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Land - stool land - Recovery of
possession - Trespass.- Whether
the registration under the Lands
Registry Act, 1962 (Act 122) of
document of title executed in
2008 in respect of land in a
registration district was valid
by virtue of the provisions of
s. 13(3) of the Land Title
Registration Act, 1986 - Wether
or not section 135(1) of Act 152
applicable to registration of
instruments executed after 1986
- Whether it makes the
registration of document under
Act 122 void - Whether the Court
of Appeal failed to enforce and
give effect to E.I 18 of 1983
HEADNOTES
The
plaintiff’s case as pleaded was
that the land in dispute forms
part of the larger stool land
owned by the Nungua Stool. He
obtained a grant from the Nungua
Mantse Odaifio Welenchi III and
the stool elders. However, as a
result of the Nungua Chieftaincy
dispute, he was denied
registration by the Lands
Commission. He was thus
compelled to go to Nii Odai
Ayiku IV and his stool elders
one of the rival claimants to
the Nungua Stool for a grant of
the same piece of land. He was
able to register the title per
the indenture he obtained from
Nii Odai Ayiku IV. He moved into
possession by conveying trips of
sand and stones thereon. The
defendants challenged his title
to the land hence the action.
the defendants averred that the
1st defendant
acquired a large tract of land
of which the area in dispute
forms a part as a native of
Nungua, sometime in 1998 and has
been in occupation since then.
The 1st defendant
contended that she fenced the
land leaving a small portion in
front of the land. According to
her one Nii Bortei Sango allowed
squatters to place kiosks and
other temporary structures on
the unfenced portion of the
land. These squatters caused a
lot of nuisance there by dumping
refuse. When she called upon Nii
Sango to cause the nuisance to
be removed from the site, Nii
Sango claimed that the land
belonged to his family and that
he was prepared to sell it to
her. She agreed to buy this
piece of land from Nii Sango at
a fee of GH₵8,000.00. She paid a
total of GH₵5,000.00 in two
installments of GH3,000.00 and
GH₵2,000.00 respectively in
2006. The said Nii Sango reneged
on his promise to remove the
squatters so the 1st
defendant took an action against
him and the squatters at the
District Court and obtained
judgment against them. After the
squatters had vacated the land,
she had cleared same of the
refuse and erected a fence
around it. It was after this the
plaintiff trespassed upon the
land in the company of one
Eddie, a brother of Nii Sango to
take measurements of the land.
She reported the matter to the
Police. Again in 2009 the
plaintiff re-entered the land,
broke the gate and deposited
sand and stones thereon. She
made a report to Police and
whilst the matter was still in
the hands of the Police, the
plaintiff instituted this
action. The defendants averred
that the plaintiff’s title
registration was of no effect
since it was not done under the
PNDCL 152. The High Court as
well as the Court of Appeal gave
judgment in favour of the
plaintiff. The Court of Appeal
upheld the plaintiff’s claim
that he got the land from the
true owners, being the Nungua
Stool and upheld the validity of
his documentation as duly
registered by law.
.HELD
These registration laws are
particularly applicable when
matters of priority come into
play. The 1st
defendant who holds no valid
contract cannot therefore rely
on lack of Ministerial consent
and registration under PNDCL 152
to defeat the plaintiff’s deeds
which create estoppel by deed
and conduct against Nii Sango
and the Nungua Stool. And to
recap, the plaintiff has a valid
document from the Nungua Stool
fully concurred in by Nii Sango,
though he has not succeeded in
registering it through no fault
of his. He also holds a document
which he has registered which we
are not able to set aside for
reasons explained herein, even
though he is yet to re-register
under PNDCL 152. The 1st
defendant has no valid contract
with Nii Sango and has received
no document from the Nungua
Stool. We do not intend to go
into further details as we
dismiss the appeal and endorse
the orders made by the trial
High Court.
STATUTES REFERRED TO IN JUDGMENT
LAND TITLE REGISTRATION LAW,
1986 (PNDCL 152)
NUNGUA CHIEFTAINCY AFFAIRS (NII
ODAI AYIKU IV) INSTRUMENT 1983
Evidence
Act, (1975) N.R.C.D. 323
Lands
Registry Act, 1962 (Act 122)
Administration of Lands Act,
1962 (Act 123)
Conveyancing Act, (1973) N.R.C.D.
175.
