28 JULY 1993

Land title registration – Land Title Adjudication Committee - Jurisdiction – Committee not vested with jurisdiction by mere declaration of registration district – Circumstances in which jurisdiction of committee may be invoked – Land Title Registration Law 1986 (PNDCL 152) ss 11 and 12(2).

Land title registration – Deeds – Registration of, – Respondents’ title deed registered prior to coming into force of PNDCL 152 –Whether necessary for respondent to re-register under PNDCL 152 – Land Title Registration Law 1986 (PNDCL 152) ss 11 and 13.

Courts - Jurisdiction – Land title – Plaintiffs’ title deed registered before coming into force of PNDCL 152 – Defendant registering his title deed during pendency of action, after coming into force of PNDCL 152  – Whether jurisdiction of courts ousted – Land Title Registration Law 1986 (PNDCL 152) s 12.

The applicant rented the premises in dispute from one Osei Antwi in 1974 for 10 years. Upon Osei Antwi’s death in 1980 the applicant obtained a renewal of his lease from the customary successor in 1984 for a further 10-year period. In 1986 the respondents also obtained a lease of the property for 99 years from the personal representatives of Osei Antwi and then gave the applicant notice to quit the premises by 16 December 1987. The respondents sued in the circuit court for recovery of possession of the premises. The circuit court entered judgment for the respondents and the applicant appealed against the decision of the circuit court. He applied unsuccessfully to the circuit court and Court of Appeal for stay of execution. The Court of Appeal also refused to grant the applicant leave to appeal against its decision and the applicant repeated the application in the Supreme Court. In support of his application the applicant averred that he submitted his lease for registration in 1985, during the pendency of the matter before the trial court, when the area was declared a registration district pursuant to the Land Title Registration Law 1986 (PNDCL 152); that his counsel thereupon raised an objection to the jurisdiction of the trial court but was overruled. The applicant contended that the judgment of the trial court could not be supported because the trial court lacked jurisdiction to determine the matter by virtue of s 12(1) of PNDCL 152 and, further, that the declaration of the area covering the disputed area as a registration district automatically brought the parties before the Land Title Adjudication Committee set up under s 22 of PNDCL 152.

Held, Francois JSC dissenting, (1) the mere declaration of a registration district did not give automatic jurisdiction to the Land Title Adjudication Committee established under s 22 of PNDCL 152. By s 12(2) of PNDCL 152, where at the time of publication of a notice under s 11 of PNDCL 152 an action or proceeding concerning any land or interest therein in a registration district was pending in any court, any claim under PNDCL 152 in respect of the same land or interest should be noted by the Land Registrar but no further action should be taken by him on such claim until the matter was determined by the court. It was a misconception therefore to assert that a mere declaration of a registration district gave automatic jurisdiction to the Adjudication Committee.

(2) By virtue of ss 11 and 13 of PNDCL 152, before any matter was referred to the Adjudication Committee the Registrar must have: (a) issued a notice within 14 days of the declaration specifying the situation and limits of the registration district (b) required any person who claimed to be the proprietor of any land or interest in any land within the registration district to make a claim thereto either personally or by an agent, and (c) required all claimants to mark or indicate the boundaries of their respective lands. Thereafter the Land Registrar would have to prepare a list of all lands situated in that district in respect of which an instrument had been registered under the Land Registry Act 1962 (Act 122) and served on any person named as a proprietor of land or interest in land stipulated in the said list, a notice of his intention to register such person or interest. It was only where there were conflicting claims that the Registrar of Lands would have to refer the matter to the Land Title Adjudication Committee for settlement. In the absence of any conflicting claims the Land Registrar recorded the particulars of the land or interest and the proprietor thereof in the land register. Besides, any person who claimed to be a proprietor of any such land or interest in any such land was enjoined to submit an application under section 23 of PNDCL 152, setting forth his claim to the Land Registrar. Where there was record of such claim, but no such application had been made, the Land Registrar would, if he wished, proceed as if such an application had been made by that person, and request for a copy of the relevant instrument duly registered under Act 122. Since the applicant’s lease was not registered before the area was declared a registration district it could not have automatically brought the parties before the Land Title Adjudication Committee, as alleged.

