself tendered exhibits which clearly

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state that the Akwapim Union was defunct.

(2) The Court of Appeal erred in holding that the Nii Odoi Kwao family relied on clause 2(a)
of the lease which was quite distinct from the forfeiture clause under the first proviso
clause which could be invoked on non-payment of the reserved rent and thereby related
same with an interpretation in an earlier judgment.

(3) The Court of Appeal failed to consider the legal position of unregistered private trusts
and the powers of a sole surviving trustee and thereby erred in holding that the sole
trustee was competent to grant the union’s land.

(4) Since the minority of the members of the Akwapim Union were entitled to protect their
rights and interests the Court of Appeal erred in holding that the union had not validly
appointed new trustees.

(5) The judgment was against the weight of the evidence.”

Grounds 1, 3 and 5 are relative to the internal affairs of the Akwapim Union and they can conveniently be grouped together. Ground 2, if sustained, will undoubtedly be the make weight of the co-defendant’s appeal.

Although the language of ground 1 is rather obscure, what it seeks to argue is that the Court of Appeal misdirected itself in holding that the Akwapim Union (or the union for short) was not “defunct” when the document tendered by the plaintiff himself said otherwise. The document in question is the assignment to the plaintiff from the union represented by its president, Mr Philip Kwabi Arthur-Baidoo, which recited that he was the “sole trustee of the defunct Akwapim Union.” Section 25 of the Evidence Decree, 1975
(N.R.C.D 323) in our view settles the issue. It stipulates that except as otherwise provided by law, including a rule of equity, the facts recited in a written document (excepting the recital of consideration) are conclusively presumed to be true as between the parties to the instrument, or their successors in interest.

It will, however, yield no profit for the parties to split hairs over the issue as to whether the union was dead or alive at the date of the assignment to the plaintiff because whatever was the case the landed property of the union had to be administered. It is a well-known rule that, in private trusts, all the trustees must unanimously concur in exercising any power under the trust: see for instance, Rothwel v. Hussey (1674) 22 E.R. 911 and Leyton v. Sneyd (1818) 129 E.R. 489. Thus in Luke v. South Kensington Hotel Co. (1879) 11 Ch.D. 121, C.A. the headnote states that:

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“The act of a majority of trustees cannot bind a dissenting minority nor the trust estate. In order to bind the trust estate the act must be the act of all the trustees.”

And Jessel MR said at 125-126:

“There is no law ... which enables the majority of trustees to bind the minority. The only power to bind is the act of the three and consequently the act of the two, even if it could bind them by reason of delay or acquiescence, could not bind the trust estate, and therefore in no way was the trust estate bound or the mortgage released.”

The rule requiring concurrence of all the trustees in a conveyance, for instance, would not prevent a trustee from delegating his powers to two or more persons severally, since each would fully represent the trustee and his act would in all respects be the act of the trustee. Again, a discretion to be exercised by two or more trustees is properly exercised by one acting and the other or others approving and sanctioning what has been done: see, for instance, Messeena v. Carr (1870) L.R. 9 Eq 260. There was patently no evidence before the trial court that all the trustees of the union concurred in the assignment or conveyance to the plaintiff dated 9 March 1980 or that the other trustees either delegated their powers or approved and sanctioned the assignment.

The available evidence was to the effect that of the three signing trustees one had died and another ceased to act. There was, however, no dearth of trustees from which vacancies in trustees with signing powers could be filled. It was presumed that the union was registered either under the Land (Perpetual) Succession Ordinance, 1932 (Cap 137) or the Trustees (Incorporation) Act, 1962 (Act 106). In either statute there is a provision for filling up vacancies. In this regard, section 4 of Act 106, expressed practically in the same language as section 6 of Cap 137, states:

“(1) Before a certificate of incorporation is granted, the Minister shall be satisfied that the trustees have been effectually appointed.

(2) Where a certificate of incorporation is granted vacancies in the number of the trustees shall from time to time be filled up so far as shall be required by the constitution or settlement of the said body or association, or by any such conditions or directions as aforesaid, by such legal means as would have been available for the appointment of new trustees of that body or association if no certificate of incorporation had been granted, or otherwise as shall be required by such conditions or directions as aforesaid.

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(3) The appointment of every new trustee shall be certified by, or by the direction of, the trustees to the Minister upon the completion of the appointment.