Lands Commission Act, 2008 (Act
767)
CASES REFERRED TO IN JUDGMENT
IN RE NUNGUA
CHIEFTAINCY AFFAIRS, ODAI AYIKU
IV. ATTORNEY-GENERAL (BORKETEY
LAWEH XIV APPLICANT) (2010)
SCGLR 413.
ASARE v. BROBBEY (1971) 2 GLR
331 at page 337
AMUZU v. OKLIKAH (1997-98)1 GLR
89
REPUBLIC v. CIRCUIT
COURT, ACCRA; EX PAARTE KOMELEY
ADAMS & Others (KOMIETTEH ADAMS
(substituted by) OTSIATA IV
INTERESTED PARTY) (2012) SCGLR
111
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
A. A. BENIN
COUNSEL
RAYMOND BAGNABU ESQ FOR THE
PLAINTIFF/ APPELLANT /APPELLANT.
ANDY APPIAH – KUBI ESQ. FOR THE
DEFENDANT/ RESPONDENT/
RESPONDENT.
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JUDGMENT
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BENIN,
JSC:
The
plaintiff/respondent/respondent,
hereafter called the plaintiff,
sued out a writ of summons at
the High Court, Accra against
the
defendants/appellants/appellants,
hereafter called the 1st
and 2nd defendants
respectively, claiming these
reliefs:
(1)
Declaration of title to all that
piece or parcel of land situate,
lying and being at Baatsonaa,
Accra, covering an approximate
area of 0.182 acre and bounded
on the northeast by a proposed
road measuring 122 feet 1 inch
more or less, on the south-east
by stool land measuring 44 feet
6 inches more or less, on the
north west by a proposed road
measuring 91 feet 2 inches, and
on the south by stool land
measuring 117 feet 2
inches-which piece or parcel of
land is more particularly
delineated on a site plan, as
per indenture registered as No.
32000/312C/08 and stamped as
AR/1426C/2008.
(2)
Recovery of possession of any
portion of the land being
falsely claimed by defendants.
(3)
General damages for trespass.
(4)
An order of perpetual
injunction restraining the
defendants herein, their agents,
workers, assigns, servants and
any other persons claiming
through them from interfering
with plaintiff’s title to the
ownership, development and
occupation of any portion of the
parcel of land aforesaid.
The
plaintiff’s case as pleaded was
that the land in dispute forms
part of the larger stool land
owned by the Nungua Stool. He
obtained a grant from the Nungua
Mantse Odaifio Welenchi III and
the stool elders. However, as a
result of the Nungua Chieftaincy
dispute, he was denied
registration by the Lands
Commission. He was thus
compelled to go to Nii Odai
Ayiku IV and his stool elders
one of the rival claimants to
the Nungua Stool for a grant of
the same piece of land. He was
able to register the title per
the indenture he obtained from
Nii Odai Ayiku IV. He moved into
possession by conveying trips of
sand and stones thereon. The
defendants challenged his title
to the land hence the action.
By an
amended statement of defence,
the defendants averred that the
1st defendant
acquired a large tract of land
of which the area in dispute
forms a part as a native of
Nungua, sometime in 1998 and has
been in occupation since then.
The 1st defendant
contended that she fenced the
land leaving a small portion in
front of the land. According to
her one Nii Bortei Sango allowed
squatters to place kiosks and
other temporary structures on
the unfenced portion of the
land. These squatters caused a
lot of nuisance there by dumping
refuse. When she called upon Nii
Sango to cause the nuisance to
be removed from the site, Nii
Sango claimed that the land
belonged to his family and that
he was prepared to sell it to
her. She agreed to buy this
piece of land from Nii Sango at
a fee of GH₵8,000.00. She paid a
total of GH₵5,000.00 in two
installments of GH3,000.00 and
GH₵2,000.00 respectively in
2006. The said Nii Sango reneged
on his promise to remove the
squatters so the 1st
defendant took an action against
him and the squatters at the
District Court and obtained
judgment against them. After the
squatters had vacated the land,
she had cleared same of the
refuse and erected a fence
around it. It was after this the
plaintiff trespassed upon the
land in the company of one
Eddie, a brother of Nii Sango to
take measurements of the land.
She reported the matter to the
Police. Again in 2009 the
plaintiff re-entered the land,
broke the gate and deposited
sand and stones thereon. She
made a report to Police and
whilst the matter was still in
the hands of the Police, the
plaintiff instituted this
action. The defendants averred
that the plaintiff’s title
registration was of no effect
since it was not done under the
PNDCL 152.