(3) Granting that applicant’s lease was duly registered in February 1992, i.e. when the action was already pending in the circuit court, section 12(2) would be brought into focus, and the Registrar would be expected simply to note any other claim in respect of the same land or interest that may come to his notice, without proceeding to take action on such claim until the matter before the court had been determined. The fact of registration of the applicant’s lease could not per se oust the jurisdiction of the court.

(4) Moreover since the root of title of the respondents was duly stamped and registered in 1986, the title was not affected by the 10 November 1990 declaration. In other words there was no need for the company’s deed to be submitted for re-registration, vis-à-vis a lease not registered under the provisions of PNDCL 152. The applicant had no good ground for the grant of leave and the application would be dismissed.

Cases referred to:

Boateng v Dwinfuor [1979] GLR 360, CA.

Booker v Palmer [1942] 2 All ER 674, 87 Sol Jo 30, CA, 31(1) Digest (Reissue) 218.

Crayem v Consolidated African Selection Trust Ltd (1949) 12 WACA 443.

Hodgson v Marks [1970] 3 WLR 956, [1970] 3 All ER 513, 114, Sol Jo 770, 21 P & CR 737, 215 Estates Gazette 441; revsd [1971] Ch 892, [1971] 2 All ER 684, [1971] 2 WLR 1263, 115 Sol Jo 224, 22 P & CR 586, CA.

Hunt v Luck [1901] 1 Ch 428, [1900-3] All ER Rep 295, 71 LJ Ch 239, 86 LT 68, 50 WR 291, 18 TLR 265, 46 Sol Jo 229, CA.

Kugbe v UTC (1926) D Ct ’26-’29, 202.

Schalit v Joseph Nadler Ltd [1933] 2 KB 79, [1933] All ER Rep 708, 102 LJKB 334, 49 TLR 375, 31(1) Digest (Reissue) 528.

Strand Securities Ltd v Caswell [1965] Ch 958, [1965] 1 All ER 820, [1965] 2 WLR 958, 109 Sol Jo 131, CA, Digest Cont Vol B 620.

Westbury Property and Investment Co Ltd v Carpenter [1961] 1 All ER 481 sub nom Westerbury Property and Investment Co Ltd v Carpenter [1961] 1 WLR 272, 105 Sol Jo 155, 176 Estates Gazette 1347.

APPLICATION for leave to appeal against the ruling of the Court of Appeal.

Anthony Kwakye for the applicant.

Owusu Yeboah for the respondent.

ARCHER CJ. I have had the opportunity beforehand of reading the opinion of my brother Aikins JSC and I agree with him that the application for leave to appeal should not be granted.

FRANCOIS JSC: The plaintiffs-respondents, Raziel Construction Ltd, instituted an action in the Circuit Court, Accra against the defendant-applicant for possession of House No C260/3, Ring Road

Central, Accra, being premises occupied by the defendant. They proceeded on the basis that they had been granted a lease of the said premises by the legal representatives of the deceased owner.

Judgment was delivered in favour of the plaintiffs on 13 October 1992. Dissatisfied, the defendant-applicant appealed to the Court of Appeal and sought additionally, a stay of proceedings till the merits of his appeal had been considered.

In a ruling delivered on 11 March 1993, the Court of Appeal refused the application for stay. The substantive appeal has yet to be heard but the defendant-applicant, anxious to preserve the status quo ante, has applied to this court, for leave to appeal against the decision of the Court of Appeal.

The issue as I see it, hinges fundamentally on the plaintiffs’ capacity as landlord to eject the defendant. For in my view, if the relationship of landlord and tenant does not exist, the plaintiffs cannot seek the remedy of ejection which is based on this contractual relationship.

The defendant-applicant maintains that he had been a tenant of the premises for over 10 years and that he was put in possession not by the plaintiffs, but by the real owner of the property, one Osei Antwi in 1974. Osei Antwi having died in 1980, the defendant claims his lease was renewed for a further 10 years by the customary successors of his deceased landlord.

