JUDGMENT OF TAYLOR JSC
Ref: Administration of lands Act, S. 7(1).
An Executive Instrument (E.I. 109 of 1963) passed pursuant to Section 7 of the Administration of Lands Act, (Act 123), could not operate to divest a Dagomba Subject of his customary title over land given to him by the skin. Such land was no longer part of skin land vested in the President in trust by virtue of E.I. 109. [NB: Section 7 of Act 123 has since been omitted by the Law Review Commissioner].
We have already allowed the appeal in this case, reversed the decision of the High Court and given judgment in favour of the plaintiff - appellant but we reserved our reasons for the said judgment. I now proceed to give the reasons why I concurred in the decision to allow the appeal. A brief resume of the genealogy of the litigants and the facts which have led to this dispute are very necessary to an understanding of the judgment.
The plaintiff who is the appellant before us is the daughter of one Saaka Dagomba who from the evidence must have died about 1948 or thereabout in Pong Tamale. She is his only surviving child. The mother of the defendant, the respondent herein, was one Nabia Dahali deceased, who was herself the daughter of a widow, one Napari Yemo, who also died many years ago.
The case which the plaintiff put up at the trial and which was accepted by the trial court was that her father, the late Saaka Dagomba built a house No G30 at Tamale during his lifetime and lived there until his brother Neindo who was a chief in a village in Pong Tamale died, when on succeeding him as a chief he moved from the said house to stay in Pong Tamale in the style of a chief.
Before moving to Pong Tamale the late Saaka Dagomba allowed his friend called Suguri to live with him in the said house at Tamale. The plaintiff was born in the house. When Suguri’s aunt, the said Napari Yemo, was bereaved by the loss of her husband who was then chief of Karaga, Saaka Dagomba permitted her to live in the house with her nephew Suguri. At that time a relative of Saaka Dagomba called Mahama was also living in the house and on Saaka ascending the said position of chief in the village in Pong Tamale, he left his house and the documents on it, in the care of Mahama and Suguri. The documents from the evidence would seem to be bills for water rates. When Saaka Dagomba went to his inheritance at Pong Tamale his relative, the said Mahama, travelled away from Tamale and later died.
In the meantime while Saaka Dagomba was at Pong Tamale, Nabia Dahali whom the defendant said was her mother came and lived in the house. She was as already indicated the daughter of Napari Yemo and stayed in the house to look after her old mother.
Suguri, the friend of Saaka Dagomba, left the house for Duntsetana village to farm and later he also died there. When he was leaving, however, he left the said documents and the house with the apparent approval of Saaka Dagomba in the sole care of Nabia Dahali. Whilst Nabia Dahali was thus living in the house one room and a verandah collapsed and although Saaka Dagomba objected to her rebuilding the collapsed structure she nonetheless rebuilt it at a cost of £75. Saaka Dagomba was apparently not happy about that and he tendered the cost of £75 to Nabia Dahali. She pleaded that accepting the money would mean that Saaka Dagomba was evicting her from his house and she brought people to render apology to Saaka Dagomba. Saaka Dagomba pointed out that he did not want anybody to trouble his children and he introduced the plaintiff to Nabia Dahali as his daughter.
When Saaka Dagomba died, the plaintiff was then living in Takoradi. She came for the funeral and when she came to Tamale again for the final performance of the funeral rites, she reminded Nabia Dahali that the house belonged to her father. It was about four years later that Nabia Dahali died. Sometime in 1979 the plaintiff returned to Tamale from Takoradi and attempted to make extensions to her late father’s house but the defendant claiming the house as the property of her grandmother Napari Yemo which she had inherited refused to permit the extensions and so the plaintiff sued claiming:
- declaration of title to house No G 30, Tamale;
- recovery of possession;
- perpetual injunction against the defendant;
- mesne profits; and
- any further relief.
From the evidence it appears house No G 30 was put up in or about 1920 on land given to the plaintiff’s father Saaka Dagomba by the chief of Tamale. The defendant claimed that her grandmother, the old lady Napari Yemo, was the person who built house No G30. The overwhelming evidence, however, which the High Court judge accepted negatives this contention of the defendant. Furthermore, it was established in evidence proffered by both the plaintiff and the defendant that Napari Yemo and her daughter Nabia Dahali have no family relationship whatsoever with Saaka Dagomba and the plaintiff. On the contrary, the plaintiff led evidence which the court accepted showing that she is not merely the daughter but also the sole surviving relative of Saaka Dagomba.