The
plaintiff gave evidence by
himself and called the Nungua
Stool which sent its Secretary
to represent it as a witness.
The case for the plaintiff was
as pleaded that he acquired the
land from the Nungua Stool who
gave him a document which he was
able to register with the Lands
Commission, after the Commission
had declined to register an
earlier document issued to him
by a rival claimant to the
Nungua Stool. The 2nd
defendant testified for the 1st
defendant who she said was the
true owner of the land having
purchased same from Borlarbi.
Having acquired the land from
Borlarbi she fenced it leaving a
portion which they were informed
was part of a road reservation.
Later a lot of squatters
encroached upon this reserved
land at the instance of one Nii
Sango who claimed ownership of
the land. The 1st
defendant negotiated with Nii
Sango to purchase the land from
him at an agreed price of
GH₵8,000.00. She made part
payment leaving a balance of
GH₵3,000.00 to be paid after Nii
Sango had removed the squatters
from the site. However, Nii
Sango failed to honour his
promise to remove the squatters
so the 1st defendant
brought an action against the
squatters and Nii Sango at the
District Court. She continued
her testimony that the court
gave the squatters three months
expiring in August 2008 to
vacate the place. The 1st
defendant thereafter removed the
debris placed on the land by the
squatters and fenced it with
roofing sheets. The plaintiff
broke into the fenced land and
dumped sand and stones there. A
report was made to the police
but whilst the matter was still
in the hands of the police, the
plaintiff instituted this
action.
Nii Sango
came to testify at the instance
of the defendants. He claimed
the land was originally owned by
his father but they sold it to
Borlarbi who in turn sold it to
the 1st defendant.
But they reserved the area in
dispute. He affirmed that he
agreed to sell it to the 1st
defendant but when the latter
failed to pay the agreed price
he re-sold it to the plaintiff
and got the Nungua Manche Nii
Welenchi to give the plaintiff
an indenture. He admitted he
prepared no indenture for the 1st
defendant saying as a native of
Nungua she herself could go to
the Manche for a document.
Borlarbi testified for the
defendants to the effect that he
sold the entire land including
the area in dispute to the 1st
defendant.
The High
Court as well as the Court of
Appeal gave judgment in favour
of the plaintiff. The Court of
Appeal upheld the plaintiff’s
claim that he got the land from
the true owners, being the
Nungua Stool and upheld the
validity of his documentation as
duly registered by law. The
defendants have appealed to this
court against the decision of
the Court of Appeal on several
grounds contained in the
original grounds of appeal as
well as in the additional
grounds of appeal filed pursuant
ot leave of court. It is
proposed to set them out
seriatim for purposes of
coherence and they are:
(i)
The judgment of the Court
of Appeal is against the weight
of the evidence.
(ii)
The Court of Appeal erred
in law when it held that the
registration under the Lands
Registry Act, 1962 (Act 122) of
plaintiff’s document of title
executed in 2008 in respect of
land in a registration district
was valid by virtue of the
provisions of s. 13(3) of the
Land Title Registration Act,
1986. That section applies only
to instruments registered under
Act 122 before the coming into
force of Act 152 of 1986. The
provision applicable to
registration of instruments
executed after 1986 is s. 135(1)
of Act 152 and this section
makes the registration of the
plaintiff’s document under Act
122 void and not capable of
grounding plaintiff’s claim for
declaration of title.
(iii)
The Court of Appeal
misdirected itself on the
evidence and the law and arrived
at a wrong conclusion as to the
nature of the interest of Nii
Sango who sold the land to 1st
defendant first before he later
purported to sell to plaintiff.
The evidence showed that the
said Nii Sango exercised
customary rites of ownership of
a subject in respect of vacant
stool land and the Court of
Appeal ought to have upheld his
customary determinable title to
the land and not insisted on a
formal documentary grant from
the Nungua Stool. As a
consequence of the misdirection
the Court of Appeal failed to
apply the customary law
principle that a grant by a
stool of land in which a subject
has a determinable title is
void.
(iv)
The Court of Appeal
misdirected itself as to the
evidential value of receipts for
payments for land; such receipts
have been held by the courts to
amount to prove (sic) of
customary transactions in land
and such transactions are not
inferior to documentary
transactions in their
effectiveness in transferring
interests in land. But for the
misdirection the Court of Appeal
ought to have held that the
receipts were proof of
defendant’s prior grant.
