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Estoppel — Laches and
acquiescence — Fraudulent
conduct — Defendant purchasing
disputed property without
investigating title — Defendant
warned by plaintiff in course of
development of property —
Whether defendant bona fide
purchaser — Whether plaintiff
guilty of laches and
acquiescence.
The plaintiff took a lease of
the disputed land from the
Government of Ghana and had been
in possession thereof for ten
years. The 1st defendant granted
a portion of the land to the 2nd
defendant who commenced building
operations thereon. The
plaintiff instituted an action
in the circuit court for a
declaration as the leaseholder,
damages for trespass and
perpetual injunction restraining
the 1st defendant, his agents
and servants from dealing with
the land. The trial judge
dismissed the action on the
ground that the plaintiff was
guilty of laches and
acquiescence. The plaintiff
appealed.
Held,
on the facts the 1st defendant
had no valid title to convey to
the 2nd defendant and the 2nd
defendant could not claim to
have acted in a bona fide belief
that he had a good title to the
land. As a purchaser, the 2nd
defendant did not take the
precaution of investigating the
title to the property. On the
other hand it could not be said
of the plaintiff that he
fraudulently encouraged or by
inaction misled the defendants
to invest in the land; the
evidence established that he
promptly warned the 2nd
defendant in the course of his
development of the land. The
plaintiff could not therefore be
said to be guilty of laches and
acquiescence. Boateng v Ntim
[1961] GLR 671 referred to.
Case referred to:
Boateng v Ntim
[1961] GLR 671.
APPEAL against the decision of
circuit court to the Court of
Appeal.
Ward-Brew
for the appellant.
Wontumi
for the respondents.
LUTTERODT JA.
This is an appeal against the
judgment of the circuit court
dated 5 March 1991. The facts
giving rise to this action are
very simple. The
plaintiff-appellant who is a
farmer obtained the leasehold
interest in the disputed land
from the Government of Ghana
which had acquired the land in
1978. Thereafter he went into
possession. Subsequently, the
1st defendant granted a portion
of this land to the 2nd
defendant who commenced building
operations on it. When in spite
of several warnings, the
defendants would not desist from
the acts of trespass, the
plaintiff was constrained to
institute an action in the
Circuit Court, Kumasi, for a
declaration that he is the
lessee of the disputed land;
damages for trespass; perpetual
injunction restraining the 1st
defendant, his agents and
servants from interfering or
dealing with the land in
dispute.
For some rather obscure reason,
the learned judge gave judgment
for the defendants and proceeded
to award general damages of four
hundred and sixty thousand cedis
of which he held that the sum of
two hundred and sixty thousand
cedis was adequate compensation
for the plaintiff.
The dissatisfied plaintiff, on
the same day that judgment was
delivered, filed an appeal
against the decision on two
grounds. Fourteen further
grounds of appeal were
subsequently filed and the same
were, by the leave of court,
also argued along with the
original grounds of appeal.
It was first submitted that the
learned trial judge failed to
evaluate the evidence and make a
finding with regard to the
ownership of or title to the
land, ie the leasehold interest,
even though the plaintiff had
sought for a declaration of
title to the land. Counsel then
concluded that the trial judge’s
own finding that the plaintiff
was entitled to compensation
clearly suggested that title was
vested in the plaintiff. Allied
to this is the second point
urged on us. It is that the
learned judge’s finding that the
plaintiff was estopped by laches
and acquiescence is clearly
insupportable by the evidence.
I am in entire agreement with
the appellant’s counsel on the
submissions he has made. The
evidence of PW1, an official
from the Lands Department,
clearly shows that the
Government acquired the land in
1902 under the Administration
(Ashanti) Ordinance 1902 (Cap
110). Again the evidence shows
that by the agreement tendered
as exhibit A, the plaintiff was
granted a lease of the said
land. The lease took effect from
1 July 1978. The plaintiff had
been in possession for some 10
years, and no one had questioned
the various acts of ownership he
had exercised over this land
during that period.
The defendants’ evidence on the
other hand shows that the 1st
defendant granted the said land
to the 2nd defendant in 1986. At
this date, the uncontroverted
facts show that the 1st
defendant had no valid title to
convey. It is therefore
unfortunate that in spite of
such overwhelming evidence and,
more importantly, the fact,
clearly borne out by the lease
agreement, exhibit A, that the
land was specifically allocated
to the plaintiff for livestock
farming, the learned judge
concluded:
“…from the evidence the land
granted to the plaintiff was for
livestock in 1978 and will not
be suitable for the purpose…”
and so declined to grant the
relief for declaration of the
leasehold title.
I am also satisfied from the
evidence that he is not guilty
of either laches or
acquiescence. On the contrary,
he appears to have acted
timeously. There is not the
slightest evidence that he acted
fraudulently.
The matters that must be proved
before the doctrine can be
invoked are laid out in
Boateng v Ntim [1961] GLR
671. It was held therein that:
“¼
to establish acquiescence
amounting to laches it must be
proved inter alia, that (a) the
party relying on it had a bona
fide belief that he had a good
title to the land, when in fact
he had none; (b) that the person
sought to be estopped had
knowledge of the error on the
part of the person pleading the
estoppel; and (c) that the party
pleading it had been led,
fraudulently, by the silence or
active encouragement of the
person sought to be estopped to
spend money to improve the
property or in respect of it.”
From the available evidence, it
does not seem to me that the
defendants can honestly say they
had a bona fide belief that they
had a good title to the land.
Their evidence is completely
silent on what reasonable step
the 2nd defendant took as a
prudent cautious purchaser as
for example by way of official
searches conducted at the
appropriate government
departments to ascertain whether
the subject matter was in anyway
encumbered. Even if I were in
error and the evidence does
justify a finding in their
favour that they had such bona
fide belief that they had title
to the land, I have no doubt in
my mind that it cannot be said
of the plaintiff that with full
knowledge of the 2nd defendant’s
error he actively encouraged
them or by silence fraudulently
misled them into investing in
the land. On the contrary, the
evidence clearly shows that as
soon as he learnt of the
trespass he took steps to warn
them off the land. These steps
include a letter he caused the
Lands Commission to write to
them, exhibit D. Even the 2nd
defendant who actually incurred
expenditure on the land
confesses that while carrying on
with the construction, the
plaintiff came to inform them
that the land had been allocated
to him but in spite of this
warning “they continued to
build.”
In the light of the foregoing,
judgment ought to have been
entered in favour of the
plaintiff for all the reliefs
endorsed on the writ. In the
result I would allow the appeal
and enter judgment for the
plaintiff for all the reliefs. I
would assess general damages at
two hundred thousand cedis.
ESSIEM JA.
I agree.
ADJABENG JA.
I also agree.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner |
