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DJOMOA v. AMARGYEI


  • appeal
  • 1961-03-17
  • SUPREME COURT
  • GLR 170-173
  • Print

VAN LARE, SARKODEE-ADDO AND AKIWUMI, JJ.S.C.


Summary

Concessions?-Outright sale of stool land evidenced by document and confirmed by paramount chief?-Purchaser's title not challenged by vendor's successors?-Stool vendor successfully used and relied on document of sale in another action?-Whether stool vendor can plead absence of certificate of validity in action between stool and purchasers as to title to the land sold?-Estoppel?-Concessions Ordinance, Cap. 136 (1951 Rev.).

Headnotes

The following facts were undisputed. In 1928, the defendant's predecessor made an outright sale of a large portion of stool land to the plaintiffs for a consideration of G836 10s. The sale was confirmed by the paramount chief with the knowledge and concurrence of the principal sub-chiefs and elders. The transaction was evidenced by a document exhibited in the proceedings as exhibit A. This document showed that the transaction purported to be a concession and that the purchasers had failed to obtain a certificate of validity as is required by the provisions of the Concessions Ordinance, Cap. 136 (1951 Rev.). However, since 1928, the three immediate predecessors of the defendant never made any attempt to challenge the plaintiffs' title or ownership of the land and about the year 1950, the defendant's stool had successfully used and relied upon the document exhibit A in an action concerning another portion of stool land.In 1956, the defendant's stool trespassed upon part of the land sold to the plaintiffs and the plaintiffs instituted the present proceedings. In the native court the issue for determination was the extent of the land sold to the plaintiffs and this was decided in the plaintiffs' favour. The defendant appealed and in the Land Court the point was raised as to whether the defendant could rely on the plea that the document exhibit A did not comply with the Concessions Ordinance.

Judgement

APPEAL by special leave by the defendant who was unsuccessful in the North Birim Native Court "A" and on appeal therefrom in the Land Court, Accra, before Adumua-Bossman J. on the 15th February, 1958, in an action by the plaintiffs claiming declaration of title, recovery of possession, [p.171] damages for trespass and injunction. The facts, taken from the judgment of the Supreme Court, are fully set out in the headnote.

JUDGMENT OF VAN LARE J.S.C.

His lordship referred to the facts here set out in the headnote and continued:] There had been four chiefs in succession on the Abirem stool including the defendant since 1928, that is, since the stool alienated that portion of its lands to the plaintiffs, and there is no suggestion that any of the three immediate predecessors of the defendant ever made any attempt to challenge the plaintiffs' title or ownership of the area now in dispute. There is the uncontradicted evidence, on the other hand, that about the year 1950 in a case of Nana Karikari Appaw v. Nana Atwuma Mana1, concerning another portion of the Abirem stool lands, the Abiremhene, that is the defendant's predecessor who was a defendant in that case, called the plaintiff in the instant case as a witness for the purpose of tendering exhibit A in support of his case that he was the overlord of the lands of which the area describe in exhibit A formed part and that he had been exercising acts of ownership in respect of the same by selling it as his predecessor did in 1928 to Opanyin Ahyima and his "company". This conduct in our view is sufficient to estop the defendant, the present occupant of the Abirem stool from denying the plaintiff's title or ownership of the area described in the document which his predecessor in title accepted and relied on in a suit against him. However, about three years before the institution of this suit in 1956 the defendant without the leave or licence of the plaintiffs and in spite of repeated warnings entered into the area which the plaintiffs had bought from his stool, and either cut or caused to be cut down a number of economic trees on the land. He allotted portions of the land sold to the plaintiffs to his men for farming purposes in defiance of plaintiffs' right and interest, and also granted timber concessions to certain people. These events not unnaturally led to the institution of this action.