The learned High Court judge accepted the substantive evidence of the plaintiff and his witnesses but was nonetheless impressed by three factual circumstances. The first is that the actual owner of the house, Saaka Dagomba, died some time in 1948 but the occupants of the house had been NapariYemo and her descendants represented now by the defendant. The plaintiff it would seem lived in Takoradi and it was only when she came down to live in Tamale in 1979 that she tried to assert her interest. Secondly, on 31 May 1957, the Government of Ghana acting by the then Chief Commissioner of Lands gave Nabia Dahali, the mother of the defendant, a year to year tenancy of the plot of land on which house No G30 had been built; and thirdly, acting under the provisions of section 7 (1) of the Administration of lands Act, 1962 (Act 123), the Stool Lands (Northern Territories) Instrument, 1963 (EI 109 of 1963), was passed on 4 September 1963 by which, inter alia, all skin lands within the area of authority of the Tamale Urban Council was declared to be vested in the President in trust.
In view of these circumstances and the facts, the High Court judge in appraising the apparent and consequential legal position made a number of pronouncements which are illustrative of the ratio decidendi of his decision, typical of which are the following:
“(1) EI 109 of 1963 made pursuant to section 7 of the Administration of Lands Act, 1962 (Act 123), operated to divest the plaintiff of her customary title.
- The plaintiff apart from giving evidence to show that her father built the house tendered an exhibit which showed that title to the land was in the Government of Ghana and that the Government of Ghana has given a lease to the defendant’s mother.
- There is overwhelming evidence that the defendant and his family have been in possession since 1957. The plaintiff is not claiming through the Government of Ghana; she claims through her father who has no title and has no possession now. The defendant on the other hand has possession and I dare say title through the Government of Ghana. The lease the defendant obtained from the Ghana Government has not been set aside as having been obtained by fraud.”
Thus because the defendant’s predecessor-in-title has been in possession at least since 1957 and the fact that the defendant’s predecessor has a lease from the Government of Ghana led the High Court to dismiss the claims of the plaintiff and to give judgment for the defendant.
Before dealing with EI 109 of 1963 and the significance of the government lease it seems to me that the question of the long possession of the defendant and her predecessor needs examination. In Vanderpuye v Atia, Court of Appeal, 20 March 1967, unreported, Apaloo JA (as he then was) reiterated the well-known and hackneyed principle governing long possession when he said:
“It is trite learning that a person in possession of land, however that possession was acquired, has a title to that land which is good against the whole world except the true owner or a person claiming through the true owner.”
(The emphasis is mine.) It is clear on principle therefore that long possession per se does not avail the possessor against a claimant, if the claimant is the true owner or can show that he or she derives title from the true owner. What is the nature of the interest of Nabia Dahali and indeed of Napari Yemo, in the house in dispute? From the incontrovertible evidence of the plaintiff, they were licensees who have enjoyed undisturbed possession for admittedly many years. As the Court of Appeal held in Mensah v Blow  GLR 424, CA a licensee under customary law does not by virtue of long user per se acquire an interest in the property which would entitle him to deprive the licensor or his successors of their ownership. Subject of course to the provisions of the Limitation Decree, 1975 (NRCD 54), which is not relevant to the facts of this case, the Mensah v Blow proposition is the proper legal principle applicable in this case.
It is noteworthy that the evidence of the plaintiff that her father Saaka Dagomba built the house on land given to him by the traditional authority was countered by evidence that the defendant held a government lease in the name of her predecessor-in-title, Nabia Dahali. The true legal owner of the lease as well as the alleged purport of EI 109 of 1963 must in the circumstances be decisive factors in this case.
On the available evidence, it is clear that as far back as 1920, the chief of Tamale gave the land in question to the deceased Saaka Dagomba and he built on it. Saaka Dagomba is of the Dagomba tribe and is entitled under Dagomba customary law to be given part of the land attached to the Dagomba skin for building purpose. Once he has exercised this right and has built on it, he has a usufruct of that land which cannot without just cause be taken away from him by the skin. The land, now a built on plot, ceased to be vacant land attached to the skin; it now becomes land the property of Saaka Dagomba until on the failure of his heirs the land reverts to the skin. In such circumstances EI 109 of 1963 cannot be said to cover the usufructuary interest which Saaka Dagomba and his heirs or assigns have in plot No G30. In the
circumstances, it is my view that the learned High Court judge erred in law when he held that EI 109 “operated to divest the plaintiff, the heir of Saaka Dagomba, of her customary title” in the land on which house No G30 is built.
