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GOLIGHTLY AND OTHERS v. VANDERPUYE


  • New
  • 1961-11-27
  • HIGH COURT
  • GLR 716720
  • Print

OLLENNU, J.


Summary

Succession?-Distribution of estate under the Marriage Ordinance, Cap. 127 (1951 Rev.) s. 48?-Whether children of previous customary marriage entitled to share. Land Law?-Title of purchaser?-Application of Land Development (Protection of Purchasers) Act, 1960 (Act 2) s. 1.

Headnotes

The first two plaintiffs were children of Odartey Golightly by a customary marriage; the other six plaintiffs were his children by two marriages under the Marriage Ordinance, Cap. 127 (1951 Rev.). The said Odartey died in 1927, and was survived by these children, the second of the Ordinance wives, and his younger brother Kojo Golightly. In 1945 Kojo Golightly leased the land in dispute to a C.A. Vanderpuye, deceased, who erected a building on it. The defendant is the head of family of the said C.A. Vanderpuye. The plaintiffs brought this action in 1960 for a declaration that the lease of 1945 is invalid because it did not have their consent and concurrence, and for recovery of possession of the said premises. The defendant contended that the property was not self-acquired by Odartey; it was family property and so his widow and children have no interest therein; secondly, that the plaintiffs are estopped by acquiescence from challenging the lease and the title of C.A. Vanderpuye; and thirdly that C.A. Vanderpuye having built on the land at considerable cost was protected by the Land Development (Protection of Purchasers) Act, 1960 (Act 2).

Judgement

ACTION by the children of a deceased person for recovery of possession of land and for declaration that a lease in favour of the defendant's predecessor is null and void.

The plaintiffs are the children of one Odartey Golightly, deceased. The first two by marriage under customary law and the other six by two marriages under the Marriage Ordinance1. The said Odartey died intestate on the 22nd February, 1927, and was survived by his second wife by marriage under the Ordinance, his said children and his younger brother Kojo Golightly.

By an indenture of lease dated the 9th May, 1945, Kojo Golightly demised to one Charles Annan Vanderpuye, now deceased, the piece of land now in dispute. The defendant is the head of the family of the said Charles Annan Vanderpuye.

The claim of the plaintiffs is for a declaration that the said land was the self-acquired property of their late father, that the demise of the same to the said C.A. Vanderpuye is null and void and conferred no interest [p.718] in the said land upon the said C.A. Vanderpuye on the grounds that the demise was made without their knowledge and consent. They also claim an order for recovery of possession of the said premises.

The defence is that the land demised by the deed was not the self- acquired property of the said Odartey but was the property of his maternal family purchased with proceeds from the sale of family property, and held by him in a representative capacity as head of his said family. The defence further pleaded that in any event the plaintiffs are estopped by their acquiescence from claiming title to and recovery of possession of the land.

The first issue is, did the property belong to Odartey Golightly? On that issue the plaintiffs led evidence that the land was the self-acquired property of their father the said Odartey. Very feeble attempts were made by the defendant to show that it was family property purchased with proceeds from sale of a family house which was situate at Sempe, Accra. The said attempts failed miserably. Two witnesses were called by the defendant in that regard. The first of them is D.W. 1, nephew of Odartey and Kojo. The sum total of his evidence on that point is that his evidence that Odartey purchased the land with family money is only a conjecture on his part, it is not based upon any facts. His last answer to counsel for the defendant in re-examination is that: "Odartey was head of the family, and he was the one who shared the proceeds of the sale of the Sempe house to the various relations, so I took it for granted that he must have kept the share which he should have distributed to himself, Kojo and my mother and used it to buy the land". The evidence of D.W. 2 on that point must be disregarded; after she had given evidence-in-chief as if speaking of facts of her own knowledge, it came out in cross-examination that she was no more than eight years old at the time when according to her all those things happened and she took note of them. Her evidence is too ridiculous for words. I reject it. On the part of the plaintiffs, oral evidence was led that the land was the self-acquired property of Odartey. That evidence was admitted by the defendant herself who said that to her own knowledge, the owner of the land before the lease was Odartey. That oral evidence was confirmed by a document exhibit I produced from the custody of the defendant and tendered on her behalf, that document exhibit I is conclusive evidence that the land belonged to Odartey as his individual self-acquired property, and not to him as head of his family.

