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TAMAKLOE v. NUNOO


  • appeal
  • 1960-05-09
  • HIGH COURT
  • GLR 115-119
  • Print

OLLENNU, J.


Summary

Land?-Recovery by possession?-Estoppel by record?-Estoppel by conduct.

Headnotes

In 1946 one Allotey bought land at Link Road, Accra, from the Sempe Stool and later in the same year resold a portion of it to the plaintiff.On 10th December, 1957 the plaintiff obtained judgment against one Modua Abrahams (an elder of the Sempe Stool) in an action for declaration of title to the land he had brought in 1946 and damages for trespass. (Allotey v. Abrahams; Tamakloe v. Abrahams (consolidated suits) 3 W.A.L.R. 280).The present action was for recovery of possession of the land. The plaintiff claimed that the defendant had entered on the land and continued the erection of buildings which had been begun by Modua Abrahams.The case for the defendant was that she had bought the land in question from Abrahams in 1955, erected a building thereon and that it was not until 21st February, 1958 when she received a letter from plaintiff's solicitor that she became aware of the judgment of 10th December, 1957. She pleaded that the plaintiff was estopped by conduct from claiming ownership or possession of the land.

Judgement

ACTION for recovery of possession of land.

By his writ of summons issued on the 29th of January, 1959, the plaintiff claimed against the defendant an order for recovery of possession of a piece of land situate at Link Road, Accra. He pleaded that he obtained a declaration of title to the land on the 10th day of December, 1957 in this court (3 W.A.L.R. 280); and further that the defendant has wrongfully entered upon this said land.

In a defence filed on behalf of the defendant, by her solicitor, it was pleaded that the defendant purchased the land in dispute from one Modua Abrahams an elder of the Sempe Stool, Accra in 1955; that she completed erection of a substantial house on the said land in March, 1957, without let or hindrance from any quarter; that it was not until the 21st February, 1958, that she received a letter from the plaintiff?'s solicitor informing her that the plaintiff had obtained judgment against her vendor Modua Abrahams. Upon these facts it was pleaded formally by the defendant that:

?"4. The defendant says that she had been led by the plaintiff?'s acquiescence to believe that the land was hers, and had spent a considerable sum of money in constructing a building on the said land. She further says that the plaintiff had, or ought to have had full knowledge of the fact of her occupation of the land.

5. The defendant therefore contends that the plaintiff is estopped by conduct from laying claim to ownership or to possession of the said land."

Two issues arise upon those pleadings for determination:

(1) whether title to the land is vested in the plaintiff, and if it is,

(2) whether the plaintiff has been guilty of laches and is therefore estopped from recovering possession of the land which the defendant is occupying.

The onus is upon the plaintiff to establish his title to the land, and it is upon the defendant to establish that the plaintiff has been guilty of conduct amounting to fraud as to deprive him of his right to recover possession of the land.

On the issue of title the plaintiff relies upon the Sempe Stool as his root of title, while the defendant relies upon Modua Abrahams as her root of title. The plaintiff tendered in evidence a judgment of this court delivered in consolidated suits Allotey v. Abrahams; Tamakloe v. Abrahams (3 W.A.L.R. 280) in which he obtained declaration of his title against Modua Abrahams, the vendor of the defendant. The judgment was admitted and marked Exhibit "B". That judgment is not binding upon the defendant as a privy of the said Modua Abrahams, unless it could be shown that the sale to her by Modua Abrahams was made after commencement of the earlier in date of the consolidated suits; see Mercantile Investment and General Trust Company v. River Plate Trust, Loan and [p.117] Agency Company [1894] 1 Ch. 578). But it is binding on her in so far as it is a judgment in rem as to the status of the land, as to the person in whom the right to alienate it is vested.

Now although the defendant pleaded that she purchased the land in 1955, yet in her evidence she said she purchased it only three years ago, and in any event less than five years ago. She did not produce her title deeds; she was not obliged to. It is therefore not certain that the sale to the defendant took place on a date subsequent to the commencement of the consolidated suits; the judgment (Exhibit "B") therefore cannot operate as an estoppel per rem judicatam on the issue of the plaintiff?'s title as against the defendant. The plaintiff however put in his title deeds showing that he purchased the land from the Sempe Stool of Accra. This fact which was not disputed is confirmed by the judgment, (Exhibit ?"B?").

Now that judgment (Exhibit "B") goes a step further than merely establishing the plaintiff?'s title as against Modua Abrahams; it established three most important matters, namely that:

(1) the land is portion of Sempe Stool land;

(2) the only competent authority to alienate Sempe Stool lands is the Sempe Mantse acting with the consent and concurrence of the principal elders of his stool; and

(3) Modua Abrahams has no authority to deal with Sempe Stool land.

The plaintiff therefore proved that the land which is a portion of Sempe Stool land was alienated to him by the Sempe Mantse acting with the consent and concurrence of the principal elders of the Sempe Stool, as evidenced by his title deeds. The plaintiff thus established his title to the land he claims and to the right of immediate possession unless he could be shown to have lost that right. And that takes me to the next point, the issue of laches.