In any case EI 109 of 1963 came into force on 4 September 1963, 43 years after the land had been allotted and the building had been erected. The executive instrument cannot operate retrospectively to extinguish rights acquired in stool and skin lands before its promulgation. The fundamental rule applicable to all statutes and statutory instruments is that prima facie they are prospective and unless by their specific terms or by necessary implication they have retrospective operation they do not affect rights and obligations which have already crystallised at the time they became law.
The next question is: what is the significance of the government lease? That lease was executed on 31 May 1957 and is unquestionably between the Government of Ghana and Nabia Dahali and it was in respect of the plot of land on which the building No G 30 stands.
Mr Victor Nkansah, Registrar of Lands and a legal officer of the Lands Department, Tamale gave evidence for the plaintiff and explained very clearly the circumstances surrounding the execution of the lease. It was an explanation culled from documents and circumstances that were not impugned in cross-examination. According to the said unchallenged evidence of Mr Nkansah, before a lease is executed in respect of land on which there is already a building, the lessee must swear to an affidavit showing how he or she became the owner of the building. The policy of the Lands Department is to enter into these leases with the owner of the building or those claiming through such owners. Nabia Dahali about five years after the death of Saaka Dagomba applied for a lease of the plot on which Saaka Dagomba had his house to be made in her name and swore to an affidavit before the Government Agent. That affidavit showed how she came by house No G30 and so I set it down here fully:
“In the Magistrate Court of Tamale Northern Territories
In the Matter of the Estate of Saaka Dagomba (Decd) I, Nabia Dahali Dagomba, c/o Mr R S M Lamashego, House No G30, Tamale, make oath and say as follows:
- That Saaka Dagomba who died about five years ago was the rightful lessee of plot No 30, Ward G,Tamale.
- That both myself and Suguri Dagomba are the next of kin of the deceased and being the eldest, I am the rightful heir to the deceased’s movable and immovable property.
3. That the building on the said plot was built about 47 years ago and has no lease.
- That I am humbly and respectfully requesting the Government Agent, Tamale to prepare a lease in my name and that the plot No 30, Ward G, Tamale shall henceforth remain as a family property and under any circumstances shall never be sold.
- That the ground rent and water rate receipt be issued in my name in future.
Sworn at Tamale, Northern Territories Gold Coast this 18 May 1953 after the contents of this affidavit has been read over and interpreted in the Dagomba language, when she seemed perfectly to understand same before appending her mark
Her X Mark
(Sgd) Abdulal Yendi
Interpreter and Witness to Mark
Swearing fee of 4/-paid into chest vide Court Receipt No U 237142
House No G 80, Tamale
for three copies-Receipt No”
According to the evidence of Mr Nkansah the rightful person in whose name the lease ought to have been prepared was Saaka Dagomba, but obviously because he was dead and Nabia Dahali swore that she was the next of kin the lease was prepared and executed in her name.
Now the evidence of both the plaintiff and the defendant disclosed clearly that Suguri and Nabia Dahali were not relatives of Saaka Dagomba and were certainly not his next of kin. His only surviving child and next of kin by Dagomba custom was the plaintiff in this case and the question therefore is what is the legal position?
It seems to me that prior to and at the time of the death of Saaka Dagomba, Nabia Dahali was the caretaker of the house. She was a sort of agent for Saaka Dagomba and after his death she must in contemplation of law be considered to be agent and a trustee for the next of kin. In Halsbury’s Laws of England (3rd ed), Vol 14, para 1156 at p. 625 the status of an agent in such circumstances was described in terms that I think apply to Nabia Dahali. It is there stated:
“Apart from the creation of trusts of specific property, the position held by a person may itself involve confidence so as to impress him with a fiduciary character, and when he gets possession of money or other property in this character he holds it as a trustee. This is so in most cases of agency, since the agent has duties to perform which involve the placing of confidence in him by the principal.”
On the death of Saaka Dagomba and after the plaintiff had reminded Nabia Dahali that the house belonged to her father, her continued association with the house as caretaker did make her a trustee of the property for the next of kin or heir as the rightful beneficiary. After the death of Nabia Dahali, the position of Naama Dahali, the defendant, cannot be superior to that of her mother. She became a constructive trustee. Bowen LJ in the English case of Soar v Ashwell  2 QB 390 at 396, CA at 396 adverted to constructive trust in such circumstances when he said:
“A constructive trust is one which arises when a stranger to a trust already constituted is held by the Court to be bound in good faith and in conscience by the trust in consequence of his conduct and behaviour. Such conduct and behaviour the Court construes as involving him in the duties and responsibilities of a trustee, although but for such conduct and behaviour he would be a stranger to the trust. A constructive trust is therefore, as has been said, “a trust to be made out by circumstances.”