(v)
The Court of Appeal
committed error of law by
failing to enforce and give
effect to E.I 18 of 1983 which
is an existing statute of Ghana
that prohibits Nii Odai Ayiku IV
from acting as the Chief of
Nungua. Giving effect to it
would have required the trial
judge to hold that the deed of
lease executed by Nii Odai Ayiku
IV as Chief of Nungua of
plaintiff is null and void.
(vi)
The Court of Appeal erred
in law by failing to apply the
provisions of s. 24(1) of the
Land Registry Act, 1962, (Act
122) to respondent’s lease
purportedly dated 15th
May 2008 and made between King
Odaifio Welentsi III and Numo
Borketey Laweh, Gborbu Wulomo
and respondent and to hold that
the said instrument was of no
effect for non registration.
(vii)
The Court of Appeal erred
in law by failing to apply the
provisions of s. 8(1) of the
Administration of Lands Act,
1962 (Act 123) to the
respondent’s leases exhibits A
and B purported to have been
made between Nungua Stool and
respondent and to hold that the
said leases are ineffective in
vesting any interest in
respondent for want of the
Minister’s concurrence.
It is now
trite learning that a second
appellate court should be slow
in overturning the concurrent
opinions of two courts below on
matters of fact. This appeal
raises some serious questions of
law which we will address first.
We will then address the factual
issues that are material to the
determination of the appeal
before us. The appeal could be
disposed of by a determination
of whether Nii Sango gave the 1st
defendant a valid title or not.
This is the first issue to
resolve because the evidence was
that Nii Sango first sold the
land to the 1st
defendant before re-selling the
same land to the plaintiff. The
other issue is whether or not
the plaintiff secured a valid
grant from the Nungua Stool. The
legal questions raised in the
additional grounds of appeal are
the subject-matter of grounds
(v), (vi) and (vii), supra as
well as original ground (ii).
To begin
with, Counsel for the defendants
argued ground (v); that by E.I.
18 of 1983 Nii Odai Ayiku IV was
prohibited from acting as Nungua
Manche, therefore the indenture
exhibit A which he executed
should have been declared null
and void. In effect counsel
wants the court to declare that
Nii Odai Ayiku IV is not the
chief of Nungua and as such
cannot grant a valid title to
Nungua Stool lands. This a
question of fact which should
have been raised at the trial
court because the plaintiff was
entitled to lead evidence as
regards the current status of
Nii Odai Ayiku IV. The Lands
Commission must be credited with
knowledge of who is the rightful
person to give away registrable
documents to Nungua Stool lands.
The Lands Commission is the
repository of the appropriate
persons to sign away stool and
family lands. Thus the principle
Omnia praesumuntur rite
esse acta should be
credited to the Lands
Commission. Therefore the
defendants who are asserting the
contrary should lead evidence to
rebut the presumption of
regularity that is raised by the
Lands Commission’s act of
accepting exhibit A for
registration. See section 37(1)
of the Evidence Act, (1975)
N.R.C.D. 323. Having denied
registration to exhibit B issued
by NiI Wulenchi III and having
admitted exhibit A issued by Nii
Ayiku IV, the Lands Commission
must have known the present
status of Nii Ayiku IV and
unless that was raised at the
trial when the document was
sought to be tendered the trial
court was entitled to accept and
rely on it. Having failed to
lead evidence to rebut the
presumption of regularity, the
appellants could not be heard to
say that Lands Commission, as
well the court erred in not
relying on E.I. 18 to reject
exhibit A.
That it
was a question of fact is
particularly highlighted by the
facts which gave rise to this
court’s decision in the Nungua
Chieftaincy matters especially
as affecting the status of Nii
Odai Ayiku IV in the case of IN
RE NUNGUA CHIEFTAINCY AFFAIRS,
ODAI AYIKU IV. ATTORNEY-GENERAL
(BORKETEY LAWEH XIV APPLICANT)
(2010) SCGLR 413. Among other
things, Nii Odai Ayiku IV
challenged the basis for his
destoolment as the Nungua Manche
which was affirmed by E.I. 18 of
1983, namely Nungua Chieftaincy
Affairs (Nii Odai Ayiku IV)
(Prohibition) Instrument. He
obtained judgment at the High
Court, albeit by default, on 10th
May 2001. Four years later
Borketey Laweh mounted a serious
challenge to the status of Nii
Odai Ayiku IV as Nungua Manche
and succeeded in setting aside
the default judgment. The
proceedings continued through
the Court of Appeal to the
Supreme Court which finally
decided in February 2010 that
E.I. 18 was valid.