I shall first examine the evidence and then apply the law to the facts. According to the plaintiff, the cause of the action he took against Modua Abrahams was entry upon the land and carrying on building operations thereon; he said that he has sued the defendant for carrying on the erection of the very buildings. To quote his own words, " at the time I sued Abrahams I did not know that the defendant was connected with those acts of trespass on my land, the acts in question are buildings which were being erected on my land," and under cross-examination he stated: ?"when those building operations began and I made enquiries, Modua Abrahams whom you say was your vendor was the only person who claimed to be responsible for their erection. I caused my solicitor to write to you immediately I got to know that you were then claiming to be responsible for the erection." The plaintiff and his witness each gave evidence that he saw the defendant in court during the hearing of the consolidated suits against Modua Abrahams. The defendant, of course, denied that allegation. [p.118]

The evidence of the defendant is that she purchased that land three years ago and, she said, ?"I put up a small building on that land; about two years later I received a letter form Mr. Apaloo, solicitor for the plaintiff complaining that I had trespassed on his client?'s land.?" Under cross-examination she also said ?"I did not get to know about the action which the plaintiff took against Modua Abrahams in 1956, four years ago. It is less than five years ago that I purchased the land. I say I bought it three years ago. I say that it was two years after completion of my buildings and after tenants had occupied them that I received the letter from Mr. Apaloo." She tendered in evidence a Certificate of Habitation issued by the Accra Municipal Council, which showed that the said buildings were completed in March, 1958. This certificate contradicted the defendants' evidence that she received Mr. Apaloo's letter two years after the completion of the building, for as shown in paragraph 2 of her statement of defence, she received that letter on 21st February, 1958. The impression left is that the defendant hurried up to complete the buildings after she had received the letter from the plaintiff?'s solicitor.

Now acquiescence which would operate to deprive an owner of land of his right to recover possession from a person who takes possession without title, is one which must amount to fraud. There are five elements which must exist together to make acquiescence amount to laches. In the case Willmott v. Barber (15 Ch. D. at p. 105) Fry, J. set out in full all these five elements. For the purposes of this case I shall mention two:

(1) the owner of the land must know of the trespasser's mistaken belief of his, the trespasser's right; if he does not, there is nothing which calls upon him to assert his own rights; and

(2) the owner of the land must have encouraged the trespasser in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right.

There is nothing in the evidence either of the plaintiff or of the defendant or of both taken together from which it can be inferred that before the determination of his action against Modua Abrahams, the plaintiff was aware or could have been aware that the defendant was claiming any rights in the land, or was in any way connected with the building operations on the land. It cannot therefore be said that, with knowledge that the defendant had a mistaken belief of her rights in the land, the plaintiff took no steps to assert his own rights. I accept the uncontradicted evidence of the plaintiff that the buildings which were being erected, for which he sued Modua Abrahams, are the very buildings for erection of which the defendant claims responsibility. I am satisfied also that when the building operations were commenced, the plaintiff took timely steps to stop them by suing Modua Abrahams, the only person who, I believe, came forward at that time and claimed responsibility for them. I am further satisfied, taking everything into consideration, that the plaintiff and his witness were not mistaken when they identified the defendant as a woman they each saw sitting in court during the proceedings in the suit which the plaintiff instituted against Modua [p.119] Abrahams. It seems to me that the defendant took shelter behind Modua Abrahams, and it was only after Modua had lost against the plaintiff that she came forward herself to face the situation.

Definitely the evidence does not show that the plaintiff directly or indirectly encouraged the defendant in expenditure of money, or that he has sat by and abstained from asserting his title to the land. On the contrary the plaintiff is shown to me to be very vigilant. As soon as he saw trespass committed on his land, he sued the person who came forward and asserted that he was responsible, and the defendant having come forward and boldly claimed responsibility after the first person who claimed responsibility had been defeated, she was immediately warned by the plaintiff to desist from her acts of trespass.

Since it is shown upon the evidence that the plaintiff never had, and could not, prior to the determination of his suit against Modua Abrahams, have had knowledge that the defendant was laying claim to rights in the land, I am bound to hold that he has not been guilty of laches, and he is therefore entitled to his claim.

There will therefore be judgment for the plaintiff for recovery of the possession of the land (with costs fixed at 40 guineas inclusive).

Decision

<P>Judgment for plaintiff.</P>

Plaintiff / Appellant

Arthur

Defendant / Respondent

In person.

Referals

(1) Allotey v. Abrahams; Tamakloe v. Abrahams (Consolidated suits) 3 W.A.L.R.280.

(2) Mercantile Investment and General Trust Company v. River Plate Trust, Loan and Agency Company [1894] 1 Ch.578.

(3) Willmott v. Barber (1880) 15 Ch.D.96.

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