(4) Within one month after the expiration of each period of five years after the grant of a certificate of incorporation, or whenever required by the Minister, a return shall be made to the Minister by the then trustees of the names of the trustees at the expiration of each such period, with their residences and additions.”

The conditions or directions which the “Minister” may, under the Act, insert in the certificate of registration as a corporate body may include, in particular, provisions relating to the qualifications and number of the trustees, their tenure and vacation of office, the mode of appointing new trustees, etc. Essentially, in filling up vacancies one had to look at the constitution of the union or the conditions or directions inserted in the certificate of registration if the union was ever incorporated. Although the rule of survivorship applied to trustees at common law, it had no application under Act 106. But even so, the rule only operates when a trustee dies but not when (as in the case of the other signing trustee) he refuses to act or shows apathy. The rule is that once a trustee accepts the office he cannot be allowed to disclaim: see Re Sharman’s Will Trusts [1942] Ch 311.

It was invidious and wrong for the courts below, both trial and appellate, to make pronouncements which decided as to whether or not Philip Kwabi Arthur-Baidoo had the capacity to dispose of land claimed for the union to the plaintiff particularly as no conclusive evidence was before the court relating to the union’s incorporation and its constitution and the Court of Appeal also rightly found that it was only the union which could set aside the grant to the plaintiff. With that in view, this court must not be drawn into the same danger of making final pronouncements on the union’s affairs although it cannot be muzzled in correcting certain erroneous principles of law advanced before us. As it was commonly agreed that the land in dispute was part of the land the Nii Odoi Kwao family had conveyed to the union, the bone of controversy was as to whether or not the said family could take away that portion of land and convey it to the co-defendant and not whether Arthur-Baidoo could convey the land to the plaintiff on the union’s behalf. It is here that the resolution of ground 2 will be decisive.

The fourth ground of appeal stated that the Court of Appeal erred in holding that the union had not validly appointed new trustees since the minority of the members of the Akwapim Union were entitled to protect their rights and interests. The passage of the judgment

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complained against is at 107 of the record. It says:

“As stated before, there was a misunderstanding amongst the members of the union. In 1965 the misunderstanding resulted in a court action, the outcome of which is not clear. But the evidence shows that as late as 1970, P. K. Arthur-Baidoo was still the president (or at least assumed the role of a president) and stood for the union in all its litigations concerning the land. I do not think the acts of eight or ten members of a union of over 120 members, could effectively remove the trustees or P. K. Arthur-Baidoo as president. As far back as 1973, letters were being written on behalf of the union represented by Arthur-Baidoo. The evidence therefore did not support the finding that Arthur-Baidoo has been removed and that there had been a reconstitution of the union. The union represented by Arthur-Baidoo therefore had a right to convey the land to the plaintiff. And Arthur-Baidoo could also reassign the land given him by the union to the plaintiff.”

There was some evidence gathered from exhibit 2 that in 1965 some members of the union seriously accused the three signing trustees of mismanagement and therefore wanted them to account. But this was purely an internal affair between the members of the union and the signing trustees. As noted by the Court of Appeal, the union was not a party to the suit before the trial court, neither was Philip Kwabi Arthur-Baidoo. We accordingly feel that it was not proper to make pronouncements on the affairs of the union.

In arguing the second ground of appeal, counsel urged that the judgment of Ollennu J. (as he then was) could not be said to be absolute in order to operate as an estoppel against the Nii Odoi Kwao family; that whenever there was a breach of the terms the lease could be and might be terminated.

In our view, the judgment of Ollennu J. (as he then was) acts as a complete estoppel against the Nii Odoi Kwao family and the appellant whose predecessor in title, Kwaku Addo, fought alongside the Nii Odoi Kwao family. Virtually all the issues in the present case were raised in the 1956 trial before Ollennu J. (as he then was) and his judgment was never appealed against.

As stated earlier on in this judgment, the 1956 action was motivated by the grant of a portion of the union’s land to Rose Nasif Mallah and another person by the Nii Odoi Kwao family. Philip Kwabi
Arthur-Baidoo, a trustee of the union instituted the action for:

“(a) recovery of possession of that land, and

(b) an injunction restraining the defendants from erecting on the

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land any building other than one for use entirely as a residence.”