The
position then was that the Lands
Registry would be dealing with
Nii Odai Ayiku IV when he
succeeded at the High Court and
that situation could have
prevailed for so long. It would
not be surprising that the name
of Nii Odai Ayiku IV would still
appear in the records of the
Lands Commission as the Nungua
Manche in 2008 when the
plaintiff submitted his document
for registration. At the time
the question of Nii Odai Ayiku’s
status was being battled through
the courts. And unless the
court’s decisions were brought
to the notice of the Lands
Commission to enable them to
rectify the records, it would be
unfair to fault them for
registering any document issued
in the name of Nii Odai Ayiku
IV. It would therefore be unjust
and unreasonable in the
circumstances for the court to
reject Exhibit A.
Next,
counsel for the defendants
argued ground (vi) that the
indenture made between Nii
Wulenchi III and his stool
elders on one side and the
plaintiff was not registered
under Act 122 and was thus of no
effect. This argument does not
take into consideration the fact
that it is not the fact of
registration that gives validity
to a contract for the sale of
land. Registration gives
security of title to the
assignee, vendee or lessee, but
as has been held in a number of
cases even registration does not
guarantee title to the
registrant. Thus in every case
of a sale of land the first
investigation is whether the
assignor or lessor or vendor, as
the case may be, had title to
grant. Then whether the parties
entered into what in contract
law passes for a valid contract.
Thirdly and most important,
whether the parties to the
contract had reduced same into
writing and both parties had
duly executed it. The last one
has been a requirement of
statute law namely the
Conveyancing Act, (1973)
N.R.C.D. 175. The relevant
provisions of the Conveyancing
Act are contained in sections 1,
2 and 3 thereof and they
provide:
Section
1-Mode of Transfer
(1)
A transfer of an interest in
land shall be by a writing
signed by the person making the
transfer or by his agent duly
authorised in writing, unless
relieved against the need for
such a writing by the provisions
of section 3.
(2)
A transfer of an interest in
land made in a manner other than
as provided in this Part shall
confer no interest on the
transferee.
Section
2-Contracts for Transfer
No
contract for the transfer of an
interest in land shall be
enforceable unless-
(a)
it is evidenced in writing
signed by the person against
whom the contract is to be
proved or by a person who was
authorized to sign on behalf of
such person; or
(b)
it is relieved against the need
for such writing by the
provisions of section 3.
Section
3-Transactions Permitted Without
Writing
(1)
Sections 1 and 2 shall not apply
to any transfer or contract for
the transfer of an interest in
land which takes effect…………..(h)
by oral grant under customary
law.
(2)
Sections 1 and 2 shall be
subject to the rules of equity
including the rules relating to
unconscionability, fraud, duress
and part-performance.
These
provisions impose a duty on
parties to a sale or transfer of
an interest in land, to reduce
the terms into writing failing
which no contract could be said
to have come into being. And
once the terms of the contract
have been reduced into writing
and duly executed the parties
are bound by it. It is this
contract made under this law
which entitles the assignee,
lessee or vendee, as the case
may be, (or transferee for
short) to enter the land and
claim ownership thereof. The
registration is a later act
which is to be performed by the
transferee. Therefore even if
the transferee has not
registered the contract document
he does not forfeit his title on
that account. Failure to
register title may have its own
consequences; like for instance
if a subsequent bona fide
purchaser acquires the same
piece of land for value and goes
ahead to register his title he
may succeed in defeating the
prior purchaser, assignee or
lessee. Thus all the arguments
that exhibit B is of no effect
for lack of registration is not
acceptable as long as the
foundation of that document has
not been challenged under the
Conveyancing Act. That is, as
long as Nii Wulenchi III and his
elders have not been disputed to
be the rightful persons to sign
it, this document is valid. Nii
Sango’s testimony on this stood
unchallenged. Therefore even if
we put aside exhibit A because
of Nii Odai Ayiku’s signature,
exhibit B would still be valid
to grant the plaintiff title
under the law, lack of
registration notwithstanding. It
can be registered at any time
the Lands Commission removes
recognition from Nii Odai Ayiku
IV if this court’s judgment is
brought to their attention and
Nii Wulenchi III is entered as
the rightful person to give away
registrable documents on Nungua
Stool lands. Until that is done
even application for
registration under PNDCL 152
would suffer the same fate now
that the Lands Commission Act,
2008 (Act 767) has placed all
forms of registration under the
umbrella of the Lands
Commission.