If these facts are true then the plaintiffs acquired their lease with full notice of the presence of a sitting tenant.

Exhibited with these proceedings is a copy of the plaintiffs’ statement of claim. Paragraph 1 thereof admits that the defendant is “the proprietor of Safari Motor Works at House No C260, Ring Road, Central Accra”.

In paragraph 4 of the said statement of claim the plaintiffs pleaded:

“By a letter dated 16 December 1987, the plaintiffs gave the defendant then in possession three months notice to quit the premises with effect from 16 December 1987.”

And in paragraphs 5 and 6, the plaintiffs pleaded that they granted extended periods of notice, to oblige the defendant to quit the premises.

It is obvious then, that when the plaintiffs secured their lease of House No C 260/3, Ring Road Central, Accra, on 1 March 1986, the defendant was already in possession. It is also clear that he was not considered a trespasser, for otherwise other steps would have been taken to eject him.

With these incontrovertible facts, the issue is whether the plaintiffs could be said to be clothed with any power derived from their lease to eject the defendant applicant.

I regret that I differ from my Lord the Chief Justice and my distinguished colleagues on this matter. I see fundamental

 incapacity in the plaintiffs to obtain the relief granted them by the circuit court and obliquely endorsed by the Court of Appeal.

It seems to me that whether parties are barking up the wrong legal tree or not in their appreciation of the appropriate law that governs this matter, the basic hurdle of capacity must first be surmounted before the plaintiffs can claim any entitlement to relief.

Where I part company with my distinguished colleagues is over the plaintiffs’ assumption of the role of landlord vis-à-vis the defendant. The administrators of the estate of the late Osei Antwi, are the defendant’s landlord by virtue of succession. That relationship is a contractual one and still exists. They can mount this action and not the plaintiffs. The defendant cannot have foisted on him an additional landlord, while his legal landlords are in existence.

Even if there had been a sale of the property to the plaintiffs, they would have had to arrange terms with the defendant as he was a sitting tenant enjoying certain inalienable rights, before they acquired any rights by purchase.

It seems to me that the Rent Act 1963 (Act 220) has no application in this case as the plaintiffs are not the legal landlords of the defendant, nor have they been substituted for the landlords as assignees. There is no contractual agreement between the plaintiffs and the defendant that I can see on the face of the record.

The important issues in this case are covered by authority. In Boateng v Dwinfuor [1979] GLR 360, the Court of Appeal (then the highest court), relying on Kugbe v UTC (1926) D Ct ’26 - ’29, 202 and Crayem v Consolidated African Selection Trust Ltd (1949) 12 WACA 443, held that the rights of a sitting tenant should always be protected. That court quoting from the Crayem case observed that “where a tenant in possession holds under a lease a party who proposes to take a lease of the same land is bound to enquire on what terms the lessee is in possession”.

From the facts on the pleadings, the plaintiffs “must be deemed to have had constructive notice of and to have been bound by the defendant’s tenancy and its terms including all equities which as a tenant he had against his landlord”. See also Hodgson v Marks [1970] 3 WLR 956, at 957. And since the defendant’s subsisting contractual tenancy had not been terminated, the legal representatives of the deceased owner could not convey vacant possession to the plaintiffs who were in turn fixed with constructive if not real notice of the defendant’s tenancy, and the terms and interests thereunder.

The court also held that registration could not confer absolute or impregnable title. See Boateng v Dwinfuor, supra, at pp 368 - 369.

The plaintiffs-respondents have not identified themselves as landlords. They have not demonstrated that they possess the legal estate which permits them expressly or impliedly to contract with the applicant. This is an overriding hurdle since the action is founded on the relation of landlord and tenant and the only person with capacity is the landlord and his successors in title. See Schalit v Joseph Nadler Ltd [1933] 2 KB 79.

The law does not impute an intention to enter into a legal relationship of landlord and tenant where the circumstances and the conduct of the parties negative any such intention. This is said to be a golden rule. See Woodfall, Landlord and Tenant 26th ed p 3, Booker v Palmer [1942] 2 All ER 674.

A landlord must competently fit the definition before he can commence an action under the Rent Act. See Westerbury Property and Investment Co Ltd v Carpenter [1961] 1 WLR 272 at p 276. In Strand Securities Ltd v Caswell [1965] 2 WLR 958 at 970, Lord Denning restated the doctrine derived from Hunt v Luck [1901] 1 Ch 45, that a purchaser must make enquiries or take at his own risk: “He must take subject to whatever rights the occupier may have”.

Referring briefly to PNDCL 152, I take the position that PNDCL 152 is not relevant in this matter. Section 67 of PNDCL 152 however states that:

“No lease shall be registered if it is invalid by reason of its having been granted in breach of an obligation binding upon the grantor.”

It is my view, that on the admitted facts that the defendant applicant was in possession as a tenant, on lease terms that had not been abrogated, the plaintiffs-respondents could not legitimately have registered their lease. The registered lease is invalid and cannot be used to subvert the applicant’s prior rights of tenancy. This is in line with the preservation of the applicant’s prior equitable interests that the common law safeguards.

It is for the above reasons and with real regret that I dissent from my Lord the Chief Justice and my learned colleagues.

I would grant the applicant leave to appeal.

AMUA-SEKYI JSC. The applicant has been guilty of bad faith and deserves no sympathy from this court. In the middle of a trial in the circuit court he purported to file a document and then submitted that because of his act of so doing the court had no jurisdiction to entertain the suit. The case proceeded to a conclusion. He lost. His application for a stay of execution was refused by the trial court and the Court of Appeal. He now asks leave to appeal to this court.

Having read the papers, I can find no good or sufficient reasons for granting leave. I would therefore also refuse the application.

AIKINS JSC. The applicant is asking for leave of this court to appeal against the ruling of the Court of Appeal which refused to grant the applicant a stay of execution of the judgment of the Circuit Court, Accra, dated 13 October 1992 in favour of the respondent-company.

The applicant had been sued in the circuit court by the respondent-company for recovery of possession of House No C260/3, Ring Road Central, Accra. Judgment was entered in favour of the respondent-company on 13 October, 1992 and, dissatisfied with the said judgment, the applicant appealed to the Court of Appeal. Thereafter he applied to the circuit court for a stay of execution. That court refused to grant his request. The applicant then repeated his application in the Court of Appeal, and in a supporting affidavit he sought to show that his appeal against the circuit court judgment had a reasonable chance of success, in that the trial court lacked jurisdiction to adjudicate on the matter by virtue of the provisions of section 12(1) of the Land Title Registration Law 1986 (PNDCL 152). Here too, he fought against deadly and heavy odds, and the application was refused.

He then applied to the Court of Appeal for leave to appeal to this court against its ruling, but this application was also refused, hence the application before us.

In paragraphs 5 to 11 of his supporting affidavit the applicant makes the following averments, namely,

(i) that he had been in occupation of the land in dispute since January 1974 on the strength of a ten-year lease granted by the owner Osei Antwi;

(ii) that after the death of Osei Antwi he obtained a renewal of his lease from the customary successor of the late Osei Antwi in 1984 for another ten years with an option of a further grant of five years;

(iii) that he submitted the lease for registration in 1985;

(iv) that in 1990 the area covering the said land was declared a registration district under PNDCL 152;

(v) that as a result of this declaration his counsel challenged the jurisdiction of the circuit court to proceed with the case by virtue of section 12(1) of the Law, but he was overruled, and

(vi) that as he had his lease in 1984 before the customary successor and the head of family took letters of administration to administer the estate of the late Osei Antwi his lease was valid, as compared to that of the respondent-company.

The respondent-company answered these averments in paragraphs 4 to 12 of its affidavit in opposition to the motion as follows:

(i) that the defendant-applicant was a mere tenant of the premises, the recovery of possession of which the respondent-company was claiming for its own business purposes;

(ii) that the company had taken a lease of the premises for a term of 99 years in 1986 and had proceeded to get it registered the same year;