The Nii Odoi Kwao family had relied on clause 2(a) of the 1940 lease to re-enter the land and grant portions. The same clause was being relied upon by the family in this case, and Ollennu J (as he then was) commented as follows:

“Now in addition to stating that members of the union may take individual leases from the family, clause ‘2(a)’ goes on to say that the right to grant was to be exercised within one year, and stipulates the payment of rent, not whenever they became due, but specifically the rents which fall due on 1 January 1941.

These stipulations in my opinion put a limit upon the right conferred by that clause as to the period within which it could be exercised, namely within a year of I January 1940.”
In this respect, the Court of Appeal held that the family were bound by that judgment. We are of the same view. What then in law constitutes estoppel? For estoppel to operate to make a judgment conclusive against a person as privy in estate to a party litigant, it must be shown that he derives his title under the latter by act or operation of law subsequent to the recovery of the judgment, and that the judgment was one affecting the property to which title is derived: see Halsbury’s Laws of England (3rd ed.), Vol.15, p. 198 at para. 374.

To circumvent the effect of clause 2(a) of the 1940 lease, the appellant in her amended statement of defence tried to rely on non-payment of rent as the reason for re-entry into the demised land by the Nii Odoi Kwao family.

Even though the appellant managed to call witnesses like P.W. Oklu, the third defendant witness, to give evidence about non-payment of rent and eventual forfeiture of the 1940 lease to the effect that the union failed to pay rent from 1958 up to now, one of the defence witnesses, Mr. F.A Martinson, spoke of the refusal of the family to accept rent. In his evidence he said:

“The government acquired part of the land for the Nima Police Station. The family therefore gave an additional land to the Akwapim Union as a result of the land given to the government by the family. After that rent was paid but refused. The part of the rent which was refused was in connection with the Police Station acquisition. The union was accused of giving out part of the land to non-members without the knowledge of the Odoi Kwao Family for instance Arthur-Baidoo to B. K. Edusei an Ashanti.”

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Later the defence was confronted with the evidence of Edmund Laud Nikoi O’Lai Kotey, a principal elder of the Nii Odoi Kwao family, who spoke as the first defendant witness in the case of Baidoo v. Kastanias, Court of Appeal, 9 March 1970, unreported, before Annie Jiagge J. (as she then was) in the High Court:

“It is correct that my family, the Odoi Kwao Family took rent from the plaintiff from 1940-57. The last receipt is exhibit E in this case. The rent paid on exhibit E was for the year ending 1957. About 1958 or 1959, the Akwapim Union came to pay rent to me and I refused to accept it. It is correct as was said in court that we considered that the acquisition of the land for the Nima Police Station by the government from us made it unfair for us to take rent from the union. When the Akwapim Union came to pay rent I told them that it was not fair to receive rent from them since a portion of the land we gave them was acquired by the government from us for the Nima Police Station and my family was receiving money in respect of the land granted to the government.”

It is clear from the above that the family did not complain about non-payment of rent. They thought it would be inequitable to accept rent. How can the family now complain about non-payment of rent?

To buttress her conveyance from the family, it was said that the family had re-entered the land and exercised its right of forfeiture for failure to pay rent reserved. Apart from a mere verbal declaration of re-entry and forfeiture, the family took no concrete step to take possession. In Interplast Ltd. v. Bonsu [1979] G.L.R. 285 at 288, C.A., the court said:

“Although in times past, the landlord may make an actual entry and forfeit the lease for breach of a covenant which reserves to him the right of re-entry, the usual practice at the present day is to sue for recovery of possession. Willes J. said as long ago as 1872 in Grimwood v. Moss (1872) L.R. 7 C.P 360 at p. 364 that ‘the bringing of the action of ejectment is equivalent to the ancient entry.”

There is, accordingly, the need to sue for ejectment in exercising the forfeiture clause in a lease. And even there the courts will not decree forfeiture automatically for failure to pay reserved rent. The defaulting lessor is accorded protection under sections 210-212 of the Common Law Procedure Act, 1852 (15 16 Vict, c.76) (an English statute) which empowers the court to relieve him against such forfeiture. Section
111(1) of the Courts Act, 1971 (Act 372) of course,

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expressly preserves sections 210-212 of the Act of 1852 as a statute of general application.

We are of the view that ground 2 is wholly unmeritorious and as it is the main ground to prop the appeal, the appeal fails and must be dismissed.

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