On this
subject it is relevant to recite
with approval what counsel for
the plaintiff said in his
statement of case: ‘My Lords,
the Appellant’s complaint is
premised on the absence of
registration of the conveyance
and refers to section 24(1)
of…..Act 122 requiring
registration for the conferment
of legal effect to the said
document. However, my Lords, in
the case of ASARE v. BROBBEY
(1971) 2 GLR 331 at page 337 the
Court of Appeal in its judgment
observed as follows:
“…….when Section 24(1)……of the
Land Registry Act provides that
a document shall be of no legal
effect until it is registered,
it means that the document and
its contents cannot have any
legal effect until registration
has been completed. This also
means that the document is not
valid for all purposes because
the formality of registration is
necessary to complete its
validity…………….”
My Lords, the above case was
quoted in the case of AMUZU v.
OKLIKAH (1997-98)1 GLR 89
with modification, upon
application of the Conveyancing
Act….as follows:
“With due respect to the Court
of Appeal in the above case,
even though I agree that with
regards to the effective
enforcement of a document, the
document need be registered,
save for fraud, to take priority
over all other unregistered
documents, I do not think an
unregistered document is not
valid for all purposes. It is
required under section 1(1) of
………NRCD 175 that a transfer of
an interest in land, ‘shall’
save for the exceptions, be in
writing……It follows that if a
document affecting land is in
writing, it could be enforced
even if not registered, the
document could be used against
the vendor who seeks to
overreach the interest of the
holder that document, and the
holder of that document can also
use the unregistered document in
an action for specific
performance…….’
My Lords, the respondent is of
the opinion that the conveyance
executed by King Odaifio
Wulentsi in favour of the
respondent complies with the
requirement under……NRCD 175 and
therefore transfers title from
the grantor to the respondent.
Having submitted same to the
Lands Commission for purposes of
registration, the respondent is
deemed to have also complied
with the appropriate law, save
administrative process to
validate the transfer, and to
give legal effect of the
content.’
It is by
the Conveyancing Act that a
transfer of an interest in land
is effected whether the grant is
under customary law or
otherwise, for even customary
grants are required to be
recorded in the appropriate
registry. The court should not
downplay the relevance and
importance of the purpose of the
Conveyancing Act and relegate it
to the background and give
prominence to the laws requiring
registration, lest the latter
laws should be used to defraud
persons who had genuinely
secured grant of land but had
not succeeded in registering
same. We will talk about this a
little bit more in this
decision. Once there was a valid
contract between the Stool of
Nungua and the plaintiff over
vacant Nungua Stool land, the
law was satisfied and that
document would prevail against
every other claimant except one
who was able to produce a
superior title; that is, a bona
fide purchaser who has duly
registered his title.
Thirdly,
counsel for the defendants
argued ground (vii), that
exhibit A did not secure the
consent of the Minister as
required by Act 123 thereby
rendering same of no effect.
This ground was argued at length
by both parties. Here again, we
agree with counsel for the
plaintiff that it is a question
of fact whether the Minister’s
consent was secured or not and
therefore it ought to be raised
at the time the document is
sought to be tendered for the
necessary evidence to be
adduced. This view accords with
the opinion expressed by Atuguba
JSC, in his concurring opinion
in the case of REPUBLIC v.
CIRCUIT COURT, ACCRA; EX PAARTE
KOMELEY ADAMS & Others
(KOMIETTEH ADAMS (substituted
by) OTSIATA IV INTERESTED PARTY)
(2012) SCGLR 111 at page 114 in
these words:
“I
agree that Ashong-Yakubu J. was
wrong in quashing the judgment,
the subject-matter of the
application for certiorari, on
the ground that the conveyance
of title did not have the
requisite ministerial
concurrence in breach of the
Administration of Lands Act 1962
(Act 123). A court cannot give a
judgment contrary to statute.
However, for my part, I cannot,
in the instant case, see such an
error on the face of the record.
I know of no law which states
that the concurrence of the
Minister when obtained must be
stated on the face of the
conveyance. Indeed, it is trite
law that such concurrence need
not need not be contemporaneous
with the grant but can validly
and subsequently be obtained
after the execution of the
conveyance. It may well be that
such concurrence was not
obtained before or at the time
of the circuit court’s judgment
in this case. However, such
error, if there be, has not been
carried on the face of the
record in this case. If that
error therefore exists it must
be a latent error and certiorari
does not lie for latent errors.”