Now what interest have the plaintiffs in the estate of Odartey to entitle them to sue? Odartey married twice under the Marriage Ordinance. The first wife died, and he married the second thereafter. Six of the plaintiffs are issue of the two marriages. Having been survived by his second wife and also by issue of the said marriages succession to his estate was regulated by section 48 of the said Marriage Ordinance; that is to say one-third of his estate real and personal descended to his family and two-thirds to his wife and children. All the plaintiffs in this case qualify as such children: see Coleman v. Shang2. Therefore the plaintiffs have an interest in the property which entitles them to sue. [p.719]

But are the plaintiffs estopped from bringing this action by reason of their acquiescence; have they been guilty of conduct amounting to fraud, i.e. standing by and actively or tacitly encouraging the defendant or her predecessor, the late C.A. Vanderpuye, to spend money in or about the land in the bona fide but erroneous belief that he had acquired good title or interest in the land? The first element or requisite of acquiescence which should deprive a man of his legal rights is that the person pleading the acquiescence must have a bona fide though erroneous belief that he has acquired good title to the property; the second requisite is that the person against whom it is pleaded must have known of the erroneous belief of the other party, but took no steps to educate that other party to the contrary. There are other elements. If any one of the elements of acquiescence is proved to be absent, there is no acquiescence, and the true owner would not be deprived of his right: see Abbey Anor v. Ollennu.3 The principle is stated in Spencer Bower on Estoppel by Representation page 61, section 4, para. 77 as follows:

"Where a person, having a title, right or claim to property of any kind perceives that another person is innocently, and in ignorance, conducting himself with reference to the property in a manner inconsistent with such title, right, or claim, it is the duty of the former to undeceive the other party forthwith; if he omits to do so, and if all the other conditions of a valid estoppel are satisfied, he is precluded from exercising or asserting his right or title or claim as against such other party on any subsequent occasion. In such cases, the law follows the language of the Church in the Marriage Service,?-`let him now speak, or else hereafter for ever hold his peace,'?-and regards the absence of notice or protest as a representation of the absence of the right, title, or interest which should have been the subject of such notice or protest. The same consequence follows the suppression of any incumbrance, charge, or lien, which the party may have on the property".

If a man enters upon land knowing quite well that he has no right, title or interest in it, and chooses to spend large sums of money on it he does so at his own risk, because there is nothing which the owner of the land should undeceive on; he knows the fact that he has no right, title, or interest in the land. If it were not so men of wealth and influence in the community would enter upon land well knowing that it belonged to some poor and humble person and purposely spend money to improve it and thereupon claim ownership of it by virtue of the development of that land. That would mean fraud upon the poor man; neither equity nor the customary law would lend a hand in the perpetration of such fraud upon the poor and helpless.

Now the letter exhibit 2 tendered by the defence, written by C.A. Vanderpuye at the time when he was negotiating with Kojo Golightly for the lease of the land, revealed that he C.A. Vanderpuye knew quite well that he could not acquire any right, title, or interest in the land unless the demise to him was made with the consent and concurrence of certain people. The only persons whose consent and concurrence could give a valid interest are the plaintiffs and the principal members of the maternal family of Odartey. These principal members of the family at the time are a woman called Naadu, and Mr. G. A. E. Odametey, D.W. 1. In that letter exhibit 2, C.A. Vanderpuye showed that Naadu would not give [p.720] her consent, he therefore requested D.W. 1 to indicate his consent or otherwise by cablegram or airmail letter; he said: "Therefore if it can be possible you may reply by airmail or cable the words `I have agreed' or `have not agreed'. D.W. 1 did not agree and has never agreed. In spite of the refusal of Naadu and D.W. 1 to give their consent and concurrence, C. A. Vanderpuye took the lease purporting to be with the consent of P.W. 1, a paternal half-brother of the Golightlys, and of D.W. 2's maternal family and therefore incapable of binding the family, and having no authority to act on behalf of the plaintiffs. Thus the said lease is not effective to give the defendant any interest in the land, not even in the family's one-third share of it.

Counsel for the defendant referred the court to the Land Development (Protection of Purchasers) Act, 1960,4 and requested the court to invoke the provisions of section 1 thereof in aid of the defendant and dismiss the claim for recovery of possession. In my opinion that Act applies to a conveyance of land, not to a creation of an interest in land. It does not therefore apply to a lease. Moreover it applies only to a purchaser who in good faith erects a building on land purchased by him?-land to which he bona fide believed he acquired good title by reason of the said purchase. It does not apply to a tenant who erects a building on another person's land in bad faith, i.e. with full knowledge that he has no right, title, or interest in it as has happened in the present suit.

There will be judgment for the plaintiffs against the defendant for (1) declaration that the land in dispute was the self-acquired property of their father, the late Odartey Golightly, deceased; (2) that the lease dated the 9th May, 1945, is null and void and of no effect; and (3) an order for recovery of possession of the said land. The plaintiffs will have their costs fixed at 35 guineas inclusive.

Decision

<P>Judgment for the plaintiffs. </P>

Plaintiff / Appellant

C. C. Lokko

Defendant / Respondent

G. Koranteng-Addow

Referals

(1) Coleman v. Shang [1959] G.L.R. 390, C.A.; [1961] G.L.R. 145, P.C.

(2) Abbey & Anor v. Ollennu (1954) 14 W.A.C.A. 567.

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