The defendant does not impugn the validity of the sale to the plaintiff and his "company"; he rather appears to have admitted the same when in his evidence at the trial he said; "In 1928 my predecessor and his stool elders sold a portion of Abirem stool land to the plaintiff and his company ... Purchase price was 836. 10s. Terms of the sale were those contained in exhibit A". His case, however, both at the trial in the native court and on appeal before the Land Court, and also at the earliest stages of the proceedings before this court was that the land sold to the plaintiff and "company" had three sides, and was therefore a triangle, and not four sides, not an oblong as appears in the sketch plan in exhibit A. It was his case therefore that he had not trespassed on plaintiffs' area, meaning thereby that the trespassed area was outside and not included in the plaintiffs' land. The real and only issue for determination before the trial native court, that is: what was the extent of the land sold and purchased, was rightly found in favour of the plaintiffs. Counsel for the appellant conceded this. On appeal, however, to the Land Court the legal point was [p.172] raised whether the fact that the document relied on, (exhibit A) had sinned against the Concessions Ordinance could be pleaded. The learned judge expressed the opinion that it could be pleaded, but nevertheless appeared erroneously, with due respect, to distinguish the present case from the well known case of Bissoe v. Ntah Aithie2 which is the authority for the proposition:

"that if a lease, conveyance or other instrument in respect of interest in or to land comprising of at least five acres, which is a concession within the meaning of the Concessions Ordinance, has not been dealt with under the said Ordinance, then such lease, conveyance or other instrument is null and void and consequently all rights of the claimant with respect to such concession, shall be deemed to have been determined absolutely".

See, Donkor v. Texas Petroleum Co.3 The learned judge failed to appreciate the importance of the plaintiff's evidence in the instant case which places entire reliance on the document, exhibit A, a conveyance of an interest in land well over five acres, which as we have already pointed out, is a concession. He further attempted to bring it within the case of Ogunbambi v. Abowab,4 and suggested (whereas the facts in the present case do not warrant such finding) that the document, exhibit A, is only of evidentiary value of the transaction, and that the plaintiffs had earlier purchased the disputed area and had been in possession thereof a long time before the execution of the instrument, exhibit A. The evidence in the instant case is not that the sale had been duly completed under customary law, with guaha cut, etc., nor that after the plaintiffs had some time been in possession the conveyance was made subsequently and "intended to confirm and perpetuate a method of a prior customary grant". If the evidence were so then such inference would be correct and the position may be different. The learned judge of the Land Court however basing his grounds on such erroneous inferences dismissed the appeal, holding, as it were, that the document, exhibit A, was not caught up by the Concessions Ordinance.

Although not approving of this reason for dismissing the appeal, we nevertheless, would dismiss the appeal but on a different ground; that is to say, that notwithstanding the plaintiffs' failure to deal with such large area of land purchased by them under the Concessions Ordinance, nevertheless in the peculiar circumstances of the case, particularly owing to the conduct of the defendant's stool in allowing the plaintiffs to deal with the land as their property, and in view of the fact that the defendant does not impugn the validity of the document relied on, and further also having successfully used and relied on this document in an action against the defendant's stool, and the defendant's stool having admitted to be the vendor of the disputed area for consideration received, it would in our view not only be improper but inequitable to plead the Concessions Ordinance which might declare the sale null and void to the detriment of the plaintiff-purchasers. [p.173]

By reason of these facts we are of opinion that the defendant is estopped in the circumstances from pleading the absence of a certificate of validity, for as between him and the plaintiffs there is no dispute as to the alienation to the plaintiffs of the area in dispute by the defendant's predecessor. We think that for a vendor or other grantor of land for valuable consideration to be permitted to plead the Concessions Ordinance so as to defeat or annul his own grant to the benefit of himself and to the detriment of the other party is little short of a plea tantamount to fraud, and as the court must not lend its support to any form of fraudulent practice we would refuse to permit the Concessions Ordinance to be pleaded on behalf of the defendant in this case.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

E. Akufo-Addo

Defendant / Respondent

Obetsebi-Lamptey, with him Koi Larbi

Referals

(1) Bissoe v. Aithie (1926) F.C. '26 - '29, 113

(2) Donkor v. Texas Petroleum Co. [1961] G.L.R. 167

(3) Ogunbambi v. Abowab (1951) 13 W.A.C.A.222

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