We agree
with this statement expressed
above that the Ministerial
consent could be taken
subsequent to the execution of
the document of transfer and may
be embodied in a different
document. Therefore when a
registered document is sought to
be tendered the presumption is
that all necessary consents have
been obtained prior to
registration. Therefore the
party who thinks otherwise
should raise the question on the
record and ask that the consent
be produced, failing which the
presumption of regularity would
apply. Besides, on the same
principle as applied to
registration, the lack of
ministerial consent per se does
not render the deed of transfer
invalid for all purposes, it is
valid as between the parties
thereto and as against a third
person who also obtains title
from the same grantor except he
succeeds on a plea of bona fides
as explained above.
The other
legal ground raised in this
appeal is contained in ground
ii, supra. In short the argument
is that with the effective
commencement of PNDCL 152
following the declaration of
Accra as a registrable district,
Act 122 ceased to apply for
purposes of registration of land
in Accra. Therefore the
purported registration of
exhibit A by the Lands
Commission was of no effect.
This ground was not pursued by
counsel for the defendants as he
did not argue it at all. It is
thus taken to have been
abandoned. And even if the
argument had succeeded it would
have had no effect on the appeal
as exhibit B would still be
valid to transfer the land from
the Nungua Stool acting on its
own or at the instance of Nii
Sango, to the plaintiff.
Ministerial consent and
registration could follow later.
But as held above, exhibit B
could not be set aside as same
would be unjust. As Act 122
remains law, registration under
it is still acceptable save that
the holder stands a risk of
being defeated on account of
priority of registration by
another person who has
registered under PNDCL 152. And
even under section 13(3) of
PNDCL 152 persons who had
registered under Act 122 were
required to re-register under
the new law. Thus registration
under Act 122 must be followed
by a re-registration under PNDCL
152 in order to secure the
indefeasible title that the new
law ensures to the holder. But
registration under Act 122 gives
notice of an interest in the
land to a subsequent grantee of
the same land and puts him on
the inquiry which a search
result will disclose.
Counsel
argued grounds I, iii and iv,
together. These grounds are
largely based on facts. The
evidence shows that the land
forms part of Nungua Stool land
which Nii Sango’s family reduced
into their possession. The
permission granted to the
temporary occupants by Nii Sango
was sufficient to constitute
possession. And in accordance
with customary law, NII Sango
had every right to alienate the
land, but this right is subject
to statute law.
The 1st
defendant is also a native of
Nungua but she was not the
person who took the possessory
title to this land. Nii Sango
did not abandon the land so as
to entitle the 1st
defendant to acquire it by
customary law. Thus the
alienation by Nii Sango would
have to follow the laws of the
country. Counsel for the
defendants sought to avoid the
provisions of the Conveyancing
Act by claiming it was a
customary transaction between
Nii Sango and the 1st
defendant but it was not. The
transaction was duly caught by
the Conveyancing Act which
required writing to evidence a
contract for the sale of land.
The evidence is clear that the 1st
defendant and Nii Sango agreed
on the purchase price. A receipt
was issued to cover the first
two part-payments, exhibit 2.
This receipt only says that it
is for land situate on the
Spintex Road. A receipt may be
sufficient writing if it
describes the land by stating
its location, dimensions and if
it is plotted, the plot number.
But this receipt lacks any
description of the land or its
dimensions and boundaries. From
the evidence of Nii Sango he was
waiting for the 1st
defendant to complete the
payment before he would take any
further step. That evidence was
contrary to the evidence of the
second defendant who said the
payment was to be completed only
after Nii Sango had ejected the
squatters. Thus the defendants
and the witness were not agreed
as to the terms of the sale
contract as regards time for
completion. Besides, it is clear
that being Nungua Stool land it
is only the stool that could
give a title holder a
registrable instrument. It
follows that the Nungua Stool
could not be left out of any
sale contract since it has to
give out the documentation. The
evidence is clear the defendants
did not have any document from
the Nungua Stool. This appeal
could be resolved on these
grounds alone as the 1st
defendant had no valid contract
of sale from Nii Sango, the
receipt could be referable to
any piece of land on the Spintex
Road and the Nungua stool gave
her no document to confirm the
sale.