The High Court judge was, it seems, highly impressed by the fact that Nabia Dahali did obtain a lease in her own name from the Government of Ghana and the lease has not been set aside and he therefore thought this disabled him from declaring the plaintiff entitled to the lease. What is the position of a constructive trustee who obtains a lease in breach of trust in his or her own name? In her own affidavit sworn to on 18 July 1953 she averred “That, Saaka Dagomba ... was the rightful lessee of plot No 30, Ward G, Tamale.” And although she was not related to him, she swore falsely that she was his next of kin and on the strength of this false claim she obtained a lease in her name.
In the same Halsbury’s Laws of England (3rd ed), Vol 14, Para 1155 at. pp 624-625 a rule based on public policy and supported by the following old English cases: Pickering v Vowles (1783) 28 ER 1080, James v Dean (1805) 11 Ves 383; Keech v Sandford (1726) Cas temp King 61, and Rawe v Chichester (1773) Amb 715 at 719, was adverted to, showing that the said Nabia Dahali cannot profit from her legal ownership in the circumstances. The rule was thus stated:
“A constructive trust arises when, although there is no express trust affecting specific property, equity considers that the legal owner should be treated as a trustee for another. This happens, for instance, when one who is already a trustee takes advantage of his position to obtain a new legal interest in the property, as where a trustee of leaseholds takes a new lease in his own name. The rule applies where a person, although not an express trustee, is in a fiduciary position...”
On the basis of this rule, Nabia Dahali in my opinion held the lease in her name as a trustee for the plaintiff who is a sole beneficiary under the estate of her father, the late Saaka Dagomba. The position of the defendant ‘in this case is hardly different. Admittedly from the nature of the evidence led by the parties it would seem that the defendant was not aware that her mother Nabia Dahali was a trustee of the property. Assuming that she did not know of it, she certainly became aware of the claim of the plaintiff in 1979. She did not purchase the property; on the contrary she claims she inherited it from her mother. The property is in my opinion trust property. In Snell’s Principles of Equity (26th ed) at pp 202-203 the standing of a person `in the position of the defendant who has unwillingly received trust property was in my view spelt out quite clearly thus:
“A person receiving property subject to a trust .... becomes a constructive trustee if ... although he received it without notice of the trust, he was not a bona fide purchaser for value without notice of the trust, and yet, after he had subsequently acquired notice of the trust, he dealt with the property in a manner inconsistentwith the trust.”
Lee v Sankey (1872) LR 15 Eq 204 at 211 was quoted in the text to support this position. The text then continued at 203:
“It will be seen that it is not enough merely to show that he was not a purchaser without notice of the trust. Liability as a constructive trustee will not be imposed on him unless he has knowledge that a trust exists, though this knowledge may be imputed to him from the circumstances. If he does not have this
knowledge, and is not a bona fide purchaser, he will be a mere innocent volunteer, and although he will be liable to restore the trust property if he still possesses it, he will not be chargeable as a trustee if he has parted with it or mixed it with his own property.”
The plaintiff-appellant led evidence as I have already pointed out which was indisputable that she is the sole heir and next of kin of her father Saaka Dagomba. She is the sole surviving beneficiary of his estate. Nabia Dahali and after her death the defendant-respondent held house No G 30 in trust for the beneficiary who by the evidence is the appellant. She is therefore entitled to:
(a) a declaration of title to house No G 30, Tamale;
(b) recovery of possession; and
(c) perpetual injunction against the defendant, her servants and agents.
Nabia Dahali was a licensee and her daughter Naama Dahali, the respondent herein, is equally a licensee for she cannot acquire a greater interest than her predecessor-in-title. The circumstances, however, do indicate that she is in all probability an innocent volunteer. For this reason I will make no order in regard to the fourth claim to mesne profits, contenting myself with her liability to restore the trust property and give the appellant herein quiet enjoyment consistent with the principle I have already referred to in Snell.
Accordingly it is for the reasons I have canvassed above that on 26th March 1984, I concurred in allowing her appeal in this case and reversed the decision of the High Court and gave judgment in her favour vindicating her entitlement to the above reliefs.
EDUSEI JA. I agree
EDWARD WIREDU JA. I also agree.
DECISION. Appeal allowed.