The
foregoing is not to say that the
burden of proof has been shifted
unto the defendants. No. the
plaintiff assumed the burden of
proof throughout in the absence
of a counterclaim. But the
courts below were satisfied that
the plaintiff had successfully
discharged the evidential burden
that the case placed on him. He
got a grant from Nii Sango
without notice of any prior
grant to somebody else. He had
duly conducted a search at the
Lands Commission which confirmed
the land was vacant, see page
160 of the record. The Nungua
stool also conducted a site
inspection by five persons whose
report at page 156 of the report
also confirmed the land to be
part of their stool lands. The
evidence shows that as at May
2008 when Nii Wulenchi II gave
him Exhibit B the 1st
defendant had not fenced the
land. The defence case was that
it was after the expiry of the
three months the District Court
gave the squatters to quit that
she cleared the site and fenced
it. The 1st defendant
went to the District Court with
the writ on 19th May
2008, see page 170 of the
record, at a time exhibited B
had already been executed on 15th
May 2008. We are not told when
the District Court made the
order. Even if for the purposes
of argument the court made the
order the same day the writ was
filed the three months would
expire on 18th August
2008. As at that time the rival
stool claimant had given the
plaintiff the indenture exhibit
A on 2nd July 2008.
So any attempt to say that the
place had been fenced and that
the plaintiff saw it and
nevertheless went ahead to
acquire the land was plainly
false. The plaintiff could not
therefore be fixed with any
notice of any encumbrance on the
land.
The
plaintiff followed it up by
securing the approval of both
rival claimants to the Nungua
stool each of whom, together
with his elders, gave him an
indenture, exhibits A and B. He
succeeded in registering one of
them with the Lands Commission.
Counsel for the defendants
argued that the document which
was not registered passed no
title, that is exhibit B. And in
respect of exhibit A counsel
argued that it suffered from two
legal defects, namely E.I. 18 of
1983 had withdrawn recognition
from Nii Odai Ayiku IV so he was
not the chief of Nungua
therefore his signature on
exhibit A rendered same void.
Next, being stool land the
transaction ought to have
received the consent of the
Minister of Lands, so the
absence of that consent rendered
the grant ineffectual. We have
aready disposed of these
matters.
We would
have thought that these two
documents could be admitted to
confirm the fact that whoever is
the rightful occupant of the
Nungua Stool had made a direct
grant of vacant stool land to
the plaintiff or had given his
blessing to the transaction
between Nii Sango and the
plaintiff since they satisfy the
requirements of the Conveyancing
Act without notice of any
encumbrance. Thus as between the
plaintiff and the 1st
defendant the former has
established a claim to the land.
In a case
like this, the issue of
registration and the Minister’s
consent would only arise if
there is a valid contract of
sale under the Conveyancing Act.
Unless the court gives
recognition to such document
that satisfies the requirements
of the Conveyancing Act,
unscrupulous persons would
engage in multiple sale of land
when a first valid contract is
yet to go through the process of
registration. The lack of
Ministerial consent and
registration would thus become
instruments of fraud
notwithstanding the validity of
the contract within the meaning
of the Conveyancing Act. If
counsel’s arguments are accepted
it would mean that even the
Nungua stool, whether rightfully
occupied by Nii Odai Ayiku or
Nii Wulenchi as well as Nii
Sango could turn around and
reject the documents they had
executed for the plaintiff
because one could not be
registered and because the
Minister had not given consent.
These
registration laws are
particularly applicable when
matters of priority come into
play. The 1st
defendant who holds no valid
contract cannot therefore rely
on lack of Ministerial consent
and registration under PNDCL 152
to defeat the plaintiff’s deeds
which create estoppel by deed
and conduct against Nii Sango
and the Nungua Stool. And to
recap, the plaintiff has a valid
document from the Nungua Stool
fully concurred in by Nii Sango,
though he has not succeeded in
registering it through no fault
of his. He also holds a document
which he has registered which we
are not able to set aside for
reasons explained herein, even
though he is yet to re-register
under PNDCL 152. The 1st
defendant has no valid contract
with Nii Sango and has received
no document from the Nungua
Stool.
We do not
intend to go into further
details as we dismiss the appeal
and endorse the orders made by
the trial High Court.
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME
COURT
(SGD) S. O. A. ADINYIRA
(MRS)
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE- BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
(SGD) YAW APPAU
JUSTICE OF THE
SUPREME COURT
COUNSEL
RAYMOND BAGNABU ESQ FOR THE
PLAINTIFF/ APPELLANT /APPELLANT.
ANDY APPIAH – KUBI ESQ. FOR THE
DEFENDANT/ RESPONDENT/
RESPONDENT. |
